Maria Vamvakinou (Calwell, Australian Labor Party) Share this | Link to this | Hansard source

I rise today in support of the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009. I want to welcome the efforts of the Attorney-General, the Hon. Robert McClelland, for introducing this very important piece of legislation that goes very much to the heart of our national judicial framework.

This bill introduces a specific Commonwealth torture offence into the Commonwealth Criminal Code, which operates concurrently with the existing offences in state and territorial criminal laws. The bill also amends the Commonwealth Death Penalty Abolition Act 1973 to extend the current prohibition on the death penalty to state criminal laws, thus ensuring that the death penalty cannot be introduced anywhere in Australia in the future.

My strong opposition to the detention and torture of Australian citizens abroad, as well as to the killing of Australians in foreign jails, is unequivocal and, in fact, very much on the record here in this place. This bill serves to ensure that Australia will never accommodate those involved in the judicial killings and torture of individuals both on our shores and abroad. This bill is a reflection of Australia’s strong opposition to any form of torture, as well as the death penalty, wherever it may occur. It sends a strong message to those who engage in such activities, who may one day imagine that they can find sanction in a modern Australia.

By enacting torture as a specific Commonwealth offence in the Commonwealth Criminal Code, the bill reflects this government’s commitment to end impunity for torture and fulfils Australia’s obligations under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. By amending the Death Penalty Abolition Act 1973, this legislation also highlights Australia’s commitment to its obligations under the second optional protocol to the International Covenant on Civil and Political Rights.

In speaking to the part of the bill which goes to the introduction of a specific Commonwealth torture offence into the Commonwealth Criminal Code, I want to make the following observations. The basic definition of torture is that contained in the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Torture can never be an acceptable means of extracting information or compelling people to yield to someone else’s will or to squash dissent. It is, as we all know, an act of sheer cruelty, primarily designed to degrade human beings by inflicting extreme physical pain and humiliation.

Victims of torture, if they survive—many do and many, unfortunately, do not—are often left with lifelong physical and psychological scars. Many will suffer post-traumatic stress disorder and severe depression and will almost always have difficulty readjusting to normal life. However, it is not only the individual who is the victim of torture who suffers; it is also their families and friends and, indeed, the community as a whole. In my own electorate I often come across people who have come to Australia via our Refugee and Humanitarian Immigration Program who, more often than not, are actually victims of torture back in the countries they have left, and who have come and settled in Australia. I have had the opportunity to see the kind of trauma that remains with people who have been victims of torture. This is trauma that I think remains with them for the rest of their lives. So the impact for those who survive and their families is unspeakable.

Torture as a tool continues, however, to be practised today in all too many parts of the world—and, whether practised in the name of political dogma or religious dogma, it is and always has been the tool of despots. No society, individuals or communities should tolerate torture in any form or for any reason. Australians do not support torture, and this bill is a reaffirmation of this. We should be under no illusion that torture continues to be used to this day and even, as English historian Mark Curtis says, ‘in circumstances where the perpetrators were hailed as the upholders of civilisation’. The most recent and most infamous images of the use of torture at Abu Ghraib prison in Iraq demonstrates that the nature and outcomes of torture have not changed, whether it is in the civilised world or in the uncivilised world.

SBS’s Dateline program revealed to the world the horrors at Abu Ghraib prison. Images, some too shocking to reveal, reduced the humanity of both its victims and its perpetrators. We were all, I am sure, appalled and shocked, more so because the torture that had been inflicted on people in Abu Ghraib was actually inflicted by those who were hailed as the upholders of civilisation. In this case, they were the forces of democracy and freedom, forces who upheld the value of the rule of law and the dignity of human rights, forces whose purpose in Iraq on this occasion was to actually free the Iraqi people. But it was not just the practices in Abu Ghraib that shocked the world. Here was a situation where the world’s super power and its alliance powers resorted to sidestepping the rule of law and principles of democratic justice and employed torture techniques that matched the cruelty and degradation of the cruellest, undemocratic regimes. As such, I want to put on record that I regret the US administration’s delay in closing the infamous Guantanamo Bay military prison in which, I remind the House, two Australian citizens were detained.

The images and stories coming out of these prisons have single-handedly done more damage to the principles of freedom, human rights and democracy than many of the stories that have come out of the so-called ‘war on terror’—all the more so when they are practised under the banner of freedom. To put it simply: torture and death is the antithesis of both democracy and human rights. In 2007 I moved a motion, seconded by the member for Melbourne, the now Minister for Finance and Deregulation, the Hon. Lindsay Tanner, that called for acknowledgement that the ongoing torture and incarceration of David Hicks was a breach of both the Geneva conventions and the Australian Criminal Code. Now, as then, the ongoing imprisonment and torture of individuals in the most horrific of circumstances, coupled with the denial of any of the most basic human rights, runs counter to the principles of freedom and democracy. That is why I am so pleased to be supporting a bill that makes it an offence to commit torture.

I would also like to welcome the bill’s amendment of the Death Penalty Abolition Act 1973 to cover state laws. This will uphold and safeguard our nation’s ongoing compliance with the second optional protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. Extending the application of the current prohibition on the death penalty to state laws—in addition to Commonwealth, territory and imperial criminal laws to which the Death Penalty Abolition Act already applies—ensures that the death penalty cannot be reintroduced anywhere in Australia in the future.

Australia has a longstanding policy of opposition to the death penalty. This bill is a comprehensive rejection of capital punishment and demonstrates Australia’s commitment to the worldwide abolitionist movement. It complements Australia’s international lobbying efforts against the death penalty. It is important to me, as it is to an overwhelming majority of Australians, that this parliament and, indeed, our nation as a whole be active in advocating for the abolition of the death penalty at a global level. I want to take this opportunity to encourage and urge other nations and other parliaments to act in the same way as this parliament is acting here today. There are still some 70 states worldwide that apply the death penalty, making the work of the worldwide abolitionist movement that Australia is a party to all the more imperative.

It is important that Australia stands with the European Union and other states with the firm resolve that the abolition of the death penalty contributes to the enhancement of human dignity and the progressive development of human rights. To this end, I want to welcome the Russian Constitutional Court’s decision late last year to effectively outlaw the death penalty, and I want to take this opportunity to call on its State Duma to go that one step further and ratify the protocol banning capital punishment. I would also like to call on China and the United States, as the world’s leading powers but also as prolific users of the death penalty, to follow suit and join us in the worldwide movement for the abolition of the death penalty. It should be our collective aim to end the use of the death penalty as a punitive practice, wherever it may occur.

As a member party of the Socialist International, which holds the view of the total abolition of the death penalty, Labor is committed to the pursuit of justice both at a social and a judicial level. The federal government’s unwavering opposition to the death penalty is a reflection of our humanitarian approach to issues of justice. The death penalty serves no purpose other than to compromise our humanity and violate the sanctity and dignity of human life.

In 2005, I spoke during a grievance debate on the execution of Australian Van Nguyen, who we will all remember was hanged by the government of Singapore after being found guilty of drug trafficking. I stated then that the government-sponsored execution of a human being is a crime against humanity and a breach of the UN convention. Article 6 of the International Covenant on Civil and Political Rights states:

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

The death penalty is an archaic and barbaric practice that runs counter to the Universal Declaration of Human Rights, which recognises each person’s right to life and categorically states:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

In that same grievance debate, I stated:

It is easy for people to be unforgiving and to loathe those who they believe by their actions perpetuate the misery of drug abuse. But we must never allow such feelings to cause us to lose sight of our humanity. I cannot therefore agree with those who support capital punishment. Putting aside all the moral and legal arguments that militate against the use of capital punishment, for me personally it is a simple case of a profound belief that no human being has the right to take the life of another under any circumstances.

I said that in 2005 in this House and I say it again because I want to reaffirm my absolute belief in that statement. The right to life is a basic, inherent and instinctive feature of what it means to be human, and we must never lose sight of our humanity. This bill is important on a number of fronts. However, its underlying importance is that it judges life and just treatment as issues which are beyond political expediency.

Deputy Speaker Scott, I would like to bring to your attention Amnesty International’s description of the death penalty. It states that the death penalty is:

… discriminatory and often used disproportionately against the poor, minorities and members of racial, ethnic and religious communities.

This is strikingly clear in the United States. As the Texas Department of Criminal Justice reveals, 70 per cent of the last 100 executions were either black or Hispanic. This is an extraordinary reflection of the way in which death as an instrument of the state is handed out, often disproportionately.

As I said at the time of Van Nguyen’s execution, people-to-people campaigns calling for the end of the death penalty are not enough—they are necessary but they are not enough. This is why I am pleased that the bill before us today sets in concrete Australia’s commitment to its international and humanitarian obligations, and this legislation will now ensure that Australia is never party to violations of these fundamental principles.

