Monday, 22 February 2010
Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009
Debate resumed from 11 February, on motion by Mr McClelland:
That this bill be now read a second time.
In November last year I was in my parliamentary office preparing my speech in support of this important legislation which imports into Australian domestic law the principles contained in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, an instrument that Australia has been a party to since 1989, and the provisions of the second optional protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty. While I was in the office that day, the mail was delivered. Among the envelopes addressed to me was a handwritten one with stamps indicating that it had been sent from Indonesia. I opened the envelope to find inside a Christmas card. The card was from Scott Rush, one of the young Australians on death row in Indonesia. He wrote:
Kerobokan Prison 18 November 2009
Dear Ms Parke, peace be with you this Christmas. I thank you for all you have done for me again this year. God Bless, Scott Rush.
Despite all this young man is going through, he had the presence of mind and the kindness to write this lovely card. This Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 is for Scott and for those imprisoned with him on death row, whatever their nationality and whatever their crime. This bill is for all those who have gone before them for whom it is too late.
The practice of the death penalty is the practice of torture. And by the time people I have been with finally climb into the chair to be killed, they have died a thousand times already because of their anticipation of the final horror.
By this bill we, as a nation, fundamentally repudiate the death penalty and the use of torture. We repudiate these acts in keeping with our international obligations. We repudiate them explicitly in the form of Commonwealth law as one of the highest statements of our common values and convictions. It is an affront to human dignity whenever a fellow human is tortured or put to death. By this law we clearly say that the state shall not put individuals to death, and that the state shall not in any circumstances practise torture.
I commend the Attorney-General for his work in preparing this bill. Australia has taken significant steps under this Labor government to re-engage with the international community. As the Attorney-General has noted, the United Nations’ Committee against Torture recommended that Australia enact a specific offence of torture at the federal level. Torture is any act by which severe pain or suffering is intentionally inflicted upon a person by a public official for certain purposes, such as obtaining information or a confession from a person. We saw graphic examples of torture from the United States before the advent of the Obama administration, where the CIA admitted using ‘water boarding’ to obtain confessions, where the Bush administration used the practice of ‘extraordinary rendition’ to transport detainees for interrogation to countries which practise torture, and where the appalling treatment of prisoners at Abu Ghraib and Guantanamo Bay was exposed to the world.
This bill means we have learned from the unfortunate experience of the United States under President Bush and we have heeded the comments of the UN Committee against Torture. Torture will now be criminalised both within and outside Australia and it will operate concurrently with existing state and territory offences. The explanatory memorandum for the bill noted:
Giving the offence extraterritorial application is intended to reflect a key aim of the Convention, which is to end impunity for torture globally. In enacting such an offence, the intention is to demonstrate the Government’s condemnation of torture in all circumstances.
With regard to the death penalty, Australia’s position is clear: we are opposed to it, and the death penalty has been abolished as a practice in this country for many years. Prior to the passage of this bill, however, the prohibition has been based on the abolition of the death penalty for Commonwealth and territory offences—through the Commonwealth Death Penalty Abolition Act—and the separately legislated abolition of the death penalty by all state governments. But as it stands, it is not out of the question that a state government could consider the reintroduction of the death penalty.
The instinctive insistence by some on an eye for an eye is written deeply into human nature. Despite this being a recipe only for increasing blindness, there are those who believe it is appropriate for the state to take retribution or vengeance, and there will always be those who believe—wrongly, as the evidence shows—that the death penalty works as an effective deterrent.
That is why this bill is necessary to remove the possibility of the death penalty being reintroduced anywhere in Australia. In so doing, the bill comprehensively implements article 1(2) of the second optional protocol, where it requires:
Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.
I am pleased to note the multipartisan support and strong statements from other speakers to this bill. This is a clear demonstration of our common and shared values as Australians. The death penalty is an act that decreases the store of human dignity. It is a practice that has no social justification, for all the evidence indicates that it does not function as a deterrent, and, while the putting to death of the worst criminal may give some satisfaction or closure to those aggrieved, quite understandably, by a terrible crime, it is not right that our system of justice function as an instrument of vengeance. What is more, when the state, as society’s delegate, takes a life in vengeance or as punishment, it condones a view that one can, by their conduct, forfeit the right to life, and so it invites, even tacitly, individuals to make that judgment against one another. In 1764, the Italian philosopher Cesare Beccaria wrote:
Is it not absurd, that the laws, which detest and punish homicide, should, in order to prevent murder, publicly commit murder themselves?
He believed that the more cruel and severe the punishment, the more the minds of men grew ‘hardened and calloused’.
I also take this opportunity to note, as the Attorney- General has done, that this law will strengthen the Australian government’s capacity to oppose the use of the death penalty wherever it occurs. There are Australian citizens waiting on death row in several of the countries that still apply this penalty. The Australian government’s ability to make representations on their behalf, and to campaign generally for the country-by-country abolition of capital punishment, is enhanced by our clear and uncompromising position on this issue. I have protested and I will continue to protest against the sentences of death that apply to people like Scott Rush, Andrew Chan and Myuran Sukumaran on the grounds that capital punishment is fundamentally wrong. But I have not and I will not confine myself to only protesting against the death penalty where it is applied to Australian nationals. The putting to death of an individual by the state is wrong anytime and anywhere it occurs. On that point, I note what the Hon. John von Doussa said in 2006 as President of the Human Rights and Equal Opportunity Commission, when he stated:
In an era where law enforcement requires international cooperation Australian commitment to the universal abolition of the death penalty should be uncompromising—not vary from case-to-case depending on the crime, citizenship and country. We need to make sure that our mutual assistance and agency assistance arrangements reflect Australia’s commitment to abolishing the death penalty.
The question is, having set ourselves upon a path to a higher civilisation, are we prepared to go the distance? Are we prepared to oppose the death penalty wherever and whenever it occurs?
The international and diplomatic efforts to oppose the death penalty on that basis are important, and Australia’s expressed position to that effect is important. Only by saying that we oppose the use of the death penalty by any country, and by saying that we oppose the execution of any person, can we deploy the necessary strength of conviction on this issue. Last December, the Attorney-General announced new guidelines for the Australian Federal Police, whereby any cooperation with international criminal investigations with possible death penalty implications will require ministerial approval. This is extremely important in order to avoid a repeat of the Bali nine AFP debacle. It also sends an important message to countries with which we cooperate.
It is, in my view, a great shame that so many countries, including global and regional leaders like the United States, Japan, Indonesia and China, continue to use the death penalty as part of their criminal justice systems. The United States and Japan are the only developed democratic nations to retain the use of capital punishment. I am glad that in the recent appointment of Keiko Chiba as Japan’s justice minister we are likely to see at least an unofficial moratorium on executions in that country. I understand that Ms Chiba has been an active death penalty abolitionist for some 20 years. Hangings in Japan have surged over the last three years, and there are approximately 100 inmates currently on death row. In the United States, the constitutional so-called freedom that is supposed to protect people from violent crime, in the form of extraordinarily permissive gun laws and the laws which in many states punish people with death for those crimes, have together failed to significantly reduce comparatively high rates of violent crime. It is significant in comparing the 35 states in the US which apply the death penalty and the 15 states which do not, that the average murder rate in death penalty states in 2008 was 5.2 per hundred thousand, while it was only 3.3 per hundred thousand in states without the death penalty. That disparity is reflected year in, year out.
It is also significant to consider the countries that, along with the United States, feature, year in, year out, at the top of the worldwide executions list. From information collated by the Death Penalty Information Center, I can say that in 2008, at least 2,390 people were executed in 25 countries around the world, and 8,864 people were sentenced to death in 52 countries. Amnesty International has reported that in the course of 2008 executions almost doubled in number from the 1,252 that occurred in 2007, and 95 per cent of all known executions were carried out in only six countries: China, Iran, Saudi Arabia, the United States, Pakistan and Iraq. The confirmed numbers of executions in those countries during 2008 were (1) China, 1,718; (2) Iran, 346; (3) Saudi Arabia, 102; (4) United States, 37; (5) Pakistan, 36; and (6) Iraq, 34.
