In Focus: Paying people smugglers - Is a prosecution likely to be initiated against any Australian government officials?
Published on the 01 Jul 2015
a. International prosecution
The Migrant Smuggling Protocol does not establish any international tribunal with the jurisdiction to prosecute offences. Instead, the Protocol envisages that States Parties will implement the offences it establishes in their domestic criminal law. This means that Indonesia could attempt to prosecute Australian government officials under its own national laws. Any immunities (eg. for ASIS officials) would not bind Indonesian courts.
Indonesia has ratified the Transnational Crime Convention and the Migrant Smuggling Protocol. An offence of people smuggling was created under Indonesian law in 2011: Law 6/2011 on Immigration. Article 120 of Law 6/2011 states:
(1) Every Foreigner who conducts act [sic] aiming to seek advantage, either direct or indirect, for him/herself taking someone or a group of people, either organized or non-organized, or order other people to take someone or a group of people either organized or non-organized without having legal right to enter or exit the Indonesian Territory and/or enter other country without having legal right to enter the Indonesian Territory, either using legal document or false document, or without using the Travel Document, either through an immigration check or not, shall be punished for the reason of Human Smuggling with imprisonment for a minimum of 5 (five) years and for a maximum of 15 (fifteen) years and fine sentence at the minimum of Rp500,000,000.00 (five hundred million Rupiah) and for a maximum of Rpl,500,000,000.00 (one billion five hundred million Rupiah).
(2) Attempt [sic] to perpetrate the criminal act of Human Smuggling shall be punished with a similar criminal sentence as contemplated in paragraph (1).
Article 124 of Law 6/2011 makes it an offence to assist illegal migrants, with a prison term of two years and a fine of up to Rp 200 million (AU$19,500).
Research indicates that the vast majority of people convicted for smuggling offences in Indonesia are Indonesian nationals, and are generally those who have been involved at the lower levels of smuggling operations.
Rather than pursuing legal action against Australia, Indonesia is much more likely to continue to put diplomatic pressure on the Australian government to reveal further information about the alleged payment, and may seek an undertaking from the Australian government that it will not make such a payment again.
b. Domestic prosecution
The Commonwealth Department of Public Prosecutions could try to commence a prosecution under section 73.3A of the Commonwealth Criminal Code. However, as noted above, a person cannot be prosecuted for the offence of providing material support to people smuggling without the approval of the Attorney-General to commence the prosecution (s 73.5). It is very unlikely that the Attorney-General would approve this since he recently said in the Senate that the government has ‘at all times complied with the law.’ Further, if the official who made the alleged payment was an ASIS official, then he or she may be immune from prosecution, as discussed above (Intelligence Services Act, s 14).