Brendan O'Connor (Gorton, Australian Labor Party, Minister for Home Affairs) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

General Introduction

People smuggling trades on falsehoods and on the exploitation of people who seek protection or asylum in this country.

Successive Australian governments have condemned people-smuggling ventures whether organised by individuals or by transnational criminal networks.

People smugglers have no humanitarian motives. Their only motives are profit, and planning and launching ventures without regard for the safety of the children, women and men whose lives they put at risk.

No-one in this parliament will forget the tragic scenes of the vessel known as SIEV221 crashing against the rocky cliffs of Christmas Island on 15 December 2010, resulting in the deaths of at least eight children, 22 adults and many others never recovered from the sea. Nor do we ever forget the sinking of SIEVX some 10 years ago, which claimed the lives of 353 asylum seekers, including 146 children, 142 women and 65 men. These and many other tragedies resulting from people-smuggling ventures should have never occurred.

The effective prosecution of people involved in organising and facilitating these inherently dangerous voyages sends a clear message that the Australian parliament does not tolerate people smuggling.

While we work with our regional partners, the UNHCR and other organisations to bring refugees to Australia through appropriate channels, we must ensure people smuggling operations that bring people to Australia continue to be effectively criminalised.

The purpose of this bill is to give clarity to the laws that have criminalised people smuggling and aggravated people-smuggling offences for more than a decade. This bill does not affect the rights of people seeking protection or asylum in Australia.

People smuggling offences contribute to Australia's implementation of its obligations to criminalise people smuggling under the Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the United Nations Convention on Transnational Organised Crime.

Clarification of the phrase 'no lawful right to come to Australia '

The purpose of this bill is to make it clear that the phrase 'no lawful right to come to Australia' refers to requirements under Australia's domestic law that people must have a visa that is in effect to lawfully come to Australia, or fall within one of the limited exceptions to that rule outlined by the Migration Act. For example a New Zealand citizen with a valid passport is exempt from requiring a visa to come here.

This is the way the provisions have been consistently interpreted since their introduction in 1999. Amendments to the Migration Act in 1999 made it an offence to organise or facilitate a group of five or more persons coming to Australia if those persons did not have a lawful right to come to Australia.

No impact on the rights of asylum seekers

The amendments expressly clarify the operation of people-smuggling offences in the Migration Act.

The offences deal with the serious crimes of people smuggling and aggravated people smuggling, and do not affect the treatment of individuals seeking protection or asylum in Australia. As such, the amendments are consistent with Australia's obligations under international law and do not affect the rights of individuals seeking protection or asylum, or Australia's obligations in respect of those persons. This is confirmed by advice provided to the government by the Attorney-General's Department.

Retrospective application

This bill does not alter any of the elements of the existing people-smuggling offences in the Migration Act. The amendments would apply retrospectively from December 1999 when the words 'lawful right to come to Australia' were first inserted into the people smuggling offences in the Migration Act. Retrospective application is necessary to avoid uncertainty about the validity of previous convictions and to maintain current prosecutions.

The effect of the retrospective application is to clarify an existing understanding of the laws, and to ensure convictions for people smuggling offences already made as well as prosecutions underway are not invalidated.

There are exceptional circumstances that justify retrospectivity for this bill. Those circumstances are that it would not be appropriate to risk a significant number of prosecutions being overturned as a result of a previously unidentified argument in relation to the words 'no lawful right to come to Australia'.

Conclusion

This measure is critical to ensure Australia's laws criminalising people smuggling are clear and effective and reflect the parliament's intention when the laws were put in place. I commend this bill to the House.

Leave granted for second reading debate to continue immediately.

Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share this | Link to this | Hansard source

The views of those on this side of the House in relation to border protection are very well known. It is vitally important that the Australian government adopt and run a coherent and effective border protection policy. It must be the Australian government who has control over who comes to Australia. Failure to enforce a robust system of border protection has enormous negative consequences for our nation.

