The Queen v Ahmad [2012] NTCCA 01

 

PARTIES:                                         THE QUEEN

 

                                                         v

 

                                                         AHMAD, Ahmad

 

TITLE OF COURT:                           COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

 

JURISDICTION:                               CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          12 of 2011 (21042169)

 

DELIVERED:                                   18 January 2012

 

HEARING DATES:                           1 November 2011

 

JUDGMENT OF:                              MILDREN, SOUTHWOOD AND MARTIN JJ

 

APPEAL FROM:                               BLOKLAND J

 

CATCHWORDS:

 

CRIMINAL LAW - people smuggling – elements of the offence - whether necessary to prove non-citizens entered Australia – whether s14 of the Criminal Code (Cth) applies – whether offence against s 232A of the Migration Act can take place outside Australia - Migration Act 1958 (Cth)
s 232A, s 228A, s 42(1)

 

STATUTORY INTERPRETATION – Whether necessary to prove non-citizens entered Australia – whether s14 of the Criminal Code (Cth) applies – whether offence against s 232A of the Migration Act can take place outside Australia - Migration Act 1958 (Cth) s 232A, s 228A, s 42(1)

 

Anti-People Smuggling and Other Measures Act 2010 (Cth) s 233A

 

Criminal Code Act 1995 (Cth) s 3.1, s 14.1

 

Criminal Code Act (NT) s 414(1)

 

Customs Act (Cth) s 185(3A)

 

Evidence Act (NT) s 26L

 

Migration Act 1958 (Cth) s 4A, s 42(1), s 228A s 232A, s 245F(9)

 

R v Campbell (2008) 73 NSWLR 272, followed

 

Tran v Commonwealth (2010) 187 FCR 54, referred

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     W J Abraham QC and L K Crowley

    Respondent:                                  A Wyvill SC

 

Solicitors:

    Appellant:                                     Commonwealth Director of Public Prosecutions

    Respondent:                                  Northern Territory Legal Aid Commission

 

 

Judgment category classification:    A

Number of pages:                             21


IN THE COURT OF CRIMINAL APPEAL

OF THE NORTHERN TERRITORY

OF AUSTRALIA

 

 

The Queen v Ahmad [2012] NTCCA 01

No. 12 of 2011 (21042169)

 

 

                                                     BETWEEN:

 

                                                     THE QUEEN

                                                         Appellant

 

                                                     AND:

 

                                                     AHMAD AHMAD

                                                         Respondent

 

CORAM:     Mildren, Southwood and Martin JJ

 

REASONS FOR JUDGMENT

 

(Delivered 18 January 2012)

 

MILDREN J:

Introduction

[1]       The respondent is charged upon an ex officio indictment with the following alleged breach of s 232A of the Migration Act 1958 (Cth) (the Act):

“That between about 1 May 2010 and 11 May 2010, at a place within the waters of the Australian Exclusive Economic Zone between Scott Reef and Broome, Western Australia, and elsewhere, did facilitate the bringing to Australia of a group of five or more people to whom section 42(1) of the Migration Act 1958 applies, namely 49 people, being reckless as to whether the people had a lawful right to come to Australia.”

[2]       After pre-trial submissions were heard before a jury was empanelled, the learned trial judge ruled that on the facts alleged by the Crown, the group of 5 or more persons concerned were not people to whom s 42(1) of the Act applied within the meaning of s 232A, and accordingly granted a stay of the proceeding.

[3]       Section 42(1) of the Act provided:

“Subject to subsections (2), (2A) and (3)[1], a non-citizen must not travel to Australia without a visa that is in effect”.

[4]       The learned trial judge’s decision rested upon a construction of section 232A that the reference therein to “a group of five or more people to whom section 42(1) applies” required proof that the subject persons not only did not have visas, but were travelling to Australia, and this in turn required proof that they crossed the boundary of Australia’s territorial seas.  As, at the time of apprehension, the vessel on which they were travelling had not crossed that boundary (because the waters of the Australian Exclusive Economic Zone were outside the boundary of Australia’s territorial seas), the prosecution could not prove an offence against s 232A.

