The relevant part of that URL / pdf doc starts at p.37

My recollection is that Liberal (and perhaps Nat ? Peter Hall) members of the Social Development Committee which had turned thumbs down on the Community Protection bill (maybe Community Protection (Violent Offenders) Bill 1992 actually voted against the bill, at least in the Leg Co. Denis Napthine, future Liberal leader, may have done so in the Assembly as well as speaking against the bill.

Another Liberal (?Guest) voted against in Leg Co and answered questions about what he would do by saying that the cost of monitoring a single allegedly deranged prisoner full time was not too high a price for adhering to long established principle. I remember that because it struck me as one of the few bits of rational dispassionate thinking in the whole sorry episode. The very smart Marie Tehan who was shadow Attorney-General or shadow minister for Health made a fine impassioned speech against the bill and somehow ended up saying, almost, “and that is why we must vote for it”.

I must have missed that one, can you give me a reference keyword?

A third common feature of the Rudd Government’s present actions and the earlier Pacific Solution is the persistent distortion of the law to serve blatantly political ends. Just as Philip Ruddock and John Howard wrongly argued that Australia had the right to force refugees away from its territorial waters at will despite having undertaken international protection obligations to all refugees under its jurisdiction, we now see the Prime Minister confidently asserting that he will make “no apology whatsoever in terms of the series of hardline measures that [the government is] taking in relation to people smuggling and in relation to illegal immigration”.
Rudd is absolutely wrong to suggest that he is entitled to force refugee claimants into detention in Indonesia on the grounds either that they are travelling with aid of people smugglers, or because they are “illegal” immigrants.
Refugees use smugglers – and sometimes, regrettably, traffickers as well – precisely because there is no other way quickly, and with even a modicum of reliability, to get out of dangerous places and to a country in which they can seek recognition of their protected status. Australia, like most other rich countries, has erected a myriad of physical and legal barriers – carrier sanctions, visa controls, and the like – that prevents genuine refugees from coming to us legally. Even if a refugee could somehow safely reach and walk into an Australia embassy abroad, we would not issue a visa for the purpose of seeking asylum here. Travel without pre-authorisation is, for the truly desperate, usually the only real option.

Professor James Hathaway.

By making the method of transport into Australia illegal Howard and Ruddock and co. effectively tried to slam the door.

And many of the so-called smugglers when home years before many of the refugees were released from detention.

You need to read the provisions of the people smuggling protocol I posted.

61 The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia: see ss 36 and 65 of the Act. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others, may also be called “unlawful non-citizens” in the countries in which they seek asylum. Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950’s (which has been enacted into Australian law) to claim refugee status as persons who are “unlawfully” in the country in which the asylum application is made.

62 The Refugees Convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence, in that country: see Art 31. That right is not only conferred upon them under international law but is also recognised by the Act (see s 36) and the Migration Regulations 1994 (Cth) which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signatories to the Refugees Convention, including Australia, would be undermined and ultimately rendered nugatory.

63 Notwithstanding that the applicant is an “unlawful non-citizen” under the Act who entered Australia unlawfully and has had his application for a protection visa refused, in making that application he was exercising a “right” conferred upon him under Australian law.”

See, nothing illegal or unlawful actually, it is a right under the refugee convention.

These mandatory sentencing laws were also used to imprison two people who helped over fifty refugees escape from Vietnam in 2003. That’s despite the fact they were related to the refugees - one was an Australian citizen who returned to Vietnam to help some of his relatives escape - who received no financial or other benefit from doing so.

Like most of these measures from the Howard era, the changes were brought in with the support of both major parties (although not with some misgivings). As with most of these, the political message was what mattered, not whether it would have any practical effect on people flows and certainly regardless of the human damage it might cause.

If I was Indonesia, I’d be requesting Australia scrap these mandatory sentencing provisions - which would still allow for major sentences to be handed out to any major smuggling king pin who ever gets caught, without locking up impoverished fishermen for years.

Unfortunately, given Kevin Rudd’s overkill comments about people smugglers, it’s probably now politically impossible to make such a change.

Now we’re holding a gun to Indonesia’s head on the one hand, at the same time having bear hugs and talking about friendship. I bet young people are totally confused. God knows what messages they’re getting.
In reference to the ‘when they came for me there was no one left’. There’s a good documentary called, ‘Unconstitutional - the war on civil liberties in America’. It can be seen on http://www.freedocumentaries.org and is most revealing, and heartening too. It covers the time after 9/11, the PATRIOT Act and the activities of the intelligence agencies, the Bush Administration, the Civil Liberties Union, local politics and the people taking a stand.

Kevin Rudd should be ashamed of himself. He’s in a firm positon electorally, and he could’ve taken the Australian people into his confidence; engaged them in the facts of the numbers arriving etc, the relevant Migration Act and our responsibilities etc. He lost an ideal opportunity to show leadership. Instead, he engaged in name calling (scum) and ran away and hid. Paul Howes displayed more maturity and leadership than both the Govt and the Opposition, who are just beyond despicable!

I’m playing the worlds smallest violin as we speak.

You said “There are many instances of several repeat offenders being caught and sent back to Indonesia a number of times” sounds pretty nice in a non-specific and unsubstantiated fashion. Would be nice if you could provide some links and examples of these, shouldn’t be too difficult if there are ‘many’ of them.

