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).
This topic examines the offence of aggravated people smuggling (5 or more people).
Availability of offence
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).
The offence of aggravated people smuggling (5 or more people) has the following 5 elements:
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;
The accused did so intentionally;
At least 5 people in the group were non-citizens;
The non-citizens had no lawful right to come to Australia;
The accused was reckless as to the non-citizens’ lack of a lawful right of entry (Migration Act 1958 s233C).
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.