April 2007


Ruth Balint

A death in the harbour

Policing Australia’s northern waters

Mansur La Ibu was 21 years old when he departed the bustling Indonesian port of Dobo aboard a small wooden boat, a perahu, on 25 January 2003. He had become a fisherman like his father, growing up in a small village on one of the 95 scattered low-lying islands that make up the Aru group.

Thirteen metres long, the Yamdena carried six crew, enough rice and water to last a few weeks at sea, and some rudimentary fishing equipment. A small cabin, painted bright green and measuring roughly a metre high, 1.5 metres wide and two metres long, was where the crew would sleep during the next month. A neat stack of firewood, for making cooking fires in a cut-down kerosene tin, was placed just outside it. The crew took turns to pump the bilge water to keep the boat from sinking. Other than a small diesel engine, the Yamdena had no mechanical devices and none of the modern conveniences and safety equipment that Australian fishermen take for granted.

Three days after its departure, in the early hours of 28 January 2003, the Yamdena was bailed up by the HMAS Fremantle, a Royal Australian Navy vessel on routine patrol. No doubt the fishing boat had already been spotted by one of the Coastwatch surveillance planes that regularly scan the Timor and Arafura seas, and its position relayed to the Fremantle. The Yamdena's crew watched as a boarding party clambered onto their boat, flooding it with torches. Basri, the captain, was singled out by the naval executive officer, Lieutenant James Ronald Simpson, who proceeded to interview him using Indonesian translation cards. They had been in the area for one day, Basri said. There were just two kilograms of red fish in the hold, but the Yamdena was 52 nautical miles inside Australian waters. Without an Australian fishing licence, the fishermen were breaking the law.

At 6.30 am, the crew members of the Yamdena were detained and their boat hitched to the Fremantle for the 240-nautical-mile tow to Darwin. The trip took two days. They came to rest in Darwin Harbour, where their boat was moored alongside 12 other Indonesian fishing boats that had already been detained. There should have been 13, but one broke up at sea under the strain of the tow. Its crew were separated and billeted on the other boats; the Yamdena took one of the men, bringing their number to seven.

The detention area was only a couple of hundred metres from Stokes Hill Wharf, but the distance may as well have been an ocean. The wharf is a popular place with locals and tourists alike, who come to enjoy the many cheap eateries that line the jetty, to drink beer at tables along the waterside or to fish off the pier. From there, you could eat your laksa and watch the detainees sitting on their boats, watching you. It had to be one of the only places in the world where a detention centre and a recreation complex co-existed in such visible proximity.

On the day I visited in July 2003, there were mixed feelings about the marine detention area among the local fishermen casting their lines off the wharf. One, who had arrived in Darwin three years before, was amazed at the size of the boats: "For the amount of miles these boats would have covered, the people are either desperate for food or desperate for money. You just wouldn't risk your life in a lot of these boats, that's for sure ... you wouldn't catch me in them." Another was less impressed: "They come over here and do the illegal fishing and it's just like a holiday if they get caught. Just like a holiday camp for them; let them go and they come back again in the next few months, never-ending." Many resented the illegal fishermen, and felt that the detention zone was an eyesore in an otherwise favourite tourist strip. Some tourists, on the other hand, seemed to appreciate the exotic splash of Asia that the brightly painted wooden boats contributed to the view, a pleasant reminder of Darwin's multicultural history.

What they may not have realised is that to a man, the Indonesian fishermen would have been feeling not only bored from sitting cramped and immobile for weeks on end, but extremely anxious. For the detainees, time spent idle weighs heavily. Like Mansur La Ibu, many come from remote villages where the quest to keep families fed and sheltered is a constant struggle. Each day they sit waiting is another day their families must find a means to survive without them.

On 5 February 2003, the Yamdena's captain, Basri, had his day in court, where he pleaded guilty to illegal fishing. In the Northern Territory, only the master of the vessel faces charges under the Fisheries Management Act. Indonesian fishermen almost never plead not guilty, as this can mean weeks and sometimes months of waiting to go to trial, with very little likelihood of winning the case. They are only permitted to be held for seven days under the Fisheries Act, after which they come under the Migration Act and become, in effect, illegal non-citizens, and can be held indefinitely. Unlike asylum seekers, however, these people have been brought to Australian land against their will and have no desire to stay here. Yet they have fewer rights than refugees, who have the option to return home. In sentencing an Indonesian fisherman in 2005, Justice Mildren of the Northern Territory Supreme Court remarked, "Not even a person arrested for a terrorism offence can be held as indefinitely as this defendant could be."