As I bring to a close my thoughts on this bill, I want to make some statements in relation to an issue currently in the media. I hope and urge that members on both sides of the House reflect on the pending execution of the three Australians convicted of drug trafficking in Indonesia. This amendment bill is a timely reminder of our need to strengthen our commitment to the abolition of the death penalty and ensure that the abolition of the death penalty occurs on a global scale and in accordance with international covenants already in place.

Notwithstanding the seriousness of the crime for which the three Australians have been convicted, and in full respect of the laws that govern Indonesia, we must do all we can as parliamentarians to appeal for clemency with regard to the death sentences handed out to them. In light of the seriousness of the crimes for which they have been convicted, along with the legislation we rise to speak on, I want to finish by reflecting on the words of former South Australian magistrate Brian Deegan. The House will remember that Brian’s son, Joshua, was an Australian Rules football player who was one of the 202 people killed by terrorists in the October 2002 Bali bombings. In a letter to Indonesian authorities, Brian described himself as:

… the father of Joshua Kevin Deegan, a beautiful young man, my eldest child, who was a victim of the atrocity.

Brian was able to move beyond the emotion and the trauma of that terrible act and reflect on what justice means in a modern Australia. That is why I want to conclude with his words, which sum up all that has been said and what I and many Australians also believe. Brian said:

The Bali bombers who murdered my son last October are evil extremists … but the prospect of their judicial murder is something I want no part of … As a measure employed to dissuade potential criminals, the death penalty has been an abject failure. This is borne out by statistics that point to the commensurate rise of murders and executions in countries where capital punishment is awarded.

The argument in favour of executions remains difficult to reconcile with the universal revulsion generated by periods in history when society thought nothing of hanging a child or burning a witch. We read with disgust? or perhaps with guilt? of the stoning of adulterers, the removal of a thief’s hand or the decapitation of a blasphemer. Yet we find it palatable to break a man’s neck, to poison his veins or to electrocute him.

The bill before us demonstrates that Australia will never again deem the death penalty, or torture for that matter, palatable, wherever it takes place. I commend the bill to the House.

Mike Kelly (Eden-Monaro, Australian Labor Party, Parliamentary Secretary for Defence Support) Share this | Link to this | Hansard source

I rise to speak on the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009. I have had much to do with issues of torture and capital punishment over the last 20 years, so I appreciate the opportunity to comment on this legislation. It amends the Criminal Code Act 1995. The new offence that is intended to fulfil more clearly and explicitly Australia’s obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment will be brought into effect as a single federal offence under this legislation. That convention was signed by Australia in December 1985 and ratified in August 1989.

The old act criminalised acts of torture committed outside Australia only when committed by Australian citizens or other persons subsequently present in Australia. Other aspects of torture were left to be dealt with by the laws of armed conflict. Recently, the UN committee against torture called on nations to enact a specific torture offence. In the concluding observations on Australia in May 2008, the UN committee recommended that Australia enact a specific offence at the federal level, which we do with this legislation.

One of the interesting things to note about this legislation is that it ensures the definition of ‘public official’ or ‘person acting in an official capacity’ encompasses certain non-state actors who are exercising authority comparable to a government authority. That is a common scenario our Australian Defence Force and police personnel face in many environments when deployed in this current unstable world. That could include people belonging to political organisations or de facto authorities in a particular region or country. I will come back to that contemporary environment later in my comments. This legislation also relates to extending the application of the current prohibition on the death penalty to state laws to ensure that it cannot be introduced or reintroduced anywhere in Australia, thus safeguarding our commitment to the second optional protocol.

Interestingly, during the current turbulent times and the challenges that have been placed upon us in our adherence to human rights standards, there was a lot of debate after 9-11 about the issue of torture and the defence of necessity. My advice is that under the legal regime created in Australia, the defence of necessity will be abolished. The story used to go that, if you had a situation of the so-called ticking bomb, any measures would be justified in extracting information that would prevent a disastrous consequence. It is clear that in Australia that is not the case. Our legislation and our approach to the law give effect to the words of the convention:

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

In a speech by my good friend the Attorney-General to the Lowy Institute last year he confirmed that:

Nothing justifies torture—and nothing justifies a State’s use of it.

In the provisions, the definition of torture refers to:

… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining … information or a confession, punishing him …

In effect, this explains the circumstances in which our own personnel have confronted this issue in recent times, as have many Western nations. The nature of our operating environment has become so fluid and so difficult and challenging that we are often in circumstances where there exist no law enforcement structures and no mechanisms by which persons who are committing offences or doing things that require treatment by the law can be handed over to a responsible authority. This leaves open the question of taking the law into your own hands at times. After 9-11, confronting the challenge of Islamist extremism has given rise to what I would call the gloves-off syndrome. In other words, because of the heinous and dastardly nature of the threat elements that we face, any measures would be justified in dealing with these persons.

I will deal with those in order by firstly referring to my experience in Somalia back in 1993. In that environment, as I mentioned, we were in that vacuum situation, as were many contingents. The experience of quite a few contingents was that the troops were faced with lawlessness and took matters into their own hands. Probably the most notorious of those incidents related to a young Somali teenager by the name of Shidane Arone. What had been taking place in the camp under the direction of the commanding officer of the Canadian airborne regiment was instruction that they were to ‘rough up’ persons intruding on the base. This led down a slippery slope to where, eventually, people were receiving severe beatings. In the case of Shidane Arone, he was beaten to death in particularly grisly circumstances. It became even more notorious, because there were photographs taken of the incident.

The repercussions of this were enormous in that this led to great scandals within the Canadian defence establishment. At times there were attempts to cover up aspects of the issue, which led to even worse scenarios for the personnel involved all up and down the chain of command in the Canadian defence force. It became a cathartic and very difficult experience for the entire Canadian public. This brought home to me some very important lessons for the way our own forces deal with these situations and how we manage the circumstances that I have described. It was interesting when one of the lawyers representing one of the Canadian troops in that situation—there were a number of courts-martial of the personnel involved—stated that:

It is my submission, gentlemen, that there is ample evidence before this court that there was a general understanding amongst the troops that it was OK to rough up the prisoners a little bit for a deterrent purpose … And I say that for this reason, that the troops were in a lawless country. There was no civil institutions, there was no civil authority. There was nothing that could be done to those looters who were captured. They could not be turned over to anybody who could effectively deal with them such as happens in most civilised countries. They could not call the police and have them arrested and expect that he would be taken to court and dealt with according to the law. At the same time the soldiers were very vulnerable. They’re out in the field. They had no locks. They had valuable kit and they are obviously particularly concerned about the security of their weapons.

That was no justification, obviously, for what occurred to the Somalis who suffered at the hands of those troops. But I was actually in Somalia at the time, deployed with the 1st Battalion Royal Australian Regiment, and we identified that those were the circumstances we were in and that we would not be doing the right thing by the community or our troops if we did not put in place measures to deal with the situation. What we did at that time was re-establish the Somali court system and get the Somali police up and running again.

We put a lot of effort into this. We formed a multidisciplinary team within the contingent itself, involving military intelligence, military police, myself and some infantrymen, and we were able to identify persons who had committed crimes against humanity, those persons in the society who were committing criminal acts and facilitate them being processed in the re-established and resurrected Somali courts in the region. This certainly took the steam out of any disgruntlement or frustration that the troops might have been feeling. They understood that there was a process that could be resorted to and, therefore, there were no instances in the Australian battalion’s time in Somalia of resorting to these sorts of techniques.

We took that lesson to a number of our operational circumstances subsequent to that. We deployed to Timor in 2001 to deal with the situation there of the breakdown of authority and the departure of the Indonesian authorities. Taking the lessons that I learnt in Somalia, I established a detainee management unit for the circumstances there. We were ready to go with that. We were certainly forewarned from our previous experience and we were able to take the steam out of that situation as well, so that once again there were no incidents of Australian troops abusing Timorese detainees in that operation. Unfortunately, we were required to go back to Timor in 2006 and similar circumstances applied, although it was a bit more complicated, because there were some UN mechanisms in place which we needed to mesh with, and we put an elaborate process in place to deal with that. So there is a great deal of Australian experience in dealing with those environments.

We then came to the circumstances in Iraq in 2003, and this was a situation of great frustration to me personally. To understand the need to provide for detainees and that we should not resort to torture and then to observe what took place in Iraq was deeply disturbing. Initially, of course, the detainee problems emerged as they quite often do, just by lack of planning and preparation. The facilities that were put in place for holding detainees were very ad hoc and they became humanitarian nightmares. Effectively they were dusty dirt rooms that were pushed together because the prison system in Iraq had been trashed. There was no capacity to place people in suitable circumstances. There had been no planning to take care of this situation. Often the fact that the operational techniques and tactics of the troops at the time were not in tune with the principles of counterinsurgency led to situations where, for example, if there were a grid square where it was suspected that there were insurgents, the US army formations would go out and arrest the grid square. There would be 1,000 or more people apprehended at a time in one of these operations. They would be put into these detention camps and they would effectively become black holes. It was impossible to properly record their names, there were insufficient military intelligence people to process them, and of course there was no ability for the families to track them. So the circumstances were inhumane, the troops were not equipped with non-lethal equipment to deal with people in those circumstances, there was often rioting where the first resort was to firearms, and of course in some cases there was a resort to abuse in the context of the punishment aspect of what is referred to in the legislation.

