Case notes: High court and federal court

In Magaming v The Queen [2013] HCA 40 (11 October 2013), s.233A(1) of the Migration Act 1958 (Cth) created the offence of people smuggling. This was committed when a person facilitated the travel of an unlawful non-citizen to Australia, and carried no minimum penalty. Under s.233C(1), the offence of aggravated people smuggling was created. It was committed when the travel of five or more persons was facilitated and carried a minimum penalty of five years' imprisonment. M was an Indonesian fisherman, and one of four crew on a fishing boat carrying 52 asylum seekers to Australia. He pleaded guilty to the charge of aggravated people smuggling. He was sentenced as required to five years' imprisonment with a minimum term of three years. His appeal to the Court of Criminal Appeal (NSW) was dismissed, concluding that the provisions were not unconstitutional. The majority of the High Court (French CJ, Hayne, Crennan, Kiefel and Bell JJ jointly; sim Keane J; contra Gageler J) rejected the contention that the presence of a minimum term provision meant the outcome was dictated by the offence the prosecution selected, thereby making the provisions incompatible with the exercise of judicial power. Appeal dismissed.