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Joint Standing Committee on Foreign Affairs, Defence and Trade
09/12/2015
Australia's advocacy for the abolition of the death penalty

BYRNES, Prof. Andrew, Diplomacy Training Program, University of New South Wales

[15:13]

CHAIR: Do you have any comments to make on the capacity in which you appear?

Prof. Byrnes : I am a professor of law at the University of New South Wales and chair of the Australian Human Rights Centre. My areas of academic expertise are public international law and human rights law. I am also a member of the board of the Diplomacy Training Program based at the University of New South Wales though an independent organisation, whose submission you have before you and to which I will speak. I would like to express gratitude of DTP for the opportunity to speak with the committee.

As some of the members of the committee know, I have also had the privilege of serving as the external legal adviser to the Parliamentary Joint Committee on Human Right—before you, Chair, took over the chair of that committee—as well from 2012 to 2014.

CHAIR: I have to advise you that in giving evidence before the subcommittee you are protected by parliamentary privilege. I remind you of the obligations not to give false or misleading evidence. To do so could be considered contempt of the parliament. These are public proceedings. If you believe that evidence should be heard in camera, you will need to raise the question with us and state the ground for your objection. We will then consider the matter. We ask you to refrain from naming individuals who may be associated with current cases to protect their privacy. Now you are welcome to make an opening statement.

Prof. Byrnes : The Diplomacy Training Program was, as you may know, founded over 25 years ago by Jose Ramos Horta and Garth Nettheim to develop and share knowledge and advocacy skills to facilitate international human rights advocacy by civil society groups around our region. It does so primarily through the holding of training programs in Australia and the region, which include an annual training program dealing with general human rights standards and institutions as well as thematic programs. In recent years, these have included programs on human rights and business and also on the human rights of migrant workers. Since its establishment in 1989, the DTP has held over 100 training programs and 2,500 human rights defenders from more than 50 countries have been participants in them. DTP receives funding from many public and private sources including from the Australian government through DFAT.

My own personal knowledge of and experience with death penalty issues is primarily due to my involvement as an expert witness in a number of death penalty cases before the Indonesian courts. In 2007 on behalf of an Australian sentenced to death on drug trafficking offences, I prepared an expert report on the international human rights law relating to the death penalty that was submitted to the Indonesian constitutional court in proceedings challenging the constitutionality of the death penalty for drug offences. I also presented oral evidence before the court, along with other international experts, and prepared similar reports on a number of other cases before the Indonesian courts involving both an Australian national—the same one—and also a national of an African country in a case that is still underway, which is also, I think, being supported by Australian lawyers.

I would first like to make some general comments and speak briefly to the DTP submission and then make some final comments in a personal capacity that I am sure my various organisations would agree with. I know the committee has already considered many written submissions and held a number of hearings so I will try to avoid unnecessary repetition but I apologise if I do not succeed in that goal.

I think we all know the grounds for objection to the death penalty: moral or religious commitment to not violating the sanctity of human life; political morality of intentional killing by the state brutalises and demeans the political collective; the fact that the death penalty has not been clearly shown to have any unique deterrent effect by any reputable social science studies; the fallibility of criminal justice systems and the irreversibility of death sentences; its discriminatory impact—racially and socially; and, finally, international legal obligations. While as I am sure the committee knows, there is no general prohibition under international law on the use of the death penalty except for those states which have accepted those explicit obligations, there are nevertheless severe restrictions on its use, which are frequently, one might say, consistently violated by retentionist countries.

We also know that there are different constituencies in every country that need to be persuaded in order to limit the use of or abolish the death penalty. The arguments that are persuasive can vary according to the particular audience. We also know that while encouragement, cajoling and pressure from outside can sometimes assist—though it can also be counterproductive—ultimately the most effective way to bring about the restriction or abolition of the death penalty is when support comes from within the society concerned. We also know that results will rarely be obtained quickly. The process of change will obviously be slow and gradual, not always uniformly forward, and that measures to promote achievement of the goal of abolition will often need to be sustained over many years.

