Complaint to International Criminal Court names Abbott, Morrison, Dutton, Turnbull

A consortium of international lawyers, led from England, has asked the prosecutor at the International Criminal Court to take action against Australia for crimes arising out of its policy towards asylum seekers.

The Consortium has issued a 52-page Communiqué which alleges that the Australian Government is guilty of international crimes because of its policy of indefinite mandatory detention of refugee “boat people” and their forcible removal   to Manus Island (part of Papua New Guinea) and Nauru (which is called the Pacific Solution).

The Communiqué fully explains that the Pacific Solution, which was revived in 2012 and remains in place, appears to have, as its primary objective, breaking the spirit of the people held on Manus or Nauru.

The mistreatment of asylum seekers is not limited to the Pacific Solution.  Christmas Island which is part of Australia, more than 1500 kilometers north-west of mainland Australia,  also had detention centres.

The people are kept in these “Offshore Processing Centres” whilst their asylum claims are processed.  Reports of cruelty and mistreatment are numerous and getting more serious.

The Communiqué is supported by witness evidence from doctors, workers, visitors and former detainees at the Offshore Processing Centres.  Key findings include:

  • As at 31 March 2014, there were 153 babies, 204 pre-schoolers (aged 2 to 4 years old), 336 primary school aged children, and 196 teenagers in Immigration Detention. As at 31 January 2016, 142 children remained in Immigration Detention.
  • The average child spends 231 days in Immigration Detention.
  • On average, the general population of refugees spend 457 days in Immigration Detention.
  • There is inadequate food and water, a lack of medicine and medical treatment, overcrowding, and a subsistence of violent incidents. Further, the length of detention is generally indefinite at the outset.
  • Conditions are unhygienic. On Nauru, showers are generally restricted to 30 seconds each day. Staff have said that the water has run out on multiple occasions, with overflowing, blocked toilets and faeces on the floor.

Reports from the United Nations High Commissioner for Refugees are highly critical of the Pacific Solution and Australia’s treatment of those seeking asylum.

Amnesty International has also issued several reports equally critical of Australia’s policies towards refugees and the conditions in which they are held.

The Communiqué cites precedents in international law which show that Prime Ministers and Ministers for Immigration in Australia, Nauru and Papua New Guinea could be held personally responsible as perpetrators of crimes.

The lawyers behind the Communiqué consder that there is no option remaining, other than the International Criminal Court  (ICC).  Previous legal action before the UN Human Rights Committee, UN Human Rights Council and the UN Working Group on Arbitrary Detention (WGAD) have not changed the Australian Government’s course.  Asylum seekers who have had their detention recognised as arbitrary by the WGAD and are still in detention over a year or more later – including those with children. The previous Australian Prime Minister Tony Abbott, in response to comments by the UN Special Rapporteur on Torture, stated that ‘Australians are sick of being lectured to by the UN’.

As such, the ICC is really the venue of last resort.

Courtenay Barklem, former human rights adviser at the Law Society of England and Wales said: “This scandal sullies Australia’s record on human rights.  We expect Australia to have higher standards and not to mistreat some of the most vulnerale people through deliberate government policies.  This diminishes Australia’s reputation in the eyes of the international community.”

It names every Australian PM and Immigration Minister since 2002, as well as Mr Baron Waqa (current Nauruan President and Minister for Foreign Affairs and Trade).  It details the cruel treatment of boat people by successive Australian governments:  communique-to-icc

Was Eureka a terrorist event?

Yes: the Eureka Stockade, 1854, was a terrorist event by our contemporary legal standards.  The current definition of “terrorist act” is set out below.  It’s complex, but the bottom line is this: if an ordinary criminal act of damage to property or person is carried out in order to intimidate the government or the public, it is a terrorist act.  The Eureka Stockade involved fairly serious criminal conduct: 30 people were killed. and it was explicitly for political purposes: they wanted to force the Victorian government to allow miners (who paid high mining licence fees) to vote.  Their sentiment was part of the idea expressed 81 years earlier in America: the Boston tea party of 1773 and then the American war of independence were clear expressions of the sentiment: no taxation without representation.

The leaders were charged with high treason, but they were acquitted.  this was generally regarded as an expression of public sympathy for their cause.  One of them, Peter Lalor went on to be Speaker of the Victorian Legislative Council (upper House) in 1880.

