Bills Digest no. 91 2009–10
Crimes Legislation Amendment (Torture Prohibition and
Death Penalty Abolition) Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Crimes Legislation Amendment (Torture
Prohibition and Death Penalty Abolition) Bill 2009
Date introduced: 19 November 2009
House: House
of Representatives
Portfolio: Attorney-General
Commencement: On the day after the Royal Assent.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of the Bill is
to:
On 8 August 1989, Australia ratified the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment (UNCAT).[1] The UNCAT requires states to take effective
measures to prevent torture within their borders, and forbids
states to return people to their home country if there is reason to
believe they will be tortured. The UNCAT is supplementary to
Article 5 of the Universal Declaration of Human Rights and article
7 of the International Covenant on Civil and Political Rights, both
of which provide that no one may be subjected to torture or to
cruel, inhuman or degrading treatment or punishment.
According to the UNCAT,
‘torture’ means:
any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a
third person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does
not include pain or suffering arising only from, inherent in or
incidental to lawful sanctions.[2]
In summary, the definition contains four essential criteria:
- the involvement of a public official, at least by
acquiescence
- the infliction of severe physical or mental pain or
suffering
- intention to inflict severe physical or mental pain or
suffering, and
- that it is for a specific purpose, such as extracting a
confession or information.
Furthermore, the prohibition against torture is absolute
and, according to the UNCAT, no exceptional circumstances
whatsoever, including state of emergency or war or an order from a
public authority, may be invoked as a justification of
torture.[3]
To ratify the UNCAT in Australia, the Crimes (Torture) Act
1988 was enacted by the Commonwealth Parliament.
According to the Explanatory Memorandum for that Bill its purpose
was to:
… establish Australian jurisdiction over acts of torture
committed outside Australia where the offender is found within
Australian territory. The acts of torture covered by the Bill
are those defined in Article 1 of the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Bill creates a federal offence of torture to cover
proscribed acts committed outside Australia. Any act of
torture committed within Australia is not covered by the Bill since
the laws of the States and Territories are considered adequate to
deal with such acts. The federal offence is defined by
reference to the law of the State or Territory in which the alleged
offender is prosecuted.[4]
Under the terms of the UNCAT, a Committee against Torture (the
Committee) was established. Australia is required, under
Article 19 of the UNCAT, to submit compliance reports to the Committee every
four years. The Committee issued
‘Concluding Observations on Australia’
following a review of Australia’s compliance with the
UNCAT at its 40th Session in Geneva in May 2008.[5] In that report, the
Committee recommended, amongst other things, that Australia should
ensure that torture is adequately defined and specifically
criminalised at the federal, state and territory levels in
accordance with Article 1 of UNCAT.
This Bill is a direct response to that recommendation.[6]
Torture is not a modern day phenomenon. It has been argued
that:
An understanding of the concept of torture cannot be separated
from the legal practices that have shaped its meanings and
implications … Torture is rooted in European legal reform of
the seventeenth and eighteenth centuries. The growth of
judicial torture in medieval Europe was not simply the product of
arbitrary and capricious politics, but rather a desire to create
legally reliable evidence.[7]
There is evidence, for instance, of its use in Northern Ireland
in the 1970s[8] and
Israel in the 1990s.[9] More recently, following the events in New
York on 11 September 2001 (9/11) and the ongoing threat of
terrorist attack, there has been considerable debate about the
merits or otherwise of torture as an interrogation tool. This
debate is sometimes couched in terms of a ‘ticking bomb
hypothetical’—that is, whether terrorists in custody
could/should be tortured to reveal information regarding an
imminent threat to innocent life.[10]
In this context, some writers advocate the use of torture to
gather information ‘to avert grave risk’.[11] Others suggest a
regulatory regime of rules-with-exceptions for torture in the same
way that other evils, such as the use of lethal force by police
officers, are regulated.[12] These writers have some support. In a BBC
survey of 27 000 people in 25 countries in October
2006,[13] more than
one out of three people in nine of those countries, including the
United States of America, considered a degree of torture to be
acceptable if it saved lives.[14] The results of the survey showed that 75
percent of the Australians polled were against any form of
torture. Whilst no democratic country has, thus far, moved to
legalise torture,
… there is a greater readiness among governments that
would never practise torture themselves to use information which
less squeamish states have obtained—through torture.[15]
By comparison, those against the use of torture argue that it
does not work—that the information provided by victims of
torture is unreliable—and that it will lead to a slippery
slope of further abuse because authorised techniques can be
exceeded and are sometimes used even after they have been
officially withdrawn.[16] At the heart of this absolute rejection of
torture lies a moral objection to the infliction of suffering and
pain.[17] A
rigorous, deontological[18] view of morality requires the rejection of a morally
wrong action, even if it is thought that such an action would be a
means to a morally good end.
