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(May 20, 2010) On May 13, 2010, the Australian Parliament passed the Anti-People Smuggling and Other Measures Bill 2010. (Press Release, Hon. Robert McClelland, Hon. Brendan O'Connor, & Sen. Chris Evans, Passage of Legislation to Combat People Smuggling (May 13, 2010), available at http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Medi
aReleases_2010_SecondQuarter_13May2010-PassageofLegislationtoCombatP
eopleSmuggling
.)

"People smuggling" is a specific offense under Australian law. The offense relates to organizing or facilitating the bringing of or entry into Australia of a non-citizen who has no lawful right to come to Australia. This is distinct from "trafficking in persons," which is a separate offense involving the use of force or threats resulting in a person's compliance in respect of entering or leaving Australia. (See Criminal Code Act 1995 (Cth), Div. 73 and Div. 271, available at http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/framelod
gmentattachments/DED5B51450B7247ACA257715001C43B0
.)

The bill, which was introduced into Parliament on February 24, 2010, and supported by the Opposition, provides the Australian Security Intelligence Organisation and law enforcement agencies with enhanced tools and expanded capabilities to investigate people smuggling and other serious border security threats, including the ability to use surveillance powers to collect foreign intelligence about people smugglers and their networks. (Id.)

In addition, the bill establishes new offenses targeting people who finance or provide support for people smuggling activities to ensure that "people smuggling activities are consistently and comprehensively criminalized." The bill also increases the penalties for existing offenses related to people smuggling. (Hon. Robert McClelland, Second Reading speech, Anti-People Smuggling and Other Measures Bill 2010, Feb. 24, 2010, available at http://www.ag.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2010_24F
ebruary2010-SecondReadingSpeech-Anti-PeoplesmugglingandOtherMeasures
Bill2010
.) The changes include:

· a new offense of providing material support for people smuggling with a maximum penalty of ten years imprisonment and/or a fine of AU$110,000 (about US$95,500);

· a new offense of people smuggling involving exploitation or danger of death or serious harm, applying to ventures entering Australia, with a maximum penalty of twenty years imprisonment and/or a fine of AU$220,000;

· provisions ensuring that where a person is convicted of multiple people smuggling offenses, mandatory minimum penalties set out in the Migration Act are applied; and

· provisions giving greater clarity and consistency by harmonizing people smuggling offenses in the Migration Act and the Criminal Code.(Press Release, May 2010, supra; a copy of the bill as passed is available at http://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r4295_asp
assed/toc_pdf/10043b01.pdf;fileType=application%2Fpdf
.)

The passage of the legislation was stated as being an "important part of the Government's comprehensive approach to combating people smuggling." (Speech, supra.) Further measures aimed at combating people smuggling, including the establishment of a new center tasked with detecting and preventing organized crime and changes to the regulatory regime relating to remittance dealers, are set out in an earlier joint press release issued by relevant government ministers. (Press Release, Sen. Chris Evans, Stephen Smith MP, & Hon. Brendan O'Connor, Changes to Australia's Immigration Processing System (Apr. 9, 2010), available at http://www.foreignminister.gov.au/releases/2010/fa-s100409.html.)

Other Related Developments

  • Agreement with Indonesia

In a related move, the governments of Australia and Indonesia recently signed an "Implementation Framework for Cooperation to Combat People Smuggling and Trafficking in Persons." (Press Release, Prime Minister of Australia, Australia-Indonesia Joint Statement (Mar. 10, 2010), available at http://www.pm.gov.au/node/6556.) The two countries have been working to try to resolve detention and processing issues following a surge in the interception of boats carrying asylum-seekers towards Australia through Indonesian territory in the past year. (Indonesia, Australia Agree on Asylum Seeker Plan, JAKARTA POST, Mar. 10, 2010, available at http://www.thejakartapost.com/news/2010/03/10/indonesia-australia-agree-
asylum-seeker-plan.html
.)

  • Temporary suspension of visa application processing

Furthermore, in April 2010, the Australian Government announced that it would temporarily suspend the processing of visa applications from asylum-seekers from Sri Lanka and Afghanistan for three and six months, respectively. This was due to improved humanitarian conditions in those countries, meaning that asylum claims were increasingly likely to fail. (Press Release, Apr. 2010, supra.) Immigration Minister Senator Chris Evans said that "these changes send a strong message to people smugglers that they cannot guarantee a visa outcome." (Ari Sharp & Thomas Hunter, Asylum-Seeker Clampdown 'An Election Fix', Says Abbott, THE AGE, Apr. 9, 2010, available at http://www.theage.com.au/national/asylumseeker-clampdown-an-election-fix
-says-abbott-20100409-rwbe.html
.)

  • Plans to expand immigration detention facilities

Also in April 2010, the number of people being held in the immigration detention facility on Australia's Indian Ocean territory of Christmas Island was reported to have exceeded the facility's official capacity of 2,040 people for the first time. (Paul Maley & Paige Taylor, Christmas Island Goes Over the Limit for Detainees, THE AUSTRALIAN, Apr. 3, 2010, available at http://www.theaustralian.com.au/politics/christmas-island-goes-over-the-
limit-for-detainees/story-e6frgczf-1225849066781
.) The government is working to expand the capacity of facilities on the island to 2,300 beds (Government Under Pressure over Plans to Expand Christmas Island, WA TODAY, Mar. 7, 2010, available at http://www.watoday.com.au/wa-news/government-under-pressure-over-plans-t
o-expand-christmas-island-20100307-pq52.html
.)

The current Australian government ended the controversial policy of the previous government, labeled the "Pacific Solution," under which asylum-seekers were detained for extended periods in special centers in Nauru or Papua New Guinea. Critics claim that the change to a policy involving detention on Christmas Island and the expediting of asylum-seekers' claims has resulted in an increase in the number of boats carrying asylum-seekers entering Australian waters. The Prime Minister of Australia, Kevin Rudd, has defended the approach and has said: "[w]e are dedicating more resources to combat people smuggling than any other government in Australian history." (Australia PM Furious at People Smugglers, BBC NEWS, Apr. 17, 2009, available at http://news.bbc.co.uk/2/hi/8003567.stm.)

Author: Kelly Buchanan More by this author
Topic: Asylum More on this topic
Jurisdiction: Australia More about this jurisdiction

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Last updated: 05/20/2010