ANTI-PEOPLE SMUGGLING AND OTHER MEASURES BILL 2010
This is a Bill, not an Act. For current law, see the Acts databases.
ANTI-PEOPLE SMUGGLING AND OTHER MEASURES BILL 2010
2008-2009-2010
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Anti-People Smuggling and Other
Measures Bill 2010
No. , 2010
(Attorney-General)
A Bill for an Act to combat people smuggling, and
for other purposes
i Anti-People Smuggling and Other Measures Bill 2010 No. , 2010
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
1
Schedule 1--Amendments relating to people smuggling
3
Part 1--Main amendments
3
Criminal Code Act 1995
3
Migration Act 1958
4
Part 2--Consequential amendments
12
Migration Act 1958
12
Proceeds of Crime Act 2002
12
Surveillance Devices Act 2004
12
Telecommunications (Interception and Access) Act 1979
13
Schedule 2--Amendment of the Australian Security
Intelligence Organisation Act 1979
14
Schedule 3--Amendment of the Telecommunications
(Interception and Access) Act 1979
15
Anti-People Smuggling and Other Measures Bill 2010 No. , 2010 1
A Bill for an Act to combat people smuggling, and
1
for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Anti-People Smuggling and Other
5
Measures Act 2010.
6
2 Commencement
7
This Act commences on the day after this Act receives the Royal
8
Assent.
9
3 Schedule(s)
10
Each Act that is specified in a Schedule to this Act is amended or
11
repealed as set out in the applicable items in the Schedule
12
2 Anti-People Smuggling and Other Measures Bill 2010 No. , 2010
concerned, and any other item in a Schedule to this Act has effect
1
according to its terms.
2
3
Amendments relating to people smuggling Schedule 1
Main amendments Part 1
Anti-People Smuggling and Other Measures Bill 2010 No. , 2010 3
Schedule 1--Amendments relating to people
1
smuggling
2
Part 1--Main amendments
3
Criminal Code Act 1995
4
1 Paragraph 73.1(1)(c) of the Criminal Code
5
Omit "and".
6
2 Paragraph 73.1(1)(d) of the Criminal Code
7
Repeal the paragraph.
8
3 Subsection 73.2(1) of the Criminal Code
9
Repeal the subsection, substitute:
10
(1) A person (the first person) commits an offence against this section
11
if the first person commits the offence of people smuggling (the
12
underlying offence) in relation to another person (the victim) and
13
any of the following applies:
14
(a) the first person commits the underlying offence intending
15
that the victim will be exploited after entry into the foreign
16
country (whether by the first person or another);
17
(b) in committing the underlying offence, the first person
18
subjects the victim to cruel, inhuman or degrading treatment;
19
(c) in committing the underlying offence:
20
(i) the first person's conduct gives rise to a danger of death
21
or serious harm to the victim; and
22
(ii) the first person is reckless as to the danger of death or
23
serious harm to the victim that arises from the conduct.
24
Penalty: Imprisonment for 20 years or 2,000 penalty units, or
25
both.
26
(2) There is no fault element for the physical element of conduct
27
described in subsection (1), that the first person commits the
28
underlying offence, other than the fault elements (however
29
described), if any, for the underlying offence.
30
Schedule 1 Amendments relating to people smuggling
Part 1 Main amendments
4 Anti-People Smuggling and Other Measures Bill 2010 No. , 2010
(2A) To avoid doubt, the first person may be convicted of an offence
1
against this section even if the first person has not been convicted
2
of the underlying offence.
3
Note:
The heading to section 73.2 is replaced by the heading "Aggravated offence of people
4
smuggling (exploitation, or danger of death or serious harm etc.)".
5
4 Paragraph 73.3(1)(c) of the Criminal Code
6
Omit "and".
7
5 Paragraph 73.3(1)(d) of the Criminal Code
8
Repeal the paragraph.
9
6 After section 73.3 of the Criminal Code
10
Insert:
11
73.3A Supporting the offence of people smuggling
12
(1) A person (the first person) commits an offence if:
13
(a) the first person provides material support or resources to
14
another person or an organisation (the receiver); and
15
(b) the support or resources aids the receiver, or a person or
16
organisation other than the receiver, to engage in conduct
17
constituting the offence of people smuggling.