Despite the definition of
‘torture’ [19] contained in the UNCAT, the
legal concept of torture has not been either unified or
coherent. Within the international community there have been
important and ongoing conflicts over the threshold of the severity
of pain and cruelty, the role of intention, the identity of
perpetrators and the positive obligations of states to prevent
torture.[20]
This Bill does not make the definition any clearer and
these issues will always be significant in political, moral and
international spheres.
During the drafting of Article 1 of the UNCAT, the US and UK
governments pushed to strengthen the required intensity of pain or
suffering by adding the word ‘extremely’ before
‘severe’,[21] to better distinguish between acts which constitute
torture and those which constitute cruel, inhuman or degrading
treatment or punishment. However this move was
defeated. According to Manfred Nowak, UN Special Rapporteur
on Torture:
… the severity of pain or suffering
… is not a criterion distinguishing torture from cruel and
inhuman treatment. [Rather] whether cruel or inhuman treatment can
also be qualified as torture depends on the fulfilment of the other
requirements in Article 1; mainly whether inhuman treatment was
used for any purpose spelled out therein.[22]
Article 1 of the UNCAT requires that the perpetrator
‘intentionally’ causes severe pain or suffering before
the act qualifies as ‘torture’. This means that
purely negligent conduct will never come within the definition of
torture.
The requirement of a specific purpose is the most decisive
criteria distinguishing torture from cruel or inhuman
treatment.[23] Not every purpose is sufficient. The
purpose must have something in common with the purposes expressly
listed in Article 1 of the UNCAT, that is:
- extracting a confession
- obtaining information from the victim or a third person
- punishment
- intimidation and coercion, or
- discrimination.[24]
In the Australian context, these issues were part of the ongoing
debate arising out of the detention of Australian citizens Mamdouh
Habib and David Hicks by the United States of America who were both
transferred to US custody following their apprehension in Pakistan
in October 2001 and in Afghanistan in December 2001,
respectively.[25]
Their cases are the most publicised examples of Australians being
recently subjected to torture. It was not until 10 June 2004
that David Hicks was charged with conspiracy to commit war crimes,
attempted murder and aiding the enemy. Mr Habib was released on 28
January 2005 on the basis that there was insufficient evidence to
lay charges against him.[26]
On 15 February 2006, a joint report[27] was submitted by five holders of
mandates of special procedures of the Commission on Human Rights
who had been jointly following the situation of detainees held at
the United States Naval Base at Guantanamo Bay since June
2004.[28]
That report states that on 16 April 2003, the United States
Secretary of Defense authorised the use of the following:
- removal of incentives, that is, comfort items
- exposure to extreme temperatures and deprivation of light and
auditory stimuli
- altering the environment to create moderate discomfort by, for
example, adjusting temperature or introducing an unpleasant
smell
- adjusting the sleeping times of the detainee by reversing sleep
cycles from night to day, and
- isolating the detainee from other detainees while still
complying with basic standards of treatment.[29]
In recommending that the United States close down its Guantanamo
Bay facility, the report further states:
On the interviews conducted with former detainees, the Special
Rapporteur concludes that some of the techniques, in particular the
use of dogs, exposure to extreme temperatures, sleep deprivation
for several consecutive days and prolonged isolation were perceived
as causing severe suffering. He also stresses that the simultaneous
use of these techniques is even more likely to amount to torture.
