Earlier today Dr U Ne Oo of NetIPR publicly responded to my short article regarding the upcoming trial of
alleged SIEVX people smuggler, Khaleed Daoed (see below).
Dr Ne Oo stated that Daoed's upcoming trial would have nothing to do
with the sinking of SIEVX - Daoed is only being charged with
people smuggling offences and as SIEVX did not reach Australian shores
then it follows that any people smuggling charges could not include
While I see the logic in Dr Ne Oo's analysis, oddly enough he is
mistaken - Khaled Daoed is being charged with people smuggling
offences in regard to two vessels, one of which is SIEVX.
Dr Ne Oo also raised the very good question of why Daoed has not
been charged in relation to the deaths on SIEVX.
When news broke in October that Daoed was to be extradited to
Australia, I asked a spokesperson from Justice Minister Ellison's
office why manslaughter charges were not being laid against Daoed? I
'Australia is unable to lay manslaughter charges for the SIEVX deaths
for jurisdictional reasons... At the time of the SIEVX incident,
Australia did not have manslaughter offences which applied extra-territorially (i.e. outside Australia) and in these circumstances.'
This was also confirmed by a spokesperson from the Shadow-Attorney
This response fits with information that surfaced last December when
Minister Ellison was under intense pressure from the Senate to have Abu Quassey extradited to Australia to face charges over his part in the SIEVX
A number of legal opinions were sought at the time by journalists
covering the case as to whether or not Quassey could be charged over
the SIEVX deaths.
Professor Gillian Triggs from the Centre for Comparative and
International Law at the University of Melbourne told Peter Mares that
Australia had no jurisdiction because:
'[O]ur criminal laws relating to either murder or negligent
manslaughter of one kind or another do not apply extra-territorially
and that is the fundamental complexity that exists in relation to this
prospect of extradition. And that is the core difficulty that our
criminal laws are confined to the territory over which we have
sovereignty. And in international waters by definition, we do not have
sovereignty, and we do not typically have jurisdiction.'
Dr Jean-Pierre Fonteyne, senior lecturer in international law at the
Australian National University, gave a similar opinion to journalist
Annabel Crabb, saying that 'Australian authorities would be unable to
prosecute Quassey [for homicide] whether the boat had been in
international or Indonesian waters'.
It would seem that Dr Ne Oo has brought to light an apparent
contradiction. Why is it that people smuggling charges can be laid in
relation to the SIEVX voyage, but manslaughter charges cannot?
Dr Ne Oo also raised the issue of the delay in Daoed's case coming
before a court. An examination of news reports on other people-smuggling cases indicates that a five month delay is not inordinately long. For example, it took
more than two years for the trial of alleged people smuggler Keis
Asfoor to come to court...
To: firstname.lastname@example.org, email@example.com
From: Dr U Ne Oo
Date: 12 December 2003
[In response to this article]
I think we will be mistaken if we believe that the reported trial of
alleged people smuggler Khaleed Daoed is in some way connected to
SIEV-X sinking. This is because the Australian government extradicted
Mr Daoed on the charges of alleged "people smuggling" on which, if Mr
Daoed being questioned at the court, only be answerable about the
refugee boats he had organised which arrived Australian shore
(obviously does not include SIEV-X). Unless a specific charges
relating to the deaths on SIEV-X is laid, the alleged smuggler would
not be able to provide any information regarding with sinking of
On the one hand, any such trial on individual "people smuggler" does
not resolve the issue of human rights violations by the state actors.
Insofar as human rights violations is concerned, the Indonesian
National Police and the people belongs to Australian Border Protection
Regime must be held to account in regards to SIEV-X sinking.
Australian government seems to be suppressing any issue that has
potential to raise the question about SIEV-X. Seen in this context,
the reported trial of Mr Daoed is merely to divert the public concerns
on SIEV-X (Why trial be delayed until April?). The Australian
government appear to take advantage of the fact that in general public
the issue of refugee boats, people smugglers and SIEV-X deaths (which
caused public most concerns) are blurred and blended into one. The
public media being quiet -- might make an excuse on alleged "people
smuggler" be prejudiced if court proceeding are reported on media --
but is not surprising I suppose.