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Jonathon Hunyor[*]
As the blunt tool of the criminal law is wielded in response to the complex problem of illegal migration: how does it work, who does it work on and how effective is it?
Pejorative tags have always had a special role in immigration discourse. Current favourites include ‘illegals’, ‘queue-jumpers’, ‘forum shoppers’ and ‘economic refugees’ — code words with a rich subtext of prejudice and ignorance, and more palatable than old-fashioned racist slurs. Our political leaders have been enjoying the opportunity to talk tough in recent years about the waves, floods and tides of these people threatening to swamp us, and also about the ‘people smugglers’ who are bringing them here.
While working in the Darwin office of NT Legal Aid, representing Indonesian crew members charged with offences commonly known as ‘people smuggling’ or ‘people trafficking’, I was keen to try and find a term to describe my clients which lacked the pejorative ring and sinister drug importation overtones of those terms. ‘People movers’ was the best I could do. In fairness, I figured that if the Department of Immigration and Multicultural Affairs could call the gulags for asylum seekers at Port Hedland and Woomera ‘Immigration Reception and Processing Centres’, it was open season for egregious euphemisms. And so I’m sticking with ‘people movers’, although it is yet to catch on.
This is not to suggest that illegal migration is not a serious problem for governments everywhere. It clearly is. Furthermore it must be recognised that, as a business, illegal migration is a big and potentially nasty one that makes money out of exploiting people fleeing hardship and, often, persecution.[1] However, as the blunt tool of the criminal law is again wielded in response to this complex problem, it is important to consider just how it works, who it works on, and its effectiveness.
This article examines what offences involving boat arrivals from Indonesia entail, and distinguishes them from other forms of illegal migration. The sentencing process, in particular the role of general deterrence, is analysed, and it is suggested that if sentences are able to deter others from participating in these particular enterprises, this is not likely to reduce unlawful arrivals to Australia. Rather it is more likely to result in a change in the way in which entry is achieved — through greater sophistication and subjecting passengers to greater danger. The relevance in sentencing of Australia’s obligations under the Refugees Convention is also considered. It remains a contradiction that, pursuant to the terms of the Convention, it is not an offence for asylum seekers to come to Australia without authority, but it is an offence to assist someone to do so.
The vast majority of people entering Australia unlawfully by boat from Indonesia are from Iraq and Afghanistan. According to their statements to police, they pay on average between US$5000 and $10,000 for their journey. They generally fly into Jakarta or Malaysia, sometimes on false passports. Organisers or their middlemen arrange for their transport to one of Indonesia’s eastern ports: typically a port in one of islands in the Nusa Tengarra. Rote was a favourite until recently, and boats have also arrived from Java, Bali, Lombok, Flores, Alor and Bima.
At the chosen port of departure a crew is arranged, often at short notice. Most crew members will have some experience on a boat, or even better some experience in getting to Ashmore Reef, but this is not essential. Some crew members claim that they have never been to sea as the crew of a vessel before. Younger members of the crew are often there simply to cook and bale water.
The boats used are generally old fishing vessels for the smaller enterprises, and old cargo ships for the larger ones. Most of them are unseaworthy by Australian standards, and all are cramped and ill equipped to take passengers. The vessels are loaded up with enough fuel and barely enough supplies for a one-way journey, and, as we have seen, some do not make it. The smallest boats carry less than 10 passengers, but most recent arrivals are over 50 people. The largest number of passengers to have been received into Australia was 359 people on a boat arriving at Christmas Island on 22 August 2001. This number was exceeded by the infamous group of 438 people rescued by the MV Tampa and, at the time of writing, denied entry into Australia.
Ashmore Reef is a coral reef surrounding a number of lagoons and three small, sandy and uninhabited islands. It is approximately 80 nautical miles from Indonesia, and about 200 nautical miles from mainland Australia. It is a traditional fishing ground for fishermen mainly from Rote, Sulawesi and Madura, and still used as a stop-off for traditional fishermen operating in adjacent waters (this being allowed pursuant to a Memorandum of Understanding between Australia and Indonesia that gives certain limited rights to traditional Indonesian fishermen).[2] The Ashmore Reef Nature Reserve was declared in 1983, and the Reef has been the home for many years to a boat stationed there to monitor and protect the area, generally under the banner of Environment Australia, but also with powers of the Australian Customs Service and the Department of Immigration and Multicultural Affairs.
