Migrant boat allegations cast cloud over Australia

Paying people smugglers to turn back their boats could put more people in harm's way

Paying people-smugglers to turn back asylum seekers may not be in breach of Australian law but it could put vulnerable people at risk of further harm and encourage more people-smuggling, according to legal experts.

Allegations emerged last week that Australian officials had paid people-smugglers who were taking 65 asylum seekers to New Zealand to return the boat and its passengers to Indonesia.

Prime Minister Tony Abbott has refused to confirm or deny the allegations but, if true, the country's international standing and its relations with Indonesia would be put at risk, say experts.

Indonesia could perhaps take action against Australia under the 2000 United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air, says Australian National University law professor Donald Rothwell.

However he thinks that unlikely given it had not done so after several incursions by Australian navy vessels into Indonesian waters in recent years as part of border security policy.

"To date, Indonesia has not shown much inclination for (legal action), especially in the context of more egregious breaches of Indonesian sovereignty," he says.

Relations between Australia and Indonesia are already strained

However, paying people-smugglers to return refugees to Indonesia could put more strain on an already fractious relationship between the two countries.

Diplomatic relations sank to a new low in April after Indonesia ignored repeated Australian requests to spare the lives of two Australian drug-traffickers on death row.

Professor Rothwell says Indonesia might now be less inclined to help Australia combat people-smuggler activities.

On the domestic front, it is unclear whether such a policy would be in breach of Australian law.

The Australian Greens have written to the Australian Federal Police asking them to investigate what laws have been violated. Some experts suggest the alleged policy would be a breach of the provisions of the Criminal Code outlawing people smuggling.

However, they note that the government itself would have to initiate and investigate any charges.

But it would also depend on the circumstances, according to Professor Rothwell. He says Australian immigration and border security officials have been given "a fair degree of discretion" under wide-ranging maritime and migration laws introduced by the current government to support its "stop the boats" policy.

Australia's international standing could be put at further risk in the wake of the payments scandal

Legalities aside, the government must come clean with the Australian and international communities by confirming, denying or investigating whether Australian officials made the payments, leading refugee lawyer David Manne told the BBC.

"As a matter of fundamental democratic accountability, the government must disclose to the Australian and international communities, firstly, whether it is now Australian policy to pay people-smugglers to turn back asylum seekers and, secondly, did it do so," says Mr Manne.

"This type of conduct is likely to seriously harm Australia's reputation, credibility and authority on the international stage," he says, adding that if every country followed Australia's lead the international refugee protection framework "would collapse".

'No evidence'

Barrister, human rights and refugee advocate Julian Burnside said it would be "politically scandalous" if the allegation was correct, particularly given the government's hard-line rhetoric towards people-smugglers.

"A person with any sense of decency will not provide money to someone they regard as 'scum of the earth'," he says.

He warns such a policy could backfire on the government's efforts to stop people-smuggling "because they would reckon they would be in with a chance to get paid by the Australian government as well as by their passengers".

Mr Burnside says he has no evidence beyond what is in the public domain about whether the allegations are true. But he says that "as a person familiar with the forensic process of deciding facts, the prime minister's repeated refusal to come to grips with the question suggests strongly it was done".

"[The prime minister] was asked again and again and again whether it happened and he never directly answered it. Instead, he said: 'We've stopped the boats, we'll do anything 'by hook or by crook to stop the boats' ... If that was in front of a jury, the jury would find 'yes, it happened'."