Death row still a risk when AFP shares intel: inquiry

The Australian Federal Police board that handles international information sharing on sensitive cases should be subject to stronger oversight to make sure Australians aren’t sent to their death overseas, a parliamentary inquiry has warned, just days after the Bali Five’s return.

The Labor-led inquiry on Tuesday said the AFP’s sensitive investigations oversight board, which deals with death penalty cases, should be independently reviewed each year, and its ranks should be expanded to include external experts. It also pushed for a probe into the AFP’s guidelines on international police-to-police assistance in potential death penalty situations.

Australians Andrew Chan and Myuran Sukumaran were executed by Indonesia in April, 2015.Credit: Getty Images

The inquiry’s call for greater scrutiny over how the AFP deals with delicate international investigations and police requests for help – particularly for drug crimes – comes just days after the five remaining members of the Bali Nine were transferred back to Australia after spending 19 years in Indonesian prison.

Matthew Norman, Michael Czugaj, Scott Rush, Martin Stephens and Si Yi Chen arrived in Darwin on Sunday for the first time since their 2005 arrest for trying to smuggle more than eight kilograms of heroin out of Indonesia. The so-called ringleaders of the Bali Nine, Andrew Chan and Myuran Sukumaran, were executed in 2015, and Renae Lawrence was released in 2018. Tan Duc Thanh Nguyen died from cancer in 2018.

The AFP has faced intense scrutiny over its role in delivering the men to Indonesian authorities. The barrister who tipped off police on behalf of Rush’s parents, to try and stop him from committing a crime, said it was a “black day” for the AFP when Chan and Sukumaran were executed in 2015, while minor party politicians at the time pushed for tougher punishment for police. However, the AFP rejected the criticism.

Asked about the Bali Nine case on Tuesday, an AFP spokesperson said it had “enhanced a number of governance processes and procedures since 2005”, including by elevating death penalty matters to the sensitive investigations oversight board, which is chaired by the deputy commissioner of national security.

They said every foreign police agency’s request for information was assessed individually, “with extra scrutiny considered when countries have the death penalty as a judicial punishment”.

“The AFP must work closely with law enforcement partners throughout the world to help protect Australians and Australia’s interests. The Indonesian National Police is a trusted partner that works closely with the AFP to help combat terrorism, people smuggling and transnational serious organised crime,” they said.

But the parliamentary inquiry’s report – coincidentally handed down on the same day – raised doubts about the efficacy of the sensitive investigation oversight board, noting it had only started considering death penalty cases as a matter of procedure in May last year.

“Various stakeholders expressed concerns over the lack of external experts and government agencies on [the board],” the report said. Australian Human Rights Commissioner Lorraine Finlay also told the inquiry that there should be more scrutiny.

In a submission to the inquiry, the NSW Civil Liberties Council said the government should “never again assist a foreign government in cases where the death penalty is a possible outcome” and called for stronger laws to stop the AFP sharing information with international partners if it could lead to capital punishment.

A joint submission from the Attorney-General’s Department and the AFP admitted there were risks of the death penalty being imposed on Australians as a result of international crime co-operation.

They said some of Australia’s most important criminal co-operation partners had capital punishment, including the United States, Indonesia, Thailand, Vietnam, India, Malaysia, Singapore, China, United Arab Emirates, Lebanon and Jordan.

But they said there were “robust processes to ensure these risks are identified, and, where they do arise, we act with extreme care”.

“We will only provide assistance where the risk can be appropriately mitigated,” Susie Williamson-de Vries, an assistant secretary at the Attorney-General’s Department, told the inquiry.

“The safeguards, both in our legislation and in our robust procedures, have been really effective in practice in upholding Australia’s position on the death penalty.”

She said that death penalty cases came up “quite infrequently in our international crime co-operation casework” and were only applicable to the most serious crimes.

They said Australia had received 1157 mutual assistance requests between 2021 and 2023, of which 300 were from countries with the death penalty.

Of those, 11 were about matters that involved offences that carried the death penalty. In four of the cases, the foreign country gave “acceptable assurance” that capital punishment would not be carried out and Australia gave assistance.

Two cases did not progress for other reasons. In the remaining five cases, either Australia did not receive assurance and therefore did not proceed, or it was still considering the matter.

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