Additional Comments by the Australian Democrats
1.1
Whilst I am broadly supportive of the views expressed
by the majority of the Committee, I am concerned about the fairness of applying
strict liability in the circumstances proposed in this Bill. It is also an extremely broad provision
without any safeguards or protection for people who may be asylum seekers. This issue was raised by a number of
submitters in hearings under the predecessor Bill
and I am concerned that these have again been ignored in the current Bill.
1.2
The broad nature of the provision is worrying because
it does not distinguish between the operator of the boat including its crew and
that of potential asylum seekers fleeing persecution. DIMA has specifically refused to address this
issue citing that it will lead to unjustified claims for asylum. DIMA has also specifically stated that the
provisions are not designed to have a disproportionate impact on asylum seekers
citing that the decision to prosecute an individual under these provisions will
be determined on a case by case basis.
This may sound reasonable in theory.
However, since the Committee first considered a similar provision four
years ago, we have had the opportunity to see how fairly the government
administers provisions relating to allegations of people smuggling,
particularly when it involves asylum seekers.
1.3
The facts show that genuine refugees have been
subjected to separation from families and jailing as a direct result of the
approach of the Federal Government.
Commitments given by the government in Parliament that people smuggling
provisions would not affect genuine asylum seekers and refugees and would only
target those who profiteer from people smuggling have been shown to be false.
1.4
An example of this[30]
is the treatment involved in the arrival of 53 Vietnamese asylum seekers who
arrived at Port Headland on 1 July 2003,
aboard the vessel Hao Kiet. The man who
owned and skippered the boat was Mr Van
Tol Tran, a
fisherman from southern Vietnam,
who was accompanied by his wife and two teenage children and the 49 other
asylum seekers. Also on board was Mr
Hao Van Nguyen,
an Australian citizen who was a relative of some of the asylum seekers.
1.5
Mr Nguyen
was charged with people smuggling in a complaint sworn on the 3 July 2003, even though there was no
evidence that he had financially benefited from assisting the asylum seekers to
flee.
1.6
On the 25th
August 2003 charges were bought against Mr
Tran and his relative, Mr
Lai and they were transferred from Christmas
Island to Hakea prison in Western Australia
as a remand prisoner. Mr
Lai was separated from his young son and Mr
Tran from his wife and children. On the 17 March 2004, Tol
Van Tran was convicted of one count of 'facilitating'
the bringing to Australia
of a group of persons pursuant to Section 232A of the Migration Act 1958 ('the
Act'). Mr Tran was subsequently sentenced to the minimum mandatory term of 5
years imprisonment, eligible for parole after 3 years, pursuant to section
233C(2) and (3) of the Act.
1.7
The sentencing comments by the Judge said:
"This group are now caught in the mandatory sentencing
regime put in place to protect Australia
from organised gangs involved in people smuggling for base motives of greed. I
raise these matters because of my belief that this case may be one where the
Commonwealth Executive will need to intervene, relying on the prerogative of
mercy, to alleviate the harshness of the mandatory sentencing regime that I am
required to apply."
"I would have considered imposing a sentence of three years
with the possibility of a suspended sentence because of the time already spent
in custody. I now have to sentence you to five years with a minimum of three
years. (It may be) the mandatory sentence is too severe in all the
circumstances in this case."
1.8
Crown Prosecutor at the original trial: Mr
Hilton Dembo
said:
"The venture was not for profit ie contrary to the spirit
of the second reading speech which indicated that the section was enacted inter
alia to stop those involved in people smuggling for profit"
1.9
After serving part of that sentence at Acacia
prison in Western Australia, Mr
Tran’s conviction was quashed on appeal in
the Perth Supreme Court of Appeals on the 22 March 2005 and a retrial ordered for October 2005 in
the Perth District Court.
1.10
Mr Tran
had a successful bail hearing on the 17
June 2005 and was released into the detention supervision of the
Immigration Department on the 18 June
2005 and reunited with his family.
Mr Tran’s
application was subject to a favourable decision at the Refugee Review Tribunal
in June 2005 and was considered a person to whom Australia
has protection obligations under the Refugees Convention. Mr Tran
and his family were all finally released from detention on Temporary Protection
Visas.
1.11
It is appropriate to note that in the second reading
speech to the Migration Legislation Bill (No.1) which created the penalty for
the offence, commonly known as ‘people smuggling’, provided for in s 232A of
the Migration Act, the then Parliamentary Secretary, Mr Slipper specifically
stressed that[31]:
"...Refugees are not
at risk from these provisions. This is because the refugees Convention to which
Australia is a party, provides that refugees are not to be subjected to
penalties on account of their illegal entry of presence in the country of first
refuge."
"I want to make it
clear that this legislation is primarily aimed at the profiteers from people
trafficking who organise individuals or groups to enter Australia illegally or for a fee"
1.12
There are other cases[32]
where refugee men who arrived on boats seeking asylum were convicted of people
smuggling, and despite being assessed as refugees by Australia, DIMIA put up
the people smuggling convictions as 'character barriers' as an obstacle for the
men being issued with protection visas.
Appeals to the AAT (Administrative Appeals Tribunal) by the refugee men
were successful and the Department's decisions overturned.
1.13
As mentioned above in the Judge's comments in
sentencing Mr Tran,
Section 233C of the Migration Act, now contains mandatory sentencing provisions
which apply in relation to people smuggling offences under Sections 233A and
233B. The mandatory sentencing
provisions were contained in amongst the seven pieces of legislation
guillotined through the Senate on 26th
September, 2001 in the wake of Tampa
incident and on the eve of the 2001 federal election.
1.14
These provisions were not justified at the time, and
became law only due to the heated political climate of the time. Since then, we have the example of Mr
Tran and Mr
Nguyen being charged for offences when
neither were profiteering in any way, and Mr
Tran was clearly a bona fide asylum
seeker. This has shown that mandatory
sentencing provisions can produce patently unjust outcomes.
1.15
The Senate should take the opportunity presented by
this legislation to repeal the mandatory sentencing provisions contained in
Section 233C. For similar reasons, the
Senate should not agree to introducing strict liability
Senator Andrew Bartlett
Australian Democrats
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