Bali Nine: Legal experts say deal to bring remaining Australian prisoners home would be legal minefield

Any potential deal to bring back the remaining Bali Nine will constitute a legal minefield that would require Indonesia and Australia to sign a “tailor-made” deal, or revisit an abandoned deal that collapsed nearly 20 years, a legal expert said.

Nineteen years after nine young Australians were arrested while trying to smuggle 8kg of heroin into Australia, Home Affairs Minister Tony Burke was due to take advantage of a meeting with Indonesia’s minister of Justice Tuesday to discuss releasing the five people who remain behind bars – Matthew Norman, Si-Yi Chen, Scott Rush, Michael Czugaj and Martin Stephens – back home.

Indonesia’s Minister for Law, Human Rights, Immigration and Corrections, Yusril Ihza Mahendra, said last week that the president had “approved the measures to resolve the issue”, after the Prime Minister Anthony Albanese asked Prabowo Subianto to accept the transfer during a meeting last month.

Indonesia wants reciprocity and Mr Mahendra said he was optimistic the transfer could be finalized by the end of the year.

He said while it was best for the five men to continue serving their sentences if they returned home, clemency would ultimately be up to Australia.

“We transfer them to their countries so they can serve their sentences there, but if countries want to grant amnesty, we respect it. It’s their right,” he said last week.

Mr. Burke and the government have been reluctant to comment on details, for fear of undermining a shaky diplomatic effort.

“I’m very respectful and grateful that they want to be able to have this conversation, and I will approach this conversation with a lot of humility and listen to where the Indonesian government is at,” Mr. Burke said on Sunday.

The demand for reciprocity and Indonesia’s reluctance to grant the men clemency or commute their sentences makes their repatriation a legal challenge, said international law expert Donald Rothwell.

“The only way they can be returned is within a legal framework, which would require the negotiation of a prisoner transfer agreement,” the ANU professor said.

“There is a possible solution, which is to agree on a memorandum of understanding. This is a less formal and more political instrument that could be drafted and would provide a set of tailor-made arrangements suited to particular circumstances.

He said the only other time Australia had struck such a one-off deal was to bring home accused Guantanamo Bay terrorism supporter David Hicks in 2007 after he pleaded guilty in a military tribunal.

He was transferred to Australia and served the remaining months of his seven-year sentence in a South Australian prison – before his conviction was overturned by a US court.

“The Howard government was very keen to resolve the Hicks matter and repatriate Hicks to Australia for political reasons, so a bespoke arrangement was made to facilitate his return quickly,” Professor Rothwell said.

There remains the possibility of concluding a more formal bilateral agreement on the transfer of prisoners. Australia and Indonesia were on the verge of signing a deal almost 20 years ago, shortly after the Bali Nine and Shapelle Corby were convicted of their drug crimes in Indonesia.

The deal at the time would likely not apply to Bali Nine ringleaders Andrew Chan and Myuran Sukumaran, who were ultimately executed in April 2015.

The eighth member, Tan Duc Thanh Nguyen, died of cancer in 2018, the same year the group’s only female member Renae Lawrence was released.

But the deal never came to fruition, and Professor Rothwell said this was partly because Indonesia at the time was unwilling to include Australians convicted of criminal offenses in the deal. drug-related.

Given that the majority of Australians convicted in Indonesia are for drug-related offences, Australia “felt that this would not serve our interests”.

But the new president, who only came to power in October, could attempt to “set the cards straight” and secure a new diplomatic advantage in dealing with partners like Australia.

“The new president may be willing to move forward on this, and there may well be the possibility of negotiating a more permanent treaty,” Professor Rothwell said.

“But in the normal course of events, a more permanent treaty would take six to 12 months to negotiate and enter into force. This is a longer process that is not in line with the timelines suggested by the Indonesians.

Andreas Harsono, an Indonesian researcher for Human Rights Watch, said President Prabowo also had a “personal interest” in those on death row, having himself helped secure the 2015 release of Indonesian death row inmate Wilfrida Soik. in Malaysia.

Mr. Harsono said that nearly a decade later, the president remained personally and politically interested in Indonesians receiving maximum sentences.

“He has a personal interest in helping Indonesians sentenced to death abroad, and to do so he must be fair to foreigners sentenced to death or life in prison in Indonesia,” Harsono said.

France officially requested the repatriation of a man sentenced to death in Indonesia for drug offenses, while Jakarta last month granted amnesty to Filipino Mary Jane Veloso, 14 years after her death sentence.