Smugglers or Trafficked People? Indonesian Fishermen who are Charged with People Smuggling.

Impoverished and vulnerable men from Indonesia are being deceived into becoming people smugglers and exploited for their labor. As such, these men fit the definition of trafficked people under the Trafficking Protocol. However, instead of protecting these men, as obligated to under international law, Australia is prosecuting them under extreme mandatory sentencing laws. Many of these people are in fact children, yet Australia continues to hold them in adult maximum security prisons.

Rather than provide protection and assistance to these victims, Australia has continued to strengthen its border policies. In order to adequately protect these victims, the Smuggling Protocol should be amended to include safeguards to protect those who are deceived or coerced into smuggling, while also providing for adequate protection of their rights.

I      Introduction

People smuggling and human trafficking have often been conflated. States, such as Australia, have often blurred these two issues, opting for a greater border control agenda in order to curtail all forms of irregular migration. Subsequently, Australia has failed in its obligations to adequately protect victims of trafficking, by focusing heavily on increased securitisation. This is especially seen in the case of Indonesian fishermen who are charged with people smuggling offences yet are in fact victims of human trafficking.

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (‘Trafficking Protocol’)[1] and the Protocol against the Smuggling of Migrants by Land, Sea and Air (‘Smuggling Protocol’)[2], both supplementing the United Nations Convention against Transnational Organized Crime,[3] are two separate yet related attempts to limit and control migration movements. While the Trafficking Protocol has a number of elements that seek to protect victims of human trafficking, these have been overpowered by State border protection objectives. Indeed, as Hathaway argues, ‘the migration control objectives of the Smuggling Protocol became in a real sense the metaphorical tail that wagged the anti-trafficking project.’[4]

This essay will explore the relationship between people smuggling and human trafficking and offer an analysis of both Australia’s response to these issues. It will be shown that in light of a greater push for the securitisation, States have failed in their protective obligations and instead have focused on deterrent and punitive policies. This issue will be highlighted through the case of the many Indonesian fishermen who are deceived into smuggling asylum seekers to Australia. It will be shown that these men, some of whom are children, in fact meet the definition of trafficked people under the Trafficking Protocol.

First, a background analysis of the relationship between smuggling and trafficking will be provided. Second, an analysis of the Smuggling Protocol and the Trafficking Protocol will be given, with a focus on the relationship between them. An in-depth study of the issue of Indonesian fishermen will then be given, in order to show how these men meet the criteria of victims under the Trafficking Protocol. It will be shown that Australia has indeed incorrectly implemented the two protocols into its domestic legislation and has failed in its obligation to protect victims of trafficking. Finally, recommendations are provided in order amend the Smuggling Protocol to better provide protection to these victims.

                                                                                                                  II      The Background of People Smuggling

Since the rise of globalisation, migration has been increasing at an exponential rate.[5] In 1965, 65 million people lived outside their country of birth,[6] while in 2010 there were 214 million.[7] Since this rise in international migration, States have increasingly attempted to limit the number of migrants crossing their borders through a range of border protection and immigration control measures. However, demand for immigration, caused either through push or pull factors, has always outnumbered the places available through legal routes.[8] As such, this has led to an increasing reliance on irregular migration and the use of people smugglers.

This issue is especially compounded by international and domestic conflicts that cause large numbers of refugees to flee. Under the Convention Relating to the Status of Refugees[9], those fleeing persecution have a right for their claim to be assessed and to not be returned (refouled) to State in which they may experience persecution, among other rights.[10] This is further outlined by the Universal Declaration of Human Rights, which asserts that everyone has the ‘right to and enjoy in other countries asylum from persecution.’[11] As Edwards points out, ‘although there is no right to be ‘granted’ asylum de jure, there may exist an implied right to asylum de facto, or, at the very least, a right to apply for it.’[12]

In order to exercise these rights, asylum seekers claiming refugee status need to be outside of their country of origin and within the jurisdiction of the receiving State.[13] However, instead of upholding their commitment in the Refugees Convention and its 1967 protocol,[14] States have increasingly attempted to limit the number of people who enter their jurisdiction in order to apply for asylum.[15] As Hathaway argues:

In an era when states have become increasingly resistant to their duty to grant refugees their Refugee Convention based rights-yet are disinclined to be seen formally to renounce those obligations-the Refugee Convention’s restriction of refugee rights to refugees who can somehow bring themselves under the jurisdiction of a state party has proved a valuable loophole for the governments of destination countries. States have increasingly enacted a variety of non-entre policies, the goal of which is to avoid the arrival of refugees-and hence the need even to assess claims to protection-by taking steps to prevent refugees from reaching their jurisdiction.[16]

Hence, in world with an increasing demand–such as international conflicts and persecution–and restricted supply, including increased securitisation, the use of people smugglers becomes increasingly sought after. People smugglers often become the only means in which refugees can exercise their rights of asylum, especially in countries such as Australia that are ‘girt by sea’. However, it is the Australian Government which ‘pushed for amendments to align the Trafficking Protocol with the goals of the Smuggling Protocol’[17] in order to create great border control mechanisms.

As such, the Smuggling Protocol and the Trafficking Protocol both present a heavy focus on border control mechanisms. While the Smuggling Protocol contains the strongest border control obligations for States, the Trafficking Protocol reinforces these mechanisms. Both protocols contain strong obligations for States to criminalise the smuggling of migrants, [18] especially in relation to smuggling via the sea.[19] In addition, the Trafficking Protocol also mimics the Smuggling Protocol in relation to the obligation to strengthen cooperation among border control agencies, adopt policies in regards to air travel,[20] and increase measures on identifying fraudulent documents. [21]

In essence, the Smuggling Protocol and the Trafficking Protocol work together to create strong obligations upon States to enacted heavy border security policies. While most States do not need any incentive to increase border security, such protocols ensure that migration has become increasingly securitised and controlled. Such increased border control in fact goes against the objection of both the Trafficking Protocol and the Smuggling Protocol. This creates an ironic consequence were a greater number of vulnerable people are desperate to flee persecution, thus creating a greater demand on people smuggling. As Hathaway argues:

Simply put, the agreement of states to criminalize smuggling and to strengthen border control efforts, coupled with inelastic demand for border crossing by mostly less-than-wealthy persons, will logically create the conditions within which traditionally benign forms of smuggling are transmuted into the clearly rights-abusive practices characteristic of trafficking.[22]

Australia, and other Western nations cannot stop people from migrating, especially when they are exercising their right to asylum. The actual limiting of migration opportunities creates a greater demand for people smuggling services, thus creating issues such as the case of the Indonesian fishermen examined below. ‘In short, desperate people determined to migrate will need smugglers more than ever.’[23]

A       Australian Issue of People Smuggling

The first boat of asylum seekers travelling to Australia carried five Vietnamese refugees that landed in Darwin on April 1976.[24] Since then, tens of thousands of asylum seekers have travelled to Australia by boat in order to seek asylum,[25] facilitated by people smugglers. Indonesia is a transit point for asylum seekers from Afghanistan, Iran, Pakistan and Sri Lanka en route to Australia,[26] due to its geographical location and ease of entry.[27] However, Indonesia is not a signatory to the Refugees Convention and continues to persecute refugees and asylum seekers.[28] Australia is the only State in the region who is a signatory to the Refugees Convention,[29] and many asylum seekers continue to attempt to reach Australia’s borders in order to apply for asylum.

The issue of people smugglers has been especially inflated in Australia through the media and in parliamentary debate,[30] with many differing views presented, ranging from ‘turning the boats back’[31] to an ‘open boarders approach’.[32] While the political rhetoric has changed over the years from Howard’s ‘we will decide who comes to this country and the conditions in which they come’[33] to Gillard’s ‘breaking the people smugglers business model’,[34] the rhetoric is still of a heavily deterrent nature, rather than a human rights based one.

Furthermore, there is still a great confusion between the distinction between people smugglers and human traffickers, with both the public and the polity confusing this issue. While there is indeed a relationship between them, they are also separate issues that require separate responses. Yet there has been a continued attempt to merge these two issues. This is seen in regional ‘solutions’ such as the Bali Process,[35] which seeks to create ‘improved cooperation among regional law enforcement agencies to deter and combat people smuggling and trafficking networks’.[36] This approach sees both human trafficking and people smuggling as combined issues that are to be address through combatting transnational organised crime such as increased law enforcement and border protection measures.[37] However, such approaches do not take a complete understanding of the complexity between human trafficking and people smuggling, nor do they provide adequate protection to victims and migrants. As will be shown below, these issues are interrelated yet also unique, and require specific focused responses that preserves a clear distinction between them.

                                                         III      The Relationship Between Human Trafficking and People Smuggling

Human trafficking and people smuggling are two separate yet related issues. This is seen through the development and the relationship between the two protocols, both supplementing the same United Nations Convention against Transnational Organized Crime.[38] Both protocols were developed as part of The Vienna Process,[39] which were ‘negotiated under the auspices of the Vienna-based United Nations Commission on Crime Prevention and Criminal Justice (a functional Commission of the Economic and Social Council)’,[40] and both were opened for signature on the same day by The United Nations General Assembly resolution 55/25 of 15 November 2000,[41] along with its parent Convention.

A       Human Trafficking

The Human Trafficking protocol seeks to ‘to prevent and combat trafficking in persons, paying particular attention to women and children’[42] and ‘provide protection and assistance to victims of trafficking and to facilitate State cooperation to this end.’[43] It seeks to criminalise trafficking and obligates States Parties to the protocol to adopt legislative and other measures necessary to the end.[44]

The Trafficking Protocol stipulates three elements in its definition of human trafficking:[45]

  1. The act of recruitment, transportation, transfer, harbouring or receipt of persons;
  2. The means through threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving payments or benefits to achieve consent of a person having control over another;
  3. For the purpose of exploitation (including, at a minimum, the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the removal of organs).

All three elements must be present for the act of trafficking to have occurred.

B       The Smuggling Protocol

The Smuggling Protocol seeks to ‘prevent and combat the smuggling of migrants, as well as to promote cooperation among States Parties to that end, while protecting the rights of smuggled migrants.’[46] Smuggling of migrants is defined as ‘the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.’[47] To this end, the Smuggling Protocol requires that States Parties to the protocol to criminalize the smuggling of migrants and related crimes.[48]

Such a definition is unfortunately broad, allowing people who are not directly involved or substantially profiting from the act to be considered as smuggled people. As Gallagher points out:

The definition of migrant smuggling…is sufficiently broad to apply to all irregular immigrants whose transport has been facilitated-trafficked persons and smuggled migrants alike. It is only the small number of trafficked persons who enter the destination country legally who would not be considered, prima facie, smuggled migrants.[49]

As such, vulnerable people, such as trafficked people or those deceived into transporting migrants may be defined as smuggled people, or smugglers themselves, through this definition.

C       The Smuggling and Trafficking Nexus

While there is a significant distinction between the Trafficking Protocol and the Smuggling Protocol, there are also many significant similarities.[50] However, during the drafting process, there was little discussion about the relationship between these two protocols.[51] As such, a key error in the drafting process was the lack of recommendations around the distinction and identification between smuggled people and victims of trafficking. As the Inter-Agency Group pointed out:

One issue…is the question of the relationship between the two draft Protocols. While work has been done on identifying common provisions, little or no discussion has taken place on the potential for conflict between them. The distinction that has been made between trafficked persons and smuggled migrants is evidently a useful one. However, …such distinctions are less clear on the ground, where there is considerable movement and overlapping between the two categories…[T]rafficked persons are to be granted protections additional to those accorded to smuggled migrants. However, there is little guidance in either instrument regarding how the identification process is to be made and by whom. The informal consultations may wish to consider the implications of the fact that, according to the current drafts, identifying an individual as a trafficked person carries different responsibilities for the State Party concerned than is the case when that same person is identified as a smuggled migrant.[52]

As such, there is a great concern that States may incorrectly identify a trafficked person as a smuggled person (or in the cases below, as the smuggler themselves).[53] Such an error would mean that protection obligations as set out in the Trafficking Protocol would not be provided to the migrant, and they may risk further human rights violations or inadequate support.

States also have a greater interest to identify the migrant as a smuggled person, rather than a trafficked victim, for both financial and border control reasons.[54] As a trafficked person imposes a greater responsibility on the State, such as administrative burdens and protection mechanisms, States are more likely to treat the person as a smuggled migrant. As Teshome argues:

Consequently, with the view of avoiding or reducing a potential burden arising out of the treatment of such persons, states may be tempted into deliberately misidentifying trafficked persons as smuggled people. In this regard, Australia’s response to human trafficking has been strongly criticised for its undue emphasis on combating irregular/illegal migration, which jeopardises bona fide refugees, asylum seekers and trafficked persons, among others.[55]

Finally, there is not always a clear distinction between smuggling and trafficking. This is what Kneebone calls the ‘smuggled-trafficked dichotomy’.[56] People may initial consent to being transported, but find themselves exploited through one form or another down the line. Essentially, an ‘individual can be smuggled one day and trafficked the next.’[57] As such, these processes ‘are often interrelated and almost always involve shifts, flows, overlaps, and transitions.’[58] One common example is asylum seekers who hire smugglers to assist them in crossing the border, yet who find themselves in debt-bondage at the end. Because of the increasing border control measures, coupled with increasing demand, smuggling is becoming more costly. As such, those who are desperate to flee may agree to high prices that they cannot afford. This often leaves the asylum seeker with a great debt to the smuggler once they are in the country of asylum. Such debt causes people to become exploited, either by the smuggler or by a third party. Another example of the smuggled-trafficked dichotomy is the case of Indonesian fishermen, as will be shown below.

                                                                                                                                         IV      Australian Approach

Australia is party to both the Trafficking Protocol and the Smuggling Protocol, which it ratified on 14 September 2005 and 27 May 2004 respectively. In order to comply with its obligations, Australia has enacted a number of legislative instruments to implement these two protocols into domestic legislation. An analysis and critique of these legislative materials will be analysed below.

In order to analyse Australia’s approach, the example of Indonesian fishermen will be provided. As will be shown below, improvised Indonesian fishermen, farmers and children are being deceived into taking asylum seekers to Australia. While the all three elements of the Trafficking Protocol are in fact met, Australia has instead chosen to convict them as people smugglers, often sentencing them to a mandatory five years imprisonment. This example will show that Australia has confused the two protocols and failed in its obligations to protect victims of human trafficking.

A       Cases of Indonesian who are charged with People Smuggling

Australia has experienced a large rise in the cases of people smuggling since September 2008.[59] As discussed above, this may be attributable to the continued increasing of border security policies in an attempt to limit the number of people who apply for asylum in Australia, as well as compounded by regional and international crises. While the passengers of these smuggling ventures are not prosecuted, as over 90 percent of them are found to be refugees,[60] the people smugglers themselves often face very heavy mandatory penalties.

However, contrary to public opinion, the people smugglers who end up in Australia prisons are not the ‘scum of the earth’[61] who are making fortunes from these journeys, but rather improvised Indonesian farmers and fishermen who are unaware of the political and legal issues involved in taking asylum seekers to Australia. Furthermore, these Indonesian men are often mislead or deceived into this form exploitation by the main organisers, who do not take the journey to Australia but stay back in order to organise other voyages.[62] Finally, many of these people are actually minors under 18 years old, in which the means of their exploitation is irrelevant under the Trafficking Protocol.

1        Amos Ndolo

Amos Ndolo was an Indonesian fisherman who was offered a job by an unknown person, to take people from Indonesia to Australia. He undertook the journey in his small wooden fishing boat as captain. ‘The boat was unseaworthy due to rotting planking along the water line and the 3 inches of water in the bilge.’[63]

There were three crew and fourteen passengers on board. On 6 October 2008, the vessel was taking on water and seemed as though it was about to sink but was subsequently intercepted in Australian waters by the Australian Navy.[64] ‘Mr Ndolo was charged under former s 232A of the Migration Act.’[65] On 3 April 2009 he pleaded guilty in the District Court of Western Australia.[66]

In sentencing, the Judge noted that Ndolo had ‘limited education, and that while he had been able to support his family as a fisherman, he was still very poor.’[67] This led her to state that her view that he was the victim of people smuggling organisers who recruit poor fishermen to transport non-citizens to Australia.[68]

2        Yan Pandu, Daud Mau, Usman Kia and Titus Loban

Messrs Yan Pandu, Daud Mau, Usman Kia, and Titus Loban were Indonesian fishermen and farm labourers from the remote islands of Sabu.[69] They all had limited education (some just two years) and were very poor. Each of them had been approached to crew a small boat. ‘Mr Pandu was offered IDR one million (approximately AUD 110), and the others were each offered IDR2 million, but no money was ever paid to them.’[70] They claimed that they did not know what their cargo would be before accepting the offer.[71]

On the night of 15 May 2009, they were instructed to take 74 passengers to Rote Island, Indonesia.[72] The organiser, Mr Tinus, was on board the vessel, but left once the ship arrived at Rote Island, and instructed the four men to take the ship south, indicating that they would be picked up in the morning.[73] While travelling south, the men attempted to turn the boat around, however, the passengers allegedly threatened the four men; ‘when we tried to turn the boat, he asked me, ‘Indonesia’? I said yes. And then he said, ‘If we go back to Indonesia, I’ll kill you and throw your body into the water’.’[74]

On 24 May 2009, the Australian Navy near Ashmore Reef picked up the ship, later referred to as SIEV 43.[75] The four men were charged ‘under the former s 232A of the Migration Act[76],[77] and pleaded not guilty.

On 17 May 2010, the four men were found guilty by the jury for

‘facilitating the bringing or coming to Australia of a group of five or more people to whom s 42(1) of the Migration Act 1958 (Cth) applied, namely a group of 74 Afghani, Iraqi and other people, and did so reckless as to whether the people had the right to come to Australia, contrary to s 232A of the Migration Act.’[78]

They were sentenced on the 21 May 2010 to the statutory five years imprisonment with a non-parole period of 3 years.[79] However, in sentencing, Eaton J stated that he was not ‘satisfied that when they undertook to work on the vessel they each knew that there would be passengers and that those passengers would be bound for Australia.’[80] In particular, it was noted that the four men

were deliberately targeted because of their lack of sophistication and naïveté as being people who might be relied upon to take the vessel further south beyond Rote Island towards Australia, compliant upon the instructions given to them and not sufficiently aware or sophisticated to appreciate the danger of apprehension by Australian authorities and the consequences of it. Those who were sophisticated and aware of those dangers made sure that they were not on board the vessel when it ventured south of Rote Island.[81]

While each of the four men appealed against the conviction, they were all unanimously object by the Western Australian Court of Appeal, and their convictions were upheld.[82]

3        Rudi Suwandi

Rudi Suwandi was a fishermen who lived in a small hut in a village in Lombok, Indonesia, with his wife and two children.[83] He was approached by strangers who offered him IDRS million (approximately AUD 530) to work as part of the crew of a ship.[84] According to court transcripts, he accepted the job and boarded the vessel, but when it came time to leave, the man he thought was to be the captain of the vessel ran away.[85] ‘Mr Suwandi continued the trip because he ‘felt sorry’ for the 36 passengers on board, beinf 27 adult males, five adult females and four children from Iran, Iraq and Afghanistan.’[86]

During their journey they experienced rough sea conditions and felt in danger of their life.[87] On 8 June 2010, the Australian Navy intercepted them on their way to Australia.[88] Suwandi was later charged with the aggravated offence of people smuggling under s 233C of the Migration Act.[89] He pleaded guilty in the Supreme Court of the Northern Territory and was sentenced to the mandatory minimum sentence of five years imprisonment with a non-parole period of three years on 18 February 2011.[90]

In sentencing, the Judge noted that Suwandi’s was ‘a member of crew who took no part in organising the journey or arranging the passengers. He had no control over the number of passengers to be transported and it appeared he treated the passengers with consideration.’[91]

4        Luco and other children

The Australian Human Rights Commission’s Inquiry Into the treatment of Individuals suspected of people smuggling offences who say that they are children[92] found that between late 2008 and late 2011, 180 young Indonesians claimed that they were children who arrived in Australia having worked as crew on boats bringing asylum seekers to Australia.[93] Many of these minors were subsequently detained and tried as adults, as the Australian Human Rights Commission Points Out:

In 15 cases where young Indonesians were convicted, it was eventually established by the Australian authorities that there was doubt about whether the individuals were adults at the time of their apprehension. These young Indonesians were released on licence, having spent on average 948 days in detention, of which on average 864 days, or well over two years, were spent in adult correctional facilities.

One such example includes the case of Ali Jasmin, who was just 13 years old when he was sentenced to five years in a Western Australia maximum-security adult prison.[94]

Another is the case of Luco,[95] who was approached by organisers to work as a crewmember on board a vessel taking a group of asylum seekers to Australia. He was 15 at the time he was apprehended by the Australian Navy near Ashmore reef on 20 February 2010.

On 1 April he was taken to Sir Charles Gairdner Hospital and underwent a wrist x-ray. X-rays have been a controversial method of determining age, and has been often condemned.[96] The wrist x-ray was examined and it was determined that Luco was 19 years or older. He remained in immigration detention for a further 6 months before being taken to Sydney on 14 October 2010 and charged with people smuggling, thus spending over 8 months in detention before being charged with any crime, as is often the case for many others.[97] Subsequently, ‘Luco was treated as an adult and spent 13 months in an adult maximum-security remand facility in Silverwater, NSW.’[98]

While Luco claimed to be 15 years old, ‘none of the Australian authorities and their officers (AFP and DIAC) made any [other] attempt to verify Luco’s claim that he was a juvenile.’[99] Furthermore, no attempts were made to contact Luco’s family members to verify his claim.[100]

Luco’s lawyer, Edwina Lloyd, flew to Luco’s remote village in Indonesia and returned with affidavits from his caregivers, Aunt, Uncle and his blood sister, proving he was a minor.[101] On 8 November 2011, charges were formally withdrawn at Sydney District Court and Luco was subsequently released to Villawood Detention Centre and flown to back Denpasar, Indonesia. The CDPP did not disclose the reasons for withdrawing the charges.[102]

B       Indonesian Fishermen as Trafficked Persons

The following cases provide clear examples of the means used in order to exploit these men into becoming smugglers. From these cases, and additional cases, it is clear that a typical image of the Indonesian men can be noted. As Schloenhardt observes:

An image of the typical offender prosecuted under Australian people smuggling laws emerges from the case law: that of a poor, uneducated Indonesian fisherman, farmer, or labourer who, while seeking work, is approached by strangers offering a large amount of money to take a vessel to Australian territory… This typical profile describes exactly those individuals who are targeted by organizers of migrant smuggling ventures. Poor fishermen are particularly vulnerable while out of work, and are easily tempted by the money that the organizers promise. They are targeted because of their lack of sophistication, and are easily duped into undertaking the journey while the organizers remain out of the reach of Australian authorities.[103]

As discussed above, the Trafficking Protocol requires three elements for one to be considered a trafficked person – act, means and purpose. The following will demonstrate clearly how these cases and many others fit the definition of trafficked people under the Trafficking Protocol.

1        Act – recruitment, transportation, transfer, harbouring or receipt of persons;

The first element of the Trafficking Protocol definition requires the act of recruitment, transportation, transfer, harbouring or receipt of persons.[104] As demonstrated above, the cases of the Indonesian fishermen and farmers clearly reveal that organisers recruited them for the purpose of exploiting them, often offering payment for their services. Organisers often travelled to remote island town in which to find vulnerable people who would be willing to take on such tasks.[105] The men were also clearly transported, sometimes with the organisers and other times alone under instructions. Furthermore, it may be questioned if other parties, including the Australian Government, participated in these acts by harbouring or receiving these people.

2        The means – threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving payments or benefits to achieve consent of a person having control over another;

The means in which the organisers exploit these men is through coercion, deception, abuse of vulnerability or the giving of payments to achieve consent, as outlined in the Trafficking Protocol.[106]

(a)   Coercion & Deception

Many of these men were deceived as to the purpose or destination of their journey – sometimes told they will be travelling to another island in Indonesia.[107] Often they were instructed to head south to Australia only after travelling to a first location, or they found out about their passengers once on board.[108]

Those who were aware of their passengers and destination did not understand the seriousness of the offence in Australia and the legal and political issues surrounding people smuggling. They were ‘generally told that they [would be] repatriated to Indonesia after a short time in Australia, and [had] no good reason to believe otherwise.’[109]

As such, it is clear that many, if not all, of these Indonesian crewmembers were coerced or deceived into becoming smugglers, as outlined in the Trafficking Protocol.[110]

(b)   Threat of Force

In some cases, the men are threatened to continue on their journey, even once they have found out the true intent of their task. The asylum seekers passengers of these voyages are also vulnerable – often fleeing persecution themselves. In some situations, because of the fear these asylum seekers have of being returned to persecution, they have pressured or threatened the crewmembers into travelling to Australia. This is not only shown in the case above, but also in other cases, including of R v Hasanusi and R v Mahendra .[111] Such a threat of force may also amount to the means element of Trafficking Protocol.[112]

(c)    Abuse of vulnerability

The UNODC Guidance Note on ‘abuse of a position of vulnerability’ provides that ‘circumstantial vulnerability may relate to a person’s unemployment or economic destitution,’[113] while also affirming that an ‘existence of vulnerability is best assessed on a case-by-case basis.’[114] An abuse of this vulnerability occurs when:

an individual’s…vulnerability is intentionally used or otherwise taken advantage of, to recruit, transport, transfer, harbour or receive that person for the purpose of exploiting him or her, such that the person believes that submitting to the will of the abuser is the only real or acceptable option available to him or her, and that belief is reasonable in light of the victim’s situation.[115]

As discussed, these men are almost always recruited from very poor regions of Indonesia and are often improvised,[116] thus leading them open to vulnerability to exploitation. Often they believe acceptance is the only option in order to continue to provide for their family. It is clear that in many of these cases, the person’s vulnerability has been abused in order to coerce them into working on the vessels.

(d)   Giving of payments

In all of the cases, payments have been used to coerce the Indonesian men into working on these ships. These organisers often promised payment of between $100 to $600,[117] which because of their improvised situation they accepted. However, some never even received their payments.[118] The use of payments is seen under the protocol as a means of coercion, and in many of these cases were the primary motivator for these men accepting such conditions. Such a means fulfils the requirement under the Trafficking Protocol.[119]

(e)    Consent

While it may be argued that the men agreed to their conditions and labour, the Trafficking Protocol article 3(b) that states that the ‘consent of a victim of trafficking in persons to the intended exploitation…shall be irrelevant where any of the means…have been used.’[120] This seeks to protect victims who may seemingly agree to the conditions of their trafficking. As Gallagher points out, consent is nullified by the means.[121] Thus the means element of the protocol operates to ‘annual meaningful, informed consent.’[122]

(f)     Minors

Article 3(c) of the Trafficking Protocol provides that a child under 18 shall be considered trafficked even if the trafficking does not involve any of the means.[123] As noted above, there have been 180 young Indonesians who claimed that they were children when they arrived in Australia.[124] As such, if sufficient evidence of their age is established, these minors would fall into the trafficking definition automatically and no means element is required.

3        For the purpose of exploitation

The exploitation element of the protocol provides that exploitation can include ‘forced labour or services.’[125] As Bakirci argues:

any kind of labour resulting from human trafficking should be defined as forced labour regardless of the nature of the work or working conditions…The trafficked people should be seen to be victims of forced labour. They cannot conclude employment contracts by their own free will. This puts them in a situation of forced labour.[126]

Thus as these men were recruited and coerced into their work through the means above, and there is no way for them to concede their employment (because of continued threat, coercion or vulnerability), any work they do, including crewing people smuggling boats, should be seen as forced labour. Furthermore, even if the labour involves criminal activities, it is still considered labour under international law. ‘Although “work” or “labour” does not imply…criminal activities…the ILO Convention No. 182 and the ILO supervisory bodies includes them in the term “labour” and identify them as among the forms of forced labour.’[127]

While the organisers can charge asylum seekers up to $15000 for the journey,[128] the crew are often underpaid or never receive any money. This payment is significantly low when it is likely they will end up in Australian prisons for over 3 years. The fact that these men are likely to be charged and imprisoned in Australia further adds to their exploitation, of which Australia may be complicit in. The facts show that these men are sought out by the organisers because of their poverty and low level of education in order to exploit them. As a recent court found, ‘savage penalties are being imposed upon the ignorant who have been simply exploited by organisers.’[129]

Thus it is clear that these Indonesian fishermen and farmers are indeed victims of trafficking, rather than smugglers. However, Australia continues to prosecute them as smugglers through domestic legislation.

C       Australian Anti People Smuggling Legislation

Australia has implemented the Smuggling Protocol into its domestic legislation through a number of amendments to the Migration Act,[130] in particular subdivision A of division 12, containing sections 228A to 236B. Of particular importance, section 233A establishes the crime of people smuggling as someone who ‘organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person [who] had, or has, no lawful right to come to Australia.’[131] Furthermore, section 233C establishes the crime of aggravated people smuggling, which the person facilitated at least five non-citizens to enter Australia.[132] In reality, all offenders have been charged with aggravated people smuggling as all cases have involved more than five people.

Finally, section 236B establishes mandatory minimum sentencing of at least five years with a non-parole period of three years.[133] ‘To this day, people smuggling offences remain the only federal offences with mandatory minimum sentences.’[134] While the Attorney General issued a Direction on 27 August 2012 to charge crew with a lesser offence that does not carry a mandatory sentence,[135] the mandatory sentencing laws remain in place and, accordingly, the Direction can be revoked at any time.[136] Much has been said about the desirability of such mandatory sentencing, of which this paper does not have sufficient space to explore.[137] However, it will be noted that mandatory sentencing creates additional exploitations upon the victims of trafficking and does not allow Judges to appropriately consider the defendants as victims of trafficking. Subsequently, most of the convicted people smugglers have received the minimum sentencing, indicating that the mandatory sentencing regime is excessive.[138]

While Australia has been charging these men as people smugglers under the above legislation, they have failed to protect them under domestic implementations of the Trafficking Protocol.

D       Australian Human Trafficking Legislation

Australia has implemented the Trafficking Protocol into domestic legislation through mostly amendments to the Criminal Code Act 1995.[139] Of particular relevance to the issue above is division 271, which outlines the offence of trafficking in persons. Subsection 2 of this division provides that a person commits an offence of trafficking in persons if they organise or facilitate the entry of another person into Australia and deceives the other person about the fact that the other person’s entry will involve the other person’s exploitation.[140]

However, as Debeljak et al point out,

‘it remains to be seen how broad a conception of “exploitation” will be sanctioned under Australian law. In particular, it remains to be seen whether the phrase ‘other person’s exploitation…’ will be interpreted widely enough to cover the additional forms of exploitation contained in the Trafficking Protocol, namely “forced labour or services…”[141]

Furthermore, Australia also contains legislation against child trafficking, namely section 271.4,[142] in which a person commits an offence of trafficking in children if the person organises or facilitates the entry or proposed entry into Australia of another person, the other person is under the age of 18; and intends that the other person will be exploited, either by the first person or another, after that entry or receipt.[143] However, the ‘exploitation’ element is yet to be tested in the courts.

1        Protection of Victims of Trafficking

Australia’s has also failed in its obligations under the Trafficking Protocol to protect victims of trafficking, such as the Indonesian men outlined above.

Firstly the Trafficking Protocol requires States Parties to ‘consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently’, with ‘appropriate consideration to humanitarian and compassionate factors.’[144]

Second, the Protocol requires each State to:

consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in per- sons, including…in particular, the provision of: appropriate housing; counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand; medical, psychological and material assistance; and employment, educational and training opportunities.[145]

Third:

Each State Party shall take into account, in applying the provisions of this article, the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care.[146]

Finally, the protocol requires the State Party ensures ‘that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered.’[147] Such measures have never been considered for any of these victims, and as such Australia has failed under its obligations in international law.

While Australia does provide a visa scheme and limited protection to victims of trafficking,[148] especially for sexual services, none of these protective instruments have been offered to any of the Indonesian men.

                                                                                  V      Recommended Amendments to the Smuggling Protocol

As shown, there is a confusion between the Smuggling Protocol and the Trafficking Protocol. As outlined above, the drafting of the two protocols failed to outline a clear way to distinguish between victims of trafficking and smuggled migrants. As Gallagher notes:

The failure of the Ad-Hoc Committee to discuss such obvious issues is clear evidence of an unwillingness, on the part of states, to relinquish any measure of control over the migrant identification process.[149]

I would add that the protocols fail as well to distinguish between the organisers of smuggling journeys and the victims who are deceived into working on the boats. It is clear that the majority of prosecutions have been focused poor Indonesian fishermen outlined above, without much consideration for the organisers. Within Australia, the number of organisers prosecuted is just 2 percent – 10 of 493 people arrested between 1 January 2009 and 18 October 2011.[150]

A number of recommendations should be considered in order to adequately distinguish between the two protocols. Firstly, it is clear that the rights of smugglers was not a consideration when drafting the Smuggling Protocol. As outlined above, many of the smugglers have had their human rights breached, including being detained for over 9 months before being charged.[151] Furthermore, mandatory sentencing may amount to arbitrary detention under the ICCPR,[152] as indicated by an upcoming case in the United Nations Human Rights Committee.[153] Controversial age determinations method such as wrist x-rays may be a breach on the right of a fair trial,[154] and if incorrect may also breach the Convention of the Rights of the Child.[155]

The only mention of the rights of smugglers is in relation to article 9(1)(a) that provides that when taking action against ships at sea which may be engaged in people smuggling, States Parties are to ‘ensure the safety and humane treatment of the persons on board.’[156] Such a requirement thus applies to the crew as well as the smuggled migrants. In contrast, the rights of migrants are more clearly outlined, albeit rather weakly,[157] in articles 16 and 19.[158]

As such, amendments are needed in the Smuggling Protocol that clearly protects the rights of the smugglers. These rights should be grounded in human rights law, including a fair trial, adequate protection, freedom from arbitrary detention and protections of the rights of the child.

Second, the Smuggling Protocol should also provide adequate safeguards and mechanisms to ensure those who are coerced into smuggling are not charged for their actions. Currently, there is no distinction between the organisers of people smuggling and the crew, such as the Indonesian men outlined above. An amendment should be considered where the use of deception and vulnerability is taken into account when assessing if someone is responsible for the smuggling of migrants.

Third, the Smuggling Protocol heavily focuses on criminalisation and border control measures, without much recognition of the role smugglers play in supporting asylum seekers in exercising their right to seek asylum. The only mention of this right of asylum is the ‘saving clause’ of article 19 that includes a reference to the Refugees Convention and the principle of non-refoulement.[159] The protocol thus protects the smuggled migrants who may be refugees from non-refoulement, but does not protect the smuggler who assistants them to exercise such a right.

It should be noted that there seems to be limited protection for smugglers who assist asylum seekers for free. The requirement in the definition of ‘financial or material benefit’[160] seeks to protect those smugglers who do not charge for their services. As Gallagher argues, the profit element in the definition ‘represents a concession by removing the possibility that those assisting asylum seekers could come within its provisions.’[161] However, this view is rather simplistic, assuming that those who seek to assist asylum seekers should only do so on a non-profit basis. This is akin to saying that migration lawyers assisting asylum seekers to submit asylum request should only do so for free – both the lawyer and the smuggler are assisting asylum seekers in exercising their rights. When considering the cost to the smugglers,[162] including the destruction of the vessel at the end of the journey,[163] it is a misunderstood assumption that smugglers seeking to genuinely assist asylum seekers should only do so for no financial or other material benefit.

As such, an amendment the protocol should be considered to protect those who transport asylum seekers. This would recognise the role smugglers play in supporting asylum seekers in exercising their rights under international law. Such an amendment would create an exception for those who transport asylum seekers, provided no exploitation or abuse has occurred. In this light, Australia should consider repealing the Deterring People Smuggling Act[164] that aims to ensure that people smugglers may not evade a conviction based on arguments that the smuggled migrants they carry or otherwise organise are found to be refugees.[165]

                                                                                                                                                            VI      Conclusion

Thus it is clear that Australia has ignored its protection obligations under the Trafficking Protocol in order to strengthen its border security under the Smuggling Protocol. Thus, as Hathaway argues, the ‘migration control objectives of the Smuggling Protocol became in a real sense the metaphorical tail that wagged the antitrafficking project.’[166] This is seen clearly through the example of the Indonesian fishermen, who, although victims of trafficking, have been charged and prosecuted as smugglers. Rather than provide protection and assistance to these victims, Australia has continued to strengthen its border policies. In order to adequately protect these victims, the Smuggling Protocol should be amended to include safeguards to protect those who are deceived or coerced into smuggling, while also providing for adequate protection of their rights.

                                                                                                                                                       VII      Bibliography

A       Articles/Books/Reports

Adam Fletcher, ‘Turning Back the Boats – Back to the Future on Asylum Policy’ On Line Opinion, 1 February 2012 <http://www.onlineopinion.com.au/view.asp?article=13190&gt;

Amnesty International, ‘Abused and Abandoned: Refugees Denied Rights in Malaysia’ (ASA 28/010/2010, 16 June 2010) <http://www.unhcr.org/refworld/pdfid/4c19d1aa2.pdf&gt;

Australian Human Rights Commission, An Age of Uncertainty: Inquiry into the Treatment of Individuals Suspected of People Smuggling Offences Who Say That They Are Children (Australian Human Rights Commission, 2012)

Bachelard, Michael, ‘Accused Denies Knowledge of  People Smuggler Charges Against Him’ The Age, 8 May 2013 <http://www.theage.com.au/opinion/political-news/accused-denies-knowledge-of–people-smuggler-charges-against-him-20130508-2j7u8.html&gt;

Bakirci, Kadriye, ‘Human Trafficking and Forced Labour: A Criticism of the International Labour Organisation’ (2009) 16 Journal of Financial Crime 160

Barker, Cat, ‘The People Smugglers’ Business Model’ (28 February 2013) <http://parlinfo.aph.gov.au/parlInfo/download/library/prspub/2262537/upload_binary/2262537.pdf;fileType=application/pdf&gt;

Bassed, ‘Age Determination of Asylum Seekers and Alleged People Smugglers.’ (2012) 20 Journal of law and medicine 261

Butcher, Michael Gordon and Steve, ‘People-smuggling Case Against Indonesian Teen Dropped’ The Age, 2 December 2011 <http://www.theage.com.au/national/peoplesmuggling-case-against-indonesian-teen-dropped-20111201-1o98q.html&gt;

Commonwealth Director of Public Prosecutions, ‘Annual Report 2008-09’ (22 October 2009)

Debeljak, Julie et al, ‘The Legislative Framework for Combatting Trafficking in Persons’ (Castan Centre for Human Rights Law, 9 November 2009) <http://www.law.monash.edu.au/castancentre/projects/tip-workshop-background-paper.pdf&gt;

Department of Immigration and Citizenship (DIAC), ‘Asylum Trends – Australia: 2011-12’ (2012) <http://www.immi.gov.au/media/publications/statistics/&gt;

Edwards, A, ‘Human Rights, Refugees, and The Right “To Enjoy” Asylum’ (2005) 17 International Journal of Refugee Law 293

Emma Rodgers, ‘Rudd Wants People Smugglers to “Rot in Hell”’ ABC, 17 April 2009 <http://www.abc.net.au/news/2009-04-17/rudd-wants-people-smugglers-to-rot-in-hell/1653814&gt;

Flitton, Daniel, ‘Smuggling Convictions Face Review’ The Age, 3 May 2012 <http://www.theage.com.au/opinion/political-news/smuggling-convictions-face-review-20120502-1xzf6.html&gt;

Gallagher, Anne, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis’ (2001) 23 Human Rights Quarterly 975

Gallagher, Anne T, ‘Human Rights and Human Trafficking: Quagmire or Firm Ground – A Response to James Hathaway’ (2008) 49 Virginia Journal of International Law 789

Gallagher, Anne T, The International Law of Human Trafficking (Cambridge University Press, 2010) <http://ezproxy.lib.monash.edu.au/login?url=http://www.MONASH.eblib.com.au/patron/FullRecord.aspx?p=615782&gt;

Gordon, Michael, ‘People Smuggling: Boy’s Charges Dropped’ The Age, 14 December 2011 <http://www.theage.com.au/national/people-smuggling-boys-charges-dropped-20111213-1ot8h.html&gt;

Gordon, Michael, ‘Two Indonesians Acquitted Of People Smuggling’ The Age, 1 August 2012 <http://www.theage.com.au/national/indon-pair-acquitted-on-peoplesmuggle-counts-20120801-23efq.html&gt;

Gordon, Michael, ‘Indonesians Innocent of People Smuggling’ The Age, 2 August 2012 <http://www.theage.com.au/opinion/political-news/indonesians-innocent-of-people-smuggling-20120801-23fkl.html&gt;

Gordon, Michael, ‘People-smuggling Charges Dropped’ The Age, 4 September 2012 <http://www.theage.com.au/opinion/political-news/peoplesmuggling-charges-dropped-20120903-25ajy.html&gt;

Hall, Bianca, ‘Long Wait for Smuggling Suspects’ The Age, 3 July 2012 <http://www.theage.com.au/opinion/political-news/long-wait-for-smuggling-suspects-20120702-21dda.html&gt;

Hathaway, James C, ‘The Human Rights Quagmire of Human Trafficking’ (2008) 49 Va. J. Int’l L. 1

‘He Was 13 Years Old When Australia Locked Him in an Adult Prison for People Smuggling’ The Age, 20 May 2012 <http://www.theage.com.au/national/he-was-13-years-old-when-australia-locked-him-in-an-adult-prison-for-people-smuggling-20120519-1yxfc.html&gt;

Howard, John, ‘Election Speech’ (Sydney, Australia, 28 October 2001) <http://electionspeeches.moadoph.gov.au/speeches/2001-john-howard&gt;

Human Rights Clinic, ‘Human Rights and the Prosecution of Indonesian Boat Crew for “People Smuggling” Offences in Australia’ University of New South Wales, 23 October 2012 <http://www.law.unsw.edu.au/hrclinic/peoplesmuggling&gt;

Human Rights Law Centre, ‘Indonesian Fisherman Files First International Case Against Australia’s People Smuggling Laws’, 24 October 2012 <http://www.hrlc.org.au/indonesian-fisherman-files-first-international-case-against-australias-people-smuggling-laws&gt;

International Council on Human Rights Policy, Irregular Migration, Migrant Smuggling and Human Rights: Towards Coherence (International Council on Human Rights Policy, 2010)

Van Kessel, Gerry, ‘Global Migration and Asylum’ (2001) 10 Forced migration review

Kneebone, S, ‘The Refugee-Trafficking Nexus: Making Good (The) Connections’ (2010) 29 Refugee Survey Quarterly 137

Kneebone, Susan, ‘Controlling Migration by Sea: The Australian Case’ in Bernard Ryan and Valsamis Mitsilegas (eds), Extraterritorial immigration control: legal challenges (Martinus Nijhoff Publishers, 2010) 449

Lloyd, Edwina, ‘Submission to the Inquiry into the Treatment of Individuals Suspected of People Smuggling Who Say They Are Children’ (3 February 2012) <https://www.humanrights.gov.au/sites/default/files/content/ageassessment/submissions/Edwina%20Lloyd%20(Submission%2029).doc>

Martin, Charles and Andreas Schloenhardt, ‘Prosecution and Punishment of People Smugglers in Australia 2008-2011.’ (2012) 40 Federal Law Review 111

Missbach, Antje and Frieda Sinanu, ‘“ The Scum of the Earth”? Foreign People Smugglers and Their Local Counterparts in Indonesia’ <http://www.ssoar.info/ssoar/handle/document/31013&gt;

Opeskin, Brian R, Richard Perruchoud and Jillyanne Redpath-Cross (eds), Foundations of International Migration Law (Cambridge University Press, 2012)

Phillips, J and H Spinks, ‘Boat Arrivals in Australia Since 1976’ (5 January 2011) <http://www.aph.gov.au/library/pubs/bn/sp/boatarrivals.html&gt;

Savitri Taylor, ‘Asylum Seekers in Indonesia: Why Do They Get on Boats?’ The Conversation, 20 July 2012 <http://theconversation.edu.au/asylum-seekers-in-indonesia-why-do-they-get-on-boats-8334&gt;

Schloenhardt, Andreas, ‘Migrant Smuggling and Organised Crime in Australia’ (The University of Queensland, September 2011) <http://www.law.uq.edu.au/documents/humantraffic/migrant-smuggling/reports-presentations/Schloenhardt-Migrant-Smuggling-and-Organised-Crime-in-Australia-Sep-2011.pdf&gt;

Schloenhardt, Andreas and Kate L Stacey, ‘Assistance and Protection of Smuggled Migrants: International Law and Australian Practice’ (2013) 35 Sydney L. Rev. 53

Taylor, Savitri and Brynna Rafferty-Brown, ‘Difficult Journeys: Accessing Refugee Protection in Indonesia’ (SSRN Scholarly Paper ID 1717242, Social Science Research Network, 2010) <http://papers.ssrn.com/abstract=1717242&gt;

Teshome, Aderajew, ‘Australia’s Response to Human Trafficking’ (2011) 30 U. Tas. L. Rev. 51

Trotter, Andrew and Matt Garozzo, ‘Mandatory Sentencing for People Smuggling: Issues of Law and Policy’ (2012) 36 Melbourne ULR 553

Australian Attorney-General, ‘Director of Public Prosecutions – Attorney-General’s Direction 2012.’ <http://www.law.unsw.edu.au/sites/law.unsw.edu.au/files/docs/attorney_generals_direction_director_of_public_prosecutions_act.pdf&gt;

Australian Broadcasting Corporation, ‘People-smuggling Accused “Victims of Smugglers”’, Lateline, 15 August 2012 <http://www.abc.net.au/lateline/content/2012/s3568842.htm&gt;

Australian Federal Police, People Smuggling <http://www.afp.gov.au/policing/human-trafficking/people-smuggling.aspx&gt;

B       Legislation

Migration Act 1958 (Cth)

Criminal Code Act 1995 (Cth)

Deterring People Smuggling Act 2011 (Cth)

C       Treaties

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2237 UNTS 319 (entered into force 25 December 2003).

Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2241 UNTS 507 (entered into force 28 January 2004).

United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2225 UNTS 209 (entered into force 29 September 2003)

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)(‘Refugees Convention’)

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)(‘1967 Protocol’)

Universal Declaration of Human Rights, Paris, 10 December 1948, GA Res. 217 A (III), UN Doc. A/810.

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

D       Cases

Transcript of Proceedings, R v Ndolo (Unreported, District Court of Western Australia, 221/2009, O’Brien DCJ, 3 April 2009) 2-3.

Transcript of Proceedings, R v Pandu & Ors (Unreported, District Court of Western Australia, 95/2010, Eaton DCJ, 21 May 2010) 4.

Kia v The Queen [2011] WASCA 104 [3].

Transcript of Proceedings, R v Suwandi (Unreported, Supreme Court of the Northern Territory, SCC 21037950, Riley CJ, 18 February 2011) 3.

Transcript of Proceedings (Sentence), R v Hasanusi (Unreported, District Court of Western Australia, 1365/2009, Fenbury DCJ, 21 April 2010) 2.

R v Mahendra [2011] NTSC 57 (29 July 2011) 14–17 [27]–[32] (Blokland J).

Transcript of Proceedings (Sentence), R v Mimin (District Court of Queensland, 1221/2011, Farr DCJ, 10 February 2012) 3–4 (between US$5000 and US$11 000); Transcript of Proceedings (Sentence),

R v Tambunan (Supreme Court of Queensland, 184/2011, Byrne SJA, 15 April 2011) 2 (between US$ 5000 and US $15000).

Transcript of Proceedings (Sentence), R v Hasim (District Court of Queensland, 1196/2011, Martin DCJ, 11 January 2012) 2.

E        Other

Transnational Organized Crime, G.A. Res. 53/111, U.N. GAOR, 53rd Sess., 85th plen. mtg., U.N. Doc. A/RES/53/111 (1998).

UN General Assembly, Note by the Office of the United Nations High Commissioner for Human Rights, the United Nations Children’s Fund and the International Organization for Migration on the Draft Protocols Concerning Migrant Smuggling and Trafficking in Persons, 8 February 2000, U.N. Doc. A/AC.254/27, para a(2).

UNODC Human Trafficking and Migrant Smuggling Section, ‘Guidance Note on “abuse of a Position of Vulnerability” as a Means of Trafficking in Persons in Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime’ (2012) 2 <http://www.unodc.org/documents/human-trafficking/2012/UNODC_2012_Guidance_Note_-_Abuse_of_a_Position_of_Vulnerability_E.pdf&gt;.

‘Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (Bali Process)’ <http://www.baliprocess.net/&gt;


[1] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2237 UNTS 319 (entered into force 25 December 2003).

[2] Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2241 UNTS 507 (entered into force 28 January 2004).

[3] United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2225 UNTS 209 (entered into force 29 September 2003)

[4] James C Hathaway, ‘The Human Rights Quagmire of Human Trafficking’ (2008) 49 Va. J. Int’l L. 1, 30.

[5] Brian R Opeskin, Richard Perruchoud and Jillyanne Redpath-Cross (eds), Foundations of International Migration Law (Cambridge University Press, 2012) 22.

[6] Gerry Van Kessel, ‘Global Migration and Asylum’ (2001) 10 Forced migration review 10.

[7] Opeskin, Perruchoud and Redpath-Cross, above n 5, 25; International Council on Human Rights Policy, Irregular Migration, Migrant Smuggling and Human Rights: Towards Coherence (International Council on Human Rights Policy, 2010) 11.

[8] Van Kessel, above n 6, 10.

[9] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)(‘Refugees Convention’); Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)(‘1967 Protocol’)

[10] Ibid, art 33

[11] Universal Declaration of Human Rights, Paris, 10 December 1948, GA Res. 217 A (III), UN Doc. A/810.

[12] A Edwards, ‘Human Rights, Refugees, and The Right “To Enjoy” Asylum’ (2005) 17 International Journal of Refugee Law 293, 300.

[13] Refugees Convention, art 1.

[14] Ibid.

[15] Hathaway, above n 4, 35.

[16] Ibid 35–6.