[5]       The appellant appealed to this Court, as it is entitled to do, under
s 414(1)(e)(i) of the Criminal Code.  The grounds of appeal are:

1.     The learned trial judge erred in concluding that the offence contrary to s 232A of the Migration Act 1958(Cth) required proof that the group of 5 or more persons “crossed the outer boundary of Australia’s territorial seas”

or

2.     The learned trial judge erred in concluding that the reference in
s 232A of the Migration Act 1958(Cth)  to “a group of 5 or more people to whom subsection 42(1) applies” requires proof that that group “crossed the outer boundary of Australia’s territorial sea”

and

3.     The learned trial judge erred in concluding that in this case the group of 5 or more people were not people to whom section 42(1) applies within s 232A of the Migration Act 1958 (Cth).

[6]       The respondent filed a notice of contention in the following terms:

.......“that the learned trial judge’s decision at first instance may be supported on a further ground, namely that, on its true construction, s 232A of the Migration Act 1958 (Cth) operates extra-territorially out to, but not beyond, the boundary of the Australian contiguous Zone and that her Honour erred in not ruling accordingly”.

[7]       At the conclusion of the hearing, the Court unanimously allowed the appeal and set aside the stay.  We said that we would deliver our reasons at a later time.  These are my reasons.

The facts

[8]       On or about 1 May 2011 Mr Ahmad was present on a boat in Indonesia in the capacity of crew or master.  The boat was later designated SIEV 146.  He assented to 49 persons boarding the boat near the shoreline of an Indonesian island.  Acting as crew or master of the boat he began a journey by sea from Indonesia in the direction of Australia across the waters between the two countries; he indicated to one or more of the passengers by words and gestures that the boat was destined for Australia and would arrive in seven days.

[9]       It is alleged that on a daily basis, (with another Indonesian person who then left the boat, but with whom he shared responsibility for the boat), Mr Ahmad stopped and started the engine; drove the boat; steered the boat; navigated the boat using a compass on a course of 120 degrees; steered the boat towards Australia; did jobs on the boat; and possessed or had access to a mobile phone.  He did not ask any passenger whether they had permission or authorisation to come to Australia.  Between about 9 and 11 May 2010 he was the only crew member; he was in charge of the boat; he told a passenger he was lost, then followed advice given to him by a passenger on the boat to head east.

[10]     On 10 May 2010 the boat was detected by an Australian Customs Vessel.  The boat was intercepted by Australian Customs Officers on 11 May 2010.  Mr Ahmad made admissions to Australian Customs Officers that he was from Lombok; the boat was from Lombok; he was intending to go to Australia; he wished to leave the boat; and, he agreed to the boat being destroyed.  The relevant conduct forming the basis of the charge, the location of the detection and interception, took place outside of Australia; outside of Australia’s territorial sea and contiguous zone.  It occurred within the Australian Exclusive Economic Zone.

[11]     The 49 people on the boat at all relevant times were outside of Australia and the Australian contiguous zone.  None had Australian entry visas.  It is not alleged the accused brought the 49 persons into the “migration zone”.  Mr Ahmad consented to boarding the Customs vessel.  The Australian Customs authority to board and transfer the passengers was made under SOLAS.[2]

[12]     There was little before the Court by way of facts about the purpose of the 49 persons making the voyage.  It was not disputed that their motivation was to seek asylum, or apply for protection visas in Australia.  Counsel for the Crown in the Court below informed the Court that all passengers had asked to be recognised as refugees and all had applied for protection visas.  A number had been granted visas and were living in the community; there were at least five whose status had not yet been determined and were in detention.