During the whole of 2003 I was sending back a lot of reports through the authorities about this situation, as I was on the ground there from May 2003 until July 2004. None of my warnings about this situation were heeded, and I became deeply concerned in September of 2003 when the authorities decided that the problem we were having was winning actionable intelligence—not the fact that we were going down the wrong road in dealing with the counterinsurgency. So the Guantanamo team was sent to Iraq to ‘Gitmo-ise’ the intelligence operations. General Miller was sent over to put that into effect. We were also advised at that time that the US was going to resort to civilian contractors doing interrogation. In my report in September 2003, I indicated that I was disturbed by this development, but those concerns fell on deaf ears.

As has been referred to in many other comments, the Abu Ghraib circumstance became a matter of great shame and loss of moral authority in our operations in Iraq and caused a great setback to our overall confrontation with Islamist extremism in the world. It was of course a matter of great distress that these things could happen, but they stemmed from a whole culture and process that was developing at the time. In fact, what the military police at Abu Ghraib were doing was what is called ‘preconditioning for interrogation’. They were being enlisted into the effort for winning intelligence—softening up, in effect, these detainees for further interrogation by the intelligence assets that were in the theatre at the time who were effectively given encouragement to take the gloves off. This of course led to the deaths of detainees and the mistreatment, and in effect it helped to feed the insurgency itself, because those people who were involved in those detainment situations went out to become recruits for the insurgency, to spread the word about what was happening and the images certainly promoted recruitment and actions against coalition troops that subsequently happened.

This was a distressing situation. There were misinterpretations of the law involved. Article 5 to the Geneva convention was misinterpreted so that excuses were made for the removal of certain safeguards protecting the rights of detainees, and it was a shameful period for all those involved in providing legal advice to authorities. Perhaps the most shameful aspect of that was the infamous memos provided by Messrs Bybee and Yoo. These were civilian lawyers who were providing advice from the justice department to the former US administration. They were obviously attempting to craft their advice to suit the desires of their clients. This was highlighted just recently, in the last couple of days, in a report by the justice department. It really broke down when Bybee and Yoo, in their memo, concluded that physical torture only occurred when the pain was equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily functions or even death. Mental torture required suffering not just at the moment of infliction but lasting psychological harm such as seen in mental disorder like post-traumatic stress disorder. The memo concluded that torture of suspected terrorists for interrogation would not be unlawful if it could be justified on grounds of necessity or self-defence. This ignored the dictates set out in the US military manuals—FM 34-52 in particular—and international law. Many of my colleagues—military JAGs, or judge advocates general, as they are called in the US military—had tried to hold the line against this denigration, deterioration and erosion of the standards of the US military. The advice and the regimes that were put in place effectively were doing end runs around the military approach to this—to the everlasting shame of those who were providing this advice.

While the report by Associate Deputy Attorney-General David Margolis into this matter, which has just been released, did not recommend further disciplinary action, it did state that these two persons had exercised poor judgment—in what must be one of the great understatements of the century. The report stated that Yoo committed ‘intentional professional misconduct when he violated his duty to exercise independent legal judgement and render thorough, objective and candid legal advice.’ Bybee was said to have ‘acted in reckless disregard of ethical obligations’ by agreeing to sign those memos. One of the quotes was:

I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power …

This is a cautionary tale for all of those who are in the position of and have responsibility for providing accurate legal advice and guidance to government. Obviously, in recent times we have had some interesting experiences, with the so-called Utegate affair, as to how public servants can sometimes be enlisted in undesirable activities, but we must draw the line, particularly when it comes to these fundamental human rights. Certainly, the US Supreme Court managed to turn things around in its rulings in Hamdan v Rumsfeld in 2006, where it overturned the advice of people like Yoo that common article 3 of the Geneva convention did not apply in circumstances such as those in Afghanistan and stated that they did. So there was something of a fight back.

I was also involved in a lot of training and doctrinal developments in this space through my role in training those involved in field intelligence. A feature of the Australian story is that we have had in place doctrine and training to address this issue. I note that in 2008 the CDF underwent some questioning on this in estimates, because the issue of the so-called ‘dog pens’ in Afghanistan came up. He referred to the fact that that was a mistaken reference to how people were actually being treated and that we constantly review our techniques and training in this area. I am happy to say that I believe that is the case, having been involved in a great deal of it myself. I refer to the words of General Richard Myers, the former Chairman of the Joint Chiefs of Staff, who said that not engaging in torture is not ‘a matter of whether it is reciprocated—it’s a matter of who we are’. I think that is an essential point for our Australian Defence Force and police personnel. It is reassuring to know that many of my colleagues in the US military felt that way about it, notwithstanding attempts by the civilian administrators to erode that position.

In relation to the death penalty, I suppose it is a subject I am somewhat compromised on, because in my own career I have probably been the cause of a number of people having the death penalty inflicted on them. The first time was in Somalia in 1993 when I had to play a significant role in the execution of war lord Gutaale because that was the aspect of Somali law that applied and there was no way of dealing with it in any other fashion. In Iraq I was involved in the creation of the court and the process that saw the ‘dirty dozen’ and Saddam Hussein subsequently executed. Notwithstanding that experience and the fact that I have actually witnessed an execution, I am totally opposed to the death penalty and I would hope that we could promote that position worldwide.

In the final analysis, after seeing the depths to which humans are capable of descending and understanding that progress is not inevitable, I am firmly of the view that we as a nation need to contribute in whatever way we can to maintaining fundamental human rights standards. This legislation and the principles to which our public officials must be trained and committed is part of that effort.

Mark Dreyfus (Isaacs, Australian Labor Party) Share this | Link to this | Hansard source

The first execution after Europeans arrived in our continent occurred within a month of their arrival, on 27 February 1788. Thomas Barrett was sentenced to death and hanged. He was 17 years old. His crime: the theft of some butter, dried peas and salt pork from the meagre stores the First Fleet had brought with it. Execution for offences like this was common at the time. Many of the convicts who came to Australia with the unfortunate Thomas Barrett on the First Fleet had initially been convicted and sentenced to be hanged but had had their sentences commuted to transportation to the colonies. Others had faced the death penalty for the petty crimes that they were convicted of but had had a sentence of transportation imposed on them.

One hundred and seventy-nine years later, in February 1967, Ronald Ryan was hanged at Pentridge Prison in Melbourne. He had been sentenced to death for the murder of a prison guard during a prison break-out. Between these two hangings, it is estimated that between 1,700 and 2,000 people were judicially executed in Australia, but there has been no-one put to death since 1967 and since then each state and territory has abolished the death penalty. Queensland was the first state, in 1922, to abolish capital punishment for all offences. New South Wales abolished the death penalty for murder in 1955 but somewhat curiously forgot about the death penalty being there for some other offences, like treason, until 1985. WA was officially the last state to abolish the death penalty, which it did in 1985. The Whitlam government abolished capital punishment for all federal offences in 1973. In my home state of Victoria, although Ronald Ryan was hanged under a Liberal Premier, Henry Bolte, his Liberal Party successor as Premier, Rupert Hamer, introduced legislation to abolish the death penalty in 1975. The Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 now before the House will ensure that the death penalty cannot be reintroduced anywhere in Australia. It demonstrates the commitment of our nation to abolition of the death penalty across the world and will add strength to the lobbying efforts of our government for abolition across the world.

The hanging of Ronald Ryan in February 1967 had a profound effect on me, as it did on many other people, young and old, across Australia. I was 10 years old and just starting to be interested in politics and government. I recall that there were protests across Melbourne—indeed, across Australia, but most notably in Melbourne. The media had avidly covered the trial of Ronald Ryan, as indeed it had covered his escape from Pentridge and the shooting of the prison guard that led to him being charged with felony murder.

There were massive protests following the sentencing of Ronald Ryan. Barry Jones—who was already a public identity, later a member of the Victorian parliament and, later still, the member for Lalor in this House—was one of the leaders of the fight to have Ryan’s sentence commuted. This had occurred in very many cases over preceding decades. There was no doubt that the state cabinet could have commuted the sentence to life imprisonment, but the Liberal government led by Henry Bolte refused to do so. That is what brought home to me just what a political and governmental issue this is. The state government was recognised by the whole community as having the right, a right that it had exercised on many occasions, to commute sentences of death to life imprisonment. It was widely thought at the time that the refusal to commute the sentence was driven by an impending state election. Certainly there was a wave of protest across Melbourne. Thousands gathered at a vigil outside Pentridge and at Flinders Street Station at the hour of execution. Across Australia, people felt revulsion at this judicial killing and redoubled their efforts for abolition of capital punishment across our country.

