Australia’s awkward silence over death penalty

SYDNEY, Australia — It’s been more than 40 years since the last person was killed by the state in Australia.

Capital punishment is not just banished for now in Australia, but forever. Last year the Federal Attorney General made preparations to enact a law that would ensure it could never be reintroduced.

Not that Australians have much appetite for it.

The last man hanged in Australia was Ronald Ryan in 1967. He shot a prison guard when attempting to break out of Melbourne’s Pentridge Prison in 1965.

His hanging had a profound impact and provoked national soul searching, with some of the largest and most intense protests in the nation’s history which led to the subsequent abolition of the death penalty.

Writing of the anniversary of Ryan’s death 40 years on, author Mike Richards said, “Most present-day Australians who were teenagers or older in 1967 can tell you exactly where they were at 8 a.m. on Feb. 3 in that year.”

Australia may have outlawed the death penalty in perpetuity — but that stance does not help Australians who find themselves on death row in other parts of the world, where drug couriering is enough to earn you a date with the firing squad or the noose.

The most infamous of those expatriate inmates are collectively called the Bali 9, who entered the nation’s consciousness on Apr. 17, 2005, when they were arrested on the Indonesian island of Bali for attempting to smuggle 8.3 kilograms of heroin to Australia, with a street value of more than 4 million Australian dollars ($3.6 million today).

For many Australians, Bali feels like Australia’s island. It’s a place for your first holiday away from home, package tours, honeymoons, great surf breaks, nightclubs and cheap drinks; hospitable, unthreatening, beautiful.

But the law has long prescribed a mandatory death sentence for drug smuggling — so when footage first aired of nine young Australians, aged between 18 and 28, having their colorful Hawaiian shirts pulled up to reveal parcels of heroin taped across their rib cages — the dread and fear emerging from the grainy footage was palatable.

This was the moment where a veil was lifted; the libertine, democratic, predominantly Christian, and to a degree — hedonistic party-loving Australia — coming up against a predominantly Muslim, abstentious culture — with the death penalty.

The case also provided a test for the Australian government — how far would it intervene to save the nine — in a country that is arguably Australia’s most important neighbor (where cooperation in criminal matters such as terrorism and drugs continues to be crucial to both nations), but where a sense of fragility has long characterized the relationship?

If the Bali 9 and their families were expecting the Australian government to swoop in like white knights and arrange for the prisoners to be extradited and tried in Australia, they were disappointed. Australians who break the law abroad must face the penalties of that jurisdiction, is the general rule of thumb.

Instead help came largely from the Melbourne legal fraternity with highly skilled and (usually) highly paid barristers acting for some of the accused pro bono.

Almost five years on, and numerous trials later, three of the Bali 9 face the death penalty for being found to be the ringleaders of the group, while the others (the mules) are serving lengthy prison sentences.

All are currently being held in Bali’s Kerobokan prison where their daily life is reported by both the Australian tabloid and broadsheet media with a kind of fascination.

Their prison romances, friendships and shifting allegiances, what food they eat, how often their parents visit, their exercise regime, the see-saw of their emotions and inner lives, are reported weekly. You can chart the arc in the press cuttings — the disbelief that they had been caught, the denial, the anger at being in jail and now — possibly — the acceptance.

Recently a journalist from The Sydney Morning Herald was granted an exclusive interview with two of the men facing death row: Andrew Chan and Myuran Sukumaran. The report discussed how they were “helping others” in the prison’s computer room and that prison authorities acknowledged they “have turned their lives around and made a positive contribution to life inside Kerobokan.”

Andrew Chan is studying theology, and reconnecting with his Christian heritage, while Myuran Sukumaran is trying to buoy his spirits by “hoping I’ll get a life sentence.”

A "tell-all book" about the prison has even been released by Australian author Kathryn Bonella. Its account represents the prison as a sort of Hades of drug-taking and orgies, denounced by members of the Bali 9 as “lies.”

While the public are fed tidbits about the minutiae of life on death row — questions have been raised about the role the Australian Federal Police (AFP) played in delivering the Bali 9 to their fate, and the relationships Australia has with its neighbors when it comes to Australians citizens being killed by the state.

Australia tends to maintain a softly-softly stance when it comes to its citizens in trouble abroad — offering them consular and legal assistance, but respecting the sovereignty of that county and allowing the legal system of that country to take its course.

Australia stood back in 2005 when Melbourne man Nguyen Van Tuong was hanged for drug trafficking in Singapore — despite an outcry from the public and the media to intervene, in scenes that were reminiscent of the outcry over the Ryan hanging.

