CHAPTER 2
Key issues
2.1
The committee received evidence relating to the appropriateness of the
current mandatory minimum sentences imposed on people convicted of smuggling
offences. The majority of submitters and witnesses supported the removal of the
current mandatory minimum penalties from the Migration Act.
Appropriateness of mandatory minimum penalties
2.2
Ms Bassina Farbenblum, Director of the Migrant and Refugee Rights
Project at the University of New South Wales, considered that mandatory
sentencing offends basic notions of justice and the rule of law, and is inappropriate
for an advanced democracy with an independent judiciary.[1]
2.3
Mr Phillip Boulten SC from the Law Council of Australia submitted that
it opposes mandatory sentencing provisions in all contexts 'on the grounds that
they impose unacceptable restrictions on judicial discretion and are contrary
to the rule of law and human rights principles'.[2]
Legal Aid NSW argued that maximum penalties are sufficient to guide sentencing
of offenders in individual cases:
Maximums allow the Executive to indicate the seriousness of
the offence, while also allowing judicial officers appropriate flexibility in
sentencing individuals. It is a fundamental principle that justice must be
individual. Mandatory minimum sentences of imprisonment make individual justice
impossible.[3]
2.4
Professor George Williams from the Gilbert and Tobin Centre of Public
Law argued that mandatory sentencing requirements in Australian jurisdictions are
ineffective, citing former property law mandatory sentencing provisions in the
Northern Territory as an example:
...where we have had mandatory minimum sentencing in other
contexts it has broken down over a period of time because it has become
increasingly obvious to people in the community that judges are unable to hand
down just sentences. The best example of that is in the Northern Territory with
the former mandatory sentencing regime for property offences, which lasted four
years but came under increasing criticism because of the disconnect between the
crimes and the sentences imposed.[4]
Mandatory minimum sentences for people smuggling offences
2.5
The committee recieved considerable evidence regarding the effect of the
mandatory minimum sentences which currently apply to aggravated people smuggling
offences. Many submitters opposed these mandatory minimum sentences, and argued
for their removal from the Migration Act.[5]
For example, Ms Bassina Farbenblum expressed the view that section 236B of the
Migration Act has 'resulted in unjust, disproportionate sentences for people smuggling
offences'.[6]
Justification for mandatory minimum
sentences
2.6
The Law Council of Australia argued that, when people smuggling offences
were first introduced into the Migration Act in 2001, no specific justification
for mandatory sentencing provisions was provided. Further, no empirical
evidence or rationale was provided for the amendments in 2010 which extended
the application of mandatory sentencing for people smuggling offences.[7]
2.7
The Attorney-General's Department, however, noted the response of the former
Minister for Immigration and Multicultural and Indigenous Affairs, the Hon Philip
Ruddock MP (former Immigration Minister), to concerns raised by the Senate
Scrutiny of Bills Committee in 2002 regarding the introduction of mandatory
minimum penalties. That response stated that mandatory minimum penalties were
introduced following indications that the sentences being imposed by the courts
for people smuggling offences were not adequately reflecting the seriousness of
the offences.[8]
2.8
The Attorney-General's Department also noted that mandatory minimum
penalties apply to a 'very limited number of serious, aggravated people
smuggling offences in the Migration Act',[9]
and that 'mandatory minimum penalties exist for a range of serious offences in
Australia', including for repeat burglary offences in Western Australia and for
murder in the Northern Territory.[10]
Low threshold for the aggravated
offence in section 233C
2.9
Many submissions considered that the mandatory minimum penalties are
inappropriate for aggravated people smuggling offences. In particular, the low
threshold of the aggravated people smuggling offence in section 233C (organising
or facilitating the bringing or coming to Australia of a group of at least five
non-citizens who have no lawful right to come) was highlighted. The Law Council
of Australia considered that the threshold has 'effectively rendered the
standard people smuggling offence in section 233A redundant, given the
extremely high likelihood of any boats being intercepted in Australian waters
on suspicion of people smuggling having five or more passengers'.[11]
The Commonwealth Director of Public Prosecutions (CDPP) confirmed that
'[a]lmost all crew since September 2008 have been involved in ventures with more
than 5 passengers and therefore have been prosecuted under [section 233C or its
predecessor]'.[12]
Targeting boat crew rather than
organisers
2.10
The CDPP provided information that 'as at 8 February 2012, there were
208 defendants before the Courts being prosecuted...in relation to people
smuggling offences'. Of those 208, three were regarded as organisers and the
remainder were regarded as crew.[13]
Submissions supporting the Bill highlighted that the majority of those
prosecuted were the crew of people smuggling vessels with little culpability to
illustrate that the mandatory minimum penalties are being applied
inappropriately.[14]
For example, the Gilbert and Tobin Centre of Public Law commented:
[T]he vast majority of those being brought before the courts
on smuggling charges are crew members, often from impoverished fishing communities.
At best they are marginal to the smuggling networks the mandatory sentencing regime
purportedly targets and, given their backgrounds, it is hard to see how
imposing mandatory minimum sentences upon them can be justified according to
the principles either of specific and general deterrence or proportionality
that underpin sentencing policy in Australian jurisdictions.[15]
2.11
Others argued that the mandatory minimum penalties are targeting poor
uneducated Indonesian fishermen who are often being exploited or deceived by
people smuggling organisers.[16]
Victoria Legal Aid noted that 'the men arrested on boats are those who are
considered by the people smugglers to be expendable'. It argued that many of
the concerns with the current regime of aggravated people smuggling offences
would be ameliorated if 'longer terms of imprisonment were linked to factors
that are relevant to culpability, such are whether or not the person was an
organiser.[17]
2.12
The Australian Human Rights Commission suggested that many boat crew
involved in people smuggling operations are themselves probably individuals who
have been exploited by unscrupulous organisers of people-smuggling ventures.[18]
2.13
A representative from the Law Council of Australia claimed that the
mandatory minimum sentences imposed on boat crew may lead jurors to be more
likely to favour acquittals in people smuggling trials:
I think a lot of people who are called upon to be jurors in
these cases are aware that the people who they are trying are likely to receive
extremely significant jail sentences if they are found guilty. There is more
than half a suspicion that some sympathy is being shown to these people once
the jurors realise how insignificant a role they play and where they actually
really do not understand the full extent of the criminality. It is clear from
the figures put into evidence before this committee that the number of
acquittals has been steadily rising over the last 12 months. I expect that will
continue because people in the community are actually regarding these laws as
being fundamentally unfair.[19]
Deterrence effect of mandatory minimum
sentences
2.14
The deterrence value of mandatory minimum penalties for people smuggling
offences was also questioned in submissions.[20]
Legal Aid WA noted that there has recently been a large increase in people
smuggling prosecutions:
As at 30 June 2009 there were 30 people smuggling
prosecutions before the Courts;
As at 30 June 2010 there were 102 cases pending;
As at 30 June 2011 there were 304 cases pending.[21]
2.15
Legal Aid WA argued that 'the imposition of mandatory minimum sentences
has had no effect on deterring the people smuggling organisers and, in fact,
the number of cases [has] increased exponentially'.[22]
The Australian Human Rights Commission agreed that the current law is not
working as a deterrent.[23]
2.16
Others highlighted that the characteristics of those generally being
prosecuted for people smuggling suggests that they would not be deterred by
mandatory minimum penalties. For example, the Castan Centre for Human Rights
Law noted that the aggravated people smuggling offences tend 'overwhelmingly to
catch impoverished Indonesian fishermen who are enticed to perform the task by
promises of payments of around A$300-1200' and 'there is little evidence that
these people were aware of their liability under Australian law at the time
they committed the offence'.[24]
2.17
Mr Boulten from the Law Council of Australia agreed:
[A] lot of the people being caught up in the net are very
unsophisticated and no threat to their own nation's security. They have very
little understanding or even any concept of Australia's border protection. They
do not understand that what they are doing is regarded in Australia as very
significantly wrong...It seems that the message is not getting through that if
you come into Australian territorial waters as a crew member of one of these
vessels you are likely to spend a long time in jail.[25]
2.18
Mr Boulten emphasised that, in supporting the Bill, the Law Council of
Australia is not suggesting that the Parliament adopt lenient approaches to
those found to be involved in people smuggling activities, and acknowledged
community support for the development of a deterrent response to this problem.[26]
Nevertheless:
The profile of those people prosecuted for people smuggling
offences is often in stark contrast to the public image of people smuggling
that has generated this punitive approach. They are generally not sophisticated
criminals engaged in covert entry operations designed to exploit vulnerable
people. Often they are impoverished Indonesian fishermen who have not played
organisational or decision making roles in the people smuggling activities, and
who are themselves victims of more sophisticated criminal organisations.[27]
2.19
In relation to deterrence, the Attorney-General's Department noted the
comments of the former Immigration Minister to the Senate Scrutiny of Bills
Committee in 2002. In his response, the former Immigration Minister stated that
courts have imposed penalties for aggravated people smuggling offence which
'have generally been much less than the maximum penalty available'. Further:
This has not been a strong deterrent to persons who are
participating in people smuggling, and some have committed repeat offences once
they were released from prison.
New sections 233B and 233C make it absolutely clear that
Australia considers people smuggling to be a very serious offence. The
provisions are intended to provide a deterrent to those people who might be
minded to act as people smugglers.[28]
2.20
The Attorney-General's Department also outlined the other activities
that the Australian Government undertakes to deter people smuggling. In
particular:
An Australian Government public information campaign was
delivered by the International Organization for Migration in Indonesia in
2009-2010 to raise awareness among Indonesian communities of the dangers of
people smuggling and the consequences of involvement in this activity,
targeting potential crew members, fishermen, boat owners, boat builders, and
coastal industry workers.[29]
Repeat offence definition
2.21
The issue of the definition of 'repeat offence' in the Act was also
raised. The Attorney-General's Department noted that the former definition of
'repeat offence' meant that 'a people smuggler convicted for conduct relating
to two or more ventures during the same court hearing was subject to the same
lower mandatory minimum penalties as a first-time offender'.[30]
However, the amendment to the definition of 'repeat offence' in subsection
236(5) of the Migration Act made in 2010 now means that 'a person who is
convicted of multiple offences in the same proceeding will be subject to the
higher mandatory minimum penalties of eight years' imprisonment with a
non-parole period of five years'.[31]
2.22
The Law Council of Australia highlighted that this means that 'a person
who is convicted of multiple offences in the same proceeding is to be
treated as a "repeat offender" and therefore subject to higher
mandatory minimum penalties'.[32]
It expressed concern that 'a person may be punished unduly harshly as a
recidivist, that is, as someone who has demonstrated themselves as unwilling or
unable to reform, when in fact they are appearing before the Court for the
first time'.[33]
Judicial discretion
2.23
Many submissions emphasised the importance of judicial discretion in
sentencing as part of their support for the Bill.[34]
The Law Council of Australia commented:
Prescribing minimum sentences in legislation removes the
ability of courts to consider relevant factors such as the offender's criminal
history, individual circumstances or whether there are any mitigating factors,
such as mental illness or other forms of hardship or duress. This prescription
can lead to sentences that are disproportionately harsh and mean that
appropriate gradations for sentences are not possible thereby resulting in
inconsistent and disproportionate outcomes.[35]
2.24
The Judicial Conference of Australia noted that the principle of
judicial discretion is embodied in subsection 16A(1) of the Crimes Act 1914,
which states that '[i]n determining the sentence to be passed, or the order to be
made, in respect of any person for a federal offence, a court must impose a
sentence or make an order that is of a severity appropriate in all the
circumstances of the offence'.[36]
It emphasised that judicial decisions are not made arbitrarily and involve 'the
application of established legal principles to the facts and circumstances of
the individual case'.[37]
In contrast to the application of sentencing principles by the judiciary,
mandatory minimum penalties sometimes require judicial officers to impose severe
sentences which are disproportionate to the circumstances of the case resulting
in an 'injustice'.[38]
Such injustice is 'directly attributable to legislative involvement in the
essentially judicial function of pronouncing individual sentences on individual
offenders'.[39]
2.25
A number of submitters also pointed to unfavourable judicial commentary
made regarding mandatory sentencing and, in particular, in relation to the
mandatory minimum penalties for aggravated people smuggling offences.[40]
For example, Ms Bassina Farbenblum noted:
Thirteen Australian judges have expressed criticism of the
mandatory sentences for smuggling offences – 11 in the course of imposing the
five year jail term, and two extracurially. Several judges have explicitly
observed that without the constraint imposed by s236B they would have handed
down a sentence significantly lower than the mandatory minimum in light of the
circumstances and the individual's culpability...[41]
2.26
In contrast, the CDPP and the Attorney-General's Department focused on
the legal interpretation of mandatory minimum penalties by Australian courts.
The CDPP noted that the operation of the mandatory minimum sentencing provision
in section 233C of the Migration Act (prior to its amendment and
renumbering to section 236B in 2010) had been considered by the Supreme
Court of Western Australia in Bahar v The Queen [2011] WASCA 249.[42]
The CDPP argued that this decision is applicable to sentencing pursuant to section
236B of the Migration Act as 'it expounds the general principles of how
mandatory minimum penalties should be taken into account'.[43]
Futher:
In considering the operation of section 233C, the Supreme
Court indicated that the 'statutory minimum and statutory maximum penalties are
the floor and ceiling respectively within which the sentencing judge has a
sentencing discretion to which the general sentencing principles are to be
applied.' When there is a minimum mandatory sentence the question for the sentencing
judge is 'where, having regard to all relevant sentencing factors the offending
falls in the range between the least serious category of offending for which
the minimum is appropriate and the worst category of offending for which the
maximum is appropriate'.[44]
2.27
Officers from the Attorney-General's Department highlighted that some
judicial discretion is still retained even where mandatory minimum sentences
are in place:
...when applying the mandatory minimum penalties, it is
important to bear in mind, judges do still retain a number of discretions; in
particular, they of course retain the ultimate discretion, as the arbiters of
fact and law, to actually decide whether the person is guilty or not, but then
to apply the penalty they believe is appropriate within the relevant minimum
and maximum penalty as well, so that the court does still have the opportunity
to consider the relevant factors present in a particular case with regard to a
particular offender.[45]
2.28
The CDPP provided the committee with additional information regarding
judicial comment in these cases, highlighting ten cases since 1 January 2011 in
which judicial officers have made sentencing comments critical of the mandatory
minimum requirements. These include cases from the New South Wales District
Court, the Northern Territory Supreme Court, the Queensland District Court and
the Queensland Supreme Court.[46]
Administration of justice
2.29
The Law Council of Australia argued that the removal of mandatory
sentencing would also have potential benefits for the administration of
justice. This is due to the fact that mandatory sentencing regimes remove the
incentives for offenders to assist authorities with investigations (in the expectation
that such assistance will be taken into account in sentencing).[47]
Legal Aid NSW put forward the argument that mandatory minimum sentences for aggravated
people smuggling offences operate in practice as an incentive for defendants to
plead not guilty, as the only prospect of serving less than a three year
imprisonment term is an acquittal.[48]
Legal Aid Western Australia contended that abolishing mandatory minimum
sentences would likely increase the number of guilty pleas in these cases,
reducing the number of matters proceeding to trial.[49]
2.30
Several submitters raised the issue of the cost of prosecuting and
incarcerating convicted people smugglers.[50]
Victoria Legal Aid claimed that mandatory minimum sentences have significant
financial implications, increasing the funding required for prosecutions and
legal aid.[51]
Legal Aid NSW estimated the cost to the NSW Government of imprisoning
convicted people smugglers for at least 2.5 years of a mandatory three-year
imprisonment term to be over $170 000 per prisoner.[52]
2.31
The Attorney-General's Department told the committee that it has not
attempted to quantify the total costs of mandatory imprisonment terms for
people smuggling offences, as the cost is borne by the states and territories
through their correctional institutions, rather than being borne at a federal
level.[53]
The CDPP did provide figures regarding the cost of prosecuting people smuggling
cases, informing the committee that it has spent the following amounts on
prosecuting people smuggling cases over the last three financial years
(including the current financial year):
2009-2010: $1.52 million
2010-2011: $6.24 million
2011-2012: $7.64 million from 1 July 2011 to 31 January
2012, with a forecast total spend for the financial year of $13.99 million.[54]
Constitutional issues
2.32
The issue of the constitutional validity of mandatory minimum penalties
was also raised by submitters.[55]
The Gilbert and Tobin Centre of Public Law argued that the mandatory minimum
penalties imposed under the Migration Act have the potential to 'undermine the
separation of powers':
It may be that by removing the power of a federal court to
exercise discretion when sentencing means that the court's independence has
been compromised such that it has been invested with other than a judicial
power. Establishing a mandatory minimum may so constrain the decision as to
render the relevant provision in the Migration Act invalid. It cannot be said
with certainty how the High Court would address this issue. It can only be said
that there is arguable position that the provision is invalid.[56]
2.33
The Human Rights Council of Australia also considered that it is
'arguable that the imposition by Parliament of a mandatory minimum penalty
represents an unlawful intrusion by the legislature into the exercise of
federal power by courts provided for by Chapter III of the Commonwealth
Constitution'.[57]
2.34
The Judicial Conference of Australia also highlighted the constitutional
separation of powers, and the division of responsibilities between the
executive, the legislature and judiciary:
[I]t is the responsibility of the judiciary, and not the role
of the legislative or executive branches of government, to pronounce individual
sentences on individual offenders. Mandatory minimum sentences restrict
judicial discretion when giving effect to this quintessentially judicial task.[58]
Human rights and international law
2.35
Submitters supporting the Bill argued that the mandatory minimum penalties
imposed under the Migration Act for people smuggling are inconsistent with
Australia's human rights and international law obligations.[59]
International Covenant on Civil and
Political Rights (ICCPR)
2.36
A number of submissions focused on Australia's obligations under the
ICCPR, in particular article 9(1) (arbitrary arrest or detention) and article
14 (the right to review of sentencing).
2.37
Article 9(1) of the ICCPR provides:
Everyone has the right to liberty and security of person. No
one shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance with such
procedure as are established by law.
2.38
The Australian Human Rights Commission noted that a sentence may still
be arbitrary notwithstanding that it is authorised by law. Further, lawful
detentions may be arbitrary, 'if they exhibit elements of inappropriateness,
injustice, or lack of predictability or proportionality'.[60]
Due to its belief that the majority of those facing people smuggling charges are
'low-level crew', the Commission considered that 'the mandatory minimum
sentences...are not proportionate and may violate the protection against
arbitrary detention in article 9(1) of the ICCPR'.[61]
2.39
Article 14 of the ICCPR sets out procedural safeguards in civil and criminal
proceedings. In particular, article 14(5) of the ICCPR provides:
Everyone convicted of a crime shall have the right to his
conviction and sentence being reviewed by a higher tribunal according to law.
2.40
The Australian Human Rights Commission noted that, where a court imposes
the mandatory minimum penalty provided by law for the aggravated offence of
people smuggling, there is no right of appeal against the sentence. It
considered that this is in breach of Australia's obligations under article 14(5)
of the ICCPR.[62]
2.41
Another perspective was provided by Professor Ben Saul, from the Sydney
Centre of International Law, who noted that the ICCPR does not explicitly address
the issue of mandatory sentencing. He suggested that it is 'probably correct
that there is no strict requirement under the ICCPR that courts must enjoy, in
all circumstances, an absolute discretion to determine penalties'.[63]
Nonetheless, he considered that plausible arguments could be made that 'if
mandatory sentencing has the effect of imposing an excessive/disproportionate
imprisonment on the facts of the case, then such detention may be regarded as
arbitrary and/or unlawful, contrary to article 9'. Further, 'if mandatory
sentencing directs a court to impose an excessive punishment in the
circumstances of a given case, it is arguable that the court is unable to
exercise the 'independence' and 'impartiality' required of it in criminal cases
under article 14'. He concluded that the Bill's proposed elimination of
mandatory sentencing would reduce the risk of Australia infringing its
obligations under the ICCPR.[64]
2.42
Compliance with other articles of the ICCPR was also raised by
submitters. For example, the Gilbert and Tobin Centre of Public Law contended
that mandatory sentencing could raise issues under article 7 (the prohibition
of cruel, inhuman or degrading treatment or punishment); article 10 (the
requirement that persons deprived of liberty be treated with humanity and
respect, and that 'the essential aim' of incarceration be prisoners'
reformation and social rehabilitation) and article 15 (non-retrospective
punishment).[65]
2.43
The Judicial Conference of Australia did not directly raise the issue of
the ICCPR in its submission. It did state, however, that where mandatory
minimum penalties are imposed 'there is the practical inevitability of
arbitrary punishment as offenders with quite different levels of culpability
receive the same penalty'.[66]
2.44
The Attorney-General's Department noted the Australian Government's
obligations under the ICCPR, particularly in relation to arbitrary detention.
It stated that '[t]he test for whether detention is arbitrary is whether, in
all the circumstances, the detention of the particular individual is
appropriate and justifiable, and reasonable, necessary and proportionate to the
end that is sought'.[67]
Further:
The Australian Government considers that one of the primary
purposes of mandatory minimum penalties is to ensure that courts consistently
apply penalties commensurate with the seriousness of the offence. Under the
current mandatory minimum penalties regime, judges retain discretion to apply a
penalty within the relevant minimum and maximum penalties for the offence. This
enables the court to consider relevant factors present in a particular case.[68]
International Covenant on the
Elimination of Racial Discrimination
2.45
Professor Ben Saul highlighted as an example that the UN Racial
Discrimination Committee had found that mandatory sentences which target
offences committed disproportionately by Indigenous people may have a racially discriminatory
impact and violate the International Covenant on the Elimination of Racial
Discrimination:
There may be a question whether the current law has an
indirectly racially discriminatory effect, if, for instance, it can be shown
that it operates to disproportionately affect a particular racial group
compared to others.[69]
2.46
However, the Attorney-General's Department stated:
Mandatory minimum penalties under the Migration Act apply to
all persons convicted of aggravated people smuggling offences, irrespective of
race or nationality. While many persons convicted of people smuggling offences
are Indonesian nationals, other foreign nationals are also charged with people
smuggling offences, including offences involving smuggling persons by air.[70]
Protocol against the Smuggling of
Migrants by Land, Sea and Air supplementing the United Nations Convention on Transnational
Organised Crime (Protocol)
2.47
Ms Bassina Farbenblum from the Migrant and Refugee Rights Project described
the Protocol as 'the primary international agreement between states on the
prevention and combating of the smuggling of migrants' and noted that Australia
ratified the Protocol in 2004. She outlined that, while article 6 of the
Protocol requires state parties to establish criminal offences for the
smuggling of migrants, article 19 of the Protocol places limitations on the
definition and prosecution of those offences. Ms Farbenblum highlighted
that article 19 of the Protocol 'underscores that criminalisation of
smuggling pursuant to the Protocol must not undermine "responsibilities of
States and individuals under ... international human rights law"'.[71]
2.48
Ms Farbenblum also suggested that Australia's people smuggling offences
are inconsistent with those provided for in the Protocol:
Under the Migration Act, an individual can be sentenced for
the aggravated people smuggling offence (carrying the five year mandatory
minimum sentence) even if she was acting for purely humanitarian reasons and
had no profit motive. In contrast, article 6 of the Protocol requires that
smuggling only be criminalised if it is undertaken 'in order to obtain directly
or indirectly, a financial or other material benefit'.[72]
United Nations Convention on the
Rights of the Child (CRC)
2.49
Several submissions emphasised Australia's obligations to children under
the CRC.[73]
In particular submissions focused on:
-
article 3(1), which requires state parties to ensure that the
best interests of the child are a primary consideration in all actions
concerning children;
-
article 37(b), which provides that no child shall be deprived of
his or her liberty unlawfully or arbitrarily, and that detention or
imprisonment should be used as a last resort and for the shortest appropriate
time; and
-
article 37(c), which states 'child deprived of liberty shall be
treated with humanity and respect for the inherent dignity of the human person,
and in a manner which takes into account the needs of persons of his or her age'.
2.50
Submitters considered Australia's CRC obligations to be relevant since
children and young people are used as crew on people smuggling vessels and
there have been occasions where children have been incorrectly assessed as
adults by authorities. For example, Amnesty International Australia quoted UN
Office of Drugs and Crime research which indicates that children are purposely
being used by organisers as crew on people smuggling vessels:
The majority of people suspected of committing people
smuggling offences [in Australia] are Indonesians who have worked as crew on
such boats. In some cases, these individuals are children (under the age of 18
years) at the time of their arrest...
In many regions, there have been situations of minors being
used to captain the boats so as to avoid prosecution upon interception, though
this is not always the result. Often the boat will be piloted by an adult and a
child only placed at the helm when rescue services are spotted or where the
vessel is approaching its destination.[74]
2.51
As outlined above, the mandatory minimum penalties for aggravated people
smuggling offences do not apply 'if it is established on the balance of
probabilities that the person was aged under 18 years when the offence was
committed' (subsection 236B(2) of the Migration Act). In relation to this
restriction, the Australian Human Rights Commission commented:
The 'balance of probabilities' test is lower than the
criminal standard of 'beyond reasonable doubt'. As a consequence, a person may
be held to be an adult and subject to the mandatory minimum term of imprisonment
even where doubt exists as to whether that person is an adult.[75]
2.52
The Australian Human Rights Commission explained its concerns that age
assessment procedures for those accused of people smuggling offences may have
led to 'some children being charged, convicted and sentenced as adults'.[76]
It noted that, if this had occurred, the imposition of a mandatory sentence
would be inconsistent with the obligations under the CRC.[77]
Ms Catherine Branson QC, President of the Australian Human Rights Commission,
told the committee, '[w]hile you have a provision and there is some risk that
it will be applied to children, I think mandatory imprisonment of any kind is
unacceptable'.[78]
Alternative approaches
2.53
Some submitters suggested alternative approaches that could be taken to
minimise the potential adverse outcomes created by the current mandatory
minimum sentencing regime.
Granting judicial officers
discretion in enforcing mandatory minimum sentences
2.54
While the Castan Centre for Human Rights Law supported the amendments in
the Bill, it also referred to approaches taken in relation to mandatory
sentencing legislation in South Africa and the UK. These include clauses intended
to allow judicial officers discretion to impose lesser sentences where they are
satisfied that the circumstances would make it unjust to impose the prescribed
sentence for an offence. The Castan Centre noted that the use of '[s]uch a
clause [in Australia] would demonstrate the Government's disapprobation of
people smuggling without forcing the courts to ignore compelling aspects of
certain defendants' cases'.[79]
2.55
The Law Council of Australia agreed that this approach would be worthy
of careful consideration if a form of mandatory sentencing is to be maintained,
arguing that this approach would 'at least inject a degree of judicial
discretion into the sentencing process.'[80]
The President of the Australian Human Rights Commission commented:
I am not persuaded that we need a restriction on the
judiciary at all, but, if we do, I think it should be one of that character,
which does allow special cases to be treated as special.[81]
2.56
The Law Council also noted that a different form of words could be
adopted in the legislation to add some flexibility to the mandatory minimum
requirements:
...for instance, in New South Wales we have a sentencing
provision that requires a non-parole period to be 75 per cent of the head
sentence unless there are special circumstances. If there was some form of
words used that allowed a judge to exercise some discretion, even if the prima
facie position is a mandatory minimum, that would at least be better than the
law at the moment.[82]
2.57
The Gilbert and Tobin Centre for Public Law argued, however, that a
clause allowing judicial officers to impose a lesser sentence where the
prescribed penalty is considered unjust would create an unnecessarily
complicated system, and that simply eliminating the mandatory minimum
sentencing requirements altogether would be a more effective solution to
restoring judicial discretion.[83]
Differentiating between people
smuggling organisers and boat crew
2.58
Some submitters contended that incorporating a mechanism to differentiate
between boat crew and organisers of people smuggling operations when sentencing
offenders may be a more appropriate solution. For example, Victoria Legal Aid
commented:
A sounder and fairer model would differentiate between the
criminality of those who crew these boats and the true organisers of people
smuggling. If longer terms of imprisonment were linked to factors that are
relevant to culpability, such as whether or not the person was an organiser
rather than a boat recruit, many of the harsh effects of the regime would be
removed and the concerns for the treatment of this population ameliorated.[84]
2.59
Representatives from the Law Council of Australia, however, warned that
such an approach may be difficult to implement in practice:
If you are asking whether or not the law should be structured
so that there should be a law for the crew and a law for higher up, it is
difficult to imagine how that would be framed so as to make the distinction.
