Migrant Smuggling, Criminal Fault and the Legal Status of Australia: PJ v The Queen

In PJ v The Queen, the Victorian Court of Appeal clarifi ed the fault elements of the offence of ‘aggravated people smuggling’ in the Migration Act 1958 (Cth). The consequence of this case is that the prosecution is now required to prove that the defendant intended to arrive at a destination which he or she knew to be part of Australia. The Court emphasised that the offence calls for the defendant’s awareness of the ‘legal status’ of Australia. This fi nding rejected the submission of the Commonwealth Director of Public Prosecutions that the prosecution need only demonstrate an intention to reach ‘a place’ which had the legal status of Australia, regardless of whether the defendant actually knew that it was part of Australian territory. This case note examines two considerations relevant to the Court’s construction of the offence: rules of interpretation provided by the Criminal Code, and the distinction between mistakes of legal status and ignorance of the law. First, it suggests that the model of offence disaggregation embodied by the Criminal Code paradoxically complicated, rather than simplifi ed, the Court’s analysis of the provision. Second, it notes that the Court’s analysis of the relationship between mistakes of ‘legal status’ and criminal fault placed greater emphasis on the role of absolute liability provisions than on the common law distinction between mistakes of fact and ignorance of the law.