The Parliamentary Assembly of the Council of Europe also concluded
that many detainees had been subjected to ill-treatment amounting
to torture, which occurred systematically and with the knowledge
and complicity of the United States Government. The same has
been found by Lord Hope of Craighead, member of the United
Kingdom’s House of Lords, who stated that “some of [the
practices authorized for use in Guantánamo Bay by the United
States authorities] would shock the conscience if they were ever to
be authorized for use in our own country.”[30]
Although the United States Government denied allegations of
torture,[31] both
David Hicks[32] and
Mamdouh Habib[33]
alleged they were tortured during their detention. Whilst
their specific allegations remain undetermined, the findings of the
United States District Court for the District of Columbia in the
recent matter of Fouad Mahmoud al Rabiah v United States
would seem to put beyond doubt that, in fact, conduct amounting to
torture was practised at Guantanamo Bay.[34]
Since Federation in 1901, only 114 persons have been legally
executed in Australia.[35] The abandonment of the death penalty both in
Australia and overseas was gradual,
beginning with a reduction in the use of cruel and tortuous
executions, through the curtailment of a range of corporal
punishments, eventually to the cessation of public executions and
finally to the abolition of the death penalty itself.[36]
Queensland was the first state to abolish the death penalty in
1922. The last state to do so was Western Australia in
1984.[37]
Even before its formal abolition though, there was a practice of
commuting the death sentence, although this varied from state to
state, depending on the policy of the government of the
day.[38]
Under Commonwealth law, the death penalty was abolished in 1973
by section 4 of the Death Penalty Abolition Act
1973. Section 5 of that Act effectively substituted any
reference to the punishment of death in a Commonwealth statute with
a reference to the punishment of imprisonment for life.
The second important step for Australia was its October 1990
ratification of the Second Optional Protocol to the International
Covenant on Civil and Political Rights (ICCPR) which effectively
accepts that capital punishment is contrary to human rights and
human dignity.[39] According to former High Court Justice Michael
Kirby, ‘it represents an obstacle to any attempt on the part
of a State or Territory of Australia to restore capital
punishment’.[40]
This Bill will extend the application of the current prohibition
on the death penalty to state laws to ensure that the death penalty
cannot be reintroduced anywhere in Australia.[41]
In 2003, the public and political reaction to the death sentence
for Bali bomber Amrozi revived capital punishment as an issue in
Australia.[42]
Then Prime Minister, John Howard MP, is reported as stating
that
The death penalty for Bali Bomber Amrozi should be carried
out… [and] so far as the imposition of the death penalty is
concerned, it will not be the intention of the Australian
government to make any representation to the Government of
Indonesia that that penalty not be carried out.[43]
Then Opposition Leader, Simon Crean MP, also did not oppose the
death sentence.[44]
These reactions were at odds with Australia’s stated
commitment under the Second Optional Protocol to the ICCPR to
abolish the death penalty not only in Australia, and to lobby
against the death penalty internationally on international law
grounds. However, it should be noted that the death penalty
debate for countries other than Australia is a slightly different
debate because of the political and diplomatic tensions that arise
from Australia telling another country how to treat its own
citizens or how to frame its own laws.
