The Death Penalty - a matter of principle

The Hon. John von Doussa QC, President,

Human Rights and Equal Opportunity Commission (HREOC)

United Nations Association of Australia

Ming's Palace, Adelaide

22 October 2006

The Death Penalty - a matter of principle

I would like to acknowledge the Kaurna people, the original custodians of the land on which we meet tonight.

The death penalty in Australia

It is almost 40 years since the last man was hanged in Australia. Today, the death penalty has been abolished in every Australian jurisdiction. Opposition to the death penalty attracts bi-partisan political support. Yet in a region where many of our closest neighbours still maintain the death penalty, I believe Australia can - and should - take a stronger stand against state sanctioned execution.

There are many convincing arguments against the death penalty. Our Prime Minister opposes the death penalty for 'pragmatic reasons' because 'the law makes mistakes'. 1 There is, after all, little comfort for families in a finding of miscarriage of justice after the funeral. The rationale that the death penalty acts as a deterrent has been discredited and dismissed. In fact, the chilling response of one of the Bali Bombers' to his death sentence - 'it will be a martyr's death and that is what I am looking for'2 reminds us that, for terrorists, the prospect of the death penalty may even serve as an incentive.

Ultimately, I believe, the most compelling argument against the death penalty is simply that we should respect the sanctity of human life. The belief that we should respect the inherent dignity and value of human life is the foundation of all human rights and reflects a deeply held moral vision of the type of world we want to live in.3 To quote the preamble of the Second Optional Protocol to the Covenant on Civil and Political Rights the abolition of the death penalty 'contributes to enhancement of human dignity and progressive development of human rights'.4

Justice Michael Kirby has written that 'the death penalty brutalises the State that carries it out. Public servants must prepare the messy business of the termination of human life [the death penalty] is a left over from an earlier and more barbaric time'.5 In Australia, there was a collective flinch, when the hangman for Nguyen Tuong Van (the young Australian man executed in Singapore) described how doomed men 'struggle like chickens, like fish out of the water'.6

We are lucky then, as Justice Kirby observes, that 'we have set ourselves upon a path to a higher form of civilisation'. Yet recent events - the fate of Nguyen Tuong Van and the news that members of the 'Bali nine' will face execution - confirms that even though Australia is an abolitionist country, the issue of the death penalty still concerns Australians, and, perhaps most importantly, the Australian Government.

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?

Australia's international obligations

By ratifying the Second Optional Protocol to the Covenant on Civil and Political Rights (ICCPR), aiming at the abolition of the Death Penalty Australia has committed itself to opposing the death penalty.

While the ICCPR recognises the right to life as a fundamental and non-derogable right, international human rights law does not require countries that retain the death penalty to abolish it, although it severely restricts its use.7

Countries which have not yet abolished the death penalty can only impose a death sentence following the final judgment of a competent court and only if a right to amnesty, pardon or commutation exist.8 The imposition of a mandatory death penalty, which is retained by many of Australia's close neighbours, is a breach of the ICCPR.

However, the obligations of countries that have abolished the death penalty and ratified the Second Optional Protocol are much more stringent.

As a signatory to the 2nd Optional Protocol Australia can not reintroduce the death penalty and must ensure that no one within Australia's jurisdiction is executed.9 Crucially, the United Nations Human Rights Committee has held that 'countries that have abolished the death penalty, [have] an obligation not to expose a person to the real risk of its application'.10

Protecting Australian citizens from the death penalty

Australia's obligation to protect individuals within its jurisdiction from the application of the death penalty is not as straight forward as simply abolishing the death penalty in all Australian jurisdictions.

In a region where many of our nearest neighbours maintain the mandatory death penalty for a wide range of offences it is inevitable that occasionally Australians will find themselves on death row. And, in rare circumstances, Australians may find themselves facing the death penalty in a foreign country as a result of the actions of Australia.

There has, for example, been considerable media coverage about the question of whether or not the actions of the Australian Federal Police exposed members of the so-called 'Bali Nine' to the risk of the death penalty.

This raises the issue of how Australia should respond to a request for assistance in criminal investigations and prosecutions when providing assistance may expose a person to the risk of the death penalty.

There are two key ways in which Australia can provide a foreign country with information about a criminal investigation or prosecution.

The first way is by Mutual Assistance. Mutual Assistance is a more formal process whereby Governments can ask other Governments for assistance in criminal investigation and prosecutions.

The second way is by agency to agency assistance. Under agency to agency assistance - which includes police to police assistance - Australian law enforcement agencies can share information about criminal investigations with their overseas counterparts.

Mutual Assistance

Currently, section 8(1A) of the Mutual Assistance Act provides that a request for mutual assistance must be refused if the request relates to the prosecution or punishment of an offence where the death penalty may be imposed unless the Attorney-General believes there are 'special circumstances' which mean that assistance should be granted.11

Section 8(1B) provides a request for mutual assistance may be refused request if the Attorney believes that granting the request may result in the death penalty and, after considering the interests of international criminal co-operation, is of the opinion that in the circumstances, the request should not be granted.

I am concerned that section 8(1A) and 8(1B) of the Mutual Assistance Act do not take a strong enough stance to prevent a person being exposed to the death penalty as a result of assistance provided by Australia. While the Mutual Assistance Act offers some protection, this protection is undermined by the fact that the Act does not provide for the mandatory refusal of a request for mutual assistance in relation to an investigation which may expose a person to the risk of the death penalty.

