Case: Olbers Co Ltd v The Commonwealth of Australia and Another [2004] FCA 229 ; (2004) 136 FCR 67
Outcome: followed
On or about 17 October 2005 on retrial the Applicant was acquitted by jury verdict because he established a defence to the offences, pursuant to section 10.3(1) of the Criminal Code in that he had brought the Relevant Persons to Australia in circumstances of sudden or extraordinary emergency. AGREED QUESTIONS FOR DETERMINATION 6 The agreed questions for determination pursuant to O 29 r 2 of the Rules are as follows: 1. Whether the Applicant's ship with the markings Hao Kiet BL91693TS ("Ship") was forfeited to the Commonwealth by force of section 261A of the Migration Act upon the Ship entering the migration zone or at any later time up to the time of its destruction. 2. If the answer to question 1 is "yes", whether the forfeiture of the Ship constituted an "acquisition of property" within the meaning of section 51(xxxi) of The Australian Constitution ("Constitution"). 3. If the answer to questions 1 and 2 is "yes", whether, absent "just terms" compensation, section 261A of the Migration Act would be invalid to the extent that it effected the forfeiture of the Ship. 4. If the answer to question 1 is "no", whether the destruction of the Ship pursuant to section 185B of the Customs Act constituted an "acquisition of property" within the meaning of section 51(xxxi) of the Constitution . 5. If the answer to question 4 is "yes", whether, absent compensation under section 4AB of the Customs Act , section 185B of the Customs Act would be invalid to the extent that it authorised the destruction of the Ship. 6. In the light of the answers to questions 1 to 5, whether the Applicant is entitled to an amount of compensation from the Respondent: 6.1. in respect of the forfeiture of the Ship, under section 3B of the Migration Act ; or 6.2. in respect of the destruction of the Ship, under section 4AB of the Customs Act . TRAN'S SUBMISSIONS 7 Tran submits that the ship was destroyed by the Australian Customs Service in the exercise of the power contained in s 185B of the Customs Act , and that the Migration Act accordingly has no application. 8 If the Migration Act does apply, Tran denies that he contravened any provisions of the Migration Act and accordingly submits that compensation representing just terms must be paid under s 51(xxxi) of the Commonwealth of Australia Constitution Act 1901 (Cth) ('the Constitution '). 9 Tran submits that a mere contravention of the Migration Act does not result in forfeiture under s 261A of such Act and that only a contravention constituting an offence may lead to the imposition of a penalty of which forfeiture may comprise a part. Tran submits that unlike the circumstances in Olbers Co Ltd v The Commonwealth of Australia and Another [2004] FCA 229 ; (2004) 136 FCR 67 in which an offence under s 100(2) of Fisheries Management Act 1991 (Cth) ('the FMA') resulted in forfeiture of a boat, Tran's ship was not used in the commission of an offence nor was it involved in any contravention of the Migration Act . Tran submits that no contravention of the Migration Act has occurred because Article 31(1) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 ('the Refugee Convention') applies. Such article states: [t]he Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 10 Tran acknowledges that forfeiture without compensation might occur in circumstances where there has been a conviction for a criminal offence: see for example Mutual Pools &amp; Staff Pty Limited v The Commonwealth of Australia (1994) 179 CLR 155 per Mason CJ at [21]. However, Tran submits that even in such limited circumstances the person who is to be deprived of his property is entitled to be notified: see Cheatley v The Queen and Others (1972) 127 CLR 291 at 299. 11 Tran submits that dispossession of the valuable property right without compensation cannot be imputed to the legislature unless such deprivation is expressed in unequivocal terms incapable of any other meaning: see The Commonwealth v Hazeldell Limited [1918] HCA 75 ; (1918) 25 CLR 552 per Griffiths CJ and Rich J at 563. Tran submits that the use of the word 'contravention' in s 261A should be narrowly construed in view of the provisions of the Refugee Convention set out above; authorities relating to the forfeiture of property resulting from the commission of an offence in relation to criminal offences rather than circumstances of asylum seekers; and having regard to the second reading speech of Minister Ruddock when s 261A was introduced into the Migration Act . In such speech the distinction was drawn between those who were in need of a 'safe haven' and those who were not genuine refugees. The Minister referred to the provisions inserted into the Migration Act and the Customs Act to allow the detention, forfeiture, seizure and disposal of, inter alia, ships used in smuggling operations. Tran submits that he has not been found to have committed any criminal offence under the Migration Act or to have been involved in any contravention thereof. 12 Tran submits that the provisions relating to seizure contained in s 261B of the Migration Act were not complied with, nor is there any evidence that the Secretary by his 'authorised officer' , as defined in s 5 of the Migration Act , detained, forfeited, seized or disposed of the ship. Nor was written notice of seizure as provided by s 261D of the Migration Act provided to Tran stating that the ship would be condemned if proceedings against its condemnation were not commenced within 21 days. 13 Accordingly Tran submits that whilst s 261A of the Migration Act provides for automatic forfeiture of a vessel used in contravention of such Act, the process contained in Subdivision C of Division 13A of Part 2 of the Migration Act must be completed for the ship to be finally forfeited. Had the prescribed process been followed, and had Tran made a claim for the ship under s 261F of the Migration Act , Tran's submission that he did not contravene the Migration Act would have been heard and taken into consideration. 