Speeches from Reprieve Australia Honorary Life Membership Ceremony on Tuesday 18 March 2008 at the State Library of Victoria (Rotunda Room)
Rachel Walsh
Good evening everyone and thank you and welcome to this very special occasion for Reprieve Australia. I'm really quite moved to see some of the faces that we have here in the room here this evening.
I should go through the formalities and formally welcome our special guests. We are very honoured to have here today the patron of Reprieve Australia, His Honour Justice Kirby. I would also like to welcome Lady Hamer and her daughter Sarah Brennan, who are also with us today. We have Robert Clarke, the Shadow Attorney-General representing the Opposition Leader, and Professor James Hathaway, Dean of Melbourne Law School. That's particularly relevant because the original founding committee are all graduates of Melbourne University Law School. Of course we also have our honourees who we are all gathered here today to celebrate. We have Sir Zelman Cowen, His Honour Justice Lasry, Barry Jones, Brian Dixon, Mike Richards, Julian McMahon, Nick Harrington, Pia Di Mattina and Susan Brennan.
We also have amongst us those fabulous people who have given up so much of their time to volunteer as interns with the pro bono law offices that Reprieve supports in the southern states of the US. Whilst we are honouring those whose names will be remembered by history tonight, let's not forget those who really do slog away every day and make such a contribution to the abolition of the death penalty around the world and to providing legal and humanitarian support to those people who are facing execution around the world.
I have a couple of apologies. We did have two very late and sincere apologies from Her Honour the Chief Justice and also from the President of the Court of Appeal, Justice Maxwell.
A very particular apology that we have tonight is for one of our honourees. It is very sad that he can't be with us because he spent so much time actually helping arrange this evening, and that's Brian Morley. Those who have attended events previously from Reprieve will know that Brian is a journalist who witnessed the execution of Ronald Ryan, and that moment changed his life. He went into the execution chamber somewhat ambivalent about the death penalty and he left it a life-long advocate against it and he has dedicated a good part of his life to educating locally and around Australia about abolition. Brian has had a long-planned hip operation, but unfortunately it was brought forward by two days and ended up being today. We will take time at a later date to have a special ceremony to confer the honorary membership on Brian.
Two other apologies: one is Clive Stafford-Smith. It was always a long-shot that Clive would be here, but Clive turns up everywhere in the world and it's always a pretty good chance he might turn up to a Reprieve event. He has in the past. Again, we will grab Clive next time he's flying through this part of the world, which is actually relatively often.
Another apology is Richard Bourke, who was one of the founding committee members of Reprieve and who has also dedicated the last few years of his life to working in the southern states of the US in pro bono defence of people facing the death penalty, in particular at the Louisiana Capital Assistance Center. There is a truism with Reprieve events, and that is that Richard always manages to dominate, and I am afraid he even dominates tonight by not even being here. I should note that Richard's mother, Margaret Petrov, will accept the honorary membership on his behalf tonight. But Richard in the last couple of days has sent us a really lovely letter that I can't help but read out in which there's everything that I was planning to say, so I might as well let Richard say it, as usual. So, if you'll bear with me, I'll just read Richard's letter to you as he sent it.
(reads letter from Richard Bourke)
And on that note I would like to hand over to our patron, Justice Kirby, who will speak prior to us then calling on each of the honourees individually and conferring the honorary life membership, and then Barry Jones has agreed to speak on behalf of the honourees. So, Justice Kirby…
Justice Kirby AC CMG (Justice of the High Court and Patron of Reprieve Australia)
Thank you very much President, Sir Zelman and Lady Cowen, Lady Hamer, the Honourable Barry Jones, my judicial and legal colleagues, fellow citizens.
Melbourne is certainly a surprising place. I thought I knew every speaking venue in this nation. I thought I knew every beautiful room in this nation. But here we are in this wonderful place which is for me a new jewel of Australia. The Supreme Court Library is a great jewel. This is another one, hidden away in Melbourne. It's a magnificent setting for this occasion. For the people that we're going to honour. It is not unsuitable that the dominant colour of the room is red - red for blood. And blood is the force for life not just a symbol of death. We're here to celebrate the work for life of some wonderful citizens of our country.
If you look at the people who are going to be honoured, they really fall into four categories. There are the abolishers, the agitators, the advocates and the founders. The abolishers that we're going to honour are Sir Zelman Cowen, Dr Barry Jones, the Honourable Brian Dixon, and Dr Mick Richards. The agitator, who won't be here to be honoured (and a few of the others are agitators too) is Brian Morley. The advocates are the Honourable Lex Lasry, Julian McMahon, Clive Stafford-Smith and Richard Bourke. And the founders of Reprieve in Australia are Nick Harrington, Susan Brennan and Pia Di Mattina.
