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Representing alleged people smugglers

Legal Aid NSW has been providing representation for alleged people smugglers who have been transferred to NSW after Western Australia and the Northern Territory jurisdictions became overloaded with matters.

Legal Aid NSW started receiving these high profile matters at the end of 2010.  Aid has been granted in 105 matters. About one third of matters are represented by our in-house practice, including lawyers from our Commonwealth Crime Unit,  and two thirds of matters have been assigned to private lawyers.

We have had considerable success for our clients in these matters with many defendants being acquitted. We also have a fair percentage of hung juries. The clients are generally from remote villages in the Indonesian archipelago and are vulnerable to being recruited by people smugglers offering fishing or other work. They spend 12-18 months in immigration detention and on remand before trial.

Around 10 defendants have been deported to Indonesia without trial as they were proven to be under 18 at the time of their detention. Staff in the Commonwealth Crimes Unit at Legal Aid NSW have recently finalised two submissions in relation to children detained and then charged with people smuggling. The first was a submission to the Commonwealth Senate Standing Committee on Legal and Constitutional Affairs, which was seeking comment on the Crimes Amendment (Fairness to Minors) Bill 2011.  The second was a submission to the Australian Human Rights Commission on the Inquiry into the treatment of individuals suspected of people smuggling offences who say they are children.

Aggravated people smuggling carries a mandatory minimum sentence for a first offence of five years imprisonment, with a non-parole period of three years. The CCU has recently prepared a Legal Aid NSW submission to the Senate Standing Committee on Legal and Constitutional Affairs inquiry into a bill to repeal mandatory minimum terms of imprisonment.

Snapshot – Maynanse’s story

One of our client’s Maynanse is from an impoverished community in a remote part of the Indonesian archipelago, surviving on subsistence farming and fishing. He was recruited by agents of people smuggling networks who come to the bigger villages offering work on fishing boats for large sums of money. The captain stopped the boat out at sea so people could board, then told Maynanse the job had changed and he now had to take the boat to Christmas Island, which Maynanse believed to be an Indonesian island. The captain disembarked and six hours later called Maynanse instructing him to follow the GPS coordinates which would in fact take the boat to Australia. Maynanse was terrified and outnumbered by passengers who did not want to turn back. He felt he had no choice but to continue the journey.

At trial, Maynanse argued that the phone call at sea amounted to a ‘sudden or extraordinary emergency’, and that committing the offence was the only reasonable choice he had. The jury accepted Maynanse’s defence, and he was acquitted after a lengthy trial.

More information

Response to Crimes Amendment (Fairness for Minors) Bill 2011, March 2012
Submission on behalf of Legal Aid NSW to the Commonwealth Senate Standing Committee on Legal and Constitutional Affairs

Inquiry into the treatment of individuals suspected of smuggling offences who say they are children, February 2012
Legal Aid NSW submission to the Australian Human Rights Commission

Inquiry into the Migration Amendment (Removal of Mandatory Minimum Penalties) Bill, March 2012
Legal Aid NSW Submission to the Legal and Constitutional Affairs Legislation Committee