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.
- 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.).
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.
- Ahmadi v R  WASCA 237
- Magaming v R  HCA 40
- Payara v R  VSCA 146
- R v Ahmad  NTCCA 1
- Bahar, Abdullah & Anto v R  WASCA 249
Practice Group Instructions (PGI)
PGI HEBP No. 1 – Prosecution of juveniles for people smuggling offences
PGI HEBP No. 4 – Age Determination in People Smuggling Prosecutions
PGI HEBP No. 5 – Bail in Adult Crew People Smuggling Prosecutions