Nobody has been executed in Australia since 2 February 1967 when Ronald Ryan was hung in Melbourne for shooting a prison guard during an escape attempt.
Since 1973 and the passage of the Death Penalty Abolition Act 1973 (Cth), the death penalty has not applied in respect of offences under the law of the Commonwealth and Territories.
Similar State legislation has outlawed the practice in the remaining Australian jurisdictions. QLD was the first to abolish the death penalty for all crimes in 1922; NSW was the last in 1985. (NSW abolished the death penalty for murder in 1955, but retained the death penalty for treason and piracy until 1985.)
On 11 March 2010, with bipartisan support, the Commonwealth Parliament passed the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act. This Act amends the Death Penalty Abolition Act 1973 (Cth) to extend the current Commonwealth prohibition on the death penalty to all States and Territories. This forecloses the possibility of any individual State jurisdiction reintroducing the death penalty.
On 2 October 1990, Australia confirmed, at an international level, its opposition to the death penalty by ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty. The Protocol entered into force in international law on 11 July 1991.
More recently, on 19 December 2007, Australia sponsored and voted in favour of a landmark United Nations General Assembly resolution which called for an immediate moratorium on executions as a first step towards the universal abolition of the death penalty.
While not binding, this UN Resolution sends a powerful message that the majority of the world's nations are not only committed to the abolition of the death penalty within their own jurisdictions, but are also committed to the abolition of the death penalty beyond their borders.
Two previous attempts at a General Assembly resolution of this kind had failed but this time, despite concerted lobbying by certain countries which retain the death penalty, more than half the General Assembly was prepared to vote in favour.
There is no doubt that the global momentum towards abolition continues.
Of course, abolishing the death penalty at home, signing on to international conventions and putting Australia's name to General Assembly Resolutions is not the beginning and end of the death penalty debate for Australia.
Faced with the prospect of the execution of some of our own citizens abroad, the Australian community has increasingly been forced to grapple with the question: what does it mean to be opposed to the death penalty in a region where our neighbours and allies continue to shoot and hang people?
Questions have been raised, for example, about the AFP Practical Guide on international police-to-police assistance in potential death penalty situations which allows the AFP to provided assistance to foreign law enforcement agencies in death penalty cases up until the point that a person is detained or charges are laid, and even beyond that point with Ministerial approval. Is it consistent with Australia's opposition to the death penalty to allow the AFP to work cooperatively with foreign law enforcement agencies in the investigation of offences which carry the death penalty - knowing that the provision of that assistance and information may ultimately lead to charge, conviction and eventually execution?
Questions have also been raised about whether the Mutual Assistance Act, should, as it currently does, allow the Attorney General a broad discretion to authorise the provision of mutual assistance in death penalty cases if he or she is satisfied that "special circumstances" exist. The term "special circumstances" is not defined in the Act.
And of course, questions have also been asked about whether Australia's opposition to the death penalty requires Australia to do more than make diplomatic noise when one of its own is executed or is under threat of execution. Should Australia, for example, be equally vocal in condemning the execution of non-citizens, such as the Bali bombers?
Law Council Policy
The Law Council of Australia has had a longstanding policy opposing the imposition or execution of the death penalty.
However, given these emerging debates, in September 2007, the Law Council Board of Directors took the opportunity to endorse a more complete policy statement which explains in greater detail:
- the nature of the Law Council's opposition to the death penalty;
- the basis for the Law Council's opposition to the death penalty; and
- the policy and advocacy implications of the Law Council's position.