The distinction is recognised by a court when they have to determine sentence.
But to actually make a law that says, 'This type of sentence should be imposed
on crew members, and something more severe higher up,' it is a bit hard to
imagine how it would actually work.[85]
Committee view
2.60
At the outset, the committee affirms the reprehensible nature of
maritime people smuggling operations which endanger the lives and safety of
asylum seekers and boat crew, and notes that mandatory minimum penalties for
aggravated people smuggling offences were introduced to address inconsistencies
in the sentencing of offenders.
2.61
Statistics provided by the CDPP, and other evidence received during the
inquiry, clearly demonstrate that the majority of offenders convicted of people
smuggling offences in Australia are boat crew, rather than the organisers of
people smuggling operations. The committee notes the concerns expressed during
the inquiry that boat crew members charged with people smuggling offences often
have limited culpability and mitigating circumstances, which make the
application of the mandatory minimum sentences inappropriate and unjust.
2.62
Accordingly, the committee is of the view that the Australian Government
should review the mandatory minimum sentencing regime for people smuggling
offences. This view reinforces recommendation 2 of the committee's report into
the Deterring People Smuggling Bill 2011, which suggested that the operation of
the people smuggling offences in the Migration Act should be reviewed to ensure
that these offences continue to effectively deter people smuggling.[86]
2.63
The current mandatory minimum sentences are appropriate when applied to
organisers of people smuggling operations, due to the serious nature of their
actions and the risk their operations pose to the life and safety of others. The
committee considers, however, that there is a strong case to investigate
alternative options for the sentencing of boat crew convicted of people
smuggling offences. In this context, the committee does not believe that the
complete removal of mandatory minimum sentences, as proposed in the Bill, is
the most appropriate means of addressing this issue.
2.64
During the inquiry, evidence was received regarding mandatory minimum
sentencing provisions in other jurisdictions, such as South Africa and the
United Kingdom, whereby judicial officers are given the option to impose a
lower sentence where the prescribed mandatory minimum sentence is clearly
unjust. Such an approach in Australia would continue to demonstrate the
Parliament's view of the seriousness of people smuggling offences, while
allowing limited judicial discretion in exceptional cases. The committee
believes that this approach has some merit, and it should be considered by the Australian
Government as part of any review.
2.65
The committee notes the suggestion that some distinction could be drawn
between 'organisers' and 'boat crew' when sentencing convicted people
smugglers. The committee agrees with the Law Council of Australia that this
distinction may be difficult to define and codify in legislation. Nonetheless,
the committee considers that this possible amendment to the people smuggling
offences should also be assessed as part of its recommended review.
2.66
The committee also notes the work undertaken by the International
Organization for Migration in Indonesia in delivering the Australian government's
public information campaign to Indonesian communities in 2009-2010. Deterrence
initiatives such as this are essential in order to reduce maritime people
smuggling activities originating from Indonesia. The committee believes that
the Australian Government should pursue further awareness and deterrence
activities in concert with any possible changes to the sentencing regime for
people smuggling.
2.67
As a final point, the committee notes concerns raised by submitters
during the inquiry regarding mandatory minimum sentences and Australia's human
rights obligations under international law, and believes that these concerns
should be specifically considered in any review of the provisions undertaken by
the Australian Government.
Recommendation 1
2.68
The committee recommends that the Australian Government review the
operation of the mandatory minimum penalties applied to aggravated people
smuggling offences under section 236B of the Migration Act 1958,
with particular reference to:
-
alternative approaches to mandatory minimum sentencing provisions,
including where judicial officers are given discretion to impose lesser
sentences where they are satisfied that the circumstances would make it unjust
to impose the prescribed sentence for an offence;
-
options for differentiating between the organisers of people
smuggling operations and boat crew of these operations in sentencing; and
-
specific concerns raised during this inquiry regarding
Australia's human rights obligations under international law.
Recommendation 2
2.69
The committee recommends that the Australian Government facilitate and support
further deterrence and awareness raising activities in relation to people
smuggling offences, with a focus on relevant communities in Indonesia.
Recommendation 3
2.70
The committee recommends that the Senate should not pass the Bill.
Senator
Trish Crossin
Chair
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