George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The opposition supports the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009. It has been the unequivocal position of the Liberal Party throughout Australia to oppose the death penalty and to condemn the use of torture in all circumstances wherever it occurs. I know that my friend Senator Humphries is going to say a few words later in this debate, and I want to take the opportunity to acknowledge his work, in particular in relation to this issue, as the co-convenor of the cross-party working group on the death penalty, and the work of other Liberal senators and members on this important issue.

Sadly, the use of torture and the death penalty remain prevalent throughout the world, including in some of Australia’s major trading partners. While we oppose the continued use of those measures, we must remain clear-eyed about the gothic history of the Western legal tradition and indeed the existence of legalised brutality in our own history. The death penalty was only abolished at the Commonwealth level in 1973, and in New South Wales in 1985. Whipping was only removed from the Queensland criminal code in the early 1990s, although that particular form of corporal punishment had not been inflicted in the state of Queensland since the early 20th century.

The provisions of the bill are founded on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. Schedule 1 of the bill replaces the existing offence of torture in the Crimes (Torture) Act 1988 with a new offence in the Criminal Code, but in substantially the same terms. The definition of torture is: a public official, or someone acting at a public official’s behest, engaging in conduct that inflicts severe physical or mental pain or suffering on the victim for the purpose of punishing, intimidating or coercing the victim or a third person. The definition is derived from the UN convention and, as I have said, is essentially in the same terms as the existing law which, hitherto, has been located in the 1988 act. The UN convention requires that all acts of torture are offences under domestic criminal law, including the application of states’ jurisdiction to acts occurring anywhere in the world. The change effected by this bill is to create the extraterritorial offence applicable beyond acts committed in Australia or by persons subsequently present in Australia. The offence is intended to operate concurrently with state and territory offences.

Schedule 2 of the bill extends the application of the existing prohibition on the death penalty to state laws in addition to the Commonwealth, territory and imperial laws to which the Death Penalty Abolition Act 1973 already applies. Accordingly, the death penalty will not be able to be reintroduced anywhere in Australia without the concurrence of the Commonwealth—which, I am sure, will not occur. There are some who have said that this is a matter that ought to be left to the jurisdiction of the states and territories but, in the opposition’s view—given the importance of maintaining a strong face against the death penalty, and the international character of this issue reflected in the obligation assumed by Australia—this is an appropriate measure for the Commonwealth to legislate in relation to, albeit that the form of the provision is somewhat unusual. And of course it is hardly necessary to add that it is many years since any of the states or territories had the death penalty, so there will be no practical or substantive change to any state or territory law.

Given that torture and the death penalty are already prohibited, the effect of the bill is therefore, in this respect, largely symbolic. In relation to the extension of the torture offence, the explanatory memorandum states:

In enacting such an offence, the intention is to demonstrate the Government’s condemnation of torture in all circumstances.

It is not merely the government’s condemnation of torture and the death penalty—it is the parliament’s condemnation of torture and the death penalty, speaking in bipartisan fashion on behalf of all the people of Australia.

Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Citizenship) Share this | Link to this | Hansard source

I am very pleased to follow the remarks of Senator Brandis and indicate my strong support for the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009, particularly insofar as it applies to the permanent abolition in Australia of the use of the death penalty within our criminal justice system. As Senator Brandis mentioned, I have been involved in the cross-party working group on the death penalty for some time, together with other co-convenors—and I recognise the member for Werriwa, Senator Hanson-Young and the late Peter Andren among those who have served in that role. There has been a strong desire on the part of the cross-party working group to ensure that, on a permanent basis—or as permanent as can be made possible under Australian law—the use of the death penalty was brought to an end.

