Inquiry into the Migration Amendment (Removal of Mandatory Minimum Penalties) Bill 2012
Australian Human Rights Commission Submission
to the Senate Legal and Constitutional Affairs Committees
27 February 2012
- The Australian Human Rights Commission makes this submission to the Senate
Legal and Constitutional Affairs Committees in the Inquiry into the Migration
Amendment (Removal of Mandatory Minimum Penalties) Bill 2012.
The Commission supports the repeal from the Migration Act 1958 (Cth)
(Migration Act) of the mandatory minimum penalties currently applicable to the
aggravated offence of people smuggling.
Laws that impose mandatory minimum terms of imprisonment are inconsistent
with Australia’s international human rights obligations, including
obligations under the International Covenant on Civil and Political
- Moreover, a number of individuals charged with people smuggling offences
that carry mandatory minimum terms of imprisonment say that they are children.
As a consequence, mandatory detention raises concerns in relation to the human
rights of children arising from Australia's obligations under the United Nations Convention on the Rights of the Child (CRC).
- The Australian Human Rights Commission recommends that the Bill be
4 Mandatory minimum
penalties under the Migration Act
Section 236B of the Migration Act provides a mandatory minimum penalty for a
person convicted of the aggravated offence of people
smuggling. Where a person is
convicted of the aggravated offence of people smuggling, the court must impose a
sentence of imprisonment of at least five years and set a non-parole period of
at least three years. If the conviction is for a repeat offence, the mandatory
minimum penalty is eight years imprisonment with a non-parole period of five
Mandatory minimum penalties for the aggravated offence of people smuggling
apply where a person is aged over 18 years at the time the offence was
committed. The Migration Act
requires that it be shown on the balance of probabilities that a person was 18
years or over at the time the alleged offence was
committed. The ‘balance of
probabilities’ test is lower than the criminal standard of ‘beyond
reasonable doubt’. As a consequence, a person may be held to be an adult
and subject to the mandatory minimum term of imprisonment even where doubt
exists as to whether that person is an adult.
- The Commission has serious concerns that age assessment procedures permitted
by Australian law and frequently used in investigations of individuals for
people smuggling offences may have led to errors in age assessment. The
President of the Commission is currently conducting an Inquiry into the
treatment of individuals suspected of people smuggling offences who say that
they are children (Age Assessment Inquiry). Information about this Inquiry may
be found at the following website: www.humanrights.gov.au/ageassessment/index/html.
5 Mandatory minimum
penalties and human rights
Laws that impose a mandatory minimum penalty raise a number of concerns in
relation to Australia's international human rights obligations. They include
obligations under the ICCPR. Australia ratified the ICCPR in
- The ICCPR prohibits arbitrary detention (article 9(1)) and provides that
sentences must be reviewable by a higher tribunal (article 14(5)).
against arbitrary detention
- Under article 9(1) of the ICCPR, Australia must guarantee the liberty and
security of the person. Article 9(1) of the ICCPR provides:
has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on
such grounds and in accordance with such procedure as are established by
A sentence may still be arbitrary notwithstanding that it is authorised by
law. Under the ICCPR, ‘lawful detentions may be arbitrary, if they exhibit
elements of inappropriateness, injustice, or lack of predictability or
detention must be necessary in all the circumstances and must not continue
beyond the period for which a State party can provide appropriate
- Sentencing should enable a judge to take account of the personal
circumstances of an individual offender. By exercising judicial discretion, a
judge can ensure that the sentence imposed on an offender reflects the
offender’s individual circumstances and level of culpability. In this way,
the sentence is less likely to be characterised as arbitrary or
disproportionate. The High Court of Australia has stressed the importance of
It is both unusual and in general, in my
opinion, undesirable that the court should not have a discretion in the
imposition of penalties and sentences, for circumstances alter cases and it is a
traditional function of a court of justice to endeavour to make the punishment
appropriate to the circumstances as well as to the nature of the
The Commission submits that the current mandatory minimum term of
imprisonment imposed on offenders convicted of the aggravated offence of people
smuggling can be disproportionate to their level of culpability. Generally,
people who work as crew on boats that bring asylum seekers to Australia are
recruited from poor fishing communities on the Indonesian coast. The Commission
believes that the majority of those who face people smuggling charges are
low-level crew, who often have little prior knowledge of the nature or purpose
of their role before departing Indonesia.
