Hypocrisy and people smuggling
PEOPLE SMUGGLING is a matter of considerable political concern to Western governments, and has received much international attention in recent years. This is evidenced by the fact that 119 states, including Australia, have become parties to the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime.
Article 3(a) of the Smuggling Protocol defines “smuggling of migrants” as “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident”. The Protocol refers to a profit motive again in article 6, which requires state parties to criminalise smuggling and related activities where committed by an organised criminal group and transnational in nature. The reference to a profit motive was included in order to ensure that those assisting migrants or asylum seekers on humanitarian grounds or on the basis of close family ties would not be caught by the Protocol’s provisions. Section 73.1 of the Commonwealth Criminal Code, which implements Australia’s Smuggling Protocol obligations, makes it an offence punishable by up to ten years’ imprisonment for a person to organize or facilitate the entry of another person into a foreign country contrary to the laws of that country in exchange for direct or indirect benefit. In contrast, a profit motive is not an element of the offences created by 232A (organisation or facilitation of irregular entry of five or more persons) and 233 (participation in any instance of irregular entry) of Australia's Migration Act to deal with people smuggling into Australia, though these offences carry penalties of up to twenty years and up to ten years of imprisonment respectively. In practice, too, Australian authorities have shown no reluctance in pursuing convictions against persons lacking such motive.
Of course, many of those who engage in people smuggling to Australia do have a profit motive. But even here moral distinctions can surely be drawn between organisers and foot soldiers. Although the Australian Federal Police attempt to make organisers the focus of their investigation and prosecution of offences against the Migration Act, most of those actually prosecuted for people smuggling offences thus far have been the foot soldiers, that is to say the crews of suspected illegal entry vessels, or SIEVs. These crews are usually Indonesian fishers who have had to turn to alternative sources of income.
During the twentieth century substantial changes to the international law of the sea pushed out the borders of Australian waters into the traditional fishing grounds of Indonesian fishers. While some allowance has been made for traditional fishing activity in a memorandum of understanding between Australia and Indonesia, the Australian interpretation of “traditional” fishing is unreasonably restrictive. In consequence, many Indonesian fishers find themselves convicted of illegal fishing and imprisoned for long periods in Australia for non-payment of fines set well beyond their means or wildest dreams. Upon completion of their sentences they are returned to Indonesia without the fishing boats (which are confiscated by Australian authorities) and without fishing income, but with the need to pay off the debts that that their families were forced to incur in their absence, not to mention the continuing need to provide for their families. The fishers placed in these straits have little choice but to turn to people smuggling. Since they receive payment up-front, their families are at least left better able to survive any time they may spend in Australian jails.
To the annoyance of the Howard government, a justified compassion for the circumstances of SIEV crews inclined Australian judges toward leniency in their sentencing. The government therefore amended the Migration Act to ensure that judges did not have the choice of following their inclination. Since 27 September 2001, the Act has specified mandatory minimum penalties for adults convicted of offences under section 232A and also specified that a court cannot choose to discharge adults it is satisfied committed such offences without proceeding to conviction.
Given that Mr Rudd has labeled those who fall foul of the Act’s people smuggling provisions as the “vilest form of human life,” one suspects that none of the provisions just discussed are likely to be changed on his watch. It is true that Mr Rudd’s outburst was a response to the tragedy which befell SIEV 36, and it is important, of course, that those who expose others to risk of death or serious harm should face penalties calculated to deter such behaviour. Article 6(3) of the Smuggling Protocol, in fact, requires states parties to establish as aggravated offences, people smuggling undertaken in circumstances which “endanger, or are likely to endanger, the lives or safety of the migrants concerned” or that “entail inhuman or degrading treatment, including for exploitation, of such migrants.” In order to implement Australia’s obligations under the Protocol, section 73.2 of the Criminal Code provides that a person is guilty of the aggravated offence of people smuggling, if he or she is guilty of the offence in section 73.1 and intended exploitation of the smuggled person after entry into the foreign country, or in the course of smuggling subjected the person to cruel or inhuman treatment or exposed the person to a risk of the death or serious harm. The aggravated offence is punishable by up to twenty years’ imprisonment.
