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Loose reasoning on death penalty - Frank Brennan

Remarks on the Death Penalty for Australians Against Capital Punishment Brisbane Forum, Trades and Labour Council Building, 9 October 2007


I am delighted to accept this invitation to stand here tonight in solidarity with Christine and Lee Rush. We come trying to save the life of their son, our fellow Australian, Scott Rush.

Let me begin with a significant event 40 years ago when I was a school boy. I was twelve years old, having just been promoted to the large dining room at my country boarding school at Downlands College, Toowoomba. It was 3 February 1967. Breakfast started at 7.45am. The din of 300 boys at table was always deafening once the supervising priest declared, “Deo Gratias”. For the first and only time in my five years at the school, a handful of senior boys called for a minute’s silence at 8am to mark the hanging of Ronald Ryan in Melbourne Jail. As Ryan dropped, you could hear a pin drop in faraway Toowoomba. The recollection still brings goose bumps. This was wrong. It should never happen again. How could a nation do this? All Australian jurisdictions then abolished the death penalty.

The ambivalence of many Australians about the imposition of the death penalty on Saddam Hussein shows just how infected we are by consequentialist reasoning about moral questions. The practical, hands on, Aussie approach often plays fast and loose with moral reasoning about what is right and wrong.

We think it is wrong for foreign states to impose the death penalty on Aussie drug traffickers and drug mules. But we apply different reasoning to non-Australians facing death at the hands of the state. Sure, Saddam Hussein was a murderous thug. The death penalty is either right or wrong. Could innocent human lives be effectively defended in Iraq by keeping Hussein in prison rather than killing him? If so, it was wrong to kill him, no matter what positive political consequences apologists thought might come from the execution, whether televised or not. It is very regrettable that Alexander Downer, the Australian Foreign Minister, claimed that Saddam’s “death marks an important step in consigning his tyrannical regime to the judgement of history and pursuing a process of reconciliation now and in the future”. The televised images of his death did undermine such reconciliation. The execution was wrong regardless of its consequences.

It is time that we Australians presented a coherent, unified voice to the world. We are opposed to the death penalty, and not just when it is our own boys and girls on death row. We think the death penalty is barbaric whether the criminal is a Bali bomber or a drug mule. If it is to be imposed, it should be imposed only for the very worst of offences and only where there is no alternative for the protection of the innocent.

Dr Michael Fullilove, Director, Global Issues Program, Lowy Institute for International Policy, has put two suggestions for Australian politicians of all hues to accelerate our efforts at abolishing the death penalty. On the cusp of an election, I commend these suggestions to all voters and candidates.

First, our leaders should be consistent in their comments on the death penalty. It is difficult to discern such consistency at the moment: for example, Prime Minister John Howard said he would welcome the execution of Osama bin Laden, and former Labor leader Mark Latham said Amrozi's sentencing to death was a cause for celebration. These kinds of comments erode the abolitionist underpinnings of our position and make us look hypocritical when we ask for Australians to be spared.

Second, Australia should initiate a regional coalition against the death penalty. Asia is world's best practice when it comes to executing people. Fifteen Asian states retain the death penalty for ordinary crimes. Methods of execution include hanging, shooting by firing squad or with a single bullet to the back of the head, and lethal injection. China and Singapore are particularly notable: China carried out more than 80 per cent of known executions last year; and in the period 1999-2003 Singapore boasted the highest per capita execution rate in the world.

I am delighted that Robert McClelland, the Shadow Foreign Minister, last night came out and pledged a future Labor government both to a consistent stand on the death penalty, regardless of the nationality of the accused, and to a regional coalition in our region of those countries opposed to the death penalty, including Cambodia, Nepal, Bhutan, Timor Leste and the Philippines. Both initiatives deserve to win bipartisan support. Both initiatives deserve open air support from anyone wanting to be Prime Minister.

In passing, I note that there has been significant development in the teaching of my own Church on the death penalty. Despite the enthusiasm of some conservative and influential Catholics in the United States, Pope John Paul II before his death approved changes to the Catholic Catechism stating.

Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and are more in conformity to the dignity of the human person.

Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm - without definitely taking away from him the possibility of redeeming himself - the cases in which the execution of the offender is an absolute necessity "are very rare, if not practically non-existent."

This principled stance should have broad appeal in our society and not just to Catholics, not just to Christians. No one is seriously suggesting that Scott Rush or any member of the Bali Nine need to be killed in order to defend others from them.

The pragmatic, consequentialist ethic in contemporary Australia has long wreaked havoc on outsiders not meriting our respect, but now it is turning on us. We are losing respect even for ourselves. Take the situation of parents who at the last minute feel helpless that their son or daughter may be caught up in a drug ring operating out of Indonesia. They or an intermediary contact the Australian Federal Police and seek assistance, wanting their child stopped at the airport or at least given a warning. We now know that the Australian Federal Police are instructed to co-operate with the Indonesian police up until the time that charges are laid even if there be a real risk that the death penalty will be imposed. Being a civil law country and not a common law country, Indonesia does not lay charges until the end of the investigation process. In common law countries like Australia, charges are laid much earlier in the investigation and prosecution process. If Indonesia were a common law country like Australia, the AFP would be much more restricted in their capacity to co-operate with the Indonesian police when an Australian citizen could be facing death.

But there is something even more troubling than our police pursuing the forensic advantage of delayed charging of suspects in countries like Indonesia. In the case of the Bali Nine, a judge of the Federal Court of Australia commenced his judgment suggesting there was a need for the Minister “to address the procedures and protocols followed by members of the Australian Federal Police (‘AFP’) when providing information to the police forces of another country in circumstances which 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. Especially is this so where the person concerned is an Australian citizen and the information is provided in the course of a request being made by the AFP for assistance from that other country’s police force.”

