- Australia's advocacy on abolition of the death penalty
- This chapter provides an overview of Australia’s Strategy for Abolition of the Death Penalty (the Strategy) and how Australia advocates for the abolition of the death penalty internationally. The chapter also touches on progress against the recommendations of the Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFADT) 2016 report, A world without the death penalty, Australia’s advocacy for the abolition of the death penalty (2016 Report), as relates to the topics explored in this chapter.
- The Chapter also examines:
- how Australia advocates for Australians at risk of or facing the death penalty;
- the role of Civil Society Organisations (CSOs) and Non-Governmental Organisations (NGOs);
- targeted advocacy; and
- opportunities and risks for Australia’s advocacy.
Australia’s current strategy for the abolition of the death penalty
3.3Recommendation 8 from the 2016 Report, which was accepted by the Government, stated that:
The Committee recommends that the Department of Foreign Affairs and Trade coordinate the development of a whole-of-government Strategy for Abolition of the Death Penalty which has as its focus countries of the Indo-Pacific and the United States of America.
3.4Recommendations 8, 9 and 10 of the 2016 Report called for the development of the Strategy and highlighted suggested aims and themes. In June 2018, the Department of Foreign Affairs and Trade (DFAT) published Australia’s Strategy for Abolition of the Death Penalty (the Strategy), a whole-of-government strategy, detailing Australia’s policy and approach to the death penalty.
3.5In its submission to this inquiry, DFAT stated that the current Strategy was rooted in the goals recommended by theJSCFADT. Further, the Strategy is centred on a global approach to advocacy and does not highlight specific country goals.
3.6The Strategy states that ‘Australia opposes the death penalty in all circumstances for all people’ and declares Australia’s commitment to pursuing the total abolition of the death penalty through all available means. The overall goal for Australia is the global abolition of the death penalty, which may be gradual and staged in some countries. The Strategy acknowledges that Australia’s focus for advocacy is in the Indo-Pacific region, as recommended by JSCFADT in the 2016 Report.
3.7According to the Strategy, government representations are private in most cases, with public representations only to be used if they are more effective or would complement the work being done privately. Australian officials and Ministers are encouraged to raise the issue of the death penalty as a human rights issue as suitable, through a variety of means. The Strategy also makes clear that public diplomacy is a key part of Australia’s advocacy and is:
… essential to fostering public understanding of Australia’s commitment to abolition. DFAT uses a variety of public diplomacy tools, including online and social media, cultural diplomacy and media engagement, to inform and influence attitudes towards the death penalty.
3.8Ms Angela Robinson, First Assistant Secretary, Multilateral Policy and Human Rights Division, DFAT reinforced that the Strategy provided for ‘a mix of private and public interventions’ and that while there are situations that call for public representations, there are other situations which call for empowering the voices of others.
3.9The joint submission from Capital Punishment Justice Project (CPJP), Eleos Justice, Monash University, Julian Wagner Memorial Fund (JWMF), Australians Against Capital Punishment (AACP), Anti-Death Penalty Asia Network (ADPAN) (CPJP joint submission) acknowledged that theStrategy was ‘intended to have both longevity and flexibility’ and as such, having broad goals and not linking aims to specific countries is a ‘sensible approach.’ The submission further acknowledged that theStrategy is seen by others as Australia being willing to work and lead in the Asia-Pacific region with regards to the abolition of capital punishment.
Updating the current Strategy
3.10In evidence to the inquiry, DFAT commented that work was on the way to update the Strategy through whole-of-government consultation. Ms Robinson advised that the aim of the update was to:
…ensure it remains effective, reflects international and legal developments since 2018, when the strategy was launched, and more broadly depicts and guides whole-of-government advocacy for death penalty global abolition. The updated strategy will set out DFAT's bilateral, multilateral, public diplomacy and consular lines of work.
3.11The importance of the whole-of-government approach in updating the Strategy and making sure that government agencies were all in agreement was highlighted. It was stated that the current Strategy is broad and there is thought being given as to how to provide more specific guidance to posts in countries, based on best practice. Ms Robinson acknowledged:
We have a uniform, global approach, but it's about what more our posts need to strengthen their arm. Those are the sorts of lessons we've learnt.
3.12While there are broad strategies and approaches to advocacy, DFAT noted that there was the need to be aware of what is happening in specific countries at any particular time and to have ‘tailor-made’ approaches that are country specific.
3.13Mrs Lorraine Finlay, Human Rights Commissioner, Australian Human Rights Commission (AHRC) emphasised in relation to an updated Strategy that it is important to make sure it is effectively implemented and ensuring that DFAT is well funded to do this is key.