Recollect, though, that Criminal Code offences relate to the smuggling of individuals into foreign countries. By contrast the Migration Act, which deals with smuggling into Australia, does not provide for the imposition of more severe penalties if the offences involve exploitation, cruel treatment or endangerment of smuggled persons. This may not be too great an omission since such conduct will usually involve prosecutable offences under the general criminal law. Nevertheless, the omission does lead one to wonder whether it is really the hapless irregular migrants’ plight or simply the protection of Australia’s borders which is foremost in the mind of Australian legislators responding to the phenomenon of people smuggling.
These misgivings are only enhanced when one considers the manner in which Australia has dealt with human trafficking. The Protocol to Prevent Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the UN Convention against Transnational Crime, has 130 states parties. Australia is one of those parties, but only joined in 14 October 2005, despite the fact that the treaty has been in force generally since 25 December 2003 (and that Australia did not have any difficulty becoming a party to the Smuggling Protocol in 2004 within months of that Protocol entering into force generally).
The Trafficking Protocol defines “trafficking in persons” as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” It elaborates that “[e]xploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” Conduct falling within this definition truly is morally egregious.
Division 271 Subdivision B of the Criminal Code implements Australia’s obligation under the Trafficking Protocol to criminalise human trafficking into or out of Australia. The use of force, threats or deception in procuring the entry into or exit from Australia by another person is punishable by up to twelve years’ imprisonment. Where there is intention to exploit the victim or the victim is subjected to cruel or inhuman treatment or exposed to a risk of death or serious harm in the course of the offence the penalty increases to up to twenty years imprisonment. Though few would complain about the severity of these trafficking penalties, it is to be hoped that the Australian public may start to question the political agendas (not to mention moral sensibilities) of legislators who think fit to equate people smuggling with human trafficking in criminal law and public discourse.
This article forst appeared on Australian Policy Online and may be viewed at:http://apo.org.au/commentary/hypocrisy-and-people-smuggling
Article 3(a) of the Smuggling Protocol defines “smuggling of migrants” as “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident”. The Protocol refers to a profit motive again in article 6, which requires state parties to criminalise smuggling and related activities where committed by an organised criminal group and transnational in nature. The reference to a profit motive was included in order to ensure that those assisting migrants or asylum seekers on humanitarian grounds or on the basis of close family ties would not be caught by the Protocol’s provisions. Section 73.1 of the Commonwealth Criminal Code, which implements Australia’s Smuggling Protocol obligations, makes it an offence punishable by up to ten years’ imprisonment for a person to organize or facilitate the entry of another person into a foreign country contrary to the laws of that country in exchange for direct or indirect benefit. In contrast, a profit motive is not an element of the offences created by 232A (organisation or facilitation of irregular entry of five or more persons) and 233 (participation in any instance of irregular entry) of Australia's Migration Act to deal with people smuggling into Australia, though these offences carry penalties of up to twenty years and up to ten years of imprisonment respectively. In practice, too, Australian authorities have shown no reluctance in pursuing convictions against persons lacking such motive.
Of course, many of those who engage in people smuggling to Australia do have a profit motive. But even here moral distinctions can surely be drawn between organisers and foot soldiers. Although the Australian Federal Police attempt to make organisers the focus of their investigation and prosecution of offences against the Migration Act, most of those actually prosecuted for people smuggling offences thus far have been the foot soldiers, that is to say the crews of suspected illegal entry vessels, or SIEVs. These crews are usually Indonesian fishers who have had to turn to alternative sources of income.
