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In November 2010, three young Indonesian men were arrested at Ashmore Reef with 37 asylum seekers on board a fishing boat. They were taken to Christmas Island, where they spent three months in the ‘Indonesian camp’ of the detention centre, and then to Darwin for another three months in immigration detention. From there the men were moved to maximum security prisons in Sydney, where they spent a further 11 months. One of them, Agung, was finally sentenced, in April this year. He faced court alone: the day before the trial, his brother-in-law was suddenly released into immigration detention to be sent home. Apparently Australian police had long suspected he was under 18, but it had taken them 17 months to act. The third member of the crew had been sent back a few weeks earlier, with a suspected case of tuberculosis.
Agung is now serving a five-year sentence, with a three-year non-parole period. This is not the first time he has seen the inside of an Australian courtroom or done time in an Australian prison. Although there is growing awareness of the injustice of imprisoning Indonesian crew while the real people smugglers go free – at least a dozen judges have spoken publicly about the inhumanity of imposing mandatory sentences on desperately poor individuals – Agung’s story of how he came to be ferrying asylum seekers, a story he shares with a number of other Indonesians jailed across the country, is generally far less understood.
I first came across Agung in a Broome prison in 1998, when he was about 18 years old. He was from the village of Pepela on Rote, an island that gained some notoriety in the 1990s as the launching place for the majority of Indonesian fishermen arrested for fishing in northern Australian waters in the Timor and Arafura seas. Rote is Indonesia’s southernmost island, only about 80 nautical miles (150 kilometres) or a day’s sail from Ashmore Reef. Like the other islands along the outer arc of the Lesser Sundas, it is characterised by arid conditions. Offshore fishing is an essential way of life for many Rotenese, and particularly for the Pepelans, for whom farming is rarely an option.
Agung had been found guilty of illegal fishing, and was held for a month in Broome before being tried and sent to a prison in the south of Western Australia for a further 16 months. I came to know him better when I travelled to Pepela in 2001 to make a film examining the issues facing traditional Indonesian fisherman like Agung in their confrontations with Australia. In 1979, the Australian Fishing Zone was declared over waters containing the traditional fishing grounds of the Rotenese, and ever since tensions over this small patch of sea had been intensifying.
Australia did initially make a gesture of recognition of the Rotenese’s historical attachment, signing a Memorandum of Understanding with Indonesia in 1974. The memorandum established a small area in the Timor Sea where traditional Indonesian fishing was permitted. This ‘MOU box’ encompassed zones extending 12 nautical miles (22 kilometres) from the five main reefs and associated sand islands of Ashmore, Cartier, Scott, Seringapatam and Browse. Ashmore and Cartier islands have since been excluded from the original terms, except to allow fishermen to seek shelter from storms. The memorandum also defined, for the purpose of legal access, what constituted “traditional” fishing, classifying traditional fishermen as “fishermen who have traditionally taken fish and sedentary organisms in Australian waters by methods which have been the tradition over decades of time.” In 1989, this was further qualified to include “traditional vessels” in the definition, which meant that any vessels or methods that were considered “modern”, meaning that they were motorised, were illegal. Agung would have faced charges of either fishing outside the MOU box, or of being in a boat (or perahu) with a motor.
Despite its apparent good intentions, the impact of the memorandum has been devastating. The MOU box has become severely overfished and degraded. Equating ‘traditional’ with ‘primitive’ has also meant that despite the modernisation of perahu from the 1970s on, fishermen are not able to use modern navigational equipment or motors that might assist with safety from storms, or help negotiate invisible but precise ocean boundaries. This has led to many deaths at sea and routine arrests for straying a few miles outside the boxed area. In one terrible storm in 2004, dozens of Indonesian fishermen died at sea, most of them from Rote.
Agung does not own his own boat and most likely never will. Most fishermen rarely have the means to finance fishing voyages, boat maintenance or fishing equipment, or are able to meet basic household expenses, send children to school or get medical help. Instead, they will work for a boss, or bos, who usually owns many boats used by the community. The bos lends them whatever they need on credit. This means the perahu, sailing equipment, fishing gear and food supplies, including enough for their families to eat while they are away fishing. The bos is also the main creditor for everything else. Even their houses are often built on credit. “We are just like fish-seeking robots,” one fisherman from Pepela told me. “Even in bad weather they force a captain and crew to sail. Fishermen don’t have any choice.”
