The time is fast approaching when the Australian Federal Police will have to explain the decision to deliver the Bali Nine into the hands of the Indonesian police almost a decade ago.
The immediate public priority now is on the pleas for clemency, to save Andrew Chan and Myuran Sukumaran from the firing squad.
But the AFP and all police forces increasingly rely on cooperation and information from the public. How many family members have hesitated to volunteer information to the AFP because they remember what happened with the Bali Nine? How many might hesitate in the future?
At the outset, it’s important to note that the groundswell of community and political support for Chan and Sukumaran is due to them facing the death penalty, despite evidence of rehabilitation and reform. They are already being punished with lengthy jail terms.
Although a blanket explanation has not been provided by the AFP, there are already hints of what might be said once the matter is resolved.
In particular, comments made by then-AFP Commissioner Mick Keelty before the Senate’s legal and constitutional affairs committee in February 2006 are revealing.
Mr Keelty argued that the AFP could not run a “controlled operation” where it did not feel in control of the drugs because “if we allow the narcotics to arrive here, we are actually culpable and complicit in the drugs reaching the streets of Australia”.
The Bali Nine is a classic case where you had some of the people in one hotel, some of the people in another hotel, some of the people about to board the plane and some of the people about to board the plane with no drugs at all—they were simply oversighting, and some would say that they have got a bigger role than the others to play.
You have to leave it to the operational police on the ground to make the call. I, even as Commissioner of Police, am not going to second guess my own staff, let alone an international police force, about when the most appropriate time to interdict is.
However, an Australian Federal court judgement in January 2006 included details of two letters sent by the AFP’s senior liaison officer in the Balinese capital of Denpasar, Paul Hunniford, to the Indonesian National Police on April 8 and April 12, 2005.
The first letter asked the Indonesia police not to arrest the Bali Nine until the “organiser/recipients in Australia were identified”. The second said the Indonesians should arrest the second group “soon after the first group are intercepted”.
So why did the AFP change its stance?
Mr Keelty replied:
I guess the real answer for that would be in the mind of the person who is the author of the letters. But, understanding that this was a live operation and it was developing with time, I think what has been lost in the public statements about this operation is that not all of the so-called Bali nine were identified by the AFP; part of the syndicate was identified through the operations of the Indonesian National Police.
So my only response to your question is that, as the operation got bigger, if you like, and taking into account the fact that what was a suspicion that an activity might occur suddenly turned into the reality of a much larger operation, it was fair to make a call to the Indonesian National Police to deal with the matters as they saw fit.
Mr Keelty argued that six arrests had been made in Australia and he expected more. But he insisted the AFP had to respect Indonesian sovereignty and let their police call it as they see it.
We cannot give over a piece of information, have it become a broad operation and then say, ‘Look, we are sorry about that – can we take that information back, please?’
No one in the AFP would have predicted that this one piece of the 13,000 pieces of information we have sent overseas would have played out the way it played out – even some of the people identified only through the activities and the surveillance of the Indonesian National Police.
We do have sympathy for the innocent people in this, who are the parents and the relatives and the family friends … We have to look at the greater good of the Australian people and the legislation and the ministerial direction under which we operate.
The AFP has always argued that the Federal judgement by Justice Paul Finn strongly endorsed their actions, even though it mostly concerned narrow legal questions relating to the discovery of documents and administrative law.
The judgement said the police actions were a “valid exercise of official power” and that the AFP’s communications with the Indonesian police had a “proper and rational purpose in the furtherance of that police investigation”.
However, the judge also called for the Australian government and the AFP Commissioner to address the procedures covering the exchange of information with an overseas police force in cases which could “predictably” result in a person facing the death penalty overseas.
This was not a one-liner from the judge, who said it was a “foreseeable and likely consequence” of the two AFP letters that the Bali Nine would be arrested in Indonesia and “put at risk of the death penalty”.
Elsewhere in his evidence, Mr Keelty stressed that the AFP did not deal directly with a tip-off from Lee Rush, father of one of the Bali Nine, ahead of his travelling to Bali.
Lee Rush was worried that his son was about to break the law. A barrister and family friend, Robert Myers, relayed those concerns to a friend, a Queensland policeman who was on secondment to the AFP.
In the end, the AFP officer at Sydney airport concluded that there was no basis for detaining Scott Rush, who was on passport watch before the family tip-off.
Mr Keelty told the Senate committee: “Whoever gave Lee Rush the assurance that his son would be prevented from travelling acted dishonourably. There is no way known anyone in the AFP would have provided that assurance, because there was simply no power to detain him.”
However, it’s also clear that the AFP had far more information on the Bali Nine than the tip-off from Lee Rush’s father. They knew names and flights of all, except for Sukumaran.
Recent comments by AFP command – reported last week by the ABC’s 7.30 – indicate that the AFP know they will soon have to give a fuller account.
Deputy commissioner Graham Ashton said: “The AFP doesn’t have blood on its hands, but the important thing is that we agree in terms of [former Foreign Minister] Mr Carr’s general point that we need to say more, but the timing around when we say more is most important. And it’s our view at the moment that we best not talk about that matter publicly until these current clemency matters are being dealt with.”
These comments are a marked shift from the AFP’s statement on February 7, which said it had been “transparent and accountable in relation to its actions on this matter and has always acted appropriately and in accordance with Australian and international policies and guidelines”.
Indeed, even greater transparency and accountability will be demanded when this matter reaches its potentially deadly conclusion.