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Joint Standing Committee on Foreign Affairs, Defence and Trade - 20/11/2015 - Australia's advocacy for the abolition of the death penalty

HEINRICH, Mr Ronald Keith, AM, Executive Committee Member, Commonwealth Lawyers Association


CHAIR: I welcome the representative from the Commonwealth Lawyers Association. I would like to advise you that the protections of parliamentary privilege which normally attach to witnesses giving evidence to a committee do not extend beyond our jurisdiction. That is interesting—I do not know how that is relevant to you—

Secretary interjecting—

CHAIR: Oh, that is your fault, is it? Anyway, I have to remind you not to give false or misleading evidence. That can be regarded as contempt, but you are protected by parliamentary privilege.

These are public proceedings, and although the subcommittee will consider requests to have evidence heard in camera you would need to object and state the ground for that objection, and we would then consider it. We ask witnesses to refrain from naming individuals associated with current cases to protect privacy.

Now, you are very welcome to make an opening statement, thank you.

Mr Heinrich : I am only going to make a very short opening statement. Firstly, I am a former president of the Law Council of Australia and a former president of the Commonwealth Lawyers Association, and I am currently a member of the Executive Committee of the Commonwealth Lawyers Association and a director of the Commonwealth Lawyers Association. Obviously, we made a submission to this committee. The point of our submission really was by way of providing resource information.

The Commonwealth Lawyers Association is the peak law association in the Commonwealth for bar counsels, law societies and law associations. We have a council that meets four times a year, and that council decides our policy. When I first became a member of the council way back in 2003 we did not have any policy on the death penalty. In fact, there would have been no hope of having a policy on the death penalty because it is fair to say that at that time more than a fair majority of the council supported the death penalty. That was not surprising given the Commonwealth countries we had as members: we had African members, West Indian members and members from other developing: Commonwealth countries where the death penalty was part of the statute law.

Before I became president, as a result of a couple of cases that are mentioned in the papers where we actually issued ad hoc statements—we had a lot of problems getting approval to issue those statements because of our membership—I decided that we needed to start a conversation about the death penalty within the Commonwealth. As a result of that, we had a paper prepared for the Jamaica conference by Professor Hood. We have provided that paper to you. That was really the start of the conversation. If we had tried at the Jamaica conference in 2008 to construct a policy, it would not have succeeded. There were many people on our council still supportive of the death penalty; however, I made it very clear that I just wanted to start this conversation within the Commonwealth. We then developed a discussion paper and got another paper prepared for us. In the papers that we have given you, there is a paper by Professor Schabas. We had a previous paper, but I gave you the more up-to-date paper for the purposes of the submission. He did a paper for our conference in Hong Kong in 2009. That is where the Commonwealth Lawyers Association reached a decision on a policy to oppose the death penalty.

One of the points I did want to make to you today is that what became very clear in the early part of the conversation was that there are vested interests, not least of which is the legal profession, who continue to support the death penalty because the appellate lawyers who do this work make quite a lot of money out of appeals. This was something that became quite clear during our discussion, particularly with those countries that still have a right of appeal to the Privy Council. So there were not only lawyers in developing countries who still had the right to appeal the Privy Council but there were also firms in London that had an interest in the death penalty appeals continuing. That was purely self-interest. Once we became aware of that, we started to address that issue. We addressed it successfully because in Hong Kong, when we put it to the vote, the vote of some 22 council members was unanimously in favour of adopting a policy opposed to the death penalty.

What we learnt from that is something that may be helpful to you in your deliberations—that is, it really is important not to go out there and bang on doors and make a lot of noise; what is important is to gather information and have research done that can fully inform people about the basic facts—who has a death penalty, who does not, what are the reasons for it in their particular countries—and also just get the conversation going with people. It requires patience and persistence. It is what I call the dropping water on a stone policy. It does not happen overnight. In fact, I was very surprised in Hong Kong that we managed to get the policy up. It just sort of happened. The meeting that discussed the policy and looked at the discussion papers and the other papers we had on the day went all day. It was a very informed discussion because there was a lot of information before the council. I think it is fair to say that, if we had taken a vote before we took the lunchbreak, it would not have got up. But, as the discussion went on during the day, people changed their minds, and it was a very pleasing outcome.

That is all I really wish to say. We became aware of this committee's inquiry at a late stage. The papers we have provided to you are a little dated. There has been progress. In fact, the Commonwealth Lawyers Association is currently considering having another conference specifically on the death penalty, in the US next year.

