Australia's smuggling laws jail don't jail the smugglers; they jail broke Indonesian fishermen
Cartoon: thanks to Michael
Leunig and The Age
By marginalising the fishing communities that used to fish around Ashmore Reef for centuries, the Australian State has contributed to their availability to smuggling networks as sailors.
It is Australia that supplied and "trained the bus drivers for the bus company" - the sailors we jail as people smugglers.
This page deals with Australia's grossly unjust jailing of hundreds of broke, unemployed and often illiterate Indonesian fishermen who sail refugees to the protection of our shores after finding "casual work" with smugglers in Indonesia. Quick links to the media articles are provided below, and there are numerous links to other pages on our website that deal with people smuggling.
Click the links below to jump down to the articles and items on this page with the same title.
19 April 2010: The 2010 Anti-Smuggling Legislation - Punishing smugglers, or finding a covert way to lock Australia's borders? "In view of commitments given by Australia under the UN Refugee Convention, also to refugees arriving by boat, this legislation gives the appearance of being highly manipulative in nature."
11 March 2010: SBY in Canberra: smugglers will be crims - but the passengers? - Susilo Bambang Yudhoyono's remarks were reported after the morning press conference by AAP, but no media outlets picked them up or read between the lines. What the Indonesian President gave away after closed-door talks in Canberra was more than we heard from Australia's Prime Minister Kevin Rudd.
2 March 2010: To Catch a People Smuggler, to Wade through Brine of Spin - Anyone who tries "to catch a people smuggler" needs to first peel off the many layers of spin and labelling. This page, primarily about 'Captain Bram', one of the Australian government's "notorious" people-smugglers, wonders why he has not been extradited to Australia.
8 November 2009: Kevin Rudd, stuck and becalmed in Merak - Australia's Prime Minister dreams of an Indonesian Solution that fails within a week. Rudd may have made 'that phone call' to President Bambang Yudhoyono, promising even more funding 'to stop the boats' before they would arrive in Australian waters, but he had not counted on local resistance and to fury from Australia and the rest of the world..
21 September 2009: Seeking asylum: Non-protection horrors in Indonesia - An expose of media debate and coverage of the rapidly detoriorating warehousing situation in Indonesia, sponsored by the Rudd government - where the International Organisation for Migration, UNHCR Jakarta and the Australian and Indonesian government all 'assist' to wreck the lives of thousands who seek protection and a better life in Australia.
24 August 2009: Reaching Australia: Iraqi asylum seekers in transit in SE Asia - This paper considers the relationship between asylum seekers and people smugglers, based primarily on interviews with Iraqis settled in Australia and Iraqis stranded in Indonesia since 2001. The study is responsive to recognition within forced migration research of the importance of giving voice to the main agents - refugees and asylum seekers - as part of the research process.
18 May 2009: Kevin Rudd's vile band of people smugglers - Kevin Rudd, with his media remarks, had escalated the issue of people smuggling, and remarkably, a crack appeared in their vileness. For the first time in Australian history, media opinion started to turn against his line, and reporters and opinion writers started to open the issue and, almost unaware of it, started to 'humanise' people smugglers. Thank you, Prime Minister!
:::UPDATED Febr 2008:::: 26 September 2007: Oskar Schindler and the people smuggler - Under Australia's interpretation of what constitutes a 'people smuggler', the young man who sold the donkey to Joseph and Mary would be prosecuted and imprisoned by law ... So would the priest who helped the Von Trapp family ... this page is about Ali Al Jenabi, one of those people smugglers.
Below is the relevant section from Project SafeCom's submission to the Senate Inquiry into the Anti-people Smuggling and Other Measures Bill 2010 - starting with the link to the full document for your download.
A quick glimpse at the data for boat arrivals between June 2009 and April 8, 2010 shows that they brought 3,884 passengers to Australia on 80 boats. In addition, these 80 boats brought 198 crew members to Australia. All of these 198 crew members are potentially liable for prosecution under Australia's people smuggling laws.
