MPs - Wake Up - Do not allow the Anti-Trafficking amendments to be passed..

Well, the UMNO-led BN Malaysian government is going to amend the Anti-Trafficking in Persons Act 2007 D.R.22/2010(Anti-Trafficking in Persons (Amendment) Bill 2010), and sadly, it does not correct the flaws and the inadequacies of the Act - but further complicates matters.

See earlier post:- Malaysia's Anti-Trafficking Act will cause injustice to workers...especially migrant workers

This time, it wrongly tries  to lump 'trafficking in human persons' and  the 'smuggling of persons' across the border into Malaysia.

Many persons, especially refugees, asylum seekers and undocumented migrants, use the services of 'smugglers' to get into Malaysia (and also out of Malaysia), or they smuggle themselves into the country. This is an offence against the immigration laws of the country - and  should not be unnaturally lumped into the Anti-Trafficking in Persons Act. In fact, is not an unlawful entry... an offence already under the Immigration Act? Unlawful entry  into and exit from the country, facilitating/assisting such unlawful entries  into and exits should rightly be offences under the Immigration Act only.

What is the AG's Chambers and the Malaysian Government up to? Same acts offences in 2 different Acts? Just like the possession of firearms/bullets - where the AG will have the 'power' to choose under which Act to charge. For some under the Act which has a lesser penalty.... and for others under the Act with a higher penalty. This should not be....for it is wrong.

The right of the accused to be able to cross-examine the witnesses...to challenge the witnesses in court is a fundamental right that ensures a fair trial. Currently, the Anti-Trafficking in Persons Act 2007 allows for statements, with the presence of the maker, to be adduced and received as evidence in a trial - and, not only is this wrong - but may even be worse that some of the provisions of the ESCAR (Emergency Security Cases Regulations). I hope the human rights lawyers in Parliament protested this provisions in the Act.   

I have not studied the Bill in detail - and may have further comments later on    

a bill

i n t i t u l e d

An Act to amend the Anti-Trafficking in Persons Act 2007.

[ ]

ENACTED by the Parliament of Malaysia as follows:

Short title and commencement

1. (1) This Act may be cited as the Anti-Trafficking in Persons (Amendment) Act 2010.

(2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette.

Amendment of long title

2. The Anti-Trafficking in Persons Act 2007 [Act 670], which is referred to as the “principal Act” in this Act, is amended by substituting for the long title the following long title:

“An Act to prevent and combat trafficking in persons and smuggling of migrants and to provide for matters connected therewith.”.

Amendment of section 1

3. Subsection 1(1) of the principal Act is amended by inserting after the words “Anti-Trafficking in Persons” the words “and Anti-Smuggling of Migrants”.

Amendment of section 2

4. Section 2 of the principal Act is amended—

(a) in the definition of “Council”, by inserting after the words “Anti-Trafficking in Persons” the words “and Anti-Smuggling of Migrants”;

(b) by inserting after the definition of “Minister” the following definition:

‘ “smuggled migrant” means a person who is the object of the act of smuggling of migrants, regardless of whether that person participated in the act of smuggling of migrants;’;

(c) by substituting for the definition of “receiving country” the following definition:

‘ “receiving country” means a country into which a trafficked person or a smuggled migrant is brought as part of an act of trafficking in persons or smuggling of migrants, as the case may be;’;

(d) by inserting after the definition of “receiving country” the following definition:

‘ “transit country” means a country from which, or into or through which, a trafficked person or a smuggled migrant, as the case may be, is brought or travels through by land, sea or air or temporarily remains in as part of an act of trafficking in persons or smuggling of migrants;’;

(e) by inserting after the definition of “officer of the Malaysian Maritime Enforcement Agency” the following definition:

‘ “Labour Officer” means a Labour Officer appointed under section 3 of the Employment Act 1955 [Act 265] or section 3 of the Labour Ordinance (Sabah Cap. 67) or section 3 of the Labour Ordinance (Sarawak Cap. 76);’;

