The power to request that a person be extradited from another country to face criminal charges in Australia lies with the Commonwealth Executive. It is a prerogative power. (1) There are currently 12 Australians facing possible death sentences across Indonesia, Vietnam, China and Uganda. (2) Among these are the alleged drug traffickers commonly known as the 'Bali Nine'. This paper will consider the legal viability--and not the political probability--of extraditing Australians in order to avert the death penalty, using the Bali Nine as a case study. Indonesian law will not be examined in detail and the evidence applicable to that case will not be scrutinized. Although the facts are specific, the aim is to canvass the legal points of contention which are likely to arise in relation to Australians in similar circumstances.
The Bali Nine could be extradited to face charges under the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth). (3) Australia does not have the death penalty. (4) Assuming Indonesian authorities agree to the extradition request, (5) the accused could be prosecuted and punished in Australia. Australian law does not prohibit extradition where a person has been charged, convicted or even sentenced by a foreign jurisdiction. The fact that the Bali Nine have been through the Indonesian judicial system is not, in itself, a bar to extradition.
After briefly describing the facts of the case, the legal footing for both the request and the surrender of the individuals concerned will be explained. The paper will then consider the possibility of post-extradition Australian criminal proceedings being permanently stayed (and effectively annulled) on the basis that the extradition constituted an abuse of the court's process. After concluding that such a stay is unlikely, it is proposed that the Australian Executive should elucidate the factors distinguishing those considered eligible for extradition from those who are not. Finally, it is proposed that the risk of capital punishment being applied to Australian nationals should stimulate investigation into whether their extradition--to face alternative charges in Australia--is possible.
This paper does not advocate overarching changes to the law, but instead a clarification of the extradition power as it stands. Currently, there is almost no information available as to the basis upon which Australian extradition requests are made. The factors relevant to extradition decisions should be articulated, effecting a more transparent and consistent extradition procedure.
II EXTRADITION IN THE CASE OF THE BALI NINE
A The Bali Nine: Factual Overview (6)
In April 2005, nine Australians were arrested by Indonesian police in relation to an alleged plot to transport large quantities of heroin from Indonesia to Australia. It is alleged that the Australian Federal Police provided information which lead to the arrests. (7) Michael Czugaj, Renae Lawrence, Martin Stephens and Scott Rush were arrested at the Bali airport while waiting to board a flight to Sydney. Heroin is alleged to have been strapped under their clothing. Andrew Chan and Myuran Sukumaran are cited as the masterminds behind the foiled attempt. Tach Due Thanh Nguyen, Mathew Norman, and Si Yi Chen were arrested together at Kula's Malasti Hotel. All nine have been charged and sentenced under Indonesian law. (8) Two of the accused have been sentenced to death while the remaining seven have been given life sentences. 9 If any of the seven chose to appeal their sentence, they would once again be exposed to the possibility of capital charges. (10)
B Competing Jurisdictions
Extradition in order to subvert legitimately undertaken foreign proceedings seems objectionable. However, neither the Commonwealth Executive (responsible for extradition requests), nor courts hearing cases brought by extradition, are obliged to take this into account. …