18
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
19
both.
20
(2) Subsection (1) does not apply if the conduct constituting the
21
offence of people smuggling relates, or would relate, to:
22
(a) the first person; or
23
(b) a group of persons that includes the first person.
24
(3) To avoid doubt, the first person commits an offence against
25
subsection (1) even if the offence of people smuggling is not
26
committed.
27
Migration Act 1958
28
7 Subdivision A of Division 12 of Part 2 (heading)
29
Repeal the heading, substitute:
30
Amendments relating to people smuggling Schedule 1
Main amendments Part 1
Anti-People Smuggling and Other Measures Bill 2010 No. , 2010 5
Subdivision A--People smuggling and related offences
1
8 Sections 232A to 233C
2
Repeal the sections, substitute:
3
233A Offence of people smuggling
4
(1) A person (the first person) commits an offence if:
5
(a) the first person organises or facilitates the bringing or coming
6
to Australia, or the entry or proposed entry into Australia, of
7
another person (the second person); and
8
(b) the second person is a non-citizen; and
9
(c) the second person had, or has, no lawful right to come to
10
Australia.
11
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
12
both.
13
(2) Absolute liability applies to paragraph (1)(b).
14
Note:
For absolute liability, see section 6.2 of the Criminal Code.
15
(3) For the purposes of this Act, an offence against subsection (1) is to
16
be known as the offence of people smuggling.
17
233B Aggravated offence of people smuggling (exploitation, or
18
danger of death or serious harm etc.)
19
(1) A person (the first person) commits an offence against this section
20
if the first person commits the offence of people smuggling (the
21
underlying offence) in relation to another person (the victim) and
22
any of the following applies:
23
(a) the first person commits the underlying offence intending
24
that the victim will be exploited after entry into Australia
25
(whether by the first person or another);
26
(b) in committing the underlying offence, the first person
27
subjects the victim to cruel, inhuman or degrading treatment
28
(within the ordinary meaning of that expression);
29
(c) in committing the underlying offence:
30
(i) the first person's conduct gives rise to a danger of death
31
or serious harm to the victim; and
32
Schedule 1 Amendments relating to people smuggling
Part 1 Main amendments
6 Anti-People Smuggling and Other Measures Bill 2010 No. , 2010
(ii) the first person is reckless as to the danger of death or
1
serious harm to the victim that arises from the conduct.
2
Penalty: Imprisonment for 20 years or 2,000 penalty units, or
3
both.
4
Note:
Sections 236A and 236B limit conviction and sentencing options for
5
offences against this section.
6
(2) There is no fault element for the physical element of conduct
7
described in subsection (1), that the first person commits the
8
underlying offence, other than the fault elements (however
9
described), if any, for the underlying offence.
10
(3) To avoid doubt, the first person may be convicted of an offence
11
against this section even if the first person has not been convicted
12
of the underlying offence.
13
(4) In this section:
14
exploit has the same meaning as in the Criminal Code.
15
forced labour has the same meaning as in section 73.2 of the
16
Criminal Code.
17
serious harm has the same meaning as in the Criminal Code.
18
sexual servitude has the meaning given by section 270.4 of the
19
Criminal Code.
20
slavery has the meaning given by section 270.1 of the Criminal
21
Code.
22
233C Aggravated offence of people smuggling (at least 5 people)
23
(1) A person (the first person) commits an offence if:
24
(a) the first person organises or facilitates the bringing or coming
25
to Australia, or the entry or proposed entry into Australia, of
26
a group of at least 5 persons (the other persons); and
27
(b) at least 5 of the other persons are non-citizens; and
28
(c) the persons referred to in paragraph (b) who are non-citizens
29
had, or have, no lawful right to come to Australia.
30
Penalty: Imprisonment for 20 years or 2,000 penalty units, or
31
both.
32
Amendments relating to people smuggling Schedule 1
Main amendments Part 1
Anti-People Smuggling and Other Measures Bill 2010 No. , 2010 7
Note:
Sections 236A and 236B limit conviction and sentencing options for
1
offences against this section.
2
(2) Absolute liability applies to paragraph (1)(b).
3
Note:
For absolute liability, see section 6.2 of the Criminal Code.