Yet there are circumstances in the Bali 9 case that compromise Australia’s coolly detached, yet notionally compassionate stance.

In 2005, Brisbane father Lee Rush contacted the AFP, desperately worried about his 19-year-old son Scott, whom he suspected was involved in drugs.

The AFP promised to stop Scott from traveling to Bali. Instead they reneged on the deal and tipped off the Indonesian authorities about the drug-running — knowing that the death penalty awaited him. One of the Bali 9 now facing the death penalty, Scott was paid a few thousand dollars for the trip.

In response to the controversy surrounding the policing, Australia’s federal government last December issued new guidelines that may prevent another situation where the Australian police effectively deliver one of its citizens to the firing squad. The guideslines say that when cooperating with other countries, senior police officers must consider a suspect’s age, nationality and whether capital punishment is a factor.

Australia’s acting foreign minister Simon Crean last week pondered the question of if Australia had extra obligations to Scott Rush after its involvment in his situation.

Crean said “representations would be made”and when Australians found themselves in trouble overseas “all of those circumstances, the particular facts surrounding the case, are brought to the attention of those we make representations to.”

“We continue to make representations … we do not support capital punishment,” Crean said. “We say it’s not appropriate here, and that’s indeed the law, but we urge that same set of circumstances in relation to other countries’ jurisdiction.”

At the time of the arrests, then-Prime Minister John Howard said the Australian government would oppose any death sentences imposed. “We have a long-standing opposition to the death penalty and it’s well known that if a death penalty is imposed on an Australian we ask that that death penalty not be imposed.”

But apart from diplomatic measures the Australian government will not interfere in the court proceedings of another country, just as they did not interfere, and were powerless to stop the 2005 execution of Van Nygeun.

In December 2005, Denpasar District Court judge I Wayan Yasa Abadhi called for Australians not to interfere in the legal proceedings in Indonesia, saying “Criticism from outside is expected, but Indonesian courts will only adhere to the laws applied in this country, and that includes the death penalty. The judges will not budge, we will not be affected by public opinion or the media.”

This year the trials of Rush, Chan and Sukumaran will be watched closely. Will diplomacy work? Will the circumstances of Rush’s arrest be taken into account? Does the Australian government have a moral obligation to him (and his co-accused) to prevent their death? And should Australia’s objection to the death penalty on home soil translate to stronger action when its citizens face the death penalty abroad?

If things take their current course, after those sentenced to death have appealed — the only avenue left open to the men is a plea for a pardon from President Susilo Bambang Yudhoyono, which is unlikely to be granted based on the failure of similar pleas.

The Indonesian Foreign Ministry hopes the message will get out that drug trafficking will not be tolerated. Spokesman Teuku Faizasyah told the Jakarta Post, “We are very serious about handling this case, as drug smuggling is a serious issue.”

When the original death penalty for two of the nine was handed down there was little that John Howard and his government could do, other than warn others from following a similar path; “Can I just say to every young Australian, please take notice of this. I even beg them not to take the terrible risks that these young people have done — their lives destroyed in the case of two people. I feel desperately sorry for the parents of these people, I do … but the warnings have been there for decades and how on earth any young Australian can be so stupid as to take the risk is completely beyond me.”

But Australia has found sovereignty cuts both ways with the death penalty.

In 2003, American Christine "Tina" Watson died off North Queensland after her husband of 11 days, fellow American David Gabriel Watson, 32, failed to inflate her buoyancy vest and left her to drown.

When Watson agreed to plead guilty to the manslaughter of his 26-year-old wife after she died while diving on their honeymoon in Queensland, he was sentanced to 12 months in jail with good behavoir.

It left many Americans furious and demanding that Watson be extradicted to his home state of Alabama to face the death penalty.

Just as some Australians protested that Indonesian law is too harsh, Americans have been flooding internet chat sites to complain, that in this case, Australian law is too lenient.
Alabama Attorney General Troy King has sought to try Watson in Alabama to “get what Tina and her family did not get in Australia — justice.”

But double jeopardy laws and Australia’s reluctance to extradict Watson because of opposition to the death penalty mean it’s unlikely that Watson will face trial back in the U.S. Under the Australian Extradition Act, a person cannot be deported to face prosecution for an offence that carries the death penalty.

As the situation in Australia shows — with the controversy of the Bali 9 and Watson cases — eradicting the death penalty does not prevent thorny and difficult questions about capital punishment emerging.

Brigid Delaney is a lawyer, journalist, author and member of the Melbourne-based anti-death penalty group Reprieve.

Editor’s note: This story has been updated to correct the amount in U.S. dollars that the Bali 9 smuggled out of Bali.