Retrospective People Smuggling Bill: a Breach of our Constitution?

By Adam Fletcher

The major parties put aside their differences on immigration policy in the House of Representatives last week to pass the Deterring People Smuggling Bill 2011 (the Bill). Despite its name, the Bill is a ‘clarification’ of the people smuggling offences in the Migration Act 1958 (Cth) designed to make successful prosecutions easier.  Currently, the law does not prohibit smugglers from bringing into the country those who have a ‘lawful right to come to Australia’. Essentially, the Government seems to be concerned that the courts might say asylum‑seekers (as potential refugees) have a lawful right to come to Australia, which could scupper several high‑profile people-smuggling prosecutions currently under way.

The Bill was subsequently sent to the Senate, which referred it to the Legal and Constitutional Affairs Committee so it could be subjected to at least a modicum of scrutiny.

An examination of this Bill reveals that it probably has the dubious distinction of being contrary to both Australia’s international obligations and our constitutional separation of powers doctrine.

International Law and People Smuggling

The Explanatory Memorandum states that the existing offences of people smuggling are consistent with Australia’s obligations under the Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the United Nations Convention on Transnational Organized Crime, but ignores article 19(1) of this Protocol, which specifically says it doesn’t affect States parties’ obligations (or asylum-seekers’ rights) under the 1951 Refugees Convention.

The Explanatory Memorandum claims that the offences as amended “do not affect the rights of individuals seeking protection or asylum in Australia. They also do not affect Australia’s international obligations in respect of those persons.” There are at least two problems with these claims. First, the Bill is likely to deter asylum-seekers (indirectly) as well as people smugglers, which is not in the spirit of the system of refugee protection created by the Refugees Convention (and reflected in the protection visa regime in the Migration Act). To argue that they can obtain visas to enter Australia and come by means of ‘legitimate’ commercial carriers is to ignore the reality they face – that such actions would inevitably invite (further) persecution by drawing the attention of the authorities they are fleeing, or even involve actual criminality such as identity fraud.

Additionally, vessels operated by people smugglers have, over the past 13 years, transported thousands of people to Australia, the majority of whom have subsequently been found to be genuine refugees (up to 98% in the case of certain nationalities). It is therefore difficult to see how the claim that this Bill will have “no impact on individuals seeking protection or asylum” can be borne out in practice.


Item 2 of the Bill provides that the amendments, if passed, will have effect from 16 December 1999 (when the phrase ‘lawful right to come to Australia’ was inserted into the Migration Act by the Border Protection Legislation Amendment Act 1999). . The Explanatory Memorandum states that “[t]he people smuggling offences in the Migration Act have been consistently interpreted since 1999 as applying where a person does not meet the requirements for coming to Australia under domestic law.” This statement implies that no clarification is required, which leads to the conclusion that the Bill is either redundant or has the ulterior motive ofenlarging the people smuggling offences.

Retrospective laws are prima facie contrary to the rule of law because they prevent people from knowing their legal rights and duties at a particular time. The Parliament technically has the power to enact such laws, but the Government’s own Legislation Handbook makes it clear that “[p]rovisions that have a retrospective operation adversely affecting rights or imposing liabilities are to be included only in exceptional circumstances.” This principle is also reflected in article 15 of the 1966 International Covenant on Civil and Political Rights (ICCPR), to which Australia is a party, which requires that the criminal law be applied as it stood when the offence was committed with only the narrowest of exceptions.

In Polyukhovich v The Queen, the High Court considered one of these exceptional cases (legislation introduced in 1988 which retrospectively criminalised WWII war crimes under Australian law). Deane J considered that retrospective criminalisation was inconsistent with Chapter III of the Constitution, since it is the exclusive preserve of the judicature to determine criminal guilt according to the law [at 59]. Gaudron J concurred, finding the law to be a ‘usurpation of judicial power’ [at 41]. Toohey J agreed in principle, but contended that there could be exceptions for ‘extremely grave’ transgressions (such as war crimes – see para 108). Three Judges (Mason CJ, Dawson and McHugh JJ) in Polyukhovich found that the Commonwealth does have the power to enact retrospective criminal laws, while Brennan J did not decide on the matter.  Therefore, the court split 3:3 on the matter, with Toohey J applying an exception which is probably not relevant to the law under consideration here.

