mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: McMullin and Another v ICI Australia Operations Pty Ltd and Others (No 7) [1999] FCA 1814 ; (1999) 169 ALR 227
Outcome: followed
view of such authority, there can be no scope for the Court to reconsider the questions it has already answered unless it is found by the Court that ' it is incontestable that the earlier decision is wrong ': see McMullin and Another v ICI Australia Operations Pty Ltd and Others (No 7) [1999] FCA 1814 ; (1999) 169 ALR 227 at [20] . While such authority refers to a basis for reviewing an earlier decision where the Court, still possessing jurisdiction in a proceeding, later considers its decision to be erroneous, this Court considers that the principle referred to in Autodesk and McMullin applies generally and should guide this Court in the present circumstances. Is forfeiture dependent upon conviction or commission of a criminal offence?
Case: Mutual Pools &amp; Staff Pty. Limited v The Commonwealth of Australia [1994] HCA 9 ; (1994) 179 CLR 155
Outcome: cited
the reasons in Tran No. 1 at [50]-[54] the Court reiterates that no compensation is payable since s 51(xxxi) of the Constitution does not operate in respect of the forfeiture. The ship was validly forfeited. No question of payment of compensation arises where the forfeiture results from the incidental exercise of power under the Migration Act since s 51(xxxi) ' applies only to acquisitions of a kind that permit of just terms ': see Newcrest Mining (WA) Limited and Another v The Commonwealth of Australia and Another [1997] HCA 38 ; (1997) 190 CLR 513 per Gummow J at 595; see authorities referred to in Tran No. 1 at [51]-[53]; see also Mutual Pools &amp; Staff Pty. Limited v The Commonwealth of Australia [1994] HCA 9 ; (1994) 179 CLR 155 per Brennan J at 177; The Commonwealth of Australia v WMC Resources Limited [1998] HCA 8 ; (1998) 194 CLR 1 per Brennan CJ at [10]-[13]; Gaudron J at [75]-[79]. The concept that compensation might be payable in circumstances where forfeiture has resulted from a contravention of a Commonwealth statute is incongruous: see Theophanous v The Commonwealth [2006] HCA 18 ; (2006) 225 CLR 101 at [55] - [61] ; Re Director of Public Prosecutions; Ex parte Lawler and Another [1994] HCA 10 ; (1994) 179 CLR 270 at 289.
Case: Newcrest Mining (WA) Limited and Another v The Commonwealth of Australia and Another [1997] HCA 38 ; (1997) 190 CLR 513
Outcome: referred to
the reasons in Tran No. 1 at [50]-[54] the Court reiterates that no compensation is payable since s 51(xxxi) of the Constitution does not operate in respect of the forfeiture. The ship was validly forfeited. No question of payment of compensation arises where the forfeiture results from the incidental exercise of power under the Migration Act since s 51(xxxi) ' applies only to acquisitions of a kind that permit of just terms ': see Newcrest Mining (WA) Limited and Another v The Commonwealth of Australia and Another [1997] HCA 38 ; (1997) 190 CLR 513 per Gummow J at 595; see authorities referred to in Tran No. 1 at [51]-[53]; see also Mutual Pools &amp; Staff Pty. Limited v The Commonwealth of Australia [1994] HCA 9 ; (1994) 179 CLR 155 per Brennan J at 177; The Commonwealth of Australia v WMC Resources Limited [1998] HCA 8 ; (1998) 194 CLR 1 per Brennan CJ at [10]-[13]; Gaudron J at [75]-[79]. The concept that compensation might be payable in circumstances where forfeiture has resulted from a contravention of a Commonwealth statute is incongruous: see Theophanous v The Commonwealth [2006] HCA 18 ; (2006) 225 CLR 101 at [55] - [61] ; Re Director of Public Prosecutions; Ex parte Lawler and Another [1994] HCA 10 ; (1994) 179 CLR 270 at 289.
Case: NRMA Ltd v Gould and Others (1995) 18 ACSR 290
Outcome: referred to
meaning of the word 'contravention' is critical for the present proceedings. The word has been defined in cases other than Dimella to mean ' a failure to obey a statutory command...by doing something that a statute says must not be done ': see Re Centennial Coal Co Ltd (2006) 226 ALR 341 at 346 per Barrett J; ' an infringement or violation of a rule or standard or norm ': see Re Venice Nominees at 242 per Miles CJ; '" infringe (law); (of things) conflict with"' per Owen J in Elkington v Vockbay Pty Ltd; Vockbay Pty Ltd v Elkington (1993) 10 ACSR 785 at 803; and ' an act or omission which is blameworthy and may lead to civil or criminal consequences ' per Young J in NRMA Ltd v Gould and Others (1995) 18 ACSR 290 at 293. The word has been defined in various UK statues as ' failure to comply ': see, for example, ss 5(1) and 37(1) Misuse of Drugs Act 1971 (UK); s 53(1) Food and Safety Act 1990 (UK).
