Gagging on scag scam

I must be going through a particularly grumpy phase of middle age at the moment. It’s not often these days that I find myself so peeved by a TV current affairs story that I can’t resist resorting to a cathartic blog post.

But that was certainly the effect of an item about the so-called “Bali Nine” group of alleged heroin smugglers on this evening’s ABC 7.30 Report . The propaganda line of Kerry and his comrades was signalled by the Red One’s introductory remarks:

Welcome to the program. For the Australian alleged heroin smugglers known as the Bali 9, who could face a firing squad after being arrested and charged on Indonesian soil. It’s a blunt question of life and death. But did it have to be that way? Right from the start there have been questions about why the Australian Federal Police, who were tipped off before the bust, didn’t wait to arrest them when they arrived back on home soil. Two of the alleged drug mules have taken action in Federal Court, claiming the AFP acted illegally in assisting the Indonesian police, exposing them to the death penalty they would not have faced if convicted here in Australia. Now, an explosive letter has emerged from evidence presented in Bali, revealing the AFP gave Indonesian authorities detailed advanced information of the plot as well as instructions to “take whatever action was appropriate”. That “action” may well lead to the death penalty for at least some of the nine if they’re found guilty.

The spin was then perfected by a carefully chosen group of talking heads who developed the predictable ABC/Fairfax line: a mouthpiece for the national lawyers’ union, a disgruntled ex-AFP intelligence operative, and a federal ALP hack (son of the egregious Queensland Godfather Ludwig no less) who said nothing at all but still managed to convey the desired impression that the AFP were stooges of the evil, heartless Howard government.

Viewers weren’t permitted even the faintest hint that the 7.30 Report’s hypothesis, that the AFP should have refrained from taking any action at all against the Bali Nine until they had returned to Australia with their deadly cargo lest the poor naive drug “mules” be exposed to needless risk of the death penalty at the hands of the corrupt Indonesians, might be anything less than blindingly and self-evidently correct.

But what would actually have happened if the AFP had followed the advice of Kezza and his PC luvvie mates? For a start, some of the “mules” might have ended up slipping through the police net and unloading their deadly cargo on vulnerable young Australian kids. And it would have been a lay down misere that the alleged Australian kingpins of the syndicate, Andrew Chan and Myuran Sukumaran, would then have escaped successful prosecution. Both appear to have been fairly careful not to have any heroin on their persons, and it’s a fair bet that both would have possessed more than enough influence to ensure that the “mules” were intimidated out of any temptation they might have felt to do a deal and assist the Prosecution to nail them.

Lastly, such an approach would have represented a conclusive abdication of any responsibility to make the slightest attempt to detect and ensnare the ultimate South-East Asian suppliers of the drugs. Only active co-operation with Indonesian authorities could have achieved that result. As it turned out, the incompetence (if not worse) of Indonesian surveillance efforts meant that the suppliers managed to slip through the net anyway. But failing even to notify the Indonesians of the impending plot in advance would have precluded the making of any attempt at all to detect and catch the suppliers.

“Mules” are cheap and expendable. The approach advocated by the 7.30 Report would have ensured that this particular heroin importation ring continued unimpeded, and that the rare opportunity to take decisive action in advance was completely squandered.

Whether you think this would have been a humane, enlightened and effective approach probably depends on whether you think a preventative, law enforcement-based approach to narcotics control is a good idea, by comparison with a harm minimisation or similar philosophy. There are respectable arguments in both directions. But choosing between them is a policy issue with which the AFP has no legitimate business. Its brief under current laws requires a tough law enforcement approach, which necessarily involves extensive intelligence co-operation with our near neighbours to have any chance of being effective.

I’m much less than sanguine about the notion of enmeshing our law enforcement agencies with systems relying heavily on capital punishment, still less with the prospect of excessively close ties with regimes like Indonesia whose justice system is notoriously riddled with corruption (despite pleasing democratic and other advances in recent years). But it’s difficult to see any viable alternative. Indonesia, Malaysia, Singapore and Thailand all have the death penalty for narcotic trafficking offences. If we accept the 7.30 Report’s assertion that Australian authorities should be precluded from co-operating with any foreign government whose laws prescribe capital punishment, we are essentially accepting that Australia should give up any meaningful attempt to control the drug trade. Funny that Kezza failed to mention that small detail. Shouldn’t we insist on a full public debate before implementing such a radical change in policy? Or is that only necessary when the government is contemplating policies that contradict the left’s ingrained prejudices (like tough anti-terrorism laws, for instance)?

