Death penalty: are we really united in our opposition?

Traditionally Labor governments have opposed the death penalty while conservative voices supported it, which makes Barnaby Joyce's call for a "discussion" on the issue even more salient, writes Norman Abjorensen.

Tensions ran high in Melbourne in the hot January of 1967 with the impending execution of Ronald Ryan, a small-time criminal convicted of the murder of a prison officer during an escape from Pentridge prison in 1965.

Demonstrations, vigils and endless appeals dominated the news as Ryan's legal team sought every available avenue to save him from the gallows.

The public was uneasy, the liberal Age was furious, church leaders pleaded for mercy and even several cabinet ministers were less than enthusiastic about carrying out the death sentence, the first in Victoria in 16 years.

But one man would not budge, the redoubtable Liberal premier, Henry Bolte, in office since 1955. To reprieve the killer of a police or prison officer was tantamount to inviting anarchy, according to Bolte's fundamentalist law and order philosophy.

Ryan was duly hanged on February 3, 1967 - the last judicial execution to be carried out in Australia.

Insensitive to the end, Bolte was asked by a reporter at his daily press conference on the day of the hanging what he was doing at the time it took place. Bolte, who recounts the story in an oral history interview for the National Library, replied: "One of the three Ss, I suppose." The reporter asked him what he meant. Bolte responded: "A shit, a shave or a shower."

Much of Victoria was aghast at what had happened and opinion polls were very much against the execution. A biographer of Bolte's, Peter Blazey, wrote that the hanging affected Bolte, who would stay as premier for another five years, much more deeply than he ever admitted. Politically, he had alienated people he had respected; old friends were now not so close. But at the same time, "his ethic of punishment never changed, nor his conviction that he had done the right thing, and he seemed to suffer no remorse."

Bolte simply could not understand the opposition to capital punishment, and this was illustrated in an interview I had later with the then opposition leader in Victoria, and later a minister in the Hawke government, Clyde Holding.

Holding, a lawyer, had been at the forefront of the campaign to save Ryan, and his stand puzzled Bolte. "He said to me: Clyde, I just don't get how an intelligent and educated man like yourself can really believe the things you say." Holding flared at this. His voice rising, he looked Bolte fiercely in the eye and said: "For f---- sake, Henry, can't you see that every time someone is hanged it's one of you bastards hanging one of us."

Holding had a point - and a point that takes on some contemporary salience in the light of Agriculture Minister Barnaby Joyce's call for a "discussion' on the issue of capital punishment in the furore over the execution of two convicted Australian drug traffickers in Indonesia this week.

How does this square with the supposed steadfast opposition from Prime Minister Tony Abbott and Foreign Minister Julie Bishop? Were they sincere in their appeals for clemency or was it just a cheap and cynical political stunt for a hardline Government to look compassionate?

The fact of the matter, as the late Holding so succinctly pointed out, is that one side of politics, the conservative side, has always been pro-capital punishment while the other, Labor, has resolutely been opposed to it. It always had a class element to it.

Labor governments took the initiative in abolishing capital punishment for murder from the statute books in Queensland (1922), New South Wales (1955), Tasmania (1968), South Australia (1976) and Western Australia (1984). NSW did, however, retain some residual offences relating to piracy and treason, which continued to carry the death penalty, but these anomalies were removed by the Wran government in 1985.

The Whitlam Labor government abolished capital punishment for offences under Commonwealth law in 1973 with the Death Penalty Abolition Act, which also had the effect of abolishing capital punishment in the Northern Territory and the Australian Capital Territory (which had never had an execution).

The Rudd government pushed through legislation in 2010 outlawing capital punishment, with the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act passing the Senate without amendment. In only one instance has a conservative government taken the initiative - somewhat ironically, the Liberal government in Victoria of Bolte's successor, Dick Hamer, in 1975. And that was after public revulsion over the Ryan hanging.

Yet there continues to be an element of ambivalence despite Australia having ratified the second optional protocol of the United Nations International Covenant on Civil and Political Rights on the abolition of the death penalty.

John Howard, for example, when prime minister favoured the execution of the Bali bombers responsible for the deaths of Australians in a terrorist act.

Howard said that if the death penalty "'is what the law of Indonesia provides, that is how things should proceed".

Law professor George Williams, of the University of New South Wales, said that "such statements undermine Australian arguments against the death penalty for Australians tried in Indonesia and elsewhere".

Also under Howard, Australia in 2007 entered into a mutual assistance treaty with China with regard to criminal matters, without securing any safeguards to prevent such assistance resulting in the imposition of the death penalty in China.

A special Morgan Poll last year showed a small majority of Australians (52.5 per cent) favour the death penalty for deadly terrorist acts in Australia while 47.5 per cent don't. This was a significant increase from a 2009 poll that showed only 23 per cent of Australians supported the death penalty being imposed for convicted murderers.

The issue will not go away, and Barnaby Joyce's fanning of the populist flames may yet yield further discussion if volatile public opinion is any guide in these terror-conscious times.

Dr Norman Abjorensen is at the Crawford School of Public Policy at the ANU. He is a former state political reporter in Melbourne and the author of a political biography of Henry Bolte.