The diggers swore an oath on 30 November 1854: ‘We swear by the Southern Cross to stand truly by each other and fight to defend our rights and liberties’

The Commonwealth Criminal Code Act (1995) defines”terrorist act” in section 100.1.  You can see the full version here.  Here is an abbreviated version:

“terrorist act means an action where:

(a) the action falls within subsection (2)…and
(b) the action is done with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.

(2)       Action falls within this subsection if it:

(a)       causes serious harm that is physical harm to a person; or
(b)       causes serious damage to property; or
(c)       causes a person’s death; or …”

However it will not be a terrorist act if it falls within sub-section 3:

“(3)       Action falls within this subsection if it:

(a)       is advocacy, protest, dissent or industrial action; and
(b)       is not intended:

(i)        to cause serious harm that is physical harm to a person; or
(ii)       to cause a person’s death; or …”

 It is a nice historical irony that another icon of Australian history is also bound up in terrorism. Ian Jones, the foremost authority on Ned Kelly, says Kelly’s activities in North-East Victoria had the ultimate objective of establishing a separate colony in that area.  Kelly’s Jerilderie Letter adds credence to that suggestion.  If his objective was a political one, then his murderous exploits fit him neatly into the modern legal definition of a terrorist.

An index to this blog (alphabetical order)

#hushtag
A Blunt Assessment
A Brief Account Of Australias Offshore Detention Regime
A Christmas Letter From Manus
A Classic Rant Against Peter Dutton
A Letter To Minister Dutton From A Refugee Advocate
A New Account Of The Ways We Manage To Mistreat Asylum Seekers. Read This And Blush
A Plea From Manus
A Proposed New Refugee Policy For Australia
Accomodation For Refugees
Ai Weiwei
An Alternative To Offshore Detention
An Angel Visits Malcolm Turnbull
And More Bad Goings On At Manus
Australias Offshore Torture Regime
Befriend A Child In Detention
Benaud Piano Trio Seeking Sponsor For Composition
Bigotry And Terrorism In More Than 140 Characters
Border Force
Border Force Cracking Down At Mita In Victoria
Calling Boat People Illegal Is A Lie
Cash For People Smugglers
Conditions In Immigration Detention Deteriorating
Corruption On Nauru Your Taxes At Work
Cruelty In Australias Offshore Detention Camps
Data Retention Legislation Act Now Before Its Too Late
Detainees In Manus Island Face Grim Prospects
Detention Australian Style
Detention Is Torture
Detention On Manus Illegal Supreme Court
Deterrents And Disincentives
Dutton On The Rampage
Fact Checking Pauline Hanson
Fare Go Report Rethinking Public Transport
From The Big Bang To The Present In 12 Months
Gillian Triggs, John Basikbasik, And Politicians Who Play God
Guards Conduct In Nauru Getting Worse
Haitch Or Aitch
Hal Wootten Lecture 2015 The Bludgeoning Of Chance
Islamophobia Rampant
Kate Durhams Speech At The Opening Of Home Here And Now
Keep The Arts Alive At Fortyfive
Let Them Stay
Lets Get Labor To Tell The Truth About Refugees
Letter From Manus
Letter From Manus
Letters To Nauru Now The Department Lies Again
Lnp Only Pretends To Be Compassionate
Magna Carta, 800 Years On
Manus
Manus Island: What Will It Take To Shock Us
Manus: An Emotional Rant
Manus: Bad And Getting Worse
Mistreatment Of Refugee Brought From Nauru For Treatment
Mohammad Albederee Update
More Bad News From Manus
More Bigotry From Sonya Kruger
More Horrors At Mita
More Misery Christmas On Christmas Island
More Mistreatment On Manus
Mourning And Weeping From Hell
Myki: Authorised Officers Behaving Badly
New Get Up Campaign To Get Dutton Out
News From Australias Gulags
News From Nauru
No Kindness For Mojgan
Norfolk Island
Not In My Name
Offshore By Madeline Gleeson
Rebranding The Nation
Refugees In Terror On Nauru
Refugees Write To Png Supreme Court
Remembering Refugees As Christmas Approaches
Schrödingers Refugees
Solitary Confinement In Manus Detention
Stopping The Boats Doesnt Stop The Deaths
Strip Searched In Lygon St
Strip Searches On Nauru
Supporting Human Rights Or What Is Left Of Them
Thailand Prosecutes Phuketwan Journalists
The Australian Border Force Act Labors Role
The Australian Border Force Act: Trying To Silence Health Workers
The Australian Now Quotes Twitter
The Border Force Hits Town: Operation Fortitude
The Drowning Argument
The Drowning Excuse
The Election
The Impact Of Cuts To Art Funding
Threatening Our Way Of Life
Tim Wintons Palm Sunday Plea: Start The Soul Searching Australia
Tom Ballard
Tom Ballard Writes About Refugee Stories
Tony Abbott Is A Bully Over Un Convention Against Torture
Turnbull Posing As Compassionate
Two New Projects Which Bear Witness To Mistreatment Of Asylum Seekers
Un Rapporteur Australias Treatment Of Asylum Seekers Breaches Torture Convention
Unrepresented Refugee Applicants
Update From Manus
What Manus Is Like
What Sort Of Country Are We
When People Bother To Ask Me Why I Support Refugees
Why Gag Doctors In Detention Centress What Are We Hiding
Why You Should Care
Wilson Security
Wind Farm Music Dedicated To Tony Abbott
Write To Federal Mps About Refugee Policy
Year 12 Student Taken From School And Put In Detention
Young Boy Held In Manus
Zaky Mallah, Steve Ciobo And Q & A

