Barry Jones and Michael Kirby are living legends. Recently Barry gave the 2022 Michael Kirby Justice Oration at Victoria University College of Law and Justice. His topic The Death Penalty, Populism and Democracy.
Barry gave the blog permission to reproduce the speech. It’s a bit longer than the usual blog posts but it’s an important, elegant and profound contribution to Australian and international, legal social and political debate – as well as a deep analysis of why capital punishment is wrong and why Michael Kirby’s career has been so important to Australia. The blog will be back with its own contributions next week.
About Michael Kirby
I am greatly honoured to have been invited to deliver the 2022 Michael Kirby Oration, to celebrate his outstanding contribution, not just in Australia but internationally.
We first met in 1975. He is one of Australia’s 100 ‘Living National Treasures’, and I would rank him near the top of the list.
He first attracted public attention as the inaugural chair of the Australian Law Reform Commission 1975-84. Its members included Sir Zelman Cowen, later Governor General 1977-82, Sir Gerard Brennan, Chief Justice of the High Court 1995-98, John Cain, Premier of Victoria 1982-90 and Gareth Evans Attorney-General 1983-84 and Minister for Foreign Affairs 1988-96.
Michael Kirby holds the dual records of being the youngest person appointed as a judge in Australia and the longest-serving member of its judiciary 1975-2009.
Michael Kirby: Paradoxes & Principles (2011) by A J Brown is a scholarly work on his influence in shaping the law. Kirby J was a frequent dissenter on the High Court, but with the wisdom of hindsight his dissents seem unusually prescient, especially on ethical, scientific and technical areas, reflecting his deep understanding of the biological and information revolutions.
As Minister of Science, I asked Michael Kirby to accept appointment to the board of CSIRO (the Commonwealth Scientific and Industrial Research Organisation) and he served 1983-86. He played an extremely valuable role in issues as diverse as setting priorities, guaranteeing international property rights and redefining ethical standards. His capacity to master a brief is almost unparalleled in my experience.
He was President of the International Commission of Jurists, Geneva 1995-98
He drafted a major report on privacy issues for the OECD (1999). He drove development of the Universal Declaration on Bioethics and Human Rights, adopted by the General Conference of UNESCO in 2005. He also served for a decade on the Ethics Committee of the Human Genome Organisation (HUGO), London, at that time the largest cooperative scientific project in history. His reports for the United Nations on violations of human rights in Cambodia (1993-96) and North Korea (2013) were outstanding. He made an important international contribution to tackling human rights issues arising from the HIV/AIDS pandemic.
The Charter of the Commonwealth (2012) setting out sixteen core beliefs of the 54 nations in the Commonwealth was largely shaped by him.
He has had a long history of involvement in the process of law reform in the United Kingdom, India, New Zealand and other Commonwealth countries.
The Kirby Institute in Sydney, founded in 1986 but renamed for him in 2011, conducts research in Australia and the neighbouring region on infection and immunity in society.
He has been awarded 30 honorary doctorates, a record for Australia. He is a great humanitarian, selfless, generous, a strong supporter of the arts, tireless in his commitment to justice, openness, fairness, education, ending slavery, torture and the death penalty.
I can think of only one public policy issue where we (politely) disagree.
However, the issue on which we passionately agree is that of working for the abolition of the death penalty internationally.
The Penalty is Death – second edition, 2022
The year 2022 marks the centenary of the abolition of the death penalty in Queensland, not only the first Australian state to do so, but the first jurisdiction in the then British Empire.
Part of the commemoration was the publication of a second edition of The Penalty is Death. (I edited both). It was launched at Parliament House, Brisbane, on 1 August but due to my very bad timing with Covid I appeared only as a ghostly presence via Zoom.
The first edition of The Penalty is Death had been published by Sun Books in 1968, in the aftermath of Ronald Ryan’s hanging at Pentridge on 3 February 1967.
Ryan had been the last of 2,140 people to be executed in Australia since 1629, 187 of them in Victoria.
The new edition of The Penalty is Death, published by Scribe, is much longer, updated, revised and with much new material.
