Australia: Canberra to act on death penalty ban

From The Age:

Canberra to act on death penalty ban
Cynthia Banham

THE Federal Government has written to the states, telling them of its plans to introduce laws banning them from ever reintroducing the death penalty, whether they like it or not.

While all states have abolished the death penalty, there is nothing preventing a government from bringing it back.

The Age has a copy of a letter sent from Federal Attorney General Robert McClelland to his state counterparts on June 16, informing them "of the Commonwealth Government's intention to introduce legislation to prohibit the application of the death penalty throughout Australia".

The language of the letter is significant, as it indicates the Federal Government has opted to use the external affairs power in the constitution to put the prohibition in place.

This is instead of asking the states to refer their powers to the Commonwealth to enable it to pass the laws banning the reintroduction of the death penalty — an option that is seen as less watertight by the Federal Government because usually states only refer their powers for a limited period of time.

It is understood the Federal Government has legal advice that under the external affairs power and international treaties signed by Australia, including the Second Optional Protocol to the International Covenant on Civil and Political Rights, it is able enact the laws and so intends to take this path.

The Federal Opposition's preference will be to not rely on the external affairs power.

The Federal Government has given the states until Monday to respond to its letter and said the formal prohibition would "further demonstrate our nation's commitment to the worldwide abolitionist movement".

"It would complement our co-sponsorship of resolutions calling for a moratorium on the death penalty in the United Nations General Assembly and safeguard the fulfilment of our obligation under the Second Optional Protocol to the International Covenant on Civil and Political Rights to abolish the death penalty within Australia's jurisdiction," the letter said.

Three Australians are on death row in Indonesia — Scott Rush, Myuran Sukumaran and Andrew Chan, who are part of the so-called "Bali Nine".

The Federal Government is keen to send a strong message internationally about Australia's opposition to the death penalty.

There is cross-party support for the Federal Parliament to ban states from reviving the death penalty. A bipartisan working group against the death penalty, including Liberal Senator Gary Humphries, was established late last year.

The bill to ban the reintroduction of the death penalty is likely to be introduced into Parliament in spring. It will probably form part of the same bill criminalising torture as a federal offence.

The Federal Government has already consulted with the states over its decision to make torture a Commonwealth offence and to ratify the Optional Protocol to the United Nations Convention against Torture, which involves allowing international inspections of places of detention.

It is understood that the West Australian Liberal Government is the only state to have raised concerns over the issue.