No more 'Bali 9' cases, and extraditions to be monitored

Article posted on Sunday 29 June 2008

An Australian Parliamentary Committee is proposing sweeping changes to previous laissez-faire policies which expose Ausralians to the death penalty overseas, and also ignore what happens to people we extradite to other countries. Civil Liberties Australia is responsible for both these proposed positive changes to Australian Government policy.

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CLA’s proposals adopted by Parliamentary Joint Committee: no more ‘Bali 9’ cases

‘Government should prevent…exposing an Australian citizen to the death penalty’,

and

‘Government should monitor status/rights of extradited people’

Report by CLA President, Dr Kristine Klugman

An Australian Parliamentary Committee has adopted sweeping changes recommended by Civil Liberties Australia to previous laissez-faire government policies so as to:

not expose Australians to the death penalty overseas, and
not ignore what happens to people we extradite to other countries

Civil Liberties Australia submissions to the Joint Standing Committee on Treaties (JSCOT) are responsible for both these positive changes to Australian Government policy.

The most outstanding outcome from the changes would be preventing a reoccurrence of the ‘Bali 9’ situation. That is where the Australian Federal Police ‘shopped’ nine Australians – three of whom remain on death row – to Indonesian authorities for drug trafficking when the AFP could have waited, and arrested and charged the nine in Australia.

In a stunning turnaround of policy under the Howard Government, JSCOT has come down firmly on the side of protecting Australian lives:

The Committee recommends that the Parliamentary Joint Committee on Intelligence and Security be asked to undertake a general review of Australian policy and procedures concerning police-to-police cooperation and other information exchanges, including intelligence sharing arrangements, with a view to developing new instructions to regulate police-to-police and other assistance arrangements not governed by agreements at the treaty level. The instructions should prevent the exchange of information with another country if doing so would expose an Australian citizen to the death penalty. (underline added)

All Australian civil liberties and human rights groups have been campaigning for just such instructions since immediately after the arrest of the Bali 9. They have been fiercely resisted by the AFP , and were resisted by Howard ministers.

CLA’s submission to JSCOT which tipped the balance to the new, human rights-oriented approach was the second time in 18 months CLA had appeared before JSCOT campaigning on the same issue. Now, however, JSCOT has a new chair, Kelvin Thomson, and a new human rights-friendly approach, much to the credit of new MHR for Fremantle, Melissa Parke, and several other 2008 committee members.

In the second major victory for common sense and meeting Australia’s moral obligations, JSCOT has also adopted Civil Liberties Australia proposals to check on people we extradite overseas.

The change in policy will guarantee we monitor the status, treatment and health of people Australia sends to other countries.

Currently, Australia acts like Pontius Pilate, extraditing people but undertaking no formal checking, follow-up or monitoring of what happens to them.

“These are two major ‘wins’ in ensuring Australia is more civil liberties and human rights friendly,” CLA CEO Bill Rowlings said. “The nine Australians who were originally all under threat of the death penalty should never have been arrested in Bali because the AFP had an option to arrest them in Australia.

“We believe the Minister responsible must issue the AFP with detailed instructions so that no other ‘Bali 9’ case can ever occur again, where Australians are put under a death sentence because of the actions of our national police, who are sworn to protect Australian lives.

“CLA is delighted that such an influential committee as JSCOT has adopted our proposals, and asked for a change in government policy.”

He said the change to extradition procedures was also an important step in safeguarding the liberties and rights of Australians, and people for whom Australia had a responsibility.

“In terms of extradition to other countries, basically until now we have washed our hands of people, and left them to unknown fates,” Mr Rowlings said. “CLA raised what was happening in our submission to parliament, and they listened. The result shows how parliamentary consultation processes can produce much better outcomes.”

He congratulated the members of the Joint Standing Committee On Treaties (JSCOT) for being flexibly-minded enough to adopt CLA’s suggestions, and to recommend:

· making future extradition treaties require annual reporting to Australia, by the country to which someone has been extradited, on his/her status and well-being;

· that the Australian Government develops and implements formal monitoring by the Department of Foreign Affairs and Trade (DFAT) of each extradition; and

· that the Attorney-General’s Department and DFAT provide a comprehensive rundown in their annual reports on extraditions in general during the year, and specifically on each person’s outcome: trial, conditions of detention, and health.

