Dissenting Report by Senator Sarah Hanson-Young
Introduction
1.1 The majority report makes a mockery of the senate committee’s ability to scrutinise legislation. Despite the issues
and concerns raised throughout the inquiry process and the recommended amendments put forward, the majority report fails
to appropriately address any of them in their response to the inquiry.
1.2 seeks to strengthen the Government’s anti-people smuggling legislative framework, as well as ensuring that people
smuggling is “comprehensively criminalised in Australian law.” Yet, despite the Attorney-General stating in his second
reading speech that the United Nations Global Trends Report “indicates that people seeking asylum in Australia reflects
a worldwide trend driven by insecurity, persecution and conflict”[1], no where in this Bill are Australia’s obligations
to those seeking our protection under international law recognised.
1.3 Like many in the legal profession, the Greens share serious concerns that this Bill, in its current form, not only
breaches our obligations under international law, but also our obligations under domestic law. We remain very concerned
that this Bill is a direct attack on the refugee communities in Australia, and those that support them. Despite
assurances from the Attorney-General’s Department that innocent individuals will not be caught under this poorly drafted
legislation, the definition of “providing material support”, is such that anyone who is seen to send money over to a
friend or relative in a refugee camp, who may subsequently use that money to pay a people smuggler, could be charged
under this broad definition.
1.4 As outlined by Professor Crock, from the Sydney Centre for International Law:
“This legislation targets refugee communities in Australia who are sending remittances to their families overseas. Every
time they send money across to a relative, if there is a chance that that relative is going to get on a boat at some
stage, they are at risk of being put in jail for 10 years. This legislation will only be seen by the very vulnerable
emergent communities in this country as a direct assault on them—a frontal attack.”[2]
1.5 While all sides of politics can agree that the people smuggling trade is an appalling way to exploit of innocent
individuals who are in a desperate situation, the Greens do not believe that this Bill will act as a deterrent to people
smugglers as the Bill suggests it will do. Rather, we have a situation where providing humanitarian assistance to asylum
seekers could be criminalised under this Bill, particularly as this Bill fails to reflect our obligations under the
Anti-People Smuggling Protocol, which specifically states that it does not aim to punish individuals who assist smuggled
persons for purely humanitarian reasons.
Concerns with the Bill
Supporting the offence of people smuggling
1.6 It is clear from the various submissions provided to the committee, that this new offence that amends both the
Criminal Code Act 1995 and the Migration Act 1958, is too broad and ineffective, particularly the ambiguous reference to
‘material support’. In its submission to the Inquiry, the Faculty of Law at the University of NSW stated that not only
is the term “material support” vague and indeterminate with concerns around fairness and due process concerns, it also
presents problems with our obligations under international law including:
“Australia’s international obligation to act in “good faith”, which requires that Australia not seek to avoid triggering
its obligations under the Refugee Convention by preventing those entitled to protection from reaching Australia;
The Smuggling Protocol, which does not aim to punish individuals who assist smuggled persons for purely humanitarian
reasons;
Article 23 of the International Covenant on Civil and Political Rights (ICCPR), which requires the protection of family
unity by the State; and
The Convention on the Rights of the Child (if the smuggled relative is a child), including article 22(1) which requires
that States ensure that refugee children receive appropriate protection. Incarcerating a parent for providing material
support in order to protect her child from persecution may also violate articles 2(2) (non-discrimination based on
status of parent), 3(1) (legislative bodies must take into account the best interests of the child), and 3(2) (State
must ensure child’s protection and care).”[3]
1.7 This new provision is a clear step away from the accepted definitions in international law concerning supporting
people smuggling.
1.8 In particular, Article 6 of the Protocol Against the Smuggling of People requires States to criminalise specified
conduct where committed ‘in order to obtain, directly or indirectly, a financial or other material benefit’.
1.9 This requirement already exists in the people smuggling offences outlined under the Criminal Code Act 1975 that
requires the accused to either benefit or intend to obtain a benefit from smuggling an individual into Australia. Yet,
under this Bill the requirement of a profit motive to exist is omitted, thus broadening the offence beyond what is
envisaged in international law. As identified by the Sydney Centre for International Law
“under the Protocol, the profit motive underlying people smuggling is essential in identifying what is regarded as
harmful or wrongful about people smuggling: the commercial exploitation of often vulnerable people such as asylum
seekers. In contrast, by dispending with the profit motive, the proposed offence transforms the offence into a more
general prohibition on helping anyone (including refugees or persons rescued at sea) to find safety, even for altruistic
or humanitarian reasons, in circumstances where ‘queues’ abroad do not exist or do not function.” [4]
1.10 It is clear that if this legislation passed in its current form, the amendment would criminalise the activities of
aid organisations, humanitarian workers, charity and church workers and other individuals who assist people across
borders in other countries for humanitarian reasons. If this Bill is to proceed in its current form, this definition
must be consistent with our commitments under the Protocol Against the Smuggling of People.
1.11 Given the level of concern expressed by legal professionals, refugee advocates, academics and individuals about the
new material support provisions, with many identifying the Bill as one of the “worst pieces of legislation”[5] they have
ever had to address before the committee, it is clear that the Government is just trying to ram through the Bill for
their own political agenda.
Offence of people smuggling
1.12 The Greens are concerned with the inclusion of the aggravated offences in this Bill which basically stipulates that
it is an offence to facilitate the entry to Australia of a non-citizen who “had, or has, no lawful right to come to
Australia.”[6] If the purpose of subsection 233A is to encompass the offence of people smuggling ventures that involve
asylum seekers, then it must be amended to reflect Australia’s obligations under the refugee Convention.
1.13 The fact that more than 90% of unauthorised boat arrivals in Australia are found to be genuine refugees[7], it is
clear that if this legislation proceeds, the Government must clarify the provision to ensure that a refugee is not
included as a person who has no legal right to come to this country.
1.14 The Convention Relating to the Status of Refugees clearly states that non-citizens have a lawful right to enter a
country to seek asylum. Under Article 31(3) of the Convention “contracting states shall not impose penalties, on account
of illegal entry or presence, on refugees...provided they present themselves without delay.” Given the current provision
infers that asylum seekers have no lawful right to come to Australia, it is clear that the Bill is contravening our
commitments under international law.
Expansion of ASIO’s jurisdiction
1.15 According to the Explanatory Memorandum the main purpose of expanding ASIO’s jurisdiction is to formally give them
a role in the gathering and sharing of intelligence about people smuggling. The Greens share the concerns of many of the
submissions presented to this inquiry that there is need for clarification of what actually constitutes a “serious
threat” to Australia’s territorial and border integrity.
1.16 Given the Australian Federal Police, Department of Immigration and Citizenship and the Australian Customs and
Border Protection Service already collect, evaluate analyse intelligence relating to people smuggling, there seems to be
no clear indication as to why the resources of ASIO should also be deployed for this purpose.
1.17 Is the Government suggesting that the existing agencies are failing to adequately manage their responsibilities?
1.18 Expanding the role of ASIO with no apparent justification is of serious concern, particularly when the organisation
in question is not subjected to appropriate levels of transparency and public scrutiny. As noted by the Law Council of
Australia
“ASIO’s powers are quite distinct from those of ordinary law enforcement agencies and are subject to less transparent
authorisation and review processes... It would be alarming, if ASIO’s mandate was widened to encompass the gathering and
dissemination of intelligence on anything related to this broader concept of national security.”[8]
1.19 The Greens remain concerned that expanding the role of ASIO beyond its traditional national security mandate, sends
the message that asylum seekers are a threat to Australia’s national security, and subsequently (which may not be the
intention) discriminates against those that arrive by boat versus those that arrive by plane.
1.20 The Attorney-General, in his second reading speech observed that
“conflicts and turmoil in Afghanistan, the Middle East and Sri Lanka are driving a global surge in asylum seekers, with
large numbers of displaced persons seeking resettlement in foreign countries.”[9]
1.21 It is clear that there is no link between asylum seekers arriving in Australia by boat and a threat to Australia’s
national security.
1.22 The Government’s position on the reason why people seeks asylum and the insistence to expand ASIO’s role beyond
national security, with a clear rational explanation is contradictory, and sets a dangerous precedent.
1.23 The Australian Privacy Foundation in their submission highlighted their concerns at expanding ASIO’s powers and
activities, particularly as this would increase “the range of surveillance activity that can be undertaken by the
organisation free from privacy rules and oversight.”[10]
1.24 The Greens, along with Amnesty International are also concerned that the Bill, its accompanying EM, and the
Attorney-General’s second reading speech fails to differentiate between those seeking Australia’s protection and the
people smugglers who actually exploit their desperation. In their submission, Amnesty state that
“the broadening of the security definition solidifies the misunderstanding within sections of the general community that
asylum seekers are not only committing an illegal act but pose a potential security threat.”[11]
Conclusion
1.25 It is clear from all but the Government’s own submissions, that there has not been adequate time to consider this
Bill. The failure of the Government to articulate why it is necessary to introduce the new measures proposed by this
Bill highlights that wider public consultation and debate is necessary before these measures can seriously be
considered.
1.26 The Law Council of Australia articulates this concern in their submission, stating
“it creates the perception that these amendments are about legislative activity for its own sake. That is, it creates
the perception that parliament is enacting new offences lest it been seen to be impotent or inactive in the face of the
problem of people smuggling.”[12]
1.27 Given the strong level of criticism that this Bill has generated, the Greens are seriously concerned at the lack of
consultation with the legal profession about the impact that this legislation will have on civil liberties, as well as
the failure of these proposed new measures to adhere to our commitments under international law.
1.28 The fact the Government has failed to commit to a Charter of Rights, which would enshrine our commitments under
international law and provide an avenue to allow for human rights challenges in Australian courts, gives reason for
concern, particularly when the legislation in question can unintentionally capture innocent individuals.
Recommendation
The Greens recommend that this Bill should not proceed:
• without significant amendments to prevent harm to vulnerable groups and their families, and
• until it has been subjected by the Federal Government’s new parliamentary Joint Committee on Human Rights and a
statement of compatibility with our international obligations is produced.[13]
Senator Sarah Hanson-Young
Greens’ Spokesperson for Immigration
ENDS