4
(3) If, on a trial for an offence against subsection (1), the trier of fact:
5
(a) is not satisfied that the defendant is guilty of that offence; and
6
(b) is satisfied beyond reasonable doubt that the defendant is
7
guilty of the offence of people smuggling;
8
the trier of fact may find the defendant not guilty of an offence
9
against subsection (1) but guilty of the offence of people
10
smuggling, so long as the defendant has been accorded procedural
11
fairness in relation to that finding of guilt.
12
233D Supporting the offence of people smuggling
13
(1) A person (the first person) commits an offence if:
14
(a) the first person provides material support or resources to
15
another person or an organisation (the receiver); and
16
(b) the support or resources aids the receiver, or a person or
17
organisation other than the receiver, to engage in conduct
18
constituting the offence of people smuggling.
19
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
20
both.
21
(2) Subsection (1) does not apply if the conduct constituting the
22
offence of people smuggling relates, or would relate, to:
23
(a) the first person; or
24
(b) a group of persons that includes the first person.
25
(3) To avoid doubt, the first person commits an offence against
26
subsection (1) even if the offence of people smuggling is not
27
committed.
28
233E Concealing and harbouring non-citizens etc.
29
(1) A person (the first person) commits an offence if:
30
(a) the first person conceals another person (the second person);
31
and
32
(b) the second person is a non-citizen; and
33
Schedule 1 Amendments relating to people smuggling
Part 1 Main amendments
8 Anti-People Smuggling and Other Measures Bill 2010 No. , 2010
(c) the first person engages in the conduct with the intention that
1
the second person will enter Australia in contravention of this
2
Act.
3
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
4
both.
5
(2) A person (the first person) commits an offence if:
6
(a) the first person conceals another person (the second person);
7
and
8
(b) the second person is an unlawful non-citizen or a deportee;
9
and
10
(c) the first person engages in the conduct with the intention of
11
preventing discovery by an officer of the second person.
12
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
13
both.
14
(3) A person (the first person) commits an offence if:
15
(a) the first person harbours another person (the second person);
16
and
17
(b) the second person is an unlawful non-citizen, a removee or a
18
deportee.
19
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
20
both.
21
Note:
The heading to section 234 is replaced by the heading "False documents and false or
22
misleading information etc. relating to non-citizens".
23
9 After section 234
24
Insert:
25
234A Aggravated offence of false documents and false or misleading
26
information etc. relating to non-citizens (at least 5 people)
27
(1) A person must not, in connection with:
28
(a) the entry or proposed entry into Australia, or the immigration
29
clearance, of a group of 5 or more non-citizens (which may
30
include that person), or of any member of such a group; or
31
(b) an application for a visa or a further visa permitting a group
32
of 5 or more non-citizens (which may include that person), or
33
any member of such a group, to remain in Australia;
34
Amendments relating to people smuggling Schedule 1
Main amendments Part 1
Anti-People Smuggling and Other Measures Bill 2010 No. , 2010 9
do any of the following:
1
(c) present, or cause to be presented, to an officer or a person
2
exercising powers or performing functions under this Act a
3
document that the person knows is forged or false;
4
(d) make, or cause to be made, to an officer or a person
5
exercising powers or performing functions under this Act a
6
statement that the person knows is false or misleading in a
7
material particular;
8
(e) deliver, or cause to be delivered, to an officer or a person
9
exercising powers or performing functions under this Act, or
10
otherwise give, or cause to be given, for official purposes of
11
the Commonwealth, a document containing a statement or
12
information that the person knows is false or misleading in a
13
material particular.
14
Penalty: Imprisonment for 20 years or 2,000 penalty units, or
15
both.
16
Note:
Sections 236A and 236B limit conviction and sentencing options for
17
offences against this section.
18
(2) A person must not transfer or part with possession of a document
19
or documents:
20
(a) with the intention that the document or documents be used to
21
help a group of 5 or more people, none of whom are entitled
22
to use the document or documents, or any member of such a
23
group, to gain entry into or remain in Australia, or to be
24
immigration cleared; or
25
(b) if the person has reason to suspect that the document or
26
documents may be so used.
27
Penalty: Imprisonment for 20 years or 2,000 penalty units, or
28
both.
