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Australia: New Guidelines on International Cooperation in Death Penalty Cases

(Dec. 24, 2009) On December 18, 2009, the Australian government announced that new guidelines governing international law enforcement cooperation in possible death penalty cases had come into effect. (Press Release, Brendan O'Connor & Hon. Robert McClelland, International Law Enforcement Cooperation (Dec. 18, 2009), available at

The guidelines set out a list of factors that must be taken into account by the Australian Federal Police (AFP) when requests for information are received from law enforcement agencies in countries that may apply the death penalty. The factors are:

  • the purpose of providing the information;
  • the likelihood of the authorities in the foreign country using the information only for that purpose;
  • the reliability of the information;
  • whether the information is exculpatory in nature;
  • the nationalities of the person involved;
  • the person's age and personal circumstances;
  • the seriousness of the suspected criminal activity;
  • the potential risks to the person, and other persons, in not providing the information;
  • the degree of risk to the person in providing the information, including the likelihood the death penalty will be imposed; and
  • Australia's interest in promoting and securing cooperation from overseas agencies in combating crime.

The new guidelines also require:

  • Ministerial approval of assistance in any case in which a person has been arrested, detained, charged with, or convicted of an offense that carries the death penalty; and
  • the AFP Commissioner to report biannually to the Minister for Home Affairs about the number and nature of cases where information is provided to foreign law enforcement agencies in potential death penalty cases.

(AFP Practical Guide on International Police-to-Police Assistance in Potential Death Penalty Situations, AFP website, Dec. 9, 2009, available at

The AFP is authorized under the Australian Federal Police Act 1979 to provide assistance to foreign law enforcement agencies, and Australia is a signatory to international treaties on cooperation in combating transnational criminal activity. The AFP has been criticized in the past for providing information to Indonesian authorities about members of a group of accused drug smugglers known as the “Bali Nine,” three of whom are now facing the death penalty. (Australian Police Issued Guidelines on Sharing Information, AUSTRALIAN NETWORK NEWS, Dec. 18, 2009, available at

In their joint press release announcing the guidelines, the Attorney-General and the Minister for Home Affairs stated that “[s]uccessive Australian Governments have maintained a long-standing policy of opposition to the death penalty and it is appropriate that this position is reflected in our law enforcement practices.” (Press Release, supra.)