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2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Migration Amendment (Removal of Mandatory
Minimum Penalties) Bill 2012
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator S Hanson Young)
Outline
The Migration Amendment (Removal of Mandatory Minimum Penalties) Bill 2012 amends
the Migration Act 1958 to remove the mandatory minimum sentence that affects three of the
Commonwealth people smuggling offences set out in that Act.
NOTES ON CLAUSES
Clause 1 - Short Title
1. This is a formal provision specifying the short title.
Clause 2 - Commencement
2. The Bill's provisions are to commence the day after it receives Royal Assent.
Clause 3 - Schedules
3. This clause provides that an Act that is specified in a Schedule is amended or repealed as
set out in that Schedule, and any other item in a Schedule operates according to its terms.
Schedule 1 - Amendment of the Migration Act 1958
Item 1
4. Item 1 repeals the note attached to the offence at subsection 233B(1) of aggravated people
smuggling (exploitation, or danger of death or serious harm etc). This item removes from
this offence the application of the mandatory sentencing provision at section 236B. This
item is consequential on item 5 which removes the mandatory sentencing provision at
section 236B. The note is then substituted with the remaining application of section 236A
which allows the court to discharge a youthful offender.
Item 2
5. Item 2 repeals the note attached to the offence at subsection 233C(1) of aggravated people
smuggling (at least 5 people). This item removes from this offence the application of the
mandatory sentencing provision at section 236B. This item is consequential on item 5
which removes the mandatory sentencing provision at section 236B. The note is then
substituted with the remaining application of section 236A which allows the court to
discharge a youthful offender.
Item 3
6. Item 3 repeals the note attached to the aggravated offence at subsection 234A(1) of
providing false documents and false or misleading information relating to non-citizens.
This item removes from this offence the application of the mandatory sentencing
provision at section 236B. This item is consequential on item 5 which removes the
mandatory sentencing provision at section 236B. The note is then substituted with the
remaining application of section 236A which allows the court to discharge a youthful
offender.
Item 4
7. Item 4 repeals the note attached to the offence at subsection 234A(2) of dealing with
documents that may be used to help unentitled people gain entry to Australia or
Australian immigration clearance. This item removes from this offence the application of
the mandatory sentencing provision at section 236B. This item is consequential on item 5
which removes the mandatory sentencing provision at section 236B. The note is then
substituted with the remaining application of section 236A which allows the court to
discharge a youthful offender.
Item 5
8. Item 5 repeals section 236B in its entirety which removes all mandatory minimum
sentencing provisions from the Migration Act 1958.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Migration Amendment (Removal of Mandatory Minimum Penalties) Bill 2012 will remove
mandatory minimum sentencing provisions which currently operate over certain Commonwealth
people smuggling offences under the Migration Act 1958. Under the current mandatory sentencing
regime, a person who is convicted of one of four specified offences must be sentenced to
imprisonment of a minimum five years with a non-parole period of three years. By removing the
mandatory sentencing provisions, this Bill returns judicial discretion to the sentencing process, and
addresses the concerns raised by the Australian judiciary that many individuals convicted of the
relevant offences are being imprisoned for longer than necessary.
Human rights implications
The key human rights engaged by this Bill are:
- Right to security of the person and freedom from arbitrary detention.
This Bill seeks to remove mandatory sentencing which raises the issue of the above right.
This right has been considered in the drafting of this Bill.
- Rights to equality and non-discrimination.
This Bill, in practical effect, impacts a group of persons from a specific racial and national
group. This right has been considered in the drafting of this Bill.
This Bill positively affects the human rights outlined above, in that the Bill seeks to restore the full
operation of those rights by removing the current limitation on their operation.
That this reform is an advancement of human rights, rather than a limitation, is supported by
arguments raised by human rights advocacy groups.
Conclusion
The Bill is compatible with human rights because it advances the protection against arbitrary
imprisonment and removes mandatory sentencing which, in practical operation, impacts on a
specific group of people.