Fare Go report: rethinking public transport

WEstJustice today released a ground-breaking report called Fare Go: Myki, Transport Poverty and access to education in Melbourne’s West.

Here is the report: Fare Go Report

It makes the point that, especially in disadvantaged suburbs, Myki fares compete with a kid’s ability to get breakfast or buy books:

There are many poor families in this school community who can’t even feed their children breakfast – they are fed through the school. Many families can’t afford the initial payment for Myki.”

 “A lot [of students] stay at home, miss out on school until they can top up [Myki], starting the cycle of educational disadvantage.

In the course of 12 years at school, a student will pay about $7,500 in public transport fares.  Public transport is an important integer in our social life.  Making sure kids can get to school is essential. Public transport is not just about revenue raising.

The system is complex, even for adults, and especially for kids:

“I helped one boy to contest fines…. I made numerous phone calls…tried to explain that he had a mental illness… also had an insecure home life… I spoke to three different people three times, got the same response, then someone said, ‘go and plead the mercy of the Magistrate’. Going to court then causes much stress and anxiety. In fact, this boy was struggling to speak in sentences. I can’ t imagine him going to court. I haven’t heard from him, so I don’t know what happened to him.”

We should never allow the cost of public transport, and the complexities of the system of fines, get in the way of a kid’s education.

The Report includes some very sensible recommendations, including:

1. Provide free public transport travel to all passengers up to 18 years of age and to any passenger who is a secondary student where their parent, carer or guardian is in receipt of Centrelink income or a healthcare card.

2. Accept identification issued by any authorised educational institution as evidence of age or student status for the purposes of free travel.

3. Authorise educational institutions to issue Myki travel cards to students free of charge.

4. Cancel all outstanding public transport fines related to Myki ticketing issues and fares which were incurred while a young person was under 18 years of age.

5. Abolish the public transport fines system for all young people under 18 years of age.

If you value the education of children, urge the Victorian Government consider the contents of this Report.

More outrages on the flawed Myki system in Melbourne

Here is a story from a Melbourne man who got bullied into paying $75 on the spot even though he had not even been on public transport at all!

“On 24/09/2014, I was crossing Collins Street in Melbourne CBD at a point where there is also a tram stop. There was a Public Transport official on the platform of the tram stop, busily writing a ticket for somebody else as I walked past him. He stopped me as I passed him and he asked to see my validated MYKI card. I said that I don’t have one, I do not use public transport and I was just crossing the road. He claimed that he saw me step off a tram, which was quite impossible, given that he was preoccupied at the time writing out a ticket. Anyway, he then proceeded to issue me with a fine, and when I stated that I did not wish to provide my personal details to him since I had done nothing wrong, he called a nearby policeman over. Between them, they proceeded to intimidate me to the point where I reluctantly agreed to pay a $75 on-the spot fine on my credit card.
As I said, I felt intimidated by the two of them, and they left me with little choice. If I had not either provided my personal details or allowed the public transport officer to process an on-the-spot fine against my credit card, the policeman implied that I would be arrested. If I provided my personal details and allowed the public transport officer to issue me with a normal fine, I was of the belief that if I then wanted to contest it in court, it would end up costing a lot more than $75. I was very much bullied into submission!”   (emphasis added)

What is of real concern is that I am told Public Transport officers operate on a quota: they have to book a certain number of people a day.  And this is what happens.

