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Migration Legislation Amendment Bill (No. 1) 1999

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1998-99

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT BILL (No. 2) 1998

 

 

REPLACEMENT SUPPLEMENTARY

EXPLANATORY MEMORANDUM

 

 

Amendments and New Clauses to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister

for Immigration and Multicultural Affairs,

the Hon. Philip Ruddock MP)

 

 

MIGRATION LEGISLATION AMENDMENT BILL (No. 2) 1998

 

 

OUTLINE

 

The Government has decided to move amendments to the Migration Legislation Amendment (No. 2) Bill 1998:

·          consequential to the proposed Human Rights Legislation Amendment Bill (No. 2) 1999 which was introduced into the House of Representatives on 17 February 1999.  That Bill proposes to rename the Human Rights and Equal Opportunity Commission as the Human Rights and Responsibilities Commission. 

-         The amendments seek to ensure that the Migration Legislation Amendment Bill (No. 2) 1998 refers to the correct name of the Commission when the change of name comes into effect; and

·          people trafficking offences.  In particular, the proposed amendments:

 

-         increase existing penalties for people trafficking offences in sections 233, 234 and 236 of the Migration Act 1958 (“the Act”) from imprisonment for 2 years to imprisonment for 10 years and / or 1,000 penalty units, in line with Commonwealth criminal law policy;

-         create new offences relating to people trafficking.  The new offences are aimed at people who intentionally organise, or participate in, the trafficking of groups of 5 or more people.  The proposed penalty for each of these new offences is 20 years imprisonment and / or 2,000 penalty units;

-         amend section 492 of the Act to make reference to section 233 and proposed new sections 232A and 233A of the Act.  The amendments will ensure that prosecutions of offences under sections 232A, 233 and 233A will be able to be commenced at any time after the commencement of the amendments; and

-         make references to the people trafficking offences in the Telecommunications (Interception) Act 1979 to provide a legal basis for the use of interception devices in relation to those offences, in certain circumstances.

 

 

FINANCIAL IMPACT STATEMENT

 

There are no financial implications arising from these amendments.

 



 

 

MIGRATION LEGISLATION AMENDMENT BILL (No. 2) 1998 .      

 

NOTES ON INDIVIDUAL CLAUSES

 

Item 1             Clause 2 - Commencement

 

1.       Proposed subclause 2(1) provides for sections 1, 2 and 3 of the Migration Legislation Amendment Bill (No. 2) 1998 to commence on the day it receives the Royal Assent.

 

2.       Proposed subclause 2(2) provides for items 1, 2, 3 and 4 of Schedule 1 and Schedule 2 to be taken to have commenced on 3 December 1998.

 

3.       Proposed subclause 2(3) provides for item 2A of Schedule 1 to commence immediately after the commencement of item 2 of Schedule 1 to the Human Rights Legislation Amendment Act (No. 2) 1999 .

 

4.       Proposed subclause 2(4) provides that, subject to subsection 2(5), the items of Schedule 1, other than those cited in subsections 2(2) and 2(3), and Schedule 1A commence on a day to be fixed by Proclamation.

 

5.       Proposed subclause 2(5) provides that the items of Schedule 1 referred to in subsection 2(4); and Schedule 1A will commence 6 months after the Royal Assent unless Proclamation occurs first.

 

Item 2             Clause 3 - Schedule(s)

 

6.       This amendment is consequential to the amendments contained in clause 2.

 

SCHEDULE 1

 

Item 3             Clause 2A - Paragraph 193(3)(a)

 

7.       This item inserts new clause 2A into Schedule 1.  Clause 2A is necessary to reflect the proposed change of name of the Human Rights and Equal Opportunity Commission to the Human Rights and Responsibilities Commission and the proposed change of name of the Human Rights and Equal Opportunity Commission Act 1986 to the Human Rights and Responsibilities Commission Act 1986 by the Human Rights Legislation Amendment Bill (No. 2) 1999. 

