UQ Migrant Smuggling Working Group
Australian criminal law relating to migrant smuggling

Australia is a State Party to the Protocol against the Smuggling of Migrants by Land, Sea and Air [the Smuggling of Migrants Protocol], and the Convention against Transnational Organised Crime.  Australia ratified the Protocol on 24 May 2004, and has implemented significant parts of the Protocol into its domestic law, but domestic offences depart quite fundamentally from the international concepts of smuggling of migrants.  In Australia, offences relating to the smuggling of migrants fall under federal jurisdiction.  They are referred to as ‘people smuggling offences’ and are set out in the Migration Act 1958 (Cth).  These offences are duplicated in almost identical form in the Criminal Code (Cth).

 

Evolution of Australia’s ‘people smuggling’ offences

The people smuggling offences most commonly used in domestic prosecutions are those in Division 12, Subdivision A of the Migration Act 1958 (Cth). Relevant offences were first introduced with the Migration Legislation Amendment Act (No 1) 1999 (Cth), which raised the penalties for existing immigration offences and created new, aggravated offences for ‘people smuggling’ (though the term was not used at that time). Further amendments followed with the enactment of the Border Protection Legislation Amendment Act 1999 (Cth).  

At that time, s 232A was added to create an offence for organising or facilitating the smuggling of five or more persons who do not hold a valid visa to enter Australia. Section 233(1)(a) set out a similar offence for cases involving less than five persons.  Minor amendments aside, these offences remained unchanged for about 10 years until the introduction of the Anti-People Smuggling and Other Measures Act 2010 (Cth) which sought to strengthen the Commonwealth's anti-people smuggling legislative framework by ensuring that an appropriate range of offences are available to target and deter people smuggling activity [and putting] in place laws to provide greater deterrence of people smuggling activity.[1]

Offences under the Migration Act 1958 (Cth)

The Anti-People Smuggling and Other Measures Act 2010 (Cth) substituted the offences in ss 232A and 233 of the Migration Act 1958 (Cth) with sections 233A to 233D, which remain in operation today.  The basic offence of 'people smuggling' is now set out in s 233A.  Under s 233A:

[a] person (the first person) commits an offence if:

  1. the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person (the second person); and
  2. the second person is a non-citizen; and
  3. the second person had, or has, no lawful right to come to Australia.

The Migration Act also provides for two aggravated offences of people smuggling: an aggravated offence of people smuggling (danger of death or serious harm etc) in s 233B, and an aggravated offence of people smuggling (at least 5 people) in s 233C.  Penalties for these offences range from imprisonment for 10 years or an AUD 110,000 fine (or both), to imprisonment for 20 years or an AUD 220,000 fine (or both).  A number of these offences contain mandatory minimum sentences and non-parole periods: s 236B.

The 2010 amendments introduced a new offence for supporting the offence of people smuggling in s 233D of the Migration Act 1958 (Cth).  According to the explanatory material, the introduction of this sectionhttps://law.uq.edu.au/migrant-smuggling/criminal-law was necessary to target persons involved in ‘supporting and facilitating’ the smuggling of migrants by ‘organised criminal syndicates.’[2]  Research conducted by the UQ Migrant Smuggling Working Group in 2013–14 further explores and analyses the framework designed to combat the financing of migrant smuggling: Andreas Schloenhardt & Thomas Cottrell, ‘Financing the Smuggling of Migrants into Australia’ (2014) 38 Criminal Law Journal 265–286.

The Migration Act 1958 (Cth) also has a range of offences relating to document fraud that are imperative to targeting the smuggling of migrants,[3] and an offence relating to the harbouring of non-citizens in s 233E. 

Offences under the Criminal Code (Cth)

The people smuggling offences in the Criminal Code (Cth) are almost identical to those in the Migration Act 1958 (Cth), except that the Migration Act provisions only take effect where an accused facilitates the illegal entry of a person into Australia.  The Criminal Code (Cth) offences also target people smuggling into a foreign country, whether or not via Australia.

 

Criminal Code (Cth) - Division 73

Migration Act 1958 (Cth)-

Division 12, Subdivision A

Penalty

Offence of People Smuggling

s 73.1

s 233A

Imprisonment for 10 years or 1,000 penalty units, or both.

Aggravated Offence of People Smuggling (danger of death or serious harm etc.)

s 73.2

s 233B

Imprisonment for 20 years or 2,000 penalty units, or both.

Aggravated Offence of People Smuggling (at least 5 people)

s 73.3

s 233C

Imprisonment for 20 years or 2,000 penalty units, or both.

Supporting the Offence of People Smuggling

s 73.3A

s 233D

Imprisonment for 10 years or 1,000 penalty units, or both.

 

Defences

Defendants charged with people smuggling offences in Australia have raised a number of defences, which are outlined in the following paragraphs.  Research conducted by the UQ Migrant Smuggling Working Group further explores and examines this issue:  Andreas Schloenhardt & Connor Davies, ‘Smugglers and Samaritans: Defences to People Smuggling in Australia’ (2013) 36(3) UNSW Law Journal 954–984.

Mistake of Fact

The defence of mistake of fact exculpates the accused in situations in which he or she was mistaken about one of the elements constituting the offence the accused is charged with.  In relation to the people smuggling offences in the Migration Act 1958 (Cth), a defendant may argue that he or she was mistaken about or unaware of the fact that his or her conduct facilitated in any way the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person or of other people (that is, the smuggled migrant/s).  A defendant may also argue that he or she was mistaken about or unaware of the fact that the smuggled migrant/s had no lawful right to come to Australia.  In federal criminal law this defence is called ‘mistake or ignorance of fact’, and is set out in s 9 of the Criminal Code.

