Bills Digest no. 131 2009–10
Anti-People Smuggling and Other Measures Bill
2010
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Anti-People Smuggling and Other Measures
Bill 2010
Date introduced: 24 February 2010
House: House
of Representatives
Portfolio: Attorney-General
Commencement: On the day after the Act receives Royal
Assent.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of this Bill is to
amend Australia’s anti-people smuggling legislative
framework. In particular, this Bill proposes to harmonise existing
offences between Acts, create new people smuggling offences,
enhance investigative tools, and extend the application of
mandatory minimum penalties for aggravated people smuggling
offences. Amendments are to be made to the following six Acts:
- the Australian Security Intelligence Organisation Act
1979 (ASIO Act)
- the Criminal Code Act 1995 (Criminal Code)
- the Migration Act 1958 (Migration Act)
- the Proceeds of Crime Act 2002 (Proceeds of Crime
Act)
- the Surveillance Devices Act 2004 (Surveillance
Devices Act), and
- the Telecommunications (Interception and Access) Act
1979 (Telecommunications Interception and Access Act).
On 4 December 2008, Prime Minister Kevin Rudd MP delivered the
government’s first national security statement to Parliament
in which the government set out its national security reform agenda
for the future. In relation to the threat posed by transnational
crime, including people smuggling activities, the Prime Minister
emphasised the role of non-state actors and the need to strengthen
border control by improving coordination among government
agencies:
The government is committed to deploying all
necessary resources to prosecute those criminals who seek to
undermine Australia’s border security. We will work with our
partners in the region to shut down the illegal operations of
people smugglers and see them put in jail where they belong. The
government has recently agreed to a series of new measures at a
cost of $44.1 million to further combat people-smuggling in
cooperation with regional partners.
Organised crime more broadly is a growing
concern for Australia, one the government is determined to combat.
The Australian Crime Commission has estimated that organised crime
costs for Australia each year run at some $10 billion. The
government will develop two initiatives in the related areas of
border management and serious and organised crime. We will
strengthen border management by simplifying arrangements and
improving coordination across all agencies. Second, we will clearly
define the role of the Commonwealth in combating serious and
organised crime and enhance coordination among Commonwealth
agencies.[1]
In the 2009–10 Federal Budget the government announced
that it would allocate $654 million over six years to several
portfolios to combat people smuggling and strengthen border
security (including addressing the problem of unauthorised boat
arrivals).[2] The
media release accompanying the announcement notes:
…A further $55 million will be provided
to the Australian Federal Police, the
Attorney‑General’s Department and the Commonwealth
Director of Public Prosecutions to support the Government’s
fight against people smuggling.
“$42 million will be provided to better
equip AFP to stop people smuggling ventures before they launch for
Australia, by ramping up the crucial partnership between the AFP
and the Indonesian police, and to investigate and dismantle people
smuggling syndicates.
“The funding will also include additional
investigators and intelligence officers to be assigned to the AFP's
People Smuggling Strike Team…[3]
The People Smuggling Strike Team is a task force that was
established in May 2000. It comprises officers from the Australian
Federal Police, from the Department of Immigration and Citizenship
and from the Australian Customs and Border Protection Service. The
team consists of investigators as well as intelligence and
financial analysts that collect, evaluate, analyse and disseminate
intelligence relating to people smuggling.