It is a convenient place for boats to travel and be apprehended. While there are some cases of passengers being dropped off on Ashmore Reef with some limited food and water to last until the Australian authorities arrive, this is not the general course of events. If the boat is not apprehended before reaching its destination, the crew will generally approach whatever Australian authorities are present to hand themselves over, or simply wait in the lagoon at Ashmore Reef until someone arrives.
Few boats from Indonesia make any attempt to reach the mainland directly. Of those that do wash up on the shores of Western Australia from time to time, some are simply lost, having missed Ashmore Reef. Boats have also been apprehended at Christmas Island, generally having departed from Java, and it would appear that this is becoming more common.
Needless to say, the organisers don’t get their feet wet, and the crews get paid as little as they will accept. I frequently queried the low amounts that crew members claimed to have been paid, and was generally given the simple answer that they were not in any position to bargain — the offer was ‘take it or leave it’. The average sum involved was about 1 million rupiah per crewmember (approximately A$200), although many were promised that larger sums would later be paid to their families. Anecdotal reports suggest that some crews are promised that the balance of their ‘wage’ will be paid to their families when news comes back that they have been apprehended — one explanation for the low rate of ‘drop offs’ on Ashmore. Invariably, however, these larger sums are not received. I travelled to Rote in July 2001, and met up with about 50 crew members who had returned home. Almost all of the people I spoke to had received a small sum (between 500,000 rp and 1 million rp) and had been promised further sums on their return, but the ‘boss’ had never been seen again. Some had not received any money at all.
While there is a tendency for ‘illegal migration’ to be talked about as a general phenomenon, it takes many forms: from people trafficked against their will to those fleeing persecution. It is therefore important to distinguish these offences from others involving unlawful entry, and contrast the numbers arriving by boat from Indonesia with those in Australia by other illegal means.
A significant proportion of illegal migration to Australia takes the form of air arrivals.
Department of Immigration and Multicultural Affairs (DIMA) statistics[3] indicate that in financial year 1998/99, 3027 people were identified as having arrived in Australia unlawfully. Of these 2106 (70%) were people refused entry at airports and 920 (30%) arrived on boats.
For 1999/2000, 5870 people were recorded as having arrived in Australia unlawfully: 1695 (29%) air arrivals, and 4175 (71%) boat arrivals. In 2000/2001 a total of 5649 people arriving unlawfully comprised 1508 (27%) air arrivals and 4141 (73%) boat arrivals. Iraq was the largest source country for both boat and air arrivals in 1998-99 and 1999/2000.
From a dramatic peak in 1999, the number of boat arrivals has fallen: 86 boats arrived in the 1999 calendar year, 51 in 2000, and 32 in 2001 before 22 August. Although the trend is to see boats carrying larger numbers of people, the figures show a slight decrease in the number of people arriving since the peak in 1999. For the reasons developed below, this decrease is unlikely to reflect any deterrent effect of lengthy sentences.
It is worth noting that the figures for unlawful air arrivals are people who are refused entry at the airport — they are only the people who are detected entering Australia unlawfully. It is impossible to tell how many people are actually able to enter Australia unlawfully by air. By comparison, cases of unlawful entry by boat from Indonesia involve no element of deception, such as the use of false passports or visas to gain entry. Therefore Indonesian boat arrivals do not result in people passing unchecked into Australia. It is, however, a feature of the boat arrivals that many passengers come with no documentation, which, DIMA argues, makes difficult the task of assessing their bona fides and any security risk they may pose.