The death penalty is wrong in itself, and it inevitably takes the form of a cruel, unusual and inhumane punishment. As recently as September last year, the state of Ohio’s botched execution of Romell Broom provided another reminder of the barbarism that is involved in putting a person to death. In its editorial on 3 October, the New York Times described the circumstances of the attempt at a lethal injection of Mr Broom:
The execution team in Ohio spent about two hours trying to access a vein on Mr. Broom’s arms and legs. They stuck him with a needle about 18 times, returning to areas that were already bruised. In one case, the needle reportedly hit a bone. Mr. Broom tried to help, pointing to veins, massaging his arms to keep a vein open and straightening tubes. At one point, some witnesses suggested he was crying.
Such scenes are a transparent window onto the profoundly uncivilised nature of the act by which the state puts to death one of its citizens. Such occurrences demean us all. Twenty-one years ago, Romell Broom was convicted of the rape and murder of a 14-year-old girl. It was a terrible, terrible thing that he did. It is right that he be severely punished and that he be kept from doing such awful harm ever again, but I maintain that he should not be put to death and that the death penalty is not at the high end of a range or rising curve of penalties that includes fines, community service and incarceration. The death penalty is something else altogether. It is an act of barbarity for the state to end a life.
What makes capital punishment even more abhorrent is, on the one hand, the use of the death penalty as a tool of political oppression and, on the other hand, the application of the death penalty in ways that clearly reflect and express societal prejudice. In the first case, the death penalty has the clear potential to be used not as a sanction by the state against the criminal conduct of an individual but as an instrument of tyranny. I am sorry to say that executions in China of Tibetans and Uygurs are naturally and not unreasonably perceived through that kind of framework. It is very difficult not to regard executions that occur in the context of civil strife or protest as being an expeditious punishment that is meted out to enemies of the state, rather than a criminal sentence. And it is no surprise that a majority of countries which practise the death penalty are nations with less than impressive human rights records. Many have political systems or systems of government that do not operate in the best interests of their people.
In the second case I have mentioned—and the United States is unfortunately a good example of this—the analysis of both death sentences given and executions carried out often suggests that capital punishment is discriminately or prejudicially applied. A Californian study published in the Santa Clara Law Review in 2005 found that those who murdered whites were three times more likely to be sentenced to death than those who killed blacks and four times more likely than those who killed Latinos. In his 1998 report to the American Bar Association, Professor David C Baldus presented his finding that, in those states where there has been a review of race and the death penalty cases, 96 per cent were found to have either race-of-victim or race-of-defendant discrimination, or both. As with those many cases throughout history where it is shown that the death penalty has been imposed on an innocent man or woman, the fact that the death penalty can tend to be imposed discriminately or prejudicially is yet another argument against its validity. As noted by Bryan Stevenson, the death row lawyer:
The reality is that capital punishment in America is a lottery. It is a punishment that is shaped by the constraints of poverty, race, geography and local politics.
Where the death penalty exists, there is the ever-present possibility of the most extreme injustice being applied to innocent people. PN Bhagwati, the former Chief Justice of India, famously wrote: ‘The death penalty is irrevocable; it cannot be recalled. It is destructive of the right to life. Howsoever careful may be the procedural safeguards erected by the law before the penalty is imposed, it is impossible to eliminate the chance of judicial error. One innocent man being hanged should be enough to wipe out the value of capital punishment forever’.
Of course, the death penalty admits no possibility of redemption, of rehabilitation. Australians will recall the hanging of the young Melbourne man Nguyen Tuong Van over four years ago on 2 December 2005 in Singapore. Van had admitted carrying drugs in order to help his twin brother pay off debts. Van admitted guilt at the first opportunity, showed great remorse and fully cooperated with the police. Just before he died, his lawyer Lex Lasry said:
He is completely rehabilitated, completely reformed, completely focused on doing what is good, and now they are going to kill him.
The then Attorney-General, Philip Ruddock, branded Van’s impending execution as abhorrent, especially because the sentence was mandatory and mitigating circumstances were ignored. He said:
It’s a most unfortunate, barbaric act that is occurring.
Could anyone argue honestly that this execution achieved any useful purpose for society?
In the case of Indonesia, I acknowledge that that country takes very seriously offences involving drugs and wishes to ensure that a strong message is sent to the community that dealing in drugs will not be tolerated. I would simply say that it is possible to be tough on crime and drugs without imposing the death penalty, which is a fundamental violation of the right to life. This is demonstrated by the fact that the international criminal tribunals which try and punish the most serious crimes possible—genocide, war crimes and crimes against humanity—do not have the death penalty. As I asked in my contribution to the adjournment debate on 1 December 2008: why is it that blank bullets are distributed among the Indonesian firing squad, leaving each member of the squad with the hope that it was not their bullet that exploded the heart of the condemned tied to a stake? It is because it is contrary to our shared human values of respect for life for the state to plan and calculate the termination of life, regardless of the nature of the crime or the nationality of the perpetrator.
In conclusion, can I say again that this bill strengthens Australia’s existing position against the use of capital punishment, and it meets fully our obligations under the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty. I congratulate the Attorney-General on the passage of this important law, and I know that it reflects his own strongly held and strongly expressed principles on this issue. I will finish by saying I hope it is a happy new year for Scott Rush and his companions. They are in our thoughts and prayers. (Time expired)
I welcome the opportunity to make some comments today on the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009. It is not my intention to go over all the points that others have made. Certainly from what I have heard I agree with the points that have been made in this debate. While I think that Australia was always unlikely to go back to death penalties for any crimes in this country, this bill will take the steps needed to ensure that it can never be done again. So I welcome the bill and it certainly has my personal support. But I would like to go to some slightly different places in the time that I will make my contribution today, because I can assure you, Mr Speaker, that when you walk on the streets of suburban Australia and you knock on doors there is some support out there for things like the death penalty and even corporal punishment. I think we can be certain of that. I think that they are wrong. I think that ultimately there will not be any improvement as a result of having the death penalty as a possible outcome for a conviction in Australian courts. Yet there will still be people who will say, ‘Look back to what happened in Singapore in 2005, when an Australian was executed,’ or who go back further to Barlow and Chambers, who were executed for drug offences as well. Nothing has really moved on. People are still taking those chances with their lives when they try to traffic drugs.
I will say it again later on but there is a degree of personal responsibility involved with this, particularly for those Australians who take the risk of smuggling and trafficking drugs to or from various countries in the world. It is a high-risk scenario and the rewards will never make up for the risks that they take. As the member for Fremantle has quite rightly said, once people are beyond the protection of our borders they are subject to the charges and penalties that another state may impose. So it does come down to people realising that just because we will never have the death penalty and it is unlikely that we will ever have corporal punishment again in this country does not mean that other countries will observe our standards. People need to be very careful when they take these risks for a quick buck, to support somebody else or for whatever misguided reason they have to try to traffic drugs: they are and will be subject to the penalties that apply in other countries. Of course, I would also say that the damage they do if they get the drugs back here is completely unacceptable as well. But there are more appropriate penalties to be imposed upon people who try to traffic drugs and hurt this country and the people of this country by selling and trafficking drugs—other ways that do not include the death penalty.
I can understand when members of a family, particularly children, have been the victim of a hideous crime—such as the hurting or molesting of a child—how parents could feel that revenge through the death penalty would in some way help them. I understand that people feel very strongly about these things. But, again, as the member for Fremantle said, we need to be consistent. While I personally think there are some people who commit crimes for which they cannot ever be rehabilitated, such as child molesters, child rapists and often drug users—I do not believe that a lot of those people can be rehabilitated—you can never be certain in the matter of capital punishment. You can never be certain that the person who is executed is actually the one who committed the crime. The fact that there is any form of doubt even in one case is a very strong argument for why it is right to go down this path and fully enshrine the abolition of the death penalty in this nation.