Duress

The defence of duress (or compulsion as it is termed in some jurisdictions) exculpates the accused where he or she has committed a criminal offence as a result of fear induced by a threat of physical harm to himself or herself, or to some other person, should he or she refuse to comply with the threat. In federal criminal law, the defence is found in s 10.2 of the Criminal Code (Cth).  The defence usually arises in situations where the accused must choose between two evils: to commit the acts constituting the offence, or to suffer the harm threatened.  In the context of migrant smuggling, the defence may arise, for instance, where a person was forced to facilitate or engage in a migrant smuggling venture.  This may involve threats against crewmembers or their families if they fail to join the vessel, or threats to throw them overboard if they do not comply with certain demands.

Sudden or Extraordinary Emergency

The defence of sudden or extraordinary emergency – or ‘necessity’ as it is called at common law and in some jurisdictions – exculpates the accused where he or she was compelled to commit an offence by reason of some extraordinary emergency.  In federal criminal law the defence can be found in s 10.3 of the Criminal Code (Cth).  In the context of migrant smuggling, it is arguable that the situations from which the smuggled migrants escape with the aid of migrant smugglers constitute emergencies which, through the defence in s 10.3 of the Criminal Code, would exculpate the smugglers from criminal liability for their smuggling activities. This argument may be supported by international law, where interpretative and supplementary material to the Smuggling of Migrants Protocol emphasise that ‘activities of those who provide support to migrants for humanitarian reasons’ are to be exempted from criminal liability.[4]

Smuggling of Refugees

One of the more common arguments presented by migrant smugglers to justify their actions is the fact that the passengers they brought to Australia were, by and large, fleeing from situations of persecution and came to Australia to seek asylum and gain refugee status.  In the Australian context, the debate has focused on one of the principal physical elements of the domestic people smuggling offences: the fact that the non-citizens brought to Australia ‘had or have no lawful right to come to Australia’.[5]  In short, the point raised in several people smuggling trials is that asylum seekers who are later granted a protection visa do have a lawful right to come to Australia because the Convention relating to the Status of Refugees mandates that.[6]  This argument is obviated by s 228B of the Migration Act, which states that Australia’s protection obligations towards a non-citizen, whether under the Refugee Convention or otherwise, are irrelevant to the application of people smuggling offences under the Act.

No Financial or other Material Benefit

A crucial element in the definition of smuggling of migrants in the Smuggling of Migrants Protocol is the requirement that the activity be done 'in order to obtain, directly or indirectly, a financial or other material benefit'.[7]  This element reflects the intention that persons who smuggle others for reasons other than personal gain should not be criminalised.  Australian people smuggling offences, however, do not include this requirement.  While some defendants charged with people smuggling in Australia have argued that they committed the offence for humanitarian purposes,[8] these arguments have been unsuccessful due to the lack of a ‘benefit’ element in Australia’s people smuggling offences.

Non-criminalisation of smuggled migrants

Article 5 of the Smuggling of Migrants Protocol requires Australia not to criminalise migrants for being the object of migrant smuggling.  Nothing in the Migration Act 1958 (Cth) reflects the restriction on criminal liability imposed by Article 5 of the Protocol.  Indeed, there have been a number of prosecutions in Australia where the defendants have themselves been asylum seeking passengers accused of ‘facilitating’ a people smuggling operation for having in some marginal way contributed to the journey to Australia. 

Research conducted by the UQ Migrant Smuggling Working Group in 2012 explores the extent of the obligations created by Article 5 of the Smuggling of Migrants Protocol and, on that basis, assesses the compatibility of Australia’s legislative and practical responses to the smuggling of migrants.  The findings of this research have been published in Andreas Schloenhardt & Hadley Hickson, ‘Non-Criminalisation of Smuggled Migrants: Rights, Obligations, and Australian Practice under Article 5 of the Protocol against the Smuggling of Migrants by Land, Sea, and Air’ (2013) 25(1) International Journal of Refugee Law 39–64.

Further reading

  • Andreas Schloenhardt & Charles Martin, ‘Prosecution and Punishment of People Smugglers in Australia’ (2012) 40 Federal Law Review 129–156.
  • Andreas Schloenhardt & Coling Craig, ‘Penalties and Punishment: People Smugglers before Australian Courts’ (2016) 40 Crim LJ 92-109.
  • Andreas Schloenhardt & Colin Craig, ‘Prosections of People Smugglers in Australia 2011-14’ (2016) 38 Sydney Law Review 49-83.

Footnotes

1 Explanatory Memorandum, Anti-People Smuggling and Other Measures Bill 2010 (Cth) 1.
2 Explanatory Memorandum, Anti-People Smuggling and Other Measures Bill 2010 (Cth) 8.
3 Criminal Code (Cth), s 73.6 – 73.11; Migration Act 1958 (Cth), s 234 – 234A.
4 United Nations General Assembly, Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime on the Work of its First to Eleventh Sessions UN Doc A/55/383/Add.1 (3 November 2000) 16 [88]; UNODC, Legislative Guides for the Implementation of the United Nations Convention against Transnational Organised Crime and the Protocols thereto (2004) 469; UNODC, Model Law against the Smuggling of Migrants (UNDOC, 2010) 2.
5 Migration Act ss 233A(1)(c), 233C(1)(c).
6 Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) (‘Refugee Convention’).
7 Article 3(a).
8 See, eg, Ahmadi v The Queen (2011) 254 FLR 174.