Yet on evidence from most of the vessels that arrived since the beginning of this century, most of the crew are likely to be poor, unemployed, probably illiterate or mostly illiterate, and members of the Indonesian fishing communities around the island of Roti. For the favour of having sailed a boat to the vicinity of Ashmore Reef and being paid as little as AUS$120, they face extreme laws that demand years of imprisonment in Australian jails, and we call them people smugglers.
Project SafeCom has personal contact with officials in the Indonesian government. Indonesians, Indonesian human rights organisations and Indonesian government officials are increasingly expressing grave concern and are increasingly angry about what Australia is doing to their citizens. In the words of one such official:
"...all the crews are Indonesians [and these issues] are a matter of great concern to me personally and my government..."
Serious concerns have also been raised for many years by social scientists, criminal lawyers and legal academics about the fact that we catch Indonesian sailors, jail them harshly and call them 'people smugglers' (Balint, 1999, 2005, 2007; Hunyor, 2001, p. 224; Taylor, 2009a). These concerns have also been raised in the context of Australia's "secret deal" with the Sukarno government in 1975 by Prime Minister Gough Whitlam. Ruth Balint's article The Last Frontier (1999) describes how Australia in 1974 claimed a zone of 200kms of the seabed between the North-West coast of Western Australia and Indonesia, leaving just a small area (the 'Timor Box') to the fishing communities as fishing grounds under an Memorandum of Understanding with Indonesia. The deal was "a hastily prepared agreement" (Balint, 2005, p. 71) and has been named as "Australia's Last Colonial Act" (Campbell, 1995).
The MOU was a disaster for the islanders such as those from West Timor's Roti Island. Australia now claimed as its territory an area that had been the fishing grounds for Indonesians for centuries. The Timor box includes Pulau Pasir, 80kms from Roti, known to Australians as Ashmore Reef, but by declaring it in 1983 a 'national nature reserve', Australia ended its age-old significance for Indonesian fishers. Balint describes the traumatic experiences in apprehension, prosecution, harsh sentencing and imprisonment by Australia when they kept fishing in this area. Their imprisonment in Australian jails was more often than not in breach of the human rights provisions legislated in Australia's Maritime Legislation Amendment Act 1994. Balint shows how the lives, pride, income, possessions and livelihood of countless Indonesians have been destroyed to marginalise them in devastating ways.
By being the primary causation of the marginalisation of the fishing communities that used to fish around Ashmore Reef for centuries, the Australian State has contributed to their availability to smuggling networks as sailors. It is Australia that supplied and "trained the bus drivers for the bus company" - the sailors we jail as people smugglers.
Balint, Ruth. (1999). The Last Frontier: Australian Maritime Territories and the Policing of Indonesian Fishermen. Journal of Australian Studies, 2000(63), 30-39,183-186.
Balint, Ruth. (2005). Troubled Waters: Borders, boundaries and possession of the Timor Sea. Crows Nest NSW: Allen and Unwin.
Balint, Ruth. (2007). A Death in the Harbour: Policing Australia's northern waters. The Monthly No 22, April 2007. Retrieved Oct 5, 2009, from http://www.themonthly.com.au/user/125
Campbell, Bruce. (1995). The last colonial act: The expulsion of Indonesian fishermen from the North West coast. In Jan Gothard (Ed.), Asian Orientations: Studies in Western Australian History (Vol. 16). Nedlands, WA: Centre for Western Australian History, Department of History, University of Western Australia.
Hunyor, Jonathon. (2001). Don't jail the ferryman: the sentencing of Indonesian 'people movers'. Alternative Law Journal, 26(5), 223-228.
Taylor, Savitri. (2009a). Hypocrisy and people smuggling. Australian Policy Online. Retrieved 1 Sept, 2009, from http://apo.org.au/commentary/hypocrisy-and-people-smuggling
ABC News Online
By Phoebe Stewart
Posted Fri May 7, 2010 1:41pm AEST
Four Indonesian fishermen who were paid as little as $63 to bring a boatload of Afghan nationals to Australia have pleaded guilty to people smuggling. The men pleaded guilty in the Northern Territory Supreme Court to smuggling 22 Afghan nationals, including one teenager, into Australian waters near Ashmore Island last November.