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Ian
Ian
2021 years ago

Hi Ken; also saw that segment and couldn’t help wondering whether those same “talking heads” would agree with letting the Bali bombers slip out to Oz. Then they could spend the next several years in court here and also be safe from the death penalty. I don’t agree with the death penalty – too easy!? – but plenty of everyday Aussies seem to think differently when it comes to bombers and their helpers.
Regards,

Yobbo
2021 years ago

Supplying drugs is very different to murder. Do you recommend the death penalty for all GlaxoSmithKline employees too?

I am a supporter of the death penalty – but it shouldn’t be applied to people whose only crime is selling something to a willing buyer.

The difference between illicit drugs like Heroin and the ones you can buy from your local pharmacy are not great. Heroin just doesn’t come with a recommended dosage or warning labels – and for that the drug war is to blame, not the drug itself.

“For a start, some of the “mules” might have ended up slipping through the police net and unloading their deadly cargo on vulnerable young Australian kids.”

Nice emoting there. “Deadly” cargo! “VULNERABLE YOUNG KIDS!” Won’t someone please think of the children?

I have 1997 stats: Alcohol killed 3300 people and hospitalised 50,000 (http://www.nhmrc.gov.au/publications/synopses/ds7syn.htm), Heroin 599 (http://www.adca.org.au/publications/Drug%20Policy%202000/66_heroin.htm). Furthermore, of the 599 heroin deaths, 45% of the deaths resulted from a combination of alcohol and heroin, not heroin alone.

I assume you’ll asking the police to next arrest the CEO of Lion Nathan Brewery, the biggest MURDERER OF AUSTRALIAN KIDS in history?

In addition, use of heroin, unlike alcohol and tobacco, does not result in lifelong chronic health problems like heart disease, cancer, liver problems etc. The only risk is that you will take too much (or consume too much along with other depressants like alcohol) and your respiratory system will give out.

This risk would be reduced by a whopping percentage if you didn’t have to buy heroin from organised criminals and were completely oblivious to the safe dosage and usage guidelines.

‘Every year, more than 400,000 Americans die as the result of tobacco use. Alcohol abuse results in the deaths of another 110,640 Americans, including 16,653 alcohol-related traffic deaths. Alcohol is a major factor in more than half of all homicides and rapes, 62 percent of assaults, and 30 percent of suicides. Illegal drug use causes another 3,562 deaths.

According to the Cato Institute, based on deaths per 100,000 users, “tobacco kills 650, alcohol 150, heroin 80, and cocaine 4.”‘

So please tell me, what possible sense is there in keeping heroin illegal while other, much more dangerous drugs like alcohol remain completely available throughout Australia?

The answer is that there is none at all. The law regarding which drugs are illicit and which are not are mostly completely arbitrary, and are left over overreactions to the newfound phenomena of chemical addictions in the early 20th century.

We now have a system for dealing with the addictiveness of medicines (the prescription, drug counselling, drug replacement etc), but Heroin is forever off the books because of the stigma attached to being banned for so long.

Posts like this are a perfect example of why there will never be the “full public debate” that Ken pretends he wants. If this is the reaction of a supposedly intelligent, educated man to the Heroin boogeyman, then imagine how useful your average politician is going to be.

Ken Parish
Ken Parish
2021 years ago

Yobbo

You’re wrong about my not wanting a full public debate. And I think I agree with a lot of the points you make. However the differences between the number of deaths attributable to alcohol and heroin may well be in large part a function of the fact that there are vastly more users of the former i.e. both are deadly drugs for a significant number of vulnerable users. So I certainly don’t resile from the emotive characterisation, and I’m personally undecided about whether a legalisation/harm minimisation policy is advisable because of those deadly characteristics. There is good statistical evidence that strong law enforcement can reduce consumption levels of heroin, and therefore numbers of deaths and other adverse effects, and the fact that one deadly drug (alcohol) gained legal and social acceptance long ago doesn’t necessarily lead to the conclusion that we’re obliged to legalise all others as well.