Mr Howard was subsequently reported as calling for a national
debate on the reintroduction of the death penalty, suggesting that
it be ‘raised by state oppositions as an election
issue’, and that it could be ‘pursued at a state
political level’.[45]
Despite reports that a poll taken in 1999 indicated that 54 per
cent of Australians believed that Australia should have the death
penalty at that time, the response by state politicians to Mr
Howard’s suggestion was largely unfavourable.[46] In a more recent
poll, taken in August 2009, a clear majority of Australians
(64 per cent), said that imprisonment should be the penalty for
murder compared to just 23 per cent who said that the penalty
should be death.[47]
However, the issue of the death penalty was in the news again in
December 2005 following the hanging of Australian Nguyen Tuong Van
in Singapore,[48]
and the death sentences pronounced on some members of the
‘Bali Nine’ in Indonesia in 2006.[49]
The arguments against the death penalty seem to be
compelling:
- it is brutal. The current methods are:
- hanging which can
take as long as nine minutes before death occurs
- lethal injection
which may take place in front of an audience, and
- shooting[50]
- judges and juries make mistakes. It is too late to
reverse the decision or compensate the prisoner for a miscarriage
of justice after the death sentence has been carried out.[51]
- capital punishment does not rehabilitate offenders.[52] This was
particularly the case with Nguyen Tuong Van who was ‘young,
contrite and with no criminal record’.[53]
- it is not an effective deterrent. According to Lex Lasry
QC, who was a member of Nguyen Tuong Van’s defence team:
In the US, even as the use of the death penalty continued to
decline, the number of murders and the national murder rated
dropped in 2004. According to the FBI Uniform Crime
Report for 2004, the nation’s murder rate fell by 3.3
percent.[54]
Nevertheless, there may be a certain public ambivalence to the
question of the imposition of the death penalty which has arisen
since the events of 9/11. In the context of the ‘war on
terror’ the community may yet question whether the death
penalty is, in fact, an appropriate punishment for terrorist acts
if they were to be carried out on Australian soil.[55]
The Selection of Bills Committee resolved that this Bill not be
referred to Committee for inquiry[56] and it would seem that there is bipartisan
support for the Bill.
According to the Explanatory Memorandum, the amendments in this
Bill will have no impact on Government revenue.[57]
Item 1 of Schedule 1 of the Bill amends the
Criminal Code by inserting proposed sections
274.1–274.7 into Chapter 8 which contains offences
against humanity.
Proposed section 274.2 creates the criminal
offence of torture in the same terms as Article 1 of the
UNCAT.[58]
Under proposed subsection 274.2(1), a person
(referred to as the perpetrator) commits an offence if he or
she:
(a) engages
in conduct that inflicts severe physical or mental pain or
suffering on a person[59]
(b) the conduct is
engaged in for any of the following purposes:
- to obtain from
the victim or from a third person information or a confession
- to punish the
victim for an act which the victim or a third person has committed
or is suspected of having committed
- to intimidate or
coerce the victim or a third person, and
(c) the perpetrator
engages in the conduct in their capacity as a public official
whilst acting in an official capacity or at the instigation, or
with the consent or acquiescence, of a public official.
A second criminal offence is created by proposed
subsection 274.2(2) in similar terms except that the
conduct described in paragraph (b) is based on discrimination of
any kind. The relevant fault element is contained in section
5.6 of the Criminal Code and is referred to as ‘ulterior
intention’ which focuses on a defendant’s intention to
bring about a particular result.[60] It is not necessary to prove that the
result actually eventuated.
The requirements of proposed paragraphs
274.2(1)(c) and 274.2(2)(c) provide that
an integral component of the offence is the involvement of a public
official or person acting in an official capacity. The
requirements of these paragraphs will be satisfied whether the
person in question actually tortures the victim, or instigates the
act of torture, or consents to, or acquiesces in it.[61]
The maximum penalty for both of the offences is imprisonment for
20 years.
Under proposed subsection
274.2(3), absolute liability applies in respect of
proposed paragraphs 274.2(1)(c) and 274.2(2)(c) which requires that
the perpetrator must be a public official, or a person acting in an
official capacity, or acting at the instigation, or with the
consent or acquiescence of a public official or other person acting
in an official capacity.[62] The effect of this provision is that no fault
element needs to be proved in respect of the alleged offence, and
the defence of mistake of fact is not available.
Proposed subsection 274.2(5) states that the
extended geographical jurisdiction—(Category D) provisions in
existing section 15.4 of the Criminal Code will apply to the
offence, meaning the offence will apply
- whether or not the conduct constituting the alleged offence
occurs in Australia, and
- whether or not a result of the conduct constituting the alleged
offence occurs in Australia.
