CRIMES LEGISLATION AMENDMENT (PEOPLE SMUGGLING, FIREARMS TRAFFICKING AND OTHER MEASURES) ACT 2002 NO. 141, 2002 - SCHEDULE 1

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CRIMES LEGISLATION AMENDMENT (PEOPLE SMUGGLING, FIREARMS TRAFFICKING AND OTHER MEASURES) ACT 2002 NO. 141, 2002 - SCHEDULE 1

- People smuggling

Criminal Code Act 1995

1
The Schedule (at the end of Chapter 4 of the Criminal
Code )

Add:

Division 73—People smuggling and related offences

Subdivision A—People smuggling offences

73.1 Offence of people smuggling

(1): A person (the first person ) is guilty of an offence if:

(a): the first person organises or facilitates the entry of another person (the other person ) into a foreign country (whether or not via Australia); and
(b): the entry of the other person into the foreign country does not comply with the requirements under that country's law for entry into the country; and
(c): the other person is not a citizen or permanent resident of the foreign country; and
(d): the first person organises or facilitates the entry:

(i): having obtained (whether directly or indirectly) a benefit to do so; or
(ii): with the intention of obtaining (whether directly or indirectly) a benefit.

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

(2): Absolute liability applies to the paragraph (1)(c) element of the offence.
(3): For the purposes of this Code, an offence against subsection (1) is to be known as the offence of people smuggling.

73.2 Aggravated offence of people smuggling (exploitation etc.)

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

(a): the first person commits the offence intending that the victim will be exploited after entry into the foreign country (whether by the first person or another);
(b): in committing the offence, the first person subjects the victim to cruel, inhuman or degrading treatment;
(c): in committing the offence, the first person's conduct:

(i): 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.

(2): For the purposes of subsection (1), and without limitation, the victim will be exploited by a person (the exploiter ) if either of the following applies:

(a): the exploiter's conduct causes the victim to enter into slavery, forced labour or sexual servitude;
(b): the exploiter's conduct causes an organ of the victim to be removed and:

(i): neither the victim nor the victim's legal guardian consented to the removal of the organ; and
(ii): the organ was not removed to meet a medical or therapeutic need of the victim.

(3): In this section:

"forced labour "means the condition of a person who provides labour or services (other than sexual services) and who, because of the use of force or threats:

(a): is not free to cease providing labour or services; or
(b): is not free to leave the place or area where the person provides labour or services.

"sexual servitude "has the same meaning as in Division 270.

"slavery" has the same meaning as in Division 270.

"threat" means:

(a): a threat of force; or
(b): a threat to cause a person's deportation; or
(c): a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of labour or services by a person.

73.3 Aggravated offence of people smuggling (at least 5 people)

(1): A person (the first person ) is guilty of an offence if:

(a): the first person organises or facilitates the entry of a group of at least 5 persons (the other persons ) into a foreign country (whether or not via Australia); and
(b): the entry of at least 5 of the other persons into the foreign country does not comply with the requirements under that country's law for entry into that country; and
(c): at least 5 of the other persons whose entry into the foreign country is covered by paragraph (b) are not citizens or permanent residents of the foreign country; and
(d): the first person organises or facilitates the entry:

(i): having obtained (whether directly or indirectly) a benefit to do so; or
(ii): with the intention of obtaining (whether directly or indirectly) a benefit.

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

(2): Absolute liability applies to the paragraph (1)(c) element of the offence.
(3): If, on a trial for an offence against subsection (1), the trier of fact is not satisfied that the defendant is guilty of that offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 73.1(1), the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of an offence against subsection 73.1(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

73.4 Jurisdictional requirement

A person commits an offence against this Subdivision only if:

(a): both:

(i): the person is an Australian citizen or a resident of Australia; and
(ii): the conduct constituting the alleged offence occurs wholly outside Australia; or

(b): both:

(i): the conduct constituting the alleged offence occurs wholly or partly in Australia; and
(ii): a result of the conduct occurs, or is intended by the person to occur, outside Australia.

73.5 Attorney-General's consent required

(1): Proceedings for an offence against this Subdivision must not be commenced without the Attorney-General's written consent.
(2): However, a person may be arrested, charged, remanded in custody or released on bail in connection with an offence against this Subdivision before the necessary consent has been given.

Subdivision B—Document offences related to people smuggling and unlawful entry into foreign countries
73.6 Meaning of travel or identity document

(1): For the purposes of this Subdivision, a document is a travel or identity document if it is:

(a): a travel document; or
(b): an identity document.

