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

Discussion in 'Criminal Law Forum' started by Simon Waghorn, 30 January 2015.

  1. Simon Waghorn

    Simon Waghorn Member

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    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)?
     
  2. John R

    John R Well-Known Member

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    Hi @Simon Waghorn,
    Interesting question.

    Division 115 of the Criminal Code Act 1995 (Cth) sets out:
    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!
     
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  3. Tim W

    Tim W Lawyer

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    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.*

    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.


    ---------------------
    * For the record - I am opposed to the death penalty
     
  4. Sarah J

    Sarah J Well-Known Member

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    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.
     
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  5. John R

    John R Well-Known Member

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