Sarah Hanson-Young (SA, Australian Greens) Share this | Hansard source

While all sides of politics can agree that the people-smuggling trade appallingly exploits innocent individuals who are desperate for freedom and desperately fleeing persecution, the Greens do not believe that the Anti-People Smuggling and Other Measures Bill 2010 deals with those issues, as I said in my earlier remarks in this debate. Rather, we have a situation where providing humanitarian assistance to asylum seekers could be criminalised under this bill, particularly as it fails to reflect our obligations under the current international anti-people-smuggling protocol. We are a signatory to that protocol yet its definition is not used in this legislation. The protocol that we are a signatory to specifically states that it does not aim to punish individuals who assist smuggled persons purely for humanitarian reasons. That is the difference between it and this bill.

The fact that the government has failed to commit to a charter of rights, which would enshrine our commitments under international law and provide an avenue for human rights challenges in Australian courts, gives cause for concern with this legislation, particularly when it unintentionally captures innocent individuals simply because it is so poorly drafted and broad, does not include the correct definitions and, therefore, does not fulfil its aim to criminalise genuine people smuggling. The bill does not reflect the issues in relation to people that are helped on humanitarian grounds.

Given 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, I move a second reading amendment on behalf of the Greens:

At the end of the motion, add:

                 and further consideration of the bill be an order of the day for the first sitting day after:

             (a)    the bill has been subjected to inquiry by the Parliamentary Joint Committee on Human Rights, proposed by the government as part of its new Human Rights Framework; and

             (b)    a statement of the bill’s compatibility with Australia’s international obligations has been produced and tabled in the Senate.

The government say that the Parliamentary Joint Committee on Foreign Affairs, Defence and Trade Human Rights Subcommittee is their new measure for moving forward with any legislation that has questions around its compatibility with human rights and international law. Why not let this bill be the first one to go through this committee? If the government are honestly committed to ensuring that individuals’ human rights are not violated and that legislation is not flawed in relation to human rights and civil liberties, then they should let this legislation go through that process. The Greens will not be supporting this legislation going to the next stage until it has moved through that committee and a statement of its compatibility with our international obligations is tabled in the parliament. Why would the government, after announcing that this is their new process and that this is what they are committed to, not take the opportunity to test it out with such an important piece of legislation?

It is clear from various submissions provided to the Senate committee which looked into this legislation—the committee inquiry which was rushed and whose report is one of the poorest I have seen in my short time here in the Senate—that the new offence in the amendments to the Criminal Code Act 1995 and the Migration Act 1958 is too broad and ineffective, particularly in the ambiguous reference to material support, which I spoke about earlier. Not only is this term vague and indeterminate, with concerns about fairness and due process, but it also presents problems with our obligations under international law, including the refugee convention.

Australia is a signatory to the anti-people-smuggling protocol, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, yet all the legal evidence given to the Senate committee inquiry into this legislation raised concerns that it breaches our commitments to them. In particular, article 6 of the protocol against the smuggling of migrants requires states to criminalise specified conduct:

… when committed … in order to obtain, directly or indirectly, a financial or other material benefit …

Yet that has been left out of this piece of legislation. This requirement already exists in the people-smuggling offences under the Criminal Code. Why do we need this definition of material support, which does not offer any more clarity about the types of issues and individuals which this legislation will deal with? Under this bill, the requirement for a profit motive to exist is omitted. So, if a person helped somebody to escape an awful situation where they were fleeing for their life or from persecution, this bill would say that the person helping that individual is a criminal, without even a transfer of money. It simply does not make sense in relation to what the government suggests is the intent of this legislation.

It is obvious that there is strong concern that, if this legislation is passed in its current form, it would criminalise activities of aid organisations, humanitarian workers, charity and church workers and other individuals who assist people across borders for humanitarian reasons. Why is it that the government has not included the international definition of people smuggling? If the government intends to tackle genuine people smugglers, then why is that not clearly defined in this legislation? There is really no argument for not doing so. Of course, that is why this piece of legislation should not proceed until it is further looked at. It is such a poorly drafted, poorly targeted piece of legislation. One of the witnesses, indeed, during the inquiry said that it was the worst piece of legislation she had ever seen, and this was from a quite significant person in the legal profession in Australia. Despite having previously appeared in front of the committee long before the Rudd government were running the country—that is, during the Howard years—she still made the point that this was the worst piece of legislation she had ever seen.

It is clear from 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 in this bill highlights why public consultation and debate are necessary. I strongly urge the Senate to support the second reading amendment put forward by the Greens that suggests that this bill should not proceed until it is further scrutinised and checked off by the new Human Rights Subcommittee so that we can really have an understanding of the impact it will have. (Time expired)