High Court decision highlights injustice of mandatory sentences for the crew on people smuggling boats

The High Court has dismissed an appeal against a mandatory minimum sentence imposed under the Migration Act 1958 (Cth). The Human Rights Law Centre is disappointed by the decision in Bonang Darius Magaming v The Queen, which reveals gaps in human rights protection in Australia’s laws.

The HRLC’s Director of Advocacy and Campaigns, Rachel Ball, said the mandatory sentencing requirements of the Migration Act prevent judges from exercising common sense or discretion.

“The mandatory sentencing regime has resulted in cooks and deckhands being jailed for a minimum of five years, with a three year non-parole period. It violates human rights, it’s expensive and it’s likely to have no impact on people smuggling,” said Ms Ball.

The laws have been criticised by one judge as imposing “savage penalties upon the ignorant, who are simply being exploited by organisers”.

In this case, the sentencing judge, Chief Judge Blanch, said that it was “perfectly clear that [the appellant] was a simple Indonesian fisherman who was recruited by the people organising the smuggling activity to help steer the boat towards Australian waters”. Chief Judge Blanch said that, in the ordinary course of events, “normal sentencing principles would not require a sentence to be imposed as heavy” as the mandatory minimum sentence.

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.

“Human rights 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 Attorney General, George Brandis QC, has flagged his intention to identify and review Australian laws that violate fundamental rights and freedoms. Mandatory five years terms for fishermen from impoverished Indonesian villages fits that bill,” Ms Ball said.   

On 27 August 2012, former Attorney General Nicola Roxon recognised the injustice of these laws and sought to address that injustice by issuing a direction to prosecutors not to charge first time offenders and low-culpability crew with offences that attract a mandatory minimum term.

The High Court held that, due to the timing of the direction, it did not apply to the proceedings against the appellant.

“This case shows that a direction to prosecutors is not enough to cure the clear injustice. The law must be changed,” said Ms Ball.