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Gillard's grotesque people smuggler sledge

Binoy Kampmark |  03 November 2011

'No law, made after a fact done, can make it a crime ... For before the law, there is no transgression of the law.' –Thomas Hobbes, Leviathan 

The grotesque nature of the bill that has been passed in Australia's Federal Parliament clarifying the terms of people smuggling reveals yet again how a governing body, without the restraint of a bill of rights, can run rough shod over fundamental rules of law.

Not even common law fetishists could deny that a retrospective law on criminal matters is an appalling thing at the best of times and should be stopped, if not rendered beyond the power of Parliament. A most blatant exercise of that power was made over the last two days.

It all centres on the case of 20-year-old Jeky Payara, an Indonesian man accused of people smuggling and defended by Saul Holt, a senior public defender for Victoria's Legal Aid.

Until the present bill's amendment to the Migration Act 1958, Australian migration law said it was illegal for someone to bring to Australia people who 'had no lawful right to come to the country'. The premise of the challenge made by Holt was that one cannot commit an illegal act when assisting individuals to fulfil their legal rights to seek asylum.

Suddenly, the problems of the Migration Act, already subjected to the closest scrutiny with the High Court decision in August on the Malaysia solution, have come back to haunt the Government.

The Gillard Government clearly wishes to see the Payara case collapse. To this end, it has drafted retrospective legislation punishing what was previously legal. This clearly violates a key precept of the common law, not to mention various human rights declarations that dot the international law landscape. This is commonly called the ex post facto rule or the rule against retroactivity.

The principle has a rich history, finding expression in the Latin expression nullum crimen sine lege, nulla poena sine lege, a principle formulated by Feuerbach and included in the 1871 German Penal Code and the Weimar Constitution.

The American Constitution openly prohibits ex post facto laws in Article 1, section 9(3), and article 15 of the International Covenant of Civil and Political Rights makes a similar proviso. Both include the qualification that trial and punishment of a person can still occur provided that the act or omission 'was criminal to the general principles of law recognised by civilised nations'.

History can point to a few key cases when such retroactive approaches were deemed legal, sometimes because of the exceptional circumstances of the crimes, sometimes because a government had simply overreacted.

The Nuremberg Trials were an example of the former. The decision of the House of Lords in Shaw v Director of Public Prosecutions (1961) is an example of the latter; the House of Lords contrived to punish Shaw for the non-existent crime of conspiracy to corrupt public morals.

One might argue, as was done at Nuremberg, and subsequently in the Australian High Court case of Polyukhovich v The Commonwealth (1991), that the defendants would still have been punished under traditional war crimes accepted as such by the community of nations.

In a sense, the injunction against retroactivity may be a fiction. Judges abide by that happy fiction by claiming with pious conviction that they interpret rather than make laws. Unfortunately, a party who believed that what they did under old interpretations was correct, may well find that an offence or breach has, in fact, taken place. The law of precedent is not always a stable one.

The Government line has been that people smuggling constitutes a grave crime and deserves harsh punishment. Closer inspection of this betrays such a line as misguided.

The individuals who are being charged for people smuggling are often penniless teenagers who are themselves part of the process of funnelling people through various transit points in order to seek legitimate asylum. They are hardly, as Australia's foreign minister Kevin Rudd would have it, 'scum of the earth' engaged in the world's most evil trade'.

Whatever the case, this episode shows yet again how dangerous parliamentary absolutism can be. The same body has already made retrospective laws with regards to social-security prosecutions. Nothing is too serious. Instead of allowing a logical, carefully argued legal principle to be made, the Government has decided to pull the carpet from under the judiciary.

It is perhaps fitting to recall Article 28 of the failed Australian Bill of Rights Bill of 1985, which should be revisited: 'No person shall be convicted of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it occurred.'

Binoy KampmarkBinoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. 



