Case: Whim Creek Consolidated NL v Colgan and Another [1991] FCA 467 ; (1991) 31 FCR 469
Outcome: referred to
In Whim Creek Consolidated NL v Colgan and Another [1991] FCA 467 ; (1991) 31 FCR 469 the Full Court considered the application of s 205 of the Customs Act which provided that where a notice was served in respect of goods seized pursuant to s 203 of the Customs Act , 'the goods shall be deemed to be condemned as forfeited to the Crown' unless the owner gave notice stating a claim to the goods. At 476 O'Loughlin J (with whom Spender and French JJ agreed) said ' [h] istorically the word "forfeiture" and its derivatives has meant an immediate loss of all interest in property as well as a loss of the right of possession '. His Honour continued: Indeed, the concept of forfeiture does not evolve out of any administrative decision to which the provisions of the Judicial Review Act might attach; on the contrary, it arises by force of statute upon the happening of certain prior events. 38 In Olbers French J considered the operation of s 106A of the FMA which is contained in Subdivision B of Division 6 thereof and entitled 'Automatic forfeiture of things'. Except that s 106A of the FMA provides for forfeiture upon the commission of 'an offence' whereas the provisions of s 261A of the Migration Act provides for forfeiture upon 'a contravention', the provisions of each Act relating to forfeiture are equivalent. Each Act also contains provisions having the same effect relating to seizure and subsequent dealings with the thing including condemnation. Section 106C of the FMA requires the giving of notice of seizure and s 106E makes provision for the thing to be 'condemned as forfeited to the Commonwealth' unless a claim is made for the thing within 30 days after notice of the seizure. 39 French J (at [80]) concluded in Olbers that upon a proper construction of s 106A of the FMA the vessel ('the Volga') which entered Australian waters contrary to the licensing provision of the FMA 'was forfeited to the Commonwealth and passed into the ownership of the Commonwealth in January 2002' , namely when the Volga first entered such waters. In affirming such decision, the Full Court at [21] observed that the forfeiture effected by s 106A constituted a forfeiture of all interest in the Volga. 40 Applying the rationale adopted in Olbers to the provision of the Migration Act , automatic forfeiture of the ship occurred pursuant to s 261A of the Migration Act upon the entry of the ship into the migration zone on 1 July 2003 carrying the Relevant Persons in contravention of the Migration Act . 41 Such forfeiture, although effective to transfer all rights in the ship to the Commonwealth, did not finally determine that such rights should remain with the Commonwealth. French J concluded in Olbers at 89: The question whether property has been forfeited pursuant to s 106A remains contestable after seizure until the exhaustion or non-invocation of the mechanisms for contesting it under Subdiv C. That it remains for a time a contestable question does not mean that its resolution is in any sense discretionary. The characterisation of a thing as "condemned as forfeited to the Commonwealth" under s 106E does not involve the final transfer of title in something which was forfeited by operation of s 106A...Of course if it were the case that the thing purportedly forfeited could be shown, after condemnation, not to have been forfeited, then it might be said that condemnation had effected a divesting. That is not a question which needs to be finally considered here. It does seem however that the condemnation provisions have at least a privative character. 42 Upon forfeiture under s 261A of the Migration Act , a procedure is available to determine whether the forfeiture is confirmed by condemnation under s 261F of such Act. In the present proceedings neither seizure nor the condemnation process prescribed by Subdivision C of Division 13A of Part 2 the Migration Act have been invoked. However, the fact that there has been no seizure or condemnation has no effect upon the forfeiture effected by s 261A of the Migration Act . That forfeiture has vested all rights of the ship in the Commonwealth. 43 After considering the meaning of the word 'condemned', the Full Court in Olbers at 455 said at [17]: Understood in this way the provisions of ss 106B to 106G do not themselves effect a forfeiture of the relevant property. Nor are they to be understood as conferring any broad (indeed, unfettered) discretion upon the Court. Rather, they provide a mechanism by which it can be adjudged and formally recorded whether a forfeiture has already occurred. 49 The issue of visas to the Relevant Persons, the acquittal of Tran and the operation of the Refugee Convention may become relevant during proceedings for condemnation if the forfeiture is challenged. However, in the absence of any challenge to the forfeiture it follows there has been a deprivation of all of Tran's rights in the ship from the time it entered the migration zone. Since the forfeiture remains a 'purported forfeiture' (see French J in Olbers at [74]-[75]) because the condemnation process has not been invoked, the forfeiture is not 'beyond question' (see French J in Olbers at [79]). 50 The Commonwealth submits that no compensation is payable under s 51(xxxi) of the Constitution because Tran has no interest in the ship as a consequence of its forfeiture.