The SMH reported yesterday that
LAWS prohibiting states and territories from reintroducing the death penalty are being seriously considered by the Rudd Government and could be introduced this parliamentary term.
Even for a government as hyperactive as the Rudd government this proposal seems excessive. After all, nobody has actually received capital punishment since 1967, and according to the SMH article the last state formally removed it from the statute books in 1985. The 2007 Australian Election Survey suggests that, for the first time, capital punishment has minority support. Neither regular appalling murders, nor the introduction of tough anti-terrorist measures, has seen any serious attempt to get the death penalty reintroduced. The issue is as dead as Ronald Ryan, the last man to go the gallows. For good reason, the Australian political class has lost the will to kill.
So why this proposal? According to an accompanying article
The move is intended in part to reinforce with Asia Australia’s opposition to the death penalty – given concern at the fate of three Bali Nine members on Indonesia’s death row.
But this proposal relies for its significance on a distinction between state and federal law that is barely understood within Australia, much less within Asia. I fail to see how an obscure constitutional point adds anything to our international advocacy, much less to the substantive debates within Asia about the advantages and disadvantages of the death penalty.
Double banning capital punishment seems to me to be soft left symbolic politics at its most ridiculous.
Andrew Norton 
Is it any worse than Howard’s totally unnecessary declaration that marriage can only involve a man and a woman?
‘Symbolic politics at its most ridiculous’ perhaps, although I don’t pretend to have investigated the merits, but there is nothing especially ‘left’ about the practice.
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Yes Ken there is something “worse”. That’s the referendum in California that proposed marriage is between a man and a woman and winning the majority of the vote.
So please stop peddling your eternal hatred of Howard that somehow his beliefs are beyond the pale. They aren’t. Lot’s of reasonable people agree with that.
Although I believe gay marriage ought to be legal, I don’t think a contrary view ” is beyond the pale”. Perhaps supporters ought to try a new tack and try to nicely persuade people rather than demonizing them like you;’re trying to do.
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Ken – Though I am a strong supporter of gay marriage, I had mixed feelings about that amendment. There was a chance, as I understand it, that a Family Court judge would have engaged in judicial creativity and recognised a gay marriage, making it a live issue in the way capital punishment is not. Via the judicial route is exactly how I do not want this reform to come about, since this issue clearly is not just about formal legal status, but the position of gay relationships within the community. It is far better that the issue be debated, so that the reasons for gay marriage can be better understood, and then resolved with democratic authority in the parliament.
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Andrew I wasn’t trying to make a point about gay marriage per se, but to demonstrate that there is nothing inherently ‘left’ about symbolic politics.
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Ken – No, not inherently. It’s mainly a by-product of identity-based politics, which favours gestures to symbolise who we are. This is prevalent among both conservatives and the soft left.
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The Commonwealth has powers to legislate for marriage under the constitution. But the death penalty would apply in most situations where the States have constitutional authority. (Unless the Commonwealth brought it in for treason or tax evasion). The funny thing is that the government clearly doesn’t expect the High Court to rule against a State death penalty on the basis of Australia being a signatory to international conventions against the death penalty. I’m also wondering which power the Commonwealth would invoke? External affairs? Unfortunately, no mischievious liberal would point to the fact that the Commonwealth was selling out Australian sovereignity by using so-called international law to violate States rights. 🙂
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Andrew I wasn’t trying to make a point about gay marriage per se, but to demonstrate that there is nothing inherently ‘left’ about symbolic politics.
No matter what you think, Howard’s view of the marriage issue is a reasonable one that is shared throughout the community. There was no symbolism there are there was a real push to make gay marriage legal. You and I may disagree with that, however it doesn’t take away the fact that it was not an empty gesture.
You simply just hate Howard, that’s all.
Fast forward to the current government: from fuel watch, grocery watch, whale watch, and the financial crisis watch. Nearly every single one of Rudd’s policies are empty, damaging or simply plainly stupid. I can’t think of one policy Rudd has enacted that doesn’t present as a net negative to our living standards. Not one, save for possibly removing the one desk policy on wheat sales, even that seems to have been an accident.
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It’s not the most earth-shattering issue of our age but according to the Chief Judge of the Family Court in 2004:
‘No-one seems to have asked the question whether the amendments were necessary. Despite the lack of definition, in my view it would have been impossible to have successfully argued that “marriage” as used in the Marriage Act 1961 contemplated same sex marriage. This is because of the reference to it in the Family Law Act referred to above and because the Marriage Act itself did advert to something akin to the Hyde definition in setting out the words to be used by marriage celebrants. In the circumstances one would have to question the motives of a Government in rushing such legislation through on the eve of an election.’
