House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Nicola Roxon MP)

Schedule 2 - Amendments of other Acts

Crimes Act 1914

Item 1 - Paragraph 15Y(1)(c)

This Item omits the words, '(slavery, sexual servitude and deceptive recruiting)' from existing paragraph 15Y(1)(c) of the Crimes Act 1914 (the Crimes Act) and inserts the words, '(Slavery and slavery-like conditions)'.

Existing paragraph 15Y(1)(c) of the Crimes Act contains a cross-reference to the heading of Division 270 of the Criminal Code. As a result of Item 7 of Schedule 1 (above), the heading of Division 270 will be amended. Accordingly, the reference to Division 270 of the Criminal Code in paragraph 15Y(1)(c) the Crimes Act needs to be amended to ensure that the Crimes Act continues to operate effectively.

This Item has no substantive effect.

Item 2 - Paragraph 21B(1)(d)

This Item omits the words, 'by the person as a direct result of the offence' from existing paragraph 21B(1)(d) of the Crimes Act and inserts the words, ', or any expense incurred, by the person by reason of the offence'.

Existing paragraph 21B(1)(c) of the Crimes Act provides that a court may order a federal offender to make reparation to the Commonwealth, or to a public authority under the Commonwealth, for any loss suffered or any expense incurred by reason of the offence. However, existing paragraph 21B(1)(d) provides that, if the victim is a person, a court may order a federal offender to make reparation only where the person has suffered loss 'as a direct result of the offence'.

This Item removes the difference in operation between paragraphs 21B(1)(c) and 21B(1)(d) so that an individual victim of a federal offence is eligible for reparations in the same circumstances as the Commonwealth or a public authority of the Commonwealth.

The amendment allows an individual victim to be awarded reparations for any loss suffered or any expense incurred by reason of the offence. This ensures that reparation could be made in respect of individual victims of any federal offence for loss suffered by reason of the criminal conduct, even if the loss was not a direct result of that conduct.

Migration Act 1958

Item 3 - Section 233B (heading)

This Item repeals the heading of existing section 233B of the Migration Act 1958 (the Migration Act) and replaces it with a new heading.

Currently, section 233B of the Migration Act is titled 'Aggravated offence of people smuggling (exploitation, or danger of death or serious harm etc.)'. This Item is a consequential amendment to the heading of section 233B to better reflect the new contents of the section, which is amended by Items 4 - 9 of Schedule 2 (see below). As a result of this Item, the new title for section 233B of the Migration Act will be, 'Aggravated offence of people smuggling (danger of death or serious harm etc.)'.

Item 4 - Subsection 233B(1)

This Item omits the words, 'any of the following applies' from existing subsection 233B(1) of the Migration Act and replaces them with the words, 'either or both of the following apply'.

This Item is a consequential amendment which is necessary as a result of the changes in Item 5 of Schedule 2 (see below). Item 5 of Schedule 2 repeals one of the paragraphs in section 233B of the Migration Act, and the changes in this Item are necessary to ensure section 233B of the Migration Act is structured appropriately.

Item 5 - Paragraph 233B(1)(a)

This Item repeals existing paragraph 233B(1)(a) of the Migration Act.

Existing paragraph 233B(1)(a) of the Migration Act currently provides that a person commits an offence if they commit the offence of people smuggling at existing section 233A of the Migration Act, intending the victim will be exploited after entry into the foreign country. This amendment means that exploitation of a victim after entry into the relevant country is no longer an element of the aggravated people smuggling offence at subsection 233B(1) of the Criminal Code.

The aggravated people smuggling offence involving exploitation, or a danger of death or serious harm was inserted into the Migration Act prior to the introduction of specific people trafficking offences in the Criminal Code in 2005. Conduct that involves the exploitation of a victim after entry into another country is a people trafficking offence, not a people smuggling offence, and as such it is appropriately criminalised by the people trafficking offences in Division 271 of the Criminal Code.

The remaining elements of the aggravated people smuggling offence in existing section 233B(1) of the Migration Act, including those elements relating to people smuggling that gives rise to a danger of death or serious harm, will not be affected.

Items 3 and 4 of Schedule 2 (see above) contain consequential amendments which are necessary as a result of this Item.

Item 6 - Subsection 233B(4) (definition of exploit)

This Item repeals the definition of the term 'exploit' from exiting subsection 233B(4) of the Migration Act.

As a result of Item 5 of Schedule 2 (see above), paragraph 233B(1)(a) of the Migration Act will be repealed. Accordingly, the definition of the term exploit in exiting subsection 233B(4) of the Migration Act is unnecessary.

