CHAPTER 2
KEY ISSUES
2.1
A number of issues were raised by submitters and witnesses in relation
to the Bill. These issues focused on:
- the reason for the Bill's introduction;
- people smuggling offences and mandatory sentencing;
- the appropriateness of legislative amendment during legal
proceedings;
- the retrospective application of the Bill;
- Australia international obligations; and
- parliamentary scrutiny and consultation issues.
Reason for legislative amendment
2.2
During the inquiry, it was highlighted that the introduction of the Bill
was linked to a pending Victorian Court of Appeal decision in relation to the
case of an Indonesian man accused of aggravated people smuggling.[1]
These legal proceedings are a 'test case' undertaken by Victoria Legal Aid
on behalf of one of its clients.[2]
In its submission, Victoria Legal Aid commented:
In people smuggling cases one of the things that the
prosecution has to prove is that the people brought to Australia had 'no lawful
right to come'. It became clear to our legal staff relatively early that there
was a real question over the interpretation of this phrase. In particular,
there was a question as to whether a person who seeks asylum from persecution
in Australia can truly be said to have 'no lawful right to come' given
Australia's obligations under the Refugees Convention and the extent to which
those obligations have been incorporated into Australian domestic law and
practice. Having identified the question, our professional obligation was to
raise it on behalf of our clients and have it determined.[3]
2.3
The Commonwealth Director of Public Prosecutions (DPP) also provided
details about this 'test case'. It noted 'the Victorian County Court has stated
a case to the Victorian Court of Criminal Appeal, reserving for determination
by the Court of Appeal, questions of law which involve consideration of whether
non-citizens...had a lawful right to come to Australia'.[4]
The Victorian Court of Criminal Appeal 'has adjourned this matter until 30 November 2011
pending the consideration of this legislation by Parliament'.[5]
2.4
The Attorney-General's Department informed the committee that, in its
view, 'under the common law, there is no right for an individual to enter
Australia to seek protection or asylum', and that the High Court of Australia
'has expressed the view that refugees do not have a right of entry under either
customary international law or the [Refugees Convention]'.[6]
The Attorney-General's Department highlighted that the Bill's proposed
amendments reaffirm 'the way the provisions have been consistently interpreted
since their introduction in 1999':
The Bill makes it clear that references to a 'non-citizen' in
Subdivision A of Division 12 in Part 2 of the Migration Act includes a
reference to a non-citizen who is seeking protection or asylum (however that
may be described). However, the people smuggling offences apply where a person
smuggles any person that has no lawful right to come to Australia (that
is, any non-citizen that 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). The class of persons with no lawful right to come
to Australia includes persons who are seeking protection or asylum.[7]
2.5
An officer from the Attorney-General's Department noted:
[S]ince 1999 there has been an offence in the Migration Act
criminalising the smuggling of five or more people to Australia. There have
been over 900 cases since 1999 proceeding on the basis that smuggling five or
more persons to Australia when they do not have a visa is an offence. The
Commonwealth [DPP] has run the cases on that basis and the courts have
approached the offences on that basis. The bill does not change that position;
it simply makes express the understanding that we say always underpinned the
people smuggling offences—that smuggling people to Australia when they do not
have a visa is unlawful, and that is the essence of people smuggling.[8]
2.6
Similarly, the Commonwealth DPP commented:
Section 228B accords with what has been this Office's
understanding of the term 'no lawful right to come to Australia'. In this
regard, we note that in a number of people smuggling prosecutions in different
jurisdictions, defendants have raised arguments that the people smuggling