I would also like to speak on the matter of torture. Again, I think we all have very clear ideas of what is involved with torture. I would just make the point that by some definitions of torture the methods used in the acquisition of information in combat zones by intelligence personnel for, say, the Australian Army would be considered torture. I am not talking about water boarding. I am not talking about those matters where a person who has been detained—a POW or whatever—is in fear of their life. I am not talking about that. That is certainly torture and should not be allowed. But certainly from my limited experience over 15 years in the Defence Force the pressure that is placed upon people to obtain information from them reasonably quickly is an essential part of fighting and combat. By that I mean sleep deprivation and other ways of imposing a great deal of pressure on someone that do not cause permanent damage. Sleep deprivation is a very quick way of obtaining information. Within 24 hours people are sufficiently disorientated that they are more likely to provide information. This is non-lethal. This does not cause long-term damage. It is a little bit of pressure which can be very useful in obtaining information. Provided that is still retained as part of legitimate acquisition of information, I certainly stand by all other modes of torture being prohibited.
I said before that when Australians travel overseas they need to be very careful about the decisions they make. They need to appreciate that they will be held accountable for the actions they take. If they attempt to traffic or smuggle drugs then they have to appreciate that, whatever their reason for doing it—for instance, the young Vietnamese Australian who was executed in Singapore wanted to pay off his and his brother’s debts—these are not legitimate excuses. As soon as you hop on a plane or exit immigration control in Australia and have taken actions to commit an offence you will be beyond the control of the Australian government, and the rules and culture of another country will then be what will affect you if you are caught.
12:29:37 It is very important to make the point that we do not control the values and laws of other countries. We attempt to influence, and that is good, and the United Nations working in this area is definitely good, but there are some countries out there that are ultimately and totally wedded to capital and corporal punishment. While we may think that barbaric, that does not mean that they will stop. So every time an Australian goes overseas they need to be very careful with the way they conduct themselves because consular assistance cannot stop another country imposing its system of justice and punishments on Australian citizens.
I want to conclude by reiterating that I support this bill. I believe that the death penalty will never be the way forward. It will never stop crime. What will stop crime is the certainty of being caught, a belief that no matter what you do you are likely to be caught and that justice will be imposed upon you, not that if you get caught your life might be in jeopardy, might be forfeit. We need to put in place measures that will increase the certainty of people being caught. That will be the best deterrent to crime. I acknowledge that there are many Australians who remain in support of the death penalty and who support corporal punishment such as the use of the rattan in Singapore but, if you look at the way some countries operate around the world who have the death penalty and these forms of corporal punishment, I do not think such countries maintain the sorts of systems of government that Australia would ever look up to. It is right that we take this move now and that we complete the abolition of the death penalty in Australia. I stand in support of this bill.
I too take the opportunity to speak in support of the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009. I am pleased to see that most of those who have spoken in regard to this bill, including the members opposite, have indicated their support for it. I begin in expressing my support for this bill by stating my view that this bill reflects our civility as a nation. The taking of another person’s life, or the torture of a person, are acts that in my view see human behaviour descend to its lowest point. Nevertheless, I accept that there are people who have a different point of view on these matters and who will argue the case that both the death penalty and torture can be justified in certain cases. I recall an incident when I was campaigning in 2004 in which I was confronted by some people from within the community and the issue of torture and the death penalty arose. I was able to stand back and watch the debate between different people who were there at the time arguing for and against the case of the death penalty and torture. It is interesting to note that it is certainly an issue that causes a degree of division throughout communities.
Both practices, the death penalty and torture, are used in countries around the world today. They are practices that date back as far as our historical records go. In Australia today around half the population supports the death penalty for certain crimes. That figure, based on some of the more recent surveys and polling that have been carried out, again highlights that it is certainly a matter that causes divisiveness throughout the community. Those who support the use of the death penalty and torture will argue that they serve as both a punishment and a deterrent to those who commit, or who contemplate committing, a serious transgression against others. On that point, I note the comment by the member for Cowan that it is the certainty of being caught that acts as the greatest deterrent. I certainly concur with him on that point. It is not the ultimate punishment that does. Of course, some will also argue that in the case of torture there is the additional justification that extracting information by the use of torture may prevent the suffering of others in due course.
These are not simple matters of morality. I am also acutely aware that if I, a family member or a close friend were a victim of a horrific act my views may well be different. It is, however, important that these matters are dealt with objectively and are not clouded by personal emotions. I also hear with some persuasion the argument that a person who has committed horrific acts, who is unlikely to be rehabilitated and who continues to be a serious risk to others loses their right to live. Furthermore, life imprisonment does not guarantee that a person will not reoffend and that the community is still safe. Of course, there will always be the question that can never be answered as to how many innocent lives have been saved because of the use of the death penalty and torture. The moral dilemma, however, becomes under what circumstances, if any, do you apply the death penalty or torture? It is in the absence of being able to clearly define the circumstances under which the death penalty should apply, and in the firm belief that one barbaric act does not justify another, that I support this bill. Furthermore, history is littered with executions of persons whose guilt remains in doubt, of persons tortured without ever having knowledge about matters over which they were tortured, or tortured just so that others could get pleasure and enjoyment from their suffering.
The bill addresses two matters. Firstly, it implements a specific Commonwealth offence of torture into the Commonwealth criminal code and, in doing so, will fulfil Australia’s obligations under the United Nations Convention against Torture to ban all acts of torture wherever they occur. Secondly, in accordance with the second optional protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty, the bill will ensure that the death penalty cannot be reintroduced anywhere in Australia in the future.
The death penalty was abolished in each of Australia’s states by the state governments last century, with New South Wales being the last state to abolish the death penalty in 1985. Queensland had abolished the death penalty as far back as 1922 and was the first state to do so. The Commonwealth abolished the death penalty for federal offences as well as those under territory or imperial acts with the passing of the Commonwealth Death Penalty Abolition Act of 1973. In 1985, Australia also became a signatory to the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment. The convention protocols were ratified by the passing in 1989 of the Commonwealth Crimes (Torture) Act 1988. I note that Australia was one of the 31 sponsors of the original optional protocol when it was presented to the United Nations.
The first recorded hanging in Australia was that of Thomas Barrett on 27 February 1788 for stealing food. The last judicial execution in Australia was the hanging of Ronald Ryan on 3 February 1967 for the fatal shooting of prison officer George Hodson during Ryan’s escape from Pentridge Prison in December 1965. I can well recall, as a child, the media stories and the community backlash against that hanging. From all accounts, the hanging divided the Australian community, resulting in some of the largest public crowds ever seen in Australia rallying to protest against the use of the death penalty. I understand that several people, including journalists of the day, were allowed to witness the hanging. According to several eyewitness accounts, the experience left many of them with the clear view that the death penalty should be abolished. The governor of the jail, the sentencing judge and others who were associated with the hanging all said that they were distressed and tormented by it. I suspect it must have also been an incredible burden on the hangman himself to carry out the execution.
I quote Catholic bishop Greg O’Kelly, who at the time of the Ryan hanging was a young Jesuit scholastic teacher at Pentridge. In an interview with Elizabeth Hook, editor of the Southern Cross, Bishop O’Kelly said:
To execute somebody in cold blood is a barbarous act. It’s a calculated act of extreme, terminal violence against the living person. He has killed someone and so the same act is perpetrated upon him.
Bishop O’Kelly goes on to say:
You can release somebody wrongly imprisoned but you can’t resurrect somebody who has been executed.
The last quote highlights the other major dilemma relating to the death penalty and that is the fact that evidence has not always been clear or conclusive and courts have been known to convict innocent people. Statistics would show that one of the reasons is that quite often the innocent people who are convicted come from a very poor background. Therefore, they are unable to hire the most expensive and best lawyers. So, not surprisingly, they lose their cases and are found to be guilty. I am sure that there have been many, many examples of that which in retrospect have proven that the system of our courts is not infallible. A person’s life is too precious for mistakes to be made with it.
I will make some observations on the second aspect of this bill relating to torture. Torture is allegedly a common practice and there is widespread use of it around the world. Of course, it is nearly always denied by the relevant authorities. As with the death penalty, there is often doubt that the person tortured was in a position to render any meaningful information. It is highly likely that, over the centuries, many innocent people have been tortured. Torture is, however, often carried out by government security agencies and therefore almost impossible to prove or prosecute.