As others have noted, it is important that when Australia says it objects 'in principle' to the imposition of the death penalty that it is clear what the principle is and that our political leaders and representatives are consistent in the application of that principle to all cases. As I think others have already made the point, but I will I will also reiterate it, statements made by a number of Australian political leaders—but by no means by all of them—in relation to the death sentences handed out to the Bali bombers did not reflect the principle of a commitment to the abolition of the death penalty in all cases and made it easy in later years for the charge of inconsistency to be levelled at Australia. If I may say so, it still appears there is work to be done in this regard in our parliaments but of course I am aware of the important role that the large parliamentary group concerned with this issue plays.

The second matter I would like to raise that is of some importance is the relevance of international—

CHAIR: Before you go on, I hear the argument around inconsistency and I noted in your submission that argument. Can you draw to my attention where it has been argued that it is inconsistent. All the arguments I see have been from people here who say, 'Isn't it dreadful that you didn't argue to get the release of the Bali bombers from the death penalty?'—that is the argument that is run. Nobody has actually catalogued—I am asking you whether you have catalogued—the critique of us as being inconsistent, not our own sensitivity but an actual critique.

Prof. Byrnes : I am not sure exactly what you mean by 'critique', but could I respond to that on two levels. One, it is clearly on the public record that some, not all, political leaders made statements which appeared—

CHAIR: I understand that. I am not disputing that. It was Downer and we have had the quotes about Downer. I am really getting at that nobody has come to me and said that these are the quotes of somebody saying, 'We are executing these people because we think you Australians are hypocrites for having allowed us to execute the Bali bombers.'

Prof. Byrnes : I do not think I would put it that high. The principle is that the death penalty in all cases is—

CHAIR: I know what the principle is. That is not the issue. I am really asking whether there is any objective evidence that we have been accused by those who are executing people as being absolutely hypocritical and inconsistent on these matters and, if there is, I would like to see it. It just helps to fill out the argument. If you have it, that is fine; if you do not have it, we will move on.

Prof. Byrnes : I am not sure I have it on the public record but certainly in the conversations I have had with people, including Indonesian based human rights advocates, no doubt, if we did a scan of the Indonesian press, they could come up with statements in which that is trotted out.

CHAIR: I will wait for you to get it for us. Your second point?

Prof. Byrnes : The question is—let me respond on the second level, and I am not sure it is a question of objective proof—how one conducts these arguments, that the rhetorical power and political persuasiveness of the Australian position is, I think, undermined if it is shown to be logically inconsistent, if it is 'What is sauce for the goose is not sauce for the gander.' I think the government has made the same suggestion in relation to Indonesia's apparently inconsistent approach to the death penalty when it came to the diplomatic protection of its own nationals in the Middle East. So I would put it as high as that, but I am certainly prepared to ask my contacts whether they can come up with some information that would support that. I think it is intuitive and I think the private discussions that many have had would justify it, but I will come back to you on that.

The second issue is of some importance and may raise some of the same issues of empirical proof. It is the relevance of international law to how campaigns around the death penalty cases and the death penalty issue are conducted. Except for those very few states in the region which have ratified the second optional protocol to the ICCPR and are thereby bound to abolish the death penalty, other states in our region are bound only by the general restrictions, although they are severe in the ICCPR, or in the case of those states which have not ratified the ICCPR such as China, Singapore and Malaysia, only by customary international law. It seems to me that one of the elements—and I assume it is part of the proposed strategy—is the promotion of states' awareness of their international obligations and responsibility for fulfilling them, not just through bilateral and multilateral diplomatic fora measures but also through interactions with lower level officials in different areas in those countries.

I was quite struck—we could discuss the reasons for this—that, while it was no doubt the result of a deliberate strategic decision, it was a notable feature of the public interventions by the Australian government over the Chan and Sukumaran cases that they included, as far as I was able to ascertain, absolutely no reference to Indonesia's international obligations under the ICCPR not to impose the death penalty for drug offences. It seems to me that those legal obligations may be a critical part of persuading particular audiences.

However, I would also say that the effectiveness of such approach, which invokes international law with countries in the region, also depends in part on the respect that is shown to international bodies which interpret and monitor the implementation of the relevant treaties. That means above all the UN Human Rights Committee established under the ICCPR and the UN Committee Against Torture established by the convention against torture. It also includes UN special procedures, such as the Special Rapporteur on extrajudicial, summary or arbitrary executions.

