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The people smugglers

By Marilyn Shepherd - posted Tuesday, 15 May 2012

In determining appropriate sentences I have kept very much in mind that the present offences are by no means in the most serious category of offences contrary to section 232A. In particular, these are not cases of people smuggling where it is intended to introduce non-citizens into this country secretly and with all the dangers of illegal entrants carrying diseases, plant or animal life, which could pose a serious risk to Australia's primary production.

There was no attempt here by the prisoners to hide from the authorities or disguise what they were doing. The offences, whilst serious are correctly described as people trafficking offences rather than people smuggling. Similarly it is significant that none of the prisoners is an organiser. Each played a small but vital role in bringing non-citizens here.

These are the words of sentencing judges as they sent destitute Indonesian fishermen to prison, not for any crime at all – these are sentencing notes that have been available for 10 years on the website and have been presented to the senate in various enquiries over the past 8 years yet now we have the absurd circumstance of jailing Indonesian children as young as 13 in adult prisons with rapists, thieves and murderers for this non-crime.

In each case it was stated that it was not people smuggling but simply transporting the passengers directly to the authorities as requested by the passengers who had mostly fled Iraq, Iran and Afghanistan and most of whom had been tortured in Indonesia and Malaysia.


The problem is that it is not in any law in the world but Australia anything to do with people smuggling as a new book "the People Smuggler" by Robin De Crespigny has clearly shown and as international law dictates.

In 1999 Ruddock supported by Con Sciacca brought in vicious penalties for anyone who assists refugees, including Australians who helped them here.

In many cases going back to 2000 these are actually Indonesian children who in many cases were deemed to be 19 according to a now discredited X-ray test.

It has taken a decade but Hamish McDonald, journalist on the Project, and Mark Plunkett, barrister, have brought to the attention of the public that we are torturing young children in adult maximum security jails for 5 years mandatory terms even though the courts have maintained for over 12 years that they are not people smuggling.

The elephant in the room that is ignored by all the media and discarded by the government in senate committees is the "Smuggling of migrants protocol by land, sea and air" that Ruddock signed in 2000 and ratified through parliament in 2004.

Article 19 of that protocol states:


Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of nonrefoulement as contained therein.

The UNHCR were so concerned they went on to say in the pleniary hearings:

3. The Protocol against Smuggling, for instance, contains a number of provisions which may impact on smuggled asylum-seekers. The authorization to intercept vessels on the high seas, the obligation to strengthen border controls and to adopt sanctions for commercial carriers, or the commitment to accept the return of smuggled migrants may indeed affect those who seek international protection. A number of comparable provisions of the Protocol against Trafficking may have a similar effect.

4. During the sessions of the Ad-Hoc Committee, UNHCR therefore emphasized the need to reconcile measures to combat the smuggling of migrants and the trafficking of persons with existing obligations under international refugee law. The Office welcomes the adoption of a saving clause in both Protocols, designed to safeguard the rights of asylum-seekers and refugees under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, in particular in relation to the principle of non-refoulement.

5. In addition, UNHCR appreciates the adoption of provisions for the protection of smuggled migrants, such as the obligation of States Parties to take appropriate measures to afford smuggled migrants protection against violence and to take into account the special needs of women and children. The Protocol against Smuggling is also clear in that it does not aim at punishing persons for the mere fact of having been smuggled or at penalizing organizations which assist such persons for purely humanitarian reasons.

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About the Author

Marilyn Shepherd is a refugee advocate who became interested in the plight of Afghan refugees after the TAMPA. She became particularly involved with the Bakhtiyari family throughout their long struggle to stay in Australia.

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