29
Note:
Sections 236A and 236B limit conviction and sentencing options for
30
offences against this section.
31
10 After section 236
32
Insert:
33
Schedule 1 Amendments relating to people smuggling
Part 1 Main amendments
10 Anti-People Smuggling and Other Measures Bill 2010 No. , 2010
236A No discharge of offenders without proceeding to conviction for
1
certain offences
2
The court may make an order under section 19B of the Crimes Act
3
1914 in respect of a charge for an offence against section 233B,
4
233C or 234A only if it is established on the balance of
5
probabilities that the person charged was aged under 18 years when
6
the offence was alleged to have been committed.
7
236B Mandatory minimum penalties for certain offences
8
(1) This section applies if a person is convicted of an offence against
9
section 233B, 233C or 234A.
10
(2) This section does not apply if it is established on the balance of
11
probabilities that the person was aged under 18 years when the
12
offence was committed.
13
(3) The court must impose a sentence of imprisonment of at least:
14
(a) if the conviction is for an offence against section 233B--8
15
years; or
16
(b) if the conviction is for a repeat offence--8 years; or
17
(c) in any other case--5 years.
18
(4) The court must also set a non-parole period of at least:
19
(a) if the conviction is for an offence to which paragraph (3)(a)
20
or (b) applies--5 years; or
21
(b) in any other case--3 years.
22
(5) A person's conviction for an offence is for a repeat offence if:
23
(a) in proceedings after the commencement of this section
24
(whether in the same proceedings as the proceedings relating
25
to the offence, or in previous proceedings), a court:
26
(i) has convicted the person of another offence, being an
27
offence against section 233B, 233C or 234A of this Act;
28
or
29
(ii) has found, without recording a conviction, that the
30
person has committed another such offence; or
31
(b) in proceedings after the commencement of the Border
32
Protection (Validation and Enforcement Powers) Act 2001
33
(whether in the same proceedings as the proceedings relating
34
to the offence, or in previous proceedings), a court:
35
Amendments relating to people smuggling Schedule 1
Main amendments Part 1
Anti-People Smuggling and Other Measures Bill 2010 No. , 2010 11
(i) has convicted the person of another offence, being an
1
offence against section 232A or 233A of this Act as in
2
force before the commencement of this section; or
3
(ii) has found, without recording a conviction, that the
4
person has committed another such offence.
5
(6) In this section:
6
non-parole period has the same meaning as it has in Part IB of the
7
Crimes Act 1914.
8
11 Application
9
Section 236A of the Migration Act 1958 as amended by this Act applies
10
to offences committed on or after the commencement of this item.
11
12
Schedule 1 Amendments relating to people smuggling
Part 2 Consequential amendments
12 Anti-People Smuggling and Other Measures Bill 2010 No. , 2010
Part 2--Consequential amendments
1
Migration Act 1958
2
12 Subsection 492(3)
3
Repeal the subsection, substitute:
4
(3) A prosecution for an offence:
5
(a) against section 232A, 233 or 233A of this Act as in force
6
before the commencement of this subsection; and
7
(b) alleged to have been committed after the commencement of
8
the Migration Legislation Amendment Act (No. 1) 1999;
9
may be instituted at any time.
10
(4) A prosecution for an offence against section 233A, 233B, 233C,
11
233D, 233E or 234A that is alleged to have been committed after
12
the commencement of this subsection may be instituted at any
13
time.
14
Proceeds of Crime Act 2002
15
13 Section 338 (subparagraphs (b)(i), (ii) and (iii) of the
16
definition of serious offence)
17
Repeal the subparagraphs, substitute:
18
(i) section 233A (offence of people smuggling);
19
(ii) section 233B (people smuggling involving exploitation,
20
or danger of death or serious harm etc.);
21
(iii) section 233C (people smuggling at least 5 people);
22
(iv) section 233D (supporting the offence of people
23
smuggling);
24
(v) subsection 233E(1) or (2) (concealing non-citizens etc.);
25
(vi) section 234A (false documents etc. relating to at least 5
26
non-citizens);
27
Surveillance Devices Act 2004
28
14 Subparagraph 30(1)(a)(vi)
29
Omit "73.2", substitute "73.2, 73.3".
