Tran v Commonwealth

Case [2010] FCAFC 80


FEDERAL COURT OF AUSTRALIA

Tran v The Commonwealth [2010] FCAFC 80

Citation: Tran v The Commonwealth [2010] FCAFC 80
Appeal from: Tran v The Commonwealth [2008] FCA 901
Tran v The Commonwealth [2009] FCA 474
Parties: VAN TOL TRAN v THE COMMONWEALTH
File number: NSD 537 of 2009
Judges: LANDER, RARES AND BESANKO JJ
Date of judgment: 6 July 2010
Catchwords:

COMPULSORY ACQUISITION – compensation – customs – appellant’s ship entered Australia’s territorial sea carrying many persons not holding any Australian visas – direction signed under s 185B(4) of the Customs Act 1901 (Cth) directing an officer to destroy the ship – ship destroyed – whether destruction of vessel pursuant to s 185B(4) of Customs Act1901 (Cth) an acquisition of property under s 51(xxxi) of the Constitution entitling appellant to compensation under s 4AB of the Customs Act

Held:  destruction of vessel pursuant to s 185B(4) of Customs Act not an acquisition under s 51(xxxi) of the Constitution – appellant not entitled to rely on s 4AB of the Customs Act

STATUTORY INTERPRETATION – construction – whether breach of s 42(1) is a “contravention” of the Migration Act 1958 (Cth) giving rise to the forfeiture provisions in s 261A of the Act – meaning of “contravention” under s 261A of the Act – principles of construction – whether ship automatically forfeited by force of s 261A if ship used in breach of s 42(1) – use of headings of Divisions and sections

Held:  “contravention of this Act” in s 261A means “offence against” the Act so as to cause property used in people smuggling to be forfeited – use of property in breach of s 42(1) not an offence and not a contravention of Migration Act within meaning of s 261A – no forfeiture of vessel by operation of s 261A

STATUTORY INTERPRETATION – construction of s 10.3 of the Criminal Code 1995 (Cth) Schedule – whether ss 229(1), 232(1), 232A or 233(1)(a) of the Migration Act 1958 (Cth) contravened if basis of verdict of not guilty was that defence under s 10.3 of the Code was established – conduct element of offence proved – meaning of “not criminally responsible for an offence” – whether contravention could occur without a finding of fault elements required to establish criminal responsibility or guilt – whether proof of the physical or conduct element in each offence established a contravention of a norm of behaviour established by the Act despite verdict of not guilty

Held:  verdict of not guilty determined that appellant’s conduct was not criminal and thus he had not contravened the Act – questions of whether conduct of respondent lawful pursuant to Customs Act 1901 (Cth) and of assessment of damages, if any, remitted to primary judge

Legislation: Acts Interpretation Act 1901 (Cth) ss 13(1) and (3), 22(1)(j)
Border Protection Legislation Amendment Act 1999 (No 160 of 1999) (Cth)
Constitution s 51(xxxi)
Convention relating to the Status of Refugees 1951 Art 31
Corporations Act 2001 (Cth) Part 9.4B
Criminal Code Act

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Tran v Commonwealth [2010] FCAFC 80
Case
[2010] FCAFC 80
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CaseChat Overview and Summary

The case of Tran v Commonwealth involved the appellant, who owned a ship that was destroyed by the Commonwealth under the Customs Act 1901 (Cth). The destruction occurred as the ship was carrying numerous persons without Australian visas and entered Australia's territorial sea. The appellant challenged the legality of the ship's destruction and sought compensation, arguing that it constituted an acquisition of property under the Constitution and the Customs Act. The court had to determine whether the ship's destruction was a lawful acquisition under the Customs Act and if it entitled the appellant to compensation.

The central legal issues included whether the destruction of the vessel pursuant to section 185B(4) of the Customs Act constituted an acquisition of property under section 51(xxxi) of the Constitution, thereby entitling the appellant to compensation under section 4AB of the Customs Act. Additionally, the court examined whether the use of the ship in breach of section 42(1) of the Migration Act 1958 (Cth) constituted a contravention under section 261A, leading to forfeiture of the vessel. The interpretation of "contravention" and the meaning of "not criminally responsible for an offence" under the Criminal Code 1995 (Cth) were also scrutinized.

The court concluded that the destruction of the vessel under section 185B(4) of the Customs Act was not an acquisition of property under the Constitution, and therefore, the appellant was not entitled to compensation under section 4AB. It further held that the use of the ship in breach of section 42(1) of the Migration Act did not constitute a contravention under section 261A, hence no forfeiture of the vessel occurred. The court also determined that a verdict of not guilty indicated the appellant had not contravened the Act, and thus, the conduct was not criminal. The issues regarding the lawfulness of the respondent's conduct under the Customs Act and the assessment of damages, if any, were remitted to the primary judge.