The Supreme Court heard all four men were under the impression they were to drop the asylum seekers at Ashmore Island and then they could return to Indonesia. The court heard they did not understand the serious consequences of their actions. Three of the men were paid $63 and the fourth $150 before setting off for Ashmore Island.
All four had given their money to their families.
The court heard they were very poor people lured by "real criminals" for a very small amount of money. The men have all been sentenced to serve a minimum of three years in jail.
May 7, 2010 - 3:29PM
AAP / WA Today
Four impoverished Indonesian people smugglers were preyed on by real criminals who are still at large, a Northern Territory court has heard. Usman Dian, 33, Danje Ndolo, 19, Nasrudin Yahya, 25, and Sudin Juma, 19, pleaded guilty in the NT Supreme Court on Friday to smuggling 22 Afghan men from Indonesia to Ashmore Island in a wooden fishing vessel in November 2009.
For much of the hearing loud sobs could be heard from father-of-two Dian, who sat in the dock wiping tears away from his soaked cheeks with his T-shirt. Justice Judy Kelly criticised the legislation that forced her to sentence the four men to five years' jail, with a non-parole period of three years.
"The court has no discretion to sentence them to anything less," she told the court, with the assistance of a translator. "It's a very harsh sentence, isn't it, for people in circumstances such as these."
The court heard the four men were each paid the equivalent of between $A62 and $A125 to bring the asylum seekers to Ashmore Island, off the northern coast of Australia in the Timor Sea. Lawyer Colin Baker told the court the asylum seekers as well as the boat, food and fuel had all been organised by a man known as Mr Baco and that his clients had been used as the final link in the chain.
"They were preyed on by real criminals who are still at large," he said. "They were lured by a very small amount of money given what the penalty is."
He said the men, who come from deeply impoverished backgrounds, naively thought they were taking the asylum seekers to the Australian navy. After four days at sea, the wooden boat later dubbed Suspected Illegal Entry Vessel (SIEV) 79 was intercepted by Customs about 12 kilometres off Ashmore Island.
At 7.30pm on November 27 custody of SIEV 79 was transferred to HMAS Bathurst, the Afghan passengers were transferred to Christmas Island for health and identity checks, and the four Indonesian men were taken to Berrimah Detention Centre in Darwin.
The four men co-operated fully with the navy and made full admissions to Australian police. The court heard the four men, who previously worked in fishing and hotel transport, knew what they were doing was wrong, but were unaware of the penalty. "They are not aware of the political issues in these matters," Mr Baker said.
Justice Kelly said there was no point reserving a decision on the matter and backdated the sentences of all four men to November 27. Justice Kelly is the second judge to criticise mandatory minimum sentencing for people smugglers in Australia in recent months.
Prosecutor Mark McCarthy told Justice Kelly the crown did not agree with statements made by Justice Dean Mildren in October last year when he too was forced to sentence the two Indonesian people smugglers involved in the SIEV 36 Ashmore Reef boat explosion to five years' jail.
"The crown's position is that the mandatory sentence in sensible," Mr McCarthy said. Justice Mildren acknowledged that it was his duty to apply the law, but recommended the federal attorney-general consider releasing the men after 12 months if they helped authorities track down the people traffickers they worked for.
Friday, 30 October 2009
by Bob Gosford
In April this year, Prime Minister Kevin Rudd told the world:
People smugglers are engaged in the world's most evil trade and they should all rot in jail because they represent the absolute scum of the earth. We see this lowest form of human life at work in what we saw on the high seas yesterday.
Rudd was talking about the tragic events arising from an explosion on board a boat carrying a group of Afghani asylum seekers.
Last week Rudd's "scum of the earth" appeared before Justice Dean Mildren in the Supreme Court of the Northern Territory.
