By Dana Affleck. This article is part of our December 2012 and January 2013 focus on Asylum Seekers.
On the black market in Indonesia, there is a high demand for people smugglers. Refugees desperate to escape their persecutors, protect their family and seek freedom are in search of a smuggler who has the key to all that they need. Sri Lankan Tamils flee a repressive post-civil war environment where disappearances and torture are commonplace. Afghani Hazaras run from a horrific ethnic cleansing campaign run by the Taliban who still have a strong hold in many areas of Afghanistan. Iranians escape a world where their basic human rights are stripped and any voice that raises protest is silenced by death or detention and torture. In a panic, homes are abandoned, borders crossed and asylum seekers are in limbo, looking for a safe haven. As Australia is a signatory to the Refugee Convention, some choose our country to find safety and liberty. To do so, many first seek a people smuggler.
Under Australian law, a “people smuggler” is a person who organises or assists another person to enter a foreign country to which they are not a citizen or permanent resident without a valid visa. This includes people smuggling syndicates who organise boats to Australia. However, the legal definition of “assistance” to people smuggling can be as little as being a cook on board, to driving the boat. As a result, Indonesian crew members, captains, middle men organisers and larger scale syndicates are charged under the law for varying levels of the same crime: people smuggling. In addition to this, any boat smuggling five or more people carries with it a mandatory minimum sentence of five years imprisonment with a three year non-parole period. As every boat carrying asylum seekers into Australian territory fits this description, these mandatory minimum sentences are applicable to almost every person that fits the government definition of a people smuggler.
It may seem hard to understand why an asylum seeker would still choose to risk their life aboard a boat. However, the reason is quite simple
Often we hear of boats never reaching dry land and hundreds of lives being lost at sea while attempting the dangerous journey to seek asylum in Australia. The thought of boarding an Indonesian fishing boat in the middle of the night to travel across the seas to Australia is incomprehensible to us. What is even more inconceivable is being pushed to a point where you would choose to do so, knowing what you are risking. In the film Between the Devil and the Deep Blue Sea, we follow families of asylum seekers in Indonesia as they make the decision to board boats – even though they know of the sunken boats and drowned men, women and children. With the knowledge that boarding a boat is putting yourself in real danger of drowning, it is significant that the demand for people smugglers and their boats remains high.
It should be noted that seeking asylum by boat is not the only way to do so. Australia is part of the United Nations resettlement program for refugees and we take a certain amount of refugees recommended by the UN for resettlement every year. A UN High Commissioner for Refugees office is situated in Jakarta and an application for resettlement can be made there. With this option it may seem hard to understand why an asylum seeker would still choose to risk their life aboard a boat. However, the reason is quite simple.
The numbers of visas granted through the resettlement channels out of Indonesia from 2001 to 2009 has been roughly 50 per year and 480 in 2010 to 2011. This number of resettlements is out of a pool of over 4000 refugees waiting in Indonesia according to official records. Indonesia has not signed the UN Refugee Convention and therefore asylum seekers living there in transit are there illegally and are treated as such. They cannot earn money to sustain themselves, their children cannot go to school and if they are in need of health care it must be paid for at high private cost. Furthermore, as asylum seekers have no legal right to live in Indonesia, they risk being locked up in detention where treatment of detainees falls far below basic human rights standards. This leaves asylum seekers in Indonesia with very few hopeful prospects. Even in the case that they are given housing through the International Organization for Migration, children are often still unable to attend school, conditions of housing are highly unsanitary and adults still cannot be employed. Without the right to work or send your children to school, the possibility of waiting over 10 years for resettlement is not a realistic option.
Often, the jail term handed down to them is unexpected and not only punishes them but also their dependent family back in Indonesia
To date, the Australian Government’s approach to the prevention of people smuggling has been to attack the supply of people smugglers. With each new amendment to relevant legislation, the law is becoming harsher, more inflexible and broader in its scope. The mandatory minimum sentencing applicable to all smugglers who take five or more people has resulted in unjust consequences in which Indonesian fishermen comprise the vast majority of convictions. As of February 2012, of 228 people smuggling convictions, only five have been organisers, leaving 226 Indonesian fishermen in Australian jails. In almost every case, these fishermen are poverty stricken, leaving them in dire need of the financial opportunity the crewing job presents. Furthermore, they have no realistic way of knowing the harsh and disproportionate consequences they face by crewing or captaining a boat filled with asylum seekers to Australia. Often, the jail term handed down to them is unexpected and not only punishes them but also their dependent family back in Indonesia. In a normal criminal trial, judges usually take into account these factors in sentencing but their hands are tied by the mandatory sentencing provisions.
Yet as the government gets tougher on people smuggling, supply remains unaffected and the boats are arriving in record numbers.
Why attacking supply is not working
When demand for a good or service is so high and strong, there will always be a supplier. When it is made illegal, it will go onto the black market. It follows that as the risk to the supplier increases, the price will increase. Transactions become more difficult as the industry goes into hiding and those using the good or service are more vulnerable to exploitation as they rely on an illegal trade.
To stop the people smuggling trade, the Australian Government simply needs to hijack it.
This is true of many goods and services on the black market. However, when the illegal service being provided is passage to Australia and those who seek it require it in order to live, to protect their family, to work, to educate their children, to express themselves openly – in other words, to live freely – the demand will be unstoppable. The passage might be dangerous – or even life-threatening – but with no other options left to them, asylum seekers will continue boarding boats supplied by people smugglers. Currently, the government catches five organisers every three and a half years and has put 226 Indonesian crew members behind bars (at an astronomical cost to the Australian taxpayer). At that rate, the market will always survive. It may even thrive while the government does nothing to effectively “stop the boats”.
Having no other realistic option to seek asylum other than by boat drives the demand for people smugglers. In turn, the demand for people smugglers drives its supply. To eliminate the people smuggling industry, demand must be targeted. If asylum seekers waiting in Indonesia were given a realistic time-frame for resettlement and the ability to wait for that resettlement safely, the desperation to take a life-threatening boat journey to Australia would be alleviated.
The solution to the people smuggling problem that has confounded successive governments from both sides of politics seems obvious, because it is. It hasn’t been attempted because both sides of government want no part in it. Admitting that the harsh laws haven’t worked and will not work will mean losing swing voters. Politicians do not want to admit that they do not have control over any issue affecting Australia. An attempt to control boat arrivals by trying to eliminate or even stem supply has proven unsuccessful. While we do not have control over events in the world that create refugees, we can have some control over the way that they seek asylum in Australia by attacking the demand for people smugglers.
To stop the people smuggling trade, the Australian Government simply needs to hijack it. Take away their customers and the people smugglers will have no other option but to shut up shop. This is not a new idea and it is known to politicians on both sides of politics. Well known figureheads in the debate such as Julian Burnside, Sarah Hanson-Young, Malcolm Fraser, Jessie Taylor and many others have been calling on the government to resettle significantly more refugees from Indonesia in order to stop desperate and dangerous boat journeys, which sometime result in lives lost at sea. However, the Australian Government refuses to take this approach. Behind our witch hunt for people smugglers lies our refusal to live up to our international obligations to refugees and asylum seekers. As the debate rages and the laws change, asylum seekers will continue to knock on our door from the decks of their boats until we give them an alternative route.
Dana Affleck is a student from Melbourne with a strong interest in human rights issues, particularly those of refugees. She studies law at Deakin University.