As I make these comments, I am mindful that I do so in the wake of reports that another vessel attempting this dangerous journey to Australia has sunk and there have been reports of loss of life. It also comes on top of the tragedy we saw in December last year, when the SIEV221 crashed at Christmas island, again with the loss of many lives. That brought home to Australians, in the most graphic way, the perils that are involved in making this journey illegally from Indonesia or other parts to Australia. We also know that it is highly likely that several, if not many, other vessels over the years have left Indonesia and never been seen or heard from again. Presumably those on board have been lost at sea.

Let there be no doubt in people's minds that the blame for these tragedies—the losses of life involved in this illegal journey from Indonesia to Australia—lies at the feet of the criminal syndicates of people smugglers who participate in this evil and insidious trade. People smugglers, contrary to what some in the community might believe, are not modern-day versions of humanitarians smuggling marginalised people to safety. Only the deluded would hold this view. People smugglers are sophisticated criminals who run a criminal business for enormous profit at the expense of the poor souls who have to pay to come to Australia in this way. We as a parliament must do everything we can to make sure that we close this business down. Obviously, as anyone who has followed this debate would know, how to achieve that remains the subject of some controversy between the opposition and the government. In light of the events that I outlined earlier, I do not intend to go through all of this today; but I do reiterate that this parliament must be resolute in tackling people smuggling, and until this resolve is shown the trade will be able to continue to flourish.

The bill before the parliament today, the Deterring People Smuggling Bill 2011, which we are dealing with in some urgency, does exactly that. It will ensure that the intent of the migration legislation that was amended by the Howard government in 1999 is made crystal clear in relation to the meaning of the words 'no lawful right to come to Australia'. As the minister stated when he introduced the bill, this will in no way infringe on the rights of people seeking Australia's protection from persecution within their homeland. Neither will it in any way alter Australia's international obligations in relation to these people.

The Howard government amended the Migration Act in 1999 to deal with people-smuggling offences, and in particular to make it an offence for a person to organise or facilitate the bringing to Australia of another person if that other person had no lawful right to come to Australia. The construction of the words 'no lawful right to come to Australia' is presently the subject of a question of law reserved to the Court of Appeal of Victoria, and this matter will be heard later on in November. Appeals along similar lines have been lodged in other jurisdictions.

This bill is intended to clarify that 'no lawful right to come to Australia' means that at the relevant time the non-citizen does not hold a visa to that effect, whether or not Australia may have any protection obligations under the refugee convention or for any other reason. To ensure that previous convictions remain valid, the clarification is to be applied retrospectively to 16 December 1999. As I said, the amendments affect neither the rights of individuals seeking protection or asylum nor Australia's obligations in respect of those persons.

The parliament is dealing with this bill with some urgency. It is clearly important that the law be clarified so that everybody in the community understands the intent of this parliament in relation to what it means to have no lawful right to come to this country. I appreciate that both the shadow Attorney-General, Senator George Brandis, and I were briefed by the Attorney-General and the Minister for Home Affairs on this matter recently. It might have been preferable if we had had a little more notice of this bill being brought on today, but, regardless of that, the opposition does support it.

Chris Hayes (Fowler, Australian Labor Party) Share this | Link to this | Hansard source

I too support the Deterring People Smuggling Bill 2011, and I know the urgency that underpins this matter. I welcome the support of those opposite. My support is obviously committed to the bill, but I will put it in a more personal sense. As you are aware, Mr Deputy Speaker, I have the honour of representing the most multicultural electorate in the country. Many of the people who came to my electorate from overseas came here in 1975 after the fall of Saigon. They came by boat, so they were boat people. One of the things I do know from talking to them is the number of people they lost at sea. The issue of deterring people smugglers from plying their trade in boats to this country boats is well understood in my electorate.

After the fall of Saigon in 1975, the Vietnamese came to Australia. After the massacres that occurred in Cambodia in 1989 under the regime of Pol Pot we saw another wave of refugees trying to get to Australia. I have attended many Vietnamese functions where they pray to the Virgin Mary. They adopted her as a patron saint because so many people were lost at sea.

