Australia's efforts to combat people smuggling cannot afford to be one-sided. Any attempt to address the issue must involve a genuine commitment to work with Indonesia. This must include targeting law enforcement in Indonesia, especially court prosecution.
The recent Houston report recommended that the Australian government prioritise bilateral co-operation on people smuggling issues with Indonesia. It highlighted three particular issues relevant to Australia-Indonesia relations, which were welcomed by the Indonesian government.
The first, an increase in the allocation of humanitarian resettlement places in Indonesia, is a welcome recommendation and one long overdue. The second, reform to Australian laws relating to minors and crew of unlawful boat arrivals from Indonesia and Australia, has rightly received a significant amount of attention. There are indications the Australian government is responding to this by reconsidering its position on mandatory sentencing.
The third, increasing co-operation in terms of joint border control, search-and-rescue efforts, and law enforcement, is equally important. This requires long-term commitment from Australia and Indonesia. Any efforts to increase the quantity and quality of such co-operation must take into account the challenges confronting law enforcement agencies in Indonesia. In particular, it must acknowledge Indonesia’s more recent efforts to combat people smuggling.
In July 2012, there were officially 1225 refugees and 5429 asylum seekers registered with the United Nations in Indonesia. The number of actual illegal migrants is likely to be far greater. Most asylum seekers who head to Indonesia intend to travel on to Australia by boat. Many do not register with the UNHCR as it is time consuming and chances for resettlement are slim.
The borders of the Indonesian archipelago stretch over 40,000 kilometres, presenting a huge geographical challenge to anti-people-smuggling efforts. There are particular hotspots for people smuggling that are more regularly policed, such as the main points to Australia being the southern coast of Java and East Nusa Tenggara. Due to tightened controls, the points of departure have shifted to alternative locations.
While Indonesian maritime police have the responsibility of policing the borders, patrols are expensive and there are not enough patrol boats or helicopters. There is also the practical reality that the maritime police are understandably reluctant to capture asylum seekers at sea due to high risks. They fear that they are ill-equipped and under-resourced to meet the potential violent reactions of large numbers of asylum seekers.
The Australian government has contributed to Indonesian efforts in the past, such as by providing three new patrol boats in late 2011. Few efforts, however, have gone into targeting law enforcement on land, including arrests by police as well as court prosecution. This is particular important because Indonesian authorities more often intercept people smuggling operations on land rather than at sea.
In the past, Indonesia did not have a specific criminal offence for people smuggling. Law enforcement agencies did, however, manage to prosecute a small number of people smugglers for different offences.
Since 2011, Indonesia passed a new immigration law that made people smuggling an offence. This reform is a significant step forward in Indonesia’s campaign to address people smuggling. It upholds Indonesia’s international commitments to combat people smuggling. The potential punishment is also severe, with a person accused of people smuggling facing up to 15 years jail.
There are no statistics available on the number of people based in Indonesia who are involved in people smuggling. Reports suggest that an average of 30-40 alleged people smugglers, mainly transporters, were arrested per year in the three years before 2011.
Since the new criminal offences have been introduced, the number of convictions for people smuggling has risen. Some of those arrested have been foreigners, including Australians, although most have been Indonesian citizens.
Many of the individuals convicted are only minor actors in the people smuggling operations, such as drivers, boat crews and temporary hosts. For every one convicted, there remains a large pool of impoverished fishermen eager to earn some cash and either oblivious to or ignorant of the risk of prison.
Efforts to address people smuggling in Indonesia must address the fact that people smuggling networks rely on the support of law enforcement agencies to turn the blind eye. It is an open secret that smuggling networks in Indonesia only exist due to collaboration with corrupt officers within the police, public prosecutor, military and immigration.
If law-enforcement efforts are to have full impact, the industry of corruption among government officials must be addressed. This includes convicting Indonesian government officials involved in facilitating people smuggling operations.
Indonesia has already received a large amount of financial assistance to support its anti-people-smuggling efforts. Efforts to boost the number of arrests of people smugglers must be genuine, rather than simply to validate Indonesia's image in the eyes of donors. In particular, trials of people smugglers must be prosecuted in a fair and impartial manner, with the public prosecutor seeking a sentence proportionate to the crime.
Indonesia's new people smuggling offences are still in its infancy in terms of implementation and enforcement. There is now the possibility of increasing convictions for people smuggling if incentives for law enforcement agencies are in place.
People smuggling operations present a significant challenge to Indonesia and Australia. Long-term commitment and co-operation on law enforcement is essential if this challenge is to be addressed.
*Antje Missbach is a McKenzie postdoctoral fellow at the Asian Law Centre, the University of Melbourne; Melissa Crouch is a postdoctoral fellow at the National University of Singapore