As I am sure the committee knows, the two treaty bodies have made significant pronouncements on issues relating to the death penalty in their general comments and also in decisions in individual cases. While these do not amount to binding international interpretations of the treaty obligations, this output has provided a very important and persuasive resource for advocates seeking to limit the use or bring about the abolition of the death penalty. However, Australia's responses in other contexts to the deliberations of these bodies—particularly some political responses, as opposed to the substantive responses from government—have had a tendency, in my view, to undermine the authority of these bodies and thus potentially limit some of the impact that their informed and helpful pronouncements may have in debates about the international legality of the death penalty.

Let me then turn briefly to the content of DTP's submission. The main general points of DTP's submission, set out on page 1 of the document, are broadly in alignment with many of the other submissions received by the committee. They include the need to build on existing links with judiciaries and to include death penalty and related issues as part of judicial training and exchange programs; to support associations of lawyers here and abroad to engage in advocacy on the issue; to continue with existing regional, subregional and individual country diplomatic and development program strategies; to provide support for civil society advocates through human rights training programs and development assistance programs; and to support national and regional organisations, such as NHRIs, in carrying out this work.

One particular aspect of DTP's submission relates to the situation of migrant workers on death row, a focus that is the result of DTP's series of training programs on migrant workers over the last few years organised in collaboration with Migrant Forum in Asia and largely funded by the Swiss government through the Swiss Agency for Development and Cooperation. DTP sees this as an important area in itself, given the marginalised and relatively powerless situation of many migrant workers in destination countries. But, it is also a potentially important component of any broader abolitionist strategy which seeks to build on or strengthen any regional coalition involving the major source countries of migrant workers in the Asia-Pacific region. It is also important to underline that the issue of the death penalty in such contexts needs to be seen as part of the overall patterns of disempowerment and limited protection afforded to migrant workers by law and practice in some destination countries and that a broader human rights strategy—for example, in relation to access to legal advice and remedies—needs to underpin strategies aimed at the death penalty in particular.

Finally, let me turn to some other comments. I appreciate that the terms of reference for this inquiry refer to Australia's advocacy for human rights. I understand that broadly and I see that that term has also been understood broadly in the committee's questions and the submissions and that it extends to building capacity amongst civil society and perhaps also to supporting reflection and research in other parts of the community. In my view, it is important to build capacity and to encourage informed reflections among those who are now, or may in the future become, influential in the development of human rights or criminal justice policy in retentionist countries. This, I suppose, is the long game. Others have addressed the importance of building on relations with judges, government officials and practising lawyers. However, the groups with which engagement might be further developed include legal scholars, criminologists, those involved in law enforcement and policymakers developing responses to drug trafficking and other forms of serious crime. While informed evidence based policy will not always prevail in the death penalty debate, informed and critical perspectives coming from within local bureaucracies, universities and research institutes may, in the longer term, be more influential in limiting or eliminating the use of the death penalty.

Let me give two examples. Firstly, in the context of the Indonesian constitutional challenge—and this example highlights some of the discussion you have just had with the DFAT representatives—the question of the unique deterrent effect of the death penalty came up. Nearly all of the credible social scientific material that was available in that case related to the use of the death penalty in the United States. There was little or nothing of value in the literature relating to Asian jurisdictions. There is a clear need for supporting research through linkages or in some other way. Secondly, the Australian Human Rights Centre recently undertook a small research project in conjunction with Reprieve Australia which examined the law and practice in a number of states, including Asian states, relating to the imposition and execution of death sentences on persons who suffered from mental illness or who were intellectually impaired. The findings of this research suggest that the law in many jurisdictions is confused and fails to comply with international legal standards, and there appeared to be only a very limited amount of academic and policy analysis exploring these issues.

While there are already some fora in which these sorts of issues are considered—the risk of seeming to engage in special pleading or the academic world—it may be worthwhile to explore, as part of any strategy, the possibility of conducting an audit of research and academic relationships in the region of those engaged in work in this area, with a view to stimulating such further research and building on existing relationships. That concludes my remarks, and I am happy to respond to any questions on this, our submission or broader issues relating to international law incorporation and the relationship to the death penalty.