When the abolition legislation was finally debated in the Victorian parliament in 1975, Barry Jones gave a memorable speech, which explained his vote for abolition in these terms:

Essentially, I cast it against darkness, against obscurantism, against instinct, against pessimism about society and about man’s capacity for moral regeneration.

Barry Jones continued in moving terms:

It is extraordinary that often people who argue for retention have a fundamental pessimism about man’s capacity for regeneration. They say certain persons ought not to have the opportunity for regeneration. However, they have no humility about their own judgment. They are convinced that their own judgment is right. As they participate in it, they have not a scintilla of doubt that their judgment is absolutely correct. I find their confidence in their own judgment and their pessimism about society is an extraordinary paradox.

There are many arguments against the death penalty. We have heard many of them in speeches by other members in this debate. They are multiple arguments and they are overlapping arguments against abolition, but, for me, for our society to kill one of its members is an act which diminishes us all. We should believe in life and not in death and it is a matter that can be reduced to terms seemingly as simple as that. It does not aid the victims to judicially kill. As Barry Jones said in that same speech, it adds no roses to the grave of the victim that the murderer is killed by society.

There is the much established proposition that to kill with judicial authority will necessarily mean the killing of innocent men and women, at least on occasion. Our consciences rightly recoil from the idea that society has put to death an innocent man or woman. Because the United States is still, in very many states, imposing and carrying out the death penalty, it has, regrettably, provided case after case of proof in recent years that the death penalty has been imposed, and is continuing to be imposed, on innocent men and women, at least in that country.

There is a corollary—a somewhat perverse corollary—which is that the death penalty may cause the guilty to go free. That is for the very simple reason that juries do not like hanging men or women. which leads, in some cases, to juries acquitting where they should convict. One could also point to the volume of evidence that establishes, so far as these things can be established, that the death penalty does not deter crime more than other punishments. Again I would refer to the moving speech that Barry Jones gave in the Victorian parliament in 1975, speaking for the abolition of the death penalty in Victoria, in which he produced—and it is reproduced in the Hansarda famous graph which looks at the statistics in three American states over a 35-year period. The states were Michigan, Indiana and Ohio. One of those states was abolitionist—it had not had the death penalty for the entire period—another frequently executed the death penalty and a third used the death penalty only infrequently. The graph shows a convergence of the murder rates over the 35-year period and demonstrates, in very dramatic terms, just how little deterrent the existence of the death penalty was over that lengthy period in those states. It is possible to point to a host of similar studies which establish that the death penalty has no more deterrent effect than other punishments in relation to crime.

The fight for abolition has been won in this country. It seems very unlikely that anyone will be executed again in Australia, but, regrettably, the fight continues overseas, because there are very many countries which still impose the death penalty. Notably, there are countries in our region which continue to impose the death penalty and which have executed the death penalty against Australians in recent years. I attended a vigil, which I will not soon forget, on 2 December 2005 in Melbourne at the time of the execution of Van Tuong Nguyen. It was attended, as you might recall, Mr Deputy Speaker Thomson, by many members of the Melbourne legal community, because members of the Victorian bar had lent their aid to the efforts to have Van Nguyen’s life spared, but to no avail. Other Australians are currently facing the death penalty in countries to our north.

There is no room for equivocation on these matters. There is no room to say that there should be no death penalty in Australia but that there is room for the death penalty to be imposed for crimes committed elsewhere in the world. Just as we are all diminished here in Australia by the death penalty, by the continuation of the death penalty, so all human beings are diminished by the continuing imposition of the death penalty. It is a similar proposition that underlies the other part of legislation before the House because the other part deals with our obligations against torture under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Australia under the Hawke government signed the convention in December 1985 and ratified it—still under the Hawke government—in August 1989. The reason for the current amendment to the crimes legislation in relation to the prohibition against torture is prompting by observations made by the UN Committee Against Torture in May 2008 in the form of a recommendation that Australia should enact a specific offence of torture at the federal level.

The primary effect of this legislation will be to criminalise acts of torture committed both within and outside Australia. That is entirely consistent with Australia lending its efforts to a worldwide prohibition against torture, and giving this legislation extraterritorial application will further reduce the places or scope for torture to occur.

This legislation very much demonstrates this government’s condemnation of torture in all circumstances. Just as we are all diminished by the death penalty being imposed, so too, as a society, are we all diminished by our government committing torture supposedly on our behalf. It is of course an issue which has been the subject of a great deal of public discussion, particularly in the United States in the period following the September 11 atrocities in New York, because it was thought and has been said by high officials in the United States that there may be circumstances in which torture is to be permitted.

The government of our country is making it clear that there are no circumstances in which torture can be permitted. One of the best explanations of this that I have seen is from someone who is very directly on the other side of politics in a general sense to the side of politics that I occupy—namely, the unsuccessful Republican nominee for President of the United States in the last presidential election, Senator John McCain, who famously is a war veteran and was a prisoner in Hanoi in the so-called Hanoi Hilton, where he was tortured during the Vietnam War. Throughout his life and with greater strength on his return to the United States after being released from a lengthy captivity—some five years held by the North Vietnamese—in all the years after that time he fought and spoke against the use of torture. This is what Senator John McCain said in 2005, and I quote from a speech he gave in the Senate. He said:

Our enemies did not adhere to the Geneva Convention. Many of my comrades were subjected to very cruel, very inhumane, and degrading treatment, a few of them even unto death. But every single one of us knew and took great strength from the belief that we were different from our enemies, that we were better than them, that if the roles were reversed, we would not disgrace ourselves by committing or countenancing such mistreatment of them. That faith was indispensable not only to our survival but to our attempts to return home with honor. Many of the men I served with would have preferred death to such dishonor.

He went on to say:

The enemies we fight today hold such liberal notions in contempt as they hold in contempt the international conventions that enshrine them, such as the Geneva Conventions and the Treaty on Torture. I know that. But we are better than them, and we are stronger for our faith, and we will prevail.

This is a ringing endorsement of the reasons why it is important that we resist always any suggestion that it might be acceptable to engage in torture for whatever reason. There needs to be a complete and total prohibition on torture, and this bill in very direct terms shows that Australia is committed to persisting with that prohibition for all purposes.

There is a tendency—and it is with us always, I regret to say—to slip into suggesting that there may be some place for torture. I heard it very directly most recently when I was participating in a television interview with the member for Ryan in August last year where the member for Ryan said:

I think that there is a very limited place for torture and certainly where that torture takes place, it must be done in an appropriate way in an appropriate context.

Needless to say, I was appalled—aghast even—that a member of this House could give even a limited endorsement of the possibility of torture. I said—and I have a transcript here:

I am shocked to hear Michael say there is a limited place for torture. I think we need to resolutely say there is no place for torture.

By the end of the day the member for Ryan had of course retracted those comments, because it had been made clear to him by the member for Wentworth, the then opposition leader, that he condemned those comments in the clearest possible terms. There is no place for any Australian parliamentarian to be suggesting that there might ever be a place in Australian processes for the commission of torture. As a democracy we fight for certain values, and we need to continue to fight for those values. That may mean that, to use the words of Aharon Barak, we fight with one hand tied behind our back. (Time expired)

John Murphy (Lowe, Australian Labor Party) Share this | Link to this | Hansard source

I applaud the member for Isaacs’ contribution and other members’ contributions in this very important debate. I too rise to speak in support of the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009. This legislation ensures that Australia continues to combat torture and reinforces our strong desire to support moves to abolish capital punishment throughout the world. This legislation acts as a springboard from which we as a nation can lead international efforts to speak out against torture and the death penalty.

As you are aware, Mr Deputy Speaker, Australia is a party to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Consequently we have an international obligation to ensure that all acts of torture are offences under domestic criminal law. Presently acts falling within the convention’s definition are offences under state and territory criminal laws. However, in May 2008 the United Nations Committee Against Torture, in its concluding observations on Australia, expressed concern that Australia does not have a specific torture offence in the Commonwealth Criminal Code. The report recommended that Australia legislate to:

… ensure that torture is adequately defined and specifically criminalized both at the Federal, States and Territories levels, in accordance with article 1 of the Convention.

As you know, Mr Deputy Speaker, the Rudd government takes Australia’s responsibilities under this convention very seriously. That is why we are including the new offence of torture in the Criminal Code to criminalise acts of torture committed both within and outside Australia. I believe that by enacting a new offence of torture we are signalling to the rest of the world that we condemn this shameful, brutal and barbaric practice. I believe that we are sending a very clear message about the values we in Australia hold and about our strong commitment to human rights.