offences in the Migration Act were inapplicable to the defendant because the
non-citizens had a lawful right of entry, said to arise because they had come to
Australia to seek asylum. Those arguments have been dismissed by trial courts
in Western Australia, the Northern Territory, New South Wales and Queensland.[9]
2.7
In contrast, Victoria Legal Aid considered there is 'clearly an
argument' about how the words 'no lawful right to come to Australia' should be
interpreted. Mr Saul Holt from Victoria Legal Aid argued that the
substantial legal resources utilised by the Commonwealth in contesting the
'test case' in the Victorian Court of Appeal suggested that 'there [is]
something in [the] argument'.[10]
Mr Holt also stated:
From day one, it has been clear to us that the question of
the content of the phrase 'no lawful right to come to Australia' is one that
needed to be determined finally, legally and early, and we were following in
good faith through the ordinary process of taking this to the Court of Appeal
to do that.[11]
2.8
Others considered the characterisation of the Bill as merely a 'clarification'
of the people smuggling offences of the Migration Act was problematic.[12]
In particular, it was noted that, if the case law regarding the interpretation
of the people smuggling offences was clear and consistent, there would be no
need for the proposed amendments. For example, Professor Sarah Joseph
from the Castan Centre for Human Rights Law (Castan Centre) asserted:
I would say there is no such thing as retrospective
clarification because either this law does absolutely nothing—that is, it
clarifies something that does not need to be clarified—or it removes arguments
that would perhaps exonerate the people charged. If it does that latter thing,
it enlarges the offence.[13]
People smuggling offences and mandatory sentencing
2.9
A number of submitters questioned the policy of criminalising people
smuggling where the people being 'smuggled' are usually those seeking to claim
asylum in Australia as refugees. The Castan Centre noted that the vast majority
of people brought to Australia by people smugglers are subsequently found to be
genuine refugees, arguing that 'deterrence of people smugglers clearly has the
knock-on effect of deterring asylum seekers, who presently have a right under
both international and Australian law to seek asylum here'.[14]
Similarly, Professor Ben Saul contended:
The effect of criminalising those who smuggle refugees is to
prevent the refugees themselves them from reaching safety, unless some
effective, alternative or substitute protection is provided for them elsewhere.
It is therefore disingenuous to suggest, as the [EM] does, that criminalising
people smuggling does not prejudice the position of refugees.[15]
2.10
The morality of people smugglers was also frequently questioned during
the inquiry.[16]
For example, Professor Ben Saul argued that '[i]f Anne Frank had paid someone
to help her flee from genocide, it is hardly morally appropriate to criminalise
the smuggler, in circumstances where...the international community had failed
to protect her'.[17]
Similarly, the New South Wales Council for Civil Liberties stated:
[R]efugees, having fled persecution, find themselves in
unsafe camps with polluted water supply, at risk of cholera, dysentery, rape
and murder, they will, properly, seek to move on. Those who assist them should
not be demonised on that account.[18]
2.11
Others noted that the majority of those who are subject to people
smuggling prosecutions are often victims themselves. For example, Victoria
Legal Aid informed the committee that '[a]s of 15 March 2011 of 353 people
arrested and charged for people smuggling offences 347 were crew...[O]nly six
were organisers'.[19]
The Australian Lawyers Alliance argued that many of those prosecuted for people
smuggling offences 'were not aware of what they were implicated in' and '[m]any
have been tricked'.[20]
2.12
Victoria Legal Aid, and other submitters, questioned the deterrence
value of the people smuggling offences, which were characterised as frequently
applying to impoverished, Indonesian fishermen with little education.[21]
As Victoria Legal Aid advised:
Almost all of the men who are currently being prosecuted in
Australia for Aggravated People Smuggling are themselves victims of the trade.
