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2010 - 2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
DETERRING PEOPLE SMUGGLING BILL 2011
REPLACEMENT EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs,
the Honourable Brendan O'Connor MP)
THIS MEMORANDUM TAKES ACCOUNT OF RECOMMENDATIONS MADE BY THE SENATE LEGAL
AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE REPORT TABLED ON 21
NOVEMBER 2011
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' were 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 lawfully 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.
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.
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 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'.
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 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.
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).
Retrospectivity
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 alleged to have been committed on or after the
commencement of item 51 of Schedule 1 to the Border Protection Legislation
Amendment Act.
People smuggling and aggravated people smuggling offences in the Migration
Act were intended to apply, and have been consistently interpreted since
1999 as applying, where a person brought into Australia does not meet the
requirements for lawfully coming to Australia under domestic law. The
amendments will apply retrospectively from 16 December 1999 when the words
'lawful right to come to Australia' were first inserted into the people
smuggling offences in the Migration Act.
Although the Bill will have retrospective application, it does not alter
any of the elements of the existing people smuggling offences in the
Migration Act, and does not extend criminal liability beyond the scope of
what Parliament intended in 1999 in any way.
Retrospective application is necessary to ensure the original intent of the
Parliament is affirmed, to avoid uncertainty about the validity of previous
convictions, and to maintain current prosecutions. There are exceptional
circumstances that justify retrospectivity for this Bill. There is a risk
large numbers of past convictions and current prosecutions of serious
Commonwealth criminal offences may be defeated or overturned as a result of
a recent technical argument that has been raised in legal proceedings in
relation to the words 'no lawful right to come to Australia'.
Since 1999, there have been over 960 prosecutions for people smuggling
offences. Currently, there are 258 persons before the courts and 196
prisoners serving sentences in Australia for people smuggling offences.
The most commonly prosecuted people smuggling offence is the aggravated
offence involving smuggling five or more persons under section 233C of the
Migration Act. Convictions under this offence have been made in respect of
both organisers and facilitators of people smuggling. Under section 233B
of the Migration Act, a person also commits an aggravated people smuggling
offence where they commit the crime of people smuggling, reckless as to
whether they have placed one of the smuggled persons in danger of death or
serious harm.
The retrospective application of this Bill is important to remove the risk
of potentially undermining the administration of justice as a result of
past convictions being overturned or current prosecutions being defeated.
Retrospectivity is also important to ensure the people smuggling offences
in the Migration Act continue to operate as they have since they were
amended in 1999.
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.
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 will 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 will
allow retrospective application from 16 December 1999.
This item does not affect the rights of individuals seeking protection or
asylum, or Australia's international obligations in respect of those
persons.
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