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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 -I have a few questions but, because we are tight for time, you might have to take some on notice. While this bill has very clear intent in terms of wanting to crack down on and bring to account people who are participating in people-smuggling, and I understand and accept that, Australia has signed the UN anti-people-smuggling protocol. Why has the definition in that protocol not been adopted in this bill since we have been a signatory to that protocol since, I believe, 2004? How come we have not included that in this particular piece of legislation?

Dr Heriot -It is always an interesting drafting exercise to translate an international convention into the idiom of the Criminal Code. We believe that the offences do embody the obligations of the Criminal Code. I am just trying to work out what you might have in mind.

Senator Hanson-Young -There is the definition within the protocol of what people-smuggling is, which is not the definition that has been used within this bill. I guess the other point is in relation to how that definition is expanded within the protocol. Regardless of whether you believe people were creative in their evidence, I think one of the key concerns was the fact that the protocol, as it is set out, clearly states that the aim is not to punish persons for the mere fact that they have been smuggled or have helped smuggle somebody in on humanitarian grounds. That is clearly set out in the international protocol and yet that is not reflected in this bill. I think if there was some reflection of that there would be some understanding from the broader community as to the reasons why you want to expand provisions and the various agencies' powers. Of course, it is not illegal to seek asylum, which is why the protocol says that if it is on humanitarian grounds it needs to be considered differently.

Dr Heriot -Of course there is nothing in this bill that would endeavour to criminalise the seeking of asylum. The bill is concerned with strengthening a legislative regime for penalising people who would engage in the smuggling of people, which the international community has decided, for a whole range of reasons, including the inherent danger of the act, should be criminalised.

Senator Hanson-Young -But the international protocol, to which we are signatories, suggests that the aim is not to penalise those people who have had to be smuggled or who have assisted others to be smuggled on humanitarian grounds. That is the point. Where in this bill have you made the distinction between those people who have organised themselves, or their family or friends or whoever, to move in order to have protection from persecution and not open themselves up to all of the various criminal provisions as laid out in the bill?

Dr Heriot -The reason I am struggling is that I am trying to work offence by offence to do this. With regard to the penalising of people who are seeking asylum, they are specifically excluded from the material support provision because it does not apply to people who pay for their own position on a venture or people who travel with them on the same venture. So that is excluded. In terms of the humanitarian aspects, I talked earlier about how the fault elements would address that. There is, I think, a clear intention by the government to take into account the fact that people-smuggling is frequently a transnational organised crime and to enable agencies to effectively address that. This is consistent with the convention to which we are a party and its supplementary protocols. I also draw your attention to the fact that the convention notes:

... each state party may adopt more strict or severe measures than those provided for by this Convention for preventing and combating transnational organized crime.

That would be the intention behind the legislative amendments that are proposed.

Senator Hanson-Young -By virtue of all of that, I cannot see any reason why, if this committee recommended that there needed to be a more clear or specific reference to our obligations under the protocol, even in the EM, let alone the legislation-which there is not really at all-it would be a problem. If you believe that there is no contradiction then there should not be a problem with that.

The other point is then that this legislation has nothing to do with deterring those who are taking that awful, dangerous trip across the seas from Indonesia to Christmas Island, because those people overwhelmingly are doing so on humanitarian grounds. The government's own statistics show that. So who exactly is this bill relating to if it is not relating to people who are seeking asylum?

Dr Heriot -Okay. To start a little further back, Australia's international obligations apply whether or not a piece of legislation says specifically that Australia's international obligations apply. That was a bit circular. So they are there and there is nothing in the bill that would detract from those. There is no intention in the bill to criminalise the act of seeking asylum. The measures in the bill are designed to better address those who facilitate people-smuggling and those who provide material support to people-smuggling

 My colleague has, helpfully, passed on to me that I also neglected to mention that one of the other amendments that we are seeking to make to the Migration Act is to make it more compliant with the people-smuggling protocol by introducing a provision about the aggravated offence of people-smuggling involving exploitation or danger of death or serious harm, which is in the protocol and in the Criminal Code but, I think, through an accident of history, has not yet found its way into the Migration Act. So that is an area of this bill that specifically promotes or carries forward our greater compliance. Geoff, you were going to say something.

