Tran v The Commonwealth

Case [2009] FCA 474

FEDERAL COURT OF AUSTRALIA

Tran v The Commonwealth [2009] FCA 474

MIGRATION – Automatic forfeiture of fishing vessel engaged in transportation of unauthorised persons to Australia – meaning of word ‘contravention’ – whether contravention of s 261A of Migration Act 1958 (Cth) requires conviction of offence – whether contravention of s 261A limited to contravention of provisions within Migration Act creating offences – whether offence section contravened if a defence were available – whether s 42 of the Migration Act contravened

PRACTICE AND PROCEDURE – Grounds under which Court can depart from a previous judgment

INTERPRETATION – reference to headings to Divisions in aid of interpretation – use of extrinsic material – ss 13, 15AB Acts Interpretation Act 1901 (Cth)

WORDS AND PHRASES – ‘contravention of this Act’

Acts Interpretation Act 1901 (Cth) ss 13(1), 13(3), 15AB(1)(b), 15AB(2)(a)
Border Protection Legislation Amendment Act 1999 (Cth)
Border Protection Legislation Amendment Bill 1999 (Cth)
Builder’s Licensing Act 1967 (SA) ss 21(2), 21(5), 21(11)
Commonwealth of Australia Constitution Act 1901 (Cth) s 51(xxxi)
Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (UN)
Criminal Code Act1995 (Cth) s 10.3
Customs Act 1901 (Cth)
Federal Court Rules (Cth) O 29 r 2
Fisheries Management Act 1991 (Cth) ss 106A, 106B-106G
Food and Safety Act 1971 (UK) s 53(1)
Migration Act 1958 (Cth) ss 4A, 5, 42, 229(1), 232(1), 232A, 233, 261A, 261B
Misuse of Drugs Act 1971 (UK) ss 5(1), 37(1)

Autodesk Inc. and Another v Dyason and Others (No. 2) (1993) 176 CLR 300 followed
Coco v R (1994) 179 CLR 427 referred to
Customs and Excise Commissioners v. Air Canada [1991] 2 QB 446 referred to
Dimella Constructions Pty. Ltd v Stocker and Stocker (1976) 14 SASR 215 applied
Elkington v Vockbay Pty Ltd; Vockbay Pty Ltd v Elkington (1993) 10 ACSR 785 referred to
In Re A (children) (conjoined twins: surgical separation) [2001] 2 WLR 480 referred to
McMullin and Another v ICI Australia Operations Pty Ltd and Others (No 7) (1999) 169 ALR 227 followed
Mutual Pools & Staff Pty. Limited v The Commonwealth of Australia (1994) 179 CLR 155 cited
NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 222 CLR 161 discussed
Newcrest Mining (WA) Limited and Another v The Commonwealth of Australia and Another (1997) 190 CLR 513 referred to
NRMA Ltd v Gould and Others (1995) 18 ACSR 290 referred to
Olbers Co Ltd v Commonwealth and Another (2004) 143 FCR 449 followed
Olbers Co Ltd v Commonwealth of Australia and Another (2004) 136 FCR 67 followed
Perpetual Trustee Co Ltd v Valuer General (No 2); Trust Co of Australia Ltd and Another v Valuer General (No 2) (2007) 99 SASR 251 distinguished
R v Ampi Hungan [2000] NTSC 84 referred to
R v Dudley and Stephens (1884) 14 QBD 273 referred to
R v Loughnan [1981] VR 443 referred to
R v Oblach (2005) 65…

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Details
AGLC
Tran v The Commonwealth [2009] FCA 474
Case
[2009] FCA 474
Decision Date

CaseChat Overview and Summary

In the case of Tran v The Commonwealth, the primary issue before the court was the validity of the forfeiture of a ship by the Commonwealth under the Migration Act 1958 (Cth). The applicant argued that the forfeiture was invalid due to the absence of a conviction for an offence under the Act. The court was required to determine whether the forfeiture was valid under the automatic forfeiture provisions of section 261A of the Act and whether the absence of a conviction for an offence rendered the forfeiture invalid. Additionally, the court needed to consider whether the applicant was entitled to compensation under section 51(xxxi) of the Constitution for the loss of his ship.

The court concluded that the automatic forfeiture provision in section 261A of the Migration Act applied broadly to any contravention of the Act, not limited to convictions for offences under the Act. The court found that the Migration Act had been contravened by the applicant, as established in a previous judgment, and this was sufficient to trigger the automatic forfeiture under section 261A. The court rejected the argument that the absence of a conviction for an offence rendered the forfeiture invalid, emphasizing that the forfeiture was a consequence of the incidental exercise of power under the Act, which does not require compensation under section 51(xxxi) of the Constitution.