I welcome the establishment of a UN Committee against Torture to monitor the implementation of the UN protocol. The committee can consider individual complaints, visit places and assess reports from parties to the convention. I note that that the Howard government had voted in the UN against the optional torture protocol and outright refused to sign it, yet torture is an offence and has been for many years under state and criminal laws. I have to say I am perplexed by the position that the Howard government took on this when it had the opportunity to sign the protocol.
Under this bill, a new offence of torture will be enacted which will criminalise acts of torture both within and outside of Australia. The new act will replace the existing Crimes (Torture) Act, which will be repealed. I do note that this bill does not prevent the extradition of a person facing a death penalty charge to the country making the charge. It is a matter that causes me some concern, given the position that this country is now taking on the death penalty. Under the Extradition Act 1988, the Attorney-General can authorise the extradition of an individual for a capital offence if their extradition country undertakes that: firstly, the person will not be tried for the offence; secondly, if the person is tried for the offence, the death penalty will not be imposed on that person; or, thirdly, if the death penalty is imposed on the person, it will not be carried out. Under those conditions, there is no guarantee that once the person is extradited the conditions will be honoured.
I want to comment on the issue as to whether the death penalty acts as a deterrent to serious crime and particularly to the crime of murder. It would appear from the research available that the death penalty does not reduce the murder rate. In the United States, for example, crime levels have not increased in those states which abolished the death penalty and, conversely, in those states where the death penalty applies, crime levels have not been reduced.
One survey showed that US states which abolished the death penalty had homicide rates at or below the national rate and that over a 20-year period, between 1980 and 2000, the homicide rates in states with the death penalty were 48 per cent to 101 per cent higher than in states without the death penalty.
Over the years, Australia and the Australian people have quite rightly condemned the use of brutality, torture and execution by dictatorships and oppressive governments in other parts of the world. Regrettably, we are presented with examples of those practices all too often. Australia has quite rightly spoken out on behalf of Australian nationals who have faced the death penalty in overseas countries. In this regard, I would like to acknowledge the staff of the consular division of the Department of Foreign Affairs and Trade who, over the years, have on so many occasions worked tirelessly to assist Australians who have found themselves facing the death penalty in other countries. I well recall the case of Kevin Barlow and Brian Chambers in Malaysia in 1986 and the public reaction in this country to the news that they were to be executed, as they ultimately were. Subsequently, there have been many other cases. On each and every one of those occasions, the public reaction in this country to the use of the death penalty has been, in my view, overwhelmingly against those people being executed for the crimes they committed in those countries.
I noted the comments of the member for Cowan, who referred to the laws of other countries and the fact that people travelling overseas need to be aware of those laws and that, clearly, we as a nation cannot intervene in those laws. We may not be able to intervene but, as the member for Fremantle rightly said in her address to the House, if we are to take a position that we oppose the death penalty and that we oppose torture, we should oppose it in all instances regardless of where it is carried out. However, it is important that, if we are going to condemn other leaders who carry out those barbaric acts and criticise them for doing so, we show and lead by example—firstly, by not having the death penalty or torture agreed to by the government of this country and, secondly, by taking a consistent stand wherever it occurs, not by taking a stand only when it suits us to do so. If we are to have credibility on these issues—and in many cases I think the broader Australian community would want the Australian government to take a stand on these issues—we need to be consistent. In supporting this bill Australia joins some 80 countries around the world that have abolished the death penalty and around 20 or more that have a policy not to execute, albeit that the death penalty has not been formally abolished. I believe that those numbers will increase as time moves forward.
I want to close my remarks by referring to the proceedings of this House. Each day we commence proceedings by reciting the Lord’s Prayer. Regardless of whether one is a Christian or not or whether one is religious or not, the fact is that we recite Lord’s Prayer. I assume that in doing so all members of this House accept in principle the values enshrined in that prayer. One of the lines in the Lord’s Prayer says, ‘Forgive us our trespasses as we forgive those who trespass against us.’ If we are to embrace and accept that as part of the values that underpin the work of this parliament, then torture and the death penalty have no place in this parliament or in the civil society that I would like to think we have in Australia. I commend the bill to the House.
I also rise to strongly support the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009. In summary the purpose of the bill is to amend the Criminal Code Act 1995 to include a specific torture offence and also to amend the Death Penalty Abolition Act 1973 to extend the application of the current prohibition on the death penalty to state laws to ensure that the death penalty cannot be reintroduced anywhere in Australia.
Turning firstly to the offence of torture, the definition, essentially, that is being included as a specific torture offence includes very generally four points: it must involve a public official in some form; it must be an infliction of severe physical or mental pain or suffering; there must be an intent to inflict severe physical or mental pain or suffering; and that it is for a specific purpose such as extracting a confession or information.
This is a difficult but welcome addition to the laws of this land. It addresses an issue that was raised in this place by several people, including me, with regard to Guy Campos, an individual who was in this country last year, who was allegedly involved, but all the evidence would strongly suggest was involved, in offences in East Timor throughout its transition to being a sovereign nation. He was identified as being in this country last year, from memory, on a World Youth Day visa. He was identified by people who are local Australian residents now, people who had escaped what was a torturous regime at the time in East Timor. One of the TV stations—from memory I think it was Channel 7—identified him as an individual of concern. I think they faced him at a community event and all but got an admission of guilt out of him on camera.
The AFP became involved and several trips to East Timor were undertaken. A brief of evidence was prepared and, I think, upwards of $500,000—well over, at least, $400,000—of Australian taxpayers’ money was spent. Despite many people in the community saying that Guy Campos was going to skip the country if this brief of evidence was acted upon, the Australian government could ping him on no specific offence. As far as I know—and I would be happy for the Attorney-General to tell me otherwise in his response—Guy Campos is still at large, overseas, out of the Australian jurisdiction, despite a brief of evidence and half a million dollars of Australian money being spent potentially to do some good work on behalf of the Asia-Pacific region and to bring to justice someone who looked to be quite clearly involved in a good example of torture, as is defined in this new legislation.
I would hope that this legislation is a start in addressing the anomaly that occurred only in 2009. Much of the debate I have heard and many references that have been made to particular pieces of legislation go back a long time, to the seventies and eighties. Clearly, there is a history of bipartisanship and also tripartisanship with regard to torture prohibition and the abolition of the death penalty. That is welcome. The Australian parliament should be proud of that, that it is strong in its defence of the liberty of men and women not only in Australia but throughout the world. If such a clear case, such as that of Guy Campos, emerges again in the future, with such a significant spend of Australian dollars—say, $400,000 to $500,000, as was spent by the AFP—and if there is a courtroom full of willing witnesses, such as there was in the Campos case, I would hope that this legislation will be a trigger to addressing the anomaly that occurred only last year and to ensuring that justice is done within this country and this region.
I wish to make another point, and this is more for the benefit of anyone who is resident on the mid-North Coast or for anyone reading this speech who may be wondering why we may all get so passionate about an ethical issue like torture prohibition—
We should. But for those who are still wrestling with that issue, this is not only about someone from East Timor, on a visa, having an extended holiday, who was involved in offences; this is also about local residents. In my old days as a state member of parliament there was a horrific case on the mid-North Coast of ongoing and habitual abuse of an individual by residents. They were not public officials and there was no extracting of confessions or of information. I would hope that, through this legislation, the concept of torture will not be forgotten in a free and democratic Australia. It can easily permeate a free, democratic society. We all need to be vigilant, from everyone on every street on the mid-North Coast to everyone around Australia, in ensuring that we are all aware of what torture is and that we are certainly doing our bit to identify it and doing all we can, where possible, to oppose it.
Various people have spoken previously on the death penalty. My view is that the court system is a human system. It might be 99 per cent right, but that is 100 per cent wrong. It is the one case in 100 cases that the human court process, the human legal system, gets wrong that completely discredits any argument for the death penalty system of justice in a country such as ours or in any country around the world. The previous speaker, the member for Makin, mentioned some examples in the United States, including the great example of the corridor trading within the political process that went on when the gun law changes came in in the US and where negotiations with the states had to take place. Part of that trading with the states included increased penalties that could have the death penalty attached to them so as to get some greater restrictions on gun laws. For that to be a trading mechanism in the halls of political power, I think, sniffs of the inconsistency of death penalty laws in that jurisdiction. It is also a great example for our jurisdiction as well. Previous speakers have also mentioned the lack of an evidence trail between jurisdictions that have the death penalty and any decrease in crime. Therefore, I think that that, again, is a clear statement of the inability of the death penalty to do its job if it is there as some sort of fear tool to prevent murder, manslaughter or any other heinous crimes.
