In the wake of the executions of Andrew Chan and Myuran Sukumaran, Parliament is grappling with how best to ensure Australian authorities have a clear set of rules over when they can and can’t hand over Australians suspected of crimes to foreign countries that maintain the death penalty, particularly when it comes to drug crime.

Chan and Sukumaran were executed by firing squad in Indonesia on April 29 with six other prisoners, close to 10 years since they were first arrested on drug smuggling charges. As part of the Bali Nine they had attempted to smuggle 8kg of heroin to Australia. Despite the best bipartisan efforts of Australian politicians to convince the government of Indonesia to grant clemency to the two Australians, the executions went ahead as part of President Joko Widodo’s hardline stance on drugs.

The immense public sorrow and outrage over the executions has forced Parliament to reconsider its role in advocating for the abolition of the death penalty overseas, while also continuing to work with law enforcement agencies in countries with the death penalty for trans-national crimes involving Australian citizens. According to the Department of Foreign Affairs and Trade, 56 countries retain the death penalty for ordinary crimes, and 33 are abolitionist “in practice” but not in law.

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The Australian Federal Police’s role in helping authorities in Indonesia arrest the Bali Nine has been a focus of community outrage for many years. AFP Commissioner Andrew Colvin said in a lengthy press conference in early May after the executions that at the time of the arrests, the AFP had been working with an incomplete picture, and that it had chosen to work with Indonesian authorities only because the AFP was not in a position to arrest the members of the Bali Nine before they left Australia.

After the Bali Nine case, the AFP reviewed and tightened its guidelines on how information could and should be shared with countries that have the death penalty, but the Australian Bar Association’s Fiona McLeod noted that these guidelines are completely discretionary, and it is unclear how the AFP decides when to hand over information and when to withhold. McLeod told the parliamentary committee in November:

“It is inappropriate, in our submission, that decision making of such a profound impact is left to AFP officers to determine on an ad hoc basis. These decisions should be properly based, principled and subject to ministerial oversight and should be the exception rather than the law.”

Between 2010 and 2014, after the changes were put in place, 411 of the 446 internal requests for information sharing with foreign countries with the death penalty were approved. Ministerial approvals were granted 23 out of 24 times over the five years.

The AFP maintains it is important to continue sharing information with countries like Indonesia to tackle the “scourge” of illegal drugs. At the same press conference the AFP’s Michael Phelan said since 2012 there had been 20.3 tonnes of drugs seized in Australia:

“The seized amphetamines, cocaine, and heroin alone would’ve added up to 200 million street hits. That means that would be more than eight hits for every man, woman and child in Australia. We’d never have seized these drugs without international co-operation. I believe the balance is right.”

The balance means more than 1800 Australians in the past five years were at risk of the death penalty after the AFP shared information regarding their alleged drug crimes with foreign law enforcement agencies — the Australian Federal Police’s own statistics reveal that, most of the time, information is shared with a country that has the death penalty it is in relation to drug crime. The number of times information is handed over relating to terrorism offences is in the single figures.

The committee appears to be leaning towards recommending stricter rules on handing over information to countries with the death penalty, to be codified in law. In committee hearings held in November and early December, former attorney-general and chair of the committee Philip Ruddock used a hypothetical terrorist attack about to be carried out on a beach in Bali by an Australian. If the AFP had information on such an attack would it hand over the information to Indonesia and prevent the attack, even if the hypothetical terrorists could face the death penalty?

McLeod said it would be an “exceptional case” that would justify the AFP sharing information that would send an Australian to face the death penalty.

“If you create exceptional circumstances — so it is the exception rather than the rule that there would be a sharing — then cases like the case you are mentioning could be seen to easily fall within that. For the most part, we are talking about drug offences exposing our Australians to death penalty. In our view, all offences do not warrant the death penalty, but we can see how a case might be made for intelligence sharing in an exceptional case, if there is a mass terrorist offence.”

Lawyer for Chan and Sukumaran Julian McMahon, speaking before the committee in a private capacity, said that in the unlikely situation that Australia had information about an Australian citizen participating in a terrorist plot overseas, Australia should “play hardball” and make it known in advance that Australia would not hand over information to countries with the death penalty:

Whatever the public information is about that reality, the reality is that in the last decade or so it does not seem like our nation has been put in a position where we are facilitating executions. It does not seem to be the case. There may be some cases where we have given information and people have been executed as a result, but the overall impression that you would get from how our agencies operate and how our government operates is that we are not known to have been doing that.”

While the Extradition Act and the Mutual Assistance Act stop Australia from assisting countries with the death penalty, the AFP’s legislation has no such protections. Emily Howie from the Human Rights Law Centre said that should change:

“We think the AFP Act should place clear parameters around information and intelligence sharing that lead to the death penalty. One way to do this is to amend the AFP Act to prohibit intelligence sharing that leads to the death penalty, unless an assurance is given by foreign counterparts that the death penalty will not be sought or imposed or, perhaps, in emergency situations, such as where there is an imminent danger to life.”

Ruddock says that Parliament might legislate exactly when Australia would and would not co-operate with death penalty countries in the future, but he says it would be based around the AFP’s existing guidelines:“I guess I am of the view that there are circumstances where you would like to provide information where the death penalty is possible … but when that’s not there, shouldn’t the law be clear?”

A deadline for the committee to report back to Parliament has not yet been set.

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Peter Fray
Peter Fray
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