Journalists facing jail: mentioned Thai naval forces & Rohingyan refugees

I have recently been sent the following very disturbing story:

Alan Morison is a former senior editor of the Melbourne newspaper, The Age. For approximately a decade he has been the owner and editor of an online news service called Phuketwan, which is based in Phuket, Thailand. Chutima Sidasathian is one of his reporters and a colleague.

Alan and Chutima have (along with other reporters and NGOs) been at the forefront of reporting of human trafficking of the Rohingya from Burma through Thailand and into Malaysia, as well reporting on other human rights abuses against them. They have also helped larger news services such as Reuters by providing vital contacts for their stories.

They feature in the recent 4 Corners episode dealing with Rohingyan refugees who are smuggled through Thailand: http://www.abc.net.au/4corners/stories/2015/06/22/4257490.htm

In December 2013 the Royal Thai Navy charged both Alan and Chutima with criminal defamation and a breach of the Computer Crimes Act for reprinting verbatim and in quotation marks, a 44-word paragraph from a Reuters story. That paragraph read:

“The Thai naval forces usually earn about 2000 baht per Rohingya for spotting a boat or turning a blind eye, said the smuggler, who works in the southern Thai region of Phang Nga [north of Phuket] and deals directly with the navy and police.”

http://phuketwan.com/tourism/thai-military-profiting-trade-boatpeople-says-special-report-18454/

They were charged 5 months after the article appeared.

The paragraph does not even name the Royal Thai Navy but refers to “Thai naval forces.” Unfortunately, the translator for the Royal Thai Navy elected to translate the words “Thai naval forces” to “Royal Thai Navy”

The vague term “Thai naval forces” is apt to describe the Thai Marine Police, militia commanders as well as the Royal Thai Navy. But a bad translation has resulted in Alan and Chutima being charged with criminal defamation and a breach of the Computer Crimes Act.

Neither Reuters nor any of the other news services which have run the story have been charged: only the journalists have been charged. They face the prospect of 7 years in a Thai jail.

Please let your local Federal MP know you are concerned for the way Alan and Chutima are being treated. Do what you can to make sure that Thailand (which depends significantly on the West) knows that their handling of this case is being closely watched.

 

The Australian Border Force Act: trying to silence health workers

On 20 May 2015, the Australian Parliament passed the Australian Border Force Act.  The Act  came into force until 1 July 2015.

It includes secrecy provisions which have potentially very far-reaching consequences, but it is to be hoped that these provisions will be read down.  What is really alarming about the Australian Border Force Act is that it shows the willingness of the government to suppress the facts connected with its brutal mistreatment of asylum seekers.  I think the attempt will fail, but it should not have been made in the first place.  It is of a piece with Tony Abbott’s response to Q & A allowing a question from Zaky Mallah to go to air: instead of regretting an error of judgment, he asked “Whose side is ABC on?”.  Abbott appears to think that the best way to deal with the world is to ignore facts which contradict your view of it.

Section 42 of the Australian Border Force Act makes it an offence (punishable by 2 years’ imprisonment) for an “entrusted person” to “make a record of, or disclose” protected information.

Entrusted person” is widely defined, to include various officials in the Border Force, as well as officers of the Migration Department. This includes people who are “Immigration and Border Protection workers”. That class is defined as including people who have been designated by the Minister, as a class, to be officers. On 27 November 2003 the then Minister designated in writing employees of various service providers to be officers.

Accordingly, an employee of a detention centre service provider is, by definition, within the definition of “officer” in subsection 5(1) of the Migration Act 1958 and is therefore within the definition of “entrusted person” in the Border Force Act.

The restriction in section 42 is modified by a series of exceptions in sections 43 to 49. Most of those exceptions are not presently relevant. However the exceptions include these:

  • disclosure to an authorised person for a purpose relating to the protection of public health, or the prevention or elimination of risks to the life or safety of an individual or a group of individuals; (s. 44 & s. 45 in conjunction with s. 46(d))
  • disclosure to an authorised person for the provision of services to persons who are not Australian citizens; (s. 44 & s. 45 in conjunction with s. 46(j))
  • section 48 has arguably the most important exception:

“48 Disclosure to reduce threat to life or health

An entrusted person may disclose protected information if:

(a)       the entrusted person reasonably believes that the disclosure is necessary to prevent or lessen a serious threat to the life or health of an individual; and

(b)       the disclosure is for the purposes of preventing or lessening that threat.”

