The Joint Standing Committee on Foreign Affairs and Defence recently tabled the report on its inquiry into Australia's Advocacy for the Abolition of the Death Penalty. In keeping with Australia’s policies and values, the report made a number of commendable recommendations for supporting and strengthening Australia’s international commitment to abolishing the death penalty.
This continues a long trend of Australian foreign policy and Australian NGO advocacy for death penalty abolition. However, the report takes several steps further than existing policy in relation to international policing partnerships which the Australian Federal Police (AFP) has developed throughout the world.
Some of these recommendations would serve to strengthen or formalise existing practice. For example, articulating a clear commitment to prevent the exposure of individuals to the death penalty in jurisdictions where their suspected or alleged crimes are capital offences is entirely consistent with current practice and with Australia’s values.
However, further recommendations, which would see the AFP compelled to withhold information in cases where partner countries have not formally guaranteed that the death penalty will not be sought, are problematic in two senses. Firstly, we would need to negotiate a very real boundary between advocacy and moral universalism. Secondly, we would risk creating a system of rules which make both compliance and partnership difficult for the AFP.
Although it is important to advocate Australia’s morals and values in the international community, seeking to making partnership with other nations contingent on those nations adhering to our value systems in their legal jurisdictions is problematic. We may agree in Australia that the specific case of the death penalty warrants special treatment in this regard, but an opposite example, where a partner country refused to honour its partnership agreements with us unless we applied their values in Australian legal cases might be instructive.
One such example is Interpol’s worldwide fight against child abuse material. In many Interpol partner countries the act of abuse and the creation of abuse material is an offence, but the possession of the same material is not. As abhorrent a counter example as this is, it serves to illustrate the differences in values which we must sometimes accept in order to work with our partners. If these countries refused to work with us to shut down international child abuse rings unless we agreed to refrain from prosecuting individuals who possessed but did not create abuse materials in our jurisdiction, we would be understandably resistant to continued partnership.
This is not to equate the two issues as they are clearly very different in nature. However, it does highlight the reaction that countries may have to the strings we want to attach to our existing information sharing arrangements. Similarly, it underscores the pragmatic implications of creating broad caveats to our information sharing arrangements with partner nations.
For example, Indonesia feels strongly about its harsh penalties for drug offences and its right to apply its own values and laws within its jurisdiction. Australia’s criticism of Indonesian laws in the lead up to the execution of Australians Andrew Chan and Muyran Sukumaran temporarily soured relations between Australia and one of its most important regional partners.
In the US, Australia’s most vital alliance partner, many states retain the death penalty. The implications of creating a rule system which prevents the AFP from sharing security information with the US, based on our desire to limit the application of US law in a US jurisdiction,are concerning for two reasons: predictability and reciprocity.
The first obstacle to implementing a death penalty threshold for information sharing would be the capacity of the AFP or requesting authorities to accurately predict how information would be used in future cases. Information sharing often happens very early in the investigative process and it would be very difficult for partner countries to guarantee precisely how the information being sought would ultimately be used in a further prosecution, or even who or what such a prosecution may involve.
We would not just be requiring partner countries to abandon the death penalty in one investigation, we would be requiring them to forego their ability to prosecute other cases in the future if they relied on information shared by the AFP in some way. This could potentially open avenues for defence lawyers to challenge the admissibility of information that was shared under a formal caveat of not being used in a death penalty case. This could significantly alter the courses of action available to partners for many years of future investigations and prosecutions.
A second obstacle would be fostering partnerships where the AFP did not have reasonable discretionary powers to share information which it deemed to be in the public interest in Australia or abroad. Right now the AFP has some discretion to decide what information it wishes to disclose on a case-by-case basis. This allows the AFP to make an informed judgment, balancing Australia’s commitment to uphold its values in relation to abolition of the death penalty against the political and security impetus to share information in specific cases.
Overall, the right mix of advocacy and pragmatism almost certainly lies with enabling the AFP to leverage its knowledge and expertise to make these decisions without being tied to clear-cut restrictions on information sharing. It is also important to question the extent to which we want to risk compromising Australia’s security partnerships to avoid circumstances which, although devastating, are infrequent and subject to increasing scrutiny when they do arise.
Photo courtesy of Twitter user AFP National Media