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Wednesday, 8 February 2012
Page: 402

Senator HANSON-YOUNG (South Australia) (16:44): I move:

   That this bill be now read a second time.

I seek leave to table an explanatory memorandum relating to the bill and have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

This Bill will remove the mandatory minimum sentencing provisions which currently operate over certain Commonwealth people smuggling offences under the Migration Act 1958. Under the current mandatory sentencing regime, a person who is convicted of one of these four offences must be sentenced to imprisonment for a minimum five years with a non-parole period of three years. There is no scope for the presiding Magistrate or Judge to take into account the circumstances of the offence and sentence the accused accordingly.

There are very few instances of mandatory minimum sentencing for Commonwealth offences because it is - correctly - widely accepted to be an infringement of judicial independence and separation of powers. Mandatory sentencing is regarded globally 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.


The arguments against mandatory minimum sentences were clearly raised when Federal Parliament toughened Commonwealth regulation of people smuggling sentencing in 2010. At that time, the Australian Greens opposed the enactment of the mandatory minimum sentencing regime. Contrary to the rhetoric of the current and previous governments, there is no justification for the legislature enforcing minimum jail sentences for people smuggling offences. There is nothing exceptional about these offences that make it worth going against our commitment to fair legal process because, as the past two years of Commonwealth prosecutions have demonstrated, the imposition of minimum five year sentences has had little or no impact on deterring people smuggling. The five year sentences have been principally borne by impoverished boat crew who are the least culpable link within people smuggling operations.

This Bill affects the mandatory minimum sentences that apply to the offences of: aggravated people smuggling, that is, the bringing to Australian 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; and dealing with documents that may be used by unentitled persons to come to Australia.

This Bill removes the key section that imposes a mandatory minimum sentence in respect of the aforementioned offences. It is a simple amendment but it will have a significant impact in returning fairness and justice to this area of the law.

Punishing boat crew rather than organisers

The Australian Greens are opposed to mandatory sentencing on principle. The punishment meted out by the state must fit the crime and the fettering of judicial discretion amounts to a breach of the separation of powers.

However, the urgent need for reform in this area arises from practicality as well as from principle. Submissions to an inquiry into related legislation in 2011 elicited compelling evidence from the lawyers who are working at the coalface of people smuggling prosecutions. So far, charges against people smuggling organisers have only made up around 2% of all prosecutions. The Senate inquiry was advised that, instead, it is asylum seeker vessels' boat crew who are bearing the brunt of the five year minimum sentences.

Evidence from the legal representatives of boat crew suggests that these individuals are generally from traditional fishing villages in the Indonesian archipelago. They tend to be impoverished, ill-educated, and unaware of Australia's preoccupation with border security. The crew are recruited from their community by the 'kingpin' people smugglers - the organisers - with offers of lucrative fishing work or even sightseeing. Sometimes the boat crew are unexpectedly transferred from the fishing trawler onto a leaky asylum seeker vessel while out on the open water. If the asylum seeker vessel safely reaches Australian waters it is intercepted and the boat crew taken into Australian immigration detention. Meanwhile their families at home are deprived of a breadwinner while the boat crew member, often a young person now convicted as an aggravated people smuggler, serves out a grossly disproportionate five year sentence in Australia.

Little deterrence impact

This Bill does not soften or affect Australia's border security, nor does it seek to encourage the practice of seeking asylum in Australia by unauthorised boat arrival. The Australian Greens recognise that arrival by boat poses a significant risk to the personal safety of asylum seeker passengers. Under this Bill, people smuggling remains illegal. The relatively high maximum jail sentence of 20 years attached to the offences affected by this Bill reflects the fact that this is a serious public policy issue. The 20 year maximum indicates the significance of the Commonwealth offence to the sentencing judge, and 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.

There is nothing in this Bill that seeks to tie the hands of any court that decides to impose a significantly long sentence on a convicted people smuggler, including where the offender is an organiser and profiteer from the enterprise. Similarly, there is nothing in this Bill that stops the court from appropriately punishing a boat crew member who has been convicted of people smuggling.

This Bill seeks to restore the ability of courts to sentence people smugglers for less than five years if that is deemed appropriate in the view of the sentencing judge. Many Australian judges have expressed their preference to sentence for less than the mandatory minimum. In doing so, it is unlikely to result in a sudden influx of boat arrivals. It was made clear to a Senate inquiry in 2010 that the mandatory minimum sentences, falling as they do on the shoulders of impoverished boat crew, have little or no general deterrence effect on stopping the arrival of boats. Desperate people seeking Australia's protection will continue to arrive here in any way they can and at risk to themselves. More significantly, the boat crew are not in a position to understand the legal ramifications of their involvement. As a member of the Northern Territory Supreme Court recently commented in handing down an minimum sentence "but for the mandatory minimum sentences which I am required to impose, I would have imposed a much lesser sentence than I am now required by law to do ". A NSW District Court member commented "deterrence needs to be considered in the context of illiterate and poor fishermen from remote islands of the Indonesian archipelago where there is no electricity, no television and no radio”. It is apparent that the current system of mandatory minimum sentencing is not working - it is not cost effective, it leads to crowded prisons, it is not supported by the legal profession or the judiciary, and it is discriminatory and unjust.

Support for reform

The lawyers who are appearing in people smuggling prosecutions told the Senate inquiry in 2011 that, of the 353 people smuggling prosecutions on foot around Australia at that time, only six were cases mounted against organisers. Evidence was given to the Legal and Constitutional Affairs Legislation Committee inquiry into the deterring people smuggling bill last year that of the 493 individuals arrested between 2008 and 2011, only 10 were accused as organisers. The overwhelming majority of the people charged with people smuggling in Australia are those whose were recruited on to the boats to steer, crew or cook. It was said by Victorian Legal Aid to a Senate inquiry in 2010 that the boat crew are as dispensable to the organisers of people smuggling as the boats that get burnt off the coast of Christmas Island and Ashmore Reef.

This Bill takes action to address the problem identified publicly by the judiciary: that the current regime is out of kilter with sentences handed down for offences with much greater moral culpability such as violent or sexual crime.

In introducing this Bill, I am acting on principle and in accordance with the Australian Greens' commitment to fair judicial process, the rule of law and the independence of the courts. But I am also acting in response to growing momentum from the community, particularly the legal community and the judiciary. The mandatory minimum sentences set out in the Migration Act do not allow for differentiation between serious and minor offences or for consideration of the particular circumstances of the individual. Under Article 9(1) of the International Covenant on Civil and Political Rights, this renders the minimum sentence of imprisonment as arbitrary. This Bill unshackles the Court and restores due discretion for the sentencer to apply crucial sentencing principles which take into account things like mental illness, remorse, hardship, age, lack of prior offending, degree of involvement and level of culpability. Judicial discretion is crucial to natural justice and the rule of law.


In the development of this Bill I have spoken to lawyers, barristers and human rights advocates and I thank them all for their assistance.

I look forward to these reforms proceeding as they are necessary to put an end to the unfairness and disproportion of the current system of mandatory minimum sentences. This Bill provides a way for the Federal Parliament to reinstate a fairer model of dealing with convicted people smugglers, recognising that most of them are less culpable boat crew, by allowing the court to take into account the facts and circumstances of each case. I commend the Bill to the Senate.

Senator HANSON-YOUNG: I seek leave to continue my remarks later.

Leave granted; debate adjourned.