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.