The appellant’s contentions

[13]     Section 232A provided:[3]

Organising bringing groups of non-citizens into Australia

(1)  “A person who:

(a)      organiser or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people to whom subsection 42(1) applies; and

(b)     does so reckless as to whether the people had, or have, a lawful right to come to Australia;

is guilty of an offence punishable on conviction, by imprisonment for 20 years or 2000 penalty units, or both.

(2)    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).”

[14]     The definition of “visa” in s 5 of the Act is that it has the meaning provided by s 29 of the Act.  Section 29 provides that a visa is a permission granted to a non-citizen by the Minister to do either or both of the following:

(a)      “travel to and enter Australia;

(b)     remain in Australia.”

[15]     Counsel for the appellant’s argument had three main limbs:

1.   The learned judge did not properly consider or determine the elements of the offence by properly applying Chapter 2 of the Criminal Code (Cth) (the Code).

2.   The learned trial judge misconstrued the phrase “people to whom
s 42(1) applies”.

3.   The learned trial judge’s conclusions are contrary to and inconsistent with the plain terms and ambit of s 232A.

The respondent’s submissions

[16]     In broad outline, the respondent submitted:

1.   Whatever physical and fault elements might be produced by the application of the Criminal Code to s 232A, they cannot affect the true construction to be given to the phrase “people to whom s 42(1) applies” in s 232A.

2.   The Criminal Code did not apply in this case. 

3.   The task of statutory construction must begin with a consideration of the text itself.

4.   Commonwealth legislation which creates an offence is presumed to apply in Australia only unless demonstrated to the contrary.

5.   If the Commonwealth legislates to create offences extra-territorially, unless the contrary intention is made clear, it is presumed to legislate in accordance “only with respect to things which internationally considered are subject to its own sovereign powers” or in other words, with “international comity”.

6.   The learned trial judge was right to conclude that the expression “person to whom section 42(1) applies” refers to non-citizens who have travelled to Australia.

7.   The expression ‘travel to Australia’ means crossing the boundary of the Australian Territorial sea.

8.   In relation to the notice of contention, that s 232A applied extraterritorially only so far as the Australian Contiguous Zone.

 

Discussion

[17]     In my opinion s 232A does not create separate offences.  It creates one offence which may be committed in a number of different ways, including the “bringing or coming to Australia” or facilitating the “entry or proposed entry into Australia”.  I agree with the appellant’s contention that the use of such terminology plainly indicates that the offence can be committed without the people entering into Australia.  I also agree that there is no scope for the expression “to whom subsection 42(1) applies” to be interpreted or applied differently according to which of the various ways in which the offence created by s 232A may be committed.  If there were a requirement to prove that the people entered Australia, the concept of “proposed entry” would have no work to do and be otiose.  Similarly, the expression “coming to Australia” in its ordinary meaning refers to the journey to Australia rather than actual entry.  In my opinion, on the plain construction of s 232A proof that the people concerned entered Australia is not required.

[18]     I also accept the submission of the appellant that the definition of “visa”, in so far as it refers to permission granted to Australia to “travel to and enter Australia,” is inconsistent with the notion that there must be proof of any actual entry into Australia.  Similarly, the compendious expression in
s 42(1) of the Act refers to the circumstance that “a non-citizen must not travel to Australia without a visa”.  To the extent that s 232A, by referring to ‘a group of 5 or more persons to whom subsection 42(1) applies,’ means that class of non-citizens travelling to Australia without a visa, it is plain that proof of entry into Australia by such non-citizens is not required.  On the facts of this case, there could be no doubt that the non-citizens were travelling to Australia before the vessel was intercepted.

[19]     In my opinion the offence created by s 232A of the Act was plainly intended to have territorial effect beyond Australia’s boundaries.  So much is indicated very plainly by the words of the section itself, which are of wide import.  Although it is theoretically possible for the offence to be committed by a person who is in Australia, the provision is primarily directed at those who organise or facilitate the coming to Australia of non-citizens who do not have visas.  By its very nature, those engaged in this kind of activity do so externally to Australia.  In any event s 228A expressly provides that subdivision A of division 12 of Part 2 of the Act, in which s 232A is contained, “applies in and out of Australia”.  This is a complete answer to the construction points raised by Mr Wyvill SC for the respondent and the argument which found favour with the learned trial judge.