The inclusion of torture in the Criminal Code should not put an end to our efforts to eliminate torture. Whilst we have formally put an end to this insidious practice in Australia, there remains much more to do in order to eliminate the use of torture throughout the world. There are some elements in the international community who believe that torture is a necessary evil in the global fight against terrorism. In order to assess the validity of this belief it is important to define the concept of torture. According to the bill before the House, torture refers to conduct by an individual in an official position that inflicts severe physical or mental pain or suffering on a person for the purpose of obtaining information or a confession, punishing the victim or intimidation. The definition contained in the legislation is based on the definition contained in the United Nations convention on torture. Obviously such conduct is nothing short of violent; however, is this practice necessary? ‘Is the practice of torture required to defeat crime and, more specifically, to defeat the crime of terrorism?’ I ask. The simple answer is no. Not only does the practice of torture represent a moral blight on our humanity but it has been proven on countless occasions that it does not work, and we were reminded of that in the contribution that we just listened to by the member for Isaacs.

Like the member for Isaacs, I would like to refer to a speech given in 2005, this time by Associate Professor Ben Saul to Amnesty International on the International Day in Support of Victims of Torture. Associate Professor Saul said:

… the argument for torture is indefensible due to insurmountable legal, moral and practical problems.

He argued that torture does not work because it produces ‘misinformation’ rather than truth. It has been proven that a significant level of information produced from the torture process is incorrect because those being tortured will confess to anything in order to get relief from the pain they are enduring. Incorrect information creates false leads, which only serves to divert our invaluable intelligence resources. Moreover, Associate Professor Saul believes that torture merely ‘degrades’ the humanity of interrogators. He went on to say:

Terrorism does not demand that we torture to defend ourselves. To the contrary, the threat of terrorism reminds us of the importance of protecting human dignity …

If we resort to the use of violence as a form of punishment then surely we are no better than those who perpetuate violence against us. I cannot think of two stronger arguments against the use of torture. Why continue the practice of torture if it does not work? Why continue torturing people when it so clearly degrades our humanity? Torture is wrong. Australia should continue to advance these arguments on the international stage.

I now turn my attention to the second key measure in this legislation, and that is the extension of the current prohibition on the death penalty to state laws. I am very proud to live in a country that has such a longstanding policy of opposition to the death penalty. As part of the International Covenant on Civil and Political Rights, Australia is permitted to use the death penalty for ‘the most serious crimes’. However, we rightly object to the use of the death penalty under any situation and that is why we are party to the second optional protocol to the International Covenant on Civil and Political Rights, which requires Australia to abolish the death penalty.

By amending the Death Penalty Abolition Act 1973 we are ensuring that the death penalty cannot be reintroduced anywhere in Australia. The need for this legislation is highlighted by comments, I believe, made by the former Prime Minister, John Howard, in 2003. Mr Howard called for a national debate on the reintroduction of capital punishment as part of new antiterror laws. Whilst Commonwealth governments are prohibited from reintroducing capital punishment under the Death Penalty Abolition Act, Mr Howard suggested that state Liberal opposition parties could raise the issue. I am sure we all know on this side of the House why Mr Howard said that. We have seen on far too many occasions the issue of law and order being used as a political football in state politics. It would be a very dangerous development in Australian public life if any party went to a state election promising to reintroduce the death penalty for serious crimes. Like the member for Isaacs, I do not foresee this happening in the future, but it is important to implement measures to ensure that it never happens. That is what this bill is all about.

Australia’s longstanding opposition to the death penalty must be consistent. We cannot, for instance, prohibit the use of this punishment in Australia yet support the use of this practice to punish terrorists. This is an inconsistency that should not be pursued. Opposition to the death penalty must not be seen as weakness on terrorism. Put simply, terrorism is evil. I cannot imagine the heartache and devastation felt by the families of the victims of terrorist attacks. Too many lives have been lost in attacks throughout the world and there can be no moral reasoning or justification for anyone to perpetuate such evil. Terrorists must be brought to justice and punished for the horrific evil, violence and destruction that they commit. However, I do not believe that the use of capital punishment is an effective punishment for terrorism.

In many cases the use of the death penalty is exactly what terrorists want: offering the potential to make them martyrs in the eyes of their followers. That could inspire more people to support their fundamentalist ideologies. The death penalty is a futile deterrent for individuals who believe terrorism is a pathway to martyrdom. This view is supported by Professor Jeffrey Fagan of Columbia University, who has argued that the death penalty is not an effective deterrent for terrorists. Only in November of last year he wrote:

Deterrence assumes a rational actor who perceives that the punishment costs exceed the benefits of the crime, and who will not act against his or her own self-interest. In this case, capital [punishment] is no match for the rewards of martyrdom.

In other words the death penalty will not work as a punishment. In my view life imprisonment is the strongest form of punishment that can be applied to terrorists and I believe Australia should advocate this form of punishment in the international arena. Furthermore, if we advocate the use of life imprisonment for terrorists, rather than capital punishment, we may be more successful when intervening to support Australians on death row in other countries. As constitutional law expert Professor George Williams recently said:

The notion that it is acceptable to execute terrorists but not other criminals, or to execute foreign nationals but not Australians, is morally and logically unsustainable. The value of a human life is not contingent on a person’s nationality or the nature of their crime. Opposition to the death penalty does not permit such shades of grey.

The ambiguity and inconsistency to which Professor Williams refers weaken our efforts to achieve clemency for Australian citizens on death row overseas. It is not very credible to intervene on behalf of an Australian on death row yet advocate the use of capital punishment for all other criminals.

I do not believe the crimes of Australians on death row should go unpunished. They committed serious crimes, which cannot be ignored. However, to take the lives of these individuals, many of whom are young men and women, is simply a waste. Yes they made a big mistake, yes they committed a serious crime, but they also deserve the chance to learn from this and to be potentially rehabilitated. The use of the death penalty denies them this opportunity.

Throughout 2005 I too spoke about the tragic case of Mr Van Tuong Nguyen, who was hanged in Singapore at the age of 25. I support the words of the member for Isaacs. I want to repeat what I said when I spoke in this House then:

In my view, no-one on this earth has the right to execute a human being. In my view, there is no justification for the death penalty. Everyone can be forgiven; everyone can be redeemed … I call on … this parliament to lead a campaign … to rid the world of capital punishment.

Today I renew that call. Today I call on the Prime Minister, the Minister for Foreign Affairs and every member of this Parliament to lead international efforts to put an end to the use of capital punishment throughout the world. The government will have a very good opportunity to raise this issue during the upcoming visit of President Barack Obama to Australia. May I be so bold as to suggest that one of the issues raised with President Obama be capital punishment in America.

To date, my contribution to this debate has centred on the issue of punishment for the perpetrators of crimes. However, in the time I have remaining I would like to raise the issue of crime prevention. All crime happens for a reason. Poverty, ignorance and disillusionment with society are but a few of the many reasons individuals commit crimes, so it is imperative that we tackle the causes of crime by addressing poverty, promoting social inclusion and advancing the cause of tolerance and understanding. As elected representatives, we have an important obligation to provide leadership and promote the principle that every human being has intrinsic value, integrity and dignity. We have a responsibility to ensure Australia’s children are aware of this basic truth. If we fail to achieve this objective, our children may be vulnerable to an ideology that teaches that it is acceptable to treat people differently.

Perhaps if we are able to promote greater tolerance and understanding throughout Australia, and indeed the world, we will be able to prevent at least some violence and achieve more peace. I believe that this bill sends a clear message to the rest of the world: Australia is a country that condemns torture and the use of capital punishment. The bill also sends a deeper message: Australia is a country that condemns violence and values the dignity of every human being. Let us build on the measures contained in this legislation by advocating the removal of capital punishment throughout the world. More needs to be done to abolish the death penalty in the 60 nations that continue to practise it. This is a fight worth pursuing, and I believe this bill is a good start.

Jill Hall (Shortland, Australian Labor Party) Share this | Link to this | Hansard source

The Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 specifies that the Commonwealth offence of torture in the Commonwealth Criminal Code will operate concurrently with existing offences in state and territory criminal laws. The new offence is intended to fulfil more clearly Australia’s obligations under the United Nations Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment. The bill also amends the Death Penalty Abolition Act 1973 to extend the application of the current prohibition on the death penalty to state criminal laws. This will ensure that the death penalty cannot be introduced anywhere in Australia in the future.

I strongly support this legislation. It is about enshrining the protection of basic human rights in legislation. Since the Universal Declaration of Human Rights in 1948, the international community has adopted a set of comprehensive human rights—rights that enshrine human dignity, rights that a civil society values and rights that provide guidelines for governments in how they should treat their citizens. The prohibition of torture is a core value that is a human right and it should never be set aside. Nothing justifies torture.

