Where does Australia stand on the death penalty according to the Joint Standing Committee on Foreign Affairs/ Defence and Trade?

Transnational and International criminal law co-operation International Police death penalty issuesThe Joint Standing Committee on Foreign Affairs Defence and Trade released its report for its inquiry into Australia’s advocacy for the abolition of the death penalty on 5 May 2016.

To improve Australia’s advocacy efforts internationally the report recommended the Australian Government develop fund and implement a whole-of-government strategy that focuses efforts on retentionist countries in the Indo-Pacific region as well as the United States of America.

Chair of the Human Rights Sub-Committee, the Hon Philip Ruddock MP said:

“There is no place for the death penalty in the modern world. Encouraging more countries to abolish the death penalty would be a central aim of the strategy and, among countries retaining the death penalty for the time being, Australia should seek to reduce numbers of executions and reduce the range of crimes for which the death penalty can be imposed”

“Australia should take a special interest in death penalty cases where there are apparent shortcomings of due process or when the accused is a juvenile, pregnant, or likely suffering a mental illness” he said.

As part of its inquiry the Joint Standing Committee received submissions from numerous bodies including the Australian Federal Police.

What submission did the Australian Federal Police make to the inquiry into the death penalty?

The Australian Federal Police made a lengthy submission in September 2015 which is summarized below.

Introduction

i. What is the AFP’s Role?

The AFP’s role includes responding to transnational crime, which mostly occurs in foreign countries. The real-time exchange of tactical police information is viewed as an essential component of the AFP’s ability to combat transnational crime.

The sharing of information involves working closely with countries that have different legal systems to Australia and criminal penalties that can be more severe than ours.

It is not the role of the AFP to advocate to other countries or their law enforcement agencies about the abolition of the death penalty.

The AFP operates strictly under the Australian Federal Police National Guideline on International Police-to-Police Assistance in Death Penalty Matters.

ii. What are our international obligations under treaty?

All cooperation between the AFP and foreign jurisdictions is in accordance with Australia’s obligations under international treaties combating drug trafficking and transnational crime. These include:

1. The United Nations Convention against Transnational Organised Crime
2. The Single Convention on Narcotic Drugs
3. The United Nations Conventions against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, and
4. Second Optional Protocol to the International Covenant on Civil and Political Rights

Working with our international allies is an integral component in the AFP’s ability to combat transnational crime.

What is the AFP’s Response to the Terms of Reference?

The Joint Standing Committee on Foreign Affairs, Defence and Trade will inquire into and report on Australia’s efforts to advocate for worldwide abolition of the death penalty, having particular regard to:
1. Reviewing how Australia currently engages internationally to promote the abolition of the death penalty
2. Further steps Australia could take to advocate for worldwide abolition, including:
a) Engaging with international institutions and like-minded countries
b) Cooperating with NGOs
c) Bilateral engagements and other diplomatic activities

What is the AFP’s role as the Australian Government’s Primary Law Enforcement Agency?

i. Keeping Australia and Australians Safe

The AFP has a mandate to prevent transnational crime. The methodology adopted to prevent this is to open the communication channels with our international allies (even those with the death penalty) in order to prevent transnational crime from reaching Australian shores.
Since 2012, the AFP has seized nearly ten tonnes of amphetamines, two tonnes of cocaine, and one tonne of heroin, as well as vast quantities of cannabis, precursors and sedatives.

These seizures add up to a combined street value of $13.114 billion and have resulted in the successful disruption of multiple international drug syndicates including the arrest and prosecution of suspects.

ii. The AFP Operating Environment Offshore

In combatting transnational crime, the AFP operates in a complex international environment characterised by vastly differing legal systems. All of the AFP’s offshore operational activities are undertaken with the consent of the foreign jurisdiction, in accordance with the local laws and procedures, and in accordance with Australian law.

The AFP’s involvement in preventing transnational crime largely involves drug trafficking, of which the death penalty is a sentence in certain jurisdictions, and where the AFP provides cooperation.

Working with foreign law enforcement agencies is imperative in the AFP’s objectives of preventing transnational crime.

Through such consultation, the AFP has prevented offences including terrorism, child exploitation, human trafficking, people smuggling and the importation of illicit drugs in Australia.

What Framework Governs the AFP in Death Penalty Situations in transnational/international criminal cases?

