WA Bali Nine Executions - Charge Indonesian Government under Criminal Code Act 1995?

[Simon Waghorn]

Is Division 115 of the Criminal Code Act 1995 applicable to foreign governments? If yes, is there any reason why the Attorney General Department could not have charges brought against the Indonesian Government officials who have approved the execution of the two Australians (Myuran Sukumaran and Andrew Chan) currently on death row in Bali (assuming the execution goes ahead)?

 

[John R]

Hi @Simon Waghorn,
Interesting question.

Division 115 of the Criminal Code Act 1995 (Cth) sets out:

Division 115 -- Harming Australians

115.1 Murder of an Australian citizen or a resident of Australia

(1) A person is guilty of an offence if:

(a) the person engages in conduct outside Australia; and

(b) the conduct causes the death of another person; and

(c) the other person is an Australian citizen or a resident of Australia; and

(d) the first-mentioned person intends to cause, or is reckless as to causing, the death of the Australian citizen or resident of Australia or any other person by the conduct.

Penalty: Imprisonment for life.

(2) Absolute liability applies to paragraph (1)(c).

115.2 Manslaughter of an Australian citizen or a resident of Australia

(1) A person is guilty of an offence if:

(a) the person engages in conduct outside Australia; and

(b) the conduct causes the death of another person; and

(c) the other person is an Australian citizen or a resident of Australia; and

(d) the first-mentioned person intends that the conduct will cause serious harm, or is reckless as to a risk that the conduct will cause serious harm, to the Australian citizen or resident of Australia or any other person.

Penalty: Imprisonment for 25 years.

(2) Absolute liability applies to paragraphs (1)(b) and (c).

115.3 Intentionally causing serious harm to an Australian citizen or a resident of Australia

(1) A person is guilty of an offence if:

(a) the person engages in conduct outside Australia; and

(b) the conduct causes serious harm to another person; and

(c) the other person is an Australian citizen or a resident of Australia; and

(d) the first-mentioned person intends to cause serious harm to the Australian citizen or resident of Australia or any other person by the conduct.

Penalty: Imprisonment for 20 years.

(2) Absolute liability applies to paragraph (1)(c).

115.4 Recklessly causing serious harm to an Australian citizen or a resident of Australia

(1) A person is guilty of an offence if:

(a) the person engages in conduct outside Australia; and

(b) the conduct causes serious harm to another person; and

(c) the other person is an Australian citizen or a resident of Australia; and

(d) the first-mentioned person is reckless as to causing serious harm to the Australian citizen or resident of Australia or any other person by the conduct.

Penalty: Imprisonment for 15 years.

(2) Absolute liability applies to paragraph (1)(c).

115.5 Saving of other laws

This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.

115.6 Bringing proceedings under this Division

(1) Proceedings for an offence under this Division must not be commenced without the Attorney-General's written consent.

(2) However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Division before the necessary consent has been given.

115.7 Ministerial certificates relating to proceedings

(1) A Minister who administers one or more of the following Acts:

(a) the Australian Citizenship Act 2007 ;

(b) the Migration Act 1958 ;

(c) the Australian Passports Act 2005 ;

may issue a certificate stating that a person is or was an Australian citizen or a resident of Australia at a particular time.

(2) In any proceedings, a certificate under this section is prima facie evidence of the matters in the certificate.

115.8 Geographical jurisdiction

Each offence against this Division applies:

(a) whether or not a result of the conduct constituting the alleged offence occurs in Australia; and

(b) if the alleged offence is an ancillary offence and the conduct to which the ancillary offence relates occurs outside Australia--whether or not the conduct constituting the ancillary offence occurs in Australia.

115.9 Meaning of causes death or harm

In this Division, a person's conduct causes death or harm if it substantially contributes to the death or harm.

Part 5.5 -- Foreign incursions and recruitment

Based on an Explanatory Memorandum for a minor amendment to Division 115 in 2013, I understand that:

• Division 115 was introduced in 2002 following the Bali bombings; and
• The aim of Division 115 was to enable the prosecution of individuals who harm Australians outside Australia (murder, manslaughter, etc.).

My understanding is that:

1. Despite the complexity of international law, any penalty imposed under a country's criminal law system, including death penalty (also known as capital punishment), can be imposed without interference from other countries under the "State sovereignty" principle.
2. Because of this, it is highly unlikely that the Attorney-General of Australia would give written consent to prosecute those enforcing the death penalty in accordance with Indonesian law to Australian citizens and Bali Nine members Andrew Chan and Myuran Sukumaran.

Hope this helps!

 

[Tim W]

Is Division 115 of the Criminal Code Act 1995 applicable to foreign governments?

I agree with the above.
I would add that if carried out according to law in the country where it occurs,
killing by operation of law (eg as a penalty imposed at trial) is not murder.*

If yes, is there any reason why the Attorney General could not have charges brought against the Indonesian Government officials who have approved the execution of the two Australians (Myuran Sukumaran and Andrew Chan) currently on death row in Bali (assuming the execution goes ahead)?

Those officials are not subject to the laws of Australia.
And even if they were, they are not, as a matter of law, committing murder.


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* For the record - I am opposed to the death penalty

 

[Sarah J]

Hi Simon,

This is an interesting question. Unfortunately, when someone leaves their country of nationality (e.g. Australia) and go to another country (holiday country), they are subject to that country's laws for the period of time they are in the country. Sometimes, that country's laws (holiday country) says the laws of the person's national country (e.g. Australia) may apply or that the person will be deported and sent back to home country to be charged under home country's laws (this would be governed by diplomacy and international relations).

In the Bali 9's case, when they went to Indonesia, they came under Indonesian law. Most country's conflict of laws rules say that a person may be deported back to home country to be punished if the home country recognises a similar crime under their law with similar punishments. Indonesia is still free to choose whether to deport or sentence (again, this is governed by international relations and diplomacy).

Australia's domestic laws cannot be used on another country (called "state"). Countries are only governed by international law (and very badly governed, while we're at it). This is due to a principle called "recognition of state sovereignty and the principle of non-interference". The reason is, Australia would not want its government or its people or its government system (including laws) to be put on trial and punished at the whim of some other country's laws (think: Australia and Australians coming under Sharia law or the laws of Saudi Arabia and the Saudi king able to prosecute the Australian government or Australians in Australia under their own law). Because we wish to avoid this scenario, Australia will respect other states' actions/laws in exchange for those same states respecting Australian law and actions. For this reason, Australian law cannot be used to punish Indonesia or Indonesians doing stuff in Indonesia.

 

[John R]

Hi @Simon Waghorn
ABC Four Corners featured Andrew Chan and Myuran Sukumaran on tonight's episode: Eat, Pray, Shoot - Four Corners and included an interview with an Indonesian law professor.