People smugglers arrested for delivering people to Australian shores are predominantly Indonesian fishermen, who had their fishing grounds taken from them by Australia in 1989. Since then we have vigorously pursued them, often burning their boats and jailing them or holding them for months without charge.

It is the strangest example of “extreme green” policy shared by Labor and Coalition governments —  to jail Indonesians for fishing where Australians barely fish anyway. This is especially so given the Montara oil spill in 2009 that also wrecked much of what Indonesia’s West Timor fishing grounds that were not annexed.

As Ruth Balint points out in her book Troubled Waters, Indonesian “illegal fishermen” are charged with state offences. This is to circumvent the International Law of the Sea, to which Australia is a signatory, which prohibits the jailing of fishermen for fisheries offences. To do this, they are jailed for failure to pay fines, under state law. Legal representation is rarely provided. People smuggling is a criminal offence under federal law and guarantees legal representation. Fishermen charged with people smuggling also get credit for time already spent detained for people smuggling offences — but not for fisheries offences.

Australia’s overzealous regulation of Indonesian fishermen, after the declaration of the 200-nautical mile EEZ in 1989, is legend.  They could use no technology post the 1860s. Without motors or a GPS s or even modern safety gear, they could only fished in one “boxed area”.  This has created misery for thousands of Indonesians reliant on small catches for food and a living and saw hundreds of others lost at sea in storms or arrested since. It has also driven an industry of many contractors joining in with the Australian Navy catching and detaining them — an industry that now predominantly targets “people smugglers”. But clearly these unemployed fishermen are more like victims. For the most part illiterate in terms of reading and writing, they are very literate in the ways of the sea, which makes them a “commodity” for those who profit from people smuggling.

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As Balint states:

“For the asylum seekers, the Indonesian crew were the last link in a long, arduous journey. After paying between $5000 and $10,000, those fleeing Afghanistan or Iraq generally flew into Malaysia or Jakarta, where organisers or middlemen arranged for their transport to an eastern Indonesian port. Rote, Java, Bali, Lombok, Flores, Alor and Buna were common departure points for boats to Ashmore reef and Christmas Island. Fishermen were offered sums of, on average, $200, … as little as $60 …

“as the operations got larger and the boats bigger and less seaworthy, the make-up of the crews changed too. Often they included only one or two experienced seamen with the rest made up of young men or boys who had never even been to sea before.” (pp 144)

Though published in 2005, little has changed since:

In April this year, Natasha Griggs, the federal member for the seat of Solomon in Darwin, seized on news that five years ago more than 350 boats were caught fishing illegally in Australia’s northern waters but just six for people smuggling. This year, just 11 illegal fishing boats were caught. Griggs says 80 boats have been caught people smuggling. She says the tough stance of the federal government against illegal fishing has indirectly made the people smuggling problem worse.

“The figures clearly indicate that there has been a change of illegal fishing to people smuggling,” she said.

“There is more money for these people in people smuggling than there is in fishing.”

The federal member failed to identify who the actual people smugglers were — that those who organise the transport of people and get paid the top dollar are not those in jail.  She also did not make it clear that these fishermen had their fishing grounds “annexed” by Australia that now barely fishes them.

But now Australia is jailing Indonesian children too. From the ABC News website’s article “Child casualties in the war against people smugglers” by Hagar Cohen and Rebecca Henschke, October 29, it states:

“… Of the 500 people arrested, a disturbing number are children. They are boys from Indonesian fishing villages who are recruited to work as cooks and deckhands on asylum seeker boats. It is official policy not to charge children caught in this situation — they are supposed to be deported. But it is thought there may be as many as 40 Indonesian boys in jails in Australia.

“One of these people is a 16-year-old boy named Ardi.

“… He spent one and a half years in custody before his lawyer managed to obtain enough evidence to prove Ardi was a minor.

“He was then transferred from an adult prison to an immigration detention centre in Darwin, and from there he was supposed to be sent home.  But Radio National’s Background Briefing program has discovered that almost two months later, Ardi was still in detention, despite having no charges against him …”

The idea that any of these Indonesian fishermen and children would have a “business plan” is nonsensical but it remained almost unchallenged and an accepted part of the political dialogue in the debate on the Malaysian Solution. It appears that the bureaucracy, politicians and even academics are confused as to just who people smugglers actually are and seem content to jail the skippers and crews of these boats as a salve for their own confusion. Skippers and crews, as Balint points out, who are often threatened by the desperate people they are transporting.

Indeed, the idea that Indonesian fishermen are such a threat to the marine environment that we should spend multiple millions of dollars annually pursuing and jailing them was equally nonsensical.

Despite the fisheries legislation imposed in the early 1990s in Australia and elsewhere, these fish are not private property; yet Australia since 1989 has patrolled its northern waters seeking out illegal fishermen like they are horse thieves or cattle rustlers. We have corralled them from Ashmore Reef and Cartier Island by declaring these areas — where their ancestors are buried — marine park no-take zones.  Yet they are adjacent to large areas to be opened for oil exploration and they were likely impacted by the Montara oil spill in 2009.

To open up the Arafura Sea to fishing again, to be jointly managed by Indonesia and Australia, would make people smuggling far more difficult.  It would also offend hundreds of Australian marine conservationists and cost contractors for surveillance, and private prisons, a lot of money. Who cares?