Many arguments are put forward that support the use of torture and I reject all those arguments. Some people argue that the need to obtain information necessitates the use of torture in certain circumstances. I have only to look to what has happened in various areas of conflict and the results of those acts of torture and I come out very strongly in favour of the arguments against torture. I think that they are very succinct in setting out the case for not supporting the use of torture under any circumstances. This can include extracting a confession or obtaining information from victims or a third person. Torture can be used as a form of punishment, intimidation, coercion and discrimination. The Bills Digest on this bill states:

Despite the definition of ‘torture’ contained in the UNCAT, the legal concept of torture has not been either unified or coherent. Within the international community there have been important and ongoing conflicts over the threshold of severity of pain and cruelty, the role of the intention, the identity of the perpetrators and the positive obligations of states to prevent torture.

So I suppose that the underlying aspect is the severity of inflicting pain or suffering. It is not a criterion; it is a simple act of subjecting a person to pain and cruelty.

One of those reasons that I stated above is that we have had Australian citizens—David Hicks and Mr Habib in the United States of America in 2001 and in Afghanistan—that have been involved in and been the victims of torture. I think that as a civilised nation there is no way that we can support torture. When you look at torture and the information that is obtained under torture, I do not think that we can even be certain that the veracity of the information obtained whilst a person is being tortured can be guaranteed. I know that the Minister for Veterans’ Affairs is a person who has very strong opinions on torture and the need to ensure that people do not suffer undue torture in any circumstance at all.

Among the interesting experiments that I came across—they do not directly relate to torture—are Stanley Milgram’s experiments, which were actually looking at obedience to authority figures. In that experiment, Yale students subjected other students to electric shocks—some of them were teachers and some were students. The level of shock the participant was willing to deliver was aimed at measuring their obedience to authority. I should say that the participants were told that the shocks were not going to be painful or dangerous, but they were at a very high level. As a result of these experiments in subsequent years, it was not the people that supposedly received the shock but those people that were delivering the shock that suffered severe psychological impacts from being involved in that experiment.

The reason that I raise that experiment is to show that, with torture, the implications are wider than just the act itself and the fact that those people that are tortured may or may not give information. Even the people that are involved in the act itself are affected by it. I think that, as a civilised nation, there is absolutely no way that we can be a party to any acts of torture. No matter what the deed or the information that is sought is, torture cannot be justified.

Australia became a party to the convention against torture in 1989, and our commitment to the prohibition of torture must always be paramount, no matter what the challenge. I notice that speakers in this debate from both sides of the House have expressed strong views on this. To allow or accept torture is a slippery slope that will lead us to become a less civilised nation. A nation must always protect human rights, and the legislation that we have here today protects and delivers on that.

I might at this stage refer to a dissenting report back in 2004 by the Joint Standing Committee on Treaties. In that dissenting report, committee members noted strong support for Australia ratifying the optional protocol. I am referring to that because I think it really sets out quite succinctly why we need to ensure that torture is outlawed in this country, as is highlighted in this legislation, for all times. Members referred to the need to maintain Australia’s leadership in human rights. The report also pointed out in its final recommendation that there is no circumstance, basically, where torture is acceptable. I think that those people on the treaties committee recognised that back in 2004.

The commitment to the prohibition of torture, as I said, must remain solid. To do otherwise would compromise our nation’s moral leadership. By that I mean that we must always as a nation look to the high ground and to putting in place a legislation framework that will ensure that, as a nation, we aspire to the highest level of protections of human rights. We must not under any circumstance let the bar slip and reach a stage where we are not about ensuring and protecting the rights of people.

The Rudd government’s commitment to ensuring that torture is unacceptable was evident firstly with the signing of the optional protocol. I must say that this legislation also demonstrates very visibly that as a government the Rudd government will not and does not under any circumstances support torture in any shape or form. This legislation, I think, can be used as a blueprint for other nations as well as our own.

That brings me to the death penalty, and I wish to place on record that I am opposed to the death penalty under any circumstance at all. There is no circumstance where I believe the death penalty can be justified. Australia has a longstanding policy of opposition to the death penalty. The Labor Party, which I am part of in this parliament, has in its platform that it opposes the death penalty and believes it is inhumane, no matter what the crime is. That statement really highlights and encompasses my feeling on the death penalty.

The purpose of amendments to the Commonwealth Death Penalty Abolition Act 1973 is to extend the application of the current prohibition of the death penalty to the states. I think this is very important because it will ensure that the death penalty cannot be reintroduced anywhere in Australia. Such a comprehensive rejection of capital punishment demonstrates Australia’s commitment to the worldwide abolition movement and complements Australia’s international lobbying efforts against the death penalty.

I think it is of vital importance to note that this legislation will ensure the outlawing of the death penalty throughout Australia. This is about showing leadership. One of the reasons that I cannot support the death penalty is that there have been many cases reported where innocent people have been put to death—with the advent of DNA testing I think that they are finding more and more people who have been sentenced to death and that sentence has been shown to be incorrect. It is inhumane; no matter what a person has done, I believe that nothing gives us the right to actually take away their lives.

As the member for Lowe was saying earlier, when it comes to a crime such as terrorism or something horrendous, the simple fact that a person will be in prison and not allowed to leave that prison for life is an even greater punishment than to quickly escape the consequences of their action through the death penalty. I do not think that, as a nation, we can in any shape or form support the death penalty.

At the moment there are the young people in Indonesia—the Bali Nine—who are facing death because they trafficked drugs. That is an act that I do not support; it is an act that has the potential to endanger the lives of many people within Australia. But I do not believe, under any circumstances, that we can support the death penalty in their case or any other cases.

This legislation is good, strong legislation that will ensure that we do not support torture in this nation and that will finally ensure, once and for all, that the death penalty is outlawed throughout the whole of Australia.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

The Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 is legislation that is supported by both sides of the chamber. It is legislation which, in practice, probably does not have any real effect, because the crime of torture is already a crime under Australia’s laws—particularly state and territory laws—and also, the death penalty does not exist anywhere within the states or territories of Australia. It certainly does not exist at the Commonwealth level.

No one can support torture, and I do note that an international committee against torture recommended that Australia implement a specific offence of torture at the federal level. That recommendation was included in the concluding observations on Australia by the UN Committee Against Torture issued in May 2008. Consequently, to be a good international citizen, this country is implementing that recommendation.

With respect to the death penalty, that is a subject which has occupied a lot of public debate in this country and in other countries around the world. I place on record that I do not support the death penalty, although in the past I have been able to understand how some groups in the community might believe that the death penalty is an appropriate penalty for certain sorts of particularly gross crimes: child murder, maybe murder involving torture and so on. However, I am someone who has always been opposed to abortion, and I am opposed to euthanasia. It occurred to me that to be consistent, if I am opposed to state sanctioned killing I had also to become very strongly opposed to the death penalty. I see that consistency as being very important. You cannot pick and choose; in my view you cannot, with a sense of intellectual honesty, support state sanctioned killing at one level and not support state sanctioned at another level.

I do understand that, particularly after there has been a horrendous crime committed somewhere around the world or in the country, if one did take a plebiscite of the community people would often vote for the death penalty. However, this legislation will mean that the death penalty will not be able to be imposed at state or federal level anywhere in Australia in the future—that is, I suppose, unless this law at some time in the future, after implementation, is actually repealed.

I do have somewhat of a problem with the federal government entering into treaties internationally and then, by virtue of the international obligations resulting from those treaties, acquiring the competence to legislate domestically in relation to areas where, under our Australian Constitution, the Commonwealth has no right to legislate. It is one way, I suppose, of tearing up the Constitution for the federal government to enter into a treaty and then have an international obligation which must be implemented and which gives us the legislative capacity to implement that international legislation through a law of the Australian parliament. I do not know that this particular bill has been controversial. I have not heard the states object to its passage. But one who took the view that it was wrong for the Commonwealth to acquire extra legislative competence by entering into an international treaty might be concerned, if not with the result of this legislation certainly with the mechanism which gives us the constitutional authority to pass this law through the Australian parliament.

The honourable member for Shortland, who spoke before me, referred to the fate being faced by a number of Australians who are presently incarcerated in overseas prisons. It really is important that Australians who travel to other countries recognise that, even though the death penalty will be outlawed in this country, the laws of this country with respect to the death penalty do not have some sort of extraterritorial effect in overseas countries. If we travel to other countries, we have to be prepared to observe the laws of those countries even if we do not agree with the laws of those countries, and we have to accept that each individual jurisdiction, each individual nation state, does have the right to bring in its own penalties for certain criminal offences.

All Australians would know that there are many countries throughout the globe which do have the death penalty on their respective statute books. It is not reasonable to expect that Australians who are convicted of the death penalty should automatically have the death penalty commuted to something else simply because they are Australians. I suppose if one has the privilege of travelling to other countries, one has to understand what the laws of those other countries are, and we just cannot expect that, because we are Australians, those laws do not apply to us. Having said that—and I am pleased to see the honourable Attorney-General at the table—I do support recommendations by successive Australian governments for clemency and leniency when Australians find themselves in the positions in which some have found themselves in recent years. I think it is important for us as members of parliament to counsel Australians, particularly young Australians, who travel abroad, as many do—and it is a wonderful experience—that when they go to those other countries, they are subject to the laws of those countries no matter how horrendous we as Australians might view some of the penalties imposed by the laws of other nations.

