On Monday, AFP Commissioner Andrew Colvin, Deputy Commissioner Mike Phelan and Deputy Commissioner Leanne Close will host a press conference to discuss the role it played in the arrest of the Bali nine. The AFP has declined to discuss the matter in detail until now, on the grounds that it could have jeopardised efforts to secure clemency for the ringleaders Andrew Chan and Myuran Sukumaran, who were executed by firing squad last week. Here are nine questions the AFP must answer about its actions.
1. Does it believe tipping off the Indonesian police about the Bali nine's plan, in the knowledge that the information could lead to them facing the death penalty, was the right thing to do?
A 2006 review by Federal Court Judge Paul Finn found that the AFP had acted lawfully in telling Indonesian police about the Bali nine's plans but, given its information contributed to the group being charged with crimes punishable by death, was the AFP's action morally justified?
2. Why did the AFP tip off the Indonesian police to arrest the group in Bali, instead of arresting them on their return to Australia?
The heroin smuggled by the group was destined for Australia. Australia was where the harm of the drugs would be felt. By arresting them on their return, the AFP would have eliminated the risk of the smugglers being put to death.
3. Could allowing the group to return to Australia have enabled the AFP to identify the leaders of the drug ring?
Ten years after the Bali Nine smuggling operation, none of the masterminds of the operation has been prosecuted. Had the AFP waited for the smugglers to return, they may have led police to their leaders.
4. To what extent was the AFP's approach to the Bali nine case influenced by a desire to promote Indonesian police co-operation on other issues, such as counter-terrorism?
Did the AFP sacrifice the Australian drug smugglers to win the co-operation of its Indonesian colleagues for its work in other areas?
5. Has the AFP provided information in any other cases since 2005 that could have led to other people facing the death penalty?
It was not until 2009 that the AFP's operational guidelines on co-operation with countries that impose the death penalty were updated by the Rudd government in an effort to prevent a repeat of the Bali nine case.
6. Is there anything in current AFP protocols that would prevent this from happening again?
Legal experts have suggested the current guidelines would not have prevented the AFP from tipping off Indonesian authorities about the Bali nine, because they do not contain any presumption against it co-operating with overseas authorities on cases where the death penalty could be applied.
7. If the AFP faced the same set of circumstances today, would it act any differently?
The AFP has denied any wrongdoing. Would it do it all again?
8. Would the AFP benefit from stronger guidance on co-operation with overseas law enforcement services in cases in which the death penalty could be applied?
The Law Council of Australia has said the AFP's current guidelines give it broad discretion to provide assistance to overseas counterparts, even when doing so may ultimately result in the imposition of the death penalty. Would stronger guidance make the AFP's obligations clearer and make it easier for it to refuse inappropriate requests?
9. Why shouldn't the AFP be prohibited from sharing information with an overseas law enforcement agency that could lead to prosecution for an offence carrying the death penalty?
Independent MPs Clive Palmer and Cathy McGowan have proposed legislation that would make it a criminal offence punishable by imprisonment for a public official to disclose information in circumstances that may lead to the imposition of the death penalty.
