Indonesia’s Foreign Minister Retno Marsudi has asked the Australian government to provide information on the allegation from an Indonesian mariner that he and five others intercepted at sea by the Australian Navy with a boatload of refugees received US$5,000 each from an Australian government agent to return the refugees to Indonesia waters and to undertake never to engage in people trafficking again. Two Australian government ministers have denied the claim but Prime Minister Tony Abbott has refused to do so. Abbott has used the line that it is government policy not to comment on “operational matters” when it comes to his government’s efforts to stop the boats. It is his government’s view that Australia should take all measures possible to stop the boats. One presumes that “all measures possible” need to be consistent both with not breaching the law as well as upholding of the law.
Abbott may be refusing to comment in order to draw out his opponents and have them make a fool of themselves by prematurely believing the allegations without confirmation. Yet his silence also raises the question of whether he may have authorized such payments without the knowledge of his fellow Cabinet ministers. Whatever the reason, there are good reasons for a clear yes or no from the prime minister. A denial would not in any way compromise the goal of stopping the boats.
Under Australian law, the six Indonesian mariners appear, on the face of the information, to be in possible breach of Australian law making it an offense to engage in “people smuggling,” which carries a penalty of ten years imprisonment under the Migration Act 1958 (as amended). Under the Anti-People Smuggling and Other Measures Act 2010, if the action endangers the safety of the victim, is a crime with a penalty of up to 20 years imprisonment. They may also be in possible breach of the law that criminalizes people-trafficking, specifically Section 271.2 of the Criminal Code Act 1995 (as amended). A person “commits an offense of trafficking in persons if” he/she “organizes or facilitates the entry or proposed entry, or the receipt, of another person into Australia,” and if that action involves deception and the deception obtains the acquiescence of the victim (presumably the victims were deceived as to their likely fate on arrival.). There is information that the boat was headed for New Zealand, but this is open to speculation and is not relevant to the possible charge of people trafficking. The penalty is imprisonment for 12 years. If five or more people are involved, this would be an aggravated offense punishable by up to 20 years.
In 2012, in circulating amendments to the Criminal Code Act, the previous Australian government observed that people trafficking is “amongst the most abhorrent of all crimes” and is among “major violations of human rights.” It said Australia was committed to combating all people trafficking, “including by ensuring that our strong regime of criminal offenses remains relevant and responsive to emerging issues.” Of some note, Australian law distinguishes between “people smuggling” and “people trafficking” as discrete offenses. The distinction is important in proving stiffer penalties for the latter, which is understood as involving deception or exploitation of the victims, and putting their security at risk.
One question raised in my mind if the alleged payment of six people smugglers by an Australian government agent turns out to be true is whether the agent (or agents) may themselves have supported the crime of people smuggling, and therefore broken Australian law. Section 73.3A of the Anti-People Smuggling and Other Measures Act 2010 provides the following definition for the offense of supporting of people smugglers: if “the support or resources aids the receiver, or a person or organization other than the receiver, to engage in conduct constituting the offense of people smuggling.” A second question is whether, in dealing with these six Indonesian mariners (and others) involved in people smuggling, Australian officials have a duty to apprehend them (not pay them or tow them away).
Does Abbott regard people smuggling as an abhorrent crime that needs to be prosecuted to the full extent of the law of all civilized countries? Or does he believe we should gift people smugglers with inducements of money rather than prosecute them? As long as he is prime minister, we can only assume it is the former that applies.
If, however, he has personally approved a payment to people smugglers, then he would have broken the two sacred laws of covert operations. The first law of covert operations is that in authorizing otherwise illegal activity, a prime minister must always ensure that he/she maintains plausible deniability. In this case, if the claims are confirmed, plausible deniability would appear to have been lost. The second law of otherwise illegal covert operations is that whoever approves them must be willing to accept the political and legal costs of doing so if discovered. People smuggling is a crime. Supporting people smugglers rather than apprehending them is a crime under Australian law, especially in a situation where the personal safety of the victims at sea could not be ensured. A prime minister and any officials who paid people smugglers might be guilty of a crime. Regardless of any immunity from prosecution of certain classes of officials in Australia in such a case, depending on the circumstances, a prime minister authorizing such an illegal act might not be immune either from prosecution or public outrage for supporting the abhorrent practice of people smuggling.
The Abbott government is claiming that it cannot comment because, as a matter of policy, no Australian government comments on matters of intelligence and national security policy. But it needs to realize that this is the Richard Nixon defense. As Tricky Dicky, the essential national security president, learned to his shame, the claim to national security as a reason for not discussing something can never be a legal or moral defense of any and every action. Abbott’s statement that it is his duty to stop the boats “by hook or by crook” (the Nixon error at its core) may be one that he lives to regret.