You should be hung for treason

This behaviour was amplified during the COVID-19 pandemic, with countless protesters making similar statements threatening politicians which often went without prosecution. This can be seen in various protest organisers during the pandemic, such as ex-SAS officer, Riccardo Bosi, often dressed in military fatigues, calling for politicians and others to be charged with treason and hanged.

ABC: “AFP forced to mobilise against ‘specific threats’ to politicians over weekend, commissioner says“:

The Australian: “Australian police crack down on protesters who try to incite violence“:

Despite these fantasies, there are laws preventing both capital punishment and threats of murder, that is the reality. There is no provision in law to rely on to have anyone killed for any crime, real or as in this case, imagined. The Death Penalty Abolition Act 1973 provides:

(1)  This Act applies within and outside Australia and extends to all the Territories.

(2)  This Act applies 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.

(3)  Section 6 also applies in relation to, and in relation to offences under, the laws of the States.

The reliance on R v Casement in 1917 is very irrelevant and obscure to say the least, it was a common law decision that has long been overwritten with subsequent changes over time. In 1917 we were still part of the British Empire, it was before the divisibility of the Crown was recognised at the Imperial Conferences starting with the Balfour Agreement 1926, and brought into law with the Statute of Westminster 1931 which was adopted in Australia in 1942. The Empire collapsed and each executive government of the former dominions had by default a Crown that was “an entirely different and distinct legal personality” from the Crown of England. Gaudron J. found this notion to be “implicit in the Constitution.” in Sue v Hill [1999] HCA 30, the case also details how the expression “the Crown” is used in constitutional theory. See also Re Patterson [2001] HCA 51. with regards to the subsequent interpretation of section 117 of the Constitution. The divisibility of the Crown has been upheld by the UK High Court in R v. Foreign Secretary ex parte Indian Association of Alberta [1982] 1 QB 892 and in relation to Australia in Fitzgibbon v HM Attorney General [2005] EWHC 114 (Ch).

The decision in Re Stepney Election Petition; Isaacson v Durant (1886) 17 QBD 54 established the rule that a natural born subject becomes an alien when the sovereign ceases to have dominion over the territory in which the person resides. Lord Coleridge CJ said (at 65-66): “…as the statutes referred to the Crown and not the sovereign, allegiance was due to the King in his politic, and not in his personal, capacity.”  In relation to this case, on page 386 of “Constitution of New South Wales“, Anne Twomey notes that “As the body politic was a creation of law, then allegiance could be changed by a law-making authority.”  This case is also reviewed in Singh v Commonwealth of Australia [2004] HCA 43, in relation to the definition of allegiance. The body politic that is the Crown in relation to Australia is the people of Australia, and it is represented by the Queen of Australia, a position entirely consistent with constitutional reality.

HISTORY

Queensland abolished the death penalty in 1922. Tasmania did the same in 1968, the federal government abolished the death penalty in 1973, with application also in the Australian Capital Territory and the Northern Territory. Victoria did so in 1975, South Australia in 1976, and Western Australia in 1984. New South Wales abolished the death penalty for murder in 1955, and for all crimes in 1985. In 2010, the federal government passed legislation prohibiting the re-establishment of capital punishment by any state or territory. The last execution in Australia took place in 1967, when Ronald Ryan was hanged in Victoria. Between Ryan’s execution in 1967 and 1984, several more people were sentenced to death, but had their sentences commuted to life imprisonment. The last death sentence was given in August 1984, when Brenda Hodge was sentenced to death in Western Australia (and subsequently had her sentence commuted to life imprisonment).  ^[1]

Capital punishment had been part of the legal system of Australia since British settlement. During the 19th century, crimes that could carry a death sentence included burglary, sheep stealing, forgery, sexual assaults, murder and manslaughter, and there is one reported case of someone being executed for “being illegally at large”. During the 19th century, these crimes saw about 80 people hanged each year throughout Australia. Before and after federation, each state made its own criminal laws and punishments. Death sentences were also carried out under Aboriginal customary law, either directly or through sorcery. In some cases the condemned could be denied mortuary rites. ^[2]

Commonwealth

In 1973 the Death Penalty Abolition Act 1973 ^[3] of the Commonwealth abolished the death penalty for federal offences. It provided in Section 3 that the Act applied to any offence against a law of the Commonwealth, the Territories or under an Imperial Act, and in s. 4 that “a person is not liable to the punishment of death for any offence”.

No executions were carried out under the bridge of the federal government, and the passage of the Death Penalty Abolition Act 1973 ^[3] saw the death penalty replaced with life imprisonment as their maximum punishment. Since the Commonwealth effects of utilising this Act, no more individuals have been exposed to the death penalty.  The Commonwealth will not extradite or deport a prisoner to another jurisdiction if they might face the death penalty. ^[4] A recent case involving this was the case of American Gabe Watson, who was convicted of the manslaughter of his wife in North Queensland, and faced capital murder charges in his home state of Alabama. His deportation was delayed until the government received assurances that he would not be executed if found guilty.

New South Wales

The last execution in New South Wales was carried out on 24 August 1939, when John Trevor Kelly was hanged at Sydney’s Long Bay Correctional Centre for the murder of Marjorie Constance Sommarlad. New South Wales abolished the death penalty for murder in 1955, but retained it as a potential penalty for treason, piracy, and arson in naval dockyards until 1985. New South Wales was the last Australian state to formally abolish the death penalty for all crimes.