This Item has no substantive effect.

Item 7 - Subsection 233B(4) (definition of forced labour)

This Item repeals the definition of the term ' forced labour ' from exiting subsection 233B(4) of the Migration Act.

As a result of Item 5 of Schedule 2 (see above), paragraph 233B(1)(a) of the Migration Act will be repealed. Accordingly, the definition of the term forced labour in exiting subsection 233B(4) of the Migration Act is unnecessary.

This Item has no substantive effect.

Item 8 - Subsection 233B(4) (definition of sexual servitude)

This Item repeals the definition of the term ' sexual servitude ' from exiting subsection 233B(4) of the Migration Act.

As a result of Item 5 of Schedule 2 (see above), paragraph 233B(1)(a) of the Migration Act will be repealed. Accordingly, the definition of the term sexual servitude in exiting subsection 233B(4) of the Migration Act is unnecessary.

This Item has no substantive effect.

Item 9 - Subsection 233B(4) (definition of slavery)

This Item repeals the definition of the term ' slavery ' from exiting subsection 233B(4) of the Migration Act.

As a result of Item 5 of Schedule 2 (see above), paragraph 233B(1)(a) of the Migration Act will be repealed. Accordingly, the definition of the term slavery in exiting subsection 233B(4) of the Migration Act is unnecessary.

This Item has no substantive effect.

Item 10 - Paragraph 245AA(2)(c)

This Item omits the words, '(defines exploited );' from existing paragraph 245AA(2)(c) of the Migration Act and substitutes the words, '(defines exploited ).'.

This Item is a consequential amendment to reformat existing paragraph 245AA(2)(c) of the Migration Act. Item 11 of Schedule 2 repeals existing paragraph 245AA(2)(d) of the Migration Act, making paragraph 245AA(2)(c) the last paragraph in section 245AA.

This Item has no substantive effect.

Item 11 - Paragraph 245AA(2)(d)

This Item repeals paragraph 245AA(2)(d) of the Migration Act.

Existing paragraph 245AA(2)(d) of the Migration Act is a reference to section 245AI of the Migration Act, which will be repealed as a result of Item 13 of Schedule 2 (see below). As such, paragraph 245AA(2)(d) is redundant.

Item 12 - At the end of paragraph 245AG(2)(d)

This Item inserts the words, 'within the meaning of the Criminal Code (see the Dictionary to the Criminal Code ' at the end of paragraph 245AG(2)(d) of the Migration Act.

Existing section 245AG of the Migration Act contains the only reference to the term ' sexual services' in the Migration Act (apart from the definition in section 245AI, which is being repealed by Item 13 of Schedule 2, below).

This amendment ensures that section 245AG cross-references the Criminal Code definition of the term ' sexual services ', which is consistent with the general approach to definitions in legislation.

Item 13 - Sections 245AH and 245AI

This Item repeals existing sections 245AH and 245AI of the Migration Act, and replaces them with a new section 245AH, which is titled, 'Meaning of exploited '.

Existing section 245AH states that a person is being exploited if the person is in a condition of forced labour, sexual servitude or slavery in Australia.

Existing section 245AI defines the terms ' forced labour ', ' sexual service ', ' sexual servitude ' and ' slavery ', which are only used in existing paragraph 233B(1)(a) of the Migration Act and not elsewhere in Subdivision A of Division 12 of Part 2 of the Migration Act. However, as Item 5 of Schedule 2 will repeal paragraph 233B(1)(a), definitions for these terms are redundant.

New section 245AH provides that, for the purposes of Subdivision A of Division 12 of Part 2 of the Migration Act, a person is exploited if the person is subject to exploitation (within the meaning of the Criminal Code). This amendment ensures the term ' exploitation ' and its grammatical forms are defined consistently in Subdivision A of Division 12 of Part 2 of the Migration Act and the Criminal Code.

Proceeds of Crime Act 2002

Item 14 - Section 338 (subparagraph (b)(ii) of the definition of serious offence)

This Item omits the words, 'exploitation, or' from subparagraph (b)(ii) of the definition of ' serious offence' in section 338 of the Proceeds of Crime Act 2002 (the Proceeds of Crime Act).

This Item is a consequential amendment necessary as a result of Items 3 - 9 of Schedule 2 (see above).