According to the Minister for Home Affairs, Brendan
O’Connor MP, there have been 88 arrests and 25 convictions
since September 2008. Convicted people smugglers, that is, crew
members on vessels have been receiving between five and six years
imprisonment.[4]
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The Protocol against the Smuggling of Migrants by Land, Sea and
Air, supplementing the United Nations Convention against
Transnational Organized Crime (the Protocol), to which Australia is
a party aims to prevent and combat the smuggling of migrants, as
well as to promote cooperation among States Parties to that end,
while protecting the rights of smuggled migrants.[5] The Protocol defines
‘smuggling of migrants’ in Article 3(a) as:
the procurement, in order to obtain, directly
or indirectly, a financial or other material benefit, of the
illegal entry of a person into a State Party of which the person is
not a national or a permanent resident.[6]
Each State Party to the Protocol is required to criminalize the
smuggling of migrants and other forms of activity that support such
smuggling.[7] The
legislative guide for the implementation of the Protocol summarises
the criminalization requirements:
Each State party is required to criminalize, when committed
intentionally and in order to obtain a financial or other material
benefit:
- Conduct constituting the smuggling of migrants (the procurement
for material gain of the illegal entry of a person into a State
party of which the person is not a national or permanent
resident)
- Producing, procuring, providing or possessing fraudulent travel
or identity documents when done for the purpose of enabling
smuggling of migrants
- Enabling a person to remain in a country where the person is
not a legal resident or citizen without complying with requirements
for legally remaining by illegal means
- Organizing or directing any of the above crimes
- Attempting to commit any of the above offences, subject to the
basic concepts of the State party’s legal system, and
- Participating as an accomplice in any of the above offences,
subject to the basic concepts of the State party’s legal
system.
Each State party is also required:
- To establish, as aggravating circumstances for the above
offences, conduct that is likely to endanger or does endanger the
migrants concerned or that subjects them to inhumane or degrading
treatment …[8]
It is significant to note that the legislative guide to the
protocol states that the primary focus of the Protocol is to target
organised criminal groups who receive a financial or other material
benefit. The drafters did not intend that the Protocol apply to
others, such as family members or charitable organisations, who
procure the illegal entry of migrants for reasons other than
gain.[9] This
distinction is not maintained in this Bill. Firstly, the
acquisition of a financial or other material benefit is not an
element to offences of people smuggling under the Migration Act or
Criminal Code. Similarly, persons who provide material support or
resources may be found guilty of supporting the offence of people
smuggling irrespective of whether they received a financial or
other material benefit.
In relation to penalties, the legislative guide to the Protocol
states ‘the Protocol is silent as to the punishment or range
of punishments that should be applied to the various
offences’. However, it notes that ‘sanctions should be
effective, proportionate and dissuasive’ and ‘in cases
where legislatures decide to apply mandatory minimum punishments,
the possibility of excuse or mitigation for cases where offenders
have cooperated with or assisted competent authorities should also
be considered’.[10]
In keeping with the broad purpose of the Protocol, this Bill
ensures that people smuggling is comprehensively criminalised in
Australian law with tougher penalties for the most serious forms of
the crime (that is, those involving aggravating
circumstances).[11]
The Senate Selection of Bills Committee recommended this Bill
not be referred to a Committee for inquiry.[12]
The Shadow Minister for Immigration and Citizenship, Scott
Morrison MP reportedly stated that the Coalition is supportive of
these measures. However, he emphasises that what he considered to
be driving the people-smuggling trade is the pull-factors created
by the magnetic impact of the government’s failed border
protection policies.[13] In this respect, the Coalition have reportedly labelled
the government’s plan as ‘too little, too
late’.[14]
Though the Coalition is supportive of the measures, Scott
Morrison MP has also pointed out that the crews of the boats may
also be potential victims of the people smugglers:
The other thing to point out is the people who
come on the boats, and I am talking about the crew, are abused by
the people smugglers also. They have very little knowledge of what
they are getting into particularly the younger crew members who
effectively have become people smugglers mules. There will be no
shortage, sadly, of poor fishers in Indonesia who will be available
to be used by the people smuggling trade. They will arrive, as I
saw some of them when I was on Christmas Island recently, and the
people who looked most worried getting off that boat quite frankly
were the young crew who had no idea what they were getting
into.[15]
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The Explanatory Memorandum states that ‘the amendments in
this Bill have no financial impact on Government
revenue’.[16]
However, Shadow Attorney General, Senator George Brandis has
queried whether ASIO will be required to support its proposed
additional responsibilities to combat people smuggling from
existing funding (which might divert resources away from the
agency’s other intelligence functions) or whether additional
resources will be made available.[17] The agency’s total appropriation revenue is
shown in the table below:
|
2007-08
|
2008-09
|
2009-10
|
2010-11
|
2011-12
|
2012-13
|
|
$291m
|
$353m
|
$409m
|
$413m*
|
$417m*
|
$419m*
|
* = forward estimate
Following is a brief overview of the most significant issues
arising under the various Acts:
In relation to the Criminal Code this Bill
creates a new offence of supporting the offence of people smuggling
which targets people who organise, finance and provide other
material support to people smuggling ventures entering foreign
countries, whether or not via Australia. The penalty for this
offence is imprisonment for a maximum 10 years or a fine of
$110,000 or both.
