Australia: Bali 9 – never again - human rights for our citizens

Last Updated: 9 February 2015
Article by Murray Thornhill

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions