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Rudd’s tougher refugee line could criminalise humanitarian aid

Humanitarian aid is now in the firing line of the refugee debate in Australia’s electoral race to the bottom.

Last month the Rudd government put forward a Bill that among other things removed the “profit” motive from the offence of people smuggling. Under the Anti-People Smuggling and Other Measures Bill 2010:

persons who provide material support or resources to people smugglers may be found guilty of supporting the offence of people smuggling irrespective of whether they received financial or other material benefit.

Furthermore, Section 73.3A  added to the Criminal Code of the Bill states:

a person commits an offence if they provide material support or resources to another person or organisation and in doing so, aids the commission of the offence of people smuggling.

The penalty is imprisonment for 10 years or a fine up to $10,000.

In the Senate proceedings on May 13, Labor Senator Penny Wong said the Bill, passed on the same day, “is targeting criminal groups who are involved in organising and benefiting from people smuggling activities”.

Unfortunately, due to the unusually ambiguity of the wording — which has little other goal than leeway for political use — the Refugee Council of Australia voiced concern to the Attorney-General the legislation could criminalise the activities of aid organisations, humanitarian workers, charity and church workers and other individuals who assist persecuted populations seeking asylum for humanitarian purposes.

The removal of a test of benefit, combined with silence as to the type of explicitly criminal activities the Act is designed to address, presents two clear problems: the capricious use of these provisions to prosecute those who have acted only charitably and with innocent motive; and the increase in risk borne by humanitarian organisations whose well-meaning aid might easily be classified in retrospect as “material support”.

The lack of effort to protect people who may be inadvertently caught by this legislation is exacerbated by the fact that the term “material support” is not elsewhere defined in Commonwealth legislation and instead seems to have been casually cribbed from the United States Criminal Code.

For my community, the diaspora Tamils living in Australia, the threat of the new Bill is very real. Every one of us has been affected by the war in Sri Lanka, which last year saw the slaughter of up to 40,000 Tamils in Colombo’s brutal military offensive.

Post-conflict Sri Lanka has seen no attempt at a political solution to address the dignity and reasonable aspirations of its most disadvantaged ethnic group. Up to 90,000 Tamils remain imprisoned in Sri Lankan government-run military camps and there is a continuing witch-hunt for Tamils who had links or were part of the Tamil Tiger separatist movement. Tamil males between 18-45 are hot targets. Media and aid workers in Sri Lanka continue to be censored and sometimes kidnapped or killed.

For those who survived the 26-year civil war, the diaspora is the key support network in the slow and painful recovery. Only Australia is now being so callous as to classify all support as having potentially criminal consequences.

The Refugee Council has noted this Bill is inconsistent with Australia’s international obligations, in that it does not acknowledge asylum seekers have a lawful right to enter Australia for the purposes of seeking asylum. While much of the emphasis of our current deplorable debate around refugee policy seems to imply that boats coming to Australia are simply illegal immigrants, the truth is that fear and desperation are the most common motives, and asylum remains a critical part of the process of protecting the disenfranchised.

Crikey spoke to barrister and co-director of the Sydney Centre for International Law, Associate Professor Ben Saul, who said that even for the people recognised by the UN as refugees, only 10% will get resettled within a reasonable amount of time. He said:

It means the vast majority of asylum seekers worldwide need protection but can’t get it and the only way they can get it is by getting on a boat, paying a people smuggler and coming to a place like Australia. The problem is there are no solutions for people that need protection and that is driving demand for people smuggling.”

Fixing the root causes is not going to make the government look stronger in the face of growing dog-whistling by the coalition, so the smart political money is on a race to see who can be tougher on refugees. While we appreciate that the motives of people smugglers are rarely admirable, the plight of refugees shouldn’t be conflated with the business of those they are desperate enough to trust.

It would take a brave and honest government to seek to explain the principle of charity to the multitude of voters who claim they want strong action on boat people and actively fear the influx of refugees from troubled lands. Sadly, that principle seems to have been suspended by our otherwise overtly Christian political leaders.

