By Cindy Trinh
Impunity Watch Reporter, Oceania

DARWIN, Australia – Judge Dean Mildren for the Northern Territory criticizes the laws that forced him to sentence two Indonesians to five years in jail for smuggling asylum-seekers. Judge Mildren stated that he would have preferred to give the two Indonesians a lesser penalty.

Australia has struggled over the increasing number of boat arrivals with people from war-ravaged countries seeking asylum. Boat crews usually comprise of poor fishermen who are approached by trafficking organizers and given lucrative fees for smuggling people. The organizers are rarely caught themselves, and the fishermen suffer the consequences.

On October 23, 2009, Mohamad Tahir and Beny pled guilty to smuggling asylum-seekers on a boat. The two Indonesians are only 19 years of age. They were both charged with illegally bringing five or more people into Australia.

Tahir and Beny were crew members aboard the boat SIEV 36. The boat was apprehended by the Australian Navy on April 15. The boat was heading towards Christmas Island, but exploded and caught fire near Ashmore Island, killing the five asylum seekers and injuring more than 40 people.

At the Northern Territory Supreme Court in Darwin, Tahir and Benny both admitted their guilt. Tahir appeared on the dock, and stated: “Yes I am guilty of bringing people who have no lawful right to come to Australia.”

The Court also heard testimony that the two Indonesians were from “poor fishing families and had acted out of financial hardship when they were approached to carry asylum-seekers to Australia. Both had been approached by older men and offered $560 to smuggle the five asylum-seekers. Both are also illiterate.

Judge Mildren sentenced Tahir and Beny to five years in prison. However, he stated that he was “forced to sentence the pair to five years in prison with a non-parole period of three years, because of the mandatory minimum sentencing policy introduced by the Howard government” and that the time the two Indonesians would spend behind bars was “greater than the justice of the case.”

Judge Mildren emphasized that he would have imposed a lower sentence if there was not a mandatory minimum sentence of five years, specifically because the two men were poor and had little education. He further commented that “[i]n cases such as this, the ordinary sentencing principles play no function.”

According to the law, the men must serve at least three years of their term before they are eligible for parole.

Judge Mildren recommended to the federal Attorney-General to consider releasing the men after 12 months because of their young age, poor financial status, and if they assisted the authorities to track down the traffickers they were approached by.

For more information, please see:
The Australian – Jail term “excessive” for people-smugglers – 29 October 2009

ABC News – People smuggling: judge irked by sentencing laws – 28 October 2009

The Jakarta Post – 2 Indonesians sentenced to 5 years for people smuggling – 28 October 2009

PerthNow – SIEV 36 crew jailed after fatal people smuggling trip – 28 October 2009

Townsville Bulletin – Two from fatal people smuggling trip jailed – 28 October 2009

Words News Australia – Two Indonesians plead guilty to people smuggling – 23 October 2009

By Eileen Gould
Impunity Watch Reporter, Oceania

CANBERRA, Australia – The Australian government will increase the capacity of a Christmas Island detention facility as a result of the increase in the number of individuals seeking asylum.

As a result of the government’s plans, the detention center, which will cost approximately $40 million, will be able to hold more than 2000 individuals.

The government believes that it is necessary to increase the number of beds by approximately 50%.

It will continue to expand the center as space is needed and remains committed to a policy of mandatory detention for all unauthorized boat arrivals.

Christmas Island officials claim that careful planning of the expansion will be necessary to ensure human treatment and avoid overcrowding.

While the government claims these plans are an effort to cope with the influx of asylum seekers over the last few months, opposition officials have a different view.

They claim this is evidence of the administration’s failing immigration policies.  Expanding the capacity of detention facilities is not the answer, they claim, but rather the government must strengthen Australia’s immigration laws.

“[The Prime Minister’s] policy was a failure, it’s in chaos and it’s a shambles,” opposition leader Malcolm Turnbull stated.

Over the last several months, these policies have sparked bitter debate.  Prime Minister Kevin Rudd claims that the influx is the result of the current situations in countries such as Afghanistan and Sri Lanka.  The opposition, however, claims that the Rudd’s relaxation of the severe immigration policies inherited from his predecessor is at the root of the problem.

Rather than applying to the UN Refugee Agency, many asylum seekers will travel to Australia illegally by boat, which is encouraged by the administration’s lax policies.

This debate rages onward as seventy-eight Sri Lankan asylum seekers remain aboard a ship in waters just off one of the Indonesian islands.

Neither the government nor the asylum seekers are budging on their positions.

The asylum seekers indicated that they were being treated well but refused to disembark unless the ship went to Australia.

Indonesia will allow the ship to remain there for another week.

For more information, please see:

ABC News – Detention centre expansion ‘proves policy failure’ – 31 October 2009

ABC News – Detention centre expansion confirmed – 31 October 2009

The Age – Christmas Is detention centre to expand – 31 October 2009

BBC News – Australia to expand asylum centre – 31 October 2009

By Cindy Trinh
Impunity Watch Reporter, Oceania

ADAMSTOWN, Pitcairn – The Governor of Pitcairn, George Ferguson, announced that the island is considering a new draft of the constitution because there is a need for human rights to be “spelled out.” The current constitution was enacted in 1970. Since then, there has been a need for a document to include provisions regarding human rights. The new constitution would replace the 1970 constitution.

In June 2009, Britain called for the democratic reform of Pitcairn. The reform of Pitcairn was to bring the island in accordance with European standards of governance and human rights.

