- International cooperation and the death penalty
- Formal government-to-government assistance and informal police cooperation in criminal matters where the death penalty might apply was raised across the evidence to the inquiry. Many stakeholders viewed the current situation as problematic, given Australia’s stance on the death penalty.
- This chapter touches on the types of international cooperation in criminal matters in which Australia takes part, and the legislation that guides that cooperation. It also looks at the evidence received regarding:
- The Australia Federal Police’s National Guideline on International Police-to-Police Assistance in Death Penalty Situations, and
- Police cooperation in drug related matters.
Categories of assistance provided in criminal matters
4.3The joint submission from the Attorney-General’s Department (AGD) and the Australian Federal Police (AFP) highlighted three forms of international cooperation:
- Mutual assistance – the process countries use to seek and provide formal government-to-government assistance in criminal investigations and prosecutions, including to obtain evidence in admissible form and to identify and recover proceeds of crime.
- Extradition – the formal government-to-government process by which one country apprehends and sends a person to another country for the purposes of a criminal prosecution or to serve a sentence in that other country.
- Police-to-police cooperation: where law enforcement agencies provide assistance or information at an agency to agency level. This can sometimes occur at the early stage of an investigation before any person is charged with an offence.
Australia’s Strategy for Abolition of the Death Penalty and cooperation in criminal matters
4.4In Australia’s Strategy for Abolition of the Death Penalty (the Strategy) it was articulated that government-to-government assistance or international police cooperation in death penalty matters is not considered.
4.5International criminal cooperation is governed by the Mutual Assistance in Criminal Matters Act 1987 (the Mutual Assistance Act), the Extradition Act 1988 (the Extradition Act), section 8 of the Australian Federal Police Act 1979 and the AFP National Guideline on International Police-to-Police Assistance in Death Penalty Situations (the AFP National Strategy), which set out the conditions under which Australia assists in international criminal matters.
4.6The Department of Foreign Affairs and Trade (DFAT) noted that the Strategy impacts on Australia’s cooperation with international law enforcement agencies in countries that retain the death penalty, with Australia unable to extradite individuals to countries where the offence under consideration is punishable by the death penalty. The exception to this may be:
…when the foreign government requesting assistance gives a credible and reliable diplomatic assurance stating that the death penalty will not be imposed or, if it is imposed, that it will not be carried out.
4.7While DFAT is primarily responsible for Australia’s advocacy regarding the abolition of the death penalty, other Australian Government departments and agencies work to ensure their international engagement aligns with Australia’s position on the death penalty. Australian agencies take measures to ensure that when cooperating with foreign governments, they do not expose persons to ‘a real risk of execution’. DFAT however acknowledged that:
Where, despite best endeavours, it is not possible to secure measures to remove the risk entirely, decisions on such measures may need ministerial-level consideration and approval, in consultation with DFAT and the Attorney-General’s Department.
4.8Mr Stephen Keim, Chair, Capital Punishment Justice Project (CPJP) and Patron, Julian Wagner Memorial Fund (JWMF) expressed the view that excluding police cooperation from the Strategy made it a DFAT Strategy and not a whole-of-government strategy. It was argued that:
It should not be able to be categorised as something that belongs to DFAT, and Defence and policing have nothing to do with it.... Even though DFAT is probably the best department to review it, develop it and add to it, it needs to be somehow embedded…. It really does need to be a whole-of-government policy and accepted through the whole of government as a whole-of-government policy.
4.9Excluding government-to-government assistance and police cooperation in the Strategy was argued as significant as often cooperation takes place in drug trafficking cases. Australia engages in police-to-police cooperation in countries like Myanmar, Indonesia and China, where drug trafficking can carry the death penalty.
4.10The New South Wales Council for Civil Liberties (NSWCCL) stated that the current Strategy needed to be revised to include a statement that government organisations, including the AFP, would not assist countries in situations that could result in the death penalty, unless guarantees are given. A revised Strategy should also include a statement that extradition will not be permitted to retentionist countries if it is possible the death penalty may apply.