[17] Ibid 31.

[18] Smuggling Protocol, art 6.

[19] Ibid, art 7-9.

[20] Anne Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis’ (2001) 23 Human Rights Quarterly 975, 996.

[21] Trafficking Protocol, art 11(3).

[22] Hathaway, above n 4, 34.

[23] Ibid 33.

[24] J Phillips and H Spinks, ‘Boat Arrivals in Australia Since 1976’ (5 January 2011) <http://www.aph.gov.au/library/pubs/bn/sp/boatarrivals.html&gt;.

[25] Ibid 19.

[26] Antje Missbach and Frieda Sinanu, ‘“ The Scum of the Earth”? Foreign People Smugglers and Their Local Counterparts in Indonesia’ 67 <http://www.ssoar.info/ssoar/handle/document/31013&gt;.

[27] Savitri Taylor and Brynna Rafferty-Brown, ‘Difficult Journeys: Accessing Refugee Protection in Indonesia’ (SSRN Scholarly Paper ID 1717242, Social Science Research Network, 2010) 7 <http://papers.ssrn.com/abstract=1717242&gt;.

[28] Missbach and Sinanu, above n 26, 71–2; Amnesty International, ‘Abused and Abandoned: Refugees Denied Rights in Malaysia’ (ASA 28/010/2010, 16 June 2010) <http://www.unhcr.org/refworld/pdfid/4c19d1aa2.pdf&gt;; Savitri Taylor, ‘Asylum Seekers in Indonesia: Why Do They Get on Boats?’ The Conversation, 20 July 2012 <http://theconversation.edu.au/asylum-seekers-in-indonesia-why-do-they-get-on-boats-8334&gt;.

[30] Phillips and Spinks, above n 24, 6–7.

[31] Adam Fletcher, ‘Turning Back the Boats – Back to the Future on Asylum Policy’ On Line Opinion, 1 February 2012 <http://www.onlineopinion.com.au/view.asp?article=13190&gt;.

[32] Phillips and Spinks, above n 24, 6.

[33] John Howard, ‘Election Speech’ (Sydney, Australia, 28 October 2001) <http://electionspeeches.moadoph.gov.au/speeches/2001-john-howard&gt;.

[34] Cat Barker, ‘The People Smugglers’ Business Model’ (28 February 2013) 1 <http://parlinfo.aph.gov.au/parlInfo/download/library/prspub/2262537/upload_binary/2262537.pdf;fileType=application/pdf&gt;.

[35] ‘Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (Bali Process)’ <http://www.baliprocess.net/&gt;.

[36] Ibid.

[37] Susan Kneebone, ‘Controlling Migration by Sea: The Australian Case’ in Bernard Ryan and Valsamis Mitsilegas (eds), Extraterritorial immigration control: legal challenges (Martinus Nijhoff Publishers, 2010) 449, 349.

[38] United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2225 UNTS 209 (entered into force 29 September 2003)

[39] Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling’, above n 20, 976.

[40] Ibid.

[41] Transnational Organized Crime, G.A. Res. 53/111, U.N. GAOR, 53rd Sess., 85th plen. mtg., U.N. Doc. A/RES/53/111 (1998).

[42] Trafficking Protocol, art 2(a).

[43] Ibid, 2(b)(c)

[44] Ibid, art 5.

[45] Trafficking Protocol, art 3.

[46] Smuggling Protocol, art 2.

[47] Ibid, art (3)(a).

[48] Ibid, art 6.

[49] Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling’, above n 20, 1000.

[50] Aderajew Teshome, ‘Australia’s Response to Human Trafficking’ (2011) 30 U. Tas. L. Rev. 51, 55.

[51] Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling’, above n 20, 1000.

[52] UN General Assembly, Note by the Office of the United Nations High Commissioner for Human Rights, the United Nations Children’s Fund and the International Organization for Migration on the Draft Protocols Concerning Migrant Smuggling and Trafficking in Persons, 8 February 2000, U.N. Doc. A/AC.254/27, para a(2).

[53] Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling’, above n 20, 1000.

[54] Ibid.

[55] Teshome, above n 50, 57.

[56] S Kneebone, ‘The Refugee-Trafficking Nexus: Making Good (The) Connections’ (2010) 29 Refugee Survey Quarterly 137, 151.

[57] Anne T Gallagher, ‘Human Rights and Human Trafficking: Quagmire or Firm Ground – A Response to James Hathaway’ (2008) 49 Virginia Journal of International Law 789, 817.

[58] Ibid.

[60] Department of Immigration and Citizenship (DIAC), ‘Asylum Trends – Australia: 2011-12’ (2012) <http://www.immi.gov.au/media/publications/statistics/&gt;.

[61] Emma Rodgers, ‘Rudd Wants People Smugglers to “Rot in Hell”’ ABC, 17 April 2009 <http://www.abc.net.au/news/2009-04-17/rudd-wants-people-smugglers-to-rot-in-hell/1653814&gt;.

[62] Michael Bachelard, ‘Accused Denies Knowledge of  People Smuggler Charges Against Him’ The Age, 8 May 2013 <http://www.theage.com.au/opinion/political-news/accused-denies-knowledge-of–people-smuggler-charges-against-him-20130508-2j7u8.html&gt;; Michael Gordon, ‘Two Indonesians Acquitted Of People Smuggling’ The Age, 1 August 2012 <http://www.theage.com.au/national/indon-pair-acquitted-on-peoplesmuggle-counts-20120801-23efq.html&gt;; Michael Gordon, ‘Indonesians Innocent of People Smuggling’ The Age, 2 August 2012 <http://www.theage.com.au/opinion/political-news/indonesians-innocent-of-people-smuggling-20120801-23fkl.html&gt;; Michael Gordon, ‘People-smuggling Charges Dropped’ The Age, 4 September 2012 <http://www.theage.com.au/opinion/political-news/peoplesmuggling-charges-dropped-20120903-25ajy.html&gt;.

[63] Commonwealth Director of Public Prosecutions, ‘Annual Report 2008-09’ (22 October 2009) 73.

[64] Transcript of Proceedings, R v Ndolo (Unreported, District Court of Western Australia, 221/2009, O’Brien DCJ, 3 April 2009) 2-3.

[65] Charles Martin and Andreas Schloenhardt, ‘Prosecution and Punishment of People Smugglers in Australia 2008-2011.’ (2012) 40 Federal Law Review 111, 116.

[66] Transcript of Proceedings, R v Ndolo (Unreported, District Court of Western Australia, 221/2009, O’Brien DCJ, 3 April 2009) 3

[67] Martin and Schloenhardt, above n 65, 116.

[68] Transcript of Proceedings, R v Ndolo (Unreported, District Court of Western Australia, 221/2009, O’Brien DCJ, 3 April 2009) 3-4.

[69] Transcript of Proceedings, R v Pandu & Ors (Unreported, District Court of Western Australia, 95/2010, Eaton DCJ, 21 May 2010) 4.

[70] Martin and Schloenhardt, above n 65, 118.

[71] Transcript of Proceedings, R v Pandu & Ors (Unreported, District Court of Western Australia, 95/2010, Eaton DCJ, 21 May 2010) 5

[72] Ibid.

[73] Kia v The Queen [2011] WASCA 104 [3].

[74] Ibid, [8-10]

[75] Transcript of Proceedings, R v Pandu & Ors (Unreported, District Court of Western Australia, 95/2010, Eaton DCJ, 21 May 2010) 2

[76] Migration Act 1958 (Cth)

[77] Martin and Schloenhardt, above n 65, 119.

[78] Kia v The Queen [2011] WASCA 104 [2].

[79] Transcript of Proceedings, R v Pandu & Ors (Unreported, District Court of Western Australia, 95/2010, Eaton DCJ, 21 May 2010) 16.

[80] Ibid, 8

[81] Transcript of Proceedings, R v Pandu & Ors (Unreported, District Court of Western Australia, 95/2010, Eaton DCJ, 21 May 2010) 9

[82] Kia v The Queen [2011] W ASCA 104, [1], [51]-[52]

[83] Martin and Schloenhardt, above n 65, 121.

[84] Ibid.

[85] Transcript of Proceedings, R v Suwandi (Unreported, Supreme Court of the Northern Territory, SCC 21037950, Riley CJ, 18 February 2011) 3.

[86] Martin and Schloenhardt, above n 65, 121.

[87] Transcript of Proceedings, R v Suwandi (Unreported, Supreme Court of the Northern Territory, SCC 21037950, Riley CJ, 18 February 2011) 2.

[88] Ibid, 3.

