The Bali Nine (HSC SSCE Legal Studies): Revision Notes

Effectiveness of Responses

The Bali Nine case represents a crucial example of how Australia's legal system must balance two competing priorities: protecting Australian citizens abroad and combating transnational crime. This case highlights fundamental questions about the sanctity of life, the role of international law, and whether our legal responses are effective in practice.

Competing interests and key issues

The Bali Nine case forces us to confront several challenging legal and ethical questions:

Protection vs. cooperation: How do we balance protecting Australian citizens overseas with maintaining strong cooperative relationships with other countries in fighting transnational crime? This tension sits at the heart of the controversy surrounding the Australian Federal Police's (AFP) actions.

Sanctity of life: To what extent can international law, despite its clear statements on human rights, actually deliver certainty in protecting the right to life in practice? The case demonstrates the gap between legal principles and their real-world application.

Purpose of punishment: The case challenges us to consider what punishment is truly meant to achieve. Is it solely about retribution (making offenders pay for their crimes) and deterrence (discouraging others from committing similar offences)? Or should rehabilitation play a central role? Both Andrew Chan and Myuran Sukumaran were widely considered to be genuinely rehabilitated after $10$ years in prison, having transformed into decent, honourable young men who worked to help reform other prisoners. Yet this rehabilitation appeared to have no impact on their death sentences - raising serious questions about the justice system's priorities.

Consistency in policy: Can Australia credibly advocate for the abolition of the death penalty internationally if it is not consistent in its opposition to executions in all circumstances? The case exposes contradictions in Australia's approach, particularly when compared to its response to other death penalty cases in the region.

Australian-Indonesian cooperation

The AFP's controversial actions

From the early stages of the Bali Nine case, the AFP faced significant criticism for its role in facilitating the arrest of the nine Australians by Indonesian National Police (INP) in Bali.

What the AFP did: On $8$ and $12$ April $2005$, Paul Hunniford, the AFP's senior liaison officer in Bali, sent two letters to the INP. These letters handed over all key intelligence and evidence to their Indonesian counterparts. Critically, the AFP left it entirely up to the INP to decide whether to:

• Intercept and arrest the Bali Nine in Bali (where they would face Indonesia's harsh drug laws and potential death penalty), or
• Allow them to leave Bali so the AFP could arrest them upon arrival in Australia (where they would face Australian law without risk of execution)

The AFP claimed that the nature of international cooperation in fighting transnational crime demanded close collaboration between countries, and that they could not attach conditions to information sharing with their Indonesian partners.

Lawful but immoral?

Most legal commentators agree that the AFP's actions were lawful under domestic law. There are clear benefits to maintaining a strong relationship with Indonesia, including successful cooperation in foiling terrorist plots and addressing threats to both nations.

However, many argue that while the AFP may have acted lawfully, they did not act morally. By sharing information with the INP while knowing the death penalty was almost certain, the AFP arguably failed to meet Australia's obligations under international human rights law. This raises a fundamental question: should lawfulness be our only standard, or should moral considerations and human rights obligations guide police cooperation?

The death penalty

Rehabilitation and punishment

Journalist Cindy Wockner, co-author of Bali $9$: The Untold Story, interviewed Chan and Sukumaran extensively over many years in prison. She witnessed their genuine transformation firsthand, watching them become decent and honourable young men who worked every day to make amends for their crime. They knew they deserved to be in jail and accepted their punishment.

Wockner's perspective raises a critical question: if these men were genuinely rehabilitated and using their experience to help reform others and fight drug abuse, what purpose did their execution serve? By executing them, Indonesia lost what Wockner described as "its best chance yet to fight the scourge of drugs."

This case forces us to examine what we believe the criminal justice system should achieve. The traditional purposes of punishment are:

• Retribution: Making offenders pay for their wrongdoing
• Deterrence: Discouraging others from committing similar crimes
• Rehabilitation: Reforming offenders so they can contribute positively to society

Chan and Sukumaran's execution prioritised retribution and possibly deterrence, but completely disregarded rehabilitation - even though both men had clearly achieved it.

Australian law on the death penalty

Australia's position on capital punishment domestically is absolutely clear and has remained consistent for decades.