[20]     We were referred by Mr Wyvill SC for the respondent to the provisions of
s 14.1 of the Code, which provides in subsection (2) that, if the section applies to a particular offence, a person does not commit an offence unless the conduct constituting the offence occurs wholly or partly in Australia.  By s 14.1(1)(a) of the Code, s 14 applies to a “primary offence” where the provision creating the offence commenced at or after the commencement of the section.  The Criminal Code commenced on 1 January 1997[4].  S 232A of the Migration Act was enacted by the Migration Legislation Amendment Act (No 1) 1999.  Therefore, s 14.1(1)(a) makes it clear that the provision applies “unless the contrary intention appears”.  In my opinion a contrary intention appears by s 228A of the Act.  S14.1 therefore has no application.

[21]     However, Mr Wyvill SC relied upon s 14.1(1)(b) of the Code which provides that “if a law of the Commonwealth provides that this section applies to a particular offence – this section applies to this offence”.

[22]     S 4A of the Migration Act 1958 provided that Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.  Part 2.5 deals with corporate criminal responsibility and may be disregarded.  In my opinion s 14.1(1)(b) does not have the effect contended for.  S 4A does not by its terms provide that s 14.1(1)(b) applies to s 228A of the Act, and in my opinion a general provision such as s 4A is insufficient.  Absent such a provision, which would in effect impliedly repeal s 228A of the Act, the ordinary principle is that for that to occur the two provisions must be so inconsistent or repugnant that they cannot stand together.  In my opinion
s 4A of the Code does not meet this test, because it can have and does have operation to import the general principles of criminal responsibility provided for elsewhere in the Code, and so far as s 14.1(1)(b) is concerned,

by requiring an express provision  that the subsection applies to s 232A of the Migration Act.

[23]     It is not necessary to consider the other arguments pressed upon us by Counsel for the appellant, in particular, the submissions concerning the application of the general principles of the Criminal Code, nor the submission that there need only be proof that the group of persons did not have a valid visa.  The relevant section having been repealed, there is no purpose to be achieved in discussing them, particularly as it is not necessary to do so on the facts of this case.

SOUTHWOOD AND MARTIN (BR) JJ:

Introduction

[24]     The respondent is an Indonesian national.  He was charged on an ex officio indictment dated 7 March 2011 with one count of facilitating the bringing of a group of 49 non-citizens to Australia contrary to s 232A of the Migration Act 1958 (Cth).  The count on the indictment pleaded:

Between 1 May 2010 and 11 May 2010, at a place within the waters of the Australian Exclusive Economic Zone between Scott Reef and Broome, Western Australia, [the respondent] facilitated the bringing to Australia of a group of 5 or more people to whom s 42(1) of the Act applied being reckless as to whether the people had a lawful right to come to Australia.

[25]     Before the jury was empanelled the respondent applied for an order under s 26L of the Evidence Act (NT), that the indictment is quashed as it did not disclose an offence.  The respondent relied on two principal grounds in support of the application.  First, none of the people to whom s 42(1) of the Migration Act 1958 (Cth) was alleged to apply were brought to Australia.  On the contrary, the vessel they were travelling in was apprehended by Australian Customs and the people were taken to Australia under the provisions of s 245F(9) and s 185(3A) of the Customs Act (Cth).  Secondly, all of the acts or conduct which constituted the physical elements of the alleged offence occurred outside Australia.

