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2010 - 2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
DETERRING PEOPLE SMUGGLING BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs,
the Honourable Brendan O'Connor MP)
DETERRING PEOPLE SMUGGLING BILL 2011
GENERAL OUTLINE
This Bill will amend the Migration Act 1958 (the Migration Act) to clarify the
meaning of the words `no lawful right to come to Australia' contained in the people
smuggling offences in the Migration Act.
The amendments relate to the serious crimes of people smuggling and aggravated
people smuggling, and do not affect the rights of individuals seeking protection or
asylum in Australia. They also do not affect Australia's international obligations in
respect of those persons.
The words `lawful right to come to Australia' was originally inserted in the
Migration Act in December 1999 by the Border Protection Legislation
Amendment Act 1999 (the Border Protection Legislation Amendment Act). These
words were not defined at the time. The Anti-People Smuggling and Other Measures
Act 2010, which commenced on 1 June 2010, made changes to the people smuggling
offences, including by inserting the word `no' at the beginning of the words `lawful
right to come to Australia'.
Existing sections 233A and 233C, within Subdivision A of Division 12 in Part 2 of
the Migration Act, establish a primary people smuggling offence and an aggravated
people smuggling offence. Both of these offences are established inter alia where
another person organises or facilitates the bringing or coming to Australia, or the
entry or proposed entry to Australia, of another person that is a non-citizen, and that
non-citizen had, or has, no lawful right to come to Australia.
The people smuggling offences in the Migration Act have been consistently
interpreted since 1999 as applying where a person does not meet the requirements for
coming to Australia under domestic law.
To avoid doubt and to ensure the original intent of the Parliament is affirmed, these
amendments clarify the meaning of the words `no lawful right to come to Australia'.
This clarification will be applied retrospectively to 16 December 1999 to address
doubt that may be raised about convictions that have already been made under
sections 233A and 233C of the Migration Act, and previous section 232A of the
Migration Act as in force before 1 June 2010.
This Bill does not have any other impact.
PURPOSE
Schedule 1 contains amendments relating to people smuggling and aggravated people
smuggling. The purpose of the amendments in this Schedule is to:
· clarify the meaning of the words `no lawful right to come to Australia', and
· provide that the clarification of the words `no lawful right to come to
Australia' applies to all conduct which occurred on or after 16 December
1999.
FINANCIAL IMPACT STATEMENT
The Bill has no financial impact on Government revenue.
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NOTES ON CLAUSES
Clause 1: Short Title
This clause provides that when the Bill is enacted, it is to be cited as the Deterring
People Smuggling Act 2011.
Clause 2: Commencement
This clause sets out when the various parts of the Act are to commence.
Clause 3: Schedule(s)
This is a formal clause that enables the Schedules to amend Acts by including
amendments under the title of the relevant Act.
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Schedule 1
Migration Act 1958
Item 1 - After section 228A
This item inserts a new section 228B into the Migration Act after existing section
228A. The new section is titled, `Circumstances in which a non-citizen has no lawful
right to come to Australia'.
This item is an amendment which clarifies the operation of the people smuggling and
aggravated people smuggling provisions in Subdivision A of Division 12 in Part 2 of
the Migration Act.
New section 228B will make it clear that, for the purposes of Subdivision A of
Division 12 in Part 2 of the Migration Act, a non-citizen has, at a particular time, no
lawful right to come to Australia if at that time the person does not meet requirements
for lawfully coming to Australia under domestic law.
Outline of existing offences
The words `no lawful right to come to Australia' are used in paragraphs 233A(1)(c)
and 233C(1)(c) of the Migration Act, but are not currently defined. Sections 233A
and 233C form part of Subdivision A of Division 12 in Part 2 of the Migration Act.
Existing section 233A establishes a primary people smuggling offence. Under that
section it is an offence for a person to organise or facilitate the bringing or coming to
Australia, or the entry or proposed entry into Australia, of another person if that other
person is a non-citizen and had, or has, no lawful right to come to Australia.
Section 233C establishes an aggravated people smuggling offence where a person, in
committing a primary offence of people smuggling, organises or facilitates the
bringing or coming to Australia, or the entry or proposed entry into Australia, of a
group of at least five persons who had or have no lawful right to come to Australia.
These offences are consistent with Australia's obligations to criminalise people
smuggling and aggravated people smuggling under the Protocol against the
Smuggling of Migrants by Land, Sea and Air supplementing the United Nations
Convention on Transnational Organised Crime.
Legislative history
The words `lawful right to come to Australia' were originally inserted in the
Migration Act in December 1999 by the Border Protection Legislation
Amendment Act. That Act amended the aggravated people smuggling offence under
previous paragraph 232A(b) which was in force at the time by repealing the words
`... does so knowing the people would become, upon entry into Australia, unlawful
non-citizens', and replacing them with `does so reckless as to whether the people had,
or have, a lawful right to come to Australia'.
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The explanatory memorandum to the Border Protection Legislation Amendment Bill
explains that the words were introduced to avoid a defence to the offence of people
smuggling based on knowledge of what constitutes an `unlawful non-citizen'.
