Violence Against Women in Social Media

Written by: Dr Melanie O'Brien

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The United Nations Declaration on the Elimination of Violence against Women defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life”. Violence against women (VAW) is an ongoing problem. It is something that manifests itself in many forms, physical, psychological, emotional, and verbal. However with changes in technology, VAW has evolved. The past year has seen an explosion of violence against women through social media.

Some recent and prominent examples are as follows:

Feminist and women’s rights activist Anita Sarkeesian (who uses the moniker FemFreq) campaigns for a more respectable portrayal of women in video games. She’s not anti-video games; she just offers critiques of the sexualized and violent portrayal of women in video games, and offers reasonable suggestions for alternatives. She receives death threats of a regular basis. Her Wikipedia page had to be locked because it was being hacked with pornography and profanity, as well as lies about her. One man created a video game in which Sarkeesian can be beaten repeatedly, with bruises, cuts & black eyes all evident. On her Tumblr account, Sarkeesian posted images of the abuse she received in only one week on twitter. It is shocking and sickening, and I challenge anyone to be able to read through it all. The abuse included such comments as:

• You are a despicable whore
• Kill yourself feminists are a waste of air also more games should have girl characters half naked
• Shut the fuck up bitch [this comment is extremely common]
• Fuck you’re a dumb cunt

Actress Ashley Judd (@AshleyJudd), a prominent activist for women’s rights who campaigns against violence against women, tweeted in support of her alma mater’s basketball team, and received return tweets such as ‘Go suck on Cal’s 2 inch dick ye Bitch whore’. She was called a cunt, bitch, whore, and threatened with rape and ‘anal anal anal’. Judd is a survivor of sexual assault, rape and incest. Imagine how much worse for her those violent threats are. Yet Judd is not taking it lying down, and is taking legal action against the offenders. Judd is now chair of the Women’s Media Centre Speech Project, which aims to spotlight and document online abuse and suppression of women's free speech (#onlinegenderviolence).

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These are only two examples of many, but they demonstrate that there is a thematic and targeted nature to the VAW in social media. The language of the violence we see focuses on three different areas. The first is women’s weight or looks, based on the assumption that any woman who isn’t skinny isn’t attractive, with the aim of destroying the victim’s self-esteem through calling her fat or ugly. The second is the type of derogatory terms that are used: bitch, whore and cunt. All words that focus on a woman’s gender and/or sexuality, including confidence in personality or sexuality. The third theme that comes through is the type of violence that is referred to. Again, for the most part this centres on gender and sexuality, with rape being the main focus of the violence, through either ‘hoping’ the victim is raped, or declaring her ‘too fat to be raped’. While men are victims of rape, the majority of victims are women, and it is a crime used to demonstrate power over the victim. The other type of violence is death threats. It is clear is that such conduct without a doubt amounts to violence against women.

From this we see an incredibly disproportionate response of extreme violence to the harmless comments of women. How can support for a sports team lead to someone wanting a woman raped? How can looking to clothe women in video games lead to death threats? One troll told his victim that he abused her (and other women) online because she was self-confident and he wasn’t. But how does lacking self-confidence lead to targeting women with violence? There is clearly a need for some psychological research into this area.

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Social media has become a significant outlet for VAW. This is due to the anonymity that it provides. Perhaps many of these trolls would never actually voice such violent tendencies to a person in real life. The decrease in human interaction caused by increased internet use, reliance on the internet and social media as a social life, means that people are losing the ability to moderate their own behaviour, and to assess what is appropriate. People are anonymous online, and they do not have to be held accountable for violence. They can get away with violent behaviour. This is something we need to fight against; we cannot let this become the norm. We must work on both prevention and punishment.

Violent online behaviour has the potential to escalate to physical violence, the more people become immune to the violence and the more they normalise their own violent behaviour. If someone you know is using abusive language towards a woman or women in general, call them out on their behaviour. Question them as to why they used that terminology and if they think it’s acceptable to say that. Make them think about their behaviour and how it affects others. Importantly, it is both women and men who need to take action. We should all create a culture around us free of violence, where violence and discrimination are unacceptable, to both men and women. Take a non-violent and non-discriminatory attitude through your lives, passing it on to others.