By far the largest group of people in Australia unlawfully is those who arrive lawfully and then overstay their visa. At 30 June 2000 the number of overstayers was 58,748. This can be compared with the total number of boat arrivals since 1989 — 13,598 to 22 August 2001. It is a great irony that the largest group of people in Australia unlawfully comprises overstayers who have come from the same place as those first people to arrive in Australia without passports or visas authorising their entry — they are from the UK.[4]
While many overstayers are people who simply extend their holiday by a short period before returning home voluntarily (28.6% of people had overstayed their visa by less than one year), 28% of people within this group overstayed their visa by over nine years.
Vessels entering Australia via Ashmore Reef are also quite distinct from the sophisticated operations, generally involving boats from China, which gained great notoriety after some much-publicised arrivals on beaches in NSW and Queensland. These types of enterprises were cited in parliamentary debate as exemplifying the offences that were being targeted by legislative changes in 1999 (outlined below). The Minister for Immigration and Multicultural Affairs, Philip Ruddock gave the following example in a second reading speech:
Earlier this year ‘snakeheads’ — as they are called in China — or people smugglers, from Fujian, conspired to bring a boatload of would-be illegal entrants to Australia. The Fujian group were attempting a totally clandestine entry, attempting to avoid detection and to disappear into the Australian community.
The vessels involved in the Fujian operation were steel-hulled and equipped with modern navigational and communications equipment. These ships travelled, by a circuitous route, through international waters, across the top of Papua New Guinea, before targeting Australia’s eastern coast. They avoided contact with those neighbouring countries whose officials might alert Australia of their imminent arrival.
The snakeheads coordinated the route taken by the vessel and arranged for accomplices onshore in Australia to receive and conceal the ships’ human cargo. Their plans were to exploit the limitations of our current laws. The ‘mother ship’ was to wait in international waters. Accomplices in Australia were to travel out to the vessel in high-powered ocean-going speed boats that had been specifically purchased for this purpose.
Those accomplices were to ferry the passengers to Australia under cover of darkness. The mother ship, relieved of its human cargo, would then sail back to China without being detected or arrested.[5]
Boats arriving from Indonesia are significantly different. They are simple vessels, often with no navigational equipment, or only a compass and sometimes a map. On only one occasion that I can recall did the boat have a GPS system. There is no attempt at achieving covert entry — the crews present themselves and their passengers for apprehension. They are therefore not ‘people smuggling’ enterprises (although DIMA continues to use this terminology). There is no established contact with the mainland and no aim at attempting direct entry into the community. The inevitability of apprehension that characterises these offences significantly reduces ‘national security’ implications that may attach to unlawful migration.
Despite concerns that these offences constitute a ‘serious violation of Australia’s sovereignty’,[6] a significant measure of control is in fact maintained over the immigration process by the fact that the asylum seekers present themselves to Australian authorities. Despite the general absence of documentation held by the passengers, they do not possess bogus documentation, and their claims to refugee status can be properly assessed.
Arrivals at a point far from the mainland also pose far less a quarantine risk than do other boat arrivals. Thus, although nobody really wants to admit it, the Ashmore Reef drop-off point has distinct advantages, and if there is any place in Australia that might warrant the title of ‘Immigration Reception and Processing Centre’ it could be the Customs/Environment Australia boat that sits at Ashmore Reef waiting for another arrival.
The spectre of organised crime is often raised in connection with illegal migration, and ‘organised crime’ of some description is almost certainly involved at some level in the facilitation of the majority of unlawful entries to Australia by boat from Indonesia. There is, however, no evidence that the people movers are any more than opportunistic participants in the enterprises — although the Crown has observed in submissions that they may have thereby ‘made themselves available to organised crime’. There is no suggestion that the crew members have any links to, or contact with, organised crime in Australia.