Of course, the legislation concerned reflects practice among Australian jurisdictions now and for at least four decades. Not since the execution of Ronald Ryan in 1967 has the death penalty been applied in Australian law, although it is worth noting that the death penalty has been used throughout Australia’s history. The first use of the death penalty occurred only a few days after the First Fleet arrived in Sydney in 1788. But it is to me a matter of great satisfaction that today the federal parliament, on behalf of all Australian jurisdictions, is in a position to close the door finally—and, I think, irrevocably—on this particular, rather dreary, aspect of the Australian criminal justice system. Eschewing the use of the death penalty is the hallmark of a civilised society, and it behoves Australia—in its embracing of international conventions and its activity and role in a number of international fora where human rights are particularly placed on the agenda—to make, with this step today, the important, symbolic move of ending the use of the death penalty in our law.

The cross-party working group to which Senator Brandis referred had, for some time, lobbied not just the federal government but state and territory governments to deal with this issue by way of a referral of the power over the death penalty in each jurisdiction to the Commonwealth, under a provision of the federal Constitution, so that it was possible for the Commonwealth, by consensus, to legislate on behalf of all jurisdictions and end the use of the death penalty so that no backsliding might occur on that issue. That particular device proved to be very difficult to organise and it is, I think, logical that the Commonwealth should now come forward with this legislation, which relies on the external affairs power, to ensure that we are able to take this important and historic step.

It is a matter of record that Australia has, as I said, long eschewed the use of the death penalty in practice. But it is also, sadly, the case that there are calls from time to time within the Australian community for that power to be restored. It needs to be noted, I think, that we live in a less secure society. We live in a society in which terrorism is a very real threat. It would be, in my opinion at least, a very sad thing were Australia to react to that less secure society by attempting to restore this very vicious element of our previous criminal justice system by returning to the use of the death penalty, and I am very pleased that today, unanimously, this parliament takes the step of saying: ‘We will not take that option, at this point or at any time in the future.’

Parliaments around the world have been working towards the objective of eliminating the use of the death penalty. A disturbing number of nations still retain that power—not just developing nations but also some quite important developed nations—although it is true to say that the overwhelming majority of leading nations around the world no longer use the death penalty. I think it is important for Australia to say that this issue has been put behind us and that we have settled the issue very firmly and very clearly with the passage of this legislation.

We have long had a history in this country of being able to take part in international agreements. In this case, it is the second optional protocol to the International Covenant on Civil and Political Rights. As an early adherent to that process, it was entirely appropriate that Australia firmly, clearly and unequivocally honour its obligations under that agreement by ending the use of the death penalty with this legislation. I also note with pleasure that this legislation ensures that the use of torture under Australian law at any level, by any government is also to be brought to an end. It was not practised in Australia under the law, but nonetheless it is very important to be able to officially declare these practices to be beyond the pale.

I commend the government for taking this step. I also note, with some pleasure, that in discussions yesterday between the Prime Minister and the President of Indonesia the question of the application of the death penalty to Australians on death row in Bali was raised. I am very pleased that our relationship with Indonesia is robust enough for these sensitive issues to be put on the table and dealt with at the same time. I sincerely hope that those discussions will lead to the consideration, at least, by the Indonesians of waiving the application of the death penalty in the case of those individuals. The crimes concerned are heinous, and in every case where society has sought in the past to apply the death penalty it is true to say that the crimes concerned have been heinous, but it is also true to say that, because our criminal justice system is administered by human beings—who are fallible—and because the temptation exists to make mistakes, the consequences for our society are very serious indeed.

I forget which jurist it was who said that it is better for 10 guilty men to go free than for one innocent man to be punished, but the occurrence of a single innocent person being subject to the extreme form of punishment of the death penalty has no reversal and we as a society need to not allow that to happen by making sure that we permanently end the use of the death penalty.

I am strongly supportive of this legislation and I commend the government for bringing it forward. I think it is an appropriate circumstance in which to use the external affairs power of the Commonwealth, and I hope that this closes a very long and sad chapter in Australian history once and for all.

Kim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | Link to this | Hansard source

In summing up, I commend the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 to the chamber. The bill gives force to Australia’s international obligations and ensures that this country acknowledges its condemnation of torture in all circumstances by clearly and explicitly fulfilling Australia’s obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The bill also extends the application of the current prohibition to the death penalty in state laws and, given the support of the Senate, I recommend that the bill be carried.

Question agreed to.

Bill read a second time.