Date: July 01 2009
THE Federal Government has written to the states, telling them of its plans to introduce laws banning them from ever reintroducing the death penalty, whether they like it or not.
While all states have abolished the death penalty, there is nothing preventing a government from bringing it back.
The Age has a copy of a letter sent from Federal Attorney General Robert McClelland to his state counterparts on June 16, informing them “of the Commonwealth Government’s intention to introduce legislation to prohibit the application of the death penalty throughout Australia”.
The language of the letter is significant, as it indicates the Federal Government has opted to use the external affairs power in the constitution to put the prohibition in place.
This is instead of asking the states to refer their powers to the Commonwealth to enable it to pass the laws banning the reintroduction of the death penalty — an option that is seen as less watertight by the Federal Government because usually states only refer their powers for a limited period of time.
It is understood the Federal Government has legal advice that under the external affairs power and international treaties signed by Australia, including the Second Optional Protocol to the International Covenant on Civil and Political Rights, it is able enact the laws and so intends to take this path.