Case: Olbers Co Ltd v Commonwealth and Another [2004] FCAFC 262 ; (2004) 143 FCR 449
Outcome: followed
appeal (see Olbers Co Ltd v Commonwealth and Another [2004] FCAFC 262 ; (2004) 143 FCR 449) the Full Court explicitly adopted the findings of French J that forfeiture under s 106A of the FMA took place without conviction for any offence. As to the condemnation procedure provided by s 106B to s 106G of the FMA, the Full Court in Olbers [2004] FCAFC 262 ; 143 FCR 449 , adopting the reasoning in Whim Creek Consolidated NL v Colgan [1991] FCA 467 ; (1991) 31 FCR 469 at 477-478, determined that such provision enabled the recording of the forfeiture having already occured: see Olbers [2004] FCAFC 262 ; 143 FCR 449 at [16] - [17] ; Tran No. 1 at [43].
Case: Olbers Co Ltd v Commonwealth of Australia and Another [2004] FCA 229 ; (2004) 136 FCR 67
Outcome: followed
Olbers Co Ltd v Commonwealth of Australia and Another [2004] FCA 229 ; (2004) 136 FCR 67 at 79, French J, referring to s 106A of the Fisheries Management Act 1991 (Cth) ('the FMA'), addressed the question whether a conviction for an offence was necessary before forfeiture could occur under the provisions of that section. Such section provides for the forfeiture to the Commonwealth of boats, traps and other things used in offences against various provisions of that Act. His Honour said at [79]: It was contended for the applicants that before s 106A could operate to effect forfeiture of a boat or its equipment or catch it was necessary that there be a conviction for one or more of the offences upon which such forfeiture was said to arise. As a matter of construction this proposition cannot be sustained. Where there has been a conviction for an offence forfeiture can be ordered by the convicting court under s 106. Section 106A does not require any judicial determination to give effect to the forfeiture for which it provides albeit a judicial determination may be made if the occurrence of the forfeiture is contested in later proceedings. In such proceedings a civil court may make a finding whether the boat has been used in one of the specified offences. Absent the institution of such proceedings within 30 days of a notice of seizure under s 106C the asserted forfeiture will be put beyond question by operation of s 106E. That process requires no conviction to have been recorded. I reject the contention that s 106A depends for its application upon a conviction for one or more of the offences mentioned in it.
Case: Perpetual Trustee Co Ltd v Valuer General (No 2); Trust Co of Australia Ltd and Another v Valuer General (No 2) [2007] SASC 340 ; (2007) 99 SASR 251
Outcome: distinguished
applicant drew the Court's attention to Perpetual Trustee Co Ltd v Valuer General (No 2); Trust Co of Australia Ltd and Another v Valuer General (No 2) [2007] SASC 340 ; (2007) 99 SASR 251 as supporting its proposition that the findings in Tran No. 1 could be reconsidered. In that decision Debelle J found that such principle that findings cannot be reconsidered should not ' apply to an interlocutory judgment determining a question of statutory construction ' where no evidence had been led and where the assumptions upon which the preliminary questions were argued were later found to be erroneous.
Case: R v Ampi Hungan [2000] NTSC 84
Outcome: referred to
this conclusion, the Migration Act has nevertheless been contravened by the applicant because of a breach of s 42 of the Migration Act , as was found in Tran No. 1 at [48]. In Rutu and Another v Dalla Costa (1997) 139 FLR 265 Angel J said at 270: They intended to so enter without a visa. Thus they intended to enter in contravention of the Migration Act , not in the sense of being in breach of an express provision to do so I note s 42 relates to travelling to Australia without a visa rather than entering Australia without a visa but in the sense of disregarding the visa requirements of the Act. The Sri Lankans did not in fact commit any offence created by the Act, nor did they intend to commit any offence created by the Act. They nonetheless intended to contravene the Act in the sense I have mentioned, that is, to enter in disregard of the visa requirements of the Act. Angel ACJ expressly refused to follow one aspect of Rutu in R v Ampi Hungan [2000] NTSC 84 , however, that aspect of Rutu is irrelevant for current purposes. His Honour's finding in relation to s 42 is unambiguous and the Court respectfully follows the finding of Angel J. As has been stated, s 261A does not require a section of the Migration Act creating an offence to have been contravened for forfeiture to occur. All that it requires is that the Migration Act be contravened in such a way as to satisfy s 261A(1)(a). Travelling to Australia without a visa is a contravention of s 42 of the Migration Act , and such act in the circumstances constituted a convention sufficient to satisfy s 261A(1)(a). Pursuant to the text of s 4A of the Migration Act the defences under the Criminal Code only apply to offences under the Migration Act , and thus cannot apply to a contravention of s 42 which is not framed as an offence.
