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Monday, 22 February 2010
Page: 1344


Mr MURPHY (5:08 PM) —I applaud the member for Isaacs’ contribution and other members’ contributions in this very important debate. I too rise to speak in support of the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009. This legislation ensures that Australia continues to combat torture and reinforces our strong desire to support moves to abolish capital punishment throughout the world. This legislation acts as a springboard from which we as a nation can lead international efforts to speak out against torture and the death penalty.

As you are aware, Mr Deputy Speaker, Australia is a party to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Consequently we have an international obligation to ensure that all acts of torture are offences under domestic criminal law. Presently acts falling within the convention’s definition are offences under state and territory criminal laws. However, in May 2008 the United Nations Committee Against Torture, in its concluding observations on Australia, expressed concern that Australia does not have a specific torture offence in the Commonwealth Criminal Code. The report recommended that Australia legislate to:

… ensure that torture is adequately defined and specifically criminalized both at the Federal, States and Territories levels, in accordance with article 1 of the Convention.

As you know, Mr Deputy Speaker, the Rudd government takes Australia’s responsibilities under this convention very seriously. That is why we are including the new offence of torture in the Criminal Code to criminalise acts of torture committed both within and outside Australia. I believe that by enacting a new offence of torture we are signalling to the rest of the world that we condemn this shameful, brutal and barbaric practice. I believe that we are sending a very clear message about the values we in Australia hold and about our strong commitment to human rights.

The inclusion of torture in the Criminal Code should not put an end to our efforts to eliminate torture. Whilst we have formally put an end to this insidious practice in Australia, there remains much more to do in order to eliminate the use of torture throughout the world. There are some elements in the international community who believe that torture is a necessary evil in the global fight against terrorism. In order to assess the validity of this belief it is important to define the concept of torture. According to the bill before the House, torture refers to conduct by an individual in an official position that inflicts severe physical or mental pain or suffering on a person for the purpose of obtaining information or a confession, punishing the victim or intimidation. The definition contained in the legislation is based on the definition contained in the United Nations convention on torture. Obviously such conduct is nothing short of violent; however, is this practice necessary? ‘Is the practice of torture required to defeat crime and, more specifically, to defeat the crime of terrorism?’ I ask. The simple answer is no. Not only does the practice of torture represent a moral blight on our humanity but it has been proven on countless occasions that it does not work, and we were reminded of that in the contribution that we just listened to by the member for Isaacs.

Like the member for Isaacs, I would like to refer to a speech given in 2005, this time by Associate Professor Ben Saul to Amnesty International on the International Day in Support of Victims of Torture. Associate Professor Saul said:

the argument for torture is indefensible due to insurmountable legal, moral and practical problems.

He argued that torture does not work because it produces ‘misinformation’ rather than truth. It has been proven that a significant level of information produced from the torture process is incorrect because those being tortured will confess to anything in order to get relief from the pain they are enduring. Incorrect information creates false leads, which only serves to divert our invaluable intelligence resources. Moreover, Associate Professor Saul believes that torture merely ‘degrades’ the humanity of interrogators. He went on to say:

Terrorism does not demand that we torture to defend ourselves. To the contrary, the threat of terrorism reminds us of the importance of protecting human dignity …

If we resort to the use of violence as a form of punishment then surely we are no better than those who perpetuate violence against us. I cannot think of two stronger arguments against the use of torture. Why continue the practice of torture if it does not work? Why continue torturing people when it so clearly degrades our humanity? Torture is wrong. Australia should continue to advance these arguments on the international stage.

I now turn my attention to the second key measure in this legislation, and that is the extension of the current prohibition on the death penalty to state laws. I am very proud to live in a country that has such a longstanding policy of opposition to the death penalty. As part of the International Covenant on Civil and Political Rights, Australia is permitted to use the death penalty for ‘the most serious crimes’. However, we rightly object to the use of the death penalty under any situation and that is why we are party to the second optional protocol to the International Covenant on Civil and Political Rights, which requires Australia to abolish the death penalty.

By amending the Death Penalty Abolition Act 1973 we are ensuring that the death penalty cannot be reintroduced anywhere in Australia. The need for this legislation is highlighted by comments, I believe, made by the former Prime Minister, John Howard, in 2003. Mr Howard called for a national debate on the reintroduction of capital punishment as part of new antiterror laws. Whilst Commonwealth governments are prohibited from reintroducing capital punishment under the Death Penalty Abolition Act, Mr Howard suggested that state Liberal opposition parties could raise the issue. I am sure we all know on this side of the House why Mr Howard said that. We have seen on far too many occasions the issue of law and order being used as a political football in state politics. It would be a very dangerous development in Australian public life if any party went to a state election promising to reintroduce the death penalty for serious crimes. Like the member for Isaacs, I do not foresee this happening in the future, but it is important to implement measures to ensure that it never happens. That is what this bill is all about.