It begins with three outstanding Forewords, by Michael Kirby, Richard Bourke, an expatriate Melbourne barrister who has worked in the United States since 2002, and Julian McMahon, AC, SC, with unparalleled experience in death penalty cases.
Michael Kirby wrote:
Nobel Laureate John Coetzee, in Waiting for the Barbarians (1980), adapting an idea by Nathaniel Hawthorne, referred to ‘the black flower of civilisation’, essentially the coercive power of the state, which would include the death penalty, torture and wrongful imprisonment.
Essentially, there are two black flowers: the barbarity of state involvement in the premeditated extinguishing of a human life, and the overwhelming objective proof that doing so did not have the suggested practical merit of reducing the incidence of serious crimes. Yet, there is a third bloom, a golden flower that can be identified in the advance of civilisation in our world. It is the golden flower of universal human rights that has enhanced civilisation since the Queensland abolition of capital punishment in 1922…
The true foundation for the authority of the judiciary and other governmental institutions of Australia rests not on executions but on the adherence of its judges and people to constitutionalism and its respect for the human dignity of all people. No exceptions – even those convicted of grave crimes. This is the message of this book. It remains relevant and timely in Australia, 100 years after the first abolition of capital punishment in Queensland. It is more than ever a timely message for a wider world in which violence by states and their agencies is never far from human deeds and imagination.
As early as 1916, Queensland’s Labor Government, led by Thomas John Ryan, born and educated in Victoria, introduced a Bill to abolish the death penalty. It was carried 37–14 in the Legislative Assembly, but blocked by the conservative Legislative Council, a body then entirely appointed.
In 1921 Premier Edward Granville (‘Red Ted’) Theodore, later Commonwealth Treasurer, persuaded the Governor of Queensland, Sir Matthew Nathan, to appoint enough new members (soon dubbed ‘the suicide club’) to vote the Legislative Council out of existence.
On 1 August 1922 capital punishment was abolished in Queensland for all crimes.
Queensland had its last execution in 1913, New South Wales in 1939, Tasmania in 1946, the Northern Territory (under Commonwealth law) in 1952, South Australia and Western Australia in 1964, and Victoria in 1967. Between 1901 and 1964 Western Australia executed more than any other Australian state, and was the last to abolish the death penalty for murder (1984)
During World War I there had been many executions of soldiers for desertion or cowardice: thousands in Germany and France, 306 in the British army, 25 Canadian, 5 New Zealand and zero Australia. That zero was largely due to Prime Minister Billy Hughes. Despicable in many ways, he was sound on two issues: the death penalty and being the first politician in Australia to recognise Hitler as an existential threat.
What is the relevance of debating the death penalty in 2022?
Capital punishment is a central metaphor/analogy about the problems of state power, the fallibility of human judgment, flaws in rigid institutions, the use of special pleading, and the danger of making decisions that are irreversible.
The World Coalition against the Death Penalty reported the number of recorded executions internationally in 2021 at 2,397, with at least 2,000 in China. The total figure is probably far higher, because China keeps details of its executions a state secret. An estimated 33,000 people are currently under sentence of death, globally.
China executes for murder, drug trafficking, official corruption, financial crimes, and robbing ancient cultural sites. However, the number of executions fell significantly from 12,000 in 2002 to 6,500 in 2005. Many of those convicted (and acquittal is very rare) may be sentenced to death, subject to a reprieve.
Iran, with a population of 83 million, has a higher execution rate per capita than China. In addition to murder, treason, and drug- trafficking it is enforced for a far wider range of offences, including sodomy, rape, incest, paedophilia, adultery (for repeat offenders), producing pornography, political dissidence, apostacy, blasphemy, some economic crimes, and ‘enmity against God’.
Egypt ranks third among executing states. In the decade 2011-21 the Muslim Brotherhood sentenced to death 2,182 people, including children, mostly for political offences.
In 2022 Myanmar had its first executions since 1989: four political associates of Aung San Suu Kyi. Singapore has resumed executions for drug offences, citing 80 per cent public support. Iran is ramping up executions and/ or unexplained ‘deaths in custody’.