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In terms of punishment, while of course social media providers such as Twitter are taking action to block abusive trolls and crack down on abuse, law enforcement authorities need to be more pro-active in prosecuting those who commit online violence. Yet this raises the question of whether our criminal laws are adequate enough to cover this kind of violence. Vilification laws at federal and state level are unfortunately limited for the most part to vilification on the grounds of race, with some also including sexual orientation, but none including gender. The application of the crimes of ‘threat to kill’ or ‘threat to cause harm or injury’ may be challenging, depending on the phrasing of the text (‘I hope you get raped’ as opposed to ‘I am going to rape you’). There is a need for consideration of the harm caused by online violence, and the creation of of a new legislative provision to prevent and punish this conduct.

#StopTheTrolls

A True Pro Bono Collaboration: QAI, Allens & the Legal Capacity Handbook

WRITTEN BY: MONICA TAYLOR, UQ PRO BONO CENTRE 

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The Honourable Justice Ann Lyons

The tricky ethical area of client capacity has received expert consideration in the new Queensland Handbook for Practitioners on Legal Capacity.  Launched on 19 May 2015 by the Honourable Justice Ann Lyons, the Handbook is a major contribution to an area of law that can easily trip up the finest of legal minds.  Her Honour predicted that the Handbook will find a home on the desk of all Queensland lawyers who contend with this issue, not least her own. 

The Handbook’s existence is the result of a tremendous pro bono collaboration between Queensland Advocacy Incorporated (QAI) and Allens.  Their efforts demonstrate how a pro bono partnership can leverage a result greater than the sum of its individual contributions.  Projects like this invite us to reflect on the extent of our profession’s commitment to pro bono; what started as a simple idea has resulted in a valuable statewide resource with official QLS endorsement. 

“Queensland lawyers now have access to a high quality resource to help them navigate the complex area of legal capacity. This will ultimately increase access to justice for vulnerable individuals as lawyers will be less likely to refuse to act out of fear the client does not have capacity to instruct. ”

With their expertise in the areas of mental health and disability law, QAI lawyers knew there was a need for a toolkit to guide practitioners on capacity.  Unable to produce such a resource on their limited operating budget, QAI approached Allens who agreed to take on the project on a pro bono basis.  Over a two-year period, the firm dedicated hundreds of hours developing the Handbook.  As the project progressed, Allens and QAI sought the involvement of many agencies to contribute in various ways, including through focus groups and by providing feedback on review drafts.  QAI lists twelve contributing organisations on its website including Legal Aid Queensland, the Public Trustee of Queensland, the Office of the Adult Guardian, the Legal Services Commission, the Queensland Law Society and the Seniors Legal and Support Service.  Law students through the UQ Pro Bono Centre also played their part by undertaking case law research during the initial project phase. 

This pro bono partnership exhibited many features of effective collaboration.  There was an adaptable project timeframe and direct consultation built into the planning stage. A common outcome propelled everyone to work together and to bring their respective strengths to the table. For the students, it was their research skills; for QAI and other CLCs, their expertise in frontline service delivery and working with vulnerable people; for Allens, a firm-wide commitment to pro bono and considerable human resources that not only included ‘lawyer time’ but also layout and publication skills.  This planned and purposeful engagement meant that a ‘too-hard-basket’ situation simply did not eventuate.  Instead, Queensland lawyers now have access to a high quality resource to help them navigate the complex area of legal capacity. This will ultimately increase access to justice for vulnerable individuals as lawyers will be less likely to refuse to act out of fear the client does not have capacity to instruct. 

The Queensland Handbook for Practitioners on Legal Capacity is available online at the QAI website: http://t.co/9inJnDxXVK  The Queensland Law Society has endorsed the Handbook for use by Queensland solicitors. 

In Conversation with Christina Walton, Lecturer in Law at the University of Exeter, on the Law of Charity

WRITTEN BY: SAMUEL WALPOLE

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Christina Walton

This week on Pandora’s Blog, contributor and former Pandora’s Box Editor Samuel Walpole speaks with Christina Walton, Lecturer in Law at the University of Exeter, on the development of charity law in England. In particular, they discuss Christina’s current research on the charitable status of political trusts, and the intersection of private and public law concepts within this debate. 