There is also no credible suggestion that the passengers involved are members of organised crime or that they will have any involvement with organised crime in Australia either voluntarily or involuntarily. Of course, this did not stop one Member of Parliament portraying all illegal migration in the following extraordinary terms:
[The passengers] face a life of servitude at the hands of organised crime gangs. Their servitude can also take other forms, such as loan sharking, protection rackets, money laundering operations, importation and distribution of narcotics, kidnapping, fraud, vice, extortion, contract killing, slave trading and the tragic practice of child prostitution.[7]
If there is evidence to support this nasty piece of xenophobia in relation to other forms of illegal migration, there is none available to support it in relation to the recent boat arrivals. We can note, for example, DIMA’s treatment of the issue of trafficking of women to work in the sex industry which states that ‘Women trafficked into Australia to work in the sex industry arrive by air …’[8]
It remains a legitimate concern of the government to screen people arriving unlawfully to ensure that they do not pose any security risk to Australia. We may wonder, however, why members of organised crime would seek to arrive in Australia by such a precarious means as a boat from Indonesia, a mode of entry that ensures their apprehension and detention for many months while their bona fides are scrutinised.
In an interesting development, Abdul Hussein Kadem, an asylum seeker on a vessel that arrived at Ashmore Reef on a boat containing 353 passengers in November 1999, has pleaded guilty to facilitating unlawful entry and been sentenced to four years imprisonment. Kadem, who paid $17,000 for the passage of himself and his family to Australia, had also acted as an interpreter for the organisers, and assisted them in negotiating passage for, and collecting money from, other passengers.[9]
One obvious response to a problem such as illegal migration is to punish those involved in the facilitation of illegal entry, and in 1999 Commonwealth Parliament passed laws to increase penalties available to the courts in sentencing for such offences: Migration Legislation Amendment Act (No.1) 1999 (Cth), commencing 22 July 1999 and Border Protection Legislation Amendment Act (No.1) 1999, commencing 16 December 1999. Other changes contained in the amending legislation were aimed at increasing the powers of law enforcement agencies to pursue, board and detain vessels, and detain, search and question people suspected of involvement in breaches of the Migration Act.
While much of the attention at the time of these legislative changes was on the organisers of these enterprises,[10] the brunt of the laws has been felt by the Indonesian crews of the boats bringing unlawful non-citizens. There are presently two offences with which Indonesian crews are charged, in the alternative, carrying maximum penalties of 10 and 20 years; Migration Act 1958 (Cth), ss. 233(1)(a) and 232A. It is the practice of the Crown to accept a plea of guilty to the more serious charge in satisfaction of the indictment.
Factors such as numbers of passengers, levels of responsibility, seaworthiness of the vessel, and age have all influenced penalties received by crew members.[11] Sentences have ranged between 16 months suspended after 10 months (for a vessel with 8 passengers crewed by youthful offenders) to 7 years with a non-parole period of 3 years 6 months (for the captain of a vessel of 228 passengers).[12]
In terms of sentencing objectives, the courts have consistently held that general deterrence needs to be given the greatest weight. What remains questionable, however, is how meaningful general deterrence is in these cases.
Indonesia is a country of over 200 million people. Its economic woes are well known, and the islands of the Nusa Tengara region are some of the poorest in the archipelago. It is unclear how well publicised the fate of the crew members is within Indonesia — although within the small fishing communities of Rote it is fair to assume that everyone is well aware of the consequences of participation in these voyages. However, even among those informed about the penalties they might face in Australia, it is hard to believe that, in the circumstances, there will ever be a lack of willing volunteers. Trite as it may sound, there is no deterrence for poverty, and it may be that time in an Australian jail will become viewed as a rite of passage for young Indonesian fishermen, many of whom are accustomed to leaving their families and travelling the archipelago in search of opportunities.
