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Australia can do better in advocating against the death penalty worldwideAustralia can do better in advocating against the death penalty worldwide
Earlier this month, the Joint Standing Committee on Foreign Affairs, Defence and Trade released 'A world without the death penalty: Australia's Advocacy for the Abolition of the Death Penalty'. The report was produced by the Human Rights Sub-Committee, which had been tasked by the Foreign Minister with:
The inquiry received 62 public submissions and conducted nine public hearings, and the ensuing report makes 13 detailed recommendations for 'invigorating Australia's advocacy'.
Australian Myuran Sukumaran was among eight executed by Indonesia in April 2015. (Getty Images/Jason Childs.)
The report is timely, marking the first anniversary of Indonesia's executions of eight people in April 2015, including Australians Andrew Chan and Myuran Sukumaran. Australia's strong and consistent advocacy in favour of clemency for Chan and Sukumaran failed, and their executions exposed a range of means by which Australia could do more to progress the global movement for abolition of capital punishment.[fold]
All those executed in Indonesia in 2015 had been convicted of drug offences, and sentenced to death for acts contrary to international standards on what constitute the 'most serious crimes'. In this context, 'A world without the death penalty' recommends the amendment of Australian Federal Police guidelines for information sharing in death penalty situations. The Committee specifically recommends that the AFP:
Had the AFP been bound by this last guideline in 2005, Chan and Sukumaran may not have been exposed to the death penalty.
The Committee's view was that such changes would likely be sufficient to ensure that the AFP does not act in ways that privilege law enforcement agendas over the protection of human rights and human life. In support of this conclusion, the AFP noted that it has not been involved in information-sharing resulting in a death sentence for an Australian national since the Bali Nine case.
However, considering the gravity of the death sentence and the need to ensure consistency in Australia's advocacy, the Committee could have gone further to also recommend legislative change. Both the Extradition Act 1988 and the Mutual Assistance in Criminal Matters Act 1987 contain safeguards to protect against the imposition of the death penalty in partner countries. The Australian Federal Police Act 1979 could be amended to mirror these statutes, while – if regarded as necessary by parliament – retaining some limited exceptions to enable information-sharing in cases of grave risk to the Australian population (for example, certain terrorist threats).
In the case of Chan and Sukumaran, the key argument put by Australian government officials was that capital punishment was not justified because of the men's rehabilitation in prison. Such a pragmatic position, and the lack of consistent advocacy against capital punishment regardless of who is subject to it, undermines the legitimacy of Australia's position.
In my written submission and oral evidence before the inquiry, I argued that Australia must consistently ground its advocacy in human rights arguments. This requires the identification of the death penalty as a violation of the fundamental and inviolable right to life. Further, retentionist countries must be challenged to accept that drug offences cannot properly be categorised as among the 'most serious crimes' in order to meet the limited exception under Article 6(2) of the International Covenant on Civil and Political Rights. Finally, capital punishment must be decried as torture, which is strictly prohibited under international law. The death penalty is torturous because of the methods used in executions, the length of time convicted persons are kept on death row and the terror of awaiting one's own scheduled killing by the state.
It is encouraging that the Committee has recommended that 'where appropriate and especially in relation to public messaging, Australian approaches to advocacy for abolition of the death penalty be based on human rights arguments'. This recommendation can inform the proposed whole-of-government Strategy for Abolition of the Death Penalty. Arguing against the death penalty in all cases, from the foundation of human rights law, reduces the risk that Australia will be accused of hypocrisy or privileging the lives of its nationals over others at risk of execution.
It remains to be seen whether the conclusions of the Committee will translate into government action. Hopefully the Australian government can be persuaded, as the Committee was, that our alliances with death penalty retentionist countries are strong enough to permit a strengthening of our abolitionist advocacy. The Committee has wisely recommended that future efforts concentrate in our region, where we can best apply resources to promote change, and with our ally the US.
Australia must craft a long-standing and fruitful response to the deaths of Chan, Sukumaran and all others who have suffered the ultimate punishment. The execution of human beings by the state should be opposed wherever it is carried out, and whoever is subject to it. Australia can enhance its ethical position by broadening its advocacy and range of argument, and by ensuring that its efforts to prevent transnational crime maintain a constant awareness of the obligation to preserve and protect human life.
Ed. note: Look out on Monday for a piece which argues that the 'A world without the death penalty' report's recommendations on AFP information-sharing are problematic for a number of reasons.
Amy Maguire
About the author
Amy Maguire
Dr Amy Maguire am a senior lecturer in international law at the University of Newcastle Law School.