Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
(7) An offence against subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
227 Production of identity documents by persons on board sea installation
(1) This section applies to a sea installation that has been brought into Australian waters from a place outside the outer limits of Australian waters for the purpose of being installed in an adjacent area or in a coastal area.
(2) On the arrival of a sea installation at its proposed location, an officer may require the person in charge of the installation to muster, in the presence of the officer, all of the people on board the installation.
(3) An officer may require the person in charge of a sea installation to muster, in the presence of the officer, all of the people on board the installation before the installation is detached from its location for the purpose of being taken to a place outside the outer limits of Australian waters.
(4) An officer may require a person on board a sea installation that is installed in an adjacent area or in a coastal area to produce to the officer for inspection the person’s identity documents.
(5) A person must not fail to comply with a requirement made under this section.
Penalty: 40 penalty units.
(6) Subsection (5) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
(7) An offence against subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
228 Master to report absences
(1) Where a member of the crew of a vessel, other than a vessel of the regular armed forces of a government recognized by the Commonwealth, that has entered Australia from overseas was on board the vessel at the time of its arrival at a port and is absent from the vessel at the time of its departure from the port, the master of the vessel shall, at that departure, deliver to an officer a written report:
(a) specifying the name of the member; and
(b) stating:
(i) that the member was a member of the crew of the vessel on board the vessel at the time of its arrival at that port; and
(ii) that the member is absent from the vessel at the time of its departure from that port; and
(c) stating whether the member left the vessel at that port with leave or without leave.
(2) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Division 12—Offences etc. in relation to entry into, and remaining in, Australia
Subdivision A—People smuggling and related offences
228A Application of Subdivision
This Subdivision applies in and outside Australia.
228B Circumstances in which a non‑citizen has no lawful right to come to Australia
(1) For the purposes of this Subdivision, a non‑citizen has, at a particular time, no lawful right to come to Australia if, at that time:
(a) the non‑citizen does not hold a visa that is in effect; and
(b) the non‑citizen is not covered by an exception referred to in subsection 42(2) or (2A); and
(c) the non‑citizen is not permitted by regulations under subsection 42(3) to travel to Australia without a visa that is in effect.
(2) To avoid doubt, a reference in subsection (1) to a non‑citizen includes a reference to a non‑citizen seeking protection or asylum (however described), whether or not Australia has, or may have, protection obligations in respect of the non‑citizen because the non‑citizen is or may be a refugee, or for any other reason.
229 Carriage of non‑citizens to Australia without documentation
(1) The master, owner, agent, charterer and operator of a vessel on which a non‑citizen is brought into Australia on or after 1 November 1979 each commit an offence against this section if the non‑citizen, when entering Australia:
(a) is not in possession of evidence of a visa that is in effect and that permits him or her to travel to and enter Australia; and
(b) does not hold a special purpose visa; and
(c) is not eligible for a special category visa; and
(d) does not hold an enforcement visa; and
(e) is a person to whom subsection 42(1) applies.
(1A) A person commits an offence if:
(a) the person is a master, owner, agent, charterer or operator of an aircraft; and
(b) the person brings a non‑citizen into Australia by air on the aircraft; and
(c) the non‑citizen is the holder of a maritime crew visa that is in effect.
(2) A person who commits an offence against this section is liable, upon conviction, to a fine not exceeding 100 penalty units.
(3) An offence against subsection (1) or (1A) is an offence of absolute liability.
Note: For absolute liability, see section 6.2 of the Criminal Code.
(4) For the purposes of subsection (1), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3).
Note: For evidential burden, see section 13.3 of the Criminal Code.
(5) It is a defence to a prosecution for an offence against subsection (1) in relation to the bringing of a non‑citizen into Australia on a vessel if it is established:
(a) that the non‑citizen was, when he or she boarded or last boarded the vessel for travel to Australia, in possession of evidence of a visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that:
(i) did not appear to have been cancelled; and
(ii) was expressed to continue in effect until, or at least until, the date of the non‑citizen’s expected entry into Australia;
(b) 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:
(i) was eligible for a special category visa; or
(ii) was the holder of a special purpose visa; or
(iii) would, when entering Australia, be the holder of a special purpose visa; or
(iv) was the holder of an enforcement visa; or
(v) would, when entering Australia, be the holder of an enforcement visa; or
(c) that the vessel entered Australia from overseas only because of:
(i) the illness of a person on board the vessel;
(ii) stress of weather; or
(iii) other circumstances beyond the control of the master.