[89] Migration Act 1958 (Cth), s 233C.

[90] Transcript of Proceedings, R v Suwandi (Unreported, Supreme Court of the Northern Territory, SCC 21037950, Riley CJ, 18 February 2011) 3-4.

[91] Martin and Schloenhardt, above n 65, 122.

[92] Australian Human Rights Commission, An Age of Uncertainty: Inquiry into the Treatment of Individuals Suspected of People Smuggling Offences Who Say That They Are Children (Australian Human Rights Commission, 2012).

[93] Ibid 7.

[94] ‘He Was 13 Years Old When Australia Locked Him in an Adult Prison for People Smuggling’ The Age, 20 May 2012 <http://www.theage.com.au/national/he-was-13-years-old-when-australia-locked-him-in-an-adult-prison-for-people-smuggling-20120519-1yxfc.html&gt;.

[95] Not his real name – As he is a juvenile his name shall remain private.

[96] Bassed, ‘Age Determination of Asylum Seekers and Alleged People Smugglers.’ (2012) 20 Journal of law and medicine 261; Daniel Flitton, ‘Smuggling Convictions Face Review’ The Age, 3 May 2012 <http://www.theage.com.au/opinion/political-news/smuggling-convictions-face-review-20120502-1xzf6.html&gt;; Australian Human Rights Commission, above n 92; Michael Gordon and Steve Butcher, ‘People-smuggling Case Against Indonesian Teen Dropped’ The Age, 2 December 2011 <http://www.theage.com.au/national/peoplesmuggling-case-against-indonesian-teen-dropped-20111201-1o98q.html&gt;; Michael Gordon, ‘People Smuggling: Boy’s Charges Dropped’ The Age, 14 December 2011 <http://www.theage.com.au/national/people-smuggling-boys-charges-dropped-20111213-1ot8h.html&gt;; ‘He Was 13 Years Old When Australia Locked Him in an Adult Prison for People Smuggling’, above n 94.

[97] Bianca Hall, ‘Long Wait for Smuggling Suspects’ The Age, 3 July 2012 <http://www.theage.com.au/opinion/political-news/long-wait-for-smuggling-suspects-20120702-21dda.html&gt;.

[98] Edwina Lloyd, ‘Submission to the Inquiry into the Treatment of Individuals Suspected of People Smuggling Who Say They Are Children’ (3 February 2012) 6 <https://www.humanrights.gov.au/sites/default/files/content/ageassessment/submissions/Edwina%20Lloyd%20(Submission%2029).doc>.

[99] Ibid 5.

[100] Ibid.

[101] Ibid 7.

[102] Ibid.

[103] Andreas Schloenhardt, ‘Migrant Smuggling and Organised Crime in Australia’ (The University of Queensland, September 2011) 5 <http://www.law.uq.edu.au/documents/humantraffic/migrant-smuggling/reports-presentations/Schloenhardt-Migrant-Smuggling-and-Organised-Crime-in-Australia-Sep-2011.pdf&gt;.

[104] Trafficking Protocol, art 3.

[105] Australian Broadcasting Corporation, ‘People-smuggling Accused “Victims of Smugglers”’, Lateline, 15 August 2012 <http://www.abc.net.au/lateline/content/2012/s3568842.htm&gt;.

[106] Trafficking Protocol, art 3.

[107] Australian Broadcasting Corporation, above n 105.

[108] Andrew Trotter and Matt Garozzo, ‘Mandatory Sentencing for People Smuggling: Issues of Law and Policy’ (2012) 36 Melbourne ULR 553, 561.

[109] Ibid.

[110] Trafficking Protocol, art 3.

[111] See, eg, Transcript of Proceedings (Sentence), R v Hasanusi (Unreported, District Court of Western Australia, 1365/2009, Fenbury DCJ, 21 April 2010) 2; R v Mahendra [2011] NTSC 57 (29 July 2011) 14–17 [27]–[32] (Blokland J).

[112] Trafficking Protocol, art 3.

[113] UNODC Human Trafficking and Migrant Smuggling Section, ‘Guidance Note on “abuse of a Position of Vulnerability” as a Means of Trafficking in Persons in Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime’ (2012) 2 <http://www.unodc.org/documents/human-trafficking/2012/UNODC_2012_Guidance_Note_-_Abuse_of_a_Position_of_Vulnerability_E.pdf&gt;.

[114] Ibid.

[115] Ibid.

[116] Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Canberra, 16 March 2012, 7 (Catherine Branson, President, Australian Human Rights Commission).

[117] Trotter and Garozzo, above n 108, 560.

[118] Martin and Schloenhardt, above n 65, 118.

[119] Trafficking Protocol, art 3.

[120] Ibid, art 3(b).

[121] Anne T Gallagher, The International Law of Human Trafficking (Cambridge University Press, 2010) 27 <http://ezproxy.lib.monash.edu.au/login?url=http://www.MONASH.eblib.com.au/patron/FullRecord.aspx?p=615782&gt;.

[122] Ibid 28.

[123] Ibid, art 3(c)

[124] Australian Human Rights Commission, above n 92, 7.

[125] Trafficking Protocol, art 3.

[126] Kadriye Bakirci, ‘Human Trafficking and Forced Labour: A Criticism of the International Labour Organisation’ (2009) 16 Journal of Financial Crime 160, 163.

[127] Ibid 164.

[128] See, eg, Transcript of Proceedings (Sentence), R v Mimin (District Court of Queensland, 1221/2011, Farr DCJ, 10 February 2012) 3–4 (between US$5000 and US$11 000); Transcript of Proceedings (Sentence), R v Tambunan (Supreme Court of Queensland, 184/2011, Byrne SJA, 15 April 2011) 2 (between US$ 5000 and US $15000).

[129] Transcript of Proceedings (Sentence), R v Hasim (District Court of Queensland, 1196/2011, Martin DCJ, 11 January 2012) 2.

[130] Migration Act 1958 (Cth)

[131] Ibid, s 233A.

[132] Ibid, s 233C

[133] Ibid, s 236B

[134] Martin and Schloenhardt, above n 65, 115.

[135] Australian Attorney-General, ‘Director of Public Prosecutions – Attorney-General’s Direction 2012.’ <http://www.law.unsw.edu.au/sites/law.unsw.edu.au/files/docs/attorney_generals_direction_director_of_public_prosecutions_act.pdf&gt;.

[136] Human Rights Clinic, ‘Human Rights and the Prosecution of Indonesian Boat Crew for “People Smuggling” Offences in Australia’ University of New South Wales, 23 October 2012 <http://www.law.unsw.edu.au/hrclinic/peoplesmuggling&gt;.

[137] See Trotter and Garozzo, above n 108.

[138] Ibid 566.

[139] Criminal Code Act 1995 (Cth)

[140] Ibid, 272.2(2)

[141] Julie Debeljak et al, ‘The Legislative Framework for Combatting Trafficking in Persons’ (Castan Centre for Human Rights Law, 9 November 2009) 17 <http://www.law.monash.edu.au/castancentre/projects/tip-workshop-background-paper.pdf&gt;.

[142] Criminal Code Act 1995 (Cth), 271.4

[143] Ibid, 271.4(1)

[144] Ibid, art 7.

[145] Ibid, 6(3)

[146] Ibid, 6(4)

[147] Ibid, 6(6)

[148] Teshome, above n 50, 68.

[149] Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling’, above n 20, 1001.

[150] Trotter and Garozzo, above n 108, 559.

[151] Hall, above n 97.

[152] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[153] Human Rights Law Centre, ‘Indonesian Fisherman Files First International Case Against Australia’s People Smuggling Laws’, 24 October 2012 <http://www.hrlc.org.au/indonesian-fisherman-files-first-international-case-against-australias-people-smuggling-laws&gt;.

[154] Bassed, above n 96.

[155] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

[156] Smuggling Protocol, art 9(1)(a)

[157] Andreas Schloenhardt and Kate L Stacey, ‘Assistance and Protection of Smuggled Migrants: International Law and Australian Practice’ (2013) 35 Sydney L. Rev. 53, 58–60.

[158] Ibid, arts 16, 19.

[159] Ibid, art 19(1).

[160] Ibid, art 3(a).

[161] Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling’, above n 20, 998.

[162] Barker, above n 34, 16.

[163] For example, in Australia, under section 261A of the Migration Act, people smuggler boats are automatically forfeited, and under section 185B of the Customs Act these boats are destroyed.

[164] Deterring People Smuggling Act 2011 (Cth)

[165] Migration Ac 1958 (Cth), s 228B.

[166] Hathaway, above n 4, 30.

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