Case: R v Dudley and Stephens (1884) 14 QBD 273
Outcome: referred to
can be no doubt that the Criminal Code was intended to provide a principled and logical analytical regime for Commonwealth criminal law and thus substantially remove inconsistencies found in the common law. For example, the defence of necessity at common law did not apply to murder: see R v Dudley and Stephens (1884) 14 QBD 273. However, the defence of sudden or extraordinary emergency is not so limited in the Criminal Code and it applies to all Commonwealth offences. The Criminal Code codified a basis for criminal responsibility distinct from that at common law as discussed in R v Oblach [2005] NSWCCA 440 ; (2005) 65 NSWLR 75. Spigelman CJ said of the structure of the Criminal Code (at [28]): Criminal responsibility under the Code arises from the combined effect of the presence of the elements in Pt 2.2 [General Principles of Criminal Responsibility] and the absence or failure of the elements in Pt 2.3 [Circumstances in which there is no Criminal Responsibility]. This structure differs from the position at common law in which it is appropriate to treat certain matters as "defences", for example, self defence is "exculpatory". ( Zecevic (at 658-659)). [Emphasis added] In an article published in Judicial Review entitled ' The Commonwealth Criminal Code : An Introduction to the General Principle s' the author Ian Leader-Elliot wrote:- Proof of the necessary physical and fault elements does not, of itself, establish guilt. Though all elements of an offence are established against a defendant, guilt may be defeated by reliance on a defence. Chapter 2 [of the Criminal Code ] adopts a binary structure in which "responsibility" is a compound resulting from proof of all elements of the offence, combined with disproof or failure of all defences that are open on the evidence... There are, it should be said, significant departures from the common law in the articulation of a number of offences. [(2002) 5 Judicial Review 4 at 301] On such analysis, if the requirements of s 10.3 are satisfied it must follow that there can be no criminal responsibility and therefore no offence.
Case: R v Loughnan [1981] VR 443
Outcome: referred to
common law defence of necessity, from which the defence of sudden or extraordinary emergency in s 10.3 of the Criminal Code has its origins, has been seen as a defence both of excuse and of justification: see, for example, R v Loughnan [1981] VR 443 which proceeded upon the assumption that such defence was an excuse and In Re A (children) (conjoined twins: surgical separation) [2000] EWCA Civ 254 ; [2001] 2 WLR 480 in which Lord Brooke treated the defence of necessity as a justification. Unfortunately the history of the defence provides little firm guidance so resort must be had to the Criminal Code itself to discern whether one will still contravene an offence provision even if a defence is available.
Case: R v Oblach [2005] NSWCCA 440 ; (2005) 65 NSWLR 75
Outcome: considered
can be no doubt that the Criminal Code was intended to provide a principled and logical analytical regime for Commonwealth criminal law and thus substantially remove inconsistencies found in the common law. For example, the defence of necessity at common law did not apply to murder: see R v Dudley and Stephens (1884) 14 QBD 273. However, the defence of sudden or extraordinary emergency is not so limited in the Criminal Code and it applies to all Commonwealth offences. The Criminal Code codified a basis for criminal responsibility distinct from that at common law as discussed in R v Oblach [2005] NSWCCA 440 ; (2005) 65 NSWLR 75. Spigelman CJ said of the structure of the Criminal Code (at [28]): Criminal responsibility under the Code arises from the combined effect of the presence of the elements in Pt 2.2 [General Principles of Criminal Responsibility] and the absence or failure of the elements in Pt 2.3 [Circumstances in which there is no Criminal Responsibility]. This structure differs from the position at common law in which it is appropriate to treat certain matters as "defences", for example, self defence is "exculpatory". ( Zecevic (at 658-659)). [Emphasis added] In an article published in Judicial Review entitled ' The Commonwealth Criminal Code : An Introduction to the General Principle s' the author Ian Leader-Elliot wrote:- Proof of the necessary physical and fault elements does not, of itself, establish guilt. Though all elements of an offence are established against a defendant, guilt may be defeated by reliance on a defence. Chapter 2 [of the Criminal Code ] adopts a binary structure in which "responsibility" is a compound resulting from proof of all elements of the offence, combined with disproof or failure of all defences that are open on the evidence... There are, it should be said, significant departures from the common law in the articulation of a number of offences. [(2002) 5 Judicial Review 4 at 301] On such analysis, if the requirements of s 10.3 are satisfied it must follow that there can be no criminal responsibility and therefore no offence.
