We declare children and boys to be people smugglers
You would not think that in Australia we would lock up any children in jail.
You would not think we would lock children up in prison without formally charging them. Of course we wouldn't. Australia is not a medieval society.
Sorry - you're wrong.
The police cannot do it, because the courts would stop them. Australia's most viscious public servants however, get away with it. Using the manipulative rules and regulations of the 1958 Migration Act allows the Immigration Department to lock up children accused but not charged with 'people smuggling' - and the Immigration Department does so in collusion with the Australian Federal Police.
Triggered by media reports and increasing action by defence lawyers, the fate of asylum seeker boat crew - usually poor, illiterate, unemployed young Indonesian fishermen - who know the Ashmore Reef and Christmas Island fishing grounds on the back of their hand - is coming more into the spotlight of public attention.
This page collects a number of media reports about the fate of those who sail the boats to our shore and links to other pages on our website dealing with this disturbing issue.
6 November 2011: Australia's extra-judicial jailing of Indonesian children - We avoid the Criminal Code, because that would prevent us from jailing children without charges; we use discredited wrist X-ray testing to determine their ages without getting results in due time; while this goes on, our Immigration Department cowboys collude with Australian Federal Police in order to jail more than a hundred kids in adult Australian prisons. And barely anyone stirs this hornet's nest of Australia's medieval lock-em-up mentality.
16 April 2011: Island boys and Indonesian smuggling laws - Why did Indonesia formulate their anti-people smuggling laws? A massive political campaign has long told Australians that people smugglers are evil, that they are the scum of the earth, that they run a vile industry. That campaign has run in tandem with one convincing us that those sailing to Australia are 'illegal immigrants', 'queue jumpers' or 'economic forumshoppers'.
1 April 2010: Is Mr Hadi Ahmadi a people smuggler or escape organiser? - Mr Hadi Ahmadi assisted in bringing four boats to Australia. His passengers were not 'illegal immigrants' but asylum seekers: of the 900 passengers, no less than 866 were declared genuine refugees once their claims were processed. That's a success rate of 97%. Does that make him a people smuggler or a UN Convention enabler - or an "escape organiser"?
19 April 2010: The 2010 Anti-Smuggling Legislation - Punishing smugglers, or finding a covert way to lock Australia's borders? "In view of commitments given by Australia under the UN Refugee Convention, also to refugees arriving by boat, this legislation gives the appearance of being highly manipulative in nature."
2 March 2010: To Catch a People Smuggler, to Wade through Brine of Spin - Anyone who tries "to catch a people smuggler" needs to first peel off the many layers of spin and labelling. This page, primarily about 'Captain Bram', one of the Australian government's "notorious" people-smugglers, wonders why he has not been extradited to Australia.
24 August 2009: Reaching Australia: Iraqi asylum seekers in transit in SE Asia - This paper considers the relationship between asylum seekers and people smugglers, based primarily on interviews with Iraqis settled in Australia and Iraqis stranded in Indonesia since 2001. The study is responsive to recognition within forced migration research of the importance of giving voice to the main agents - refugees and asylum seekers - as part of the research process.
18 May 2009: Kevin Rudd's vile band of people smugglers - Kevin Rudd, with his media remarks, had escalated the issue of people smuggling, and remarkably, a crack appeared in their vileness. For the first time in Australian history, media opinion started to turn against his line, and reporters and opinion writers started to open the issue and, almost unaware of it, started to 'humanise' people smugglers. Thank you, Prime Minister!
:::UPDATED Febr 2008:::: 26 September 2007: Oskar Schindler and the people smuggler - Under Australia's interpretation of what constitutes a 'people smuggler', the young man who sold the donkey to Joseph and Mary would be prosecuted and imprisoned by law ... So would the priest who helped the Von Trapp family ... this page is about Ali Al Jenabi, one of those people smugglers.
Click the links below to jump down to the articles and items on this page with the same title.
Thursday 21 October 2010
The Prime Minister made a major mistake on Monday when she said "I don't think it's the Australian way to have kids behind razor-wire."
Whether it's as a deterrent or something else, this has in fact been the Australian way since the early 1990s. The announcement that more families and children will be moved out of detention centres was accompanied by another: that two new centres will be constructed near Adelaide and Perth.
The rhetoric of nationalism and security was once again set upon asylum seekers.
The basic assumption in political and public discussion today is the same as it has been since at least the mid-1990s: that the main priority is to prevent boats with asylum seekers aboard from reaching Australian shores.
As Dr Michael Grewcock put it, author of Border Crimes: Australia's War on Illicit Migrants, in Australia refugees have "rights only enacted on terms agreeable to the Australian state."
The federal government has just announced that talks with East Timor about its plan to locate a "regional processing centre" will continue, and there is no sign that this policy goal will change in the foreseeable future, despite the reiteration of their "no children in detention" policy.
According to the UNHCR Australia receives 1.6% of the asylum claims made in industrialised countries, and 0.4% of global claims. This small percentage of global claims represent about half the amount that were received here in the first few years of the decade. Given this small number of claims that are made here, why is this such a hot political issue? Where do these attitudes and the assumptions that underpin them come from?
Who controls the narratives surrounding asylum seekers, who makes them what they are in our national consciousness? Public discussion is by and large shaped by a complex combination of politicians and the press. The agenda of both Labor and the Coalition at the current time is to 'stop the boats,' a goal which aligns very closely with the messages disseminated in tabloid newspapers and on talkback radio.
As Grewcock says, the "primary aim is to enable refugees to come solely on the government's terms," an aim that has been consistent since the end of the Second World War.
Different mainstream media outlets take different and sometimes shifting stances on asylum-seeker issues. Phil Glendenning, director of the Edmund Rice centre, singles out talkback radio shows as the purveyors of some of the more virulent attacks with talk of "asian invasions" and the like. Newspapers tend not to be as active in attacking asylum seekers, but nevertheless participate in presenting them as a problem.
Even broadsheets less known for their populist rhetoric than the tabloids; recently both The Sydney Morning Herald and The Australian reported that boat arrivals clog Australian bureaucratic systems: asylum seeker security checks overloading ASIO, and prosecuting people-smugglers in the NSW courts respectively.
There is, according to Professor Sharon Pickering form Monash University, a "mundane deviance discourse," an everyday, unremarked assumption that there is something wrong with seeking asylum, and with the people who do so. Even if they are not an active threat, the implication is that they are to be distrusted, segregated, evaluated and sent away if at all possible.
