Author: Stephen Keim SC
“While the death penalty is being exercised against anyone in the world, it is an affront to us as human beings. Especially, it is an affront to us as human rights lawyers. It is relevant to each and every one of us.”
Published in the 30th anniversary edition of Pandora’s Box, the Annual Academic Journal of the University of Queensland’s Justice and the Law Society, Stephen’s article outlines the work of Australian-based anti-death penalty organisations including Australians Against Capital Punishment, the Julian Wagner Memorial Fund and CPJP.
I Why Oppose the Death Penalty?
On 27 June 2024, the Minister for Foreign Affairs, the Hon Penny Wong, referred an inquiry[1] to the Commonwealth Parliament’s Joint Standing Committee on Foreign Affairs, Defence and Trade (Joint Committee). The inquiry is directed to Australia’s efforts to advocate for the worldwide abolition of the death penalty.
The terms of reference for the inquiry include consideration of progress against the recommendations[2] of the 2016 report[3] of the same Joint Committee called A world without the death penalty: Australia’s Advocacy for the Abolition of the Death Penalty.[4]
The existence of two references to an important joint committee of the federal Parliament raises, for some people, questions about the significance for Australians of an active concern about the death penalty in other parts of the world. This may be, and is, frequently, framed as: ‘We don’t have the death penalty in Australia. Why is the death penalty relevant to me?’
For me, the answer is personal and straightforward. I came from an Irish Roman Catholic background with an emphasis on social justice, so I opposed the death penalty, unreservedly, for its cruelty, as long as I can remember. My strong views, in that regard, have never faltered. In addition, events have, in recent years, caused me to be involved in some of the actions taken by Australians to oppose the death penalty overseas. I do not need a reason to be involved in such actions.
A number of good reasons can, however, be formulated.
One answer to the question is that Australians travel overseas. Australians can do silly things including when they are overseas. One day, someone you know may be faced with the death penalty. If you are a lawyer, you may face a request from a friend of a friend for a basic level of legal assistance in respect of the capital charge which has been brought against them. You never know when the death penalty is going to intrude into your life.
Another answer to the question has a touch of John Donne about it. No man is an island.[5] Don’t send to ask for whom the bell tolls. It tolls for thee.[6] While the death penalty is being exercised against anyone in the world, it is an affront to us as human beings. Especially, it is an affront to us as human rights lawyers. It is relevant to each and every one of us.
II The Background to the 2024 Joint Committee Reference
The actions of the Australian government in seeking to prevent the executions of Myuran Sukumaran and Andrew Chan in 2015[7] was marked by excellent cooperation between Australia’s foreign minister, Julie Bishop, and Australia’s shadow spokesperson on foreign affairs, Tanya Plibersek.
In the wake of that impressive display of bipartisanship, Ms Bishop, on 21 July 2015, referred to the Joint Committee an inquiry into Australia’s Advocacy for the Abolition of the Death Penalty. As mentioned above, the Committee reported in 2016. Recommendation 8 of that report was that the Department of Foreign Affairs and Trade (DFAT) coordinate the development of a whole-of-government strategy which has as its focus countries of the Indo-Pacific and the United States of America.[8] The government, in its formal response to the report, adopted[9] recommendation 8.
Australia’s Strategy for Abolition of the Death Penalty[10](Strategy) was adopted in June 2018 and launched in October 2018.
The Strategy notes that the death penalty had been abolished in all Australian jurisdictions by 1985 and that the Commonwealth Parliament had passed legislation in 2010,[11] using the external affairs power, to prohibit any state or territory from reintroducing capital punishment.
The Strategy places opposition to the death penalty into the context of human rights and includes in the reasons for opposition the penalty’s irrevocability and the potential for error; its denial of the possibility of rehabilitation; the lack of evidence supporting deterrent value; and its unfairness arising from its disproportionate use against the poor, people with intellectual and mental disabilities, and minority groups.[12]
The Strategy notes that other countries’ movements to abolition are likely to be gradual and that interim goals must be incremental involving reducing, in some countries, the number of offences that attract capital punishment; removing mandatory sentences of death;[13] reducing the use of the death penalty; and requiring fair trial processes and transparency about the use of the penalty.[14]
The Strategy places obligations on consular staff in overseas posts to report on use of the death penalty and to collect information by liaising with local human rights institutions and anti-death penalty activists.[15]
The Strategy also places obligations on ministers and officials travelling overseas to raise the death penalty as a priority human rights issue in official meetings and communications.[16]
The Strategy also supports the funding of national human rights institutions and civil society organisations that further global abolition including awareness raising of politicians and policy makers and projects aimed at public opinion.[17]
The 2024 reference to the Joint Committee, through its focus on progress against the recommendations of the earlier report of the Joint Committee will, necessarily, consider the effectiveness of the Strategy, the way in which it has been followed on a whole-of-government basis and any need for revision or strengthening of the Strategy.
