Your selected location:
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. 

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

Supporting Western Australian's for more than 100 years

"Always fast and thorough service. Thank you"

Sitka Pil

My circumstances at the time I made contact with HHG were dire following my argument being rejected by two no win no fee firms. Following my initial meeting with HHG's employment law team I was left feeling extremely positive by the response and concern shown by HHG in regards to their support of my argument along with their preparedness to pursue an outcome on my behalf.

I accept the fact that nobody really wins in these cases (mental health/ workplace) however the end result was what would be considered most favourable and far in excess of what would have been achieved had I not sought the advice from HHG.

I have no hesitation in recommending HHG to anyone caught up in the messy circumstances I found myself in at the time.

Great advice and five-star commitment to their client!!"

Nathan Lynch

"Thank you for such great assistance with the transaction of Flying Domestics on behalf of Lorna Good. It has been such a pleasure to work with the HHG Legal Group and I look forward to working with you in the future."

Jim Goodwin

"Simon Creek and his team were at all times empathic, professional and confident.  My matter needed to be addressed within a pressing time frame, and their availability at short notice and contact after hours was much appreciated.  It caused me considerable stress, but having such a thoroughly reliable and competent team to call on helped me to feel in control. Although I hope not to need their services again in future, I would be confident in doing so!"

Dr Lana Bell

"A good outcome is what we can expect.  A great outcome is a sign of a company which does the very best for their clients. A very big thank you to Daniel Morris for showing empathy towards my small and much needed legal action.

To HHG Legal Group, thank you for a great outcome.  I would recommend your company to anyone seeking legal services."

Jan Atkinson

"Your support this morning was amazingly kind, not to mention your totally reassuring competence, knowledge and wisdom that you used on my behalf.  It was extremely reassuring to have your knowledgeable support, and I particularly appreciated your real and obvious kindness to me. It means so much at a very difficult time. I'm so grateful to you."

Family Law Client

"Janene was very professional and we established a good rapport quickly. The subject of death and wills can be quite confronting to deal with, however, Janene's approach was soft and accommodating."

Lynette Livesey

"A big thank you to HHG for their professional service, continued support, and wide range of legal knowledge. Our clients have given us nothing but kind words regarding HHG Legal Group and so we have no hesitation in referring and recommending Simon Creek and HHG Legal Group for their outstanding services and legal expertise."

Nigel Plowman, Director at McKinley Plowman & Associates

"Simon is a friendly and practical legal advisor. I have received great feedback from the clients I have referred to him and his team at HHG Legal Group."

Richard Beal, Director at BDO

"Over the last few years, I have been impressed by Simon’s legal ability, management skills, entrepreneurial spirit, personal integrity and people skills. He appears to be that rare breed of lawyer – both knowledgeable and commercial."

Michael Malone, Founder of iiNet

"Our family has been a client of HHG Legal Group over many years.  Business has included drawing up of wills for three generations and preparing of probate for my father in law. I would have no hesitation in recommending HHG Legal Group to anyone requiring such services."

Bernice Climie

"You should be congratulated for the manner in which your staff address clients and we found our dealings with your company, once again a very pleasant experience and we would like to truly thank you for your efforts."

Steve Harvey and Jane Powell

"HHG Legal were absolutely fantastic. Extremely responsive and brought calm to our chaotic family situation through their knowledge and caring attitude. Extremely professional from our very first contact with them and they expertly guided our family though the required legal process over almost a 12 month period."

Amanda Williamson

"Fantastic team! They really care about their client. Tim Colcutt is a 'go that extra mile' guy who gives his client his all. I can't recommend HHG and Tim enough."

Kerry Samson

"I had a fantastic lawyer in Anne Hurley. She helped me out a great deal with good, sound advice in a friendly, professional manner. First class, thanks Anne"

Graeme Hammond

"Marine Plant Systems has been working with HHG Legal Group for a few years now and they continually provide first-class service. Their professional advice has been invaluable to our company."

Carolin Grimm - Marine Plant Systems

"We were kept up to date at all times. Pricing was always updated over the time period so we remained "in budget". Personal access to someone whenever I had questions. All in all a great experience without too much fuss."

Rosslyn Tasker - COO AltusQ Pty Ltd

"Good service you can count on."

Miles Lee

"HHG Legal Group has provided outstanding support as I have taken the journey of buying a business, their professionalism is beyond reproach. Their assistance throughout the Due Diligence process has been invaluable, I would fully recommend them."

Mark Armitage

"Very friendly and efficient service - what a pleasure working with Anne."

Jacques Taylor

"I highly recommend Daniel from HHG Legal Mandurah. When dealing with a complicated legal property matter recently I was extremely impressed by Daniel's honesty and integrity and the legal advice I received. I am very happy with the service from HHG Legal."

Tony Walker

Select your location:

Please select your nearest office location so we can show you the most relevant information.