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Submitted comments

Incredibly,almost unbelievably, even as a signatory to the international refugee convention, Australia does more damage to humanity at large than if it had not been a signatory.Indeed the non signatories can now be more esteemed than Australia. In the same way, the Australian Labor Party, in abandoning its own platform, has discarded the ideals of all those whom it had once attracted as supporters and voters. Truly, the Gillard has become an obnoxious law unto itself and as we edge towards Christmas..and thus recall the plight of Christianity's most famous couple,we now see Australia billed as the worst destination in the world for would be refugees. Yes, grotesque is the word. Ugh!

Brian Haill - Melbourne 04 November 2011

You seem to be trying to make anyone who is involved in the illegal immigration trade as altruistic and a hero to be admired, which of cause is blatantly untrue. As for a Bill of Rights we must contrast Law Under A Bill Of Rights Contrasted With Law Under The Rule Of Law There is a presumption in a country that operates under the rule of law that everything is permitted except that which is forbidden. In a country which operates under a bill of rights the opposite presumption is inferred—everything is forbidden except that which is permitted. In the strict sense, a bill of rights is a constitutional provision which protects individual rights from infringement by the legislature or the executive. It prevails over, and cannot be amended by, ordinary legislation. In that way, it detracts from the sovereignty of the Parliament. Since a bill of rights is enforceable by the courts, it becomes the province of the courts, and not of the Parliament, to determine the nature and extent of the protected rights. [20] In so far as a bill of rights sets out to list human rights comprehensively, it always fails for it is impossible to categorise comprehensively all the rights that attach to man. The reason is that man is not something material (and limited) but something immaterial and objectively infinite. His essential constitutive is not his material body, which will die, but his immaterial soul, which will not. We know instinctively that the Marxist doctrine that man exists for the state is wrong. Few, however, are able to explain why. Even fewer understand that the truth is the very contrary of the Marxist proposition: not only does man not exist for the state: the state exists for the sake of man. The state will cease to exist, but man, possessed as he is of a soul which is immaterial, will live forever. It follows inevitably that any attempt to categorise human rights serves not to enlarge but rather to restrict human freedom. The paradox of a bill of rights is that it defeats its own ends. The United States Constitution with its ongoing amendments provides an illustration. To the original 10 clauses in the US Bill of Rights (the first ten Amendments to the US Constitution), a further seventeen have been added. Moreover, one of these, Amendment XXI, contradicts an earlier amendment, number XVIII. And there is no reason why the addition of amendments, or their amendment according to the whim of the age, should not go on ad infinitum. A legal system founded on a bill of rights relies not on the natural, but on posited, law. Such a legal system involves, at least implicitly, a contention that man can do a better job than his Creator in delineating human rights.

Trent 04 November 2011

its amazing the lengths some people will go to to protect the indefensible . all of a suden people smugling is an honerable profession that should be able to exist behind some legal twist , clever lawers should set up what is acceptable not commen decency . its about time the writer and others proposed solutions rather than just justification of the right of those with money buying passage while the destitute have no hope .Shame !

john crew 04 November 2011

Well, I don't know, all these glass half full people!

Now there is retrospective legislation gone through parliament, which proves it can be done, we can get Gillard to pass retrospective tax legislation to tax every rorter who evades tax through legal means, and set the date back, say ten years, to pick up a swag of unpaid taxes.

The rent resources tax for instance could be set back to the start of the last boom.

Family trusts could be reset to be illegal 20 years ago.

Taxing religions could go back to the 1770 era.

We'll soon have enough tax income to build all the hospitals and schools we need.

Harry Wilson 04 November 2011

When are all the politicians going to stop trying to make themselves popular by picking on the poorest of the poor. They and many Australians seem caught up in the fear and loathing and dehumanisation of refugees - people - which was really started by John Howard and Tampa, and is fed by shock jocks and Today Tonight.
I also object to the term "people smugglers" - if I had a boat I would like to help refugees get to Australia. We should welcome people to Australia - noone really has more right to live somewhere than anyone else - not to mention our Christian duty to treat others the way we would like to treat them.
As an Australian I am deeply ashamed of the anti-refugee policies of both the Labor party (who is worried they are becoming less popular) and especially of Tony Abbott who seems to think that it is a boast to say that he would stop refugees from coming to Australia.
Come on Australia, treat people as people.