The court allowed the appeal, set aside the orders and declaration made by the primary judge, and remitted the proceeding to the primary judge for further determination on the lawfulness of the ship's destruction, entitlement to declarations, and quantification of damages if applicable. The respondent was ordered to pay the appellant's costs of the appeal, with the determination of the costs of the proceeding reserved to the primary judge.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders and declaration made by the primary judge on 15 May 2009 be set aside.

3. The proceeding be remitted to the primary judge to determine whether:

(a) the respondent was entitled to destroy the appellant’s vessel pursuant to s 185B(4) of the Customs Act; and

(b) the appellant is entitled to have any of the declarations sought in his further amended application made; and

(c) if the respondent was not entitled to destroy the appellant’s vessel pursuant to s 185B(4) of the Customs Act:

(i) whether the appellant is entitled to damages; and

(ii) the quantification of those damages.

4. The respondent pay the appellant’s costs of the appeal.

5. Reserve to the primary judge the determination of the costs of the proceeding.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The primary judge has not determined whether the respondent’s conduct under the Customs Act was lawful. I have identified in a general way earlier in these reasons the issues which arise in relation to this question (see [160]). To determine those issues, the evidence must be assessed and factual findings made. I do not think that this is a task which this Court should undertake. The proceeding must be remitted to the primary judge to determine those issues and, if appropriate, to assess damages.CONCLUSIONS In my opinion, the appeal must be allowed and the orders and declaration made by the primary judge set aside. The proceeding must be remitted to the primary judge to determine the remaining issues. Since writing these reasons I have had the advantage of considering the orders proposed by Lander J. I agree with those proposed orders.

Ratio Decidendi

Legal Principle Established

There was an alternative argument advanced by the respondent which also leads to the conclusion that a breach of s 42(1) occurs in Australia for the purposes of s 261A. The argument is premised on the conclusion that, for the purposes of s 42(1), to travel to Australia means to travel to the migration zone. There is a good deal of force in that conclusion bearing in mind the difficulties associated with the application of s 232 and s 233(1) if that were not the case. If the premise is right, the breach of s 42(1) occurred when the non-citizen without a visa that is in effect entered Australia’s territorial sea.Conclusions in relation to forfeiture under the Migration Act For the reasons I have given, there was no contravention of the Migration Act within s 261A in this case and the appellant’s ship was not forfeited to the respondent by operation of that section. Had a breach of s 42(1) constituted a contravention within s 261A, I would hold that it occurred in Australia within s 261A.Statutory authority under the Customs Act The appellant contends that, even if, contrary to his primary submission, the destruction of his ship was lawful under the Customs Act, it was nevertheless an “acquisition of property” within s 4AB of that Act and that, therefore, he is entitled to a reasonable amount of compensation. As I have said, s 4AB of the Customs Act is, in material respects, in the same terms as s 3B of the Migration Act (see [156] above). The words “acquisition of property” in s 4AB of the Customs Act have the same meaning as they have in paragraph 51(xxxi) of the Constitution. This issue must be addressed because the appellant’s ship was not forfeited to the Commonwealth by operation of s 261A of the Migration Act. Neither party made oral submissions on the question of whether the destruction of the appellant’s ship under s 185B of the Customs Act was an acquisition of property. Both said that they were content to rely on their written submissions. The respective written submissions were quite brief. In 2003, s 185B of the Customs Act relevantly provided as follows:185B Moving or destroying hazardous ships etc.Application of section to ships in Australia (1)This section applies to a ship that is in Australia and that an officer reasonably suspects is or has been involved in a contravention or an attempted contravention, either in or outside Australia, of this Act or a prescribed Act. …When ship may be destroyed or moved (3)The CEO may direct an officer to move, destroy, or move and destroy the ship, or cause such thing to be done, if the CEO has reasonable grounds to believe any of the following:(a) that the ship is unseaworthy; (b)that the ship poses a serious risk to navigation, quarantine, safety or public health; (c)that the ship poses a serious risk of damage to property or the environment.(4)The CEO may direct an officer to destroy, or move and destroy, the ship, or cause such thing to be done, if the CEO has reasonable grounds to believe that the ship is in such poor condition that its custody or maintenance by the Commonwealth would involve an expense that would be likely to be greater than its value. Giving of notice after the ship has been destroyed (5)As soon as practicable, but not later than 7 days after the ship has been destroyed, the CEO must give a written notice to:(a) the owner of the ship; or (b)if the owner cannot be identified after reasonable inquiry—the person in whose possession or under whose control the ship was when it was detained or located.(6) The notice must state:(a)that the ship has been destroyed under subsection (3) or (4); and (b) the reason for the destruction; and (c) that compensation may be payable under section 4AB.Note:A person may be paid compensation under section 4AB if the destruction of the ship results in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution).Failure to give notice not to affect validity (7)A failure to give a notice under this section does not affect the validity of the ship’s destruction.Section to override certain other provisions(8)This section applies despite Subdivisions D, G and GA (other than sections 205G and 209I) of Division 1 of Part XII.(9)In this section, officer includes a member of the Australian Defence Force.