In true post 9-11 politics style, the Australian government is going after anyone, even non-criminals, to look tough and in control. But the willingness to compromise international obligations, and labeling humanitarian assistance as a criminal act, goes against the innate instincts of humanitarian pragmatism. Like the freeze on the processing of asylum seekers from Afghanistan and Sri Lanka, this is just another show by the Rudd government and the coalition of their concern of politics over justice.

If it criminalises well-meaning humanitarian support, that will be lamentable. If its further consequence is to force the removal of aid from the most abused people on the planet, then that will be truly criminal.

* Brami Jegan is a visiting scholar at the Centre for Peace and Conflict Studies, University of Sydney and a refugee advocate.

9
  • 1
    jacksont
    Posted Tuesday, 8 June 2010 at 2:42 pm | Permalink

    How many people smugglers are actually caught and prosecuted by the Australian government, aren’t most of them clever enough to leave the boat loads of refugees drifting or cruising on automatic pilot inside Australian waters and escape back to Indonesia or Malaysia. Seems to me that this new legislation is nothing more than window dressing for Labor and Rudd to prove they are tough on boat people and for Labor to crack down on charities, churches and humanitarian groups who should be given medals for the work they do rather than prosecuted.

    This is totally disgraceful, not even John Howard went this far.

  • 2
    Liz45
    Posted Tuesday, 8 June 2010 at 5:21 pm | Permalink

    @JACKSONT - I agree! Most distressing isn’t it? And Rudd is supposed to be a christian? What brand I wonder? Same as Abbott’s and Pell’s and??? I think I just might have to ignore it all, or I’ll go mad! I went to a rally to support the people of Gaza last Saturday - what if we donated to cover costs or to send some essentials? I could find myself facing serious charges, when there’s not necessarily proven, that my money went ????I’m reading Mamdouh Habib’s book - not very encouraging I must say - scary in fact? Howard’s Anti-Terror Laws were pretty horrific if enacted - Rudd just goes one step further. Like Bush & Obama? Obama hasn’t closed Guantanamo Bay; there’s been more drones in his first months than Bush’s total, and the list goes on and on! As I said, depressing!

  • 3
    shepherdmarilyn
    Posted Tuesday, 8 June 2010 at 5:46 pm | Permalink

    There is also the matter of the people smuggling protocol that the government and opposition completely ignored - it forbids making it a crime to give refugees a ride or assistance.

    Do people even realise now that it will be much less of an offence to rape and hold prisoner a refugee than it will be to send them money to escape persecution?

    The government were told all that and ignored it all.

    And those Tamils who sent money to the LTTE got a good behaviour bond.

    Meanwhile the Taliban run amok.

  • 4
    Rena Zurawel
    Posted Tuesday, 8 June 2010 at 6:36 pm | Permalink

    What is the definition of ‘people smuggler’? When Howard/Ruddock introduced TPV visas and families were separated for years, there was no other option but to ‘arrange’ passage to Australia for close family members.
    A society is like an inflated baloon. If you press too much at one side - the bulk would appear on the other.
    For quite a number of people, traditional ‘smuggling routes’ were not necessary. One can easily ‘borrow’ a passport from the countries that do not need tourist visas to Australia. On arrival, one can lodge the application for a protection visa and send the ‘borrowed’ passport back. I am sure many Australians would do exactly the same under similar circumstances.
    But the people arranging lending passport would never be called people smugglers, because smuggling does not apply to travel by plane.
    Some people claim that one has to have heaps of money to pay the smugglers. Well, the cost of a ‘friendly’ passport and a plane ticket are much more expensive. But one usually avoids the detention.
    My concern is keeping innocent people in prison for years without trial.
    With ‘zero tolerance’ policy, lack of human factor in the decision process, as well as human error - many genuine people miss out.
    I am not naive to believe that all people coming to our shore are genuine people in need. But I am still naive enough to believe that the same yardstick should be used to measure the veracity of claims for all visa applicants… refugees or not.

