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