“Breaking the people smugglers’ business model” is the tired refrain Julia Gillard and Chris Bowen use to justify every inhumane aspect of their policy on asylum seekers—from their wilful undermining of the High Court, to the soaring average time asylum seekers are spending inside Australia’s mandatory detention system.

In defending the “Malaysia Solution” they have absurdly tried to claim the humanitarian high ground, saying that their tough approach to stopping people smugglers will prevent deaths such as those in the shipwreck off Christmas Island last December.

Even some of the government’s critics accept that “people smuggling” is a “problem” that needs to be dealt with.

In early August a campaign broadcast by GetUp! against sending unaccompanied minors to Malaysia, argued: “it’s understandable that the Minister can not offer a blanket exemption to any class of asylum seekers, for fear that people smugglers will exploit it to their advantage”.

Likewise, in his otherwise valuable account of the events of 2001 leading up to the SIEV-X tragedy, SBS Arabic radio journalist Ghassan Nakhoul’s Overboard subscribes to the view that people smugglers are essentially “agents of darkness”.

But the refugee campaign must be clear that the rhetoric about people smugglers is a dog whistle for demonising asylum seekers, and needs to directly confront these arguments.

Whether it’s Labor or the Coalition, the implication always made about asylum seekers coming by boat and via a people smuggler is that they are somehow doing the wrong thing. There clearly are profiteers involved in the trade. But people smugglers are the only way for many refugees to flee to a country where they can claim asylum.

James Hathaway, Directory of Refugee and Asylum Law at the University of Michigan argues that: “Canada and other developed countries created the market on which smugglers depend by erecting (literal and virtual) migration walls around their territories.

“The more difficult it is to get across a border to safety on one’s own, the more sensible it is to hire a smuggler to navigate the barriers to entry. Smugglers are thus the critical bridge to get at-risk people to safety. Which one of us, if confronted with a desperate need to flee but facing seemingly impossible barriers, would not seek out a smuggler to assist us?”

Saving lives

Modern history abounds in examples of where smugglers have saved lives: From the underground railroad that liberated slaves from slavery in the US South; to individuals like Oscar Schindler during the Nazi occupation of much of Europe; to those who helped some 250,000 Hungarians flee the Stalinist crackdown on the revolt of 1956.

Tributes recently poured in from across the political spectrum for Nancy Wake, an Australian resident for much of her life, who set up escape routes to help smuggle people out of German-occupied Europe while working for the French Resistance. Julia Gillard described her as “a woman of exceptional courage and resourcefulness whose daring exploits saved the lives of hundreds of Allied personnel”.

Many smugglers—such as the Iraqi Ali Jenabi—were themselves asylum seekers, and are motivated by an altruistic desire to assist others.

Jenabi fled Iraq after his brother was killed by Saddam Hussein’s regime. Yet by the time he arrived in Indonesia, he had run out of money. He agreed to start working for a smuggler in order to pay for the passage of his family—his mother, two sisters, three brothers and an uncle, who arrived in Australia on three separate boats.

He then began helping fellow Iraqis in desperate need, charging them less, or in some cases, nothing.

Jenabi is considered a hero by Australia’s Iraqi community. But because he was a “people smuggler” Ali remains on a bridging visa and can be sent back to Iraq at any time.

Some point to the involvement of organised crime to justify a “tough” approach. But if the government relaxed its extreme hostility to boat arrivals and increased the refugee intake it could undermine those who seek profits out of smuggling.

Instead laws passed under Kevin Rudd, who called people smugglers “the vilest form of human life”, impose 10-year jail sentences not only on organisers of the boats, but also on relatives and friends in Australia who “provide material support” to asylum seekers to help pay for their boat journey to Australia.

Indonesian fishermen

Another consequence of the hysteria against “people smuggling” is that there are now over 350 poor Indonesian fishermen serving mandatory jail sentences in Australia for crewing asylum seeker boats.

Many behind bars are minors, falsely determined as adults by scientifically dodgy wrist X-ray techniques (incredibly, Australian courts have also rejected birth certificates provided by Indonesian consular officials). The Age recently highlighted some of the faces behind the official demonisation of such “people smugglers”.

As a result, 15-year-old Ose Lani and 16-year-olds Ako Lani and John Ndollu, who’d been imprisoned for 15 months after being apprehended on Ashmore reef, were finally sent home after the government was forced to admit that they were, in fact, under 18. While they were behind bars, the government had made no attempt to contact their families, who presumed they had died.

A legal challenge to the Indonesians’ incarceration is being pursued by Legal Aid lawyers and may go all the way to the High Court. The case directly challenges Australia’s new people smuggling laws by arguing that asylum seekers do have a legal right to come and have their claims assessed and processed. It follows that those who’ve brought them here have committed no crime.

According to Victorian Legal Aid senior public defender Saul Holt, “If that argument goes in our favour then it will have significant implications for people smuggling cases.”

A victory in the courts could both free the Indonesians, as well as put a dent in the ability of both sides of politics to rail about the evils of “people smuggling”.

Asylum seekers’ decision to engage a “people smuggler” is the direct result of the Australian government’s blocking of official pathways to freedom. If there weren’t such a miniscule humanitarian quota for refugees (including from transit countries like Malaysia and Indonesia), and reduced access to family reunion, asylum seekers would have more options open to them. As it is, spending their life savings on a risky voyage is the only choice they have.

By Mark Goudkamp

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