For the most part illiterate and dirt-poor, Indonesian fishermen have little hope of contesting the charges laid against them by a public prosecutor backed by the full weight of Customs, Fisheries and Defence. Legal representation is a mere formality, and absent altogether in Western Australia. As the fishermen are classed as non-citizens, there is no obligation for Legal Aid WA to represent them. A lawyer there who worked on a number of these cases gave up in the end, because he felt that such representation only served to give a false impression of a fair trial. "In reality, the presence of Legal Aid has no chance of affecting the outcome," he told me. The fishermen "do not speak English, have only their word against sophisticated Navy radar equipment, do not understand our system of law, and are destitute. It is, plainly speaking, a joke." I have sat in on trials where the translator hired by the court is unfamiliar with the dialect of the accused men, for some of whom Bahasa Indonesian is a third or even fourth language.

Fines handed down by the courts have ranged from $200 to $70,000. For second-time offenders, non-payment of these fines becomes a de facto prison term, effective immediately, to be repaid at a rate of about $100 per day in jail. Last year, there were approximately 461 prosecutions of illegal fishermen, nearly all of them Indonesian. A recent article in the Australian claimed that in the next two years, that number will reach 1500, with illegal fishermen expected to account for almost one-third of the Northern Territory's prison population by 2009.

In the case of the Yamdena, this was Basri's first arrest, and he was released with a penalty of $3000 and a five-year good-behaviour bond. The crew were permitted to sail the boat back to Indonesia. But for as long as they remained in Australia, they were considered illegal non-citizens and confined to their boat in the harbour. For three weeks, the crew waited impatiently for the rough weather to settle enough to allow them to sail their boat home.

The wet-season month of February is famous in Darwin for its stormy weather, torrential rains and monsoonal winds. On the night that Mansur La Ibu died, on 26 February 2003, the weather was described by the investigating officer as cyclonic. A policeman called to the scene the next morning recalled that the rain and wind were so heavy he could hardly stand. The seas were tempestuous.

Almost a year later, in February 2004, the coronial inquest into Mansur's death gave only glimpses of the events of that night. All seven fishermen were lying in the hold of the boat when Mansur suddenly became sick. As he lay gasping for breath in Basri's arms, the others tried desperately to raise the alarm. The two rostered employees of Barefoot Marines, the company contracted by Australian Fisheries to provide caretakers for the detained fishermen, were based 200 metres away at Stokes Hill Wharf. "People couldn't hear us yelling," Yamdena crew member Risman Wabulah's statement to the police reads. "We tried turning on the engine but it didn't work. We untied our boat off the mooring and drifted ..."

It was as long as an hour before the Barefoot Marines caretakers, alerted by the motor of another boat moored near the Yamdena also trying to raise the alarm, finally came to investigate. They found Mansur unconscious, but still breathing. He was manoeuvred, with some difficulty, out of the narrow doorway (which was no more than a metre high), placed into a small dinghy and brought to the floating pontoon at the foot of the jetty. In the dark, as the rain and wind beat down, one of the employees - both of whom were young, only one possessing a first-aid certificate - attempted to resuscitate Mansur. Twenty minutes later, an ambulance arrived. By this stage, his eyes were frozen and he had no pulse. For 20 minutes, ambulance officers worked to revive him, but there was no response. He was pronounced dead at 4 am.

The picture of that night remains incomplete. Because of a lacuna in the Northern Territory legislation, a death in immigration detention did not then have the legal classification of a death in custody, making the initial investigation of Mansur's death far less rigorous than it ought to have been. Nowadays, because of legislative amendments resulting from the inquest into Mansur's death, it would be investigated as a possible homicide.

That night, there was no qualified interpreter present to take the statements of witnesses. Instead, an employee of Barefoot Marines, hardly impartial and without any translation qualifications, was used by the police to translate the statements of the crew of the Yamdena. Reading these, it's clear that the employee had only a basic knowledge of Indonesian. The statements read like a page in a child's primary-school notebook.

Only three statements were taken when Mansur died, but all agreed on one thing: the fisherman was shaking and breathless in his last moments. For the coroner's constable present at the scene, this was apparently enough to conclude that an epileptic fit was the likely cause of death. For the forensic pathologist at Royal Darwin Hospital who performed the autopsy, the constable's word was apparently enough for his own finding of epilepsy. No attempt was made to ascertain whether Mansur actually had an epileptic condition. At the inquest a year later, Dr Anthony Tannenberg, an independent neuropathologist from Queensland, was asked to re-examine the medical evidence. He could find no sign of a history of epilepsy, nor of brain damage that could relate to epilepsy. He concluded that there was a less than 5% possibility that Mansur died of an epileptic fit.