Public messaging on Australia’s Strategy
3.14Stakeholders to the inquiry were broadly supportive of the Strategy and saw it as a positive step in Australia’s advocacy. However, some noted that the Strategy did not go far enough. The Law Council of Australia (Law Council) stated that it welcomed the development of the Strategy but emphasised that both the Strategy and Government policies around the death penalty could be made more accessible and visible. It was stated that there should be improved public reporting in relation to the implementation of the Strategy, which could be included in DFAT’s Annual Report and the Consular State of Play.
3.15Australian Lawyers for Human Rights (ALHR) also acknowledged the importance of the Strategy but encouraged the Australian Government to continue working at the regional and international level and to be ‘public and proactive’ in its goal. ALHR also contended that Australia’s international advocacy is ‘situational’ and becomes more noticeable when an Australian is at risk of the death penalty overseas.
3.16Recommendation 6 of the 2016 Report, which was agreed to by the Government and noted to already be a part of its advocacy, 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.
3.17The 2016 Report recommended, in relation to public messaging especially, that Australia’s approach should include:
- references to human rights law, including highlighting the ‘right to life’ enshrined in the Universal Declaration of Human Rights;
- condemnation for the imposition of the death penalty on juveniles and pregnant women;
- opposition to its use on people with mental or intellectual disabilities;
- highlighting the disproportionate use of capital punishment on the poor, and ethnic and religious minorities;
- communicating the risks associated with miscarriages of justice, including the irreversibility of capital punishment;
- emphasising the inherently cruel and torturous nature of the death penalty and executions; and
- refer to the ineffectiveness of the death penalty as a deterrent.
- In its submission to this inquiry, DFAT explained that the points listed inRecommendation 6 of the 2016 Report are used in bilateral and multilateral advocacy ‘as appropriate’, in its public messaging, representations and in international settings.
- In terms of tracking progress of Australia’s advocacy, Ms Robinson noted that in part this is done through working with CSOs, reports from Posts and also through the multilateral environments.
How Australia advocates for the abolition of the death penalty
3.20Australia is internationally known for its advocacy on the abolition of the death penalty. DFAT highlighted the consistency of its engagements in multilateral, bilateral and regional settings, engagement with CSOs and ‘like-minded’ countries. It was noted that since JSCFADT’s previous inquiry into Australia’s advocacy for the abolition of the death penalty, DFAT ‘has reinforced its action and commitment to bilateral and multilateral advocacy’.
3.21DFAT explained that since July 2022, it had advocated against the death penalty in bilateral meetings with 73 out of 85 countries. It was emphasised that a key part of bilateral engagement is multilateral advocacy and that DFAT also made use of the United Nation Human Rights Council’s Universal Periodic Review (UPR). This allows Australia to review the human rights records for all countries every four and a half years and make recommendations that the countries need to respond to. Through the UPR. Australia made recommendations for steps towards abolition of the death penalty for 72 of 85 retentionist countries.
3.22In retentionist countries where Australia has not made representations, for example North Korea, it was noted to be due to restrictions in how Australia engages with particular governments.
3.23DFAT stated that Australian ministers and officials highlighted abolition of the death penalty ‘as a priority human rights issue’, when taking part in official duties overseas or in Australia when appropriate. These representations were private in most cases, with DFAT pointing out that public statements were only used if appropriate and if they worked in conjunction with private representations.
3.24Ms Bronte Moules, Ambassador for Human Rights, DFAT articulated that in Australia’s engagement in human rights, ‘how we say is as important as what we say’. In the case of advocating against the death penalty, finding the best ways to have the conversations was important to ensuring they are constructive.
3.25Australia’s approach to advocacy is informed partly by advice from civil society, and it is noted that CSOs are well placed given their connections and networks in various countries. This informed approach, as well as coordinating with like-minded countries, are all considered when developing an approach.
3.26In giving evidence to this inquiry, DFAT stated that Australia worked with like-minded countries and diplomats in various countries to coordinate efforts to advocate for the abolition of the death penalty. Working together, but with different approaches is noted as being beneficial and allowed efforts to be divided up. Although coordination can be useful at times, DFAT cautioned that at other times it’s not an appropriate method, to avoid there being a ‘ganging-up scenario’.
3.27DFAT pointed to key lessons learned from its advocacy since the release of the 2018 Strategy. Some key points noted were:
- The importance of global engagement;
- Tailoring advocacy to local contexts is more likely to result in change;
- The localised nature of risks and opportunities;
- Reforms that are locally driven are more likely to be sustainable and successful;
- Civil society and overseas posts have important knowledge of the local contexts;
- The incremental nature of progress;
- The principle of ‘do no harm’ must always be kept in mind;
- Being aware of what families and individuals facing the death penalty want.
Bilateral advocacy
3.28Bilateral strategies were stated to be country specific and factor both the risks and the opportunities in specific contexts. Posts in retentionist countries:
…work to maintain bilateral strategies on abolition of the death penalty and ensure timely monitoring and reporting on in-country developments.
3.29ALHR stated in is submission that the geographic location of Australia as an abolitionist country in a region of retentionists countries means that Australia’s advocacy is concentrated on regional and bilaterial representations out of necessity. At the bilateral level, ALHR stated that Australia’s stance and advocacy can be seen in its extradition policy, where extradition requests are refused if a person faces a real possibility of the death penalty if extradited.
3.30Submitters to the inquiry argued that there was a risk of private representations being inadequate and stated this form of representation did not present an avenue for accountability. Human Rights Watch (HRW) reasoned that:
As a result of the majority of Australia’s advocacy being private, the public sees very few statements from Australian embassies or the Foreign Minister calling out specific governments about the use of the death penalty. This approach lacks transparency and there is no way to be sure the issues are being raised by Australian officials.
3.31Ms Daniela Gavshon, Australia Director, Human Rights Watch (HRW) contended that the private nature of representations meant there were missed opportunities in Australia’s bilateral advocacy. Ms Gavshon explained that even though executions have taken place in the recent past in Singapore, before the Singapore-Australia Annual Leaders Meeting, the executions were not mentioned in public statements following the meetings. Ms Gavshon also expressed concerns that the Australian Government was not speaking out publicly enough about death sentences in Vietnam and China.
3.32It was argued that advocating on the death penalty in a multilateral forum, but then not seemingly addressing executions in Singapore bilaterally, could make it appear as though Australia was not taking the issue seriously, focusing on diplomatic relations ‘and not having the hard conversations’. Further, Ms Gavshon stated that private diplomacy does not allow for tracking and monitoring of progress. It was claimed that:
When we also relegate these conversations to behind closed doors or human rights dialogues and not actually do it as a matter of course, we push human rights aside, as though it's this pesky issue that we deal with on the side, as opposed to it being a central part of foreign policy and everyday life for everyone.
Multilateral and regional advocacy
3.33Regarding multilateral and regional advocacy, DFAT maintained that Australian Posts with regional and multilateral responsibilities play a role in ‘defending against weakening of international norms on the death penalty’. Australia also seeks to advocate and contribute in various settings including the United Nations General Assembly (UNGA) and the UN Human Rights Council (UNHRC). As part of its multilateral and regional advocacy Australia also aims to foster and maintain relations with relevant UN agencies, civil society groups and those who advocate for human rights, in an effort to progress the abolition of the death penalty globally.
3.34As an example of the Australia’s actions on the international stage, DFAT highlighted Australia’s advocacy within the UN, highlighting a 2022 achievement where:
Australia co-led with Costa Rica the biennial resolution in the United Nations General Assembly that calls on all UN Member States to establish moratoria on executions with a view to abolishing the death penalty. The resolution garnered record support with 125 ‘yes’ votes, 37 ‘no’ votes and 9 abstentions.
3.35HRW acknowledged Australia’s engagement in multilateral advocacy in various settings including the UNGA, UNHRC and through the UPR and noted that this form of advocacy was welcomed. It was asserted, however, that it should be reinforced ‘with strong, public and consistent bilateral engagement’, which was suggested as possibly missing for Australia’s current approach.
3.36Public diplomacy is also used by the Australian Government to advocate for the abolition of the death penalty. DFAT reported that various ‘public diplomacy tools’ are used such as social media and cultural diplomacy, in its advocacy for the abolition of the death penalty. Australian Posts overseas consider the use of appropriate public activities based on local contexts. DFAT also stressed that Posts may also engage in discussion with local prominent figures, both for and against the death penalty, as part of advocacy.
3.37Ms Moules highlighted the role of the church and religious figures. She noted that religious figures have played a role in human rights progress, including in the South Pacific region. Ms Moules explained that this engagement is often incremental and quieter:
…because the last thing you want in these discussions is for these things to be seen to be externally driven. It's locally owned progress. In this whole debate and this sphere that you're talking about, some Pacific island countries are doing very encouraging work on reclaiming what are centuries-old traditions of inclusion and tolerance.