Every boat 'intercepted' suggests a hazard avoided by Australia, and that hazard is asylum seekers.
A second myth found in mainstream media is that of the queue-jumper who bypasses proper, orderly migration channels.
The notion of the queue-jumper heavily influences negative community perceptions of asylum seekers, especially among Howard's "Aussie battlers."
Australian society is heavily invested in the notion of the 'fair go' and anyone perceived as receiving special treatment is likely to be resented and mistrusted.
These critiques are sometimes expressed by refugees themselves; for example, earlier this year statements by an African refugee who said that arriving by boat was queue-jumping and unfair were published in The Sunday Times of Perth.
In the mid-1990s first Pauline Hanson and then the Coalition led by John Howard very successfully played the so-called 'race card' and presented multiculturalism as the political correctness imposed on the rest of the country particularly 'Aussie battlers' by left-wing, inner-city dwelling, privileged elites.
In doing so they made what is essentially a racial issue about class, and took a position which allowed them to erode the traditional support base of the Labor party. Howard's policies although it was Hawke and then Keating who introduced mandatory detention have set the tone for most political approaches since. Labor, having dispensed with the 'Pacific Solution' is now seeking to institute a similar policy with its proposed processing centre in East Timor.
For asylum seekers to be politically useful they need to be talked and thought about as an issue, not as people. One of the major effects of media coverage of people seeking asylum in Australia is that they are dehumanised. When boat arrivals are reported, the people on board are only defined by what they are presumed to be doing. We rarely, if ever see their faces, hear their names or are told their stories.
If the exigencies of distance are one reason for this Ashmore Reef and Christmas Island are far from the nearest news camera that distance only makes the dehumanising of asylum seekers easier.
Personal stories like Anh Do's, told in part on the ABC'S Talking Heads on the 4th of October are very powerful, but they are, perhaps inevitably, the stories of people who have been recognised as refugees, not of the asylum seekers whose claims are still being processed.
Grewcock remarks that once asylum seekers have been "dehumanised in that way which the media does very effectively it is very easy to scape-goat them." This is a process which is "very consciously driven," he says, and "politicians feed on it."
People-smuggling and asylum seekers are intimately linked in the narrative of boat arrivals that currently dominates in the Australian politics and media. Asylum seekers are guilty by association, and that association ties into to the idea that they are queue-jumpers, unfairly pushing ahead of deserving refugees who do not employ criminals to help them reach Australia.
By concentrating on people-smugglers and emphasising their criminality and the threat they pose to Australia the government, with the help of the media, create a priority that they can then be seen to act on.
The connections between media messages and public opinion are complex. While mass media was once thought to simply 'inject' an idea into the public consciousness it is now recognised that every individual in the audience decodes the messages they see and hear for themselves, and interprets them accordingly, forming their own opinions.
This concept is one of the foundations of a democracy like Australia every individual can make their own decision and contribution. But this only works when different ideas and perspectives are publicly discussed. Overwhelmingly the narrative surrounding asylum seekers in the Australian media is a negative one which simultaneously creates myths and leaves out facts.
We rely on what we read, see, and hear as the basis for our beliefs about them. When the two major political parties differ on how to achieve their goals rather than what those goals should be, it is often not easy to question them.
When the majority of the media do not speak to the damaging myths or omissions that draw a one-dimensional picture and create a one-sided debate it is even harder.
The Daily Telegraph
Monday 8 November 2010
My father dug up a photo from the family archives last week of my late Great Aunt Rita, his father's sister. She is standing aboard a boat that had just arrived in Port Melbourne in the late 1940s. Staring at her across the deck is a crowd of well-dressed, young smiling faces.
You'd have to wonder why they were smiling. They had just travelled six weeks across the ocean from southern Europe after fleeing the ravages of World War II.
Many were alone, many had lost entire families.
Perhaps it was because they knew that interest rates in Australia were then controlled by the government.
Rita was this country's first welfare officer, having served as immigration minister Arthur Calwell's secretary.
Her job was to ensure safe passage of post-war displaced people to this country under the government's policy of Populate Or Perish.
I'm told she would often get on the boat herself and sail to Europe to collect the lost and bewildered, travel back with them, many with little or no English, and help them resettle as the New Australians.
She was a pioneer in a program that eventually transformed the mono-cultural character of Australia. Most would say for the better.
Looking at these pictures, it struck me, as odd as it may sound, that the big four banks have done the political debate on asylum seekers a service this past week, by making too much money and charging people more to have some of it.
They have put the issue in context. And in doing so they have exposed the great lie of the recent election campaign and the moral perversion that accompanied it.
Today, unless you live in Inverbrackie, the only thing in your hand would be a calculator and the last thing on your mind would be the threat of a population explosion or cultural dilution. One of the burdens of living in Australia is that you have to invent horrors to be outraged by.
In the past week, as people recalculate their monthly mortgage payments, hundreds of asylum seekers have quietly arrived at our shores.
A daily missive from the Government heralds the arrival of yet another boat from unknown destination.
But you wouldn't know it unless you're on Brendan O'Connor's email list. And what of the new Paul Erlich-inspired population bomb? But barely a word mentioned.
It simply goes to prove, in a stark demonstration of electoral caprice, that the recent federal election was fought, largely, around a big fat lie - that Australia was at risk of being swamped by boat people. Again.
It's no wonder that there is some deep soul searching going on in the Labor Party at present. Much of it is about how it approached this issue during the election in response to the Coalition's well-worn dog whistle. Greg Combet called it for what it is last week when he suggested the values of compassion, equity and social justice had been abandoned in favour of focus groups and polling.
And so it is with this deliberately confused debate around immigration, population and illegal entrants and the push polling of fear that has driven it.
Its effect has been a wilful distortion which encourages the issue of illegal entrants to be confused and demonised in the community as an excuse for failures to deal with the broader discussion on immigration levels and population numbers, which neither side of politics has an answer for.
The fact is that the number of boat arrivals in the past year numbered 5237, which is 3.15 per cent of the total immigration program of 168,623. If you take it as a percentage of the 2009 net overseas migration figures or population growth which was 320,400, the percentage is down under 1 per cent.
