Deterring People Smuggling Act 2011
No. 135, 2011
An Act to clarify the law relating to people smuggling, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedule(s)
Schedule 1—Amendments
Migration Act 1958
Deterring People Smuggling Act 2011
No. 135, 2011
An Act to clarify the law relating to people smuggling, and for related purposes
[Assented to 29 November 2011]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Deterring People Smuggling Act 2011.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 29 November 2011 |
2. Schedule 1 | Immediately after the commencement of item 51 of Schedule 1 to the Border Protection Legislation Amendment Act 1999. | 16 December 1999 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
Migration Act 1958
1 After section 228A
Insert:
228B Circumstances in which a non‑citizen has no lawful right to come to Australia
(1) For the purposes of this Subdivision, a non‑citizen has, at a particular time, no lawful right to come to Australia if, at that time:
(a) the non‑citizen does not hold a visa that is in effect; and
(b) the non‑citizen is not covered by an exception referred to in subsection 42(2) or (2A); and
(c) the non‑citizen is not permitted by regulations under subsection 42(3) to travel to Australia without a visa that is in effect.
(2) To avoid doubt, a reference in subsection (1) to a non‑citizen includes a reference to a non‑citizen seeking protection or asylum (however described), whether or not Australia has, or may have, protection obligations in respect of the non‑citizen:
(a) under the Refugees Convention as amended by the Refugees Protocol; or
(b) for any other reason.
2 Application
(1) Section 228B of the Migration Act 1958, as inserted by this Schedule, applies in relation to an offence committed, or alleged to have been committed, on or after the commencement of this Schedule.
(2) Section 228B of the Migration Act 1958, as inserted by this Schedule, applies to:
(a) proceedings (whether original or appellate) commenced on or after the day on which this Act receives the Royal Assent; and
(b) proceedings (whether original or appellate) commenced before the day on which this Act receives the Royal Assent, being proceedings that had not been finally determined as at that day.
[Minister’s second reading speech made in—
House of Representatives on 1 November 2011
Senate on 2 November 2011]
Overview
The Deterring People Smuggling Act 2011 was enacted by the Parliament of Australia to address the problem of illegal immigration and people smuggling. The Act clarifies the existing law by establishing specific circumstances under which a non-citizen is deemed to have no lawful right to come to Australia, thereby providing a legal basis for dealing with such cases. This was aimed at strengthening the nation's border protection measures and ensuring that the laws governing unlawful entry into Australia were clearly defined and enforceable. The Act amends the Migration Act 1958 to introduce these new provisions, which apply to offences and proceedings occurring on or after its commencement, thereby ensuring a consistent application of the law across all relevant cases.
Scope and Application
The Deterring People Smuggling Act 2011 applies to the conduct of non-citizens who are attempting to enter Australia without a valid visa and who are not covered by any exceptions or regulations that would permit their travel to Australia without a visa. This Act amends the Migration Act 1958 by inserting a new section that clarifies the circumstances under which a non-citizen has no lawful right to come to Australia. The Act's application extends to any offence committed or alleged to have been committed on or after the commencement of the Act, as well as to any proceedings commenced before or after the Royal Assent that had not been finally determined as at that day. The Act applies across Australia as it amends a Commonwealth Act, thereby having a national reach. However, the Act does not specify any exclusions, exemptions, or thresholds within the text provided, though such details might be found in subordinate instruments or regulations. The application of the Act is further extended or restricted by Schedule 1, which specifies amendments to the Migration Act 1958.
Key Provisions
The Deterring People Smuggling Act 2011 (sections 1 to 3) and related provisions commenced on the day it received Royal Assent on 29 November 2011. The Schedule to this Act, which amends the Migration Act 1958, took effect immediately after the commencement of item 51 of Schedule 1 to the Border Protection Legislation Amendment Act 1999 on 16 December 1999. This Act inserts a new section 228B into the Migration Act 1958, which specifies the circumstances under which a non-citizen has no lawful right to come to Australia. Specifically, a non-citizen has no lawful right to enter Australia if they do not hold a visa that is in effect, are not covered by an exception under subsection 42(2) or (2A), and are not permitted by regulations under subsection 42(3) to travel to Australia without a visa that is in effect. This definition also includes non-citizens seeking protection or asylum, regardless of Australia's obligations under international law.
The Deterring People Smuggling Act 2011 imposes obligations on non-citizens to ensure they hold a valid visa or are covered by an exception or permitted regulations when entering Australia. The Act requires non-citizens to comply with visa requirements and any relevant exceptions or regulations to avoid being deemed to have no lawful right to enter Australia. This places the onus on non-citizens to understand and meet the legal requirements for entry into Australia, including the need for a valid visa or the applicability of any exceptions or regulatory permissions.
Breach of the provisions outlined in the Deterring People Smuggling Act 2011 may result in significant legal consequences for non-citizens. Under section 228B of the Migration Act 1958, a non-citizen who enters Australia without a lawful right to do so can be subject to penalties. The specific penalties are detailed in the Migration Act 1958 and can include fines, imprisonment, or both, depending on the severity of the offence and the discretion of the court. Additionally, non-citizens who enter Australia illegally may face removal from the country, bans on re-entry, and difficulties in obtaining lawful status in the future. These penalties and consequences are intended to deter people smuggling and ensure compliance with Australia's immigration laws.