Tough laws on people smuggling are a con

MICHAEL DUFFY

Occasionally I spend a day wandering from trial to trial in the Downing Centre, Sydney's giant justice factory. It's one way of keeping in touch with certain aspects of the city. A while ago I began to notice small dark men in the dock, always with an interpreter.

These are the crew from the Indonesian boats that carry asylum seekers to our shores, charged with people smuggling and farmed out by the Commonwealth to the states for justice. There are lots of them: as of last September, almost 200 had been convicted and another 251 were due before the courts.

The trials generally follow the same pattern: a naval and a federal police officer are flown down from north Australia to give evidence, followed by half a dozen passengers from the boat, who are brought from some distant detention centre to confirm that the accused was in fact responsible for sailing the vessel. The evidence can be interesting when the passengers describe their journey from home in some detail.

If you attend one of these trials, which are open to anyone, you will notice a strange thing. Although our leaders have long assured us the crew of these boats are vile people smugglers preying on human misery, in fact they often seem to come from far more wretched circumstances than their passengers.

These are frequently well educated people such as engineers who, despite the problems that made them leave home, were wealthy enough to raise something like $10,000 for the passage of each member of their families. And most of them have a future in Australia. The fishermen, in contrast, are the poorest of the Indonesian poor - as their appearance indicates, they come from the fringes of the Javanese empire.

Often they were ignorant of what they were doing. At his trial a fortnight ago, Abdul Suares from Sulawesi described how he and three boys were placed on board SIEV 228 at the last stage of its journey, and watched in confusion as the main crew took off in another vessel. He said he had been offered $540 for a crewing job and had not been told he was going to Australia. (The trial resulted in a hung jury.)

They are generally illiterate and face almost certain incarceration for three years, far from their families, followed by a return to an impoverished village. It's true they won't face persecution on their return, but there are circumstances in life just as bad as the risk of being persecuted.

I am not trying to compare one person's misery with another's, just pointing out that, in human terms, the virulence with which Australia punishes these crew members, nearly all of whom are found guilty and receive a mandatory three years in jail, is very odd. It fulfils no conceivable policy objective. Jail sentences are supposed to punish, but this is excessive: other criminals receive less for offences involving considerable violence or sex crimes.

Deterrence is another objective of sentencing, and probably three years in jail will deter these men from crewing a boat to Australia again. But, again, the same effect could be achieved with a shorter sentence. As to deterring others from committing the same offence, word about sentences handed out in the Downing Centre does not seem to have reached Indonesia's outer islands, because the boats keep coming.

Apart from not being effective, the policy is also hugely inefficient. One source high in the justice system estimates each trial costs about $250,000, while the jail time served is another $219,000 per prisoner. The large number of trials - for which NSW has been given no extra resources by the Commonwealth - is clogging up our justice system, placing increasing pressure on the courts, the Legal Aid service, and the prisons.

A lot of this could be avoided if, as in almost all other criminal matters, a plea of guilty were rewarded with a discount off the sentence. But because of the mandatory sentence here, no discount is possible, so most of the accused chose to go to trial in the faint hope something might turn up.

If a government policy does not fulfil any admirable objective, and is grossly expensive, we usually look for a political explanation. But if this one was supposed to appeal to anti-boaters by being tough on people smugglers, it has woefully failed to find its main targets.

Last year in the District Court, Judge Brian Knox sentenced Asse Ambo for bringing SIEV 229 and its 53 passengers to Australian waters. His honour (as I reported at the time) went to the trouble in his judgment of describing the nine stages in the human supply chain that brought its 53 passengers from Tehran and Baghdad. They paid about half a million dollars in total for the journey. How much did Ambo receive? Two hundred and seventeen dollars.

This is typical of the government's almost complete lack of success in catching the people smugglers who really matter.

In the four years to last September, just five organisers had been convicted here. As for overseas, Canberra likes to boast about its efforts to work with other governments to catch the big boys, but this is unproductive: in the same period, one organiser had been convicted in Indonesia while three people had gone down in Malaysia for harbouring illegal immigrants.

If anyone believes locking up poor fishermen is effective or reflective of success in the government's more general efforts against people smugglers, it's time Alan Jones disabused them. Someone is playing a cruel trick on those citizens concerned about border security.

Unhappiness with what is happening is simmering in the judiciary. About 10 judges have spoken out against the system in courts around the country, mainly upset by the mandatory sentences they have to give, both the principle and the length.