However, the explanatory memorandum does not explain why the language of entry
was replaced with `lawful right to come to Australia'. The explanatory memorandum
states:
Paragraph 232A(b)
This item amends paragraph 232A(b) to replace the element of knowledge
with the element of recklessness. Section 232A currently provides that a
person who organises or facilitates the bringing or coming to Australia, or the
entry or proposed entry into Australia, of a group of 5 or more people and
who does so knowing the people would become, upon entry into Australia,
unlawful non-citizens. By replacing the knowledge element with an element of
recklessness as to whether the people in question had, or have, a lawful right
to come to Australia, this amendment will ensure that a person cannot avoid
liability under section 232A on the basis that they did not have technical
knowledge that the people being trafficked would become, in Australia,
"unlawful non-citizens".
The Anti-People Smuggling and Other Measures Act 2010, which commenced on
1 June 2010, repealed section 232A and replaced it with current section 233C. The
words `lawful right to come to Australia' were retained in section 233C, but the
reference to section 42 was removed. In addition, the word `no' was inserted at the
beginning of the words `lawful right to come to Australia'. The explanatory
memorandum to the Anti-People Smuggling and Other Measures Bill stated, in
relation to section 233C:
Paragraph 233C(1)(c) sets out the physical element of a circumstance that the
persons referred to in paragraph (b) have or had no lawful right to come to
Australia - that the bringing or coming, or entry or proposed entry does not or
would not comply with the entry requirements under Australian law. This
section is now aligned with the primary people smuggling offence in the
Migration Act. The physical element in paragraph 233C(1)(c) has not altered
from the current section 232A. (emphasis added).
Proposed amendments
Proposed new subsection 228B(1) provides that, for the purposes of Subdivision A of
Division 12 in Part 2 of the Migration Act, a non-citizen has, at a particular time, no
lawful right to come to Australia if, at that time, the non-citizen does not hold a visa
that is in effect, and is not covered by an exception referred to in existing
subsections 42(2), 42(2A), or 42(3) of the Migration Act. These exceptions allow
non-citizens to come to Australia without a visa that is in effect in certain
circumstances (such as where a New Zealand citizen who holds and produces a
New Zealand passport that is in effect comes to Australia). The proposed new section
228B will make it clear that non-citizens not covered in those subsections require a
valid visa that is in effect to come lawfully to Australia. This is the way the
provisions have been consistently interpreted since their introduction in 1999.
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Proposed subsection 228B(2) is an avoidance of doubt provision that makes it clear
that references to `non-citizens' in proposed subsection 228B(1) include a reference to
a non-citizen who is seeking protection or asylum (however that may be described).
Proposed subsection 228B(2) also makes it clear that it does not matter, for the
purposes of the people smuggling offence in section 233A and the aggravated people
smuggling offence in section 233C, whether or not Australia has, or may have,
protection obligations in respect of the non-citizen. The provision applies irrespective
of whether the non-citizen has sought protection.
Proposed paragraphs 228B(2)(a) and 228B(2)(b) provide that the `protection
obligations' referred to in subsection 228B(2) are those arising under the
1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol
Relating to the Status of Refugees, as well as other protection obligations arising for
any other reason (such as those that may arise under different international
instruments to which Australia is a party).
As a result of item 2 in column 1 of the table in clause 2 of this Bill, the clarification
in this item would operate retrospectively, and apply to offences committed or
suspected to have been committed on or after the commencement of item 51 of
Schedule 1 to the Border Protection Legislation Amendment Act.
This Bill does not alter any elements of the people smuggling offences contained in
the Migration Act.
No impact on individuals seeking protection or asylum
The amendments expressly clarify the operation of people smuggling and aggravated
people smuggling offences in the Migration Act. The offences deal with the serious
crimes of people smuggling and aggravated people smuggling, and do not affect the
treatment of individuals seeking protection or asylum in Australia. As such, the
amendments are consistent with Australia's obligations under international law and do
not affect the rights of individuals seeking protection or asylum, or Australia's
obligations in respect of those persons.
Item 2 - Application
Item 2 of Schedule 1 determines the way that the amendments made by Schedule 1
apply. Sub-item 2(1) provides that proposed section 228B of the Migration Act, as
inserted by this Bill, will apply in relation to an offence committed, or alleged to have
been committed, on or after the commencement of Schedule 1 to this Bill.
Sub-item 2(2) provides that proposed section 228B of the Migration Act, as inserted
by this Bill, will apply to particular proceedings. Paragraph 2(2)(a) provides that
proposed section 228B will apply to original and appellate proceedings that were
commenced on or after the date on which the Bill receives the Royal Assent.
Paragraph 2(2)(b) provides that proposed section 228B will apply to original and
appellate proceedings commenced before the date on which the Bill receives the
Royal Assent, if those proceedings have not been finally determined before the date of
Royal Assent.
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As a result of sub-item 2(2), item 1 will apply where a person convicted of a people
smuggling or aggravated people smuggling offence appeals that conviction or their
sentence.
As a result of item 2 in column 1 of the table in clause 2 of this Bill, this item would
operate retrospectively, and apply to offences committed or suspected to have been
committed on or after the commencement of item 51 of Schedule 1 to the
Border Protection Legislation Amendment Act. This would allow retrospective
application from 16 December 1999.
This item does not affect the rights of individuals seeking protection or asylum, or
Australia's obligations in respect of those persons.
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