Chapter 7
Addressing law and order challenges
7.1
The committee heard evidence that local people are concerned about the
unregulated and unauthorised entry of some PNG visitors to their shores. Some
remain in communities either without authority or beyond the time approved for
their stay. A number travel over to the islands in the Torres Strait to carry
out activities that are not recognised as traditional, such as shopping and
visiting health clinics, while others engage in unacceptable or even criminal
behaviour.
7.2
In this chapter, the committee considers the measures that Australian border
enforcement agencies in the Torres Strait are taking to ensure that PNG
visitors to the Torres Strait Islands observe the correct procedures for
entering Australia. It also looks at the effectiveness of the current pass
system and the methods used for identifying arrivals from the PNG Treaty
villages.
Understanding local laws and community expectations
7.3
Although traditional visitors are not subject to the same immigration
requirements as other people travelling to Australia, they are expected to abide
by the law and to respect island custom. Local communities and governments at
all levels have been engaged in educating and disseminating information to
local inhabitants not only on the provisions governing the free movement of
people but also about community expectations regarding standards of behaviour.
Guidelines for traditional visitors
7.4
The production of the Guidelines for Traditional Visitors is a
recent initiative to help raise awareness of the protocols to be followed when visiting
the Torres Strait. They are the result of an agreement reached by traditional
inhabitants and represent their views on what is and is not acceptable
behaviour.
7.5
The guidelines are intended to inform travellers about their eligibility
to travel under the free movement provisions; the villages or islands that may
be visited; the duration of visits; pass arrangements; and matters relating to
their stay on the islands. They explain the procedures that traditional
inhabitants are required to follow when moving across the border and how they
should conduct themselves when visiting a community. For example, traditional
inhabitants are advised not to travel 'until you receive approval (signed pass)
back from the community you wish to visit'. The guidelines state:
- Do not bring non-Traditional Inhabitants into Australia or PNG;
- Do not bring drugs, guns, alcohol or pornographic material into
Australia or PNG; and
- Do not steal.
7.6
They advise traditional visitors to observe national and local laws and
customs providing the following guidance:
- Respect the traditional way of life—don't get drunk or rowdy;
- Keep our communities beautiful—do not litter;
- Do not chew or spit beetlenut (buai) in public places; and
-
Respect the Treaty and your rights under the Treaty.
7.7
To assist MMOs when processing arrivals, the guidelines also contain illustrations
of where visitors are to land. Mr Heath explained that on the larger islands,
such as Erub and Darnley, it was particularly difficult for MMOs to check
arrivals because of the distance involved in going to the back side of the
island where there was a landing point. He said:
We have our staff positioned at the front wharf and we, from
time to time, get notified of arrivals at the back. Those arrivals towards the
back are obviously more suspicious. They present some concerns to us. Going
forward we will look at refusing them clearance and arrange for their return as
soon as possible.[1]
7.8
Mr Heath stated further that steps have been taken to reduce the number
of designated landing places and that the guidelines assist in conveying this
information. He noted:
...prior to illustrating the designated points on each of the
islands—especially on Saibai—that there have been generally two points of
arrival. With the publication of the guidelines we are moving towards one
designated entry. Together with the agreed and endorsed guidelines the
publication shows that traditional visitors must arrive at those points.[2]
7.9
According to Mr Heath, MMOs would provide illustrations of the
designated entry points to each visitor and, as part of a continuing
information awareness program, distribute them during Treaty awareness visits.[3]
7.10
The guidelines also warn people of possible action that could be taken
against them should they breach Treaty provisions or arrangements set up under
those provisions. For example, they state that: 'If you commit a crime during a
visit you will be dealt with under Australian law' and 'If you regularly
overstay your visit, you might be banned from making future visits'. They also
make clear that visitors will be turned away and prevented from entering
Australia if they:
- travel for a non-traditional purpose (apart from emergency health
treatment)
- bring non-Treaty people into the Torres Strait;
- travel with children without their parent or legal guardian on
board; or
-
travel with a person banned from making traditional visits.
