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In Australia, offences relating to the smuggling of migrants fall under federal jurisdiction.  They are referred to as ‘offences of people smuggling’ and are set out in the Migration Act 1958 (Cth) which, following Australia’s ratification of the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air [the Smuggling of Migrants Protocol], are duplicated in almost identical form in the Criminal Code (Cth).  Australia signed the Smuggling of Migrants Protocol, together with the Convention against Transnational Organized Crime, on 21 December 2000.  Australia ratified the Protocol on 24 May 2004.  Significant parts of the Protocol were implemented into domestic law with the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002(Cth), supplementing relevant provisions already existing at that time.

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’ – a term 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 as required by section 42(1) of the Migration Act.  The offence — and its equivalent today — attracts a penalty of 20 years imprisonment and a mandatory penalty of five years for first time offenders.[1]  Former section 233(1)(a) set out a similar offence for cases involving less than five persons.[2]

Minor amendments aside, these offences remained unchanged for about 10 years until the introduction of theAnti-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.[3]

Offences under the Migration Act 1958 (Cth)

The Anti-People Smuggling and Other Measures Act 2010 (Cth) substituted the people smuggling offences in theMigration Act 1958 (Cth) with sections 233A to 233E, 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:

(a)  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
(b)  the second person is a non-citizen; and
(c)  the second person had, or has, no lawful right to come to Australia.

In addition, the Migration Act also provides for two aggravated offences of people smuggling: an aggravated offence of people smuggling (exploitation, or danger of death or serious harm etc), s 233B; and an aggravated offence of people smuggling (at least 5 people), s 233C.  Penalties for these offences range from imprisonment for 10 years or a AUD110 000 fine or both to imprisonment for 20 years or a AUD220 000 fine or both. A number of these offences contain mandatory minimum sentences and non-parole periods.[4]

The most commonly used people smuggling offence is that under s 233C of the Migration Act 1958 (Cth), which replaced former s 232A.  Section 233C(1) provides that:

A person (the first person) commits an offence if:

(a)  the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons); and
(b)  at least 5 of the other persons are non-citizens; and
(c)  the persons referred to in paragraph (b) who are non-citizens had, or have, no lawful right to come to Australia.

The Deterring People Smuggling Act 2011 (Cth) introduced a new s 228B into the Migration Act which clarified that, for the purposes of the circumstance element of smuggling a non-citizen with no lawful right to come to Australia, it is immaterial whether Australia owes, or may owe, protection obligations to the non-citizen under theConvention and Protocol Relating to the Status of Refugees or for any other reason.  The element is met if the non-citizen does not hold a valid visa to enter Australia, irrespective of any such protection obligations.

The Anti-People Smuggling and Other Measures Act 2010 (Cth) also introduced a new offence for supporting the offence of people smuggling in s 233D of the Migration Act 1958 (Cth) and in identical form in s 73.3A of theCriminal Code (Cth).  According to the explanatory material, the introduction of these offences was necessary to target persons involved in ‘supporting and facilitating’ the smuggling of migrants by ‘organised criminal syndicates.’[5]  These offences criminalise, inter alia, financially supporting the smuggling of migrants.  Further reforms in 2011 amending the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) sought to strengthen the regulation of the Australian remittance sector and, inter alia, prevent and suppress the use of alternative remittance systems to finance the smuggling of migrants.  These measures have significant implications for Australia’s migrant communities who frequently use the informal financial sector to support their families in their countries of origin.  It is also not uncommon for migrant communities to provide the funds that will enable the future migration of their relatives.  Research conducted by the UQ Migrant Smuggling Working Group in 2013–14 explores and analyses the framework designed to combat the financing of migrant smuggling.  The research reflects on the actual and potential impact on the financing of migrant smuggling, the remittance flow between diaspora and home communities, and the ability of the legislative and regulatory measures to achieve its objectives and reduce the levels of migrant smuggling to Australia.  The finding of this research have been published in: Andreas Schloenhardt & Thomas Cottrell, ‘Financing the Smuggling of Migrants into Australia’ (2014) 38 Criminal Law Journal 265–286.