Case: Re Centennial Coal Co Ltd (2006) 226 ALR 341
Outcome: referred to
meaning of the word 'contravention' is critical for the present proceedings. The word has been defined in cases other than Dimella to mean ' a failure to obey a statutory command...by doing something that a statute says must not be done ': see Re Centennial Coal Co Ltd (2006) 226 ALR 341 at 346 per Barrett J; ' an infringement or violation of a rule or standard or norm ': see Re Venice Nominees at 242 per Miles CJ; '" infringe (law); (of things) conflict with"' per Owen J in Elkington v Vockbay Pty Ltd; Vockbay Pty Ltd v Elkington (1993) 10 ACSR 785 at 803; and ' an act or omission which is blameworthy and may lead to civil or criminal consequences ' per Young J in NRMA Ltd v Gould and Others (1995) 18 ACSR 290 at 293. The word has been defined in various UK statues as ' failure to comply ': see, for example, ss 5(1) and 37(1) Misuse of Drugs Act 1971 (UK); s 53(1) Food and Safety Act 1990 (UK). Generally, authorities show that in ascertaining the meaning of the word the most important consideration is the statutory framework within which the word operates. For example, in Centennial Coal , Barrett J defined contravention as conventionally meaning that which was mentioned above, but went on to say: In the present context, however, "contravention" must be accepted as having a wider meaning. Section 1322(4)(a) is a remedial provision and the word "contravention" must, therefore, "be read in a very wide sense"... Can one contravene an offence section if a defence is available?
Case: Re Director of Public Prosecutions; Ex parte Lawler and Another [1994] HCA 10 ; (1994) 179 CLR 270 at 289
Outcome: referred to
the reasons in Tran No. 1 at [50]-[54] the Court reiterates that no compensation is payable since s 51(xxxi) of the Constitution does not operate in respect of the forfeiture. The ship was validly forfeited. No question of payment of compensation arises where the forfeiture results from the incidental exercise of power under the Migration Act since s 51(xxxi) ' applies only to acquisitions of a kind that permit of just terms ': see Newcrest Mining (WA) Limited and Another v The Commonwealth of Australia and Another [1997] HCA 38 ; (1997) 190 CLR 513 per Gummow J at 595; see authorities referred to in Tran No. 1 at [51]-[53]; see also Mutual Pools &amp; Staff Pty. Limited v The Commonwealth of Australia [1994] HCA 9 ; (1994) 179 CLR 155 per Brennan J at 177; The Commonwealth of Australia v WMC Resources Limited [1998] HCA 8 ; (1998) 194 CLR 1 per Brennan CJ at [10]-[13]; Gaudron J at [75]-[79]. The concept that compensation might be payable in circumstances where forfeiture has resulted from a contravention of a Commonwealth statute is incongruous: see Theophanous v The Commonwealth [2006] HCA 18 ; (2006) 225 CLR 101 at [55] - [61] ; Re Director of Public Prosecutions; Ex parte Lawler and Another [1994] HCA 10 ; (1994) 179 CLR 270 at 289.
