Mark Finnane | 9 September 2022

The death penalty as a judicial sentence was abolished by amendment of the Criminal Code in the Australian state of Queensland 100 years ago. This was the first such abolition in Australia, and the first in the British empire.

As an early abolition, the Queensland one was also noteworthy for another reason: its permanence. The international experience in the twentieth century was that abolition in some places was followed by later re-instatement. Governments faced with domestic crises of crime and public disorder can respond harshly. It was only in 2010 that the Australian government legislated to prevent reinstatement of the death penalty at any time in the future in any of the States or Territories of the Commonwealth.

In spite of abolition, Queensland had an ambiguous relation to the death penalty for some decades after 1922. Its criminal law, with its original death penalty, was adopted in Australian colonial territories. The state was the home jurisdiction of Australia’s first Atrocities Commissioner and later Chair of the Tokyo International War Crimes Tribunal, Sir William Webb, seconded from his role as Chief Justice of Queensland (1940-6), and who then presided over the award of the death penalty to convicted war criminals. It was also the home of numerous Labor political representatives who formed part of the Commonwealth parliament enacting the Australian War Crimes Act 1945 that authorised the death penalty for war criminals convicted in Australian courts convened to try B and C Class suspects.

So while the Queensland abolition proved to be permanent for its own jurisdiction, revisiting Queensland’s historical move of 1922 in a larger context suggests some grounds for seeing this as a partial abolition. The Queensland death penalty as a judicial sentence had an afterlife of considerable consequence for people in adjacent colonial territories and in theatres of war.

Abolition then proved good enough for the domestic jurisdiction of Queensland, but retention of capital punishment was considered desirable in Australia’s colonial territories. As a former colony of the British Empire and then original state of the Australian Federation, Queensland played an especially important role in the development of Australia’s formation as a subject of international law. In the 1880s the colony of Queensland sought to annex New Guinea, effectively forcing British imperial intervention to avert German colonial designs on the country. Queensland criminal law, enacted as a Criminal Code in 1900, was adopted as the criminal law of Papua by the Australian government in 1907 and in other colonies and mandated territories after World War 1.

This historical phenomenon – the adoption of the Queensland Criminal Code as the criminal law of these territories – was the means by which the Queensland death penalty survived its abolition, through the history of Australia as colonial power (Papua), and international legal trustee (New Guinea and Nauru). Nothing sums up this reality more than the notices appearing in the official New Guinea Gazette throughout the 1920s and 1930s of certificates of execution under the authority of the Queensland Criminal Code as it had been adopted first in Papua and after 1921 in New Guinea.

These variable trajectories push us in the direction of regarding the death penalty as a weapon of government in historically circumscribed contexts – conditions that allowed both abolitionist and retentionist policy moves during the first half of the twentieth century. Abolition in some places was successful for reasons that had little to do with the marshalling of a strong social or political movement against it. Although there had been abolitionist movements in Australia since the nineteenth century, none had succeeded in persuading legislatures to move decisively against capital punishment. Instead the cause of abolition benefited where it was folded into a collection of progressive policies, advanced by right-thinking people in a moment of political advantage.

Such was the case in Queensland in 1922. Abolition of capital punishment was just one of eight ‘abolitions’ in the Labor political platform after 1919 – the platform whose first objective was ‘the cultivation of an Australian continent, the maintenance of a White Australia, and the development in Australia of an enlightened and self-reliant community’. In this light, we may also ask how much the achievement of abolition in the Australian state of Queensland was conditional on the security settlement in place by 1922? That State’s provincial autonomy was expressed in the drastic political intervention of abolition of the second legislative chamber, and its comfort as part of a federated Australia which had earlier enacted ‘protection’ of its Aboriginal peoples, adopted the White Australia Policy, and deported Pacific Islanders.

By contrast, the later revival of the death penalty and its exercise against those convicted of war crimes in the 1940s reminds us of the fragility of abolition in the face of popular sentiment, angry demands for justice and restitution, and calls for retribution. And so committed opponents of the death penalty like the Labor leaders of the war and post-war governments, including Queensland representatives, could allow the use of the death penalty in the post-war trials of mainly Japanese military personnel.

Capital punishment was abolished in Queensland in 1922, the first instance in an Australian jurisdiction. But this was far from a stepping stone on a straight path to early abolition in other jurisdictions.

Mark Finnane is Professor of History at Griffith University in the School of Humanities, Languages and Social Science and a member of the Griffith Criminology Institute.

This blog summarises the author’s article ‘Upholding the Cause of Civilization': The Australian Death Penalty in War and Colonialism' (2022), published as part of a special issue on ‘Death Penalty Politics: the fragility of abolition in Asia and the Pacific’ (eds. Mark Finnane, Mai Sato and Sue Trevaskes) in the International Journal of Crime, Justice and Social Democracy.

Note: Thumbnail image from the State Library of Queensland.