It has been argued by the Crown, however, that the courts must make the offences uneconomic — the penalties must be such that jail is not simply an occupational hazard, or even one of the occupational requirements, with the ‘salary’ being commensurate with the anticipated sentence. This is a persuasive argument, and probably the best the court can hope to achieve. Indeed, commentators such as Andreas Schloenhardt suggest that tackling the economics of illegal migration is getting to the heart of the problem — illegal migration is a business and ‘legislation and law enforcement should be directed against the profitable market conditions of organised crime’.[13]
Ironically, however, it seems likely that Australian laws in relation to maritime and fishing boundaries have contributed to the circumstances that make fishermen vulnerable to exploitation by organisers of illegal migration, and more likely to become involved in these enterprises. In 1979, Australia declared a 200 nautical mile Australian Fishing Zone, claiming exclusive rights over traditional Indonesian fishing grounds in waters closer to Indonesia than Australia. Prosecutions that have followed have inevitably resulted in the forfeiture of many vessels, and it has been estimated that in 1996 approximately half of the fishing fleet from Papela, Rote, was apprehended and destroyed for illegal fishing.[14] Dan Dwyer has observed:
The historical developments of Australian expansion into the region and the resultant marginalisation of indigenous fishers had created a pool of highly skilled boatmen with intimate knowledge of the area but no way of legally utilising this skill …
The deliberate actions of an Australian Government and bureaucracy, bent on claiming and exploiting the petrochemical and other resources of the Australian continental shelf, have ignored the plight of these indigenous fishers and the environment which once sustained them. The exclusion from the long held fishing grounds and the limiting of their area of operation to an economically unviable reservation … has … encouraged their desperate illegal activities. Failure to consider more inclusive solutions has created an expensive border management problem for Australian authorities.[15]
Illegal migration will always exist, and there will always be a demand for the services of people movers. As DIMA concedes, ‘[p]eople smuggling will continue to occur while large numbers of people are living in poverty or economic uncertainty or where there is limited scope for legal migration’.[16] The huge numbers of people forced to flee persecution in their home country each year is also something that is unlikely to ever change, and such movements will never be met by the limited humanitarian migration policies of other countries, including Australia. And just as there is no deterrent for poverty, the Jesuit Refugee Service has noted: ‘No deterrent will stop [people] from attempting to exercise their legally recognised right to seek asylum’.[17]
Not only is Australia not alone in facing the problem of illegal migration, but indeed it currently bears little of the weight of the international movement of people. Numbers of people illegally in Australia and seeking asylum can be contrasted with those in the United Kingdom where, in the 12 months to 30 June 2000, 29,000 illegal entrants were identified.[18] This compares to 5869 unauthorised arrivals to Australia in that period. In the same period, the UK received 77,700 applications for asylum — 48,700 from people already there. There is an estimated backlog of 36,390 cases involving applications for refugee status.
As noted above, in recent years people from Iraq have made up the largest number of unlawful arrivals by both air and sea, suggesting that people will use whatever means is at their disposal to seek asylum. In all of these circumstances, it seems fair to assume that if the penalties meted out to the Indonesian crews involved in the latest unlawful arrivals have any impact, it will be to alter the modus operandi to avoid apprehension, rather than significantly diminishing the numbers of people coming to Australia unlawfully.
Avoiding apprehension might be achieved by increased sophistication, as has been demonstrated by the Chinese boat arrivals discussed above. It might also be achieved by simple means such as travelling with two boats, one of which accompanies the main vessel for the majority of the voyage and then takes the crew back to Indonesia, leaving the passengers to complete the journey. In one recent case, a crewmember left the vessel at night after its arrival at Ashmore Reef, returning home on a fishing vessel that had been in the area. There have been other similar cases. We might also expect an increase in the practise of abandoning the passengers on one of the small islands of Ashmore Reef. These various measures can be expected to increase the costs of detection and apprehension of persons involved.
A likely result of changes in the modus operandi is an increase in the dangers faced by passengers. The appalling treatment of people seeking unlawful entry into Europe, including claims of people being forced to jump off ships into the waters off the coast of Italy, are well publicised, and we can only hope that such trends will not be replicated off our shores.