Consequently, the court dismissed the application and declared that the title to the ship was forfeited to the Commonwealth on and from 1 July 2003. The court also ordered that the applicant pay the costs of the respondent and the costs of the respondent of the cross-claim. This decision reinforced the broad application of the automatic forfeiture provisions in the Migration Act and clarified that the absence of a conviction for an offence does not invalidate the forfeiture.

Orders

Orders of the court

1. The application be dismissed.

2. The Applicant pay the costs of the Respondent.

3. The Applicant pay the costs of the Respondent of the cross-claim.

THE COURT MAKES THE FOLLOWING DECLARATION:

1. That title in the ship with the markings Hao Kiet BL91693TS passed to the Commonwealth on and from 1 July 2003 and all rights and title to that ship were vested in the Commonwealth on and from 1 July 2003.

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

COWDROY J
For 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) 190 CLR 513 per Gummow J at 595; see authorities referred to in Tran No. 1 at [51]-[53]; see also Mutual Pools & Staff Pty. Limited v The Commonwealth of Australia (1994) 179 CLR 155 per Brennan J at 177; The Commonwealth of Australia v WMC Resources Limited (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) 225 CLR 101 at [55]-[61]; Re Director of Public Prosecutions; Ex parte Lawler and Another (1994) 179 CLR 270 at 289.CONCLUSION In consequence of the above findings there is no reason for the Court to revisit the findings it made in its answer to the questions of law considered in Tran No. 1. Since these proceedings have been tantamount to a condemnation procedure the Court is now able to confirm the forfeiture. The Court declares that the title in the ship was forfeited to the Commonwealth on and from 1 July 2003 and all rights and title to that ship were vested in the Commonwealth on and from 1 July 2003. Accordingly, there is no occasion to consider the challenges made by the applicant to the decision by the Commonwealth to destroy the ship, nor to deal with any issue concerning damages claimed by the applicant.

Ratio Decidendi

Legal Principle Established

Established by: COWDROY J

It follows that the operation of the automatic forfeiture provision in s 261A of the Migration Act is not limited only to contraventions of the offence provisions of that Act nor is it dependent upon a conviction for an offence. The Court reiterates its finding at [31] of Tran No 1.Has there been a contravention of the Migration Act? As has been outlined in [18]-[20] of this judgment, ordinarily the Court cannot revisit a previous judgment that it has made. In Tran No. 1 at [31] the Court found that the Migration Act had been contravened by the applicant. However, a reading of that paragraph also records that the Court provided such answer within the context of a submission by the applicant that ‘contravention’ in s 261A should be made to be equated with ‘offence’ in order to enliven an automatic forfeiture. This Court, as stated at [33] of this judgment, finds that the word ‘contravention’ in s 261A means contravention of the Migration Act generally and not only of the offence provisions, and that contravention is not to be interpreted as being confined to conviction for an offence. The applicant has made a different submission at the subsequent hearing. The applicant now submits that, as a consequence of the acquittals or discontinuance of actions against the applicant, Mr Lai and Mr Nguyen, the automatic forfeiture never took place because the facts giving rise to automatic forfeiture under s 261A, namely contravention of the Migration Act, were never present. Such a submission does not depend on contravention being equated to an offence, nor to conviction of an offence. As was stated at [30]-[31] of Tran No. 1, following the decision of French J in Olbers, for the automatic forfeiture to arise the Court ‘must be satisfied to a high degree of probability’ that contraventions of the Migration Act exist. In Tran No. 1 the Court stated that it was so satisfied but only in the narrow context of that which was submitted relating to the meaning of the word contravention. The new submissions justify the Court considering the new submissions separately to the decision already made even though a different interpretation of the same facts may result in a conclusion incompatible to the answers already given in Tran No. 1. The applicant submits that one cannot contravene the Migration Act unless some specific section has been contravened, and every section in the Migration Act which creates an offence and which could have been contravened (as discussed at [27] of Tran No. 1) has, as a defence, s 10.3(1) of the Criminal Code which provides,A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.Pursuant to s 4A of the Migration Act, defences under the Criminal Code apply to all offences under the Migration Act. The applicant points to the fact that the acquittals and discontinuances against the applicant and others as discussed at [14] of this judgment demonstrate that such defence was available to all persons on the ship.Meaning of the word ‘contravention’