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Thursday, 13 September 1973
Page: 974


Mr ENDERBY (Australian Capital Territory) (Minister for the Australian Capital Territory and Minister for the Northern Territory) - I have listened with considerable interest to the 2 speeches that have been made to this stage on this subject, particularly to the speech of the honourable member for Moreton (Mr Killen) who expressed the depth of feeling that he has about the subject of capital punishment, the uncertainty and dilemma that he described himself as facing and the difficulty he has in making up his mind. I suggest to him that it is time he made up his mind. I listened with considerable interest also to the Deputy Leader of the Country Party (Mr Sinclair) and at the outset I would submit that his argument should be rejected completely and out of hand. His argument lined up and compared with the whole history of opposition to the proposition that the death penalty be abolished.

As we were reminded by the Prime Minister (Mr Whitlam) when he spoke on this subject some little while ago, the first move in the Australian Parliament to abolish the death penalty was made by him in 1960. Again in 1963, 1968 and 1972 the Parliamentary Labor Party, then in Opposition tried its best to put right this piece of barbarism. Each time the government of the day - then a Liberal-Country Party coalition government - thwarted the efforts of the present Prime Minister and of the Parliamentary Labor Party to bring about this reform. I do not know what processes took place in the minds of those who are now members of the Opposition. Seeing that the Liberal Party on this occasion does not oppose the measure but the Country Party seems to oppose it - although the Deputy Leader of the Country Party suggested that it was not a party decision he said that most members of his party would oppose it - one can draw the reasonable inference that during all the years from 1960 onwards the tail wagged the dog. The Country Party, with its traditional conservatism, refused to let the Liberal Party, which does have in it some elements like my good friend the honourable member for Moreton, do what should have been done.

Last night and this afternoon a note of sweet reason was projected into the debate by the 2 speakers from the Opposition parties. I do not wish to strike a discordant note. I welcome reason, particularly sweet reason, but I would suggest that given the history of this matter and given the continued opposition of Liberal and Country Party governments in their recorded actions since 1960 to thwart this reform, now having been brought to the end of the road and being faced with this situation - the Bill has passed the Senate and we know it will pass this House - all they have left to give themselves a little dignity is to try to appear reasonable. Reason, like anything else, can sometimes be used as a subterfuge to cover up lack of reason, hostility, prejudice and bias. The Deputy Leader of the Country Party has considerable skill as an advocate, and I commend him for that.

I have in my hand a book which someone, knowing I was to speak on this subject, lent me. Its authors are Arthur Koestler and C. H. Rolph, 2 men committed to the subject of the reform of capital punishment. The book is titled 'Hanged by the Neck'. I will leave the book on the table of the House and honourable members can read it if they so desire. The cover photograph shows a man in the process of being hanged. A priest, policeman and other representatives of the French State are present. It is a horrible, gory picture. It is a nasty picture. It is a barbaric picture. Members of the public are watching the hanging. This is what we associate ourselves with whenever we put the dignity and sanction of the State behind this crime. It becomes judicial murder.

Do we seriously condone this act of barbarism? I know it is always said that it is not revenge which justifies capital punishment. Not even the staunchest defenders of capital punishment take that ground, although frankly I do not believe it. Call it by other names, it is a feeling of revenge. That is what retribution means and retribution is one of the 3 principal words used whenever one reads a discussion on the subject of punishment. It is revenge that is put behind capital punishment - revenge for some feeling of outrage that one claims to feel, and which we all feel. The punishment in this case is the forfeiture of life. People who support capital punishment say: 'Oh, do not worry. It is done humanely. It is all over in a second. Not to worry.' They talk about deterrence. The honourable member for Moreton spoke about deterrence, but to his credit he quoted figures from every part of the world which prove that capital punishment is not a deterrent. In 95 per cent of cases the person who commits a murder is a close relative or friend who gives way to some outraged feelings on the spur of the moment and never thinks of the deterrent aspect of it - that if caught he will be convicted and hanged for his crime. Figures proved this, and the honourable member for Moreton pointed it out.