In relation to the Migration Act, this Bill
creates two new people smuggling related offences in the Migration
Act. Firstly, supporting the offence of people smuggling which
targets people who organise, finance and provide other material
support to people smuggling operations, such as people in Australia
who pay people smugglers to bring their family or friends to
Australia. Secondly, the aggravated offence of people smuggling
involving such things as exploitation, or danger of death or
serious harm which will carry a penalty of imprisonment for a
maximum 20 years or a fine of $220,000 or both whereas the primary
offence of people smuggling carries a penalty of imprisonment for a
maximum 10 years or a fine of $110,000 or both. The aggravating
circumstances in this latter offence are derived from the
Protocol.
The mandatory minimum penalty provisions will be extended to the
three aggravated people smuggling offences which means the court
must impose a sentence of imprisonment of at least eight years
(with a non-parole period of at least five years). In addition, the
Migration Act will be amended so that persons convicted of multiple
offences in the same proceeding will also be subject to the higher
penalties. This latter amendment will apparently close a loophole
which meant people smugglers who were convicted for their
involvement in two or more ventures during the same court hearing
were treated as first time offenders and thereby subject to the
lower mandatory minimum sentencing requirements.
In relation to the Surveillance Devices Act,
this Bill will extend emergency authorisation for the use of a
surveillance device to investigations into the aggravated offence
of people smuggling involving such things as exploitation, or
danger of death or serious harm and the aggravated offence of
people smuggling involving at least five people contained in the
Migration Act. Currently, the ability to obtain emergency
authorisation for a surveillance device does not extend to offences
under the Migration Act.
In relation to the Telecommunications Interception and
Access Act, this Bill will simplify the criteria to be
satisfied by agencies when applying for telecommunications
interception warrants for offences against people smuggling
offences in the Migration Act. Under these amendments agencies will
no longer have to establish that the offence involved two or more
offenders and substantial planning and organisation as well as the
use of sophisticated methods and techniques and so forth.
In addition, changing the definition of ‘foreign
intelligence’ will mean that information about foreign
individuals or groups (non-state actors) can be collected when a
warrant for a telecommunications interception device is issued
under the Act. Under the proposed amendments, the Attorney-General
will be able to approve the issuing of a warrant if the collection
of the information is in the interests of Australia’s
national security, foreign relations or economic well-being, rather
than the collection being important in relation to the defence of
the Commonwealth or to the conduct of the Commonwealth’s
international affairs.
In relation to the ASIO Act, this Bill will
amend the definition of the term ‘security’ in the ASIO
Act to officially give the agency the statutory power to obtain and
evaluate intelligence relevant to the protection of
Australia’s territorial border integrity from serious
threats. Such intelligence can then be communicated to agencies
such as the Australian Customs and Border Protection Service or law
enforcement agencies.
Items 1 and 2 repeal existing paragraph 73.1(1)
from the Criminal Code which required the prosecution to prove that
the person who organises or facilitates the unlawful entry of
another person into a foreign country did so having obtained or
intending to obtain a benefit (whether directly or indirectly).
There is no such equivalent requirement under existing section 232A
(Organising bringing groups of non-citizens into Australia) or
proposed section 233A (Offence of people
smuggling) of the Migration Act.