Case: Re Venice Nominees Pty Ltd (Receiver and Manager appointed) (In liquidation) (1992) 108 FLR 237
Outcome: referred to
word 'contravention' may mean a breach of the law, but 'contravention' ' does not necessarily involve the commission of an offence unless the Act or law otherwise makes it so ': see Re Venice Nominees Pty Ltd (Receiver and Manager appointed) (In liquidation) (1992) 108 FLR 237 at 242 referred to in Tran No. 1 at [28]. Conduct may be proscribed by Parliament, and the finding that such conduct has occurred may lead to the conclusion that a contravention of the law has occurred without an offence having been committed. However, facts may exist to satisfy a court that conduct constitutes not only a contravention, but simultaneously an offence. The text of the relevant statute must be considered in order to decide whether contravention means merely a breach of its provisions or commission of an offence. The applicant invites the Court to find that because the word 'offences' is used in the heading of s 261A, the conclusion must be reached that the word 'contravention' used in s 261A should be limited only to a contravention of those sections of the Migration Act which create offences. Pursuant to s 15AB(1)(b) of the Acts Interpretation Act extrinsic material can be considered as an aid to interpretation where the text of the provision itself is ' ambiguous or obscure '. By s 13(3) the heading to a section does not form part of the statute. However, by s 15AB(2)(a) of the Acts Interpretation Act the headings to sections comprise extrinsic material. Therefore, the pivotal consideration is whether the text of s 261A is ambiguous or obscure, so as to enable the Court to refer to the heading of s 261A when interpreting that section. The meaning of the word 'contravention' is critical for the present proceedings. The word has been defined in cases other than Dimella to mean ' a failure to obey a statutory command...by doing something that a statute says must not be done ': see Re Centennial Coal Co Ltd (2006) 226 ALR 341 at 346 per Barrett J; ' an infringement or violation of a rule or standard or norm ': see Re Venice Nominees at 242 per Miles CJ; '" infringe (law); (of things) conflict with"' per Owen J in Elkington v Vockbay Pty Ltd; Vockbay Pty Ltd v Elkington (1993) 10 ACSR 785 at 803; and ' an act or omission which is blameworthy and may lead to civil or criminal consequences ' per Young J in NRMA Ltd v Gould and Others (1995) 18 ACSR 290 at 293. The word has been defined in various UK statues as ' failure to comply ': see, for example, ss 5(1) and 37(1) Misuse of Drugs Act 1971 (UK); s 53(1) Food and Safety Act 1990 (UK).
Case: Rutu and Another v Dalla Costa (1997) 139 FLR 265
Outcome: followed
this conclusion, the Migration Act has nevertheless been contravened by the applicant because of a breach of s 42 of the Migration Act , as was found in Tran No. 1 at [48]. In Rutu and Another v Dalla Costa (1997) 139 FLR 265 Angel J said at 270: They intended to so enter without a visa. Thus they intended to enter in contravention of the Migration Act , not in the sense of being in breach of an express provision to do so I note s 42 relates to travelling to Australia without a visa rather than entering Australia without a visa but in the sense of disregarding the visa requirements of the Act. The Sri Lankans did not in fact commit any offence created by the Act, nor did they intend to commit any offence created by the Act. They nonetheless intended to contravene the Act in the sense I have mentioned, that is, to enter in disregard of the visa requirements of the Act. Angel ACJ expressly refused to follow one aspect of Rutu in R v Ampi Hungan [2000] NTSC 84 , however, that aspect of Rutu is irrelevant for current purposes. His Honour's finding in relation to s 42 is unambiguous and the Court respectfully follows the finding of Angel J. As has been stated, s 261A does not require a section of the Migration Act creating an offence to have been contravened for forfeiture to occur. All that it requires is that the Migration Act be contravened in such a way as to satisfy s 261A(1)(a). Travelling to Australia without a visa is a contravention of s 42 of the Migration Act , and such act in the circumstances constituted a convention sufficient to satisfy s 261A(1)(a). Pursuant to the text of s 4A of the Migration Act the defences under the Criminal Code only apply to offences under the Migration Act , and thus cannot apply to a contravention of s 42 which is not framed as an offence.
Case: The Commonwealth of Australia v WMC Resources Limited [1998] HCA 8 ; (1998) 194 CLR 1
Outcome: cited
the reasons in Tran No. 1 at [50]-[54] the Court reiterates that no compensation is payable since s 51(xxxi) of the Constitution does not operate in respect of the forfeiture. The ship was validly forfeited. No question of payment of compensation arises where the forfeiture results from the incidental exercise of power under the Migration Act since s 51(xxxi) ' applies only to acquisitions of a kind that permit of just terms ': see Newcrest Mining (WA) Limited and Another v The Commonwealth of Australia and Another [1997] HCA 38 ; (1997) 190 CLR 513 per Gummow J at 595; see authorities referred to in Tran No. 1 at [51]-[53]; see also Mutual Pools &amp; Staff Pty. Limited v The Commonwealth of Australia [1994] HCA 9 ; (1994) 179 CLR 155 per Brennan J at 177; The Commonwealth of Australia v WMC Resources Limited [1998] HCA 8 ; (1998) 194 CLR 1 per Brennan CJ at [10]-[13]; Gaudron J at [75]-[79]. The concept that compensation might be payable in circumstances where forfeiture has resulted from a contravention of a Commonwealth statute is incongruous: see Theophanous v The Commonwealth [2006] HCA 18 ; (2006) 225 CLR 101 at [55] - [61] ; Re Director of Public Prosecutions; Ex parte Lawler and Another [1994] HCA 10 ; (1994) 179 CLR 270 at 289.