CHAIR: In the United States—the Commonwealth?

Senator McEWEN: Which state?

Mr Heinrich : Probably at Harvard University.

CHAIR: I am interested—the United States and the Commonwealth?

Mr Heinrich : They are not part of the Commonwealth, but they sometimes act like they are. There is a lot of interest from US lawyers in the Commonwealth Lawyers Association and they do attend our conferences regularly. We have done it quite deliberately because of the US position generally. It is in the planning stages. It is yet to be confirmed that it is going to be held and where it is going to be held. But it is under serious discussion.

CHAIR: I thank you very much for the paper you have prepared and the papers you have given us. Any further updating would obviously be very welcome. I very much appreciate your interest. I was interested in some of the data that suggested the Commonwealth was not quite as bad as the rest.

Mr Heinrich : It is not good.

CHAIR: It was interesting. I participated in a conference of LAWASIA here in Sydney a couple of weeks ago. It struck me that, particularly given the participation of judicial officers, it would be an interesting forum in which to have these sorts of discussions as well. Is there any reason why that might or might not occur?

Mr Heinrich : I am familiar with LAWASIA. I have attended a number of their conferences over the years. Some of the countries that are in LAWASIA obviously have a strong view about upholding the death penalty, but certainly from a regional point of view it would be a useful forum. I am no longer associated with the Law Council of Australia, but the Law Council of Australia adopted a policy opposed to the death penalty prior to the Commonwealth Lawyers Association.

CHAIR: They appeared before us in Melbourne earlier in the week.

Mr Heinrich : I do not know what their current view is, but certainly they are very involved in LAWASIA. If they were so minded, they could easily put together the resources to commence a discussion.

CHAIR: I have become interested in this question of the economics, not just because the Indonesians suggest that it has an impact on the economy but it was suggested that in the United States the reasons that some states were moving to abolish it was that it is cheaper to keep people in prison for life than to contest the matters relating to people who are subjected to the death penalty and to exhaust all of the avenues of appeal that might be available to them. I was interested, therefore, in your observation about the members of the profession who seem to have an interest in these matters. Is it more expensive and do people get better rewarded for being involved in a case that may carry a death penalty as against one that may commit somebody to life imprisonment?

Mr Heinrich : I think the real point is that, if the sentence is going to be life imprisonment, you would not be getting the appeals that come about.


Mr Heinrich : When someone is faced with the death penalty, the lawyers and the people in the family who are all very involved are very keen to try and have it commuted or overturned.

CHAIR: That may suggest to me that admirable members of the legal profession would be giving pro bono advice.

Mr Heinrich : That does occur but not always. There are certainly many members of the legal profession who do provide significant pro bono advice and acting matters. My observation, really, related to the fact that it became fairly clear that certain members had a vested interest, and they were actually quite open about it.

CHAIR: Extraordinary.

Mr Heinrich : It was a big surprise to me.

Senator McEWEN: We have been trying to ascertain whether CHOGM ever deals with the death penalty. I am curious whether you know.

Mr Heinrich : No, I have had personal experience. In the Law Ministers Meeting here in Sydney we had a paper based on our work which we put up to them for discussion. There were certain members who attended representing countries, particularly from Asia, who were very opposed to any discussion going anywhere on this. So, in effect, as is typical at CHOGM meetings or Law Ministers Meetings, the discussion just gets sidelined. There were very polite, with the exception of one minister from one of the countries whom I will not name who took a very aggressive attitude towards our presentation. But it went nowhere other than we being able to make a presentation.

Senator McEWEN: Was that the first and only time that there has been a presentation at CHOGM?

Mr Heinrich : From the Commonwealth Lawyers Association, yes. That was a few years ago. I think it was about 2011 or shortly after; it might have been 2012—when the senior law officers meeting was held in Sydney.

Senator McEWEN: Are you planning to do the same again?

Mr Heinrich : We have not given up on trying to do things through CHOGM or the Law Ministers Meeting. We get extremely frustrated not only with the politics of it, which plays a big part in it because there are a lot of politics; we also get frustrated with the Commonwealth secretariat, who, under the previous Commonwealth secretary, a very urbane and nice man, adopted a typically political or diplomatic attitude to everything. Whilst everything was listened to not much happened.