The Australian history
First Nations people in Australia had strict codes of punishment, some of which may have resulted in death, but execution as a ritual begins in Australia with European intervention.
In October 1629, seven Dutch mutineers (and murderers), survivors of the sinking of The Batavia, were hanged by the Dutch East India Company (VOC) on Seal Island, on the Houtman Abrolhos Islands, off the coast of Western Australia.
The First Fleet began the occupation/settlement of Australia in January 1788. The first execution took place in Sydney just one month later, when Thomas Barrett, aged seventeen, was hanged for theft. The first twenty-four executions in New South Wales were for stealing or burglary.
In Australia (and Norfolk Island) there were seven hangings in the seventeenth century, 380 in the eighteenth, 1,630 in the nineteenth, 118 in the twentieth, and none in the twenty-first.
Not all executions took place in, or outside, Australian prisons. There were extra-judicial killings of Aboriginal people – probably thousands, even more than all judicial executions. And, as Shane Maloney points out, Indigenous deaths in custody since 1991 amount to 512 inevitably raises questions about interventions acquiesced in, or assisted, by officials.
Arguments for abolition
The death penalty is deeply embedded in our culture, and probably our psyches. It was inextricably linked with imperialism, colonialism, and Christianity, too. The crucifixion of Jesus, by a Roman method, is central to the Church’s history and teaching, to its liturgy and art. For millennia the practice of execution was virtually unchallenged.
Religious fundamentalism is a powerful force in the US, and Christian fundamentalists are among the most zealous supporters of judicial execution. They rely on a highly selective reading of the Bible. On my reading of the New Testament, it is hard to see Jesus, a victim of execution himself, as a hard-line retentionist.
Fundamentalists rely on the Mosaic code, which provided death for many crimes, including murder, witchcraft, and cursing parents—although the last two are no longer insisted on. It is worth recalling that as an expression of the prevailing thinking of the Hebrews when they were nomads without penitentiaries, the Mosaic law expressly endorsed slavery. Those who insist that capital punishment is ‘God’s law’ still read that law selectively.
Michel de Montaigne (1533-1592), the great French essayist – and magistrate –a contemporary of Shakespeare, was a powerful critic of absolute judgments where a ruler, a judge or a general makes a categorical decision which impacts on – or ends – the lives of others, actions which are irreversible and where decision makers are deeply hostile to challenges or questions after the event.
Montaigne was preoccupied with how his mind worked:
I go backwards and forwards: my judgment does not always march straight ahead, but floats and bobs about ‘like a tiny boat buffeted on the ocean by a raging tempest’.
He often writes – and here I paraphrase – that, in effect, what he wrote yesterday, looks absurd today and that all judgments are speculative and provisional.
He neatly set out his reasons for opposing the death penalty:
“Judgments normally inflame themselves towards revenge out of horror for the crime. That is precisely what tempers mine: my horror for the first murder makes me frightened of committing a second, and my loathing for the original act of cruelty makes me loath to imitate it. “(On Physiognomy, 1588).
And for opposing execution for heresy, blasphemy and witchcraft:
‘After all, it is to put a very high value on your surmises to roast a man alive for them’. [‘On the lame’, p. 1169].
Cesare Beccaria (1738-1794), an economic and philosopher from Milan, born into an aristocratic family, is, I believe, the most important single figure in the campaign to end state killing. His name will be unfamiliar to most – even here – but he should be celebrated.
Beccaria’s On Crimes and Punishments (Dei delitti e delle pene), published in 1764, argued for the abolition of the death penalty with a classic simplicity: there is no demonstrable correlation between the severity of punishment and the crime rate; all punishment deters, but there is no statistical evidence that execution, or torture, deters uniquely. Essentially, there have been no new arguments for abolition since Beccaria.
He was influenced by The Persian Letters (1721) by Montesquieu and by Voltaire.