On the day after Mansur died, another detained Indonesian fisherman, Karim Jabutafuan, was found unconscious. He was rushed to hospital without delay and also diagnosed as having had an epileptic fit, yet he was kept in hospital for ten days before he had recovered sufficiently to be discharged. The coroner, Greg Cavanagh, chose not to pursue a possible link between the two cases.

The coronial inquest took four days, and left many questions unanswered. Mansur's family weren't invited to attend, and were apparently not even informed that an inquiry into their son's death was taking place. None of the Yamdena crew was brought back to Australia to testify. Only one of the Barefoot Marine employees rostered on that night turned up at the inquest, making him the only witness to give evidence. The cause of Mansur's death remains a mystery.

What was clear to the coroner was that the conditions of Mansur's Australian detention were poor. Most disturbing was the fact that Mansur was held as a prisoner without charge, without trial and without access to judicial review in the last month of his life. Moreover, keeping men in what were clearly substandard conditions - on small boats without sanitary facilities, with only a tiny box for shelter, without the means to communicate in an emergency, with no ability to exercise except once a week - was unacceptable in light of international human-rights conventions. The minister for Fisheries at the time, Senator Ian Macdonald, didn't see a problem. These are "certainly not boats or conditions that I or most Australians would want to live on", he told me. "But these are village people from Indonesia, they've already lived on the boat for a long period of time and they feel comfortable there."

Mansur's treatment in death was a tragic reflection of the neglect he experienced in the final weeks of his life. His family were given the option of paying to return the body to Indonesia but this was clearly something they could not afford. Instead, they asked that their son be buried in Darwin and in accordance with Muslim tradition - that is, within 24 hours. What ensued was an ugly wrangling between Australian and Indonesian authorities over who should pay, which continued for five months as Mansur's body lay in the morgue. Eventually, he was buried in Thorak Cemetery with Muslim prayers, the burial costs paid by a Darwin pensioner of Indonesian background. The couple whose 16-year-old son lies in the plot next to Mansur's purchased a simple headstone to mark the fisherman's grave.

After the inquest, the coroner, Greg Cavanagh, was assured by Fisheries that there would be an internal review into the detention arrangements for illegal fishermen. The media was told that a land-based detention centre was on the way, and the matter quickly dropped from view. But just over a year later, another Indonesian fisherman, Muhammed Heri, died in custody in Darwin Harbour. Heri's boat was moored at a second quarantine zone, 1.5 nautical miles from Stokes Hill Wharf. Bad weather and choppy seas made his transfer from the cramped confines of his boat to the Barefoot Marines speedboat and then to the wharf difficult and slow. Heri was alive when they first reached him, but by the time the ambulance officers arrived at the pontoon area where he had been transported, he was dead. The cause of death was found to be heart failure. Then, a little more than a week after Heri's death, another fisherman suffered burns to 75% of his body while he was detained on his boat.

The timing of these events was unfortunate for Australian Fisheries, coming right at the moment of what was supposed to be a public-relations coup. Operation Clearwater, the biggest crackdown on illegal fishing in Australia's northern seas, an 11-day blitz that netted 29 boats and more than 240 unlicensed Indonesian fishermen, had just wrapped up. It garnered a fanfare in the press, and culminated in an announcement by the Howard government in early 2005 that a further $91.4 million would be allocated to the fight against illegal fishing in Australia's northern waters. A year later, the figure was increased to $389 million. The message was clear: now that the number of asylum seekers arriving by boat had been reduced to a trickle, the new era in border protection was about illegal fishing. The  perahu was now the primary threat to Australia's territorial sovereignty.

There were already moves to shift the fishermen off their boats. From January 2005, they were being taken to Baxter detention centre, in South Australia. Meanwhile, a detention centre at the HMAS Coonawarra, a naval base on the side of the Stuart Highway on the way into Darwin, had stood empty since its construction in 2001, despite costing taxpayers an estimated $118,000 per year in maintenance. Consisting of a series of demountable sheds, the centre was originally built as a temporary transit centre to accommodate illegal boat arrivals, but was never used. Six years later, it is still unfinished, despite tens of millions of dollars being poured into its construction. But it has a new name, the Northern Detention Centre, and the fishermen have been moved in.

