Posted 20/02/2015 by Genevieve Butler
The debate over the death penalty reignited in early 2015 with the news that Indonesia would execute two Australians who had been convicted of heroin trafficking.
Foreign Affairs Minister Julie Bishop said Australia would seek clemency for Andrew Chan and Myuran Sukumaran, while Shadow Minister for Foreign Affairs Tanya Plibersek also called for a stay of execution for the ‘Bali nine’ drug smugglers. More than 150,000 Australians signed a petition asking for mercy for the two men, who face death by firing squad.
The pleas reflect not only the abhorrence of many towards the death penalty, but also Australia’s international obligation to oppose it. Under the Hawke Government in 1990, Australia ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), which is based on the principle that the abolition of the death penalty enhances human rights and human dignity. Obligations include a commitment to lobby against the death penalty internationally.
There is, however, a somewhat inconsistent attitude to the death penalty amongst Australians. Public opinion polls reveal marked differences, depending on whether those on death row are Australians or foreigners, and whether the crimes were committed in Australia or overseas.
When it comes to domestic murder convictions, Australians are resolutely opposed to the death penalty, with 67 percent preferring imprisonment, and only 23 percent favouring capital punishment, according to a 2009 poll. Swap the crime to drug offences committed overseas, and there is suddenly less opposition to capital punishment. When a January 2015 Morgan poll asked respondents: ‘In Malaysia, Sri Lanka, Indonesia, Singapore and some other countries, the penalty for drug trafficking is death. If an Australian is convicted of trafficking drugs in another country and sentenced to death, in your opinion, should the penalty be carried out or not?’, 52 percent answered ‘yes’, and 48 percent ‘no’.
When terrorism offences enter the fray, views on the death penalty shift yet again. A small majority (52.5 percent) of Australians favour the death penalty for deadly terrorist acts in Australia. Former Prime Minister John Howard favoured the death penalty in Indonesia for the perpetrators of the 2002 Bali bombings, which claimed 202 lives, including 88 Australians.
However, irrespective of public opinion, federal laws, as well as United Nations conventions, preclude the reintroduction of capital punishment in Australia.
In place since the early colonial days, the death penalty was finally uniformly abolished by 2010.
The first recorded execution took place in Sydney on 27 February 1788, when Thomas Barrett was hanged for stealing food from the public stores. In the nineteenth century as many as 80 people per year were hanged for a range of crimes including sheep stealing and forgery, as well as murder and manslaughter. From Federation in 1901 until 1967, 114 people were legally executed.
The last man to receive the death penalty in Australia, Ronald Joseph Ryan, was hanged in 1967 in Victoria. He was executed for shooting a prison guard during an escape from Pentridge Prison. Ryan’s defence counsel, Dr Philip Opas QC, consistently maintained that Ryan was innocent. ‘I became convinced that he couldn't have done it and he didn't do it… Although I was in favour of capital punishment until the Ryan case, I felt that here was an innocent man who'd been executed,’ Opas said in 2003.
The first state to abolish the death penalty was Queensland, in 1922, while NSW was the last state to do so. NSW abolished the death penalty for murder in 1955, but retained the death penalty for treason and piracy until 1985, when the Crimes (Death Penalty Abolition) Amendment Act 1985 (NSW) came into being.
|
Jurisdiction |
Abolished |
Last execution |
|
Queensland |
1922 |
1913 |
|
Tasmania |
1968 |
1946 |
|
Commonwealth |
1973 |
– |
|
ACT |
1973 |
– |
|
NT |
1973 |
1952 |
|
Victoria |
1975 |
1967 |
|
South Australia |
1976 |
1964 |
|
Western Australia |
1984 |
1964 |
|
New South Wales |
1955/1985 |
1940 |
Source: M Walton, The death penalty in Australia and overseas, NSW Council of Civil Liberties, 2005
The death penalty for crimes under federal and territory laws was abolished by the Whitlam Government in the Death Penalty Abolition Act 1973.
It was not until 2010 that the prohibition on the death penalty was extended to state laws, with the Commonwealth Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010. The aim of the Act was to ensure that the death penalty could not be reintroduced anywhere in Australia. Additionally, former High Court Justice Michael Kirby noted that the ICCPR Protocol ‘represents an obstacle to any attempt on the part of a state or territory of Australia to restore capital punishment’.