In Bonang Darius Magaming v The Queen  HCA 40 the Australian High Court, by majority, upheld the validity of the Migration Act 1958 (Cth) s 233C(1), which prescribed a mandatory minimum term of imprisonment for people smuggling, specifically the offence of facilitating the bringing or coming to Australia of a group of at least five non-citizens with no lawful right to come to Australia.
The High Court held that the provision was not beyond the legislative power of the Commonwealth Parliament and did not confer judicial power on prosecuting authorities.
Magaming was one of four crew members on a boat carrying 52 passengers intercepted near Ashmore Reef on 6 September 2010. The passengers were not Australian citizens; none had a lawful right to enter Australia. Magaming was charged with one count of facilitating the bringing or coming to Australia of a group of at least five unlawful non-citizens contrary to s 233C(1) of the Act.
The offence under s 233C(1) of the Act was an aggravated form of the people smuggling offence created by s 233A(1) of the Act, which prohibited facilitating the bringing or coming to Australia of an unlawful non-citizen. Section 233C(1) of the Act carried a mandatory minimum sentence of five years' imprisonment with a minimum non-parole period of three years, in contrast to s 233A(1) which carried no mandatory minimum term of imprisonment.
Magaming was sentenced to the mandatory minimum term of five years' imprisonment with a non-parole period of three years, after pleading guilty in the District Court of New South Wales. He sought leave to appeal to the Court of Criminal Appeal of the Supreme Court of New South Wales, alleging that the provision prescribing the mandatory minimum term of imprisonment was invalid. The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, concluding that the relevant provision was valid.
Magaming the appealed to the High Court by special leave.
He contended that in circumstances where prosecuting authorities could choose between charging an offence that carried a mandatory minimum sentence and charging another offence that carried no mandatory sentence, the prosecuting authorities impermissibly exercised judicial power. He also contended that the provision of the Act prescribing the mandatory minimum sentence was incompatible with the institutional integrity of the courts and that it required a court to impose a sentence that was arbitrary.
The High Court this week dismissed the appeal. Although prosecuting authorities had a choice as to which offence to charge, that did not involve an exercise of judicial power or confer on prosecuting authorities an ability to determine the punishment to be imposed for the same conduct. Imposition of a mandatory minimum sentence was not inconsistent with institutional integrity and did not involve the imposition of an arbitrary sentence.