Commonwealth Director of Public Prosecutions (CDPP)

People Smuggling

People Smuggling

People smuggling involves organising and assisting in bringing people to Australia who are not Australian citizens and who do not have valid visas to travel here.

This often involves long and perilous journeys to Australia in overcrowded and rudimentary vessels that are dangerous for the people on board and which may result in the loss of lives.  Vessels generally head towards the Australian territories of Christmas Island or Ashmore Reef, rather than attempting to reach the Australian mainland.

Offences for smuggling people into Australia are contained in the Migration Act 1958 and apply to both the organisers of these ventures and the crew of the vessels.  There are also ancillary offences such as concealing a person who has illegally entered or intends to enter Australia and false documents in relation to a non-citizen.  Some of these offences carry mandatory minimum penalties, such as an offence of aggravated people smuggling (section 233C of the Migration Act 1958) which is committed when a person organises or assists in bringing 5 or more non-citizens without valid visas to Australia.

On 27 August 2012, the then Attorney-General gave a Direction pursuant to section 8 of the DPP Act that the Director must not institute, carry on or continue to carry on a prosecution for an offence under section 233C of the Migration Act 1958 against a crew member of a people smuggling venture other than in certain specified circumstances.  These circumstances are when a person allegedly commits an offence that falls within the definition of a repeat offence, the person’s role in the people smuggling venture extends beyond that of a crew member, or a death occurred in relation to the people smuggling venture.  The Direction also requires the CDPP to consider instituting, carrying on or continuing to carry on a prosecution against the person pursuant to section 233A of the Migration Act 1958 in accordance with the Prosecution Policy of the Commonwealth. Section 233A is an offence of people smuggling which is committed when a person organises or assists in bringing a non-citizen without a valid visa to Australia and carries no mandatory minimum penalty. Following the Direction, a number of prosecutions pursuant to section 233C of the Migration Act 1958 were discontinued with some recommenced pursuant to section 233A. On 4 March 2014, the Attorney-General formally revoked the Direction. The revocation did not apply to proceedings, including appeals, which commenced prior to the date of the Instrument.

There has been a significant decrease in the number of people smuggling matters referred to the CDPP over the past two financial years.  As at 30 June 2014 there were 28 people smuggling prosecutions involving organisers, captain and crew before the courts.

Commonly Used Offences

  • s.233A Migration Act 1958 – offence of people smuggling;
  • s.233C Migration Act 1958 – aggravated offence of people smuggling (at least 5 people)
  • s.233B Migration Act 1958 – aggravated offence of people smuggling (exploitation, or danger of death or serious harm etc.)

Penalties

People smuggling offences carry significant maximum terms of imprisonment and mandatory minimum sentences apply to certain offences including section 233C of the Migration Act 1958. The maximum penalty for an offence of people smuggling pursuant to section 233A is 10 years imprisonment. The maximum penalty for an offence of aggravated people smuggling pursuant to sections 233C or 233B is 20 years imprisonment. Section 236A provides that the court may not make an order under section 19B of the Crimes Act (a non-conviction order) in respect of a charge for an offence under section 233C or 233B, unless it is established on the balance of probabilities that the person charged was aged under 18 years at the time that the offence was alleged to have been committed. Section 236B applies if a person is convicted of an offence under sections 233C or 233B, unless it is established on the balance of probabilities that they were aged under 18 years when the offence was committed.  It provides that, if the conviction is for a repeat offence, the court must impose a sentence of imprisonment of at least 8 years, with a non-parole period of at least 5 years.  In other cases, the court must impose a minimum sentence of 5 years, with a minimum non-parole period of 3 years.

Sentencing

The CDPP provides sentencing data to the Commonwealth Sentencing Database (CSD). Permission to access the CSD can be obtained at http://njca.com.au/sentencing/

Significant Cases

  • Ahmadi v R [2011] WASCA 237
  • Magaming v R [2013] HCA 40
  • Payara v R [2012] VSCA 146
  • R v Ahmad [2012] NTCCA 1
  • Bahar, Abdullah & Anto v R [2011] WASCA 249

Relevant Legislation

Migration Act 1958 Criminal Code

Practice Group Instructions (PGI)

PGI HEBP No. 1 – PDF icon Prosecution of juveniles for people smuggling offences

PGI HEBP No. 4 – PDF icon Age Determination in People Smuggling Prosecutions

PGI HEBP No. 5 – PDF icon Bail in Adult Crew People Smuggling Prosecutions

Recent Law Reform

Legislation

The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013, commenced on 7 March 2013 and removed references to wrist x-rays as a prescribed age determination procedure and confirm that the onus of proof in establishing age in people smuggling matters lies with the prosecution.  It also enabled the use of evidentiary certificates to assist with the proof of formal matters in the prosecution of people smuggling offences and provides that time spent in immigration detention or on remand prior to sentencing is recognised as time already served in the sentencing of those convicted of people smuggling offences. The Deterring People Smuggling Act 2011 commenced on 29 November 2011.  The Act inserted section 228B into the Migration Act 1958 to clarify when a non-citizen has no lawful right to come to Australia for the purposes of Part2, Division 12, Subdivision A of the Migration Act.  This provision operates from 16 December 1999.

Inquiries

In 2011-2012 the CDPP contributed to the inquiry conducted by the Australian Human Rights Commission into the treatment of individuals suspected of people smuggling offences who say that they are children. The CDPP’s response to the Inquiry Report of July 2012 is at Appendix 6 to that Report.

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