Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Migration Amendment (Removal of Mandatory Minimum Penalties) Bill 2012

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

2010-2011-2012

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

Migration Amendment (Removal of Mandatory

Minimum Penalties) Bill 2012

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of Senator S Hanson Young)

 

 

 

 

 

 



 

Outline

 

The Migration Amendment (Removal of Mandatory Minimum Penalties) Bill 2012 amends the Migration Act 1958 to remove the mandatory minimum sentence that affects three of the Commonwealth people smuggling offences set out in that Act.

 

NOTES ON CLAUSES

 

Clause 1 - Short Title

 

1.       This is a formal provision specifying the short title.

 

Clause 2 - Commencement

 

2.       The Bill's provisions are to commence the day after it receives Royal Assent.

 

Clause 3 - Schedules

 

3.       This clause provides that an Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule operates according to its terms.

 

Schedule 1 - Amendment of the Migration Act 1958

 

Item 1

 

4.       Item 1 repeals the note attached to the offence at subsection 233B(1) of aggravated people smuggling (exploitation, or danger of death or serious harm etc). This item removes from this offence the application of the mandatory sentencing provision at section 236B. This item is consequential on item 5 which removes the mandatory sentencing provision at section 236B. The note is then substituted with the remaining application of section 236A which allows the court to discharge a youthful offender.

 

Item 2

 

5.       Item 2 repeals the note attached to the offence at subsection 233C(1) of aggravated people smuggling (at least 5 people). This item removes from this offence the application of the mandatory sentencing provision at section 236B. This item is consequential on item 5 which removes the mandatory sentencing provision at section 236B. The note is then substituted with the remaining application of section 236A which allows the court to discharge a youthful offender.

 

Item 3

 

6.       Item 3 repeals the note attached to the aggravated offence at subsection 234A(1) of providing false documents and false or misleading information relating to non-citizens. This item removes from this offence the application of the mandatory sentencing provision at section 236B. This item is consequential on item 5 which removes the mandatory sentencing provision at section 236B. The note is then substituted with the remaining application of section 236A which allows the court to discharge a youthful offender.

 

Item 4

 

7.       Item 4 repeals the note attached to the offence at subsection 234A(2) of dealing with documents that may be used to help unentitled people gain entry to Australia or Australian immigration clearance. This item removes from this offence the application of the mandatory sentencing provision at section 236B. This item is consequential on item 5 which removes the mandatory sentencing provision at section 236B. The note is then substituted with the remaining application of section 236A which allows the court to discharge a youthful offender.

 

Item 5

 

8.       Item 5 repeals section 236B in its entirety which removes all mandatory minimum sentencing provisions from the Migration Act 1958 .



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

The Migration Amendment (Removal of Mandatory Minimum Penalties) Bill 2012 will remove mandatory minimum sentencing provisions which currently operate over certain Commonwealth people smuggling offences under the Migration Act 1958 .  Under the current mandatory sentencing regime, a person who is convicted of one of four specified offences must be sentenced to imprisonment of a minimum five years with a non-parole period of three years.  By removing the mandatory sentencing provisions, this Bill returns judicial discretion to the sentencing process, and addresses the concerns raised by the Australian judiciary that many individuals convicted of the relevant offences are being imprisoned for longer than necessary.

 

Human rights implications

 

The key human rights engaged by this Bill are:

 

-          Right to security of the person and freedom from arbitrary detention .

 

This Bill seeks to remove mandatory sentencing which raises the issue of the above right. This right has been considered in the drafting of this Bill.

 

-         Rights to equality and non-discrimination .

 

This Bill, in practical effect, impacts a group of persons from a specific racial and national group. This right has been considered in the drafting of this Bill.

 

This Bill positively affects the human rights outlined above, in that the Bill seeks to restore the full operation of those rights by removing the current limitation on their operation.

 

That this reform is an advancement of human rights, rather than a limitation, is supported by arguments raised by human rights advocacy groups.

 

Conclusion

 

The Bill is compatible with human rights because it advances the protection against arbitrary imprisonment and removes mandatory sentencing which, in practical operation, impacts on a specific group of people.