CHAPTER 2
Overview of the Bill
2.1
The Bill contains provisions:
- to create new people smuggling offences and amend existing offences;
- to broaden the role of ASIO; and
- related to the investigative powers of law enforcement agencies and
ASIO.
People smuggling offences[1]
2.2
The existing people smuggling offences are set out in sections 232A to
233C of the Migration Act and Division 73 of the Criminal Code. The Migration
Act offences apply to people smuggling ventures entering Australia, while the
Criminal Code offences apply to ventures entering foreign countries.[2]
New offence of supporting people
smuggling
2.3
The Bill would insert a new offence of supporting the offence of people
smuggling in both the Migration Act and the Criminal Code.[3]
The Explanatory Memorandum states that the new offences are targeted at:
...those involved in supporting and facilitating people
smuggling. This is an important strategy in tackling serious and organised
crime. Organised criminal syndicates depend on enablers and facilitators who
play a vital role in supporting the criminal economy. Targeting those who
organise, finance and provide other material support to people smuggling
operations is an important element of a strong anti-people smuggling framework.[4]
2.4
The elements of the offence under both proposed section 73.3A of the
Criminal Code and proposed section 233D of the Migration Act are that:
- the person intentionally provided material support or resources to an
another person or an organisation; and
- the provision of the support or resources aids the commission of a
people smuggling offence.[5]
2.5
The fault element applicable to the second element of the new offences
would be recklessness. This means that the prosecution would have to prove that
the accused was aware of a substantial risk that the support or resources would
aid the commission of a people smuggling offence and, having regard to the
circumstances known to the accused, it was unjustifiable to take that risk.[6]
2.6
The maximum penalty for both offences would be ten years imprisonment, a
fine of $110,000 or both.[7]
2.7
These proposed offences would not apply to a person who provides support
or resources for the smuggling of him- or herself or a group of which he or she
is a part.[8]
However, the Explanatory Memorandum notes that the offences ‘will apply to
persons in Australia who pay smugglers to bring their family or friends to
Australia on a smuggling venture.’[9]
In his second reading speech, the Attorney-General explained the rationale for
this approach:
The government is determined to reinforce the message that
people should use authorised migration processes in seeking asylum and
migrating to Australia, and in supporting others to come here. People in
Australia should not support the life-threatening business of people smuggling
by providing finance or other assistance.[10]
Consistency between people
smuggling offences
2.8
A number of the proposed amendments in the Bill aim to harmonise the
people smuggling offences under the Criminal Code and the Migration Act. At
present, the people smuggling offences under the Criminal Code require the
prosecution to prove that a person who organises or facilitates the unlawful
entry of another person or persons into a foreign country did so having
obtained, or intending to obtain, a benefit.[11]
This is not an element of the people smuggling offences under the Migration
Act.[12]
The Bill would remove this requirement from the Criminal Code offences.[13]
The Explanatory Memorandum states that:
This amendment corrects a discrepancy between the Criminal
Code and Migration Act in that the prosecution under the Criminal Code has to
prove an additional element when prosecuting people smugglers for ventures
transiting or departing Australia.[14]
2.9
The Bills Digest notes that the People Smuggling Protocol only requires
states to criminalise people smuggling when it is committed in order to obtain
a financial or material benefit and is thus not intended to apply to family
members or charitable organisations who arrange the illegal entry of migrants
for other reasons.[15]
2.10
The Explanatory Memorandum does not clarify why this discrepancy between
the people smuggling offences under the Criminal Code and the Migration Act will
be resolved by removing the requirement (that the person obtained or intended
to obtain a benefit) from the Criminal Code offences rather than inserting this
requirement into the Migration Act offences.
2.11
There is a further significant inconsistency between the people
smuggling offences under the Criminal Code and the Migration Act. Section 73.2
of the Criminal Code provides for an aggravated offence where the people
smuggler:
- intends that the smuggled person will be exploited after he or she
enters the foreign country;
- subjects the person to cruel, inhuman or degrading treatment; or
- exposes the person to a danger of death or serious harm.