David Crowley 04 November 2011

While I heartily agree with this article, I thought I might provide some historical background which may help relieve some of Trent's worries. Far from being a Marxist invention, the idea of human rights (and by extension, bills of rights to protect them) in fact comes from Thomas Aquinas. It was his concept of Natural Law and Natural Rights which pertain to all people as people which was taken up and incorporated into international law by jurists who were, first Catholic priests (like Vittoria and Suarez) and then Protestant religious reformers (like Grotius). While the Enlightenment reformers (who drafted, eg. the US Constitution) no longer explicitly referred to God these rights' source, they did not alter the theoretical basis of natural law. Presumptions as to what is permitted or forbidden do not change but some rights are protected from ordinary Parliamentary interference. In most cases, however, even these can be changed by a strong enough public vote (usually requiring a referendum). In a "State under the Rule of Law" (even without a bill of rights), the "unelected judiciary" is an important part of declaring or changing individual rights (just think who has developed most contract law, criminal law etc).

Justin Glyn 04 November 2011

People smuggling and trafficking in human misery is just disgusting. People pretending to “care” for people smugglers and their customers are only driven by greed. The people smuggling industry is a multi-Billion Dollar tax free industry abusing the tax free status of welfare groups, the goodwill of Australians and the generosity of the Australian Government.

The most disgusting part of this trade is the fact that even people within churches are in support of these syndicates. This is nothing new as we had evil people in churches pretending to do good since the middle ages. Whilst burning witches or running an inquisition is more difficult these days, the same people remain in churches to support evil. The recent death of a large number of would be asylum seekers id directly a result of having evil people supporting an evil trade. The Government has a duty to everything to close this trade and all good people will support it for it.

Beat Odermatt 04 November 2011

Aren't those who save people heroes? What am I missing here?

Greig Williams 04 November 2011

To put this matter to rest, there is purely no legal or humanitarian correlation between refugees and people smugglers. The former are legal while the later are illegal business people.

As a result, although the two parties are associates in the Australian boat cases, each must be addresses individually before the law. of the land.

Hillan Nzioka 04 November 2011

Jeky Payara and the other Indonesian fishermen hired by people smugglers to transport asylum seekers to Australia are doubly victims of Australian law enforcement.

Earning about Rp25,000 (approximately $3) a month, an Indonesian fisherman takes about 4 years to get his own boat, enabling him to make a decent income to raise his family.

Despite a Memorandum of Understanding which permits Indonesian traditional fishing in waters north-west of Australia, many boats are captured on suspicion of illegal fishing.

When our navy tows a boat into an Australian port, the boat is burnt and visibly young teenage crewmen are sent home to Indonesia. The adults and teenagers who can't prove their age are charged and usually imprisoned for 4 - 5 years.

Without means for a livelihood, the deported teenage crewmen and the adults repatriated after their jail terms fall prey to the offer of a grand fee (Rp 5 million - about $600) to carry asylum seekers to any Australian island. Those who survive the journey and return home are lucky to be paid Rp 0.5 million.

Because there are so many impoverished fishermen in south-east Indonesia, a crew can always be found despite community knowledge of the risks. And now our parliament introduces retrospective laws to imprison even more fishermen!

Ian Fraser 04 November 2011

If it's really about stopping the evil 'people smugglers', then let's just let the asylum seekers in. That puts them out of business over night. How many more millions/billions, and how much more human suffering, just to keep people out. Regardless of whether they're genuine refugees or not: just let them in. Open the borders!

