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Wednesday, 24 February 2010
Page: 1645


Mr McCLELLAND (Attorney-General) (9:08 AM) —I move:

That this bill be now read a second time.

General Introduction

Conflicts and turmoil in Afghanistan, the Middle East and Sri Lanka are driving a global surge in asylum seekers, with large numbers of displaced persons seeking resettlement in foreign countries.

Figures published by the United Nations High Commissioner for Refugees in its most recent Global Trends Report reveal that, at the end of 2008, there were some 42 million forcibly displaced people worldwide. This includes 15.2 million mandated refugees, 827,000 asylum-seekers (that is, pending cases) and 26 million internally displaced persons.

The report indicates that people seeking asylum in Australia reflects a worldwide trend driven by insecurity, persecution and conflict.

However, when looking for settlement in stable, democratic nations such as our own, asylum seekers often fall prey to people smugglers.

People smuggling is exploitative and dangerous. People smugglers are motivated by greed and work in sophisticated cross-border crime networks. They have little regard for the safety and security of those being smuggled, endangering their lives on unseaworthy and overcrowded boats.

In two tragic events last year, people smuggling ventures ended in the loss of life and serious injuries. It is nearly nine years since the tragic sinking on 19 October 2001 of SIEV X resulting in the deaths of 146 children, 142 women and 65 men.

People smuggling is a pernicious trade and the government has a comprehensive, hardline approach to combating the scourge of people smuggling.

The government is devoting unprecedented resources to protecting Australia’s borders and developing intelligence on people-smuggling syndicates. We are working cooperatively with Australia’s regional partners to disrupt people smuggling where those ventures originate overseas. And we are subjecting people smugglers to the full force of Australian law.

This bill will strengthen the Commonwealth’s anti-people smuggling legislative framework, supporting the government’s plan to combat people smuggling.

First, the bill will ensure that people smuggling is comprehensively criminalised in Australian law with tough penalties for the most serious forms of this crime.

In particular, the bill will amend the Criminal Code Act 1995 and the Migration Act 1958 to introduce a new offence of providing material support to people smuggling. The bill will also introduce a new aggravated offence in the Migration Act for people smuggling involving exploitation for danger of death or serious harm.

Second, the bill will amend the Telecommunications (Interception and Access) Act 1979, the Surveillance Devices Act 2004 and the Australian Security Intelligence Organisation Act 1979 to ensure appropriate tools are available to investigate people smuggling activities and enable law enforcement and national security agencies to play a greater role in support of whole of government efforts to address people smuggling and other serious threats to Australia’s territorial and border integrity.

New People Smuggling Offences

This bill will introduce new people smuggling offences.

New offence—Supporting the offence of people smuggling

Organised criminal syndicates depend on enablers and facilitators who play a vital role in supporting the criminal economy. Targeting those who organise, finance and provide other material support to people smuggling operations is an important element of a strong anti-people smuggling framework.

The bill will introduce a new offence of providing material support or resources for people smuggling activities. Such support or resources could include, but would not be limited to, property that is tangible or intangible, currency, monetary instruments or financial services, false documentation provided by corrupt officials, equipment, facilities or transportation.

The offence applies if a person is reckless as to whether the money or resources they provide will be used in, or to assist, a people-smuggling venture.

It will not apply to a person who pays smugglers to facilitate their own passage to Australia or who pays for a family member on that same venture that they are travelling on.

The government is determined to reinforce the message that people should use authorised migration processes in seeking asylum and migrating to Australia, and in supporting others to come here. People in Australia should not support the life-threatening business of people smuggling by providing finance or other assistance.

The maximum penalty for this offence is imprisonment for 10 years or 1,000 penalty units or both. This penalty reflects the gravity of supporting a person or organisation to engage in the serious, dangerous offence of people smuggling.

New Migration Act Offence - People-smuggling involving exploitation or danger of death or serious harm

The bill will also introduce a new aggravated offence in the Migration Act for people smuggling involving exploitation or danger of death or serious harm. The offence will apply to people-smuggling ventures to Australia. The Criminal Code already contains such an offence, which applies to people-smuggling ventures to foreign countries.

The offence will apply where a person, in committing an offence of people smuggling, endangers the life of the victim or risks serious harm to them. The offence will also apply where a person commits the offence of people smuggling either with the intention that the victim will be exploited after they enter Australia or if the victim is subjected to cruel, inhuman or degrading treatment.

The maximum penalty for this aggravated offence is imprisonment for 20 years or 2,000 penalty units or both.

Mandatory minimum penalties

Currently, the Migration Act contains mandatory minimum penalties for aggravated offences involving five or more persons. A minimum sentence of eight years imprisonment with a non-parole period of five years is prescribed for people smugglers who are repeat offenders. A minimum sentence of five years imprisonment with a non-parole period of three years is prescribed in any other case for these offences.

The use of mandatory minimum penalties reflects the seriousness of the activity being prosecuted. It allows the court to determine an appropriate penalty within the minimum and maximum set by parliament.

