Prosecution and Punishment of People Smugglers in Australia 2008-2011

AuthorAndreas Schloenhardt,Charles Martin
Published date01 March 2012
Date01 March 2012
DOIhttp://doi.org/10.22145/flr.40.1.5
Subject MatterArticle
PROSECUTION AND PUNISHMENT OF
PEOPLE SMUGGLERS IN AUSTRALIA
20082011
Andreas Schloenhardt* and Charles Martin**
ABSTRACT
This article provides an analysis of people smuggling prosecutions i n Australia from
2008 to 2011. Based on the available case law, the article develops a profile of 'typical'
people smuggling offenders, examines sentencing trends, and analyses the role of
smuggled migrants. The article concludes that current prosecutorial and sentencing
practice have had no success in deterring people smuggling and develop s a number of
recommendations for law reform and policy change.
I INRODUCTION
On 17 April 2009, the t hen Prime Minister Kevin Rudd referred to people smugg lers as
'the absolute scum of the Earth' who should 'rot in jail'.
1
Parliament has seen fit to
ensure all those who bring non-citizens to Australia reckless as to whether they hold a
valid visa to enter Australia, are imprisoned for at least three years without parole,
regardless of individual circumstances.
2
But while Australia's laws against people smuggling are designed to ensure 'that an
appropriate range of offences are available to target and deter people smuggling
activity', a re view of people smuggling prosecutions reveals that not only have the
mandatory minimum se ntencing provisions often required courts to impose greater
sentences than justice would otherwise require, but also that t he harsh sentences
_____________________________________________________________________________________
* PhD (Adelaide), Associate Professor, The University of Queensland TC Beirne School of
Law, Brisbane, Australia; a.schloenhardt@law.uq.edu.au.
** LLB/BA candidate, The University of Queensland. The authors wish to thank the members
of the UQ Migrant Smuggling Working Group for their feedback and friendship. For
further information visit www.law.uq.edu.au/migrantsmuggling.
1
Emma Rodgers, Rudd Wants People Smugglers to 'Rot in Hell' (17 April 2009) ABC News
Online <http://www.abc.net.au/news/stories/2009/04/17/2545748.htm>.
2
Formerly Migration Act 1958 (Cth) ss 232A233C, as repealed by Anti-People Smuggling and
Other Measures Act 2010 (Cth) sch 1 pt 1 item 8; now Migration Act 1958 (Cth) ss 233A233E,
236B as inserted by Anti-People Smuggling and Other Measures Act 2010 (Cth) sch 1 pt 1 item
8.
112 Federal Law Review Volume 40
____________________________________________________________________________________
imposed as a result of those provisions have had little success in deterring people
smuggling.
3
This article provides an analysi s of people smuggling prosecutions between 2008
and 30 June 2011. First, the article gives a brief overview of charges and prosecutions
since 2008, and of the legislative change s during that period, in order to provide a
background to the topic and underline its significance. Second, it examines a number
of illustrative cases to elicit an understanding of the circumstances from wh ich these
prosecutions arise. Third, the article observes the trends emerging from these cases,
and, based on those trends, analyses the cros s-cutting themes that seem common to the
prosecutions. The article concludes with recommendations for law reform and policy
change.
This article relies primarily on sentenci ng remarks from successful prosecutions
during the period studied, supplemented, where possible and appropriate, by media
reports and submissions on sentence. Because there has only been one appeal decision
handed down, most cases are not rep orted in official law reports. Accordingly,
conclusions as to the trends revealed by prosecutions are based on a relatively limited
number of cases.
4
Nevertheless, the cases studied are representative of people
smuggling prosecutions generally.
II BACKGROUND AND CONTEXT
A Charges and prosecutions 200811
Australia's cour ts are currently awash with people smuggling prosecutions. The
Australian Federal Police ('AFP') have reported a surge in people smuggling ventures
since September 2008.
5
In 2010 alone, 126 so-called 'Suspected Illegal (or Irregular)
Entry Vessels' ('SIEVs') were intercepted in Australian waters, carrying a total of 6127
passengers and 313 crew.
6
As of 25 January 2011, the AFP had charged 302 individuals
with people smuggling offences since September 2008.
7
The increase in SIEV interceptions has led to growing numbers of prosecutions:
there were 30 before the courts at 30 June 2009,
8
but 102 a year later.
9
By February 2011,
198 alleged people smugglers were awaiti ng trial, and another 161 were being held in
_____________________________________________________________________________________
3
Explanatory Memorandum, Anti-People Smuggling and Other Measures Bill 2010 (Cth) 1.
4
In researching this paper, 22 prosecutions brought in three jurisdictions (Western Australia,
the Northern Territory and Queensland) involving 43 offenders were examined.
5
Australian Federal Police, People Smuggling, (28 March 2012)
<http://www.afp.gov.au/policing/human-trafficking/people-smuggling.aspx>.
6
Lanai Vasek and Sean Parnell, 'States Push for Smuggling Costs Relief', The Australian
(Sydney), 10 December 2010, 5.
7
Australian Federal Police, 'Alleged Crew Members Charged' (Media Release, 25 January
2011) <http://www.afp.gov.au/media-centre/news/afp/2011/january/alleged-crew-
members-charged.aspx>. In the period from June 2009 to March 2011 alone, 353 individuals
were charged: Lanai Vasek, 'Legal Aid for Crews Tops $4m', The Australian, (Sydney), 19
April 2011, 2.
8
Commonwealth Director of Public Prosecutions, 'Annual Report 2008-09' (22 October 2009)
72. ('CDPP 2008-09 Annual Report').
9
Commonwealth Director of Public Prosecutions, 'Annual Report 2009-10' (22 October 2010)
60 ('CDPP 2009-10 Annual Report').

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