T

his week, the Australian lower house of parliament rushed through a new law, the Deterring People Smuggling Bill 2011. This law will affect the lives of an estimated 600 Indonesian boat crew currently languishing in Australian jails, some 50 of whom claim to be underage.

The new law, passed last Tuesday night, coincided with the tragic sinking of a boat, carrying Iranian, Iraqi and Afghan asylum seekers, off the south coast of Java.

Within Australian political discourse, blame for the tragedy has been directed squarely at unscrupulous, criminalized people smuggling networks thought to be based in Indonesia.

This tragedy has provided political grist to the mill for Australian parliamentarians seeking to project a hard-line stance on people smuggling. Indonesian villagers are the unintended collateral in a domestic political drama being played out down under.

Last week’s Bill was hurried through parliament to amend the Migration Act to thwart a test case on people smuggling laws that was to be heard in the Victorian Court of Appeal on Wednesday. This appeal hearing has now been delayed to give time for the new legislation to come into force.

In essence, the Victorian appeal argued that if asylum seekers have a lawful right to seek asylum in Australia (as suggested by a landmark High Court ruling in August), then those assisting passage cannot be prosecuted as “people smugglers”. Under Australian law, people smuggling is a crime based on the illegality of entry.

An extremely narrow definition of “lawful entry” in the new law means that the hopes of freeing the Indonesians in Australian jails now appear to be fading.

Sadly, the highly simplified framing of the people smuggling debate by politicians and the media in Australia is logically flawed.

It fails to acknowledge the reality of who is actually affected by the legislation. The Australian public assumes that the legislation will affect organized crime bosses in large cities such as Jakarta, who are sitting back in safe affluence profiteering from human misery.

This is the stereotype presented in popular discourse in Australia. Former prime minister Kevin Rudd infamously demonized people smugglers as the “absolute scum of the earth” who should “rot in hell”.

However, information revealed during the recent Senate Estimates hearings in Australia presents a starkly different portrait of the individual Indonesians involved.

Under questioning in October, the Australian Federal Police revealed that of the 493 individuals arrested in Australia on people smuggling charges during 2009, 2010 and 2011, 483 were simply working as crew on boats leaving from Indonesian ports. Only 10 individuals are actually organizers approximating this common stereotype!

So, those affected by the rushed amendments are in fact Indonesian deckhands and cooks, many recruited from impoverished islands such as Rote, Alor and Pantar in East Nusa Tenggara.

In what is slowly looming as an international human rights disgrace, many of these imprisoned crew members are juveniles: Their ages determined by a questionable wrist x-ray examination widely discredited by medical authorities, including the Royal Australasian College of Physicians.

Far from the vile scum of the political imagination, they are boys such as Ose Lani, Ako Lani and John Ndollu, all minors from Rote Island near Timor, who were offered jobs to work on boats leaving from their local harbor.

They accepted the offer of work and languished for many months in Australian prisons as a result. While these boys have been released, many more villagers just like them are still being detained in Australian jails. Their fates further sealed by the passing of this week’s parliamentary Bill.

In a move strongly opposed by the Law Council of Australia, the legislation will be applied retrospectively to 1999, and includes harsh five-year mandatory sentencing for crew assisting passage for groups of asylum seekers. A major weakness in the Australian Law is that it does not differentiate between organizers of people smuggling and those individuals simply working as crew on the boats.

Federal elections in Australia have been won and lost on the sensitive issue of border protection, such that the human rights of individuals affected are of secondary importance to the key political objective – to somehow “stop the boats”.

The Australian response to people-smuggling further reflects an inadequate conceptualization of people smuggling itself in Australian politics. Foremost is the obfuscation of the terms “people smuggling” and “human trafficking”.

In its 2010 Global Review on The Smuggling of Migrants, the United Nations Organization Office on Drugs and Crime (UNODC) is quite clear that the latter involves profit obtained through exploitation at destination, whereas people smuggling does not. This is not the case with asylum seekers arriving in Australia and the term “human trafficking” should never be used or implied.

The dominant international conceptualization of people smuggling, as presented in the UNODC review, is a system of institutionalized networks with complex profit and loss accounts that facilitates movement of people between origin and destination countries. Smugglers are “merchants” while the smuggled migrants are “clients” paying for a service.

The draconian sentencing and demonization of impoverished Indonesian juveniles in Australia as “people smugglers” is both a moral outrage and intellectually careless.

The writer is a lecturer in Geography, School of Geosciences, The University of Sydney.