A prospective amendment to the Migration Act that is about to be heard by the Senate, makes it an offence to be a ‘people smuggler’ and may harm the cases of up to 350 Indonesian nationals who are held in Australian courts under these charges. The People Smuggling Deterrence Bill 2011 which has already passed the lower house on November 1,  will amend the migration act to make it an offence to bring a person to Australia with “no valid visa”.  CPD board director John Menadue was among a group of 11 respondents who gave submissions against the bill to the Legal and Constitutional Affairs Committee.

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The government has undermined the right to a fair trial of up to 350 mostly Indonesian people now facing charges of “people smuggling” in Australian courts. It has done so by introducing hastily drafted, retrospective amendments to the Migration Act.

The People Smuggling Deterrence Bill 2011 was passed in the lower house November 1, supported by Labor and the Coalition. If carried by the Senate, it will amend the migration act to make it an offence to bring a person to Australia with “no valid visa”.

Greens MP Adam Bandt and independent MP Rob Oakeshott spoke against the bill.

Bandt said it was intended to invalidate the defence case of 20-year-old Indonesian man Jeky Payara who crewed a boat carrying 49 refugees to Christmas Island.

Payara, who faces a minimum five years’ jail, was to argue before the Victorian court that he had not committed a crime if the refugees he transported to Australia had the right to seek asylum under international law.

Bandt told parliament on November 1: “Because this case is coming up we now have an instance where this bill is being rammed through without any proper scrutiny.”

Pamela Curr, coordinator of the Melbourne-based Asylum Seeker Resource Centre, told Green Left Weekly the ASRC was concerned about the effect of the bill on the cases of more than 300 people locked up on “people smuggling” charges in Australia.

She said the new changes would “in no way stop the people who actually have the resources to buy the boats, to charge people $10,000 for a space, and who are sending the boats to Australia.

“It’s designed for the least educated members of the Australian public to make them believe there is some horrible threat.

“But all they’ll do is catch the small fish — Indonesian fishermen who are unable to make a living will take a boat with people across the sea.”

She said Australia’s law targets “teenage Indonesian kids who do not know Australian laws … The first they hear about ‘people smuggling’ laws is when they [are] incarcerated. It’s completely iniquitous.”

Australia’s Human Rights Alliance says about 100 teenagers are jailed in adult prisons and some are as young as 13. Many teenagers accused of “people smuggling” are in “incommunicado detention”.

Early this year, Curr learned nine Indonesian teenagers had been locked up for 11 months at Berrimah House, part of the Northern Immigration Detention Centre in Darwin. She rang the Indonesian consulate, which could not talk to them and “did not know what to do”.

The Senate referred the bill to the Legal and Constitutional Affairs Committee for inquiry on November 3, which was open for submissions for only six days.

The inquiry received 13 submissions, 11 opposing the changes, including from Centre for Policy Development board director John Menadue AO, the NSW Council for Civil Liberties, the Human Rights Law Centre, the Rule of Law Institute of Australia, the Law Council of Australia, the Queensland Law Society and Liberty Victoria.

The Law Council of Australia said there were “serious concerns” the government was “undermining the court process”, and this was a “disturbing trend”.

“The right to a fair trial is undermined if laws are changed during the course of proceedings … the government should not simply resort to retrospectively amending legislation whenever a different interpretation of the legislation is raised”.

The Rule of Law Institute of Australia said “a person should not suffer for conduct that at the time it was engaged in was not unlawful”.

International law professor Ben Saul said the UN Protocol against the Smuggling of Migrants by Land, Sea and Air criminalises the “smuggling of migrants”, but contains explicit exception in cases of refugees and asylum seekers.

“The effect of criminalising those who smuggle refugees,” he said, “is to prevent refugees themselves from reaching safety.”

Curr said the bill was a distraction.

“If Australia does want to stop the loss of life, which is the new argument, they should be offering a lawful formal mechanism for people to be resettled from Indonesia to Australia,” she said.

“At the moment there are 900 [asylum seekers] in the 13 detention centres [in Indonesia], and 88 of those people are UNHCR designated refugees.” The UNHCR estimates between 2000 and 3000 refugees are in Indonesia waiting for resettlement.

“People locked up [in Indonesia] said to me they would wait three years, even four, if they were sure if a country, not necessarily Australia, would take them in.

“But, they said, ‘we will not wait if we don’t know, because we can’t work, our children cannot go to school and we cannot live while we do not know’.”

The decision of the Senate inquiry is due on November 21. The Payara case was adjourned until November 30.