The Australian Federal Police and Capital Punishment
The AFP's "Anything
The Australian Federal Police (AFP) have been co-operating
with foreign police forces in investigations that will
to people being sentenced to death. This was the case with
Nine and Trinh Huu.
has condemned the AFP for cooperating with Indonesian
police in the arrest of the Bali Nine, some of whom will
face a death sentence. The AFP have not always been so
reckless with human life and it is time that the AFP
reverted back to its principled stand against the death
Australia has an international human rights obligation to ensure that it does not expose anyone to the risk of execution. This obligation was recognised by
the UN Human Rights Committee in the case of Judge v Canada:
For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application.
Judge v Canada (2002) UN Doc CCPR/C/78/D/829/1998, [10.4]
CCL has FOI'ed internal AFP guidelines that
show that the AFP has an "anything goes" policy
during investigations and prior to charges being laid.
Practical Guide on International Police to Police Assistance
Penalty Charge Situations explicitly states that
assistance can be provided "irrespective
of whether the investigation may later result in charges
being laid which may attract
the death penalty".
In September 2006, the AFP released revised
death penalty guidelines. Unfortunately the AFP have
not changed their procedures, so the Bali Nine travesty
could still occur again.
CCL has also obtained documents that show that, in February
2004, the federal Attorney-General (Darryl Williams) and
green light to the AFP to ignore the death penalty
when cooperating with foreign police. You can read the
freedom of information documents at: www.nswccl.org.au/docs/pdf/dpfoi.pdf (1Mb).
In 2007, the new Justice Minister, Senator David Johnston,
a letter to CCL that the government has also
given the AFP the green light to cooperate after death
penalty charges have been laid in
cases in Indonesia, Malaysia and Tonga.
In August 2006, CCL also obtained documents under FoI
that show that the AFP are side-stepping Australia's mutal
legal assistance laws by cooperating directly with foreign
police. You can read the freedom of information documents
at: www.nswccl.org.au/docs/pdf/dpfoi2.pdf (750Kb).
Read more about Australia outsourcing the death penalty...
criticism of the AFP's approach to the death penalty
In August 2005 a Senate Committee
...the Australian Government,
in conjunction with the Australian
Federal Police and other stakeholders, review its
policy and procedures on international police to police
In particular, the Australian
Government should ensure appropriate ministerial supervision
of assistance provided to overseas
jurisdictions by Australian law enforcement
agencies, where that assistance may expose Australians
to cruel, harsh or inhumane treatment
or punishment, including the death penalty.
Senate Legal & Constitutional
Legislation Committee, Report
on Provisions of the Law and Justice Legislation Amendment
(Serious Drug Offences and Other Measures) Bill 2005 (August
A Federal Court judge has also criticised these policies
and called for reform:
...there is a need for the
[Justice Minister] and the Commissioner of Police to address
the procedures and protocols followed by members of the
Police...when providing information
to the police forces of another country in circumstances
predictably could result in the charging of a person with
an offence that would expose that person to the risk of
the death penalty in that country. Especially is this so
where the person concerned is an Australian citizen and
the information is provided in the course of a request
being made by the AFP for assistance from that other country’s
v Commissioner of Police  FCA 12 (23
January 2006) per Finn J at .
The UN Special Rapporteur on Torture, Philip Alston, has
also called for the guidelines for police-to-police assistance
to be rewritten:
It's a matter of saying we have a strong opposition in
Australia to the death penalty, and we would condition
our cooperation on your not applying the death penalty
when you are operating on the basis of information or assistance
provided by us.
ABC Radio, 'UN
advisor urges Australia to take strong stance against
death penalty', AM (25 January 2006)
Council of Australia and the NSW
Council for Civil Liberties have also called for the guidelines to be rewritten.
Despite all the criticism, Justice Minister Chris Ellison
has been quoted as saying that "Police to police assistance
will not change" ("Ellison
rejects death penalty critics", The
Age Online, 12 Oct 2005). On ABC-TV's Australian
Monday 13 February 2006, AFP Deputy Commissioner Mike
Bali Nine said that "even with the aid of hindsight,
should the same set
present themselves again with another syndicate or other
people, we would do exactly the same thing".
Read CCL's media release: "Busted:
AFP's 'anything goes' policy on death penalty".
AFP and Indonesian Police
In 1996, Australia and Indonesia signed the Bilateral
Treaty on Mutual Assistance in Criminal Matters.
Significantly, that treaty clearly states that "Assistance
may be refused for offences in which the death penalty
may be imposed or carried out". Under section
8 of the Mutual Assistance in Criminal Matters
Act 1987, the AFP MUST refuse
any request to offer assistance if it relates to the
prosecution of a person charged with an offence that
attracts the death penalty. Only the federal Attorney-General
may authorise such assistance. Under section
9 of the Act, the federal Attorney-General may impose
any conditions he thinks fit on any assistance provided
to a foreign country. The Attorney-General has delegated
his authority under this Act to the Justice Minister,
Senator Chris Ellison.
This means that once the Bali Nine are charged with offences
attracting the death penalty, the AFP CANNOT assist
the Indonesian authorities without first being authorised
by Senator Chris Ellison to Attorney-General Philip Ruddock.
However, prior to charges being laid, the AFP's "anything
goes" policy allows Australian police to exchange information
with Indonesian police even if it is likely that capital
charges will be laid.
Stop the AFP outsourcing the death penalty...
Click here to find out what
you can do to stop the AFP placing Australians at
risk of the death penalty.
Read more about Australia
outsourcing the death penalty...
Read CCL's media