3.38DFAT noted that diplomats in each country assess the groups that are most influential, many of which are religious groups. Dialogue with religious leaders in retentionist countries is stated as being important to DFAT’s work and advocacy. Having discussions with these groups, finding out their thoughts on the death penalty and understanding their perspective plays a role in determining a strategy for that particular country.
Advocating for Australians at risk of or facing a death sentence
3.39DFAT stated that the number of Australians facing the death penalty overseas was small and due to this, the exact numbers are not made publicly available for privacy and welfare reasons.
3.40DFAT further stated that the Australian Government gives the ‘highest priority’ to Australians who are facing or could potentially face a death sentence’. The Government’s commitment is to focus consular resources on the most vulnerable, with guidelines requiring that:
…the highest priority is given to ensuring appropriate, targeted and sensitive ongoing consular assistance is provided to detained Australians facing or potentially facing the death penalty.
3.41The Statement of Intent for Australia’s Strategy for Abolition of the Death Penalty noted that the Strategy did not take into consideration how Australia supports Australians at risk of facing the death penalty overseas. DFAT stated that this is:
…guided by the Department of Foreign Affairs and Trade (DFAT) Consular Policy Handbook, which includes specific guidelines for supporting Australians and Australian long-term residents facing the death penalty overseas.
3.42It was articulated in the Strategy that consular missions, working alongside geographic desks and relevant agencies ‘will develop and implement tailored strategies for engaging with countries of accreditation that retain the death penalty in any form’. The Strategy also noted that posts must have adequate flexibility to respond to changing circumstances in countries, that could create opportunities for rapid change.
3.43Recommendation 5 of the 2016 Report by JSCFADT, recommended that DFAT develop guidelines to support Australians in foreign jurisdictions who may be facing the death penalty.
3.44Recommendation 5 was accepted by the Government and in response, DFAT created and implemented internal guidelines for supporting and advocating for Australians at risk of the death penalty or Australians who have been sentenced to death overseas.
3.45Current DFAT guidelines are in place to support and advocate for Australians sentenced to death or at risk of the death penalty overseas. They provide advice for Posts on:
- Consular assistance
- Diplomatic representations
- Legal support and funding assistance
- Communications and media strategies
- Other forms of support offered by the government.
- DFAT explained that the guidelines are used to develop a strategy for each case to enable planning and management of ‘consular, legal and diplomatic responses.’ The dynamic nature of individual strategies was stressed, with DFAT noting that they were:
…recalibrated to respond to new developments or new information. Death penalty cases are managed with close oversight and guidance provided by senior managers. Effective coordination across government is essential in managing our advocacy in support of Australians in death penalty cases.
3.47Ms Paula Ganly, First Assistant Secretary, Consular and Crisis Management Division, DFAT, noted that the systems in place are tailored, depending on circumstances in different countries. Further, Ms Ganly stated that advice is provided to the individuals as well as their families and that decisions are based on previous experiences with death penalty cases in a particular country, or through discussions with lawyers and partners or with individuals who have experienced similar cases.
3.48Under the guidelines, it is articulated that ensuring individuals and families are aware of the importance of having ‘suitably qualified and experienced local legal representation’ is a priority. Details for the Scheme for Overseas Criminal Matters involving the Death Penalty are also provided.
3.49The joint submission from Harm Reduction International (HRI), International Drug Policy Consortium (IDPC), Australian Injecting and Illicit Drug Users League (AIVL), Women and Harm Reduction International Network (WHRIN), Harm Reduction Australia, Lembaga Bantuan Hukum Masyarakat (LBHM), and the Australian Civil Society Committee on UN Drug Policy (HRI joint submission) emphasised the need for Australia to continue providing timely consular assistance to Australians and stated that missions in retentionists countries should be adequately trained to provide this assistance. It was suggested that missions in retentionist countries should cultivate strong relationships with experienced local lawyers as well as support lawyers who can defend drug defendants facing the death penalty.
3.50Where Australians have non-Australian co-defendants who also face the death penalty, it was argued that the Australian Government should provide support regardless of nationality, particularly in cases where their country of origin in unable or unwilling to do so.
3.51In the case of foreign nationals who face the death penalty in overseas jurisdictions, DFAT commented that Australian officials may also raise cases on an individual basis, as it is not viable to raise every case. It was noted that cases may be raised in certain circumstances including where the strict parameters for the application of the death penalty under international law are not met.
3.52The CPJP joint submission asserted that the way Australians exposed to the death penalty overseas are assisted needed to be improved. It suggested areas of improvement including:
- Early intervention and advocacy;
- Regularly reviewed and quality assured list of lawyers with experience in death penalty cases;
- Closer partnerships with CSOs and NGOs to formulate a ‘strategic and coordinated approach’.
