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Friday, 25 November 2011
Page: 9681


Senator HANSON-YOUNG (South Australia) (14:15): I rise to speak on the Deterring People Smuggling Bill 2011. I put it squarely on the record that this bill should not be debated today and should not be passing this parliament. It is a terrible piece of legislation and I want to give an illustration of why. I want to tell a story about a man I will call Wawan, which is not his real name. He is about 35 years old. He lived in a small village of around 50 families on the island of Sumbawa. He lived with his mother and was the sole provider for the home as his father died when he was a small child. He had survived a very impoverished upbringing in which he had worked from a young age to support his mother. As a result, his formal education finished before the end of primary school. The home he shared with his mother was a small one—a one-room bamboo hut with a dirt floor. There was no electricity and the only running water was outside in the village.

Wawan was a fisherman who often travelled for work. His mother suggested that he go to Sumba to fish for octopus. In Sumba, on this occasion, he was sitting in a coffee shop when he was approached by a man called Mohammed, who asked if he would be interested in taking a boatload of passengers to go diving in Kupang. Wawan agreed, thinking that this was a way to make money, more money than fishing for octopus would bring. When the passengers arrived, Wawan was surprised to see that none of them were Indonesian. However, he did not ask any questions as Mohammed was his boss and he knew to just do what he was told.

When they set off there were about 40 passengers on board the boat as well as another Indonesian man who had been recruited in a similar way. Mohammed followed in a larger boat and after two days he came aboard Wawan's boat and handed him a compass, telling him to continue to sail at 180 degrees. Mohammed then turned around his boat and headed back towards Indonesia. Wawan had never used a compass before; however, he still believed he was heading to Kupang, so he continued to follow Mohammed's instructions. Wawan and the other Indonesian man followed Mohammed's directions for another two days until they were intercepted by the Royal Australian Navy off the coast of Western Australia. This is an illustration of the experiences of people who are currently being held in Australian detention centres and Australian prisons awaiting their court cases because they have been accused of people smuggling.

This bill is referred to as the Deterring People Smuggling Bill. The question is: who is this bill actually deterring? This bill is not about deterring people smuggling; this bill is all about the government's barefaced political strategy of looking tough on boat arrivals. The fact is this bill has been rushed into this place to make it look as though, on the last day of sitting in 2011, the government is actually doing something to stop the boats. It is going to be very difficult and very hard for the opposition not to agree with the government's strategy.

The government has tried to tell the Australian people that this bill is simply about clarifying the crimes under the Migration Act that aim to break the people-smuggling business model. This is nothing but hollow rhetoric. The reason this bill has been brought forward at all is that the Australian government is currently a party to a legal challenge in Victoria. Rather than allowing this legal challenge to go through its proper process, the government, a party to this legal challenge, has decided to bring a bill into the parliament to scuttle the court case.

These are the types of activities that you expect of governments in other places in the world, not in a free, open, transparent democracy like Australia, which has built its reputation around the world because it has a clear division between the courts, the executive and the parliament. An important test case is currently before the Victorian Court of Appeal. By bringing forward this bill in this way the government, which is a party to these proceedings, has spectacularly breached the separation of powers and shows that the government is prepared to do absolutely anything, to go as low as it possibly can, when it comes to legislation to deal with asylum seekers and those who help them to arrive.

It is an amazing coincidence that the government only decided to bring forward this bill to clarify this particular part of the Migration Act when the test case in Victoria was elevated to a superior court. In the Senate inquiry into this bill, which was a very short one, the Attorney-General's Department conceded that they had only been given drafting instructions for these amendments in October, right after the threat of the court case became clear. For a piece of legislation that experts say breaches our international human rights and refugee obligations as well as the separation of powers and the rule of law, there has been woeful consideration of its merits through the parliamentary process. This bill should not be proceeding in this place and it certainly should not be passing without a proper review of its purpose.

This bill talks about deterring people smugglers, yet it does absolutely nothing to achieve that. The government can provide absolutely no evidence to support its argument that the particular cases currently before the courts or the current status of the crimes under the Migration Act have done anything to deter people arriving by boat. Last year, in 2010, this place dealt with a piece of legislation that set down mandatory minimum sentences, and the government said: 'This will deter people. This will stop the boats.' Yet we have not seen any evidence that that has occurred. What we see are hundreds of crew who have been locked up, detained and charged for these crimes under the Migration Act. Their cases are very similar to the young man's case that I outlined at the beginning of my speech. This bill is all about punishing the small fry and allowing the big fish to escape.

The inquiry, which I have already mentioned was quite short, showed that there is great concern and deep disapproval among the Australian community, particularly among human rights advocates and legal experts, about the amendments contained in this bill. One of the most devastating criticisms of the bill came from the Aust­ralian legal community, who remain aghast at the retrospectivity of this amendment. Even the Senate's own Scrutiny of Bills Committee has condemned this piece of legislation, expressing great concern at the retrospective application of this amendment back to 1999. It notes:

… liberal and democratic legal traditions have long expressed strong criticisms of retrospective laws that impose criminal guilt … persons should not be punished for acts that were not illegal at the time they acted.

The prohibition on retrospective criminal laws is central to the rule of law. It is clearly prohibited by article 15 of the International Covenant on Civil and Political Rights. It is banned in many countries. In Australia, retrospective criminal legislation is used only in the most rare and exceptional circumstances. Such caution is applied to retrospective criminal legislation that it has been used by the Australian parliament only three times prior to this piece of legislation.