(f) in the national language text, in the definition of “Pegawai Kebajikan Masyarakat”, by substituting for the word “Pembantu” the word “Penolong”; Anti-Trafficking in Persons (Amendment) 2010 3

(g) by substituting for the definition of ‘ “trafficking in persons” or “traffics in person” ’ the following definition:

‘ “trafficking in persons” means all actions involved in acquiring or maintaining the labour or services of a person through coercion, and includes the act of recruiting, conveying, transferring, harbouring, providing or receiving a person for the purposes of this Act;’; and

(h) by inserting after the definition of “conveyance” the following definition:

‘ “smuggling of migrants” means—

(a) arranging, facilitating or organizing, directly or indirectly, a person’s unlawful entry into or through, or unlawful exit from, any country of which the person is not a citizen or permanent resident either knowing or having reason to believe that the person’s entry or exit is unlawful; and

(b) recruiting, conveying, transferring, concealing, harbouring or providing any other assistance or service for the purpose of carrying out the acts referred to in paragraph (a);’.

Amendment of section 3

5. Section 3 of the principal Act is amended—

(a) by inserting after the words “inside or outside Malaysia” the words “and whatever the nationality or citizenship of the offender”;

(b) in paragraph (a), by inserting after the words “receiving country” the words “or transit country”; and

(c) by substituting for paragraph (b) the following paragraph:

“(b) if the receiving country or transit country is a foreign country but the trafficking in persons or smuggling of migrants starts in Malaysia or transits Malaysia.”.

Amendment of section 5

6. Subsection 5(1) of the principal Act is amended by inserting after the words “trafficking in persons” the words “and smuggling of migrants”.

Amendment of Part II

7. Part IIof the principal Act is amended in the heading by inserting after the words “ANTI-TRAFFICKING IN PERSONS” the words “AND ANTI-SMUGGLING OF MIGRANTS”.

Amendment of section 6

8. Section 6 of the principal Act is amended—

(a) in the shoulder note, by inserting after the words “Anti-Trafficking in Persons” the words “and Anti-Smuggling of Migrants”;

(b) in subsection (1), by inserting after the words “Anti-Trafficking in Persons” the words “and Anti-Smuggling of Migrants”;

(c) in subsection (2)—

(i) by deleting the word “and” appearing at the end of paragraph (m);

(ii) by substituting for the full stop at the end of paragraph (n) the words “; and”; and

(iii) by inserting after paragraph (n) the following paragraph:

“(o) not more than two persons from non-governmental organizations or other relevant organizations with appropriate experience, knowledge and expertise on problems and issues relating to smuggling of migrants, to be appointed by the Minister.”; Anti-Trafficking in Persons (Amendment) 2010 5

(d) in subsection (3), by substituting for the words “paragraph (2)(n)” the words “paragraphs (2)(n) and (o)”; and

(e) in subsection (4), by substituting for the words “paragraph (2)(n)” the words “paragraphs (2)(n) and (o)”.

Amendment of section 7

9. The principal Act is amended by substituting for section 7 the following section:

“Functions and powers of the Council

7. (1) The Council shall perform the following functions:

(a) coordinating the implementation of this Act;

(b) formulating policies and programmes to prevent and combat trafficking in persons and smuggling of migrants;

(c) formulating protective programmes for trafficked persons;

(d) initiating education programmes to increase public awareness of the causes and consequences of the act of trafficking in persons and smuggling of migrants;

(e) monitoring the immigration and emigration patterns in Malaysia for evidence of trafficking in persons and smuggling of migrants and to secure the prompt response of the relevant government agencies and non-governmental organizations to problems on trafficking in persons and smuggling of migrants brought to its attention;

(f) advising the Government on the issues of trafficking in persons and smuggling of migrants including developments at the international level against trafficking in persons and smuggling of migrants;

(g) making recommendations to the Minister on all aspects of the prevention and combating of trafficking in persons and smuggling of migrants;

(h) coordinating the formulation of policies and monitoring the implementation of such policies on issues of trafficking in persons and smuggling of migrants with relevant government agencies and non-governmental organizations;

(i) cooperating and coordinating with governments and international organizations on trafficking in persons and smuggling of migrants;

(j) collecting and collating data and information, and authorising research, in relation to the prevention and combating of trafficking in persons and smuggling of migrants; and

(k) performing any other functions for the proper implementation of this Act.