They are put on the same boats and exposed to the same risk as the asylum
seekers. They are either misled into working on the boats, or offered what
seems to them to be a small fortune.[22]
2.13
The appropriateness of the mandatory sentencing penalties of the
aggravated people smuggling offences in the Migration Act was also raised by
submitters and witnesses.[23]
The Migrant and Refugee Rights Project at the University of New South Wales noted
that, under the Migration Act, 'a court must sentence a person convicted
under s233C and other "aggravated" smuggling offences to at least
five years imprisonment with a minimum three year non-parole period'.[24]
Ms Rachel Ball from the Human Rights Law Centre argued:
This [mandatory] sentence contravenes the prohibition on
arbitrary detention and the right to a fair trial, also contained in the
International Covenant on Civil and Political Rights. These principles require
that the punishment fit the crime, but mandatory sentencing prevents the court
from differentiating between serious and minor offending and from considering
the particular circumstances of the individual.[25]
2.14
Mr Saul Holt from Victoria Legal Aid highlighted the impact of mandatory
sentencing on the crews of people smuggling vessels who usually come from 'extremely
poor circumstances in Indonesia'. He emphasised that these men are often the 'breadwinners'
for their families and that their imprisonment for 'three to five years' has
broader impacts in their communities.[26]
2.15
However, an officer from the Attorney-General's Department noted that
the Bill 'does not purport to do anything about mandatory minimums' for people
smuggling offences.[27]
The officer stated:
Regarding the offences, while a crew might receive a
mandatory minimum sentence of five years with a three-year non-parole period,
the maximum sentence that could be applied is far greater under these
provisions, so the court is able to take culpability into consideration when deciding
the sentence to apply to an organiser as opposed to a member of crew.[28]
Appropriateness of legislative amendment during legal proceedings
2.16
Several submitters and witnesses suggested that the passage of the Bill
is inappropriate given that a court is currently considering the relevant issue
to be 'clarified' by the Bill.[29]
For example, Professor Ben Saul drew the committee's attention to 'questions of
the propriety of Parliament legislating on this issue retrospectively, and
while judicial proceedings are pending'.[30]
Similarly, Legal Aid NSW submitted that 'interpreting the law is the role of
the judiciary, and as there is currently a stated case in Victoria on this very
issue...the Parliament could let the Courts perform their constitutional
function and await this case before deciding whether to take the unusual step
of passing retrospective legislation'.[31]
2.17
The Human Rights Law Centre was more explicit, asserting that the 'Bill
arguably usurps judicial power, which is inconsistent with the separation of powers
under the Australian Constitution and the powers vested in the court by Chapter
III'.[32]
Ms Rachel Ball from the Human Rights Law Centre considered that the Bill was
intended to 'circumvent current legal proceedings' and this is 'enormously
problematic in terms of the maintenance of the rule of law in Australia and the
maintenance of the separation of powers'.[33]
Similarly, Ms Bassina Farbenblum from the Migrant and Refugee Rights Project considered
that a 'very dangerous precedent' is being set:
[I]t is especially problematic for parliament to intervene in
a case in which the government is actually a party. The reason we have a
judiciary and separation of powers is so that, generally, governments cannot
just intervene by passing legislation when they think the court might reach a
conclusion that they do not like when they are a party to litigation.[34]
2.18
Victoria Legal Aid noted that there is no precedent for the government
of the day to bring forward legislation while they are also a party to the
relevant legal proceedings:
[H]ad we waited to know what the Court of Appeal had said
about this so we truly knew what the law was, this committee could be
proceeding on these important issues as a matter of certainty. We would not be
having this odd argument about whether this bill does something or does not do
it. If we actually knew, it would not prevent you from still passing the law in
both houses, but we would truly know if this was retrospective legislation.[35]
2.19
In contrast, an officer from the Attorney-General's Department noted
that the Social Security and Other Legislation Amendment (Miscellaneous
Measures) Bill 2011 is a recent example where 'legislation was passed while a
matter was before the High Court'.[36]
2.20
The Castan Centre highlighted judicial comments made in a High Court of
Australia case, Nicholas v The Queen,[37]
regarding the constitutional validity of laws which direct 'the manner in
which judicial power should be exercised'.[38]
The Castan Centre commented that the 'courts are presently engaged in the process
of interpreting the phrase "lawful right to come to Australia", and
the Bill arguably purports to direct the manner in which they should go about
this'.[39]
In the Castan Centre's view, the intention to intervene in the judicial process
is apparent in the provisions of the Bill which provide that the amendments
'apply to proceedings in train (including appeals)'.[40]
Further:
In the relevant cases/appeals, the issue of refugees' and asylum-seekers'
'lawful right to come to Australia' has been raised in defence of accused
people smugglers. Under ss 233A, B or C of the Migration Act, these accused
persons face penalties of up to 10 or 20 years' imprisonment. Since the Bill
would effectively decide the issue raised by the defence in these cases, it
clearly has the potential to affect the defendants' liberty seriously. In the
context of both the presumption against retrospectivity and the doctrine of
separation of powers, these amendments constitute dubious law which may well be
constitutionally invalid.[41]
Retrospective amendment to criminal law
2.21
The Attorney-General's Department acknowledged that the Commonwealth's
general approach has been that 'an offence should only be given retrospective
effect in rare circumstances where there is a very strong justification', and
that '[e]xceptions have normally been made only where there has been a strong
need to address a gap in existing offences, and moral culpability of those
involved means there is no substantive injustice in retrospectivity'.[42]
In the case of the Bill:
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...