I will also mention a really interesting study that I think was done by Chief Justice Gleeson on community standards and community sentiments around crime. Again, for those who may be sitting in their homes wondering why this is relevant to them, this study was a very interesting reflection on the lynch mob mentality. A survey was done of community views on particular judgments through the court process. The question was asked, ‘Are those judgments too lenient or too hard?’ The vast majority, when they were looking at the judgments alone, said, ‘It is too soft; we should be harder and tougher on crime.’ He then presented the same survey group with all the facts of the case and said, ‘You provide the judgment.’ In the majority of cases, those community members who were surveyed provided a less harsh judgment than given where the judges’ judgments alone were provided on those particular cases—the point being that, without all the facts, without all the evidence, we do potentially suffer from a lynch mob mentality.
We are responding to community in an irresponsible way if we just throw the question out to the community and say, ‘Do you agree with the death penalty or not?’ We are going to get a range of views, and I reckon we might even tip into the side of more people saying yes than no. But if we provide detail and evidence around a particular case, its particular circumstances and the facts of the case and then ask, ‘Do you think the death penalty should apply?’ then, I would hope—and, more often than not, I have faith in our community—that commonsense would apply and most people in the community, once they understood the facts and the evidence trail, would say no.
To the question of whether we are here to serve the majority view within our communities, I would say, ‘Yes, we are, so long as it is done on a factual base and our representation is responsible.’ On this topic I would hope that the tripartisan support for getting rid of any chance that the states may reintroduce the death penalty reflects overall community sentiment and is a common-sense approach.
It was a bit of a surprise to me, in my first 15 months in this job, to see the number of Australian citizens held against their will, for a number of different reasons, in other criminal justice systems around the world. Some of those cases involved the death penalty as one of the potential judgments for the Australian citizens involved. I would hope government would be strong on this and that, even at times when it is difficult—when it may affect trade or sensitive bilateral or multilateral relationships—it would be vigilant in arguing the case for the upholding of Australian law for Australian citizens as much as possible. I would hope that, on the death penalty, we do not drop the ball, either behind the scenes when working through diplomatic channels, or when working through the mouths of Prime Ministers, Attorneys-General and the executive.
We need to be strong in our message about the death penalty. We live in a complex region of the world. The death penalty does apply in many of those jurisdictions. Our strength of leadership is important in reaffirming the reasons why the abolition of the death penalty is important. Hopefully, from that, we will get some other jurisdictions to reconsider their position. But I do not think it is acceptable for leadership to be silent when it might be difficult to raise issues around the death penalty because it may affect trade, for example. I would hope that all our relationships with our neighbours are above that, and I would hope that our role in being one of the great protectors of freedom and liberty is to be loud and vocal and strong about this issue of why the abolition of the death penalty is a sensible move in all criminal justice systems around the world.
I speak in strong support of the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 for a number of reasons. Firstly, I oppose the death penalty. I oppose torture and other forms of degrading treatment. And I do so on moral grounds. We come to this place with a whole lot of roles. But we are also law-makers and as a law-maker I do not have the right to pass a law that would allow the state to execute another citizen or subject another citizen to torture or other forms of degrading treatment. I do not see that any lawmaker, in Australia, in any country, has that right. It is not a right that is given to us. We have to protect life and we have to protect human beings and human dignity. So it is totally on moral grounds that I oppose those things.
I have long been part of anti-death-penalty networks, both in Australia and in the Asia-Pacific region. A lot of people do not know about that movement in the Asia-Pacific region—and it did not start in Australia; it started in countries that we identify as Asian and Pacific—but they are very strong and active networks. I have been part of them for a long time—also internationally, and through Amnesty International.
I cannot recall the number of letters I have written as a member of Amnesty International—and I am still a member—for people I do not know, and who I will never get to know, who are on death row. Some of those people, I know, have committed terrible crimes and caused terrible suffering, and I know that there are families and there are victims. I can understand somewhat—somewhat—their pain, and that sometimes people would want to extract vengeance. That is why we have laws; that is why we have the rule of law—so that we do not go out and extract vengeance and become part of a lynch mentality. I can well understand some of those feelings; I know that, as a parent, if something were to happen to my child, I might have those feelings and I might want to do that to somebody who had injured my child—particularly if it were the ultimate injury of taking their life. So we have to have the law. We have to have the rule of law.
I remember speaking to this a few years ago. I was living in Timor Leste when one of our citizens, Van Tuong Nguyen, was executed in another country. I can remember well the trauma that that caused the whole of Australia. The whole of Australia was seized by that issue. Confronted by the reality of the death penalty, the community showed its strong anti-death penalty sentiment—and that is why we have passed laws in each state that prohibit the death penalty. I well remember that, through Amnesty International and the Asia-Pacific Network, there were people sending text messages asking us to text our members of parliament. Everybody joined in, and a whole lot of actions took place. People who do not often get involved in political action did get involved. A whole lot of parents and grandparents were involved in that. I would like to quote from an essay entitled ‘The death of Van Tuong Nguyen’ by Peter Norden SJ in the Catholic Social Justice Series booklet Confronting the Death Penalty. He said:
At 8 am on Friday, 2 December, 2005, in the Melbourne suburb of Richmond, the bells of St Ignatius’ Church rang 25 times.
The bells sounded over the cries and wailing of many of the 1000 people who had gathered to pray during the moment of the execution of an Australian citizen, Van Tuong Nguyen. Van was executed at Changi Prison by officials of the Singapore Government, who placed a noose around his neck and let him drop through a trap door to his death.
Each of the 25 bells that morning represented a year of the life of this young man, whose family had been part of the community of that parish during his first years.
The death penalty is final; it is absolute. I have read reports, studies and research that show people internationally have been executed by the state when it has been proven beyond reasonable doubt that they did not commit the crime. We cannot bring people back; whatever anyone might think about the death penalty, that is one reason why we should not impose it. Justice Michael Kirby said:
Inflicting the death penalty is the ultimate acknowledgement of the failure of civilisation.
I have often said—and I do not say it lightly—that we cannot abide the death penalty in a civilised country. The death penalty exists in a number of jurisdictions. I do not want to say they are uncivilised, but I do say that a civilised country should not have the death penalty. I would also like to quote from a motion introduced to the parliament by my colleague the member for Werriwa, Chris Hayes. We all know that he has been very active about young Scott Rush and the so-called Bali 9, nine Australians who are in prison in Indonesia. His motion states:
(j) abhorrence of the death penalty is a fundamental value in Australian society and there is bipartisan opposition within the Australian Parliament to the death penalty;
And it is clear that there is bipartisan opposition to the death penalty. This parliament has a working group on which all parties, all sides of politics, are represented. We come together and work to advance the cause of getting rid of the death penalty and making sure it never again comes to the fore.
I welcome the introduction of this bill. I thank the Attorney-General, with whom I have frequently discussed the death penalty and torture, for bringing this forward. I congratulate all those members of parliament who have been active in advocating for this bill. It is important to do good when you can, and this is an example of doing good to put beyond reach the ability of any jurisdiction or agency in Australia to either introduce a law or take any action that would cause an Australian citizen to be executed or tortured by the state. I will turn to this matter after I walk through the legislative provisions and the convention framework.
This bill does two key things. Firstly, it enacts a specific Commonwealth torture offence in the Commonwealth Criminal Code which will operate concurrently with existing offences in state and territory criminal law. Secondly, it amends 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. That act was enacted in this parliament in 1973 with the support of the parliament.
I will now turn to torture. The aim of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment is to end impunity for torture globally—this is the right aim—so that no individual can escape the consequences of their actions if they inflict or cause torture or other cruel, inhuman or degrading treatment. This bill will enact a specific Commonwealth torture offence in the Commonwealth Criminal Code to prevent that. The Crimes (Torture) Act 1988 will then be made redundant, because the key inclusion of this torture provision is now in the Commonwealth Criminal Code—so it will be repealed. The Crimes (Torture) Act currently criminalises torture when committed outside Australia but only when committed by Australian citizens or other persons present in Australia.
