Australia, the Death Penalty and the Need for Law Reform

by Michael Walton
NSW Council for Civil Liberties

Documents obtained by CCL under freedom of information legislation reveal that the Justice Minister gave the green light to the AFP to continue cooperating with Indonesian police investigating the October 2002 Bali bombings – despite the fact that he knew that people would be executed.

This marks a dramatic weakening of Australia’s policy against the death penalty. The repercussions are still being felt – particularly by convicted drug traffickers, including the Bali Nine and Trinh Huu.

the green light to cooperate in death penalty cases

In October 2002, a joint investigative task force was set up between the Australian Federal Police (‘AFP’) and the Indonesian National Police (‘INP’). A day after “Operation Alliance” was set up, President Megawati Sukarnoputri decreed new anti-terror laws that introduced the death penalty. Once the Bali bombers were arrested and charged with capital offences, the AFP asked the federal government for permission to continue cooperating with the INP.

Documents obtained under freedom of information reveal that in February 2003 the then federal Attorney-General Darryl Williams and Justice Minister Senator Chris Ellison approved continued police-to-police cooperation with the Indonesian police – despite the fact that they both knew that people might be executed. Senator Ellison wrote to AFP Commissioner Keelty advising that further cooperation is not inconsistent with Australia's international obligations in relation to the death penalty.

Australia's obligations do not stop at our borders

Australia has ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, which commits Australia to a complete prohibition on capital punishment for all time – even in times of war and threats to national security. However, documents obtained under freedom of information suggest that the Howard government has decided that these international human rights obligations cease at Australia’s borders. This means that Australian officials overseas, including the AFP, do not need to comply with these obligations.

The UN Human Rights Committee, which is responsible for interpreting the ICCPR and its protocols, has stated clearly that a country’s international human rights obligations do not end at its borders. When interpreting Article 6 of the ICCPR, which guarantees the right to life, in the context of extradition, the Committee has noted that:

"For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application”.[1]

CCL believes that this obligation extends to situations where Australian resources are being used overseas to investigate crimes that attract the death penalty. Australian resources should not be used to expose anyone to the real risk of execution.

The Howard government’s interpretation of Australia’s international human rights obligations clearly wrong in law. The policy allowing the AFP to cooperate with foreign police in situations where the death penalty might apply is based on that flawed interpretation.

war on terror: eating away at our civil liberties

What began as a policy of convenience in the investigation of a heinous act of terrorism in Bali, is now being applied to non-terrorist offences. Members of the Bali Nine and Trinh Huu (on death row in Vietnam) are now suffering for this change in policy. Many more people (Australians and non-Australians) are likely to be affected by this change in the future.

This is yet another example of how the so-called ‘war on terror’, rather than protecting us, has instead eaten away at our civil liberties. This is also a clear example of how over-zealous reactions to terrorism can spread and infect the rest of the criminal justice system.

the need for law reform

CCL believes that the law needs to be reformed to ensure that Australia adheres to its international human rights obligations. CCL is proposing a six-point plan for law reform in this area:

adopting of the Second Optional Protocol into Australian law, ensuring that the Australian States cannot reintroduce the death penalty;
amending the AFP Act to adopt the protection of human rights as one of the core functions of the Australian Federal Police, in a manner similar to Article 2(1) of the Constitution of Interpol;
redrafting the mutual legal assistance in criminal matters laws to remove the artificial dichotomy between pre- and post-charge situations – and the perfect time to do this is during the Justice Minister’s upcoming review of mutual legal assistance;
rewriting the AFP death penalty guidelines for international police-to-police assistance to reflect Australia’s principled opposition to capital punishment;
revising all treaties, memorandums of understanding and one-off joint task force agreements to ensure that they include a clause reserving Australia’s sovereign right to place conditions on assistance where the death penalty might be involved; and,
making available all legal advice to government by the Office of International Law concerning Australia’s international obligations under publicly ratified human rights treaties.