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