Before turning to the question of deterrence which is one that worries many people - putting a policement behind the citizen otherwise the citizen will break the law - let me dwell for a moment on the concept of capital punishment - being merciful and painless. It does not take a second's thought to realise that neither hanging nor any of its alternatives is, in fact, less than very painful. It has taken the insight of a great novelist to grasp the real behind the apparent cruelty of the death penalty. On this occasion - certainly the last time this House will concern itself with this problem; this hang-over from the dark ages - I should like to quote Dos.toyevsky's words in his novel The Idiot' about what the death penalty really means. He wrote: . . but the chief and the worst pain may not be in the bodily suffering but in one's knowing for certain that in an hour, and then in 10 minutes, and then in half a minute, and then now, at the very moment, the soul will leave the body and that one will cease to be a man, and that that's bound to happen; the worst part of it is that it's certain. When you lay your head down under the knife and hear the knife slide over your head that quarter of a second is the most terrible of all. You know this is not only my fancy, many people have said the same. I believe that so thoroughly that 111 tell you what I think. To kill for murder is a punishment incomparably worse than the crime itself. Murder by legal sentence is immeasurably more terrible than murder by brigands. Anyone murdered by brigands, whose throat is cut at night in a wood, or something of that sort, must surely hope to escape till the very last minute. There have been instances when a man has still hoped for escape, running or begging for mercy after his throat was cut But in the other case all that last hope, which makes dying 10 times as easy, is taken away for certain. There is the sentence, and that whole torture lies in the fact that there is certainly no escape, and there is no torture in the world more terrible. You may lead a soldier out and set him facing the cannon in battle and fire at him and he'll still hope; but read a sentence of certain death over the same soldier, and he will go out of his mind or burst into tears. Who can tell whether human nature is able to bear this madness? Why this hideous, useless, unnecessary outrage? Perhaps there is some man who has been sentenced to death, been exposed to this torture, and has been told 'You can go, you are pardoned'. Perhaps such a man could tell us. It was of this torture and this agony that Christ spoke, too. No, you can't treat a man like that.

Those were Dostoyevsky's words.

Judicial murder is no merciful death. It is naked, unmitigated, barbaric cruelty. The reality is hidden from us by the bureaucratic trappings built up around it, but the truth is this - I make no apology for using these words: It is torture that is done in our name, torture of a particularly terrible kind. Every day that we tolerate its continuance degrades every one of us. Make no mistake, we are all there - not physically, of course, but we are a bit like those American bomber pilots over Vietnam. We do not see the blood. We do not see the anguish. Computerised and in a clinical, isolated, clean way we press the button. But we condone this dreadful ritual while it goes on and our hand is on the lever. I have said that these ritual killings degrade us all in a darker, more sinister way. It is not the sort of thing people like speaking about. It is like Dr Wainer on the abortion law issue. It is a dirty subject, an unpleasant subject, a nasty subject. But I do not apologise for bringing it up because if we are honest we will admit that it plays a major, if unexamined, part in our naive defences of capital punishment.

Clarence Darrow, that very famous American trial lawyer, makes the point as plainly as it can be made. He said on one earlier occasion:

Every human being that believes in capital punishment loves killing, and the only reason they believe in capital punishment is because they get a kick out of it.

Quite frankly I find that to be perhaps a slight exaggeration, but I wonder whether there is not some truth in the statement. They are blunt words - perhaps an overstatement - of a very great orator, but there is truth there. If Darrow's statement is not completely correct, if it is an overstatement, at least it can be said that the people who propose the continuance of capital punishment certainly hate giving it up. That was implicit in the words of the Deputy Leader of the Country Party. They hate giving it up and they fight to retain it. When they see that they cannot retain it any longer they look around for some remaining particularly heinous type' of offence to which they can still attach it. One can almost see their minds working: 'There must be something to which we can attach this death penalty. Do not let them take it away from us. There must be something - perhaps some particularly aggravated form of murder. Let us find something. Search, look.' That is implicit in everything the honourable member said. If one looks at the amendment one will see that very search and what it has produced.

It seems hardly necessary to argue the deterrence case at this stage. I take the point that was made by the honourable member for Moreton. He said that it is really refuted by the statistics. It has been shown time and again throughout history that the death penalty has not deterred. Societies that kill criminals have not had significantly lower crime rates than those that do not. Historically they have often been higher. This applies even in Australia. The figures that were produced last year in answer to a question I put to the then Minister for the Interior, the honourable member for Gwydir (Mr Hunt), prove that with the same or substantially the same set of laws in the Northern Territory and the Australian Capital Territory the crime rate in the Northern Territory was 30-odd times higher than in the Australian Capital Territory. They have the same punishments, the same deterrents, the same police forces and the same chances of capture.


Mr England - But not the same conditions.


