People smuggling is a global issue that affects many countries, including Australia. It is the act of bringing people into a country illegally, usually for financial gain.
In Australia, people smuggling is a criminal offence under the Migration Act 1958. New South Wales (NSW) is one of the states in Australia that has been affected by this issue.
This Article will discuss Sections 228A to 230: People smuggling and related offences of the Migration Act 1958.
Section 228A and 228B: Applicability of the Subdivision and Circumstances in which a Non-citizen Has no Lawful Right to Come to Australia
Section 228A of the Act provides that this Subdivision will apply to Australia and other countries. Moreover, Section 228B enumerates the circumstances when a non-citizen is not legally allowed to enter Australia.
- When the non-citizen does not hold an effective visa
- When the non-citizen is not exempt under subsection 42(2) or (2A), that is:
- Non-citizens who do not hold a visa but may travel to Australia: (exception referred to in subsection 42(2) or (2A)):
- An allowed inhabitant of the Protected Zone travelling to a protected area in connection with traditional activities. [subsection 42(2)]
- A non-citizen travelling to Australia who:
- is a New Zealand citizen who holds and produces a New Zealand passport that is in force;
- is brought to the migration zone when an officer detains an aircraft under subsection 245F;
- is in the migration zone and is an unlawful citizen;
- is a transitory person under subsection 198B is brought to Australia;
- travels to Australia as a direct result of the removal not being completed;
- a person who would, if in the migration zone, be an unlawful non-citizen;
- removed under section 198 to another country, but the non-citizen does not enter the other country;
- removed under section 198 to another country, but the non-citizen does not enter the other country; or
- is required to give effect to the order or undertaking of the Federal Court or Federal Circuit Court of Australia.
- When the non-citizen is not permitted by subsection 42(3) to travel to Australia without a visa, that is in effect.
Section 229: Carriage of Non-citizens to Australia Without Documentation
Subsection (1) of Section 229 prohibits the master, owner, agent, charterer, and operator of a vessel on which a non-citizen is brought into Australia when the non-citizen enters the country and:
- is not in possession of evidence of a visa that is in effect and that permits them to travel to and enter Australia; and
- does not hold a special purpose visa; and
- is not eligible for a special category visa; and
- does not hold an enforcement visa; and
- is a person to whom subsection 42(1) applies.
When does a Person Commit an Offence?
Under subsection 1(A), a person commits an offence if:
- the person is a master, owner, agent, charterer, or operator of an aircraft; and
- the person brings a non-citizen into Australia by air on the aircraft; and
- the non-citizen is the holder of a maritime crew visa that is in effect.
A person who commits an offence against this section and, upon conviction, is liable for a fine not exceeding 100 penalty units or AUD 11,000.
What are the Defences?
For subsection (1), it is a defence to a prosecution for an offence concerning the bringing of a non-citizen into Australia on a vessel if:
- the non-citizen had evidence of a visa that was in effect and that permitted them to travel to and enter Australia when they boarded or last boarded the vessel for travel to Australia
- that the master of the vessel had reasonable grounds for believing that when the non-citizen boarded or last boarded the vessel for travelling to and entering Australia, the non-citizen:
- was eligible for a special category visa; or
- was the holder of a special purpose visa; or
- would, when entering Australia, be the holder of a special purpose visa; or
- was the holder of an enforcement visa; or
- would, when entering Australia, be the holder of an enforcement visa; or
- that the vessel entered Australia from overseas only because of the following:
- the illness of a person on board the vessel;
- the stress of weather; or
- other circumstances beyond the control of the master.
For subsection (1A), it is a defence to a prosecution for an offence in relation to the bringing of a non-citizen into Australia on an aircraft if:
- The non-citizen was in possession of evidence of another class of visa that was in effect and that permitted them to travel to and enter Australia when they boarded or last boarded the aircraft for travel to Australia.
- The aircraft entered Australia from overseas only because of the following:
- the illness of a person on board the aircraft; or
- stress of weather; or
- other circumstances beyond the control of the master.
Section 230: Carriage of Concealed Persons to Australia
Section 230 of the Act provides for the penalty and rules for carrying concealed persons to Australia in a vessel:
- The master, owner, agent, and charterer of a vessel each commit an offence if an unlawful non-citizen is concealed on the vessel when it arrives in the migration zone. The penalty for this violation is 100 penalty units or AUD 11,000. (Subsection 1)
- The master, owner, agent, and charterer of a vessel each commit an offence against this section, with a penalty of 100 penalty units or AUD 11,000 if:
- A person is concealed on the vessel when it arrives in Australia, and
- the person is an unlawful non-citizen in the migration zone. (Subsection 1A)
When Is This Section Not Applicable?
Subsection (2) and (2A) of Section 230 provides that the master of the vessel will not be liable for the violation if:
- As soon as the vessel arrives in the migration zone, the master gives notice to an officer that the non-citizen or a person is on board; and
- The master prevents the non-citizen or the person from landing without an officer having had an opportunity to question the non-citizen or the person.
The Impact of People Smuggling on NSW
People smuggling has a significant impact on NSW, both socially and economically. The illegal entry of non-citizens into the state can lead to an increase in crime rates, as well as put a strain on public resources such as healthcare and education.
This illegal activity has a negative impact on the economy of NSW. The state loses out on taxes and other revenue if these people legally enter the country. The cost of monitoring and intercepting people smugglers also strains the state’s budget.
Furthermore, people smuggling also poses a significant safety risk to those being smuggled. They are often packed into small and unsafe boats, risking their lives to get to Australia. The journey itself is complex, and many have lost their lives.
Seeking Legal Help
Although people smuggling is a complex issue involving many factors, the Australian government has taken a tough stance on this crime, with severe penalties for those found guilty. If you have been charged with people smuggling and other related migration issues, it is crucial to seek legal assistance.
JB Solicitors has a team of lawyers who can help you understand the law, protect your rights, and develop a legal strategy to increase your chances of a favourable outcome. We can also provide you with support and guidance. Don’t hesitate to reach out to us for legal help.
Contact us today.