  • 5
    Robert Garnett
    Posted Tuesday, 8 June 2010 at 6:40 pm | Permalink

    There is no race to the bottom. We are already there. The problem with Christianity is that it ended 2000 years ago when He died on the cross. He should have stuck around.

    Instead He left it to the disciples who have reincarnated themselves as the CEO’s of the mining companies. They have saved us from recession, they may even be able to stop the drought. God is glorious!

  • 6
    Liz45
    Posted Wednesday, 9 June 2010 at 12:10 pm | Permalink

    @RENA - I’m also concerned about detaining people for years in horrible detention centres. Some people, under Howard spent more time in detention (jail) than criminals do who commit crimes of rape, dangerous driving resulting in death, kidnapping, robbery and some other crimes - I haven’t even mentioned while collar crimes, like those NSW saw in recent yrs. People who are tax avoiders have to be very ‘unlucky’ to be jailed. The horrific shame of the mandatory detention is the injustice of being jailed for seeking safety, and the total lies, ignorance of all laws pertaining to the right to seek shelter etc, and last but no means least, the physical, emotional and mental damage done to those jailed, including babies in chn.

    Most states in Australia either don’t allow children to be with their mothers in jail, or if they do, it must cease after 1 yr. Imagine toddlers wandering around a jail? But, the Federal Govt ignores this, and the States (where the detention centres are) also ignore their own laws and recommendations regarding the rights and safety of children. They also ignore their own constant assertions re a child’s right to both parents in a loving and caring environment. We have laws that state, that even if a child can hear violence, they are victims of abuse - seeing tormented people self harm or acting out of anger and frustration obviously doesn’t matter? I find this repugnant, and I can understand why people like SHEPHERD MARILYN and PAMELA for instance get so irate and frustrated. They know the Laws; they’ve read them and are in constant contact with legal people; they know the govt/s don’t tell the truth, and they’ve been supporting traumatised people for years. Thank goodness for them I say!

    It’s been nearly 9 years since Tampa, and yet day after day, msm and others posting on these sites have not educated themselves, for one reason or the other. I suspect the main is, that they don’t want laws and protocols and advice from experts like Psychiatrists to interfere with their racist and right wing propaganda, which is also full of at best antagonism, and mostly hatred! The 40,000-60,000 of people in Australia at any time without a relevant visa(unlawful inhabitants?) are never even mentioned - just the less than 4% of applicants seeking asylum who arrive by boat! The mind boggles, and it’s very frustrating indeed! Even the recent Insight program didn’t emphasise this valid point. Hysteria over a couple of thousand people is a nonsense. 60 Minutes the other night certainly left no doubt in my mind, that our borders are not in danger - on the contrary, our borders are looked after very well indeed! It’s sadly, the poor, traumatised asylum seekers who could be in danger, by either being ignored by coastal patrols(which recently resulted in 5 deaths - they drowned) or by the treatment as criminals by authorities.

  • 7
    barrym
    Posted Thursday, 10 June 2010 at 9:58 pm | Permalink

    There is a simple solution. If you enter Australia without valid documentation you are deported to your last point of origin. No questions asked. Too bad, so sad. And before the dogooders rise up and cast me to the pits of hell, ask yourself - why do these people not have valid ID? They may come from areas of great turmoil but must have had some form of identification that can be confirmed? Why do they throw it away before they are intercepted?

  • 8
    Alexander Berkman
    Posted Friday, 11 June 2010 at 7:41 am | Permalink

    @BarryM -back to Bolty’s rant pages please

  • 9
    Liz45
    Posted Friday, 11 June 2010 at 1:36 pm | Permalink

    BARRYM - “And before the dogooders rise up and cast me to the pits of hell, ask yourself - why do these people not have valid ID?”