Australia’s longstanding opposition to the death penalty must be consistent. We cannot, for instance, prohibit the use of this punishment in Australia yet support the use of this practice to punish terrorists. This is an inconsistency that should not be pursued. Opposition to the death penalty must not be seen as weakness on terrorism. Put simply, terrorism is evil. I cannot imagine the heartache and devastation felt by the families of the victims of terrorist attacks. Too many lives have been lost in attacks throughout the world and there can be no moral reasoning or justification for anyone to perpetuate such evil. Terrorists must be brought to justice and punished for the horrific evil, violence and destruction that they commit. However, I do not believe that the use of capital punishment is an effective punishment for terrorism.

In many cases the use of the death penalty is exactly what terrorists want: offering the potential to make them martyrs in the eyes of their followers. That could inspire more people to support their fundamentalist ideologies. The death penalty is a futile deterrent for individuals who believe terrorism is a pathway to martyrdom. This view is supported by Professor Jeffrey Fagan of Columbia University, who has argued that the death penalty is not an effective deterrent for terrorists. Only in November of last year he wrote:

Deterrence assumes a rational actor who perceives that the punishment costs exceed the benefits of the crime, and who will not act against his or her own self-interest. In this case, capital [punishment] is no match for the rewards of martyrdom.

In other words the death penalty will not work as a punishment. In my view life imprisonment is the strongest form of punishment that can be applied to terrorists and I believe Australia should advocate this form of punishment in the international arena. Furthermore, if we advocate the use of life imprisonment for terrorists, rather than capital punishment, we may be more successful when intervening to support Australians on death row in other countries. As constitutional law expert Professor George Williams recently said:

The notion that it is acceptable to execute terrorists but not other criminals, or to execute foreign nationals but not Australians, is morally and logically unsustainable. The value of a human life is not contingent on a person’s nationality or the nature of their crime. Opposition to the death penalty does not permit such shades of grey.

The ambiguity and inconsistency to which Professor Williams refers weaken our efforts to achieve clemency for Australian citizens on death row overseas. It is not very credible to intervene on behalf of an Australian on death row yet advocate the use of capital punishment for all other criminals.

I do not believe the crimes of Australians on death row should go unpunished. They committed serious crimes, which cannot be ignored. However, to take the lives of these individuals, many of whom are young men and women, is simply a waste. Yes they made a big mistake, yes they committed a serious crime, but they also deserve the chance to learn from this and to be potentially rehabilitated. The use of the death penalty denies them this opportunity.

Throughout 2005 I too spoke about the tragic case of Mr Van Tuong Nguyen, who was hanged in Singapore at the age of 25. I support the words of the member for Isaacs. I want to repeat what I said when I spoke in this House then:

In my view, no-one on this earth has the right to execute a human being. In my view, there is no justification for the death penalty. Everyone can be forgiven; everyone can be redeemed … I call on … this parliament to lead a campaign … to rid the world of capital punishment.

Today I renew that call. Today I call on the Prime Minister, the Minister for Foreign Affairs and every member of this Parliament to lead international efforts to put an end to the use of capital punishment throughout the world. The government will have a very good opportunity to raise this issue during the upcoming visit of President Barack Obama to Australia. May I be so bold as to suggest that one of the issues raised with President Obama be capital punishment in America.

To date, my contribution to this debate has centred on the issue of punishment for the perpetrators of crimes. However, in the time I have remaining I would like to raise the issue of crime prevention. All crime happens for a reason. Poverty, ignorance and disillusionment with society are but a few of the many reasons individuals commit crimes, so it is imperative that we tackle the causes of crime by addressing poverty, promoting social inclusion and advancing the cause of tolerance and understanding. As elected representatives, we have an important obligation to provide leadership and promote the principle that every human being has intrinsic value, integrity and dignity. We have a responsibility to ensure Australia’s children are aware of this basic truth. If we fail to achieve this objective, our children may be vulnerable to an ideology that teaches that it is acceptable to treat people differently.

Perhaps if we are able to promote greater tolerance and understanding throughout Australia, and indeed the world, we will be able to prevent at least some violence and achieve more peace. I believe that this bill sends a clear message to the rest of the world: Australia is a country that condemns torture and the use of capital punishment. The bill also sends a deeper message: Australia is a country that condemns violence and values the dignity of every human being. Let us build on the measures contained in this legislation by advocating the removal of capital punishment throughout the world. More needs to be done to abolish the death penalty in the 60 nations that continue to practise it. This is a fight worth pursuing, and I believe this bill is a good start.