Section 193 — Application of criminal law
Text of provision
immigration detention
(1) Sections 194 and 195 do not apply to a person:
(a) detained under subsection 189(1):
(i) on being refused immigration clearance; or
(ii) after bypassing immigration clearance; or
(iii) after being prevented from leaving a vessel under section 249; or
(iv) because of a decision the Minister has made personally under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; or
(b) detained under subsection 189(1) who:
(i) has entered Australia after 30 August 1994; and
(ii) has not been immigration cleared since last entering; or
(c) detained under subsection 189(2), (3), (3A) or (4); or
(d) detained under section 189 who:
(i) held an enforcement visa that has ceased to be in effect; and
(ii) has not been granted a substantive visa since the enforcement visa ceased to be in effect.
(2) Apart from section 256, nothing in this Act or in any other law (whether written or unwritten) requires the Minister or any officer to:
(aa) give a person covered by subsection (1) an application form for a visa; or
(a) advise a person covered by subsection (1) as to whether the person may apply for a visa; or
(b) give a person covered by subsection (1) any opportunity to apply for a visa; or
(c) allow a person covered by subsection (1) access to advice (whether legal or otherwise) in connection with applications for visas.
(3) If:
(a) a person covered by subsection (1) has not made a complaint in writing to the Australian Human Rights Commission, Migration Act 1958 321 Part 2 Arrival, presence and departure of persons Division 7 Detention of unlawful non-citizens paragraph 20(6)(b) of the Australian Human Rights Commission Act 1986 does not apply to the person; and
(c) a person covered by subsection (1) has not made a complaint to the Postal Industry Ombudsman, paragraph 7(3)(b) of the Ombudsman Act 1976 (as that paragraph applies because of section 19R of that Act) does not apply to the person.
(4) This section applies to a person covered by subsection (1) for as long as the person remains in immigration detention.
Plain English
Section 193 provides that Part 2.2 of the Criminal Code (the general principles of criminal responsibility) applies to all offences under the Migration Act. This ensures that the standard mental element requirements (intention, knowledge, recklessness, negligence) apply consistently, and that defences available under the Criminal Code are available to defendants charged with Migration Act offences.
Practical effect
The application of the Criminal Code is significant for people-smuggling prosecutions (ss 228A–233C of the Act). It means that the prosecution must establish the relevant fault element for each offence. Strict liability offences are expressly identified in the Act; all other offences carry the standard fault elements. Practitioners defending migration law criminal matters should be familiar with both the Migration Act offences and the Criminal Code framework.