On return from a fishing trip, the owner will take one third of the proceeds from the sale of the catch. After paying back the costs of the voyage, the fishermen divide the remainder equally, and pay some more towards their other debts. All of the fishermen I interviewed for the film, both in Pepela and in Australia, were heavily in debt to their bos, and this contributed to the paucity of their returns. “I have to sail because there are no other jobs here,” said one. “That is the only way I can pay off my debts.”
When a fisherman is arrested, these debts skyrocket. Some, like Agung, have racked up debts that their children will carry throughout their lives. Australian authorities confiscate boats, catches and equipment, regardless of the outcome of a trial, and the fishermen become financially liable to their bos for the losses. With their breadwinners detained in Australia, families are often forced to borrow still more to survive.
Periods in detention are typically lengthy, and much longer if fishermen plead not guilty. Fishermen almost always plead guilty. They 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 for fishing offences. Moreover, the alternative is often more time, sometimes months, of waiting to go to trial, with very little likelihood of winning the case.
For those found guilty of a second offence, penalties can typically reach tens of thousands of dollars, payable immediately. Fishermen are sent straight to prison in lieu of repaying their fines, with the length of sentence calculated at a rate of about $110 a day. These de facto jail sentences are in direct contravention of the United Nations Convention on the Law of the Sea, which forbids member nations (including Australia) to punish violations of fisheries law with imprisonment. Now standard in WA and NT courts, this approach is also at odds with the domestic legal principle that argues against issuing fines that cannot be repaid.
Back on the islands, family members are often left to scavenge; last time Agung was in prison his elderly grandmother had to walk up to 16 kilometres a day to beg for rice for the family. The strain of lengthy absences typically causes families to rupture. Fathers return home to discover their wives have had to find new husbands to survive, or that they are strangers to their children. One fisherman I interviewed was left by his wife and child, and he never saw them again. Another returned home to find the three-month-old daughter he had left behind had turned two: “I don’t know how I can make her get used to me. We have just met again, she is still quite scared of me.”
Indonesian fishermen, like their boats, are treated as cheap and dispensable. Traditional fishermen are trapped in a cycle of poverty and debt that few can escape. A situation of virtual enslavement exists on some islands. Even in their own waters, fishing has become much harder. In recent years, Indonesia’s waters have become severely depleted. Hundreds of trawlers, many foreign-owned, daily plunder Indonesia’s seas. The under-resourced Indonesian navy does little to enforce licensing or fishing restrictions, and in fact there is evidence that the navy is itself involved in illegal fishing operations.
Like many eastern Indonesian fishermen, Agung has ancestral links to fishing and sailing. He was orphaned at an early age, quit school when he was 11 and started crewing on fishing boats by the time he was 14 to support his grandmother. His uncle is a respected Rotenese fisherman who took him on as a crew member and taught him the fishing and sailing trade. When I travelled to Pepela in 2001 and met Agung a second time, he had recently married his childhood sweetheart. He was supporting his young wife and her two nieces, children of her sister who had passed away, as well as continuing to support his grandmother. His two nieces were very small, like many children in the region, their growth stunted by severe malnutrition. They looked about six and seven years old, but were 12 and 13. The younger of the two has since died of tuberculosis. Now, ten years on, Agung has three children of his own.
Their circumstances on Pepela were typical: they all shared a tiny, dirt-floored hut, the only furniture a single bed for Agung’s grandmother. They cooked on a fire outside. In 2009, the average annual income in the East Nusa Tenggara region was about Rp 2.6 million, or $270. The maternal mortality rate is 554 per 100,000 births (the Indonesian average is 307). The infant mortality rate is twice the Indonesian average. The proportion of households without access to clean drinking water is the highest in Indonesia.
All of which means that there is a large cohort of poor yet highly skilled fishermen, many with unmanageable debts, who have intimate knowledge of the sea routes at Australia’s doorstep and, in the words of anthropologist Dan Dwyer, “no way of legally utilising this skill”. This renders them very susceptible to the recruiting practices of the organisers of the people-smuggling trade.
Agung says that he was approached on Rote by an Indonesian man working for an organiser in Kupang. He was told he would receive a small payment up front, enough to leave something for his family, and he would receive the full amount when he reached Australia. Agung and his brother-in-law were sent north to Makassar, on the island of Sulawesi, to pick up the boat, where they were to wait for the passengers. An Indonesian policeman and an Indonesian fisheries officer delivered the 37 people to the departure point. What was not to trust?
