DISSENTING REPORT BY SENATOR HANSON-YOUNG
Introduction
1.1
This inquiry focused on an Australian Greens bill in the name of Senator Sarah
Hanson-Young that seeks to remove the mandatory minimum sentencing provisions
attached to certain Commonwealth people smuggling offences under the Migration Act
1958. It is a simple amendment but it would have a significant impact in
returning fairness and justice to this area of the law.
1.2
Under the current mandatory sentencing regime, a person who is convicted
of one of four people smuggling offences must be sentenced to
imprisonment for a minimum five years with a non-parole period of three years.
1.3
There is no scope for the presiding Magistrate or Judge to take into
account the circumstances of the offending.
1.4
There are very few instances of mandatory minimum sentencing enshrined
in Australian criminal laws because it is widely accepted to be an infringement
of judicial independence and separation of powers. Mandatory sentencing is
widely regarded to be a breach of civil and political rights, and for that
reason is subject to various international covenants which seek to discourage
it in the criminal laws of signatory nations.
1.5
As the evidence in this inquiry demonstrated, the five year minimum jail
sentences have been principally borne by impoverished boat crew who are the
least culpable people within people smuggling operations.
1.6
The Commonwealth charges under the Migration Act which this Bill
seeks to amend are:
-
aggravated people smuggling, that is, the bringing to Australia
of at least five non-citizens who have 'no lawful right to come';
-
smuggling a person in such a way that a person will be exploited,
or subject to cruel, inhuman or degrading treatment, or exposed to risk of
serious harm or death;
-
presenting false documents or misleading information to an
Australian official in the context of the immigration of five of more
non-citizens;
-
dealing with documents that may be used by un-entitled persons to
come to Australia.
1.7
This Bill was strongly applauded by all submitters to the inquiry except
the Commonwealth agencies. The Judicial Conference of Australia did not
comment on the Bill but provided very useful material outlining the problems
associated with mandatory sentences.
1.8
Supporters of the Bill included:
Australian
Human Rights Commission
Law
Council of Australia
Human
Rights Law Centre
Australian
Lawyers’ Alliance
Gilbert
& Tobin Centre of Public Law
Castan
Human Rights Law Centre
Human
Rights Council of Australia
Legal
Aid New South Wales
Legal
Aid Western Australia
Victoria
Legal Aid
Migrant
and Refugee Rights Project, University of New South Wales
Amnesty
International (Australia)
New
South Wales Council for Civil Liberties
Civil
Liberties Australia
No justification for mandatory sentences
1.9
This Bill does not soften or negatively affect Australia's border
security, nor does it seek to encourage the practice of seeking asylum in
Australia by unauthorised boat arrivals.
1.10
As pointed out by Legal Aid New South Wales: the relatively high maximum
jail sentence of 20 years imprisonment attached to the four people smuggling
offences attests to the fact that this is a serious public policy issue:
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.[1]
1.11
The maximum indicates the significance of the Commonwealth offence to
the sentencing judge. The court is empowered to impose a length of imprisonment
up to that maximum and arrived at on the basis of well-established sentencing
principles.
1.12
Other than the Commonwealth agencies, none of those appearing or
submitting in this inquiry argued is anything exceptional about these offences
that make it worth undermining Australia’s commitment to fair legal process.
1.13
Many submitters, including the Australian Human Rights Commission,
expressed their dismay that the mandatory minimum penalties breach Australia's
international obligations under the International Covenant on Civil and
Political Rights article 9(1) (arbitrary arrest) and article 14 (right to
review of sentencing).[2]
1.14
Professor Ben Saul, noting the fact that a certain group of foreign
individuals would be targeted by the law, also raised concerns that the
mandatory minimums could breach the International Covenant on the
Elimination of Racial Discrimination.[3]
There were also concerns raised about breaches of the Convention on the
Rights of the Child considering one in ten of the accused have
statistically been found to be children.[4]
Punishing boat crew, not organisers
1.15
The Attorney-General's department implied that the risk of injustice is
minimised because 'mandatory minimum penalties apply to a very limited number
of serious, aggravated people smuggling offences in the Migration Act'.[5]
1.16
However, many submitters gave evidence affirming that almost all people
smuggling prosecutions are run on the aggravated charges, yet almost all relate
to less culpable boat crew.[6]
1.17
The Law Council of Australia commented that regarding the threshold for
aggravated people smuggling charges of having brought five or more potential
refugees, the lesser and non-aggravated charges (which do not attract a mandatory
minimum sentence) are 'effectively rendered...redundant, given the extremely high
likelihood of any boats being intercepted in Australian waters on suspicion of
people smuggling having five or more passengers'.[7]
1.18
The Commonwealth Director of Public Prosecutions advised that as at
February 2012, there were 208 accused before Australian courts for people
smuggling charges and of those, only three were alleged to be organisers.[8]
1.19
The Law Council of Australia suggested that the harsh mandatory minimums
are relevant to the increasingly high rate of people smuggling acquittals, a
somewhat surprising trend considering most cases are relatively strong due to
the fact that most accused are intercepted up directly from the 'scene of the
crime' on the boat with a plethora of witnesses nearby.