- While the Law Council acknowledged that DFAT had incorporated guidelines for supporting Australians at risk of the death penalty overseas as recommended to its Internal Consular Policy Handbook, it encouraged DFAT to:
ensure that consular arrangements are sufficiently adroit to ensure that high quality legal representation and interpreter support are arranged at the investigation and trial stages of prosecutions when an individual’s rights are most at risk and most capable of being protected by competent representation.
Financial support for Australians at risk of the death penalty overseas
3.54Recommendation 7 of the 2016 Report recommended the Attorney-General’s Department (AGD) make changes to its guidelines for the Serious Overseas Criminal Matters Scheme and the Special Circumstances Scheme. The Government response noted that the AGD conducted a review of the Commonwealth Guidelines for Legal Financial Assistance 2012 and found that it:
…is satisfied that the Guidelines in their present form, in combination with the Legal Assistance Branch’s practice of assigning a case officer to a grant for the entirety of the grant, has resulted in achievement of the objectives stated in Recommendation 7.
3.55Mrs Susie Williamson-de Vries, Assistant Secretary, International Cooperation Unit, Attorney-General’s Department (AGD), explained that where individuals are facing or may face prosecution for a crime that may have a death penalty, they can apply for legal financial assistance if they are unable to meet their own costs. This is not limited to Australian citizens and can also be accessed by individuals who have a proven ‘continuing connection to Australia.
3.56Mr Tom Sharpe, Director, International Crime Treaties and Police Section, Attorney-General’s Department (AGD) noted that individuals facing a death penalty are always considered to be in the ‘most exceptional’ circumstance category. As such, with regards to retrospective costs that are incurred before applications are made:
…the department does pay out costs that are incurred, particularly noting the urgency with which a person facing death penalty charges will need to seek legal representation.
It was noted that the Legal Assistance Branch was in the process of making this clearer by amending their guidelines.
Civil Society Organisations and Non-Governmental Organisations
3.57Ms Moules highlighted the important role of civil society in human rights broadly, noting that CSOs:
…have a track record of really insightful, detailed empirical work…. some of that detailed research is something that DFAT certainly doesn't have the capacity to do, so our collaboration, in terms of consultation, is invaluable for us.
3.58The differences in reporting in different countries and the importance of civil society as a key source for data was emphasised. Ms Robinson stated that:
The Amnesty statistics are often the bible that we refer to on these numbers, because they have such a broad network on the ground. I think data is a real weak spot for us. It means we can't ascertain the extent of the problem. We can't ascertain all of the vulnerabilities of certain groups within that data. We get as much as we can from our posts. We encourage governments to report, and we very much rely on civil society networks.
3.59DFAT acknowledged the important role of civil society in Australia’s advocacy for the abolition of capital punishment. It stated that overseas Posts build and maintain relationships with CSOs who advocate against the death penalty. CSOs were noted to contribute to global abolition through:
…monitoring and documenting developments, sharing expertise and knowledge, supporting affected individuals, and engaging in local decision-making processes. Stakeholders can provide valuable insights into the relative effectiveness and/or risks around different forms of advocacy.
3.60Mr Matthew Goldberg, Director, Capital Punishment Justice Project (CPJP) and President, World Coalition Against the Death Penalty reiterated the importance of civil society by acknowledging the subject matter expertise they bring, which allows then to give advice and assistance on various levels. It was stated that organisations on the ground in retentionist countries were able to provide up-to-date information to those who may be able to broach the issue at a higher level. Further, CSOs work:
…across all of the mechanisms of the United Nations to advance the issue of the death penalty and call for universal abolition, and to achieve the point at which, at law, there may be realised a prohibition of such a penalty.
3.61The importance of the work of CSOs was highlighted in the example of Australian man Luke Cook who was sentenced to death for drug related crimes in Thailand. The work done by CPJP and their network led to the development of an amicus brief, which was co-signed by Mr Chris Hayes, then in his capacity as a Member of Parliament, and West Australian Senator Dean Smith. The Thai Supreme Court considered the amicus brief and conducted a review, which led to all charges against Mr Cook being withdrawn and him being able to return to Australia.
Funding of civil society organisations
3.62 Recommendation 12 of the 2016 Report called on the Australian Government to:
…provide dedicated and appropriate funding to the Department of Foreign Affairs and Trade to fund grants to civil society organisations, scholarships, training, research and/or capacity building projects aimed at the abolition of the death penalty.
The recommendation was accepted in principle by the Government, with the Government noting that funding is contingent to ‘budgetary considerations’.