This is not controversial legislation in the community. I do not think one could find anyone in our society who would support torture. I find it disturbing that there are countries abroad where there is state-sanctioned torture, and I think that anything that we can do as a nation to reduce and eliminate this is very much a step in the right direction. I do not intend to take the full 20 minutes available to me, but I want to reiterate my support for the principles contained in this bill, although I do have this lingering concern about whether, if we are going to have a constitutional compact, it is appropriate for the Commonwealth to acquire extra legislative competence by going through the mechanism of signing and ratifying an international treaty which then gives the government of Australia the obligation to bring the effect of that treaty into domestic law. The Attorney would be pleased to know that I am not accusing this government of being the first government to do that. I think it is something that has grown up over the years. I am not convinced that it is a good thing, but, at least in the case of this bill, I suppose one could say that it does remove forever the prospect of the reintroduction of the death penalty in any jurisdiction within this country. I commend the bill to the House.

Kerry Rea (Bonner, Australian Labor Party) Share this | Link to this | Hansard source

I too rise to support the bill before us, the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009. In doing so, I wish to commend the Attorney-General for bringing this piece of legislation forward—and I would have said that regardless of whether he was actually present in the chamber, but I am pleased that he is here. I commend the Attorney-General for introducing this bill, because I think it reflects that a democracy is an organic thing, an ever-changing, living, breathing thing, that adapts and changes according to different stages of social progression—and, indeed, we hope that it does so in a way that will always make society better. I certainly believe that this legislation will do so. I am also very pleased to support this bill, because often in this place there is a lot of fanfare, attention and publicity associated with a number of bills that go through this House but often some of the most significant pieces of legislation are the ones that get very little airplay at all—and I would say that this bill is a perfect example of that.

As a relatively new member of this parliament, it is interesting that I would be standing here in the year 2010 speaking on a piece of legislation which outlaws the death penalty and torture. I believe this legislation is not just a reflection of how our democracy and our legislative processes work—in that we are constantly looking at ways in which we can reinforce the significant values that underlie our democratic society—but also a very interesting reflection on the federal nature of our society and of our governance system.

We have various state and territory laws that have banned torture and outlawed the death penalty. Australia can hold its head high amongst most Western countries in terms of its commitment to opposing torture and the death penalty. At the same time, it is important to acknowledge that the international community has recognised the need for Australia to amend the Commonwealth Criminal Code and the Death Penalty Abolition Act to reflect our international obligations and to ensure that, through Commonwealth legislation, torture and death penalty laws can never again be introduced by state or territory parliaments. It is quite a significant piece of legislation for Australia. It clearly shows that the government are very committed to honouring Australia’s international obligations, particularly our obligations around the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Second Optional Protocol to the Covenant on Civil and Political Rights.

In reflecting on the interesting governance system that we have in this country, articles 4 and 5 of the convention against torture refer specifically to the need for nations to not rely simply upon state and territory law but to introduce laws into their national parliaments which will not allow these particular actions to resurface. Indeed, article 4 says:

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

Article 5 says:

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

(b) When the alleged offender is a national of that State;

(c) When the victim was a national of that State if that State considers it appropriate.

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

It is important that this law has a practical implication. I want to assure the previous speaker that, because of the nature of our federal system and because of the ability of Commonwealth law to override state and territory laws, there is a very clear and practical reason why the government have introduced this legislation—that is, to ensure that we do not see torture or the death penalty ever reintroduced in this country.

Many speakers before me have talked at length about our opposition to torture and the death penalty. As a government and as a nation, we have a very proud record both domestically and internationally of being great advocates for human rights and great supporters of the United Nations and of any international approach which attempts to protect and improve the human rights of citizens across the globe. We have a proud record of making clear our opposition to the death penalty and to torture. But we also have to be very mindful that this can sometimes be difficult. We all know that there are many people within our own communities and across the globe who have varying views about the level of punishment that should be administered to someone who commits a heinous crime or act against somebody else. We all know that we live every day with the very real threat of terrorism. We also know that we live in a society where unfortunately there are individuals who can perform the most horrendous acts on people who are perhaps more vulnerable than them. All these things can sometimes bring out that part of our nature which is tempted to react, to seek revenge and to seek punishment. There are certainly cases and, I think, appropriate situations where punishment must be administered.

If we are to uphold the true principles of a free and democratic society—where parliaments are elected, where people have the right to vote, where every individual can exercise certain freedoms and have certain rights—and say we are a civilised and progressive community, we have to say that there are no circumstances in which the death penalty or torture is acceptable. We have to say that there is no point where you can draw a line. If you do not believe that the state or an individual has a right to take someone else’s life, particularly in the form of revenge or punishment, then there are no circumstances in which it is appropriate. You have to clearly say, ‘It should be outlawed in all circumstances.’ I personally support that, and that is why I am very pleased to be speaking on this legislation.

As I have already said, this legislation is not just about dealing with this issue at a domestic level; it is clearly about the government and the nation honouring our obligations under international conventions and covenants to which we are a party. It is also about putting our money where our mouth is. It is about saying that we as participants in the global community are strongly opposed to both torture and the death penalty. If we are to be strong advocates in whatever international forum that we participate in and if we are to be strong advocates with both our friends and those who we may not have such a great relationship with—to argue vehemently that they must never abuse human rights in the most horrendous way through torture and the death penalty—then we have to put our money where our mouth is.

As a Commonwealth parliament we have to clearly say that we do not support this under any circumstances and that we will use whatever legislative means we have to ensure that these particular actions will never see the light of day again in Australia. It is about being a good global citizen, it is about being an active player on the global stage and it is about clearly sending the message to all countries who continue to allow the death penalty: that Australia will not accept it and we will do whatever we can to oppose it and fight against it.

As the Chair of the Human Rights Subcommittee of the Joint Standing Committee on Foreign Affairs, Defence and Trade, I think it is very important for me to be putting my comments on the record in this case. I acknowledge the work of that subcommittee and the work of the many non-government organisations and representatives of civil society who are working tirelessly in the area of protecting and defending human rights, not just on the global stage but here in our country. One civil society always reminds us that we must be ever-vigilant and never complacent.

I think that is reflected interestingly in the recent consultations that were initiated by the Attorney-General and conducted around the issue of human rights here within our own nation and the freedoms that many of our citizens take for granted. When the panel of eminent persons went out to consult with the community, they received over 40,000 submissions on the issue of human rights in Australia. I think that is a reflection that within the Australian community there is still a very strong interest in how we as a democratic society can continue to protect, defend and improve our domestic approach to human rights. It also clearly showed support for the government and for the parliament to put human rights as a key issue, not just domestically but internationally. Today, in my capacity as Chair, I had the opportunity to attend the consultations that were run by the Department of Foreign Affairs and Trade with civil society and the many NGOs that attended.

In conclusion, I once again put on the record my support and admiration for the people who work in those organisations. They are fighting for individual people who are in dire circumstances and for particular groups in our society who are still vulnerable and open to exploitation and abuse. What they are doing through their tireless work is constantly maintaining vigilance and ensuring against the complacency which can sometimes creep in when we are focused on many other things as a parliament and as a community. The protection, defence and the continual desire to improve our human rights is the fundamental value that underpins our work in this parliament, our democratic society and our prosperity as individuals. I commend this bill to the House.

Laurie Ferguson (Reid, Australian Labor Party, Parliamentary Secretary for Multicultural Affairs and Settlement Services) Share this | Link to this | Hansard source

I join with previous speakers in congratulating the Attorney-General for introducing this legislation. As people have indicated, the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 accords with the United Nations pressure regarding torture and capital punishment, and Australia’s actions support that. At the outset, I noticed some comments by the Leader of the Opposition in the past week and I will give him the benefit of the doubt and say that he was thinking of moral issues out loud. He made the point that, whilst historically he had a firm opposition on capital punishment, he thought that for some terrorist acts perhaps it is very hard to hold that position. Once we go down that road, we have people whose families have been very affected by horrific murders, the emotions of those circumstances, the intensity of their feelings, and we can go on and on. Once we start making an exception to a position on this matter, we are going down a very dangerous road.