Victoria

Victoria’s first executions occurred in 1842 when two Aboriginal men, Tunnerminnerwait and Maulboyheenner, were hanged outside the site of the Melbourne Gaol for the killing of two whalers in the Westernport district. ^[5] Ronald Ryan was the last man executed at Pentridge Prison and in Australia. He was hanged on 3 February 1967 after being convicted of shooting dead a prison officer during an escape from Pentridge Prison, Coburg, Victoria in 1965. ^[6] Victoria was also the state of the last woman executed in Australia: Jean Lee was hanged in 1951. She was accused of being an accomplice in the murder of 73-year-old William (‘Pop’) Kent. She, along with her accomplices, were executed on 19 February 1951. Victoria would not carry out another execution until that of Ronald Ryan. ^[7] Not all those executed were murderers: for instance, Albert McNamara was hanged for arson causing death in 1902, and David Bennett was hanged in 1932 after being convicted of raping a four-year-old girl. Bennett was the last man to be hanged in Australia for an offence other than murder.^[8] The beam used to execute condemned prisoners was removed from Old Melbourne Gaol and installed in D Division at Pentridge Prison by the condemned child rapist David Bennett, who was a carpenter by trade. It was used for all 10 Pentridge hangings (including a double hanging). ^[9] After Victoria abolished capital punishment in 1975, the beam was removed and put into storage, and was reinstalled at the Old Melbourne Gaol in August 2000. ^[10]

Queensland

A total of 94 people were hanged in the Moreton Bay/Queensland region from 1830 until 1913. ^[11] The last person hanged was Ernest Austin on 22 September 1913 for the rape and murder of 11-year-old Ivy Mitchell. The only woman to be hanged was Ellen Thompson on 13 June 1887; she was hanged alongside her lover, John Harrison, for murdering her husband William. In 1922, Queensland became the first part of the British Commonwealth to abolish the death penalty. ^[12]

Western Australia

In Western Australia, the first legal executions were under Dutch VOC law on 2 October 1629 on Long Island, Houtman Abrolhos (near Geraldton), when Jeronimus Corneliszoon and six others were hanged as party to the murders of 125 men, women and children. Following British colonization, between 1833 and 1855 executions by firing squad and hanging were performed at a variety of places, often at the site of the offence. Even with the construction of the new Perth Gaol in 1855 as the main execution site in the state, executions were also carried out at various country locations until 1900. In 1886 the Fremantle Prison was handed over to the colonial government as the colony’s major prison; from 1889 43 men (and one woman, Martha Rendell) were hanged there. From 1889 all executions took place at Fremantle Prison. The first execution under British law was that of Midgegooroo, who on 22 May 1833 was executed by firing squad while bound to the door of the original Perth Gaol. John Gavin, a Parkhurst apprentice, was the first British settler to be executed in Western Australia. In 1844 he was hanged for murder at the Fremantle Round House, at the age of fifteen. Bridget Larkin was the first woman to be executed in Western Australia, for the murder of John Hurford, in 1855. The last execution was that of Eric Edgar Cooke on 26 October 1964 at Fremantle Prison. Cooke had been convicted on one count of murder, but evidence and his confessions suggested he had committed many more. The last sentence of death in Western Australia was passed in 1984, ^[13][14][15] but the female killer (Brenda Hodge) ^[16] in question had her sentence commuted to imprisonment for life, as was customary by this stage. Capital punishment was formally removed from the statutes of the state with the passage of the Acts Amendment (Abolition of Capital Punishment) Act 1984.

South Australia

The Adelaide Gaol was the site of forty-four hangings, from Joseph Stagg on 18 November 1840 to Glen Sabre Valance, murderer and rapist, on 24 November 1964. Three executions also occurred at Mount Gambier Gaol, five at country locations out of Port Lincoln, three at Franklin Harbor, one at Streaky Bay and two at Fowler’s Bay. ^[17] Two Ngarrindjeri men were controversially executed by hanging along the Coorong on 22 August 1840, after a drumhead court-martial conducted by Police Commissioner O’Halloran on the orders of Governor George Gawler. The men were found to be guilty of murdering the twenty-five survivors of the shipwreck Maria a few months before. ^[18] Elizabeth Woolcock, the only woman ever to have been executed under South Australian law, was hanged on 30 December 1873. Her body was not released to the family and was buried between the inner and outer walls of the prison, identified by a number and the date of the execution. In 1976, the Criminal Law Consolidation Act was modified so that the death sentence was changed to life imprisonment.

Tasmania

In the early days of colonial rule Tasmania, then known as Van Diemen’s Land, was the site of penal transports. Mary McLauchlan was convicted in 1830 for infanticide; she was sentenced to both death and dissection.^[19][20] She was the first woman to be hanged in Tasmania. The last execution was on 14 February 1946, when serial rapist and killer Frederick Thompson was hanged for the murder of eight-year-old Evelyn Maughan. The death penalty was abolished in 1968.^[21]

Australian Capital Territory

No executions were carried out in the Australian Capital Territory, where federal legislation abolished capital punishment in 1973.

Northern Territory

There were nine executions between 1893 and 1952. Seven of them took place at Fannie Bay Gaol, the other two at regional locations close to where the crime took place. The last execution in the Northern Territory was a double hanging at Fannie Bay Gaol on 8 August 1952. The death penalty was abolished in 1973. ^[22]

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