Mandatory Sentencing for People Smuggling: Issues of Law and Policy

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2 Noncompliance with Obligations under the Refugees Convention

There is a further danger that, when combined with the existing provisions on criminal responsibility, (230) the statute may attribute accessorial liability to refugees, (231) contravening the prohibition on imposing penalties on them by reason of their illegal entry or presence. (232) Accessorial liability arises where a person, knowing the essential circumstances of an offence, (233) intentionally assists or encourages (234) its commission. (235) Asylum seekers clearly encourage or assist the commission of the offence, not least by their presence on the boat throughout the voyage (236) and by paying for the offence to occur. (237) The mental element, which must be proven even for offences of strict liability, (238) requires, first, knowledge of the essential facts and circumstances of the offence, (239) and second, that the act was done for the purpose of assisting the commission of the crime and not for some other reason. (240) It is clear that those onboard the boat would have such knowledge--significantly, there is no requirement that they be aware of the illegality of the act (241)--and no other reason for their payments and presence could be reasonably inferred. (242)

No refugee has yet been charged for accessorial liability. However, it has been noted on at least one occasion that refugees as witnesses may unwittingly making incriminating admissions in response to questioning. (243) The CDPP has acknowledged that there was nothing to prevent such prosecutions, but said they were not pursued as a matter of policy. (244) That policy is not in writing, and, in the words of the prosecutor, 'may well change and evolve depending on the situation and the development of the law [and] political situations.' (245) Some witnesses have not yet been granted refugee status and so might not fall within that policy in any event. (246) The order in that case, requiring that witnesses in such a situation be given independent legal advice before testifying, (247) and the subsequent provision by the CDPP of formal indemnities (248) suggests that the court and the CDPP consider that their prosecution is legally possible. Compliance with Australia's international obligations is not a matter that should be left to prosecutorial discretion. (249) The mandatory sentencing legislation contravenes international law and is dangerously uncertain in its operation.

B Constitutional Validity

There are also concerns about the compatibility of the statutory minimum sentence with the separation of powers. (250) The separation of judicial from legislative and executive power acts not only to preserve the independence of the courts, but is also 'necessary for the protection of the individual liberty of the citizen'. (251) As stated at the Senate inquiry into the legislation, 'there is a clear argument that mandatory minimum sentences ... breach that principle by undermining the independence of the courts'. (252) The policy arguments for the imposition of mandatory minimum penalties have regularly invoked a sense of parliamentary emergency in responding to either perceived threats to border security or, more recently, to the safety of passengers aboard the vessels. However, these concerns are no justification. When mandatory penalties were enacted as part of legislation in response to a failed coup d'etat in Ceylon, the Privy Council warned that urgency could not justify incursions on the constitutional integrity of the judiciary:

   It was beset by a grave situation and it took grave measures to
   deal with it, thinking, one must presume, that it had power to do
   so and was acting rightly. But that consideration is irrelevant,
   and gives no validity to acts which infringe the Constitution. What
   is done once, if it be allowed, may be done again and in a lesser
   crisis and less serious circumstances. And thus judicial power may
   be eroded. …