On Crimes and Punishment was published anonymously with a Preface by Voltaire, who was assumed by many to be the author. It was an immediate success and translated into many languages and I know of six English translations. Beccaria’s chapter ‘Of the punishment of death’ is published in full in The Penalty is Death, with a commentary by me.
He was astonishingly prescient, rejects the concept of punishment as divine vengeance and adopts a utilitarian approach: what is the aim? does it succeed? who benefits? what is to be learned?
Beccaria’s main arguments are:
- No penalty should be imposed that is neither necessary nor useful. Since capital punishment cannot be equated with self-defence (contrary to the popular fallacy), there is never any necessity to execute—although it may well be essential to have tighter prison security. If governments don’t say, ‘I kill you because I must’ (that is, where there is no possibility of an alternative penalty), they are in fact saying, ‘I kill you because I prefer to.’ (That is, there is a positive choice – a preference.)
- The use of torture, especially to extract information or confessions, is not only bad but stupid. ‘Of two men, equally innocent or equally guilty, the robust and courageous will be acquitted, the weak and the timid will be condemned.’
- Prevention of crime, for example by education, a proper police force, or encouragement of factors promoting social stability, is far preferable to punishment after commission.
- Certainty of detection and conviction are better deterrents than severity of punishment. ‘The certainty of a small punishment will make a stronger impression than the fear of one more severe, if there is a reasonable chance of escaping it.’
Due directly to Beccaria, the death penalty was abolished in Tuscany in 1786, in the Holy Roman Empire (Austria, Hungary, modern Belgium, Czechia, Croatia) in 1787, and greatly restricted in Russia by Catherine the Great.
Leo Tolstoy (1828-1910), the pre-eminent Russian novelist, observed the guillotining of a murderer in Paris in 1857, and the image haunted him all his life.
“I witnessed many atrocities in the war and in the Caucasus, but I should have been less sickened to see a man torn to pieces before my eyes than I was by this perfected, elegant machine by means of which a strong, clean, healthy man was killed in an instant. In the first case, there is no reasoning will, but a paroxysm of human passion; in the second, coolness to the point of refinement, homicide-with-comfort, nothing big.
“When I saw the head part from the body and each of them fall separately into a box with a thud, I understood — not in my mind, but with my whole being—that no rational doctrine of progress could justify that act, and that if every man now living in the world and every man who had lived since the beginning of time were to maintain, in the name of some theory or other, that this execution was indispensable, I should still know that it was not indispensable, that it was wrong.”
Ultimately, all executions are political. Their exercise is irrevocable, arbitrary, and often capricious. It depends on geography, too, as Blaise Pascal noted in his Pensées, no. 434:
Three degrees of latitude upset the whole of jurisprudence and one meridian determines what is true … It is an odd sort of justice whose limits are marked by a river, true on this side of the Pyrenees, false on the other.
The Canadian philosopher Ronald Wright noted:
States employ ‘various styles of human sacrifice’ as forms of ‘the ultimate political theatre’.
If I may insert a personal note, I have been a passionate abolitionist since the age of six. My role in securing the abolition of the death penalty in Australia gives me more satisfaction than anything else I have ever done, followed by my lonely years arguing for action against the challenge of climate change.
As Secretary of the Victorian Anti-Hanging Committee 1962-75, I was a leader of the successful campaign in 1962 to reprieve Robert Tait (assisted, I must admit, by the High Court of Australia) and the failed campaign 1966-67 to save Ronald Ryan.
The Ryan Case
In 1967, Ronald Ryan had been executed for shooting a warder in the course of a jail break from Pentridge. One can be confident that the killing was not deliberate and that Ryan intended to fire a warning shot. He was smart enough to grasp that killing a warder would not be a good career move.
Ryan’s killing of Warder George Hodso was almost certainly unintended. Premier Henry Bolte’s killing of Ronald Ryan was calculated and deliberate.
Ryan’s hanging became an important factor in recruiting young people to political activism, perhaps second only to the Vietnam War, Steve Bracks being a prime example. Nevertheless, Sir Henry Bolte cruised to victories in the Victorian elections in 1967 and 1970. But Bolte’s successor, Dick Hamer, was a convinced abolitionist and, following the long campaign by Jack Galbally, Labor’s Upper House leader, worked with me to repeal the death penalty in 1975.