Here's another figure. In 2008, there were an estimated 42 million displaced people in the world, 15.2 million refugees and almost one million asylum seekers.
Australia is about No. 22 in the world in the ranking of countries most likely to have people lining up at the border to get in. More people actually apply to get into Cyprus and Malta than they do Australia.
Yesterday, the Sunday papers warned that we have hit record high numbers of people arriving by boat, although the figure is only marginally higher than it was in 2001.
Julia Gillard was right when she said it would take 20 years to fill the MCG with asylum seekers as they arrive at their current rate to Australia.
More backpackers are in this country illegally than people who arrive by boat.
But what she failed to do - and still fails to do - is clearly articulate the issue as not one about a bigger Australia and immigration levels but one that has distinct and separate obligations, which we as a country have signed up to.
With every wave of migration to Australia - whether forced or encouraged, and largely in reaction to war - there have been accompanying campaigns of fear that white European heritage and culture would be further diluted.
Whether it was the Greeks and Italians, Eastern Europeans, Russians or Turkish, or the Indochinese that followed, the same fears were raised in the community and fostered for political advantage.
How ironic that there is probably not an Australian alive today who hasn't eaten at a Vietnamese or Chinese restaurant. Beer companies now even make ads about kebabs. We all eat Greek salads and spaghetti bolognese.
Hell, there is even a North African diner in Neutral Bay that is permanently booked out.
Sadly, the current hysteria is a case of history repeating itself under a different racial and religious banner. This time the fear being cultivated is that we are to be swamped by Muslims.
Again, the notion is an absurdity. Not just because many fail, sometimes deliberately, to make distinctions between Islam and extremism, but because the numbers simply don't stack up.
For a start, of the three main groups currently dominating illegal entrants to the country, the Tamils from Sri Lanka are predominantly Catholic or Hindu. They are not Muslim.
Of the Afghan refugees, the majority are Hazara. And while they are Muslim, the reason most are fleeing their country is because the Taliban are terrorising them for not being Muslim enough.
On both sides of politics, there are decent men and women who privately see this issue through a prism of compassion, humanity and reason.
But the politics of fear that has been allowed to fester in the community has swamped the judgment of those whose responsibility it is to lead by example and principle, and not by misguided populism. Populism should be reserved for bashing banks and a bit more humanity put back into the debate about asylum seekers.
Thursday 11 November 2010
Boys as young as 14 are being held in Australian maximum-security adult jails and tried for people-smuggling offences despite having birth certificates that prove they are minors, Indonesian officials say.
The Australian has uncovered details of four jailed Indonesian nationals who claim to be underage, revelations that could strain Canberra's relationship with Jakarta at a time when the Gillard government needs Indonesian goodwill for its planned regional processing centre.
The figure could be higher, as the Indonesian consulate says there are at least five people in the adult prison system claiming to be minors.
The four alleged juveniles are being held in the general population of the West Australian prison system, with claims some are as young as 14.
In at least two cases, the Indonesian consulate in Perth has provided extracts of official birth certificates, which, it says, prove the age of its citizens, both of whom are facing a mandatory five-year jail terms for people-smuggling offences.
One of the young men has a birth certificate extract listing his date of birth as January 12, 1996.
He is accused of crewing an asylum boat that was intercepted on December 18 last year.
His lawyer, David McKenzie, said his client was being held in Western Australia's Albany prison after his transfer from immigration detention.
"Could you imagine if this was an Australian-born person?" Mr McKenzie said.
"People would be outraged. If there was any doubt about their age they wouldn't be sitting in an adult prison."
The Australian is aware of three other individuals who claim to be underage: one who has a birth certificate giving his date of birth as June 4, 1993; another who has no birth certificate, but who claims to be under 18; and a fourth Indonesian, who may soon be appearing in the Children's Court, who claims to be just 14.
The fourth Indonesian's lawyer, Matthew Holgate, said the Commonwealth Director of Public Prosecutions had provided him with an extract of his client's birth certificate, as well as letters from the principal of his school, an Islamic junior high school in Sulawesi, and from the chief of his village.
"The two letters say this person's enrolled at our school, and we'd like to have him back," Mr Holgate said.
His client's birth certificate put his date of birth as December 14, 1995, Mr Holgate said.
Three of the Indonesians are scheduled to appear at age-determination hearings in Perth Magistrates Court next Wednesday, while a fourth is due to appear on December 8.
Indonesian consular official Andalusia Dewi said her office was aware of "at least" five jailed Indonesians claiming to be underage.
The Australian Federal Police relies on wrist X-rays to determine the skeletal maturity of the captured Indonesians, many of whom lie about their age to escape prosecution.
But there is serious doubt about the reliability of the test, with one pediatric radiologist, David Christie, describing it as "amazingly inaccurate".
Dr Christie said wrist X-rays had an error margin of up to 26 months in boys aged 17 years old.
"It's a test, but it's a relatively poor test," he said.
Ms Dewi rejected suggestions that some of the birth certificates provided could be forgeries, saying that they were official documents.
Wednesday 1 June 2011
A senior judge refused to sentence two people smugglers after he raised issues about whether he should accept their guilty pleas.
Judge Hugh Botting raised several issues which are expected to be argued in dozens of trials of people smugglers across Australia.
There are several hundred alleged people smugglers being held in Australia - including over 70 in Queensland - with many waiting for sentence or trial.
In the District Court in Brisbane, Judge Botting was sentencing two Indonesian fishermen who were caught bringing a boatload of Burmese nationals into Australia last year.
Abdul Ganiu Gafur, 40, and Abdullah Pello, 31, pleaded guilty to people smuggling between April 8 and April 9 last year.
After 2 1/2 hours of submissions and legal argument, Judge Botting decided to adjourn the sentence hearing to a date to be fixed.
He said he wanted further submissions on whether he should accept the pair's guilty pleas.
Judge Botting noted on their records of interview with officials there was an arguable case that they might have thought the Burmese were genuine refugees.
He questioned whether the pair were guilty of "recklessness" as per the indictment charge if they believed they were carrying refugees with a right to "come to" Australia.
It is understood that will be similar to the defence run by lawyers for other alleged people smugglers in trials later this year.
Judge Botting also noted the High Court would next week hear an appeal about whether NSW had the legal right to have mandatory minimum sentences.
Under Commonwealth laws, people smuggling charges carry a mandatory minimum sentence of five years jail with a non-parole period of three years.