Item 3 repeals existing subsection 73.2(1) of
the Criminal Code and substitutes a new subsection (Aggravated
offence of people smuggling (exploitation, or danger of death or
serious harm etc.)). Though in essence this offence closely
resembles its predecessor, it inserts proposed subsection
73.2(2) into the Code which provides that there is no
fault element for the physical element of conduct described in
subsection (1) other than the fault elements (however described),
if any, for the offence of people smuggling.[18] Proposed subsection
73.2(2A) will also be inserted which clarifies that a
person can be convicted of an offence against this section even if
they have not been convicted of the offence of people
smuggling.
Items 4 and 5 repeal existing paragraphs
73.3(1) from the Criminal Code which required the prosecution to
prove that the person who organises or facilitates the unlawful
entry of a group of five or more persons into a foreign country did
so having obtained or intending to obtain a benefit (whether
directly or indirectly). There is no such equivalent requirement
under existing section 232A (Organising bringing groups of
non-citizens into Australia) or proposed section
233C (Aggravated offence of people smuggling (at least 5
people)) of the Migration Act.
Item 6 inserts proposed new section
73.3A into the Criminal Code which is a new offence of
supporting the offence of people smuggling. Section 73.3A provides
that a person commits an offence if they provide material support
or resources to another person or organisation and in doing so,
aids the commission of the offence of people smuggling.
This offence has two physical elements:[19]
- The person intentionally provided material support or resources
to another person or an organisation (the receiver)
(paragraph 73.3A(1)(a)), and
- The person was reckless as to the circumstance that the
provision of the support or resources aided the receiver or another
person or organisation to engage in conduct constituting a people
smuggling offence (paragraph 73.3A(1)(b)).[20]
The penalty for this offence is imprisonment for 10 years or
1,000 penalty units ($110,000), or both.
This offence does not apply to a person who provides material
support or resources to smugglers to facilitate their own entry or
the entry of a group of people of which they are a part
(paragraph 73.3A(2)). The evidential burden in
this respect lies with the defendant and a person commits an
offence even if the offence of people smuggling is not committed
(paragraph 73.3A(3)). The Explanatory Memorandum
notes that the offence will nonetheless apply to ‘persons in
Australia who pay smugglers to bring their family or friends to
Australia on a smuggling venture’.[21]
The term ‘material support’ is not defined, but the
Explanatory Memorandum notes:
The term ‘material support or
resources’ is not defined in Commonwealth legislation.
However, drawing reference from section 2339A of the United
States of America Criminal Code, ‘material support or
resources’ may include, but is not limited to: property,
tangible or intangible, or service, finances including currency or
monetary instruments or financial securities, financial services,
false documentation or identification, communications equipment,
facilities and transportation.
The term ‘material support’ has
been used in accordance with a recommendation by the Parliamentary
Joint Committee on Intelligence and Security (PJCIS) made in their
Review of Security and Counter-Terrorism Legislation in
December 2006. The PJCIS recommended that the terrorism offence in
section 102.7 of the Criminal Code be amended to provide for
‘material support’ to remove any ambiguity. For
consistency across Commonwealth legislation, the term
‘material support’ has been used to make clear that the
level of support required to commit the offence goes beyond mere
support and is support that is real and concrete.[22]
Item 7 repeals the existing subheading
‘General Offences’ in Subdivision A of Division 12
(Part 2 of the Migration Act) and replaces it with ‘People
smuggling and related offences’.
Item 8 repeals existing sections 232A to 232C
of the Migration Act and replaces them with slightly amended and
new offences structured differently in the subdivision. These
amendments are explained in further detail below.