CHAIR: I have taken a degree of personal interest in the migrant worker situation. I endeavoured to engage with Indonesia and its Commission I as to how we might be able to work together on those issues—this is well in advance of the executions and Sukumaran and Chan—but I think they sensed that there may be a degree of hypocrisy if we were to work together, and they did not take up the kind offer. But I wonder, does anybody actually analyse the extent to which amongst the population of—whatever it is; 3,000?—people a year that might be executed by states, what proportion would be migrant workers? In relation to Saudi Arabia, are most of them terrorists or are they migrant workers that are being executed?

Prof. Byrnes : I do not have an overall breakdown, but I understand that it is in the hundreds. Three hundred to 400 are the figures that I think we have referred to in our submission, and in other submissions they are talking in the hundreds—and it depends on the jurisdiction. In Malaysia there are some, but relatively few. It largely seems to be a number of states in the Gulf where the problems arise. The offences are various. Some are murder. Some are drug trafficking. Some seem to be zinah offences—that is, sometimes resulting from claims of rape, which are held not to be substantiated and therefore they result in a conviction for so-called adultery offences—zinah—or indeed for the offence of adultery. But we can get back to you on whether there is a reliable breakdown of those countries and those offences.

Mr LAURIE FERGUSON: It is a bit ancillary to the main issue, but to what degree do you have selection power over the people who participate in your courses, as opposed to government intervention? Who comes to these diplomatic meetings?

Prof. Byrnes : They are all NGOs, so basically we select them. There is an application process. In some cases they have to pay. It is very often referrals from particular organisations. In all cases, we organise programs in collaboration with a local or regional organisation. So that is our guarantee that we are getting people who are genuinely committed to and working on making a difference in the field.

Mr LAURIE FERGUSON: It is a bit self-selecting, but have you found the attitudes of these people fairly predictable with regard to capital punishment? Have you or other people engaged with them? Are you a bit surprised?

Prof. Byrnes : If I were to give a definitive answer to that, I would be in some trouble, but my instinct would be that most of them would probably be aligned with the international standards for abolition. Some of them would be working on abolition issues, but there is a very wide range.

Senator SINGH: I am trying to understand a bit more about the work of DTP. You do not advocate human rights yourselves; you provide the capacity-building for other NGOs to do that work through training—is that right?

Prof. Byrnes : That is broadly correct. Even in that process, we are obviously advocating for human rights, and DTP also participates at the international level in some of the meetings, and one of the recent ones was referred to in Geneva at the UN, contributing to that based on some of the findings and conclusions, but, no, DTP does not do specific advocacy relating to particular countries. But obviously, the organisation is broadly supportive of the human rights regime. We consider it is our role to be ancillary, supportive and facilitative, rather than to be front-line human rights advocates.

Senator SINGH: In building capacity on the ground for other parts of civil society to do that work, how do you make the determination of which human rights areas to train in and focus on?

Prof. Byrnes : It is a combination of factors. As I said, we have a general course, and our emphasis has changed over the years. Partly it reflects what we hear from the groups that we work with and participants in the courses. The human rights in business courses and the human rights and migrant workers courses very much emerged from what we were hearing from the region. We obviously do evaluations of every course and regular overall evaluations with our participants and alumni networks, and that has driven it. Partly, I think, it is also true to say that that sometimes dovetails with funding opportunities. For example, the human rights and migrant workers course has very much been driven—or not driven but facilitated—by the interest of the Swiss development corporation that has asked us to do a number of courses and modules, and what looked as if it were what people in the region wanted and what they saw as fundable dovetailed.

Senator SINGH: So it can be proactive or reactive based on where the funding is available.

Prof. Byrnes : I think in that case it is probably funders and advocates looking in a similar direction, which is not always the case, but it is certainly not a case of deciding, 'We'll do X because so-and-so wants to fund X.' I think there was a real need, and this particular donor also recognised that.

Senator SINGH: Are the groups that you work with just in the Asia-Pacific?

Prof. Byrnes : Yes, but it goes beyond that. The Asia-Pacific goes all the way to West Asia, and the migrant workers workshops, many of which have been held in South Asia or in Gulf countries, have also now included participants from the MENA region—North Africa. I do not think we will claim a causal relationship, but a number of the participants in those workshops have also gone on to form an Arab network on migrant workers, which I think is now organising various activities of its own.