Greg Angelo, how much would you say of your understanding of criminal justice comes from watching television?
It would be worth reading up on the NT mandatory sentencing laws of a few years back, and you probably learned about separation of powers in school, so the dangerousness of removing the court’s discretion should start to come clear. It could be you in the dock one day when it dawns on you that all your extenuating circumstances and the court’s mercy are useless to you.

It doesn’t even have the excuse of being likely to work in the sense of there being some big beneficial result from such a huge departure from respect for the individual and the ordinary principles of justice. It’s all very well to be a tough minded pragmatist like Greg Angelo but pragmatists ought to have a better grasp of reality (cf. Christopher Dunne’s comment for one example).

Dozens of cases the same are on the record and I am sick to death of lawyers railroading these young guys to plead guilty to a non-crime.

It is legal for refugees to enter Australia without papers and using any available transport to do so. Not one refugee has ever been charged with illegal entry, because it is not illegal entry.

If the refugees have not entered illegally the stupidity of jailing these young guys is doubly stupid.

See, in the case of Hamdan v DIMA of 2004

31 Further, as Hayne J observed in Al-Kateb at [207]-[208] the description of a person’s immigration status as “unlawful” serves as no more than a reference to a non-citizen not having a “valid permission to enter and remain in Australia”. The use of the term “unlawful” does not as such refer to a breach of a law.”

And as stated in Al Masri of 2002:

“62 The Refugees Convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence, in that country: see Art 31. That right is not only conferred upon them under international law but is also recognised by the Act (see s 36) and the Migration Regulations 1994 (Cth) which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signatories to the Refugees Convention, including Australia, would be undermined and ultimately rendered nugatory.”

Not only that but Ashmore Island has been excised from the Migration zone so when they arrive there the refugees aren’t deemed to be in Australia so they are shipped 1800 Km to the west where they are deemed not to be in Australia.

http://sievx.com/articles/sentences/dirlist.php
If you read these cases you will note:

“As has been observed in relation to other cases of this kind, the prisoners were not involved in a ‘people-smuggling’ exercise. There was nothing covert about either operation. They were transporting the non-citizens to Australia for presentation to Australian authorities. There was no attempt to hide from the authorities or to disguise what they had done”.

The so-called smugglers are given lawyers, charged with the non crime of not smuggling anyone and sent to prison.

In some cases taken from senate and courts notes I have found that in the past the juveniles were not sent to prison but sent home while thousands of the “victims”, the refugees, were sent to detention for up to 5 years, 5 months and 20 days.

Sciacca and co. were well aware of that at the time.

Thursday, 10 February 2000 SENATE—Legislation L&C

Senator McKIERNAN—I am talking particularly about the boat people. They are the
people who arrive on our shores – mainly on Ashmore Islands – and who put their hands up
and say, ‘Find me, find me! Take me in.’ They do not use these exact words, but they want to
be found. These are not people who are escaping the scrutiny of our Coast Watch people.

Senator Vanstone—Senator, I cannot resist! Perhaps you could tell Mr Beazley that so he
does not keep raving on about this silly idea that we need a Coast Guard to locate the people.
You at least realise that they want to be found; it would be helpful if your party realised that
as well.

The fishermen are sent to jail because we then have to live up to our responsibilities as signatories to the refugee convention.

Read the cases and see what a hoax it all has been all along.

AS I have been saying since I found the cases in 2002, the senate has had them since inquiries beginning in 2004 and they completely ignore it.

The supply of fodder, both refugees desperate enough to chance getting here, and willing crew desperate enough for a few hundred dollars is colossal.

Imprisoning these people is no more a deterrent than whacking the refugees in Baxter or Nauru, but once again, placates a stupid public who think vindictive laws misapplied to desperate people is some sort of ‘solution’.

It isn’t.

One thing, in the email you’ve got: “Beny and Mohamed were prime candidates for the exercise of ordinary judicial discretion and the application of the usual judicial Sentencing Principles (insert link to attached PDF) that provide clarity and transparency in sentencing.”

The editors left out the link. Could Crikey please post the Sentencing Principles document, I’d like to see that.

It never ceases to amaze that only the ‘mules’ are ever caught and punished, while the organising top dogs go scott free.

Justice Mildren should perhaps leave the bench and run for Parliament so that he can make the laws and not enforce them . He has perhaps forgotten that his judicial obligation is to enforce the law that Parliament makes. For once at least a significant penalty is being handed out in a situation where the judiciary cannot water down the impact of judicial process to suit their own preferences.

Several years incarceration for people smuggling follows the Mao Zedong principle of “execute one educate a thousand” and hopefully application of these penalties will send a clear message to the Indonesian community that facilitating people smuggling as a get rich quick option has a downside.

One of the individuals concerned was apparently advised that he would be caught, but would be soon sent home. It would appear that this myth has now been dispelled.

There is a similar situation with illegal fishing off the northern Australian coast. There are many instances of several repeat offenders being caught and sent back to Indonesia a number of times after a judicial “a slap on the wrist “. Hopefully five years in jail will reduce the frequency of facilitation of smugglers by repeat offenders.