(2) The Council shall have all such powers as may be necessary for, or in connection with, or reasonably incidental to, the performance of its functions.”.

Amendment of section 15

10. Section 15 of the principal Act is amended by substituting for the words “fifty thousand ringgit but not exceeding five hundred thousand ringgit” the words “five hundred thousand ringgit but not exceeding one million ringgit and shall also be liable to forfeiture of the profits from the offence”.

New section 15a

11. The principal Act is amended by inserting after section 15 the following section:

“Offence in relation to trafficked person in transit

15a. Any person who brings in transit a trafficked person through Malaysia by land, sea or air, or otherwise arranges or facilitates such act commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding seven years, and shall also be liable to fine.”. Anti-Trafficking in Persons (Amendment) 2010

New section 17a

12. The principal Act is amended by inserting after section 17 the following section:

 “Movement or conveyance of trafficked person irrelevant

17a. In a prosecution for any offence under this Part, the prosecution need not prove the movement or conveyance of the trafficked person but that the trafficked person was subject to exploitation.”.

Amendment of section 23

13. Section 23 of the principal Act is amended—

(a) in subsection (1), by inserting after the words “receiving country” the words “or transit country”;

(b) by substituting for subsection (2) the following subsection:

“(2) Any owner, operator or master of any conveyance mentioned in subsection (1) who—

(a) knowingly permits or has reasonable grounds to believe that such conveyance is used for purposes of bringing a person into a receiving country or transit country without travel documents required for the lawful entry of that person into the receiving country or transit country; or

(b) knowingly permits or has reasonable grounds to believe that such conveyance is being used for purposes of committing any offence of trafficking in persons,

commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding five years or to both.”; (c) in subsection (3), by inserting after the words “receiving country”, wherever they appear, the words “or transit country”;

(d) in subsection (4), by inserting after the words “receiving country” the words “or transit country”; and

(e) by inserting after subsection (4) the following subsection:

“(5) Where there is no prosecution or conviction under this section, the owner, operator or master of the conveyance used shall be jointly and severally liable for all expenses incurred by the Government in respect of the detention and maintenance of the trafficked person and his removal from Malaysia and such expenses shall be recoverable as a debt due to the Government.”.

Amendment of section 25

14. Section 25 of the principal Act is amended by inserting after the words “receiving country”, wherever they appear, the words “or transit country”.

New Part IIIa

15. The principal Act is amended by inserting after Part IIIthe following Part:

“Part IIIa

SMUGGLING OF MIGRANTS

Offence of smuggling of migrants

26a. Any person who carries out smuggling of migrants commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding fifteen years, and shall also be liable to fine, or to both. Anti-Trafficking in Persons (Amendment) 2010

Aggravated offence of smuggling of migrants

26b. Any person who commits an offence of smuggling of migrants where any of the following applies:

(a) in committing the offence, the person intends that the smuggled migrant will be exploited after entry into the receiving country or transit country whether by the person himself or by another person;

(b) in committing the offence, the person subjects the smuggled migrant to cruel, inhuman or degrading treatment; or

(c) in committing the offence, the person’s conduct gives rise to a risk of death or serious harm to the smuggled migrant,

shall, on conviction, be punished with imprisonment for a term not less than three years but not exceeding twenty years, and shall also be liable to fine, or to both.

Offence in relation to smuggled migrant in transit

26c. Any person who brings in transit a smuggled migrant through Malaysia by land, sea or air or otherwise arranges or facilitates such act commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding seven years, and shall also be liable to fine, or to both.