PB:   Christina, thank you for joining us.

CW:   Thank you very much for having me.

PB:  Would you say that ‘charity law’ now exists as a distinct area of the law? Or, is it a subset of the law of trusts?

CW:  Yes, I would say that charity law is a distinct area of the law. Charity law is governed by a statute called the Charities Act 2011 (UK), which was previously the 2006 Act. The Act defines a charity in s 1 as an institution established for exclusively charitable purposes. Later on in the Act we have a definition – or something approaching a definition – of an institution, which is very broad and specifically encompasses incorporated associations, unincorporated associations and trusts. So a trust is merely one institution which can be legally designated a charity;  a company or unincorporated association can likewise achieve charitable status. 

PB:  Charities are an integral part of Western civil society. Pragmatically, however, why is it so important to be considered a ‘charity’ under the law? 

CW:  If you can prove that you are legally a charity, you can take advantage of special legal treatment. The most significant aspect of this from a practical perspective is the various tax breaks that apply to charities. Charities are fully exempt from income tax, corporation tax, capital gains tax and stamp duty, and partially exempt from VAT. Gifts to charities have tax relief through gift aid. Furthermore, a body called the Charity Commission – provided by the State at public expense – governs charities and their operation. Trusts granted charitable status are exempt from the rule against perpetuities, the rule against inalienability and the beneficiary principle.

Samuel Walpole

PB:  I noticed that the definition of a ‘charity’ is contained within the Charities Act 2011. How, if at all, did this Act change the definition of “charity” or “charitable purpose”? In Australia, where most of our readers are located, the Federal Government recently passed the Charities Act 2013 (Cth) which, on my reading, appears to define the key terms in a similar way.

CW:  I do not think that statutory reorganisation has changed the definition of what it is to be a charity, or that of charitable purpose, hugely. How the Act works is that s 1 defines “charity” as an institution established exclusively for charitable purposes. Then, s 2 defines what a “charitable purpose” is. There are two elements to the latter definition: a purpose must fall within the catalogue in s 3 and be for the public benefit. The catalogue of purposes which the Act recognises as charitable in s 3 is very similar to the purposes recognised as charitable in judicial decision.

PB:  Like those in Pemsel?[1]

CW:  Exactly. It all started off in Pemsel and then, by analogy, other purposes began to be recognised as charitable over the course of time. There is not a huge amount of innovation in s 3. One possible innovation is the inclusion of the advancement of amateur sport. There is also innovation in terms of s 3(2)(a)(ii) which includes, within the advancement of religion category, advancing a religion which does not involve belief in a god. Broadly speaking, however, the catalogue in s 3 is a reiteration of the catalogue contained in case law.

Public benefit is the second requirement for a purpose to be charitable. Explicitly, in s 4, we are told that in understanding public benefit we are to consider the previous case law. So there has been no change in this regard.

What might be a change – and what a lot of academics are interested in – is s 4(2). This tells us that there is no longer a presumption that a purpose within s 3 is beneficial. This is presented, at least in the Act itself, as being a departure from the previous law. Whether it is or not is debatable. The thought is that, prior to statutory reorganisation in 2006, the Court presumed the benefit of any purpose that fell within the catalogue. This presumption could, of course, be rebutted, but if unrebutted would dictate a conclusion of benefit. Under the statute, it is clear that the benefit of any given purpose must be positively demonstrated in order to establish charitable status. Hence, at least prima facie, s 4(2) represents a change in the law.  However, as I say, this is contentious. Academics are not in agreement as to whether the Courts were in fact utilising a presumption prior to the 2006 Act and, therefore, whether s 4(2) represents a legal change or not.