I have talked to the Australian Federal Police, the minister and border control people and they say it is estimated that in excess of five per cent of those who travel with people smugglers in these leaky vessels, mainly exiting Indonesia, perish at sea. Both the minister and the shadow minister referred to the tragic disaster that occurred on Christmas Island last December. Tragically, somewhere in the vicinity of 30 men, women and children were lost. Ten years ago 353 people were killed in a dreadful occurrence on Ashmore Reef. It is suspected that more recently another vessel was lost at sea off the coast of Indonesia, which occasioned further loss of life.

When we talk about people-smuggling, we are not talking about some effort to help people venture to another country with a view to have them claim asylum. We are talking about people who take money to ply their trade in simply transporting people. At the moment every boat that leaves Indonesia represents $1 million profit, whether or not it gets to Australian shores. For people smugglers, that is their profit after they have taken out the resources they have committed to the vessel and to organising the trip. People are so desperate that they go to people such as these, smugglers who are so ready and so hungry to take their money. The smugglers do not care all that much whether or not that vessel gets here. They give someone a compass, tell them where to go and, as a matter of fact, they even predial the mobile phone for them so they know that when they have gone a certain distance they can ring and, if things go right for them, they will get picked up. That is the level of care of the people involved in people-smuggling.

I am glad Minister McClelland is sitting at the table. I have nothing but the praise for the Australian Federal Police. I have spent time with them in Indonesia. I have seen what they are doing to combat the challenge of people-smuggling and the efforts they are putting in with the Indonesian National Police and the policing authorities over there. There are almost 17,000 islands in the Indonesian archipelago where people can set sail for Australia. That requires a lot of effort in detection and investigation and the Australian Federal Police are doing very good work with the Indonesian National Police in that respect. I also commend the Indonesian government for the various changes they have made to their domestic laws in people-smuggling and the efforts they are putting in to eradicate this illicit activity from their shores.

As the minister indicated, this Deterring People Smuggling Bill 2011 amends the Migration Act 1958 to clarify the words 'no lawful right to come to Australia' in the people-smuggling offences in subdivision A of division 12 in part 2. This is a clarification. It puts beyond any doubt what the intention is and the understanding that underpins those words in the act. This is probably simply saying all the various things that most people out there in the community genuinely believe. We know that people-smuggling is a vile activity. We know these are people who are prepared to place the lives of innocent men, women and children at the mercy of the seas simply to make a fast buck. This is a heinous crime and there are people out there who are doing everything in their power to take advantage of that, taking advantage of the desperation of those who see no other way of moving about.

Unless they have a visa, this bill will make it an offence to transport people to this country. This puts beyond doubt what I am sure the average person in the street thinks is very much the law as it stands. The bill will make clear the words 'no lawful right to come to Australia' refer to requirements under Australia's domestic law and not to any obligation under international law which may claim to exist. The bill also makes it clear that this requirement applies whether or not the person travels into Australia's migration zone as part of a people-smuggling venture.

The bill is intended to have retrospective application from the commencement of people-smuggling offences in 1999 and will ensure that the validity of past, present and future people-smuggling convictions stand. On behalf of the people I represent in my electorate, many of whom are refugees, many of whom came to this country on boats and many of whom lost relatives and friends in all those ventures, I welcome this bill in putting an end to the people-smuggling trade. It is something we have a vested interest in, not only to protect our shores but also to do the right thing for humanity. I commend the bill to the House.

Scott Morrison (Cook, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

People smugglers are criminals. They should be tried as criminals in our courts, and there should be no doubt that if they are found to have been engaged in the act of people smuggling they should be convicted as criminals and face harsh penalties. In this parliament there has been disagreement about some matters. In this matter, there is agreement.

It is people smugglers who are responsible for deaths at sea. It is people smugglers who are responsible for their own crimes. We in this place must do all we can to ensure we have policies that address these matters. But let us not misunderstand one thing about who the criminals are: they are the people smugglers. Their actions seek to exploit vulnerable people for their own profit, as speakers on both sides of the House have said. Their victims are put at great risk, and too often we see the results of that risk.

As the minister at the table mentioned earlier, this afternoon we have, sadly, heard further reports of another tragedy to our north, off the coast of Indonesia. We will await further details. I am sure the government is waiting on briefings as well, and we appreciate the information we have received from the government on this matter. It comes as another vessel has been intercepted today, which adds to those that have come before.