As you would know, the death penalty was abolished in Victoria in 1975 during the enlightened government of Sir Rupert Hamer. And Lady Hamer, with generosity of spirit, said that it was very important that I should make the point that, although Dick Hamer gets and properly gets credit, and although his government, of which the Honourable Brian Dixon was a member, gets credit for the abolition of the death penalty, and although their credit brings to attention the fact that this became a bipartisan belief in our country, we should also honour others – including the spirit of the late Jack Galbally. Year after year he introduced a private member's bill into the Victorian parliament. This was ultimately taken up by the government and enacted.
So, it's a very fitting thing that we should celebrate the work of Reprieve, of which we've heard a little from the President. We should also celebrate those who went before. Especially we should do so in this historical setting that reminds of us of the strong, confident spirit, looking to the future, that founded Victoria and Australia.
If you read the High Court's case on the Ronald Ryan affair that ultimately propelled Australia finally to end capital punishment, you will see at work the spirit and mind of citizens and lawyers of the 1960s. In fact, earlier in the '60s, there was the case of Rupert Max Stuart . I don't know how many of you have seen the film, Black and White. It is the story of Rupert Max Stuart and how he was sentenced to death for the rape and murder of a little girl at Ceduna in South Australia. His conviction was secured substantially, overwhelmingly, on a confession which he was alleged to have given to police. Yet the greatest authority on the Arunda language, Professor Strehlow, said it simply could not have been the language of Rupert Max Stuart. The film brings out the mood and spirit of the time. Although it's about Adelaide and not about Melbourne, the most captivating thing, for a person of my great age, is to see how it captures the mood of complacency that existed in our country back in the 1960s. Complacency, acceptance of things that had long been established and could not really be questioned. Let alone could it be contemplated that things would be changed. As a Justice of the High Court of Australia, it's always a little upsetting for me to read the Stuart Case, as occasionally we have to. It begins in very powerful prose, 'Certain features of this case have caused us anxiety.’ And it finishes with that same phrase, 'Certain features of this case have caused us anxiety.' Yet the justices of the court, notwithstanding the anxiety that they repeated, went on to confirm the death penalty on Rupert Max Stuart.
It has to be said that, in that case, it wasn't the legal system that saved the prisoner, because the Privy Council also refused to intervene. It was the media that saved the life of Rupert Max Stuart and, in particular, another Rupert, Rupert Murdoch, then a young cadet newspaper owner in Adelaide, long before he built the global empire of News Limited. It was he who took up the cudgels and organised a campaign on the front pages of his newspapers that led ultimately to a royal commission and to the commuting of the sentence. It is worth reading that case. It is worth seeing that film, Black and White. They capture the mood of the times.
Another very interesting case in the Commonwealth Law Reports is the case of Robert Peter Tait . It's a very unusual case in the law reports because of the fact that it's not, as it were, a fully reasoned decision of the court. It's drama unfolded because it's, effectively, the transcript of the interchanges between the bench and the lawyers in the well of the court in the old High Court building here in Little Bourke Street. Chief Justice Dixon, leading the Court, was confronted with the Solicitor-General, Sir Henry Winneke, who was endeavouring to maintain the schedule that was designed to lead to the execution of Robert Peter Tait immediately. The story is worth reading for those of you who have access to the Commonwealth Law Reports. A man’s life hung in the balance.
I feel myself a kind of link with those days. Although I didn't know Sir Henry Winneke, I knew his son, Jack Winneke, later President of the Court of Appeal of Victoria. I also know Jack Starke, the son of Sir Hayden Starke. Jack Starke later became Sir John Starke. When I was first appointed to the Australian Law Reform Commission back in 1975, the very year of the abolition of the death penalty in this State, I called on him in the Supreme Court, in his chambers. So I am a link with Sir John Starke. He was appearing in the High Court for the health authorities who were trying to get Tait examined on the basis that he was mentally incompetent and indeed was insane. The prisoner's counsel was Mr John Nimmo, later Sir John Nimmo, Judge of the Federal Court, whom I also knew. So if you're around long enough, as I've been, you get to know these people. I therefore feel that I am a link back to those times. Eventually Dixon insisted that the execution be postponed. The Bolte Government gave way. It was a raw confrontation. There were to be more such struggles before capital punishment was finally ended in Victoria and Australia.
I'm feeling a little nostalgic today because this is my birthday. [Applause] Don't get carried away! There is one more year of service on the High Court of Australia. One more year. It is a year I'm going to serve to the full, for law and justice.