Interestingly, this links into my research on political trusts. Historically, the judiciary has held that political purposes cannot be charitable because of their inability to judge the benefit of such purposes. However, were the courts presuming a purpose falling within the catalogue to be beneficial prior to 2006, this inability to judge benefit would have left the presumption unrebutted and yielded a conclusion of benefit and, all other things being equal, charitable status.. That this was not the courts’ approach in the political trusts case law indicates that, at least in these cases, the courts were not applying any presumption of benefit. 

Thus, s 4(2) is presented as a departure from the law prior to the Act, but I am not so sure that it is.

PB: Notably, I observed that the charitable purposes listed in s 3 of the 2011 Act include ‘human rights’, ‘environment protection’, ‘animal welfare’ and so on. Does the express inclusion of these in the Act reflect contemporary policy emphasis?

CW:  That is an interesting question. For sure, the express inclusion of these purposes is an explicit recognition that these kinds of purpose are a good thing and, therefore, that an institution dedicated to these purposes should be capable of being legally designated a charity and enjoying the various benefits of this legal status. I am not so sure, however, whether the purposes you note have an especial contemporary relevance.  Crucially, these purposes have been included in the judicial catalogue of charitable purpose for many years. For example, the case of Anti-Vivisection[2] and the much earlier 1895 case of Re Foveaux[3] recognised animal welfare as charitable. Human rights was recognised in McGovern v Attorney-General[4] in 1982. So Parliament has, in the main, simply picked up on the various charitable purposes recognised in judicial decision and has made these purposes explicit in the Act. This links in with what I said about the s 3 catalogue being more about reaffirmation than recognition of novel purposes.  

PB:   The charitable status of trusts for a political purpose is a particularly vexed issue. I realise that this is one of your particular interests, so I thought we might spend some discussing it. The traditional rule is, of course, that political purposes are not charitable. Why have the Courts reached that conclusion? Or, perhaps more accurately, how has the case law been interpreted?

CW:  The courts tell us that a political purpose is not a charitable purpose and so an institution aimed at such a purpose cannot be a charity. The headline explanation for why that is so is that the Court cannot judge the benefit of such purposes and so cannot hold them to be beneficial as is necessary in order to satisfy the “public benefit” test in s 2. All academics, I think, agree that this is a fair reading of the case-law, in particular Bowman v Secular Society[5] and McGovern[6]. Disagreement arises, however, in interpreting the notion that the Courts are unable to judge benefit. Most academics – including a number of high profile Cambridge academics – consider this to mean that the Court is for some reason or another simply unable to identify the benefits and detriments flowing from a political purpose and unable to weigh up where the balance of advantage lies. On this understanding, they consider the supposed inability to judge unconvincing. They cannot understand why the Court is unable to engage in this balancing process.

But on a closer reading of Slade J’s judgment in McGovern v Attorney-General,[7] which is the leading judgment in this area, I do not think this a fair interpretation of “inability of judge”. Slade J explicitly acknowledges that there is nothing to prevent the Court identifying the benefit and detriment of a purpose directed at bringing about legislative change, and undertaking a balancing of the one against the other. He says, in his judgment, that the Court may well come to a ‘prima facie opinion that a change in the law is desirable'’.[8] Slade J acknowledges that the Court is capable of making such a judgment.

The problem for Slade J, I believe, lies not in the court reaching an opinion on the issue of benefit, but rather in the court then using this opinion as the foundation for a legal conclusion. As Slade J says, were the court to use its opinion on whether a change in the law is a good or bad thing in order to found a legal opinion, it would usurp the legislature’s function (i.e. to assess the need for legal change). Judicial reticence in this context therefore stems from a reluctance to come out and say 'we think the law is wrong', or ‘we think an executive decision is wrong’. That, in turn, boils down to the judiciary’s view as to the relationship it has with the other branches of state. We are being told that the job of the Court is to apply, not question, the law; the judiciary cannot, therefore, use its view on the merit of legislation as the foundation for a legal conclusion.

PB:  And I think that is quite interesting, given that judicial review has continued to grow and, particularly in areas such as tort, influence doctrines in private law.

CW:   Yes; it could be that the goal posts have shifted. Charity law may be lagging behind other areas of law in which we do see the judiciary becoming more activist. However, such developments are controversial, and there is a lot of commentary on this in the public law scholarship. There is a huge overlap between what I am researching and public law developments; greater judicial boldness in that sphere may herald greater boldness in my sphere.