The Deterring People Smuggling Bill 2011 is a matter of agreement between the government and the opposition. It is also a matter of urgency. No-one in this place wants to see those who have been involved in these criminal acts being allowed to slip through the net, because, where they have been detained and prosecuted, we wish to see a conviction. The bill seeks to provide clarity, retrospectively, that a person has no lawful right to come to Australia if, at the relevant time, the non-citizen does not hold a visa—that is, in effect, whether or not Australia may have protection obligations under the refugee convention or for any other reason.

This clarification is made necessary by a series of appeals arguing that it is not unlawful to enter Australia for a reason under the refugee convention. Courts may have their opinions on these things; but what the parliament is saying here today is that this parliament has an opinion about these matters, and we are making it crystal clear what constitutes this unlawful act.

Article 31 of the refugee convention is informative. It is titled 'Refugees unlawfully in the country of refuge' and it states in its first part:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

It is not illegal to seek asylum; it is illegal to enter Australia without a valid visa, and we have different rules and systems for dealing with those who would seek to enter Australia illegally, regardless of what subsequent claim they may make, lawful or otherwise. The mode of their entry is relevant, and we have had for some time now separate systems for dealing with offshore entry persons. But in making that point I return to the original point, and that is that those who facilitated that unlawful entry—those who have facilitated that illegal act—need to be held to account by our own laws.

So tonight we are pleased to support the government in ensuring the speedy passage of this bill through this House. We will continue to hold strong views about the matters that we have had some disagreement upon. We hold those strong views because of our very long-held belief that a system that ensures that we deter illegal entry to the country will produce a result where lives are not lost at sea and where the immigration program—of which we are all proud—is enabled to have integrity and where the 13,750 places that are available under the refugee and humanitarian program are given to people whom we believe are in greatest need and whom we are in the best position to assist. That is what we want to see as a result of this program. That is why we are pleased to stand with the government today and support the bill before the House.

To conclude my remarks, I note, on behalf of the coalition, that the reports that we have heard from Indonesia are of great concern. We send our thoughts to those who are directly affected. We thank in advance the Indonesian authorities for what will be their cooperation in seeking to understand what has occurred here. We thank the government for the reports that they have already provided to us, and we await further news. I fear that that news will not be good, and, as we hear that news, I think it is important for us all to remember who the criminals are in this situation: the people smugglers.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Here we have another instance of Labor and the coalition working together to diminish the legitimate rights of people coming to this country to seek asylum. It is another attempt to avoid an inconvenient truth which keeps recurring because we signed up to international conventions which recognise that people have a lawful right to come to this country. That truth, until we face it squarely, is going to continue to be inconvenient for the government and the opposition because they will continue to do all they can to bring to bear some of the most harsh and punitive measures that can be found against some of the people in this world who need our protection the most.

I will go into the detail of the Deterring People Smuggling and Other Measures Bill 2011 shortly. But—regardless of what your position is on the question of migration and on the question of the appropriate laws that should be in place—this bill ought to be of great concern to anyone who values the basic principles of the rule of law, because what this is really about is a case that is due to be held in Victoria's Court of Appeal in two days time. That case is the case of a 20-year-old Indonesian fisherman who is intending to say to the court, according to the reports, that he is not a people smuggler but an impoverished young Indonesian person who found himself working to earn a very small amount of money by working on a boat. He says that he was caught up in this, according to the media reports. And on 3 November the court was going to act independently, apply the rule of law, look at the questions of fact and of law, and decide whether or not that was the case and that person had a valid defence under Australian law—and that is, Australian law as it stood at the time he was alleged to have committed the offence.

Because this case is coming up, we now have this bill being rammed through without any proper scrutiny. I note that, had this bill being introduced before five o'clock tonight, we would have had the opportunity at the Selection Committee to refer it to an inquiry. It is no coincidence that the government waits until that is over, comes along here and says: 'Right, we've got the agreement with the coalition and we're going to ram this through without any due scrutiny. Let's get this through parliament in the evening.' It was not even on today's daily program.

