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Kerr disturbed by events in Bali -

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Kerr disturbed by events in Bali

Reporter: Tony Jones

TONY JONES: Duncan Kerr, what's wrong, do you believe, with the way that the Federal Police have
handled this case?

DUNCAN KERR, LABOR BACKBENCHER: I'm not going to make a criticism of the way the Federal Police
have handled this, because they obviously need to have effective working relationships with the
Indonesian authorities. What I am critical of is what seems to me to be a falling away of our
commitment to treating seriously Australia's opposition to the death penalty. And we have to
balance our very real security and law enforcement concerns and the way we deal with Indonesia and
all other countries with a real commitment to the national policy that's implemented in our
legislation, both with respect to extradition and mutual assistance.

So, what troubles me is that in all of the discussion, the consequences don't seem to be fully put
on the table. We aren't putting into our law enforcement discussion the consideration that we have
to take into account the fact that the death penalty may well be the ultimate outcome of particular
operations, and it may be that there are more effective ways consistent with law enforcement
co-operation with other countries that avoids that outcome. In order to avoid the outcome, the
Federal Police should have behaved differently in the case? What troubles me is it seems to me we
are walking away from the fundamental commitment that the Australian Government has operated on for
several decades, which means that, for example, if a country requests our assistance with
extradition, extradition is refused unless either the death penalty does not exist or, if it does
exist, we get an undertaking it will not be implemented.

For formal requests for law-enforced co-operation through the Mutual Assistance treaty, a similar
undertaking is required. We've never required that kind of undertaking in areas where we are
providing preliminary intelligence for very straightforward reasons. Take, for example, a situation
where we became aware of a threat to blow a Chinese plane out of the air. We would pass that on to
the Chinese authorities, notwithstanding the fact that the death penalty exists in China and is
routinely used, but that doesn't mean that we should be indifferent to the consequences, and there
are often different ways of proceeding. And in drug smuggling, in particular, it is more common
than not that what we do is actually facilitate an arrangement where we actually try to track the
drugs through.

We pass legislation to allow controlled deliveries, so we actually don't just catch the mules and
the people on the ground - we actually try and catch the distribution network and the financial
operators, the people who are actually behind the whole operation. And that doesn't mean that we
don't co-operate with other countries, but it may mean that in fact the prosecutions proceed in
Australia, where the death penalty does not exist. that in this case - at least in the case of the
alleged heroin mules - those who were alleged to have been carrying heroin on their bodies, they
should have been allowed to bring that heroin into Australia? This isn't just a matter of being
soft-hearted. It's a matter of routine law enforcement.

The normal course - the course that is followed, in my experience, because of its more effective
nature - is that you, if you can be confident you are not going to lose track of the drugs through
the supply chain, you actually permit the drugs to run, you often substitute them, but you actually
try and catch the people up the supply chain, not just the mules. And can I say, I think we do have
to bear in mind the consequences of our conduct. Law enforcement is not done in a value-neutral
environment where operational considerations don't take into account the human costs.

TONY JONES: The human costs - in this case, you are specifically referring to the potential that
nine Australians could face the death penalty. Is that what you mean by "human cost" in this case?

DUNCAN KERR: There are two Australians now subject to the death penalty, one in Singapore and one
in Vietnam, and nine - and if you include Schapelle Corby, 10 - potentially subject to the death
penalty in Indonesia. What I would say is that I've heard Mick Phelan speaking for the AFP earlier,
saying that one of the reasons they operated in this way was because they suspected that the drugs
might have been ingested, swallowed in condoms, and they feared that someone might die in transit
to Australia. Now, that is a risk in letting that operation run, but equally, the human potential
that these people are going to face death by firing squad equally has to be taken into account. We
don't just approach these things neutrally.

That is why when, say, Singapore approaches us for assistance which requires us to produce, say,
forensic evidence or something of that kind or requests extradition, we would say to the
Singaporese Government no because of our legislation. "Unless you give an undertaking that the
death penalty will not be imposed, we can't extend that co-operation." We shouldn't undermine that
by the manner in which we operate our informal intelligence sharing and co-operative law

TONY JONES: Let's look at specifically what happened. In this case, the AFP gave intelligence to
the Indonesians so that they could act to apprehend these nine Australians. Are you saying that
before that intelligence was handed over, the AFP should have considered the possibility of the
penalties and struck some sort of a deal?

DUNCAN KERR: Well, let me say that routine interchange of information occurs between law
enforcement agencies in Australia - between the states and the Commonwealth - and internationally.
It's not an unusual thing. Very frequently we do ask agencies in other countries to provide
background support, surveillance, intelligence support. We do permit drugs to come across the
national border. We usually impound them, we substitute them and we chase them up the supply chain
and we prosecute people in Australia. This has been routine. Many, many prosecutions in this
country have been conducted in that way.

I'm sure that it is possible to make representations to the Indonesians - not to offend them in any
way, but to say, "Look, we would hope you would extend the same kind of co-operation. We are
providing this information, it's an intelligence-driven operation where we are the lead agency and
we'd appreciate your assistance." Now if that had happened -

TONY JONES: Can I just interrupt you, Duncan Kerr, because that would presumably apply to those
caught on the aeroplanes, but not necessarily to the ones who were picked up in the hotel.