2.12
The Migration Act does not set out an equivalent aggravated people
smuggling offence. Proposed section 233B of the Migration Act would create an
aggravated offence in relation to people smuggling ventures entering Australia which
involve exploitation; cruel, inhuman or degrading treatment; or a danger of
death or serious harm.[16]
The penalty for this offence would be a maximum of 20 years imprisonment, a
fine of $220,000 or both. This is the same as the penalty provided for under
section 73.2 of the Criminal Code.
Mandatory minimum penalties
2.13
Section 233C of the Migration Act currently requires the courts to
impose a minimum sentence of at least five years imprisonment (with a
non-parole period of at least three years) where:
- a person is convicted of an aggravated people smuggling offence; and
- the offender was at least 18 years of age when the offence was
committed.[17]
2.14
If the offence is a repeat offence section 233C requires a minimum
penalty of at least eight years imprisonment (with a non-parole period of at
least five years).
2.15
The Bill would extend the mandatory minimum penalties which apply to
existing aggravated people smuggling offences to the new aggravated offence of
people smuggling involving exploitation; cruel, inhuman or degrading treatment;
or a danger of death or serious harm under proposed section 233B of the
Migration Act. The new offence would receive the higher mandatory minimum
penalty of eight years imprisonment with a non-parole period of five years. The
Explanatory Memorandum states that: ‘This is to reflect the serious nature of
this offence.’[18]
2.16
In addition, proposed subsection 236B(5) of the Migration Act would
extend the higher mandatory minimum penalty provisions so that they apply where
a person is convicted of multiple aggravated people smuggling offences in the
same proceeding. At present, the higher mandatory minimum penalties for repeat
offenders only apply were a person has been convicted of aggravated people
smuggling offences in a previous proceeding.[19]
Expanded role for ASIO
2.17
Schedule 2 of the Bill would amend the Australian Security
Intelligence Organisation Act 1979 (ASIO Act) to empower ASIO to play a
greater role in combating people smuggling. The Explanatory Memorandum states
that:
ASIO’s functions are set out in section 17 of the ASIO Act.
These functions include obtaining, correlating and evaluating intelligence
relevant to security, and communicating any such intelligence for purposes
relevant to security. The existing definition of ‘security’ in section 4 does
not specifically encompass border security issues. This means that ASIO
currently has limited capacity to carry out its intelligence functions under
section 17 in relation to threats to Australia’s territorial and border
integrity such as people smuggling.[20]
2.18
Schedule 2 would amend the definition of ‘security’ in section 4 to
include ‘the protection of Australia’s territorial and border integrity from
serious threats’.[21]
The Explanatory Memorandum notes that this would enable ASIO:
...to communicate intelligence relating to serious threats to
Australia’s territorial and border integrity to the relevant authorities. For
example, ASIO would be able to communicate intelligence relating to people
smuggling endeavours to agencies such as Australian Customs and Border
Protection Service or law enforcement agencies.[22]
Investigative powers
2.19
The Explanatory Memorandum states that the Bill would amend the Surveillance
Devices Act 2004 (SD Act) and the Telecommunications (Interception and
Access) Act 1979 (TIA Act) to enable law enforcement agencies to have
consistent access under both Acts to the appropriate investigative tools in
relation to the existing and proposed people smuggling offences.[23]
The Bill would also expand ASIO’s powers to use telecommunications interception
to collect foreign intelligence.
Surveillance devices
2.20
The SD Act sets out the procedures law enforcement officers must follow
in order to obtain surveillance device warrants as well as allowing for the use
of surveillance devices without a warrant in certain urgent circumstances. In
particular, section 30 of the SD Act permits an emergency authorisation where
specific offences are being investigated and use of the surveillance device is
necessary to prevent the loss of evidence relevant to the investigation.
