9.3 - People Smuggling (5 or More People)

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Overview

1. The Migration Act 1958 (Cth) contains the following four people smuggling offences, which commenced operation on 1 June 2010:
   • People smuggling (s233A);
   • Aggravated people smuggling (exploitation or danger) (s233B);
   • Aggravated people smuggling (5 or more people) (s233C);
   • Supporting people smuggling (s233D).
2. This topic examines the offence of aggravated people smuggling (5 or more people).

   Availability of offence

3. Following a direction by the Attorney-General under section 8(1) of the Director of Public Prosecutions 1983 (Cth), the Commonwealth Director of Public Prosecutions must not commence proceedings for this offence unless:
   • the accused commits a repeat offence or may be convicted of a repeat offence in the same proceeding;
   • the accused’s role extended beyond that of a crew member;
   • a death occurred in relation to the people smuggling venture (Director of Public Prosecutions – Attorney-General’s Direction 2012).

   Elements

4. The offence of aggravated people smuggling (5 or more people) has the following 5 elements:
   1. The accused organised or facilitated the bringing or coming to Australia of a group of at least 5 people, or the entry or proposed entry of a group of at least 5 people into Australia;
   2. The accused did so intentionally;
   3. At least 5 people in the group were non-citizens;
   4. The non-citizens had no lawful right to come to Australia;
   5. The accused was reckless as to the non-citizens’ lack of a lawful right of entry (Migration Act 1958 s233C).
5. These elements only differ from the elements of the basic people smuggling offence (s233A) in one way: they involve a group of five or more people rather than a single person.
6. See People Smuggling (Basic Offence) for further information concerning the elements of this offence.

Last updated: 18 September 2013