JSCOT Report No. 91, tabled in Parliament on 26 June 2008, says, in Chapters 2 and 3:

‘Bali 9’

Police-to-police cooperation and other information exchanges

3.15 The Committee is aware that mutual assistance in criminal matters is often confused with assistance provided under police-to-police cooperation arrangements. Mutual assistance arrangements allow governments to make requests to another government to exercise coercive powers to obtain evidence or information for the purposes of an investigation or a prosecution. There are also a range of other agency-to-agency relationships, which are usually done in the form of a memorandum of understanding for the essentially voluntary exchange of information.[1]

3.16 The Committee has previously expressed concern that investigations for some crimes in particular countries can only result in a limited number of outcomes, for example, successful drug trafficking investigations are very likely to result in the death penalty in particular countries.[2]

3.17 Australia may attach conditions to the use of information provided through police-to-police agreements, however, the Committee understands from evidence received in earlier inquiries that this is not normal practice.[3]

3.18 In evidence to the Committee, Civil Liberties Australia expressed its concerns and noted previous comments by the Committee in relation to this issue:

In relation to intelligence and data exchange, we wish to revisit our continuing contention that the AFP should be formally restrained by words in this type of treaty and/or by formal instruction from the minister. We believe the AFP should not be permitted to pass on intelligence against Australian citizens which might result in their being subjected to the death penalty in a foreign nation if the intelligence in question or other information available to the AFP means that the Australian citizen could be charged in Australia with a similar or related offence. We believe that JSCOT should require words to be drafted so that future treaties and AFP guidelines reflect JSCOT and CLA’s concerns.[4]

3.19 These issues may arise in the context of police-to-police relationships and in relation to other intelligence sharing arrangements. In this regard it also should be noted that Australia has concluded memoranda of understanding on cooperation on counter-terrorism activities with thirteen countries: Indonesia, the Philippines, Malaysia, Cambodia, Thailand, Brunei, Fiji, Papua New Guinea, East Timor, India, Pakistan, Afghanistan and Turkey. The texts of these memoranda of understanding are all security classified and not in the public domain.[5]

3.20 While this is an issue separate from consideration of the terms of the Mutual Assistance Treaty with the UAE, the Committee remains concerned that information shared lawfully through police-to-police assistance or other intelligence and security cooperation arrangements may result in the imposition of the death penalty.

3.21 After careful consideration, and reflecting on this Committee’s predecessors’ inquiries relating to Mutual Assistance and other arrangements (See Reports 79, 84 and 87), the Committee has concluded that there should be a general review of Australian policy and procedures concerning police-to-police cooperation and other information exchanges, including intelligence sharing arrangements, with a view to developing new instructions to regulate police-to-police and other assistance arrangements not governed by agreements at the treaty level. The instructions should prevent the exchange of information with another country if doing so would expose an Australian citizen to the death penalty.

3.22 In view of the agencies and issues involved, a review of the current policy and procedures would appropriately be undertaken by the Parliamentary Joint Committee on Intelligence and Security.

Recommendation 6

Extradition:

Australia’s on-going responsibility towards extradited persons

2.24 CLA raised concerns in relation to the lack of formal monitoring of extradited persons after they have been transferred to the requesting country:

There is no responsibility on anyone to do anything. Nowhere in the agreement does it say that there is any reporting back, it does not appear to be an [Attorney-General’s Department] responsibility to check that something has happened and we think that that is quite important.[6]

2.25 The Attorney-General’s Department confirmed that there is currently no formal monitoring system for extradited persons:

When it comes to extradition of Australian nationals, Australia has consular responsibilities and has the ability–-and in practice it does this—to follow up the situation of the person who is being returned. However, when you have a circumstance whereby someone might be travelling through Australia and is sought for extradition, say, from the country in which they are a citizen, we do not have a mechanism in which we actually continue to check the prison conditions in which the person is being kept or continue to check on the processes that have been undertaken. In effect, Australia accepts the undertaking of the relevant country and that is where it stands.