III The Parliamentary Committee
Another institution of importance is the Commonwealth Parliament’s bipartisan Parliamentarians Against the Death Penalty (Committee). This committee is an informal committee in that members of the Parliament join it of their own volition and it is not assigned tasks by the Houses of the Parliament.
Phillip Ruddock, when he was a member of Parliament but not a minister, was a high-profile co-chair of the Committee. The Committee operates on the basis that one co-chair is from the governing parties and one co-chair is from the opposition parties in order to ensure bipartisanship. In the current Parliament, the co-chairs are Graham Perrett, member for Moreton in Queensland of the Labor Party and Senator Dean Smith, a Liberal Senator from Western Australia.
The Committee has supported the Strategy and worked to ensure that the Strategy’s objectives are achieved. The Committee has worked with and supported Non-governmental Organisations (NGO) working to advocate against the death penalty, and, as a whole, has been generally supportive of Capital Punishment Justice Project’s[18] (CPJP) work.
IV Getting Involved: A Personal Story
Despite my personal views against the death penalty, my active involvement in that cause occurred despite myself. Specific events have guided me into a more active engagement with death penalty issues.
Towards the end of the first decade of the 21st century, a barrister and friend of mine, Julian Wagner, approached me and suggested that I agree to be the patron of Australians Against Capital Punishment[19] (AACP). Despite protesting that I was much too young to be patron of anything, I eventually agreed.
AACP was and is a loosely structured organisation created by friends of Lee and Christine Rush, the parents of Scott Rush, a member of the Bali Nine who was then on death row in Indonesia.
AACP engaged in this advocacy against the death penalty as well as raising money to assist Lee and Chris in a small way with the costs of travelling back and forth to Indonesia to visit their son on death row.
Scott Rush had been arrested on 17 April 2005. At his trial, Scott was sentenced, on 13 February 2006, to life imprisonment. However, an appeal against sentence was lodged and, as a result of that appeal, perversely, on 6 September 2006, Scott’s sentence of life imprisonment was increased to a sentence of death. That was the situation affecting the Rush family when I first became involved with AACP.
It was a great relief, of course, when, on 10 May 2011, an appeal to the Supreme Court of Indonesia resulted in the overturning of the penalty of death and the re-imposition of the sentence of life imprisonment. Efforts to convince Indonesian authorities to reduce the life imprisonment sentence to a fixed term and to achieve the eventual release of Scott and the other members of the Bali Nine will continue.
In 2014, my friend, Julian Wagner, who had got me into all of this, died an untimely death. Julian had been an enthusiastic opponent of capital punishment. At his memorial service, I had the idea that an appropriate memorial to Julian would be an organisation that continued his work.
The idea lay dormant for some time but, in 2016, with great help from a number of Julian’s close friends including former Queensland District Court judges Marshall Irwin and Sarah Bradley AO, and barristers Richard Galloway and Karen Garner, the registered charity, the Julian Wagner Memorial Fund[20] (JWMF), became a reality. For my sins, Marshall and the others persuaded me to become a patron of a second anti-death penalty organisation.
Between Julian’s death and the commencement of the JWMF, many Australians were galvanised into opposing the death penalty and then traumatised, on 29 April 2015, by the execution of Andrew Chan and Myuran Sukumaran by firing squad on Nusa Kambangan Island in Indonesia. Andrew and Myuran had been arrested at the same time and in respect of the same incident as Scott Rush.
Over the years, AACP and JWMF have carried on a tradition started by AACP of having an annual dinner and other events both to raise money and to raise consciousness about the issues associated with the death penalty. One of our guest speakers was Julian McMahon AC SC[21] who, with Lex Lasry AM QC,[22] had represented Van Tuong Nguyen[23] who was executed in Singapore in 2005 and had represented Andrew Chan and Myuran Sukumaran (originally, with Lasry before he was appointed a judge of the Victorian Supreme Court).
The contact made with Julian McMahon led to various other interactions with the organisation of which Julian had become chair, namely, Capital Punishment Justice Project.[24] In October 2019, I was invited to join the board of CPJP. Then, in December 2020, Julian chose to step down as chair and I became Chair of CPJP.