The Criminal Code (Cth) and Migration Act 1958 (Cth) also have a range of offences relating to document fraud that are imperative to targeting the smuggling of migrants.[6]  Furthermore, the Migration Act 1958 (Cth) also has an offence relating to the harbouring of non-citizens, 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 take effect where an accused facilitates the illegal entry of a migrant into Australia, and the Criminal Code (Cth) offences also targets 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 (exploitation or 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

The defences that have been raised by defendants charged with people smuggling in Australia include mistake of fact,[7] duress,[8] and sudden or extraordinary emergency.[9]  

Mistake of Fact

The defence of mistake of fact serves to excuse 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 sections 233A and 233C of the Migration Act 1958 (Cth), this means 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, the defence entitled ‘mistake or ignorance of fact’ is set out in s 9 of the Criminal Code.

Duress

The defence of duress (or compulsion as it is termed in some jurisdictions) serves to excuse a person from criminal responsibility 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 can be found in s 10.2 of the Criminal Code (Cth).  The defence usually arises in situations in which 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 – involves a claim by the accused that he or she was compelled to commit an offence by reason of some extraordinary emergency.  In Australian federal criminal law the defence can be found in s 10.3 of theCriminal 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 can be supported by international law, where interpretative and supplementary material to theSmuggling of Migrants Protocol emphasise that ‘activities of those who provide support to migrants for humanitarian reasons’ are to be exempted from criminal liability.[10]

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’.[11]  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.[12]  Australian courts and the Australian Government have, however, made it clear that smuggled migrants, even if they are recognised as refugees in Australia, have no lawful right to come to Australia and that migrant smugglers do not escape criminal liability in these circumstances.

In 2012–13, the UQ Migrant Smuggling Working Group conducted research to identify the specific grounds on which persons charged with people smuggling offences under Australia’s Migration Act sought to excuse and justify their actions and to analyse the wider issues of existing and conceivable defences to migrant smuggling.  The findings of this research have been published in: Andreas Schloenhardt & Connor Davies, ‘Smugglers and Samaritans: Defences to People Smuggling in Australia’ (2013) 36(3) UNSW Law Journal 954–984.

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 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. 

A second potential clash between Article 5 and the Australian legislative regime of the Migration Act 1958 (Cth) arises from the policy of mandatory detention of unauthorised non-citizens.[13]  Sections 178 and 189 of theMigration Act provide that any unlawful non-citizen must be placed and kept in immigration detention until they are either removed from Australia, or granted a visa allowing them to remain in the country.  With respect to Article 5, the concern arising from the mandatory detention regime is that smuggled migrants (who generally arrive in Australia unlawfully by boat) are criminalised indirectly for having been smuggled into Australia.  Whether the obligation to implement Article 5 in good faith is breached by the practice of mandatory detention hinges on whether such a practice could be construed as, or have the effect of, achieving indirectly what Article 5 prohibits States from doing: that is subjecting smuggled migrants to criminal punishment for their conduct in having been smuggled.

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 for 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.

Footnotes

[1]   Migration Act 1958 (Cth), former s 233C. The minimum penalty for repeat offenders was eight years. The minimum non-parole period for first time offenders was three years, and five years for repeat offenders.
[2]   See further, Andreas Schloenhardt, Migrant Smuggling: Illegal Migration and Organised Crime in Australia and the Asia Pacific Region (Martinus Nijhoff, 2003) 169–170.
[3]   Explanatory Memorandum, Anti-People Smuggling and Other Measures Bill 2010 (Cth) 1.
[4]   Migration Act 1958 (Cth), s 236B.
[5]   Explanatory Memorandum, Anti-People Smuggling and Other Measures Bill 2010 (Cth) 8.
[6]   Criminal Code (Cth), s 73.6 – 73.11; Migration Act 1958 (Cth), s 234 – 234A.
[7]   Criminal Code (Cth), s 9.1.
[8]   Criminal Code (Cth), s 10.2.
[9]   Criminal Code (Cth), s 10.3.
[10]   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.
[11]   Migration Act ss 233A(1)(c), 233C(1)(c).
[12]   Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) (‘Refugee Convention’).
[13]   Migration Act 1958 (Cth) Division 6.