2.21
The Bill would amend section 30 of the SD Act to allow the emergency use
of surveillance devices, without a warrant, in relation to all aggravated
people smuggling offences.[24]
At present, an emergency authorisation is only available in connection with the
investigation of the aggravated people smuggling offence under section 73.2 of
the Criminal Code. The amendments to section 30 of the SD Act would extend this
to cover the existing and proposed aggravated people smuggling offences under
both the Criminal Code and the Migration Act.[25]
However, the emergency authorisation of surveillance devices would not be
available to investigate the aggravated offence of supplying false information
or forged documents in relation to groups of non-citizens seeking visas or
entry to Australia.[26]
Telecommunications interception
Warrants to investigate people
smuggling
2.22
Under the TIA Act, interception agencies may only be granted a
telecommunications interception warrant in relation to the investigation of a
‘serious offence’.[27]
The Bill would amend the definition of ‘serious offence’ in section 5D of the
TIA Act:
- to include the new people smuggling offences within the definition so
that telecommunication interception can be used to investigate those offences;
and
- to make the tests for obtaining a telecommunications interception
warrant to investigate people smuggling offences under the Migration Act and
the Criminal Code consistent.[28]
2.23
At present, to obtain a telecommunications interception warrant in
relation to people smuggling offences under the Migration Act, the interception
agency must show that the offence:
- involves two or more offenders;
- involves substantial planning and organisation;
-
involves, or ordinarily involves, the use of sophisticated methods and techniques;
and
- is committed, or is ordinarily committed, in conjunction with other
offences of that kind.[29]
2.24
These additional tests do not apply to applications for
telecommunications interception warrants for the investigation of people
smuggling offences under the Criminal Code.[30]
The Bill would remove the requirement for agencies to prove these additional elements
and would thus make it easier for investigating agencies to obtain
telecommunication interception warrants to investigate people smuggling offences
under the Migration Act. However, the additional tests would continue to apply
to applications for telecommunications interception warrants in relation to the
offences under section 236 of the Migration Act. These offences
relate to using or possessing a visa issued to another person.
Warrants to collect foreign
intelligence
2.25
Schedule 3 of the Bill would broaden the definition of ‘foreign
intelligence’ in subsection 5(1) of the TIA Act. Under Part 2-2 of the TIA Act,
the Attorney-General can issue a warrant to allow ASIO to intercept
telecommunications for the purpose of collecting foreign intelligence.[31]
‘Foreign intelligence’ is currently defined to mean ‘intelligence relating to
the capabilities, intentions or activities of a foreign power’.[32]
A ‘foreign power’ is defined as ‘a foreign government, an entity that is
directed or controlled by a foreign government or governments, or a foreign
political organisation’.[33]
2.26
The Explanatory Memorandum states that:
The definition [of ‘foreign intelligence’] came into effect
at a time when State actors posed the most significant security threat to
Australia. This no longer adequately reflects the contemporary position -
activities undertaken by non-State actors, whether individually or as a group,
can also threaten Australia’s national interest.[34]
2.27
Item 1 of Schedule 3 would amend the definition of ‘foreign
intelligence’ to remove the requirement for foreign government or foreign
political organisation involvement before foreign intelligence can be
collected. Instead, the definition of ‘foreign intelligence’ would be
‘intelligence about the capabilities, intentions or activities of people or
organisations outside Australia.’
2.28
The Explanatory Memorandum states that this would enable information
about foreign individuals or groups operating without government support to be
collected under a warrant issued under Part 2-2 of the TIA Act.[35]
However, the drafting of the new definition of ‘foreign intelligence’ appears
to preclude a foreign intelligence warrant being issued in relation to the
activities of a foreign national who is in Australia.[36]
2.29
Finally, Schedule 3 would amend the conditions that the Attorney-General
must be satisfied of before issuing a warrant for the collection of foreign
intelligence.[37]
At present, such a warrant can only be issued where the Attorney-General is
satisfied that the collection of the intelligence on a matter is ‘important in
relation to the defence of the Commonwealth or to the conduct of the
Commonwealth’s international affairs’.[38]
The amendments in Schedule 3 would broaden this test to allow a warrant to be
issued where it is in the interests of Australia’s national security, foreign
relations or national economic well-being.[39]
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