(5A) It is a defence to a prosecution for an offence against subsection (1A) in relation to the bringing of a non‑citizen into Australia on an aircraft if it is established that:
(a) the non‑citizen was, when he or she boarded or last boarded the aircraft for travel to Australia, in possession of evidence of another class of visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that:
(i) did not appear to have been cancelled; and
(ii) was expressed to continue in effect until, or at least until, the date of the non‑citizen’s expected entry into Australia; or
(b) the aircraft entered Australia from overseas only because of:
(i) the illness of a person on board the aircraft; or
(ii) stress of weather; or
(iii) other circumstances beyond the control of the master.
(6) A defendant bears a legal burden in relation to the matters in subsection (5) or (5A).
230 Carriage of concealed persons to Australia
(1) The master, owner, agent and charterer of a vessel each commit an offence against this section if an unlawful non‑citizen is concealed on the vessel when it arrives in the migration zone.
Penalty: 100 penalty units.
(1A) The master, owner, agent and charterer of a vessel each commit an offence against this section if:
(a) a person is concealed on the vessel when it arrives in Australia; and
(b) the person would, if in the migration zone, be an unlawful non‑citizen.
Penalty: 100 penalty units.
(1B) An offence against subsection (1) or (1A) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) Subsection (1) does not apply if the master of the vessel:
(a) as soon as it arrives in the migration zone, gives notice to an officer that the non‑citizen is on board; and
(b) prevents the non‑citizen from landing without an officer having had an opportunity to question the non‑citizen.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(2A) Subsection (1A) does not apply if the master of the vessel:
(a) as soon as it arrives in Australia, gives notice to an officer that the person is on board; and
(b) prevents the person from leaving the vessel without an officer having had an opportunity to question the person.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2A) (see subsection 13.3(3) of the Criminal Code).
231 Master of vessel to comply with certain requests
(1) The master of a vessel arriving in Australia must comply with any request by an authorised officer to:
(a) give the authorised officer a list of all persons on the vessel and prescribed particulars of each of them; or
(b) gather together those persons or such of them as are specified by the officer; or
(c) make sure of the disembarkation from the vessel of those persons or such of them as are specified by the officer.
(2) If:
(a) a person is on a vessel that has arrived in Australia; and
(b) that person’s name is not on a list of persons on the vessel given under subsection (1);
the person is taken, for the purposes of section 230, to have been concealed on the vessel when it arrived.
232 Penalty on master, owner, agent and charterer of vessel
(1) Where:
(a) a non‑citizen:
(i) enters Australia on a vessel; and
(ii) because he or she is not the holder of a visa that is in effect, or because of section 173, becomes upon entry an unlawful non‑citizen; and
(iii) is a person to whom subsection 42(1) applies; or
(b) a removee or deportee who has been placed on board a vessel for removal or deportation leaves the vessel in Australia otherwise than in immigration detention under this Act;
the master, owner, agent and charterer of the vessel are each taken to commit an offence against this Act punishable by a fine not exceeding 100 penalty units.
(1A) An offence against subsection (1) is an offence of absolute liability.
Note: For absolute liability, see section 6.2 of the Criminal Code.
(1B) For the purposes of paragraph (1)(a), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3).
Note: For evidential burden, see section 13.3 of the Criminal Code.
(2) It is a defence to a prosecution for an offence against subsection (1) in relation to the entry of a non‑citizen to Australia on a vessel if it is established:
(a) that the non‑citizen was, when he or she boarded or last boarded the vessel for travel to Australia, in possession of evidence of a visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that:
(i) did not appear to have been cancelled; and
(ii) was expressed to continue in effect until, or at least until, the date of the non‑citizen’s expected entry into Australia; or
(b) 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:
(i) was eligible for a special category visa; or
(ii) was the holder of a special purpose visa; or
(iii) would, when entering Australia, be the holder of a special purpose visa; or
(iv) was the holder of an enforcement visa; or
(v) would, when entering Australia, be the holder of an enforcement visa; or
(c) that the vessel entered Australia from overseas only because of:
(i) the illness of a person on board the vessel; or
(ii) stress of weather; or
(iii) other circumstances beyond the control of the master.
(3) A defendant bears a legal burden in relation to the matters in subsection (2).
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 (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 either or both of the following apply:
(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:
serious harm has the same meaning as in 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.
234 False documents and false or misleading information etc. relating to non‑citizens