Where the conduct outlined in proposed section
274.2 occurs wholly outside Australia, proceedings must
not take place except with the written consent of the
Attorney‑General. Nevertheless an arrest warrant
may be issued and executed; a person may be arrested for the
offence; charges may be laid and the person may be remanded in
custody or on bail prior to the Attorney-General’s consent
being given: proposed section 274.3.
Consistent with the absolute prohibition on torture in the
UNCAT, proposed section 274.4 provides that
it is not a defence in a proceeding for the criminal offence of
torture that:
- the relevant conduct was done out of necessity arising from the
existence of a state of war, a threat of war, internal political
instability, a public emergency or any other exceptional
circumstance, or
- the accused acted under orders of a superior officer or a
public authority in engaging in the relevant conduct.
However those matters may be taken into account in determining
the proper sentence if the accused is convicted of the offence.
Proposed section 274.6
specifically provides that proposed Division 274—Torture does
not exclude or limit the concurrent operation of any other law
of the Commonwealth or any law of a state or territory. As a
result, existing state or territory provisions in relation to
torture, such as section 320A of the Criminal Code Act 1899
(Qld), will continue to operate where relevant.
A ‘double jeopardy’ safeguard is contained in
proposed section 274.7 so that a person who is
convicted or acquitted of a torture offence in another country,
cannot be convicted of an offence under the torture provisions
created by this Bill.
Items 2 and 3 of Schedule 1 of
the Bill omit existing references to torture in the Criminal Code
which are inconsistent with the definition of torture contained in
proposed section 274.2.
Item 4 is a consequential amendment which
repeals the whole of the Crimes (Torture) Act 1988.
Australian courts will presumably have recourse to the
international jurisprudence regarding torture when construing these
provisions, which so clearly stem from an international context,
with specific international instruments.
Schedule 2 of the Bill amends
the Death Penalty Abolition Act to extend its application to
offences under state law(s). In particular item
5 inserts proposed section 6 which
specifies that the punishment of death must not be imposed as the
penalty for any offence under state law(s). The Death Penalty
Abolition Act already applies to Commonwealth, territory and
Imperial criminal laws.
[1].
The text of the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment can be viewed at http://www.hrweb.org/legal/cat.html
[2].
Article 1, UNCAT.
[3].
Article 2, UNCAT.
[4].
Explanatory Memorandum, Crimes
(Torture) Bill 1988, p. 2.
[5].
Committee Against Torture,
Concluding Observations of the Committee Against Torture on
Australia, 15 May 2008, viewed 22 January 2010
http://www.hrlrc.org.au/files/CX9F5DW2WB/Australia%20CAT%20COBs.pdf
[6].
The full text of the Australian
Government’s response is able to be viewed at
http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(084A3429FD57AC0744737F8EA134BACB)~Australian+Government+Response+to+Four+Concluding+Observations+of+UN+Committee+Against+Torture+-+May+2009.pdf/$file/Australian+Government+Response+to+Four+Concluding+Observations+of+UN+Committee+Against+Torture+-+May+2009.pdf
[7].
T Kelly, ‘The UN Committee
Against Torture: Human Rights Monitoring and the Legal Recognition
of Cruelty’, Human Rights Quarterly, Vol. 31, No. 3,
August 2009, pp. 777–800 at p. 781.
[8].
Report of the Committee of Privy
Counsellors Appointed to Consider Authorised Procedures for the
Interrogation of Persons Suspected of Terrorism 1972, viewed 25
January 2010, http://cain.ulst.ac.uk/hmso/parker.htm
[9].
Report of ruling by Israel High
Court of Justice, 6 September 1999, viewed 25 January 2010,
http://www.btselem.org/english/torture/HCJ_Ruling.asp
[10].
P Rumney and M O’Boyle,
‘The torture debate’, New Law Journal, Vol.
157, No. 7296, November 2007, p. 1566.
[11].
