Proposed Greens’ amendments to the Migration Act 1958 to abolish mandatory sentences for people smuggling offences are essential to protect human rights and the rule of law, according to the Human Rights Law Centre. “There is no place for mandatory sentencing in a healthy democracy governed by the rule of law,” said Rachel Ball, the HRLC’s Director of Policy and Campaigns.
The Bill to be introduced by Greens Senator Sarah Hanson-Young seeks to remove the mandatory sentence of 5 years with a 3 year non-parole period that flows from the offence of aggravated people smuggling.
Ms Ball – who last November gave evidence about the laws to the Senate Legal and Constitutional Affairs Committee – said the mandatory sentencing requirements of the Act prevent judges from exercising common sense or discretion. The laws have recently been criticized by one judge as imposing “savage penalties upon the ignorant, who are simply being exploited by organisers”.
“We’re not talking here about the organisers of people smuggling operations. These are generally young men or boys recruited from small Indonesian villages with the promise of a bit of cash for jobs like cooking rice,” Ms Ball said.
Mandatory sentences for people smuggling offences contravene the prohibition on arbitrary detention and the right to a fair trial contained in the International Covenant on Civil and Political Rights. These principles require that the punishment fit the crime, but mandatory sentencing prevents the Court from differentiating between serious and minor offending and from considering the particular circumstances of the individual.
The HRLC is urging MPs of all parties to use Senator Hanson-Young’s Bill as an opportunity to fix flawed legislation that puts Australia out of step with other modern democracies.
“Even the Government majority on the Senate Legal and Constitutional Affairs Committee has expressed concern regarding the impacts of the application of mandatory sentencing on individuals hired as boat crew for people smuggling vessels and has recommended that the Attorney-General review the legislation,” Ms Ball said.
“This regime threatens to see hundreds of impoverished Indonesian fishermen and boys jailed for a minimum of 3 years. It violates human rights, costs taxpayers tens of millions of dollars and is likely to have no impact on people smuggling. It’s time we fixed it,” Ms Ball said.