In this photograph taken on Feb. 8, 2014 an empty Australian lifeboat
that carried asylum seekers turned back by Australian navy is docked at Pangandaran
wharf in West Java. (AFP Photo/Timur Matahari)
An Indonesian police chief has alleged that an Australian customs official paid people
smugglers thousands of dollars to turn their boat back to Indonesia. The boat
in question was carrying 65 asylum seekers hoping to reach New Zealand.
Australian officials boarded the boat in late May and arranged for the return
of the Bangladeshi, Rohingya and Sri Lankan passengers to Indonesia in two
smaller boats.
The six crew members are facing people-smuggling charges in Indonesia.
They reported that an Australian official named Agus paid them $5,000 each to
return with the asylum seekers to the Indonesian island of Rote.
The 65 asylum seekers are now detained in Indonesia. They have written
to the New Zealand government, corroborating the police chief’s account that
the crew accepted payments to turn back. Three Australian Federal Police
officers are set to visit Rote, though it is not known whether they
will investigate the claims.
Australian Immigration Minister Peter Dutton denied the allegation with
a simple “no.” When pressed, Dutton said he would not expand on what was an
“on-water” matter. An Immigration Department spokesperson explained: “The
Australian government does not comment on or disclose operational details where
this would prejudice the outcome of current or future operations.”
Foreign Minister Julie Bishop gave the same single-word rebuttal.
Greens senator Sarah-Hanson-Young and Labor immigration spokesman Richard
Marles both called on the government to investigate and give a full
account of the affair.
If Australian officials did pay people smugglers, has the government
effectively joined the people-smuggling trade? Has it broken any laws?
Australian law
Law professor Don Rothwell believes that Australian officials are well
protected by the Migration Act. This legislation gives a wide range of
discretion to officials so long as they act within the scope of their
authority. The act says nothing about payments to the crew of people-smuggling
vessels.
The act makes people smuggling a crime, punishable by ten years’
imprisonment. The act also indicates that the government should be permitted to
regulate dealings with asylum seekers with minimal oversight by the domestic
courts or the international legal system.
In recent years, the Australian parliament has also authorized an
increasingly draconian and secretive regulatory body of migration law. An
expansive Maritime Powers Act authorizes a wide range of actions by
Australian officials at sea.
In 2014, the High Court concluded
that, in some circumstances, Australian officials could lawfully detain asylum
seekers at sea prior to returning them to their origin country or a third
country. A concern in such circumstances is whether Australia is meeting its
obligation of non-refoulement under the UN Refugee Convention.
The government of Prime Minister Tony Abbott has consistently asserted
its right, as part of “Operation Sovereign Borders,” to maintain secrecy in
all “on-water matters.”
International law
In 2000, the UN General Assembly agreed on a Convention on Transnational
Organised Crime. The convention, which came into effect in 2003, obliges
member states to establish domestic criminal offenses and enhance mutual
co-operation in extradition and law enforcement.
The convention is supplemented by three protocols. The Protocol Against
the Smuggling of Migrants by Land, Sea and Air aims to suppress the
people-smuggling trade, while also obliging state parties to protect the rights
of smuggled people.
If Australia has made payments to the crew of a people-smuggling vessel,
this would violate its obligations under the protocol. Article 20 recommends
that disputes between state parties be resolved by negotiation or arbitration.
It also gives parties the right to take an intractable dispute to the
International Court of Justice.
Rothwell argued that the threat of legal action may not be the most
significant risk arising from this case. Rather, Australia’s alleged actions
could further risk the bilateral relationship with Indonesia.
Australia has recommitted to that relationship this week, with the return
of its ambassador to Indonesia following a protest withdrawal in April.
How important is the truth?
Abbott has said that the Australian government is “in a fierce struggle
with people smugglers.”
The prime minister described the boat turn-back policy as as means
of “destroying the people smugglers’ business model.” Yet, if these allegations
are true, Australia’s actions could be promoting rather than suppressing people
smuggling. Such a finding would undermine Australia’s claims to be working
against people smuggling out of concern for human welfare.
If the allegations are untrue, as the government says, there is still much
that the Australian government seeks to hide in its approach to asylum seekers.
Evidence has emerged that the government was aware of sexual violence
in offshore detention centers long before it began to properly investigate
complaints. Regardless, the Coalition and Labor jointly passed legislation in
May that prohibits anyone working for the Immigration Department to reveal
anything that happens in offshore detention.
The government has also maintained its intemperate attack on Human
Rights Commission president Gillian Triggs. Triggs has been accused of political bias, particularly in relation to her
commentary on asylum-seeker policy.
Australia’s secretive approach targets whistleblowers rather than addressing the deep flaws in its approach to asylum seekers attempting
to reach Australia by boat.
Amy Maguire is a lecturer in international law at the University of
Newcastle.
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