Mr McDonald -The only thing I was going to say is that people-smugglers can have lots of different motivations, and the motivation will often be profit but it could potentially be something else. It could be that they are interested in settling criminals here or something like that. So you can see why there might have been a little bit of concern about keeping the term 'gain' out, having to prove that there was gain.

Senator Hanson-Young -In terms of reflecting the definition that is in the protocol.

Dr Heriot -The other thing that I think is relevant to this is the prosecution policy of the Director of Public Prosecutions, which has, I think, a two-stage test, one of which is that a prime facie case is able to be established and the second is that it is in the public interest for a prosecution to proceed.

Senator Hanson-Young -My final question goes to the overarching question that has been raised within various submissions, which is: why do we actually need this bill as opposed to what we currently have? Is it because we are not able to convict the people we wish to convict? Is it because the work done by the current Customs, Home Affairs and various other agencies does not enable them to fulfil the requirements to convict felons under the current provisions of the Criminal Code? Is it because the Federal Police are not able to carry out their work? Nothing in the explanatory memorandum outlines why we need this amendment bill.

Dr Heriot -Various speeches in the second reading debate, including the minister's speech, and the explanatory memorandum point to the fact that the purpose of the bill is to strengthen the Commonwealth's anti-people-smuggling legislative framework to provide an appropriate range of offences so that Australian authorities are able to target and deter people-smuggling activity. We know that serious and organised crime elements are involved in people-smuggling and we know that the modes of operation and the technologies that they use are evolving very quickly, and it is a normal task to look to the criminal provisions in any area to ensure that they are sufficient and dissuasive and meet the needs of the day. It is a normal process of law reform.

Senator Hanson-Young -So the argument you are putting is that currently our ability to protect our borders, whether it be a security risk or not, is not strong enough; is that what you are suggesting?

Mr McDonald -The government has concluded that these measures are needed to continuously improve what we are doing. Clearly-and I think Dianne has the statistics there-a lot of people have been prosecuted for people smuggling and there are a lot of cases in the courts, so there has been quite a deal of success, but the object of this bill is to build on that success, to have more success, because clearly it is an issue that is presenting challenges. Whether it is terrorism laws, drug laws or whatever it is always the case that we are always looking at cases that we have run, looking at our practical experience with things, and then modifying the law to make sure it is up to date and dealing with these people. These people will structure what they are doing to take into account changes in laws or their experience with laws, sentencing or whatever. Particularly when you are dealing with organised crime it is a continual battle to keep one step ahead of them. It is the same with terrorism and other national security issues as well. The fact that we have this bill forward does not mean there is a failure or anything like that; it simply means we want to make sure we stay on top of the game.

Senator Hanson-Young -I struggle to see how this is not just all for show. If we honestly need all these new powers, this expansion and these new provisions, to be able to catch the people we are not able to catch now without actually giving ASIO any more dollars, I fail to see how it is not just a show for the government.

Mr McDonald -Let me address that. Clearly I am not in a position to go into ASIO's operations or their operational experience; however, they are an agency that is working in this country and just like the other agencies-the Federal Police, Customs and so on-over the years they have developed capabilities. Clearly in this case it is seen that they cannot provide the full sort of assistance that the government would like because of the way the legislation is at the moment.

It has been explained by the deputy director-general that this is a niche activity for ASIO. That is true. This is not the biggest issue on the block for ASIO, but why have legislation that stops ASIO from being able to make a contribution, particularly where it is operationally convenient? You could have a situation where ASIO has some people in the street for another reason and they come across this. What do you do? Pull them out and bring in a whole fresh new team from the Federal Police, Customs or something like that? The idea of this is to make sure that the legal framework does not create operational inefficiencies. Of course, it is all being done keeping in place all of the apparatus we have for ensuring there is accountability for ASIO, the Inspector-General of Intelligence and Security and so on. This is not a huge thing.

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