During the twentieth century substantial changes to the international law of the sea pushed out the borders of Australian waters into the traditional fishing grounds of Indonesian fishers. While some allowance has been made for traditional fishing activity in a memorandum of understanding between Australia and Indonesia, the Australian interpretation of “traditional” fishing is unreasonably restrictive. In consequence, many Indonesian fishers find themselves convicted of illegal fishing and imprisoned for long periods in Australia for non-payment of fines set well beyond their means or wildest dreams. Upon completion of their sentences they are returned to Indonesia without the fishing boats (which are confiscated by Australian authorities) and without fishing income, but with the need to pay off the debts that that their families were forced to incur in their absence, not to mention the continuing need to provide for their families. The fishers placed in these straits have little choice but to turn to people smuggling. Since they receive payment up-front, their families are at least left better able to survive any time they may spend in Australian jails.
To the annoyance of the Howard government, a justified compassion for the circumstances of SIEV crews inclined Australian judges toward leniency in their sentencing. The government therefore amended the Migration Act to ensure that judges did not have the choice of following their inclination. Since 27 September 2001, the Act has specified mandatory minimum penalties for adults convicted of offences under section 232A and also specified that a court cannot choose to discharge adults it is satisfied committed such offences without proceeding to conviction.
Given that Mr Rudd has labeled those who fall foul of the Act’s people smuggling provisions as the “vilest form of human life,” one suspects that none of the provisions just discussed are likely to be changed on his watch. It is true that Mr Rudd’s outburst was a response to the tragedy which befell SIEV 36, and it is important, of course, that those who expose others to risk of death or serious harm should face penalties calculated to deter such behaviour. Article 6(3) of the Smuggling Protocol, in fact, requires states parties to establish as aggravated offences, people smuggling undertaken in circumstances which “endanger, or are likely to endanger, the lives or safety of the migrants concerned” or that “entail inhuman or degrading treatment, including for exploitation, of such migrants.” In order to implement Australia’s obligations under the Protocol, section 73.2 of the Criminal Code provides that a person is guilty of the aggravated offence of people smuggling, if he or she is guilty of the offence in section 73.1 and intended exploitation of the smuggled person after entry into the foreign country, or in the course of smuggling subjected the person to cruel or inhuman treatment or exposed the person to a risk of the death or serious harm. The aggravated offence is punishable by up to twenty years’ imprisonment.
Recollect, though, that Criminal Code offences relate to the smuggling of individuals into foreign countries. By contrast the Migration Act, which deals with smuggling into Australia, does not provide for the imposition of more severe penalties if the offences involve exploitation, cruel treatment or endangerment of smuggled persons. This may not be too great an omission since such conduct will usually involve prosecutable offences under the general criminal law. Nevertheless, the omission does lead one to wonder whether it is really the hapless irregular migrants’ plight or simply the protection of Australia’s borders which is foremost in the mind of Australian legislators responding to the phenomenon of people smuggling.
These misgivings are only enhanced when one considers the manner in which Australia has dealt with human trafficking. The Protocol to Prevent Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the UN Convention against Transnational Crime, has 130 states parties. Australia is one of those parties, but only joined in 14 October 2005, despite the fact that the treaty has been in force generally since 25 December 2003 (and that Australia did not have any difficulty becoming a party to the Smuggling Protocol in 2004 within months of that Protocol entering into force generally).
The Trafficking Protocol defines “trafficking in persons” as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” It elaborates that “[e]xploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” Conduct falling within this definition truly is morally egregious.
Division 271 Subdivision B of the Criminal Code implements Australia’s obligation under the Trafficking Protocol to criminalise human trafficking into or out of Australia. The use of force, threats or deception in procuring the entry into or exit from Australia by another person is punishable by up to twelve years’ imprisonment. Where there is intention to exploit the victim or the victim is subjected to cruel or inhuman treatment or exposed to a risk of death or serious harm in the course of the offence the penalty increases to up to twenty years imprisonment. Though few would complain about the severity of these trafficking penalties, it is to be hoped that the Australian public may start to question the political agendas (not to mention moral sensibilities) of legislators who think fit to equate people smuggling with human trafficking in criminal law and public discourse.
This article forst appeared on Australian Policy Online and may be viewed at:http://apo.org.au/commentary/hypocrisy-and-people-smuggling