[26]     The trial judge ruled as follows.  (1) The reference to s 42(1) in s 232A of the Migration Act 1958 (Cth) requires that the prosecution must prove the subject persons did travel to Australia without a visa.  (2) This requires proof that the group of 5 or more persons travelled across the outer boundary of Australia’s territorial sea.  (3) Consequently the people who are the subjects in this case were not people to whom s 232A of the Act applied as they did not travel to Australia.  Her Honour then granted a stay of the proceeding.

[27]     Under s 414(1)(a) and (e) of the Criminal Code (NT) the appellant appealed against the stay granted by the trial judge and sought an order that the trial continue.  The grounds of appeal were that the trial judge erred in concluding that: (1) the offence contrary to s 232A of the Migration Act 1958 (Cth) requires proof that the group of five or more persons “crossed the outer boundary of Australia’s territorial sea”; or (2) the reference in s 232A of the Act to “a group of 5 or more people to whom s 42(1) applies requires proof  that the group “crossed the outer boundary of Australia’s territorial sea”; and (3) in this case the group of 5 or more people were not people to whom s 42(1) of the Act applied within s 232A of the Act.

[28]     The respondent filed a notice of contention which pleaded:

[T]he learned trial judge’s decision … may be supported on a further ground … that, on its true construction, s 232A of the Migration Act 1958 (Cth) operates extra-territorially out to, but not beyond, the boundary of the Australian Contiguous Zone and that her Honour erred in not ruling accordingly.

[29]     On 1 November 2011 the Court of Criminal Appeal allowed the appeal, quashed the stay and ordered that the trial continue in the Supreme Court of the Northern Territory[5].  Following are our reasons for allowing the appeal and dismissing the notice of contention.

The facts

[30]     The facts upon which the trial judge based her ruling are as follows[6].

[31]     On 1 May 2011 the respondent was present on a boat in Indonesia in the capacity of crew or master of the boat.  The boat was later designated SIEV 146.  He assented to 49 persons boarding the SIEV 146 near the shoreline of an Indonesian island.  Acting as crew or master of the boat he began a journey by sea from Indonesia towards Australia across the waters between the two countries.  During the journey he indicated to one or more of the passengers that the boat was destined for Australia and would arrive in about seven days.  The respondent did not ask any passenger whether they had a visa or permission or authorisation to come to Australia.

[32]     On a daily basis, the respondent (initially with the assistance of another Indonesian person who left the boat before it was apprehended by Australia Customs) stopped and started the engine, operated the boat, steered the boat towards Australia, navigated the boat using a compass on a course of 120°, did miscellaneous jobs on the boat, and possessed or had access to a mobile telephone.

[33]     Between about 9 and 11 May 2010 the respondent was the only crew member and he was in charge of the SIEV 146.  At some point towards the end of the journey the respondent thought he was lost and he told a passenger he was lost.  He then followed advice given to him by a passenger to continue to head east.

[34]     On 10 May 2010 the SIEV 146 was detected by an Australian Customs Vessel and on 11 May 2010 the boat was intercepted by Australian Customs Officers.  The respondent made admissions to Australian Customs Officers that he was from Lombok; the boat was from Lombok; he was intending to go to Australia; he wished to leave the boat; and, he agreed to the boat being destroyed.

[35]     At all relevant times prior to the SIEV 146 being intercepted by Australian Customs officers the 49 people on the boat were outside Australia and the Australian contiguous zone.  None of them had Australian entry visas.  It was not alleged the respondent brought the 49 persons into the “migration zone”.  The respondent agreed to the Australian Customs officers boarding the SIEV 146.  The SIEV 146 was boarded and the passengers were transferred under the International Convention for the Safety of Life at Sea. 

[36]     It was not disputed that the motivation of the passengers for boarding the SIEV 146 was to seek asylum or apply for protection visas in Australia.  All of them have asked to be recognised as refugees and have applied for protection visas.  A number of the passengers have been granted visas and are living in the community.  There are at least five passengers who are in detention because their status has not yet been determined.

