2 Feb 2015

Our Prime Minister has been unable to convince the Indonesian President to spare the lives of two of the members of the “Bali 9” scheduled for imminent execution.  However, Mr Abbott would not have expected his eleventh hour and very public appeal to Mr Joko Widodo on behalf of our two citizens to succeed.  The time for diplomatic intervention has long since passed for Mr Andrew Chan and Mr Myuran Sukumaran.  


The last minute efforts made by our Government are largely symbolic and done more to alleviate that portion of the Australian public who feel helpless and horrified as we sit by and wait for the inevitable shootings.  What Australia can do at this time though is turn its mind to what might be done to prevent other Australians suffering a similar fate in the future.  There were actions Australia could have taken to prevent these deaths.  There are changes to our laws that could ensure we do not unnecessarily contribute to any other execution of our citizens.


Cooperative Killings


In 2005 these men were caught in Indonesia as a result of a joint operation between Australian and Indonesian police.  Importantly the crime they were convicted of involved an attempt to traffic a very large quantity of heroin out of Indonesia and into Australia.  Given this important – but largely overlooked fact – the Indonesian President’s position that he will not compromise on the execution of the two Australians because 50 people in Indonesia die due to drugs every day does not make sense. 


Not enough has been said to strongly point out that these men were removing drugs from Indonesia.  The only drug users who would have died as a result of this crime were Australian.   At some point the Indonesian and Australian police would have decided who would ultimately make the arrest, when and where.  Australia could have and should have insisted the group be apprehended in Australia.  They were our citizens, our police intelligence gathered evidence against them and it was our drug addicts who would have died had they not been caught.  If there ever was a police tug of war over who got the “collars” for this crime then Australia ought to have won hands down.


When Scott Rush was initially sentenced to death there was criticism of the Australian Federal Police’s involvement in the arrests.  There was particular sympathy for Mr Rush’s parents who had contacted Australian police to alert them to their son’s activities in the honest belief that doing so would ultimately help their son.   Questions were rightly asked about why Australian law enforcement had assisted in the arrest when a likely outcome of the operation was death sentences for all involved.  Concern abated when Mr Rush’s death sentence was eventually reduced to life imprisonment.  Somehow the public’s concern did not extend to the other members of the drug ring still facing death – but it ought to have.  The question remains: why did we lead our own citizens to their deaths?


International Law and Crime Cooperation


Under International Law Australia is committed (along with a majority of the world’s nations) to abolishing the death penalty because it is considered to be barbaric and an ineffective deterrent.  Unlike us, Indonesia is not a signatory to the International Convention on Civil and Political Rights and did not support the special resolution of the United Nations General Assembly in 2007 that called for a moratorium on all executions worldwide.  Indonesia is not offending any international commitments when it executes criminals.


In keeping with our international commitments Australian law does not allow any person to be extradited to a country where they may be sentenced to death for the crimes they are wanted in relation to.  However, in complete contradiction to our international commitments our laws do allow our law enforcement resources to be used to detect and apprehend people in countries where they can be put to death for their crimes.


Our mutual assistance laws need to be changed to strictly prohibit the involvement of our law enforcement authorities in joint operations that could result in the death penalty for any person (not only our citizens).  This means that if we are assisting to investigate terrorism offences within Indonesia we will need a commitment from the President of Indonesia that anyone sentenced as a result of evidence or intelligence gathered by Australian law enforcement agencies will not be put to death.  It may be a controversial requirement since such a rule would have prevented the killing of the “Bali bombers”, however Australia’s position on the death penalty must be unequivocal and in line with our international commitments to universal human rights.


Australia also owes a special duty of care to our own citizens.  We could also require that any future law enforcement cooperation be conditional upon the presence of a prisoner transfer treaty with Australia.  This would ensure that there is a mechanism in place for Australian citizens caught as a result of a joint operation could be returned to Australia to serve their sentences.  Such a framework would also allow any foreign prisoners convicted here to be sent back to their own country to serve their sentences.


Indonesia is not one of the 68 countries who have an in-principle agreement with Australia to transfer prisoners.  It seems Australia’s relationship with Indonesia does not extend to this level of cooperation and the failure highlights an undercurrent of mistrust in this oftentimes delicate international relationship.  China, Vietnam, Thailand, Cambodia and Hong Kong have each signed a bilateral treaty with Australia for prisoner transfer.  63 additional countries are parties to the multilateral Council of Europe Convention for Transfer of Sentenced Persons.  It is difficult to understand why Indonesia cannot be convinced to agree to a prisoner transfer framework because even if a treaty were put in place each individual prisoner transfer is highly discretionary and can be refused by either country without the need to provide reasons.  


There are prisoners in both Indonesia and Australia who could benefit from prisoner transfer including many Indonesians serving lengthy sentences in Australia for people smuggling and illegal fishing.  It is widely accepted that rehabilitation is more likely to be successful where prisoners serve their time in their own country’s jails and can be released on parole into their community.  Without prisoner transfer foreigners are usually deported upon their release and dumped back into their home country without supervision and without their crimes noted on their domestic criminal record.  The Australian Government could very easily require a prisoner transfer treaty be put in place as a condition of any future law enforcement cooperation with Indonesia.


Sovereignty Before Cooperation


If the deaths of Mr Chan and Mr Sukumaran can achieve anything it may be that their cases force Australia to require deeper cooperation from Indonesia.  We absolutely must respect each other’s sovereignty and our respective right to determine our own laws.  Indonesia has a right to execute criminals and we have a right to say that we will not assist in any such prosecutions.  Both countries have a common interest in deterring serious crimes in our Region such as terrorism, drug trafficking and people smuggling.  Australia can cooperate without diminishing our commitment to human rights for all people but we owe a special obligation to our sovereign citizens and must protect them better in future.

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us. 

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