Even in my 1975 speech to the Victorian Parliament in the debate which led to the abolition of the death penalty I never mentioned Ryan, so raw was my memory. I wrote about him, but could not speak.
Mike Richards, who is an apology tonight, wrote The Hanged Man, a biography of Ryan and made a valuable contribution to The Penalty is Death. Steve Bracks and I both spoke at the launch of The Hanged Man in 2002. It was the first time in 35 years that had I had ever spoken about Ryan in public.
Mike Richards wrote eloquently about the effect of the execution on Justice John Starke who had pronounced the death sentence on Ryan, although a convinced abolitionist, who had been the counsel for Robert Tait in 1962.
Ryan’s counsel, Philip Opas, Brian Bourke, Paul Guest, never got over his execution.
In February 2017, fifty years after the hanging, the Supreme Court of Victoria held a commemorative event.
I reflect constantly on the issue of equivalence. Does the punishment fit the crime? Fritz Sauckel was directly responsible for organising the deaths of more than a million people with unspeakable cruelty during the Nazi regime. At Nuremberg he was hanged. Ronald Ryan suffered an identical penalty. Would anyone argue that the cases were equivalent?
Wartime executions by the AIF in Papua New Guinea
After my election to the Commonwealth Parliament in 1977, one of the first issues I took up was the mutilation of the Australian National Archives relating to the World War II executions of Indigenes from Papua-New Guinea by the AIF.
The numbers of executions in Papua New Guinea under colonial rule (first Germany in New Guinea, then Queensland, and then the Commonwealth in Papua) are elusive, but there may had been almost sixty until hangings ceased in 1954.
In Papua New Guinea in 1943 and 1944, the Australian Imperial Force (AIF) tried, convicted and hanged about 150 indigenous people in remote areas, mostly for murder, but often for collaboration with Japanese forces. These punishments, carried out in public, but not reported to the Australian government, now seem inexplicable.
In 1959 I had been told about these extraordinary executions by Alf Conlon, a consummate networker who advised both John Curtin and Sir Thomas Blamey as head of the army’s Directorate of Research and Civil Affairs (DORCA).
In May 1978 I delivered a speech in the House of Representatives about what I had been able to glean from the mutilated files in the Australian National Archives (ANA) about the hanging of thirty-four New Guineans at Higaturu by the AIF in September 1943:
The New Guineans all lived in a small area to the east of the Owen Stanley Ranges, near the point of cultural ‘interface’ where territory was successively occupied by Germans [before 1918], Australians and Japanese. If there was any lesson that these people and their families must have learned, it was that foreigners – whether German, Australian or Japanese – wearing a uniform and an air of authority were in a position to enforce their wishes and had to be obeyed without question. Treason is a highly conceptual crime involving an understanding of legal obligations to the Australian State or the British Crown, and the significance of breaching them. In the first batch of trials the sentences were referred to and apparently confirmed by the General Officer Commanding (GOC) the 1st Australian Army, Lieutenant General Sir Edmund Herring, later Chief Justice of Victoria, in his capacity as Administrator of the Australia- New Guinea Administration Unit (ANGAU). *
- Commonwealth House of Representatives Debates (Hansard), 8 May 1978, vol. 109, p. 1941. http://historichansard.net/hofreps/1978/19780505_reps_31_ hor109/#debate-33
I received more hate mail after this speech than on any other issue in my career. Some of the angriest letters contained important new evidence. I didn’t know what I was talking about, my informants wrote; the hangings had not been at Higaturu, but at Samarai/Milne Bay, Aitape, Lae, Rabaul, Port Moresby, and in the Sepik, where they had been witnesses. The numbers began to rise sharply.
It is clear that the AIF was very careful not to tell the Australian government what it was doing, and when Prime Minister John Curtin found out about it in April 1945 he ordered the executions stopped.
