LEGAL DEVELOPMENTS IN AUSTRALIA’S APPROACH TO CAPITAL PUNISHMENT

Australia’s last execution took place in 1967. In 1973, the Australian commonwealth parliament passed the the Death Penalty Abolition Act. This was followed by federal parliament passing legislation that prohibited capital punishment for any federal crime. In 1978, Australia further committed to opposing the death penalty by ratifying the International Covenant on Civil and Political Rights (ICCPR)..

However, the death penalty was not abolished in all states within Australia until 1985. Since 1990, as a ratifying party of the Second Optional Protocol of the ICCPR, Australia is obligated to ensure that no one within their jurisdiction is executed. Australia is also required to ensure that no citizen is exposed to the risk of receiving the death penalty in other countries, so far as this is in the government’s control.

In 2010, the commonwealth parliament passed the  Crimes Legislation Amendment Act. This amended the 1973 Act, that prohibited the reintroduction of the death penalty in all states and territories. This was to protect against the possibility of an individual state going against commonwealth law and introducing the death penalty again. 

CURRENT  POLICY  

In 2018, the Department of Foreign Affairs and Trade (DFAT) issued a strategy document titled “Australia’s Strategy for Abolition of the Death Penalty Statement”. The intention was to support global abolition of the death penalty, create strategies for overseas missions, advocate for humane treatment for prisoners sentenced to death, commutation of death penalty sentences, and the reduction of both the number of executions and the number of offences condemned to death penalty. However, the strategy document explicitly did not consider matters of government or police co-operation in extradition or mutual assistance spheres. 

In October 2021, Australia confirmed its position against the death penalty when the Law Council issued the policy statement: Australia’s Strategy for Abolition of the Death Penalty. This statement described the government’s aims for policy and advocacy on the abolition of the death penalty both nationally and internationally. As a member of the United Nations, the Association of Southeast Asian Nations (ASEAN), the Pacific Islands Forum (PIF), and the Commonwealth, Australia has pledged to continue its firm commitment to the global abolition of the death penalty.

INFORMATION SHARING WITH FOREIGN COUNTRIES WHO HAVE THE DEATH PENALTY 

Australia’s mutual assistance and information sharing arrangements are governed by the Mutual Assistance in Criminal Matters Act 1987. This Act details how foreign countries can apply to Australia for assistance with the investigation and prosecution of a criminal offence, and the circumstances in which such applications may be allowed or refused.

In the past these arrangements have been controversial. In 2005, nine Australians were arrested in Bali on drug charges as a direct result of the Australian Federal Police tipping off the Indonesian police about the scheme to smuggle heroin from Bali to Australia. Under Indonesian law, drug-trafficking is punishable by death. The lawsuit prompted a public debate about the appropriateness of Australian authorities sharing information with foreign governments in relation to criminal prosecutions when there is a chance that information could ultimately lead to the imposition of the death penalty.

In 2015, ten years after they had been arrested, Andrew Chan and Myuran Sukumaran (two of the nine Australians arrested in 2005 for drugs offences) were executed in Indonesia. In response, Foreign Minister Julie Bishop initiated a parliamentary inquiry. The intention was to consider what actions Australia was taking to campaign against the death penalty internationally, and what more could be done.

Despite the eradication of the death penalty from Australia’s legal system, the death penalty remains a problem for international relations. Australia cooperates with foreign law enforcement agencies, and provides police or security assistance to its’ neighbours, some of which still have the death penalty. This impacts on the international treaties that Australia has ratified, given its ongoing relationships with countries who have not abolished capital punishment.

CREATION OF THE RECIPROCAL ACCESS AGREEMENT WITH JAPAN 

Australia and Japan started negotiating the Reciprocal Access Agreement (RAA) in 2014, despite Japan’s usual resistance to allowing foreign soldiers to enter the country. In November of 2020, Australia and Japan reached in-principle agreement on the RAA. This deepened the countries’ strategic and security relationship through a framework for the cooperation and mobility of the defence forces to advance together towards common security objectives in the Indo-Pacific region. 

Early in the negotiations, a key point of contention was the possibility of Australian Defence Force (ADF) personnel facing the death penalty for crimes while serving in Japan.  At the time of the meeting in 2020, it was suggested that Japan would waive the imposition of the death penalty for ADF personnel and instead would apply the maximum sentence allowed for under Australian law. However, this was not confirmed by the Japanese government after the meeting.

At the same time that the RAA was being finalised, multiple issues arose in the Indo-Pacific region. A dispute arose between Taiwan, China, and Japan over the sovereignty of islands off the coast of Taiwan. The United States was bound to defend Japan as a result of a Security treaty if tensions increased any further, while China had increased coast guard missions around the islands since early 2020. China and Japan’s relation has suffered years of mounting tensions as Japan fears its self-defence focussed military may be vulnerable to pressure from China’s militarisation of the South Sea and its incursion into Japanese territory in the East China Sea.

For Japan, the RAA is a huge strategic advantage, given Australia’s foreign military agreements with France, Malaysia, New Zealand, Singapore, and the United States. Japan previously had limited involvement in such agreements, and is only a party to a 1960 Status of Forces Agreement with the United States. 

In January 2022, seven years after negotiations started, the RAA was signed by both parties. China responded that they hoped that the “Pacific will be an ocean of peace, not a place to make waves,” but it was acknowledged that the stability of the region depended on the joint efforts of countries in the area. 

FUTURE OF AUSTRALIA’S DEATH PENALTY POSITION 

To date, Japan retains capital punishment. Despite signing the ICCPR in 1966, Japan is not a party to the 1989 Second Optional Protocol to the ICCPR which abolishes the death penalty.

Military deployment between Australia and Japan has been common practice in the last decade, and the RAA has further strengthened this relationship. Unfortunately, there is still tension in the Indo-Pacific region between Japan and China. Through the signing of the RAA, Australia is now politically bound to support Japan’s military. 

Australia has tied itself further through the RAA to a country that retains capital punishment, despite Australia’s policy in international relations of denouncing the death penalty and campaigning for its abolition. This sends the underlying message that Australia is willing to overlook the fact that a country still has the death penalty, provided there are other political gains to be made by aligning with that country.

Gabriela was born in Havana, but has lived in Madrid for the last 10 years. She studied Law in Spain, undertook a master's in International Relations and Economic Analysis, and recently completed a master's in Law. Her research interests include Business & Human Rights, Economics, Human Development and Policy in Europe, Asia, and Africa.

Linkedin