Historical background: In $1967$, Ronald Ryan became the last person executed in Australia. Six years later, the Death Penalty Abolition Act 1973 (Cth) was passed, stating definitively that 'a person is not liable to the punishment of death for any offence'.

Current situation: Today, no Australian jurisdiction uses the death penalty. In Parliament, there is bipartisan support (agreement between major political parties) for this position, with both major parties opposed to any reintroduction of capital punishment.

International law on the death penalty

The international legal position on capital punishment is more complex and less clear-cut than Australia's domestic law.

The International Covenant on Civil and Political Rights (ICCPR): This major human rights treaty does allow the death penalty, but only under strict limitations set out in Article $6.2$:

The Second Optional Protocol: However, the United Nations' true position becomes clear in the Second Optional Protocol of the ICCPR. Article $1$ states unequivocally:

1. No one within the jurisdiction of a State Party to the present Protocol shall be executed
2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction

This protocol represents a clear commitment to complete abolition.

Global trends: Numerous other international treaties and covenants also enshrine opposition to the death penalty. Significantly, the Rome Statute of 1998, which created the International Criminal Court, explicitly excludes the use of capital punishment - even for the most serious international crimes like genocide and crimes against humanity.

Tensions in international cooperation

The increase in transnational crime has led to steadily increasing cooperation between national police forces. This has resulted in many mutual assistance treaties between governments - formal agreements to help each other investigate and prosecute crimes that cross borders.

However, this has created tension between:

• The recognition of human rights in extradition processes (sending someone to another country to face charges)
• The practical need for cooperation when dealing with international crime

Currently, in extradition cases, the balance is tipping towards giving human rights the priority. Countries are increasingly able to resolve this tension by refusing to extradite individuals who might face the death penalty, or by requiring assurances that capital punishment will not be imposed.

Australia's policy on global death penalty abolition

The need for consistency

If Australia genuinely wants to work towards abolishing the death penalty in countries where large numbers of Australians travel for work or tourism, it must follow a consistent and long-term approach.

A compromised position: Australia's position regarding the Bali Nine was significantly undermined by its support for the execution of the Bali Bombers in $2008$. These men were responsible for terrorist attacks that killed many Australians, and at the time, Australian officials supported their execution. However, this created a serious inconsistency: how could Australia oppose the execution of the Bali Nine while supporting the execution of the Bali Bombers?

Indonesia as the key to regional change

In a $2002$ report for the Lowy Institute, Dr Dave McRae presented a compelling argument about Indonesia's central role in death penalty abolition in the South-East Asian region.

Indonesia's moderate position: Compared to countries like Malaysia and Singapore in the region, Indonesia is actually relatively moderate in its use of capital punishment. There are strong lobby groups within Indonesia both supporting and opposing the death penalty, and momentum could go either way - towards abolition or increased use.

The key factor: McRae identified one factor that could tip Indonesia towards abolition: there are many Indonesian nationals on death row in other countries, and the Indonesian Government has been working hard to oppose the imposition of capital punishment on its citizens. Indonesia could be persuaded by the argument that if it abolished the death penalty domestically, it would be in a much stronger position to plead for mercy for Indonesians facing execution elsewhere.

Benefits for Australia: According to McRae, abolition of the death penalty in Indonesia would:

• Contribute to the protection of Australians in Indonesia
• Minimize threats to relations between the two countries
• Build momentum towards death penalty abolition across the South-East Asian region

However, McRae emphasizes a critical requirement for this strategy to succeed:

Justice Michael Kirby's perspective

In $2003$, former High Court judge Justice Michael Kirby articulated a powerful philosophical position on the death penalty that captures why many believe it has no place in a civilized society:

Kirby's statement connects the death penalty to broader questions about what kind of society we want to be. He argues that:

• Human rights are founded on the inherent dignity of every human being
• When we deny human dignity through execution, we diminish our own humanity
• Capital punishment makes us part of the cycle of violence rather than rising above it
• The legal system should represent a rational, civilized alternative to violence
• Imposing the death penalty represents an admission that civilization has failed

This philosophical perspective challenges us to consider whether the death penalty is compatible with Australia's commitment to human rights and the rule of law.

Evaluating effectiveness

How effective has the law been in responding to the tensions raised by the Bali Nine case?

The case reveals significant challenges in balancing competing priorities:

Remember!