Directing traffic: The death penalty and cross-border law enforcement.
Much of the public concern in Australia about the fate of Schapelle Corby and the Bali nine relates to the perceived unfairness of the Indonesian criminal justice system, particularly the application of draconian offences that reverse the burden of proof and carry the severest of penalties, including death by firing squad. The prospect of the death penalty in cases of drug trafficking expose the moral and legal limits of law enforcement cooperation and Australia’s involvement in the global ‘war on drugs’.
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Simon Bronitt is Director, National Europe Centre and Professor, ANU College of Law.
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Put simply, should Australian officials deliver suspect citizens to other jurisdictions where there is a reasonable prospect that they would face the death penalty? The execution of Nguyen Tuong Van in Singapore in November 2005 further highlighted the sensitivities around this issue. In the Bali nine case, parental concern for one of the suspects, Scott Rush, led them to alert Australian Federal Police (AFP), though it has been claimed that the group (if not Rush himself) was already under police surveillance. The parents’ vain hope that their son would be detained by Australian authorities before departure never eventuated. Interestingly, at the time of writing this, another person (a citizen of South Korea) has been arrested at Brisbane Airport and charged with conspiracy to import the drugs in the Bali nine case. This young man is fortunate that he was not arrested in Indonesia, as he will likely not face extradition.
Cases involving the realistic prospect of the death penalty expose the pressures on law enforcement and justice officials. They raise not only hard ethical questions about the individual choices made by law enforcers, but also raise wider questions about the legality and propriety of their actions as a matter of national policy. This question was considered by Justice Paul Finn of the Federal Court in Rush v Commissioner of Police [2006] FCA 12 (23 Jan 2006) in the context of an application on behalf of several Bali nine suspects to obtain disclosure of information about the actions of the police involved in the operation. (Justice Finn’s career on the bench was preceded by a distinguished academic career at ANU.)
Ultimately, the application was unsuccessful because, in Justice Finn’s view, there was no reasonable prospect of success in any proceedings in Australia against the AFP for their actions in this case.
Before moving to the legality of the police action in the Bali nine case, it is important to understand the wider legal context governing cooperation between Australia and Indonesia. Had one of the Bali nine boarded a plane and been intercepted in Australia, a request for extradition to Indonesia could have occurred. Such requests for assistance are governed by the Mutual Assistance In Criminal Matters Act 1987 (Cth) and the Mutual Assistance Treaty between Australia and Indonesia 1999. Both legal texts stipulate that the Attorney-General must refuse the request for assistance in cases which may lead to the death penalty. The 1987 Act allows assistance in death penalty cases but only in “special circumstances” (which are not defined). These limits are tantamount to a national policy opposing the imposition of the death penalty: congruent with our domestic stance which abolished the imposition of capital punishment for federal offences in 1973.
But the question in this case was whether these strong statements of principle bound the AFP. As Justice Finn pointed out, the issue in the Bali nine case was about cooperation in policing (as opposed to cooperation in justice matters via the Attorney-General). In the field of operational policing, Justice Finn found that the relevant police guidelines on police cooperation adopt a different approach, lawfully permitting the AFP to continue to render assistance irrespective of whether overseas investigation may result in charges carrying the death penalty.
It is difficult to square the degree of latitude granted to the police in these cases, especially when compared with the legal constraints imposed on the Attorney-General. Policing collaboration extends to joint undercover operations sometimes involving elaborate “reverse stings”, or as they are described in Australian statutes, “controlled operations”. In these operations, police and informers will participate in the purchase, importation and supply of drugs to suspects either in Australia or elsewhere. It is hard, with this degree of active police involvement in drug trafficking, to conclude that the ultimate forum in which apprehension occurs is not something within the influence of Australian officials. Justice Finn’s ruling has exposed the inconsistencies in our approach to criminal justice cooperation with countries imposing the death penalty.
Interestingly, Justice Finn’s ruling revealed that the AFP letter to their Indonesian counterparts nine days before the arrests had “strongly requested” the Indonesian police not to apprehend the named Bali nine suspects, but to permit their interdiction in Australia in order to allow the identification of the recipients. This request was clearly not heeded. The prospect of unfettered forum-shopping means that jurisdiction-selection could become a highly political and diplomatically fraught exercise. Indonesia may justifiably lay claim for being the proper forum for trial, based on the fact that it is where the alleged trafficking occurred. That said, conspiracies to import drugs to Australia trigger our own jurisdiction since trafficking offences have broad extraterritorial reach.
In an era of globalization of crime, these tussles over suspects, in which Australian police and justice officials will become ensnared, will continue to raise concern over the proper limits of law enforcement in cases involving jurisdictions that impose the ultimate sanction for drug trafficking.
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ANU Reporter
Autumn 2006
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