V Capital Punishment Justice Project (Formerly Reprieve Australia): an Introduction
In 2001, two relatively new barristers at the Melbourne Bar, Nick Harrington and Richard Bourke,[25] had the idea to start an Australian body that would assist in opposing the death penalty and assist people at risk of suffering the death penalty. The name they chose for the organisation was Reprieve Australia and the organisation was modelled on the UK organisation, Reprieve.[26] Reprieve was founded in 1999 by British lawyer who worked on capital defence cases in the United States, Clive Stafford Smith[27] and the film-maker Paul Hamann,[28] who had made the highly influential film, 14 Days in May,[29] about Stafford Smith’s desperate attempts to save Edward Earl Johnson from dying in the gas chamber in Mississippi.
Richard Bourke is an extraordinary person with an extraordinary life story. In 1998, Richard went to Louisiana as a volunteer intern and worked for a few months on death penalty cases in the Louisiana criminal justice system. His experience led him, with Harrington, to establish Reprieve Australia in 2001. One of the main tasks of the organisation has been and remains the recruitment of and support of volunteers to work as volunteers in much the same way as Richard did back in 1998.
In 2002, Richard returned to Louisiana. Albeit, with short holiday visits back to Australia, Richard has lived permanently in New Orleans and has worked on capital cases, trials and appeals, since that time. He is now director of the Louisiana Capital Assistance Center[30] (LCAC).
Since 2001, CPJP has, apart from a recent gap because of COVID-19, continuously sent volunteer interns to work at capital assistance centers in the United States, including the LCAC. CPJP calculates that, over that time, over 70,000 hours of volunteer services have been provided. The intern program resumed when international travel, again, became available, and continues at the time of writing.
Placements are, generally, for about three months. The positions are unpaid and a volunteer has to meet their own expenses including travel and accommodation. Because this requirement can exclude excellent candidates for lack of means, one of the projects for which JWMF was brought into existence was to raise funds to provide modest bursaries for successful applicants for intern positions to help meet some of those expenses.
Capital assistance centers are under-resourced and have to struggle to meet the demand for their services. The intern program is to provide centers with additional resources so that the lawyers can get on with their more lawyerly work. Interns do not work as lawyers. They do the things that make the lives of busy lawyers a little easier. As an intern, you may be asked to drive several hours to pick up a death row occupant’s family to assist them to visit the prison. That might involve a further long drive to the prison, a lengthy wait in the car park and further hours of driving, taking the distressed family back to their home.
Another task might involve a visit to a remote courthouse to inspect and copy documents which might turn out to be important in an appeal. Similar tasks await the volunteer intern in the office. Notwithstanding the lack of glamour and the low level of the work required in terms of intellectual input, CPJP interns have made enormous contributions to the work of opposing the death penalty in the United States. This work and these opportunities to contribute will be ongoing while the death penalty, itself, continues.
In recent years, CPJP has come to the view that assisting capital defence lawyers in the United States should not be the only focus of an Australian-based anti-death penalty NGO. Australia is part of a region where the death penalty forms part of the legal system in many of the countries in that region. Countries which retain the death penalty in Asia include Bangladesh, China, India, Indonesia, Japan, Malaysia (subject to a moratorium), North Korea, Pakistan, Singapore, Taiwan, Thailand and Vietnam. It was in this context that the decision was made to change the organisation’s name from Reprieve Australia to CPJP.
CPJP does not yet have a volunteer intern program equivalent to its US program where Australian volunteers serve as interns at law offices in Asian countries for a period of time. However, CPJP does do an enormous amount of work opposing the death penalty in Asia. Such work takes a number of forms and requires a significant amount of resources. The work provides opportunities for volunteer input and CPJP also offers a domestic volunteer program which provides opportunities to contribute to such work.
CPJP supports campaigns against the death penalty, generally, in particular countries and in individual cases. CPJP is often contacted, particularly, in the case of Australians threatened with the death penalty to assist local lawyers acting for the person involved. This can involve many different levels of assistance, including obtaining information only available in Australia and having it translated into the local language; having court documents in the local language translated into English so that Australian volunteers can understand the issues involved in the case; by researching international law and international precedents as they relate to the death penalty; preparing drafts of affidavits or submissions by way of assistance to local lawyers in applications and proceedings in the local court; and liaising with the Australian government to ensure that consular support being provided is both apt and effective.
In 2021, drawing on information provided by local lawyers and consular officials and its own research, CPJP prepared its own amicus brief for filing in an appeal then pending in the Thailand Supreme Court. The amicus brief was also signed by Senator Dean Smith and Chris Hayes, the then co-chairs of the above-mentioned Commonwealth Parliament’s non-partisan Committee, thereby obtaining a degree of Australian Parliamentary official imprimatur for the brief.