2.26 The Committee is seriously concerned about the lack of a formal system for monitoring the trial status and health of extradited persons and the conditions of the detention facility in which they are held. Although an extradited Australian citizen may be monitored through the Australian consular system, there is no system in place to monitor the fate of foreign nationals (including permanent residents of Australia) who are extradited from Australia. At present there is no system to monitor whether such persons are dealt with in accordance with treaty obligations, whether they may be subjected to additional charges and criminal proceedings, or indeed whether they might be extradited or otherwise handed over to another country.[8]

2.27 CLA makes the point that it is somewhat naïve to accept assurances that a country to which a person has been extradited will not be extradited to a third country.[9]

2.28 Australia currently has 35 extradition treaties of which 31 are based on the ‘no evidence’ model. It would be prudent to monitor how these treaties operate in practice.[10]

2.29 Australia has a moral obligation to protect the human rights of extradited persons beyond simply accepting the undertakings of countries making extradition requests. A formal monitoring procedure should be established to ensure that Australia is not party, directly or indirectly, to any injustice or abuse of the human rights of persons it hasextradited.

The relevant recommendations of JSCOT to the Australian Parliament, based on CLA’s proposals, are:

Recommendation 3

That the Australian Government develop and implement formal monitoring arrangements for Australia’s bilateral extradition treaties which include the following elements:

· the Attorney-General’s Department informs the Department of Foreign Affairs and Trade of each extradition, including the terms of the relevant extradition agreement and any special conditions applying to the case.

· The Department of Foreign Affairs and Trade would be expected to formally monitor all extradited Australians through the consular network.

· In the event that a foreign national is extradited to their country of citizenship, the extradition should be made on the understanding that the Australian Government will be informed through its diplomatic representatives of the outcome of the prosecution and the ongoing status of the person while in custody as a result of a conviction. The Australian consular network would be expected to monitor and report on the condition of the extradited person until they had served their sentence and were released.

· In the event that a foreign national is extradited to a third country, the extradited person's country of citizenship should be informed and asked to monitor that person's trial status and health and the conditions of the detention facility in which they are held and report to the Australian Government if it has the capacity and is willing to do so. In the event that an extradited person's country of citizenship does not have the capacity to monitor the extradited person or is not willing to do so, then the Australian Government should monitor that person's trial status and health and the conditions of the detention facility in which they are held through Australia's consular network until that person is acquitted or, if convicted and imprisoned, their sentence is served, they are released and leave the country.

Recommendation 4

The Committee recommends that the Attorney-General’s Department and/or the Department of Foreign Affairs and Trade include in their annual report to Parliament the following information concerning the operation of Australia’s extradition agreements:

· the number of extradition requests made, granted and refused including the countries making the requests and the alleged offences involved;

· whether any waivers to provisions in an extradition treaty have been sought by any country and, if so, whether they were granted;

· the number of persons extradited (Australian citizens, permanent residents of Australia, foreign nationals); and

· whether any breaches of bilateral extradition agreements have been noted by Australian authorities and what action was taken.

Also, in respect of each extradited person the following details should be reported:

· their name, nationality and the country to which they have been extradited;

· the person’s trial status, ie whether they have been tried and sentenced, and the period of detention prior to trial;

· the means of monitoring the trial status and health of extradited persons and the conditions of the detention facilities in which they are held, i.e. through the Australian consular network or by some other means; and

· the outcome of the trial, if applicable, including convictions and sentencing.

The authors of the CLA submission were CLA member Juliette Duong, Director/Websmaster Lance Williamson and CEO Bill Rowlings.

Mr Williamson and Mr Rowlings also appeared before the Joint Standing Committee On Treaties

CLA Civil Liberties Australia A04043

Box 7438 Fisher ACT 2611 Australia

Email: secretary@cla.asn.au

Web: www.cla.asn.au

[1] JSCOT Report 91, p.23.

[2] JSCOT Report 91, p.23.

[3] JSCOT Report 91, p. 24.

[4] Mr Bill Rowlings, Transcript of Evidence, 8 May 2008, pp. 3-4.

[5] See http://www.dfat.gov.au/globalissues/terrorism.html and answer to Question on Notice 1813, 10 August 2005, House of Reps Hansard p. 256.

[6] Mr Bill Rowlings, Transcript of Evidence, 8 May 2008, p. 5.

[7] Mr Steven Marshall, Transcript of Evidence, 8 May 2008, p. 13.

[8] Mr Bill Rowlings Transcript of Evidence, 8 May 2008, p. 6.

[9] CLA, Submission No. 4.1, p. 2.

[10] CLA, Submission No. 4.1, p. 1.