A recent report by the Human Rights and Equal Opportunity Commission noted that of all Australia's detention centres, the Northern was most in need of improvement. When the HREOC visited late last year, the public phones hadn't been connected. Accommodation areas were overcrowded, drainage was poor and there were no education facilities. Washing staff cars was part of the "internal activities program". Detainees, concerned that the language barrier was making it difficult to communicate with officers, pleaded for Indonesian-English dictionaries. Most worrying was the number of children being held in the centre without any of the most basic mechanisms for child welfare that the government is obliged to provide. As the Human Rights Commissioner reported:

... there was nobody onsite with child welfare training and ... there was no relationship with the Northern Territory child-welfare services (except in the event of a reportable abuse incident). We understand that there is a "Child Liaison Officer" on site. But we were told that that person is simply a detention officer who is appointed as a point person for the children. The officer has no special training in child welfare. In our view this is an inadequate safeguard.

According to the Department of Immigration's website, there were 128 illegal foreign fishermen in detention, 24% of Australia's detainee population, early this year. It is estimated that more than 10% of Indonesian fishermen caught in Australian waters are minors. Some of them are, at 13 or 14, simply the eldest male in their family, and have the burden of responsibility for their family's survival. Many have lost their own fathers at sea.

Illegal fishermen don't have a lot of friends in the Top End, and perhaps even fewer in the rest of Australia. They are far less likely to provoke the sort of outcry of a few years ago over the tactics used against asylum seekers. That's good news for the government. Portrayed as a nuisance, the fishermen are equally a convenience for Australian politicians: as the 2001 election demonstrated, border protection is good politics. Witness the 2006 task-force report by the Australian Labor Party, which goes overboard in its use of the kind of rhetoric prevalent during the Tampa affair. The number of vessels reaching Australia is at a "crisis point"; the "problem is now out of control". In other words, the presence of Indonesian fishermen has assisted in maintaining a sense of emergency and crisis in the region. If the illegal fishermen weren't there in the first place, the politicians would have to invent them.

One billion dollars is to be spent by the federal government on ten new surveillance aircraft; a rapid-response helicopter costing $25 million is also being acquired. But the latest and most spectacular addition to the increasing militarisation of Australia's northern waters is the ACV Triton, a trimaran 98 metres long, obtained at a cost of $17 million for a one-year lease. Armed with two sub-machine guns and manned by 14 civilian crew and 28 armed Customs patrol officers, it can hold up to 30 illegal fishermen, including any children, for a month at sea. It is intended to act as a ‘mother ship' for Navy and Customs, allowing smaller patrol boats to unload their catch of illegal fishermen before going out to net some more. Once the Triton fills up, it will come into Darwin, where the fishermen will be transferred to the Northern Centre, to begin the next phase of their detention. In other words, whether or not they will be charged, the fishermen are looking at as much as an extra month in detention even before the post-apprehension process begins. None of the time will be counted towards a prison sentence.

The creation of a high-seas detention centre - dubbed a floating prison by critics - is an extraordinary development in Australia's border-protection history. If a lack of accountability has contributed to human-rights abuses within detention centres on land, the situation will potentially be exacerbated at sea. It's even more serious given the announcement late last year by the minister for Defence, Brendan Nelson, that the rules of engagement for the Australian Navy have been changed: officers are now permitted to fire directly into the hull or bow of illegal fishing boats. Previously, in the event that an illegal fishing boat was avoiding arrest, naval officers could only fire over the bow. As the International Tribunal for the Law of the Sea decided in 1999, shooting at people's boats in peacetime, even if they are fishing illegally, is an excessive use of force and highly likely to result in injury or death. It's particularly dangerous given the decrepit state of many of the perahu.

Donald Rothwell, a professor of International Law at the Australian National University, believes that one of the reasons that Australia has been able to get away with its treatment of Indonesian fishermen is that the Indonesian government has taken such a mild approach to the issue. To date, the Australian government has been able to feel reasonably confident that it can pursue an aggressive approach towards the fishermen - in the apprehension process, in detention and in the courts, in the summary burning of their boats (365 were burned in 2006), and now in firing on them and detaining them without charge at sea - without fear of criticism or complaint from its neighbour. According to Rothwell, legal academics find it incredible that Australia has had such a free rein. Rachel Baird, a lecturer in the law school at the University of Queensland, believes that the fact that Indonesia does not accept the jurisdiction of the International Court of Justice or the International Tribunal for the Law of the Sea may have lulled the Australian government into a false sense of legitimacy.

