Professor S Bronitt, TC Beirne School of Law, The University of Queensland
Waking to discover that the death penalty by firing squad was finally delivered to the two Bali 9 ringleaders will provoke many emotions and reactions in Australia. From a moral perspective, many oppose the idea of state sanctioned death as a penalty for any crime, being an absolute violation of the right to life and human dignity. From a legal perspective, the position is less equivocal – the death penalty in this country has not been legally permissible since 1990 when Australia signed a binding treaty that now prevents the unsavory prospect that local ‘law & order’ campaigns might garner sufficient political support to bring back the death penalty at the State or national level. From a political perspective, Australia may protest Indonesia’s failure to commute the sentence on compassionate grounds, as well condemning the particular mode of execution, which seems cruelly to have denied the prisoners access to spiritual support at the critical time.
Social media and talk back radio will ponder the value of Indonesia’s 'tough on drugs' messages after the prolonged delay of nearly a decade, and of imposing punishment that ends the lives of two men who have been model prisoners, demonstrating capacity for genuine reform. But managing Australia’s protest against Indonesia's actions will be challenging, risking the appearance of both being selective and hypocritical while two major world powers remain enthusiastically committed to the death penalty to deal with terrorism, drug trafficking and other heinous crimes like murder. Indonesia keeps good company in its retention of the death penalty – the US and China top the table of death penalty jurisdictions, which attracts popular and political support in both those countries. Many offenders annually facing death by firing squad or, in the case of the US, lethal (and increasingly botched) injections that have been made all the more difficult by the refusal of drug companies in Europe to supply pharmaceutical accoutrements of death.
As we reflect on the fate of the Bali 9 ringleaders today, it is timely to review our national position in relation to international police cooperation. Could this happen again? Australia has imposed clear legal limits on mutual assistance in death penalty cases – once a person is charged for an offence carrying the death penalty - cooperation (such as the provision of assistance and evidence) between our legal systems is not possible without diplomatic assurances that the death penalty will not be applied.
The period before charge however is more complex, and police-to-police cooperation is not restricted, even in cases which might ultimately end in the suspect facing a firing squad. In 2006, Federal Court Judge, Justice Paul Finn, exposed this complexity in his review of the AFP policies and decisions relating to Scott Rush and three other Bali ‘mules’. Scott’s father, Lee Rush, had alerted the police to his son’s plans, and urged them to intervene before his son left for Bali. Although Justice Finn found that there were no legal avenues open to Rush to challenge the AFP decision not to intervene, he called upon the AFP Commissioner and Minister to assess the procedures and protocols relating to police-to-police cooperation in such cases.
After the Rush case, the AFP and the Attorney-General’s Department in 2009 developed a AFP National Guideline on International Police-to-Police Assistance in Death Penalty Situations. It is vitally important as a matter of public interest, that Australia has a consistent and principled position in these cases, which applies to Indonesia, or indeed, the US and China. Yet the National Guideline was intended only for internal AFP use, though is now publicly available having been obtained under the Freedom Of Information Act 1982 (Cth) Information Publication Scheme. The Guideline aims to ‘strengthen' international police cooperation – it does not however contain any presumption against cooperation in such cases, but rather merely a range of six ‘prescribed factors' that AFP Senior Management must consider before approving cooperation, including:
- the purpose of providing the information and the reliability of that information
- the seriousness of the suspected criminal activity
- the nationality, age and personal circumstances of the person involved
- the potential risks to the person, and other persons, in providing or not providing the information
- Australia’s interest in promoting and securing cooperation from overseas agencies in combatting crime
- the degree of risk to the person in providing the information, including the likelihood the death penalty will be imposed
The Guideline gives no indication about the relative weight of these factors – 'youth' presumably provides some serious ‘cause to pause’ but the other public interest factors weigh heavily in the other direction, including those related to the forensic value of the evidence, seriousness of the offences being investigated, and most significantly, Australia’s interest in 'strengthening police cooperation' which ultimately is the purpose of issuing this Guideline. In my view, the security rationale weighs too heavily against the human rights rationale, and the Guideline needs to be reviewed with input from senior police and human rights experts. The deaths this morning should provide us all with serious ‘cause to pause’ and think about our key values and the message we send to Australian police engaged in the global fight against crime.