The effect of the retrospective application is to clarify an
existing understanding of the laws, and to ensure convictions for people
smuggling offences already made, as well as prosecutions underway, would not be
invalidated should a court find that the absence of a specific reference to
persons seeking protection or asylum means they are not intended to be the
subject of the people smuggling offences...
There are exceptional circumstances that justify
retrospectivity for this Bill. Those circumstances are that it would not be
appropriate to risk a significant number of prosecutions being overturned as a
result of a previously unidentified argument in relation to the words 'no
lawful right to come to Australia'.[43]
2.22
The Department of Immigration and Citizenship also explained that 'the effect
of retrospective application is to clarify an existing understanding of the
laws, and to ensure that convictions for people smuggling offences already made
as well as prosecutions underway are not invalidated'.[44]
It referenced the Commonwealth DPP's 2010-11 Annual Report as stating
that, as at 30 June 2011, there were 304 people smuggling prosecutions
involving organisers, captain and crew before the courts.[45]
2.23
The EM also suggests the amendments in the Bill are intended '[t]o avoid
doubt and to ensure the original intent of Parliament is affirmed'.[46]
2.24
A number of submitters and witnesses viewed the retrospective
application of the Bill as problematic and urged the committee to recommend the
Bill be withdrawn, or that the Bill be amended so that it does not apply
retrospectively.[47]
For example, the Human Rights Law Centre argued:
In accordance with principles of statutory interpretation, an
Act is to be interpreted according to the words of a section interpreted in the
context of the Act as a whole. In other words, the Commonwealth is bound by the
laws Parliament enacted; not what it would have liked Parliament to enact. If Parliament
wishes to avoid doubt and either "clarify" or amend the original
intent of the Parliament, it should do so prospectively.[48]
2.25
Several submissions observed that the Australian Government's Guide
to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers outlines
that '[a]n offence should be given retrospective effect only in rare
circumstances and with strong justification'.[49]
The Human Rights Law Centre argued that the EM 'does not contain sufficient
justification for the retrospective application of the Bill'.[50]
Similarly, Victoria Legal Aid argued that 'there has to be something extremely
rare and serious and a moral culpability of proportion that it would not render
the use of retrospective legislation unjust...It is not enough to say that you
are merely clarifying the intent'.[51]
2.26
However, an officer from the Attorney-General's Department commented:
In a situation where parliament has said that these offences
should be penalised by a 20-year maximum sentence and a five-year mandatory
minimum sentence, we say that is a serious situation and that people who are
convicted of those offences are morally culpable. So we say the retrospectivity
is justified...[P]eople smuggling is viewed as definitely a very serious
activity. It puts lives at risk, bringing people to Australia, and, yes, it is
a morally culpable activity for people to be engaged in.[52]
2.27
The committee notes that Australia does not have an explicit
constitutional prohibition against the enactment of retrospective legislation.
However, several submissions highlighted that a number of jurisdictions and
international agreements prohibit retrospective legislation with criminal
sanctions. These include the United States of America and Article 15 of
the International Covenant of Civil and Political Rights (ICCPR).[53]
2.28
Article 15(1) of the ICCPR states:
No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a criminal offence,
under national or international law, at the time when it was committed...