(2): In subsection (1):

"identity document "includes any kind of document that may be used to establish the identity of a person in a country under the law or procedures of that country.

"travel document "includes any kind of document required, under the law of a country, to enter or leave that country.

73.7 Meaning of false travel or identity document

(1): For the purposes of this Subdivision, a travel or identity document is a false travel or identity document if, and only if:

(a): the document, or any part of the document:

(i): purports to have been made in the form in which it is made by a person who did not make it in that form; or
(ii): purports to have been made in the form in which it is made on the authority of a person who did not authorise its making in that form; or

(b): the document, or any part of the document:

(i): purports to have been made in the terms in which it is made by a person who did not make it in those terms; or
(ii): purports to have been made in the terms in which it is made on the authority of a person who did not authorise its making in those terms; or

(c): the document, or any part of the document:

(i): purports to have been altered in any respect by a person who did not alter it in that respect; or
(ii): purports to have been altered in any respect on the authority of a person who did not authorise its alteration in that respect; or

(d): the document, or any part of the document:

(i): purports to have been made or altered by a person who did not exist; or
(ii): purports to have been made or altered on the authority of a person who did not exist; or

(e): the document, or any part of the document, purports to have been made or altered on a date on which, at a time at which, at a place at which, or otherwise in circumstances in which, it was not made or altered.

(2): For the purposes of this Subdivision, a person is taken to make a false travel or identity document if the person alters a document so as to make it a false travel or identity document (whether or not it was already a false travel or identity document before the alteration).
(3): This section has effect as if a document that purports to be a true copy of another document were the original document.

73.8 Making, providing or possessing a false travel or identity document

A person (the first person ) is guilty of an offence if:

(a): the first person makes, provides or possesses a false travel or identity document; and
(b): the first person intends that the document will be used to facilitate the entry of another person (the other person ) into a foreign country, where the entry of the other person into the foreign country would not comply with the requirements under that country's law for entry into the country; and
(c): the first person made, provided or possessed the document:

(i): having obtained (whether directly or indirectly) a benefit to do so; or
(ii): with the intention of obtaining (whether directly or indirectly) a benefit.

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

73.9 Providing or possessing a travel or identity document issued or altered dishonestly or as a result of threats

(1): A person (the first person ) is guilty of an offence if:

(a): the first person provides or possesses a travel or identity document; and
(b): the first person knows that:

(i): the issue of the travel or identity document; or
(ii): an alteration of the travel or identity document;

(c): the first person intends that the document will be used to facilitate the entry of another person (the other person ) into a foreign country, where the entry of the other person into the foreign country would not comply with the requirements under that country's law for entry into the country; and
(d): the first person provided or possessed the document:

(i): having obtained (whether directly or indirectly) a benefit to do so; or
(ii): with the intention of obtaining (whether directly or indirectly) a benefit.

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

(2): For the purposes of subsection (1), a threat may be:

(a): express or implied; or
(b): conditional or unconditional.

(3): For the purposes of subsection (1), dishonest means:

(a): dishonest according to the standards of ordinary people; and
(b): known by the defendant to be dishonest according to the standards of ordinary people.

(4): In a prosecution for an offence against this section, the determination of dishonesty is a matter for the trier of fact.

73.10 Providing or possessing a travel or identity document to be used by a person who is not the rightful user

A person (the first person ) is guilty of an offence if:

(a): the first person provides or possesses a travel or identity document; and
(b): the first person intends that the document will be used to facilitate the entry of another person (the other person ) into a foreign country, where the entry of the other person into the foreign country would not comply with the requirements under that country's law for entry into the country; and
(c): the first person knows that the other person is not the person to whom the document applies; and
(d): the first person provided or possessed the document:

(i): having obtained (whether directly or indirectly) a benefit to do so; or
(ii): with the intention of obtaining (whether directly or indirectly) a benefit.

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

73.11 Taking possession of or destroying another person's travel or identity document

A person (the first person ) is guilty of an offence if:

(a): the first person takes possession of, or destroys, a travel or identity document that applies to another person (the other person ); and
(b): the first person does so intending to conceal the other person's identity or nationality; and
(c): at the time of doing so, the first person intends to organise or facilitate the entry of the other person into a foreign country:

(i): having obtained, or with the intention of obtaining, whether directly or indirectly, a benefit to organise or facilitate that entry; and
(ii): where the entry of the other person into the foreign country would not comply with the requirements under that country's law for entry into the country.

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

73.12 Jurisdictional requirement

Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against this Subdivision.

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