Unlike the law in question in Polyukhovich, the present Bill does not create any new offence.  However, it arguably enlarges an offence retrospectively by removing a potential defence. The law may render an act – namely the unauthorised transportation of asylum‑seekers (as opposed to other migrants) – criminal retrospectively and pre-empt findings of the courts in ongoing prosecutions.

In the case of Nicholas v The Queen, Brennan CJ stated that “[a] law that purports to direct the manner in which the judicial power should be exercised is constitutionally invalid” [at 20]. The courts are presently engaged in the process of interpreting the phrase ‘lawful right to come to Australia,’ and the Bill arguably tells them how they should do this. Gaudron, McHugh and Kirby JJ, while reaching different conclusions on the facts in Nicholas, all agreed with Brennan CJ that such interference with the operation of the courts is impermissible.

If there were any doubt about the intention to intervene in the judicial process, the Bill provides specifically in item 2(2)(b) of Schedule 1 that the amendments are to apply to proceedings in train (including appeals). In the relevant cases/appeals, the issue of refugees’ and asylum‑seekers’ ‘lawful right to come to Australia’ has been raised in defence of accused people smugglers. Under ss 233A, B or C of the Migration Act, these accused persons face penalties of up to 10 or 20 years’ imprisonment. Since the Bill would effectively decide the issue raised by the defence in these cases, it clearly has the potential to affect the defendants’ liberty seriously. In the context of both the presumption against retrospectivity and the doctrine of separation of powers, these amendments constitute dubious law which may well be constitutionally invalid.

The Law Council of Australia and Law Institute of Victoria have reached similar conclusions in relation to the Bill.

At best, this Bill is redundant. If it is not, it may contravene Australia’s international obligations and the Constitution. Regardless, it should be withdrawn.

The Scum of the Earth?

As an aside on prosecutions of people smugglers more broadly, the Government’s rhetoric casting the defendants in the role of ‘scum of the earth’ who should ‘rot in hell’ may be misguided. Joshua Kelly, an intern at Australian Lawyers for Human Rights, last year published a paper in which he observed that the Australian definition of a criminal people smuggler could apply to people who assist others to flee oppression for purely altruistic motives. The examples he gives to make his point are Moses, Oskar Schindler and Bruce Haigh (a diplomat who helped people flee the apartheid regime). Perhaps Raoul Wallenberg or Dietrich Bonhoeffer would be better examples. A recent SBS Dateline documentary also featured Hungarian smugglers who facilitated families’ flight from the Soviets in the 1950s (including the family of presenter Les Murray). Such people, the documentary pointed out, sometimes take great personal risks to help others flee oppression, even if some have purer motives than others. Joshua Kelly’s research found that many of those convicted of people smuggling offences were refugees themselves who were motivated by concern for others facing similar situations, which does not sit well with the Government’s ‘most evil’ claims. Another problem is that many of those being prosecuted seem to be poor and/or young fishermen who are exploited by organisers who never set foot on the boats themselves.

Still, there is clearly merit in prosecuting those who are truly responsible for (and profit from) a practice which results in tragedies such as the Christmas Island disaster of December 2010 and the more recent one off Java. The trick is not to punish the exploited along with the exploiters – this is where the Government’s policy work should be directed.

UPDATE 22 November 2011: – the Senate’s Legislation Committee has just tabled a report on this Bill which recommends it be passed. This comes as no great surprise, given the two major parties support ‘tough measures’ against people smuggling. However, the Senators question the lack of clarity in Government rules and guidelines surrounding the introduction of retrospective legislation, and the Coalition Senators say they were “extremely disturbed by the lack of precision on the part of the relevant departments in evoking a clear case for retrospectivity” [para 1.8 of their Additional Comments] – ouch!

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