International cooperation in criminal matters
4.11Recommendation 1 from the Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFADT) 2016 report, A world without the death penalty, Australia’s advocacy for the abolition of the death penalty (2016 Report), which was accepted by the Government, recommended that the AGD review its:
…current legislative arrangements for extradition and mutual assistance to ensure that they uphold Australia’s obligations as a signatory to the Second Optional Protocol to the International Covenant on Civil and Political Rights.
4.12Mr Tom Sharpe, Director, International Crime Treaties and Policy Section at AGD outlined that with regard to Recommendation 1, AGD had conducted the review, and it was found that the arrangements in place were in keeping with Australia’s obligations under the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). Mr Sharpe noted that processes are regularly reviewed to remain in line with Australia’s international obligations and its position on the death penalty.
4.13Mrs Susie Williamson-de Vries, Assistant Secretary, International Cooperation Unit at AGD affirmed that for both the AGD and the AFP, the potential imposition of the death penalty is an important consideration in whether cooperation in criminal matters takes place. While the possibility of the death penalty is considered, it is noted that cooperation is key to combatting various transnational crimes including ‘drug trafficking, money laundering, people smuggling, human trafficking and cybercrime’.
4.14Mr Kelly Mansfield, Acting Commander, International Engagement at the AFP also emphasised the importance of international crime cooperation in making sure that criminals do not escape justice. However, it was acknowledged that there were risks associated with cooperation, especially when working with retentionist countries.
4.15In their joint submission to the inquiry, AGD and the AFP admitted that death penalty risks can arise when engaging in international crime cooperation. The submission acknowledged that some of Australia’s important criminal cooperation partners maintained the death penalty as a criminal punishment. The countries noted included the United States of America (USA), Indonesia, Thailand, Vietnam, India, Malaysia, Singapore, China, the United Arab Emirates, Lebanon and Jordan. In giving evidence to the inquiry both the AGD and AFP noted the growing nature of international cooperation and that it was more frequent now than before.
4.16However, it was emphasised that death penalty risks came up infrequently in international crime cooperation matters, with the death penalty only applicable to the ‘most serious crimes’. Despite the rarity of it occurring, it was an issue that was taken seriously by agencies, noting the safeguards in legislation and the processes for cooperation that were in place.
4.17International crime cooperation was highlighted in many submissions as problematic, with the potential to expose persons to the risk of the death penalty and with the risk of undermining Australia’s reputation as a strong advocate for abolition.
4.18Mr Chris Hayes, Ambassador, Capital Punishment Justice Project (CPJP) told the Subcommittee he supported cooperation in sharing criminal intelligence information, but stressed that:
…it has to be on the basis that our law enforcement agencies are playing their role in our whole-of-government approach in terms of the universal position against the death penalty. Where we see it as an absolute benefit to be able to share information, we should be leaning on those jurisdictions to understand Australia's position. We need to use the issue of criminal intelligence exchange as part of our advocacy for the universal abolition of the death penalty. Just like members of parliament and our bureaucracy, the police should also be playing a role in that, within their level of cooperation with foreign jurisdictions.
4.19NSWCCL emphasised in its submission that the Australian Government should make sure that it ‘never again assists a foreign government in cases where the death penalty is a possible outcome’. Specifically, NSWCCL argued the need for stronger legislation that would prevent the AFP from sharing information with international partners that could result in the death penalty. They noted the importance of this type of legislation in cases where the civil liberties of individuals may have been compromised ‘by a lack of due process, such as closed trials and an absence of legal representation’.
Mutual assistance in criminal matters
4.20The Mutual Assistance Act sets out the mandatory and discretionary grounds upon which requests for assistance made to Australia can be refused. Subsection 8(1A), which applies to post-arrest cases where individuals have been arrested, charged or convicted of a crime, states that there is a mandatory ground for refusal. A foreign request for assistance will be refused if:
…the assistance relates to the investigation, prosecution or punishment of a person for an offence which may attract the death penalty in that foreign country…. However, a request for assistance in these circumstances may be granted if the Attorney-General is of the opinion that special circumstances exist.
