Scott Rush was arrested at the island’s international airport with heroin strapped to his body face the death penalty.

Scott Rush was arrested at the island’s international airport with heroin strapped to his body faces the death penalty. The death sentence for Rush is seen here as particularly harsh, given that three other couriers -- known as drug mules -- arrested with him on Apr. 17, 2005, were sentenced to 20 years and to life in prison. Originally awarded a life sentence, Rush’s appeal only resulted in his sentence being increased to death.
"It’s anyone’s guess (as to) why Scott’s penalty was upgraded to death when anyone looking at the case could see that it’s pretty obvious that he was just a mule," says Martin Hodgson from the prisoner advocacy group, Foreign Prisoner Support Service (FPSS). But this latest development has provided the impetus for further scrutiny of the role played by the Australian Federal Police (AFP) in the arrests of the Bali Nine by the Indonesian authorities.



The Indonesian Supreme Court’s decision in early March to commute the death sentences of Tan Duc Thanh Nguyen, Matthew Norman and Si Yi Chen to life imprisonment was described by Stephen Smith, Australia’s Minister for Foreign Affairs, as "very welcome news", a sentiment also expressed by human and civil rights organisations around the country.
The three’s initial life sentences were reduced to 20 years on appeal but then upgraded to death following prosecutors’ counter-appeals. The three men were arrested -- along with the condemned ringleader Myuruan Sukumaran -- with 350 grams of heroin in a suitcase at a Bali hotel in 2005.
They can hope that with good behaviour their life sentences will be further reduced and they will be allowed to serve out part of their prison terms in Australia. But Sukumaran, his co-ringleader Andrew Chan, and Scott Rush, one of the drug couriers -- "I think it’s unfortunate whenever the AFP assists in arrests of Australians overseas knowing that the penalty is the death penalty," Hodgson told IPS.
After initiating the investigation into the group in Feb 2005, the AFP tipped-off Indonesian police regarding the expected activities of the Bali Nine. In letters dated Apr 8 and 12 of that same year -- written in Indonesian and titled ‘Heroin Couriers From Bali To Australia’ and ‘Currently in Bali’ -- AFP officers provided their Indonesian counterparts with detailed information about members of the group and how they expected the heroin to be transported.
In a 2006 interview with the Australian Broadcast Commission (ABC) television programme ‘Australian Story’, Mike Phelan -- the AFP officer ultimately responsible for the decision to provide the Indonesians with the intelligence about the group -- explained that the letters alerted Indonesian authorities about the group for the first time. The letters advised Indonesian police to take "whatever action you deem necessary". The AFP defends its action as a success. AFP commissioner Mick Keelty has refused to apologise, saying that police acted lawfully and in accordance with government policy. The AFP says that the arrests stopped more than eight kilograms of heroin -- at an estimated value of 4 million Australian dollars -- from hitting Australian streets. Additionally, the AFP is confident that the syndicate behind the Bali Nine’s actions -- which they say was responsible for previous drug smuggling -- was closed down with the help of Indonesian surveillance and subsequent arrests.
But Hodgson from FPSS says that while the AFP is obliged to work with law enforcement agencies in other countries, the arrests could have been made in Australia, where the death penalty has been abolished. Hodgson argues that prior to the group’s departure from Australia, the AFP "could have, at the very least, arrested those they knew to be leaving". Phelan, however, said that this was not an option at the time. "There was just simply not enough evidence" to charge members of the group with conspiracy to commit a crime, he told the ABC. The AFP officer also rejected the option of arresting the Bali Nine when they arrived back in Australia -- another course of action open to the AFP, according to Hodgson -- as the decision to arrest the group was made under Indonesia’s "own laws and own jurisdiction".
The New South Wales Council for Civil Liberties (NSWCCL) has also spoken out against the AFP’s actions. AFP documents obtained by the NSWCCL under freedom of information laws show that Australia’s federal police are still lawfully allowed to cooperate with foreign law enforcement agencies on a police-to-police basis prior to a person being charged with an offence that may lead to the death penalty. The AFP is only barred for cooperating once a death penalty charge has been filed. However, the ‘Practical Guide on International Police-to-Police Assistance in Death Penalty Charge Situations’ indicates that the AFP can still continue providing assistance following such a charge if the attorney-general or minister for home affairs give their approval. The AFP "needs to re-address their protocols when it comes to assisting in cases that will ultimately lead to the death penalty," Hodgson says. Australia acceded to the Second Optional Protocol to the International Covenant on Civil and Political Rights -- which aims to abolish the death penalty -- in 1990, but it has not been adopted into domestic law and is therefore not legally binding. Hodgson says that Australia has an obligation to "not only oppose the death penalty but to ensure that we don’t facilitate it in any way".
"If the AFP is conducting practices that result in the death penalty, even if indirectly, then they need to review those procedures," he argues.