The fact that the numbers of people arriving unlawfully have fallen since 1999 may, of course, indicate that increased penalties have had their desired deterrent effect. However, Australia’s experience with boat arrivals suggests otherwise. History shows that particular geopolitical events trigger the movement of a particular group of people — most recently, people fleeing Iraq and Afghanistan have made up the overwhelming majority of the people arriving. As times change, so do the trends. DIMA observes:
Australia’s experience of the ‘boat people’ phenomenon commenced in the late 1970s with the arrival of Vietnamese asylum seekers who travelled in fishing boats from Vietnam. There was then a lull until 1989 when arrivals sailed from the Kompong Som region of Cambodia to Singapore and then to Indonesia and Australia, taking between 20 to 30 days, aboard boats of about 20 metres in length. Generally later arrivals came from locations in the southern provinces of the PRC, such as Beihai, Nanning and Qinzhou in Guanxi Province and from locations in the Guangdong Province. These boats took around 30 days to sail to Australia. Boats also came from Galang, a former refugee processing centre in Indonesia and in May 1995 a boat containing 18 East Timorese arrived.
It also appears that co-operation between Australian, Indonesian authorities (primarily the police), the International Organisation for Migration (IOM) and the United Nations High Commissioner for Refugees (UNHCR) has slowed, and in some cases prevented, the movement of people through the region and on to Australia. Australia has implemented a ‘Regional Co-operation Model’ in Indonesia under which Indonesian authorities are provided with training and equipment to assist in intercepting and detaining Australian-bound ‘irregular migrants’. The IOM is then funded to feed and house people awaiting the assessment of their refugee claims by the UNHCR, and Australia also has agreed to pay for the voluntary removal of people not needing protection. The UNHCR receives support to meet the costs of processing claims to asylum in Indonesia and relocating people to other places where they may have protection. The Minister for Immigration and Multicultural Affairs has stated that several million dollars have been spent on such ‘interruption activities’ in the region.[19]
Of recent arrivals, the majority of passengers have been granted temporary protection visas, recognising a legitimate claim to refugee status. Of those from Iraq and Afghanistan, the acceptance rate has been estimated at times to be 90%.[20]
It remains an apparent contradiction of Australia’s migration laws that, pursuant to the Refugees Convention, it is not an offence for an asylum seeker to come to Australia without authority, while it is an offence to assist someone else to do so.[21] The courts have, furthermore, rejected the submission that the fact that the passengers are asylum seekers, or have already been granted refugee visas prior to sentencing, is a factor in mitigation.[22]As a result, while many Indonesians remain in jail serving their sentences, their passengers are granted visas and released from detention.
It is generally observed by the Crown and accepted by the court that the crew members become involved in the enterprises for financial gain, not humanitarian motives — indeed, the crew members of the vessels are often unaware as to the precise purpose of the passengers for coming to Australia. However, it is interesting to consider the case of a drug courier who doesn’t know precisely what illegal substance is contained in a package secreted in their luggage — we can expect that the person will receive a different penalty if the contents are heroin, as opposed to cannabis, as opposed to kava.
The Crown has also observed that the Migration Act aims to regulate the entry of people into Australia, including the entry of refugees under a structured refugee program. These offences, it is argued, enable people to ‘jump immigration queues’ and thereby prevent other refugees, who may be waiting in refugee camps outside their home country and may have equally, or more worthy claims, from being granted one of the limited number of refugee visas that Australia is prepared to offer in any given year. The courts have accepted this argument.
Of course, people facing or fleeing persecution are often understandably reluctant to take a number and wait. Reporting on asylum seekers waiting their turn in Indonesia, David O’Shea observed:
When asylum seekers arrive in Australia by boat, we call them ‘queue jumpers’ and accuse them of stealing places from good refugees who wait their turn. But these Iraqi refugees have reached the front of the queue and found that it gets them nowhere. The UNHCR has decided they are genuine refugees in need of resettlement. Almost two years on, they’re still waiting for somewhere to go.[23]
I have maintained that the fact that the passengers are asylum seekers is, at the very least, relevant in distinguishing these cases from others involving entry of persons for some nefarious purpose — of which, according to some politicians, there are many: child prostitution, contract killings and so on. This submission has not attracted much interest.
Conclusion
From a global perspective, there is no ‘answer’ to the problem of illegal migration — desperate people will always flee and end up somewhere. Australia obviously has the right to protect its borders, and punishment of people movers will always be an element in this. In doing so, however, we can avoid fanning the flames of xenophobia, and allowing impoverished opportunists to bear the brunt of political posturing.