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Ken – I can’t say I am convinced by that extract – indeed it is so similar to the bombastic extra-judicial pronouncements of Alistair Nicholson when he was on the bench that it actually highlights exactly what the government was about – that without clear and express words in the Marriage Act itself, and not indirect references in the Family Law Act or in the wording of the marriage ceremony – there was a chance that a judge convinced of his own righteousness, as Nicholson clearly is, would exploit the ambiguity unintentionally created in the Marriage Act by legislators who could barely have imagined that same-sex marriage might be an issue. When that Act was originally legislated, admitting to a sexual relationship with someone of your own sex would lead to jail, not to launching a case to have the relationship recognised under law.
Unfortunately, the likes of Nicholson and the Mason High Court mean that the judiciary cannot be trusted not to be highly creative with the law, and so parliaments do sometimes need to make their intentions more explicit.
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But seriously, why should we care what a judge thinks about same sex marriage other than as an odinary citizen. These decsions are political in nature and have no place in the legal system.
The high court judge is there to interpret the law, not to find an opening in the law and allow his own opinion to get through as a result of legalistic nitpicking.
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Back on the topic of capital punishment …
While this might not seem like the most urgent matter, it is none the less an important housekeeping measure (if you oppose capital punishment, which I do and officially the Australian government has for many years).
It doesn’t hurt in regards to diplomatic efforts by Australia to get other countries to end the death penalty, but its main benefit would be to guarantee the death penalty could not be reintroduced by any state or territory in Australia.
Australia acceded to (i.e. signed and ratified) the 2nd Optional Protocol to the International Covenant on Civil & Political Rights (ICCPR) in 1990. This Protocol, which entered into force in 1991, is aimed specifically at abolishing the Death Penalty.
However, while Australia is bound by this under international law, it has never been incorporated into Australian law, and thus would not be binding on Australian Courts. Thus, there is nothing to prevent any state or territory government from introducing a law tomorrow to restore capital punishment.
By passing a law banning capital punishment at federal level, (which would be a legitimate use of the foreign affairs powers because of our accession to the 2nd Optional Protocol), it would override any future state or territory parliament law which sought to reintroduce it.
This might not be on the radar at the moment, but it is hardly unimaginable that a particularly gruesome crime, followed by a good old tabloid/talkback hate campaign and a bit of law and order populism by a state Premier could see capital punishment resurrected quite promptly.
I think it is wise to prevent such a possibility once and for all (unless a future Australian government decided to rescind our support for the 2nd Optional Protocol).
More background info here and here
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Andrew:
Polls show around 45% of Australians still favor capital punishment. You view is barely the majority.
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Andrew B – There are all sorts of unpleasant laws governments could pass in theory (we used to get all sorts of examples in first-year law classes), but are very unlikely. My view is that the reintroduction of capital punishment is extremely unlikely since we have already been through the kinds of populist outbursts in your scenario in times of majority support for capital punishment without it being seriously proposed, and while JC is right that a large minority of Australians still support capital punishment that number is clearly trending down.
Also, Commonwealth laws do not prevent such a possibility – like state laws, they can be repealed by ordinary legislation.
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Andrew N
Of course Commonwealt laws can be repealed, but (a) there is the extra barrier of the government usually not controlling the Upper House, which doesn’t apply in all states and territories, and (b) it is a stance Australia had adopted internationally but not yet incorporated in law.
As I said, it might not be priority number 1, but there’s no good reason not to do it and a couple of good reasons to do so – the movement towards the global abolition of the death penalty is a slow one, but it is trending in the right direction, and every extra action which entrenches that further assists.
Personally, I also think it is good practice for Australia’s government/parliament to ensure our national laws reflect the commitments we have made at the international level. It enhances consistency and reduces charges of hypocrisy.
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AndrewB
Your assumption that:
the movement towards the global abolition of the death penalty is a slow one, but it is trending in the right direction, and every extra action which entrenches that further assists
Is not supported by the majority of people polled in the Western world.
Polls consistently show that a majority of people even in fury social democratic countries in Europe support eh death penalty for heinous crimes.
The movement you support is basically a minority one and appears to be ignoring the will of the people.
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my problem with this is it doesn’t actually add anything to the current status. It is just another law on top of a whole heap of laws already in place. it is getting ridiculous. Its like. oh, “oh, we need to send a message to Asia. I know, let’s write a new law!”
As if Asian countries could give a fig. I am always amused that some people seem to think that Malaysia, for example, is waiting with baited breath to decide what we are doing.
Personally, I think I will give my vote to the next guy that says ” I am going to cut regulations and laws currently in force in half, and public benefit tests for new regulations will actually have to mean something”.