4.21Special circumstances under subsection 8(1A) is not clearly defined but can involve situations:
…where the evidence would assist the defence, or where the foreign country provides a credible and reliable diplomatic assurance to not impose or carry out the death penalty.
4.22Subsection 8(1B) of the Mutual Assistance Act applies to individuals who have not been charged by foreign officials or in cases where a suspect has not yet been identified. Subsection 8(1B) provides the Attorney-General of Australia with the discretion to refuse a request for foreign assistance, if there is a possibility any assistance given could lead to a death penalty. The AGD and AFP joint submission noted that:
This provides a safeguard covering requests for assistance at the investigation stage, where provision of assistance may lead to the imposition of the death penalty on a person should resultant charges be made, and requires consideration of the interests of international crime cooperation.
4.23It was submitted that between 2021 and 2023, Australia received 1,157 mutual assistance requests, with 300 of these requests from retentionist countries. Of the 300 requests from countries with the death penalty, 11 were related to matters that could have resulted in charges for offences that carried the death penalty. In four cases, ‘acceptable assurance’ was given by the foreign country that the death penalty would not be applied and as such it was noted that assistance was provided. In five cases it was stated that:
…either we were unable to seek an appropriate assurance and we did not provide assistance or we're still actively considering the matter.
4.24Between 2021 and 2023, there were 64 extradition requests received from foreign countries. Twelve people were extradited, with none of the offences involving the death penalty. Ms Williamson-de Vries noted in her evidence that over the last 20 years, ‘three individuals have been surrendered to a foreign country following the provision of an acceptable death penalty diplomatic assurance’.
4.25The Subcommittee was informed that AGD was not aware of any breaches of the assurances given to Australia that the death penalty would not be applied to individuals, once assistance has been provided by Australia.
4.26In its submission the Law Council of Australia (Law Council) commented on gaps in Australia’s domestic legal framework in relation to international police assistance. The Law Council asserted the need to strengthen these gaps, which they stated could expose individuals to the death penalty and undermine Australia’s opposition to it. It was contended that:
These gaps should be addressed by clarifying, strengthening and extending the prohibition on Australia providing assistance where it may lead to the arrest, prosecution or conviction of a person for an offence carrying the death penalty, and through the creation of standing arrangements to the effect that, where Australia provides assistance, the person of interest cannot be sentenced to death.
4.27The Law Council called for amendments to the Mutual Assistance Act such that the risk of the death penalty in criminal matters be a mandatory ground for refusal of assistance under subsection 8(1). Alternatively, the Law Council suggested that subsection 8(1A) should be amended ‘to strictly confine the ‘special circumstances’ discretion’.
4.28It was also recommended that subsection 8(1B) of the Mutual Assistance Act should be repealed as it was not in keeping with Australia’s approach to the death penalty and that subsection 8(1B):
…suggests that Australia’s position on the death penalty is equivocal and, sometimes, it will be ‘in the interests of international criminal cooperation’ for Australia to be complicit in the imposition or execution of the death penalty abroad.
4.29The submission from Capital Punishment Justice Project (CPJP), Eleos Justice, Monash University, Julian Wagner Memorial Fund (JWMF), Australians Against Capital Punishment (AACP), Anti-Death Penalty Asia Network (ADPAN) (CPJP joint submission) also recommended changes be made to the Mutual Assistance Act to remove the discretion of the Attorney-General to allow information to be shared in circumstances where there is the risk of the death penalty, based on ‘special circumstances’. The submission suggested that legislation was also needed to prevent the AFP from sharing information that could lead to the death penalty being imposed.
4.30Ms Williamson-de Vries explained that one provision in the Mutual Assistance Act related to investigations that are in the latter stages, and individuals have either been ‘identified and arrested or charged’. In terms of subsection 8(1B), the investigation is at an early stage and individuals may or may not have been identified at this time. Ms Williamson-de-Vries argued that:
if an amendment was made, and there was only one mandatory grant of refusal, in the mutual assistance process this would practically limit our ability to cooperate in cases where risks of the death penalty could otherwise be affectively mitigated. It could jeopardise our ability to cooperate with partners to respond to serious criminal activity, and it could have adverse implications for Australia from both a law enforcement perspective and at a diplomatic level…. we act with a really high degree of caution in considering any request from any retentionist country, and, in practice, if there were any identified risk of the death penalty, we would seek an assurance before progressing to the Attorney-General for consideration.
