Discuss about the Capital Punishment Trends and Issues.
There was no consistent law on capital punishment in Australia till 2010. But, in 2010, the commonwealth parliament has passed a law on capital punishment. Initially, as per the Commonwealth Death Penalty Abolition Act 1973 (Cth) the capital punishment under the federal law was abolished, however, there was nothing which declared the abolishment of the law in territory or state of Australia. However, with the passing of the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 a restriction was imposed on the territories and states to introduce any law on death punishment. This makes it clear that the intention of the government of Australia is succinct that they are in no mood to continue or introduce any kind of law that supports death penalty. The Australian government has now come at par with most of other countries (at least 2/3 of the countries) which continue to abolish capital punishment. (S Freeland, 2010)
Today, the death penalty is eliminates in all the jurisdictions of Australia. The last death penalty that happened in the country was in 1967 where in Victoria, Ronald Ryan was hanged till death. It is not that there was no pronouncement of capital punishment after 1967, rather, till 185 there were many death sentences that were pronounced by the courts but they were all converted to life imprisonment. In Western Australia, in 1984, Brenda Hodge was pronounced with death penalty but was later commuted to life imprisonment.
However, through this paper, an attempt is made to understand the position of Capital Punishment in Australia in all of its territories, states and under federal law. To initiate, it is first important to understand d the position of law in Australian Colonies.
In 1788, the New South Wales colony was established which brings with it several English penal laws. In 1787, a Letters Patent was issued wherein a criminal court was established to deal with serious crimes. The English law covers numerous crimes to which death penalty was granted. The crimes include not so heinous acts such as cutting down of trees, stealing hares, etc (A Castles, 1982). In 1825, it was submitted that the Governor on an advice of Executive Council was empowered to commute the sentence or grant death penalty. In 19th Century, there were about 80 people who were granted death sentence per year (Potas & Walker, 1987). In 1788, the first capital punishment in the Australian colony was granted to Thomas Barret for the offense of stealing food. The year amid 1826-1836 was the era when capital punishment was at its prime. Around 1296 offenders were pronounced with death sentences of which around 363 were even executed. (T Castle, 2008)
In 1833, slight change was made in the laws and now death penalty was not provided for petty crimes such as, forgery, cattle stealing, thefts, etc. In 1838 the list was extended and includes crimes such as smuggling, nonviolent burglary, slave trading, etc. Later in 1853, public executions were prohibited and there few four Australian Colonies that supported the same, that is, the New South Wales, Victoria and Tasmania.
In 1901, provisions were made for death penalty but there were significant variations amid the laws of each colony. In Queensland, the Criminal Code Act 1899 was passed which grant death penalty for treason, piracy, attempted piracy with personal violence, murder and willful murder. In Tasmania, there were eight crimes to which capital punishment was provided, such as, Murder, attempts to murder (administering poison or wounding), destroying/damaging a building with gunpowder, setting fire to ship, attempting to administer poison/shooting, attempted murder by any other means, and sodomy. In Victoria, the Crimes Act 1890 which grant capital punishment for nine crimes, such as, murder, attempted murder by poisoning/wounding/setting fire to ships, rape, abusing a girl under the age of 10, buggery, robbery or burglary with wounding, setting fire to a house. In South Australia, only murder and ‘piracy and attempt to murder are the acts for which capital punishment was provided. (Lennan & Williams, 2012)
Thus, the colonies of Australia have made significant improvements in abolishing death penalty to various crimes leading to a path which lead to the abolishment of the death penalty as a whole.
It is now important to understand the scope of law on death penalty in the territories and the states of Australia.
With the passage of time, each and every territory and state of Australia were attempting to make their own laws on Capital punishment. It is thus now important to individually analyze the law of capital punishment some of the territories and states.
