Humanitarian aid is now in the firing line of the refugee debate in Australia’s electoral race to the bottom.

Last month the Rudd government put forward a Bill that among other things removed the “profit” motive from the offence of people smuggling. Under the Anti-People Smuggling and Other Measures Bill 2010:

persons who provide material support or resources to people smugglers may be found guilty of supporting the offence of people smuggling irrespective of whether they received financial or other material benefit.

Furthermore, Section 73.3A  added to the Criminal Code of the Bill states:

a person commits an offence if they provide material support or resources to another person or organisation and in doing so, aids the commission of the offence of people smuggling.

The penalty is imprisonment for 10 years or a fine up to $10,000.

In the Senate proceedings on May 13, Labor Senator Penny Wong said the Bill, passed on the same day, “is targeting criminal groups who are involved in organising and benefiting from people smuggling activities”.

Unfortunately, due to the unusually ambiguity of the wording — which has little other goal than leeway for political use — the Refugee Council of Australia voiced concern to the Attorney-General the legislation could criminalise the activities of aid organisations, humanitarian workers, charity and church workers and other individuals who assist persecuted populations seeking asylum for humanitarian purposes.

The removal of a test of benefit, combined with silence as to the type of explicitly criminal activities the Act is designed to address, presents two clear problems: the capricious use of these provisions to prosecute those who have acted only charitably and with innocent motive; and the increase in risk borne by humanitarian organisations whose well-meaning aid might easily be classified in retrospect as “material support”.

The lack of effort to protect people who may be inadvertently caught by this legislation is exacerbated by the fact that the term “material support” is not elsewhere defined in Commonwealth legislation and instead seems to have been casually cribbed from the United States Criminal Code.

For my community, the diaspora Tamils living in Australia, the threat of the new Bill is very real. Every one of us has been affected by the war in Sri Lanka, which last year saw the slaughter of up to 40,000 Tamils in Colombo’s brutal military offensive.

Post-conflict Sri Lanka has seen no attempt at a political solution to address the dignity and reasonable aspirations of its most disadvantaged ethnic group. Up to 90,000 Tamils remain imprisoned in Sri Lankan government-run military camps and there is a continuing witch-hunt for Tamils who had links or were part of the Tamil Tiger separatist movement. Tamil males between 18-45 are hot targets. Media and aid workers in Sri Lanka continue to be censored and sometimes kidnapped or killed.

For those who survived the 26-year civil war, the diaspora is the key support network in the slow and painful recovery. Only Australia is now being so callous as to classify all support as having potentially criminal consequences.

The Refugee Council has noted this Bill is inconsistent with Australia’s international obligations, in that it does not acknowledge asylum seekers have a lawful right to enter Australia for the purposes of seeking asylum. While much of the emphasis of our current deplorable debate around refugee policy seems to imply that boats coming to Australia are simply illegal immigrants, the truth is that fear and desperation are the most common motives, and asylum remains a critical part of the process of protecting the disenfranchised.

Crikey spoke to barrister and co-director of the Sydney Centre for International Law, Associate Professor Ben Saul, who said that even for the people recognised by the UN as refugees, only 10% will get resettled within a reasonable amount of time. He said:

“It means the vast majority of asylum seekers worldwide need protection but can’t get it and the only way they can get it is by getting on a boat, paying a people smuggler and coming to a place like Australia. The problem is there are no solutions for people that need protection and that is driving demand for people smuggling.”

Fixing the root causes is not going to make the government look stronger in the face of growing dog-whistling by the coalition, so the smart political money is on a race to see who can be tougher on refugees. While we appreciate that the motives of people smugglers are rarely admirable, the plight of refugees shouldn’t be conflated with the business of those they are desperate enough to trust.

It would take a brave and honest government to seek to explain the principle of charity to the multitude of voters who claim they want strong action on boat people and actively fear the influx of refugees from troubled lands. Sadly, that principle seems to have been suspended by our otherwise overtly Christian political leaders.

In true post 9-11 politics style, the Australian government is going after anyone, even non-criminals, to look tough and in control. But the willingness to compromise international obligations, and labeling humanitarian assistance as a criminal act, goes against the innate instincts of humanitarian pragmatism. Like the freeze on the processing of asylum seekers from Afghanistan and Sri Lanka, this is just another show by the Rudd government and the coalition of their concern of politics over justice.

If it criminalises well-meaning humanitarian support, that will be lamentable. If its further consequence is to force the removal of aid from the most abused people on the planet, then that will be truly criminal.

* Brami Jegan is a visiting scholar at the Centre for Peace and Conflict Studies, University of Sydney and a refugee advocate.