The United Nations convention that I referred to requires Australia to ensure that all acts of torture are offences under domestic criminal law. The convention definition of torture is along these lines: any act by which severe pain or suffering is intentionally inflicted upon a person by a public official for certain specified purposes—for example, obtaining a confession or information. In Australia’s previous periodic reports to the United Nations Committee Against Torture it has been said that state and territory laws already cover this. However, the coverage is not complete. This act will serve to complete it.
In this place we often have interns, through a program that operates through the Australian National University. Last year I had an intern in my office for a few weeks working on a project on the death penalty. She wrote an excellent report about the death penalty, Australia’s position on it and what should happen here. I am going to quote from it because it is not a report that you can easily access, as it is not published in the normal way. She will not mind me mentioning her name: Eloise Fowler. She completed some really good forensic work in this area. Her report suggested a number of reforms that, as she said:
… could be implemented to relieve the tensions between Australia’s international obligations and Australian domestic law.
… reviewing the Attorney General’s Office of International Law (OIL) advice on Australia’s international obligations; reforming the Mutual Assistance Act to include human rights safeguards; amending the AFP guidelines so they abide by Australia’s international obligations; enacting an Agency to Agency act; creating a caveat system for information sharing; implementing a federal charter of rights; and creating a Parliamentary committee to oversee the actions of the AFP, particularly relating to police-to-police assistance in investigations that may result in the death penalty.
I will read her conclusion. It says:
Australia’s position on the death penalty is both contradictory and unsustainable on any moral critical reckoning. The failure to adopt the Second Optional Protocol into domestic law has placed the country in a bi-polar quandary.
Obviously this bill corrects that. Then she says:
While Australian citizens are protected by law enforcement agencies at home, the very same agencies that provide this protection are also involved in handing over information to assist in the execution of Australians overseas. The adoption of the Second Optional Protocol may not provide all the answers, but it will achieve two outcomes. Firstly it will reduce the possibility of this country having any hand in the killing of its own citizens and it will come as close as possible to abolishing the death penalty forever from Australia’s shores. Finally, if Australia is to argue for the lives of Australians on death row overseas, a necessary first step is to clarify once and for all its moral, legal and political position on the death penalty—especially in relation to formal and informal assistance.
Although we are still law-makers and the laws can be passed, this bill will put beyond reach the ability to reintroduce the death penalty in any state or territory jurisdiction in Australia.
I commend the Attorney-General and the Minister for Home Affairs for amending the guidelines for the informal mechanism that operates with the Australian Federal Police when operating with their colleagues in other international jurisdictions so that the issue of putting Australian citizens in harm’s way will be corrected. As a parent, I can remember when we learnt about the cooperation that had existed between the Australian Federal Police and their counterparts in Indonesia and about the two Australians of the Bali Nine who had been subjected to the death penalty. Then young Scott Rush on appeal had the death penalty imposed. I can remember reading about it, hearing about it and thinking just how dreadful his parents would have felt, particularly because in trying to protect his son the father said that he had gone to the Australian Federal Police to get help. To have that eventuate must be absolutely traumatic.
There are a few things I want to say about this point. In Rush v Commissioner of Police  the judgment was in favour of the Australian Federal Police, saying that it had acted within its procedural guidelines in assisting the Indonesians in their investigation, and obviously that is what they needed to change. But Justice Finn stated:
… there is a need for the Minister administering the Australian Federal Police Act 1979 (Cth) (“the AFP Act”) and the Commissioner of Police to address the procedures and protocols followed by members of the Australian Federal Police (“AFP”) when providing information to the police forces of another country in circumstances which predictably could result in the charging of a person with an offence that would expose that person to the risk of the death penalty in that country. Especially is this so where the person concerned is an Australian citizen and the information is provided in the course of a request being made by the AFP for assistance from that other country’s police force.
Justice Finn did that with great eloquence, as was noted in the report of Ms Fowler. I can remember when I mentioned the Office of International Law and the advice that they had given This advice came to light when Cameron Murphy from the New South Wales Council for Civil Liberties was able to access it. It showed, to my thinking—and this was a few years back—some rather questionable advice around this whole issue of the guidelines and putting Australians in danger of the death penalty. I have referred to Ms Fowler’s report, where she had the opportunity, as did I, to have a look at that whole situation quite forensically and it should be reviewed.
I agree with Ms Fowler, but what also came to light was that at some point in time—and it was a few years back and with the previous government—there was a conscious decision to revise Australia’s universal and consistent opposition to capital punishment in light of the government’s strong stance on terrorist offences. It was commented that it could be raised within the context of the election and it disturbed me greatly to hear that, because I am not sure all members of parliament knew about that. (Time expired)
I rise in support of the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009, which essentiallyintroduces some amendments to the Commonwealth Criminal Code. One of previous members for Moreton, Sir James Killen, studied for the bar while he was a member of parliament. He then practised at the bar and did quite a lot of criminal work. I mention that in passing because I have just been taking a group of friends and family on a tour of Parliament House. One of the party, Des Draydon, was a very good friend of Sir James Killen. He shared chambers with him and organised Sir James Killen’s 70th birthday party, had some Sir James Killen bottles of port and gave me one of those bottles of port. It is actually Des Draydon’s 70th birthday today.
When we were doing the tour of Parliament House it was interesting to look at the democratic institutions. As MPs we become used to it; this is our workplace and we see these things all the time. As a new MP, I am very proud of the house that we work in. It is funny that when you take people around the house you see things with fresh eyes and you point out some of the wonderful things that we have here.
I am proud to be able to stand today in support of this legislation, the torture prohibition and death penalty abolition bill. Why? This bill toughens Australia’s stance against the death penalty and torture and helps more fully meet our international human rights obligations. It has been more than 40 years since an execution took place in Australia. I am proud to say that Queensland was the first state to abolish capital punishment back in 1922 and Western Australia—a little bit tardier—was the last in 1984. The last person executed was Ronald Ryan in Victoria in 1967, a mere 45 years ago. Ronald Ryan was executed for shooting a prison guard during an escape attempt.
Incidentally, the first recorded execution in Australia—in terms of whitefella law, I guess—was on 27 February 1788; pretty soon after the first Australia Day, 222 years ago. That was a bloke called Thomas Barrett, who was hanged at Port Jackson in Sydney for stealing food from the public stores. Any student of history would know that the first fleet did it pretty tough in terms of food when they first settled.
Thankfully as a society we have come a long way since 1788. We have learned the value of human life, and all of us agree there is no place in any society for inhumane or degrading punishments like torture or capital punishment. The death penalty is now prohibited in all Australian states and territories. As a signatory to the Second Optional Protocol to the International Covenant on Civil and Political Rights, Australia is committed to the abolition of the death penalty—everywhere, every state, every nation—whether it be an Australian on death row or any citizen from any nation on death row. This is something on which all sides of politics agree.
Australia’s opposition to the death penalty is longstanding and has been upheld for decades by governments of all persuasions irrespective of the ebb and flow of public opinion, especially after heinous crimes, murders or the like. Australia also works through the UN human rights commission to lobby other nations to abolish the death penalty.
Some Australians still face the death penalty in countries overseas—people, as the member for Page pointed out, like Scott Rush, who is on death row in Indonesia right now. His parents, Lee and Chris Rush, are my constituents and they are incredibly brave. I cannot imagine how they get up every day and face the fact that their son is sitting on death row. I have spoken on this a couple of times in the parliament, and it has become even more poignant once I had children, once I had a son. In previous speeches I have made the comparison of the mistake that Scott made and how in my life I have made some mistakes as well. Hopefully, I have learnt from those mistakes. Unfortunately, Scott is sitting on death row and maybe will never get the opportunity to learn from his mistake.
Late last year we were reminded again about the cruel and vile act of torture with the release of Australian photojournalist Nigel Brennan. Nigel’s safe return was obviously a great relief for his loved ones, but the torture that he and Canadian journalist Amanda Lindhout endured over 15 months detained in Somalia is completely abhorrent to everybody. All countries, all societies who value human life, must take a stand against torture and the death penalty.