Senator SINGH: Your submission talks about supporting civil society organisations in countries that still have the death penalty. That is obviously over and above what DFAT are currently doing. I think you may have been here when we discussed that with DFAT earlier, but DFAT currently fund three organisations advocating against the death penalty. On this idea or suggestion of funding civil society organisations in retentionist countries, is that done by other countries? Does the UK or the EU do that kind of work, funding NGOs in country?

Prof. Byrnes : Obviously they do it through their development assistance programs. Whether they do it specifically as part of death penalty litigation I am not sure.

Senator SINGH: What did you mean in that suggestion?

Prof. Byrnes : What we meant, I think, was that support is not just financial. There are other ways of providing, I suppose, moral and political support. There are a range of programs that the Australian government already runs, which have been very useful in providing support. For example, we had an international fellows program this last year of people from the region. That was funded by the Australian Leadership Awards, a DFAT program which brings leaders in particular areas to Australia. They have met with parliamentarians, the Human Rights Commission and a whole range of people in order to get exposure, experience and connections. So those forms of support are ones which we think are very important.

Australia, I think, also provides support to some of the regional forums, permitting or enabling people to attend those. I think the Australian government may have helped with the recent death penalty forum in Malaysia. Also—though this is not a direct funding aspect—we have a number of students undertaking graduate degrees who are actually human rights advocates at home. One, in fact, works on the death penalty in Indonesia. So, yes, we are able to draw on a range of different things, not necessarily additional financial support. But one of the programs that might have been used for this, although I do not know whether it was in the past, was the small grants program of DFAT, which I think went the way of all flesh in the budget cuts.

CHAIR: Just getting back to this question of what more we might have been able to do for Chan and Sukumaran in relation to international arbitration, and I must say I had not focused on the fact that there may have been other avenues available: if they had been pursued in a timely way, would they have had any influence?

Prof. Byrnes : I think the difficulty is that there were very few options one could explore without the agreement of the Indonesian government, and it did not appear that that was forthcoming.

CHAIR: Certainly, we may well have asked Indonesia to agree to us referring the issue to the UN Human Rights Committee or to the International Court of Justice, and, if they had not agreed, it would not happen.

Prof. Byrnes : It would not happen.

CHAIR: So we may have in fact asked, and we have not made a big thing of it.

Prof. Byrnes : My understanding is that there was serious consideration given to those possibilities. They may have foundered on the unlikelihood of Indonesian consent, but I do not know whether any approaches were made. I suppose that is a strategic assessment. Clearly the government decided not to go with what it may have seen as an ineffective and heavy-handed legal route for which there was no compulsion.

CHAIR: If it was a considered response, you are not criticising that response on the basis that certain outcomes could have been expected that they had underestimated?

Prof. Byrnes : No, I am not critical of that response, because I am pretty sure that all the options were weighed.

CHAIR: I am told you have written and argued that, according to the UN Human Rights Committee, drug trafficking and other crimes are not serious. I do not know whether they have put much effort into those matters. You may have heard me raising the issue with Foreign Affairs earlier about research in relation to these matters. I go back to my time at law school and Gordon Hawkins lecturing me on criminology: most executions are for murder; most murders are spontaneous; it is not going to influence somebody who is about to hit somebody. I might suffer a death penalty, so 'no deterrent effect' is the argument.

In relation to drugs, I do not know what research there is. The research in relation to murders is not the same as in relation to distributing drugs. I do not know whether there are alternative strategies. I am looking at you as somebody who is thinking about writing in these areas. Are you aware of any serious evidence in relation to alternative strategies that we could use for dealing with drugs that might avoid execution? If we were—and you may have heard the questions I put to Foreign Affairs—looking to identify others that we might partner with to support appropriate research, where might we go?

Prof. Byrnes : I am neither a criminologist nor a specialist on drug policy, so I think all I can say is that, as far as the international law relevance of the material goes, certainly in the Indonesian Constitutional Court proceedings, we were unable to find any material which would have supported the Indonesian argument that the death penalty had a unique deterrent effect. Clearly it had a deterrent effect. The question is whether it had a deterrent effect above and beyond imprisonment.