Offence of profiting from the offence of smuggling of migrants

26d. Any person who profits from the offence of smuggling of migrants commits an offence and shall, on conviction, be punished with imprisonment for a term of not less than seven years but not exceeding fifteen years, and shall also be liable to a fine of not less than five hundred thousand ringgit but not exceeding one million ringgit, or to both, and shall also be liable to forfeiture of the profits from the offence.

Fraudulent travel or identity documents

26e. Any person who makes, obtains, gives, sells or possesses a fraudulent travel or identity document for the purpose of facilitating an act of smuggling of migrants commits an offence and shall, on conviction, be punished with imprisonment for a term of not less than seven years but not exceeding fifteen years, and shall also be liable to a fine of not less than fifty thousand ringgit but not exceeding five hundred thousand ringgit, or to both.

Providing facilities in support of smuggling of migrants

26f. Any person, being—

(a) the owner, occupier, lessee or person in charge of any premises, room or place, knowingly permits a meeting of persons to be held in that premises, room or place; or

(b) the owner, lessee or person in charge of any equipment or facility that allows for recording, conferences or meetings via technology, knowingly permits that equipment or facility to be used,

for the purpose of committing an offence under this Part, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding ten years, and shall also be liable to fine, or to both.

Providing services for purposes of smuggling of migrants

26g. (1) Any person who, directly or indirectly, provides or makes available financial services or facilities—

(a) intending that the services or facilities be used, or knowing or having reasonable grounds to believe that the services or facilities will be used, in whole or in part, for the purpose of committing or facilitating the commission of an act of smuggling of migrants, or for the purpose of benefiting any person who is committing or facilitating the commission of an act of smuggling of migrants; or Anti-Trafficking in Persons (Amendment) 2010

(b) knowing or having reasonable grounds to believe that, in whole or in part, the services or facilities will be used by or will benefit any person involved in an act of smuggling of migrants,

commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding ten years, and shall also be liable to fine, or to both.

(2) For the purpose of subsection (1), “financial services or facilities” include the services and facilities offered by lawyers or accountants acting as nominees or agents for their clients.

Concealing or harbouring smuggled migrants and migrant smugglers

26h. (1) Any person who conceals or harbours, or prevents, hinders or interferes with the arrest of any person knowing or having reason to believe that such person is—

(a) a smuggled migrant; or

(b) a person who has committed or is planning or is likely to commit an act of smuggling of migrants,

commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding ten years, and shall also be liable to fine, or to both.

(2) In this section, “harbour” includes supplying a person with shelter, food, drink, money or clothes, arms, ammunition or means of conveyance, or assisting a person in any way to evade apprehension.

Supporting offence of smuggling of migrants

26i. (1) Any person who provides material support or resources to another person and the support and resources aid the receiver or any other person to engage in conduct constituting the offence of smuggling of migrants commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding fifteen years, and shall also be liable to fine, or to both.

(2) For the avoidance of doubt, a person commits an offence under subsection (1) even if the offence of smuggling of migrants is not committed.

Offence of conveyance of smuggled migrants

26j. Any person being the owner, operator or master of any conveyance who engages in the conveyance of smuggled migrants commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding five years and shall also be liable to a fine not exceeding two hundred and fifty thousand ringgit, or to both.

Obligation of owner, etc. of conveyance

26k. (1) Any person being the owner, operator or master of any conveyance that engages in the conveyance of goods or people for commercial gain shall ensure that every person travelling on board is in possession of travel documents for the lawful entry of that person into the receiving country or transit country and if not, shall refuse to convey such person.

(2) Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding five years, or to both.

