ALHR submissions argue for reforms to people smuggling offences to improve procedures and sentencing for the vulnerable and least culpable
The minimum mandatory sentencing regime has been widely criticised for its inhumane and disproportionate punishment of the least culpable and often vulnerable minor participants in what is a much larger enterprise. As I and other lawyers argued in June last year, almost all of those convicted of people smuggling offences are itinerant fishermen, most of whom don't know what they are putting themselves in for when they are hired as crew on boats carrying asylum seekers. Michael Duffy also offered some great insights in an op-ed for the Sydney Morning Herald last month.
The policy also has no real deterrent effect and comes with a large taxpayer price-tag in the form of trial costs and incarceration expenses.
It also operates as an incursion on judicial discretion to formulate just and appropriate sentences, based on longstanding sentencing principles, and as required by the Crimes Act. Some judges have remarked that they have been required by the provision to impose more severe sentences than they would otherwise consider just and appropriate in the circumstances, and taking into account the culpability of the accused.
ALHR's submission raised all of these arguments, and considered the measure would advance Australia's compliance with the ICCPR, particularly Articles 9, 12, 14 and 26.
Thank you to Claire Henderson for her excellent work on this submission. You can read the full version here.
ALHR also welcomed the opportunity to make a submission on the Crimes Amendment (Fairness for Minors) Bill 2011, which amends certain evidentiary procedures in the Migration Act that have an impact on minors implicated in people smuggling offences. Specifically, the Bill defines timeframes and establishes evidentiary procedures for the age determination and prosecution of non-citizens who are suspected or accused of people smuggling offences and who may have been a child at the time of committing the alleged offence.
Our submission considered that the Bill is in accordance with several relevant articles of the Convention on the Rights of the Child. While we welcome the Bill, we also urge consideration of further amendments to the Migration Act to enact additional protections for accused children and to further advance Australia's compliance with its international human rights obligations.
Many thanks to Seranie Gamble, Olivia Go, Adrianne Walters, Claire Henderson and Jamie Nuich for their excellent work on this submission.