2.29
Victoria Legal Aid argued that concern about retrospective criminal laws
'crosses cultural and political boundaries' and, while it is permitted under
Australia's law, 'it nonetheless represents a breach of Australia's obligations
under the ICCPR'.[54]
The Human Rights Law Centre also noted that Australia is a party to the ICCPR,
and that Article 15 is 'non-derogable right which means that States are not
permitted to suspend this right'.[55]
Ms Rachel Ball from the Human Rights Law Centre commented:
The prohibition on retrospective criminal laws is central to
the rule of law and respect for the separation of powers. People must be
capable of knowing what the law is so that they can abide by it. In cases of
uncertainty, it is the courts' role to interpret and apply the law. Of course,
parliament can amend the law if it disagrees with judicial interpretations, but
it must do so prospectively. Exceptions to this rule are permitted only in
exceptional circumstances...The justifications that have been offered for the
retrospective application of this bill set a dangerous precedent for the
Australian system of government.[56]
2.30
Many contributors to the inquiry considered that legislation with
retrospective application, particularly where it involves criminal sanctions,
is contrary to the rule of law. For example, the New South Wales Council for
Civil Liberties objected to the retrospective nature of the Bill:
People are entitled to certainty about what the law requires
of them; but retrospective laws are arbitrary, and deny them that certainty.
Imposing criminal sanctions on people for doing what was legal when they did it
is necessarily unjust.[57]
2.31
Similarly, the Castan Centre commented:
Retrospective laws are prima facie contrary to the doctrine
of the rule of law because they prevent people from ascertaining their rights
and duties at law at a particular time. The Commonwealth's own Legislation
Handbook makes it clear that "[p]rovisions that have a retrospective
operation adversely affecting rights or imposing liabilities are to be included
only in exceptional circumstances".[58]
2.32
The Castan Centre also highlighted the High Court of Australia's decision
in Polyukhovich v The Commonwealth[59]
which considered 'retrospectively criminalised war crimes...under
Australian law'. In that case, the High Court effectively split on the issue of
whether the Commonwealth has the power to enact retrospective criminal laws,
with some judges considering this was a breach of Chapter III of the
Constitution. Professor Sarah Joseph from the Castan Centre described the precedent
as 'unclear'.[60]
In relation to the Bill, she commented:
It does seem that it arguably could be a retrospective
attempt to tell the judges how they are to interpret those words. That could be
a breach of chapter III. If you are asking me about the morality of that, I
would still maintain that, if parliament made a mistake, parliament can prospectively
fix that but to retrospectively fix that is a breach of the rule of law.[61]
2.33
Another view on this case was provided by the Human Rights Law Centre,
which stated that a majority of the High Court found it is within Parliament's
power to enact retrospective criminal laws, 'but the bench differed in the
circumscription of that power'.[62]
It argued that the Polyukhovich case could be distinguished because of
the 'seriousness of the offence, its status under law at the time of its
commission and the moral culpability of [the] purported offenders'.[63]
International obligations
2.34
The EM states that the people smuggling offences in the Migration Act
'are consistent with Australia's 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 (Protocol).[64]
Further, it explains that 'the [Bill's] 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'.[65]
2.35
Similarly, the Attorney-General's Department advised that the people
smuggling offences in the Migration Act contribute to Australia's
implementation of its obligations to criminalise people smuggling under the
Protocol. It explained that the purpose of the Protocol is to 'prevent and
combat the smuggling of migrants, as well as to promote cooperation among
States Parties to that end, while protecting the rights of smuggled migrants'.[66]
Further:
Consistent with Australia's obligations under Article 5 of
the Protocol, individuals who have been smuggled to Australia will not be
subject to criminal charges merely because they were the object of a people
smuggling venture. In respect of persons making claims for refugee status, this
is also consistent with Australia’s obligations under Article 31 of the
[Refugees Convention] which provides that contracting States shall not impose
penalties on refugees on account of their illegal entry or presence, provided
those persons present themselves without delay to the authorities and show good
cause for their illegal entry or presence.[67]
2.36
However, this position was disputed by several submitters and witnesses.[68]
For example, the Castan Centre argued that the Bill may 'also have the effect
of deterring asylum-seeking, which is specifically excluded from the operation
of this Protocol under article 19(1)'.[69]
Article 19(1) of the Protocol states:
Nothing in this Protocol shall affect the other rights,
obligations and responsibilities of States and individuals under international
law, including international humanitarian law and international human rights
law and, in particular, where applicable, the 1951 Convention and the 1967
Protocol relating to the Status of Refugees and the principle of nonrefoulement
as contained therein.