Last year Judge Knox said in his judgment it was difficult to see how mandatory sentencing could be reconciled "with the duty imposed by the Crimes Act to deliver a sentence which is 'of a severity appropriate in all the circumstances of the offence'."

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Homosexual marriage bills make their ill-fated debut

TWO separate private member's bills to legalise same-sex marriage will be introduced today in a historic move for the gay rights movement.

Labor backbencher Stephen Jones will present his bill to legalise gay marriage while Greens MP Adam Bandt and Tasmanian independent Andrew Wilkie will sponsor a second bill.

Mr Wilkie's bill, however, carries a caveat that religious ministers will not be obliged to perform same-sex ceremonies.

But with Labor MPs allowed a conscience vote on the issue, the twin bills appear doomed to be voted down by the combined forces of its Labor opponents - including Prime Minister Julia Gillard - and the Coalition.

Opposition Leader Tony Abbott has refused to allow a conscience vote and warned Liberal MPs last year against crossing the floor in contravention of party policy, which opposes same-sex marriage.

Yet another bill seeking to legalise same-sex marriage will be introduced later this year with the Greens senator Sarah Hanson-Young announcing her intentions to seek to present a bill in the upper house.

Mr Bandt has aired fears Labor and the opposition have colluded to water down Mr Jones' bill to civil unions, which is not expected to go to a vote for several months.

But Mr Jones told ABC radio today that assertion ''was putting the cart before the horse''.

The expected introduction of the backbencher's bill comes after December's national conference voted to reverse the party's long-standing opposition to same-sex marriage.

While Mr Jones will make history as the first ALP member to attempt to legalise same-sex marriage; he will also be the first government MP to introduce a bill that is voted down by his own party.

The member for the blue-collar seat of Throsby in the Illawarra region in NSW, says he has the support of ministers and of the Left but admits he does not expect the bill - which will propose to amend the Marriage Act to include gay and lesbian couples - to pass the House of Representatives.

But he said the prospect of defeat was not a deterrent as the legislation was "a reflection of the basic Labor Party values of equity and fairness''. ''I have not been a crusader on this issue,'' Mr Jones said. ''I came late but it is about how we treat people and the respect we afford their choices.''

Labor backbencher Andrew Leigh said this morning he intended to support the Jones bill, while his Western Sydney MP colleague David Bradbury confirmed he would not vote to legalise gay marriage.

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Red tape blocks school science lessons

IT'S the age-old question - which came first, the chicken or the egg? Queensland's 650,000 school students are now unlikely to be given the chance to find out after a recent crackdown was ordered on egg hatching in classrooms. In a decision criticised for tying schools up in more red tape, teachers must now submit a 15-page application form before their students can watch chickens hatch from eggs in an incubator.

Teachers are now saying the paperwork is too time-consuming and they won't bother with the once-popular classroom activity. The application form is the same one used to gain approval to dissect rats and toads in school laboratories.

The ruling that books and chooks don't mix has led to the cancellation of dozens of hatching kit orders after some Catholic schools booked incubators in time for Easter before realising they now needed formal approval from the Queensland Schools Animal Ethics Committee.

Exasperated owners of hatching kit businesses fear at least 1000 unwanted embryo eggs that had been pre-ordered must now be destroyed.

Ann Richardson of Henny Penny Hatching said schools had been threatened with fines of more than $30,000 if they hatched eggs in the classroom without formal approvals, which could take six months. "Teachers are just finding it too hard," she said. "There was no negotiation. We don't know what to do."

One teacher wrote to Ms Richardson in dismay at the decision, saying bean plants would prove a poor substitute for her life-cycle classes.

Opposition education spokesman Bruce Flegg said the paperwork burden had made it "virtually impossible" for teachers to continue the activity. "It is really a case of bureaucracy and red tape being imposed on the education of our children to their detriment," he said. "Any animal, whether at home or school, should be treated humanely, but our children have a right to learn about the natural world."

Teachers were previously able to conduct chicken hatching in schools without formal permission.

But Animal Ethics Committee project officer Brad McConachie said that has changed after advice from the State Government that poultry programs in schools needed formal approval by the committee under the Animal Care and Protection Act 2001 code of practice.

An Education Queensland spokeswoman said chicken hatching was complex and the welfare of the animals needed to be taken seriously.

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Sluggish health watchdog

"Arrogant" is the word repeatedly used for the TGA. Any lessons they have learned from the Pan Pharmaceuticals debacle are obviously the wrong ones

WHEN worldwide panic about faulty breast implants hit Australia in the lead-up to Christmas, the head of the medicines regulator, Rohan Hammett, was already halfway out the door.