Earlier, Commonwealth prosecutor Simon Allen told the court a coast watch plane saw a boat near West Island in the Ashmore reef group, about 840km north west, of Darwin.
A naval boat intercepted the boat and found two Indonesian men and eight Burmese nationals, including children aged 16 years and seven years.
Mr Allen said the 12 to 14 metre vessel, which had no cabin, was later destroyed as being dangerous.
He said each of the Burmese had paid $US4,000 to $US8,000 to a man named "Mr Eric" in Indonesia to be transported to Australia.
However, Gafur and Pello were to share an amount which equalled about $A500-$A600 which would be about three to 12 months wages for the men, who were both fishermen.
"I gather no charges have been laid against Mr Eric," Judge Botting said.
Mr Allen said while authorities were increasing their efforts to arrest organisers it was difficult in another country.
He said there was a mandatory minimum five years jail with three years to be served before parole for people smugglers and the Crown was asking for the minimum.
Judge Botting asked whether any sentence he imposed would be a general deterrent.
"I don't think The Courier Mail is widely read in Indonesia," he said.
Judge Botting said it appeared more a case of personal deterrence and public denunciation of the offences.
Wednesday 8 June 2011
The number of people smuggling boats arriving in Australia had spiked since the Federal government changed its policy with at least 214 intercepted in just over two and half years, a court has heard.
Lawyers for two Indonesian fishermen who admitted people smuggling, launched a scathing attack on Commonwealth government policy claiming their clients were nothing more than collateral damage for giant operations.
The court heard of the 214 boats which arrived between September 2008 and April this year 152 had been intercepted in just over the past year.
The Federal government has farmed out those facing people smuggling charges - mainly Indonesian fishermen - to the states with six processed so far by Brisbane courts and at least 70 more to come.
In the District Court in Brisbane today, lholi Faeck, 21, and Ronny Warkor, 28, pleaded guilty to helping eight people to come to Australia without visas between March 10 and March 12 2010.
Prosecutor Simon Allen told the court workers on a gas rig in the Timor Sea spotted a wooden boat floating nearby and alerted Australian customs and the navy.
A naval patrol boat had intercepted the 10 metres by three metres wide vessel which contained four crew and eight Sri Lankan passengers.
Mr Allen said all aboard the boat had were taken into detention and interviews indicated Warkor had been steering the boat while Faeck fed the passengers and bailed water out of the boat.
He said Australian law meant there was a mandatory minimum sentence of five years with a non parole period of three years which had to be imposed even if a judge felt a lesser sentence should be given.
Barrister Greg McGuire, for Faeck, said since the Federal government changed its policy the arrival of people smuggling boats had spiked and new mandatory sentencing had obviously had little impact as a general deterrent.
"My client is collateral damage...he is a bit player at the end of sophisticated people smuggling operation," Mr McGuire said.
He said his client's story was depressingly familiar as he was a poor fisherman trying to support his elderly parents who believed he had some "Rezeki" (term for good luck in Indonesia) when offered for him big money.
Mr McGuire said Faeck had no idea of the consequences he faced under Australian law.
He said the Sri Lankan passengers had paid about $AUS23,000 for the journey but Faeck had been promised about $AUS550.
"When he was detained my client had the princely sum of $AUS1.50 on him. His main task seemed to be bailing water out of the boat," Mr McGuire said.
He said Faeck now had to spend three years in jail at at an enormous waste of money to the community.
Barrister James Benjamin, for Warkor, said his client was also at the very bottom of an operation which began far away from Warkor's home in West Timor.
He said Warkor had no idea of Australia laws and the consequences he faced or he would not have undertaken the trip.
"The concept of general deterrence for people like him seems a legal ficition," Mr Benjamin said.
Acting Judge Brad Farr said he accepted both men had little or no access to teevision, radio or newspaper which would have carried stories about Australia's attitude to people smuggling.
Judge Farr said he also accepted they were poor people who had been preyed on but those further up the totem pole.
He said while the men's roles were vital to the operation he he would have imposed a sentence lower than the mandatory if possible.
However, as the courts could only follow the law, he would sentence both to five years jail with a mandatory three years non parole period and declare they had served 454 days of the sentence on remand.
Judge Farr added how the deterrent message was delivered to the Indonesian people was a matter for authorities.
The Australian / with AAP
Thursday 9 June 2011
A Queensland judge yesterday slammed mandatory sentences for people smugglers after jailing for a minimum of five years two men who helped bring refugees to Australia from Indonesia by boat.
Brisbane District Court acting judge Brad Farr said some people smugglers were jailed for too long.
He said the rules requiring judges to jail those individuals for at least five years was in some cases too severe.
"Were it not for the statutory minimum penalty, I have no doubt that a sentence less than five years' imprisonment would have been imposed in each of your cases," he told people smugglers Lholi Faeck, 21 and Ronny Warkor, 28.
"I will, of course, have no option."
Yesterday's sentencing comes just weeks after Northern Territory Supreme Court judge Judith Kelly called on federal Attorney-General Robert McClelland to "extend mercy" to Edward Nafi, 58. Nafi had been convicted of a second people smuggling-related offence for captaining a boat carrying 33 asylum-seekers, which was intercepted off Ashmore Reef in June last year.
The 10-metre wooden boat crewed by Faeck and Warkor, which had carried eight Sri Lankan refugees, was intercepted by the Royal Australian Navy off the coast of Darwin in March last year.
Mr Barr's comments yesterday echoed Justice Kelly's sentencing remarks last month.
Justice Kelly said she had "no choice" but to hand down the mandatory minimum sentence of eight years, with a non-parole sentence of five years' jail. She felt a non-parole term of 18 months would have been more appropriate for Nafi.
"Such a sentence is completely out of kilter with sentences handed down in this court for offences of the same or higher maximum sentences involving far greater moral culpability, including violence causing serious harm to victims," she said.
"I therefore recommend that the commonwealth Attorney-General exercise his prerogative to extend mercy to you, Mr Nafi, after you have served 18 months in prison."
The Brisbane court was told yesterday Faeck and Warkor were both poor fishermen who were each paid $550 for the trip, the equivalent to about a year's wage for the men.
A total of $28,000 had been paid by the eight refugees to come to Australia, with Mr Faeck responsible for bailing water out of the vessel and Mr Warkor using a hand-held GPS device to navigate while steering the boat.
