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PARLIAMENT OF AUSTRALIA HOUSE OF REPRESENTATIVES It is almost inexplicable that paragraph No. 4 was included in the AFP letter; one would think it might even have been included in error. Of course, the AFP made it clear that it was not included by way of error; a deliberate decision was made to expose all eight to the death penalty in Indonesia. It would appear that the Deputy Commissioner was uneasy about the decision not to enforce Australian law in Australia. It was made clear during the AFP press conference that there was one AFP officer not prepared to participate in this decision. That was certainly in recognition of the fact that the AFP was aware of the likely fate of the participants in the operation. If the AFP was acting in accordance with the principles Australians hold dear, they would not have deliberately exposed an Australian citizens to the death penalty. The assertions made by the AFP that they would act again as they did in 2005 indicate that legislation is required to ensure that the AFP carries out its duty under Australian law and arrests people in Australia who have broken the law in Australia and does not allow them to leave the country as they did on this occasion and that the law carries sanctions if the AFP acts contrary to Australia’s position, as they did in this case, and exposes Australian citizens to the death penalty. Since 1973 and the passage of the Death Penalty Abolition Act 1973, the death penalty has not applied in respect of offences under the law of the Commonwealth and the territories. Similar state legislation has outlawed the practice in the remaining Australian jurisdictions. On 11 March 2010, with bipartisan support, the Commonwealth parliament passed the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act. The act amends the Death Penalty Abolition Act 1973 to extend the current Commonwealth prohibition on the death penalty to all states and territories. This forecloses the possibility of any individual state jurisdiction reintroducing the death penalty. On 2 October 1990, Australia confirmed at an international level its opposition to the death penalty by ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. The protocol entered into force in international law on 11 July 1991. More recently, on 19 December 2007, Australia sponsored and voted in favour of a landmark United Nations General Assembly resolution which called for an immediate moratorium on executions as a first step towards the universal abolition of the death penalty. More than half the General Assembly was prepared to vote in its favour. Faced with the prospect of the execution of some of our citizens abroad, the Australian community has increasingly been forced to grapple with the question: what does it mean to be opposed to the death penalty in a region where our neighbours and allies continue to shoot and hang people? Questions have been raised about, for example, the AFP practical guide on international police-to-police assistance in potential death penalty situations which allows the AFP to provided assistance to foreign law enforcement agencies in death penalty cases up until the point that a person is detained or charges are laid, and even beyond that point with ministerial approval. Is it consistent with Australia’s opposition to the death penalty to allow the AFP to work cooperatively with foreign law enforcement agencies in the investigation of offences which carry the death penalty knowing that the provision of that assistance and information may ultimately lead to the charging, conviction and eventual execution of Australian citizens? Questions have also been raised about whether the Mutual Assistance Act should, as it currently does, allow the Attorney-General a broad discretion to authorise the provision of mutual assistance in death penalty cases if he or she is satisfied that ‘special circumstances’ exist. The term ‘special circumstances’ is not defined in the act. Both sides of politics have shown an inconsistent and equivocal approach in the provision of agency-to-agency assistance in death penalty cases. In its current form, the new guide perpetuates rather than remedies this anomaly. A legislative approach is required to put the matter beyond question. Guidelines can change, as we seen with the change of ministers and the change of government. Australians expect more from the parliament. The SPEAKER: Is the motion seconded? Ms McGowan: I second the motion and reserve my right to speak. Debate adjourned. The Last Sentry at the Gate: Clive Palmer & the 44th Parliament of Australia 107


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