Proposed new section 233A is to be the primary
people smuggling offence and stems from existing paragraph
233(1)(a) of the Migration Act. In essence, the newly worded and
structured offence closely resembles its predecessor but the
Explanatory Memorandum does not say if the operation of the section
has been changed by this amendment. Nonetheless, the amendment
brings the offence of people smuggling into line with the
equivalent offence in the Criminal Code. The primary people
smuggling offence has three physical elements:
- organising or facilitating the bringing or coming to Australia
, or the entry or proposed entry into Australia of another person
(paragraph 233A(1)(a))[23]
- the second person is a non-citizen (paragraph
233A(1)(b)),[24] and
- the second person had, or has, no lawful right to come to
Australia (paragraph 233A(1)(c))[25]
The penalty for this offence remains at 10 years imprisonment or
1,000 penalty units ($110,000), or both.[26]
Proposed new section 233B is to be the
aggravated offence of people smuggling (involving exploitation, or
danger of death or serious harm etc). It is a new offence to be
inserted into the Migration Act. The aggravating circumstances to
the offence of people smuggling are:
- the perpetrator of the people smuggling offence commits the
offence intending that the victim will be exploited after entry to
Australia (whether by the perpetrator or another)
(paragraph 233B(1)(a))[27]
- in committing the people smuggling offence, the perpetrator
subjects the victim to cruel, inhuman or degrading treatment
(paragraph 233B(1)(b)), or
- in committing the people smuggling offence, the
perpetrator’s conduct gives rise to a danger of death or
serious harm to the victim and they are reckless as to the
danger of death or serious harm that arises from the conduct
(paragraph 233B(1)(c)).
Though a person may be convicted of this offence even if they
have not been convicted of the underlying offence of people
smuggling, the Explanatory Memorandum notes that the prosecution
would nonetheless need to establish the elements of the offence of
people smuggling (as discussed above).[28]
The penalty for this offence is 20 years imprisonment or 2,000
penalty units ($220,000), or both.[29]
On a drafting note, it is worth noting that though the Criminal
Code uses the term ‘victim’ the Migration Act currently
does not. It is not entirely clear why the term
‘non-citizen’ has not been used in this respect.
Proposed new section 233C is to be the
aggravated offence of people smuggling (involving at least five
people) and stems from existing paragraph 232A of the Migration
Act. In essence, the newly worded and structured offence closely
resembles its predecessor but the Explanatory Memorandum does not
say if the operation of the section has been changed by this
amendment. Nonetheless, the amendment brings this offence into line
with the equivalent offence in the Criminal Code. The elements of
this offence mirror the physical and fault elements of the primary
people smuggling offence, the only difference being that the
smuggling involves at least five people. Subsection 233C(3)
provides that in the alternative, a trier of fact may find the
defendant guilty of the offence of people smuggling under section
233A. This situation may arise if, for example, the trier of fact
is satisfied the defendant intended to smuggle fewer than five
people.[30]
The penalty for this offence remains 20 years imprisonment or
2,000 penalty units ($220,000), or both.
Proposed section 233D is a new offence to be
inserted into the Migration Act. It provides for the offence of
supporting the offence of people smuggling. This amendment
replicates proposed new section 73.3A of the Criminal Code (see
analysis of item 6 above).
Noting that the terms ‘material support or
resources’ is not to be defined, it is not entirely clear how
the new offence of supporting the offence of people smuggling
differs in essence from the existing offence of facilitating the
bringing of groups of non-citizens into Australia contained in
existing section 232A. This provision was the basis upon which a
Sydney man was recently charged for allegedly aiding persons
arriving on a people smuggling venture that was intercepted on 28
June 2009.[31]
Proposed section 233E is to contain offences
relating to concealing and harbouring non-citizens etc. These
offences stem from existing paragraph 233(1)(b) and (c) and
subsection 233(2) of the Migration Act. Though the structure of the
offences has slightly changed, their operation has not
changed.[32]
Item 9 relocates existing section 233A after
section 234 (False documents and false or misleading information
etc. relating to non-citizens) by inserting proposed
section 234A (Aggravated offence of false documents and
false or misleading information etc. relating to non-citizens (at
least 5 people)). The operation of existing section 233A has not
been changed by this amendment.
Item 10 relocates existing section 233B by
inserting proposed section 236A (No discharge of
offenders without proceeding to conviction for certain offences).
The operation of existing section 233A has not changed by this
amendment.
This item also inserts existing section 233C by inserting
proposed section 236B (Mandatory minimum penalties
for certain offences). The Explanatory Memorandum notes that
proposed section 236B amends existing section 233C to extend the
provision to a broader range of circumstances.[33] Proposed section
236B will apply to persons convicted of an offence against
sections 233B, 233C or 234A (aggravated offences of people
smuggling and false documents etc relating to at least 5
non-citizens) but not if the perpetrator was under 18 years of age
when the offence was committed (subsection 236B(2)). Subsection (3)
sets out the circumstances when the court must impose a minimum
sentence of imprisonment and subsection (4) sets out when the court
must impose a minimum non-parole period. The Explanatory Memorandum
addresses the Court’s residual discretion in sentencing which
in practice may apply to crew members found guilty of an aggravated
offence of people smuggling:
Mandatory minimum penalties still provide a
court with discretion when determining the appropriate sentence,
providing that the court does not go below the mandatory minimum
sentence and non-parole period. This allows the court to have
regard to the circumstances of both the offence and the offender.
The court also has discretion to impose higher sentences on the
offender depending on the person’s culpability so long as
they do not exceed the maximum penalty prescribed for the
offence.[34]
With respect to repeat offences, the Explanatory Memorandum also
notes:
This amendment extends the definition of
‘repeat offence’ in proposed subsection 236B(5) to
include the circumstance that involves a person being convicted of
another offence against proposed sections 233B, 233C or 234A of the
Migration Act whether in the same proceedings as the proceedings
relating to the offence or in previous proceedings. This means that
a person who is convicted of multiple offences in the same
proceeding will be subject to the higher mandatory minimum
penalties of eight years imprisonment with a non-parole period of
five years. This will capture people smuggling organisers who have
been involved in multiple people smuggling ventures but are coming
before the court for the first time in relation to multiple
offences.[35]
Item 11 clarifies that proposed section
236A (No discharge of offenders without proceeding to
conviction for certain offences) will only apply to offences
committed on or after commencement of this item.
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Item 13 extends the definition of
‘serious offence’ in section 338 of the Proceeds of
Crime Act (an Act which establishes a scheme to confiscate the
proceeds of crime) to the following new and existing offences under
the Migration Act:
- section 233A (offence of people smuggling)
- section 233B (people smuggling involving exploitation or danger
of death or serious harm etc)
- section 233C (people smuggling at least 5 people)
- section 233D (supporting the offence of people smuggling)
- section 233E(1) or (2) (concealing non-citizens etc), and
- section 234A (false documents etc relating to at least 5
non-citizens).
Items 14 and 15 amend section
30 of the Surveillance Devices Act. This section enables a law
enforcement officer who is conducting an investigation into a
specified offence to apply to an appropriate authorising officer
for an emergency authorisation for the use of a surveillance
device. The law enforcement officer must reasonably suspect
that:
- the use of the surveillance device is immediately necessary to
prevent the loss of any evidence relevant to that
investigation
- the circumstances are so serious and the matter is of such
urgency that the use of the surveillance device is warranted,
and
- it is not practicable in the circumstances to apply for a
surveillance device warrant.
Currently, the ability to obtain emergency authorisation for a
surveillance device does not extend to offences under the Migration
Act. Rather, it includes a short list of serious offences under
various Acts[36]
including the following offences under the Criminal Code:
Item 14 extends the ability to obtain emergency
authorisation for a surveillance device to an offence against
section 73.3 of the Criminal Code (Aggravated offence of people smuggling (at least 5
people). Item 15 further extends the ability
to obtain emergency authorisation for a surveillance device to an
offence against proposed sections 233B (Aggravated offence of
people smuggling (exploitation, or danger of death or serious harm
etc.) and 233C (Aggravated offence of people smuggling (at least 5
people)) of the Migration Act.
