could this be a solution to the boat people, page-14

People Smugglers Submission

This submission does not offer any opinion on asylum seekers attempting to come to Australia. It is assumed that people seeking refuge from persecution is a tragic occurrence that will continue. Rather, this submission suggests a method to disrupt what has become known as the “People Smuggler’s business model”. This submission addresses the Panel’s following Terms of Reference: source, transit and destination country aspects of irregular migration; short, medium and long term approaches to assist in the development of an effective and sustainable approach to asylum seekers; the order of magnitude of costs of such policy options.

Background

I have been retained as a defence lawyer in representation of a number of Indonesian people smugglers over the last year. Prior to this I worked in Indonesia on the issues of people smuggling and illegal fishing. I am fluent in Indonesian and conversant in several local dialects having worked in Indonesia for many years with several INGOs. I am the founder and a current director of World Assist.
Many of the clients I have represented have claimed to be under the age of 18. Australia’s policy is to repatriate such minors without imprisonment if the age of a minor can be proved. If not, they are sentenced to a mandatory five years in prison for facilitation and profiteering from people smuggling. Together with a colleague we successfully presented the first legal cases that challenged the issue of Indonesian minors in detention in Australia. A significant role in this has been to gather evidence in Indonesia of each client’s age by taking affidavits from family and village members as well as procuring official documentation. This precedent has served as a model adopted by most Australian legal practitioners working on similar cases.
Six of the clients have been from the Indonesian island of Roti and the Nusa Tenggara Timur region. My previous employment in this area has allowed me to utilise former contacts to efficiently visit and gather evidence. In appreciation of this ability the Australian Indonesian Embassy has granted me year long multiple entry visa to allow this work to continue unimpeded.

Imprisonment no Deterrence

While the younger fishermen clients wish to be released and returned to Indonesia, the preference of a number of older fishermen is to remain in detention in Australia. Depending on their jobs in prison, they can earn up to $20 per day making them wealthy beyond comparison upon their return to their villages after their sentence is served. They also receive free dental and medical services during their imprisonment. Combined with the relative safety of their work in prison compared to the dangerous work at sea, Australian imprisonment is very desirable.
While interviewing an Indonesian Muslim skipper accused of people smuggling, it was asked how the prisoner could justify wanting to plead guilty and stay in prison instead of attempting to return home to care for his family. He replied that it was his Islamic duty to provide the best he could for his family and this was best achieved by being in an Australian prison earning twice in a day what he could in a week of risking his life in Indonesia. He coined the analogy to being estranged from family while fortunes were made on an oil rig to justify his position.

Regional disincentive to cooperate

Despite agreements with Malaysian and especially Indonesian authorities to disrupt people smuggling operations, it would seem apparent that corruption endemic in these societies afford protection to key individuals behind such operations. This has been illustrated by numerous accounts of witnesses I have interviewed relating stories of people smuggling organisers bribing their way out of custody.
There has been a massive increase of patrols in waters of the Nusa Tenggara Timur region. However Indonesians I have interviewed have used an analogy to a plague of rats moving through a house to describe the movement of asylum seekers in Indonesia – “ If you don’t stop the rats, they will move on and are not your problem.” Formal acknowledgement of the presence of refugees in transit to their final destination of choice would invoke some responsibility of the government to deal with the refugees. The refugees are in almost all cases travelling on fake passports and don’t want to be bothered by the government. The government in turn does not want the problem of asylum seekers to become their own and so doesn’t bother these transiting refugees. Indeed there have been publicised accounts of poorly paid Indonesian Government officials benefiting from their cut of the people smuggling industry - hardly the conditions ripe for the disruption of people smuggling operations.
Focused Aid to Combat People Smuggling Recruitment
The approach of Australia claiming territorial waters beyond its share can be seen by simply glancing at a map. Resources of oil and fishing have been hotly contested in this region with Australia winning on both counts. Waters traditionally used by Indonesian fishermen and islands occupied by Indonesian grave yards have been resumed by Australia. The efforts of our government have secured what they thought at the time to be the best outcome for the national interests of Australia, by taking as many resources as possible for the Australian people.
Policy makers of the past could not have predicted that by depriving Indonesian fishermen of a livelihood, a valuable resource for people smugglers would be created. Indonesian fishermen catching less and less fish have the alternative now to supplement or replace their income from fishing with proceeds from transporting asylum seekers to Australia -an alternative that is becoming increasingly less of a choice and more of a necessity.
It is proposed that if Australia cannot return the territory traditionally used by Indonesian fishermen, it could assist the fishermen that can no longer utilise this territory for a living by modern means. Overseas Aid to these communities could thus provide a reciprocal benefit to Australia by providing alternative livelihood programs to fishermen less susceptible to the offers of unscrupulous organisers of people smuggling operations. This is not to detract from the overall significant and generous contribution AusAID makes to Indonesia, it is merely to suggest an additional focus with immediate benefit to Australia.
It is view shared by many colleagues that mandatory sentencing, by imprisoning and paying fishermen who earn money in jail, who in turn send it home to their impoverished families, has
produced a humanitarian result that has so far eluded Australian Aid contributions. While this practice has been discouraged to prevent profiteering from people smuggling, many prisons insist this is the prisoners’ right and continue to facilitate international telegraphic transfers to families in Indonesia.