4.31Ms Williamson-de Vries further stated that in terms of extradition:
the legislation does not give the Attorney-General a discretion. The legislation provides that, where a foreign country seeks to extradite a person from Australia for a death penalty offence, we can only extradite the person if the Attorney-General is satisfied that either the person will not be tried for the death penalty offence or, if they are tried, the death penalty will not be either imposed or carried out. That is where those diplomatic assurances or undertakings come into play. They must be credible and reliable.
4.32Mr Mansfield also noted that a large proportion of the AFP’s work is international and processes around mutual assistance are slow. The volume of work with international partners means greater pressure. It was stated that if there were mechanisms that could be put in place to allow the AFP to respond in a timelier manner, it would be beneficial not only for Australian officials but also for countries making requests.
4.33It was suggested that informal advocacy takes place through interaction with foreign counterparts, with the AGD making it clear what their parameters are in terms of cooperation. The AFP also stated that international partners are very aware of Australia’s position on the death penalty and are aware of how the AFP can and cannot provide assistance.
Australian Federal Police National Guideline on International Police-to-Police Assistance in Death Penalty Situations
4.34The AFP National Guideline on International Police-to-Police Assistance in Death Penalty Situations (the AFP National Guideline) governs police cooperation and assistance in international cases where an individual may be exposed to the death penalty. The AFP is charged with the enforcement of Commonwealth law and contributing to combatting ‘complex, transnational, serious and organised crime’ that impacts on Australia. To achieve this, it cooperates with international law enforcement agencies in line with government policy as it relates to crimes that carry the death penalty.
4.35Following the 2016 Report which made recommendations regarding the AFP National Guideline, it was updated to reflect the Australian Government’s response to the recommendations. The AFP National Guideline was amended in 2018 to:
…provide greater clarity and instruction to AFP appointees relating to engagement with, and assistance provided to, foreign law enforcement partner agencies in retentionist countries.
4.36The AFP National Guideline outlines the various procedures in place when AFP cooperation could lead to an individual being ‘detained, arrested, charged or prosecuted for an offence carrying the death penalty.’ Different risk categories, from low risk to high risk are also considered in death penalty requests by foreign law enforcement agencies.
4.37The Sensitive Investigations Oversight Board (SIOB) is the oversight body for AFP investigations designated as sensitive. Mr Mansfield affirmed that any requests involving the death penalty are considered sensitive investigations and SIOB maintains oversight of these cases. It was later clarified that the decision to elevate death penalty matters to SIOB was made on 4 May 2023.
4.38Various stakeholders expressed concerns over the lack of external experts and government agencies on SIOB. Mr Mansfield confirmed that SIOB did not contain any external bodies or agencies. It was further explained that decision making responsibilities regarding assistance to countries in situations where the death penalty could apply, was dependent on whether it was a pre or post arrest case. Mr Mansfield noted that:
In terms of pre-arrest, pre-conviction or pre-trial, the decision rests with the AFP, but post-detention, post-arrest or any subsequent criminal justice process, any request to share information or provide assistance must go to the Attorney.
4.39Mrs Lorraine Finlay, Human Rights Commissioner, Australian Human Rights Commission (AHRC) expressed the view that more scrutiny needed to be given to the processes within the AFP National Guidelines and SIOB to make sure that:
…the human rights objectives that underpin the existence of the board in particular are being met and that we continue to strengthen and refine our approach to ensure that the best operational outcomes are achieved in a principled way.
4.40In relation to police cooperation, Mr Ry Atkinson, Strategic Campaigner, Amnesty International Australia (Amnesty Australia) stated that the cases were pre-arrest cases and there was no way of knowing what the outcome would be. As such, he believed the approach taken by Australia should be no cooperation if there is the risk of the death penalty. It was argued that the system within the AFP National Guideline of assessing risk as being low, medium or high, ‘gives the impression that it is okay at some level’.