3.63A key observation from the inquiry was the need for recurrent funding for CSOs and NGOs to undertake the work that they do. Ms Moules noted the importance of funding for CSOs and stated that DFAT had provided various funding over time, primarily through the Department’s human rights advocacy grants program. It was acknowledged that the scale of the funding was small and that between 2017 and 2024, $1.5 million was provided for a variety of projects. Some of the projects funded research on how the death penalty is used, work on legal advice in death penalty cases, as well as public messaging projects. Ms Moules stressed that:
DFAT is, overall, constrained by the sort of budget we have available, but our human rights advocacy grants program has been quite a feature over the years.
3.64The work done by CSOs was stated to often not be well resourced given the challenging circumstances they work in. The CPJP joint submission highlighted that from 1 July 2016 to the time of writing the submission, DFAT had awarded grants of $473,606,770. $746,300 of the grants awarded, 0.16 per cent, ‘could be identified as having been awarded to projects relating to abolishing the death penalty’. It was noted that:
…these figures likely do not show the full picture of funding for projects focused on abolition of the death penalty, they do indicate that such funding allocation has typically declined over the years since the previous inquiry.
3.65As the abolition of the death penalty, as stated in the Strategy, is a priority for Australia, it was argued that ‘sustained, ongoing funding’ to CSOs, should be enhanced.
3.66In further stating the case for funding, Ms Elizabeth Wood, Chief Executive Office, Capital Punishment Justice Project (CPJP) argued the need for recurrent funding and stated that when not fighting for existence, organisations like CPJP can spend time on more advocacy instead of trying to secure the future of the organisation. Ms Sara Kowal, Acting Director, Eleos Justice, Vice-President, Capital Punishment Justice Project and Deputy Convenor, Executive Committee, Anti-Death Penalty Asia Network further emphasised that CSOs were well placed to educate on the death penalty with the networks that they had, but ‘the capacity to be able to do that’ was needed.
3.67CSOs were noted to be held in high regard by DFAT. However, it was stated they could be better used, along with their networks in countries that retained the death penalty, when it came to providing assistance to Australians overseas, at risk of the death penalty.
3.68Beyond funding, the importance of peer-to-peer programmes was noted to be valuable in the work of the international campaign against capital punishment. These programmes included ‘MPs exchanges, academic partnerships and other institutional support, judicial symposiums.’
3.69Concerns were expressed around shrinking civil society, a challenging global environment for human rights generally and challenges facing CSOs in some retentionist countries. It was noted that in some countries, CSOs are unable to register and risked repression if they tried do so.
Targeted advocacy and areas of opportunity
3.70Australia’s geographic location and its relationships with allies, some of whom are retentionist countries, presents Australia with an opportunity to advocate for the abolition of the death penalty with these nations. Some of Australia’s closest allies and neighbours - Singapore, Japan, the United States of America (USA) and Indonesia - all retain the death penalty. While it is acknowledged that this presents both opportunities and risks for Australia, AHRC emphasised that Australia:
continuing to take a principled stance on this issue will provide a tangible demonstration of Australia’s commitment to human rights and the rule of law, promote international dialogue on human rights, and contribute to a more just and humane global society.
3.71Amnesty International Australia (Amnesty Australia) commented that for the global abolition of the death penalty to be realised, abolitionist countries in Africa, the Asia-Pacific and Central Asia need to be engaged in the abolitionist movement, and it cannot be a cause that is backed by ‘western’ countries alone. There is an opportunity to strengthen the abolitionist movement and expand the number of countries who actively advocate for the abolition of the of the death penalty.
Drug related offences
3.72It was noted that there were opportunities for advocacy in countries where the punishment for drug offences is the death penalty, countries with whom Australia has strong diplomatic and trade relations h. Specifically, advocacy that focused on the use of the death penalty for drug offences in the region is important, including in the Pacific, notedly in Tonga, where there is a debate on imposing the death penalty for drug related issues.
3.73In settings such as the UN Commission on Narcotic Drugs (UNCND), it was proposed that countries that are against the death penalty, like Australia, should develop a clear strategy to ensure the issue of capital punishment for drug related crimes remains at the top of the agenda for the UNCND.
Regional, multilateral and bilateral advocacy
3.74The CPJP joint submission acknowledged the persistent use of the death penalty in Australia’s region, despite the global trend towards abolition. Stakeholders including the Law Council highlighted opportunities for advocacy in the Asia-Pacific region, which has the highest number of executions globally. It was recommended that the Australian Government continue to advocate for the end of the death penalty in bilateral meetings with countries that retain the death penalty as well as in regional fora. The Law Council submitted that there were opportunities for advocacy in the Pacific region with Tonga now being the only member of the Pacific Islands Forum to retain the death penalty.