[37]     The trial judge concluded that the relevant conduct forming the basis of the charge and the detection and interception of the SIEV 146 took place outside of Australia and its territorial sea and contiguous zone.  Some events occurred within the Australian Exclusive Economic Zone but that zone is outside the boundary of Australia’s territorial seas.

Section 232A of the Migration Act 1958 (Cth)

[38]     Section 232A of the Migration Act 1958 (Cth) states:

A person who:

(a)     organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people to whom subsection 42(1) applies; and

(b)     does so reckless as to whether the people had, or have, a lawful right to come to Australia;

is guilty of an offence … (penalty provisions omitted).

[39]     So far as is relevant, s 42(1) of the Migration Act 1958 (Cth) states:

(1)        Subject to subsections (2), (2A) and (3), a non-citizen must not travel to Australia without a visa that is in effect.

[40]     We agree with the appellant’s contention that the offence created by s 232A of the Migration Act 1958 (Cth) can be committed in a variety of ways, including by conduct that falls short of the subject persons actually entering Australia.  The words, “bringing or coming to Australia”, do not equate to entry.  Nor do the words, “proposed entry into Australia”, equate to entry.  The offence can be committed provided that the relevant conduct of an accused person was carried out with the intention that the subject people would be brought to, or come to, or would enter Australia.  Such conduct can occur outside Australia and does not require that the subject persons enter Australia before the offence is complete.

[41]     Section 232A of the Migration Act 1958(Cth) has extraterritorial effect by virtue of s 228A of the Act.  Section 232A of the Act is within Subdivision A of Division 12 of Part 2 of the Act and s 228A of the Act categorically states that “this subdivision applies in and outside Australia”.  Contrary to the submissions of the respondent, the application of s 228A of the Act is not restricted by the provisions of s 4A of the Act and s 14.1 of the Criminal Code (Cth).  Section 4A of the Act does not provide that s 14.1 of the Code applies to s 232A of the Act.  The purpose of s 4A of the Act is to apply the general principles of criminal responsibility enunciated in the Code to the offences created by the Act, while s 14.1(1)(a) of the Code makes it clear that the territorial limitations imposed by s 14.1 of the Code only apply “unless the contrary intention appears”.   A contrary intention appears by the express terms of s 228A of the Act.  The specific provisions of s 228A of the Act prevail over the general provisions of s 14.1 of the Code.

The reasoning of the trial judge

[42]     We accept the submissions of the appellant that in reaching the conclusions referred to in par [3] above the trial judge reasoned as follows.  Subsection 42(1) of the Migration Act 1958 (Cth) was expressly incorporated as part of the definition of the offence under s 232A of the Act by use of the phrase “a group of 5 or more people to whom subsection 42(1) applies”.  Accordingly, the status of the group of five or more people referred to in the offence provision must be determined by the application of s 42(1) of the Act.  The prohibition in s 42(1) of the Act is not merely not having a visa, it is a prohibition against travelling to Australia without a visa.  Therefore, to establish guilt for an offence under s 232A of the Act it must be proven that the subject persons “travel to Australia without a visa that is in effect”.  Consequently, the words, “travel to Australia” which appear in s 42(1) of the Act are at least a requirement that must be proved without necessity of proof of a separate fault element.  They may be regarded as constituting a physical element without a fault element.  Based on comments by the various members of the court in Tran v Commonwealth[7] “travel to Australia” means to travel to the territorial sea of Australia.  Consequently, s 42(1) of the Act as it applies to s 232A of the Act requires proof that the subject person’s travelled to Australia which in turn requires they cross the outer boundary of Australia’s territorial sea.  As that did not occur in this case the prosecution was unable to prove an offence contrary to s 232A of the Act. 

[43]     In our opinion her Honour erred in doing so.