The fact that there is no scrutiny is bad enough, but violating the principle of retrospectivity to shore up a bad Howard law is even worse. What we have here is a law that will apply back to 1999. If you were concerned about the rule of law in this country you would think that if you were going to remove legitimate rights that people may have had going back to 1999 you would put it up in lights and you would allow time for proper debate and proper scrutiny, not go through the process that we are seeing here now.

What makes it additionally objectionable is that this bill is linked with mandatory sentencing provisions that will require judges to impose minimum mandatory sentences of five years imprisonment, with three years nonparole. In effect, what this parliament will be saying is that we cannot trust the courts to decide when someone is what might be termed a big organiser of people smuggling and when someone else has just been caught up in it, perhaps with as little volition as some of the people who are getting on the boats. I think most people would agree that there is a big distinction between a high-level people smuggler—if we use that term for the moment, as the government has—who might have a sophisticated operation that potentially trades in misery and a 16- or 17- or 18- or 19- or 20-year-old who has found themselves working on a boat to earn a couple of bucks. If the government were concerned about really addressing the people who are at the top then they would craft a law that deals with that—but that is not what is being done here.

The Human Rights Law Centre made it clear that, of the 353 people currently charged with people smuggling, only six are people who actually organised the boats. The rest are people who operated or were crew on those boats. So this is not a bill that is aimed at the supposed kingpins. This is a bill that will catch everyone in its wake. And this is a bill that is reacting to the fact that the court of appeal might well have decided in a couple of days that, yes, this person does not deserve to be punished. So, in their desire to be tough, what do the government do? They cosy up to the coalition and say, 'Let's take away people's rights retrospectively, let's do it quickly, and let's extend mandatory sentencing; let's presume we can't trust the courts to make this kind of decision themselves, let's avoid scrutiny and let's make the 95 per cent of people pay for the five per cent who might be the genuine high-level organisers'—the ones the government are, apparently, so concerned about.

If we really wanted to address the problem the government are identifying, we would need a bill that gives the judiciary the ability to determine, on a case-by-case basis, whether or not the person being charged is someone who is a high-level organiser who, in the government's words, trades in misery. And we would give the courts the discretion to determine whether or not the person should then be sentenced or whether there were any extenuating circumstances. But that is not what this bill does. This bill is a knee-jerk reaction to an upcoming court case because the government are terrified that the court may in fact say, 'Yes, some people do have a legitimate right to come to Australia, and, no, if you find yourself as a 17- or a 20-year-old Indonesian fishermen caught up within it we are not going to mandatorily sentence you to five years.'

If we are serious about avoiding deaths that occur when people take their lives into their own hands and embark on perilous journeys—and I believe everyone in this chamber would agree that we want fewer people dying at sea and we want to take steps to make that happen—there are a number of things we could do. We could have a long-term, practical, humane and compassionate policy towards refugees, like this country used to have. We could say that we will increase our humanitarian intake. We could say we will play a broader role in our region—in Indonesia, Malaysia and all the countries in the region—to resettle more people who have come from those countries so that they do not need to embark on a perilous journey. We could start by putting more staff in those countries to process the claims. There are many people in those countries who have been found to be refugees and who have been languished in camps or elsewhere for years at a time because there are not adequate staff to process them. They are then forced into a position where sometimes they do take their lives into their own hands. If we really wanted to do something about stopping the tragic deaths that occur when people jump on a boat to come here, we could start by doing that and by putting protection of people at the centre of a framework for a regional approach, not continuing with this knee-jerk approach that says, 'We will break the people smugglers' business model,' if by that we mean that a 20-year-old Indonesian fishermen deserves to spend several years in prison. Every time we get close to having a rational and humane debate in this country about how to deal with the difficult global problem of people fleeing war and persecution, it seems to be the case of one step forward and two steps back. We had the instance of the High Court telling us what we should have already known—that is, it is unlawful to expel people from Australia to another country where we do not know how they will be treated. We had the opportunity to ask if Australia could be different. In Australia in the 1970s, for instance, we had an agreed approach that said, 'We will take in some of the world's most vulnerable people and resettle them and their families and we will stop them coming on boats by embarking on a regional resettlement program.' We did that then and it was successful. There are many people in this country who long for us to have that kind of debate again. There are really tough questions that need to be asked about how we deal with people who are potentially risking their lives to get here. How do we discuss these issues with humanity, compassion and with an eye to a practical outcome instead of knee-jerk reactions that engage in a race to the bottom?