If we think about the achievements of those fine citizens whom we are now going to honour, we have to realise that one of the admirable things about them is that they left a legacy which has not just been concerned with our legal affairs in Australia, important though they are and important though our country is and in our hearts and in our minds. The fact is that the greatest challenges in respect of the death penalty, and of human rights, lie beyond our shores. It’s very important for us, as human beings and as citizens of this much blessed country, to be concerned at the predicament of people beyond Australia. To be engaged with them. If you read the excellent newsletter of Reprieve, you will see the achievements – the things that have been achieved in the past year or so, which show that there is still a struggle going on; there are still things to be accomplished; but progress is being made.
So there's good news. In July '07, Rwanda, a country which, as Louise Arbour, the High Commissioner for Human Rights, pointed out, was itself afflicted terribly with death and suffering, decided that it would abolish the death penalty. Sadly, in most countries of Africa the death penalty still reigns. Yet Rwanda has given the lead. In September 2007, the United States Supreme Court by a grant of certiorari, has effectively put on hold the executions in that country. We now await the outcome of the United States Supreme Court decision. In October 2007, the European Union declared that the 10th of October would be the day for reflection throughout the world on the death penalty. A similar resolution for a moratorium was passed by the United Nations Human Rights Committee for the 15th of November 2007. On the 14th of December last year, New Jersey, after a 40 year drought in the United States, became the first State of that country to start the ball rolling again for the abolition of the death penalty in that country by legislative means such as we accomplished in Australia. The United States and China are still the major sources of executions around the world.
It's important for us, Australians, also to focus our minds on Australian citizens who are facing the death penalty: our citizens in the so-called 'Bali Nine'. We have here today, in the person of Julian McMahon, somebody who is still actively engaged in endeavouring to secure legal advice, assistance and support for those of the Bali Nine who still suffer the burden of living under the shadow of the death penalty. Of the nine, three were not sentenced to death and did not have that cast upon them. Three of the six who did, were, as a result of the recent decision of the Supreme Court of Indonesia, released from that burden. Yet three remain, including but not only Scott Rush, who has had some coverage in the media in this country. I was told by Julian McMahon that the government of the Commonwealth has provided funds for four lawyers of Australia to go to Indonesia this week for the preparation of the further submissions that are going to be placed before the Indonesian courts to ensure that the Australians, who are the subject of the death penalty, and who are therefore of proper concern to the government of our country, will get the very best of support and assistance. I can say to you, Julian, that you and your colleagues will go with the thoughts of all those in this room. So we remember the struggle in our own country for the abolition of the death penalty. We come together tonight to honour those who were leaders in that struggle. Not content with concentration on our own affairs, they have established Reprieve in order to encourage us to look beyond Australia and to be concerned with human beings beyond our borders. Not good enough just for us to fix things up in Australia.
No man is an island. No woman is, or child is, an island. We are all part of the main. And it is therefore proper, in this historic place, that we should honour those whose achievements in the past brought an end to this barbarous aspect of the criminal justice system in Australia. And, today, we also honour those who are still working to accomplish that end in those many countries which have retained the death penalty. We hope that by their labours, we, as citizens of a free country, can contribute in effective ways to terminate the death penalty in those other places.
It's therefore my great pleasure to acknowledge those who were the abolishers, agitators, advocates and founders. I ask the President now to come forward and call their names so that they, in turn, can come forward, to be acknowledged by us all and receive their certificates. Effective progress in the struggle for universal human rights is only secured by people such as these.
(Honorary Life Memberships conferred)
Dr Barry Jones, replying on behalf of the honourees
Well, Rachel and friends and members of Reprieve Australia, it is with great emotion that I take the opportunity to respond on behalf of the honourees. I was particularly struck when Michael Kirby was talking about the intervention of the High Court in the Tait Case back in 1962 because I remember that event very strongly because I was actually there in court when it happened. And, if I could just quote from a recent book…
I was in the High Court hearing. Sir Owen Dixon, Chief Justice, asked counsel for the Victorian government, Sir Henry Winneke, for an undertaking that the Court would be given time to consider the application, [that was for a reprieve.] The Supreme Court had found that the matter of Tait's execution was entirely in Cabinet's hands. On the question of the High Court's jurisdiction, Sir Owen Dixon said, in words I will never forget: 'The difficulty as to jurisdiction simply does not exist. I have never had any doubt that the incidental powers of the Court can preserve any subject matter, human or not, pending a decision'.
The unfortunate Solicitor-General then had to give an undertaking that he would tell his masters that the Court had intervened and that the execution could not proceed.
