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Wednesday, 20 August 1980
Page: 532


Mr MACPHEE (Balaclava) (Minister for Immigration and Ethnic Affairs) - Before referring specifically to the remarks made by the honourable member for Maribrynong (Dr Cass) I would like to make a couple of general comments on remarks made by the honourable member for Wills (Mr Bryant) and his colleague, the honourable member for Hughes (Mr Les Johnson). They both referred to the draconian character, as they saw it, of this legislation. Like the honourable member for Maribyrnong, I recognise that it is severe legislation, hence the tabling of this Bill during the winter recess, the inclusion of the sunset provision, and the undertaking not to proclaim the legislation unless and until it should be necessary to do so.

One has to consider the point made by my colleagues the honourable member for Casey (Mr Falconer) and the honourable member for North Sydney (Mr Graham) that this legislation clearly is not aimed at refugees. It is aimed at those unscrupulous people who might organise rackets which involve refugees. The people of Australia, no matter how recently they have arrived here, have a right and a responsibility to take action against such racketeers, in the same way as the Government has a humanitarian obligation to take in the refugees. I might say in passing that our record is infinitely better than was indicated by the honourable member for Wills. We have already settled over 40,000 Indo-Chinese and, as the Treasurer (Mr Howard) said last night, we have undertaken to settle still more in the coming financial year. Let me remind the Committee that this legislation is aimed at those unscrupulous persons who organise large scale enterprises to bring people to Australia without prior authority, in contravention of Australian immigration policies. In some cases the numbers of persons on some of the large vessels could easily reach tens of thousands. That is not difficult; we know already that over 3,000 persons have been carried in many vessels. The profits can be large; indeed, they can be as much as $4m a vessel.

I thank the honourable member for Maribyrnong and also my own colleagues for their constructive support in this debate. Several matters which concern the Opposition were raised by the honourable member for Maribyrnong, and perhaps I ought to deal with those in the order in which they were raised during the debate on the second reading. Firstly, in relation to the question of stowaways, if there were more than five stowaways on board a vessel the master would be liable to prosecution for an offence under the provisions of the Bill. It should be noted, however, that it is generally accepted as a principle that the master of a vessel is responsible for the proper management of his vessel and all persons on board. The provisions contained in the Bill are not unusual in that the Migration Act imposes penalties upon the carriers for bringing persons, including stowaways, into Australia in similar situations to those envisaged in this Bill. Should the master discover during the voyage to Australia that he has stowaways on board, it is his responsibility to advise the immigration authorities on the arrival of his vessel or aircraft in Australia before the stowaways disembark. Surely not all responsibility must rest with people in Australia in circumstances like that. I think it is fair to say that under international law and custom the master has a clear obligation. However, a prosecution would not be initiated against a master who had done all that was in his power to meet the requirements of the law. I assure the honourable member for Maribyrnong that in the administration of this legislation, if it has to be proclaimed, a prosecution would not be initiated against a master who we believed had done all that was reasonably within his power to meet the requirements of our law.

The second point raised by the honourable member for Maribyrnong was whether the Bill should contain provisions requiring the AttorneyGeneral to consent to the prosecution. I gave careful consideration to this matter and I believe that the provision ought to remain in the Bill. I point out that the Attorney-General's consent is required only for offences which attract the maximum penalties under the Bill, namely, a $100,000 fine, or ten years imprisonment, or both. They are, of course, the very draconian measures to which several members have referred. It is because of the nature of those provisions that it is essential, as a safeguard for those who might be liable to prosecution, to ensure that the matter is given proper consideration by the senior law enforcement officer, the Attorney-General, as well as by the

Minister for Immigration and Ethnic Affairs. 1 believe that justice will be done if those two Ministers are charged with the responsibility of examining matters prior to prosecution.

Because of the sincerity with which the honourable member for Maribyrnong and each of the Opposition spokesmen have raised this point, I think I ought to place in Hansard a statement indicating the spirit in which the legislation will be administered. I have indicated that I have some sympathy for the views expressed by the Opposition about the position of crew members. I have said that privately to the honourable member for Maribyrnong and I repeat it here. It must be remembered, though, that the provisions of this Bill are directed to meet a very unusual situation. It is important that the crew members of the big refugee boats be liable to the same penalties as a master, particularly as our experience so far has established that crew members of these big refugee boats have been intimately involved in the carriage of refugees and have derived substantial profits from that carriage.

As I stated in my second reading speech, the Bill is designed principally as a deterrent to profiteers bringing large numbers of refugees to Australia. Failure to render crew members liable to the substantial penalties contained in the Bill would lessen this deterrent effect. We are not dealing with the usual situation where there are articled crew members on board. In most cases there is no formal documentation on board these vessels to show who is the master and who is the crew. The Government is of the opinion that, because of this unusual situation, of necessity the Bill must cast a very wide net in order to prosecute all who derive profits from the voyage. In this regard, I point out that since the introduction of the Bill on 1 May this year neither I nor my Department has received any adverse reaction to this proposal from shipping or airline operators. The reason, I am sure, is that they know we will administer the Bill in a sane way, and I believe that that meets the points raised by the honourable member for Maribyrnong.