7.11
The Treaty awareness visits discussed in chapter 5 are a vital part of
the continuing education program undertaken by various government agencies to
ensure that PNG visitors are aware of the rules, regulations and expectations
governing their trips to the Torres Strait.
7.12
Evidence before the committee suggests that education and awareness of
arrangements under the Treaty may not be sufficient to deter some PNG nationals
from breaching treaty provisions. In this context, the Treaty allows Australia
or PNG to take action to restrict the movement of traditional visitors for
reasons including non-compliance with Treaty arrangements.
Restricting free movement
7.13
Under Article 16 of the Treaty, when administering their immigration and
customs laws and policies, both countries are required to act in a spirit of
mutual friendship and good neighbourliness. In doing so, however, they are to
take account of:
...the importance of discouraging the occurrence, under the
guise of free movement or performance of traditional activities, of illegal
entry, evasion of justice and practices prejudicial to effective immigration,
customs, health and quarantine protection and control.
7.14
The article states that each party to the Treaty reserves the right 'to
limit free movement to the extent necessary to control abuses involving illegal
entry or evasion of justice'.
Closing the border
7.15
One option to deal with a problem associated directly with the conduct
of traditional visitors is to close the border temporarily. The guidelines inform
traditional inhabitants that Torres Strait Islands can ban or restrict visits
for reasonable circumstances and cite 'disease outbreaks, resource limitations
(for example water shortages) security or quarantine concerns'. They state that
the island requiring a ban would notify Immigration, DFAT and the Border
Liaison Officer in Daru of any such request for restrictions.
7.16
With regard to health issues, the committee discussed measures taken to disallow
traditional inhabitants temporarily from visiting an island where the water
supply was running low or there was an outbreak of an infectious disease. Local
leaders, however, were concerned about the effective enforcement of these bans.
Mr Rodney Scarce, TSIRC, noted that action may not necessarily follow a request
to restrict border crossings:
There were times when we were barging water in to Mabuiag
Island and we did not want extra people coming there. We had to close down all
of our construction program and everything on Mabuiag because we were bringing
in water from the mainland or Thursday Island. We did not need those additional
people to come in as well. Under the current treaty we cannot close the border.
So it comes back to not being able to issue any prior advices, but when you get
them flaunting that no prior advice is needed because there are no penalties at
the end of the day if they do it, they still turn up and we still have the
impacts on the residents of the particular islands. That can be the case for
any of them—I just gave Mabuiag as an example as that was the last time we had
to barge water in.[4]
7.17
Mayor Gela was also of the view that 'Strength needs to be given to the
TSIRC and the community to close the border whenever we need to, for whatever
reason'.[5]
But as noted in chapter 5, Australia's Treaty Liaison Officer told the
committee that his office had supported all requests by community leaders for a
temporary restriction on cross-border movement.
7.18
It seems apparent that community leaders and government officials have
quite different interpretations on the effectiveness of the measures used to
control cross border movements during periods when the number of PNG visitors
to particular islands needs to be limited. The committee notes similar
differences in interpretation in relation to overstayers.
Banning individuals from visiting
7.19
Removing the entitlement to travel to the islands is another option
available to Australian authorities to help them deal with people who create
law and order problems. Consistent with Article 16 of the Treaty, if a
traditional visitor breaches the free movement provisions, section 16 of the Commonwealth
Migration Act 1958 enables the relevant minister or his/her delegate to declare
a person ineligible for free movement.[6]
According to DIAC, however, because the declaration is, 'in effect, a ban on traditional
movement for life', it is used rarely. In December 2009, 30 PNG nationals were
subject to section 16 declarations.[7]
7.20
Some local leaders would like to see stronger action taken under the law.