Item 16 limits the application of this
amendment to investigations that have begun on or after
commencement of this Act.
Item 17 removes certain people smuggling
related offences from the definition of ‘immigration
offence’ in section 5 of the Telecommunications (Interception
and Access) Act, an Act which enables warrants to be issued to
intercept telecommunications. More explicitly, this amendment
removes offences against sections 232A, 233, 233A, and 234 of the
Migration Act for the purposes of the definition. Consequently, the
definition of ‘immigration offence’ will simply be
offences against section 236 (Offences relating to visas).
As the Explanatory Memorandum notes, applying for a
telecommunications interception warrant to investigate offences
listed in subsection 5D(3) is different and arguably more difficult
than applying for a warrant under section 5D(3A) of the Act. This
latter provision is currently used when applying for a warrant to
investigate people smuggling offences under the Criminal Code.
Under subsection 5D(3):
… the agency must not only show that the
conduct constituting the offence is taking place, but must
demonstrate that the offence:
- involves two or more offenders
- involves substantial planning and organisation
- involves, or is of a kind that ordinarily involves, the use of
sophisticated methods and techniques, and
- is committed, or is of a kind that is ordinarily committed, in
conjunction with other offences of a like kind.[37]
Item 18 therefore amends the definition of
‘serious offence’ in subsection 5D(3A) to incorporate
offences against proposed sections 233A, 233B, 233C, 233D,
233E, and 234 of the Migration Act. It
also extends the definition to offences under proposed
73.3A of the Criminal Code. The practical effect of this
will be that ‘a telecommunications interception warrant will
be available for the investigation of the offence without needing
to satisfy the additional criteria set out in subsection 5D(3).
This will simplify the process and ensure consistency between the
similar offences set out in the Migration Act and the Criminal
Code’.[38]
Item 1 expands the definition of
‘security’ in section 4 of the ASIO Act. This
definition is crucial to the functions of the Australian Security
Intelligence Organisation (ASIO) which are set out in section 17 of
the ASIO Act. They include to obtain, correlate and evaluate
intelligence relevant to security and to only communicate such
intelligence for purposes relevant to security.[39] Currently,
‘security’ means the protection of, and of the people
of, the Commonwealth and the several States and Territories from
espionage, sabotage, politically motivated violence, promotion of
communal violence, attacks on Australia’s defence system, or
acts of foreign interference, whether directed from, or committed
within, Australia or not.[40] Proposed paragraph 4(aa) will expand
this definition to include ‘the protection of
Australia’s territorial border integrity from serious
threats’.
The practical effect of this amendment is that ‘ASIO would
be able to communicate intelligence relating to people smuggling
endeavours to agencies such as Australian Customs and Border
Protection Service or law enforcement agencies’.[41]
On 24 February 2010 the Sydney Morning Herald reported
that David McKnight, Associate Professor of Journalism at the
University of New South Wales said that the shift in ASIO’s
responsibilities was ‘quite a significant change. It
highlights a trend that’s pushing ASIO into the investigation
of crimes rather than national security. The tendency is for ASIO
to operate more like a police force’.[42] However, as recently noted by the
Director-General of Security, David Irvine, despite not having an
express power under the ASIO Act to collect intelligence on people
smuggling, the agency does already appear to have the
ability to pass on information relating to people smuggling to
other Commonwealth agencies:
ASIO’s activities must be directed
towards those items which are listed under section 4 of the act,
which are called the heads of security. Border protection and
people smuggling is not one of those, so we do not collect
intelligence at home or overseas in operations specifically
directed against people smuggling. From time to time, and as a
result of our other inquiries on matters under our heads of
security, we come across information that may be relevant to people
smuggling, and under the act we are able to provide that to the
relevant authorities.[43]
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Item 1 amends the definition of the term
‘foreign intelligence’ in subsection 5(1) of the
Telecommunications Interception and Access Act. The current
definition is imported by virtue of the ASIO Act which defines it
as intelligence relating to the capabilities, intentions or
activities of a ‘foreign power’ which in turn is
defined as ‘a foreign government, an entity that is directed
or controlled by a foreign government or governments, or a foreign
political organisation’. The proposed new definition of
‘foreign intelligence’ will mean ‘intelligence
about the capabilities, intentions or activities of people or
organisations outside Australia’.
