House debates

Monday, 22 February 2010

Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009

Second Reading

12:02 pm

Photo of Melissa ParkeMelissa Parke (Fremantle, Australian Labor Party) Share this | Hansard source

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.

Renowned anti-death penalty campaigner and author of Dead Man Walking and The Death of Innocents, Sister Helen Prejean, noted:

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)


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