The offices of Mr McClelland and Home Affairs Minister Brendan O'Connor were contacted by The Australian but both declined to comment.
Wednesday 15 June 2011
Mandatory sentencing of Indonesian fishermen dumped on eastern states courts to face people-smuggling charges will do little to deter asylum-seekers, consumes scarce judicial resources and costs taxpayers millions, lawyers warn.
Defence lawyers have told The Australian mandatory sentences of five years for people-smugglers risks overcrowding jails and lengthening delays in court proceedings.
Since January about 300 alleged people-smugglers have been transferred from overcrowded facilities in northern Australia for processing by Victorian, NSW and Queensland courts.
Defence lawyers say almost all are itinerant fishermen - many unaware they have committed a crime.
"Queensland's jails are at bursting point and they've (the federal government) just dumped 100 federal prisoners on us, so Corrective Services are saying where are we going to put them?," said one barrister.
"The other point is, this offence is drawn very broadly and has very severe consequences - you must get five years."
Indonesian fishermen were being "demonised" by the federal government, said Australian Lawyers for Human Rights president Stephen Keim SC, who issued a scathing indictment of mandatory sentencing laws.
"Under Australian law, Oskar Schindler would be committing offences for protecting Jews from Nazi Germany," Mr Keim said, referring to the World War II German industrialist who saved hundreds of Jews from the gas chambers.
"The Indonesian fishermen who are hired to crew these boats don't know a lot about what they are putting themselves in for."
None of those facing justice in Queensland courts could be regarded as kingpins, the defence lawyer said. "The real smugglers are the entrepreneurs working out of Pakistan, Malaysia and Indonesia, who are making millions."
Earlier this month, Brisbane District Court acting judge Brad Farr slammed mandatory sentences for people-smuggling after jailing for a minimum of five years two Indonesian men who helped bring refugees to Australia.
Just weeks earlier, Northern Territory Supreme Court judge Judith Kelly called on federal Attorney-General Robert McClelland to "extend mercy" to two men convicted of a second people-smuggling offence who were each handed eight-year sentences.
A UN refugee agency study released on Friday says locking up asylum-seekers does not act as a deterrent and is in breach of humanitarian law.
"No empirical evidence is available to give credence to the assumption that the threat of being detained deters irregular migration," the report says.
Tuesday 14 June 2011
Three boys snatched from an impoverished Indonesian village by people smugglers have been held for months in an Australian jail with paedophiles, rapists and murderers.
Federal police have ignored Immigration Department assessments and extracts of birth certificates showing the boys are under 18, contravening federal government policy to return home children apprehended on asylum seeker boats.
Instead, the boys aged 15 and 16 face five years' jail in a high-security adult prison under mandatory sentencing laws.
Shivering with cold, 16-year-old orphan Ako Lani convulsed in tears and could not speak when his lawyers asked him in Brisbane's high-security Arthur Gorrie jail on May 30 whether he was being mistreated by other prisoners.
Sixty Indonesian crew members who claim to be under 18 are being treated as adults in jails and immigration detention centres in Australia following wrist X-ray examinations that police say prove they are not children.
But defence lawyers, citing a number of studies and judicial rulings, say the X-rays are unreliable and inadequate to determine the ages of children.
Fourteen months after 15-year-old Ose Lani and 16-year-olds Ako Lani and John Ndollu were detained on an asylum seeker boat near Ashmore Reef, no Australian police or immigration officials have contacted anybody in Manamolo, the boys' village on Indonesia's Roti Island, to establish their ages. No Australian official has informed family members that the boys are being held in an Australian jail.
"The three boys went fishing one day and never returned ... we thought they had been lost at sea," said Albert Lani, the father of Ose Lani.
Mr Lani wept when volunteer Brisbane interpreter Margaret Bocquet-Siek telephoned him last month to inform him his son was alive. Ose had hidden the telephone number in his shoe, which a lawyer recovered from the jail's property storage.
"Ose's father was crying with relief ... the boy was only 14 when he left the village," Dr Bocquet-Siek said.
Brisbane barrister Mark Plunkett and Indonesian expert Tony Sheldon have gathered affidavits in the village that prove all three of the boys are under 18. But prosecutors say it will take many weeks, if not months, for police to verify the evidence, leaving the boys vulnerable to abuse in a jail that houses some of Queensland's worst offenders.
The Immigration Department first assessed in October last year that John Ndollu was under 18, but told his lawyer about it only in late May. Another assessment in February reached the same conclusion.
Ose Lani was assessed by an immigration official last October to be likely to be under 18.
Lawyers have obtained extracts of birth certificates confirming that Ose Lani is 15 and John Ndollu is 16. A birth certificate showing Ako Lani is 16 is being sent from Indonesia.
Despite the evidence, the boys were arrested, manacled and flown from Darwin, where they had been held in immigration detention, to the Brisbane jail in January.
In Manamolo village, widow Jublina Ndollu, 55, wailed with grief when Mr Sheldon showed her a photograph of her son John, whom she has not seen since he failed to return home in April last year with his two best friends.
Mrs Ndollu walks 10 kilometres a day along goat trails to work in rice paddies because her son cannot support her. The only payment she receives for the work is the small amount of rice she carries home on her back.
Sometimes, when there is not work in the rice fields, she collects firewood to sell. Life is a struggle in the village for 40 people who cannot read or write, live hand-to-mouth growing crops and fishing, and whose only contact with the outside world is an old television set and a few crackling radios.
Onimus Ledoh, the village's spokesman and John Ndollu's brother-in-law, appealed to the Australian government to release the boys, who he said were easily tricked by people smugglers because they were uneducated and poor.
"The people smugglers come to this part of Indonesia because the boys are vulnerable," Mr Ledoh said. "They trick the boys by offering them money to get on the boats and then they cannot get off ... they are trapped."
Ose Lani, who cannot read or write, has told federal police he had no idea the 41 Afghans and one Iranian man who boarded a boat where he was cooking noodles were asylum seekers wanting to reach Australia.
"There were people on board but I don't know who they were because I was seasick," he said.
Ose Lani was offered the equivalent of $500 to work on the boat, an amount of money he could only dream about in his village.
The real people smugglers, who received more than $10,000, from each of the asylum seekers, got off the boat before it entered Australian waters.
