The Australian Federal Police and Capital Punishment

The AFP's "Anything Goes" Policy

The Australian Federal Police (AFP) have been co-operating with foreign police forces in investigations that will lead to people being sentenced to death. This was the case with the Bali Nine and Trinh Huu.

CCL 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 penalty.

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]

AFP Death Penalty Guidelines

The AFP Practical Guide on International Police to Police Assistance in Death 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 2003, the federal Attorney-General (Darryl Williams) and Minister for Justice Chris Ellison gave the green light to the AFP to ignore the death penalty when cooperating with Indonesian police (INP).

The Justice Minister placed conditions on continued cooperation. In essence the conditions state that so long as the Indonesians prosecute non-Australian adults who are arrested outside of Australia, then the AFP can assist the INP. See page 57 of documents obtained under FOI: www.nswccl.org.au/docs/pdf/dpfoi.pdf.

In 2007, the new Justice Minister, Senator David Johnston, admitted in 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).

criticism of the AFP's approach to the death penalty

In August 2005 a Senate Committee recommended that:

...the Australian Government, in conjunction with the Australian Federal Police and other stakeholders, review its policy and procedures on international police to police assistance. 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 overseas 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 2005)

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 Australian Federal Police...when providing information to the police forces of another country in circumstances which 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 police force.

Rush v Commissioner of Police [2006] FCA 12 (23 January 2006) per Finn J at [1].

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)

The Law 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 Story on Monday 13 February 2006, AFP Deputy Commissioner Mike Phelan speaking of the Bali Nine said that "even with the aid of hindsight, should the same set of circumstances 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".