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Monday, 22 February 2010
Page: 1290

Mr OAKESHOTT (12:49 PM) —I also rise to strongly support the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009. In summary the purpose of the bill is to amend the Criminal Code Act 1995 to include a specific torture offence and also to amend the Death Penalty Abolition Act 1973 to extend the application of the current prohibition on the death penalty to state laws to ensure that the death penalty cannot be reintroduced anywhere in Australia.

Turning firstly to the offence of torture, the definition, essentially, that is being included as a specific torture offence includes very generally four points: it must involve a public official in some form; it must be an infliction of severe physical or mental pain or suffering; there must be an intent to inflict severe physical or mental pain or suffering; and that it is for a specific purpose such as extracting a confession or information.

This is a difficult but welcome addition to the laws of this land. It addresses an issue that was raised in this place by several people, including me, with regard to Guy Campos, an individual who was in this country last year, who was allegedly involved, but all the evidence would strongly suggest was involved, in offences in East Timor throughout its transition to being a sovereign nation. He was identified as being in this country last year, from memory, on a World Youth Day visa. He was identified by people who are local Australian residents now, people who had escaped what was a torturous regime at the time in East Timor. One of the TV stations—from memory I think it was Channel 7—identified him as an individual of concern. I think they faced him at a community event and all but got an admission of guilt out of him on camera.

The AFP became involved and several trips to East Timor were undertaken. A brief of evidence was prepared and, I think, upwards of $500,000—well over, at least, $400,000—of Australian taxpayers’ money was spent. Despite many people in the community saying that Guy Campos was going to skip the country if this brief of evidence was acted upon, the Australian government could ping him on no specific offence. As far as I know—and I would be happy for the Attorney-General to tell me otherwise in his response—Guy Campos is still at large, overseas, out of the Australian jurisdiction, despite a brief of evidence and half a million dollars of Australian money being spent potentially to do some good work on behalf of the Asia-Pacific region and to bring to justice someone who looked to be quite clearly involved in a good example of torture, as is defined in this new legislation.

I would hope that this legislation is a start in addressing the anomaly that occurred only in 2009. Much of the debate I have heard and many references that have been made to particular pieces of legislation go back a long time, to the seventies and eighties. Clearly, there is a history of bipartisanship and also tripartisanship with regard to torture prohibition and the abolition of the death penalty. That is welcome. The Australian parliament should be proud of that, that it is strong in its defence of the liberty of men and women not only in Australia but throughout the world. If such a clear case, such as that of Guy Campos, emerges again in the future, with such a significant spend of Australian dollars—say, $400,000 to $500,000, as was spent by the AFP—and if there is a courtroom full of willing witnesses, such as there was in the Campos case, I would hope that this legislation will be a trigger to addressing the anomaly that occurred only last year and to ensuring that justice is done within this country and this region.

I wish to make another point, and this is more for the benefit of anyone who is resident on the mid-North Coast or for anyone reading this speech who may be wondering why we may all get so passionate about an ethical issue like torture prohibition—

Ms Saffin —So we should.

Mr OAKESHOTT —We should. But for those who are still wrestling with that issue, this is not only about someone from East Timor, on a visa, having an extended holiday, who was involved in offences; this is also about local residents. In my old days as a state member of parliament there was a horrific case on the mid-North Coast of ongoing and habitual abuse of an individual by residents. They were not public officials and there was no extracting of confessions or of information. I would hope that, through this legislation, the concept of torture will not be forgotten in a free and democratic Australia. It can easily permeate a free, democratic society. We all need to be vigilant, from everyone on every street on the mid-North Coast to everyone around Australia, in ensuring that we are all aware of what torture is and that we are certainly doing our bit to identify it and doing all we can, where possible, to oppose it.

Various people have spoken previously on the death penalty. My view is that the court system is a human system. It might be 99 per cent right, but that is 100 per cent wrong. It is the one case in 100 cases that the human court process, the human legal system, gets wrong that completely discredits any argument for the death penalty system of justice in a country such as ours or in any country around the world. The previous speaker, the member for Makin, mentioned some examples in the United States, including the great example of the corridor trading within the political process that went on when the gun law changes came in in the US and where negotiations with the states had to take place. Part of that trading with the states included increased penalties that could have the death penalty attached to them so as to get some greater restrictions on gun laws. For that to be a trading mechanism in the halls of political power, I think, sniffs of the inconsistency of death penalty laws in that jurisdiction. It is also a great example for our jurisdiction as well. Previous speakers have also mentioned the lack of an evidence trail between jurisdictions that have the death penalty and any decrease in crime. Therefore, I think that that, again, is a clear statement of the inability of the death penalty to do its job if it is there as some sort of fear tool to prevent murder, manslaughter or any other heinous crimes.


I will also mention a really interesting study that I think was done by Chief Justice Gleeson on community standards and community sentiments around crime. Again, for those who may be sitting in their homes wondering why this is relevant to them, this study was a very interesting reflection on the lynch mob mentality. A survey was done of community views on particular judgments through the court process. The question was asked, ‘Are those judgments too lenient or too hard?’ The vast majority, when they were looking at the judgments alone, said, ‘It is too soft; we should be harder and tougher on crime.’ He then presented the same survey group with all the facts of the case and said, ‘You provide the judgment.’ In the majority of cases, those community members who were surveyed provided a less harsh judgment than given where the judges’ judgments alone were provided on those particular cases—the point being that, without all the facts, without all the evidence, we do potentially suffer from a lynch mob mentality.

We are responding to community in an irresponsible way if we just throw the question out to the community and say, ‘Do you agree with the death penalty or not?’ We are going to get a range of views, and I reckon we might even tip into the side of more people saying yes than no. But if we provide detail and evidence around a particular case, its particular circumstances and the facts of the case and then ask, ‘Do you think the death penalty should apply?’ then, I would hope—and, more often than not, I have faith in our community—that commonsense would apply and most people in the community, once they understood the facts and the evidence trail, would say no.

To the question of whether we are here to serve the majority view within our communities, I would say, ‘Yes, we are, so long as it is done on a factual base and our representation is responsible.’ On this topic I would hope that the tripartisan support for getting rid of any chance that the states may reintroduce the death penalty reflects overall community sentiment and is a common-sense approach.

It was a bit of a surprise to me, in my first 15 months in this job, to see the number of Australian citizens held against their will, for a number of different reasons, in other criminal justice systems around the world. Some of those cases involved the death penalty as one of the potential judgments for the Australian citizens involved. I would hope government would be strong on this and that, even at times when it is difficult—when it may affect trade or sensitive bilateral or multilateral relationships—it would be vigilant in arguing the case for the upholding of Australian law for Australian citizens as much as possible. I would hope that, on the death penalty, we do not drop the ball, either behind the scenes when working through diplomatic channels, or when working through the mouths of Prime Ministers, Attorneys-General and the executive.

We need to be strong in our message about the death penalty. We live in a complex region of the world. The death penalty does apply in many of those jurisdictions. Our strength of leadership is important in reaffirming the reasons why the abolition of the death penalty is important. Hopefully, from that, we will get some other jurisdictions to reconsider their position. But I do not think it is acceptable for leadership to be silent when it might be difficult to raise issues around the death penalty because it may affect trade, for example. I would hope that all our relationships with our neighbours are above that, and I would hope that our role in being one of the great protectors of freedom and liberty is to be loud and vocal and strong about this issue of why the abolition of the death penalty is a sensible move in all criminal justice systems around the world.