New management structures were implemented, such as the election of the mayor as the leading governmental authority on the island, and giving the mayor a council, which is divided into four managers. By updating the judicial structure of Pitcairn, Britain hoped this would give the citizens more rights that are guaranteed under the European Convention on Human Rights.

However, not everyone on the island agrees with the new structures. Some of the islanders voiced their dismay at the changes to the island’s governance.

In a commentary to the changes in Pitcairn’s governance, the director of the Pitcairn Islands Study Centre in California, claimed that “Britain wanted to give the impression it was giving its overseas territories greater freedom in deciding their own future, when it was not.”

He further stated: “They have too little freedom to live their lives according to the best interest of the island itself. Everything is looked at through the eyes of a Britisher who has been appointed from London, sits 4000 miles away from them and really doesn’t understand all the problems on this island.”

In response to the opposition of the reform, Ferguson now hopes to draft a constitution that will include a state of rights based on the European Union Convention on Human Rights. He also hopes to create a post of the Attorney General and to define the Governor’s role.

But the main focus of the new draft would be the “explicit setting out of people’s rights.” Ferguson hopes that the new constitution will serve as a document that “spells out” human rights.

In explaining why the new draft is needed, Ferguson stated: “We have recently done legislation very much with the principles of the Convention of Human Rights in mind, and we are pretty confident that we are broadly compatible with it. But it seems right to make the powers explicit, enable people to have the power to challenge legislation or administrative things in terms of those rights – make it an explicit power, rather than just self discipline on the part of the Government…”

For more information, please see:
Islands Business – New Pitcairn constitution to spell out human rights – 28 October, 2009

Pacific Islands News Association – New Pitcairn constitution to spell out human rights – 28 October, 2009

Radio New Zealand International – New Pitcairn constitution to spell out human rights – 27 October, 2009

Australian Broadcasting Corporation: Radio Australia – Big changes in Pitcairn government – 19 June, 2009

The New Zealand Herald – Democracy reform for Pitcairn – 18 June, 2009

By Eileen Gould
Impunity Watch Reporter, Oceania

CANBERRA, Australia – The United Nations Special Rapporteur on the right to health is expected to review Australia’s immigration policies amid increasing international scrutiny.

Anand Grover will inspect detention facilities in Villawood and Brisbane, but not those at Christmas Island, when he visits Australia next month and will report back to the UN Human Rights Council and the General Assembly.

Grover’s visit does not necessarily signify the existence of “shocking human rights violations”, according to a representative of an Australian human rights group, the Human Rights Law Resource Centre.

International concerns about Australia’s procedures for intercepting boats and processing asylum seekers has also prompted Human Rights Watch, an international organization, to take a closer look at Prime Minister Kevin Rudd’s policies.  This will be the first time since Rudd’s election in 2007 that the organization has decide to undertake an independent assessment of the Government’s policies.

In the past, Human Rights Watch was known to be highly critical of the Howard government’s policies concerning asylum seekers and temporary protection visas and issued “scathing criticisms” thereof.

Human Rights Watch is not the only group to express its concern with the Rudd administration’s treatment of asylum seekers. Several human rights lawyers and groups, including Amnesty International’s local branch, disapprove of processing these individuals in Indonesia as it has not yet ratified the UN Convention on Refugees.

The UN’s visit comes as the Government is attempting to win a $13 million bid for a seat on the Security Council.  Australia is currently working to improve its diplomatic relations and reputation through various policy initiatives, including increased foreign aid, ratifying various international treaties and becoming more involved in regional issues.

Those in opposition to Prime Minister Rudd’s policies claim that he is “damaging Australia’s reputation”.

On October 26th the Australian Human Rights Commission issued a report, which outlines the Government’s policy on immigration detention and processing at Christmas Island.

The Rudd Government affirms its commitment to a policy of mandatory detention for all “irregular maritime arrivals” while processing claims and subjecting these individuals to health, security and identity checks.

Further, it maintains that the facility on Christmas Island is used to detain single men only.  The Government promises that these detention facilities never house children.

The report also claims that it is “only right that [Australia] should treat people who seek [its] protection humanely… and meet our international obligations under the UN Refugee Convention.”

Australia’s policy has come under increasing scrutiny as officials attempt to decide how to resolve the situation of seventy-eight stranded Sri Lankan asylum seekers.

An Australian vessel picked up the asylum seekers on October 18th.  An agreement between Indonesia and Australia would allow them to disembark at an Indonesian port for processing at a detention facility just northwest of Jakarta.

Australia’s Foreign Minister, Stephen Smith, stated that the governments of both Australia and Indonesia have agreed that individuals rescued in open waters will go to Indonesia, and the UN High Commission for Refugees in Indonesia will process them.

The refugees, however, refuse to leave the boat because they want to go to Australia.  Ultimately they do not have a choice in the place where they claim asylum.

Prime Minister Rudd claims the Government is prepared to use force to remove them from the boat.  According to Indonesia, however, forcible removal is a breach of international law.

Despite mounting pressure, the Government has yet to resolve the fate of the Sri Lankan asylum seekers.

For more information, please see:
ABC News – Heat to end asylum seeker impasse – 29 October 2009

Bloomberg – Rudd May Use Force to Remove Sri Lankans from Ship, SMH Reports – 29 October 2009

Wall Street Journal – Surge in Refugees Presents a Problem for Australia – 29 October 2009

Brisbane Times – Indonesia governor rebels on refugees – 27 October 2009

Brisbane Times – Police head to Asia to fight smugglers – 27 October 2009

Sydney Morning Herald – UN puts Rudd policies in spotlight – 27 October 2009

The Government Monitor – Australia Government Committed to Mandatory Detention On Christmas Island – 26 October 2009