As I said in the primary post, there are some good arguments in favour of a legalisation/harm minimisation approach, and you’ve made most of them well. But while we have our current legal regime and an apparent social consensus in favour of enforcing those laws, the AFP’s job is necessarily one of strong law enforcement. It isn’t Mick Keelty’s job to decide which laws his officers will bother to enforce and which they won’t, especially in the face of the will of public and politicians. Like it or not, the public debate must precede a change in policy. That’s why the thrust of the 7.30 Report story is so odious. But maybe the Bali Nine case (and even this post) might help to bring about that public debate, although one would suspect it would only be over John Howard’s dead body.

Yobbo
2021 years ago

“There is good statistical evidence that strong law enforcement can reduce consumption levels of heroin”

At what cost? How much money is spent, how many lives are lost, and how much violent crime goes on unmolested because the police are too busy trying to save junkies from themselves?

In the US, the average sentence for a first time, non-violent drug offender is longer than the average sentence for rape, child molestation, bank robbery or manslaughter.

Does this make sense to you?

“It isn’t Mick Keelty’s job to decide which laws his officers will bother to enforce and which they won’t, especially in the face of the will of public and politicians.”

Australian police directly led to 9 non-violent Australians facing death at the hands of foreign authorities. If your job is morally odious, you should quit, not whinge about how you were just doing your job.

“However the differences between the number of deaths attributable to alcohol and heroin may well be in large part a function of the fact that there are vastly more users of the former”

No: According to the Cato Institute, based on deaths per 100,000 users, “tobacco kills 650, alcohol 150, heroin 80, and cocaine 4.”‘

And I can add to that Marijuana kills zero, yet it’s still illegal for purposes nobody in the world has ever been able to work out. Taxation issues in the US in the 30’s, apparently.

“But maybe the Bali Nine case (and even this post) might help to bring about that public debate,”

Yeah right. The public debate will come when the nanny state decides to ban alcohol (again). And then it will be defeated and everyone will conveniently forget that all the arguments they used apply equally to the already illicit drugs. The fact is that there simply aren’t enough users of illicit drugs for anyone to care about them, even though the drug war sadly affects us all much more than anyone realises.

Yobbo
2021 years ago

By the way, I have expanded on my original comment on my blog, including a discussion of why heroin is illegal in the first place.

http://www.gravett.org/yobbo/?p=1443

Yobbo
2021 years ago

By the way, until 1952, Heroin was a key ingredient in most commonly available cough mixtures in Australia. So it’s likely that both yourself and John Howard are ex-users.

Ken Parish
Ken Parish
2021 years ago

I wasn’t even born in 1952.

Yobbo
2021 years ago

My bad. I had you pegged for late 50’s. Sorry ;)

Dave Ricardo
Dave Ricardo
2021 years ago

” For a start, some of the “mules” might have ended up slipping through the police net and unloading their deadly cargo on vulnerable young Australian kids.”

How? The cops knew what flight they were going to be on and all their other plans. What did you think the 9 were going to do, walk out through a fence at the back of the airport instead of going through customs?

“And it would have been a lay down misere that the alleged Australian kingpins of the syndicate, Andrew Chan and Myuran Sukumaran, would then have escaped successful prosecution. Both appear to have been fairly careful not to have any heroin on their persons”

Why? Nobody seems to think they are going to escape prosecution in Indonesia, just because they didn’t have the stuff on them when arrested. In fact, if you to put money on who of the 9 is most likely to be executed, it is those two.

These points aside, the weakness in your argument, Ken, is your assumption that the AFP had no choice in the way they handled the matter, that they were compelled to inform the Indonesian police as a matter of policy over which they have no control. This is balderdash. How they handled the case was an operational matter of which they had complete discretion. They chose to pass the information to the Indonesian police.

Maybe from a purely operational point of view it was the right decision, in that it might have led to the arrest of suppliers up the chain, maybe it wasn’t; but for Mick Keelty and his apologists to say it was out of their hands is complete rot.

Homer Paxton
Homer Paxton
2021 years ago

Yobbo, I suggest you look at the relationship between illicit drug use and psychriatic disorders

Ken Parish
Ken Parish
2021 years ago

Dave

How would Australian police obtain evidence of the involvement of Chan and Sukumaran other than by co-operating with Indonesian police to stake them out in Bali? Are you suggesting AFP should have conducted a covert surveillance operation in Bali without notifying Indonesian authorities? As for intimidation, I suggest that they would be much more likely to have criminal associates in Australia in a position to arrange for the other defendants to be approached in gaol and reminded of what would happen if they open their mouths and implicate the ringleaders. I repeat, an operational decision to avoid tipping off the Indonesians and simply arrest the group when they returned to Australia would have been tantamount to giving up any prospect of catching or convicting either the Australian ringleaders or overseas suppliers. That simply makes no sense.