In my opinion, if a health worker learned facts while employed by a service provider in detention and genuinely believed, on reasonable grounds, that those facts  represented a serious threat to the life or health of one or more asylum seekers, and, that disclosing those facts might help prevent or lessen that threat, the disclosure would not constitute an offence.

Similarly, if any other employee of a detention centre operator formed the same belief, and disclosed the facts believing that disclosing them might help prevent or lessen that threat, the disclosure would not constitute an offence.

It is not clear from the Act whether disclosure is prohibited of facts learned before the Act came into force but disclosed after the Act comes into force. The normal principle against retrospective criminal laws tends to the result that the Act would not apply in those circumstances, but it is not clear.

Two practical matters remain. First, the Act came into force on 1 July. Disclosure before then cannot be a breach of the Act.

Second, whether a prosecution would be brought in any particular case is hard to guess. If the disclosure was such as to attract a possible defence under section 48, a government acting sensibly would recognise that a prosecution would provide an opportunity for the accused to explain – in the very public forum of court proceedings – exactly what is going on inside detention centres and why those things present a serious threat to the life or health of an individual (or individuals) in detention.

The defence under section 48 is important.  It is arguably more powerful than normal whistle-blower defences.  The most disturbing thing about the Australian Border Force Act is its apparent attempt to hide the iniquities which are happening in immigration detention, on-shore and off-shore.

Shameful things are being done in our name, on out taxes and Australia’s reputation internationally is being degraded rapidly.  The only favourable thing which hass been said about Australia’s policy in relation to asylum seekers was said by Katie Hopkins in the London Sun a few months ago.  Her compliment was diminished by the fact that she referred to boat people as “vermin” and “cockroaches”.  I would prefer Australia not to have the good opinion of someone who thinks like that.

Why gag doctors in detention centress? What are we hiding?

Here is a link to a good article in the British Medical Journal, written by David Berger.

On 20 May 2015, the Australian Parliament passed the Border Force Act.

It includes secrecy provisions which have potentially very far-reaching consequences, but it is to be hoped that these provisions will be read down. The Act does not come into force until 1 July 2015, so until then no-one is bound by its restrictions.

Section 42 of the Act makes it an offence (punishable by 2 years’ imprisonment) for an “entrusted person” to “make a record of, or disclose” protected information.

Entrusted person” is widely defined, to include various officials in the Border Force, as well as officers of the Migration Department. This includes people who are “Immigration and Border Protection workers”. That class is defined as including people who have been designated by the Minister, as a class, to be officers. On 27 November 2003 the then Minister designated in writing employees of various service providers to be officers. The service providers include IHMS as well as the companies which then operated the detention centres.

It is not clear from the Act whether disclosure is prohibited of facts learned before the Act came into force but disclosed after the Act comes into force. The normal principle against retrospective criminal laws tends to the result that the Act would not apply in those circumstances, but it is not clear.

In any event, an employee of Transfield or Wilson Security or IHMS is, by definition, within the definition of “officer” in subsection 5(1) of the Migration Act 1958 and is therefore within the definition of “entrusted person” in the Border Force Act.

This represents a drastic gagging of Australians and others who work in the refugee detention system.  Presumably the government is aware that bad things are happening in Australia’s detention system, and it is keen to suppress any information about what goes on.  This is consistent with a long-standing ban on juournalists entering detention centres.  It is consistent with Nauru imposing an $8,000 application fee if a journalist wants to apply for a visa to go to Nauru: the fee is not refundable even if the visa is refused.

In short, Australia is doing everything it can to conceal its iniquitous mistreatment of asylum seekers.

What is happening in detention centres, both in Australia and offshore, is profoundly damaging to the health of people held there.  It takes about 12 months’s detention to drive people to hopelessness and despair. That is when they start suffereing serious mental problems.  It is when they start harming themselves.  And it is important to remember that boat people have NOT COMMITTED ANY OFFENCE by coming to Australia as they have.  They are NOT ILLEGAL.  They are NOT CRIMINALS.

It is no great surprise to learn that if you lock up an innocent person indefinitely, they will eventually break.  That is Australia’s dark secret: we are deliberately destroying people by detaining them indefinitely in shocking conditions.  And the government is anxious to ensure that information about what we are doing does not get out, because they know most Australians would be appalled if they knew the truth.