Mayor Gela cited inadequate deterrence measures as a major failing. He
explained:
We are well aware that article 16 exists, and that could be utilised
as a tool in relation to individuals that are found in breach of the treaty
arrangement; however, there are no penalties applicable to that arrangement.
People are well aware of this, so they will continue to breach the treaty
arrangement that is [in] place because there is no way of policing it; there is
no way of penalising people for breaches.[8]
7.21
TSIRC called for DIAC 'to enforce the provisions of the treaty, with "overstayers"
being issued with a section 16, hence not being allowed to travel again'.[9]
Refusing entry
7.22
Refusing entry to people who do not comply with the travel arrangements
under the Treaty or who behave inappropriately is another way of managing illegal
activity or unacceptable behaviour by PNG visitors. In this regard, Mr Heath
informed the committee that since 1 July 2009, DIAC has implemented a new
recording structure and protocol and established some business rules that all
MMOs are now using to assess the purpose of visits. He explained:
Obviously health, shopping, collecting goods and all that are
not considered traditional activities, and so we are refusing them clearance
and asking them to return.[10]
7.23
This new system was also discussed briefly in the chapter on health.
7.24
According to DIAC officials, the tightening of the system has had a
positive effect. Mr Allen referred to recently published statistics for the
first part of 2010 which, when compared to statistics from 2009, showed that 'a
much more rigorous approach' had been taken in relation to the assessment of
traditional movements. This new approach, which is intended to be a permanent
change in DIAC's operations in the Torres Strait, has resulted initially in 'a
substantial increase' in the number of refused immigration clearances and an
11.7 per cent drop in the overall number of traditional visits.[11]
As noted earlier, when explaining the number of refused clearances, Mr Heath stated
that 'we are refusing clearance to people who perhaps we should have in
previous years'.[12]
7.25
The following tables show the increase in the number of people refused
entry since the introduction of the new system. For example, between 1 July
2009 and 31 May 2010, from a total of 23,919 traditional visitors from
PNG, 4,253 were refused an immigration clearance. Of these, 1,058 were refused
entry because they wanted to shop, not a traditional activity; and 607 because
they arrived on a day when an official ban approved by the DFAT Liaison Officer
was in place due to issues such as water shortages. These figures stand in
contrast to those for the previous year, where only 589 were refused an
immigration clearance from 27,079 traditional visits from PNG.
7.26
Mr Kerlin explained that DIAC had also recently undertaken efforts to reduce
the number of overstayers, including through engagement with island councillors
and communities, traditional visitors and other agencies.[13]
Committee view
7.27
The committee acknowledges the preliminary success of DIAC's recent
efforts to strengthen its management of the movement of traditional visitors to
the Torres Strait. It also notes that the visitor guidelines should assist MMOs
not only to educate people in the Torres Strait about the correct procedures to
be followed for crossing the border but also act as a reference point to help
explain the reasons when they refuse entry.
