Anti-People Smuggling and Other Measures Act 2010 (50 of 2010)

Schedule 1   Amendments relating to people smuggling

Part 1   Main amendments

Migration Act 1958

8   Sections 232A to 233C

Repeal the sections, substitute:

233A Offence of people smuggling

(1) 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.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

(2) Absolute liability applies to paragraph (1)(b).

Note: For absolute liability, see section 6.2 of the Criminal Code.

(3) For the purposes of this Act, an offence against subsection (1) is to be known as the offence of people smuggling.

233B Aggravated offence of people smuggling (exploitation, or danger of death or serious harm etc.)

(1) A person (the first person ) commits an offence against this section if the first person commits the offence of people smuggling (the underlying offence ) in relation to another person (the victim ) and any of the following applies:

(a) the first person commits the underlying offence intending that the victim will be exploited after entry into Australia (whether by the first person or another);

(b) in committing the underlying offence, the first person subjects the victim to cruel, inhuman or degrading treatment (within the ordinary meaning of that expression);

(c) in committing the underlying offence:

(i) the first person's conduct gives rise to a danger of death or serious harm to the victim; and

(ii) the first person is reckless as to the danger of death or serious harm to the victim that arises from the conduct.

Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.

Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.

(2) There is no fault element for the physical element of conduct described in subsection (1), that the first person commits the underlying offence, other than the fault elements (however described), if any, for the underlying offence.

(3) To avoid doubt, the first person may be convicted of an offence against this section even if the first person has not been convicted of the underlying offence.

(4) In this section:

exploit has the same meaning as in the Criminal Code.

forced labour has the same meaning as in section 73.2 of the Criminal Code.

serious harm has the same meaning as in the Criminal Code.

sexual servitude has the meaning given by section 270.4 of the Criminal Code.

slavery has the meaning given by section 270.1 of the Criminal Code.

233C Aggravated offence of people smuggling (at least 5 people)

(1) 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.

Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.

Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.

(2) Absolute liability applies to paragraph (1)(b).

Note: For absolute liability, see section 6.2 of the Criminal Code.

(3) If, on a trial for an offence against subsection (1), the trier of fact:

(a) is not satisfied that the defendant is guilty of that offence; and

(b) is satisfied beyond reasonable doubt that the defendant is guilty of the offence of people smuggling;

the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of the offence of people smuggling, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

233D Supporting the offence of people smuggling

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

(a) the first person provides material support or resources to another person or an organisation (the receiver ); and

(b) the support or resources aids the receiver, or a person or organisation other than the receiver, to engage in conduct constituting the offence of people smuggling.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

(2) Subsection (1) does not apply if the conduct constituting the offence of people smuggling relates, or would relate, to:

(a) the first person; or

(b) a group of persons that includes the first person.

(3) To avoid doubt, the first person commits an offence against subsection (1) even if the offence of people smuggling is not committed.

233E Concealing and harbouring non-citizens etc.

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

(a) the first person conceals another person (the second person ); and

(b) the second person is a non-citizen; and

(c) the first person engages in the conduct with the intention that the second person will enter Australia in contravention of this Act.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

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

(a) the first person conceals another person (the second person ); and

(b) the second person is an unlawful non-citizen or a deportee; and

(c) the first person engages in the conduct with the intention of preventing discovery by an officer of the second person.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

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

(a) the first person harbours another person (the second person ); and

(b) the second person is an unlawful non-citizen, a removee or a deportee.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

Note: The heading to section 234 is replaced by the heading " False documents and false or misleading information etc. relating to non-citizens ".