Every Federal MP who voted for the Border Force Act, and every Federal MP who supports the continued hard line on boat people deserves the contempt of the nation.

But there is still hope, despite the miserable quality of our Federal MPs.

The restriction on disclosure found in section 42 is modified by a series of exceptions in sections 43 to 49. Most of those exceptions are not presently relevant. However section 48 has arguably the most important exception:

“48 Disclosure to reduce threat to life or health

An entrusted person may disclose protected information if:

(a)       the entrusted person reasonably believes that the disclosure is necessary to prevent or lessen a serious threat to the life or health of an individual; and

(b)       the disclosure is for the purposes of preventing or lessening that threat.”

In my opinion, if a worker in a detention facility genuinely believed, on reasonable grounds, that facts he or she learned while employed by a service provider represented a serious threat to the life or health of one or more asylum seekers, and, that disclosing those facts might help prevent or lessen that threat, the disclosure would not constitute an offence.  If the Immigration Department did not share that view and prosecuted the person, the prosecution would provide a useful showcase in which all the details of all the inquities in our detention system would be exposed.  Bring it on!

People smuggling: our Government is committing crimes

A lot has been said about whether our government paid people smugglers to return asylum seekers to Indonesia.  The evidence clearly suggests that it did.

Tony Abbott refused to deny that Australia had paid people smugglers, and said we would do whatever it takes to stop the boats.  Here he is on the Neil Mitchell programme on 3AW on 12 June 2015:

“Mitchell: These allegations that Australia paid people smugglers to turn back the boats – did it happen or not?
Abbott: Well, Neil, we don’t comment on operational matters but we are determined to ensure that illegal boats don’t get to Australia and we will do whatever is reasonably necessary to protect our country from people smuggling and from the effect of this evil and damaging trade that cost lives.
Mitchell: But surely we wouldn’t pay people smugglers, they’re criminals?
Abbott: Well, what we do is we stop the boats by hook or by crook, …”

“Mitchell: I don’t know about the relationship with Indonesia. They’re saying today they’re shocked by the allegations we paid people smugglers. Are we at least investigating whether it happened?
Abbott: Neil, I want to say to you and your listeners that I am proud of the work that our border protection agencies have done. I really am proud of the work that they’ve done and they’ve been incredibly creative in coming up with a whole range of strategies to break this evil trade …
Mitchell: Will we investigate whether it happened?
Abbott: As I said by hook or by crook we are going to stop the trade, we have stopped the trade, and we will do what we have to do to ensure that it stays stopped.
Mitchell: Will the Australian government investigate whether it happened?
Abbott: The short answer is the Australian government will do whatever we need to do to keep this evil trade stopped.
Mitchell: Including paying people smugglers?
Abbott: We will do whatever we need to do to keep this trade stopped because that’s what the public expects. …”

“Mitchell: Prime minister, will the Australian government investigate whether it happened?
Abbott: Um, Neil, what we are doing is saving life at sea. We are defending our national sovereignty, we are protecting our country from the evil trade of people smuggling and by hook or by crook we will do what is necessary to keep our country safe and to keep this evil trade stopped. …”

The Commonwealth Criminal Code makes people smuggling a criminal offence.  Here is an extract from the Criminal Code:

Subdivision A—People smuggling offences
73.1  Offence of people smuggling
(1)    A person (the first person) is guilty of an offence if:
(a)    the first person organises or facilitates the entry of another person (the other person) into a foreign country (whether or not via Australia); and
(b)    the entry of the other person into the foreign country does not comply with the requirements under that country’s law for entry into the country; and
(c)    the other person is not a citizen or permanent resident of the foreign country.
Penalty:    Imprisonment for 10 years or 1,000 penalty units, or both.

Summarizing it, the elements are that you facilitate the entry of a person into a country where they are not a citizen and they do not go through ordinary entry procedures.

Paying people smugglers to take asylum seekers back to Indonesia appears to satisfy each element.

But even if money was not paid, we have been piling asylum seekers into orange lifeboats to return them to Indonesia.  That satisfies the definition of people smuggling even more clearly.  And the government makes no secret about it.

The question all Australians should ask is this: should a government engage in criminal acts in order to give effect to a policy, regardless whethe the policy is good or bad, popular or unpopular?

Proper respect for the rule of law demands that a government should not engage in criminal conduct.

Cash for People Smugglers

A lot has been said and written about the recent story that Australian officials paid people smugglers to return their passengers to Indonesia.