I assure honourable members that the Government has no intention of prosecuting innocent crew members, nor has it any intention of prosecuting bona fide commercial carriers who may, for example, effect a genuine rescue at sea. To ensure that this does not occur and that proper consideration is given to the matter, clause 23 of the Bill requires that any prosecutions for offences attracting the maximum penalties must be consented to by the Attorney-General. The AttorneyGeneral would not give his consent unless he were satisfied that the interests of justice required the prosecution. I would also point out that, as a result of the provisions of clauses 2 and 31, the Bill will not come into operation until a date to be proclaimed and, when proclaimed, will operate only for a period of 12 months, unless its operation is further extended by the GovernorGeneral in accordance with a resolution passed by both Houses of this Parliament. This mechanism will give the Parliament control over the extension and operation of the Act. Having regard to that I do not believe that the views expressed by the honourable member for Wills have any substance.

Because of the time my friend the honourable member for Maribyrnong has spent on this matter, I think I should add a further note in respect of clause 23. Because of the heavy penalties which may be imposed under the Bill, and in order to avoid the possibility of embarrassment to the Government in the event that it became necessary to withdraw or discontinue proceedings because of lack of evidence, the clause provides that proceedings for an offence which attracts the higher penalties are not to be instituted except with the written consent of the Attorney-General or a person authorised by him to give such consent. Consent will be required to institute proceedings in the following circumstances: Firstly, bringing into Australia more than the prescribed number of persons who do not possess visas, for example, proceedings against the master, crew, owner, agent, charterer or commandeerers, and I refer the Committee to clause 6; secondly, disabling or scuttling vessels, as in clause 7; and thirdly, failing to comply with a notice to repair or depart, and I refer honourable members to clauses 18 and 19. The clause provides further that, even though the Attorney-General's consent has not been given, a person can be charged with an offence, can be arrested for an offence and remanded in custody or on bail. This means that in effect we are enabled to take immediate action against the persons concerned before the matter reaches the hearing stage and before the Attorney-General's consent must be obtained to proceed further.

The honourable member for Maribyrnong has foreshadowed three amendments in respect of clause 6 of the Bill which would overcome concerns expressed by him that persons charged with the major offence of entering Australia with more than five relevant persons on board should not have to establish the defences referred to in subclauses (5), (7) and (8) of clause 6 of the Bill. These sub-clauses offer a defence to the master of a vessel who genuinely brings his vessel into

Australia as a result of an emergency. It is consistent with established common law and other statute law that the onus of proof is on the prosecution to establish certain elements of the offence, but then the onus shifts to the defence to establish defences provided by common law or, in this case, by statute. So the statute is providing defences. It is certainly not within the knowledge of the prosecutor to discuss whether the cause of the emergency might have been a storm or whatever, but we do provide the defence that it is reasonable and in accordance with the spirit of the administration of justice that the onus is then on the master of the vessel to satisfy the clauses providing the defence.

Clause 6 requires the master, if he raises the defence of emergency, to establish the defence to the satisfaction of the court. The master is the only one who is in a position to establish the nature of any such emergency and it would be unreasonable to expect the Commonwealth to establish, for example, that the master could not have weathered the storm or indeed established the circumstances of something that happened before the vessel reached Australia. Because the provisions of clause 6 apply to vessels which bring people to Australia in circumstances when they do not intend to disembark in Australia and when it is not intended that the vessels land or come into port, sub-clauses (5) to (8) set out a number of defences which may be raised in a prosecution for an offence against the clause.

Sub-clause (5) makes it a defence if the person charged can establish that when the vessel landed or entered Australia it was under the control of persons who commandeered it. Sub-clause (7) makes it a defence to a prosecution in relation to an aircraft if the person charged can establish that the aircraft landed in Australia only by reason of an unforeseen emergency which rendered it necessary to land in order to secure the safety of the aircraft, its cargo or human life. Sub-clause (8) makes it a defence to a prosecution in relation to a ship if the person charged satisfies the court that the ship entered the territorial sea in the right of innocent passage or entered Australian waters in consequence of an unforeseen emergency which rendered it necessary for the ship to be brought into those waters in order to secure the safety of the ship, its cargo or human life. I appeal to the honourable member for Maribyrnong to recognise that the knowledge of those facts and the proof of those matters can only be within the ken of the master of the ship and not within the ken of the prosecuting authority.

The honourable member for Maribyrnong also suggested the need for amendment to clause 1 1 .

