9.3 - People Smuggling
9.3.1 - Bench Notes: People Smuggling (Basic
Offence)1
Overview
1.
2.
The Migration Act 1958 (Cth)2 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).
These Bench Notes examine the basic people smuggling offence.
Elements
3.
4.
The offence of people smuggling has the following 5 elements:
i)
The accused organised or facilitated the bringing or coming to
Australia of a second person, or the entry or proposed entry of
a second person into Australia;
ii)
The accused did so intentionally;
iii)
The second person was a non-citizen;
iv)
The second person had no lawful right to come to Australia;
v)
The accused was reckless about the second person’s lack of a
lawful right of entry (Migration Act 1958 s233A).
Section 233A creates one offence which may be committed in a
number of different ways. It does not create a number of separate
offences (R v Ahmad [2012] NTCCA 1).
Organising or facilitating entry to Australia
5.
1
The first element the prosecution must prove is that the accused
Last updated 17 September 2013
Unless otherwise stated, all references to legislation in these Bench Notes are to
Commonwealth legislation.
2
1
organised or facilitated:

The bringing or coming to Australia of a second person; or

The entry or proposed entry of a second person into Australia
(Migration Act 1958 s233A).
6.
“Australia” is defined to include the coastal sea of Australia, the
Territory of Christmas Island and the Territory of Cocos (Keeling)
Islands, but not any other external Territory (Acts Interpretation Act
1901 s2B, 15B).
7.
This is a physical element which consists of “conduct” (PJ v R [2012]
VSCA 146; Criminal Code Act 1995 s4.1(a)).3
8.
The words “organise” and “facilitate” carry their ordinary meanings:
9.

“Organise” means “arrange personally; take responsibility for
providing (something)” (PJ v R [2012] VSCA 146. See also R v
Bahar [2011] WASCA 249).

“Facilitate” means “make easy or easier; promote; help forward
(an action result etc)” (PJ v R [2012] VSCA 146. See also R v
Mahendra [2011] NTSC 57; R v Bahar [2011] WASCA 249).
The words “organise” and “facilitate” are active verbs, describing
conduct directed at producing a result or outcome. They require the
accused’s conduct to have been directed at the purpose of bringing
about the arrival of the relevant passengers at, or their entry into,
Australia (PJ v R [2012] VSCA 146).
10. This element is not met simply because the accused provided food,
accommodation, medical or other humanitarian assistance to
refugees or asylum seekers, if that conduct was not connected with
organising or facilitating entry to Australia (Ahmadi v R [2011]
WASCA 237).
11. The expression “coming to Australia” refers to the journey to
Australia, rather than the actual entry into Australia (R v Ahmad
[2012] NTCCA 1).
12. This element is completed once the relevant act of organisation or
facilitation has occurred. The journey to Australia does not need to
have been undertaken, and the second person does not need to have
arrived at or entered Australian territory (R v Ahmad [2012] NTCCA
Consequently, the appropriate fault element is intention: Criminal Code Act
1995 s5.6(1). See the discussion of the second element below for further
information.
3
2
1; R v Mahendra [2011] NTSC 57).4
Intentionally organising or facilitating entry
13. The second element the prosecution must prove is that the accused
intentionally organised or facilitated the bringing or coming to
Australia of a second person, or their entry or proposed entry into
Australia (PJ v R [2012] VSCA 146; Bahar v R [2011] WASCA 249;
Criminal Code Act 1995 s5.6(1)).
14. A person “intends” to engage in conduct if he or she means to
engage in that conduct (Criminal Code Act 1995 s5.2(1)).
15. For this element to be met, the accused must have been aware of
the purpose and destination of the voyage (Bahar v R [2011] WASCA
249).
16. This requires the prosecution to prove that the accused intended to
organise or facilitate entry to a place known to the accused as
Australia. It is not enough to show that he or she intended to
organise or facilitate entry to a place that the law defines to be
Australia (PJ v R [2012] VSCA 146; Bahar v R [2011] WASCA 249).
17. The relevant point in time to examine the accused’s intention is the
moment when he or she engaged in the relevant conduct (Bahar v R
[2011] WASCA 249).
18. Thus, if it is alleged that the accused facilitated entry to Australia by
conduct performed during the voyage to Australia, the prosecution
must prove that he or she intended to facilitate entry when he or she
committed the relevant conduct. They do not need to prove that the
accused intended to facilitate entry at the time he or she boarded the
vessel (Bahar v R [2011] WASCA 249).
The second person is a non-citizen
19. The third element the prosecution must prove is that the second
person is a non-citizen (Migration Act 1958 s233A).
20. A non-citizen is defined as a person who is not an Australian citizen
(Migration Act 1958 s5).
21. This is an element of absolute liability (Migration Act 1958
s233A(2)). Consequently:

The prosecution does not need to prove that the accused was
aware that the second person was a non-citizen; and
While successful entry into Australia is not an element of the crime, it may be
relevant to sentencing: R v Ahmad [2012] NTCCA 1.
4
3

The defence of mistake of fact is not available (Criminal Code
Act 1995 s6.2; PJ v R [2012] VSCA 146).
No lawful right of entry
22. The fourth element the prosecution must prove is that the second
person had no lawful right to come to Australia (Migration Act 1958
s233A).
23. This is a physical element which consists of a “circumstance in which
conduct … occurs” (PJ v R [2012] VSCA 146; Criminal Code Act 1995
s4.1(c)).5
24. A non-citizen has no lawful right to come to Australia if he or she:

Does not hold a visa permitting entry;

Is not covered by a relevant exemption; and

Is not permitted by regulations to travel to Australia without a
visa permitting entry (Migration Act 1958 s228B(1)).6
25. A person who fails to meet these entry requirements has no lawful
right to come to Australia, even if he or she is seeking protection or
asylum. This is the case regardless of any protection obligations
Australia owes non-citizens under the Refugees Convention or for
any other reason (Migration Act 1958 s228B(2); R v Baco [2011]
NTSC 75; SZ v Minister for Immigration and Cultural Affairs (2000)
101 FCR 342).7
Recklessness about the lack of lawful right of entry
26. The fifth element the prosecution must prove is that the accused was
reckless about the second person’s lack of lawful right to come to
Australia (Criminal Code Act 1995 s5.6; PJ v R [2012] VSCA 146).
27. This requires the prosecution to prove that the accused:

Was aware of a substantial risk that the second person had no
lawful right to enter Australia; and
Consequently, the appropriate fault element is recklessness: Criminal Code Act
1995 s5.6(2). See the discussion of the fifth element below for further
information.
5
This section was amended by the Anti-People Smuggling and Other Measures
Act 2010, which commenced operation on 1 June 2010.
6
This section was added by the Deterring People Smuggling Act 2011. It has
retrospective operation, and is taken to have commenced operation on 16
December 1999.
7
4

Having regard to the circumstances known to the accused, it
was unjustifiable to take that risk (Criminal Code Act 1995 s5.4;
PJ v R [2012] VSCA 146).
28. Proof of intention or knowledge is also sufficient to prove this
element (Criminal Code Act 1995 s5.4(4)).
29. A person will have intention in relation to this element if he or she
believes that the second person has no lawful right to come to
Australia (Criminal Code Act 1995 s5.2).
30. A person will have knowledge in relation to this element if he or she
is aware that the second person has no lawful right to come to
Australia (Criminal Code Act 1995 s5.3)
31. It is not sufficient to show that the accused was reckless about the
second person’s right to enter their ultimate destination (which
happened to be Australia). The element requires proof that the
accused turned his or her mind to the risk that the second person
had no lawful right to enter a place known to the accused as
Australia, and decided (unjustifiably) to take the risk (PJ v R [2012]
VSCA 146).
32. It is for the jury to determine whether or not it was unjustifiable to
take the risk (Criminal Code Act 1995 s5.4(3)). This requires them to
make a moral or value judgment concerning the accused’s advertent
disregard of the risk (R v Saengsai-Or (2004) 61 NSWLR 135).
33. The jury must assess the likelihood of the risk eventuating, and
determine whether the risk is one which should have been taken
(Lustig v R [2009] NSWCCA 143).
34. The unjustifiability of the risk must be assessed on the facts as the
accused perceived them (Criminal Code Act 1995 s5.4(1)(b)).
However, the accused does not need to have believed that it was
unjustifiable to take the risk. The test is objective not subjective.
Defences
35. Section 4A of the Migration Act 1958 states that Chapter 2 of the
Criminal Code Act 1995 applies to all offences against that Act.8
Consequently, any of the defences set out in Part 2.3 of the Criminal
Code Act 1958 may be relevant to a charge of people smuggling.
36. One commonly raised defence is sudden or extraordinary emergency
(see, e.g., Warnakulasuriya v R [2012] WASCA 10; Tran v The
Commonwealth [2010] FCAFC 80). See Bench Notes: Sudden or
Extraordinary Emergency (Topic Not Yet Complete) for information
8
This section commenced operation on 19 September 2001.
5
concerning the scope of this defence.
Extra-Territoriality
37. Section 233A operates extra-territorially. The offence may be
complete before the other person arrives at or enters Australian
territory (Migration Act 1958 s228A; R v Ahmad [2012] NTCCA 1; R
v Mahendra [2011] NTSC 57).
6