DISSENTING REPORT BY
THE AUSTRALIAN GREENS
Introduction
1.1
The Senate inquiry into the Deterring People Smuggling Bill 2011 ('the
Bill') uncovered a great reservoir of concern and disapproval among the
Australian community, human rights advocates and legal experts about the
proposed amendment and the legislation it seeks to amend. The depth of concern
expressed by submitters is downplayed by the majority report. While the
majority report notes the significant criticisms that were raised through the
inquiry process, it brushes them aside without due response and recommends
passing the Bill through the Senate. The concerns raised should be taken
seriously and the Bill should not pass the Senate.
1.2
The Bill ostensibly seeks to 'clarify' the phrase 'no lawful right to
come to Australia' as it appears in the hierarchy of Commonwealth people
smuggling charges. The Australian Greens opposed the legislation that gives
rise to those charges when it was proposed in 2010 for the reasons that were
detailed in a dissenting report on the inquiry into the Anti-People
Smuggling and Other Measures Bill 2010 ('the 2010 Bill'). The concerns
raised by the Australian Greens in that dissenting report still stand.
1.3
In fact, those concerns have regretfully been borne out by the reality
of the prosecutions. Since the 2010 Bill there have been numerous charges laid
and prosecutions under Commonwealth people smuggling charges. As a result of
the process we now have an improved understanding of the people smuggling
industry, the relative roles of those involved and the backgrounds and
motivations of crewmembers on board the vessels. We also know the success or
otherwise of deterrence and punishment of our current system of prosecuting and
convicting people smugglers.
1.4
The submissions and evidence to the inquiry into this Bill made it clear
that the Commonwealth people smuggling charges do little to deter people
smuggling; are in breach of various international protocols and treaties; and
include mandatory sentencing which is unjust and in breach of the rule of law.
These criticisms remain unchanged since the 2010 inquiry. However, the proposed
amendment is additionally problematic under the rule of law in that it will be
retrospective to 1999; is strategically intended to scuttle a court case to
which the government is itself a party; and is arguably unconstitutional.
Breach of international law
1.5
The submissions and evidence provided by legal experts and human rights
commentators raised significant concerns that the Bill breaches aspects of international
law. Professor Ben Saul noted that, while Australia is obligated by the Protocol
against the Smuggling of Migrants by Land, Sea and Air supplementing the United
Nations Convention on Transnational Organised Crime to criminal people
smuggling, this is specifically intended to mean the criminalisation of
migrants, not asylum seekers.
1.6
As in 2010, it remains of great concern to the Australian Greens that
the effect of criminalising those who smuggle refugees is to prevent the
refugees themselves from reaching safety. In seeking to make it so difficult
to claim asylum in our migration zone, Australia acts in violation of Article
31 of the United Nations Convention for the Protection of Refugees (the
Refugee Convention) and its Protocol.
Retrospectivity
1.7
The submissions and evidence were unequivocal in their condemnation of
the retrospectivity proposed by the Bill. One by one the witnesses appearing
in the hearing commented that it is against the grain of the rule of law, and
against numerous international covenants, to make people criminally liable for
acts that were not offences at the time they were done.
1.8
The Australian Greens concur with the evidence given by legal experts
that the retrospective effect of the Bill goes beyond mere 'clarification'. In her
evidence Professor Sarah Joseph of the Castan Centre for Human Rights said:
I would say there is no such thing as retrospective
clarification because either this law does absolutely nothing—that is, it
clarifies something that does not need to be clarified—or it removes arguments
that would perhaps exonerate the people charged. If it does that latter thing,
it enlarges the offence.
1.9
In its written submission the Law Council of Australia said that the
retrospectivity offends principles against retrospective legislation which are
set out in Article 10 of the Universal Declaration of Human Rights (the
UNHDR) and the International Covenant on Civil and Political Rights
(ICCPR).
1.10
Ms Rachel Ball of the Human Rights Centre noted:
First, the bill contravenes the prohibition on retrospective
criminal laws contained in article 15 of the International Covenant on Civil
and Political Rights. This prohibition is reflected in domestic and regional
laws around the world and in Australian common law and government guidelines.
The prohibition on retrospective criminal laws is central to the rule of law
and respect for the separation of powers.
1.11
Victoria Legal Aid pointed out in its submission and evidence that
retrospectivity should only be used in rare circumstances, in particular where
the moral culpability of the offender is such that it justifies such a
departure from law making in accordance with the rule of law. Victoria Legal
Aid also commented that retrospective lawmaking is banned in many countries. In
Australia, such caution is applied to retrospective criminal legislation that
it has only been utilized on three occasions: tax evasion offences in 1980, war
crimes offences in 1988 and anti-hoax offences in 2002.
