Federal Member for Fairfax

Media release

Policing relies on trust and community support. In considering this bill I will set out for the House the true facts and circumstances of the Bali 9.

We can only imagine how the father of one of the Bali 9 is feeling following his decision to do the right thing based on the legal advice of his barrister, to approach the Australian Federal Police and report breeches of section 541 of the Queensland criminal code and breeches of section 11.5 of the Commonwealth Criminal Code 1995.

In terms of S 541 of the Criminal Code (Qld), a conspiracy to commit a crime carries a term of imprisonment of seven years.

Why then did the AFP fail to carry out its duty to arrest Scott Rush and instead allow him to leave Australian Jurisdiction knowing he was likely to face the death penalty in Indonesia? Why did the Indonesian authorities not allow the Bali 9 to be arrested in Australia? Australian Courts refuse to extradite a person to face the death penalty in a foreign land. Why should public servants and politicians not be held accountable to the same standard as Australian courts and Australian Justice?

Passing this bill will hold them to that standard and protect and defend the lives of all Australians. The Government and Opposition must allow a free vote on this bill, Australians demand it.

It seems to me that AFP officers committed a serious maleficence when they failed to carry out their duty and arrest the Bali 9 in Australia, when they knew they had committed a serious crime in Australia.

I seek leave of the house to table copies of the letters written by the AFP to the Indonesian National Police on 8th April 2005 and 12th April 2005 which, contrary to the information given in the course of the recent AFP media presentation, demonstrate that the AFP was aware, no later than 12th April 2005, of the identity of eight of the Bali 9.

Contrary to what was said in the course of the AFP press conference, they knew that the drug involved was heroin. They had detailed particulars of how the drug was to be carried and the part that was to be played, in the operation, by Chan.

Multiple Legal advice confirms the AFP had sufficient evidence to arrest Scott Rush on a charge of conspiracy prior to his leaving Australia. The AFP officers who failed to take such action should, in the circumstances, resign as officers of the AFP. They have destroyed the trust the Australian public had in the AFP to act honourably at all times, to put the life of Australians ahead of any other matter and uphold Australian Law in Australia.

The AFP didn’t act honourably when acting on information provided by Scott Rushes father.

The AFP letter sought the cooperation of the Indonesian Authorities with a view to allowing all eight of the couriers to return to Australia, subjecting the identified eight to Australian law. Indonesian Law enforcement authorities had no regard for the AFPs plan and were more interested in arresting them in Indonesia. Was it a fight over promotions? One wonders how the AFP can trust the Indonesian authorities in the future.

It is almost inexplicable that the paragraph numbered 4 was included in the AFP letter. One would have thought it might even have been included in error. Of course, the AFP made it clear that it was not included by way of error. A deliberate decision was made to expose all eight to the death penalty.

It would appear that Deputy Commissioner Phelan was uneasy about the decision not to enforce Australian Law in Australia. It was made clear during the AFP press conference that there was one AFP officer who was not prepared to participate in the decision. That was certainly recognition of the fact the AFP was aware of the likely fate of the participants in the operation.

If the AFP were acting in accordance with the principles that Australians hold dear, they would not ever have deliberately exposed any Australian citizens to the death penalty.

The assertions made by the AFP that they would act again as they did in 2005 would indicate that legislation is required to ensure the AFP firstly carries its duty, under Australian Law, and arrests people who have broken the Law in Australia and not allow them to leave Australia as they did on this occasion and secondly, to ensure the Law carries sanctions if they act contrary to Australia’s position, as they did in this case, and expose Australian Citizens to the death penalty.

Since 1973 and the passage of the Death Penalty Abolition Act 1973 (Cth), the death penalty has not applied in respect of offences under the law of the Commonwealth and Territories. Similar State legislation has outlawed the practice in the remaining Australian jurisdictions.

On 11 March 2010, with bipartisan support, the Commonwealth Parliament passed the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act. This Act amends the Death Penalty Abolition Act 1973 (Cth) to extend the current Commonwealth prohibition on the death penalty to all States and Territories. This forecloses the possibility of any individual State jurisdiction reintroducing the death penalty.

On 2 October 1990, Australia confirmed, at an international level, its opposition to the death penalty by ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty. The Protocol entered into force in international law on 11 July 1991.

More recently, on 19 December 2007, Australia sponsored and voted in favour of a landmark United Nations General Assembly resolution which called for an immediate moratorium on executions as a first step towards the universal abolition of the death penalty, more than half the General Assembly was prepared to vote in favour.

Faced with the prospect of the execution of some of our own citizens abroad, the Australian community has increasingly been forced to grapple with the question: what does it mean to be opposed to the death penalty in a region where our neighbours and allies continue to shoot and hang people?

Questions have been raised, for example, about the AFP Practical Guide on international police-to-police assistance in potential death penalty situations which allows the AFP to provided assistance to foreign law enforcement agencies in death penalty cases up until the point that a person is detained or charges are laid, and even beyond that point with Ministerial approval. Is it consistent with Australia’s opposition to the death penalty to allow the AFP to work cooperatively with foreign law enforcement agencies in the investigation of offences which carry the death penalty – knowing that the provision of that assistance and information may ultimately lead to charge, conviction and eventually execution of an Australian citizen?

Questions have also been raised about whether the Mutual Assistance Act, should, as it currently does, allow the Attorney General a broad discretion to authorise the provision of mutual assistance in death penalty cases if he or she is satisfied that “special circumstances” exist. The term “special circumstances” is not defined in the Act.

Both sides of politics have provided an inconsistent and equivocal approach to the provision of agency-to-agency assistance in death penalty cases. In its current form, the new Guide perpetuates rather than remedies this anomaly. Only a Legislative approach will put the matter beyond question, Guidelines can change and Australians expect more.