Tuesday, 10 April 2012

Ball is in Gillard's court on mandatory sentencing

The weekend press reports say that our troops in Afghanistan will soon be transitioning to a mentoring role.

The claim is that we will leave when the people of Afghanistan can manage for themselves and so naturally Defence Minister Stephen Smith says there have been 'substantial' improvements in security and performance of the Afghan military.

But regardless of security improvements or the performance of the Afghan forces, when the US leaves, then we will leave.

The Afghans might manage but it is just as likely that Afghanistan will struggle. The Taliban will grow in strength and they will end up playing a part in government. Women will continue to be treated like second-class citizens. The pressures on ethnic groups like the Hazaras will not diminish. The Hazara are Shiite Muslims but the dominant group in Afghanistan are Sunni Muslims including the ruling Pashtuns and the Taliban. Dreadful acts of violence and discrimination against the Hazaras have not been uncommon. If the situation in Afghanistan does not improve but instead worsens, then more Hazara Afghans will be heading towards Australia. There are somewhere between five and eight million Hazaras in Afghanistan. Australia will continue to be a good international citizen and give refuge to some of these people.

The Howard policy could be summed up as 'if you try to get to Australia' you will not make it. The current policy of the Gillard Government is the opposite. The policy now is to pick up asylum seekers, take them to the detention centre in Christmas Island and then move them to the mainland. So the policy is to help people arrive even though these people have (as described last week by Senator Hanson-Young, Dissenting Report April 4, 2012) "no lawful right to come" to Australia and are "unauthorised boat arrivals". There are limits on the number of people Australia is prepared to take as refugees and so the Australian Government decides that limit. Therefore, everyone who comes by boat will supplant the refugee who can't afford to get to Indonesia or is not prepared to risk themselves or their family.

Some of the consequences of more boat arrivals will include rising disquiet among the Australian public at the loss of control of our borders; more generally, the undermining of confidence in Australia's migration program; the denial of refugee status to asylum seekers who will not risk the boat trip; growing numbers of detainees; and more Indonesian fishermen drowning or ending up in Australian jails.

The plight of these fishermen was highlighted in last week's publication of the Senate Committee Report on mandatory sentencing. The report has some interesting facts.

As at February 2012 there were 208 people before the courts and of those 'three were regarded as organisers' - the rest were crew.

Prosecutions are increasing; as at June 2009 there were 30 cases pending; in 2010, 102 cases pending; and in 2011, 304 pending cases.

The wages for crew are between $300 and $1,200.

The recent Gillard amendments have toughened up the penalties so that now, a second offence, considered at the same time as the first offence, qualifies as a repeat offence and so the higher mandatory term of eight years applies.

The costs of imprisonment are about $170,000 per prisoner for 2.5 years.

The costs of prosecution are increasing from $1.52 million in 2009 to $6.24 million in 2010 and forecast of $13.99 million for the current financial year.

There seems little doubt that the crew are generally illiterate, have little or no idea of the purpose of their journey, and they are not aware that they are in breach of Australian law. They are basically pawns in a criminal racket.

I understand why governments have supported mandatory sentencing; it reflects in part a lack of confidence that the judiciary will treat people smuggling as seriously as the Parliament expected. Also, when mandatory sentencing was introduced in 2002 it was at a time when the government was doing everything it thought might stop the boats. The policy worked, the boats stopped coming and so there was no reason for the issue to be addressed. Years later with the experience that comes from increasing boat numbers under Rudd/Gillard, it now seems that the mandatory sentencing was not the deterrent that might then have been thought.

The evidence to the Senate was that illiterate Indonesian fishermen have little idea of their offence. Some of them are underage. Some barely know their own age. The law now says if they seem to be over age on the 'balance of probabilities' then they go to jail for five years or eight years under Gillard's 'get tough' approach. In my view, if there is any doubt that defendant crew are under age the judge or magistrate should not have to impose a mandatory sentence.

Australia should not 'on balance' be putting minors in jail.

The committee has recommended that the Government review the 'options for differentiating between the organisers of people smuggling operations and boat crew'. The ball is now in Gillard's court. She has made such a mess of this whole issue, I am not holding my breath that she will take up this recommendation but we live in hope. Even better, the lives of asylum seekers and children crew would be saved, if Gillard could do something to stop the boats which she says is her preferred outcome.

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