Is it an offence if Australians pay people smugglers to turn back?

An Indonesian police chief has alleged that an Australian customs official paid people smugglers thousands of dollars to turn their boat back to Indonesia. The boat in question was carrying 65 asylum seekers hoping to reach New Zealand. Australian officials boarded the boat in late May and arranged for the return of the Bangladeshi, Rohingya and Sri Lankan passengers to Indonesia in two smaller boats.

The six crew members are facing people-smuggling charges in Indonesia. They reported that an Australian official named Agus paid them US$5000 each to return with the asylum seekers to the Indonesian island of Rote.

The 65 asylum seekers are now detained in Indonesia. They have written to the New Zealand government, corroborating the police chief’s account that the crew accepted payments to turn back. Three Australian Federal Police officers are set to visit Rote, though it is not known whether they will investigate the claims.

Australian Immigration Minister Peter Dutton denied the allegation with a simple “no”. When pressed, Dutton said he would not expand on what was an “on-water” matter. An Immigration Department spokesperson explained:

The Australian government does not comment on or disclose operational details where this would prejudice the outcome of current or future operations.

Foreign Minister Julie Bishop gave the same single-word rebuttal. Greens senator Sarah Hanson-Young and Labor immigration spokesman Richard Marles both called on the government to investigate and give a full account of the affair.

If Australian officials did pay people smugglers, has the government effectively joined the people-smuggling trade? Has it broken any laws?

Australian law on people smuggling

Law professor Don Rothwell believes that Australian officials are well protected by the Migration Act. This legislation gives a wide range of discretion to officials so long as they act within the scope of their authority. The act says nothing about payments to the crew of people-smuggling vessels.

The act makes people smuggling a crime, punishable by ten years' imprisonment. The act also indicates that the government should be permitted to regulate dealings with asylum seekers with minimal oversight by the domestic courts or the international legal system.

In recent years, the Australian parliament has also authorised an increasingly draconian and secretive regulatory body of migration law. An expansive Maritime Powers Act authorises a wide range of actions by Australian officials at sea.

In 2014, the High Court concluded that, in some circumstances, Australian officials could lawfully detain asylum seekers at sea prior to returning them to their origin country or a third country. A concern in such circumstances is whether Australia is meeting its obligation of non-refoulement under the UN Refugee Convention.

The Abbott government has consistently asserted its right, as part of “Operation Sovereign Borders”, to maintain secrecy in all “on-water matters”.

The international legal position

In 2000, the UN General Assembly agreed on a Convention on Transnational Organised Crime. The convention, which came into effect in 2003, obliges member states to establish domestic criminal offences and enhance mutual co-operation in extradition and law enforcement.

The convention is supplemented by three protocols. The Protocol against the Smuggling of Migrants by Land, Sea and Air aims to suppress the people-smuggling trade, while also obliging state parties to protect the rights of smuggled people.

If Australia has made payments to the crew of a people-smuggling vessel, this would violate its obligations under the protocol. Article 20 recommends that disputes between state parties be resolved by negotiation or arbitration. It also gives parties the right to take an intractable dispute to the International Court of Justice.

Rothwell argued that the threat of legal action may not be the most significant risk arising from this case. Rather, Australia’s alleged actions could further risk the bilateral relationship with Indonesia. Australia has recommitted to that relationship this week, with the return of its ambassador to Indonesia following a protest withdrawal in April.

How important is the truth?

Prime Minister Tony Abbott has said that the Australian government is:

… in a fierce struggle with people smugglers.

Abbott described the boat turn-back policy as as means of “destroying the people smugglers' business model”. Yet, if these allegations are true, Australia’s actions could be promoting rather than suppressing people smuggling. Such a finding would undermine Australia’s claims to be working against people smuggling out of concern for human welfare.

If the allegations are untrue, as the government says, there is still much that the Australian government seeks to hide in its approach to asylum seekers. Evidence has emerged that the government was aware of sexual violence in offshore detention centres long before it began to properly investigate complaints. Regardless, the Coalition and Labor jointly passed legislation in May that prohibits anyone working for the Immigration Department to reveal anything that happens in offshore detention.

The government has also maintained its intemperate attack on Human Rights Commission president Gillian Triggs. Triggs has been accused of political bias, particularly in relation to her commentary on asylum-seeker policy.

Australia’s secretive approach targets whistleblowers rather than addressing the deep flaws in its approach to asylum seekers attempting to reach Australia by boat.

Amy Maguire does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.