On the question of terrorism and the question of outrage, the Leader of the Opposition should remember New South Wales history and Henry Parkes. Parkes was on other fronts a great statesman and a person who gave this country one of the things for which it can be most admired—public education. But, when the heir to the British throne was shot at Clontarf on the northern beaches in Sydney, Parkes—in a very ruthless fashion—used that attempted murder to create an anti-Fenian, anti-Catholic hysteria in Sydney by saying that it was Fenian terrorism. The person was found, as I recall, to be rather deranged and had no political motivations whatsoever. It is an example that we must be careful about what we regard as terrorism and heinous. We might find the Iranian regime saying that it is justified in incarcerating people for 30 years and executing them over political demonstrations since the elections there. Equally, we know that in the Middle East—we might not be able to contemplate this—many of the people that carry out these acts see Western intervention in that region, whether it is the question of having US forces in Saudi Arabia or the question of Palestine, as a form of international terrorism. So you have got to be very careful with the kinds of exceptions that we might consider. I, for one, far more admire the statements of the former Liberal Party Premier of New South Wales, Nick Greiner. I recall what he said when I was still, I think, in state parliament. He said that, if the Liberal Party ever adopted a position that supported capital punishment, he would resign as leader of the Liberal Party. I think that is the kind of approach we take in regard to this matter.

I have a habit of giving books to public libraries when people die, rather than flowers. The other day I was flicking through a book I purchased for someone—a book called Killing Time by David R Dow. It traces the author’s involvement in a Texas court case, and it looks at some of the problems with capital punishment in the United States. He looks into the performance of Jack Gatling, the counsel for the accused, who is a person renowned for his ineptitude and whose job is to defend many of these people as they go down towards their deaths. He comments on the case on page 192:

Nor did he—

That is, Gatling—

challenge the state’s expert who single-handedly persuaded the jury to sentence Quaker to death. James Grigson is known as Dr. Death. He was expelled from the American Psychiatric Association as well as the Texas Society of Psychiatric Physicians, but that did not stop him from testifying in hundreds of trials. Grigson claimed to have examined somewhere between two hundred and four hundred capital-murder defendants—the number varied from case to case, because Grigson could not keep his answer straight from one trial to the next. But that did not stop juries from believing him. Sometimes he would not interview the defendants at all; other times he would visit with them for fifteen minutes or so in the county jail, asking them what they saw when they looked at ink blots. He would then sit on the witness stand for as much as five hours, telling jurors that the defendant before them would undoubtedly be dangerous in the future if not speedily put to death.

His flamboyant predictions were spectacularly wrong. By some estimates, he was wrong more than 95 per cent of the time. But that too did not stop juries from believing him. Juries would even sentence people to death who had not committed any crime. In one famous case, Grigson testified that Randall Dale Adams would commit more violence if not executed. Adams had been convicted of murdering a state trooper outside of Dallas. Errol Morris made a documentary about the debacle of the trial. As it happened, Adams did not actually kill the officer; someone else did. Adams was released from prison after his innocence was established. He had not committed any crimes prior to his wrongful conviction, and he has not committed any since.

This brings me to the concern about erroneous convictions, whether it is due to ineptitude with regard to the defence of these people who are convicted erroneously; whether it is due to informants whose evidence is unreliable and who are actually making sentencing deals for themselves; whether it is due to coercion by authorities, theory before evidence, or whatever. On all these grounds, there is grave concern in such a crucial matter of life and death. With respect to the emergence of DNA evidence in the United States, it is interesting to note that in the period 1973 to 2005, 123 people in 25 states were released from death row—123 people who could have been killed if this evidence had not been provided. It is also said that this is a severe understatement of the reality, because after a person has been killed there is a lack of motivation by the family, and the person is obviously not on the job in regard to exonerating themselves. People lack money to drive home these issues, after people have been killed. This is an understatement, and we all know that the strength of DNA evidence is growing as time goes by. So 123 people, at the very least, would have been killed but for the emergence of DNA evidence.

It is also a reality that capital punishment is a very random practice. Less than one per cent of all murderers are condemned to death. Of those people on death row, only two per cent are actually executed. In 2005 there were 75 people who had been waiting for 20 years or more—day after day—to know the situation for them. It is also a reality that there is a race factor in sentencing and those on death row in the United States. Forty-one per cent of death row inmates in the United States are black. Thirty-four per cent of those executed are black—and yet only 12 per cent of the population are black. Of course, people will say in defence of the system, ‘There is a propensity to offend.’ But obviously a part of that is the reality of the interrelationship of socioeconomic circumstances in the commission of crime. The situation is that there is severe overrepresentation of black offenders among those who are eventually sentenced and killed by the state in the United States. As well, at least 25 states in the US allow the execution of people who are mentally retarded. At least 35 have gone down that road between the years 1976 and 2005.

There is also a very strong question mark over the degree to which capital punishment dissuades people from offending. Anyone who has studied the area of gun homicides knows that most people who are killed with guns in this country, or any other country in the world, are not killed by criminals. They are not killed by people who have waited months on end to commit the offence. They are killed on the spur of the moment by a family member, a neighbour or a friend. To think that having capital punishment is going to prevent those kinds of events is illusory.

Another worrying development is the privatisation of the penal system, which really puts a question mark over the legitimacy of the system. Last year, two judges in the United States were jailed for very lengthy periods after they had conspired with private prison owners to give them enough people for their jails. There were young people being sentenced without legal representation when they should have had it, people under age, et cetera—large numbers of people over a very lengthy period were basically sentenced just so they could keep the numbers up for private prisons. We saw a situation in the United States—I referred to this in a previous speech—where professors, academics, who were purportedly unbiased and disinterested with respect to the effectiveness of a private prison system in the US, were found to have had significant shareholdings in these institutions, using the justifications to basically settle their self-interest.

There are, of course, so many reasons besides the moral question of whether the state should take away life. Referring to Australia again, there was the famous case of the New South Wales justice minister, JT Ley, who refused clemency to someone despite the fact that the person was totally insane. The man was hanged. It was another example of someone sent to their death because it was politically expedient not to show mercy. Fortunately for Mr Ley, when he himself was sentenced to death after murdering six people, he was given the benefit of the defence of insanity and finished up in Broadmoor mental institution in Britain.

In the United States, not only is there a disproportionate number of black and poor people amongst those who are executed but studies in the United States time after time have shown that it is also a regional lottery—it depends on the attitudes of judges and of jurisdictions within a state as to who actually has their life terminated. In New York, although upstate counties experience 19 per cent of the state’s homicides, they nonetheless account for 61 per cent of all capital prosecutions. In 2001, three counties out of 62 in the state accounted for over one-third of all cases in which a death sentence was filed. In another survey, in Indiana in 2001, newspapers found that the death penalty depended on factors such as the views of individual prosecutors and the financial resources of the county. You will find that, time after time, there is a correlation not with the nature of the offence and how it might affect the general public’s attitude, not with how macabre the murder is, but with the things that were just specified—that is, the nature of the prosecutor, the nature of the judge, the nature of the society.

In conclusion, I very strongly support this measure. On both sides of politics this has been a matter of virtually unanimous support, and that has been largely reflected in the speeches within this debate.

Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

in reply—I am very pleased to sum up the debate on the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009. I would certainly like to thank members for their contributions to the debate and the bipartisan support for the bill.

The bill contains two measures. First, it enacts a specific Commonwealth torture offence in the Commonwealth Criminal Code to operate concurrently with existing offences in state and territory laws. Since 1989, Australia has been a party to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Among other obligations, the convention requires Australia to ensure that all acts of torture are offences under domestic criminal law. At the moment, Australia meets its obligations, as acts falling within the convention’s definition of torture are included as offences under state and territory criminal laws. In recent years the United Nations Committee Against Torture has been critical of nations that have not enacted torture as a specific criminal offence and has recommended that Australia enact an offence of torture at the federal level. The provisions in this bill would respond to the recommendations of the committee and further demonstrate the government’s condemnation of torture in all circumstances by more clearly and explicitly fulfilling Australia’s obligations under the convention against torture.

The second measure in the bill would amend the Commonwealth Death Penalty Abolition Act 1973 to extend the application of the current prohibition on the death penalty to state laws to ensure the death penalty cannot be introduced anywhere in Australia. The bill proposes extending the application of the current prohibition on the death penalty to state laws. This would ensure that the death penalty could not be reintroduced anywhere in Australia in the future.

Kofi Annan, the former Secretary-General of the United Nations, once said:

The forfeiture of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process. And I believe that future generations, throughout the world, will come to agree.

Through this bill, the House declares that it does so agree. These amendments would emphasise Australia’s commitment to our obligations under the Second Optional Protocol to the International Covenant on Civil and Political Rights and ensure that Australia continues to comply with those obligations. These domestic amendments complement the measures Australia is taking internationally to promote universal abolition of the death penalty. Through our overseas missions, the government is currently making bilateral representations against the death penalty to all countries that may carry out executions or maintain capital punishment as part of their law.

In summary, the bill contains important measures which demonstrate the government’s ongoing commitment to better recognising Australia’s international human rights obligations. I thank all members for their contributions to this debate and I commend the bill to the House.

Question agreed to.

Bill read a second time.