DUNCAN KERR: That's true. And there is no doubt that they would have been dealt with by the
Indonesian authorities or by extradition at requests by Australia to Indonesia. It is possible -

TONY JONES: So is that what you are saying should have happened here, extradition requests
immediately put in for the nine to be sent back to Australia?

DUNCAN KERR: Well, let me say that I'm not a person who can second-guess all of the operational
intricacies. There may be operational matters not so far disclosed that suggest the operation was
passed to the Indonesian authorities because of a belief that some of the key ringleaders higher up
in the distribution chain would be detected through that process and could not be if the drugs were
allowed to run into Australia. Those sort of operational possibilities I suppose exist, but the
thing that concerns me is that as we move towards using the rhetoric of war more often - "the war
on drugs", "the war on terrorism", it brings with it the idea that death and casualties are an
almost necessary and incidental by-product.

Now, we've never taken that view in Australia. We've actually been a leader in world opinion
shaping. We've signed the optional protocol against the death penalty. We've stood up to our
regional neighbours and said that our principled position is against the death penalty. We've had
some difficult discussions in that course because we have not exchanged formal assistance when
requested unless those undertakings have been given, and the police force ought to operate with the
overarching policy that the Australian Government makes. The AFP act leaves operational decisions
to the AFP, but the basic policy framework is that of the Australian Government, which is not to
facilitate the death penalty.

TONY JONES: We know from what Mick Keelty said on the weekend that he intends to give over evidence
and intelligence from Australia to assist this case and that part of the reason for that, not
following the previous policy, is that they were allegedly caught red-handed with heroin. Do you
accept that as a rationale for handing over evidence from Australia?

DUNCAN KERR: Well, our shadow minister Joe Ludwig has asked the Attorney-General to be very
specific about the way in which these particular issues would be handled because we actually have
legislation and international agreements that prohibit the provision of formal evidence under the
mutual assistance treaty arrangements unless those undertakings against the death penalty are
given. So I would hate to see some suggestion that this is intended to be undercut in any way and
certainly I'm certain that that would be an issue that would concern not just the internal
political cognoscenti, but Australians at large, because the greatest number of Australians in my
memory ever facing the death penalty now are living in circumstances where they reasonably expect
that outcome and our Australian Government does not seem to be clear in its formal opposition to
that kind of outcome, and I think that is something that we need to be re-established, re-asserted
and run right through the way in which we deal with not just our formal exchanges and extradition
and mutual assistance, but be understood by the way in which law enforcement is actually conducted.
And let me say, if I could make this point -

TONY JONES: Briefly because we are nearly running out of time and I did want to ask you one more

DUNCAN KERR: Well, ask. I was going to make this point, Tony, when we were operating in Government
there's no doubt Commissioner McCauley, Commissioner Palmer, the senior levels of the AFP, would
not have treated lightly the prospect of the death penalty being imposed as a consequence of the
manner in which they conducted operations. It would always be a material consideration and of
course it is. We can't wash our hands of these -

TONY JONES: You seem to be suggesting that this present AFP are treating it lightly.

DUNCAN KERR: I'm not suggesting the AFP. I am saying there's a responsibility for the Australian
Government to ensure consistency of policy. We've passed legislation. We don't want to get into a
situation where on the one hand we facilitate these outcomes and then we have quite distressing
experiences where Australian ministers are flying into Indonesia or Singapore or Vietnam pleading
for the lives of Australian citizens in circumstances where alternative measures, consistent with
our law enforcement obligations, could perhaps have been pursued.

TONY JONES: All right. One more final question and we have to be a little brief with the answer if
you can. Were you at all disturbed by the role the AFP has played in the Schapelle Corby case,
particularly the public statements that have been made about that case?

DUNCAN KERR: I've got to say I was troubled when I heard essentially a statement - well, on ABC
News, a statement that appeared to say that the AFP's investigations had concluded that the account
that it was possible these drugs had been inserted through baggage handlers was not credible. Now,
that's the sort of comment that if it occurred during a trial in Australia would certainly cause
enormous controversy and concern amongst lawyers, civil libertarians and the public at large. It
would have been contempt of court.

TONY JONES: Would it have been prejudicial to a trial held in Australia?

DUNCAN KERR: Certainly I believe it would be and I can't rule out the possibility that that kind of
comment would trace its way back to Indonesia and you have a different kind of justice system
operating there. It's one which does operate according to its own very principled rules and I'm not
suggesting it is by any means a system that we should condemn. But to pretend that these kind of
comments couldn't potentially prejudice trials in mid-course seems to me to be very, very
concerning and I am concerned about, I suppose, the way in which almost the assumption that this
account could not be credible because of an AFP investigation and a statement of that. That must be
something that I think needs to be looked at further.

TONY JONES: Duncan Kerr, we will have to leave you there. Thank you very much for taking the time
to join us tonight.

DUNCAN KERR: Thank you.