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Thursday, 11 March 2010
Page: 1640


Senator BRANDIS (1:43 PM) —The opposition supports the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009. It has been the unequivocal position of the Liberal Party throughout Australia to oppose the death penalty and to condemn the use of torture in all circumstances wherever it occurs. I know that my friend Senator Humphries is going to say a few words later in this debate, and I want to take the opportunity to acknowledge his work, in particular in relation to this issue, as the co-convenor of the cross-party working group on the death penalty, and the work of other Liberal senators and members on this important issue.

Sadly, the use of torture and the death penalty remain prevalent throughout the world, including in some of Australia’s major trading partners. While we oppose the continued use of those measures, we must remain clear-eyed about the gothic history of the Western legal tradition and indeed the existence of legalised brutality in our own history. The death penalty was only abolished at the Commonwealth level in 1973, and in New South Wales in 1985. Whipping was only removed from the Queensland criminal code in the early 1990s, although that particular form of corporal punishment had not been inflicted in the state of Queensland since the early 20th century.

The provisions of the bill are founded on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. Schedule 1 of the bill replaces the existing offence of torture in the Crimes (Torture) Act 1988 with a new offence in the Criminal Code, but in substantially the same terms. The definition of torture is: a public official, or someone acting at a public official’s behest, engaging in conduct that inflicts severe physical or mental pain or suffering on the victim for the purpose of punishing, intimidating or coercing the victim or a third person. The definition is derived from the UN convention and, as I have said, is essentially in the same terms as the existing law which, hitherto, has been located in the 1988 act. The UN convention requires that all acts of torture are offences under domestic criminal law, including the application of states’ jurisdiction to acts occurring anywhere in the world. The change effected by this bill is to create the extraterritorial offence applicable beyond acts committed in Australia or by persons subsequently present in Australia. The offence is intended to operate concurrently with state and territory offences.

Schedule 2 of the bill extends the application of the existing prohibition on the death penalty to state laws in addition to the Commonwealth, territory and imperial laws to which the Death Penalty Abolition Act 1973 already applies. Accordingly, the death penalty will not be able to be reintroduced anywhere in Australia without the concurrence of the Commonwealth—which, I am sure, will not occur. There are some who have said that this is a matter that ought to be left to the jurisdiction of the states and territories but, in the opposition’s view—given the importance of maintaining a strong face against the death penalty, and the international character of this issue reflected in the obligation assumed by Australia—this is an appropriate measure for the Commonwealth to legislate in relation to, albeit that the form of the provision is somewhat unusual. And of course it is hardly necessary to add that it is many years since any of the states or territories had the death penalty, so there will be no practical or substantive change to any state or territory law.

Given that torture and the death penalty are already prohibited, the effect of the bill is therefore, in this respect, largely symbolic. In relation to the extension of the torture offence, the explanatory memorandum states:

In enacting such an offence, the intention is to demonstrate the Government’s condemnation of torture in all circumstances.

It is not merely the government’s condemnation of torture and the death penalty—it is the parliament’s condemnation of torture and the death penalty, speaking in bipartisan fashion on behalf of all the people of Australia.