Fishermen make up one of the most powerless and impoverished sections of Indonesia's population. They are often itinerant, taking work where they can get it, often working for a boss, bas, who usually owns most of the fleet in the community. He lends them whatever they need for the journey on credit. This includes the boat, sailing equipment, fishing gear, food supplies and what they leave behind for their families to survive on while they are away. Most fishermen can't afford their own boats. "We are just like fish-seeking robots," one fisherman on Rote Island, which borders the Timor Sea, told me a few years ago. "Even in bad weather they force a captain and crew to sail. Fishermen don't have any choice." There are strong indications that these bas, and the big companies they work for, are driving the illegal fishing trade in Australian waters. It's a lucrative business: the London-based Marine Resources Assessment Group recently estimated that at least 19% of the world's total catch comes from illegal fishing.

Indonesian fishermen are, like their boats, cheap and dispensable. Mohammed Heri's family didn't hear from his boss after his death; it probably took all of five minutes to find a replacement for him. For the rest who crew vessels into Australian waters, a successful fishing trip will partly repay the debts incurred by the voyage - but not quite. Arrest will mean more debt, not only because of the loans made by their families during their absence, but also because they are liable to their bas for the confiscation of boats, equipment and catch. Those who end up going to prison to repay penalties will leave their families even more at the mercy of the bas, from whom they will have to borrow money to survive while their fathers, husbands or sons are incarcerated. Traditional fishermen are trapped in a cycle of poverty and debt that few can escape. As soon as they get home, they will be looking for the next fishing boat to crew on.

As a result, some fishermen are resorting to desperate measures to avoid capture at sea. In an extreme example, last year, a man known as Aceng pleaded guilty to throwing bottles filled with cement and brandishing a long sword at the Australian boarding party. In sentencing, the judge said:

You are a very poor man and your family live in poor circumstances. I accept that you owe a large debt to the owner of the boat and that in your desperate situation you accepted an offer of a position on the crew and an advance, which put you greater in debt. As part of accepting the position and the advance, the owner told you that if you saw the Navy you were to make sure that the boat came back to Indonesia. You were desperate for money and desperate over the plight of your family and this provides not only the reason why you took on the job, but an important background to why you behaved as you did when efforts were made to board the boat.

It would be easy to see Mansur La Ibu and Muhammed Heri as representatives of the two types of illegal Indonesian fishing in Australian waters: one traditional and small-scale, the other sophisticated and larger. Muhammed was the captain of an "ice boat". These vessels have ice-storage facilities, are larger than the traditional sail-powered perahu (often 15 to 20 metres long), and are equipped with GPS and, frequently, fish-finding equipment. They have bigger crews, can stay at sea longer, and store a lot more fish. Increased sightings of ice boats in Australian waters in the past few years seem to point to a shift in illegal fishing towards more sophisticated operations. But recently, perhaps to justify the government's increased enforcement measures, the minister for Fisheries, Eric Abetz, said that there are now fewer ice boats and more smaller boats being spotted and apprehended.

Whatever the case, both fishermen actually represent two sides of the same coin. Mansur was younger; if he had lived, he might have ended up getting a position similar to Muhammed's, on a bigger boat with the potential for a better catch. But both started out from the same place as millions of other Indonesian fishers, whose communities are being swallowed up by big operators with little interest in the long-term sustainability or welfare of locals and their communities. Their detention in Australia scarcely affects the industry, because there is undoubtedly a never-ending supply of men willing to take the same risk for a pitiful income.

Muhammed Heri's family got their son back in a body bag, two days after his death. The costs were met by the Australian government, which was clearly determined not to repeat the debacle of Mansur La Ibu's lengthy stay in the morgue. Two years after Mansur's death, his father set out to visit his son's grave in the only way he knew possible, by tracing Mansur's final journey. Arrested with his crew inside the Australian border and towed to Darwin, he managed to speak to the Indonesian consular officials there and explain his mission. Nobody will say how, but one quiet day, he was taken to Thorak Cemetery, where he was allowed to stand beside his son's grave for a few moments. The only thing he had to leave as a parting gift was his tobacco.

Ruth Balint
Ruth Balint is a writer and senior lecturer at the University of New South Wales. She is the author of Troubled Waters: Borders, Boundaries and Possession in the Timor Sea.

Cover: April 2007
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