People Smuggling and Surveillance Creep

Today has seen the passage of the Anti-People Smuggling and Other Measures Bill 2010 (Cth), legislation to "significantly strengthen Australia's people smuggling laws" as part of the national Government's "multi pronged approach to combating people smuggling by enabling the Australian Security Intelligence Organisation (ASIO) to specifically investigate people smuggling and other serious border security threats".

Australia's domestic legislative framework criminalising people smuggling is founded on the Migration Act 1958 (Cth) for ventures entering Australia and the Criminal Code Act 1995 (Cth) for ventures entering foreign countries, whether or not via Australia. The Bill will insert into both the Migration Act and Criminal Code a new offence of supporting the offence of people smuggling.

The Bill will also harmonise people smuggling offences between the Criminal Code and the Migration Act to ensure that offences for people smuggling ventures entering Australia or foreign countries are consistently criminalised. In particular, the Bill amends the Migration Act to include a section equivalent to section 73.2 of the Criminal Code so that the aggravated offence of exploitation or danger of death or serious harm also applies to people smuggling ventures entering Australia.

The Bill amends the Australian Security Intelligence Organisation Act 1979 (Cth), the Proceeds of Crime Act 2002 (Cth), the Surveillance Devices Act 2004 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth).

It includes additional offences targeting those who finance or provide support for people smuggling activities, along with "strong penalties that recognise the seriousness of people smuggling offences". Provisions in the Bill include -

• a new offence of providing material support for people smuggling (with a maximum penalty of ten years imprisonment and/or a fine of $110,000);
• a new offence 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 $220,000);
• ensuring that where a person is convicted of multiple people smuggling offences, mandatory minimum penalties set out in the Migration Act are applied; and
• providing greater clarity and consistency by harmonising people smuggling offences in the Migration Act and the Criminal Code (Cth).

The Bill also "enables Australia's national security agencies to collect foreign intelligence about people smugglers and their networks". The Surveillance Devices Act 2004 (Cth) establishes the framework for use by Commonwealth law enforcement agencies (and State agencies investigating offences with a federal aspect) of data surveillance devices, listening devices, optical surveillance devices and tracking devices. Normally a warrant is required
to install, use and remove those devices. The 2004 Act, however, includes provision for their use without a warrant in certain circumstances, for example where -

. the use of the surveillance device is immediately necessary to prevent the loss of any evidence relevant to that investigation
. the circumstances are so serious and the matter is of such urgency that the use of the surveillance device is warranted, and
. it is not practicable in the circumstances to apply for a surveillance device warrant.

The amendments to s 30 of that Act extend its coverage to all the aggravated people smuggling offences in both the Criminal Code and Migration Act, on the basis that currently an emergency authorisation is only available in connection with investigation of one offence relating to people smuggling, ie an aggravated offence of people smuggling with circumstances of exploitation or a danger of death or serious harm under section 73.2 of the Criminal Code.

Schedule 2 amends the ASIO Act to enable the Australian Security Intelligence Organisation (ASIO) to "play a greater role in support of whole of government efforts to address serious threats to Australia's territorial and border integrity, such as people smuggling". That role will include covert surveillance.

ASIO's functions, as set out in section 17 of the ASIO Act, include obtaining, correlating and evaluating intelligence relevant to security, and communicating any such intelligence for purposes relevant to security. The existing definition of 'security' in section 4 of the ASIO Act "does not specifically encompass border security issues", so that "ASIO currently has limited capacity to carry out its intelligence functions under section 17 in relation to threats to Australia's territorial and border integrity such as people smuggling". Schedule 2 of the Bill aims to amend the definition of 'security' in section 4 of the ASIO Act to include 'the protection of Australia's territorial and border integrity from serious threats'.