Barry York 04 November 2011

Thank for this article. Why are Australians afraid of paople seeking our help, as they try to ascape persecution and terror? Why are we so scared of others? How come our' borders' are suddenly so sacred. Mr. Howard may have done a good job in a scare campaign. I am disturbed that the ''people smugglers'' have now become the main interest of both parties, to the exclusion of those seeking assylum. Ours is a most selfish and discriminatory Govt. Both partie smake me feel utterly ashamed to be an Australian. People have the gall, to be proud of turning back poor terrorised people, seeking a safe haven in our country. This to me and many others is shameful thing. Tony Abbot, a professed Christian, may find it difficult to sleep, as his philosophy in these matters is directly opposed to Christian beliefs. As for Julia Gillard she seems to have done an about face and is now, advocating a most cruel solution ,, with her sending oppressed people to Malaysia , which has a poor human rights record.. We may soon have that same name tag Can our wonderful country survive this inhuman outlook.. Perhaps those whose conscience is smarting could stand up and be counted. Peaceful protest..any takers?

Bernie Introna 04 November 2011

Just look at the video at the head of this article. Brian Dawe has the solution. I proposed the same solution in a letter published in the Australian in 2001.

Gavan Breen 04 November 2011

What is the difference between giving somebody desperate a loaded gun or encouraging a lethal path across dangerous water? In both cases the outcome is death, in the case of the gun usually one single person but in the case of people smuggling, dozens are killed. I hope that I have never ever again to hear from these people that they “support refugees”.

It is great concern that Eureka Street as a forum seems to support to the creepy supporter of a deadly trade. I hope Julia Gillard will succeed in stopping the trade and I hope the coalition puts the lives of desperate people before short term political gains.

Beat Odermatt 04 November 2011

They were told last year that the law was wrong and illegal, why change it in retrospect to punish someone who has done nothing wrong?

They call it a "trade' to muddy up the waters, they only thing being "traded" is various forms of transport. The people are not being traded by anyone and never have been as it is still a legal right to come to Australia.

I fail to understand the point of wanting to be so vicious and waste so much time and money jailing people for doing exactly nothing.

Marilyn Shepherd 05 November 2011

Beat,with a safety record of 99.4% for refugees is it sure safer than staying where they are.

Marilyn Shepherd 06 November 2011

To Marylin Shepherd: How do you know how many of them are actually “refugees”? I don’t think it is up to you or me to determine if they are refugees or not. It is our duty to prevent unnecessary death at sea and profiteering from human misery.

Beat Odermatt 08 November 2011

KUALA LUMPUR: Malaysian marine police have intercepted a boatload of asylum seekers from Pakistan and Afghanistan who were attempting to travel to Australia via Indonesia, a senior police official said Wednesday.

A marine police craft, acting on a tip-off late Monday, intercepted a boat with 13 people onboard after a 10-minute chase, Chuah Ghee Lye, police chief in southern Malacca state, told AFP.

"We have detained four Pakistani men, four Afghans and five Indonesians, including the skipper. The refugees include an 18-month-old Afghan infant," he said.

"We believe they were being taken to Indonesia and possibly to a third country. I would not rule out the possibility (that they were heading to Australia)," he said.

Chuah said only the Pakistanis had travel documents.

"We will investigate the Indonesian skipper under human trafficking charges and may likely deport the Pakistanis and Afghans if they are found to be victims of human trafficking," he said

The penalty for human trafficking in Malaysia is up to 15 years in jail.

Immigration activists say Malaysia is often used as a staging post for trafficking gangs moving people from Myanmar, Afghanistan and Sri Lanka to Indonesia and Australia.

Marilyn Shepherd 09 November 2011

I agree with the commenters talking about the reprehensibility of people smuggling - Oskar Schindler was truly one of the world's greatest monsters.

Benjamin 10 November 2011


This brutal atrocity must be investigated now. How could the Feds, the NSW police, the prisons, the DPP and everyone in between jail a disabled child and steal his life in this way?

Marilyn Shepherd 13 November 2011

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