14 In contradistinction to the facts in Re Director of Public Prosecutions; Ex parte Lawler and Another [1994] HCA 10 ; (1994) 179 CLR 270 , Tran submits that he successfully defended the charge under s 232A of the Migration Act since his defence relating to circumstances of sudden or extraordinary emergency succeeded under s 10.3(1) of the Criminal Code Act 1995 (Cth) ('the Criminal Code'). THE MIGRATION ACT 15 Division 13A of Part 2 of the Migration Act is entitled 'Automatic forfeiture of things used in certain offences'. Subdivision A is entitled 'Automatic forfeiture', and s 261A which is the only section contained in such Subdivision relevantly provides: Forfeiture of things used in certain offences (1) The following things are forfeited to the Commonwealth: (a) a vessel used or involved in a contravention of this Act (where the contravention occurred in Australia), if the contravention involved: (i) the bringing or coming to Australia of one or more persons who were, or upon entry into Australia became, unlawful non-citizens; or (ii) the entry or proposed entry into Australia of one or more such persons; 16 Subdivision B of Division 13A of Part 2 of the Migration Act is entitled 'Seizure'. Section 261B contained in such subdivision relevantly provides: Seizure of things used in certain offences (1) An authorised officer may seize a thing in Australia, or may order an officer to seize a thing in Australia, if: (a) the thing is forfeited under section 261A ; or (b) the authorised officer reasonably suspects that the thing is forfeited under section 261A. 17 Subdivision C of Division 13A of Part 2 of the Migration Act is entitled 'Dealing with things seized as automatically forfeited'. Section 261D within this subdivision provides for a notice requiring an officer to give written notice of seizure of the thing to the owner or, if the owner cannot be identified after reasonable inquiry, to the person having possession or custody of the thing immediately before it was seized: see s 261D(1). Section 261D(3) provides: Notice of seizure (3) The notice must: (a) identify the thing; and (b) state that the thing has been seized; and (c) specify the reason for the seizure; and (d) state that the thing will be condemned as forfeited unless: (i) the owner of the thing, or the person who had possession, custody or control of the thing immediately before it was seized, gives the Secretary, within 21 days, a claim for the thing; or (ii) within 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited; and (e) specify the address of the Secretary. Note: Section 261F condemns the thing if it is not claimed within 21 days, unless the Minister gives an order that the thing is not to be condemned as forfeited. Section 261H condemns the thing if a claim is made, but the claimant does not get a court order supporting the claim, unless the Minister gives an order that the thing is not to be condemned as forfeited. 18 Section 261E provides: Dealing with thing before it is condemned (1) The Secretary may, on behalf of the Commonwealth, cause the thing to be disposed of or destroyed if: (a) its custody or maintenance creates serious difficulties; or (b) the expenses of its custody or maintenance between its seizure and condemnation are likely to be greater than its value. (2) If the Secretary causes the thing to be disposed of, the Secretary may cause the disposal to be subject to specified conditions. 19 Section 261F relevantly provides: Thing condemned if not claimed in time (1) By force of this subsection, the thing is condemned as forfeited to the Commonwealth 21 days after notice of seizure of the thing has been given under section 261D , unless: (a) the following conditions are satisfied: (i) within the 21 days, the owner of the thing or the person who had possession, custody or control of it immediately before it was seized gives the Secretary a written claim for the thing; (ii) the claim is in English; (iii) the claim sets out an address for service on the person making the claim; or (b) within the 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited. Note: Section 261I requires things condemned as forfeited to be dealt with in accordance with the Secretary's directions. 20 Section 261G relevantly provides: Dealing with claim for thing (1) If the thing is claimed under section 261F: (a) an officer may retain possession of the thing whether or not any proceedings for the condemnation of the thing have been instituted; and (b) the Minister may give a written order that the thing is not condemned as forfeited; and (c) unless an order has already been made under paragraph (b), the Secretary may give the claimant a written notice stating that the thing will be condemned as forfeited unless: (i) the claimant institutes proceedings against the Commonwealth within one month to recover the thing, or for a declaration that the thing is not forfeited; or (ii) within one month, the Minister gives a written order that the thing is not condemned as forfeited. Note 1: An officer may retain possession even if the Secretary does not give notice. If so, the claimant will be able to recover the thing only if a court orders its release to the claimant. Note 2: If the Secretary does give the notice and the claimant institutes proceedings, whether the claimant recovers the thing will depend on the outcome of the proceedings. 21 Where a claim is made for the thing, s 261H is applicable. Section 261H has application where the Secretary gives the claimant notice under s 261G relating to the institution of proceedings to recover the thing or for a declaration that the thing is not forfeited (see s 261H(1)). 22 Section 261H(3) provides: (3) If the claimant institutes such proceedings within the period of one month after the notice is given, the thing is condemned as forfeited to the Commonwealth unless: (a) before the end of the proceedings, the Minister gives a written order that the thing is not to be condemned as forfeited; or (b) at the end of the proceedings, there is: (i) an order for the claimant to recover the thing; or (ii) if the thing has been sold or disposed of--an order for the Commonwealth to pay the claimant an amount in respect of the thing; or (iii) a declaration that the thing is not forfeited. HAS THERE BEEN A CONTRAVENTION OF THE MIGRATION ACT ? 23 Section 261A of the Migration Act makes provision for forfeiture of a vessel where the vessel has been used or involved in a 'contravention' of the Migration Act . 24 The ship was boarded in the migration zone as defined in s 5 of the Migration Act and none of the 53 persons referred to in para 4 of the agreed statement of facts ('Relevant Persons') on board held a valid Australian visa. Section 42(1) of the Migration Act provides that, subject to various exceptions which are not relevant for present purposes, a non-citizen must not travel to Australia without a visa that is in effect. 25 Pursuant to s 15B(1)(b) of the Acts Interpretation Act 1901 (Cth) 'Australia' includes the coastal sea of Australia. Subsection 15B(4) of Acts Interpretation Act 1901 (Cth) defines 'coastal sea' as including the territorial sea of Australia. Section 5 of the Migration Act defines 'enter Australia' as follows: "enter Australia" , in relation to a person, means enter the migration zone.