australia's policy on the death penalty

Officially, Australia has a long-standing principled opposition to capital punishment. The death penalty has been abolished in Australia. Australia has signed the Second Optional Protocol to the International Covenant on Civil and Political Rights, which commits Australia to the abolition of the death penalty. Australia voted for the UN General Assembly's resolution calling for a global moratorium on the death penalty (18 December 2007). Australia annually co-sponsors a resolution of the UN Human Rights Commission that calls for all nations to abolish the death penalty, e.g. The Question of the Death Penalty (20 April 2005) UN Doc E/CN.4/RES/2005/59.

However, over the last few years Australian politicians, both government and opposition, have weakened this stance. Australia's position now seems to be that Australians should not be executed but other people can be. It remains to be seen whether the Rudd government will return to Australia's principled opposition.

death penalty policy under Howard

John Howard was prime Minister of Australia from 1996 to 2007. Confidential government documents obtained by CCL under freedom of information reveal that during those years, the Howard government severely undermined Australia's long-standing principled opposition to the death penalty.

In the late 1990s, the Howard government decided that Australia could assist in foreign death penalty cases without a guarantee that no one would be executed. This violates Australia’s international obligations and was a significant break with past practice.

After the horrific Bali bombings of October 2002, the Howard government authorised the AFP to collect evidence and statements and to subpoena witnesses to assist in the conviction and sentencing to death of the Bali bombers. Of course, Australia should cooperate to bring terrorists to justice, but it should do so in a manner consistent with human rights and Australia's obligation to ensure that no one is exposed to the real risk of execution.

CCL condemns acts of terrorism as gross violations of human rights. The victims of terrorist acts and their families deserve our deepest sympathy and condolences. However, Australia has a long-standing principled opposition to the death penalty. Australia respects the right to life of all individuals – no matter their crime. We should not be assisting in the court cases of people who could be executed.

The confidential documents show that the government had flawed legal advice stating that Australia’s human rights obligations do not extend beyond our borders or beyond individuals in the custody of Australian agents overseas. This advice is clearly wrong. It is inconsistent with Australia’s obligation not to expose anyone in any circumstances to the real risk of execution.

Following the government’s legal advice to its logical conclusion, it authorises AFP and ASIO officers to assist their foreign counterparts in violating human rights – so long as they do it abroad and their counterparts are the ones detaining the victims.

find out more...

download a guide to the confidential documents at: www.nswccl.org.au/docs/pdf/dpfoi guide.pdf
download the confidential government documents at: www.nswccl.org.au/docs/pdf/dpfoi.pdf (3.8Mb)
see CCL's proposals for law reform: http://www.nswccl.org.au/docs/pdf/dp%20law%20reform.pdf
read CCL media release, Government authorises more death penalty cooperation (12 August 2007)

The article below traces the beginnings of this undermining of Australia's principled opposition to capital punishment.

Australia Changes its Position on the Death Penalty

On 16 February 2003 the Australian PM said in a Sunday morning television interview that the Bali bombers “should be dealt with in accordance with Indonesian law. …and if [the death penalty] is what the law of Indonesia provides, well, that is how things should proceed. There won’t be any protest from Australia”.[1]

In early March 2003 the PM told US television that he would welcome the death penalty for Osama Bin Laden. “I think everybody would”, Mr Howard said.[2]

In response to these comments:

"Foreign Minister Alexander Downer said Australia would not intervene if bin Laden was to be executed. 'I personsally have never supported the death penalty but in the case of Osama bin Laden, I don't think that too many tears would be shed if he was executed, bearing in mind all the people he's responsible for killing." [3]

These comments mark a significant change in Australia’s attitude to the death penalty and a further weakening of Australia’s commitment to international human rights standards.

Australia’s longstanding position

Australia has traditionally taken a strong principled stand against capital punishment. In 1986 diplomatic relations with Malaysia were strained when Australia protested the execution of two Australians, Kevin Barlow and Brian Chambers. The then Australian Prime Minister, Bob Hawke, went so far as to describe the death penalty as “barbaric”.

In October 1990 Australia acceded to the Second Optional Protocol to the International Covenant on Civil and Political Rights that commits signatory nations to abolishing the death penalty within their borders. In the introduction to the Second Optional Protocol it is made clear that the abolition of the death penalty “contributes to [the] enhancement of human dignity and progressive development of human rights”. It also states that signatory nations desire to undertake “an international commitment to abolish the death penalty”.

Even Mr Howard’s own government has in the past consistently condemned the use of the death penalty. As recently as August 2002, in response to Nigeria’s use of the death penalty, the Australian Foreign Minister, Mr Alexander Downer, issued a media release stating that:

The Australian Government is universally and consistently opposed to the use of capital punishment in any circumstances. The death penalty is an inhumane form of punishment which violates the most fundamental human right: the right to life. [4]

This policy was restated in December 2002 when the death penalty was handed down to an Australian citizen convicted of drug trafficking in Vietnam.

Prime Minister Howard and the death penalty

Prime Minister Howard is on the record as an opponent of the death penalty. In a doorstop in 2001, for example, the Australian Prime Minister said that he had “a pragmatic opposition to the death penalty that is based on the belief that from time to time the law makes mistakes and you can’t bring somebody back after you’ve executed them”.[5]

Since the Bali bombing in October 2002, an event that deeply moved the Prime Minister, Mr Howard’s position on the death penalty has shifted. It would appear that, with respect to terrorism at least, he is willing to remain silent while another nation executes a fellow human being.

The implications of the change in policy

The implications of this shift in Australian policy have not yet been fully explored or debated.

For example, how will this new policy affect the seven Australians, currently being assisted by Australian consular officials, who have been charged with drug-related offences in countries where such crimes carry the death penalty? Will Australia remain silent if these people are found guilty, simply because, as the Australian Prime Minister is now saying, such matters should be dealt with in accordance with domestic law?

If Mr Howard’s new position is more correctly interpreted as one of “terrorists deserve the death penalty”, then what will happen, mused one Australian journalist, if the United States decides to execute one or more of the Australians currently being held in Guantanamo Bay, Cuba? Will the Australian government intervene?

Or, more ominously, is it only a matter of time before the death penalty is re-introduced into Australia specifically for terrorist offences?

The Australian Government is currently restricted by law from extraditing anyone to a country where the offence charged attracts the death penalty. Is this law, and others like it, no longer to apply in the case of terrorism?

Have the terrorists won?

The Australian Prime Minister’s statements on capital punishment are out of step with international human rights standards. He has, without explanation or debate, altered Australia’s principled opposition to the death penalty.

Consequently, it is difficult to avoid the conclusion that terrorism has won another battle, at least in the sense that Australia’s commitment to maintaining international standards of human rights has been weakened in response to the threat of terror.

Michael Walton, March 2003
This is a modified version of an article first published in the Human Rights Defender.