My understanding—and once again I am not a criminologist—is that the main deterrent effect in relation to criminal offences comes from the likelihood that you will be caught rather than the severity of the penalty, and therefore if one is staying within a criminal law enforcement framework then the option of lengthy periods of imprisonment could be argued to have the same deterrent effect. Whether your criminal law enforcement approach is the right approach to drug trafficking, I know, is the subject of much debate. I am not really qualified to express a view on that.

CHAIR: I am being mischievous—I usually am. Do human rights advocates and criminologists talk together?

Prof. Byrnes : Sometimes we do, yes.

CHAIR: Have you got some colleagues at your university that are criminologist specialists?

Prof. Byrnes : We do indeed. One of the people whose writings I was able to rely on for my expert evidence is Professor Janet Chan at UNSW, who is a leading criminologist and who did a study of death penalty literature.

CHAIR: I do not know that we have seen a lot of submissions from criminologists telling us that they have a solution in relation to this matter. In your discussions with your academic colleagues, if you could encourage those who have the magic bullet—

Prof. Byrnes : It depends what the question is as to whether they have the solution—

CHAIR: It is interesting. I am asking the question: is there any evidence from criminologists in relation to the way in which you deal with these matters that suggests that there is a more effective way of dealing with limiting access to drugs and drug distribution than execution?

Prof. Byrnes : Yes, but I think you have conflated two questions there.

CHAIR: I often do!

Prof. Byrnes : Firstly, if you go to criminal law enforcement, does the death penalty increase or enhance your limiting of the trade? Secondly, are there options other than criminalisation of the drug trade? I think the answer to that is yes. We had a lot of discussion in Australia around that, and I am sure that criminologists would be able to—

CHAIR: I am looking to you as an academic leader talking to all of these other people. Given that Singapore, Malaysia, Indonesia and Vietnam are all countries that continue to execute, often for drug offences, is there a basis upon which you could bring together an international conference with a whole lot of alternative strategies where we might be able to convince them, by talking them through and bringing the experts together, that there is a better way of dealing with these drug issues than simply identifying the culprits and then executing them?

Prof. Byrnes : That was part of what I was, perhaps too subtly, suggesting. There are obviously international legal conferences and linkages within the Asia-Pacific region. I do not know whether there are any focusing specifically on—

CHAIR: I went to the LAWASIA Conference only a few weeks ago and I did not get the impression that LAWASIA wanted to focus its attention on these matters. They had all these American lawyers and so on hanging around that were not particularly interested in advocating in relation to these matters, judges who were probably executing people—convicting them.

Prof. Byrnes : There is an opportunity for developing a forum. In fact, a number of my colleagues in a recent meeting at our university with the University of Hong Kong floated the idea of an Asian criminal justice forum which would bring together research institutes in the region which might take something like this up. I think there is an Asian criminology conference. I do not know how much they look at that, and it may be that you have put your finger on the fact that the different disciplines, as they so often do not, have not connected on this. Once again, it goes back to what the question is that is being asked.

CHAIR: I just want countries in the region that we are able to influence to walk away from capital punishment. That is the question that is being asked, and how can we best achieve it?

Prof. Byrnes : That is part of it. But, it is a long game when you are looking at countries like China, Iran—

CHAIR: Yes, but China has a whole lot of other issues and Iran has other issues too. Getting back to Singapore and Malaysia—they are in our immediate region.

Prof. Byrnes : There is no easy answer. If you look at the Singaporean legal discussion on the issue, they are very highly qualified lawyers. They argue things from very conservative positions. They have been prepared to accept the data that the Singapore government gives them, although it has been much criticised on the basis of demonstrating the alleged deterrent effect. As I said, these are discussions that have to go on over a long period, and it may be a new generation of policymakers who will make that change. If we have been educating them and talking with them, we increase the chance of that happening.

CHAIR: Professor, thank you very much for your willingness to come and meet with us. Thank you for your contribution and your thoughtfulness and for briefing us on your centre. If we have asked you for additional material or if you have further information you would like to provide, give it to the secretariat, especially if you think through further ways in which we might be able to deal with these issues, particularly with some of your criminologist friends—because we have not really heard from a lot of criminologists. It is interesting. You will be sent a copy of the transcript of your evidence, to which you can suggest corrections if you think they are necessary. Thank you very much.

Prof. Byrnes : Thank you.

Proceed ings suspended from 15:50 to 16 : 00