Mr ENDERBY - That is right, they have different conditions. But punishment had nothing to do with it. One could still be hanged for murder. Murders were committed in the Northern Territory about 5 or 6 times as often as down here. The deterrent meant nothing. There is one aspect about deterrence which I would like to point out and which always strikes me as being significant. I was brought up on the deterrence argument, I suppose like all lawyers, but basically it is immoral. It rests behind most of the systems of criminal law except when revenge or retribution rest behind them. Reform is something that is thrown in for good measure, although no prison or punishment ever reforms. In one sense deterrence is a complete negation of justice and individual rights. To punish the honourable member for Moreton by hanging him, whipping him or fining him in order to deter the Deputy Leader of the Country Party is completely immoral. To punish A in order to deter B is completely immoral. If an individual bases his support for hanging on this ground - there are many among the minority who still support it who do take this ground - I suggest that his position is basically immoral and should be shown to be immoral. Deterrence and punishment generally should be kept to a minimum.

This is what Mr John Stuart Mill and all the great utilitarians said: Punishment is an evil. It hurts. Every civilised society should have it as an absolute minimum. Yet here we have the Country Party spokesman saying: 'For God's sake hang on to it. Do not give it up.' If the argument of deterrence is basically immoral, what ground is left on which a reasonable person can support the death penalty? There is none. Removal of the death penalty will make our society no less safe. This has been confirmed time and again by countries which have already taken this overdue step. They have not experienced any causally related rise in the incidence of what had been capital crimes. In addition, the most recent British royal commission on capital punishment, after hearing evidence from all over the world, concluded:

The evidence that we ourselves received in these countries was also to the effect that released murderers who commit further crimes of violence are rare-

That is almost axiomatic nowadays. Burglars might do it, other types of convicted criminals might do it, but murderers hardly ever resort to violence because of the nature of the crime - and those who become useful citizens are common.

I am reminded of the Constitution of the United States of America - this applies to some of the State constitutions in the United States of America - where there is a prohibition against cruel and unusual punishments. Some honourable members may recall that a year or so ago the Supreme Court of California, ruling on that section of its Constitution, held that a statute of the State of California that provided for capital punishment was ultra vires, illegal, invalid, because it was a cruel and unusual punishment.

The British Parliament was told in 1961, in answer to a question, that of the 76 convicted murderers released from life imprisonment in the years 1956 to 1960 only 2 were convicted of subsequent crimes of violence, and they were not murder. Our present system of justice contains ample means to protect society from insane or repetitive murders - recidivists - without bringing down on ourselves the public shame of killing them. High security facilities exist in the great majority of cases in which they are appropriate. Abolition of the death penalty will spur further advances in this field. I suggest that we take this historic step for Australia and support the Bill.

There are one or two other aspects of the Bill which may be persuasive to honourable members. A very famous German philospher - not one whom I usually quote - Nietzsche, once said: 'Distrust everyone in which an impulse to punish is powerful.' That is completely consistent with what I was putting a little while ago, that there is a thread running through the opposition to this Bill that comes not from the Liberal Party, as I understand the situation - that is to its credit - but from the Country Party, which is not to its credit. There is a thread running through it; they want to hang on to this barbaric penalty. They have an impulse to punish. George Bernard Shaw said that flogging is a form of debauchery. If flogging is a form of debauchery, what is judicial murder? What is capital punishment? It is the extreme form of debauchery. How long ago was it that slaves running away in the United States of America when caught were killed by the courts? It was Byron who said:

Is there not enough blood on your penal code that you want to keep this kind of section here?

Finally I was struck in the little research I did on the subject - I think this is one of those subjects people feel about rather than read about, although perhaps feelings come from years of thinking and reading about the subject - by the remarks of that gentleman Robespierre of French revolution fame on the subject when he spoke in 18th century language about the duty of the law maker. When he got to the capital punishment aspect of it, with some kind of foresight perhaps he said:

When it occurs man is no longer an object so sacred as before. One has a lower idea of his dignity when public authority makes light of his life. The idea of the murder filters with less horror when the law itself sets the example and provides the spectacle. The horror of the crime diminishes from the time the law no longer punishes it except by another crime. Have a care not to confound the efficacy of punishment with excessive severity. The one is absolutely opposed to the other. Everything favours moderate laws. Everything conspires against cruel laws.

We have had a cruel law on the statute books of the Australian Capital Territory and the Northern Territory for too long. I support the Bill.







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