asylum seekers, Indonesian solution, mandatory sentencing, people smuggling

The stand-off between the Australian government and 78 Sri Lankan Tamils refusing to disembark from an Australian Customs vessel moored at Tanjung Pinang in Indonesia seems no closer to being resolved. Indonesia authorities have extended the time the vessel can remain in Indonesian waters, but it’s not something that can continue indefinitely. The situation has brought overdue attention to some of the conditions in Australian funded detention centres scattered across Indonesia, and to aspects of the long-standing cooperation between Indonesia and Australia in addressing people smuggling in the region.

It is likely this immediate situation will lead to some changes down the track, although it’s hard to tell at this stage what they will be. One other aspect of Australia’s approach in this area which has also got little attention to date is the Australian law which requires a mandatory jail term for anyone found to be assisting in the unlawful entry of a group of people into the country. Any activity of this sort is labelled people smuggling, even if there is no financial gain for the person involved, and a jail term is automatic regardless of the circumstances.

This law requiring mandatory jail sentences was bought in under the previous Australian government, although it only passed the Senate at that time due to the support of the then Opposition Labor party. It is easy to portray this law as cracking down on people smugglers, who have been labelled the “scum of the earth” by Australian Prime Minister Kevin Rudd. However, in practice this law has mostly been used against impoverished Indonesian fishermen.

A recent example of this, including some remarks from a judge frustrated at the injustice of a law requiring a mandatory jail term, is detailed in a blog from the Crikey website by Bob Gosford, who is based in Australia's Northern Territory.

In this case, two very poor Indonesian fishermen, who suffered significant burns as crew on the refugee boat which exploded for uncertain reasons earlier this year, had been charged for people smuggling offences. They had been given 560 Australian dollars to sail the boat. In his remarks while bringing down the mandatory five year sentence, Justice Dean Mildren said,

“But for the mandatory minimum sentences which I am required to impose, I would have imposed a much lesser sentence than I am now required by law to do. There are dangers when the Courts are required to impose mandatory minimum sentences. In cases such as this, the ordinary sentencing principles play no function."
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The other dangers of mandatory minimum sentencing, apart from the fact that the Court is required to impose a sentence which is greater than the justice of the case would otherwise require include the fact that principles of parity between offenders has little or no role to play. All offenders that fall within the class will be treated equally no matter what their level of criminality may be.

It occurs to me that the Indonesian government might be less than impressed than some of their poorer citizens are being jailed for years just so Australian governments can say they are tough on people smugglers. Perhaps removing the mandatory jail sentencing requirement might assist make the relationship between the two governments on this topic more cooperative.