The Court then granted an adjournment 'so that the authority of the Court may be maintained' and issued an order staying the execution. It was, as I said, a heart-stopping moment. Faced with further embarrassing delays, Cabinet then commuted Tait's death sentenced and, of course, he was certified insane.
As I keep telling people, the arguments for the abolition of the death penalty go back a very long way and I just want to share a couple of observations with you. Back in the 16th century, Montaigne, Michel de Montaigne, in his essay 'On physiognomy' set out his reasons for opposing the death sentence.
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 the second, and my loathing for the original act of cruelty makes me loath to imitate it...
In the 18th century the pioneer economist Cesare Beccaria, a Milanese, argued with classic simplicity in On Crimes and Punishment (1764) that 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. There is a critical point in punishment beyond which the increasing severity is excessive because it has no demonstrable influence on the crime rate. And Beccaria argued,
Clemency … ought to shine in the code, and not in private judgement. If I can prove that the death penalty is neither necessary nor useful I shall have achieved the triumph of mankind.
In 1857, Leo Tolstoy, then in Paris, saw a guillotining, and the image haunted him all his life. And he wrote in A Confession (1882), Part III:
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 a 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, cruelness 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 it was not indispensable: that it was wrong.
The Canadian philosopher Ronald Wright argues:
States arrogate to themselves the power of coercive violence: the right to crack the whip, execute prisoners, send young men to the battlefield. From this stems… [what] J M Coetzee has called 'the black flower of civilization' - torture, wrongful imprisonment, violence for display - the forging of might into right'. States employ 'various styles of human sacrifice' …as forms of 'the ultimate political theatre'
But interestingly, capital punishment is a striking illustration of where the political class, and I include judges and lawyers here as well, is ahead of the community. It is in sharp contrast to the situation with climate change – and euthanasia, where public opinion is well in advance of the political class.
The Melbourne Herald-Sun polled Victorian State MPs in October 2001 - note the date - and asked if they would support the restoration of the death penalty for acts of terrorism. More than 90 per cent of the respondents said 'No', and most of the remainder declined to give an opinion, so it was not as if it was just a 90:10 response. Not a single Minister or Shadow Minister supported a return to the death penalty, even for acts of terror.
In the Western democratic world, execution remains as an illustration of American exceptionalism. The leading campaigner against the death penalty in the US Senate, Russell Feingold, soon dropped out of the 2008 Presidential race and none of the leading candidates has uttered a squeak on the subject, but I suspect the worst. Strikingly, reinforcing what's been said earlier, of all executions in the United States since 1977, more than 1,000, 88 per cent occurred in only 12 states, nine of them in the old Confederacy, with its history of slavery, lynch law, strong gun culture and fervent religious fundamentalism, two states which border the Confederacy and with Arizona in 12th position. Texas, of course, ranked first, with 354 executions: in other words, a third of the entire total executions in the United States since 1977. Seventeen states, all in the north, had no executions at all.
But, to reinforce what Michael Kirby was saying in his eloquent remarks, Australians must not be hypocritical where we insist on one rule of law for nationals of our own country and on the other hand say that the general issue of the death penalty and retributive justice internationally, is really beyond us.
The death penalty is the cause for which I have had the longest intellectual commitment, ever since childhood, getting on towards my seventh decade of involvement, and I'd like to think that the obvious model set by the European states might be adopted, perhaps after the change of government after a new U S President is elected in 2008, there may be some slight shift in emphasis on the attitude of the United States, although I wouldn't absolutely count on it.
But thank you for recognising people who have devoted so much professionally to the work of ridding the world of the death penalty, and the tributes paid as all the certificates were handed out paid an eloquent tribute to people who, in many cases, suffered professionally for their commitment. It has been a very sensitive cause. Within the political process, there is no doubt there is overwhelming support for abolition, and I'd think that in the community as a whole there's a shift in mood and sympathy for support for the cause of abolition. It's certainly a cause that we must continue to work on. I'm pleased that the Rudd government takes the issue very seriously, certainly where the Bali Nine are concerned, and I think that Australia will be seen as one of the international leaders in this area.
Thank you all for the moral support that you've offered those of us who are the honourees tonight. Thank you for your friendship and support, which has meant so much in what has often been a very difficult and a very painful course to have to follow. Thank you very much.