Consistent with Australia's international obligations12 and bipartisan opposition to the death penalty, I consider a request for mutual assistance should be refused if granting a request in relation to the investigation, prosecution or punishment of an offence may result in the death penalty being imposed in a foreign country unless the country undertakes not to impose or carry out the death penalty.

However, while inserting a provision like this into the Mutual Assistance Act would better reflect Australia's opposition to the death penalty, it would not resolve the serious problem of inconsistency between Australia's mutual assistance arrangements and our agency-to-agency assistance arrangements.

Agency to Agency Assistance

Currently, the commitment to the abolition of the death penalty reflected in section 8(1A) and, to a lesser extent, section 8 (1B) of the Mutual Assistance Act is undermined by the approach to police to police assistance in investigations which may result in the death penalty. This is because, in accordance with the Australia Federal Police (AFP) Practical Guide on International Police to Police Assistance in Death Penalty Charge Situations, the AFP can assist foreign countries on a police-to police basis where no charges have been laid, regardless of whether or not the requesting country is investigating offences that attract the death penalty.13

In Rush v Commissioner of Police JusticeFinn rejected an application offour members of the 'Bali Nine' for a preliminary discovery order against the Australian Federal Police on the basis that the applicants had failed to identify a potential cause of action against the AFP for exposing them to the death penalty. Finn J expressly rejecting the applicants' argument that the powers provided by the Australian Federal Police Act 1979 (Cth) should be construed restrictively in the context of the Death Penalty Abolition Act 1973, the Mutual Assistance Act, Australian Government policy opposing the death penalty and Australia's signing of the Second Optional Protocol.14

The decision in Rush v Commissioner of Police confirms that the Australia Federal Police can lawfully provide agency to agency assistance in the investigation of crime, regardless of whether or not the assistance may expose individuals in Australia's jurisdiction to the death penalty. However, in delivering his judgment, Finn J observed:

[T]here is 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.15

Australia's approach to international cooperation in criminal justice matters should always reflect Australia's commitment to the abolition of the death penalty. Currently there is a clear inconsistency between the way Australia's mutual assistance arrangements and agency-to-agency assistance arrangements address death penalty charge situations.

While it is legitimate under Australian law to provide agency-to-agency assistance that may expose a person to the risk of the death penalty in a foreign country, to do so could arguably breach Australia's obligations under the International Covenant of Civil and Political Rights and the 2nd Optional Protocol and undermine Australia's principled opposition to the death penalty.

There is a clear need to ensure that Australia's opposition to the death penalty is reflected in every aspect of Australia's approach to cooperation in international criminal justice matters. This does not mean that Australia will be unable to provide assistance in matters where there is a risk that the death penalty will be imposed, it simply means the Australia's assistance will always be conditional on a guarantee from the requesting country that they will not impose or carry out the death penalty.

Changing public attitudes to the death penalty

So far I have focused on Australia's approach to the death penalty in the arena of international law enforcement. And while one would like to think that 40 years after the hanging of Ronald Ryan, and well over a decade since Australia ratified the Second Option Protocol of the ICCPR, there would no longer be significant support for the death penalty, there are concerning signs that public support for the death penalty is growing.

Polls indicate that many people's opposition to the death penalty is not a matter of principle, but dependent on where the death sentence is imposed, what crime is being punished and the level of public sympathy for those convicted. For example, despite significant sympathy for Nguyen Tuong Van a Ray Morgan poll commissioned after his death found that:

Despite the majority of Australians being opposed to the death penalty for those convicted of murder, a majority (52 percent, up 5 % [from a poll taken before his execution] now agree that the death sentence should have been imposed on [Nguyen Tuong Van ].16

Some longstanding opponents to the death penalty have in recent times expressed support for the death penalty for terrorist acts. After the Bali bombers were sentenced to death, political leaders, who have previously opposed the death penalty, remained silent or applauded the Indonesian Court's decision to sentence the men to death. It was, unsurprisingly, a popular decision - a Ray Morgan poll found 77 per cent of Australians thought the death penalty should be carried out on Amrozi.17

In a different context, a poll conducted by the Bulletin on 16-21 February this year and published under the by line 'Swinging voters: It's bad news for the Bali nine ' revealed that 49.1% of the respondents were in favour of the reintroduction of the death penalty in Australia, and only 46.8% were against it. 53.6% of respondents agreed with the use of the death penalty overseas. Only 41.7 % of respondents did not believe in the death penalty anywhere. 18

A question of leadership

I believe Australia should be steadfast in its opposition to the use of the death penalty in any country in any circumstances. Terrorism is a heinous crime and I understand why many people believe convicted terrorists deserve to die. However, we must resist the temptation to revert to the 'eye for an eye' mentality, otherwise, as the saying goes 'we all end up blind'.

As a matter of practicality terrorists may perceive the prospect of the death penalty as an invitation to martyrdom. As a matter of principle, opposition to the death penalty is not about the fact that the actions of criminals disrespect the sanctity to life, it is about the State respecting the sanctity of life.

Australia's opposition to the death penalty should be clear and consistent, regardless of the crime, regardless of the country, regardless of the citizenship of the convicted. In a regional context, opposing the death penalty for some crimes but not for others, for some criminals but not our own citizens, opens Australia to charges of hypocrisy and undermines our commitment to the universal abolition of the death penalty.

In a region where many of Australia's neighbours still impose the death penalty, Australia has the opportunity to take a leadership stance on the road towards the universal abolition of the death penalty.