Table 7.1: Traditional Movements (1 July –31 May 2010)
ISLAND |
2009-10* |
2008-09* |
Traditional
Visits from PNG |
No. of PNG visitors transiting |
Traditional
Visits from PNG |
%
difference |
Saibai |
13,600 |
643 |
15,815 |
-14.0% |
Boigu |
7,297 |
93 |
7,898 |
-7.6% |
Dauan |
1,272 |
3 |
1,130 |
12.6% |
Erub
(Darnley) |
757 |
122 |
721 |
5.0% |
Iama
(Yam) |
339 |
- |
433 |
-21.7% |
Masig
(Yorke) |
264 |
- |
172 |
53.5% |
Mer
(Murray) |
193 |
- |
128 |
50.8% |
Badu |
110 |
- |
95 |
15.8% |
Mabuiag |
29 |
6 |
57 |
-49.1% |
Kubin
(Moa) |
26 |
- |
23 |
13.0% |
Warraber
(Sue) |
24 |
9 |
53 |
-54.7% |
St. Pauls (Moa) |
7 |
- |
22 |
-68.2% |
Ugar
(Stephen) |
1 |
118 |
498 |
-99.8% |
Poruma
(Coconut) |
0 |
- |
34 |
-100% |
TOTAL |
23,919 |
994 |
27,079 |
-11.7% |
Table 7.2: Refused Immigration Clearances (1 July to 31 May 2010)
ISLAND |
Health |
Shopping |
Accompanying
Pax Refused* |
Ban
on Visits |
PNG from non-Treaty
village |
Collecting
goods |
Search
& Rescue |
Law
Enforcement |
Third
Country National |
Other |
2009-10*
TOTAL |
2008-09* TOTAL |
Saibai |
690 |
966 |
653 |
601 |
151 |
82 |
- |
2 |
1 |
147 |
3293 |
140 |
Boigu |
464 |
- |
345 |
- |
15 |
- |
6 |
- |
- |
12 |
842 |
405 |
Dauan |
- |
92 |
- |
6 |
2 |
- |
- |
- |
- |
3 |
103 |
- |
St
Pauls (Moa) |
- |
- |
- |
- |
- |
- |
- |
- |
- |
8 |
8 |
- |
Erub
(Darnley) |
3 |
- |
- |
- |
- |
- |
- |
- |
- |
1 |
4 |
31 |
Iama
(Yam) |
- |
- |
- |
- |
- |
- |
2 |
- |
- |
- |
2 |
3 |
Mabuiag |
- |
- |
- |
- |
1 |
- |
- |
- |
- |
- |
1 |
- |
Masig
(Yorke) |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
9 |
Mer
(Murray) |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
1 |
TOTAL |
1157 |
1058 |
998 |
607 |
169 |
82 |
8 |
2 |
1 |
171 |
4253 |
589 |
*e.g.
escorts for patients seeking health treatment; passengers on board vessel with
a person banned under section 16 or from a non-Treaty village; etc
Identification of PNG traditional inhabitants
7.28
The ability to establish a visitor's identity is a critical factor in
determining bona fide arrivals. But, as Mr Allen explained, the more
structured arrangements governing normal air and commercial sea arrivals are 'not
appropriate to the particular needs of traditional visitation in the Torres
Strait'.[14]
Thus, as noted previously, because traditional inhabitants do not require
formal travel documentation, Australian authorities can experience difficulties
confirming their identity: effectively unable to 'determine who is a genuine
traditional inhabitant'. This situation where the identity of visitors
travelling through the region cannot be formally verified presents problems as
evident in the differing interpretations about who is or is not an overstayer.
It also has serious implications for law enforcement agencies.
7.29
The Queensland Government argued that a formal identification method for
PNG nationals traversing Australian waters was 'an issue that requires further
consideration in the context of treaty governance arrangements'.[15]
Commissioner Atkinson, Queensland Police, underlined the level of discontent
with the current identification system and noted that the movement of people
from PNG concerns the police force and, in his view, needs to be managed. He
noted that biometrics and facial-recognition technology may well offer a
potential capability in the future.[16]
Mayor Gela also informed the committee of the 'need to have some sort of
identification measure in place—whether it be a thumbprint or photo ID'.[17]
7.30
This lack of rigour in the visitor pass system has implications for the
effective management of Australia's borders especially with regard to organised
crime and the monitoring of people of interest to the police. Mr Allen informed
the committee that DIAC was always looking for appropriate enhancements to its existing
arrangements in the region.[18]
The committee explores the options for improving the identification system in
the Torres Strait later in chapter 12 when considering border security.
7.31
In this chapter the committee considered the measures Australian border
enforcement agencies take to educate PNG visitors about the arrangements for
gaining entry to the islands in the Torres Strait and procedures at the border
to prevent breaches of these arrangements. In the following chapter, the
committee focuses on policing matters associated with the conduct of visitors
after they have gained entry.
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