The Law Council of Australia (LCA) and the Law Institute of Victoria (LIV) have called for greater parliamentary scrutiny and the removal of retrospective provisions from proposed anti-people smuggling laws.
The concerns arise from the recent introduction and passage of the Commonwealth Government's Deterring People Smuggling Bill 2011 through the House of Representatives. The bill was transmitted to the Senate yesterday (2 November) for agreement, however debate was adjourned.
According to LCA president Alexander Ward, the rush to pass the bill and the provisions to make the amendments retrospective are contrary to fundamental rule of law principles.
"Laws should be subject to proper parliamentary scrutiny and consideration especially in view of a likely challenge in this volatile area," said Ward.
The Government has claimed that the legislative amendments are necessary to clarify a phrase within the existing people smuggling offences in the Migration Act 1958, which states that a defendant commits an offence if the person he or she brings into Australia "had or has no lawful right to come to Australia". It is claimed by the Government that this phrase was always intended only to refer to the person without a visa.
The proposed amendments date back to 1999 when the phrase was first introduced, meaning the new laws will have retrospective operation in criminal proceedings.
With the meaning of the phrase currently being considered by the Victorian Court of Appeal in a case involving the prosecution of a 20-year-old Indonesian fisherman, acting LIV president Michael Holcroft said the Government is undermining legitimate court processes by rushing the bill through parliament before an outcome in the case has been achieved.
"Trials need to be conducted in good faith on the laws that apply at the time of any alleged offence - the right to a fair trial is undermined if laws are changed mid-proceedings," said Holcroft.
Ward added that the LCA is strongly opposed to retrospective laws which effectively impose criminal liability on individuals.