Defence lawyers in the Northern Territory and Queensland are planning a campaign to expose the way federal authorities are treating young Indonesians who were duped by smugglers to crew asylum seeker boats to Australia.
Lawyers say the federal police's reliance on wrist X-ray examinations based on a technique developed in the US in the 1930s is highly questionable.
The United Nations child protection agency UNICEF has warned that dental and skeletal tests should not be relied upon to determine the ages of children, and recommends that assessments be made by interviewers who know the language and country of origin of a child.
The United Nations High Commissioner for Refugees says if the exact age is uncertain, the child should be given the benefit of the doubt.
The Immigration Department has also reportedly questioned the accuracy of the X-rays in internal documents, saying that they are "not an accurate determiner of chronological age".
The United Nations Convention on the Rights of the Child - to which Australia is a signatory - declares that children under 18 must only be jailed as a last resort for the shortest possible time, and that all actions taken by governments must be in the best interests of the child.
In Darwin, lawyers have been unable to free 14 Indonesian crew members as young as 13 who have been in immigration detention for up to 14 months without charge. They have been denied access to education, sporting or religious facilities.
Northern Territory Supreme Court judge Dean Mildren early this month dismissed an application to free the boys after his court heard it was lawful for authorities to detain children for as long as was required for a decision to be made about whether to prosecute.
"I must say I am staggered, absolutely staggered, it has taken so long," Justice Mildren said.
Lindsay Murdoch and Kirsty Needham
Wednesday 15 June 2011
Human rights lawyers say they have identified a fourth Indonesian boy under 18 who is being held as an adult in a maximum security jail, contravening federal government policy to return home children apprehended on asylum-seeker boats.
The boy, who turned 16 in April, has been working alongside convicted sex offenders in Hakea high security jail in Perth, lawyers say.
The Age revealed yesterday that three other boys aged 15 and 16, who were snatched from an impoverished Indonesian village by people smugglers, are being held in Brisbane's Arthur Gorrie Prison with serious offenders.
Gerry Georgatos, convener of the Human Rights Alliance, said Indonesian consular officials have confirmed the 16-year-old's age with his family on the Indonesian island of Batam.
Mr Georgatos said the boy was a cook on a boat that arrived at Ashmore Reef in April last year.
''When I visited him in jail, the boy's last words to me were 'I'm scared in here','' Mr Georgatos said.
Under people-smuggling laws the boy would face a mandatory five years in jail if convicted as an adult.
Sixty Indonesian crew members who claim to be under 18 are being treated as adults in jails and detention centres in Australia following wrist X-ray examinations that police say proves they are not children.
But defence lawyers are preparing to mount legal challenges to the test, developed in the United States in the 1930s.
A spokeswoman for the Minister for Justice Brendan O'Connor said a wrist X-ray was carried out everyone who claimed to be a juvenile, and had been used successfully as evidence in Australian courts.
''Where a person tests at 19 years of age, the AFP will typically proceed with the charging of this person as an adult,'' said the spokeswoman.
A working group of the AFP, Director of Public Prosecutions and the Immigration Department would ''examine what steps can be taken to ensure that age determination procedures provide the best evidence for a court to determine the age of people smuggling crew who claim to be minors'', she said.
Lawyers representing other Indonesian crew members claiming to be under 18 say they are often moved without notice.
''I don't know where my clients are. I'm trying to find them,'' a lawyer, who asked not be named, said last night.
Mr Georgatos said the boy in Hakea Prison wants to go home to his mother who is looking after a large family after the death of her husband.
''It is inappropriate that he and other children continue to languish in an Australian adult prison,'' Mr Georgatos said.
''There would be outcries from our politicians and social commentators if Australia's children were incarcerated in adult prisons in other countries.
''It is an indictment of the Australian government and the offices of the attorney-generals, state and federal, and the ministries and departments of corrective services that they are aware of these age disputes and have done nothing about remedying the situation.''
Greens Senator Sarah Hanson-Young said reports of Indonesian boys being locked up were ''very concerning, but unfortunately not unique''.
''The Australian government has been making a habit of overlooking the special minors status of Indonesian boys and imprisoning them in adult facilities. It is a practice that must end, as it violates our obligations to children and minors.''
Ross Taylor, chairman of the Indonesian Institute, a non-government organisation that represents Australian and Indonesian social and cultural interests, said the jailing of children in maximum security jails ''is an outrageous abuse of human rights and a waste of money for the Australian taxpayer''.
In Brisbane, lawyers acting for 15-year-old Ose Lani and 16-year-olds John Ndollu and Ako Lani have collected evidence of their ages from their village on Indonesia's Roti island and plan to seek bail at a court hearing on Friday.
Thursday 2 June 2011
I walked from Slovakia to Poland yesterday. Not because I'm on a hiking trip, but because that's the easiest way to get across the mountains to Krakow: bus to the Slovakian terminus at Lysa Polana, then walk about 150 metres to the stop in the Polish half of Lysa Polana and catch another bus down the mountains on the other side.
Both countries are adherents to the Schengen agreement, so no guards, no Customs inspection, no border formalities of any sort. It's how all frontiers ought to be.
Contrast with the Ukrainian-Slovakian border, which I crossed at the weekend and that involved a wait of at least two hours. Not that the process itself took more than a few minutes -- two officials studied my passport and a third prodded briefly at the contents of my suitcase -- but the post seemed hopelessly understaffed for the volume of traffic. (Either that or their work practices were incredibly bad.) Nearly all the time was spent waiting in line.
And therein lies an important truth: the burden of border controls, like many other things governments do, lies not just in the actual rules but in the way they are enforced, and in the resources directed to their implementation.
The Slovak government presumably wants to limit the number of people flowing across its border from Ukraine and beyond -- in parts of the EU, the eastern European hordes have assumed a mythical status almost rivalling the Arabs. In addition to the formal controls it has in place to do that, a powerful deterrent is just the time consumed in the process.
Conversely, the Slovaks and others in the same position could, without making any official move towards open borders, make a huge practical difference just by employing more Customs and Immigration officials and getting them to work more efficiently.
The moral for Australia's debate on "border protection" should be clear. The crisis in our detention centres is mostly a matter of processing: the majority of the people there are eventually found to be genuine refugees, but the government insists on detaining them while it works that out, and it takes it an inordinate amount of time to do so.
