Dissenting Report by Senator Sarah Hanson-Young
Introduction
1.1
The majority report makes a mockery of the senate committee’s ability to
scrutinise legislation. Despite the issues and concerns raised throughout the
inquiry process and the recommended amendments put forward, the majority report
fails to appropriately address any of them in their response to the inquiry.
1.2
The Anti-People Smuggling and Other Measures Bill 2010 seeks to
strengthen the Government’s anti-people smuggling legislative framework, as
well as ensuring that people smuggling is “comprehensively criminalised in
Australian law.” Yet, despite the Attorney-General stating in his second
reading speech that the United Nations Global Trends Report “indicates that
people seeking asylum in Australia reflects a worldwide trend driven by
insecurity, persecution and conflict”[1],
no where in this Bill are Australia’s obligations to those seeking our
protection under international law recognised.
1.3
Like many in the legal profession, the Greens share serious concerns
that this Bill, in its current form, not only breaches our obligations under
international law, but also our obligations under domestic law. We remain very
concerned that this Bill is a direct attack on the refugee communities in Australia,
and those that support them. Despite assurances from the Attorney-General’s
Department that innocent individuals will not be caught under this poorly
drafted legislation, the definition of “providing material support”, is such
that anyone who is seen to send money over to a friend or relative in a refugee
camp, who may subsequently use that money to pay a people smuggler, could be
charged under this broad definition.
1.4
As outlined by Professor Crock, from the Sydney Centre for International
Law:
“This legislation targets refugee communities in Australia
who are sending remittances to their families overseas. Every time they send
money across to a relative, if there is a chance that that relative is going to
get on a boat at some stage, they are at risk of being put in jail for 10
years. This legislation will only be seen by the very vulnerable emergent
communities in this country as a direct assault on them—a frontal attack.”[2]
1.5
While all sides of politics can agree that the people smuggling trade is
an appalling way to exploit of innocent individuals who are in a desperate
situation, the Greens do not believe that this Bill will act as a deterrent to
people smugglers as the Bill suggests it will do. Rather, we have a situation
where providing humanitarian assistance to asylum seekers could be criminalised
under this Bill, particularly as this Bill fails to reflect our obligations
under the Anti-People Smuggling Protocol, which specifically states that it
does not aim to punish individuals who assist smuggled persons for purely
humanitarian reasons.
Concerns with the Bill
Supporting the offence of people
smuggling
1.6
It is clear from the various submissions provided to the committee, that
this new offence that amends both the Criminal Code Act 1995 and the Migration
Act 1958, is too broad and ineffective, particularly the ambiguous
reference to ‘material support’. In its submission to the Inquiry, the Faculty
of Law at the University of NSW stated that not only is the term “material
support” vague and indeterminate with concerns around fairness and due process
concerns, it also presents problems with our obligations under international
law including:
“Australia’s international obligation to act in “good faith”,
which requires that Australia not seek to avoid triggering its obligations
under the Refugee Convention by preventing those entitled to protection from
reaching Australia;
The Smuggling Protocol, which does not aim to punish
individuals who assist smuggled persons for purely humanitarian reasons;
Article 23 of the International Covenant on Civil and
Political Rights (ICCPR), which requires the protection of family unity by the
State; and
The Convention on the Rights of the Child (if the smuggled
relative is a child), including article 22(1) which requires that States ensure
that refugee children receive appropriate protection. Incarcerating a parent
for providing material support in order to protect her child from persecution
may also violate articles 2(2) (non-discrimination based on status of parent),
3(1) (legislative bodies must take into account the best interests of the
child), and 3(2) (State must ensure child’s protection and care).”[3]
1.7
This new provision is a clear step away from the accepted definitions in
international law concerning supporting people smuggling.
1.8
In particular, Article 6 of the Protocol Against the Smuggling of
People requires States to criminalise specified conduct where committed ‘in
order to obtain, directly or indirectly, a financial or other material benefit’.
1.9
This requirement already exists in the people smuggling offences
outlined under the Criminal Code Act 1975 that requires the accused to either
benefit or intend to obtain a benefit from smuggling an individual into
Australia. Yet, under this Bill the requirement of a profit motive to exist
is omitted, thus broadening the offence beyond what is envisaged in
international law. As identified by the Sydney Centre for International Law
“under the Protocol, the profit motive underlying people
smuggling is essential in identifying what is regarded as harmful or wrongful
about people smuggling: the commercial exploitation of often vulnerable people
such as asylum seekers. In contrast, by dispending with the profit motive, the
proposed offence transforms the offence into a more general prohibition on
helping anyone (including refugees or persons rescued at sea) to find safety,
even for altruistic or humanitarian reasons, in circumstances where ‘queues’
abroad do not exist or do not function.” [4]
1.10
It is clear that if this legislation passed in its current form, the
amendment would criminalise the activities of aid organisations, humanitarian
workers, charity and church workers and other individuals who assist people
across borders in other countries for humanitarian reasons. If this Bill is to
proceed in its current form, this definition must be consistent with our
commitments under the Protocol Against the Smuggling of People.
1.11
Given the level of concern expressed by legal professionals, refugee
advocates, academics and individuals about the new material support provisions,
with many identifying the Bill as one of the “worst pieces of legislation”[5]
they have ever had to address before the committee, it is clear that the
Government is just trying to ram through the Bill for their own political
agenda.
