Mandatory Harsh Penalties for People Smugglers in Australia: Time for Reform
| Author | Mirko Bagaric,Athula Pathinayake |
| Published date | 01 December 2012 |
| Date | 01 December 2012 |
| DOI | http://doi.org/10.1350/jcla.2012.76.6.806 |
| Subject Matter | Article |
Mandatory Harsh Penalties for
People Smugglers in Australia:
Time for Reform
Mirko Bagaric* and Athula Pathinayake†
Abstract People-smuggling offences in Australia carry long mandatory
terms of imprisonment. The penalties are so severe that many members of
the judiciary have taken the unusual step of criticising them. An analysis
of the sentencing regime for these offences demonstrates that the penal-
ties are, indeed, too harsh. They are disproportionate to the objective
seriousness of the offences and are incapable of deterring would-be of-
fenders. If a fixed penalty is to be maintained for such offences, it should
be in the order of imprisonment for three months—not five years—with a
minimum term of three years. The offences discussed in this article relate
to Australia, however, the people-smuggling phenomenon occurs in most
developed nations. Thus the principles discussed below are of more wide-
ranging application.
Keywords Asylum seekers; Sentencing; Mandatory detention;
Proportionality; General deterrence
In the wake of a boat blast on a ship carrying asylum seekers to
Australia, former Prime Minister, Kevin Rudd, in one of his reflexive
moments, described people smugglers1as the ‘scum of the earth’, who
are ‘the vilest form of human life’ who deserve to ‘rot in jail’.2
At the other extreme, people smugglers have been termed heroes.
Political commentator, Bob Ellis, has stated that:
93 per cent of Afghan boat people reaching Australia prove to be true
refugees and eventual worthwhile citizens, why are their rescuers, their
saviours, ‘the lowest of the low’ who should ‘rot in hell’? We’re told they
risk the refugees’ lives in storms and leaky boats, but they risk their own
lives too—as well as capture, and arrest, and 25 years in jail.
How can this be ‘just doing it for the money’? It sounds pretty heroic,
pretty selfless, and pretty self-sacrificing to me. People smugglers are not
unlike the border guards who helped the Holy Family flee to Egypt during
Herod’s massacre of Israel’s first born, or the Kentish fisher-folk who came
in little boats to save the British army at Dunkirk, and whose memory still
brings tears to Britons over 50.3
* Professor, Deakin University Law School, Australia; e-mail: mirko.bagaric@
deakin.edu.au.
† Lecturer, Deakin University; e-mail: athula.pathinayake@deakin.edu.au.
1 In the Australian context, people smugglers are mainly individuals who are
responsible for the arrival of boats carrying asylum seekers to Australian shores.
2 The comments are widely reported. See, e.g., ‘Rudd wants people smugglers to
“rot in hell”’, available at http://www.abc.net.au/news/2009-04-17/rudd-wants-people-
smugglers-to-rot-in-hell/1653814, accessed 1 November 2012.
3 B. Ellis, ‘The Smugglers’ Sacrifice’, The Drum Opinion, 11 May 2009, available at
http://www.abc.net.au/unleashed/30770.html, accessed 1 November 2012.
493The Journal of Criminal Law (2012) 76 JCL 493–511
doi:10.1350/jcla.2012.76.6.806
People smugglers are neither scum nor heroes. The legislature, however,
has clearly expressed its strong disapproval of their conduct by taking
the unusual step of establishing lengthy mandatory minimum terms of
imprisonment4for a number of people-smuggling offences.
These penalties are so controversial that they resulted in severe
criticism from a large number of judges.5Apart from the fixed nature of
the penalty regime, people smuggling presents unique challenges for
sentencing judges and legislatures for several other reasons. The first is
that the crime arguably has an outcome which enhances individual and
community prosperity by facilitating the resettlement of people fearing
persecution in their homeland. The second is that it is committed by
offenders who are almost certain to be apprehended.
In this article, we examine the current sentencing principles and
practice associated with punishing people smugglers. We suggest that
the current legal position is unsound: the penalties are too severe and
are incapable of achieving the principal objective of general deterrence.
Reform of the penalties for people smuggling is proposed, which consists
of either abolishing the lengthy mandatory prison terms or, if the fixed
term is maintained, reducing the minimum period of imprisonment to
somewhere in the range of three months’ imprisonment.6
In the next part of the article, we provide an overview of the current
legal approach to sentencing people smugglers. In part 2, we argue that
this is unsound. In part 3, we recommend reforms to the current
sentencing regime for people smugglers.
1. Current legal position
People-smuggling offences are set out in ss 233A–233C of the Migration
Act 1958 (Cth). These offences apply to operations bringing people to
Australia. Section 73 of the Criminal Code 1995 (Cth) contains parallel
offences for smuggling operations bringing taking to other countries.7
The focus of this paper is on the provisions in the Migration Act 1958
(Cth) given that they are the provisions most commonly invoked, and,
for reasons set out below, the penalty for smuggling five or more people
in Australia is examined.
The core people-smuggling offence is set out in s. 233A of the Migra-
tion Act 1958 (Cth), which states that:
4 Several jurisdictions have lengthy mandatory minimum jail terms for very serious
crimes such as murder, and there a large number of fixed penalties for less serious
offences, although they rarely involve a term of imprisonment, see M. Bagaric,
‘What Sort of Fixed Penalties Should We Have?’ (2002) 23 Adelaide Law Review
113.
5 See the discussion in part 2 below.
6 Fixed penalties have been widely criticised and it is not the purpose of this article
to justify this type of sentencing regime, however, as has been pointed by Bagaric,
above n. 4, if the fixed penalties are proportionate to the seriousness of the crime,
most of the objections lose force.
7 This was introduced to give effect to Australia’s obligations under the international
Protocol against the Smuggling of Migrants by Land, Sea and Air 2000, which
Australia ratified in 2001.
The Journal of Criminal Law
494
To continue reading
Request your trial