The Law Council of Australia and Law Institute of Victoria have both called for greater Parliamentary scrutiny and the removal of retrospective provisions from the Australian Government’s recently proposed anti people smuggling laws. 

Their concerns spring from the introduction and passage of the Deterring People Smuggling Bill 2011 through the House of Representatives. The Bill was transmitted to the Senate this week for concurrence but debate was adjourned. 

Law Council of Australia president Alexander Ward said the rush to pass the Bill and the provisions to make the amendments retrospective were contrary to fundamental rule of law principles. 

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“Laws should be subject to proper parliamentary scrutiny, and consideration, especially in view of a likely challenge in this volatile area,” Ward said. 

The Government and the Opposition claim that the Bill is necessary to clarify an expression in the existing people smuggling offences in the Migration Act 1958. The expression currently states a defendant commits an offence if the person he or she brings into Australia ‘had or has no lawful right to come to Australia’. They claim that this expression was always intended only to refer to the person not having a visa. 

The meaning of this expression is currently being considered by the Victorian Court of Appeal in a case involving the prosecution of a 20 year old Indonesian fisherman who was on a boat carrying asylum seekers to Australia, the Law Council said in a statement. 

The case was referred to the Court of Appeal to determine whether the expression also refers to the right of a person to seek asylum under Australian and international law, which may mean that the offence may not be established in these circumstances. The Court of Appeal decision is expected shortly. 

The Bill seeks to make the amendments clarifying the expression retrospective to 1999 when the expression was first introduced. This means the clarifying amendments will have retrospective operation in criminal proceedings. 

Acting Law Institute of Victoria President Michael Holcroft said that by rushing through the Bill, the government is undermining legitimate court processes and should have waited for the outcome before making legislative amendments.

“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,” he said. 

Ward said that the Law Council is strongly opposed to retrospective laws which effectively impose criminal liability on individuals and this case is no exception.