Otherwise we will one day have a revolution as the citizens rise up against the weight of red tape and elite do gooders.
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Like most here, I am against capital punishment.
But how would we all feel if the Commonwealth legislated to ban any state repealing capital punishment?
Or legislation to ban any legalisation of voluntary euthanasia? (Which the Howard government did for NT)
Sometimes I almost become a state’s rightist.
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With all due respect Andrew, you really seem to be letting your liberal democratic heritage fall by the wayside in your apparently dogmatic hatred for capital punishment.
What you are in effect supporting is a framework whereby a law you particularly don’t like can never be re-introduced even if the Australian people (or at least one state thereof who traditionally have jurisdiction over the law) democratically wish it.
True there may be instances where that could be justified such as a future government trying to disenfranchise a significant portion to the public, but with regards to other laws where the security of our commonwealth is less under threat, you seem to be giving very scant regard to the self determination aspirations of the millions of Australians that live in our various states.
I’m guessing you the type who criticises shock jocks who engage in ‘elites bashing’, but when people support legislation like this which tends to take away the democratic rights of the ‘great unwashed’, can you really blame them?
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Edward – The policy issues aside, I am in the broad class of people (legally qualified, politically active) who would have respsonbility for executions or trying to defend those subject to execution. Part of what we see in ‘elite’ opinion being strongly aganst capital punishment is a simple refusal to have anything to do with killing except in the most extreme and unavoidable circumstances.
I am quite happy to go along with the underlying objective of reducing crime, but I am not going to sanction killing just to satisfy the bloodthirsty desires of a dwindling number of people.
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Wow Andrew, did you have a liquid lunch or what?
If you read my comment fully (possibly for the first time) you will notice that I have not even positioned myself for or against the death penalty.
My issue is strictly that of democracy and the right of self determination.
If I was to ask you if you believe in freedom of the press I would hope your response would not be: “Well that depends. Which newspaper are you talking about?”
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Edward – I did not assume any capital punishment position on your part, I just stated my own on why I do not believe political elites do or should take any notice of (past) majority support for capital punishment.
And I am confused as to why you are asking a question about freedom of the press. I am entirely in favour, and in the unlikely even that majority opinon was against that I would reject it too, on both liberal and democratic grounds (individual freedom of press and the collective need for information and public debate).
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You seem to be a lot more intelligent than I took you for Andrew.
You find yourself in the position where you, a self proclaimed classic liberal, have been defending the position of denying any individual Australian state its democratic right to institute a law (reintroducing capital punishment) that you personally oppose.
When challenged about this you attempt to divert the argument into that of the virtues and/or vices of the law itself, even though it is quite obvious that the challenge is not about that at all, but about the issue of democracy or self determination; and in turn: how some people appear to adopt an elitist position in implying that voters in states only should not be allowed to decide for themselves the important issue of capital punishment.
When further challenged about your apparent elitist position of believing in denying those who disagree you their democratic rights to change this law, you attempt to divert the issue by defending the elitists’ right to take their own position on capital punishment. This despite the fact that the challenge was about the elitists’ position on democracy, not their position on capital punishment.
Finally, to elucidate the point that your stance on this current blog question might not be that much in the veins of the classic liberal tradition, (ie democracy) an analogy is given whereby you are rhetorically asked if your position on another liberal mainstay, that of freedom of the press, would be dependent upon the political leanings of the newspaper in question. (as every other reader I’m sure would recognize, the comparison being that your position on democracy appears to depend on what the issue up for the vote actually is)
In response, you pretend not to notice that the question is strictly rhetorical (who, this side of Socialist Alliance, doesn’t actually believe in a free press) and instead go to pains to answer the question within its prosaic meaning.
I am sorry to have to say this to you Andrew, but you Sir, are undoubtedly a lawyer.
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“classic liberal tradition, (ie democracy)” Edward, this is where we depart, because you are just wrong in believing that classical liberalism is equivalent to democracy. The central normative assumptions of classical liberalism are to do with individual rights and freedoms, even when (especially when) the majority does not approve. You can call this elitist, but I think it is more accurate to say it is a philosophy of decentralisation – power directly to the people without the intermediary of the state. Government is necessary to secure these rights and freedoms but is also the greatest threat to them. Constitutional design from a liberal perspective is about how to deal with his paradox. Virtually all modern classical liberals support democracy, but often with constitutional safeguards to limit government and what possibly transient majorities can do. I happen to be on democratic end of the classical liberal spectrum on this for various reasons, but I certainly don’t believe a view is made right simply because a majority of people support it.
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