Rachel Walsh
Perhaps I could underline what Barry has just said, and also what His Honour was saying earlier. Please don't underestimate what a gathering like tonight means for those who work in this field. You heard the words from Richard Bourke himself, but I, myself, when I was in Texas doing an internship a few years ago, had a conversation with one of the attorneys I worked with. Now these are incredibly clever people who could be making a mint in the American legal system, who have instead decided to devote a good part of their lives and their careers to working for free for the most marginalised and ignored people in American society. And, when I was talking to one of these attorneys in particular, and we were talking about Reprieve and he was sort of asking me about Australia and about our political system and so forth, and he was just shaking his head and he said, 'You know, I just can't believe it. I cannot believe that you guys give up your summer holidays and come over here and help us.' And he said, 'You've got to understand what it means to my clients when you go and visit them on death row, and no-one has visited them for a year or for six months, other than their attorneys, and suddenly there's this young Australian, sitting across the desk from them on the other side of the glass, who's asking them how their day has been and what they're doing.' And I think that's' more important than anything, is to understand the humanitarian aspects of what we're talking about this evening, and the work of the people that we're honouring and just what they have achieved in re-establishing, as Richard said, the dignity of the human being.
And so, once again I call upon you just to show your appreciation to those we have honoured, and also to His Honour.
[Applause]
And finally, some 'Thank You's and a couple of 'Happy's. The thank you is to Maddocks. Our friends at Maddocks have paid for this evening and done a lot of the organisation. And I cannot overstate how important it is to us to have that level of support, because the money that we would have spent on this event this evening instead goes directly to our core work and supporting returned interns. So, thank you very much to the people from Maddocks, a few of whom are here this evening.
[Applause]
And that actually links in very neatly to an explanation. You'll see some of our committee members walking around the room with collection buckets, well they're plant pots, and I admit that I bought them at the hardware store on the weekend, but they look very nice with the Reprieve logo on them. And they are going to be soliciting donations from you all. And those donations, thanks to the support of corporate sponsors like Maddocks paying for events like this, thanks to my firm DLA Phillips Fox, which pays for the cost of our executive officer and has given us office space, thanks to that level of corporate support, Reprieve doesn't need your money, we've been supported: it's our interns that need your money. It's the returned interns that we're trying to encourage to go back, who've been trained up by the pro-bono offices that we support in the southern states of the US. They fund themselves: the internships cost up to about $8,000, they have to take time off uni or off work, they give up their summer holidays, they give up their summer clerkships, they give up their articles applications. It's a tremendous donation of their own time and their own career that these young people are giving. And, as Richard pointed out in his letter, lots of them return. And so we've established a Returned Internship Fund with the idea that those interns who have already done a stint in the US who are going back and who need financial support. So all the money that we can raise here this evening will go directly into that fund: there are no overheads and no costs, and I really do encourage you all to dig deep into your pockets and to support that fund this evening.
And now to the 'Happy's. The first one I suddenly remembered halfway through the event, and I forgot to mention it to them earlier: happy anniversary to Nick Harrington and Pia Di Mattina.
[Applause]
We tried so hard to pick a date for this event that wasn't going to clash with anything and we managed to hit upon the wedding anniversary of two of the founding members and two of the honourees.
We also managed to hit upon His Honour's birthday, as he so kindly reminded us. And, Nick, I haven't actually given you any forewarning, but would you actually come forward and give His Honour the present that you have actually brought along for this evening.
Nick Harrington
As you can see by the size of this gift, a lot of thought has gone into it. Judge, I hope when you fly back to Sydney tonight you've got a few kilos spare on your airline allowance. I shouldn't ruin the surprise for you, but it's a copy of special book dating back to 1755 and a certain fellow by the name of Johnson helped write it, in fact did write it, so I think you'll work out what it is pretty quickly.
But I do want to say, especially tonight, thank you to Rachel for her vision and her courage and her continuing leadership of the organisation. When we set the organisation up six years, seven years ago almost, there was that sense that we had to build for a future. I think we've done that successfully because there are new members of the executive and a new president and the organisation is stronger than it's ever been, and I thank Rachel for that and if you could show your appreciation…
[Applause]
And I don't have a gift for my wife on our wedding anniversary, so anyone who wants to assist me later with that…
But, finally, Judge, I'm not going to sing you 'Happy Birthday', but they are apparently, but I'm going to give you this enormous gift, and thank you very much Your Honour.
[Applause]
[Singing of 'Happy Birthday']
Rachel Walsh
One final 'Thank You'. Thank you to all of you for being here, thank you to all our members and supporters, and thank you in particular to my fabulous committee, who have done so much and have all been scuttling around with different jobs this evening. It's not possible to run and organisation like Reprieve without the commitment and dedication of these fantastic volunteers who have just given year after year to the organisation. And most of them, all but one, are returned interns, so thank you very much.
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