Existing paragraph (b) of the definition of ' serious offence ' provides that an offence against any one of Migration Act provisions listed is a serious offence for the purposes of the Proceeds of Crime Act. Existing subparagraph (b)(ii) provides that the aggravated offence of people smuggling involving exploitation, or danger of death or serious harm etc. in section 233B of the Migration Act is a serious offence.

As a result of Items 3 - 9 of Schedule 2, section 233B of the Migration Act and its heading will be amended. As such, it is important that the cross-reference to section 233B of the Migration Act in section 338 of the Proceeds of Crime Act is also amended. By removing the words 'exploitation, or' from subparagraph (b)(ii) of the definition of the term serious offence in the Proceeds of Crime Act, this Item ensures that Act remains effective in relation to offences under section 233B of the Migration Act.

Telecommunications (Interception and Access) Act 1979

Item 15 - Subparagraphs 5D(3A)(a)(ii) and (iii)

This Item repeals existing subparagraphs 5D(3A)(a)(ii) and (iii) of the Telecommunications (Interception and Access) Act 1979 (the Telecommunications (Interception and Access) Act) and inserts new subparagraphs 5D(3A)(a)(ii), (iii), (iv), (v) and (vi).

Existing subparagraphs 5D(3A)(a)(ii) and (iii) of the Telecommunications (Interception and Access) Act provide that certain slavery, slavery-like and people trafficking offences are 'serious offences' for the purposes of the Telecommunications (Interception and Access) Act. As a result of Schedule 1, above, a number of those offences are being repealed and replaced, and a number of new offences are being inserted. This Item is a consequential amendment to ensure the Telecommunications (Interception and Access) Act remains effective.

This Item inserts references to the offences of servitude (section 270.5), forced labour (section 270.6A), deceptive recruiting for labour or services (section 270.7), and forced marriage (section 270.7B) (see Item 12 of Schedule 1, above), as well as the aggravated slavery-like offence provision (section 270.8), into subparagraph 5D(3A)(a)(ii) of the Telecommunications (Interception and Access) Act. The existing reference to the offence of slavery (section 270.3) will be replicated. New subparagraph 5D(3A)(a)(ii) of the Telecommunications (Interception and Access) Act will specify that the offences listed in that subparagraph are offences related to slavery or slavery-like conditions.

This Item replicates the text in existing subparagraph 5D(3A)(a)(iii) of the Telecommunications (Interception and Access) Act in new subparagraph 5D(3A)(a)(iii). New subparagraph 5D(3A)(a)(iii) of the Telecommunications (Interception and Access) Act will specify that the offences listed in that subparagraph are offences related to trafficking in persons. This aspect of this Item has no substantive effect.

This Item inserts a new subparagraph 5D(3A)(a)(iv) into the Telecommunications (Interception and Access) Act, which will include references to the new offences of organ trafficking (section 271.7B), aggravated organ trafficking (section 271.7C), domestic organ trafficking (section 271.7D), and aggravated domestic organ trafficking (section 271.7E) (see Item 38 of Schedule 1, above). New subparagraph 5D(3A)(a)(iv) of the Telecommunications (Interception and Access) Act will specify that the offences listed in that subparagraph are offences related to organ trafficking.

This Item inserts a new subparagraph 5D(3A)(a)(v) into the Telecommunications (Interception and Access) Act, which will include references to the new offence of harbouring a victim (section 271.7F), and the new aggravated offence of harbouring a victim (section 271.7G) (see Item 38 of Schedule 1, above). New subparagraph 5D(3A)(a)(v) of the Telecommunications (Interception and Access) Act will specify that the offences listed in that subparagraph are offences related to harbouring victims.

Finally, this Item also inserts a new subparagraph 5D(3A)(a)(vi) into the Telecommunications (Interception and Access) Act, which will include references to the offences of debt bondage (section 271.8) and aggravated debt bondage (section 271.9). New subparagraph 5D(3A)(a)(v) of the Telecommunications (Interception and Access) Act will specify that the offences listed in that subparagraph are offences related to debt bondage.

The inclusion of these offences as 'serious offences' within subparagraphs 5D(3A)(a)(ii), (iii), (iv), (v) and (vi) of the Telecommunications (Interception and Access) Act enables law enforcement agencies such as the Australian Federal Police and State and Territory police services to obtain warrants to intercept and access communications for the purposes of investigating these heinous crimes. The inclusion of these offences as 'serious offences' in the Telecommunications (Interception and Access) Act is consistent with the inclusion of the existing slavery, slavery-like and people trafficking offences as 'serious offences' under the Telecommunications (Interception and Access) Act.