The Joint Standing Committee on Foreign Affairs Defence and Trade recommendations concerning the transnational co operation in death penalty cases involving the Australian Federal Police

How did the Committee respond to the submission by the AFP concerning transnational criminal co operation?Transnational and International criminal law co-operation International Police death penalty issues

The Committee acknowledged community concerns regarding the Australian Federal Police’s practices of sharing information with foreign law enforcement bodies in cases which may lead to the death penalty being imposed however stated that the need to combat transnational crime cannot override the need to uphold Australia’s human rights obligations and avoid exposing people to the death penalty.
Australia has an obligation to not only protect Australian citizens from exposure, but to avoid exposing foreign nationals to the death penalty where it is in a position to do so.

The Committee acknowledged that the AFP’s current guidelines and policies do not prohibit it from exposing people to the death penalty in foreign jurisdictions, and that it retains discretion in these matters.

However, the Committee believes the AFP take this issue seriously, and is encouraged to see the AFP is currently reviewing the Australian Federal Police National Guideline on International Police-to-Police Assistance in Death Penalty Situations.

The Committee recommended that the AFP strengthen the Guideline by ensuring that it:
articulates as its primary aim preventing the exposure of persons to arrest or charge in retentionist countries for crimes that attract the death penalty;

  • explicitly applies to all persons, not just Australian citizens;
  • includes a requirement that the AFP seek assurances from foreign law enforcement bodies that the death penalty will not be sought or applied if information were to be provided; and
  • includes a provision for cases where there is a ‘high risk’ of exposure to the death penalty to be directed to the relevant Minister for decision.

If these amendments were to be made, the Committee believes that amendments to the Australian Federal Police Act 1979 (Cth) may not be necessary .

In light of UN statements that drug crimes, such as trafficking, do not constitute ‘most serious crimes’ for which the death penalty may be applied under international law, the Committee encouraged the AFP to work to reduce information-sharing in relation to drug crimes where exposure to the death penalty is a genuine risk.

The Committee accepted assurances that recent Australian aid for foreign law enforcement projects has not led to executions. However, the Committee encourages relevant Government agencies to be vigilant in ensuring that Australian assistance for overseas law enforcement projects does not directly or indirectly expose people to the threat of execution.

The Committee noted the current Guideline does apply to all persons, but that nationality is a factor taken into consideration when deciding whether or not to provide information. This distinction should be removed.

The Committee acknowledged that the worldwide problems of drug abuse and drug crime cannot be solved by executing drug dealers and drug traffickers.

As such, the Committee urged that retentionist countries be encouraged to adopt health-based and education-focussed harm reduction approaches to reduce the demand for illicit drugs.

The Committee was encouraged that the Australian representatives to the United Nations Special Session (UNGASS) on the world drug problem, held in April 2016, strongly communicated Australia’s stance against the death penalty.
The Committee encouraged Australian agencies, diplomats and parliamentarians to identify further opportunities to promote harm reduction approaches to dealing with drug crime, and lobby against the application of the death penalty for drug crimes.

The Committee was concerned about the issue of human trafficking in relation to the application of the death penalty to drug runners, or ‘drug mules’.

The Committee noted recent developments in the United Kingdom, which has introduced the Modern Slavery Act 2015 (UK) to protect exploited persons, including providing a defence for those compelled to commit a crime under the conditions of slavery.

The Committee encouraged the AFP to be especially vigilant in seeking to protect those who fall into this category from exposure to the death penalty.

What did the Committee formally recommend?

The Committee recommended that the Australian Federal Police (AFP) National Guideline on International Police-to-Police Assistance in Death Penalty Situations (the Guideline) be amended to include a stronger focus on preventing exposure of all persons to the risk of the death penalty, by:

  • articulating as its primary aim preventing the exposure of persons to arrest or charge in retentionist countries for crimes that are likely to attract the death penalty;
  • explicitly applying the Guideline to all persons, not just Australian citizens;
  • including a requirement that the AFP seek assurances from foreign law enforcement bodies that the death penalty will not be sought or applied if information is provided;
  • including a provision that, in cases where the AFP deems that there is a ‘high risk’ of exposure to the death penalty, such cases be directed to the Minister for decision; and
  • articulating the criteria used by the AFP to determine whether requests are ranked ‘high’, ‘medium’ or ‘low’ risk.

Recommendation 3

In light of the United Nations’ position that drug crimes, including drug trafficking, do not constitute ‘most serious crimes’ for which the death penalty may be applied under international law, the Committee recommends that the Australian Federal Police (AFP) obtain guarantees that prosecutors in partner countries will not seek to apply the death penalty before providing information in relation these crimes. In situations where such guarantees cannot be obtained, the AFP should withhold provision of information that may be relevant to the cases concerned.

How can Nyman Gibson Miralis help you?

Nyman Gibson Miralis has expertise in transnational criminal law matters where the sharing of information between Australian authorities and foreign law enforcement agencies may exposes persons to the death penalty, double jeopardy, multiple criminal proceedings and  asset forfeiture in several jurisdictions all at once.

The potential for this to occur is increasing as there are very few protective protocols and policies in place regulating how the States and Commonwealth should treat and respond to such requests or pursuant to what powers and regulations they should share information with foreign law enforcement and on what conditions.

The lack of clarity and regulatory oversight has the potential to severely undermine  the fair trial principles underpinning the criminal justice process including breaching procedural fairness, depriving persons of the ability to properly prepare their defence  and in some instances “jurisdictional shopping”, so that person are tried in a jurisdiction where the penalties may be most severe.

Nyman Gibson Miralis has developed expertise in working internationally to protect the rights of those who are exposed to punishment both in Australia and other jurisdictions and are able to advise on the most appropriate legal strategy to ensure that due process is followed in accordance with the rule of law, including the observance of human rights.

Transnational/international criminal law is complex and requires the assistance of lawyers skilled both in its practice and procedure and unique dynamics.