Dave Ricardo
Dave Ricardo
2021 years ago

Ken

The AFP knew about Chan and Sukumaran before the gang went to Bali. You say that they would have intimidated the others into not giving evidence against them had the gang been arrested in Australia. But this is just an assumption. You don’t know whether it’s true or not.

From where I sit, the alternative options faced by the AFP look this.

Option A: arrest the whole gang in Indonesia. Outcome – higher chance of prosecuting ringleaders, maybe catch suppliers up the line (didn’t catch them, as it turned out), all 9 maybe get shot to death, drugs get confiscated.

Option B: arrest the whole gang in Australia – lower (maybe) chance of prosecuting ringleaders, don’t catch suppliers up the line, the 9 serve lengthy jail setences (maybe the ringleaders get off as you hypothesise, maybe not), drugs get confiscated.

Either way, the drugs don’t find their way to the street.

The AFP opted for Option A. It was a big call.

Jim Birch
Jim Birch
2021 years ago

Homer

It’s a lot more complicated than that. Kids who grow up in happy homes are much less likely to become alcoholics, use illegal drugs, get into problems with illegal drugs, beat their own kids, steal cars, and have psychiatric problems. People who are suffering mental disorders are more likely to seek out ways of altering their consciousness and are more likely to use them poorly. Self-administered drugs (including alcohol) are very common quick-fix strategies; they’re generally poorly managed and regularly come unstuck, for various reasons.

There’s plenty of correlations available, but basically, happy people don’t need to get whacked too often, and they tend to know when to stop.

C.L.
2021 years ago

Kelty is a blabbermouth galoot with blood on his hands and should be fired forthwith.

Having said that, Ken’s point about the AFP being an implementer of drug policy and not the maker of it is an important one.

I agree with Yobbo but for different reasons.

First, this was an appallingly limp-wristed decision, as regards the image of Australia in Indonesia. Makes us look like a bunch of ponces without the moral will to conduct a police operation according to our own cultural values. And Dave is correct: how in the blinking blue blazes could these characters have decamped from the Sweeney from a freaking plane? Parachutes?

Second, the death penalty is usually disproportionate to the crime in most drugs cases. People sell them because people buy them. Just like cigs, only without the same body count. Just like booze, only without the same degree of resultant violence. The imminent killing of Nguyen Tuong Van is a disgraceful example.

People often object thus: ‘yes, but these Asian countries don’t want to send the message that drugs are OK – it may be extreme but it generally works.’ And it’s usually the case that the same countries are absolutely riddled with corruption and more prone to state-sanctioned violence. Their stance is massively hypocritical and sanctimonious.

Exampli grati, Indonesia. Take drugs into the country and they’ll shoot you or lock you up for 20 years. Be spiritual mentor to mass murderers and they’ll reduce your sentence. Massacre citizens at Tanjung Priok and they’ll let you off. Indonesia is a basket case of a country and the AFP have bent over forwards to accomodate them.

C.L.
2021 years ago
Jacques Chester
Jacques Chester
2021 years ago

Ken;

Perhaps it may be worth attaching the concept that foreign evidence carries foreign norms of enforcement. Analogous to the founding principle of extradition that a crime must be a crime in both countries.

So for instance, if the prosecution wishes to rely (ultimately) upon Australian intelligence, they are limited to requesting the life sentence.

Of course this would require a substantial rewrite of current and future treaties, following troublesome negotiations. I suspect that this will float gently into the Just Too Bloody Hard Basket.

John Quiggin
John Quiggin
2021 years ago

I’d apply your main argument in reverse Ken. If the effective application of a prohibitionist policy requires us to be complicit in the death penalty (as you assert) then that’s a sufficient reason in itself for abandoning prohibition.

mogger
mogger
2021 years ago

Smuggling/dealing in hard drugs is akin to murder no matter which way you look at it.
These mules are not innocent victims, or non violent as one poster suggested.

saint
saint
2021 years ago

What got me is the “high moral ground” taken by our authorities – required by policy, and used as some pathetic excuse by our parliamentarians – that once the Indonesians laid charges that could lead to the death penalty, Australian authorities withdraw their “co-operation”.

What the….?

Oh and because of a cock up (*cough*) they missed the big fish anyway.

The more I read about this, the more it reeks.