1.20
Mr Boulton SC of the Law Council of Australia gave the following
evidence:
The judicial criticisms are getting a lot of airing in the
press. 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.[9]
1.21
The boat crew who are serving these sentences tend to be impoverished,
illiterate fisherfolk from the Indonesian archipelago. In his evidence before
the Committee, Mr Boulton of the Law Council of Australia described the boat
crew thus:
The people who get involved in the crews are very different
from the average Australian offender. They live in circumstances that bear no
resemblance to the circumstances of ordinary Australians. They do not keep
abreast of Australian politics or Australian affairs. They do not understand
that by coming to Australia in these vessels they will be subjected to an
inevitable term of imprisonment that could be as long as five or eight years.[10]
1.22
The Hon Branson QC of the Australian Human Rights Commission commented
that Australian judges, knowing the nature of the boat crew being subjected to
mandatory minimum penalties for boat crew, should be able to take into account
the offending context of each case:
...it would appear that many of the crew on these boats are
themselves probably individuals who have been exploited perhaps by unscrupulous
organisers of people-smuggling ventures. Their own culpability, if any, I think
would often seem to be slight. We have heard stories of young people being
lured onto boats by false information of what they would be doing on that boat.
Sometimes there are circumstances where families have been given sums of money
that would seem extremely large to them in the circumstances in which they are
living. It would be appropriate, it seems to me, that where young people
particularly might be being exploited that Australia should be seeking not to
exacerbate the harm suffered by them in those circumstances.[11]
Lack of deterrence value
1.23
The Committee received clear evidence that there is little or no
deterrence value achieved by the mandatory minimum penalties. In fact, numbers
of people smuggling prosecutions have actually gone up from 30 cases in 2009 to
304 in 2011.[12]
1.24
Victoria Legal Aid made useful reference in their submission to a
Victorian Sentencing Advisory Council discussion paper which pointed to a 'need
for further research that separates deterrable from non-deterrable populations'.[13]
Victoria Legal Aid went on to say:
It is our contention that the barely literate and poverty
stricken Indonesians who ultimately crew the asylum seeker boats that travel to
Australia belong to the 'non-deterrable population' to whom the Sentencing
Advisory Council refers.[14]
1.25
Upon questioning, none of the Commonwealth agencies present were able to
point to any empirical or anecdotal evidence that the mandatory minimum jail
sentences are having any deterrence effect.
Lack of judicial discretion
1.26
The Committee heard that many judges and magistrates have spoken out
against the mandatory sentencing regime. Given that judicial bodies are generally
cautious about getting involved in public policy debates, it is notable that
the Judicial Conference of Australia put in a submission which stated that
mandatory minimum penalties are an 'injustice' which is 'directly attributable
to legislative involvement in the essentially judicial function of pronouncing
individual sentences on individual offenders'.[15]
1.27
The Gilbert and Tobin Centre of Public Law put its similar concern a
little more bluntly, in submitting that the mandatory minimum penalties have the
potential to 'undermine the separation of powers'.[16]
Conclusion
1.28
The majority report refers quite comprehensively to the volumes of
evidence provided in this inquiry in support of this Bill.
1.29
Unfortunately, the Committee's majority report only recommends a 'review',
which would not have any practical reformative impact and which would largely
double up the thorough survey that has just been undertaken through this
inquiry.
1.30
The Australian Greens believe the only real solution is to take
legislative action to reform this area of Commonwealth criminal law by removing
the mandatory minimum jail sentences and allowing the judiciary to do their job
unhindered.
Recommendation 1
1.31 That the Senate should pass the Bill.
Senator
Sarah Hanson-Young
Australian Greens
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