Monday, 22 February 2010
Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009
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)