Australia's people smuggling law challenged

Australia's harsh laws on people smuggling were challenged in court on Tuesday, with lawyers arguing that asylum-seekers have a lawful right to come here.

Australia has a policy of mandatory detention for boatpeople and last year toughened penalties, including jail terms of up to 20 years for those smuggling them across its maritime borders.

But lawyers are now testing the legislation, which requires the prosecution to prove that people who are smuggled to Australia have no lawful right to come, Victoria Legal Aid senior public defender Saul Holt said.

"The argument that we are making is that genuine refugees do in fact have a lawful right to come to Australia for the purposes just of having their asylum claim, or their refugee claims, assessed and processed properly," he told AFP.

"If that argument goes in our favour then it will have significant implications for people smuggling cases."

Holt said the prosecution of alleged people smugglers could become more difficult if a test case concerning an Indonesian man, Jeky Payara, progresses to higher courts.

Payara stands accused of "aggravated people smuggling" -- a new charge applying to those bringing more than five asylum-seekers by boat to Australia.

He is alleged to have steered a vessel carrying 49 asylum-seekers towards Australia's Indian Ocean outpost of Christmas Island in September 2010, but he has pleaded not guilty.

The Melbourne county court Tuesday reserved its decision on whether to send the case to an appeals court.

Holt said Payara could be a test case for as many as 350 people smugglers facing trial in Australia. Of the 54 Indonesians facing charges in Victoria state, most are young, illiterate fishermen from impoverished villages.

Holt said the cases presented a "genuine and important question" of law.

"These are not the masterminds of people smuggling who the legislation was directed to -- these are young men who were recruited onto these boats, often without any real idea of why they were going or what they were doing," he said.

"They don't have any absolute right to be admitted to Australia or to be granted asylum, but they have the right to come and have their asylum claims checked and that's really what we're testing."

Australia has had people-smuggling laws for some time, but changes made last year -- as part of a push to deter smugglers from operating out of transit hubs in places such as Indonesia and Malaysia -- rephrased the legislation.

"The previous offences required the prosecution to prove that the people that were being brought here were what the Migration Act calls unlawful non-citizens -- which essentially means they didn't hold a visa," Holt said.

"That language has now changed... prosecution has to prove that they have no lawful right to come. So it's a different phrase and attracts different legal arguments."

The challenge comes as the government is engaged in a High Court fight to implement its controversial refugee swap agreement with Malaysia.

Under the plan, the Asian country will take 800 asylum seekers from Australia in return for Canberra settling 4,000 of its registered refugees.

The Malaysia proposal has been widely criticised, with rights groups concerned that Malaysia is not a signatory to the United Nations convention on refugees.

Source : AFP

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