James Browne (Wexford, Fianna Fail) | Oireachtas source

I thank the Senators for their comments. There are two aspects to the amendment: adding a definition of "people smuggling" in the first place and including in that new definition a qualification that it is for the purposes of obtaining a financial or other material benefit.

In terms of having a definition at all, the specific term of "smuggling of people" is not used in the offences as drafted and it would not have an immediate effect in terms of the Bill. I can see, however, that the term is used in subsequent proposed amendments and would assume it is added for the purpose of those amendments rather than for the Bill as a whole.

Ultimately, the offences themselves, in sections 6, 7 and 8, define what smuggling of persons is for the purpose of the Bill and do so with the necessary precision. Where necessary, those sections are referred to and I do not believe that a stand-alone definition is needed.

The second element is whether smuggling of persons should be considered to necessarily involve a financial or material benefit. This question arises in several of the amendments and I intend to speak to them now because it will be relevant to those as well. This is something we debated at some length on Second Stage. I accept there are differences in approach between the UN protocol, which includes the necessity for an element of material gain, and the EU instruments, which do not have that requirement. However, these instruments set the minimum standards for what must be considered criminal activity and do not preclude the approach that we have taken.

The EU Fundamental Rights Agency, EUFRA, has considered this in some depth. Broadly speaking, the agency's conclusions were that the regime should have financial or material gain as an element of all the smuggling offences or exclude humanitarian assistance from those offences. Similarly requiring financial or material gain as an element of all offences is not an option currently under the EU instruments. It is possible to require it for facilitating residence as opposed to facilitating entry but there are clearly practical difficulties where those concepts start to overlap.

As we discussed on Second Stage, including financial or material gain in the offence places the burden of proof on the prosecutor in situations where payment has taken place outside the State. Based on this and the vital imperative of being able prosecute serious offences, we have sought to strike an appropriate balance that reflects our intention, which is to focus on for-profit smuggling while also not placing an impossible burden on prosecutors. That approach, as we have discussed, is not to require financial or material gain to be proved by the prosecution as an element but to provide a broad humanitarian assistance defence.

We have also included an important provision in respect of facilitating presence in the State. Section 5(2), which makes clear that a person does not commit an offence by providing goods or services in the ordinary course of business, addresses a key EUFRA concern regarding the possible criminalisation of, for example, landlords providing accommodation.

I believe that, taken together, this is the most practical and balanced solution and one that will be most effectively target the for-profit smuggling. In the circumstances, I cannot accept the amendment.