The few files remaining in the ANA reveal that after the Cabinet directed the then GOC, Lieutenant General V.A.H. (later Sir Vernon) Sturdee not to proceed with hanging about fifty Papua New Guineans, in July 1945 he sought legal advice from the director of Army Legal Services, Brigadier Alan S. Lloyd (later a judge in New South Wales) as to whether he was bound to follow Cabinet’s direction.
Lloyd replied, drily, that while the GOC might not be legally compellable, a reading of history suggested a certain caution: had he failed to comply, ‘the consequences might not have been happy’, because ‘Cabinet enforces compliance … by removing from office any public servant who flouts its instructions’. The most profoundly disturbing feature of the incident was to find a GOC urging execution as a matter of military necessity within weeks of Japan’s surrender.
Because the official files had been gutted, it is impossible to form a judgment about:
- How many indigenous Papua New Guineans were executed, and where and when.
- The precise nature of the charges—was it murder, rape, treason, collaborating with the Japanese?
- The nature and quality of the evidence.
- How the trials were conducted and by whom.
- Whether the accused had the benefit of defence counsel.
- Whether prosecution witnesses were subject to cross- examination.
- What languages the trials were conducted in, and whether translators were available.
- The average duration of each trial.
- Whether there was a right of appeal against conviction and sentence.
- How much time elapsed between conviction and execution?
- Whether there were any commutations?
- Whether full records were kept.
- Who was the driving figure behind the trials and executions.
- Why, if the aim of the hangings was deterrence, they were kept secret.
- Why Canberra was not briefed.
- Why the military historians ignored the hangings.
- Who mutilated the national memory?
There are other disturbing issues. Significantly, the executions were, in effect, redacted from The Australian Official War History. These trials and executions had occurred at the same time as action on the Kokoda Track, when indigenous Papua New Guineans received very sympathetic press coverage in Australia as ‘the fuzzy-wuzzy angels’, so savage punishments, carried out in public, but unreported, are inexplicable. Was it to encourage enthusiasm for the Allied cause?
And, again, there is also the question of proportionality.
The number of AIF executions in Papua-New Guinea over two years was about 150 – thirty-five more than all executions in Australia between 1901 and 1967.
Drugs and murder
In 1991 Australia ratified the Second Protocol of the International Convention on Civil and Political Rights (ICCPR), which binds nations to oppose the death penalty and has been adopted by the UN General Assembly.
Australia has been monumentally hypocritical about the death penalty abroad. We will not extradite persons held here to death-penalty jurisdictions, even to our close ally the United States. But we are also highly selective. We empathise with our fellow citizens, and will campaign to save them, but for decades failed to argue strongly enough for the general principle of opposition to the death penalty. I hope and expect this will change.
Andrew Chan and Myuran Sukumaran, executed in Indonesia in April 2015, had good reasons to expect clemency. They were exporting drugs from Indonesia, not taking them in. If the Australian Federal Police had waited to arrest them on returning with drugs to Australia, they might well have received only short prison terms. There was no contesting the evidence that they had been dramatically rehabilitated during their decade in prison.
There are puzzling inconsistencies in imposing the death penalty for murder and drug offences. With murder there are actual, identifiable victims and a direct link between cause and effect. With drug crimes the penalty is imposed to protect potential, hypothetical, unquantified victims.
In Australia far more people die from misuse of legal drugs – alcohol, nicotine, pharmaceuticals – than from cocaine or heroin.
One of the sickening aspects of execution for drug offences is that only mules are caught. Those who control the drug syndicates just read about the executions on Facebook.
There are disturbing similarities between having a ‘war on drugs’ and a ‘war on terror’. Each punishes the potentiality for death and destruction, and challenges, even undermines, the basis of how law and justice ought to be administered. Evaluation of evidence, deep analysis, rationality and causality may be discarded or suffer collateral damage.
The rise of populism is a direct challenge to the whole concept of liberal democracy and to the values and methodology developed in the Enlightenment, with its emphasis on evidence, analysis and scientific method.
But, paradoxically, and unexpectedly, in this age of the Information Revolution, for millions – probably billions – opinion has displaced evidence, looking for simple solutions to complex problems. Appeals to fear and rage are increasingly powerful weapons at elections.
