CHAPTER 1

INTRODUCTION

1.1        The Deterring People Smuggling Bill 2011 (Bill) was introduced into the House of Representatives by the Minister for Home Affairs and Minister for Justice, the Hon Brendan O'Connor MP (Minister), on 1 November 2011, and passed on the same day. The Bill was introduced into the Senate on 2 November 2011, and was subsequently referred to the Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 21 November 2011.[1]

Background

1.2        The Migration Act 1958 (Migration Act) currently includes several offences relating to people smuggling. Existing section 233A establishes the primary people smuggling offence. Under this section, it is an offence for a person to organise or facilitate the bringing or coming to Australia, or 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. Existing 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. The words 'no lawful right to come to Australia' are utilised in both offences, but are currently undefined in the Migration Act.[2]

Purpose of the Bill

1.3        In his Second Reading Speech, the Minister outlined that the purpose of the Bill is 'to give clarity to the laws that have criminalised people smuggling and aggravated people smuggling offences for more than a decade'.[3] In particular, the Bill will 'make it clear that the phrase "no lawful right to come to Australia" refers to requirements under Australia's domestic law that people must have a visa that is in effect to lawfully come to Australia, or fall within one of the limited exceptions to that rule outlined by the Migration Act'.[4] This change would apply retrospectively to when these words were inserted into the people smuggling offences in the Migration Act in December 1999.[5]

Key provisions of the Bill

1.4        The key provisions of the Bill amend the Migration Act.

Commencement

1.5        Subclause 2(1) of the Bill includes a table outlining when each part of the Bill will commence. In particular, Schedule 1 of the Bill commences 'Immediately after the commencement of item 51 of Schedule 1 to the Border Protection Legislation Amendment Act 1999' (Border Protection Amendment Act). Column 3 of the table (labelled 'Dates/Details') lists this as 16 December 1999.[6]

1.6        The Explanatory Memorandum (EM) notes that the words 'lawful right to come to Australia' were originally inserted into the Migration Act in December 1999 by the Border Protection Amendment Act.[7]

Clarification

1.7        Item 1 of Schedule 1 inserts proposed new section 228B after existing section 228A in the Migration Act. The new section is titled 'Circumstances in which a non-citizen has no lawful right to come to Australia'.

1.8        The EM outlines that:

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...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.[8]

1.9        Proposed new subsection 228B(1) provides that 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 in some circumstances.[9]

1.10      Proposed new subsection 228B(2) is an avoidance of doubt provision which clarifies that references to 'non-citizens' in proposed new subsection 228B(1) include those individuals seeking protection or asylum (however described) and whether or not Australia has, or may have, protection obligations in respect of the non-citizen under:

• the Convention Relating to the Status of Refugees 1951(Refugee Convention), as amended by the Protocol Relating to the Status of Refugees 1967; or
• for any other reason.

Application

1.11      Item 2(1) of Schedule 1 provides that proposed new section 228B applies in relation to an offence committed, or alleged to have been committed, 'on or after commencement of this Schedule'. Item 2(2) provides that proposed new section 228B applies to proceedings (whether original or appellate) commenced on or after the day the Bill receives Royal Assent, and before the day on which the Bill receives Royal Assent.

Conduct of the inquiry

1.12      The committee advertised the inquiry in The Australian newspaper on 9 November 2011. Details of the inquiry, the Bill and other associated documents were placed on the committee's website. The committee also wrote to a number of organisations and individuals, inviting submissions by 9 November 2011.

1.13      The committee received 23 submissions, which are listed at Appendix 1. All public submissions are available on the committee's website at https://www.aph.gov.au/Senate/committee/legcon_ctte/index.htm.

1.14      The committee held a public hearing in Canberra on 11 November 2011. A list of witnesses who appeared at the hearing is at Appendix 2, and copies of the Hansard transcript are available at https://www.aph.gov.au/hansard.

Acknowledgement

1.15      The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Structure of the report

1.16      Chapter 1 introduces the Bill and provides a brief outline of the key provisions the Bill. Chapter 2 discusses the key issues raised in evidence and includes the committee's view and recommendations.

Note on references

1.17      References in this report are to individual submissions as received by the committee, not to a bound volume. References to the committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official Hansard transcript.

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