Mr Hammett quit as national manager of the Therapeutic Goods Administration on December 23. Late this month he takes up a new job in his home town of Sydney as a deputy director-general at the NSW Ministry of Health.

It could not be a worse time for the TGA to be without a leader. Only two days earlier simmering concerns over silicone gel implants made by the French company Poly Implant Prothese (PIP) had erupted into a crisis. The French government warned women could "potentially be in danger" from the rupture-prone implants, with suggestions they could cause cancer. It ordered the 30,000 Frenchwomen with PIP implants to have them removed.

Germany followed suit, and Britain's National Health Service offered to remove the implants free of charge for any worried patient.

In Australia, however, where 12,300 PIP implants have been sold, the TGA continues to reiterate the advice it has given women for two years: there is no need for "routine removal" of PIP implants.

Yet its advice was based on inaccurate patient data. When the scandal broke, the TGA had recorded only 34 unconfirmed cases of Australian women whose PIP implants had burst. Now it has confirmed 134 cases of ruptured implants and another 15 are unconfirmed. It expects this number to rise.

Whether it is a flu vaccine that causes seizures in children, hip replacements that leak toxic metal into the blood or faulty breast implants, the watchdog appears slow off the mark.

A former ministerial adviser who dealt with the TGA recalls how the medical boffins holed up in its bunker in the suburbs of Canberra had little comprehension of the public's sensitivity to health scares.

The chief executive of the Public Health Association of Australia, Michael Moore, blames "arrogance fuelling incompetence" at the TGA. "It's almost defence by omission," he said. "They think they don't have a problem because they don't have the data to tell them they have a problem."

The watchdog is caught between women terrified their implants are leaking toxic chemicals, science that has not conclusively proved the devices do pose a threat and the PIP distributor, plastic surgeons and the federal government, none of whom want to pay for the removals and replacements of the suspect implants.

The TGA's handling of the PIP scandal will now be the subject of a Senate inquiry amid criticisms its flat-footed response is symptomatic of how out of touch it is with the public. "We rely on the TGA to be our watchdog," said Senator Nick Xenophon, who instigated the inquiry. "This is a clear case of where the watchdog needs a guide dog more than ever. This is yet another tragic example of serious flaws in the way our therapeutic goods regulator works".

Politicians, health lobbyists and bureaucrats speak of an "arrogant" regulator that is too slow to respond to public health scares and constrained by its industry funding. The government's promised overhaul of the TGA has now taken on a new urgency.

Brendan Shaw, who represents drug companies as the head of Medicines Australia, said while the TGA was considered one of the best regulators of its type in the world, it had a communication problem. " … it needs to be out there talking about what it does and why it makes decisions," he said.

Those familiar with the TGA date its insularity back to the Pan Pharmaceuticals debacle. Its recall of all Pan products in 2003 cost taxpayers nearly $120 million in compensation payments to the Pan founder, Jim Selim, and his customers and suppliers. The Health Department started to keep a closer eye on the TGA and it retreated from the public eye.

"The TGA was completely gung-ho then, now they're like a rabbit caught in the spotlight, they're just frozen," one parliamentarian who grills TGA managers at Senate estimates hearings said.

He recalls Mr Hammett regularly saying "if we had a 'retrospectoscope"' when trying to justify the regulator's actions. "He's not a bad bloke, he had to clean up a bit of a mess and protect the institution so he couldn't bag it."

Mr Hammett was not available for interview, and The Sun-Herald was not allowed to speak to the bureaucrat acting as TGA national manager.

Shaw believes the TGA, which reports to the federal Health Minister, must respond more quickly to public concerns. "With the ageing population, the growth of the internet and social media, the whole community is taking a more active interest in health," he said.

Patient advocates are incensed by what they perceive as the TGA's relatively passive response to the implants issue.

The founder of the Medical Error Action Group, Lorraine Long, questions how the TGA can be working in the best interests of patients when it is wholly funded by medical manufacturers. "They're compromised straight away," she said.

Mr Shaw laughs at suggestions TGA executives are being wined and dined. "It's been hard to pick up the phone and find people in the TGA," he said. "It hasn't been as open and as outgoing as it could be … They pay for their own lunch."

There are signs the regulator might be changing. In December the government released a blueprint for reform, including greater transparency, better engagement with the public and increased scrutiny of implants. It will be up to Mr Hammett's (yet to be named) successor to ensure they are delivered.

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