The appeal by Australian, Luke Cook, and his two co-defendants was successful, not only in getting Cook and his co-defendants off death row, but in obtaining their acquittal as the appeal court recognised the thoroughly discreditable nature of the evidence on which the court at first instance had relied to convict the appellants.
There are many ways in which CPJP seeks, at a systemic level, to promote abolition or reduce the extent to which countries apply the death penalty or engage in other forms of state-sanctioned killing. CPJP has applied for and received grants from DFAT in Australia; human rights agencies of the European Union; and disparate other agencies empowering CPJP to conduct programs in a number of different Asian countries in which the death penalty still operates directed to lessening the likelihood of its use. These include the development of training programs for defence lawyers, prosecutors and judges which place emphasis, for example, on the importance of mental health issues in criminal conduct and their impact on the degree of culpability of an accused person for their criminal actions.
CPJP also assists local human rights defenders in their work opposing the death penalty. This can include providing training programs to upskill local activists and it can include campaigns to mobilise international support for local human rights defenders where they are attacked or targeted for their work as human rights defenders and in opposing the death penalty.
As well as supporting local lawyers in their work in defending clients threatened by the death penalty, CPJP has also mobilised international opposition to use of the death penalty by particular governments. For example, CPJP played a significant role in mobilising opposition to Singapore’s eventually successful attempt to execute Nagaenthran Dharmalingam,[31] a Malaysian who suffered from severe mental disabilities and whose ability to know that the illegal drug activity in which he had been involved was wrong was very much in doubt. CPJP works closely with DFAT officials, including consular staff, passing on information derived from CPJP’s local contacts, thereby assisting consular officials’ effectiveness in protesting and opposing foreign governments’ use of the death penalty.
VI Concluding Thoughts
At the time of writing, CPJP is actively preparing its submission for the Joint Committee’s inquiry.
CPJP has a number of ideas on ways in which Australia’s advocacy against the death penalty can be improved. While that is a story for another day, the submission will urge close cooperation between government officials and civil society organisations working in the area. There is plenty of room for synergy as NGOs often have local knowledge obtained from the local groups whose work they support while consular officials often have official access to governments denied to NGOs.
This synergy also supports a view that the Australian government should provide financial support to organisations like CPJP to ensure their continued existence and effectiveness.
While opposing executions and the death penalty has moments that are frustrating and traumatic when particular efforts are not successful, the work also provides great satisfaction. In Donne’s words, we are all diminished by the deaths of others, particularly when those deaths are inflicted in cold blood by the state. Those of us involved in opposing the death penalty feel very fortunate that we have been given the opportunity to oppose such a cruel and inhuman[32] and degrading punishment.
Stephen Keim SC
Chambers
23 July 2024
[1]* Stephen Keim is an Australian Barrister. His areas of practice include Appellate Advocacy, Regulatory Matters, Administrative Law, and Constitutional Law. He was formerly president of the Legal Aid Commission (Queensland), and is an active member of the Human Rights Committee of the Law Council of Australia.
Parliament of Australia, ‘Committee to inquire into Australia’s global efforts to abolish the death penalty’ (Media Release, 3 July 2024).
[2] Australian Government, Australian Government response to the Joint Standing Committee on Foreign Affairs, Defence and Trade report: A world without the death penalty: Australia’s Advocacy for the Abolition of the Death Penalty (Report, March 2017) (‘Australian Government response’).
[3] Joint Standing Committee on Foreign Affairs, Defence and Trade, A world without the death penalty: Australia’s Advocacy for the Abolition of the Death Penalty (Report, 5 May 2016) (‘A world without the death penalty’).
[4] The terms of reference in full read:
An inquiry into Australia’s efforts to advocate for the worldwide abolition of the death penalty. The inquiry will:
- Progress against the recommendations in the 2017 Joint Standing Committee on Foreign Affairs, Defence and Trade report: A world without the death penalty: Australia’s Advocacy for the Abolition of the Death Penalty;
- Australia’s international engagement to promote abolition of the death penalty;
- Opportunities and risks for Australia to advocate for the abolition of the death penalty internationally, including:
Engagement with international institutions and likeminded countries;
a) Advocacy for Australians subject to or potentially subject to the death penalty;
b) Addressing heightened risk of the death penalty based on sexual orientation and gender identity, ethnicity, religion and political beliefs;
c) Cooperation with civil society and non-government organisations; and
- Any related matters.
[5] See John Donne, No Man Is an Island (1624).
