Michael Gordon | The Age | February 8, 2012
Greens senator Sarah Hanson-Young wants to stop hundreds of so-called Indonesian people smugglers from serving mandatory five-year terms in Australian jails. As Michael Gordon reports, the treatment of small-time players has big consequences.
Budi was waiting for a bus in Jakarta when he says a stranger made him an offer that was too good to refuse - 10 million rupiah (about $A1000) to crew a boat that would take a group of people to an unnamed island.
He was 19 years old, uneducated and a long way from his home on the Indonesian island of Ambon. Another man at the bus stop was offered the same deal and, like Budi, agreed without a second's hesitation. The only catch, they were told, was that they wouldn't get paid until they came back with the boat.
What neither of them understood was that there was never any chance that the boat would make the return journey, or that they would receive the payment. What neither could envisage, or even vaguely comprehend, was that they would wind up in an Australian jail facing a serious criminal charge with a mandatory five-year jail term.
Budi, not his real name, is an accidental people smuggler, if you accept that cooking noodles and keeping the engine going on an unseaworthy fishing boat for a group of desperate asylum seekers constitutes people smuggling. He is one of about 500 Indonesians in the Australian criminal justice system who share a common bond.
Almost all of them, according to what they have told lawyers, Indonesian officials and Australian Federal Police, are peripheral players in what, for a few Mr Bigs (who never accompany their human cargo to its final destination), is a lucrative business.
It is a sad reflection of the toxic debate between Labor and the Coalition on asylum seekers that one of the few areas of common ground is their support for legislation that denies judges any discretion in sentencing those who crew boats that carry asylum seekers to this country.
Under amendments passed by the Rudd government with Coalition support, so long as there are more than five people on the boat, crew members are charged with aggravated people smuggling and, if found guilty, sentenced to a mandatory term of five years in jail, with a minimum of three.
Today, Greens senator Sarah Hanson-Young will challenge the consensus of the major parties by introducing a private member's bill to remove mandatory minimum sentences for people-smuggling offences, and enable the courts to distinguish between the architects of the trade and the incidental players.
While Hanson-Young's Migration Amendment (Removal of Mandatory Minimum Penalties) Bill would appear doomed, it will prod the conscience of MPs on both sides of the Parliament who agree with human rights advocates and judges that the mandatory jail terms for those who crew asylum seeker boats are problematic, to say the least, on several fronts.
First, is the impact on the individuals concerned, which has prompted no fewer than 10 judges to describe the mandatory penalty as unnecessarily ''harsh'', ''severe'' and out of line with sentencing requirements in all Australian jurisdictions.
Aside from the effect on the 200 Indonesians who have already been sentenced and more than 200 now before the courts, is the impact on their families. Almost invariably, the person in jail is the main breadwinner of his family and, with him out of play for up to five years, the pressure is on siblings or offspring to leave school and help eke out a living. Poverty is compounded.
Sarah Westwood is one of the lawyers from Victorian Legal Aid, the organisation that represents accused in this state who face serious charges and have no assets or income. She is representing several of the more than 50 Indonesians who are now imprisoned at the Metropolitan Remand Centre awaiting trial.
''They are, without exception, extremely anxious about where they are and the fact that they can't help their families,'' Ms Westwood tells The Age. ''When we talk to them about the mandatory minimum sentence they face if convicted, they are inconsolable.''
Apart from the language barrier inside the prison are a host of logistical challenges, from being strip-searched before and after being visited, to the lack of rice in the prison diet, to the cost of phone calls to families in remote locations, where mobile access is costly and often hit and miss.
Those awaiting trial are able to earn around $30 a week working in prison industries or in the kitchen, the laundry, the garden or as cleaners. But this can be spent in a single call home. Some are so desperate for rice, which is only rarely served in prison meals, that they spend some of their earnings buying it at the prison canteen. Others want to send the money to their families, and officials say they are working to make this easier.
Wirawan Kartono, the Indonesian vice-consul in Melbourne, is a regular visitor at the remand centre. ''They feel depressed and they question to us why are they being held,'' he says. ''We try to explain that what they did was illegal, but they say they didn't know it was illegal. They say they were asked by someone (to crew the boats) and, when the boat was at sea, that person always had some reason to leave the boat.''
This raises the second troubling aspect: the question of whether the mandatory terms are, as Attorney-General Nicola Roxon maintains, worthwhile as ''part of our armoury'' in deterring boat arrivals.
During a recent inquiry by a Senate committee, several parties argued there was no evidence that locking up impoverished Indonesians had done anything to stop the boats, not least because the supply of young, gullible and desperately poor males like Budi across an Indonesian archipelago with a population of 245 million is unlimited.
In a concession to this view, the committee recommended that the Attorney-General's Department review the operation of people-smuggling offences ''to ensure these offences continue to effectively deter people smuggling''.
In the meantime, there is a strong case in logic that the approach does nothing to promote a regional solution on asylum seekers. ''We hear a lot about the need for regional co-operation, and what I see is anything but that,'' says Senator Hanson-Young. ''There seems to be no evidence of genuine co-operation and, if anything, we seem to be shooting ourselves in the foot.''
While Indonesian officials stress their respect for Australia law and their determination not to interfere in our system of justice, they make plain their concern for citizens who, in many cases, are as much victims of the trade and the asylum seekers.
