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Thursday, 11 February 2010
Page: 1193

Mr HAWKE (1:50 PM) —It is a great privilege to speak in support of the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009. Firstly, I want to support the comments of the member for Werriwa in defence of Australian citizens who are found in positions overseas where the death penalty is still law. It is something that perplexes Australians of all persuasions that many of our young citizens can be committed to death in other countries. This country’s campaign for the continued abolition of the death penalty is a worthy one and something we should pursue in this place.

This bill amends the Criminal Code Act 1995 and the Death Penalty Abolition Act 1973, and will enact in the Commonwealth Criminal Code a specific Commonwealth torture offence, which will operate concurrently with the existing offences in state and territory criminal laws. The bill also abolishes the death penalty throughout Australia by amending the Death Penalty Abolition Act to apply to state criminal laws. I support both of these intentions as worthy intentions of this parliament.

I think there are many conditions under which the state may seek to take the life of one of its citizens. However, I think that all of those are fraught with danger and imperfect in their application and in their definition. While we are not able to devise a system where we can be certain about the circumstances or nature of a person’s wrongdoings, we ought not to pursue the ultimate penalty that the state can inflict. I do accept that the right to life is a basic human right, something that Australia is committed to through its United Nations obligations, and it is something that we have to work through our legislative program to ensure that we are committing to those United Nations commitments.

Since 1989 Australia has been party to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Amongst some other obligations, this convention requires us to ensure that all acts of torture or offences under domestic criminal law are banned. Torture is something we can all agree on. It is defined in this convention as any act by which severe pain or suffering is intentionally inflicted upon a person by a public official for certain specified purposes such as obtaining information or confession from the person. Once again, when you consider the role of the state and what kind of state we want to have active in our country, it is hard to imagine a circumstance where the intentional infliction of torture upon any person is something that we would accept or indeed condone.

The Crimes (Torture) Act 1988 currently criminalises acts of torture committed outside Australia, only when committed, of course, by Australian citizens or other persons who are subsequently present in Australia. Acts of torture that are committed anywhere in the world during the course of an armed conflict or as a crime against humanity are currently criminalised under the Criminal Code Act 1995. So torture prohibition I think is perhaps the easier issue contained within this bill, something that I am sure many within this place would agree with easily.

Abolition of the death penalty in all of the states is something that I think would be considered to be more controversial. There are circumstances where I am reluctant to use the Commonwealth’s power to override states’ rights in relation to many issues. However, I think in this case, considering our United Nations obligations, that this is a worthy objective and something we ought to pursue. We have a longstanding policy as a nation of opposition to the death penalty. We are party to both the International Covenant on Civil and Political Rights and the second optional protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.

Listening to the member for Werriwa in relation to some of our citizens who are currently interned in prisons overseas—such as in Bali, Indonesia—for significant crimes who are facing the death penalty, I think it is a worthy signal that we should send to our neighbours that we as a nation do not accept the right of the state to take the life of a citizen.

It is also interesting to note that we have faced this challenge over all of Australia’s history. In the Sydney Morning Herald this week a petition has been put forward for the pardon of Harry ‘Breaker’ Morant and Peter Hancock, Australian soldiers executed by the British for the murder of prisoners in the dying days of the Boer War. Indeed, this case is instructive in relation to this bill because under military law the British executed two of our citizens without reference to Australia. All Australians took a strong view, not necessarily on the circumstances but on the way this was handled by a foreign power with regard to two of our citizens. The death penalty was applied by the British government at the time without reference to the Australian government. This forever changed the landscape in relation to how we allow foreign powers to deal with our citizens, and of course since then there has been no incidence of that occurring. We would never allow a foreign power today to discipline any of our citizens in that way in a military context.

However, that is only one of the concerns that come up in relation to the abolition of the death penalty. You need to consider the youth and the innocence of many of the people who commit crimes in relation to drugs, and we have seen many incidents in recent years of people doing things that are wrong in relation to the peddling of drugs in foreign countries. Some of these people are 17, 18, 19 or 20 years old, and for those people to be sentenced to death in another country for these kinds of crimes is something that is, in my view and the view of many here, absolutely disproportionate to the crime. In enacting law we ought to consider very carefully that the punishment should fit the crime and be a fitting and understandable infliction on a person who does commit a crime. I think what has happened in many of these cases is that the punishment does not fit the crime. How can we send a signal to these countries? I think this bill is a worthy way of doing that and sending a strong signal that the abolition of the death penalty is something that our nation supports. The prohibition of torture and the abolition of the death penalty are certainly worthy objectives, and I commend this bill to the House.