Do you know the penalties for people smuggling in Australia? People smuggling in Australia is the act of transporting people into or out of Australia illegally, typically for profit. Parties may do this by air, sea, or land, and it often involves using deceptive or unethical means to avoid detection by law enforcement.
People smugglers often target vulnerable individuals who are seeking a better life in Australia. They may promise these individuals easy and affordable passage to Australia. However, they often deliver them into dangerous and exploitative situations. Once these individuals arrive in Australia, parties may force them to work in the black market, pay off large debts to the smugglers, or live in fear of deportation.
People smuggling is a serious crime in Australia, and it can carry significant penalties, including imprisonment. The Australian government has several measures to combat people smuggling, including border security measures, international cooperation, and public awareness campaigns.
Read on to learn more about penalties for people smuggling in Australia.
Section 236A: No Discharge Without Conviction for Certain Offences
Section 236A of penalties for people smuggling states that:
A court can only discharge an offender without conviction for certain offences under the Crimes Act 1914 (discharge of offenders without conviction) if the person was under 18 years old when they allegedly committed the offence. The offences covered by this section are:
- Section 233B: People smuggling
- Section 233C: People smuggling for financial gain
- Section 234A: Assisting unlawful entry
Note: See also section 236D of the Migration Act 1958, which relates to age. We will outline Section 236D later in this article.
Section 236B: Mandatory Minimum Penalties for Certain Offences
Section 236B of penalties for people smuggling applies to people who authorities convict of an offence under Section 233B, 233C, or 234A. These offences relate to people smuggling and other related activities.
This section does not apply to people who were under 18 years of age when they committed the offence.
The mandatory minimum sentence of imprisonment is as follows:
- 8 years for an offence under Section 233B or a repeat offence
- 5 years in any other case
The court must also set a non-parole period of at least 5 years for an offence under Section 233B or a repeat offence, and 3 years in any other case. A person’s conviction for an offence is a “repeat offence” if:
- They have been convicted of another offence against Section 233B, 233C, or 234A of the Migration Act 1958, or found to have committed such an offence without being convicted; or
- They have been convicted of another offence against Section 232A or 233A of the Migration Act 1958 (as in force before the commencement of Section 236B), or found to have committed such an offence without being convicted.
In this section, “non-parole period” has the same meaning as in Part IB of the Crimes Act 1914.
Section 236C: Time in Immigration Detention Count for Sentencing Etc.
Section 236C of penalties for people smuggling outlines the time in immigration detention count for sentencing. The court must consider any time they spent in immigration detention between the time of the offence and the time of sentencing.
This applies even if the person was not serving a punitive sentence during that time. This provision does not affect the application of Section 16E of the Crimes Act 1914, which allows for the application of State law to certain aspects of sentencing for federal offences.
236D: Burden and Standard of Proof in Relation to Age
Section 236D of penalties for people smuggling outlines provisions about burden and standard of proof in relation to age. If a person is accused of an offence under this Subdivision and claims to be under 18 years old at the time of the alleged offence, the prosecution must prove that the person was 18 years old or older at that time.
The prosecution must prove this on the balance of probabilities, which means that it is more likely than not that the person was 18 years old or older at the time of the offence.
Section 236E: Evidentiary Certificates in Proceedings for Offences
Section 236E of penalties for people smuggling outlines the following provisions:
1. Issuing a certificate
A party can issue a written certificate if there is authorisation to exercise maritime powers in relation to a vessel or aircraft. The authorising officer or maritime officer who boards the vessel or aircraft by the authorisation can issue the certificate. The Minister may, by legislative instrument, prescribe other matters that may a certificate may specify.
2. Certificate as prima facie evidence
The certificate is considered prima facie evidence of the matters stated in it in proceedings for an offence against this Subdivision. However, this does not apply to so much of the certificate as it specifies whether a person is the master, owner, agent, or charterer of the target vessel or aircraft.
3. Matters that can be specified in a certificate
According to Section 236E of penalties for people smuggling, the certificate can specify one or more of the following:
- The location of the target vessel or aircraft during the exercise of those maritime powers
- The location of a Commonwealth ship or Commonwealth aircraft from which the exercise of those maritime powers was directed or coordinated
- The contents of any list of passengers on board the target vessel or aircraft, or passenger cards relating to passengers on board the target vessel or aircraft
- The number of passengers on board the target vessel or aircraft
- The number of crew on board the target vessel or aircraft
- Details about anything a maritime officer did under subsection 64(1), or section 66, of the Maritime Powers Act 2013 (about securing things) in the exercise of those maritime powers
- Any other matter prescribed under subsection Section 236E(5)
5. Definitions
The terms “authorisation,” “authorising officer,” “Commonwealth aircraft,” “Commonwealth ship,” and “maritime powers” have the same meanings as defined in the Maritime Powers Act 2013.
Section 236F: Evidentiary Certificates–Procedural Matters
Section 236F of penalties for people smuggling outlines the following provisions:
Admissibility of Certificates
A certificate issued under section 236E(1) cannot be admitted as evidence in an offence proceeding unless:
- The person charged with the offence or their lawyer has been given a copy of the certificate; and
- Notification of the intention to produce it as evidence at least 28 days before it is to be admitted.
Cross-Examination of Certificate Issuer
If a certificate is admitted as evidence under section 236E, the accused may request that the person who signed the certificate be:
- Called as a witness for the prosecution.
- Cross-examined as if they had given evidence of the matters stated in the certificate.
Restrictions on Requiring Witnesses
However, the accused has no entitlement to demand that the certificate signer be called as a witness unless:
- The prosecutor has been given at least 21 days’ notice of the accused’s intention to call the witness.
- The court has granted permission for the accused to call the witness.
Evaluation of Evidence
Any evidence presented in support or refutation of a matter stated in a certificate issued under section 236E(1) must be evaluated on its merits, and its credibility and probative value shall not be affected by this section.
Seeking Legal Advice About Penalties for People Smuggling in Australia
People smuggling is a serious crime that can have severe consequences, including imprisonment and fines. Whether you’re facing charges for people smuggling or know someone who committed people smuggling, it’s important to seek legal advice immediately.
JB Solicitors is a leading law firm with a team of experienced lawyers who can provide you with expert advice and representation. We can help you:
- Understand the law and the charges you are facing.
- Prepare your defence.
- Negotiate with the prosecution.
- Represent you in court.
- Help investigate people smuggling cases
Contact us today if you need more information about penalties for people smuggling.