It took four days to reach Ashmore Reef. Agung was scared the whole time. Organisers provide boats that are old, cheap and often unseaworthy, as there seems little point investing in boats that will be destroyed after a single journey. Moreover, compared to the familiar route between Pepela and Ashmore Reef, this journey was unfamiliar, and he felt enormous relief when they reached their destination. They waited to be picked up by the Australian navy – this, Agung had been told, was the point of the journey – and were taken to Christmas Island, where he tried to call the number given to him by the organisers to arrange payment to his wife. The number did not exist. Meanwhile, extraordinary as it may sound given the publicity campaign Australia has waged throughout the archipelago to warn of the penalties for people smuggling, Agung genuinely believed he would be released and sent home. He still maintains he had been assured by the organisers that ferrying people to Australia, as opposed to fishing, was legitimate. It was the refugees, he was told, not the boat crew, who would be detained while their particulars were checked.
Seventeen months later, only a handful of people were present in the small courtroom at Sydney’s Downing Centre District Court for Agung’s case. He pleaded guilty, so it was all over in half an hour. I had given evidence on his behalf, based on our long acquaintance. There was no attempt on the part of the public prosecutor to push for anything more than the minimum penalty.
Under Section 236B of the Migration Act 1958, any person who brings at least five non-citizens to Australia faces a mandatory minimum penalty of five years’ imprisonment, with a non-parole period of three years. In his sentencing, Judge Andrew Haesler remarked:
Any judge, particularly in a Common Law jurisdiction, would be disturbed by having to impose a mandatory sentence. An oath is sworn by judges to apply the law, but there is a clear disconnect between the application of basic sentencing principles which require proportionality between the offence and the offender, and a sentence the length of which is directed or restricted by the will of Parliament.
Haesler is a member of a rising chorus of legal professionals protesting the legislation, which compromises the independence of the judiciary to exercise discretion in sentencing decisions. As a number of submissions to a recent Senate inquiry into the Migration Amendment (Removal of Mandatory Minimum Penalties) Bill 2012 noted, the legislation directly contravenes basic principles of justice and the rule of law. In Agung’s case, Haesler declared that should the legislation change, consideration be given to his early release.
Judges are also voicing a growing awareness that such sentences do little to deter the trade. Wayne Martin, Chief Justice of Western Australia – a state that hosts a large number of these trials – recently observed:
the terms of imprisonment which the courts are required to impose are often considered disproportionate to the culpability of the low level offenders who come before the courts, and the circumstances of their offending, and do not seem to be having any significant effect in deterring others who might be offered a position as crew on a people smuggling vessel.
Recent statistics bear Martin out. As at 30 June 2009, there were 30 people-smuggling prosecutions before the courts; one year later, there were 102 cases pending; in June 2011, there were 304. Between 19 October 2008 and 10 March 2011, 347 crew members were charged, and as of February this year, there were still 208 cases before the courts. A shortage of interpreters means Indonesians are having to stay longer in prison before their cases can be heard. Even those found not guilty will already have spent well over a year in prison.
Prosecuting Indonesians for people smuggling is also expensive. The Commonwealth Department of Public Prosecutions estimated that it would spend $14 million on people-smuggling cases last financial year. There are currently up to three trials by jury a week in New South Wales alone, some running for a fortnight. Add to this the cost of keeping someone in jail – NSW government figures estimate $177,000 for two and a half years – and the expense begins to look obscene.
Agung works in the prison laundry and watches fishing shows on television. These are a revelation – particularly, he tells me, “extreme fishing”. The boats, the gear, the sport of it – to Agung, this is extreme, and enviable, decadence. He once described to me the sheer physical labour of fishing: spending four to six weeks on a cramped wooden perahu, surviving on rice cooked on a small fire inside a drum and the occasional fish, pumping out the bilge water to keep the vessel afloat day and night, catching scraps of sleep in the tiny wooden hold with the stench of drying shark fin and dead fish, hauling in lines of catch with their bare hands, three or four men at a time, and all at the mercy of occasional storms and choppy seas. A very different kind of ‘extreme’.
Agung’s jail survival strategy is not to think about his family at all, because it makes the time weigh too heavily. He already has rudimentary English and is learning more. His favourite book in jail, he tells me, is Hemingway’s The Old Man and the Sea.