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1998-99
THE PARLIAMENT OF THE
COMMONWEALTH OF
AUSTRALIA
SENATE
MIGRATION
LEGISLATION AMENDMENT BILL (No. 2) 1998
REPLACEMENT
SUPPLEMENTARY
EXPLANATORY MEMORANDUM
Amendments and
New Clauses to be Moved on Behalf of the
Government
(Circulated by
authority of the Minister
for Immigration and Multicultural Affairs,
the
Hon. Philip Ruddock MP)
ISBN: 0642 404313
MIGRATION LEGISLATION AMENDMENT BILL
(No. 2) 1998
OUTLINE
The Government has decided to
move amendments to the Migration Legislation Amendment (No. 2) Bill 1998:
• consequential to the proposed Human Rights Legislation Amendment Bill (No. 2) 1999 which was introduced into the House of Representatives on 17 February 1999. That Bill proposes to rename the Human Rights and Equal Opportunity Commission as the Human Rights and Responsibilities Commission.
− The amendments seek to ensure that the Migration Legislation Amendment Bill (No. 2) 1998 refers to the correct name of the Commission when the change of name comes into effect; and
• people trafficking offences. In particular, the proposed
amendments:
− increase existing penalties for people trafficking
offences in sections 233, 234 and 236 of the Migration Act 1958
(“the Act”) from imprisonment for 2 years to imprisonment for 10
years and / or 1,000 penalty units, in line with Commonwealth criminal law
policy;
− create new offences relating to people trafficking. The new
offences are aimed at people who intentionally organise, or participate in, the
trafficking of groups of 5 or more people. The proposed penalty for each of
these new offences is 20 years imprisonment and / or 2,000 penalty
units;
− amend section 492 of the Act to make reference to section 233
and proposed new sections 232A and 233A of the Act. The amendments will ensure
that prosecutions of offences under sections 232A, 233 and 233A will be able to
be commenced at any time after the commencement of the amendments;
and
− make references to the people trafficking offences in the
Telecommunications (Interception) Act 1979 to provide a legal basis for
the use of interception devices in relation to those offences, in certain
circumstances.
FINANCIAL IMPACT STATEMENT
There are no financial
implications arising from these amendments.
MIGRATION LEGISLATION AMENDMENT BILL (No. 2)
1998.
NOTES ON INDIVIDUAL
CLAUSES
Item 1 Clause 2 –
Commencement
1. Proposed subclause 2(1) provides for sections 1, 2
and 3 of the Migration Legislation Amendment Bill (No. 2) 1998 to commence on
the day it receives the Royal Assent.
2. Proposed subclause 2(2) provides
for items 1, 2, 3 and 4 of Schedule 1 and Schedule 2 to be taken to have
commenced on 3 December 1998.
3. Proposed subclause 2(3) provides for
item 2A of Schedule 1 to commence immediately after the commencement of item 2
of Schedule 1 to the Human Rights Legislation Amendment Act (No. 2)
1999.
4. Proposed subclause 2(4) provides that, subject to subsection
2(5), the items of Schedule 1, other than those cited in subsections 2(2)
and 2(3), and Schedule 1A commence on a day to be fixed by
Proclamation.
5. Proposed subclause 2(5) provides that the items of
Schedule 1 referred to in subsection 2(4); and Schedule 1A will commence 6
months after the Royal Assent unless Proclamation occurs first.
6. This amendment is consequential to the amendments
contained in clause 2.
7. This item inserts new clause 2A into Schedule 1.
Clause 2A is necessary to reflect the proposed change of name of the Human
Rights and Equal Opportunity Commission to the Human Rights and Responsibilities
Commission and the proposed change of name of the Human Rights and Equal
Opportunity Commission Act 1986 to the Human Rights and Responsibilities
Commission Act 1986 by the Human Rights Legislation Amendment Bill (No. 2)
1999.
8. Clause 2A will only take effect once the Human
Rights Legislation Amendment Act (No. 2) 1999 has commenced. The
amendments seek to ensure that the Migration Legislation Amendment Bill (No. 2)
1998 refers to the correct name of the Commission, as in existence at the time
the change of name comes into effect pursuant to the changes made by the Human
Rights Legislation Amendment Bill (No. 2) 1999.
9. Proposed clause 3A inserts new section 232A after section 232 of the
Act. New section 232A provides a new offence in relation to the trafficking of
groups of 5 people or more to Australia. The offence is aimed at organised
operations and attracts a penalty of imprisonment for 20 years or 2,000 penalty
units, or both.
10. Proposed clause 3B amends section 233 to increase the penalty for the
bringing or coming to Australia of a non-citizen in contravention of the Act, or
for the concealing of a non-citizen or an unlawful non-citizen or a deportee in
certain circumstances (as set out in section 233). The penalty is increased to
10 years imprisonment or 1,000 penalty units, or both.
11. Proposed clause 3C inserts new section 233A after section 233 of the
Act. New section 233A provides a new offence in relation to the trafficking of
groups of 5 people or more to Australia, and specifically deals with false
statements, false or forged papers, and the fraudulent use of documents. The
offence is aimed at organised operations and attracts a penalty of imprisonment
for 20 years or 2,000 penalty units, or both.
Clause 3D –
Section 234 (penalty)
12. Proposed clause 3D amends section 234 to
increase the penalty in relation to the making of or use of false statements,
false or forged papers, or the fraudulent use of documents, in certain
circumstances, as set out in section 234 of the Act. The penalty is increased
to 10 years imprisonment or 1,000 penalty units, or both.
Clause 3E
– Section 236 (penalty)
13. Proposed clause 3E amends section
236 to increase the penalty in respect of the situation where a person uses a
visa that was granted to another person, or where the person has a visa in his
or her possession or under his or her control without reasonable excuse, as set
out in section 236 of the Act. The penalty is increased to 10 years
imprisonment or 1,000 penalty units, or both.
14. Proposed clause 5 amends subsection 492(1) to substitute the
reference to “subsection (2)” with a reference to “this
section”, consequential to the amendment to section 492 in proposed clause
6, below.
Clause 6 – At the end of section
492
15. Proposed clause 6 adds new subsection 492(3) to section 492.
New subsection 492(3) provides that a prosecution of a person for an offence
against new sections 232A or 233A, or against section 233, may be instituted at
any time after the commencement of new subsection 492(3). Offences under the
Act that are not mentioned in subsection 492(2) or new subsection 492(3) may
only be instituted within 5 years after they are committed.
Item
6 Schedule 1A – Consequential Amendments of the Telecommunications
(Interception) Act 1979
Subsection
5(1)
16. Proposed item 1 amends subsection 5(1) of the
Telecommunications (Interception) Act 1979 to insert a definition of
“an immigration offence”, consequential to the amendments to section
5D, below. The offences mentioned in the definition are all people trafficking
offences.
At the end of paragraph 5D(3)(d)
17. Proposed
item 2 adds new subparagraph 5D(3)(d)(xii) to section 5D of the
Telecommunications (Interception) Act 1979 so that the offences contained
in sections 232A, 233, 233A, 234 and 236 of the Migration Act 1958 may
qualify as class 2 offences under the Telecommunications (Interception) Act
1979, in certain circumstances. Certain communications may be intercepted
in respect of class 2 offences pursuant to the Telecommunications
(Interception) Act 1979.
18. This amendment is consequential to the changes to Schedule 1 and the
addition of Schedule 1A.