4.41Amnesty Australia recommended that the AFP National Guideline be amended to prevent international crime cooperation that could contribute or lead to the death penalty or other human rights violations. It was argued that the exclusion of government-to-government assistance and police cooperation in the Strategy in cases that could lead to capital punishment, needed to be addressed.
4.42The Law Council submitted that the AFP National Guideline, despite amendments, provided the AFP with broad discretion to provide assistance even in cases that could result in a death penalty. It was recommended that the AFP National Guideline be amended to reflect that ‘information and assistance in potential death penalty cases shall only be provided in exceptional circumstances’. Further, the AFP should be obliged to obtain Ministerial approval before sharing information in cases that carry the potential of a death penalty.
4.43In its evidence to the inquiry DFAT expressed confidence in the AFP’s approach when it came to international assistance in criminal matters, noting that the Department and the AFP worked closely together in a coordinated manner.
Police cooperation in criminal matters
4.44Recommendation 3 from the 2016 Report recommended that:
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 [to] 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.
4.45This was the one recommendation rejected by the Australian Government in its response to recommendations made by the JSCFADT. The Government Response noted that it was not possible for foreign law enforcement partners to ‘provide binding assurances that the death penalty will not be applied if information is provided’. The Australian Government further commented that:
Combatting serious drug crimes is a high priority for the Government and the Government’s ability to detect, deter and prevent drug crimes would be impeded if Australia could not cooperate with states in the region that retain the death penalty. An inability to cooperate with foreign law enforcement partners poses risk of harm to the Australian community and significant impact to society…The National Guideline on International Police-to-Police Assistance in Death Penalty Situations is the most appropriate way to balance the need for effective cooperation on transnational crime and the commitment to protecting individuals from the death penalty.
4.46The joint submission from Harm Reduction International (HRI), International Drug Policy Consortium (IDPC), Australian Injecting and Illicit Drug Users League (AIVL), Women and Harm Reduction International Network (WHRIN), Harm Reduction Australia, Lembaga Bantuan Hukum Masyarakat (LBHM), and the Australian Civil Society Committee on UN Drug Policy (HRI joint submission) argued that the Australian Government’s response to Recommendation 3 from the previous inquiry was not supported by evidence and could in fact be the opposite. The submission contended there was growing evidence that the death penalty is not a deterrent for either drug use or drug crimes and countries ‘partnering in drug law enforcement may easily renounce it without significant impact on their operations’. It was further noted that:
…retention of the death penalty for drug offences could in fact hinder regional and international cooperation on drug law enforcement; because of due diligence obligations of UN agencies and other abolitionist countries.
4.47Australia’s geographical location makes it susceptible to cooperating with drug law enforcement in retentionist countries in the region. It was stated that this could make Australia ‘complicit to the application of the death penalty’. The HRI joint submission criticised the lack of transparency and involvement of external experts around information sharing by the AFP in cases that could lead to death sentences:
It is unclear whether and which processes are in place to evaluate and regularly monitor potential linkages between Australia’s technical assistance and cooperation, and the imposition of death sentences.
4.48Australia’s joint drug law enforcement partnerships with Thailand and China, both countries that impose the death penalty for crimes including drug offences, were noted. It was argued that there was little clarity as to what processes are in place to check or monitor the links between Australia’s assistance and cooperation and any death sentence imposed in these countries. The HRI joint submission stated that in terms of broader human rights violations:
…many retentionist countries in Asia (and beyond) still prescribe the death penalty as a mandatory sentence for at least certain drug crimes, where routine reports emerge of capital drug trials lacking basic guarantees of fairness (such as provision of interpreters, lack of qualified legal representation, and limitations to the right to appeal), and/or following investigations in which ill-treatment is feared.
4.49Further, it was argued that abolitionist countries are obligated to not expose individuals to the risk of being subjected to the death penalty and consequently, this obligation:
…should extend to situations where such risk can arise following cooperation in drug law enforcement; insomuch that cooperation should be withheld where adequate safeguards are lacking.
