While the full facts from the explosion of the boat carrying Afghan asylum seekers are yet to be ascertained, the incident has renewed debate surrounding Australia's refugee policies as well as questions about the legal implications of the blast, writes Sarah Sharples
Australia's immigration laws have fallen under the spotlight again after a boat carrying 47 Afghans seeking asylum erupted in flames two weeks ago, in a yet to be explained incident. While refusing to comment on the boat blast until the facts were established, Prime Minister Kevin Rudd weighed into the debate by labelling people smugglers "the vilest form of human life" who "should rot in jail".
The remarks, along with Australia's immigration policy have drawn criticism from some legal circles. Barrister Greg Barnes, director of Rights Australia, says that people smugglers are the wrong target and that the trade arises as a consequence of regulatory and administrative failures.
"The system for processing of refugees is so appallingly inadequate that it creates a market opportunity for people smugglers," he says.
"People smuggling is an offence and it does have dire consequences. People die as a result of being smuggled - it's not a particularly altruistic trade. But, on the other hand, the fact that it exists reflects the failure of the developed world to operate under humane and efficient and expeditious processing regimes.
"Now Australia, for example, makes it difficult for Afghans. There is no Australian embassy in Kabul. You've got to go to Islamabad [and] they'll only process certain types of cases and you can wait up to two to thee years effectively in a detention camp. Well, no wonder people find it attractive to pay a people smuggler who says 'I can get you to Australia.'"
Barrister Stephen Keim SC, who represented Dr Mohamed Haneef during allegations of being involved in terrorist activities, described the Prime Minister's people smuggling comments as "undesirable".
"The Prime Minister has, no doubt, thought that his comments concerning people smugglers assisted the debate by not focusing the blame on refugees. [But] they have the potential to jeopardise future trials," he says.
"The remarks also fail to distinguish between the act of breaking laws against people smuggling and whether or not, in breaking those laws, the person did all they could to protect the safety of the persons from whom they took money."
Two crew members could face prosecution over the blast which killed five asylum seekers and left dozens more seriously injured. Barnes has speculated that compensation may be owed to the refugees if it is proven that a duty of care to take reasonable steps to ensure the safety of those on board was breached, when under the control of an Australian Government entity.
Sonia Caton, director of the Refugee and Immigration Legal Service, is concerned, however, that the issues of compensation and criminality could have been affected because the Australian Federal Police officers have already interviewed refugees without providing them with access to legal advice.
"I think people are entitled to legal advice or to have a legal adviser present when these interviews are taking place about these incidents, particularly if they are traumatised.
"We have a lot of experience dealing with traumatised clients, and memories can be affected, and it's important to have an independent person there on your behalf. I don't know what the interpreting standard was either," she says.
After the blast, 29 Afghanis were taken to the Front Puffin oil rig - an excised offshore place - while others were flown directly to mainland Australia. Those seeking asylum could be processed under different systems, depending on where they were taken directly after the blast, says Caton, a policy that drew international condemnation when it was introduced by the Howard Government.
"To try and undermine people smugglers who would go to, let's say, Ashmore Reef or Christmas Island, [the Government] enumerated islands and places in that area up North which were excised from the Australian migration zone. It's really an artificial construct," Caton says.
Basically, this means that under immigration law these places are not considered a part of Australia for migration purposes. Those who were taken directly to the Australian mainland can access a fully codified statutory scheme and appeal mechanisms which enable protection claims to be fully tested, while those from the oil rig must rely on the goodwill of the Government and have no entitlement under law, Caton says.
"Should the Government change its mind tomorrow or a new government come in that had a different attitude and the excised offshore places remained, they could possibly have no claim to protection in Australia," says Caton. "That just seems ridiculous when two people come on the same boat and they can be subject to such different legal processes - one fully enshrined in statute and transparent and reviewable, and the other not."
Russell Thirgood, a member of the International Trust for Amnesty and partner at McCullough Robertson, says the bigger picture needs to be examined because refugees are a global problem - according to the Office of the United Nations Commissioner of Refugees there are currently 31.7 million refugees worldwide.
"In recent years, Australia and other countries have looked at the refugee issue in a fairly narrow way and in a somewhat selfish way in terms of how this issue impacts on us. We have not focused on constructive global solutions to this 31.7 million person tragedy that is happening," he says.
"What is at the centre of the flows of people escaping persecution? It really is the global imbalance of justice, the global inequities that exist between standards of living, poverty, lack of education, food [and] good democratic institutions."
In 2002, nation states including Australia met at a conference at Monterrey and the Millennium Development Goals were set, which included aspirations such as every child in the world having access to basic primary education and appropriate healthcare.
A target of 0.7 per cent of a nation's GNP was to be allocated to achieving these goals. Only five countries at this stage have met that target - Denmark, Luxemburg, the Netherlands, Norway and Sweden - while six other countries have committed themselves to a timeline for reaching the target - Belgium, Finland, France, Ireland, Spain and the UK. Unfortunately Australia is not one of them, says Thirgood.
"The present Government is on the right course. It's talking about refugees not just being an Australian problem. The issues that we face here are completely minuscule [compared] to elsewhere in the world. If we do develop the recognition that this is a global problem that needs to be dealt with globally, that's a good step forward out of the narrow and destructive refugee debate that the nation has been plagued with for the last decade," he says.
"That's the first step. But then, if we're looking at practical solutions, how do we tackle the global problem? It's really about living up to our promises that we made at Monterrey with the Millennium Development Goals to ensure that we move towards some better distribution of the world's resources and wealth and that those basic elements that human beings need to live are delivered."