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Friday, 25 November 2011
Page: 9688


Senator HUMPHRIES (Australian Capital Territory) (14:47): As Senator Macdonald and Senator Brandis have indicated, the coalition supports the Deterring People Smuggling Bill 2011. We support it because we believe it is one of those rare circumstances where retro­spectivity can and should be applied in an act of parliament. We believe there is an urgency to passing this legislation because in the subproceedings in a court in Victoria an attempt is being made to represent the will of parliament through earlier legislation as being different from that which it actually is; therefore, clarifying what the parliament intended when it passed earlier legislation in 2010 is an appropriate clarifying exercise in retrospectivity in this context.

I think it is also true to say that this legislation illustrates a number of things which are wrong about the way that this government works. Firstly, this legislation has an Orwellian title. This is not a Deterring People Smuggling Bill at all. This is not a bill that makes any bold new step towards preventing people from coming to this country as refugees. This legislation simply clarifies the intent of a piece of legislation passed last year. Last year the parliament passed the Anti-People Smuggling and Other Measures Bill 2010, and this current legislation simply says, 'What we meant to say in that legislation we actually did say.' It simply makes clear what had already been determined by the parliament and, therefore, there is nothing about this legislation which changes the landscape at all with respect to actions to deter people smugglers coming to this country. I accept that that is necessary and therefore, notwithstanding its Orwellian title, it is appropriate to pass the bill.

Secondly, the process around the bill illustrates the ineptness which is so characteristic of this government. The reason parliament needs to consider retrospectivity is that, at least on one argument, the parlia­ment appears not to have comprehensively explained in last year's legislation, and potentially in earlier legislation in 1999, that a person who smuggles people to Aust­ralia—a people smuggler—is not exonerated from their actions if the person they attempt to smuggle to Australia turns out to be a genuine refugee. It has arguably always been the intention of parliament, and certainly was as late as the legislation last year, that a people smuggler commits an offence even if the person they are smuggling to Australia turns out to be a genuine refugee. If you think about it, it is quite logical: you cannot let the crime be determined by the ultimate status of the person being smuggled. You cannot say a boatload of people being smuggled by a people smuggler somehow ends up not being an illegal act because, say, one or two people on the boat turned out to be genuine refugees. It simply does not work. The legislation quite appropriately should say that any attempt to bring people without a valid visa to Australia is an offence and should be punishable.

Retrospectivity in that application to affirm what the parliament has already decided is, in my opinion and in the opinion of the opposition, an acceptable use of retrospectivity. It does not change the law as it is understood to be in this nation at the moment. In the course of the Senate Standing Committee on Legal and Constitutional Affairs inquiry this was compared with legislation which some years ago criminalised the behaviour of Nazi operatives during World War II and created retrospective war crimes. It was suggested that, for the reasons that it was contested in the High Court, this ought to be considered an inappropriate use of the Commonwealth's power. But, with respect, that was a misconceived argument because clearly, in the case of the war crimes legislation, the parliament was—admittedly for very good reasons—creating new offences after the offences had been committed. I characterise some things done by certain people during the Second World War as crimes, even though they were possibly not crimes at the time that they were committed. That is generally understood to be an appropriate case where retrospectivity might be used. We can debate that another day. But this is not such a case. This legislation is not about retrospectivity that changes the characterisation of behaviour after the behaviour has occurred. This is about affirming that behaviour which the parliament has intended for at least 12 months and arguably for more than 10 years should be illegal remains illegal, notwithstanding the attempt by parties before a court in Victoria to turn that on its head.

When it came to the officers of the government clearly slotting this legislation under one of those acceptable headings for retrospective legislation, the linkage being made by officers was less than impressive. There is a document that the government publishes called the Guide to framing Com­monwealth offences, infringement notices and enforcement powers which sets out the circumstances where, among other things, retrospective legislation can be considered. Officers were asked to link headings or opportunities within that guide to the present circumstances. They were, with great respect, unable to do that in a very convincing way. They pointed to a provision which says that the guide refers to retrospectivity as being justified where the 'moral culpability of those involved means there is no substantive injustice in retrospectivity'.

I have to say—and I, to some extent, agree with Senator Hanson-Young here—that is not a very good basis on which to argue for retrospectivity, because there is some evidence that some of the people involved in people smuggling are not particularly aware of the nature of the offences that they are committing. They are probably small operatives in a process in which they are not fully aware of the implications of what they are doing and the moral culpability might not be very evident for what they are being punished for. I would argue quite separately that we nonetheless need to criminalise such behaviour, but that is an argument for another day.

The lack of an ability to clearly characterise the case for retrospectivity by officers of the Attorney-General's Depart­ment was, quite frankly, troubling. I hope that the government fixes this problem. The committee has recommended that the government go back and examine both the legislation handbook of the Department of the Prime Minister and Cabinet and the Attorney-General's Department's Guide to framing Commonwealth offences, infringe­ment notices and enforcement powers to ensure that the articulation of policy is clear in relation to the introduction of retrospective legislation and legislation relevant to ongoing legal proceedings, with an emphasis on ensuring that the principles of the rule of law and of the separation of powers are respected. Frankly, that is not evident from the documents at the present time. As I say, I think there is a good case for retrospectivity here, but I am not sure the case is being well made by officers of the department that is handling this legislation.

Having settled that, I have to also take issue with some of the arguments that Senator Hanson-Young has run here this afternoon. Senator Hanson-Young will be well aware that the Greens argued strongly and passionately against the Anti-People Smuggling and Other Measures Act when it was before the parliament last year. They said at the time that it was wrong because it would create offences where offences should not exist. Those offences included where people smuggle people to Australia who turn out to be refugees. They argued that the smuggling of people to Australia who turn out to be refugees should not be a criminal offence. They argued that very consistently and cogently before the parliament.

But today they are arguing that it is open to a court in Victoria to find that, in fact, that is not what the parliament intended at all and that the parliament intended that maybe people who smuggled to Australia people who turned out to be refugees were people for whom there should be no moral culpability with respect to the people smuggling and that we should forgive and exonerate people who smuggle people in those circumstances.

Senator Hanson-Young: It's international law.

Senator HUMPHRIES: Whether it is international law or not, with great respect, Senator Hanson-Young, is irrelevant. You argued that the parliament was doing a certain thing by passing the legislation last year. You are now arguing that it is perfectly possible for people to characterise the parliament's actions in a quite different way. You are having your cake and eating it as well, with great respect.

I do not want to delay the Senate any longer. I want to reaffirm that we on this side of the chamber believe that the parliament has decided that people smuggling should be a criminal activity and that that criminality should not be in any way tempered or watered down by virtue of the fact that some of those people being smuggled may transpire to be genuine refugees. It is important for the parliament's will in this respect to be clear because there are presently proceedings before the courts of Australia where that issue is being tested. There should be no doubt that those who smuggle people should be subject to prosecution and, if the facts are found to support the case, convicted of those offences. That is what the parliament ensures by passing this legislation today. But some of the arguments being used both in support of the legislation and in opposition to it are, with the greatest respect, spurious in the extreme.