2.37
Professor Ben Saul emphasised that the focus of the Protocol was on
migrants rather than refugees. He argued that '[i]f the Protocol is intended to
exclude refugees, it must be doubted whether there exists any offence under
international treaty law of "smuggling" a refugee or asylum seeker'.[70]
The Immigration Advice and Rights Centre also contended that '[i]t is clear the
[Protocol] should not compromise our obligations under international law and in
particular the Refugee Convention'. It stated that the amendments in the Bill
would 'significantly affect the rights of those who come here to seek asylum in
breach of Australia's obligations under both the [Protocol] and the Refugee
Convention'.[71]
2.38
The Human Rights Law Centre considered that the Bill affects the rights
of individuals seeking protection 'albeit indirectly, by imposing harsh
mandatory penalties for people smuggling in cases where those entering Australia
have a lawful right to do so under the Refugee Convention'.[72]
It noted that Article 31 of the Refugee Convention provides that contracting
states shall not imposes penalties, on account of their illegal entry or
presence, on refugees coming directly from a territory where their life or
freedom is threatened, as long as they present themselves without delay to the
authorities and show good cause for their illegal entry or presence. In the Human
Rights Law Centre's view, the Bill 'clearly seeks to undermine Australia's good
faith obligation under the Refugee Convention to allow asylum seekers to seek
protection in Australia'.[73]
2.39
Ms Bassina Farbenblum from the Migrant and Refugee Rights Project concurred:
Australia also has an obligation to implement its treaty
obligations in good faith. That comes from the Vienna Convention on the Law of
Treaties. By directly frustrating the ability of asylum seekers and refugees to
engage Australia's protection obligations Australia is not implementing those
obligations in good faith.[74]
Parliamentary scrutiny and consultation issues
2.40
A number of submitters highlighted their concerns with the pace of the
passage of the Bill through the Parliament, the lack of opportunities for
consultation and the timeframe allowed for the committee's inquiry.[75]
As the Law Council of Australia observed:
[C]oncerns about the lack of consultation on the Bill are
magnified by the attempt to expedite the Bill through the Parliamentary
process...
In relation to this Bill, the Law Council notes that there
was no consultation with stakeholders or the public prior to its introduction.
The Law Council also notes the extremely short time frames for submissions to
and reporting by the committee.
The Law Council considers that the work of Parliamentary
committees is critical to the development of good legislation and the value of
this work is being eroded by short timeframes for consultation.[76]
2.41
Similarly, the Queensland Law Society commented:
Section 17 of the Legislative Instruments Act 2003
(Cth) is entitled 'Rule-makers should consult before making legislative
instruments'. In our view, this section indicates that it is considered best
practice for the government to consult with organisation or bodies that are
likely to be affected by the legislation. The [Queensland Law] Society
considers that, as it appears that outside stakeholders were not invited to
comment on this Bill prior to this consultation by the Senate Committee, the
consultation undertaken with only political parties does not represent
extensive consultation.[77]
Committee view
2.42
While the committee acknowledges the concerns of submitters and
witnesses raised during the course of the inquiry, the committee considers that
the increasing seriousness of people smuggling to Australia justifies the need
for the Bill, its retrospective application and its application to current
legal proceedings. The committee considers that it has always been the
intention of the Parliament that the words 'no lawful right to come to
Australia' mean that the people smuggling offences in the Migration Act also
apply to those smuggling individuals who intend to seek asylum in Australia. As
recently as last year, this committee, in its report regarding the Anti-People
Smuggling and Other Measures Bill 2010, reflected Parliament's clear intention that
the people smuggling offences in the Migration Act apply even if those being
smuggled are seeking asylum in Australia:
Some evidence to the committee suggested that since it is not
illegal for refugees to seek asylum in Australia it ought not to be illegal to
assist a refugee to do so. The committee rejects this view.[78]
2.43
The committee is of the strong view that an oversight made in relation
to the wording of the legislation, leading to a potentially adverse legal
decision, should not weigh against the broadly supported policy of deterring people
smuggling to Australia. As the Minister's Second Reading Speech notes,
'[s]uccessive Australian governments have condemned people smuggling ventures
whether organised by individuals or by transnational criminal networks'.[79]
The amendments made by the Bill will ensure that a large number of people
smuggling convictions and current prosecutions are not called into question.
