Foreign Minister Julie Bishop has initiated a parliamentary inquiry into Australia’s efforts in campaigning against the death penalty. The Joint Standing Committee on Foreign Affairs, Defence and Trade has sought submissions with regard to:
… reviewing how Australia currently engages internationally to promote abolition of the death penalty, and further steps Australia could take to advocate for worldwide abolition.
This inquiry is a progressive response to the executions of Australians Andrew Chan and Myuran Sukumaran in Indonesia this year. Ideally, it will generate a shift in Australia’s global abolitionist efforts.
Australia’s legal position on capital punishment
Australian law is unequivocal in its rejection of capital punishment. The last man hanged in Australia was Ronald Ryan in 1967. In 1973, the federal parliament passed legislation prohibiting capital punishment for any federal crime.
In 2010, the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act prohibited capital punishment in all Australian jurisdictions.
Australia has enacted the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). Its legal position demonstrates commitment to the global movement to abolish the death penalty. Australia is obliged by international and domestic law to strengthen its advocacy.
Australia’s engagement in the abolitionist movement
Australia lobbied firmly for clemency for Sukumaran and Chan. Bishop was particularly strong in her advocacy. Bishop emphasised the men’s rehabilitation as a primary justification for sparing their lives.
However, beyond general expressions of “opposition” to capital punishment, Australia did not emphasise specific human rights principles in its lobbying of Indonesia.
Australia’s advocacy was genuine but ultimately ineffective. Chan and Sukumaran, along with six others, were put to death by firing squad. Indonesia’s position on the death penalty for drug offenders is unchanged. Australia is now stepping back to confront the reality of capital punishment globally.
Strengthening Australia’s advocacy
Australia has a very strong legal position in opposition to capital punishment. However, its advocacy position is weaker. It could be fairly said to object loudly to capital punishment only when Australian nationals are subject to it.
Government MP Philip Ruddock acknowledged this when the inquiry was announced:
We need to go beyond an approach where our voice is loudest immediately prior to a planned execution.
Recent reductions in foreign aid could further weaken Australia’s advocacy position. If Australia is to influence, it must be seen to contribute. Australia must also aim for consistency in its human rights orientation.
Australia’s advocacy for the abolition of capital punishment may be strengthened by reference to human rights principles:
Australia must identify the death penalty as a violation of the right to life. This fundamental right is not subject to limitation – it must always be respected.
The ICCPR imposes a pragmatic limitation which requires countries to impose capital punishment for only the most serious crimes. It must be unacceptable to Australia that some countries execute people for “crimes” that are either not crimes or not regarded as “most serious” crimes under Australian law.
Australia should decry capital punishment as torture. This is both because of the methods used and the length of time convicted persons are kept on death row. Australia must also identify and lobby in cases where torture is used to extract confessions on which death sentences are based. These arguments must be put even to important allies like the US and China. The prohibition on torture is an absolute principle in international law.
Clearly, though, not all countries are receptive to human rights arguments. Australia can also develop its pragmatic position against capital punishment.
The death penalty has and will continue to be imposed on innocent people. This is an even greater risk where a country’s justice system is subject to corruption. Australia ought to question whether the inevitable killing of innocents can be justified to preserve the option of capital punishment.
Australia ought also to emphasise that capital punishment has no demonstrated enhanced deterrent value when compared to life imprisonment. The prospect of the death penalty can even be a motivating factor for terror offenders who aspire to martyrdom.
What Australia may achieve
Bolstered by such arguments, Australia can revitalise its role in the global abolitionist movement. A broader-scale advocacy effort would enhance Australia’s perceived legitimacy on this issue. Australia could follow the lead of the UK in developing a foreign affairs public strategy aimed at universal abolition.
Former prime minister Tony Abbott was famously dismissive of international human-rights-focused advocacy. However, Malcolm Turnbull may encourage a change in strategy.
Bishop has just announced that Australia will bid for a seat on the UN Human Rights Council in 2018-2020. She sees this as an opportunity for Australia to become:
… a leading advocate for global abolition of the death penalty.
Indonesia reacted defensively to Australia’s lobbying for Chan and Sukumaran. If Australia extends its abolitionist advocacy to key allies like China and the US, future lobbying on behalf of Australian nationals may be less likely to be received as attacks.
Australia’s recent legal action against Japan over its whaling program demonstrates that positive relationships may be maintained even while one government seeks to persuade its ally to dramatically change policy.
Amy Maguire will be speaking at Amnesty International’s World Day Against The Death Penalty Forum in Sydney on October 9.
Amy Maguire is a member of Amnesty International and Australian Lawyers for Human Rights.
Authors: The Conversation