Intense secrecy and speculation has shrouded the allegations that the Australian Government paid the crew of an asylum seeker boat headed for New Zealand to return to Indonesia. Here’s our take on what’s happened and what it means for our asylum seeker policy.
Were payments made?
The boat crew, some of the asylum seekers and a local Indonesian police chief allege that an Australian official gave the crew around USD$30,000 to return to Indonesia after the boat was intercepted by Australian vessels in international waters.
When the allegations were first put, the Immigration Minister, Peter Dutton, denied the payments had been made. However, the Prime Minister then refused to confirm or deny the payments were made, saying only that “the Australian government will do whatever we need to do to keep this evil trade stopped”.
It should be a simple thing to clear up but the Government is continuing its secrecy about “operational matters”. As our Executive Director Hugh de Kretser told The Sydney Morning Herald, “it's a sad indictment against the state of our democracy that we are learning more about these critical human rights issues from Indonesia than from Canberra.”
Isn’t this hypocritical?
The government has sought to justify tremendous cruelty as being necessary to fight the “evil” people smugglers and to “smash their business model”. It would be extraordinary if the government was now paying those same individuals yet this may well have happened.
Even if the payments weren’t made, the Prime Minister’s repeated failure to deny them surely signals to potential boat crews that they may be paid to turn their boats around.
What about safety at sea?
The allegations also undermine the Australian Government’s claims to be protecting lives at sea. The asylum seekers say Australia provided them with two boats to return to Indonesia. One of the boats ran out of fuel on the return journey and all 71 people, 6 crew and 65 asylum seekers, had to go on the one remaining boat. That boat then struck a reef off Rote Island and most of the crew and asylum seekers had to swim ashore. Some passengers, including women and children, remained on board and had to be rescued by another boat.
If payments were made, did Australia break the law?
If the payments were made, it seems likely that Australian, Indonesian and international laws were broken.
Australia has agreed to international law obligations to combat people smuggling and Division 73 of our own Criminal Code Act makes it an offence to "organise or facilitate" the illegal entry of someone into a foreign country like Indonesia. The offence carries up to 10 years jail or a $170,000 fine – and the penalties double if the offence relates to a group of at least 5 people. It is also an offence to provide "support or resources" that aid another person to commit a people smuggling offence in relation to a foreign country.
The catch with these offences is that the Australian Attorney-General must authorise any prosecution. In other words, a Minister in the Government which is alleged to have committed the offence needs to authorise the prosecution.
There are also serious questions around whether there is any legal authority to make payments like this and around the powers of the Government to intercept the vessel given it was headed to New Zealand and was in international waters.
Ultimately, the lawfulness of the Government’s actions will depend on the facts. Facts are precisely what the Government refuses to disclose and in the process vital legal and democratic scrutiny is being subverted.
Have payments been made before?
Labor was strongly pushing for an end to the secrecy on the payments…until it was revealed they made payments to disrupt people smuggling operations in Indonesia. David Marr and Marian Wilkinson’s book Dark Victory also outlines details of claims Australia made payments to disrupt operations in Indonesia under the Howard Government. This however, is the first time we’re aware of that a boat crew has allegedly been paid at sea to turn around.
What does this mean for our relationship with Indonesia?
Indonesia has demanded answers from Australia on the allegations. Our relationship with Indonesia has already been strained by our policy of boat turn-backs. When Australia breached Indonesian territorial waters six times in the space of two months last year, the Indonesian government made its displeasure clear, saying in a statement that it "deplores and rejects the violation of its sovereignty and territorial integrity", and that "any such violation of whatever basis constitutes a serious matter in bilateral relations of the two countries". Myopically, unlawfully and arrogantly, Australia has kept turning back boats regardless. The latest incident, and the Government’s continued secrecy, further damages our relationship with our close neighbour.
What does this mean for our asylum seeker policy?
Whether the payments were made or not, this episode is another sorry step in our march to avoid at all costs our international law obligations to provide protection to people fleeing persecution who arrive by sea.
Is there a better way?
Yes. As our Director of Legal Advocacy Daniel Webb explained on Al Jazeera this week, instead of punishing people seeking its protection and returning people to harm, Australia should work with the UN and our neighbours to develop safe and viable pathways to protection for people who need to seek it.
Four measures Australia can immediately adopt are to:
- Work meaningfully with transit countries like Indonesia and Malaysia to improve conditions and legal protections for asylum seekers temporarily in those countries;
- Redirect some of the billions of dollars we spend on deterrence measures to the UNHCR to assist it to process and support asylum seekers in those transit countries;
- Increase the number of refugees we take from this UN resettlement pool; and
- Urge other nations with capacity to do so to follow our lead.
As we work towards this genuine regional system we should respect important democratic and legal parameters. The veil of secrecy should be lifted. Human rights should be respected. Innocent people should not be punished for seeking our protection.
What’s the Human Rights Law Centre doing about this?
We’re actively advocating and pursuing legal action for a humane approach that complies with Australia’s international and domestic legal obligations. We continue to raise Australia’s breaches of international law at the UN. We were part of the legal team that challenged the high seas detention of 157 Tamil asylum seekers and established important limits on the Government’s power to turn back boats. We’re challenging the Australian Government’s power to run and fund offshore detention centres. We’re also actively exploring new challenges to the ever harsher and more secretive policies.