ADDITIONAL COMMENTS BY
COALITION SENATORS
1.1
Coalition senators are committed to maintaining the integrity of the
Migration Act 1958, and in particular of the provisions designed to
deter people smuggling. Given the surge in the number of asylum seekers being
delivered to Australian waters since the present government relaxed border
protection policies in 2008, there is a need for strong policy signals to be
sent to people smugglers by the Australian Parliament.
1.2
Coalition senators accept that this legislation is urgent – in that it
impacts on matters currently before the courts – and that it requires an
element of retrospectivity – in that it clarifies what, arguably, was not clear
in legislation previously passed by the Parliament.
1.3
The Bill, properly characterised, does not introduce changes in the
architecture of the law designed to discourage people smuggling, a law first
introduced in 1999 and strengthened in 2010 with the passage of the Anti-People
Smuggling and Other Measures Act 2010. Despite its grandiose title, the
Bill merely affirms a regime initiated more than a decade ago.
1.4
In all the circumstances, Coalition senators believe that it is
important to affirm the original intention of Parliament in passing the
previous legislation that the phrase "no lawful right to come to
Australia" refers to requirements under this legislation that people must
have a visa that is in effect to lawfully come to Australia, or fall within one
of the limited exemptions outlined in the Migration Act.
1.5
Witnesses to the inquiry were unable to point to any convincing evidence
that there is any doubt about the Parliament's original intention with respect
to the "lawful right to come to Australia" definition. On the
contrary, a number of arguments were made in the course of debate in the
Parliament by opponents of the 1999 and 2010 bills that their passage would
confirm that it was illegal for people to smuggle asylum seekers to Australia
even if they were subsequently found to be genuine refugees.
1.6
Coalition senators accept that clarifying this intention of the
Parliament can be fairly described as retrospective legislation, since
interpretation of the intention of Parliament is prima facie the
prerogative of the courts. As such the passage of the Bill might be sent to
extinguish the rights of current litigants before the courts.
1.7
There is an important distinction between legislation which repairs a
gap in existing law, and clarifies its meaning, in a manner which does not
directly (although may incidentally) retrospectively alter the rights and
liabilities of citizens, and legislation – notably tax legislation – whose main
purpose is to retrospectively impose a liability or rescind or vary a right.
It is legislation of the latter kind which is almost always invidious. This
legislation falls into the former category, which is from a jurisprudential
point of view more defensible.
1.8
However, Coalition senators were extremely disturbed by the lack of
precision on the part of the relevant departments in evoking a clear case for
retrospectivity. The Australian Government's Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers sets out
circumstances in which retrospective legislation can be considered. However,
officers of the Attorney-General's Department and the Department of Immigration
and Citizenship were unable to link any of the provisions of that guide to the
particular legislation before the Committee.
1.9
The Guide refers to retrospective legislation addressing a
"serious gap in the law", but it is unclear as to whether this refers
to addressing a gap that, arguably, the Parliament has already
"closed".
1.10
The Guide also refers to retrospectivity being justified where the
"moral culpability of those involved means there is no substantive
injustice in retrospectivity". The departments were unable to address the
argument put to the committee that, for many people caught up in the people
smuggling business, the level of "moral culpability" may actually be
very low.
1.11
This lack of an ability to link the rare exercise of retrospective
law-making with any clear guidelines operating within the Australian Government
is disturbing. Although Coalition senators accept that retrospective
legislation is sometimes appropriate – and indeed is appropriate here to
clarify what the Parliament intended and what is commonly understood to
be Parliament's intention – it should as a matter of principle occur pursuant
to well-articulated and well-understood rules of which the community has
notice. This is not the case here.
Recommendation
1.12
Coalition senators support Recommendations 1, 3 and 4 of the
majority report, but do not support Recommendation 2. Coalition senators do
not regard the evidence before this inquiry as justification for a review of
the extent to which the provisions of the Migration Act 1958 effectively
deter people smuggling.
Senator Gary Humphries
Deputy Chair |
Senator Sue Boyce |
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| Senator Michaelia Cash |
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