30
Amendments relating to people smuggling Schedule 1
Consequential amendments Part 2
Anti-People Smuggling and Other Measures Bill 2010 No. , 2010 13
15 After subparagraph 30(1)(a)(viii)
1
Insert:
2
; or (ix) an offence against section 233B or 233C of the
3
Migration Act 1958;
4
16 Application
5
Section 30 of the Surveillance Devices Act 2004 as amended by this Act
6
applies to investigations begun on or after commencement.
7
Telecommunications (Interception and Access) Act 1979
8
17 Section 5 (definition of immigration offence)
9
Omit "232A, 233, 233A, 234 or".
10
18 Subsection 5D(3A)
11
Repeal the subsection, substitute:
12
Offences relating to people smuggling, slavery, sexual servitude,
13
deceptive recruiting and trafficking in persons etc.
14
(3A) An offence is also a serious offence if it is an offence against:
15
(a) any of the following provisions of the Criminal Code:
16
(i) section 73.1, 73.2, 73.3, 73.3A, 73.8, 73.9, 73.10 or
17
73.11;
18
(ii) section 270.3, 270.6, 270.7 or 270.8;
19
(iii) section 271.2, 271.3, 271.4, 271.5, 271.6 or 271.7; or
20
(b) section 233A, 233B, 233C, 233D, 233E, 234 or 234A of the
21
Migration Act 1958.
22
23
Schedule 2 Amendment of the Australian Security Intelligence Organisation Act 1979
14 Anti-People Smuggling and Other Measures Bill 2010 No. , 2010
Schedule 2--Amendment of the Australian
1
Security Intelligence Organisation Act
2
1979
3
4
1 Section 4 (after paragraph (a) of the definition of security)
5
Insert:
6
(aa) the protection of Australia's territorial and border
7
integrity from serious threats; and
8
2 Section 4 (paragraph (b) of the definition of security)
9
After "(a)", insert "or the matter mentioned in paragraph (aa)".
10
11
Amendment of the Telecommunications (Interception and Access) Act 1979 Schedule
3
Anti-People Smuggling and Other Measures Bill 2010 No. , 2010 15
Schedule 3--Amendment of the
1
Telecommunications (Interception and
2
Access) Act 1979
3
4
1 Subsection 5(1) (definition of foreign intelligence)
5
Repeal the definition, substitute;
6
foreign intelligence means intelligence about the capabilities,
7
intentions or activities of people or organisations outside Australia.
8
2 Subsection 5(1)
9
Insert:
10
Minister for Defence means the Minister administering the
11
Defence Act 1903.
12
3 Subsection 5(1)
13
Insert:
14
Minister for Foreign Affairs means the Minister administering the
15
Diplomatic Privileges and Immunities Act 1967.
16
4 At the end of section 5
17
Add:
18
(6) For the purposes of the definition of foreign intelligence in
19
subsection (1), Australia includes the external Territories.
20
5 Paragraph 11A(1)(b)
21
Omit all the words from and including "relevant" to and including
22
"affairs", substitute "Minister for Defence or the Minister for Foreign
23
Affairs, that the collection of foreign intelligence relating to that matter
24
is in the interests of Australia's national security, Australia's foreign
25
relations or Australia's national economic well-being".
26
6 Paragraph 11B(1)(b)
27
Omit "relevant Minister", substitute "Minister for Defence or the
28
Minister for Foreign Affairs".
29
Schedule 3 Amendment of the Telecommunications (Interception and Access) Act
1979
16 Anti-People Smuggling and Other Measures Bill 2010 No. , 2010
7 Subparagraph 11B(1)(b)(i)
1
Omit all the words from and including "important" to and including
2
"affairs", substitute "in the interests of Australia's national security,
3
Australia's foreign relations or Australia's national economic
4
well-being".
5
8 Paragraph 11C(1)(b)
6
Omit "relevant Minister", substitute "Minister for Defence or the
7
Minister for Foreign Affairs".
8
9 Subparagraph 11C(1)(b)(i)
9
Omit all the words from and including "important" to and including
10
"affairs", substitute "in the interests of Australia's national security,
11
Australia's foreign relations or Australia's national economic
12
well-being".
13
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