(3) In any proceeding for an offence under this section, it shall be a defence for such owner, operator or master to prove that—

(a) he has reasonable grounds to believe that the travel documents of the person referred to in subsection (1) are travel documents required for lawful entry of that person into the receiving country or transit country;

(b) the person referred to in subsection (1) possessed travel documents required for lawful entry to the receiving country or transit country when that person boarded, or last boarded, the conveyance to travel to the receiving country or transit country; or Anti-Trafficking in Persons (Amendment) 2010

(c) the entry of the person referred to in subsection (1) into the receiving country or transit country occurred only because of illness or injury to that person, stress of weather or any other circumstances beyond the control of such owner, operator or master.

(4) Any person convicted of an offence under this section shall be liable to pay the costs of the smuggled migrant’s detention in, and removal from, the receiving country or transit country.

(5) Where there is no prosecution or conviction under this section, the owner, operator or master of the conveyance used shall be jointly and severally liable for all expenses incurred by the Government in respect of the detention and maintenance of the smuggled migrant and his removal from Malaysia and such expenses shall be recoverable as a debt due to the Government.”.

Amendment of section 27

16. Subsection 27(1) of the principal Act is amended—

(a) by deleting the word “and” appearing at the end of paragraph (c);

(b) by substituting for the full stop at the end of paragraph (d) the words “; and”; and

(c) by inserting after paragraph (d) the following paragraph:

“(e) any Labour Officer.”.

Amendment of section 35

17. Section 35 of the principal Act is amended by substituting for subsection (2) the following subsection:

“(2) When any witness is called for the prosecution or for the defence, other than the accused, and there is a basis for impeaching the credit of that witness, the Court shall, subject to the provisions of the Evidence Act 1950 [Act 56], refer to any statement made by that witness to an enforcement officer in the course of an investigation under this Act and may then use that statement to impeach the credit of the witness.”.

Amendment of Part V

18. Part V of the principal Act is amended by inserting before section 42 the following section:

“Non-application

41a. This Part shall not apply to a smuggled migrant unless such smuggled migrant is a trafficked person.”.

Amendment of section 44

19. Subsection 44(2) of the principal Act is amended by substituting for the word “may” the word “shall”.

Amendment of section 51

20. Section 51 of the principal Act is amended—

(a) in subsection (2), by inserting after the words “the Protection Officer shall” the word “jointly”; and

(b) by inserting after subsection (5) the following subsection:

“(6) Nothing in this section shall prejudice any prosecution of an act of trafficking in persons under this Act.”.

Amendment of section 52

21. Section 52 of the principal Act is amended—

(a) in subsection (1)—

(i) by substituting for the words “an enforcement officer” the words “the Public Prosecutor”; and

(ii) by substituting for the words “Magistrate’s Court” the words “Sessions Court before which the criminal prosecution has been instituted”; and

(b) in subsections (2), (3) and (5), by substituting for the word “Magistrate” the words “Sessions Court Judge”. Anti-Trafficking in Persons (Amendment) 2010

Amendment of section 58

22. Section 58 of the principal Act is amended by inserting after the words “trafficked person”, wherever they appear except for in paragraph (1)(b), the words “or smuggled migrant”.

New section 61a

23. The principal Act is amended by inserting after section 61 the following section:

“Admissibility of deposition of trafficked person or smuggled migrant who cannot be found

61a. (1) Notwithstanding anything contained in this Act and any written law to the contrary, where in any proceeding for an offence under this Act a testimony of any person in respect of whom an order of removal from Malaysia has been made by the Director General under section 32 or 33 or subsection 56(2) of the Immigration Act 1959/63 is required by the court, there shall be admissible in evidence before that court any deposition relating to the subject matter of that proceeding made by that person—

(a) in Malaysia before a Sessions Court Judge or a Magistrate in the presence or absence of the person charged with the offence; or

(b) outside Malaysia before a consular officer or a judicial officer of a foreign country in the presence or absence of the person charged with the offence,

and any such deposition shall, without further proof, be admitted as prima facie evidence of any fact stated in the deposition.