3.75The eight Pacific countries that have abolished the death penalty - Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tuvalu and Vanuatu - have yet to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). The Law Council noted that this was due to financial constraints and recommended that Australia should offer support to these countries to ratify the Second Optional Protocol.
3.76Public and political support in Pacific countries for the retention or reintroduction of capital punishment is present due to what was noted as a failure of the states to respond to violent crime. The Law Council put forward a suggestion that assistance in addressing crime in these countries may be more valuable than advocacy on human rights grounds. There is a role for Australia to partner with Pacific countries to enhance security in the region, ‘to mitigate calls to retain, expand or reinstate the death penalty.’ It was further suggested that Australia’s advocacy would be bolstered by establishing a regional coalition of like-minded countries.
3.77Opportunities were noted for the Australian government to engage in more public advocacy with Singapore, Vietnam and China. Other avenues for targeted advocacy for Australia, which were raised in the inquiry, included the Commonwealth, the Pacific Islands Forum, and the East Asia Summit.
3.78Stakeholders contended that it is not clear whether Australia sufficiently challenged China, the USA or Singapore when it comes to the death penalty.
Domestic advocacy and education
3.79AHRC maintained the need for domestic advocacy and education in Australia’s efforts to advocate for the abolition of the death penalty. Although Australia’s stance and advocacy on the death penalty has been bipartisan and consistent:
…we cannot simply assume that future generations of Australians will automatically be abolitionist, or that they will necessarily understand why Australia has consistently opposed the death penalty for so many years.
3.80It was stated that it was important for Australians to know why the death penalty should be opposed and that general human rights education should be strengthened domestically. The AHRC submission observed that:
…pro-actively building a culture within Australia of respect for human rights and dignity are essential if we want to ensure that progress on key human rights issues.
3.81Domestic advocacy was claimed to be as important as international advocacy to ensure Australians understood why the issue of the death penalty continues to be pertinent. Ms Lorraine Finlay gave evidence that:
…there is always the risk that when a particular human rights advance has been the subject of such longstanding, widespread agreement that it becomes taken for granted to a certain extent. There's a real need to ensure that we do continue to explain why this is important, why it matters and why Australia needs to continue to show global leadership on this issue.
3.82VOICE Australia submitted that it was necessary to educate Australians about the death penalty because as a multicultural nation, some members of society come from countries where the death penalty is practiced and where it ‘hardly stirs debate’. As a result, there is then the need to ‘build and cement Australians’ support for abolition’.
3.83VOICE Australia recommended that the Australian Government give Australians visual signs, for example on travel advisory websites such as Smartraveller, as to whether a country has the death penalty. It was submitted that:
Because webpage visitors are seeking out the information, the countries concerned cannot accuse Australia of publicly naming and shaming them. This should allay DFAT’s concerns, if any, about maintaining good relations.
3.84The NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) suggested in its submission that the Australian Government should engage with diaspora communities so that their concerns and experiences can be incorporated into Australia’s advocacy efforts. STARTTS noted that many from refugee backgrounds hold concerns for loved ones who remain at risk of state sanctions which may include the death penalty.
3.85Working with multicultural communities to advance the issue of the abolition of the death penalty was encouraged as these communities have detailed knowledge of what is happening in their home countries and the risks that may be involved. Ms Jasmina Bajraktarevic-Hayward, Community Services Coordinator, New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) noted that in some communities there is:
…a lot of passion, there's a lot of energy, and there's a lot of commitment, and I think they would welcome collaboration on this issue.
3.86Evidence was heard that Australians’ awareness of the issue of the death penalty is low and that while surveys have shown support for the abolition of the death penalty, there was the need for ongoing education. Mr Ry Atkinson, Strategic Campaigner, Amnesty International Australia argued that:
…advocacy around the death penalty cannot just be contained to when Australians are at risk of the death penalty. It's important to maintain that principled approach no matter who is facing the death penalty, be they Australian citizens or not. It's almost as though it takes an Australian citizen to be at risk of the death penalty for the Australian government to be vocal, the Australian media to pay attention and the Australian public to then become educated in those instances. If the Australian government were more willing to take a more outward and principled approach, no matter the nationality, that could carry through to the public as well.
Access to legal representation
3.87Ms Sara Kowal stated that in countries with the death penalty, individuals from poor and vulnerable communities were overrepresented on death row and that there was a lack of available good lawyers as well as deficiencies in fair trials. It was stressed that specialised lawyers needed to brought on board at an early stage to avoid convictions.