I will not be supporting this bill. If this bill is so important, we would have seen it coming on the daily program for some time, we would be having proper committee inquiries and it would not be rushed through two days before the Victorian Court of Appeal is due to determine a matter. This is not a bill that is part of some longstanding grand plan to deal with the big question of refugee movement. It is a bill designed specifically to scuttle a court case that is coming in a couple of days and other cases that might follow it. In the process of doing that the government seems prepared not only to trash the principle of retrospectivity but also to uphold a bad John Howard law. Many people will wake up tomorrow, read the newspapers about what has happened this evening and shake their heads and wonder what is the future of debate about asylum seekers and refugees in this country.

Robert Oakeshott (Lyne, Independent) Share this | Link to this | Hansard source

I rise to express strong faith in the Solicitor-General and in the minister's intent in this legislation, but in defence of parliamentary process I raise the issue of this legislation being introduced at 6.15 tonight with an expectation that it will be voted on less than one hour after its introduction. Why? Because suddenly we seem to have agreement between the two major parties—one in particular which in the recent past has been campaigning on the so-called 'death of democracy', but which, when it is convenient, is happy to be a party to ramming through legislation at record speed. I have done my best to get my head around the legislation in the short time I have had to look at it, including talking to the minister at the table, Minister O'Connor, and I take on faith the reasons given for the speedy progress of this legislation.

It is based on one particular case before the Victorian Court of Appeal. In the short time available I have been trying to find the case, using AustLII and other methods. At best I came up with a definition of 'payara'. One small irony is that it is also a vampire fish; comedians could probably have some fun with that, given the abuse of process. This is an exercise of taking the major parties on faith in trying to beat the court. This parliament should not be a place of trying to beat the court in decisions that may be taken at some point in the future. This particular case, I gather, is going to be heard in the Victorian Court of Appeal on Thursday. It beggars belief that government and the minister only became aware today that this issue was before the court on Thursday and so this bill is being presented to the House tonight. Surely, knowing the timing of courts generally and knowing that this matter has been listed with the Victorian Court of Appeal for some time, an appropriate time frame for consideration of any relevant legislation, even if we are trying to 'beat' the court, could have been decided during the last month or two and presented to all members of parliament. It is incredibly unfortunate—in fact it is an abuse of the parliamentary process—that we are being asked to break normal conventions of the consideration of legislation, effectively based on a phone call today to say this legislation is important, urgent and on sound advice from the Solicitor-General. It further validates concerns I have about migration policy from both sides of this chamber; the emphasis seems to be more on crisis management than on developing long-term sustainable strategies for the future direction of this country. This is the latest bad example of bad policy, policy on the run, from governments forever in crisis mode on migration policy and immigration policy. It is disappointing that Australia has found itself in the situation where policy seems to be driven by crisis and political outcomes rather than by national interest outcomes.

The bill sitting on the table is another example of a bill crafted largely around crisis management and for political reasons—much like the Malaysia offshore processing bill. It has been an exercise that both major parties should be condemned for, (a) for the inability to focus on national interest rather than on political interest, and (b) for failure to reach any version of consensus or any sensible or sustainable result. That bill is still sitting on the table and, therefore, we have question marks galore in the area of migration policy regarding onshore/offshore 'assessment'—rather than 'processing'. We also have question marks about the implications, for example, for the budget, in regard to community based detention and onshore assessment as a consequence of policy failure.

I was very keen to move amendments in and around international work that Australia has taken the lead in, across party lines, which stands in stark comparison to the domestic debate. That international work is around the Bali process started in 2002 by Alexander Downer, continued now by Chris Bowen and involving 43 countries of the Asia-Pacific region—Malaysia and Nauru and all the other countries whose names are mentioned in this divisive domestic debate and internationally. Australia should be proud to be an example of a country that wants to lead in the area of fighting people smuggling, people trafficking and related transnational crime. There is a framework that has been developed over nine years that could be the framework for domestic policy as well in the areas of assessment, asylum seekers and detention, people smugglers, people trafficking and the various related transnational crimes.