If the story is true, and Abbott’s repeated refusal to deny it suggests strongly that it is true, then it is clearly a criminal offence.  Section 73 of the Criminal Code deals with the offence of people smuggling.

Section 73.1 provides:

“73.1  Offence of people smuggling
(1)    A person (the first person) is guilty of an offence if:
(a)    the first person organises or facilitates the entry of another person (the other person) into a foreign country (whether or not via Australia); and
(b)    the entry of the other person into the foreign country does not comply with the requirements under that country’s law for entry into the country; and
(c)    the other person is not a citizen or permanent resident of the foreign country.
Penalty:    Imprisonment for 10 years or 1,000 penalty units, or both.

Fitting that to the probable facts: an Australian official pays smugglers to take refugees back to Indonesia; the official thereby facilitates the entry of the refugee into Indonesia; the entry does not comply with Indonesia’s rules for entry; the refugee is not a citizen or permanent resident of Indonesia.

On the same analysis, providing refugees with lifeboats and pushing them back to Indonesia is people smuggling, and simply pushing their boat back to Indonesia might also be people smuggling.

Our government speaks of people smuggling as if it only applies when Australia is the intended destination.  That is simply not so.

Tony Abbott, Scottt Morrison and Peter Dutton have described people smugglers in powerfully unflattering terms (“scum of the earth” etc) but they were describing themseves.

Interestingly, only the Attorney-General can bring a prosecution for the offence of people smuggling (section 73.5), so don’t hold your breath.

Gillian Triggs, John Basikbasik, and politicians who play God

The President of the Australian Human Rights Commission, Gillian Triggs, was attacked again in the Senate for her report in June 2014 concerning John Baskibasik.  For more on the political attack on Gillian Triggs, see this article in the Guardian Australia.

Basikbasik had been convicted of the manslaughter of his wife, and was sentenced to 7 years prison.  He served his term of imprisonment. But he is refugee and was in Australia on a protection visa. The Minister of Immigration cancelled his visa because of his conviction. Once his prison term was up, he was put in immigration detention, because he is a non-citizen who does not have a visa. He has been in immigration detention for 8 years on top of the prison sentence of 7 years.

He can’t be returned to his country of origin, because he is a refugee and would face persecution there.

The Commission’s report included the following observations:

44. Anyone with Mr Basikbasik’s personal history and custodial background would be likely to require support to re-integrate into the community. There is no information before me to indicate that the Commonwealth considered whether any risk which Mr Basikbasik posed to the community could be mitigated by a management plan to assist with his rehabilitation or by a requirement to reside at a specified location, with curfews, travel restrictions or regular reporting. It does not appear that it was necessary to detain Mr Basikbasik in an immigration detention centre.
45. Given the material before me, I find that Mr Basikbasik’s ongoing detention in an immigration detention centre is arbitrary within the meaning of article 9(1) of the ICCPR.

The Commission reported that holding him in detention for 8 years after he had served his term of imprisonment involved a breach of his human rights. The report noted that the Minister had not considered a less restrictive mode of detention and recommended that he receive $350,000 in damages. Under section 35 of the Australian Human Rights Commission Act, the Commission has power to make such recommendations, although it cannot order compensation.

Abbott said the commission’s ruling that Basikbasik “be released” was “pretty bizarre” and demonstrated “extremely questionable judgment”. The social security minister, Scott Morrison, said the decision was “absolute nonsense”. The immigration minister, Peter Dutton, said suggestions that “wife killers should be released back into the community with a cheque from the taxpayer are so far removed from the public view, it is just offensive”.

It is a pattern we have become accustomed to: Ministers of the Crown making foolish, misinformed comments about their political targets.

Mr Abbott’s comment was simply wrong: the Commission did not recommend that Baskibasik be released. Mr Dutton’s comment was misinformed and either foolish or dangerous. It depends on the unstated assumption that a person convicted of a serious offence should be held in detention for life, regardless of the sentence imposed by the Court. It depends on the assumption that a person’s right to be released when their prison term has been served should be capable of being trumped by the unsupervised decision of the Immigration Minister.

Most people would agree that Basikbasik’s offence was a very serious one. Most people would also agree that, once a person has served the term of imprisonment imposed by a Court, they should be released. Most people would find it uncomfortable to think that a person’s effective sentence could be converted to life imprisonment by the simple act of a Minister cancelling that person’s visa.