Right to life
Public sector guidance sheet
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.
What is the right to life?
Under human rights law, countries and agents of the country must not deprive a person of life arbitrarily or unlawfully. Countries also have a duty to take appropriate steps to protect the right to life and to investigate arbitrary or unlawful killings and punish offenders.
Australia has an obligation not to impose the death penalty, and also an obligation not to remove a person to another country where there are substantial grounds for believing that there is a real risk of the person being subjected to the death penalty in that country.
Where does the right to life come from?
Australia is a party to seven core international human rights treaties. The right to life is contained in article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) and article 1 of the Second Optional Protocol to ICCPR.
See also article 6 of the Convention on the Rights of the Child (CRC) and article 10 of the Convention on the Rights of Persons with Disabilities (CRPD).
When do I need to consider the right to life?
You will need to consider the right to life if you are working on legislation, a policy or a program that:
- creates or amends powers available regarding the use of force by authorities exercising law enforcement powers
- affects the delivery of medical treatment to patients
- relates to investigation into the conduct of public authorities, in particular when persons die while in the care of public authorities, such as deaths in custody
- regulates the removal of persons from Australia, under either immigration processes or by way of extradition, or
- regulates the provision of mutual assistance in criminal matters or the provision of police assistance to a foreign country, if the provision of the assistance may have implications for the imposition of the death penalty in the foreign country.
This list should not be regarded as exhaustive.
What is the scope of the right to life?
The right to life entails the right not to be deprived of life arbitrarily or unlawfully by the country or its agents. A killing may be arbitrary even if it is not unlawful under the law of the country where it occurs. For example, a killing by a law enforcement official may be permissible under domestic law, but it may nevertheless be arbitrary if it is carried out unreasonably or in disproportionate circumstances. For instance if it is carried out without warning or without giving an opportunity to surrender, where the opportunity exists to give a warning or to offer surrender, or if the killing is not necessary in order to effect an arrest or prevent escape.
The right to life includes a duty on governments to take appropriate steps to protect the right to life of those within its jurisdiction and to investigate arbitrary or unlawful killings and punish offenders. This means that governments are required to enact laws that criminalise unlawful killings and that the laws must be supported by law enforcement machinery for the prevention, investigation and punishment of breaches of the criminal law.
As a party to the Second Optional Protocol to the ICCPR, Australia is obliged to ensure that no person within Australia's jurisdiction is executed and that the death penalty is abolished. The UN Human Rights Committee has stated that countries that have abolished the death penalty are in addition obliged not to remove a person to another country, under either immigration processes or by way of extradition, if it may reasonably be anticipated that the person will be sentenced to death, without ensuring that the death sentence will not be carried out.
The Human Rights Committee has also stated that there is an there is an obligation under the ICCPR not to extradite, deport, expel or otherwise remove a person where there are substantial grounds for believing that there is a real risk of the person being subjected to arbitrary deprivation of life in the country to which removal is to be effected.
Can the right to life be limited?
Under international human rights law, the right to life must be respected at all times. It will be extremely difficult to justify any limitations on the prohibition.
No derogation from the right to life is permitted under article 4 of the ICCPR.
During a time of armed conflict, international human rights law, including the right to life, remains generally applicable. However, during armed conflict, international humanitarian law, as the body of law that applies specially to the circumstances of armed conflict, is the relevant standard under which compliance with the right to life is assessed.
Which domestic laws relate to the right to life?
The Death Penalty Abolition Act 1973 provides that the death penalty may not be imposed for any offence against a law of the Commonwealth, a state or a territory.
Division 268 of the Criminal Code Act 1995 provides that murder and unlawful killings are offences when they constitute genocide, crimes against humanity or war crimes.
In the extradition context, section 22(3)(c) of the Extradition Act 1988 provides that a person whose extradition is sought for an offence that is punishable by death may only be surrendered if Australia has received an undertaking from the requesting country that the person will not be tried for the offence; or if the person is tried for the offence, the death penalty will not be imposed on the person; or if the death penalty is imposed on the person, it will not be carried out.
Under the Mutual Assistance in Criminal Matters Act 1987, a request by a foreign country for assistance must be refused if it relates to the prosecution or punishment of a person charged with, or convicted of, an offence in respect of which the death penalty may be imposed in the foreign country, unless the Attorney-General is of the opinion, having regard to the special circumstances of the case, that the assistance requested should be granted. In addition, a request by a foreign country for assistance under the Act may be refused if the Attorney-General believes that the provision of the assistance may result in the death penalty being imposed on a person.
'Special circumstances' is not defined in the Act but as detailed in the Explanatory Memorandum to the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996, examples of special circumstances may include where the evidence would assist the defence, or where the foreign country undertakes not to impose or carry out the death penalty. Prior to being charged with, or convicted of a death penalty offence, the Attorney-General has a discretion to refuse to provide assistance if he believes that the provision of the assistance may result in the death penalty being imposed on a person, and, after taking into consideration the interests of international criminal cooperation, is of the opinion that in the circumstances of the case, the request should not be granted.
The Australian Federal Police's Practical Guide on international police-to-police assistance in potential death penalty situations requires Ministerial approval of assistance in any case in which a person has been arrested, detained, charged with, or convicted of, an offence that carries the death penalty. Where a person is yet to be arrested, detained, charged or convicted of a death penalty offence, the Guide requires senior AFP management to consider a set of prescribed factors before providing police assistance to foreign countries. Examples of these factors include the age and personal circumstances of the person and the seriousness of the suspected criminal activity.
What other rights and freedoms relate to the right to life?
The right to life may also be relevant to:
- the prohibition on torture and cruel, inhuman or degrading treatment or punishment in article 7 of the ICCPR
- the right to be treated humanely in places of detention in article 10 of the ICCPR.
Articles from relevant Conventions
International Covenant on Civil and Political Rights
- Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
Second Optional Protocol to ICCPR
- No one within the jurisdiction of a State Party to the present Protocol shall be executed.
- Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.
See also: CRC article 6; CRPD article 10.
Where can I read more about the right to life?
- United Nations, Office of the High Commissioner for Human Rights (OHCHR), Human Rights Bodies (human rights treaty bodies that monitor implementation of the core international human rights treaties)
- UN Human Rights Committee General Comment No 6
- UN Human Rights Committee General Comment No 31 (see paragraph 12 on the obligation not to remove a person in case of arbitrary deprivation of life)
- Explanatory Memorandum to Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2010
- UN Human Rights Committee views in Judge v Canada (on the obligation not to remove a person where the death penalty might be imposed)