Mr GRIFFIN: You mentioned to the process that you through with the Commonwealth Lawyers Association adopting a position opposed to the death penalty and that part of that was a research paper and part of it was the discussion that occurred around the issues at that meeting. You mentioned that if you had had a vote early on in the meeting that it would have gone down, but it ended up being unanimous. What were the key arguments that came through that process that actually led to people changing their minds?

Mr Heinrich : Part of it was the strategy that I and other senior members of the organisation had thought about before we had the meeting. That was, firstly, we developed a discussion paper, which you have a copy of. We had various other papers. You have Professor Hood's paper. We had an earlier paper from Schabas, and there were other papers. We prepared for the meeting. We knew we were facing opposition. The way I conducted the meeting—and I was president at the time and chair—was that we went around the council table and I made sure that there was one speaker for and one speaker against approach, at least in the morning, so that all those who were opposed could get out on the table what they wanted to say. They were listened to very politely and then, as the morning progressed, and particularly in the afternoon, that is when the people I had chosen to speak on the topic, in a very informed way, spoke. And they spoke quite powerfully and quite eloquently. And, as you would appreciate, we have some very senior and very experienced advocates on that council. There is no doubt in my mind that the advocacy of the people that were speaking in favour, with the work they had done—a lot of it was just based on facts and what I regard as logical argument without actually trying to force anything down anybody's throats. And it was done in a such way that by the afternoon tea-break I could see that people who had a view were changing. We went out and we had an informal discussion outside the meeting, and I could tell from those informal discussions that people had changed their position. So we went back and we went for another couple of hours. It went until about six o'clock, and by that stage everyone had had a good say. Everybody spoke. There was nobody who did not speak, which is unusual. Normally, only half a dozen people would speak, but this was obviously a big topic. Then I asked the meeting if there was anybody else who wanted to say anything further. They did not, and we took a vote, and, much to my surprise, it was unanimous.

I would not have ever contemplated the vote being unanimous. I was sort of hoping for a 50 per cent vote. A lot of it went down to the work of our secretary-general at the time, Claire Martin, who was a very able lady steeped in policy. She was really steeped in policy, and her degrees were all about public policy and how you develop public policy. She had done a lot of work behind the scenes speaking to people. And, unfortunately, we do not have that resource anymore because she has retired, but there are other people carrying on the fight.

And, as I say, this conference may come to pass in the US. We are engaged once again in a conversation with the Commonwealth secretariat as to—or I understand we are about to be engaged—how we might take this forward again. We have the opportunity at the senior law ministers' meeting at CHOGM to bring topics forward. As you probably know, however, the country chairing that decides what is on the agenda, and in fact a topic can be vetoed, and we have had topics vetoed where it is just not put on the agenda.

CHAIR: Who is next chairing it?

Mr Heinrich : Isn't CHOGM coming to Australia next?

Senator McEWEN: Maybe.

CHAIR: Didn't we have something in Western Australia?

Senator McEWEN: Yes. That was a while ago.

Mr Heinrich : That was a while ago. Yes we did. CHOGM was in Western Australia, and the law ministers' meeting prior to that or after that was here.

CHAIR: I thought you were maybe going to tell me it was in Bangladesh, Pakistan or Singapore.

Mr Heinrich : A few years ago it was in Sri Lanka, and as you know there was a lot of controversy about that and it was very difficult to get anything—

Mr GRIFFIN: That was immediately after Western Australia from memory.

Mr Heinrich : Yes, and that was from the Commonwealth Lawyers Association. That was pretty much a disaster.

Mr GRIFFIN: I am particularly interested in terms of the advocacy. In a group such as that obviously there would be some very eloquent speakers, and there would often be legal principles espoused with a good deal of feeling, but, as the chair mentioned, economic arguments have come up in some of the research that has been done. I am particularly interested in terms of whether there are particular arguments that seem to sway and, on from that, if there were—you mentioned that the level of research that had been done was an important part of presenting the arguments. I am interested to know whether in fact there are gaps in research which may relate to particular countries or particular regions or particular impacts that ought to be something that is addressed.

Mr Heinrich : The first thing I would say is that the economic argument was not brought up in our discussions other than becoming aware that there was vested interest amongst certain lawyer groups. And that really first came to view in the Jamaica conference, and we did not seek to deal with that front-on at all. We just accepted that that was the fact and that we would have to try to persuade.