M Bagaric and J Clarke, Torture: when the
unthinkable is morally permissible, State University of New
York Press, Albany, 2007, p. 34.
[12].
E Posner and A Vermeule, Terror in the
balance: security, liberty and the courts, Oxford University
Press, New York, 2007, chapter 7.
[13].
‘One third support some torture’,
BBC news, 19 October 2006, viewed 22 January 2010,
http://news.bbc.co.uk/2/hi/6063386.stm#table
[14].
‘Is torture ever justified?’,
The Economist, 22 September 2007, pp. 61–62 at p.
61.
[15].
Ibid.
[16].
P Rumney and M O’Boyle, ‘The torture
debate’, New Law Journal, Vol. 157, No. 7296,
November 2007, p. 1566.
[17].
T Kelly, ‘The UN Committee
Against Torture: Human Rights Monitoring and the Legal Recognition
of Cruelty’, Human Rights Quarterly, Vol. 31, No. 3,
August 2009, pp. 777–800 at p. 780.
[18].
‘Deontology’ is the study of the
nature of duty and obligation.
[19].
Although the UNCAT speaks of
‘torture’ in general terms,
it takes many forms including beating, electric shock, rape and
sexual abuse, mock execution or threat of death, prolonged solitary
confinement, sleep and sensory deprivation, shackling interrogees
in contorted painful positions or in painful stretching positions,
and applying pressure to sensitive areas, such as the neck, throat,
genitals, chest and head. See M Bagaric and J Clarke, op.
cit., p. 12.
[20].
T Kelly, op. cit., p. 781.
[21].
M Nowak, ‘What Practices Constitute
Torture?: US and UN Standards’, Human Rights
Quarterly, Vol. 28, 2006, pp. 809–841 at p. 819.
[22].
Ibid., pp. 821–822.
[23].
Ibid., p. 830.
[24].
For example, ‘caste-based’
discrimination such as that which has been reported in Nepal.
See Centre for Human Rights and Global Justice, Statement before
Committee Against Torture, 8 November 2005, viewed 29 January
2010,
http://www.chrgj.org/docs/CHRGJ%20Statement%20to%20Committee%20Against%20Torture%20on%20Nepal.pdf
[25].
D Melham, MP, ‘Adjournment speech:
torture’, House of Representatives, Debates, 21 June
2007, p. 170, viewed 25 January
2010,
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F2007-06-21%2F0263%22
[26].
N Brew, J Millar, R Jordan and S Harris Rimmer,
Australians in Guantanamo Bay: a chronology of the detention of
Mamdouh Habib and David Hicks, Parliamentary Library,
Canberra, 29 May 2007, viewed 27 January 2010,
http://www.aph.gov.au/library/pubs/online/Australians_GuantanamoBay.htm
[27].
The reporters were the Chairperson of the
Working Group on Arbitrary Detention, Ms L Zerrougui; the
Special Rapporteur on the independence of judges and lawyers,
Mr L Despouy; the Special Rapporteur on torture and other
cruel, inhuman or degrading treatment or punishment, Mr M Nowak;
the Special Rapporteur on freedom of religion or belief, Ms A
Jahangir and the Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental
health, Mr P Hunt.
[28].
Situation of detainees at Guantanamo
Bay, 15 February 2006, viewed 27 January 2010,
http://www.globalsecurity.org/security/library/report/2006/guantanamo-detainees-report_un_060216.htm
[29].
Ibid., paragraph 50.
[30].
Ibid., paragraph 52.
[31].
M Wilkinson, ‘White House and Pentagon
deny allegations’ The Age, 2 December 2004,
p. 4.
[32].
No attributed author, ‘Hicks drugged and
beaten’, Australian Financial Review,
11 December 2004, p. 4; No attributed author, ‘Ex-inmate
says Hicks told him of torture’, The Age, 24
November 2006, p. 4; and T Allard, ‘Hicks tells of torture
and abuse inside Guantanamo’ The Age, 2 March 2007,
p. 1.
[33].
No attributed author, ‘Habib torture
possible’, Hobart Mercury, 15 February 2005, p.