The minister and the commissioner have said that they see no need for a review of the protocol and processes. The Commissioner has gone one step further and said that there is nothing the police can or ought to do in response to a parental request for assistance. According to Mr. Keelty, if anyone connected with the police did respond positively to the parental request, that person would be acting “dishonourably” and “corruptly”. Mr. Keelty has told Parliament: “What does that say to the parents of the other children who did travel – that because someone had a mate in the police, they got rescued but their children are subject to the circumstances of the Indonesian judicial system? It is simply a nonsense to even project that as being a way that the AFP should operate.” Bob Myers, the barrister and family friend, who had contacted the police on behalf of the parents of Scott Rush laments, “Certainly I know with hindsight now you can’t rely on our agencies, Australian agencies, to help us out in a crisis of that sort.” Mr Myers had requested the AFP “that if Scott did intend to depart (Australia) he be informed that the AFP was concerned that he would be ‘up to no good’ and that his activities outside of Australia would be monitored”. Myers “had no doubt that Scott would be approached and spoken to”. He “informed Lee that this would happen and expressed to him the thought that after Scott had been spoken to it would be unlikely that he would involve himself in criminal activity.”

All right thinking people applaud the efforts of law enforcement authorities taking a strong stand against those who exploit and profit from others’ addiction to illegal and harmful drugs. But some of the most honourable and non-corrupt law enforcement officers are those who can take the young person aside and warn them off. This cannot be done in every circumstance when an anxious parent seeks assistance as a last resort. But our sense of legalism is too stretched when the police commissioner can proclaim that any such instance of this would be dishonourable and corrupt.

We can maintain a respect for the noblest human aspirations including parents’ desire to protect their child, a friend’s desire to help a mate, a free and confident nation’s desire to spare even their foolish, selfish citizens from the firing squad. The federal police should be empowered to do their job but their desire to track down criminals and their willingness to sacrifice the life of our citizens should not permit co-operation with other police beyond what would be permitted were the other police in a common law country where charges would be laid earlier than they are in countries like Indonesia.

The distinguished Victorian Supreme Court judge Murray McInerney told me when I was admitted to the Bar 30 years ago that there was no finer citizen than the good police sergeant in a country town who was able to keep the peace, not primarily by enforcing the law but by having a quiet word to the young fellows around town. There must be a place even in our federal police for co-operation with parents and citizens of good standing wanting to avoid the firing squad for their children and their friends’ children.

In his speech entitled “Don’t bury us before we’re dead” at a conference in Bali in July, Colin McDonald QC, counsel for Scott Rush put two suggestions for moderating AFP operational behaviour more consistent with Australian values, including espousing the right to life.

The first practical suggestion is for Australia to domestically legislate and incorporate into domestic law the Second Optional Protocol to the International Covenant of Civil and Political Rights. This practical step would prevent any Government in Australia in the future, in the law and order auction world of Australian politics, from reintroducing the death penalty. It would also ensure that the exposure of an Australian citizen to the death penalty was a relevant legal consideration in administrative decision making which might expose such a citizen to the death penalty.

The second practical step involves the writing of one letter by the Minister for Justice to the Commissioner of the Australian Federal Police pursuant to section 37(2) of the Australian Federal Police Act 1979. That letter would be a direction to the Commissioner that AFP members are not to intentionally and predictably expose Australian citizens to the death penalty in AFP operations. By subsection 37(4) of the same Act, the Federal Police Commissioner is obliged to comply with such a direction.

Such steps would ensure that the AFP would be able to take more notice of nobly intentioned interventions such as that made by Lee and Christine Rush and their friend Bob Myers.

The arbitrariness of the death penalty for Scott Rush is highlighted by the life sentences given to the other three drug mules in the Bali Nine, and by the paucity of reasoning offered by the Indonesian Supreme Court which made no effort to analyse why death was warranted for Scott Rush and not for the other mules.

Scott Rush does not deserve to die. He did not commit the worst of offences; he has been arbitrarily singled out for the death sentence by the Indonesian courts; his criminal act if successfully executed would have caused direct harm in Australia rather than Indonesia and our courts would probably have imposed a 10 year sentence and a minimum of 5 years to serve. Should Scott’s final appeal to the Indonesian Constitutional Court fail, the Australian government should plead clemency not just because we oppose the death penalty in principle but also because a death sentence imposed in these circumstances would have adverse consequences for us in the fight against illegal drugs. This death sentence would either unreasonably hamper Australian law enforcement officers co-operating with Indonesian authorities in busting future drug rings attempting to move drugs from Indonesia to Australia or place Australian law enforcement officers in the invidious position of routinely handing Australian drug mules over to death regardless of our principled opposition to the death penalty. Killing our impressionable young drug mules, even at Indonesian hands, is too high a price for Australia to pay in combating the importation of illegal drugs. Our government should stop the AFP from cutting corners when it comes to the death penalty. John Howard and Kevin Rudd should make it clear to the Indonesians that we can co-operate closely in defeating drugs provided only that the Indonesians respect our opposition to the death penalty, especially for what ought be non-capital offences.

Let’s hope, pray and work to do what we can to spare the lives of Scott Rush and all those sentenced to death by the State when there are non-lethal means available to protect us from their past or future wrongdoings, whatever they may be, whatever they could be. Justice must not kill.


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