Australia: No death penalty, no shades of grey

By Professor George Williams
From The Sydney Morning Herald, 2 March 2010

The Death Penalty Abolition Bill debated in Federal Parliament last week is the most important initiative on the death penalty for decades. If passed, it will block any state attempt to bring back capital punishment. If it did, the law would be a clear and principled statement that Australia renounces the death penalty now and into the future.

Although the death penalty has been absent from the statute book for 25 years - NSW was the last to eradicate it in 1985 - the new law is needed. The silence in federal law on capital punishment means the death penalty could be reintroduced by any state at any time. This is not only a legal but a political possibility due to statements made over many years by our leaders.

The Opposition Leader, Tony Abbott, is the latest to try to have it both ways. He said recently he had ''always been against the death penalty'', but went on to say that, in the case of someone ''who cold-bloodedly brought about the deaths of hundreds or thousands of innocent people'', you ''start to think that maybe the only appropriate punishment is death''.

Abbott is not alone in attempting to combine a principled stand with an inconsistent appeal to raw emotion. Politicians from both sides have taken the same course. The attraction is obvious as it is an appeal to populism.

A 2005 Bulletin poll showed that most Australians supported capital punishment. The Australian National University's 2007 Electoral Survey found that 44 per cent of people thought the death penalty should be reintroduced - 38 per cent disagreed. Australia may not have the death penalty, but a sizeable part of the population supports its return.

This leaves Australian law in an unsatisfactory state and our citizens facing the death penalty overseas in an even worse situation. Equivocation on the death penalty by our leaders, such as by recognising it as appropriate for someone like Saddam Hussein, makes it harder to oppose the execution of Australians overseas.

Regarding the Bali bombers, John Howard, as prime minister, said that if the death penalty ''is what the law of Indonesia provides, that is how things should proceed''. Such statements undermine Australian arguments against the death penalty for Australians tried in Indonesia and elsewhere.

This has been pointed out by Scott Rush, one of the Bali Nine, who is facing death. He wrote to the government: ''I don't want to be in any way political but, from a practical point of view of someone inside on death row, it makes practical and good sense to have a consistent position of opposing the death penalty without discrimination.''

Ambiguous statements by our politicians, combined with the silence in our law on the reintroduction of the death penalty, leave the door ajar for its return in a state. A political leader seeking high office could take the law and order debate to a new low by arguing for the reintroduction of the death penalty in response to a particularly heinous crime.

Such a course has even had federal support. In 2003, Howard called for a national debate on the reintroduction of capital punishment as part of new anti-terrorism laws. While he said that he did not personally support this, he nonetheless suggested the death penalty could be raised by state opposition parties as an election issue.

It is time that Australian law and our leaders spoke against capital punishment wherever it is applied and without reservation. The notion that it is acceptable to execute terrorists but not other criminals, or to execute foreign nationals but not Australians, is morally and logically unsustainable. The value of a life is not contingent on a person's nationality or the nature of their crime. Opposition to the death penalty does not permit such shades of grey. Its removal from the law in Australia and elsewhere must be an unequivocal demand.

Unfortunately, no federal law can prevent the reintroduction of the death penalty by a future federal parliament. Prohibiting its reintroduction at the state level is as far as we can go without changing the constitution.

The death penalty was abolished in Australia decades ago but the battle against capital punishment was left incomplete. The possibility remains that it may return under state law. The Federal Parliament must pass the Death Penalty Abolition Bill to ensure this cannot happen.

George Williams is the Anthony Mason Professor of Law at the University of NSW