Bali Nine - a mass execution of Australians?

The legal process in relation to any offending behaviour is a continuum, which commences at the investigative phase and ceases when the offender is sentenced.

In relation to transnational offences, there is sometimes an unavoidable and desirable involvement by one country in the legal process of another country. Where one country provides information to another country regarding a crime that is being committed in the second country, the first country has by that fact become involved in that case.

This principle gives Australia a legitimate say in the sentences which are imposed on the Bali Nine. Not only would the Bali Nine almost certainly not have been detected without the information being provided by the Australian officials, but ultimately Australian authorities will to some extent be held accountable by Australian citizens for the their fate.

This means that where an offence is detected as a result of international co-operation between two countries, the matter must be resolved in a manner that gives some weight to the legal standards of both countries.

This is in contrast to situations where an Australian citizen is apprehended overseas solely as a result of the workings and operations of the legal system of the other country, as was the situation in relation to Michelle Leslie and Schapelle Corby.

If cases of transnational co-operation sentencing outcomes should, where possible, be achieved that respect the sovereignty and legal and cultural norms of both nations.

Of course, it will not always be pragmatically feasible for the sentence to respect the sovereignty and legal and normative standards of both countries. This will be the case where, for example, one country has a mandatory death penalty for an offence and the other country does not have capital punishment.

However, this is not the case in relation to the Bali Nine. Indonesia does not have a mandatory death penalty for drug offences. The most common punishment for such offences is a lengthy term of imprisonment. This is also the most common outcome for such offences in Australia.

This is the only outcome which is appropriate in relation to the Bali Nine. It would also ensure that future co-operation between Australian and Indonesian authorities would not be placed at jeopardy. Such co-operation might be jeopardised as a result of the likely public pressure that would be placed on the Australian government if any of the Bali Nine were executed. This would be an undesirable outcome for the citizens of both Indonesia and Australia.

Paradoxically, in some circumstances the best way forward for Indonesia and Australia to genuinely respect each other’s sovereignty is to recognise and work within the common ground they share. This applies especially in relation to conduct that potentially affects both nations.