As we reflect on the fate of the Bali 9 ringleaders today, it is timely to review our national position in relation to international police cooperation. Could this happen again? Australia has imposed clear legal limits on mutual assistance in death penalty cases – once a person is charged for an offence carrying the death penalty - cooperation (such as the provision of assistance and evidence) between our legal systems is not possible without diplomatic assurances that the death penalty will not be applied.



The period before charge however is more complex, and police-to-police cooperation is not restricted, even in cases which might ultimately end in the suspect facing a firing squad. In 2006, Federal Court Judge, Justice Paul Finn, exposed this complexity in his review of the AFP policies and decisions relating to Scott Rush and three other Bali ‘mules’. Scott’s father, Lee Rush, had alerted the police to his son’s plans, and urged them to intervene before his son left for Bali. Although Justice Finn found that there were no legal avenues open to Rush to challenge the AFP decision not to intervene, he called upon the AFP Commissioner and Minister to assess the procedures and protocols relating to police-to-police cooperation in such cases.



After the Rush case, the AFP and the Attorney-General’s Department in 2009 developed a AFP National Guideline on International Police-to-Police Assistance in Death Penalty Situations. It is vitally important as a matter of public interest, that Australia has a consistent and principled position in these cases, which applies to Indonesia, or indeed, the US and China. Yet the National Guideline was intended only for internal AFP use, though is now publicly available having been obtained under the Freedom Of Information Act 1982 (Cth) Information Publication Scheme. The Guideline aims to ‘strengthen' international police cooperation – it does not however contain any presumption against cooperation in such cases, but rather merely a range of six ‘prescribed factors' that AFP Senior Management must consider before approving cooperation, including:



the purpose of providing the information and the reliability of that information

the seriousness of the suspected criminal activity

the nationality, age and personal circumstances of the person involved

the potential risks to the person, and other persons, in providing or not providing the information

Australia’s interest in promoting and securing cooperation from overseas agencies in combatting crime

the degree of risk to the person in providing the information, including the likelihood the death penalty will be imposed

The Guideline gives no indication about the relative weight of these factors – 'youth' presumably provides some serious ‘cause to pause’ but the other public interest factors weigh heavily in the other direction, including those related to the forensic value of the evidence, seriousness of the offences being investigated, and most significantly, Australia’s interest in 'strengthening police cooperation' which ultimately is the purpose of issuing this Guideline. In my view, the security rationale weighs too heavily against the human rights rationale, and the Guideline needs to be reviewed with input from senior police and human rights experts. The deaths this morning should provide us all with serious ‘cause to pause’ and think about our key values and the message we send to Australian police engaged in the global fight against crime.