The practical effect of this amendment is that it will enable
information about foreign individuals or groups (non-state actors)
to be collected when a warrant for a telecommunications
interception device is issued under the Telecommunications
Interception and Access Act.
Items 2 and 3 insert new definitions of the
terms ‘Minister for Defence’ and ‘Minister for
Foreign Affairs’ into subsection 5(1) of the
Telecommunications Interception and Access Act. Item
4 inserts a definition of the term ‘Australia’
to include the external territories into subsection 5(1) of the
Telecommunications Interception and Access Act.
Items 5, 7 and 9 make amendments to paragraphs
11A(1)(b) and subparagraphs 11B(1)(b)(i) and 11C(1)(b)(i)
respectively. Currently, the Attorney-General will only approve the
issuance of a warrant if satisfied that the collection of the
intelligence is important in relation to the defence of the
Commonwealth or to the conduct of the Commonwealth’s
international affairs. These amendments enable a warrant to be
issued where it is in the interests of Australia’s national
security, foreign relations or economic well-being. According to
the Explanatory Memorandum, this amendment ‘recognises the
broader nature of the contemporary threat environment’ and
aligns the conditions for issuing warrants under the
Telecommunications Interception and Access Act with the scope and
functions of intelligence agencies under the Intelligence
Services Act 2001.[44]
Items 5, 6, and 8 make minor amendments to
paragraphs 11A(1)(b) 11B(1)(b) and 11C(1)(b) respectively to
clarify that the Attorney-General will act on advice from the
Minister for Defence and the Minister for Foreign Affairs on the
need to issue a warrant for the collection of foreign
intelligence.
Concluding comments
Since mid-2008 there has been a marked increase in the number of
asylum seekers arriving by boat into Australian territory.[45] With the Christmas
Island detention facilities nearing capacity and two tragic
incidents in 2009, the government is under increasing pressure to
adopt effective measures to address border security and combat
people smuggling. Whether the increase in the number of boats
arriving is due to a ‘softening of border protection’,
as argued by the Coalition, or whether it has been caused by
various ‘push factors’ caused by civil unrest in the
region, both sides of politics appear to converge at the point that
people smuggling is an unacceptable organised criminal activity
that endangers people’s lives.
The Minister’s second reading speech emphasises that this
Bill will ‘bolster the government’s hardline and
comprehensive approach to combating people smuggling’. It
also ‘demonstrates the government’s commitment to
addressing the serious nature of people smuggling
activities’.[46] However, considering that the Bill was not referred to
a parliamentary committee for inquiry and arguably makes rather
minor technical amendments, the Bill is not indicative of a
significant policy change. That is not to say that the Bill does
not contain important amendments—most notably, the creation
of new offences as part of the implementation of the Protocol, the
formal expansion of ASIO’s heads of power and measures to
facilitate the use of investigative tools such as telecommunication
interception. However, as the Minister for Immigration and
Citizenship, Senator Chris Evans recently emphasised, sophisticated
policy responses are needed to effectively end people
smuggling:
…it is not as simple as pretending that
one simplistic notion of a change in domestic policy is going to
end people smuggling in the world. It is just not going to happen
and it has not happened in the past… I think all countries
in the world now understand that international cooperation and
quite sophisticated policy responses are necessary to try and deal
with this problem.[47]
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2759.
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Elibritt Karlsen
11 March 2010
Bills Digest Service
Parliamentary Library
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