The Australian Federal Police can still share information with countries that have the death penalty

AS AUSTRALIA mourns the death of two of its citizens, it’s become clear that this tragic situation could easily be repeated.

IF THE Bali Nine case happened again tomorrow, no law or guideline would prevent the Australian Federal Police from acting in exactly the same way, says the Human Rights Law Centre.

The centre’s director of advocacy Emily Howie told news.com.au that the AFP’s guidelines still empower it to share information that could lead to Australians being sentenced to the death penalty overseas.

“Recent changes to the guidelines only require ministerial approval of information sharing if the person concerned is arrested,” Ms Howie said.

With the execution of Andrew Chan and Myuran Sukumaran in Indonesia this morning, some have suggested the AFP has blood on its hands.

But Foreign Minister Julie Bishop said it was not the right time for recrimination and anger over the role played by the AFP in the 2005 arrest of the Bali Nine.

“The involvement of the Australian Federal Police was reviewed a number of years ago and changes were made,” she said. “We are satisfied that the changes that are in place were appropriate. But I don’t believe today is the time to look for recriminations.”

The AFP said it was premature to comment on the case.

However, Ms Howie said that the only change made was the requirement for ministerial approval, and that no law or guideline would prevent the AFP from acting exactly the same way again.

This is in contrast to other Australian laws, which prevent people from being extradited to countries that have the death penalty. This includes the Mutual Assistance Act, which prevents provision of assistance to foreign countries if it would lead to the death penalty for an Australian citizen.

“The AFP Act doesn’t contain the same safeguards. That inconsistency must be addressed urgently,” Ms Howie said.

Federal MP Clive Palmer announced today that he would introduce a private member’s bill to parliament within the next month to make it illegal for authorities and intelligence agencies to pass information to foreign countries that could result in the execution of Australians overseas.

While Mr Palmer’s bill proposes public officials be imprisoned for up to 15 years if they disclose information, Ms Howie did not want to comment on it until she had seen the detail.

The barrister who tipped off the AFP about the men’s plans in an effort to prevent a family friend from committing a crime, said the authority had blood on its hands.

Bob Myers alerted the AFP to the drug smuggling operation more than a decade ago, after he was contacted by his good friend and the worried father of teenager Scott Rush.

He said he asked for Rush, one of the Bali Nine, to be stopped before boarding a flight in Australia, but the AFP took a different direction. Instead they used the information to alert their Indonesian counterparts, which led to their arrest overseas.

“I am convinced that we all have an obligation to use our utmost endeavours to redress the unauthorised and unlawful actions of the AFP,” Mr Myers said.

“I entreat the Prime Minister of Australia to act.”

The AFP has repeatedly defended its actions and in a statement released in February this year, it said: “The AFP assesses each case on its individual merits. In the case of the Bali Nine, the AFP was not in a position to prevent these people from travelling to Indonesia. The AFP had no evidence or lawful reason to detain, much less arrest or charge, any member of the Bali Nine before their departure from Australia.”

To prevent the trafficking of illicit drugs into Australia, the AFP said it relied on cooperation with foreign law enforcement partners to identify those involved, and the source of the drugs.

“The exchange of law enforcement information is a regular and routine part of this international cooperation.

“The AFP cannot limit its cooperation to countries that have similar legal systems as Australia. If it did, our ability to cooperate with partners in many source and transit countries would be severely hampered.”

A Federal Court case accusing police of acting illegally by tipping-off a country about a crime that carries a death penalty cleared the AFP of wrongdoing.

The AFP has said that it plans to make a further statement on the events that led to the arrests of the Bali Nine, but will wait out of respect for the families of Chan and Sukumaran.

The case will be examined at a Senate estimates committee hearing in the week of May 26, with Senator Nick Xenophon vowing to raise the issue.

The senator will also write to federal parliament’s joint standing committee on foreign affairs to ask that it be examined. “This is not about recriminations, it’s about making sure this never happens again,” Senator Xenophon.

AFP Commissioner Andrew Colvin last month said the AFP would not bear responsibility if Chan and Sukumaran, convicted for their roles in a plot to import 8.3kg of heroin from Bali to Australia, were executed. “Put simply, do we have blood on our hands? No,” Mr Colvin said.

Former justice minister Chris Ellison also defended the AFP this morning.

Mr Ellison had ministerial responsibility for the AFP when the Bali Nine were arrested while attempting to smuggle heroin into Australia.

He said police were dealing with a complex operation in which officers did not have all the information.

“It’s easy to look back in hindsight and say what should and shouldn’t have been done,” he told Sky News on Wednesday.

Mr Ellison says police may not have had enough information to prove the group’s guilt had they arrested them before they left and he says he trusts the call made at the time.

He also believes if the group was arrested on their return, Indonesia may have questioned Australia’s cooperation with international law enforcement.

“That could have damaged the relationship as well,” Mr Ellison said.