Increasingly, Australian citizens have faced the prospect of capital punishment in South-East Asian countries for alleged drug trafficking. If proved, serious crimes have been committed. The community overseas and in Australia is entitled to expect that those offences will be punished.

But is the death penalty for the usually young Australians who have carried commercial quantities of illegal drugs an appropriate or just solution? By February 14 we will know the fate of those members of the Bali nine deemed by the Indonesian prosecution to be the ringleaders who should be executed.

It is a credit to the civility and responsibility of the mainstream parties in this country that the question of capital punishment has not been placed on the public agenda since the hanging of Ronald Ryan in Victoria on February 3, 1967. An emotional response moved the nation. Some had read George Orwell's 1931 essay A Hanging: "It is curious, but till that moment I had not realised what it means to destroy a healthy, conscious man. When I saw the prisoner step aside to avoid a puddle, I saw the mystery, the unspeakable wrongness of cutting a life short when it is in full tide."

The case against judicially authorised killing as a penalty has been well argued by the abolitionists.

Even putting aside the humanitarian critique of writers such as Orwell, Charles Dickens, Clarence Darrow, Albert Camus and Arthur Koestler, it has been widely recognised that: the case for the death penalty as a deterrent has no adequate foundation in the available statistics; errors can be made in even the most scrupulous of judicial systems, and in that event, mistaken findings of guilt cannot be rectified; the death penalty has a differential impact upon ethnic and other minority groups; community concern and any arguable need for retribution, is dealt with by long terms of imprisonment, including a life sentence; real deterrence lies in the prospect of detection, charge and due process.

Those who underestimate the punitive effect of long periods of incarceration fail to appreciate the stark reality of such a sanction.

Thus, despite the subsistence of capital punishment in some states of the United States ( "a cruel and unusual punishment" according to one bench of the Supreme Court of the US), in China and in other nations, our country is free of it.

Should we, therefore, be concerned about Australian citizens being the subject of death penalties in overseas courts?

One argument is that these sovereign states are entitled to run their own justice system without interference from those abroad with different views. Against that is the well recognised obligation of countries to protect their citizens who are dealt with by foreign courts. The notions of consular visits, legal assistance and intergovernmental representations are well established.

It would be proper for the Australian authorities to seek leave to intervene in other jurisdictions where proceedings place Australians in jeopardy, especially where the death penalty is a real possibility. Questions of clemency, mitigating factors and even policy could be presented to those courts. Furthermore, there could be nothing untoward about the Australian authorities making representations through appropriate diplomatic channels to the executive governments of foreign states seeking the exercise of residual prerogatives of mercy. Such representations could be made respectfully and with vigour. Moreover, the convicted person could be removed to the place of citizenship to be dealt with in accordance with domestic law. That approach would balance an acknowledgement of the right of other nations and a principled opposition to capital punishment.

This is an edited version of a talk given by Jeff Shaw, QC, former NSW attorney-general, at the round table on capital punishment arranged by the New South Wales Council for Civil Liberties at the Sydney University Law School.

© 2006 Sydney Morning Herald

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