This bill extends the application of the higher mandatory minimum penalty to the new aggravated people-smuggling offence involving exploitation or danger of death or serious harm. Extending the higher minimum penalty for people-smuggling offences involving exploitation or danger of death or serious harm will reflect the very serious nature of this offence and the harm and danger caused to the victim.

The bill will also extend the application of the higher mandatory minimum penalty to persons who are convicted of multiple aggravated people-smuggling offences in the same hearing. Currently, the higher mandatory minimum penalty for repeat offenders only applies where a person has a previous people-smuggling conviction. The new provisions will ensure the mandatory minimum penalty can be applied where the people smuggler has organised numerous ventures over a period of time but is coming before the court for the first time in respect of those multiple charges.

Harmonisation of Laws

The legislative framework for criminalising people smuggling is contained in the Migration Act and the Criminal Code. Together, the legislation covers ventures entering Australia, through the Migration Act, and ventures entering foreign countries, through the Criminal Code, which also include those events that transit Australia. The bill will harmonise offences in both of those acts.

For example, the bill will provide greater alignment between the Criminal Code and the Migration Act offences by addressing an existing discrepancy which requires the prosecution to prove that a people smuggler obtained or intended to obtain a benefit when prosecuting a people-smuggling offence under the code. That is an element that is not required by the Migration Act.

As noted, the bill will also introduce the aggravated offence of people smuggling involving exploitation or danger of death or serious harm into the Migration Act. This offence will align with the existing offence in the Criminal Code relating to exploitation or danger of death or serious harm.

The amendments introduced by this bill will also restructure and retitle the Migration Act provisions relating to people smuggling to ensure they are readily identifiable.

These amendments will also achieve greater clarity and consistency, improving the readability and application of the legislation.

Greater harmonisation across Commonwealth legislation will ensure the greatest and strongest possible framework for prosecutorial and investigative action on people-smuggling activities.

Better tools to investigate people-smuggling

Consistent with the government’s national security strategy, the bill will amend the Interception Act, the Surveillance Devices Act and the ASIO Act to ensure that Australia’s law enforcement and intelligence agencies have the appropriate tools to combat people-smuggling.

The protection of Australia’s territorial and border integrity from serious threats such as people smuggling is critical to Australia’s national security. It is therefore appropriate that Australia’s national security agencies should be given greater flexibility to respond to people smuggling and other serious threats to our territorial and border integrity.

ASIO powers to investigate serious border security threats

The bill will amend the ASIO Act to enable the Australian Security Intelligence Organisation to use its capabilities to respond to serious threats to Australia’s territorial and border integrity, including people smuggling. This will support the government’s intelligence-led approach to combating people smuggling, and is consistent with the ‘all hazards’ approach to national security.

ASIO is currently limited to using its intelligence capability in relation to prescribed heads of security, which do not include border security threats. The amendments contained in the bill will enable ASIO to specifically use its capabilities to assist the whole-of-government effort in combating people smuggling and other serious threats to Australia’s territorial and border integrity.

Interception and surveillance powers for people-smuggling offences

The bill will also make consequential amendments to the Interception Act and the Surveillance Devices Act to ensure that investigative tools under both acts are available in relation to the new and amended people-smuggling offences. These tools are already available in relation to a range of serious people-smuggling offences in the Migration Act and the Criminal Code. Existing accountability and reporting mechanisms in those acts will continue to apply to these new powers.

Amendment to the definition of ‘foreign intelligence’

The bill amends the definition of ‘foreign intelligence’ in the Interception Act to align it with the concept of foreign intelligence that is currently contained in the Intelligence Services Act 2001 (ISA).

Currently the definition of ‘foreign intelligence’ in the Interception Act limits the collection of foreign intelligence to information relating to foreign governments and foreign political organisations where it is important to the defence of the Commonwealth or to the conduct of the Commonwealth’s international affairs.

This position no longer adequately reflects the contemporary threats to Australia’s national security interests. The amendments recognise that in an increasingly interconnected global community, activities such as people smuggling are usually undertaken by non-state actors, and will enable information about foreign individuals or groups operating without government support to be collected.

The bill also recognises the broader nature of the contemporary threat environment by allowing the collection of foreign intelligence about non-state actors where it is in the interests of Australia’s national security, foreign relations or national economic wellbeing.

These amendments will ensure that there is consistency in the scope of functions undertaken by national security agencies. In practice, this will enhance the ability of national security agencies to collect intelligence about people-smuggling networks and other non-state actors threatening national security.

Conclusion

In conclusion, this bill bolsters the government’s hardline and comprehensive approach to combating people smuggling, by enhancing the Commonwealth’s anti-people-smuggling legislative framework.

The bill ensures that people-smuggling activities are consistently and comprehensively criminalised, with a new offence of providing material support for people smuggling.

The bill equips our law enforcement and national security agencies with effective investigative capabilities to detect and disrupt people smugglers.

It demonstrates the government’s commitment to addressing the serious nature of people-smuggling activities and to targeting those criminal groups who seek to organise, participate in and benefit from people-smuggling activities.

I commend this bill to the House.

Debate (on motion by Mr Andrews) adjourned.