One might put this down (no doubt with some truth) to just natural government inefficiency, but it seems clear that there is also a more or less conscious motive of deterrence at work. Detention is supposed to help deter unauthorised arrivals, and the longer it's expected to last the more of a deterrent it should be.
That may not be a view officially held by the current government -- indeed, in its rhetoric the government has defended the right of refugees to seek asylum here. It is almost certainly, however, still held by the bureaucracy that actually implements policy, and which is therefore unwilling to divert resources to assist the very people it has been demonising as "illegals".
But if the government wants to reduce the pressure on detention centres and counter the perception of a crisis, it doesn't necessarily have to go down the politically risky route of changing the rules. It could achieve the same effect by faster processing: put more people on the job, make ASIO do its checks more quickly, and get people who really are refugees out of detention faster.
Of course, from the point of view of those who are opposed to accepting asylum seekers in the first place, that would be no improvement at all -- it would be worse, precisely because it would weaken the supposed deterrent. But it would force them to be explicit about their real goals: that they want to make life intolerably difficult for people they don't like.
June 11, 2011
Alleged people smugglers who say they are underage are having their charges dropped because AFP tests are unable to prove they are adults.
The office of the Commonwealth Director of Public Prosecutions (DPP) has dropped several cases against alleged people smugglers who faced prison sentences of 20 years because of concerns about the accuracy of AFP age checks that found they were aged 19 or older.
DPP prosecutor Matthew Sinnett said in the Melbourne Magistrates' Court on Thursday that charges had been dropped against four of five alleged smugglers because their age could not be confirmed.
A DPP spokeswoman refused to comment on the total number of cases dropped against alleged people smugglers because of concerns they were underage, or when those cases were dropped.
Mr Sinnett was speaking during a bail application for Randy La Ode, an Indonesian man accused of being a crew member on board a ship intercepted by the Navy on Christmas Day last year . La Ode says he is 15.
The AFP uses an independent medical expert to analyse wrist X-rays to determine the age of alleged offenders.
Constable Michael Tattersall said analysis had found there was only a 0.3 per cent chance La Ode was 15 and a 99 per cent chance he was aged 19 or older.
Magistrate Jelena Popovic granted bail to La Ode, noting that it seemed the DPP had little faith in the AFP's age-testing process.
Under the Migration Act, people smugglers convicted for a boat carrying five or more people face a maximum penalty of 20 years' jail, a fine of $220,000, or both. The minimum penalty is a five-year prison sentence with a non-parole period of three years.
The DPP spokeswoman did not comment on whether any charges had been upheld against alleged people smugglers who claimed to be underage. She said ''a range of factors are taken into account'' before charges are dropped.
A spokeswoman for Home Affairs Minister Brendan O'Connor said there were 298 crew members being prosecuted for people smuggling offences across Australia and there had been 149 convictions since September 2008.
''Charges are withdrawn in cases where, based on all available information, the person is likely to be a minor and there are no exceptional circumstances that would justify prosecution,'' she said.
The spokeswoman did not comment on whether Mr O'Connor had been aware charges were being dropped against alleged people smugglers who claimed to be underage. She said the Gillard government took the prosecution of people smugglers seriously, but did not say whether the DPP's stance undermined their position on border security.
Tom Allard Jakarta
June 16, 2011
Indonesia has urged Australia to speed up identity checks of young Indonesian crew of people smuggling vessels and take any who claim to be minors out of adult detention centres while their age is being assessed.
As many as 60 young Indonesians who claim to be under the age of 18 are being held in Australian prisons.
And some of the young people remain in detention even though Indonesia's government has provided Australian authorities with documents indicating they are under-age. Instead, Australia has relied on wrist X-rays, an imprecise science, to determine age.
A spokesman for Indonesia's Foreign Ministry, Michael Tene, said it was concerned that Australian authorities had been slack in alerting it to some of the Indonesian nationals it holds who claim to be under-age.
''It is not a good idea for them to be put in adult detention centres,'' said Mr Tene. Where there were claims from Indonesians that they are minor which are being disputed by Australia, or awaiting further confirmation, ''they should be put in a juvenile centre''.
''This is one area that is to be discussed between Indonesian and Australian officials,'' he added.
Australia's ambassador in Jakarta, Greg Moriarty, said that the X-rays of wrists were done by an independent assessor and Indonesians were only jailed ''where all available information indicates that the person is unlikely to be a minor''.
''Minors are almost always sent home and, this year alone, 21 under-age crew members have been repatriated to Indonesia without charge.''
He said the two countries kept ''in very close contact'' on the issue.
June 17, 2011 1:31PM
Three accused people smugglers have been granted bail as they wait for a court to determine whether they were children at the time of the offence.
Ako Lani, Ose Lani and John Ndollu all appeared in custody of the Brisbane Magistrates Court today where their bail was unopposed by Crown prosecutors.
The group were alleged to have been 15 or 16 when they were detained on an asylum seeker boat near Ashmore Reef 14 months ago.
They have been housed in a Queensland jail while their lawyers claim they were kidnapped from an Indonesian village by people smugglers.
The court today heard that Department of Immigration officials would make appropriate arrangements for the trio to be housed and cared for in Brisbane pending their age determination hearing.
They could face five years' jail in a high-security adult prison because of mandatory sentencing laws for convicted people smugglers.
But the Commonwealth Director of Public Prosecutions has said juveniles would be prosecuted only where there was significant evidence of involvement in people smuggling.
Interstate and overseas experts are due to give evidence during the age determination hearing.
Magistrate Chris Callaghan today said the Crown had sensibly decided not to oppose bail and that he was satisfied none of them were an unacceptable risk of failing to appear in court or of committing further offences.
They were each released on their own undertaking and the case was adjourned until July 1.
Mr Callaghan said it was pleasing to see the Department of Immigration had agreed to take care of them while their court matters progressed.
Outside court, Ndollu's lawyer Terry Fisher said the boys were very happy to get out.
"The ones who have parents thought they were lost at sea and dead until they were informed as to the whereabouts of their children," he said.
Mr Fisher said he had no complaint about how his client had been treated on remand at Arthur Gorrie, but Ose Lani's lawyer David Svoboda said his client had witnessed violence inside the prison.
"He hasn't been subject to any violence but for a young boy to see violence in jail is rather terrifying," he said.