4.50Human Rights Watch (HRW) also expressed concerns over what they saw as ‘a lack of human rights oversight in police cooperation between Australia and other countries.’ Ms Daniela Gavshon, Australia Director, Human Rights Watch was of the view that updates to the current Strategy should include police cooperation and should place emphasis on the role of external human rights oversight in making sure ‘police assistance does not make Australia complicit in any executions’. Ms Gavshon stressed that Australia should consider not cooperating in drug related matters in countries where drug offences could carry the death penalty.
4.51Cooperation with retentionist countries in law enforcement operations that could result in the death penalty was seen as signalling ‘an inconsistent position of Australia on this issue.’ It was put forward that this form of cooperation exposes Australia to reputational risk, which may lead to questions around Australia’s standing as an advocate for the abolition of the death penalty. The HRI joint submission asserted that:
…for advocacy against the death penalty to be effective, including in multilateral fora and in engagement with retentionist countries, it must be principled and fully consistent with domestic practice.
4.52Risks associated with police cooperation with retentionist countries were commented on in evidence to the inquiry. Some stakeholders referenced Senate Estimates, where evidence was given to the Legal and Constitutional Affairs Legislation Committee in May 2023 that showed that 296 items of intelligence that related to drug offences was provided to Myanmar police since the 2021 Myanmar coup. It was also emphasised that none of the pieces of intelligence shared were referred to SIOB. Stakeholders noted that this presented a possible risk of a death sentence for anyone convicted of drug offences using this information.
4.53It was stressed that it was unclear why the intelligence was not referred to SIOB and it was also unclear how SIOB ensures that decisions made are in accordance with human rights standards.
4.54In addition, the CPJP joint submission expressed concerns that information was shared that could potentially result in individuals facing the death penalty and that even though the AFP National Guideline has safeguards, based on the example of Myanmar, potentially the processes are not being followed.
4.55It was observed that:
Given the high stakes, it is crucial that police cooperation is considered through the lens of the government’s strategy and has mandatory external and human rights oversight. Without this, there is a serious risk that Australian police could cooperate with a foreign police force in a way that leads to someone being convicted and executed.
4.56Mr Mansfield acknowledged that working with military or authoritarian regimes was a ‘delicate matter’. In the case of Myanmar, he noted that prior to and following the coup, Australia is the only country that maintains a law enforcement presence in the country. He explained that:
The relationship is longstanding with members of the Myanmar police force. Levels of trust that come with relationships that exist over time, informed by other intelligence that's not necessarily law enforcement related, guide our officers at post as to the levels with which they can engage.
A principled and consistent approach
4.57Stakeholders asserted that Australia should have a ‘principled’ approach when dealing with death penalty matters if our stated aim is the global abolition of the death penalty. It was noted that by omitting government-to-government and police cooperation from the 2018 Strategy, there could be doubts about Australia’s messaging on the issue.
4.58The term ‘consistency’ was used across written submissions and in the public hearings. Ms Elizabeth Wood, Chief Executive Officer, Capital Punishment Justice Project (CPJP) emphasised that Australia maintained a good reputation internationally as an abolitionist country but that this needed ‘to be reflected across the whole of government.’ It was further asserted that although Australia does well in multilateral fora:
…Australia also needs to lead in the more difficult situations, where we may have a bit to lose; we need to stick to our principles and advocate hard.
4.59Mrs Lorraine Finlay emphasised that Australia’s approach needed to be principled and consistent, and this needed to be seen in how Australia dealt with mutual assistance requests and police cooperation. Mrs Finlay noted that the AHRC was not being critical of what was being done currently in terms of mutual assistance and police cooperation but that:
…we should always be mindful of wanting to ensure that those processes are as effective as possible and that they're as principled as they can be in terms of showing consistency in Australia's position.
4.60It was stated that a principled approach was a consistent approach. When advocacy is not principled or consistent, retentionist countries can feel as though they are being singled out. To avoid this and to avoid possible impacts on Australia’s bilaterial relationships, consistent statements on the death penalty should be made regardless of the country involved.