- As a consequence, the Commission considers that the mandatory minimum
sentences currently applicable under s 236B of the Migration Act are not
proportionate and may violate the protection against arbitrary detention in
article 9(1) of the ICCPR.
5.2 Review by higher
Article 14 of the ICCPR establishes certain procedural guarantees in civil
and criminal trials. Article 14 operates to ensure that no individual is
deprived, in procedural terms, of his or her right to claim justice.
- Relevantly, article 14(5) of the ICCPR requires Australia to ensure that:
Everyone convicted of a crime shall have the right to his
conviction and sentence being reviewed by a higher tribunal according to
Article 14(5) of the ICCPR provides for review of conviction and sentence by
an appellate court. This means that Australia must ensure that the law allows
for a right of appeal in order that a higher court may substantially review a
- Where a court imposes the mandatory minimum penalty provided by law for the
aggravated offence of people smuggling there is no right of appeal against the
sentence. The Commission submits that this is in breach of Australia’s
obligations under article14(5) of the ICCPR.
6 Principles applicable
The Commission holds serious concerns that a number of individuals convicted
of the aggravated offence of people smuggling and subject to the mandatory
minimum term of imprisonment may be children.
Australia also has particular human rights obligations to children.
Australia ratified the CRC in 1990. Australia’s obligations under the CRC apply to all children in Australia,
regardless of citizenship or immigration status. For the purposes of the CRC,
children are defined as individuals who are under 18 years of
The CRC is the key human rights treaty regarding children’s rights.
The CRC recognises that children are entitled to protection of their basic human
rights and require special protection because of their vulnerability to
exploitation and abuse.
Article 3(1) of the CRC requires State parties to ensure that the best
interests of the child are a primary consideration in all actions concerning
children, including actions undertaken by a court of law.
- Article 37(c) requires that a child deprived of his or her liberty be
treated in a manner which takes into account the needs of a person of his or her
age. Article 37(c) of the CRC states relevantly:
States Parties shall
ensure that: ...
(c) Every child deprived of liberty shall be treated with humanity and
respect for the inherent dignity of the human person, and in a manner which
takes into account the needs of persons of his or her age. ...
Moreover, under the CRC all children in Australia have the right to be
treated in a manner which takes into account the child’s
age and to be arrested detained
or imprisonment only as a measure of last resort and for the shortest
appropriate period of time.
- The Commission holds serious concerns that the age assessment procedures
employed by the Commonwealth in people smuggling matters have led to some
children being charged, convicted and sentenced as
adults. Should this have
occurred, the imposition of a mandatory sentence on someone who is in fact a
child is inconsistent with Australia’s obligations under the CRC.
 The aggravated offence of
people smuggling is established in s 233C of the Migration Act.
Migration Act 1956 (Cth), s 236B
1956 (Cth), s 236A
International Covenant on Civil and Political Rights, opened for
signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), at http://www2.ohchr.org/english/law/ccpr.htm (viewed 30 August 2011).
Manga v Attorney-General  2 NZLR 65, –, (Hammond J).
See also the views of the UN Human Rights Committee in Van Alphen v The
Netherlands, Communication No 305/1988, UN Doc CCPR/C/39/D/305/1988; A v
Australia, Communication No 560/1993, UN Doc CCPR/C/39/D/305/1988; Spakmo
v Norway, Communication No 631/1995, UN Doc
Australia Communication No 900/1999 UN Doc CCPR/C/76/D/900/1999
 Barwick CJ in Palling
v Corfield (1970) 123 CLR 52 at
Reid v Jamaica Communication No. 355/1989, U.N. Doc. CCPR/C/51/D/355/1989
Convention on the
Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3
(entered into force 2 September 1990), at http://www2.ohchr.org/english/law/crc.htm (viewed 27 January 2012).
Convention on the Rights of the Child, above, article
 While Australia has made
a reservation to article 37(c) of the CRC, that reservation applies to limit the
obligation to separate children from adults in prison only to the extent that a
child’s contact with their families may be compromised taking into account
the geography and demography of
the Rights of the Child, above, article
Convention on the
Rights of the Child, above, article
 The Commission is
currently conducting an Inquiry into the treatment of individuals suspected
of people smuggling offences who say that they are children (information
about the Inquiry can be found at: www.humanrights.gov.au/ageassessment/index.html).