3.88The CPJP joint submission stated that it was their understanding that DFAT can provide lists of English-speaking lawyers to Australians overseas who may be at risk of the death penalty. The submission argued that providing lists that are unvetted was problematic as the initial advice given can impact on an individual’s ability to avoid capital punishment. It was emphasised that,
… it is not sufficient that the key requirement be language alone. Such lists should identify if lawyers have experience on death penalty cases or, at a minimum, practice in criminal law.
3.89It was suggested that there were opportunities for the Australian Government to leverage the legal knowledge and networks of Australia’s legal professions. The Australian Government was encouraged to consider funding CSOs and NGOs to support the work of lawyers with experience in the death penalty in countries that retain capital punishment.
Committee Comment
3.90The Subcommittee acknowledges the efforts made by DFAT since the last inquiry to develop a strategy for the abolition of the death penalty. Since the Strategy was developed and implemented, DFAT has pointed to some key learnings from its advocacy. The decision by DFAT to review its current Strategy and to consult with Government departments, CSOs and other organisations is welcomed and highlights willingness to adapt as lessons are learned. Understanding what has worked and what has not is important for Australia’s’ advocacy to continue to be most effective.
3.91Bilateral advocacy, depending on country factors and country specific risks, can be sensitive in nature. It is not always possible for the Australian Government to make publicly known what private representations are being undertaken. The Subcommittee supports bilateral representations and the Government’s ongoing engagement with foreign jurisdictions. However, the Subcommittee accepts that private representations can make it appear as though little is being done and may appear to lack transparency. In these cases, it may be useful for occasional public statements to assure Australians and advocates that the Australian Government is continually making representations behind closed doors in death penalty related matters.
3.92In terms of advocating for Australians facing the death penalty, the Subcommittee recognises that the small numbers of Australians facing capital punishment necessitates that DFAT not release information publicly to protect their privacy and that of their families. The Subcommittee commends DFAT for the creation of guidelines, following a recommendation from the previous inquiry, which are included in the Consular Policy Handbook to guide Posts in supporting Australians.
3.93The Subcommittee understands that funding to organisations needs to be contingent on budgets. However, the Subcommittee is of the view that CSOs should be provided with adequate recurrent funding to support Australia’s efforts for the global abolition of the death penalty. It is apparent that the work of CSO’s, their networks and the insights they provide are invaluable to the work being done by DFAT.
3.94The Subcommittee believes that domestic education, in part due to Australia’s multicultural society, is a key part of public messaging to ensure that Australians continue to understand how and why Australia advocates for the abolition of the death penalty. It should never be taken for granted that Australians will always oppose the death penalty and domestic education should form part of Australia’s advocacy. Our advocacy is rightly focused on the global abolition of the death penalty, but domestic education should be part of the mix.
3.95The Subcommittee recommends that the Australian Government provide an annual statement against the death penalty, to be delivered in Parliament and across multiple platforms. The statement should:
- Be a joint statement by the Minister for Foreign Affairs and the Attorney General.
- Reinforce the Department of Foreign Affairs and Trade’s Strategy for Abolition of the Death Penalty and allow the Australian Government to clearly articulate Australia’s stance on the death penalty and global abolition.
- Highlight Australia’s advocacy activities in bilateral, multilateral and regional fora.
- Recognise progress in abolishing the death penalty in retentionist states, while also detailing regressive initiatives taken by states.
3.96The Subcommittee recommends the Australian Government in consultation with civil society organisations, consider the development of a strategy for domestic education and awareness raising to reinforce Australia’s opposition to death penalty and its efforts to advocate for its abolition worldwide.
This work could include multicultural groups and associations in the development of resources to engage with diaspora communities in Australia about Australia’s global stance on the death penalty.
3.97The Subcommittee recommends that the Australian Government consider providing adequate funding for civil society organisations to more accurately gather data on trends and current areas of concern regarding the use of the death penalty.
The data will provide the Department of Foreign Affairs and Trade with valuable insights to better formulate country specific engagement strategies for the abolition of the death penalty.
3.98The Subcommittee recommends that the Attorney-General’s Department consult Capital Punishment Justice Project, who have global expertise and experience working with anti-death penalty networks worldwide, regarding the list of lawyers provided by Australian Missions to ensure the competency and qualifications of the local lawyers engaged to represent Australian nationals in capital cases.
Further, the Department of Foreign Affairs and Trade consider the engagement of specialist legal support services such as the Capital Punishment Justice Project to monitor the progress of trials involving Australian nationals and, where appropriate, to support the work and advocacy of local capital defence lawyers.