Proposed Solution

It is clear that the mandatory sentencing provisions for people smuggling are actually providing incentive for Indonesian crew members to come to Australia. It is frustrating that the designed deterrent is actually serving to increase the number of SIVs coming to Australian shores. I have confirmed this situation by interviewing Indonesian prisoners in Australia and many of the fishermen in Indonesia, who corroborate this belief.
In researching a workable solution to the disruption of the people smuggler’s business model I have held extensive discussions with current and former members of the State and Commonwealth Departments of Public Prosecution, senior barristers, criminal lawyers and senior members of the Indonesian Embassy and Consulate over the last year. From this it has been suggested that a very simple way to deter these Indonesian crew members from coming to Australia would be to arrange a prisoner exchange agreement with Indonesia for all Indonesians sentenced on people smuggling charges. This would have the effect of sentencing the Indonesian smugglers to the mandatory five years imprisonment on arrival and immediately returning them to Indonesia where they must serve their sentence in an Indonesian prison. It has been expressed that the Indonesian Government would find it difficult to publically convey reticence in signing such an agreement that would see the repatriation of its own citizens.
Indonesian prisons are notoriously harsh. My enquiries among Indonesian fishing communities found that while some Indonesian fishermen had spent some time in Indonesian prisons, all were aware of the ruthless conditions there. From previous experiences of visiting Indonesian prisons, I know that the very basics such as food must be purchased by the prisoner’s own money and that without outside financial assistance prisoners can perish.
The execution of a prisoner exchange agreement alone would not stop the SIVs coming to Australia. Socialisation of the pending and completed agreement would serve to prevent Indonesians crewing these boats. Of this I am positive. The news of our assistance to Indonesian fishermen has spread throughout Indonesian villages and Australian prisons with incredible speed. Similar socialisation of an impending agreement that would see all convicted Indonesians sent to Indonesian prisons would provide the disincentive sufficient to break a fundamental link in the people smuggler’s business model.
Suggested Execution of Submission
It is respectfully submitted that this submission be presented to your present committee for further discussion. If deemed appropriate, socialisation of an impending prisoner exchange agreement could begin through networks we have already established. This could be used to gauge the success of the initiative merely by monitoring the number of SIV arrivals in the months following completed socialisation. If any significant decrease is observed, further discussion of a prisoner exchange may
ensue. If arrival numbers persist, the submission’s ineffectiveness would be determined with minimal cost or impact.
Entry by Australians into Indonesian fishing villages has been viewed suspiciously after past socialisation of Australian fishing regulations and anti-people smuggling campaigns have been perceived as Australians promoting Australian interests. However as a fluent lawyer renowned for helping Indonesian children out of Australian prisons I have been greeted with gratitude and trust by both villagers and the Indonesian Government. It is proposed that socialisation begin in these villages and its effectiveness be observed over the following months.
I thank you for your time in considering this submission and hope that it may be useful in some way to providing a solution to the issues under consideration by your Panel.

Kind Regards,
Anthony Sheldon BA (Asian International Studies) LLB (hons), MQLS

http://expertpanelonasylumseekers.dpmc.gov.au/sites/default/files/public-submissions/SheldonA.pdf