4.
[34].
Fouad Mahmoud al Rabiah v United
States 25 September 2009, viewed 27 January 2010,
http://www.pillsburylaw.com/siteFiles/News/1259B22146574C540A8871C2C3131CA2.pdf
[35].
I Potas and J Walker, Capital
Punishment, Australian Institute of Criminology, February
1987, p. 1, viewed 21 January 2010,
http://www.aic.gov.au/documents/F/6/D/%7BF6D67388-75E0-4CBC-8181-E0BF0204D3CF%7Dti03.pdf
[36].
D Indermaur, ‘Changing attitudes to the
death penalty: an Australian perspective’, Current Issues
in Criminal Justice, Vol. 17, No. 3, March 2006,
pp.444–450 at p. 445.
[37].
I Potas and J Walker, op. cit., p. 2.
[38].
M Kirby AC CMG, ‘The High Court and the
death penalty: Looking back, looking forward, looking
around’, Australian Law Journal, Vol. 77, 2003, pp.
811–819 at p. 812.
[39].
Preamble, Second Optional Protocol, viewed 21
January 2010, http://www2.ohchr.org/english/law/ccpr-death.htm
[40].
M Kirby AC CMG, ‘The High Court and the
death penalty’, op. cit., p. 817.
[41].
Explanatory Memorandum, p. 2.
[42].
A Webster, ‘PM sparks death debate’,
Sunday Age, 10 August 2003, p. 5.
[43].
M Forbes, ‘Howard; death penalty should be
carried out’, The Age, 8 August 2003, p. 6.
[44].
Ibid.
[45].
C Banham and R Wainwright, ‘PM ignites
death penalty furore’, Sydney Morning Herald,
9 August 2003, p. 1.
[46].
A Bolt, ‘Amrozi taps anger’,
Herald Sun (Melbourne), 11 August 2003, p. 19.
[47].
Roy Morgan Research, August 2009, viewed 29
January
2010,
http://www.roymorgan.com/news/polls/2009/4411/
[48].
Editorial, ‘How Australia failed Nguyen
Tuong Van: rescue bid too little too late’, Sydney
Morning Herald, 1 December 2005, p. 14.
[49].
M Forbes, ‘Execution shock for Bali
nine’, The Age, 6 September 2006, p. 1.
[50].
L Lasry QC, ‘Australia and the death
penalty: are we really against it?’, Capital
Punishment, June 2006, pp. 58–61 at p. 59.
[51].
The most famous case is that of Timothy Evans
who was hanged in England in 1950 for the murder of his infant
daughter. An official inquiry conducted 16 years after the
hanging determined that his daughter had by killed by his
co-tenant, serial killer John Christie. Evans was
subsequently granted a posthumous pardon.
[52].
I Potas and J Walker, op. cit., p. 5.
[53].
D Indermaur, op. cit., p. 445.
[54].
L Lasry QC, op. cit., p. 59.
[55].
C Banham and R Wainwright, op. cit.
[56].
Selection of Bills Committee, Report 18 of
2009, 26 November 2009, paragraph 3.
[57].
Explanatory Memorandum, p. 2.
[58].
Proposed section 274.1 defines
the term ‘convention’ to mean
the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment adopted by the General Assembly
of the United Nations at New York on 10 December 1984, and provides
that the use of an expression in the Bill has the same meaning as
the same expression in the Convention.
[59].
The requirement that a perpetrator
‘engages in conduct’ is consistent with the terms of
section 4.1 of the Criminal Code which defines the physical
elements of a criminal offence.
[60].
Explanatory Memorandum, p. 6.
[61].
Note also that Part 2.4 of the Criminal Code has
the effect of extending liability to the ancillary offences of
attempt, complicity and common purpose; innocent agency; incitement
and conspiracy.
[62].
Absolute liability is detailed in section 6.2 of
the Criminal Code.
Paula Pyburne
1 February 2010
Bills Digest Service
Parliamentary Library
Back to top