ABC News Online
By Jason Rawlins
Posted Fri Jun 17, 2011 11:33am AEST
Three Indonesian teenagers accused of people smuggling have been granted bail by a Brisbane magistrate.
John Ndollu, Ose Lani and Ako Lani were detained in April last year after an Indonesian boat carrying 41 asylum seekers from Afghanistan and Iran was intercepted near the Ashmore Islands.
The teenagers have been held in an adult prison near Brisbane but their lawyers say they were aged 14 to 16 at the time of their arrests and should not be in custody.
A Brisbane magistrate has ordered their release on bail, pending the outcome of a hearing to determine their ages.
Ndollu's lawyer Terry Fisher says it has information the Commonwealth could easily have found out.
If prosecuted as adults, they face mandatory five-year prison terms.
Their case has been adjourned for further mention in two weeks.
By Christine Flatley
AAP / news.com.au
June 17, 2011 12:30PM
The Federal Government has made no real effort to determine whether three Indonesian teenagers who have been held in an adult jail on people smuggling charges are actually children, lawyers say.
Ako Lani, Ose Lani and John Ndollu, from a village on Roti Island, were on an asylum-seeker boat detected near Ashmore Reef 14 months ago.
The trio spent several months in immigration detention centres in Western Australia and the Northern Territory before being transferred to Brisbane's high-security Arthur Gorrie jail in October last year.
The federal government has held them there under the belief they are adults.
However their lawyers say they are children who have been treated "negligently" by a government committed to maintaining a tough stance on people smuggling.
"I think it's a reflection of the overall policy that the government has in regard to asylum seekers and so-called people smugglers," said lawyer David Svoboda, who is representing Ose Lani.
"I think even the most ardent supporters of those policies would accept that we shouldn't be keeping children of any race in custody."
Mr Svoboda was speaking outside the Brisbane Magistrates Court today, after his client - who says he is just 15 - was granted bail pending a special hearing to determine his real age.
Ako Lani and Ndollu, who both say they are 16, were also granted bail, which was not opposed by the crown.
The trio will be cared for by welfare officers from the Department of Immigration until the hearing, which has not yet been given a date.
Terry Fisher, who is representing Ndollu, said they would call a number of expert witnesses at the hearing to prove the government's methodology of using wrist X-rays to determine the age of accused people smugglers was outdated and untrustworthy.
"When you look at the literature, the methodology of wrist X-rays is effectively junk science," Mr Fisher said.
He said the government had been "completely negligent" in failing to carry out any further inquiries about the males' ages.
"An immigration official in October last year in respect of my client found that he was likely to be a child and there were no further inquiries done," he said.
"They've been completely negligent in this matter.
"They've absolved themselves of blame by simply doing the wrist X-ray and not attending to doing any other inquiries.
"It would not have taken a great amount of effort for someone to have gone down from Jakarta to their province to find out the answers to these questions."
He said defence lawyers had already made the trip themselves to speak to the trio's family members and to gather evidence to prove their case.
Mr Fisher said the males, who they say were tricked into bringing 41 Afghan and Iraqi refugees to Australia, would plead not guilty to the charge of people smuggling when it eventually came to court.
The matter will be reviewed again on July 1, when a date for the age determination hearing is expected to be set down.
ABC News Online
Posted Sat Jun 18, 2011 5:54am AEST
The Australian Lawyers Alliance says it is outrageous that three Indonesian teenagers accused of people-smuggling spent more than a year in an adult prison.
A Brisbane magistrate on Friday granted bail for the teenagers, who were picked up by the Navy onboard a fishing boat carrying 41 asylum seekers in April last year.
They have been held in an adult prison near Brisbane since then.
Barrister Greg Barns says the magistrate made the right decision in releasing the boys on bail.
"It's outrageous that Australia, which is a signatory to the Convention on the Rights of the Child and various other human rights conventions, could allow young people to be in an adult prison environment," he said.
"There needs to be a full-blown independent inquiry into how this happened."
Mr Barns says the boys were aged between 14 and 16 at the time and should be treated as children.
"Three young people who should never have been in an adult prison when if they were to be detained - it should have been in a juvenile detention centre and my understanding is they have been detained for a period of around 14 months," he said.
June 18, 2011
Three boys snatched from an impoverished Indonesian village by people smugglers have been released from Brisbane's high security Arthur Gorrie jail where they had been held for months with criminals, including paedophiles.
Ose Lani, 15, and 16-year-olds John Ndollu and Ako Lani wept when they were shown photographs of their relatives and friends in their village after they were brought in manacles to Brisbane Magistrates Court yesterday.
Barrister Mark Plunkett told the court in an affidavit that ''institutionalised cruelty'' kept his client Ako Lani, an orphan, in adult custody for 415 days.
The Department of Immigration has undertaken to care for the boys in residential accommodation and to organise for them to undergo medical tests pending a hearing to confirm their ages.
Crown prosecutors did not oppose bail for the boys who were cooks and deckhands on an asylum seeker boat that arrived at Ashmore Reef in April last year.
They faced a mandatory five years jail if convicted as adults.
The Age revealed on Tuesday that Australian federal police had ignored Immigration Department assessments and extracts of birth certificates showing the boys are under 18, contravening government policy to return home children apprehended on asylum seeker boats without charge.
Locals in the boys' village on Roti Island believed the boys had drowned at sea while fishing because no Australian officials informed them they were in custody in Australia.
Defence lawyers are planning to mount legal challenges to try to free 70 other Indonesian crew members claiming to be under 18 who are being held as adults in jails and immigration detention in Australia.
ABC News Online
Posted Mon Jun 20, 2011 12:06pm AEST
A human rights advocate claims a 16-year-old Indonesian boy is being detained in a Perth jail and is working in the prison's laundry unit alongside sex offenders.
The boy was arrested in February this year and charged with people smuggling, after being picked up on an asylum seeker boat on Ashmore Reef in April last year.
The convener of the Human Rights Alliance, Gerry Georgatos, says the Australian Federal Police classified the boy as an adult with the help of a discredited bone X-ray technique.
Mr Georgatos says he has spoken to the boy's relatives in Indonesia and they say he is only 16.
"I've gone to parliamentarians, I've gone to every relevant authority, there are no excuses," he said.
"If this was Australian children in prisons in Indonesia it would be an international incident and also we've tainted these people as people smugglers when all they actually are, are kids who have worked as deckhands or cooks on a boat."