Australia must enshrine into law the principle of prohibiting Australian agencies from assisting foreign authorities with criminal matters if Australians could be exposed to the death penalty, the Human Rights Law Centre (HRLC) has said.
Speaking out after the revelation that yet another member of the Bali Nine, Myuran Sukumaran, lost his final appeal against a death sentence for smuggling heroin in 2005, the HRLC's Ben Schokman said that Australia must now implement legislation which will prevent similar incidents.
In April 2005, nine Australian citizens were arrested in Bali for drug smuggling after the Australian Federal Police (AFP) tipped off Indonesian authorities about the nine's activities. Sukumaran and fellow smuggler Andrew Chan were convicted and sentenced to death by firing squad.
The AFP's actions occurred despite the fact that Australia is a signatory to the second optional protocol to the International Covenant on Civil and Political Rights (ICCPR) which is aimed at the abolition of the death penalty. The protocol requires Australia to take all necessary measures to abolish the death penalty within its jurisdiction, as well as take all necessary measures within its control to avoid the potential of the death penalty being applied to Australian citizens.
"The concern is that the provisions under Australia's mutual assistance legislation weren't sufficient to prevent Australian agencies from providing that information, which then led to the imposition of the death penalty," said Schokman. "So there are concerns that Australia is in breach of its obligations under the second optional protocol to the ICCPR."
Since the incident, a proposed bill has been drafted which would amend both the Mutual Assistance in Criminal Matters Act 1987 and the Extradition Act 1988, though it is yet to be passed.
"It is proposed that providing mutual assistance in circumstances where there are substantial grounds to believe that the death penalty may be imposed would be prohibited under that act," said Schokman. "What Australia needs to do, in order to comply with international legal obligations, is to ensure that it enshrines those protections in domestic law so that any Australian agencies, including the AFP, would not be able to provide information in similar circumstances to what happened with the Bali Nine."
The AFP implemented guidelines in 2009, at the request of the Attorney-General, which are designed to ensure that such an incident would not happen again, but Schokman said these are insufficient.
"The reason that you want it enshrined in law is that obviously those protections are then very hard to change or repeal," he said. "If you have guidelines, they are just guidelines and there are no ramifications if they are not complied with."
Indonesia's Supreme Court has now confirmed that Sukumaran and Chan will face the firing squad unless Susilo Bambang Yudhoyono, the Indonesian president, grants clemency.
The Law Council of Australia today supported the men's cause, with president Alexander Ward saying he hopes they will be granted clemency.
"We respect the Indonesian laws and its sovereignty but we hope [they] will have their sentences commuted particularly in light of their age, demonstrable repentance and commendable attempts to rehabilitate themselves and make a valuable contribution to the prison community," he said in a statement.
"It is our position that no person should be subjected to the death penalty, irrespective of their nationality, the nature of the crime they are alleged to have committed or the time and place of its alleged commission ... It has no proven impact on general deterrence and it denies the young and foolish the opportunity to turn their lives around and make a positive contribution to the community.
"While we respect the courts ruling, we hope mercy will prevail."