2.44
In relation to the Bill's retrospective application, the committee notes
that the Attorney-General's Department's own guidelines provide that EMs must
contain sufficient explanation and justification for any retrospective effect:
Where a Bill has retrospective effect, the Scrutiny of Bills
Committee requires the Explanatory Memorandum to contain sufficient
justification. This must include an assessment of whether the retrospective
provisions will adversely affect any person other than the Commonwealth.
Justification in the Explanatory Memorandum is required even if retrospectivity
is imposed only as a result of making a technical amendment or correcting a drafting
error.[80]
2.45
While the committee does not wish to pre-empt the Senate Scrutiny of
Bills Committee's consideration of the Bill, in the view of the committee this
requirement is not currently satisfied in the current EM. The EM to the Bill
should be revised and reissued to include sufficient justification for the
retrospective application of the Bill's amendments, and its application to
current legal proceedings. The revised EM should note the number of current
prosecutions and previous convictions which may be affected, and the Bill's
potential impact on the administration of justice.
2.46
While mandatory sentencing for aggravated people smuggling offences is
not an element of the Migration Act that the Bill seeks to amend, a significant
part of the evidence received during the inquiry focused on this issue. The
committee is concerned by some of this evidence, particularly from Victoria
Legal Aid, regarding the impacts of the application of mandatory sentencing on individuals
hired as boat crew for people smuggling vessels and subsequently convicted of
aggravated people smuggling offences. Previously, in considering mandatory
minimum penalties for people smuggling offences, the committee has stated:
It is clear that boat crew members are rarely the main
organisers of people smuggling syndicates. However, the committee considers
that it is critical to deter the practice of people smuggling especially where
people are transported in ways that place their lives in jeopardy.[81]
2.47
In the view of the committee, given that the people smuggling offences in
the Migration Act have now been in place for over ten years, it is now timely
for the Australian Government, through the Attorney-General's Department, to
review these offences to ensure that they continue to effectively deter people
smuggling.
2.48
In conclusion, the committee considers that the Bill falls into the very
limited circumstances where it is appropriate for the Parliament to consider passing
legislation which would affect ongoing legal proceedings because the Bill implements
the clear intention of the Parliament in relation to serious people smuggling
offences. However, the committee shares the concerns raised by several
submitters and witnesses that the Bill could be perceived as a precedent for
future proposed legislation directed at ongoing legal proceedings which are
relevant to the Australian Government.
2.49
Currently, there does not appear to be a sufficiently detailed policy to
guide decisions regarding when it is appropriate for the government of the day
to introduce retrospective legislation or legislation which may influence the
outcome of ongoing legal proceedings. Accordingly, the committee believes that the
guidelines in the Department of Prime Minister and Cabinet's Legislation
Handbook and the Attorney-General's Department's Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers should
be examined by the Australian Government to ensure that the articulation of
policy is as clear as possible in relation to the introduction of retrospective
legislation and legislation relevant to ongoing legal proceedings, with an
emphasis on ensuring that the rule of law and the separation of powers are
respected.
Recommendation 1
2.50 The committee recommends that the Explanatory Memorandum to the Bill be revised
and reissued to explicitly articulate the exceptional circumstances necessary
for the introduction of Bill, its retrospective application and its application
to current legal proceedings.
Recommendation 2
2.51 The committee recommends that the Australian Government, through the
Attorney-General's Department, review the operation of the people smuggling
offences in the Migration Act 1958 to ensure these offences continue to effectively
deter people smuggling.
Recommendation 3
2.52 The committee recommends that the Australian Government examine the Department
of Prime Minister and Cabinet's Legislation Handbook and the
Attorney-General's Department's Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Powers to ensure that the articulation
of policy is clear in relation to the introduction of retrospective legislation
and legislation relevant to ongoing legal proceedings, with an emphasis on
ensuring that the principles of the rule of law and the separation of powers
within Australia's system of government are respected.
Recommendation 4
2.53 Subject to recommendation 1, the committee recommends that the Senate
pass the Bill.
Senator Trish Crossin
Chair
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