Chris Hayes (Werriwa, Australian Labor Party) Share this | Link to this | Hansard source

Two weeks ago, a friend of mine introduced my wife, Bernadette, and me to a Queensland couple, Lee and Christine Rush. My friend is Colin McDonald. He is the lawyer representing their son, Scott, who is currently in the death tower at Kerobokan Prison in Bali. Tomorrow morning Colin will be talking to Scott, trying to reassure him that he has not been forgotten. Spending time with the Rushes, I have to say, was a profound experience. On the one hand they are just a normal couple raising a family, with all the struggles of normal life. They are deeply religious and have a tremendous love for their children. On the other hand, you could see the strains of emotion in having a son condemned to death in a foreign country under circumstances and within a legal system that are difficult for ordinary Australians to understand.

It was clear that their love for their son is very deep. As parents they cared about his future. As parents they tried to do something about preventing drugs and crime from becoming his future. You see, Scott is no angel. His mum and dad never claimed he was. Like other loving parents they were prepared to get actively involved, to do something to intervene in his life, in order to help him with his future. It was with that intention in mind that they approached the police, advising them of what they knew about Scott, his friends, his connections and the fact that they strongly suspected he was about to participate in a drug importation exercise from Indonesia. They could even advise the police of the approximate dates that Scott was arriving in and departing from Bali. As Lee and Christine told me, they thought the police could intervene to prevent the crime which they knew their son was becoming involved with.

As I understand it, the Australian law enforcement agency decided to monitor the alleged drug operation. Consistent with international procedures, the AFP notified their counterparts, the Indonesian National Police. As a result, Scott was arrested in Denpasar on 17 April 2005, under a breach of article 82 of the Indonesian narcotics law—a serious offence and one which potentially carries the death penalty. Agency-to-agency cooperation in law enforcement is essential to combat the internationalisation of wide-ranging aspects of criminal activity, particularly in relation to drug related crime.

Having represented the police in every Australian jurisdiction, and through my involvement with the Australian Crime Commission, I know that interagency sharing of criminal intelligence is essential in order to complement community policing strategies. However, under Australian law, Australian law enforcement agencies, unless specifically authorised, are not to lend assistance in relation to prosecutions that, after the point of charge, if proven, could carry the death penalty. In relation to the Bali Nine, at the time of the communication with the Indonesian police, there were no charges. Under Indonesian law, unlike our legal provisions, a person is not required to be charged until formally indicted at trial. A person can be arrested under narcotic laws, as in this case, and formally charged after all the evidence has been assembled. As this investigation was an Australian police operation, the AFP continued to cooperate with the Indonesian authorities well beyond the period that Scott and the other members of the Bali Nine were detained in Denpasar.

With respect to Indonesian criminal law, which has quite different origins from our common-law structure, separate panels of the same court can arrive at vastly different sentences for persons tried under similar circumstances and convicted of the same offence. For six of the Bali Nine, their appeals to the Supreme Court resulted in their sentences going before two such panels. Three of the so-called drug mules, including Scott, appealed their life sentences and had their sentences increased to death, without any reference to the mules sentenced by the second panel. The second panel handed down life sentences. In fact, the judgement in the appeal proceedings did not refer at all to the sentences of the other three drug mules arrested in identical circumstances to Scott. Martin Stephens and Michael Czugaj both received 20-year sentences in proceedings of the High Court. Their sentences were increased to life, on appeal to the Supreme Court. Like Scott, they were mules.

As I understand it, the Indonesian criminal law system is vastly different to ours. However, one would ordinarily expect the application of consistent and comparative sentencing decisions from any court, particularly one that has the capacity to apply capital punishment. Further, it is concerning from an Australian perspective that the increase in sentences occurred without any request from the Indonesian prosecutors. I have met both Lee and Christine Rush and sympathised with their position as loving parents, only to find their boy on death row, particularly when they took the very serious step of notifying the police in the first place. Bernadette and I came away from that discussion thinking, ‘What could we possibly do to assist this family and, for that matter, other Australian families who find themselves in a similar predicament?’

Madam Deputy Speaker Burke, think back to Friday, 2 February 2005, which is a date I know you are very familiar with: the day that Nguyen Tuong Van was executed in Changi Prison. As that date neared, I recall the speeches, the pleas for mercy, the prayers that were offered and, in fact, the intervention of the Pope—not to mention all the diplomatic effort. We are either prepared to make the same desperate pleas for compassion on each and every occasion or, alternatively, as an Australian community we can actually take certain steps to communicate to the world our position of being firmly opposed to capital punishment.

To quote the South African judge Ismail Mahomed, who is now Chief Judge of the South African Constitutional Court:

The death penalty sanctions the deliberate annihilation of life. As I have previously said, it is the ultimate and the most incomparably extreme form of punishment ... It is the last, the most devastating and the most irreversible recourse of the criminal law, involving as it necessarily does, the planned and calculated termination of life itself; the destruction of the greatest and most precious gift which is bestowed on all humankind.

…            …            …

It is not necessarily only the dignity of the person to be executed which is invaded. Very arguably the dignity of all of us, in a caring civilization, must be compromised ...

In order to avoid as much as possible the exposure of Australian citizens to the death penalty, Australia should act consistently and in a determined way to, in my opinion, legislate to give effect to the second operational protocol of the International Covenant on Civil and Political Rights. This would have the effect of preventing any Australian jurisdiction from making laws permitting the use of capital punishment, but, more importantly, it would communicate our position very clearly and unequivocally to the world at large.

Given the circumstances in which the Bali Nine came to the attention of the Australian police—namely, on the advice of Scott’s father—and the fact that this was an Australian police investigation, I would also assert that the minister should consider giving directions to the AFP that members should not intentionally or predictably expose Australian citizens to the death penalty in AFP operations. Further, all members of this parliament should very clearly and consistently speak out against the use of capital punishment; otherwise, we would be liable to be held up on charges of hypocrisy every time it came to defending Australian subjects with respect to death sentences overseas.

Tomorrow morning, Colin McDonald, my friend from Darwin, will be visiting Kerobokan Prison again. He will be talking to Scott Rush, the Australian kid in the death tower who does not know from one day to the next when his final hours will be. Whilst his Australian and Indonesian lawyers will do everything humanly possible to have these sentences commuted and all those of a religious persuasion continue with their prayers, I believe that as a nation with some standing in this region we could adopt the three modest measures I have just outlined to show all those we have international relations with our principled and fundamental objection to the application of the death penalty. To Lee and Christine Rush, to Scott and to other Australians in the same predicament, we as a nation can show that we care. (Time expired)