This bill ensures Australia complies fully with its international obligations to combat torture and demonstrates our ongoing commitment to the abolition of the death penalty. State and territory legislation covering torture and assault occasioning grievous bodily harm ensures Australia meets its obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. However, this bill will introduce a specific torture offence in the Commonwealth Criminal Code. In doing so it repeals the Crimes (Torture) Act 1988 and responds to the UN recommendation that Australia enact a specific federal torture offence. The offence will not replace state and territory offences but will operate together with them. It ensures that Australia explicitly meets our obligations under the convention against torture. This bill also amends the Commonwealth Death Penalty Abolition Act 1973 to ensure that capital punishment can never be reintroduced in Australia ever again. The act already applies to Commonwealth, territory and imperial criminal laws. This bill will extend the abolition to the states and ensure that the death penalty cannot be reintroduced at the state level.
The stronger our stand against torture and capital punishment at home, the more credibility we have to lobby other countries against the death penalty; we are then able to speak with a voice with standing, not just when an Australian citizen is in trouble, but at all times. We will be able to look other nations in the eye and say: ‘This is not something you should be pursuing, not just because you have an Australian in a prison cell, but because it is the wrong to do and it is not a civilised thing to do.’ It would obviously give us more credibility when it comes to fighting for the lives of people like Scott Rush. Scott faces the death penalty for carrying 1.3 kilograms of heroin into Bali on 17 April 2005. I remember that day particularly because it is the day my first son was born. Since February 2006, Scott has continued to face that death sentence while my son brings me nothing but joy—that is, mostly joy. All people who value human life stand united against this sentence and continue to hope and pray for Scott’s sentence to be commuted.
This bill also ensures Australia continues in compliance with the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty. I commend the bill to the House.
I speak in support of the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009. Torture in criminal law is unacceptable. The death penalty is unacceptable. Anyone who has practised in criminal law would know that any confessions, any admissions or any statements uttered as a result of intimidation, harassment or violence are lacking in probity, authority and efficacy. People who are interrogated by police officers ought to retain their civil liberties and civil rights. It is unacceptable, barbaric, inhumane and uncivilised for people to receive torture when faced with overbearing civil authority and it is something that is more akin to feudal or medieval times. The legislation here reinforces our opposition to torture in the criminal justice system and in the way we treat our fellow humans who live on this continent.
The situation is that there are many people who face criminal charges, investigations and prosecutions in this country. We have a strong criminal justice system which operates as a result of the Federation, with the Commonwealth government having enacted some years ago a Criminal Code, and the criminal laws operating at a state level throughout the country. In fact, in Queensland, where I come from, the Criminal Code is taught in the first year of a Bachelor of Laws degree. I certainly studied it in the first year at the University of Queensland at St Lucia. The Criminal Code is important because it says what we believe is unacceptable and criminal behaviour in our society. For example, the Criminal Code in Queensland—for the information of those who may be listening—was authored by Sir Samuel Griffith, Chief Justice and former Queensland premier. He was educated in Ipswich from 1854 to 1855 and he was the son of a Welsh Congregational minister who practised his religion and ministered in the Congregational church in Ipswich. Sir Samuel Griffith made a lasting contribution to our laws, and that has formed the basis of laws throughout the country and at a federal level. Actually, Sir Samuel Griffith wrote the Queensland Criminal Code in his spare time from 1896 to 1899. It is a wonder he had spare time because he certainly was an incredibly hard-working individual.
The legislation before this place has been endorsed by many people. I will come to the third-party endorsements of this legislation, but I want to read a quote which, I think, is germane by the federal Attorney-General, Robert McClelland. I think it is worth putting in Hansard what he said of this legislation:
It will ensure the death penalty cannot be reintroduced anywhere in Australia in the future. The purpose of these amendments is to ensure that Australia complies fully with its international obligations to combat torture and to demonstrate our commitment to the worldwide movement for the abolition of the death penalty. Taking these steps demonstrates our fundamental opposition to acts that are contrary to basic human values.
There are some in our society who believe in an eye for an eye. I do not believe that is the case. In terms of my own religious convictions, I am more of a New Testament person rather than an Old Testament individual. I think it is important that we prosecute those who breach our criminal codes and they should be subject to the rigours of the criminal justice system.
Taking someone’s life as an act of vengeance is really barbaric, and I am pleased that the federal Attorney-General has put forward this legislation. It implements a very specific Commonwealth offence of torture into the Commonwealth Criminal Code. As I said, the Commonwealth Criminal Code at a federal level owes a lot to Sir Samuel Griffith and his genius and legislative and legal ability at the end of the 19th century. The new offence is intended to operate concurrently with existing offences in state and territory laws. This is an area of criminal law where both the states and the federal government have jurisdiction under our Constitution, and it is important that that legislation acts concurrently and intermarries. I will deal with that particular aspect and why it is so important later in this speech.
The bill also amends the Commonwealth Death Penalty Abolition Act 1973 to extend the application of the current prohibition of the death penalty in state laws to ensure the death penalty cannot be introduced anywhere in Australia. The bill, of course, had to be developed in consultation, through the COAG process and in discussions with attorneys-general throughout the states and territories. That is important. As the member for Moreton pointed out, the Death Penalty Abolition Act 1973 needs to be amended to cover state laws. This will safeguard ongoing compliance and obligations that we have under the second optional protocol to the International Covenant on Civil and Political Rights, which is focused fairly and squarely on the abolition of the death penalty.
It is not that long ago in this country that we had the death penalty and it was operating, sadly, in a way which meant that people who committed certain criminal offences—murder, manslaughter and other types of criminal offences—were subject to that potential risk. Many times the convictions were commuted to life imprisonment or other penalties, which was the just and humane thing to do. Queensland did take the lead in relation to the abolition of the death penalty. It is often said by those who live elsewhere that Queensland has been backward. In fact, Queensland was very progressive in that regard and took the attitude that we needed to abolish the death penalty before anyone else; it was abolished in 1922. As the member for Moreton said, Ronald Ryan was only executed in 1967, certainly in the lifetime of many people who sit in this chamber. So we are not talking about ancient history; we are only talking about a generation ago when the last person was executed in Australia. A few more than 100 people have been executed for criminal offences throughout the history of the Commonwealth of Australia. That really is a tragedy.
It is important that we listen to the arguments of those people who are supportive of our current stance. Too often people will come up to us—I have certainly had them at mobile offices that I have conducted in my electorate—and advocate for the return of the death penalty. The death penalty is brutal. Anyone who has practised in law knows that judges and juries can fall into error. We know that there is no chance that if someone is killed by lethal injection, hanging, shooting or some other form of device as a result of a conviction that they will ever be rehabilitated. There will be no opportunity for reformation and repentance. Contrition, if ever expressed, cannot be acted on, and they can never be a useful member of our society and community again. I would argue, as many have, that it is certainly not an effective deterrent. That has not been the experience here, and it has not been the experience in places where the death penalty has been used frequently, such as the United States of America.
I mentioned earlier in relation to the prohibition on torture that we had been a party to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Torture is defined in the convention as an act by which severe pain or suffering is intentionally inflicted upon a person by a public official for certain specified purposes, such as obtaining information or a confession from a person. When a person is charged with an offence or is facing the prospect that they may be charged, it is one of the most difficult times in their lives and their family are worried and concerned. That is not to say that we should not have respect and sympathy for and give assistance to the family of victims; nor should we forget what those victims have suffered. But we have a criminal justice system that presumes people are innocent until proved guilty, and we should never go back to the days of kangaroo courts and Spanish Inquisition-style tactics, which were used just a few centuries ago in respect of the execution of people or the extraction of confessions or admissions. Many times, those types of torture implements and instruments were used not just upon the alleged perpetrator of the criminal offence but upon witnesses as well.