(2) It shall not be necessary for any party in any proceeding to prove the signature or official character of the Sessions Court Judge, Magistrate, consular officer or judicial officer before whom the deposition under subsection (1) was made.

(3) For the purposes of this section, a reference to—

(a) a “deposition” includes any written statement made upon oath; and

(b) an “oath” includes an affirmation or declaration in the case of persons allowed by law to affirm or declare instead of swear.

(4) Nothing in this section shall prejudice the admission as evidence of any other depositions.”.

Amendment of section 63

24. Section 63 of the principal Act is amended—

(a) by substituting for the shoulder note “General penalty” the shoulder note “General and enhanced penalties”;

(b) by renumbering the section as subsection (1) of that section; and

(c) by inserting after subsection (1) the following subsections:

“ (2) Where an offence under this Act is committed by a body corporate, the body corporate shall, on conviction—

(a) where a fine is specified under the relevant section, be liable to a fine of not less than three times the maximum fine specified; and

(b) where no fine is specified—

(i) in relation to sections 15a and 26c, shall be liable to a minimum fine of five million ringgit; and

(ii) in any other case, shall be liable to a minimum fine of one million ringgit. Anti-Trafficking in Persons (Amendment) 2010

(3) Where, after having been convicted of any offence under this Act, a person subsequently commits another offence under this Act, he shall, on conviction, for that subsequent offence, be punished with an enhanced penalty which shall not be less than the penalty that had been imposed on him for the earlier offence.

(4) Where an offence under this Act has been committed by a person who has been proved to the court to have acted jointly with one or more persons in the commission of the offence, the person shall, on conviction, be punished with an enhanced penalty which shall be a more severe penalty than that which would have been imposed on him if he had acted individually.”.

Amendment of section 66

25. Subsection 66(2) of the principal Act is amended by inserting after paragraph (f) the following paragraph:

“ (fa) to provide for the payment and recovery of any expenses incurred by the Government in connection with the detention, maintenance, medical treatment and removal from Malaysia of any person under this Act;”.

Savings

26. All references to the Anti-Trafficking in Persons Act 2007 and the Council for Anti-Trafficking in Persons in any written law or document shall, on the coming into operation of this Act, be construed as references to the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 and the Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants respectively.

EXPLANATORY STATEMENT

This Bill seeks to amend the Anti-Trafficking in Persons Act 2007 (“Act 670”).

2. Clause 1 contains the short title and provision on the commencement of the proposed Act.

3. Clause 2 seeks to amend the long title of Act 670 to widen the scope of the Act to include preventing and combating the smuggling of migrants. The amendment is necessary to deal with the current influx of illegal migrants from conflict countries who are seeking better life either in Malaysia or third countries and who, in particular, are using Malaysia as a transit point while they await their onward journey to possible countries. These migrants are distinct from trafficked persons in that they normally seek and finance the illegal migration themselves and the only danger of exploitation faced is cruel or inhuman or degrading treatment or being endangered in the course of their journey. Further, under international law, Malaysia is under a humanitarian obligation to ensure the safety of such migrants while they are on Malaysian territory. The influx of these illegal migrants also posed a security threat to Malaysia as their methods of entry and exit are generally illegal.

4. Clause 3 seeks to amend section 1 of Act 670 to amend its short title. The amendment is necessary to reflect the expanded scope of the Act in relation to the prevention and combating of smuggling of migrants.

5. Clause 4 seeks to amend section 2 of Act 670. The amendment seeks to substitute certain definitions used in Act 670 and to introduce new definitions in consequence of the expansion of Act 670 to cover the smuggling of migrants. Among the substantive definitions that have been amended or introduced are “trafficking of persons”, “smuggled migrants”, “smuggling of migrants” and “transit country”.

6. Clause 8 seeks to amend section 6 of Act 670 to change the name of the Council for Anti-Trafficking in Persons to “Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants” in consequence of the expanded scope of the Act and its functions. The membership of the Council will be expanded to include not more than two persons from non-governmental organizations or other relevant organizations with appropriate experience, knowledge and expertise on problems and issues relating to smuggling of migrants.

