Daily Bulletin


  • Written by Mai Sato, Associate Professor, Director of Eleos Justice, Faculty of Law, Monash University

The Reciprocal Access Agreement (RAA) reached in principle this week by Japan and Australia provides a legal framework for the Australian Defence Force and the Japanese Self-Defence Force to operate in each other’s territories.

It has taken six years to get to this point. There are various reasons for this, but a significant stumbling block has been Japan’s death penalty and the Australian government’s opposition to it.

Read more: Morrison's Japan trip yields defence pact, but travel bubble less certain

In Japan, 94 prisoners have been executed by hanging since 2000. In contrast, Australia is firmly opposed to the death penalty.

The Australian government took a bold step in 2018 by launching Australia’s Strategy for Abolition of the Death Penalty, advocating its abolition globally.

This 2018 strategy sets Australia apart from other countries that have abolished the death penalty because of its outward-looking policy of pursuing abolition in other countries. It is not limited to advocating the restricted use of the death penalty in instances where Australian nationals are sentenced to death — as was the case with Myuran Sukumaran and Andrew Chan. It takes a principled stance against the death penalty “in all circumstances for all people”.

No guarantees on death penalty - yet

The bilateral defence co-operation with Japan is a case in point. The negotiations stalled because the Australian government wanted an assurance Australian Defence Force members would not be sentenced to death, even if convicted of crimes punishable by death under Japanese law.

However, in June 2020, it was reported a breakthrough was made in the negotiations where the Japanese authorities were considering replacing the death penalty with the maximum sentence that would be applied under Australian law.

With the in-principle agreement, it has been reported that if an ADF member were to be convicted of serious crimes in Japan, the punishment would be considered on a “case by case” basis.

It is unclear, however, how this case-by-case mechanism will operate. There is no public guarantee to date that Australian soldiers would not be subject to the death penalty.

Interestingly, the Japanese Ministry of Foreign Affairs and Japanese-language media were silent on this sticking point.

A “case by case” approach may appear like a step back from the breakthrough reported in June, if it means members of the Australian Defence Force could be executed in some cases.

That said, we remain confident the Australian government will not concede in finalising the RAA with Japan. The Australian government’s 2018 strategy is unequivocal in its principled stance against the death penalty. Entering into an agreement with the full knowledge that the death penalty may be applied to its citizens would be a clear breach of its own pledge.

Japan-Australia pact highlights need to move away creatively from death penalty There is yet no clear indication if Australian soldiers would be spared the death penalty should they be convicted of a crime that carries this sentence in Japan. Cpl Raymond Vance/ADF handout/AAP

How governments can work towards abolition

The death penalty tends to be viewed in binary terms: either countries have it or they don’t. It is often cast as a domestic criminal justice policy, with international organisations such as the United Nations having some influence.

We pay less attention to the subtle ways in which abolitionist governments can restrict the application of the death penalty in retentionist countries. For example, this may involve:

  • refusing to extradite those who may face the death penalty
  • refusing to co-operate in mutual legal assistance
  • in the case of Australia and Japan, receiving prior assurance before an offence has been committed that the death penalty will not be applied.

This is what William Schabas referred to as the “indirect abolition” of the death penalty. It offers much potential as a template for how Australia might achieve its 2018 strategy in the region.

Casting our eyes from Japan to Vietnam, we find another strategic partnership with Australia that may eventually prove ripe for indirect abolition.

The Australian statement on the 15th annual Australia-Vietnam Human Rights Dialogue in 2018 noted:

Australia recognised that Vietnam’s amended Penal Code has abrogated the death penalty for seven crimes, and encouraged Vietnam to move towards abolition of the death penalty.

So it seems an ideal time to push for creative ways to realise the 2018 strategy. This is especially so given that the Australian and Vietnamese prime ministers agreed in August 2019 to develop an Enhanced Economic Engagement Strategy with the aim of becoming top ten trading partners and doubling bilateral investment.

These developments of middle powers joining together are occurring against a backdrop of growing Chinese aggression towards Vietnam in the South China Sea, or the East Sea, as it is referred to by Vietnam.

This would seem to afford an opportunity for Australia to engage with Vietnam on why its death penalty practice is closer to China’s than to its “partner for shared prosperity”.

Read more: Despite a reduction in executions, progress towards the abolition of the death penalty is slow

More work to do

While Australia has taken a principled stance against the death penalty with Japan and in its interactions with Vietnam, we do not know how this commitment would translate to other situations, with other nations.

Australia might lack the necessary soft power to nudge other countries to align themselves with its mission. Alternatively, Australia may have enough economic power to push its agenda even though retentionist governments may view its death penalty diplomacy as unwelcome interference in their domestic criminal policy.

Asia lags behind the global trend away from the death penalty. The Philippines, Sri Lanka and the Maldives have taken steps to reinstate the death penalty or resume executions. Bangladesh has expanded the reach of the death penalty.

Australia is at a pivotal moment in terms of testing its own commitment to its strategy, especially in our region. This is a critical time for determining its role in advocating for abolition of the death penalty in Asia.

Authors: Mai Sato, Associate Professor, Director of Eleos Justice, Faculty of Law, Monash University

Read more https://theconversation.com/japan-australia-pact-highlights-need-to-move-away-creatively-from-death-penalty-148436

Writers Wanted

How To Find The Right Emergency Plumber Lismore


Delivery rider deaths highlight need to make streets safer for everyone


The Conversation


Prime Minister Interview with Ben Fordham, 2GB

BEN FORDHAM: Scott Morrison, good morning to you.    PRIME MINISTER: Good morning, Ben. How are you?    FORDHAM: Good. How many days have you got to go?   PRIME MINISTER: I've got another we...

Scott Morrison - avatar Scott Morrison

Prime Minister Interview with Kieran Gilbert, Sky News

KIERAN GILBERT: Kieran Gilbert here with you and the Prime Minister joins me. Prime Minister, thanks so much for your time.  PRIME MINISTER: G'day Kieran.  GILBERT: An assumption a vaccine is ...

Daily Bulletin - avatar Daily Bulletin

Did BLM Really Change the US Police Work?

The Black Lives Matter (BLM) movement has proven that the power of the state rests in the hands of the people it governs. Following the death of 46-year-old black American George Floyd in a case of ...

a Guest Writer - avatar a Guest Writer

Business News

Nisbets’ Collab with The Lobby is Showing the Sexy Side of Hospitality Supply

Hospitality supply services might not immediately make you think ‘sexy’. But when a barkeep in a moodily lit bar holds up the perfectly formed juniper gin balloon or catches the light in the edg...

The Atticism - avatar The Atticism

Buy Instagram Followers And Likes Now

Do you like to buy followers on Instagram? Just give a simple Google search on the internet, and there will be an abounding of seeking outcomes full of businesses offering such services. But, th...

News Co - avatar News Co

Cybersecurity data means nothing to business leaders without context

Top business leaders are starting to realise the widespread impact a cyberattack can have on a business. Unfortunately, according to a study by Forrester Consulting commissioned by Tenable, some...

Scott McKinnel, ANZ Country Manager, Tenable - avatar Scott McKinnel, ANZ Country Manager, Tenable

News Co Media Group

Content & Technology Connecting Global Audiences

More Information - Less Opinion