That clause requires an officer authorised by the Minister to serve a notice on the master requiring him to convey from Australia within a reasonable period and without charge to the Commonwealth persons whom he had brought here as a result of an emergency. I wish to draw the attention of honourable members to the provisions of subclause (4) of clause 1 1 , which enables the authorised officer to vary, amend or revoke the notice to remove. This sub-clause will provide the officer with the opportunity to exercise his or her judgment having regard to the particular situation and the nature of the delay involved. For example, in situations where a storm has abated, it might be feasible to require the master to depart immediately. In situations where the master has to effect repairs there may be a number of factors which arise during the course of those repairs that make it impossible for him to depart within the time stipulated. These factors will be assessed during the course of the repairs. In addition, should he fail to depart within the time stipulated and should he be prosecuted for failing to do so, the court will assess whether the time allocated to depart was reasonable in all circumstances. I think my colleague the honourable member for North Sydney made pretty much that point in respect of a number of matters.

The honourable member for Maribyrnong also drew attention to what he classified as the inquisitional nature of the provisions of sub-clauses (7) and (8) of clause 12. He suggests that the prescribed authority should in all cases be bound by the rules of evidence. Clause 12 requires a prescribed authority, who under clause 1 4 will be a magistrate, to inquire into, among other things, whether a person who had disembarked from a vessel without authority is in fact such a person. These inquiries may frequently be made in situations where the observance of formalities may be at best extremely difficult. The magistrate should be able to make whatever inquiries he considers appropriate, even in an isolated situation of the kind which could arise with a boat arriving unexpectedly at a remote area. I think that the overriding need to establish the facts of the matter - it is considered that the experience possessed by magistrates will ensure that they adhere to the normal procedures as far as practicable - justifies the provision. In passing, 1 observe that coronial inquiries proceed precisely along these lines. I believe that our magistrates have enough experience and conviction about the spirit of the administration of justice to ensure that natural justice prevails and that the fears of the honourable member will not be realised.

Finally, it was suggested that provisions be included in the Bill to ensure that any requests, instructions or notices served on a non-English speaking person be in a language understood by that person. Whilst I agree with the need for directions to be given in a manner in which they will be understood, I find it difficult to envisage a situation in which this would not occur. Such an understanding is essential to ensure that the instruction is properly carried out in the first place. Not only would the Department be at pains to do it but also the courts would most certainly require it.

I believe that there are some immense problems in what is otherwise, 1 think, a most sincere and genuine consideration felt by the honourable member for Maribyrnong. Among the immense problems are several matters relating to legal interpretation - for example, transliteration. Not every language can be easily transliterated into English or vice versa. I am extremely sympathetic to the point which he raises, but one then moves on to the fact that his amendments appear to relate to written instructions, whereas a good deal of the communication will need to be oral. Of course, oral interpretation would then need to be proved in a court of law. It is a common daily occurrence for interpreters translating evidence to indicate the nature of the communication. Not only would we go out of our way to communicate but also, I repeat, the courts would expect it of us. In practice, the Department goes further than the requirement of the amendment. In particular, I want to bring this to the attention of the honourable member. In practice, the Department already goes further in these communications than the requirements of the amendment.

In fact, the amendment does not cover some other exigencies. It is actually too narrow because we have had people arrive as refugees, as crew or as masters who have been illiterate in their own language and therefore written communication is of no avail. That is not uncommon with seamen around the world. We have had some people arrive who are deaf and dumb. One ought to remember that the natives of many countries near to us, especially in the Pacific region, do not have an alphabet. Those who have written languages often have had them written by missionaries in a script that the natives did not have.

I am extremely sympathetic to the matters raised, but in summary at this stage I see lots of serious problems inherent in the approach suggested by the amendment. I perhaps should just summarise the matters again because I know that several honourable members spent time on this matter. Firstly, there are persons who are illiterate in their own language. Secondly, there are some languages which are not in a written form. Again I stress that in many cases those languages are spoken in countries not very far from Australia. Thirdly, the way in which the amendment was drafted would enable those responsible for administering the legislation to rely simply on serving notices in writing in English and in one other language which might be fully understood. I take as an illustration the term 'fully understood' as contained in the amendment. It might be rather difficult to ascertain whether the language is fully understood by the person who is being dealt with. This is not as much in the interests of the unauthorised arrival as having oral interpretation available throughout the interview, which is now our practice. Then the formal action of making requests or issuing instructions or notices, I think, could become a perfunctory substitute for the present careful practice. The current practice is for such oral interpretation to be available as a matter of course. Again it is not always possible to provide in some languages exact written translation of legal terms especially and of legal concepts used in English. Oral interpretation can clarify more readily what is involved in requests, instructions, notices, et cetera.

So, I understand, respect and am very sympathetic to the thinking behind the amendment, but for the reasons I have given, amongst others, I conclude that the amendment would not in fact achieve the purpose for which it has been designed and could even have some unfortunate consequences as a result. I repeat for the benefit of the chamber that we will not be proclaiming the legislation until or unless we really believe we must. There is a sunset provision and certainly I will make sure that we use the time that is available to us because of those situations to examine the practicability of building in, in practice if not in the legislation, the sorts of guarantees that honourable members are looking for without constraining the flexibility of our approach administratively. Having regard to the matters mentioned, the Government is not prepared to accept any of the amendments moved by the Opposition.

Amendments negatived.

Bill agreed to.

Bill reported without amendment; report adopted.







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