7. Clause 10 seeks to amend section 15 of Act 670 to increase the fine imposed upon a person who profits from the exploitation of a trafficked person from not less than fifty thousand ringgit but not exceeding five hundred thousand ringgit to a fine of not less than five hundred thousand ringgit but not exceeding one million ringgit, and the convicted offender shall also be liable to have any profits obtained from the offence forfeited.

8. Clause 11 seeks to introduce a new section, namely section 15a, into Act 670 to provide for a new offence. This amendment seeks to provide that a person who brings in transit a trafficked person through Malaysia by land, sea or air, or otherwise arranges or facilitates such act commits an offence. Anti-Trafficking in Persons (Amendment) 2010

 9. Clause 12 seeks to introduce a new section, namely section 17a, into Act 670 to provide that the prosecution need not prove the movement or conveyance of the trafficked person to prove that the offence of trafficking in person had occurred. The prosecution need only to prove that the trafficked person was subject to exploitation.

10. Clause 13 seeks to amend section 23 of Act 670 to provide that the owner, operator or master of a conveyance used for the trafficking in persons shall be jointly and severally liable for all expenses incurred by the Government in respect of the detention and maintenance of the trafficked person and his removal from Malaysia. The expenses shall be recoverable as a debt due to the Government.

11. Clause 15 seeks to introduce a new part, namely Part IIIa, into Act 670 to deal with the smuggling of migrants. This new Part IIIa contains 10 new sections, namely sections 26a to 26j. The new Part IIIa addresses concerns that have arisen about the smuggling of migrants as a criminal activity distinct from legal or illegal activity on the part of the migrants themselves. The sections specifically criminalize the exploitation of migrants and the generation of illicit profits from the procurement of illegal entry or illegal residence of migrants.

12. Clause 16 seeks to amend section 27 of Act 670 to include a Labour Officer as an enforcement officer for the purpose of the Act.

13. Clause 17 seeks to amend section 35 of Act 670 to provide for the admissibility of statement must be in accordance with the Evidence Act 1950.

14. Clause 18 seeks to introduce a new section, namely section 41a, into Part V of Act 670 to clarify that a smuggled migrant is only entitled to be protected under that Part if he was a trafficked person.

15. Clause 19 seeks to amend section 44 of Act 670 to make it mandatory for the Magistrate to make an interim protection order for a person who is found or rescued and reasonably suspected to be a trafficked person to be placed at a place of refuge for a period of fourteen days for the purpose of investigation.

16. Clause 20 seeks to amend section 51 of Act 670 to make it clear that the enforcement officer and the Protection Officer shall jointly prepare a report to the Magistrate for the purpose of satisfying the Magistrate as to whether the person against him an interim protection order has been made is a trafficked person. The amendment also seeks to provide that the decision of the Magistrate shall not prejudice any prosecution instituted against the person.

17. Clause 23 seeks to introduce a new section, namely section 61a, into Act 670 to provide for the

admissibility of a deposition made by a trafficked person or a smuggled migrant who cannot be found during a proceeding in court. The deposition must have been made upon an oath before a Sessions Court Judge or a Magistrate if in Malaysia or a consular officer or a judicial officer of outside Malaysia.

18. Clause 24 seeks to amend section 63 of Act 670 to provide for general and enhanced penalties. The amendment makes provision for penalties that are to be imposed upon a body corporate for the offences committed under the Act, as well as enhanced penalties where the offender is a repeat offender and where the offender acts jointly with one or more persons to commit the offence.

19. Clause 26 contains a saving provision in consequence of the amendment to the short title of Act 670 and the change of name of the Council.

20. Other amendments not specifically mentioned in this Statement are minor or consequential in nature.

FINANCIAL IMPLICATIONS

This Bill will not involve the Government in any extra financial expenditure.

[PN(U²)2742]