A World Without the Death Penalty: Australia’s Advocacy for the Abolition of the Death Penalty

 

 

BYRNES, Prof. Andrew, Diplomacy Training Program and AHRCentre, University of New South Wales

[15:13]

CHAIR: Do you have any comments to make on the capacity in which you appear?

Prof. Byrnes : I am a professor of law at the University of New South Wales and chair of the Australian Human Rights Centre. My areas of academic expertise are public international law and human rights law. I am also a member of the board of the Diplomacy Training Program based at the University of New South Wales though an independent organisation, whose submission you have before you and to which I will speak. I would like to express gratitude of DTP for the opportunity to speak with the committee.

As some of the members of the committee know, I have also had the privilege of serving as the external legal adviser to the Parliamentary Joint Committee on Human Right—before you, Chair, took over the chair of that committee—as well from 2012 to 2014.

CHAIR: I have to advise you that in giving evidence before the subcommittee you are protected by parliamentary privilege. I remind you of the obligations not to give false or misleading evidence. To do so could be considered contempt of the parliament. These are public proceedings. If you believe that evidence should be heard in camera, you will need to raise the question with us and state the ground for your objection. We will then consider the matter. We ask you to refrain from naming individuals who may be associated with current cases to protect their privacy. Now you are welcome to make an opening statement.

Prof. Byrnes : The Diplomacy Training Program was, as you may know, founded over 25 years ago by Jose Ramos Horta and Garth Nettheim to develop and share knowledge and advocacy skills to facilitate international human rights advocacy by civil society groups around our region. It does so primarily through the holding of training programs in Australia and the region, which include an annual training program dealing with general human rights standards and institutions as well as thematic programs. In recent years, these have included programs on human rights and business and also on the human rights of migrant workers. Since its establishment in 1989, the DTP has held over 100 training programs and 2,500 human rights defenders from more than 50 countries have been participants in them. DTP receives funding from many public and private sources including from the Australian government through DFAT.

My own personal knowledge of and experience with death penalty issues is primarily due to my involvement as an expert witness in a number of death penalty cases before the Indonesian courts. In 2007 on behalf of an Australian sentenced to death on drug trafficking offences, I prepared an expert report on the international human rights law relating to the death penalty that was submitted to the Indonesian constitutional court in proceedings challenging the constitutionality of the death penalty for drug offences. I also presented oral evidence before the court, along with other international experts, and prepared similar reports on a number of other cases before the Indonesian courts involving both an Australian national—the same one—and also a national of an African country in a case that is still underway, which is also, I think, being supported by Australian lawyers.

I would first like to make some general comments and speak briefly to the DTP submission and then make some final comments in a personal capacity that I am sure my various organisations would agree with. I know the committee has already considered many written submissions and held a number of hearings so I will try to avoid unnecessary repetition but I apologise if I do not succeed in that goal.

I think we all know the grounds for objection to the death penalty: moral or religious commitment to not violating the sanctity of human life; political morality of intentional killing by the state brutalises and demeans the political collective; the fact that the death penalty has not been clearly shown to have any unique deterrent effect by any reputable social science studies; the fallibility of criminal justice systems and the irreversibility of death sentences; its discriminatory impact—racially and socially; and, finally, international legal obligations. While as I am sure the committee knows, there is no general prohibition under international law on the use of the death penalty except for those states which have accepted those explicit obligations, there are nevertheless severe restrictions on its use, which are frequently, one might say, consistently violated by retentionist countries.

We also know that there are different constituencies in every country that need to be persuaded in order to limit the use of or abolish the death penalty. The arguments that are persuasive can vary according to the particular audience. We also know that while encouragement, cajoling and pressure from outside can sometimes assist—though it can also be counterproductive—ultimately the most effective way to bring about the restriction or abolition of the death penalty is when support comes from within the society concerned. We also know that results will rarely be obtained quickly. The process of change will obviously be slow and gradual, not always uniformly forward, and that measures to promote achievement of the goal of abolition will often need to be sustained over many years.

As others have noted, it is important that when Australia says it objects 'in principle' to the imposition of the death penalty that it is clear what the principle is and that our political leaders and representatives are consistent in the application of that principle to all cases. As I think others have already made the point, but I will I will also reiterate it, statements made by a number of Australian political leaders—but by no means by all of them—in relation to the death sentences handed out to the Bali bombers did not reflect the principle of a commitment to the abolition of the death penalty in all cases and made it easy in later years for the charge of inconsistency to be levelled at Australia. If I may say so, it still appears there is work to be done in this regard in our parliaments but of course I am aware of the important role that the large parliamentary group concerned with this issue plays.

 

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