The courts in Darwin have avoided, by and large, the hysteria displayed in some quarters and this restraint is perhaps a consequence of living on a frontier with a consciousness of our proximity to Asia — a fleet of Indonesian boats detained in Darwin harbour is no longer a novelty. Nevertheless, it remains important to recognise and remember the limited role that the criminal law can hope to play in what is a complex and inevitable problem. We can jail the ferryman as often as we like, but his passengers will still get to the other side.
As if to confirm that principles no longer count when it comes to the arrival of unlawful non-citizens by boat, mandatory sentencing for ‘people smugglers’ was passed shortly before publication by the Commonwealth parliament. The legislation, along with a number of changes designed to give even broader powers to Commonwealth officers in relation to unlawful boat arrivals, significantly limits the liability of the Commonwealth and its officers to take action in relation to unlawful boat arrivals, and retrospectively validates actions taken in relation to the MV Tampa.
The Border Protection (Validation and Enforcement Powers) Act 2001 introduces a mandatory penalty of five years (with a three-year non-parole period) for first offenders and a sentence of eight years (with a five-year non-parole period) for repeat offenders. The provisions do not apply to a person who can prove on the balance of probabilities that they are under 18 years of age. This represents an important shift in onus away from the prosecution, and a burden that young Indonesian men who own no identity papers may not be able to satisfy.
Both the government and the opposition who supported the legislation have previously indicated their opposition to mandatory sentencing in the Northern Territory. Indeed, the newly elected Labor government in the NT is in the process of scrapping the NT’s mandatory sentencing laws, acknowledging that they have failed. We know from experience in the NT that mandatory sentencing simply doesn’t work (it hasn’t reduced crime after four years of operation), and costs a fortune. We also know it leads to unjust sentences, distorts the sentencing process and compromises the independence of the judiciary. But we also know that it is ‘tough on crime’ (even if it’s not smart), and everyone likes to be ‘tough on crime’ when there is an election in the wind.
The Migration Amendment (Excision from Migration Zone) Act 2001 has also been introduced to remove Christmas Island, Ashmore and Cartier Islands and the Cocos (Keeling) Islands from the Migration zone and thereby limit the ability of unlawful non-citizens to make valid visa applications after having arrived at those places. Although politically attractive in the short term, it might be expected that this will give rise to an increase in ‘mainland’ arrivals, which may create increased quarantine risks.
[J.H.]
[*] Jonathon Hunyor is a Northern Territory lawyer.This is an edited and updated version of a paper presented on 26 June 2001 at the Eighth Biennial Conference of the Criminal Lawyers Association of the Northern Territory.jonathonhunyor@ozemail.com.au©2001 Jonathon Hunyor
[1] For an analysis of the business of people trafficking, see Schloenhardt, Andreas, ‘The Business of Migration: Organised Crime and Illegal Migration in Australia and the Asia-Pacific Region’, (1999) 21(2) Adel LR, and Organised Crime and the Business of Migrant Trafficking: An Economic Analysis, paper presented at the Australian Institute of Criminology, Canberra, 2 November 1999, <www.aic.gov.au/ conferences/occasional/schloenhardt.html>. For an analysis of national security issues, see Graycar, A. and Tailby, R., ‘People Smuggling: National Security Implications’, paper presented at the Australian Defence College, Canberra, 14 August 2000 <www.aic.gov.au/ conferences/other/smuggling.html>.
[2] For a detailed treatment of Ashmore Reef and a history of Indonesian use of the area see Dwyer, Dan, ‘Fishers of People: From Reef Fishing to Refugees, The Changing Role of Indonesian Sailors and their Perahu at Ashmore Reef, North Australia’, in Altered States: Material Culture Transformations in the Arafura Region, Fredericksen and Walters (eds), NTU Press, Darwin, 2001.