 

8.       Clause 2A will only take effect once the Human Rights Legislation Amendment Act (No. 2) 1999 has commenced.   The amendments seek to ensure that the Migration Legislation Amendment Bill (No. 2) 1998 refers to the correct name of the Commission, as in existence at the time the change of name comes into effect pursuant to the changes made by the Human Rights Legislation Amendment Bill (No. 2) 1999.

 



Item 4            

 

Clause 3A - After section 232

 

New section 232A Organising bringing groups of non-citizens into Australia

 

9.       Proposed clause 3A inserts new section 232A after section 232 of the Act.  New section 232A provides a new offence in relation to the trafficking of groups of 5 people or more to Australia.  The offence is aimed at organised operations and attracts a penalty of imprisonment for 20 years or 2,000 penalty units, or both.

 

Clause 3B - Section 233 (penalty)

 

10.   Proposed clause 3B amends section 233 to increase the penalty for the bringing or coming to Australia of a non-citizen in contravention of the Act, or for the concealing of a non-citizen or an unlawful non-citizen or a deportee in certain circumstances (as set out in section 233).  The penalty is increased to 10 years imprisonment or 1,000 penalty units, or both.

 

Clause 3C - After section 233

 

New section 233A Other offences relating to groups of non-citizens etc.

 

11.   Proposed clause 3C inserts new section 233A after section 233 of the Act.  New section 233A provides a new offence in relation to the trafficking of groups of 5 people or more to Australia, and specifically deals with false statements, false or forged papers, and the fraudulent use of documents.  The offence is aimed at organised operations and attracts a penalty of imprisonment for 20 years or 2,000 penalty units, or both.

 

Clause 3D - Section 234 (penalty)

 

12.   Proposed clause 3D amends section 234 to increase the penalty in relation to the making of or use of false statements, false or forged papers, or the fraudulent use of documents, in certain circumstances, as set out in section 234 of the Act.   The penalty is increased to 10 years imprisonment or 1,000 penalty units, or both.

 

Clause 3E - Section 236 (penalty)

 

13.   Proposed clause 3E amends section 236 to increase the penalty in respect of the situation where a person uses a visa that was granted to another person, or where the person has a visa in his or her possession or under his or her control without reasonable excuse, as set out in section 236 of the Act.  The penalty is increased to 10 years imprisonment or 1,000 penalty units, or both.

 



Item 5

 

Clause 5 - Subsection 492(1)

 

14.   Proposed clause 5 amends subsection 492(1) to substitute the reference to “subsection (2)” with a reference to “this section”, consequential to the amendment to section 492 in proposed clause 6, below.

 

Clause 6 - At the end of section 492

 

15.   Proposed clause 6 adds new subsection 492(3) to section 492.  New subsection 492(3) provides that a prosecution of a person for an offence against new sections 232A or 233A, or against section 233, may be instituted at any time after the commencement of new subsection 492(3).  Offences under the Act that are not mentioned in subsection 492(2) or new subsection 492(3) may only be instituted within 5 years after they are committed. 

 

Item 6             Schedule 1A - Consequential Amendments of the Telecommunications (Interception) Act 1979

 

Subsection 5(1)

 

16.   Proposed item 1 amends subsection 5(1) of the Telecommunications (Interception) Act 1979 to insert a definition of “an immigration offence”, consequential to the amendments to section 5D, below.  The offences mentioned in the definition are all people trafficking offences.

 

At the end of paragraph 5D(3)(d)

 

17.   Proposed item 2 adds new subparagraph 5D(3)(d)(xii) to section 5D of the Telecommunications (Interception) Act 1979 so that the offences contained in sections 232A, 233, 233A, 234 and 236 of the Migration Act 1958 may qualify as class 2 offences under the Telecommunications (Interception) Act 1979 , in certain circumstances.  Certain communications may be intercepted in respect of class 2 offences pursuant to the Telecommunications (Interception) Act 1979

 

Item 7             Effect of certain Schedule 1 amendments

 

18.   This amendment is consequential to the changes to Schedule 1 and the addition of Schedule 1A.