''We are very much concerned about hundreds of Indonesian nationals, including possibly minors, held in Australia suspected of people-smuggling ventures,'' says Andalusia Tribuana Tungga Dewi, head of consular affairs at the Indonesian embassy. ''We are all aware that most of them do not have major roles in the boat, as in reality they are victims of the real smugglers. The involvement of our nationals in people-smuggling activities was also mainly pushed by poverty.''
Indeed, of more than 350 people charged with people-smuggling offences by March last year, only six were considered organisers. This highlights another area of contention - the removal of any ability by the judge to factor in individual circumstances when sentencing those found guilty of aggravated people smuggling.
''Mandatory sentencing is the antithesis of judicial discretion,'' is how Michael Rozenes, the Chief Judge of the County Court, puts it. ''All judges that I know of are opposed to it. Full discretion is the most satisfactory way of running a sentencing regime. Mandatory sentencing attacks the fundamental principles of judicial independence and judicial discretion in sentencing.''
Catherine Branson, president of the Australian Human Rights Commission, says the need for judicial discretion is all the greater because ''there is reason to think it is vulnerable people with very limited involvement, if any, in people smuggling who are the ones that face the charges''.
A former Federal Court judge, Ms Branson says it is well known that the crews on boats carrying asylum seekers are often larger when they leave Indonesia than when they arrive in Australian waters. ''There is reason to believe that the explanation for this is that those with the greatest culpability and involvement in the organising of the people smuggling are the ones who get off and return to Indonesia - and are not there to be detained by Australian officials,'' she says.
Mandatory sentencing also has a bearing on another issue that should weigh on the minds of policymakers - the impact of so many trials on a justice system that is always under strain.
As Chief Judge Rozenes points out, the certainty of a five-year jail term takes away any incentive for the accused to plead guilty, which means cases are more likely to go to trial (and, because of the need for interpreters, trials are likely to take longer).
In Victoria, 56 Indonesians are being held at the Metropolitan Remand Centre and the Port Phillip Prison and 27 trials are scheduled in the County Court, taking the equivalent of two judges out of play for six months.
''We operate on the basis that somewhere between 70 and 80 per cent of our accused in the general criminal list will plead guilty, so the system operates on the basis that you only trial about 20-30 per cent,'' the Chief Judge explains.
''In these cases, I suspect, and remember we've had no experience to date with mandatory sentencing in this court, most people will take their chances and have a trial. In other words, there is no inducement for people to plead guilty.''
Mr Rozenes says he is confident that his court can manage the additional workload without adversely impacting on other cases. But he adds: ''I would be concerned if this was an ongoing exercise without additional resources.''
A final area of concern is the reality that many of those who have been arrested are children. More than 100 minors have been returned to Indonesia, many of them after pro bono lawyers took the trouble to travel to their villages and obtain proof of their ages. In one case, it was established that a boy was 14 when he was apprehended, yet he spent 21 months in immigration detention and prison before the Commonwealth Director of Public Prosecutions discontinued proceedings and he was allowed to go home.
According to the Indonesian embassy, about 25 of those now in custody - in jails or immigration detention centres - maintain they are under 18, including one who is in immigration detention in Melbourne. Brisbane lawyer Mark Plunkett, who first demonstrated that children were being imprisoned with adults, is about to return to Indonesia to gather evidence that another who is serving the five-year term is, in fact, a boy.
Mr Plunkett believes the refusal of Australian police to obtain evidence of suspects' ages by travelling to Indonesia with the consent of Indonesian authorities and the reliance of police on discredited wrist X-rays to determine the age of suspects should be the subject of a royal commission.
''What we have seen in these cases is all the ideals of a civilised society - reason, evidence, morality and logic - thrown out the window,'' he tells The Age.
In the absence of a royal commission, the Human Rights Commission is investigating the treatment of those who say they are children, and focusing on the reliance of police on wrist X-rays that have been shown to be anything but reliable.
Victoria Legal Aid has urged the inquiry to recommend that the Crown, rather than defence lawyers, should bear the onus of proving an accused is 18 or older, that time limits should be introduced for bringing charges against boat crews, and that compensation should be paid to children who have been detained for lengthy periods before charges were withdrawn.
While a spokesman for Ms Roxon declined to respond in detail to the arguments outlined above, he told The Age: ''In addition to tough sentencing, our deterrents include, for example, communications campaigns in Indonesia that aim to educate locals about the risks of getting involved in people smuggling and the offences that apply to people smugglers. The government keeps a watching brief on all our deterrence methods.''
In the meantime, the ordeal continues for Budi and the others awaiting trial. One of them, we will call him Agus, breaks down when he talks through his lawyer about his wife's struggle to feed their three children. The youngest, he recently discovered, is suffering a form of paralysis and can't sit up.
Agus says he is ashamed because his wife has told him that their neighbours are helping to feed his children. He has heard that the other children in the village are making fun of his kids, saying they've got no dad and no money.
Budi's distress is exacerbated because he hasn't been able to speak to his parents for two months. He is worried about their failing health and the 15-year-old brother he was supporting through school before he said yes to a stranger at a Jakarta bus stop.
''I'm the mainstay, but I'm not there to help,'' he says