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Tuesday, 1 November 2011
Page: 12349

Mr BRENDAN O'CONNOR (GortonMinister for Privacy and Freedom of Information, Minister for Home Affairs and Minister for Justice) (18:17): I move:

That this bill be now read a second time.

General Introduction

People smuggling trades on falsehoods and on the exploitation of people who seek protection or asylum in this country.

Successive Australian governments have condemned people-smuggling ventures whether organised by individuals or by transnational criminal networks.

People smugglers have no humanitarian motives. Their only motives are profit, and planning and launching ventures without regard for the safety of the children, women and men whose lives they put at risk.

No-one in this parliament will forget the tragic scenes of the vessel known as SIEV221 crashing against the rocky cliffs of Christmas Island on 15 December 2010, resulting in the deaths of at least eight children, 22 adults and many others never recovered from the sea. Nor do we ever forget the sinking of SIEVX some 10 years ago, which claimed the lives of 353 asylum seekers, including 146 children, 142 women and 65 men. These and many other tragedies resulting from people-smuggling ventures should have never occurred.

The effective prosecution of people involved in organising and facilitating these inherently dangerous voyages sends a clear message that the Australian parliament does not tolerate people smuggling.

While we work with our regional partners, the UNHCR and other organisations to bring refugees to Australia through appropriate channels, we must ensure people smuggling operations that bring people to Australia continue to be effectively criminalised.

The purpose of this bill is to give clarity to the laws that have criminalised people smuggling and aggravated people-smuggling offences for more than a decade. This bill does not affect the rights of people seeking protection or asylum in Australia.

People smuggling offences contribute to Australia's implementation of its obligations to criminalise people smuggling under the Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the United Nations Convention on Transnational Organised Crime.

Clarification of the phrase 'no lawful right to come to Australia '

The purpose of this bill is to 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. For example a New Zealand citizen with a valid passport is exempt from requiring a visa to come here.

This is the way the provisions have been consistently interpreted since their introduction in 1999. Amendments to the Migration Act in 1999 made it an offence to organise or facilitate a group of five or more persons coming to Australia if those persons did not have a lawful right to come to Australia.

No impact on the rights of asylum seekers

The amendments expressly clarify the operation of people-smuggling offences in the Migration Act.

The offences deal with the serious crimes of people smuggling and aggravated people smuggling, and do not affect the treatment of individuals seeking protection or asylum in Australia. As such, the 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. This is confirmed by advice provided to the government by the Attorney-General's Department.

Retrospective application

This bill does not alter any of the elements of the existing people-smuggling offences in the Migration Act. The amendments would apply retrospectively from December 1999 when the words 'lawful right to come to Australia' were first inserted into the people smuggling offences in the Migration Act. Retrospective application is necessary 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 are not invalidated.

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'.


This measure is critical to ensure Australia's laws criminalising people smuggling are clear and effective and reflect the parliament's intention when the laws were put in place. I commend this bill to the House.

Leave granted for second reading debate to continue immediately.