The death penalty has been abolished in 108 states, including the European Union, the United Kingdom, Australia, Canada, New Zealand, South Africa and all of South America. 54 more states have long standing moratoria.
‘American exceptionalism’ puts the United States in a special category. The death penalty is still part of Federal Law. It has been abolished in 23 states, subject to a moratorium in four (California, Oregon, Ohio, Pennsylvania) and retained in 23 states, all in the old Confederacy and the Midwest. Support for capital punishment is highest in the former slave states, plus Missouri and Oklahoma, which have very high levels of gun ownership, racial discrimination, misogyny, religious fundamentalism, anti-abortion laws and a history of lynching.
Support for the death penalty is one of the few social policies that the US has in common with China, Iran, Egypt, Iraq, Saudi Arabia, and North Korea.
Donald Trump is an enthusiast for capital punishment. So is Brazil’s Jair Bolsonaro and Duterte in the Philippines. Erdoğan tried to restore it in Turkey, Orbán in Hungary, but abolition is a precondition for EU membership or candidature. Right wing parties in France and Italy look nostalgically towards executions but recognise the unreality of restoration.
In Australia only Pauline Hanson’s One Nation Party supports a return to capital punishment.
With the UAP, it must be said in Clive Palmer’s favour that he took a very strong line against the AFP’s appalling role in the execution of Sukumaran and Chan. (Craig Kelly may not have been aware of that.)
The way ahead
There is much to reflect upon.
Seeking security is understandable. Reacting to fear is another. But fear is a bad driver for public policy. We live in deeply troubling times. It is easy to understand why people in many countries are gripped by insecurity. The ready access to lethal weapons and mood- changing drugs and the risk of attack, from internal or imported terrorism, in schools, churches, mosques, heritage sites, public transport, shopping malls, and offices are horrors seen every day on television and the internet. As a defensive reaction, many citizens would like to see the return of retributive punishments. Desperation may push them to rely on subjective opinion rather than objective evidence.
We need to think deeply about how we define our humanity. In the final analysis, do we make judgments coolly and calmly on the basis of evidence that is capable of being weighed and objectively analysed? Or is it the case that, in dealing with human nature, objective analysis is useless, and we are forced into terra incognita and must decide blindly, on the basis of instinct or gut reaction? We stand, I hope, against darkness, against obscurantism, against instinct, against pessimism about society and the capacity that individuals have for moral regeneration.
Campaigners for abolition have to be prepared to argue for the tough cases, repulsive as they are: Julius Streicher, Fritz Sauckel, Adolf Eichmann, Saddam Hussein, Osama bin-Laden, Timothy McVeigh, Amrozi. The moral high ground does not allow campaigners to be selective.
A former archbishop of Paris, Cardinal François Marty, wrote:
If a man does no longer act like a man, the community must refrain from following him. Each time a human being is treated as a non- human being, then every human being is threatened. Any individual who commits an act of violence against another individual is degrading mankind. If we want to safeguard the concept of human beings now being threatened, we must resist the temptation of retributive anger.
Can man, that imperfect being, be expected to render perfect justice? In that respect, could capital punishment give a notion of perfection to the justice of human beings?
State killing is not only brutal and destructive, but also pointless. In the world of an eye for an eye and a tooth for a tooth, we can all be blind and toothless, but it will not preserve our lives or maintain our values. The evidence for abolition is compelling, as we face the challenges of violence, drug dependence, and jihadism. We cannot rely on an instinct for vengeance. As we fight against darkness, we need rationality, evidence, values, and compassion at the highest level.
If the senseless executions of Sukumaran and Chan in 2015 taught us anything, it is this: Australia must be much more active in advocating abolition of the death penalty internationally. This is not merely to protect and preserve its own nationals, but as part of a campaign with universal application, without picking and choosing, and with the moral force that earlier generations worked with to end slavery, liberate women, and eliminate torture and punishments for heresy or witchcraft.
In so many of these causes Michael Kirby has been a leader and we salute him.