Committee comment
4.61The Subcommittee supports Australia’s cooperation in criminal matters with foreign jurisdictions and notes the importance of this cooperation in upholding Australian laws, ensuring that individuals do not escape justice and ensuring that Australia meets its international obligations. However, the Subcommittee acknowledges that international cooperation in criminal matters remains a vexed issue, as was evident in the previous inquiry into the matter.
4.62The way Australia engages in cooperation is governed by various pieces of legislation. Any cooperation needs to be grounded in Australia’s human rights obligations also, to ensure that Australia does not play a role in exposing individuals to capital punishment. The Subcommittee believes international cooperation should be balanced and can be used as part of Australia’s strategy to advocate for the abolition of the death penalty. Australia should continue to stress the clear boundaries within which it is willing to provide cooperation while highlighting its opposition to the death penalty in all situations, for all people.
4.63The Subcommittee welcomes the clarification that since 4 May 2023, a decision was made to elevate death penalty matters to the Sensitive Investigations Oversight Board of the AFP. The Subcommittee recommends that the mechanisms and operations of SIOB undergo periodic external reviews, to provide public visibility that the AFP is adhering to Australia’s human rights obligations. The Subcommittee has no doubt that Australia’s international cooperation is compliant with Australia’s human rights obligations, but some external visibility of processes is needed to maintain public faith in the process.
4.64The Subcommittee is concerned about the overall trend showing an increase in drug related executions globally, particularly as drug related crimes are recognised by the United Nations to not meet the threshold of ‘most serious crimes’. As such, the Subcommittee believes that international criminal cooperation, though important, should be minimised when working with retentionist countries, unless guarantees are made that individuals will not face the possibility of a death sentence, based on any information that Australia provides.
4.65The subcommittee acknowledges comments from witnesses that a 'whole-of-government' strategy loses its credibility if parts of Government have, or are perceived to have immunity from upholding the Australia's Government long standing commitment to the global abolition of the death penalty.
4.66Further, the subcommittee recognises and fully accepts the observation that incorporating clearer statements and operating procedures that reflect this long standing and multipartisan commitment in matters of Australia’s international criminal intelligence activities is a tool that further advances, rather than diminishes, Australia's advocacy and pursuit of global abolition.
4.67The subcommittee does believe the following matters deserve more detailed inquiry on the merits, limitations and/or implications of:
1legislating against the Australian Federal Police providing international police-to-police assistance and cooperation, including sharing information, in situations where an identified person(s), regardless of nationality, may be exposed to the death penalty; and
2amending the Australian Federal Police National Guideline on International Police-to-Police Assistance in Death Penalty Situations to make it clear that in situations where an identified person(s), regardless of nationality, may be exposed to the death penalty:
- as an overriding principle, the AFP will only provide international assistance and cooperation, including sharing information, in exceptional circumstances (for example, where it would assist the defence);
- the AFP will be prohibited from providing international assistance and cooperation, including sharing information, unless strict criteria are met, such as the receipt of an official undertaking that the death penalty will not be sought, imposed or carried out; and
- even if such criteria are met, the AFP is required to seek Ministerial approval before providing international assistance and cooperation, including sharing information.
- A further inquiry of the nature suggested should also include the participation of other relevant and interested parliamentary committees such as the Parliamentary Joint Committee on Law Enforcement, the Senate Legal and Constitutional Affairs Committee, and the Parliamentary Joint Committee on Human Rights.
- A suitable pathway for further inquiry and examination of these issues could be considered and proposed by the review of the Australian Government’s Whole of Government strategy for the abolition of the death penalty.
4.70The Subcommittee recommends that the Australian Government undertake annual reviews of the mechanisms and operations of the Australian Federal Police’s Sensitive Investigations Oversight Board to ensure the processes are sufficient and that they adhere to Australia’s human rights obligations and commitment to the global abolition of the death penalty.
This should include reviewing the AFP National Guideline on International Police-to-Police Assistance in Death Penalty Situations to ensure that potential death penalty situations are being appropriately overseen by the Sensitive Investigations Oversight Board.
The annual review should be conducted by an independent person appointed by the Attorney-General in consultation with the Minister for Foreign Affairs.
Consideration should be given to expanding the membership of the Board to include experts external to the Australian Federal Police.