[6] The text of the last stanza of No Man Is an Island (See above n 5)reads as follows:
Any man’s death diminishes me,
Because I am involved in mankind.
And therefore never send to know for whom the bell tolls;
It tolls for thee.
[7] See Capital Justice Punishment Project, ‘Remembering Andrew Chan and Myuran Sukumaran’, Newsletter (online, 29 April 2024) <https://www.cpjp.org.au/news/cpjp-remembering-andrew-and-myuran>.
[8] A world without the death penalty (n 3) 163 [Recommendation 8].
[9] Australian Government response (n 2) 7.
[10] Department of Foreign Affairs and Trade, Australia’s Strategy for Abolition of the Death Penalty (June 2018) (‘Australia’s Strategy’).
[11] Ibid 2.
[12] Ibid.
[13] Malaysia is a country which followed this anticipated pattern in that, in April 2023, it changed the nature of the sentence of death from mandatory to that of a discretion to be exercised by the sentencing judge. The law also provides for a resentencing process for persons held on death row as a result of the previous state of the law. See Tarrance Tan, Rahimy Rahim and Martin Carvalho, ‘Dewan passes amendment to abolish mandatory death penalty’, The Star (online, April 2023) <https://www.thestar.com.my/news/nation/2023/04/03/dewan-passes-amendments-to-abolish-mandatory-death-penalty>.
[14] Australia’s Strategy (n 10) 3.
[15] Ibid 7.
[16] Ibid 8.
[17] Ibid 9.
[18] See Capital Punishment Justice Project (Web Page) <https://www.cpjp.org.au/>.
[19] See Australians Against Capital Punishment (Web Page) <https://aacp.online/>.
[20] See Julian Wagner Memorial Fund (Web Page) <https://www.jwmf.com.au/>.
[21] Julian McMahon AC SC is an Australian barrister. His principal focus is on criminal law, and has worked on matters including homicide; terrorism; corruption; and, outside Australia, the death penalty. See ‘Against the death penalty: barrister Julian McMahon’, ABC Conversations (Sarah Kanowski, 25 July 2019) <https://www.abc.net.au/listen/programs/conversations/julian-mcmahon-against-capital-punishment/11323694>.
[22] Lex Lasry AM QC is an Australian lawyer, and a former Justice of the Supreme Court of Victoria from 2007 to 2018. See ‘Lex Lasry’, Wikipedia (Web Page) <https://en.wikipedia.org/wiki/Lex_Lasry>.
[23] Van Tuong Nguyen was an Australian citizen convicted of drug tracking in Singapore. Despite numerous pleas for clemency, he was executed on 2 December 2005. See ‘Van Tuong Nguyen’, Wikipedia (Web Page) <https://en.wikipedia.org/wiki/Van_Tuong_Nguyen>.
[24] See above n 18.
[25] Richard Bourke is an Australian barrister. In 1998, he visited New Orleans to volunteer at the Louisiana Capital Assistance Centre, before returning to work there full time in 2002. See also Stephen Keim SC and Daniel Caruana, ‘On The Coal Face: The Inspiring Richard Bourke On A Life Against Death Row’, newmatilda(Web Page, 29 November 2018) <https://newmatilda.com/2018/11/29/coal-face-inspiring-richard-bourke-life-death-row/>.
[26] See ‘History’, Reprieve (Web Page) <https://reprieve.org/uk/our-history/>.
[27] Clive Stafford Smith is the co-founder of Reprieve. He attended Columbia Law School in New York, before spending nine years as a lawyer with the Southern Center for Human Rights, working in death penalty cases and on other civil rights issues. See ‘Clive Stafford Smith’, Reprieve (Web Page) <https://reprieve.org/uk/person/clive-stafford-smith/>.
[28] Paul Hamman is the patron and co-founder of Reprieve. A filmmaker, he has made over 50 documentaries himself, many winning awards. He runs his own independent production company, and was previously the BBC’s Head of Documentaries and History. See ‘Paul Hamman’, Reprieve (Web Page) <https://reprieve.org/uk/person/paul-hamann/>.
[29] (British Broadcasting Corporation, 1987). See also ‘Fourteen Days in May’, BBC (Web Page) <https://www.bbc.co.uk/programmes/p05m5xb9>.
[30] See Louisiana Capital Assistance Center (Web Page) <https://www.thejusticecenter.org/>.
[31] See ‘Singapore executes mentally disabled man despite worldwide outcry’, CBS News (online, 27 April 2022) <https://www.cbsnews.com/news/singapore-execution-nagaenthran-dharmalingam-mentally-disabled-worldwide-outcry/>.
[32] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 7.