THE RIFT BETWEEN THE JUDICIARY AND PARLIAMENT OVER MANDATORY PRISON TERMS FOR PEOPLE SMUGGLERS*
by Mirko Bagaric
In this age of increasingly populist sentencing, it is not uncommon for politicians to criticise judges for their sentencing decisions. Invariably, the claim is that judges are too soft – and often that they are out of touch with community sentiment.
Judges are not known for their enthusiasm for making critical comments on legal issues. But when a large number of judges from several different jurisdictions make non-responsive critical remarks regarding the unfairness of a law, it is a strong signal for an objective evaluation of the law in question. Such is the case with the five-year mandatory jail terms that must be imposed on people smugglers.
People smuggling offences are set out in ss 233A to 233C of the Migration Act 1958 (Cth), and the mandatory minimum penalties for certain offences can be found in s 236B. These offences apply to operations bringing people to Australia. Section 73 of the Criminal Code 1995 (Cth) contains parallel offences for smuggling operations bringing people to other countries.
The core people smuggling offence is set out in s 233A of the Migration Act, which states that:
“(1) A person (the first person) commits an offence if: (a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person (the second person); and (b) the second person is a non-citizen; and (c) the second person had, or has, no lawful right to come to Australia. Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.”
Section 233B establishes an aggravated form of the offence if an offender intends that the person being smuggled will be exploited1 after entry into Australia or subjects the person to cruel, inhuman or degrading treatment or the behaves in a manner that gives rise to a danger or serious harm to the victim and is reckless at this danger.
A further aggravated form of the offence, and the offence which is most commonly charged, is set out in s 233C of the Migration Act. This applies where a person organises or facilitates the entry of a group of at least five other persons into Australia. The maximum penalty for this offence is also imprisonment for 20 years (or 2,000 penalty units or both).
Mandatory minimum penalties are prescribed for people convicted of the aggravated forms of people smuggling in ss 233B and 233C where the offender is 18 years or more.2 There is an eight-year minimum penalty where an offender commits an offence under s 233B or a repeat offence3 under s 233B or s 233C (or s 234A).4
For other offences within s 233C, there is a minimum five-year term of imprisonment with a non-parole period of three years. This is the mandatory penalty provision that is most commonly applied and is generally applied to first offenders who smuggle in five or more people.
These sections were inserted into the Migration Act by the Anti-People Smuggling and Other Measures Act 2010 (Cth). While the sections are relatively recent, substantially similar offences existed prior to the changes. The main objective of the changes was to harmonise the elements of the offences in the Migration Act and Criminal Code. Thus, previous sentences are highly relevant. The earlier version of s 233C of the Migration Act was s 232A, while the earlier version of the current s 233A of the Migration Act 1958 (Cth) was the former s 233A.5
The Anti-People Smuggling and Other Measures Act 2010 (Cth) also extended the mandatory minimum penalty regime to the aggravated form of people smuggling involving exploitation or cruel treatment or subjecting people to the danger of death or serious harm.6 There are approximately 300 people awaiting trial or sentencing for people smuggling offences. As they are being processed by the courts, judges are increasing expressing concern about the long mandatory terms that they must impose. It has been reported that nine judges have made adverse comments about the lengthy mandatory terms.7 The tenor of the criticisms has been that the laws do not target the organisers of the journeys; those prosecuted are poor and illiterate Indonesian fisherman who are exploited by the organisers; the offenders have no understanding of the possible consequences of their actions and there is no evidence that the laws are deterring other boat journeys.
On their face these criticisms has some merit – certainly, the number of boat arrivals to Australia is very high and there are no signs that it is declining. However, it does not seem that the main attack on the laws is their mandatory character. Fixed penalties are a common feature of Australia’s sentencing landscape. For example, in most jurisdictions a mandatory loss of licence is a consequence of a drink driving conviction and there is wide-ranging acceptance of such laws.
The main perceived problem with the people smuggling laws is that they violate the proportionality principle. Five years in jail for bringing asylum seekers to a location where they can seek a more prosperous future is arguably not commensurate with the harm caused by the offence. If the mandatory minimum penalty for such offending was one month, instead of five years in jail it is most unlikely that there would a ground swell of opposition to the laws. People smuggling is one of the few offences for which long mandatory jail terms are imposed. The harm caused by this offence would seem to be less than the typical scenario for offences such as rape and manslaughter which do not carry fixed terms. The explanation for this seems to be the heavy politicisation of the refugee issue – highlighted by the widely reported remarks of former Australia Prime Minister Kevin Rudd who described people smugglers as the “scum of the earth … [who are] the vilest form of human life … [and who deserve to] rot in jail”.9
In light of these arguments against long mandatory terms for people smugglers and the growing disquiet expressed by sentencing judges, the federal government should conduct a review of the laws. The review needs to include a detailed evaluation of the empirical evidence regarding the efficacy of such laws in discouraging people smuggling and properly assess the level of harm caused by such offences, and the profile of most offenders to ascertain whether it is feasible to make general observations regarding their level of culpability. The review may in fact conclude that the laws are in fact sound and justifiable, but it is damaging to integrity of the legal system to ignore the informed and strong comments of significant numbers of judges and for that reason alone the federal government needs an urgent objective appraisal of the sentencing mandates for people smugglers.10
*The full citation is (2012) 36 Crim LJ 3.
1 Pursuant to 233B(4) of the Migration Act 1958 (Cth) this has the same meaning as in the Criminal Code 1995 (Cth).
2 This is determined on the balance of probabilities: Migration Act 1958 (Cth), s 233(2). These have been in effect since September 2001, following the Tampa incident.
3 This is defined in Migration Act 1958 (Cth), s 236B(5).
4 Section 234A of the Migration Act 1958 (Cth) is the offence of providing false documents or information to assist the entry of five or more people into Australia.
5 The main authority of sentencing people smugglers is Bahar v The Queen  WASCA 249.
6 For a further discussion of the main changes, see Legal and Constitutional Affairs Legislation Committee, Anti-People Smuggling and Other Measures Bill 2010 (May 2010), http://www.aph.gov.au/senate/committee/legcon_ctte/antipeoplesmuggling/report/report.pdf viewed 17 January 2012.
7 Owens J, “Harsh Penalties for Boat Crew ‘Target Wrong People’”, The Australian (31 December 2011). The judges are: Riley CJ, Mildren, Kelly and Barr JJ (Northern Territory); Yeats J (Western Australia); Knox J (New South Wales); Atkinson, Farr and Martin JJ (Queensland). See also AAP, “Judge Slams People Smuggling Sentence Law”, The Sydney Morning Herald (11 January 2012).
9 See Rogers E, Rudd Wants People Smugglers to “Rot in Hell”, ABC News Online (17 April 2009), http://www.abc.net.au/ news/2009-04-17/rudd-wants-people-smugglers-to-rot-in-hell/1653814 viewed 17 January 2012.
10 Such a review has also been recommended by the Senate, Legal and Constitutional Affairs Legislation Committee, n 6.