1.12
The Australian Greens do not accept the finding of the majority report
that the criminality of the people being charged under the people smuggling
charges is serious enough to take the step of making the proposed retrospective
legislation. In the 353 or more people smuggling prosecutions that have been
started or completed around Australia thus far, only six were accused to be
organisers of the industry. Victoria Legal Aid, which is acting for 53 accused
people smugglers in Victoria, expressed it as follows:
While there are people who organise and substantially profit
from the trade, the overwhelming majority of the people charged with people
smuggling in Australia are impoverished Indonesian fisherman, the totality of
whose involvement is to be recruited on to the boats to steer, crew or cook.
They are as dispensable to the organisers of people smuggling as the boats that
get burnt off the coast of Christmas Island and Ashmore Reef. (page 7)
1.13
The moral and criminal culpability of those being prosecuted under the
Commonwealth charges is not adequate to make a departure from the rule of law
and common fairness.
1.14
The majority report seeks to suggest that the mere fact of the large
volume of previous and current convictions is sufficient to establish the
exceptional circumstances required for justifying retrospectivity. It
recommends that the Explanatory Memorandum to the Bill be amended to clarify
the great necessity for retrospectivity. The Australian Greens vehemently
disagree with this conclusion and recommendation. The volume of past
convictions and current prosecutions has no bearing on the criteria that should
be applied to considering whether to make legislation retrospective, and it can
only be seen as cynical and self-serving for the majority report to suggest
otherwise.
Lack of deterrence
1.15
There was no evidence provided by the Commonwealth Director of Public
Prosecutions or the Attorney-General that the current regime has any useful
deterrence effect. The lawyers who are working at the coal face of these
prosecutions expressed severe condemnation of the suggestion that the current
regime of criminal charges will 'break the people smugglers' model' because the
threat of imprisonment is not well known in the impoverished villages of
Indonesia where the boat crew are sourced.
1.16
The submission of the Australian Lawyer's Alliance echoes the evidence
that was given by a many witnesses at the hearing:
Many of these individuals were not aware of what they were
implicated in. Many have been tricked. In some cases, the organisers and
facilitators of the people smuggling will go in the boats with the individuals,
only to depart at a later stage of the journey before the boat arrives close to
Australian waters.
The organisers of criminal syndicates, on the whole, have not
been prosecuted in Australia.
They have constituted 2% of all prosecutions. For the
Parliament to seek to uphold convictions that are punishing those who have been
exploited in their poverty simply to be seen as ‘doing something’ about border protection,
is inhumane.
Mandatory sentencing
1.17
The mandatory sentences of 5 years imprisonment with 3 years non-parole
set out in the Crimes Act do not allow for differentiation between
serious and minor offending or for consideration of the particular
circumstances of the individual. Liberty Victoria in its submission notes that
under the ICCPR Article 9(1) this renders the sentence of imprisonment as
arbitrary.
1.18
The University of New South Wales Migrant and Refugee Rights Project
summarised mandatory sentencing as follows:
The sentencing court is stripped of its discretion to consider
mitigating factors, regardless of their compelling nature or the unfairness or
disproportionality of the sentence in light of individual circumstances.
1.19
The mandatory minimum sentence means that the heaviest individual burden
lands on the very people who are least involved in the people smuggling
industry. Victoria Legal Aid makes the following practical suggestion:
If mandatory imprisonment was linked to 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.
1.20
It is imperative that the Australian government move to immediately
review the mandatory sentencing provisions, to make way for a fairer model
which would allow judicial discretion to take into account the facts and
circumstances of each case.
Conclusion
1.21
Many of the submitters to the inquiry commented on the extremely tight
timeframe around the legislation and inquiry. Liberty Victoria commented that
it appears to be a pattern that such a tight timeframe is applied to matters
affecting asylum seekers and related issues. The Uniting Church also commented
that it has 'long been troubled by the manner in which successive Australia governments
have amended (in great haste) the Migration Act'.
1.22
This Bill has been brought on with woefully inadequate consultation and
was rushed through the House of Representatives in an attempt to beat a legal
challenge. The Attorney-General's Department conceded in the public hearing
that it had only been given drafting instructions for the Bill in October when
the threat of the legal challenge became clear. Clearly, if the 'oversight' in
the legislation were so desperately in need of remedy, this would have been a
priority prior to the test case having reached the Victorian Court of Appeal.
1.23
It seems to be that successive Australian governments are so desperate
to appear strong on border protection that they will make regular wild
departures from due legal process. This amendment is a sorry example of such
departure and should not, in good faith and legal propriety, pass the Senate.
Recommendations
The Australian Greens recommend:
- That this Bill should not proceed;
- That it should not proceed without thorough review of the
current deterrence outcomes of the criminal charges of people smuggling as
currently structured;
- That it should not proceed without review of the mandatory
sentencing regime with reference to the rule of law and natural justice;
- That it should not proceed until it has been examined by the
Federal Government's parliamentary joint committee on Human Rights and a
statement of compatibility with our international obligations is produced.
Senator Sarah
Hanson-Young
Greens spokesperson for Immigration
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