The Australian approach in relation to the exchange of information with foreign law enforcement agencies on death penalty matters is outlined in the Australian Federal Police National Guideline on International Police-to-Police Assistance in Death Penalty Situations

i. Ministerial Direction

The AFP is governed by Ministerial Direction, referred to in the Australian Federal Police Act 1979 (‘The Act’). Under the Act the commissioner has responsibility for the general administration of the AFP and the control of its operations. The responsible Minister may give written direction to the AFP Commissioner with respect to the general policy to be pursued by the AFP in the performance of its functions, after consulting the Secretary of the Attorney-General’s Department.

ii. Australian Federal Police National Guideline on International Police-to-Police Assistance in Death Penalty Situations (2009-Current)

The current Australian Federal Police National Guideline on International Police-to-Police Assistance in Death Penalty Situations is consistent with Australia’s international obligations. The Guideline requires consideration of a range of factors relevant to the decision making process in death penalty matters and ensures a structured and transparent process. It also applies only to the provision of assistance, including the sharing of information, which can be provided to police. The Guideline also outlines, where assistance is to be provided, that specific factors must be considered by a member of the AFP Executive before approving assistance prior to arrest, charge, detention or conviction.

The AFP will seek assurances to foreign law enforcement partners that the death penalty will not be sought prior to the provision of information.

Under the Guideline, the AFP is required to consider certain factors before providing information to foreign law enforcement agencies if it is aware the provision of information is likely to result in the prosecution of an identified person for an offence carrying the death penalty. Ministerial approval is required in any case in which a person has been arrested or detained for, charged with, or convicted of an offence which carries the death penalty

AFP Practical Guide on International Police-to-Police Assistance in Death Penalty Charge Situations (1993-2009)

In 2006, a review of the AFP Practical Guide was conducted by Justice Finn of the Federal Court. The review recommended a review of the then AFP processes in relation to the death penalty in order to strike a better balance between justice outcomes and the AFP’s responsibility to protect the community from criminal activities.

Under this Guideline, AFP provided assistance in the ‘pre-charge’ process in prosecuting Bali 9 members Andrew Chan and Myuran Sukamaran in 2005.

Exchange of Information requests with foreign law enforcement in transnational criminal cases

The below tables identify the actual number of requests for information approved both internally and by the Minister in potential death penalty matters from international law enforcement agencies

Table 1: AFP approved information sharing in potential death penalty matters

Year

Total Requests

Approved

Not Approved

2010

120

107

13

2011

90

84

6

2012

94

83

11

2013

50

47

3

2014

92

90

2

Table 2: Ministerial approved information sharing potential death penalty matters

Year

Total Requests

Approved

Not Approved

2010

1

1

0

2011

1

1

0

2012

8

7

0

2013

3

3

0

2014

11

11

0

 

Cooperation with Law Enforcement Partners in transnational criminal cases

i. AFP International Network

The AFP’s International Network has approximately 100 members deployed across 30 countries. AFP members work on a range of bilateral and multilateral investigations in close partnership with host country law enforcement agencies. The relationship is reciprocal, which enables the AFP to detect and prevent crime through the exchanging of criminal intelligence and information

ii. Information Sharing

The AFP also shares information about contemporary best practice strategies with its international partners. This information exchange occurs through formal and informal relationships, person-to-person exchanges through AFP members deployed offshore and senior official visits to and from Australia.
iii. AFP Police-to-Police Relationships

The AFP has longstanding cooperative relationships with many international law enforcement partners. This cooperation focuses on all forms of transnational crime in a manner consistent with the AFP’s legal obligations and our respective national laws. Law enforcement agencies routinely share information with their foreign counterparts. It can create strong relationships based on the mutual objectives of crime prevention and disruption, even where the political ideologies of two countries may hinder diplomatic cooperation.

An example of this would be the AFP’s relationship with all facets of the United States Law Enforcement (even though Florida still has the death penalty for drug related crimes). The AFP also cooperates with partners in the Asia Pacific Region (of which many countries have the death penalty).

The AFP credits these relationships with its longstanding operational results in preventing transnational crime. For example, between 2012 – 2015 the AFP seized 20.3 tonnes of illicit substances. In early 2015, an international investigation involving AFP and Thai law enforcement agencies resulted in the seizure of 140 kilograms of heroin that was destined for Australia (which had a potential street value of up to $95 million)

Concluding

In combating transnational crime and protecting the Australian community, the AFP must engage offshore in order to reduce the impacts to Australia and Australians. The AFP submits that it cannot limit is cooperation just to countries that have a judicial system or similar policies to that of Australia.

Collaboration of this kind has proved to be successful in combatting transnational crime. As highlighted within the submission the AFP must continue to work effectively with international partners around the globe, in order to minimise the impact of criminal activity on Australia and its people.

The AFP submits that the governance framework has evolved over time to meet the changing environment and government expectations. The framework complements legal obligations ad Australia’s strong opposition to the death penalty and is considered to be robust and appropriate.

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.

Nyman Gibson Miralis is Australia’s leading transnational/international criminal law firm.