PB:  Charity law is also unique as it involves private law principles but has a very public effect. Yet, in many ways, even with the expanding scope of public law dimensions, many private law doctrines have remained quite separate.

CW:  Yes.  It is interesting that while charity law is indisputably part of private law, one’s take on its interaction with political purpose is unavoidably predicated on a constitutional law position. Therefore, in this context one cannot avoid discussing public law. When I started researching this area I should have, but didn’t, anticipate this, perhaps because other academics are not recognising the relevance of public law to this aspect of charity law.

PB:  The issues surrounding political trusts was recently considered by the High Court of Australia in Aid/Watch Inc v Federal Commissioner of Taxation[9] (2010) 241 CLR 539.

Aid/Watch was a charity concerned with the distribution of foreign aid to other countries and part of its activities involved advocacy toward legislative change and change in government practice.

The High Court of Australia held that this political purpose did not preclude Aid/Watch being a charity. The Court held, for the purposes of Australian law, that ‘…there is no general doctrine which excludes from charitable purposes “political objects” and has the scope indicated in England by McGovern v Attorney-General’.[10]

Instead, the Court said that the test is a general one as to whether the aim of the organisation was for a purpose beneficial to the community.[11]

Does this represent a sharp divergence in charity law between Australia and England?

CW:  My first caveat is that I have come across Aid/Watch in academic commentary but am yet to read it – I need to do so soon. Judging by what you have told me, it appears that the Court in Aid/Watch has said that the political purposes rule, if such a rule exists, is independent of the public benefit requirement, and therefore lacking any justificatory force. My understanding of the political purposes rule is that it is an aspect of the public benefit rule. The reason a political purpose cannot be charitable is because the Court cannot determine whether such a purpose is for the public benefit. The Court in its reasoning in Aid/Watch, appears not to connect the political purpose rule with the public benefit requirement.

I would rationalise the decision in Aid/Watch with domestic charity law in this way: Australia has a different constitutional structure. Peter Turner (Cambridge University) emphasises that the Australian constitutional system postulates for its very existence an agitation for legislative change.[12] There is an ability to amend the Constitution by referendum and an implied freedom of political communication.

Aid/Watch makes sense in light of this.  As I said, my understanding is that political purposes in the UK cannot be charitable because of a judicial squeamishness in saying that a law or executive policy/decision is wrong; the same squeamishness does not hamper the Australian courts on account of the different constitutional system in play. So Aid/Watch is actually very helpful to my approach to this area of law. It fits in perfectly to my thesis i.e. that the courts’ approach to political purpose is predicated entirely on a constitutional law position.

PB:  And the High Court of Australia, in Aid/Watch, certainly makes explicit reference to the Australian Constitution’s system of representative government and the implied freedom of political communication that derives from this.[13] Yet, it is interesting, given our earlier discussion about the growth of judicial review in the public law sphere, as the Australian Constitution actually provides judges with quite limited grounds for rights-based intervention. Compared at least to the UK’s, albeit statutory, Human Rights Act.

CW:   There is a lot to discuss, and I think Aid/Watch will be very significant to the article I am writing at the moment. I will certainly incorporate it.

PB:  We have focused on one of the key controversies in charity law at present, relating to the public benefit test. What are other issues do you foresee, as charity law continues to develop?

CW:  In the future I would like to continue to think about the public benefit requirement; it is extremely interesting as there are so many lenses through which to look at it. At the moment, I am looking at political purposes and their relationship to the public benefit requirement, but an equally interesting area is religious purposes and their relationship to the public benefit requirement. How can a Court hold a body aimed at promoting a particular religion beneficial? What type of benefit is the Court looking for? Downstream benefits? An inherent benefit in the religion itself? There are questions to be asked, also, about radicalised religions that deliver disbenefit as well as benefit. It is something for me to think about in the future.

PB:   Christina Walton, thank you for speaking to Pandora’s Blog.

