Australia and the death penalty
The death penalty and the right to life are central to the notion of human dignity upon which human rights law is founded. In recognition of this, international law provides a range of restrictions on the use of capital punishment. Although Australia has completely removed the death penalty from its legal system the issue of its international obligations with respect to capital punishment is one of continuing concern.
VAN NGUYEN AND THE BALI 9
What are Australia’s obligations when one of its citizens is facing the death penalty abroad? This question resonated throughout Australia with the execution of Van Nguyen in Singapore in 2005 and the sentencing of several Australian nationals to death in Indonesia in 2006. Nguyen was convicted of attempting to smuggle nearly 400 grams of heroin through Singapore’s Changi airport in 2002. The Australian and Victorian governments made numerous requests for clemency and contemplated imposing trade sanctions against Singapore or taking the case to the International Court of Justice. The then Prime Minister, John Howard, also made a personal plea to his counterpart, Lee Hsien Loong, and warned that Singapore should prepare for “lingering resentment” if Nguyen was executed.[i] Despite this, he was put to death by hanging on 2 December 2005.
In April 2005, a group of Australian citizens, known as the “Bali 9” were arrested and charged after being caught attempting to smuggle a large amount of heroin from Bali to Australia. The involvement of the Australian Federal Police (AFP) in the apprehension of group made this case particularly controversial. The AFP provided information to the Indonesian National Police (INP) regarding the identities of those involved and the circumstances of the operation. It requested that the INP maintain surveillance over the group, but also advised the INP to “take whatever action they deem appropriate” if they suspected that any member of the group was in possession of drugs when leaving Bali.[ii] Initially, two of the nine, Andrew Chan and Myuran Sukumaran, were sentenced to death. In 2006, the death sentence was imposed for another four of the group however each of these increases has since been successfully appealed. Currently, Sukumaran and Chan are on death row in Kerobokan Prison, awaiting death by firing squad.
AUSTRALIA’S INTERNATIONAL OBLIGATIONS
Most human rights are
negative in nature as they aim to restrain state action against the individual. There are very few rights that impose positive obligations upon the state.[iii] Australia has completely abolished the death penalty and is a party to both the International Covenant for Civil and Political Rights (ICCPR) and its Second Optional Protocol. In addition, in 2011 the Australian government passed, with bi-partisan support, the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act. The Act extends the Commonwealth prohibition of the death penalty (in the Death Penalty Abolition Act 1973) to all States and Territories, ensuring that no Australian jurisdiction can reintroduce the death penalty.
International law experts disagree about the obligations imposed by the Second Optional Protocol. Some consider that it obliges State parties to permanently abolish the death penalty and not extradite a person to a jurisdiction in which they may face the death penalty. Others consider that States retain the discretion to decide whether they will attempt to protect their nationals from capital punishment.
The Australian Federal Court in Rush v Commissioner of Police[iv] held that the Second Optional Protocol provided no obligation upon a State party regarding its dealings with another country in relation to offences that attract the death penalty.[v] The case concerned an application by four of the Bali 9 seeking the identities of the AFP officers who decided to convey information to, and request the assistance of the INP.[vi] The applicants partly relied on Australia being a party to the Second Optional Protocol in arguing that the AFP officers acted without lawful authority and that they had a substantive legitimate expectation that the Australian government, its agencies and public officers, would not act in a manner that would expose Australian citizens to the death penalty abroad.[vii]
Although the Federal Court found that the role of the AFP in the apprehension of the Bali 9 was lawful, Finn J noted that the circumstances of the case strongly suggest that review is required of the procedures and protocols of the AFP where they are cooperating with authorities abroad in situations that “predictably could result in the charging of a person with an offence that would expose that person to the risk of the death penalty in that country.”[viii] As Ronli Sifris writes, given Australia’s commitments to the abolition of the death penalty and international cooperation “it should behave in a way which gives effect to both these commitments.”[ix]
However, legal obligations do not always equate with their moral counterparts. Australia is still under a moral obligation to its nationals sentenced to death abroad. We have committed to the abolition of the death penalty and there was widespread horror and anger to the execution of Van Nguyen. A strong stance against the death penalty is in Australia’s interests and could strengthen diplomatic efforts such as those undertaken on behalf of Van Nguyen and the Bali 9. This is a problem that will continue to arise. At the time of writing an Australian man was facing the possibility of being sentenced to death after being charged with drug trafficking in Vietnam. If the Australian government wants to exert genuine pressure on other nations to abolish the death penalty and spare its citizens, and others, from capital punishment then it needs to adopt a principled opposition to the death penalty, even when such a stance proves unpopular.
[i] Daniel Hoare, ‘Australian Exceptionalism: the Bali nine and the future of the death penalty’ (July 2007) 25 Monthly 20, 24.
[ii] Simon Bronitt, ‘Directing Traffick and the Death Penalty: Policing the Borders of Drug Law Enforcement’ (2006) 30 Criminal Law Journal 270, 271.
[iii] Paul Harpur, ‘The Evolving Nature of the Right to Life: The impact of positive human rights obligations’ (2007) 9 University of Notre Dame Australia Law Review 95, 95-96.
[iv] [2006] FCA 12 (‘Rush’)
[v] Rush [2006] FCA 12, 67.
[vi] Rush [2006] FCA 12, 54.
[vii] Rush [2006] FCA 12, 48; 57.
[viii] Rush [2006] FCA 12, 1.
[ix] Ronli Sifris, “Balancing Abolitionism and Cooperation on the World’s Scale: The case of the Bali nine’ (2007) 35 Federal Law Review 81, 92.