    One reason is, that in some countries, it’s a capital offence punishable by death to leave? Under Saddam Hussein for example? We allegedly invaded Iraq due in part to his cruel and dictatorial actions - those poor people who managed to escape arrived here only to be treated worse than many criminals are, by the Government committed to liberate them to democracy, freed from tyranny etc? Some display of hypocrisy I’d say! To hop down to the local Dept of Foreign Affairs etc in Baghad to obtain a passport to this country or any other, was not a viable option, unless you wanted to be dead - or worse! (I’d have thought that most people, almost 9 yrs after Tampa would know this?)

    During the Howard years, people who arrived with appropriate papers were judged not to be ‘genuine’ asylum seekers, and those who did not have any papers were judged also as not ‘genuine’ for the same reason! In short, they couldn’t win!
    The Laws that we’ve agreed to comply with, plus International Laws and Declarations clearly state, that a person should not be treated in a negative manner because they have no papers!

    It’s obvious, that you, thankfully have not had to flee for your life, and nor have I? I resent the “dogooder” term used by you and others in this country, as our govt leaders, business leaders, religious leaders and community leaders all proudly assert, here and overseas that this country is committed to democracy, fairness, justice, commitment to family and traditional values, the Rule of Law blah blah! We either abide by our high ideals, or we announce to the world, that from this date? we’re no longer upholding those values. Simple!

    Less than 4% of those seeking asylum come by boat - the other 96% arrive by plane. At any time there can be up to 40,000-60,000 people who’ve overstayed their visa, or to put it more bluntly, they’re here ‘unlawfully’? Where’s the hysteria over this? Could it be that most of these people speak Englisih and are Anglo-Saxon? Why aren’t they detained while they await their decision? They have access to all available legal opportunities - which I support!

    It’s an absolute nonsense to get hysterical over a very small number of people who are overwhelmingly judged to be in genuine need of protection. The ‘A Last Resort’ Report, that investigated the detention of children reported, that 92% of children from Iran, and 98% of children from Iraq were deemed to be in need of our protection - one would assume then, that their parents were too! Most of the people locked up on Nauru were also deemed to be genuinely in need of our protection, and yet Howard/Ruddick and Vanstone still kept them locked up in solitary confinement, either on Nauru or some other hell hole! Most of them are now living harmoniously in our community!

    Now BARRYM - Australia has committed itself to the UN Declaration on Human Rights, and the UN Declaration on the Rights of the Child. We re-submit our commitment to these on a fairly regular basis I understand. As I said before, if we don’t want or don’t intend to abide by these commitments, we should publicly say so, and cop the flack we’d rightly deserve! I’d strongly suggest, that such actions should bring about the arrest of our relevant government people, and they should be charged with crimes against humanity, among others!

    In comparison to the rest of the world, the small number of ‘boat people’ arriving here is miniscule compared to some other countries. The people in those countries can’t understand why we get so excited, almost ‘froth at the mouth’ over a few thousand people. It smells of racism and has a nasty zenophobic component - I find that personally repugnant! I personally know many people who came here as asylum seekers. I find them to be wonderful people who’ve contributed much to this country - perhaps more, as they’re so joyful for the opportunity to live, love, work and play, without fearing for their life; to be able to raise their children away from oppression and fear, and who gradually feel safe from being tortured, raped and executed- not because of any crime, just because they’re there!

    If we’re really fair dinkum about helping people in other countries remain safely at home, we should not invade their countries, kill their loved ones, steal their resources and destroy all or most of the important infrastructure, vital to life - such as water, sewerage, electricity, schools, universities, museums, artifacts, culture and peoples’ homes. These are part of the Geneva Conventions that we’ve also committed ourselves to, but we’ve contravened over and over in both Iraq and Afghanistan - to my great anger and shame!
    They’re on the Internet - you can look them up under the responsibilities of occupation forces! It certainly strongly prohibits the killing of (innocent?)civilians - Australia is guilty of contravening this law also!
    Something this “dogooder” finds reprehensible!

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