Consideration

[44]     Section 232A of the Migration Act 1958 (Cth) creates an offence of engaging in a particular activity with respect to a group of five or more specified persons identified in s 232A as “people to whom s 42(1) applies”.  Subsection 42(1) of the Act does not create an offence.  It is in Division 3 of Part 2 of the Act which is concerned with the control of arrival into and the presence of non citizens in Australia and visas for non citizens.  In this context, s 42(1) of the Act prohibits certain persons from travelling to Australia.  Who are those persons who are prohibited?  Subsection 42(1) of the Act identifies those persons as non citizens who do not possess a visa that is in effect.  For the purpose of s 232A of the Act, the people to whom s 42(1) of the Act applies are non citizens who do not possess a visa that is in effect. 

[45]     The submission accepted by the trial Judge and repeated in this Court erroneously restricted persons to whom s 42(1) of the Act applies for the purpose of s 232A to those non citizens without current visas who enter Australia in breach of s 42(1) of the Act.  There is no reasonable basis for construing s 232A of the Act in this way.  It would be different if s 42(1) of the Act created an offence.  In that situation it could reasonably be said that those to whom s 42(1) of the Act applies are those persons who commit an offence against that section.  However, s 42(1) of the Act does not create an offence.  It merely identifies a class of persons who are prohibited from travelling to Australia, namely, non citizens without a current visa.  It is that class of persons who are identified in s 232A of the Act as the persons with respect to whom the activity identified in s 232A, accompanied by the relevant state of mind, will amount to an offence against that section.

[46]     Not only does the ordinary meaning of the words in s 232A of the Migration Act 1958 (Cth) produce this result, but the very nature of the offence created supports the view that it is not necessary for the prohibited persons to have travelled to Australia before the offence is committed.  Section 232A of the Act is aimed at those persons who organise or facilitate the bringing to Australia or coming to Australia of a group of five or more non citizens who do not hold current visas.  No doubt a successful entry of the prohibited persons into Australia would be an aggravating circumstance accompanying the crime, but successful entry is not an element of the crime.  Once the organisation or facilitation has occurred, the physical element of the crime is completed, regardless of whether the travel to Australia is undertaken or, if undertaken, is successful or unsuccessful.

[47]     The elements of the offence in the respondent’s case are:

1.   Between 1 May 2010 and 11 May 2010, the accused facilitated the bringing to Australia of a group of five or more people (“the passengers on the sea SIEV 146”). 

2.   The accused meant to facilitate the bringing of the passengers of the SIEV 146 to Australia.

3.   At least five of the passengers on the SIEV 146 were people to whom s 42(1) of the Migration Act 1958 (Cth) applies.  That is, the passengers were not Australian citizens; and at the relevant time they did not have valid visas permitting them to enter Australia.

4.   The accused was reckless as to whether the passengers on the SIEV 146 had a lawful right to come to Australia.

[48]     Such a construction is consistent with the principles of criminal responsibility provided for in Chapter 2 of the Criminal Code (Cth) which are applicable to offences under the Migration Act 1958 (Cth)[8].  Each offence must consist of physical elements and corresponding fault elements[9] and the elements of the offence must exist contemporaneously[10].  Section 232A of the Act does not state that there is no fault element for any physical element of the offence. 

                                                                        



[1] These subsections are not relevant to this proceeding.

[2] International Convention for the Safety of Life at Sea 1974

[3] S232A was repealed and replaced by s233A of the Anti-People Smuggling and Other Measures Act 2010 which came into force on 1 June 2010.

[4] Commonwealth, Gazette, 1996 No S534 1 January 1997

[5]    After the appeal was allowed, the respondent was tried and found guilty of the count on the indictment by a unanimous verdict of the jury.

[6]    We have taken the liberty of setting out in full the facts upon which the application proceeded before the trial judge.

[7]    (2010) 187 FCR 54.

[8]    Migration Act 1958 (Cth) s 4A

[9]    Criminal Code (Cth) s 3.1.

[10]   R v Campbell (2008) 73 NSWLR 272 at [43][44][129][137][180].