Indonesian fisherman files first international case against Australia’s people smuggling laws

An Indonesian fisherman has filed the first international case against Australia’s people smuggling legislation, claiming the laws violate international law. The fisherman is represented by senior law students from the University of New South Wales’ Human Rights Clinic. Due to mandatory sentencing, fisherman Mr Nasir is serving a five-year jail term in an Australian prison – a significantly longer sentence than he would otherwise have received for being a cook on an asylum seeker boat, according to the Queensland Supreme Court.

The claim, filed with the United Nations Human Rights Committee in Geneva, seeks compensation and a public apology, as well as changes to Australian laws and policies. It also seeks Mr Nasir’s immediate release.

This is the first time the UN Committee will decide whether Australia's mandatory sentencing laws violate the right to freedom from arbitrary detention and the right to a fair trial in the International Covenant on Civil and Political Rights (ICCPR) – one of the core human rights treaties to which Australia and 166 other countries are a party. The Committee’s views will affect all parties to the treaty, and will determine whether any future mandatory sentencing laws will place Australia in further breach of its international obligations.

Under the Migration Act 1958 (Cth), the aggravated people smuggling offence carries a mandatory minimum five-year sentence with a three-year non-parole period – regardless of whether the person is an organiser or low-level crew. Current law does not allow the sentence to be appealed.

Mr Nasir claims that Australia violated his rights to a fair trial and to be free from arbitrary detention, because he received a criminal sentence that was unjust and disproportionate in light of his individual circumstances.

Before his imprisonment in Australia, Mr Nasir worked in a small Indonesian village as a casual fisherman, earning less than $A 2 a day. He was the primary breadwinner for his family who live in conditions, as described by the Queensland Supreme Court, of “extreme poverty”. In early 2010, a stranger offered him approximately $A700 dollars to work as a cook on a boat. He later discovered that the boat carried 46 asylum seekers. Ten days after setting sail, the boat was intercepted by the Australian Navy, and he was detained on Christmas Island. He has been imprisoned in Australia for almost three years.

At Mr Nasir’s trial in November 2011, Justice Atkinson of the Queensland Supreme Court concluded: “You have already been imprisoned for some 632 days during which your family has been left destitute. The sentence of imprisonment is not, therefore, necessary to deter you any more than that already done … However, I am obliged to impose further imprisonment upon you.”

Law student Lucy Geddes, who drafted the claim as part of UNSW’s Human Rights Clinic said: “Mandatory sentencing laws have failed to deter the organisers who profit from bringing asylum seekers to Australia. Instead, they have resulted in unfair, disproportionate punishments for low-level and uninformed crew.”

Fellow UNSW Human Rights Clinic student Emily Johnson said: “The overwhelming majority of people who have received the mandatory sentence for people smuggling have been like our client – desperately poor, uneducated and exploited by organisers who prey on village fishermen who have never heard of Australian people smuggling laws.”

In addition to his challenge to mandatory sentencing laws, Mr Nasir is also claiming that Australia violated his right under the ICCPR to be released or charged within a reasonable time, because Australia detained him for 146 days before he was charged with any offence. Under international law, a person’s right to liberty is violated if he is detained without charge for more than 2–3 days.

The Federal Attorney General has recently issued a Direction to the Commonwealth Department of Public Prosecutions to charge boat crew with an alternate offence that does not carry a mandatory minimum jail term. But mandatory sentencing laws remain part of the Migration Act, and can be invoked at any time. The Federal Opposition has said it will withdraw the Attorney General’s directive and return to charging low-level crew with people smuggling offences that carry the mandatory five year sentence, if it wins the next election.

Bassina Farbenblum, Director of the UNSW Human Rights Clinic, said mandatory sentencing laws violate Australia’s international legal obligations and offend fundamental principles of justice and the rule of law.

“We commend the Attorney General’s recent decision to stop prosecuting low-level boat crew under the mandatory sentencing laws. But change must go further. These laws have no place in Australia, and we have asked the UN Human Rights Committee to recommend that they be repealed.”

For a copy of the international claim and further information, see the UNSW Human Rights Clinic website.

Source: UNSW Human Rights Clinic.