The two men charged with bringing the boat into Australian waters are Mohamed Tahir and a man known only as Beny. Beny is one of twelve children and attended school in South Sulawesi till he was about seven-years-old and has mostly worked as a subsistence fisherman and labourer.
As Justice Mildren told the court on his Sentencing Remarks:
...Approximately 12-18 months ago, you left South Sulawesi to go to Java in order to find work. You obtained some employment but about a month before you became involved in this matter, you left Java to go to Lombok in order to find work there. You were approached in Lombok by an older man who offered you employment on this trip. You were to be paid five million rupiah (about $560) which to you is a very large sum of money. You were lured into the task by the money. You expected to be caught. You were told that you would be returned home after a short time.
Mohamed Tahir was one of seven children had a similar work history as Beny and was:
...born in a village called Muncar near Banyuwangi in East Java ... You were approached by two older men at the wharves near your village and were offered five million rupiah to undertake this job. You had not been in work for some months and to you this was a very substantial sum of money. You left your village with the men and you were taken to Lombok. There the vessel was loaded with the passengers.
Beny and Mohamed were both severely injured in the explosion.
As Justice Mildren told them in Court:
Beny ... received burns to your left leg, left arm, left foot and the left side of your back. You were also thrown into the water for about 25-30 minutes before you were rescued. You were hospitalised for about 20-30 days.
Tahir, also received burns to your right arm and left leg. You have permanent significant scarring. You are still wearing bandages and will need to wear the bandages for the next two years. You still have pain.
Beny and Mohamed entered guilty pleas to section 232A of the Migration Act 1958 for which the maximum penalty is imprisonment for 20 years or a fine of $220,000 or both.
The true evil for Beny, Mohamed and for Justice Dean Mildren, is the requirement that anyone found guilty under section 232A is liable to a mandatory minimum sentence of five years with a mandatory minimum non-parole period of at least three years contained in section 233C of the Migration Act.
These provisions were introduced in 1999.
Introducing the Bill to the House of Representatives, Peter Slipper said that:
The bill ... introduces a more severe penalty of 20 years imprisonment or 2000 penalty units, or both, for the trafficking of groups of five or more people. This penalty recognises that organised crime groups are involved in people trafficking, and the penalty reflects the seriousness of the offence.
Labor's Con Sciacca responded:
Overall in 1997-98 some 157 illegal immigrants arrived by sea on our shores. In 1998-99 this figure increased eightfold to 859, and more are coming every day. This increase in people smuggling, in the operation of the so-called "snakeheads", signifies that Australia's penalties for these offences do not go far enough to deter those who assist these criminal warlords on our shores.
But in Beny and Mahamed's case all in Justice Mildren's Court knew that they were not members of one of Slipper's "organised crime groups", nor were they Sciacca's "snakeheads" or Rudd's "scum of the earth" deserving of the condign punishment required by the Migration Act provisions.
Beny and Mohamed were prime candidates for the exercise of ordinary judicial discretion and the application of the usual judicial Sentencing Principles that provide clarity and transparency in sentencing.
But in Beny and Mohamed's case Justice Mildren's hands were tied.
In words that reveal his barely restrained judicial frustration, he told Beny and Mohamed that:
But for the mandatory minimum sentences which I am required to impose, I would have imposed a much lesser sentence than I am now required by law to do. There are dangers when the Courts are required to impose mandatory minimum sentences. In cases such as this, the ordinary sentencing principles play no function.
The other dangers of mandatory minimum sentencing, apart from the fact that the Court is required to impose a sentence which is greater than the justice of the case would otherwise require include the fact that principles of parity between offenders has little or no role to play. All offenders that fall within the class will be treated equally no matter what their level of criminality may be.
However this is not the occasion to debate the merits of mandatory minimum sentencing.
Beny and Mohamed were both sentenced to five years "on the top" and a non-parole period of three years. Justice Mildren recommended that Beny and Mohamed be released after twelve months.
Maybe now is the time to debate the merits of mandatory minimum sentencing?