Australia: Bali 9 – never again - human rights for our citizens

Last Updated: 9 February 2015
Article by Murray Thornhill

Our Prime Minister has been unable to convince the Indonesian President to spare the lives of two of the members of the "Bali 9" scheduled for imminent execution. However, Mr Abbott would not have expected his eleventh hour and very public appeal to Mr Joko Widodo on behalf of our two citizens to succeed. The time for diplomatic intervention has long since passed for Mr Andrew Chan and Mr Myuran Sukumaran.

The last minute efforts made by our Government are largely symbolic and done more to alleviate that portion of the Australian public who feel helpless and horrified as we sit by and wait for the inevitable shootings. What Australia can do at this time though is turn its mind to what might be done to prevent other Australians suffering a similar fate in the future. There were actions Australia could have taken to prevent these deaths. There are changes to our laws that could ensure we do not unnecessarily contribute to any other execution of our citizens.

Cooperative Killings

In 2005 these men were caught in Indonesia as a result of a joint operation between Australian and Indonesian police. Importantly the crime they were convicted of involved an attempt to traffic a very large quantity of heroin out of Indonesia and into Australia. Given this important - but largely overlooked fact - the Indonesian President's position that he will not compromise on the execution of the two Australians because 50 people in Indonesia die due to drugs every day does not make sense.

Not enough has been said to strongly point out that these men were removing drugs from Indonesia. The only drug users who would have died as a result of this crime were Australian. At some point the Indonesian and Australian police would have decided who would ultimately make the arrest, when and where. Australia could have and should have insisted the group be apprehended in Australia. They were our citizens, our police intelligence gathered evidence against them and it was our drug addicts who would have died had they not been caught. If there ever was a police tug of war over who got the "collars" for this crime then Australia ought to have won hands down.

When Scott Rush was initially sentenced to death there was criticism of the Australian Federal Police's involvement in the arrests. There was particular sympathy for Mr Rush's parents who had contacted Australian police to alert them to their son's activities in the honest belief that doing so would ultimately help their son. Questions were rightly asked about why Australian law enforcement had assisted in the arrest when a likely outcome of the operation was death sentences for all involved. Concern abated when Mr Rush's death sentence was eventually reduced to life imprisonment. Somehow the public's concern did not extend to the other members of the drug ring still facing death – but it ought to have. The question remains: why did we lead our own citizens to their deaths?

International Law and Crime Cooperation

Under International Law Australia is committed (along with a majority of the world's nations) to abolishing the death penalty because it is considered to be barbaric and an ineffective deterrent. Unlike us, Indonesia is not a signatory to the International Convention on Civil and Political Rights and did not support the special resolution of the United Nations General Assembly in 2007 that called for a moratorium on all executions worldwide. Indonesia is not offending any international commitments when it executes criminals.

In keeping with our international commitments Australian law does not allow any person to be extradited to a country where they may be sentenced to death for the crimes they are wanted in relation to. However, in complete contradiction to our international commitments our laws do allow our law enforcement resources to be used to detect and apprehend people in countries where they can be put to death for their crimes.

Our mutual assistance laws need to be changed to strictly prohibit the involvement of our law enforcement authorities in joint operations that could result in the death penalty for any person (not only our citizens). This means that if we are assisting to investigate terrorism offences within Indonesia we will need a commitment from the President of Indonesia that anyone sentenced as a result of evidence or intelligence gathered by Australian law enforcement agencies will not be put to death. It may be a controversial requirement since such a rule would have prevented the killing of the "Bali bombers", however Australia's position on the death penalty must be unequivocal and in line with our international commitments to universal human rights.

Australia also owes a special duty of care to our own citizens. We could also require that any future law enforcement cooperation be conditional upon the presence of a prisoner transfer treaty with Australia. This would ensure that there is a mechanism in place for Australian citizens caught as a result of a joint operation could be returned to Australia to serve their sentences. Such a framework would also allow any foreign prisoners convicted here to be sent back to their own country to serve their sentences.

Indonesia is not one of the 68 countries who have an in-principle agreement with Australia to transfer prisoners. It seems Australia's relationship with Indonesia does not extend to this level of cooperation and the failure highlights an undercurrent of mistrust in this oftentimes delicate international relationship. China, Vietnam, Thailand, Cambodia and Hong Kong have each signed a bilateral treaty with Australia for prisoner transfer. 63 additional countries are parties to the multilateral Council of Europe Convention for Transfer of Sentenced Persons. It is difficult to understand why Indonesia cannot be convinced to agree to a prisoner transfer framework because even if a treaty were put in place each individual prisoner transfer is highly discretionary and can be refused by either country without the need to provide reasons.

There are prisoners in both Indonesia and Australia who could benefit from prisoner transfer including many Indonesians serving lengthy sentences in Australia for people smuggling and illegal fishing. It is widely accepted that rehabilitation is more likely to be successful where prisoners serve their time in their own country's jails and can be released on parole into their community. Without prisoner transfer foreigners are usually deported upon their release and dumped back into their home country without supervision and without their crimes noted on their domestic criminal record. The Australian Government could very easily require a prisoner transfer treaty be put in place as a condition of any future law enforcement cooperation with Indonesia.

Sovereignty Before Cooperation

If the deaths of Mr Chan and Mr Sukumaran can achieve anything it may be that their cases force Australia to require deeper cooperation from Indonesia. We absolutely must respect each other's sovereignty and our respective right to determine our own laws. Indonesia has a right to execute criminals and we have a right to say that we will not assist in any such prosecutions. Both countries have a common interest in deterring serious crimes in our Region such as terrorism, drug trafficking and people smuggling. Australia can cooperate without diminishing our commitment to human rights for all people but we owe a special obligation to our sovereign citizens and must protect them better in future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Murray Thornhill
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.