Quite proudly, Australia leads internationally within the Asia-Pacific region, is forward looking, does look to the long-term sustainable regional interests in trying to frame policy but, unfortunately, as soon as we get into a domestic environment, it is crisis management, political division and legislation in a rush. What we are seeing here again tonight is an example of that.

So all the intent and all the reasons behind it may be valid—I would accept the advice of the Solicitor-General if I actually had time to see it—but I am relying on the good faith of the minister and his office. It is pretty hard to accept an argument that this only turned up today with the court of appeal making some considerations on Thursday.

I urge this minister, the Minister for Immigration and Citizenship, the executive generally and government backbenchers—and hopefully one day soon with the support of a national interest test of the parliament rather than various political parties—to engage in a sensible debate and discussion and a reframing of issues broadly in regard to immigration and migration, particularly in consideration of the good work we are doing with 43 other countries that could potentially help reframe the domestic argument.

I will spend some more time now going through the notes before me, considering whether the verbal advice of the Solicitor-General outweighs the complete abuse of parliamentary process. It is pretty disappointing once again that we see crisis management win the day on immigration and migration policy.

Brendan O'Connor (Gorton, Australian Labor Party, Minister for Home Affairs) Share this | Link to this | Hansard source

Firstly, I thank the members for Fowler, Stirling, Cook, Melbourne and Lyne for their contributions in this debate. I thank the opposition for their support for this important bill. In relation to the contributions from the member for Melbourne and the member for Lyne, I would not agree with all of the comments they made—indeed, I have to disagree with some of the comments made by the member for Melbourne and I need to go to some of those.

Firstly, in relation to consultation: yes, this bill is being dealt with urgently, but there has been significant consultation with the Greens, the opposition and, more recently, with Independent members in relation to the importance of this bill and the importance of clarifying people-smuggling laws as they have been in place since 1999. I can confirm that we have been in consultation with the Greens spokesperson on this matter since early last week. We provided early copies of all documents that pertain to this matter for their consideration. Indeed, as the member for Stirling, the shadow minister for justice, said in his contribution last Monday—we also consulted with the shadow Attorney-General and have therefore had some extensive consultations on this matter. It is an urgent matter and it needs to be dealt with. I will not be making reference to court matters. I do not think that is proper in the circumstances. I will say, however, that the government is resolute about ensuring we have effective people-smuggling offences and, indeed, that we clarify these matters so there is no question whatsoever about the intent of the parliament in 1999 when the original bill was enacted.

In relation to retrospectivity I have to, with respect, disagree with the member for Melbourne. This is not a trashing of the principles of retrospectivity. Not one material change to any element of any offence in the Migration Act will occur as a result of this bill. This is not about changing the nature of offences retrospectively; this is about clarifying the offences as they have been prescribed in the legislation since 1999. For that reason and also because of whatever consequences may flow without having that retrospective provision, the government believes it is necessary to have that provision. I think it is entirely reasonable and proper that we do so.

In relation to people-smuggling offences, again I have to disagree, with respect, with the member for Melbourne. He indicated that this deals only with crews of vessels. The people-smuggling offences in the Migration Act go to not only crews but organisers of these ventures. This is about a range of offences that are committed under the heading 'people smuggling'. I also want to make it very clear that this is not domestic law that has sprung from nowhere; these are domestic laws that were enacted 12 years ago that relied upon the international convention that we are a signatory to in relation to transnational crime—that is, the human-trafficking and people-smuggling convention. These matters are entirely justifiable. They have been in place for some period. As I said, we do no more by passing this bill than clarify the offences that have existed for that time.

I finally want to say, because this is very important, that this will in no way have any adverse consequences for people who are seeking protection or asylum in this country pursuant to our obligations under the refugee convention. We have very solid and sound advice in relation to that matter. For that reason, for the reasons I outlined earlier and for the reasons that have been outlined in some of the contributions made in this place in this debate, I commend the bill to the House.

Question agreed to.

Bill read a second time.