Asylum seekers who lack access to regular migration pathways pay people to help them travel to Australia - one of the few nations in the Asia-Pacific region that has ratified the UN 1951 Convention relating to the Status of Refugees.
In Indonesia, those organizing the transport of asylum seekers to Australia generally recruit local Indonesian villagers to work as crew on boats. Oftentimes, the crew are impoverished Indonesian fisherman from remote villages without access to Internet or media. As a result, they are unaware of Australian “people smuggling” laws, which carry harsh penalties for all people involved, regardless of whether they are crew or organisers. The fishermen are given false or limited information by the organizers who leave the boat before it enters Australian waters, where it is generally intercepted by the Australian Navy.
Until late August 2012, crew and organisers were indiscriminately charged with an offence carrying a mandatory five-year jail sentence - regardless of their level of culpability. They were also detained indefinitely, generally for several months, prior to being charged with any offence.
The UNSW Human Rights Clinic has worked on several projects focusing on the human rights implications of Australia’s laws, policies and practices surrounding the prosecution of Indonesian crew for people smuggling offences and the restrictions regarding prison gratuities. These include:
- Individual Communication to the United Nations Human Rights Committee on behalf of Indonesian fisherman, Mr Nasir, challenging mandatory sentencing laws and indefinite pre-charge detention.
- Analysis of Commonwealth government’s Directive on the freezing of prisoner gratuities and related Freedom of Information requests.
- Creation of a password-protected People Smuggling Prosecutions “Wiki” used by Legal Aid lawyers, private solicitors and barristers representing “people smuggling” defendants across Australia, that gathered and analysed relevant case law, legislation and government policies.