In 1924, the Criminal Code Act 1924 was enacted which grants capital punishment for two offenses, that is, murder and treason under section 158 and section 56 respectively. Thus, in 1924 there was no complete abolishment of capital punishment and there were two crimes for which the punishment can be inflicted. In 1933, the Labor came to power and it abolished capital punishments for all kinds of crimes with the only exception that in 1946 a death sentence was executed to Launceston, wherein, Launceston strangled and raped a young girl. Then, the Criminal Code Act 1968 was passed, section 2 of the Act submitted that no capita; punishment be inflicted for the crime against laws of the state. (Lennan & Williams, 2012)
The death penalty was for the first time abolished in Queensland. It was in 1913 that the last execution took place. In 1922, The Criminal Code Amendment Act 1922 was passed and as per section 2 of the Act, there shall be no capital punishment which is to be recorded or pronounced and there should not be any inflicting of capital punishment. (Lennan & Williams, 2012)
The Northern Territory
The Northern Territory was part of South Australia and must follow its laws. In 1911, it was the commonwealth that was controlling the territory but it continued to comply with Criminal Law Consolidation Act 1876 (SA). In 1939, it was submitted by the commonwealth that there is no complete restriction on the death penalty. In 1968, no death penalty was provided for piracy and attempt to murder and now it is substituted to imprisonment for life, however for murder there is still applicability of capital punishment. Then in 1973, The Criminal Law Consolidation Ordinance 1973 was established, section 5 of the Act, submitted that there can be no death penalty for an offense of murder thereby eliminating the death penalty as a whole. (M Field, 1990)
The Crimes (Capital Offences) Act 1975 (Vic) was passed which amended the Crimes Act 1958 according to which there is no death penalty for the offense of murder or treason, thereby, eliminating the capital punishment in its entirety.
Thus, from the above scenario, it can be revealed that these territories and stares were willing to eliminate the capital punishment from its penal laws and have commuted the same with the imprisonment for life. Also, with the passing of the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010, the commonwealth has also put a restriction on the territories and states to introduce any law on death punishment.
With the establishment of 2010 Act, the government of Australia has set its intention clear that they are not willing to introduce any laws to bring back death penalties neither in present or future. However, the Act of 2010 cannot put any prohibition of the commonwealth to bring back the penalty, the prohibition is only for the territories and the states. Thus the federal laws have the capacity to overturn this law. In order to prevent this situation, the only remedy that is available to bring amendment to section 128 of the constitution wherein no jurisdiction was allowed to bring any laws which reintroduces the death penalty in their respective jurisdictions. Also, the 2010 does not lay any laws wherein the Australian government is dealing internationally in the matters of extradition, agency to agency assistance and mutual assistance in criminal proceedings. Thus, there are still loop holes which prevail relating to the abolishment of death penalty as a whole specifically when the government of Australia is dealing with its international obligations. (Lennan & Williams, 2012)
Conclusion
From the above analysis, it is crystal clear that the intention of the government of Australia is very clear and every attempt is made to curb down capital punishment in each of its federal, state and territories. There are official abolition of the death penalty that is made by the state and the territories giving it more authentic and concrete atmosphere. However, the 2010 Act which is the landmark law which imposes restrictions of every state and territory to eradicate any attempt to reintroduce death penalty has its own limitation, that is, the power of the federal law to overturn the 2010 Act and the international obligations that the government of Australian must comply with. However, leaving the concerns aside, the enactment of 2010 is a major achievement in the legislative history of Australia which has achieved its aim to abolish capital punishment in its entirety.
Reference List
A Castles, (1982) An Australian Legal History (Law Book Co, 1982).
M Field, (1990) ‘Fagan, Roy Frederick’ – Australian Dictionary of Biography, National Centre of Biography, Australian National University.
Lennan & Williams (2012) The Death Penalty in Australian Law, Sydney law Review, VOL 34:659.
Potas & Walker, (1987) ‘Capital Punishment’, Trends and Issues in Criminal Justice Paper No 3, Australian Institute of Criminology,.
S Freeland, (2010) ‘No longer acceptable: the exclusion of the death penalty under international criminal law’ 15(2) Australian Journal of Human Rights.
T Castle, (2008) ‘Watching them hang: capital punishment and public support in colonial New South Wales, 1826–1836’ (2008) 5(2) History Australia.
M Walton, (2005) ‘The Death Penalty in Australia and Overseas’ (2005) NSW Council for Civil Liberties Background Paper 2005/3, 29 March 2005.
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