In terms of the research, at the time there was not a lot of research that was available to us. That is why we got Professor Hood to speak in Jamaica and why we subsequently got Schabas to do his papers for us. I think we are thinking of engaging him again for the US. But both those papers, if you read them, have a deal of just basic information in them which you need to know—which countries advocate for the death penalty, which are against it and whatever. I am aware that a lot more research has been done since 2011, when we last looked at this issue in a serious way.

I had also heard about this suggestion that there was an economic argument in relation to whether it is cheaper not to have the death penalty because of appeals et cetera, as opposed to keeping people in prison, but I have not seen any research on that at all.

I really have not looked at this topic seriously since about 2011. When I became aware of your terms of reference, I recalled that we had these papers. We had our discussions paper, and I thought it would be worthwhile sending it to you to have a look at. But I think certainly more work could be done along the lines of the sort of work we were doing. Certainly we could have this stuff updated.

The Commonwealth Lawyers Association is particularly concerned at the moment with LGBT rights. We are concerned that there are countries, African countries in particular, that have the death penalty for homosexuals et cetera. That is a separate issue, and it is not relevant in a direct sense to this inquiry, but that is of particular concern to us, and we are doing a lot of work in that area at the moment. In fact, we have a number of cases going, one in South America somewhere—British Guiana, I think it is—which seems to have been sidelined completely, but we are putting an amicus brief in there. The CLA has just, jointly with the Human Dignity Trust, had a very well researched paper done on LGBT rights, not directly relevant to this.

Senator McEWEN: Actually, CHOGM is in Vanuatu in 2017.

CHAIR: Thank you. Vanuatu may not be—

Senator McEWEN: And there is a Vanuatuan MP who has called for—and I thank the secretariat for pointing this out to me—witchcraft to be a crime punishable by death.

Mr Heinrich : That is not unusual.

CHAIR: That may give them reason to include the death penalty on the CHOGM agenda.

Senator McEWEN: Correct.

CHAIR: I focus on the United States because I think that they are a friend, and if you cannot ask your friends it is pretty hard to ask anybody else. Secondly, I think that, in international fora, to have the United States of America as a country that executes people for offences makes it very, very difficult to get the argument up in so many other places. They are held out to be an exemplar of appropriate standards. Have you got any ideas about how you might be able to engage the United States with a view to being able to take a more prominent role for abolition?

Mr Heinrich : One of the difficulties there, of course, is that you have all the states of the United States, and it is a very diverse set of laws or parliaments that you have to deal with effectively. That is a serious challenge in itself.

I do not know what the American Bar Association view is in relation to the death penalty. They are a very powerful and influential body. If you have ever been to one of their conferences, they regularly get very senior members of congress and others along. I remember I met Obama twice at American Bar Association conferences. They are an interesting body. I remember that, when we had the Guantanamo Bay issue, they did not speak about it at all for several years and then ultimately came out, suggesting that certain things were not all that well. Just off the cuff, that would be one body that it would be worth perhaps commencing a dialogue with to see what their view is.

They have some very distinguished lawyers in their membership. Their conference is extraordinarily large. They regularly get between 10,000 and 20,000 lawyers along. You might say that is a bit hard to contemplate, but that is what happens. They are extraordinarily well organised conferences. They have extraordinarily impressive speakers there. One of the contenders for the presidency at the moment, Ms Clinton, spoke—I have seen her speak there two or three times over the years. She is a very big supporter of the American Bar Association. I just do not know what their view might be, but they would certainly be a body worth engaging with.

CHAIR: I am sure my secretariat will find out quickly what their views might be. We will have a look at that.

Mr Heinrich : Their starting position often is to be opposed to things, but we found through the Law Council of Australia that they are actually a good body to deal with.

CHAIR: Yes. I must say that, if you want to get change in the United States—this is my mischievous sense of humour again—you would introduce the death penalty for holding arms, and the Rifle Association would probably take up the campaign!

Mr Heinrich : You are probably right!

CHAIR: I am glad everybody is laughing! I do not know how they will record that. Ron, thank you very much for coming. It is very good of you. We do very much appreciate that, and the update on behalf of the Commonwealth Lawyers Association was very helpful.

Mr Heinrich : Thank you for the opportunity. If you would like us to help in any way, we would, with our limited resources, try to assist you.

CHAIR: Thank you. I should just invite you, if you have been asked for any further information, to send it to the secretariat. A copy of the transcript of the evidence that you have given will be submitted to you for corrections if necessary.

Mr Heinrich : Thank you.

CHAIR: Thank you.