#OnWaterGate: list of laws Govt contravened growing (details here)

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The number of laws and international protocols the Tony Abbott Government may have contravened regarding the alleged funding of ‘people smugglers’ is growing, with more legal experts agreeing that the Government must be held to account. We provide an update below of all these laws.

Meanwhile the Murdoch press – aka the mouthpiece of the Liberal Party – has published a story in the Daily Telegraph that has the fingerprints of ASIS scribes written all over it. A truncated version of the same story is also being pushed by Channel 9 News. The story – typically lacking evidence, but replete with innuendo and quoting an anonymous ‘source’ – retails a line that the Government cannot be blamed if it is shown that the ‘people smugglers’ were indeed funded/bribed, as this was merely part of an ASIS operation. You couldn’t make this nonsense up. ASIS works for the Government and carries out Government-approved policies and whatever the motive, funding ‘people smuggling’ is funding ‘people smuggling’. Bang to rights.

UPDATE: below is a photo allegedly showing the wads of cash handed over to the ‘people smugglers’ by the Australian Navy/Customs.

Embedded image permalink

The laws allegedly contravened (so far):

A. Criminal Code 1997

According to a report by Lenore Taylore, Phillip Boulten SC, a leading Sydney barrister, and Nicholas Cowdery, a former director of public prosecutions in New South Wales, have both stated that the Abbott Government may have contravened the Criminal Code Act (1997) – specifically under clauses 73(1) and 73(3).

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; and

(d) the first person organises or facilitates the entry:

(i) having obtained (whether directly or indirectly) a benefit to do so; or
(ii) with the intention of obtaining (whether directly or indirectly) a benefit.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

(2) Absolute liability applies to the paragraph (1)(c) element of the offence.

(3) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of people smuggling.

73.3 Aggravated offence of people smuggling (at least 5 people)

(1) A person (the first person) is guilty of an offence if:

(a) the first person organises or facilitates the entry of a group of at least 5 persons (the other persons) into a foreign country (whether or not via Australia); and

(b) the entry of at least 5 of the other persons into the foreign country does not comply with the requirements under that country’s law for entry into that country; and

(c) at least 5 of the other persons whose entry into the foreign country is covered by paragraph (b) are not citizens or permanent residents of the foreign country; and

(d) the first person organises or facilitates the entry:

(i) having obtained (whether directly or indirectly) a benefit to do so; or
(ii) with the intention of obtaining (whether directly or indirectly) a benefit.

Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.

(2) Absolute liability applies to the paragraph (1)(c) element of the offence.

(3) If, on a trial for an offence against subsection (1), the trier of fact is not satisfied that the defendant is guilty of that offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 73.1(1), the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of an offence against subsection 73.1(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

B. Maritime Act (1958)

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
both.

(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
committed.”

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.

C. International laws/protocols

1.International law expert Prof Don Rothwell has said that paying people smugglers is also likely to contravene international law, particularly the 2000 protocol to prevent people smuggling. However, a complaint could only be lodged by Indonesia. Madeline Gleeson, of the Kaldor Centre for International Refugee Law, agrees that the Government may have contravened this protocol.

2. 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.

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2 Responses to #OnWaterGate: list of laws Govt contravened growing (details here)

  1. Pingback: Rohingya close to starvation; Australian Govt’s moral legitimacy challenged | UndercoverInfo

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