Christina Walton is a Lecturer in Law at the University of Exeter. She achieved a Double First in Jurisprudence and was awarded the Martin Wronker Prize for Trusts at Lincoln College, Oxford. She subsequently completed an MA in Philosophy at King’s College London with Distinction. Ms Walton previously taught Land Law and Trusts for a number of Oxford and Cambridge Colleges. This interview was conducted by Samuel Walpole at the University of Exeter in Exeter, Devon on 27 March 2015. Thank you to Balawyn Jones, Jocelyn Bosse and Tristan Pagliano for their, as always, excellent editorial assistance.

[1] Income Tax Special Commissioners v Pemsel [1891] AC 531.

[2] National Anti-Vivisection Society v Inland Revenue Commissioners [1940] AC 31.

[3] [1895] 2 Ch 501

[4] [1982] Ch 321.

[5] Bowman v Secular Society [1917] AC 406.

[6] [1982] Ch 321.

[7] [1982] Ch 321.

[8] Ibid 337.

[9] (2010) 241 CLR 539.

[10] Ibid [48].

[11] Ibid [46]-[47].

[12] Quoting the High Court in Aid/Watch at [45]:

‘The provisions of the Constitution mandate a system of representative and responsible government with a universal adult franchise, and s 128 establishes a system for amendment of the Constitution in which the proposed law to effect the amendment is to be submitted to the electors. Communication between electors and legislators and the officers of the executive, and between electors themselves, on matters of government and politics is "an indispensable incident" of that constitutional system. While personal rights of action are not by these means bestowed upon individuals in the manner of the Bivens action known in the United States, the Constitution informs the development of the common law. Any burden which the common law places upon communication respecting matters of government and politics must be reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of that system of government.’

[13] Ibid.

Images are from http://pixabay.com/. Licensed for use under Creative Commons (CC0 Public Domain).

Darkness to Daylight Challenge Run 2015

WRITTEN BY: JOCELYN BOSSE

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Last week, JATL was pleased to be able to lend support the Darkness to Daylight challenge, which raised awareness and $35,000 in support of victims of domestic violence in Australia. The night began with a candlelight vigil, followed by the overnight 110km Night Run which represents the 110 lives lost each year due to domestic violence.[1] Some did the 110km individually, whilst others formed teams to run the course as a relay. 

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In the morning, the Together Run had everyone run the final 10km together to represent all the organisations that are working to end domestic violence. More than 300 people participated in the run, and many volunteers, including some from JATL, were there to support them. The event was organised by Australia's CEO Challenge with the support of Minter Ellison.

Domestic violence affects people of all walks of life and is not confined to a particular demographic.[2] The Darkness to Daylight challenge is a way to make a difference to the statistic that two people die every week in Australia at the hands of a loved one.[3] 

I volunteered from 3.30am to support the participants during the last leg of the Night Run and for the Together Run. It was really inspirational to see the endurance of the runners, especially those who ran the entire 110km. JATL executive member Wendy Pei volunteered in the morning for the clean-up and handing out the medals. I was so impressed with everyone who participated in this fantastic display of solidarity and awareness for an important issue.

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UQLS Running Club participants Amy, Will, Sarah and Hamish.

It was also great to see familiar faces from the UQ Law Society Running Club who did the Night Run as a relay. The participants included Samuel Irvine Casey, May Ann, Jane Hall, Claudia Barry, Gabbi Davis, Jasmine Zamprogno, Sarah Connolly, Matt Fox, Will Baxter, Hamish Swanson and Amy Bergman. Everyone remained enthusiastic throughout the night - even at 3.00am! Their efforts have helped to shine a light on domestic violence, as well as raising money to support primary prevention initiatives and community domestic violence services.

[1] Australia’s CEO Challenge, Darkness to Daylight Challenge Run 2015 <http://ceochallengeaustralia.org/event/darkness-to-daylight-challenge-run-2015/>.

[2] Women’s Legal Service, About Domestic Violence <https://www.wlsq.org.au/resources/about-domestic-violence/>.

[3] Australia’s CEO Challenge, above n 1.

‘Cause to Pause’ in International Policing Cooperation in the Wake of the Bali Executions

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.