There is no moral or legal justification for making this law retrospective. Along with the legal experts who appeared at the inquiry, the Senate's own Scrutiny of Bills Committee has criticised the retrospectivity of this bill. The Scrutiny of Bills Committee demands that the government describe exactly why there are exceptional circum­stances for making this legislation retro­spective. The truth is that there are no exceptional circumstances that justify the retrospective nature of this bill. It is political necessity rather than great moral need. Let's call that political necessity for what it is: the government do not want to see themselves losing another court case at the end of 2011, a year in which they have already introduced legislation and proposals that the courts have ruled unlawful. The government do not want another case on their hands. Rather than fighting their cause in the courts and allowing that process to continue, they have decided to bring forward this legislation and scuttle the legal process to which they are a party.

Let me touch on what a farce this legislation is, right down to its title's claim of deterring people smuggling. It is notable that the title is the only part of the bill that says anything in relation to deterrence. The bill is not about deterring people. It does nothing to stop desperate people engaging people smugglers. Any attempt by the government to pretend to the Australian people that this is going to make a difference is an attempt to pull the wool over the Australian public's eyes. Rather than spending precious parlia­mentary time on a so-called clarification which is clearly in breach of the rule of law, we should be looking at ways to fix our anti-people-smuggling policies so we are catching the big fish, the organisers, the kingpins and deterring them from misleading vulnerable asylum seekers and using and abusing boat crew in order to make a profit.

The Minister for Immigration and Citizenship has been on television telling Australians that the changes to the Migration Act are being made to catch the people smugglers who are 'sitting around in nightclubs in Jakarta'. That could not be further from the truth. The lawyers who are working at the coalface of people-smuggling prosecutions have put clearly on the record that, of the 353 people currently facing people-smuggling charges in Australia, only six are actually accused of being organisers of the industry. Out of 353 people charged, only six are accused of actually organising this business! The government are not being effective at deterring people smugglers. The government are not being effective at charging the kingpins. They would like us all to believe that they are, but it is simply not the truth. The figures tell us that. The deputy commissioner for operations has said that, of the 493 individuals arrested between 2008 and 2011, only 10 were accused of being organisers.

Are we catching the kingpins? Clearly not. Are we locking up vulnerable, tricked, manipulated, impoverished Indonesian fishermen? Yes. Are they the scapegoats of the government's 'get tough on refugees and people smuggling' policy? Yes, they are. How many of those people are children? We know that there are at least 35 people whom the government jailed in adult facilities illegally, because they are children. Mr President, do not be fooled that this legislation is in any way enforcing the government's attempt to smash the people-smuggling business model. Victoria Legal Aid, which is acting for 53 of the accused people smugglers, are running the test case the government is seeking to scuttle. They put it very clearly:

The overwhelming majority of the people charged with people smuggling in Australia are impoverished Indonesian fisherman, the totality of whose involvement is to be recruited on to the boats to steer, crew or cook. They are as dispensable to the organisers of people smuggling as the boats that get burnt off the coast of Christmas Island and Ashmore Reef.

The criminal charges which this bill seeks to amend are not deterring anyone. Desperate people will come to Australia to seek asylum as long as the prospect of life in Australia is not as bad as life under tyrannical and violent regimes such as the Taliban. As long as the Australian government refuses to increase our humanitarian intake and resettle more people directly, this is the only option many of them have. Yet rather than putting safer pathways in place, rather than catching the kingpins, the government finds it easier to use young, impoverished Indonesians as its scapegoats to try and prove it is doing something to stop people smugglers.

Rather than bringing this bill forward to interfere with, to scuttle, the Victorian Court of Appeal's ability to hear this case, the government should be heeding the warnings of judges, magistrates and lawyers from around the country. In 2010 the government introduced mandatory minimum sentences and this is where the problem began. The government should be addressing those issues, ensuring that courts can weigh up the seriousness of these offences, rather than using these young Indonesians as its political and legal scapegoats. The Australian public have a right to know exactly who is bearing the brunt of these five-year mandatory minimum sentences. How many have been children? How many have been adults? How many have been detained and charged? How many cases have fallen over because the government has not concentrated on the right areas or the right people?

The story that I told at the beginning of my contribution highlights exactly how vulnerable these individuals are, how dispensable they are to the kingpins of the people-smuggling trade—just as dispensable as the asylum seekers or the boats themselves. It surprises me that the opposition is willing to push this bill through the parliament and allow the government a free kick and a free goal on something the opposition knows is not working. It surprises me that the opposition is prepared to simply say: 'We will give the government this cover. We will continue to lock up young Indonesian fishermen rather than tackle the real people smugglers.'

But maybe I am not that surprised at all, because perhaps this is exactly the problem in this place—that neither the Labor Party nor the coalition is actually willing to face the realities of displaced people seeking protection and freedom in our region. It is all about the slogan of 'smashing the people smugglers' business model' versus the slogan of 'stop the boats'. They are as hollow as each other, as illegal as each other and as useless and ineffective as each other.

Until we have some true leadership in this place, these issues are not going to go away. It is appalling that this piece of legislation has come forth—retrospective in nature, with no exceptional circumstances provisions—to scuttle a legal challenge which the government is party to. It continues to punish the very same people who have been tricked and manipulated throughout this process simply in order to pretend to the Australian people that the government is doing something. It is a shameful piece of legislation and it should not proceed.