Page 4197 - Week 13 - Wednesday, 16 November 2005
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A request by a foreign country for assistance under this act must be refused if it relates to the prosecution or punishment of a person charged with or convicted of an offence in respect of which the death penalty may be imposed.
However, it seems that it is permissible for Australian authorities, including the AFP, to provide evidential and other support in the investigation of foreign criminal matters at a police-to-police level. This exploits something of a loophole in the provision by avoiding the restriction on government-to-government assistance for convicted or charged persons. Seeing that Zhang Long has not yet been charged, it would appear that police-to-police assistance in the investigation of this matter is not unlawful under Australian law.
In June this year, justice minister Chris Ellison wrote to our Chief Minister Jon Stanhope requesting that the ACT police provide assistance to the Chinese authorities to aid them in their preliminary investigations. Minister Ellison made this request aware that the Chinese authorities had failed to provide any assurance that the death penalty would not be used and also that the evidence requested might be enough to see Long charged, prosecuted and executed.
In fact, the director of the University of Sydney’s Centre for Asian and Pacific Law, Vivienne Bath, has even suggested that China may well have the requisite evidence already, particularly given that witness statements might already have been taken from friends of both the victim and the alleged murderer who are now back in China. As such, any assistance provided to Chinese authorities by ACT police would potentially only seal Long’s conviction and execution.
It is true that Australian states often request police-to-police cooperation in a great variety of criminal matters and, as such, this could be considered regular practice. However, standard Australian investigative or evidential assistance does not contribute towards an execution.
In August, the Senate Legal and Constitutional Committee criticised the federal government and the Australian Federal Police for their cooperation with Indonesian authorities that resulted in the arrest and possibility that some, if not all, of the Bali nine will be executed. More particularly, the committee noted the suggestion of the law council and recommended that the Australian government, in conjunction with the AFP and other stakeholders, review its policy and procedures on international police-to-police assistance. In particular, the committee recommended that the Australian government should ensure appropriate ministerial supervision of assistance provided to overseas jurisdictions by Australian law enforcement agencies where that assistance may expose Australians overseas to cruel, harsh or inhumane treatment or punishment, including the death penalty.
Unfortunately, the AFP and the federal government have employed an anything goes policy and have outsourced the use of the death penalty. The appropriate response from the federal government in any situation involving the death penalty should have been to express Australia’s principled opposition to the use of the death penalty, to perhaps try to broaden Australia’s extradition agreements and to encourage retentionist governments
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