The expectation is that the legislation will extend the current prohibition on capital punishment to Australia's state jurisdictions.
The proposed Act will create a specific Commonwealth offence of torture as part of the Commonwealth Criminal Code.
That new offence will operate concurrently with existing offences in state/territory laws. One example is s 320A of the Criminal Code 1899 (Qld), which provides that "a person who tortures another person commits a crime" (attracting a maximum penalty of 14 years imprisonment), with torture constituting "intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion" (pain or suffering including "physical, mental, psychological or emotional pain or suffering, whether temporary or permanent" but excluding what happens when you play football, visit the dentist or listen to some academics and politicians. Consent matters).
The Act will also amend the Death Penalty Abolition Act 1973 (Cth) [here] by extending application of the current prohibition on the death penalty to state laws, "to ensure the death penalty cannot be introduced anywhere in Australia".
Amending the 1973 Commonwealth statute to cover state laws will "safeguard Australia's ongoing compliance" with the Second Optional Protocol to the International Covenant on Civil & Political Rights (ICCPR), ie regarding abolition of capital punishment. (The text of that Protocol is here.) Introduction of the Bill in the national parliament coincides with reports that yet another person has been stoned to death in Somalia for the crime of adultery and that Iran has disposed of more enemies of the people. Having lectured a group of Chinese officials this morning I don't care to think of how many people have been shot in the PRC this week.
Torture
Australia has been a party to the United Nations Convention Against Torture & Other Cruel, Inhuman or Degrading Treatment (CAT) since 1989. The Convention requires Australia to ensure that all acts of torture are offences under domestic criminal law.
The Convention defines torture as any act by which severe pain or suffering is intentionally inflicted upon a person by a public official for certain specified purposes, such as obtaining information or a confession from a person. (A sentence that involves being locked in a very hot cell with only a slop bucket and a beefy rapist who suffers from 'poor anger management' thus isn't torture, although it might be a form of hell for the inmate.)
The Crimes (Torture) Act 1988 (Cth) [here] currently criminalises acts of torture committed outside Australia, only when committed by Australian citizens or other persons who are subsequently present in Australia. Acts of torture committed anywhere in the world during the course of an armed conflict or as a crime against humanity are currently criminalised under the Criminal Code Act 1995 (Cth).
In previous periodic reports to the UN Committee Against Torture, Australia has stated that it meets its obligations on the basis that acts falling within the Convention's definition of torture are offences under state/territory criminal laws. Those acts include infliction of bodily harm, murder, manslaughter, assault and other offences against the person. The Committee Against Torture has criticised nations that have not enacted torture as a specific criminal offence, and has called on nations to do so. In its May 2008 'Concluding Observations' on Australia the Committee recommended that Australia enact a specific offence of torture at the federal level. The Government - in seeking to "demonstrate [a] condemnation of torture in all circumstances" - has responded with legislation to enact a new offence of torture in the Criminal Code, which will criminalise acts of torture within and outside Australia.
The legislation will repeal the Crimes (Torture) Act 1988 (Cth), as the current statute would be redundant. Extraterritorial application is intended to reflect a key aim of the Convention, ie to end impunity for torture globally.
The offence is intended to operate concurrently with existing state/territory offences. In introducing the Bill the Government indicated that enactment of the new offence is not intended to exclude or limit the concurrent operation of any other Commonwealth law or state/territory law.
Capital Punishment
The ICCPR permits capital punishment for the 'most serious crimes'. Australia's adherence to the Second Optional Protocol involves further obligations, requiring the nation to "take all necessary measures" to abolish the death penalty within its jurisdiction and ensure that no one within its jurisdiction is subject to the death penalty.
The death penalty was abolished for Commonwealth and Territory offences in 1973 through the Death Penalty Abolition Act. Each state subsequently independently abolished the death penalty, with no hangings having taken place since the 1960s - the last being described in The Hanged Man (Melbourne: Scribe 2002) by Mike Richards. (Australia never acquired a taste for Old Sparky, one of Thomas Edison's favourite toys, or embraced the lethal injections in use in some US states.) There are no proposals by any state/territory Government to reinstate capital punishment but recent populism might reasonably lead civil libertarians to worry that a desperate government might reach for capital punishment to save its own skin.
The Attorney-General commented that
Introducing a specific Commonwealth offence of torture will more clearly fulfil Australia's obligations under the United Nations Convention Against Torture to ban all acts of torture, wherever they occur.
The purpose of the legislation is to extend the application of the current prohibition on the death penalty to State laws. This will ensure that the death penalty cannot be reintroduced anywhere in Australia in the future.
The amendments emphasise Australia's commitment to our obligations under the Second Optional Protocol to the International Covenant on Civil & Political Rights, and ensure that Australia continues to comply with those obligations. Such a comprehensive rejection of capital punishment will also demonstrate Australia's commitment to the worldwide abolitionist movement, and complement Australia's international lobbying efforts against the death penalty.
