It’s not often that Tony Abbott hits headline news outside of Australia, but today on BBC World News that is what happened, with the story of how he continues to refuse to deny the claim that his Government has funded ‘people smugglers’. We have aired the details of this story already, but what is possibly less known are the details of the laws – yes, there are more than one – that Mr Abbott, who as prime minister bears collective responsibility for what is done in his government’s name, has allegedly broken. These details are provided below…
LATEST re. #smugglergate: Saturday June 13th… 1. Australian lawyer Rob Stary initiated a class action against prime minister Tony Abbott re his Government’s alleged funding of ‘people smugglers’. 2. Australian authorities could be accused of people smuggling over alleged payments, says Don Rothwell, an international law expert. 3. A source showed Fairfax Media a photograph of six stacks of $US100 bills with the serial numbers and names of the people who were supposed to receive the money (from the Australian authorities) – the photo forms part of the report to the Indonesian police.
[Note: UndercoverInfo fully supports the free movement of people across the world, particularly those who are persecuted. This article is about the hypocrisy of a government that curtails such movement while, for its own ends, allegedly funding those who organise that movement.]
This morning (Friday), when questioned on Radio 3AW about the ‘people smugglers’ funding incident, Mr Abbott admitted using “creative” strategies. He did not deny – nor has he since denied – that the funding of the ‘people smugglers’ took place. Mr Abbott now needs to categorically state whether this funding took place – if necessary, via a direct challenge in Parliament (where, under the Westminster system, he would be expected to resign if he is subsequently shown to have lied).
Also, we must not discount the possibility that there may have been many other incidents when ‘people smugglers’ were paid by Australian Customs officials or the Australian navy to turn back their boats from Australian shores. This needs to be clarified too – not just for the Australian public, but also for the Indonesian authorities (as Australia may have violated their laws too).
Meanwhile, Indonesian authorities have launched an investigation into the claims against the Australian authorities.
A. Australian law
Australian Maritime Act 1958 (part 1). Under ‘Supporting People Smugglers’ (Sect 233D) of the Act it is an offence to aid ‘people smugglers’ and the penalty for doing so is up to 10 years imprisonment. (Note: The Anti-People Smuggling and Other Measures Act 2010 (the Amending Act) amended the Migration Act 1958 (the Act).
The Act says:
“(1) A person (the first person) commits an offence if:
(a) the first person provides material support or resources to
another person or an organisation (the receiver); and
(b) the support or resources aids the receiver, or a person or
organisation other than the receiver, to engage in conduct
constituting the offence of people smuggling.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
(2) Subsection (1) does not apply if the conduct constituting the
offence of people smuggling relates, or would relate, to:
(a) the first person; or
(b) a group of persons that includes the first person.
(3) To avoid doubt, the first person commits an offence against
subsection (1) even if the offence of people smuggling is not
A prior clause (233A) specifies that the crime of ‘people smuggling’ in the refers only to boats destined for Australia. It could be argued, therefore, that as Australian Customs were paying the smugglers to head away from Australia, they cannot be prosecuted under this Act. However, this argument falls flat given that the money allegedly provided to the smugglers would subsequently be used to fund similar operations, including more attempts to smuggle refugees to Australia. In addition, the smugglers could use those funds – $30,000 in total in this instance – to continue their smuggling trade to other destinations – most likely Indonesia (see next section).
B. Indonesian law
None of the passengers on the boat intercepted by the Australian navy were from Indonesia (54 were from Sri Lanka, 10 were from Bangladesh and one was from Myanmar). The passengers were transferred to an Australian Customs boat for four days before being put on two ‘people smugglers’ boats and sent back to Indonesia.
In 2011 Indonesia enacted a new law against ‘people smuggling’. The penalty is a minimum jail sentence of 5 years and maximum of 15 for anyone convicted of ‘people smuggling’, as well as fines of up to 1.5 billion rupiah (about $173,000).
By allegedly paying the six crew to take their passengers to Indonesia, the Australian Customs/Navy can be accused of being are complicit in the ‘smuggling’ of refugees into that country, so violating Indonesian law.
Any investigation at the Indonesian end must be above board and transparent (i.e. devoid of any quid pro quo deals with Abbot & Co.). Some co-operative journalism (between Australian and Indonesian journalists) wouldn’t go amiss either.
C. International law/dimensions
There has been ample evidence over recent days via a Senate Inquiry that the refugees held at Nauru and Manus Island are being abused (sexually, physically and mentally). In this regard there are many international laws regarding the treatment of refugees to which Australia is a signatory. Here are just a few…
The Australian Government has obligations under various international treaties to ensure that the human rights of refugees and asylum-seekers are respected and protected. These treaties include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CRC). These rights include the right not to be arbitrarily detained. Australia also has obligations not to return people who face a real risk of violation of certain human rights under the ICCPR, the CAT and the CRC, and not to send people to third countries where they would face a real risk of violation of their human rights under these instruments. These obligations also apply to people who have not been found to be refugees.
In March of this year Australia was accused of systematically violating the international Convention Against Torture by detaining children in immigration detention, and holding asylum seekers in dangerous and violent conditions on Manus Island, a United Nations report found. Also, it should be noted that the Australian Government does not respect the international standard on protecting refugees of “non-refoulement”, which is a UN principle prohibiting expulsion to a country where they could face violence or prison.
In addition, Australia – via successive governments – may be accused of committing crimes against humanity in relation to its treatment of refugees at the Nauru and Manus Island (and Christmas Island) detention centres. In this respect, it is possible for Australia to be prosecuted at the International Criminal Court, to which it is a signatory.
As to who prosecutes Abbott & Gang, this can vary but can include a statutory authority in Australia or Indonesia, or an NGO in either country, or an international NGO (e.g. Amnesty International) via a global body.