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LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE - 16/04/2010 - Anti-People Smuggling and Other Measures Bill 2010

Estimates & Committees
Sarah Hanson-Young 16 Apr 2010

Senator Hanson-Young -Part of your submission talks about the concerns you have with the amendments in the current bill in relation to material support. Would you agree with the previous witnesses that the way this is drafted is too vague and it is quite incomprehensible for somebody to actually understand exactly what 'material support' means?

Ms Donovan -I think what is encompassed by the offence provision is certainly unknown. It must be something more than aiding and abetting or conspiring or we would not need this position. It must be something more than organising or facilitating because again we would not need this provision, because the primary offence provision already captures that. That is really our primary problem. It is not explained what sort of conduct that is not already captured is captured by this. We have seen in practice that what constitutes 'material support' means different things to different people and is yet to be definitively decided by the courts.

I am not entirely sure I agree with the previous witnesses that recklessness is not already a part of the offence. As I understand the offence provision, you must intentionally provide the support or the resources to a person or organisation and that support must in fact aid the receiver or another person-

Senator TROOD -Which offence are you talking about: the primary offence or-

Ms Donovan -The new offence of providing material support to people smuggling. Sorry, was I asked about the primary offence?

Senator Hanson-Young -No, you were asked about material support.

Ms Donovan -My reading of the section is that you must intentionally provide the support and it must in fact aid the receiver to engage in people smuggling and you must have been reckless to that consequence, which means under the Criminal Code that you must have averted to that substantial risk and proceeded regardless.

CHAIR -So that would not include a Qantas pilot, for example?

Ms Donovan -I would not have thought so, but I am reluctant to disagree with the previous witnesses, who are much more experienced than I am. You might notice that my nametag says 'Ms' rather than 'Doctor' or 'Professor'. I have no doubt the department will have a view on that.

Senator TROOD -That does not necessarily lend to wisdom.

Senator Hanson-Young -Can I just confirm that your concern is more about the fact that we already have provisions that would cover it?

Ms Donovan -Well, we already have provisions which would cover the types of things which the explanatory memorandum says we need to cover-facilitating or organising people smuggling. We already have provisions which spread the net another step broader to capture those who aid and abet or who conspire. This must do something different, we assume; otherwise, it would not be here. But what precisely it does I am not sure, and that in itself presents a problem.

Our primary point is that that is not addressed in the explanatory memorandum. That has not really been addressed in the debate which has surrounded the bill. There is a sort of throwaway line that serious and organised crime are involved in people smuggling, that they are complex organisations and that a lot more people are involved than just the direct perpetrators, so we need this offence and this offence will fix that. I think that that sort of statement deserves more scrutiny, particularly when we consider the origins of this offence. This originally came into the Criminal Code when the antiterror offences were introduced. We have since seen it replicated in the serious and organised crime bill. We see it here again. It seems to be the offence of the moment. We already have chapter 2 of the Criminal Code, which has ancillary offences which expand criminal liability in ways which are consistent with accepted notions of criminal law. Why do we need this and the uncertainty it creates? We saw in the Haneef case that it does create uncertainty. I think that is agreed.

Senator Hanson-Young -Are there any other particular parts of the bill that you think carry that lack of clarity in relation to not just material support but this idea of changing the definition, for example, of what supporting people smuggling means and changing the idea of what the intent is for somebody involved, whether it is for profit based on the fact that you are going to smuggle somebody as opposed to the profit for transportation?

Ms Donovan -Certainly removing that requirement broadens the existing offences in the Criminal Code. Precisely who would now be captured who was not previously captured is difficult to determine. Obviously community members, friends and humanitarian organisations are potentially captured by the Criminal Code provisions in a way which they were not previously. No-one can foresee all the various factual scenarios or all the ways that this might play itself out, and I guess that is where the uncertainty is introduced.

Senator Hanson-Young -Does the Law Council have a general view, then, about legislation that is drafted and enacted by parliament that is so broad that the question is how anybody is going to know until it is actually tested?

Ms Donovan -The Law Council's position, consistent with the previous witnesses, is that people should be able to know in advance precisely the type of behaviour which will attract criminal sanction. To the extent that an offence provision is not clear in that regard, it creates fear and uncertainty in the community and puts pressure on police and prosecutors, who themselves are often left scratching their heads about whether they should act and how.

Senator Hanson-Young -Do you think it creates problems when it comes to the point of a particular case being challenged or prosecuted?

Ms Donovan -Yes, it can create problems in a particular prosecution. One of the things, for example, which Clarke concluded in the Clarke inquiry, which examined 102.7 of the Criminal Code, was that it would be almost impossible to instruct a jury on this offence provision because there were so many different interpretations of it. Whether or not it could be subject to challenge I think is debatable. Because of the human rights framework in Australia, there is not a clear pathway to challenging some of this legislation on the basis that it is vague or uncertain, but there are always avenues.

Senator Hanson-Young -Thank you.

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