This article examines recent migrant smuggling offences in Australia in light of the available case law and international legal requirements.
The article defines ‘migrant smuggling’ according to article 3(a) of the Smuggling of Migrants Protocol.
The research methodology consisted of a review of migrant smuggling cases to Australia and analysis of the defences of migrant smuggling that have been raised in Australian courts.
The article outlines the criminalization of migrant smuggling in international and Australian law, focusing principally on the migrant smuggling offences in the Australian Migration Act, which are commonly used in prosecutions. Examining the available case law and existing legislation, the authors identify the specific grounds on which persons charged with people smuggling offences under Australia’s Migration Act have sought to excuse or justify their actions. The defences analysed include duress, mistake, necessity or acting for humanitarian reasons.
According to the authors, Australian courts and the Australian Government have made it clear that smuggled migrants, even if they are recognized as refugees, have no lawful right to come to Australia. Additionally, migrant smugglers do not escape criminal liability in these circumstances. The authors argue that the points raised in a range of migrant smuggling trials are central to fundamental questions about the criminalization of migrant smuggling and the relationship between migrant smuggling, the movements of asylum seekers and Australia’s obligations under international refugee and anti-smuggling of migrants law.
The analysis of migrant smuggling cases raises two major arguments: i) International law requires States parties not to criminalize and punish migrant smugglers who operate for humanitarian motives. However, Australia’s people smuggling offences make no such exceptions, and the existing defences are inadequate to accommodate the reality and complexity of such situations. ii) International law and best practice guidelines limit the criminalization of migrant smuggling to instances in which smugglers operate for financial or other material benefit. Australian law contains no such limitations and, as a result, does not tie criminal liability to the principal characteristic of migrant smuggling. The authors conclude that the offences legislated in the Migration Act and equally in the Criminal Code depart fundamentally from the purpose of the Smuggling of Migrants Protocol. The elements of these offences and the defences available to persons accused of people smuggling are inadequate to address the complexities and realities of migrant smuggling and that Australian law has resulted in the criminalization and punishment of individuals who, in the eyes of the international community and many experts, do not, in fact, deserve punishment.
The article makes a contribution to the body of knowledge on migrant smuggling through its analysis of migrant smuggling cases in Australia. The article demonstrates that the causes and circumstances of migrant smugglers and smuggled migrants are complex and do not necessarily fit into a single people smuggling business model.
