Abolitionist or Relativist?: Australia's Legislative and International Responses to its International Human Rights Death Penalty Abolition Obligations

Abstract

The Commonwealth Parliament has enacted human rights amendments to the 'Death Penalty Abolition Act 1973' (Cth), extending the existing prohibition against reintroduction of the death penalty to State laws. This legislation is most fully comprehended through examination of several background circumstances, including Australia's international abolitionist position. A brief consideration is made of the contemporary human rights policy context from which the death penalty abolition extension has emerged, including the Commonwealth Government's response to the 'National Human Rights Consultation Report', and factors reflecting Australia's reengagement with the United Nations human rights system, including Universal Periodic Review and the bid for a seat on the UN Security Council. Earlier Commonwealth abolition of the death penalty is discussed, and a legal and constitutional analysis made of amendments in relation to states. The reform's importance is highlighted by the context of state based law and order debates in the age of terrorism, with politicians raising the possibility of death sentence re-introduction. The reform is considered in an international context of Australians sentenced to death overseas and various inconsistencies in Australian international opposition to the death penalty, based on Australian obligations under Article 6 of the 'International Covenant on Civil and Political Rights' (ICCPR) and its 'Second Optional Protocol', and the disjuncture between legal obligation and practice, according to circumstances. Finally, the link between domestic legislative implementation and broader international policy objectives is examined through examples of contemporary executive and parliamentary engagement. These institutions provide some recognition of the inconsistencies, but still allow an undermining of Australia's international abolitionist position. The confirmed death sentences and clemency applications for two of the Bali Nine may provide a reflective political moment for a more cogent appraisal of Australia's international abolitionist obligations.