Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)Schedule 2-Amendments relating to the abolition of the death penalty
This schedule will amend the Death Penalty Abolition Act 1973 (the 1973 Act).
Item 1 - Title
Item one will amend the long title of the 1973 Act to include a reference to the laws of the States and Territories, in addition to the existing reference to the laws of the Commonwealth and 'other laws in relation to which the powers of the Parliament extend' (a reference primarily to Imperial laws which may still apply in Australia).
The long title will now be as follows:
An Act to abolish Capital Punishment under the Laws of the Commonwealth, of the States and of the Territories, and under certain other Laws in relation to which the Powers of the Parliament extend.
Item 2 - Application
This item will insert a new subsection 3(3) into the 1973 Act to specify that section 6 of the Act (to be inserted by item 5) is to apply to State laws.
It will also amend subsection 3(4) to remove an obsolete reference to pending proceedings.
Item 3 - Liability
This item will amend section 4 of the 1973 Act to specify that no one is liable to the punishment of death for any offence in relation to, and in relation to offences under, the laws of the Commonwealth and of the Territories, and, to the extent to which the powers of the Parliament permit, in relation to, and in relation to offences under, Imperial Acts.
Section 4 (together with section 5) will have the effect of prohibiting a court from sentencing an offender to death. In effect, it would override any provision of Commonwealth, Territory or Imperial law which purported to authorise the death penalty.
Item 4 - Substitution of life
This item will maintain the previous application of section 5, just as item 3 does for section 4. Section 5 will provide that if, under a law of the Commonwealth, a Territory or an Imperial law, 'a person is liable to the punishment of death, the reference to the punishment of death shall be read, construed and applied as if the penalty of imprisonment for life were substituted for that punishment.'
Item 5 - Imposition
This item will insert a new section 6 into the 1973 Act which applies to all relevant Commonwealth, State, Territory and Imperial laws. In contrast to section 4, which is intended to deal with any existing provisions that may provide for the death penalty, section 6 is intended to prevent the death penalty from being imposed in the future. That is, section 6 is intended to prevent the death penalty from being reintroduced into the law in any Australian jurisdiction, to ensure ongoing compliance with the Second Optional Protocol to the International Covenant on Civil and Political Rights.