Offence of people smuggling
1.12
The Greens are concerned with the inclusion of the aggravated offences
in this Bill which basically stipulates that it is an offence to facilitate the
entry to Australia of a non-citizen who “had, or has, no lawful right to come
to Australia.”[6]
If the purpose of subsection 233A is to encompass the offence of people
smuggling ventures that involve asylum seekers, then it must be amended to
reflect Australia’s obligations under the refugee Convention.
1.13
The fact that more than 90% of unauthorised boat arrivals in Australia
are found to be genuine refugees[7],
it is clear that if this legislation proceeds, the Government must clarify the
provision to ensure that a refugee is not included as a person who has no legal
right to come to this country.
1.14
The Convention Relating to the Status of Refugees clearly states that
non-citizens have a lawful right to enter a country to seek asylum. Under
Article 31(3) of the Convention “contracting states shall not impose penalties,
on account of illegal entry or presence, on refugees...provided they present
themselves without delay.” Given the current provision infers that asylum
seekers have no lawful right to come to Australia, it is clear that the Bill is
contravening our commitments under international law.
Expansion of ASIO’s jurisdiction
1.15
According to the Explanatory Memorandum the main purpose of expanding
ASIO’s jurisdiction is to formally give them a role in the gathering and
sharing of intelligence about people smuggling. The Greens share the concerns
of many of the submissions presented to this inquiry that there is need for
clarification of what actually constitutes a “serious threat” to Australia’s
territorial and border integrity.
1.16
Given the Australian Federal Police, Department of Immigration and
Citizenship and the Australian Customs and Border Protection Service already
collect, evaluate analyse intelligence relating to people smuggling, there
seems to be no clear indication as to why the resources of ASIO should also be
deployed for this purpose.
1.17
Is the Government suggesting that the existing agencies are failing to
adequately manage their responsibilities?
1.18
Expanding the role of ASIO with no apparent justification is of serious
concern, particularly when the organisation in question is not subjected to
appropriate levels of transparency and public scrutiny. As noted by the Law
Council of Australia
“ASIO’s powers are quite distinct from those of ordinary law
enforcement agencies and are subject to less transparent authorisation and
review processes... It would be alarming, if ASIO’s mandate was widened to
encompass the gathering and dissemination of intelligence on anything related
to this broader concept of national security.”[8]
1.19
The Greens remain concerned that expanding the role of ASIO beyond its
traditional national security mandate, sends the message that asylum seekers
are a threat to Australia’s national security, and subsequently (which may not
be the intention) discriminates against those that arrive by boat versus those
that arrive by plane.
1.20
The Attorney-General, in his second reading speech observed that
“conflicts and turmoil in Afghanistan, the Middle East and
Sri Lanka are driving a global surge in asylum seekers, with large numbers of
displaced persons seeking resettlement in foreign countries.”[9]
1.21
It is clear that there is no link between asylum seekers arriving in
Australia by boat and a threat to Australia’s national security.
1.22
The Government’s position on the reason why people seeks asylum and the
insistence to expand ASIO’s role beyond national security, with a clear
rational explanation is contradictory, and sets a dangerous precedent.
1.23
The Australian Privacy Foundation in their submission highlighted their
concerns at expanding ASIO’s powers and activities, particularly as this would
increase “the range of surveillance activity that can be undertaken by the
organisation free from privacy rules and oversight.”[10]
1.24
The Greens, along with Amnesty International are also concerned that the
Bill, its accompanying EM, and the Attorney-General’s second reading speech
fails to differentiate between those seeking Australia’s protection and the
people smugglers who actually exploit their desperation. In their submission,
Amnesty state that
“the broadening of the security definition solidifies the
misunderstanding within sections of the general community that asylum seekers
are not only committing an illegal act but pose a potential security threat.”[11]
Conclusion
1.25
It is clear from all but the Government’s own submissions, that there has
not been adequate time to consider this Bill. The failure of the Government to
articulate why it is necessary to introduce the new measures proposed by this
Bill highlights that wider public consultation and debate is necessary before
these measures can seriously be considered.
1.26
The Law Council of Australia articulates this concern in their
submission, stating
“it creates the perception that these amendments are about
legislative activity for its own sake. That is, it creates the perception that
parliament is enacting new offences lest it been seen to be impotent or
inactive in the face of the problem of people smuggling.”[12]
1.27
Given the strong level of criticism that this Bill has generated, the
Greens are seriously concerned at the lack of consultation with the legal
profession about the impact that this legislation will have on civil liberties,
as well as the failure of these proposed new measures to adhere to our
commitments under international law.
1.28
The fact the Government has failed to commit to a Charter of Rights,
which would enshrine our commitments under international law and provide an
avenue to allow for human rights challenges in Australian courts, gives reason
for concern, particularly when the legislation in question can unintentionally
capture innocent individuals.
Recommendation
The Greens recommend that this Bill should not proceed:
- without significant amendments to prevent harm to vulnerable
groups and their families, and
- until it has been subjected by the Federal Government’s new
parliamentary Joint Committee on Human Rights and a statement of compatibility
with our international obligations is produced.[13]
Senator
Sarah Hanson-Young
Greens’
Spokesperson for Immigration
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