Is It Legal To Transport Asylum Seekers To Australia?

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Multiple Australian governments have tried to limit so-called 'illegal refugees' taking the dangerous sea routes to seek resettlement in Australia. One such vessel arrived in North Queensland today. The people smugglers that facilitate these journeys are breaking some laws but thanks to the obfuscation of details by the Australian government it's hard to work out exactly what penalties they face.

A people smuggling vessel arrive in North Queensland today. According to Home Affairs Minister, Peter Dutton, this is the first in over 1400 days although this claim cannot be verified as the government has given scarce information on these matters since 2013.

Before we get started it needs to be made clear that it is not illegal to seek asylum in Australia. Asylum seekers are classified as ‘unlawful non-citizens’ under Australian law but international law dictates that they cannot be punished for their mode of entry.

However these asylum seekers have been placed on indefinite off-shore detention in Manus Island and Nauru with no likely opportunities for resettlement.

People smugglers who take payments from these asylum seekers and attempt to transport them across international borders are in breach of Section 73 of the Criminal Code Act 1995 which states:

A person (the first person) is guilty of an offence if:

(a) the first person organises or facilitates the entry of another person (the other person) into a foreign country (whether or not via Australia); and

(b) the entry of the other person into the foreign country does not comply with the requirements under that country’s law for entry into the country; and

(c) the other person is not a citizen or permanent resident of the foreign country.

Convicted people smugglers face 10-20 years in prison per offense. Over 500 people smugglers faced such charges between 2008 and 2013.

Data on how many people smugglers have reached Australian shores is scarce as the government has stopped releasing any figures while blocking freedom of information requests under national security concerns. Other related information is typically not disclosed due to a policy of not commenting on "on water matters".

Current government policy - implemented by then Immigration Minister, now Prime Minister Scott Morrison - requires Operation Sovereign Borders to turn back the boats. This policy makes the current Australian criminal sanctions unlikely to apply to any people smugglers.

How this policy is implemented, how many boats are turned back and what penalties (if any) are applied to people smugglers by the Australian government is largely unknown.

Indeed, claims have been made that the crews of these vessels have been paid by Australian government officials to turn back. (The Australian government has denied these claims.)

Australia's policy of turning back the boats has earned it the condemnation of the international community. Similar policies by Malaysia, Indonesia and Thailand have since been discontinued.

So if boats are being turned back from Australian waters, what penalties could people smugglers face?

Any boat that is turned back is likely to face criminal sanctions in their country of origin. Neighbouring countries, including Indonesia, have their own laws against people smugglers.

Under Indonesian law, people smugglers face between five and fifteen years imprisonment. There are laws that target corrupt government officials and other people that facilitate people smuggling yet the majority of the people convicted are the boats crews..


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