The Commonwealth Crimes (Torture) Act 1988 currently criminalises acts of torture committed outside of Australia, but only when committed by Australian citizens or other persons who are subsequently present in Australia. So there is a gap in the legislation. Also, acts of torture that are committed anywhere in the world during the course of an armed conflict or as a crime against humanity are currently criminalised under the Criminal Code. The UN Committee against Torture have been critical of us—I have read what they had to say—and other nations which have not enshrined in legislation a specific criminal offence relating to torture, and the UN has called on other nations to do so. That does not mean to say we should blindly do it, but I think it gives us a degree of moral authority if we are going to criticise other countries in relation to human, civil and political rights offences and violations if we ourselves say in our criminal laws that we have specifically prohibited torture as a means of extracting information or confessions from a person. So it is a matter of giving ourselves that kind of moral authority in international relations.
In May 2008 the UN committee I referred to recommended that Australia enact a specific offence of torture at the federal level. It is certainly prohibited at state level and, as I say, there is a gap in our legislation. So the legislation currently before the House is important. The new offence will mean that the Crimes (Torture) Act is otiose and it will have to be repealed in the circumstances.
We as a country, to the credit of both sides of the chamber, have had a long period of opposition to the death penalty. We have, as I said before, been party to the International Covenant on Civil and Political Rights and the second optional protocol in relation to that, aimed at the abolition of the death penalty. It is sad that not all countries throughout the world subscribe to the same viewpoint with respect to the death penalty as we do. We should take every step through the Department of Foreign Affairs and Trade and also through our diplomatic efforts to advocate for the abolition of torture and the death penalty throughout the world. Torture should be criminalised throughout not just the Western world but the Third World and other countries that we trade with, have relations with and deal with daily.
This legislation before the House has support in the community. There has been strong support shown by Amnesty International and the Australian Human Rights Commission. I wish to outline what has been said by both those authoritative bodies with respect to the legislation. The Australian Human Rights Commission welcomed the introduction of the legislation before the House, describing it as ‘a landmark piece of legislation in Australia’s human rights protections’. On 19 November 2009 commission president Cathy Branson QC said that torture in any form is unacceptable and welcomed the introduction of a specific offence of torture in the Commonwealth Criminal Code. Cathy Branson said the following:
This new offence means that torture will be criminalised both within and outside Australia—
effectively closing that gap. She also said:
This legislation demonstrates Australia’s commitment to fully meeting its obligations under the United Nations Convention against Torture.
She also talked about the death penalty and said as follows:
The death penalty will not be able to be reintroduced anywhere in Australia.
She said this, and I think this is very important:
Once Australia becomes a party to the Optional Protocol, we will be required to establish a national system of inspection of all places of detention to prevent the mistreatment of people who are detained.
She also went on to say:
This legislation demonstrates a commitment to preventing some of the most serious breaches of human rights.
Amnesty International has also come out very strongly in supporting and welcoming the proposed legislation, which it says ‘confirms Australia’s opposition to torture and the death penalty’. Amnesty International has said the following:
Amnesty International believes the proposed legislation is another important step towards Australia fully realising its obligations under the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
Amnesty International has described the legislation as:
… a welcome commitment made by Government in 2008 to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
Amnesty International has campaigned extensively on this issue and has made the point that we should be campaigning to outlaw the death penalty throughout the world in law and in practice, which I think is important, because there are many countries throughout the world that take the view that legislation says it. In practice, it does not happen. In fact, in practice often the criminal laws and the rules to protect the criminal justice system and those who come in contact with it are violated in the most heinous and horrible way. Amnesty International has said this, and I will finish with it:
Amnesty International has been working for decades to prohibit the use of torture and other cruel, inhuman and degrading treatment or punishment. Its use is an affront to human dignity and a fundamental breach of human rights.
I could not have put it more eloquently or articulately. It is extremely important legislation that we are dealing with today. It fulfils our obligation. It gives us moral authority and says to the Australian community where we stand and where we on both sides of the House believe Australia should go in the future. I welcome the legislation.
The Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 is just as it appears to be: a bill to make torture a specific offence in the Commonwealth Criminal Code and also to prevent the death penalty from ever being reintroduced in any jurisdiction within the Commonwealth of Australia. I am very pleased to be here supporting this bill today. Both elements of this bill—the torture and killing of another human being—come down to matters of principle. We know that torture takes place. We see the horrendous and horrific pictures beamed through our TVs, the internet and the many media that we have today. We have known this for many, many years.
The stories we hear from refugees who come to this country seeking refuge from these acts of brutality and of systematic brutality perpetrated by many forces—rogues or rogue governments—are enough to shock most of us every time we hear them, even today. We hear of instances of brutality that are inflicted to induce people to communicate all sorts of things, whether they be secrets, information or the betrayal of another human being. We have heard of people being tortured until they betray the confidence of an associate, a colleague or even a member of their family and we have heard of the persecution or execution that can happen as a result of this. We have heard of torture being used as a means of inducing terror and compliance towards a given authority.
For many years, we thought that such practices had been limited to areas and conflict that were removed from our Western sensitivities, practised by powers within countries who never got involved in active participation in the UN or its focus on human rights. We thought it was the tactic of the barbaric, the brutal and people who were nothing like us. The horrors in and around the world that we see every day through the media have changed that perception to an extent, as I said earlier. But nothing could have prepared us, for example, for the events we saw in places like Rwanda and the former republic of Yugoslavia. Previously the tendency of a national leader to engage in torture has always been perceived as evil—and rightly so—as the depths of human potential and even a self-evident rationale to depose that particular leader. I am sure that by far the majority of Australians are disgusted by the horrific act of torture. Whether any person tortured is an Australian citizen or a national of some other country, I would like to think that most of us here in Australia would draw the line at the practice of crushing a person’s body and crushing a person’s mind by inflicting intolerable pain, terror or the systematic loss of self.
Some people may argue that under particular circumstances within the context of a highly emotive hypothetical situation or within an imaginary context through which all their fears and dreads are brought to the fore such tools of persuasion as torture may be needed, that it may be the lesser of two evils and that, while it may be regrettable, it might even be necessary to avoid even greater pain and destruction. This argument receives alarming support. But when one asks, ‘What then is the required level of threat that would legitimise the use of torture?’, it is difficult to anticipate a coherent response. If it is that someone’s interests are more important than the person subjected to the torture, it is a race to the bottom. I do not believe that torture has any positive outcomes for anyone or has any benefit to anyone.
Jane Mayer, a writer for the New Yorker and author of The Dark Side, which was released last year, refers to substantial evidence, including from the US military and the FBI, of torture being one of the least effective methods of gaining intelligence and it being more likely to induce false confessions and misinformation through the fear and pain perpetrated on the victim. It may be that the practice of torture says more about those who perpetrate the act than the conflict in which they are involved, the nature of the threat they may be responding to or the information that they seek. It may be that the practice of torture is simply an opportunity for the sadistic to be brutal to a fellow human being.
The bill also deals with the death penalty. The death penalty, also brutal, may also involve other motives. I suspect it may have an economic motive in some countries—it being cheaper to kill and bury than imprison for decades upon decades. The potential for injustice is quite apparent. The irreversibility of the act is obvious. But, apart from a desire to not want to be in a position where an innocent has been put to the sword, there is the principle as well. The principle is this: it is wrong to take the life of another. It is as simple as that. The act of taking another’s life is perhaps just as low as the horrendous act that took place that precipitated it.
I am also very glad that jurisdictions throughout the Commonwealth of Australia have removed the death penalty from their list of prescribed penalties and that the community has not been increasing the volume of blood on its hands for some time now. I am very pleased to speak here today in support of this bill which will confirm and restate the principle which we have all spoken to all around the world.
Speaking on this bill, my mind goes to what was said just last year on 25 November here in this House. It was White Ribbon Day, which is held by the UN each year to oppose violence towards women. Violence perpetrated by men against women is evidence of the same disrespect for human dignity as the subjects of the bill we are debating here today. Violence, intimidation, physical and emotional abuse—no-one can justify such actions against another human being. No-one can say it is required, that it is for the greater good or that it will produce some good. No-one can say that this violence is not akin to thuggery and pointless brutality perpetrated by the strong against the weak, the armed against the defenceless or the organisation or rogue state against the individual. Brutality and the disrespect of human dignity must be opposed in all manifestations, on every level, in the name of every cause or in defence of even the very principle of which I speak. (Time expired)
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