[3] All the figures in this section are taken from the DIMA website at 15 September 2001: <http://www.dima.gov.au> and the DIMA publication Protecting the Border: Immigration Compliance, Commonwealth of Australia 2001, an electronic version of which is also available through the website.
[4] I can’t claim this to be an original observation, or a new one. See, for example, Shanahan, Dennis, ‘Most Illegals Profit from Plane Sailing’, Australian, 25 November 1999. For the refugee side of this equation see Hunyor, Jonathon, ‘Warra Warra: Refugees and Protection Obligations in Relaxed and Comfortable Australia’[2000] AltLawJl 87; , (2000) 25(5) Alternative Law Journal 227.
[5] Ruddock, Phillip, MP, Minister for Immigration and Multicultural Affairs, Border Protection Legislation Amendment Bill 1999, Second Reading Speech, Hansard, 22 September 1999.
[6] This is the wording of the standard submissions used by the Crown in these cases in Darwin. See also the second reading speech of the Minister for Immigration and Multicultural Affairs, above, ref 6.
[7] Pyne, Chris, MP, Border Protection Amendment Legislation Bill 1999, Second Reading Speech, Hansard, 21 October 1999. The member chose to make these claims after citing the increase in numbers in boat arrivals.
[8] Protecting the Border, above, ref 4, p.69. Note also the actual numbers of unlawful non-citizens located working in the sex industry in Australia — 190 people in 1999/00 (p.114). There are no figures in the publication of the number of people involved in any of the other pursuits in Mr Pyne’s list.
[9] ‘Man gets four years’ jail for helping people smugglers’, Sydney Morning Herald, 11 October 2001, p.6.
[10] See, for example Peter Slipper MP, Migration Legislation Amendment Bill (No.1) 1999, Second Reading Speech, Hansard, 30 June 1999.
[11] For a detailed discussion of these matters, see the conference paper from which this article has been derived, above, ref 1.
[12] This was appealed unsuccessfully: see Cita v The Queen [2001] WASCA 5, unreported WA Supreme Court, 24 January 2001. The Captain of a vessel with 353 passengers, previously the largest to have arrived, was sentenced in Darwin to seven years imprisonment, to be released after three years.
[13] Schloenhardt, above, ref 2.
[14] See Dwyer, Dan, above, ref 3, p.40.
[15] Dwyer, Dan, above, ref 3, pp. 50-1. See also Balint, Ruth, ‘The Last Frontier. Australia’s Maritime Territories and the Policing of Indonesian Fishermen’, in Journal of Australian Studies, ‘New Talents’, 1999. Specifically in relation to the impact of the MOU see Stacey, Natasha, ‘Crossing Borders: Implications of the Memorandum of Understanding on Bajo Fishing Activities in Northern Australian Waters’, paper presented to symposium Understanding the Cultural and Natural Heritage Values and Management Challenges of the Ashmore Region, 4-6 April 2001, Darwin.
[16] DIMA, Protecting the Border, above, ref 4, p.15.
[17] Jesuit Refugee Service submission to the Minister for Immigration and Multicultural Affairs, quoted in McGregor, Richard, ‘Riding the Refugee Wave’, Australian, 20-21 November 1999, p.21.
[18] Figures from the British Home Office, <http://www.ind.homeoffice. gov.uk/rds/pdfs/hosb2200.pdf> .
[19] ‘Tropical Transit Lounge’, Dateline, SBS Television, 22 August 2001, Reporter David O’Shea. See also ‘Illegal tide is turning, says Ruddock’, Weekend Australian, 28-29 July 2001.
[20] See Horin, Adele, ‘Most Iraqis, Afghans win right to stay’, Sydney Morning Herald, 18 April 2001.
[21] Article 31 of the 1951 United Nations Convention Relating to the Status of Refugees, to which Australia is a party, states that Contracting States ‘shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened … enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence’.
[22] See, for example Cita v The Queen [2001] WASCA 5, unreported WA Supreme Court, 24 January 2001.
[23] ‘Tropical Transit Lounge’, above, ref 18.
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2001/88.html