Australian legal experts concerned over proposed people-smuggling bill | Connect Asia

Australian legal experts concerned over proposed people-smuggling bill

Australian legal experts concerned over proposed people-smuggling bill

Updated 18 January 2012, 18:20 AEDT

The United Nations refugee agency has raised concerns over Australia's decision to temporarily stop processing visa applications from asylum-seekers from Sri Lanka and Afghanistan.

The regional representative says the decision could lead to asylum seekers being stuck in mandatory detention for extended periods without effective judicial oversight. The suspension of visa applications is the latest in a string of measures Australia's federal government has taken in recent months to try and deal with the constant flow of asylum seeker boats arriving. One measure involves changes to the laws that govern people-smuggling. Some legal experts are worried planned changes could lead innocent people being unjustly punished.

Presenter: Sen Lam

Speaker: Ben Saul, University of Sydney associate professor of law and author of a submission to the Australian Senate Inquiry on proposed changes to people-smuggling legislation

SAUL: I think the bill does two things which are of great concern. The first is that it changes the definition of the existing crime of people smuggling in Australian law. It takes out the requirement that people smuggling be done for a profit motive, in other words what international law says is wrong about people smuggling is that it is the commercial exploitation of other peoples suffering and misery in trying to fleeing persecution. What that means if you take that element out is that of course all kinds of innocent bringing of people to Australia becomes a crime now, that includes, for example, rescuing people at sea, which mariners are required to do under international law, it means bringing someone to Australia where you think they have legitimate documents but those documents later turn out to be fraudulent and ultimately what it means is that the law now criminalises people like Oscar Schindler, who saved people from persecution in the past, criminalises people like the captain of the Tampa ship, who brought asylum seekers to Australia back in 2000.

The second thing which the bill does is introduce an entirely new crime of supporting people smuggling. But the problem with this offence is it does not require an intention that the support a person gives to another person be used for people smuggling. So what it means is that a family member or a friend who gives money to somebody overseas or gives money to a charity overseas could find themselves criminalised as a person supporting people smuggling, even if you did not intent that that money go towards people smuggling.

LAM: So if your on your sail boat out there and you see someone, an asylum seeker in trouble, you could be prosecuted for taking him on board?

SAUL: And bringing them into Australian waters, that's right and of course the law of the sea internationally requires you to rescue that person and to bring them usually to the nearest port, which could be Australia.

LAM: So does this breach any international maritime laws that Australia is signatory to?

SAUL: Absolutely, I think it is inconsistent with our obligations under the United Nations Law of the Sea Convention of 1982. It's probably inconsistent with the Safety of Life at Sea Convention which Australia is a party to as well. Now some in the government have said look, the law may cover those cases, but it would never be used against people in those circumstances. I am not so sure, I don't have quite so much faith in federal prosecutorial authorities. Often they get it right, but sometimes we know miscarriages of justice happen, because prosecutors use laws or police use laws which are cast far to broadly. What I would say is simply draft the laws to capture the people you want to capture in the first place and don't create incredibly broad badly written laws which go over the top.

LAM: But how do we get around this? I understand that you think that people smuggling laws often send a hypocritical message, that the people are considered for refugee status once they are in Australia, but it can be a crime for someone to help those people get to Australia. How do we get around this?

SAUL: Well, it's a real problem, because as you say, on the one hand we're offering people freedom if they come to Australia and seek asylum, but in the same breath, if anyone tries to help them get here, it's a crime. I think the real problem here is that there are too few solutions for people who are refugees to find safety or security in another country. There are millions of people who have been recognised as refugees in need of assistance worldwide. Only a tiny, tiny fraction of that number ever gets resettled in another country and gains protection.

What Australia needs to do I think is to be far more active in finding solutions for people, not necessarily in Australia, but working with partner countries around the world, funding UNHCR and resettlement programs in other countries, closer to the countries where people are fleeing from in order to reduce those incentives to undertake these incredibly dangerous journeys by boat to Australia, where many, many hundreds of people die.

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