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Monday, 22 February 2010
Page: 1350


Mr SLIPPER (5:41 PM) —The Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 is legislation that is supported by both sides of the chamber. It is legislation which, in practice, probably does not have any real effect, because the crime of torture is already a crime under Australia’s laws—particularly state and territory laws—and also, the death penalty does not exist anywhere within the states or territories of Australia. It certainly does not exist at the Commonwealth level.

No one can support torture, and I do note that an international committee against torture recommended that Australia implement a specific offence of torture at the federal level. That recommendation was included in the concluding observations on Australia by the UN Committee Against Torture issued in May 2008. Consequently, to be a good international citizen, this country is implementing that recommendation.

With respect to the death penalty, that is a subject which has occupied a lot of public debate in this country and in other countries around the world. I place on record that I do not support the death penalty, although in the past I have been able to understand how some groups in the community might believe that the death penalty is an appropriate penalty for certain sorts of particularly gross crimes: child murder, maybe murder involving torture and so on. However, I am someone who has always been opposed to abortion, and I am opposed to euthanasia. It occurred to me that to be consistent, if I am opposed to other forms of state sanctioned killing I had also to become very strongly opposed to the death penalty. I see that consistency as being very important. One cannot pick and choose; in my view one cannot, with a sense of intellectual honesty, support state sanctioned killing at one level and not support state sanctioned killing at another level.

I do understand that, particularly after there has been a horrendous crime committed somewhere around the world or in the country, if one did take a plebiscite of the community people would often vote for the death penalty. However, this legislation will mean that the death penalty will not be able to be imposed at state or federal level anywhere in Australia in the future—that is, I suppose, unless this law at some time in the future, after implementation, is actually repealed.

I do have somewhat of a problem with the federal government entering into treaties internationally and then, by virtue of the international obligations resulting from those treaties, acquiring the competence to legislate domestically in relation to areas where, under our Australian Constitution, the Commonwealth has no right to legislate. It is one way, I suppose, of tearing up the Constitution for the federal government to enter into a treaty and then have an international obligation which must be implemented and which gives us the legislative capacity to implement that international legislation through a law of the Australian parliament. I do not know that this particular bill has been controversial. I have not heard the states object to its passage. But one who took the view that it was wrong for the Commonwealth to acquire extra legislative competence by entering into an international treaty might be concerned, if not with the result of this legislation certainly with the mechanism which gives us the constitutional authority to pass this law through the Australian parliament.

The honourable member for Shortland, who spoke before me, referred to the fate being faced by a number of Australians who are presently incarcerated in overseas prisons. It really is important that Australians who travel to other countries recognise that, even though the death penalty will be outlawed in this country, the laws of this country with respect to the death penalty do not have some sort of extraterritorial effect in overseas countries. If we travel to other countries, we have to be prepared to observe the laws of those countries even if we do not agree with the laws of those countries, and we have to accept that each individual jurisdiction, each individual nation state, does have the right to bring in its own penalties for certain criminal offences.

All Australians would know that there are many countries throughout the globe which do have the death penalty on their respective statute books. It is not reasonable to expect that Australians who are convicted of the death penalty should automatically have the death penalty commuted to something else simply because they are Australians. I suppose if one has the privilege of travelling to other countries, one has to understand what the laws of those other countries are, and we just cannot expect that, because we are Australians, those laws do not apply to us. Having said that—and I am pleased to see the honourable the Attorney-General at the table—I do support recommendations by successive Australian governments for clemency and leniency when Australians find themselves in the positions in which some have found themselves in recent years. I think it is important for us as members of parliament to counsel Australians, particularly young Australians, who travel abroad, as many do—and it is a wonderful experience—that when they go to those other countries, they are subject to the laws of those countries no matter how horrendous we as Australians might view some of the penalties imposed by the laws of other nations.

This is not controversial legislation in the community. I do not think one could find anyone in our society who would support torture. I find it disturbing that there are countries abroad where there is state-sanctioned torture, and I think that anything that we can do as a nation to reduce and eliminate this is very much a step in the right direction. I do not intend to take the full 20 minutes available to me, but I want to reiterate my support for the principles contained in this bill, although I do have this lingering concern about whether, if we are going to have a constitutional compact, it is appropriate for the Commonwealth to acquire extra legislative competence by going through the mechanism of signing and ratifying an international treaty which then gives the government of Australia the obligation to bring the effect of that treaty into domestic law. The Attorney would be pleased to know that I am not accusing this government of being the first government to do that. I think it is something that has grown up over the years. I am not convinced that it is a good thing, but, at least in the case of this bill, I suppose one could say that it does remove forever the prospect of the reintroduction of the death penalty in any jurisdiction within this country. I commend the bill to the House.