Chris Hayes (Werriwa, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak again on the death penalty for Australian citizens, an issue I have now been involved with for some time. I speak tonight while Indonesian lawyers for Scott Rush are preparing the process of finalising the contents of his all-important motion of reconsideration in the Indonesian supreme court. Members will recall that Scott Rush is one of three young Australians currently on death row in Kerobokan Prison in Bali. He was arrested at Denpasar airport over four years ago, and has been in prison all that time. For the last almost two years he has been on death row. Initially he was sentenced to life imprisonment, which was obviously a substantial penalty in itself. However, an appeal to the supreme court by Scott Rush, and without the urging of the police or the prosecution, led to Mr Rush’s sentence being increased to death.

I put on record in this House a number of times why I have decided to take a stand on this matter. It would be every parent’s nightmare to have their child on death row. Twelve months ago I met up with Christine and Lee Rush, Scott Rush’s parents. I found them to be pretty ordinary people, much like the rest of us. We shared a common bond in that we unreservedly loved our kids. As loving parents, they had decided to intervene in Scott’s life in a big way. They intervened in his involvement in drugs and crime, and also they were concerned about the people he was associating with. In order to ensure that drugs and crime did not become his future, they decided to contact the Australian Federal Police. The police, consistent with the international procedures, as I understand it, also notified their Indonesian counterparts and by that notification started an international investigation. As a result, Scott and all involved were arrested in Denpasar in 2005 for serious narcotics offences. Lee and Christine Rush have both said to me that they did not think that by informing the police they were signing their son’s death warrant.

Having represented police officers in every Australian jurisdiction over many years, and through my involvement through parliamentary processes with the Australian Crime Commission, I know that sharing criminal intelligence is essential in combating the internationalisation of wide-ranging aspects of criminal activity, and certainly in relation to stemming drug related crime. I also note that the Indonesian police have played a most commendable role in targeting drug related crime in the region, and I am aware of the very close cooperation that exists between Australian and Indonesian police.

Under Australian law, Australian law enforcement agencies, unless specifically authorised, are not to lend assistance in relation to prosecutions that after the point of charge, if proven, could carry a death penalty. In other words, the prospect of a death penalty could seriously impede this level of cooperation between law enforcement agencies and thereby threaten the effectiveness of our ongoing policing efforts within the region. However, as I have indicated in a notice of motion to this parliament, in order to avoid as much as possible the exposure of Australian citizens to the death penalty Australia should act consistently and in a determined way to legislate to give effect to the Second Optional Protocol to the International Covenant on Civil and Political Rights. This would have the effect of preventing any Australian jurisdiction from making laws permitting the use of capital punishment but, more importantly, it would actually communicate Australia’s position on the death penalty very clearly and unequivocally to the world at large.

I would like to make it very clear that we all condemn the menacing criminal world of drug related crime. As a parent this feeling can only be amplified out of the care and love for our kids no matter what their age. We expect our law enforcement agencies to render whatever assistance is necessary to target these evil-doers. However, the principle of punishment is that the punishment should fit the crime and that is the heart of our judicial system. As I understand it, it is also a central tenet of the Indonesian criminal justice system.

If that is so then it is hoped that Scott’s motion for reconsideration, which I advised a little earlier is likely to be filed in the next few months, is successful. The motion for reconsideration is a review procedure provided under Indonesian law in respect of death sentences as well as life imprisonment sentences. The motion for reconsideration is one of the two remaining legal steps whereby Scott can seek to have the death sentence imposed on him set aside and have a term of imprisonment imposed instead. The other measure also involves access to presidential clemency.

It is well to recall that Scott was a courier, an expendable 17-year-old drug mule. All the other courier members of the Bali Nine received 20 years or life imprisonment sentences from the Indonesian courts. By any basic notion of comparative justice one would have expected that Scott would have similarly received a term of imprisonment. As I have spoken about before, the judgment of the Indonesian court contained no comparative analysis of Scott’s level of offending. As a drug courier he was at the lower end of offending and yet he was the only drug mule to get the death sentence.

Like Scott’s parents have claimed he was no angel and they had been worried for some time about those he was associating with. Scott had not been out of Australia before and his crime and those of the other Bali Nine was actually intended for the Australian drug market. It should be noted that if Scott had been convicted in Australia for his crime as a courier he would have likely received in the order of a 10-year custodial sentence. At this important time it is to be hoped that Scott receives a fair and objective hearing from the Indonesian Supreme Court and that he and, just as importantly, his parents are freed from the continuing daily horror of execution by firing squad.

As I said earlier there is something that we can do in this House to assist and that is to assert our longstanding abhorrence to the death penalty. This can be best achieved by incorporating into domestic law the Second Optional Protocol to the International Covenant on Civil and Political Rights. Further, all members of this parliament should very clearly and consistently speak out against the use of capital punishment. Otherwise we would be liable to be held up to charges of hypocrisy every time it came to defending Australians with respect to death penalty sentences overseas. This step would send a very strong message to Indonesia as to how important this value is held by Australians.

The crossbench committee on the death penalty has been recently re-established and is currently co-convened by Senator Humphries, Senator Hanson-Young and me. Through this committee we have collectively explained members’ views to the Indonesian Ambassador, His Excellency Mr Joelianto. I believe that Australia and the Republic of Indonesia in partnership can show great leadership in advocating human rights not simply through our region but to the rest of the world.

To Lee and Christine Rush and to other Australians, quite frankly, in the same predicament, we can show that we do care. I hope that others, including the courts, recognise the brave and selfless act that Lee and Christine as loving parents have shown in notifying the police of their suspicions concerning their son, his friends and their activities. How many of us love our kids that much to do the same? They too are genuine victims here. I would like to end on a quote from the Chief Justice of the South African Constitutional Court who said:

The death penalty sanctions the deliberate annihilation of life. As I have previously said, it is the ultimate and the most incomparably extreme form of punishment …

It is the last, the most devastating and the most irreversible recourse of the criminal law, involving as it necessarily does, the planned and calculated termination of life itself; the destruction of the greatest and most precious gift which is bestowed on all humankind.

It is not necessarily only the dignity of the person to be executed which is invaded. Very arguably the dignity of all of us, in a caring civilization, must be compromised.