FEDERAL COURT OF AUSTRALIA Tran v The Commonwealth [2008] FCA 901 CUSTOMS – MIGRATION – Automatic forfeiture of fishing boat engaged in transportation of unauthorised persons to Australia – whether Commonwealth's failure to invoke condemnation procedure affects automatic forfeiture – whether acquisition of property results from automatic forfeiture Acts Interpretation Act 1901 (Cth) s 15B 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 art 31(1) Criminal Code Act 1995 (Cth) s 10.3(1) Customs Act 1901 (Cth) ss 4AB, 185B, 203, 205, 229 Customs Consolidation Act 1876 (UK) ss 202, 226 Fisheries Management Act 1991 (Cth) ss 100(1), 100(2), 106(1)(a), 106A, 106C, 106E Migration Act 1958 (Cth) ss 3B, 5, 42(1), 229(1), 232(1), 232A, 233, 261A, 261B, 261D, 261E, 261F, 261G, 261H, 261I Federal Court Rules (Cth) O 29 r 2 Attorney-General of New Zealand v Ortiz and Others [1984] AC 1 referred to Banwell v Erceg (1984) 1 NSWLR 90 referred to Bert Needham Automotive Co. Pty. Ltd. v Commissioner of Taxation of the Commonwealth of Australia (1976) 26 FLR 108 referred to Burton v Honan (1952) 86 CLR 169 referred to Cheatley v The Queen and Others (1972) 127 CLR 291 referred to De Keyser v British Railway Traffic and Electric Company, Limited [1936] 1 KB 224 referred to Dimella Constructions Pty. Ltd. v Stocker and Stocker (1976) 14 SASR 215 cited Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 referred to Mutual Pools & Staff Pty. Limited v The Commonwealth of Australia (1994) 179 CLR 155 referred to Nguyen v R [2005] WASCA 22 referred to Olbers Co Ltd v Commonwealth and Another (2004) 143 FCR 449 followed Olbers Co Ltd v The Commonwealth of Australia and Another (2004) 136 FCR 67 followed Powers v Maher (1959) 103 CLR 478 referred to Re Director of Public Prosecutions; Ex parte Lawler and Another (1994) 179 CLR 270 followed Re Venice Nominees Pty Ltd (Receiver and Manager appointed) (In liquidation) (1992) 108 FLR 237 referred to The Annandale (1877) 2 PD 218 cited The Commonwealth v Hazeldell Limited (1918) 25 CLR 552 referred to Whim Creek Consolidated NL v Colgan and Another (1991) 31 FCR 469 referred to Willey v Synan (1935) 54 CLR 175 cited VAN TOL TRAN v THE COMMONWEALTH NSD 494 OF 2007 COWDROY J 16 JUNE 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 494 OF 2007 BETWEEN: VAN TOL TRAN Applicant AND: THE COMMONWEALTH Respondent JUDGE: COWDROY J DATE OF ORDER: 16 JUne 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The proceedings be stood over for directions on a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 494 OF 2007 BETWEEN: VAN TOL TRAN Applicant AND: THE COMMONWEALTH Respondent JUDGE: COWDROY J DATE: 16 june 2008 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant ('Tran') seeks compensation from the respondent ('the Commonwealth') arising out of the destruction by the Commonwealth of a fishing vessel ('the ship'). Prior to its destruction the ship had been owned by Tran and was used to transport non-Australian citizens from Vietnam to Australia. The claim by Tran as set out in an amended application filed on 7 December 2007 is made pursuant to s 4AB of the Customs Act 1901 (Cth) ('the Customs Act') or alternatively if the Migration Act 1958 (Cth) ('the Migration Act') applies (which is denied by Tran) pursuant to s 3B of the Migration Act. 2 Section 4AB of the Customs Act relevantly provides: Compensation for acquisition of property (1) If: (a) this Act would result in an acquisition of property; and (b) any provision of this Act would not be valid, apart from this section, because a particular person has not been compensated; the Commonwealth must pay that person: (c) a reasonable amount of compensation agreed on between the person and the Commonwealth; or (d) failing agreement--a reasonable amount of compensation determined by a court of competent jurisdiction. (2) … (3) In this section: "acquisition of property"has the same meaning as in paragraph 51(xxxi) of the Constitution. 3 The relevant provisions of s 3B of the Migration Act are identical to the equivalent provisions of s 4AB of the Customs Act. 4 The parties have agreed that pursuant to O 29 r 2 of the Federal Court Rules (Cth) ('the Rules') the questions hereunder are to be determined separately from, and before, any other issues in the proceeding. AGREED FACTS 5 The parties have formulated a statement of agreed facts for the purpose of determination of the agreed questions as follows: 1. At all material times the Applicant was a Vietnamese citizen. 2. At all material times the Applicant was the owner of the ship with the markings Hao Kiet BL91693TS ("the Ship"). 3. The Ship was at all material times a Vietnamese registered vessel and has never been registered for any purpose under a law of the Commonwealth or any State or Territory. 4. On or about 3 June 2003 53 (then) Vietnamese citizens including the Applicant ("Relevant Persons"), and one other person holding Australian citizenship ("Van Hoa Nguyen"), left Vietnam aboard the Ship bound for Australia. 5. The Applicant was the master of the Ship on its journey to Australia. 6. On or about 1 July 2003 the Ship arrived in Australia's territorial sea. 7. On or about 1 July 2003 the Ship was stopped by officers of the Australian Customs Service at a location that was within the "migration zone" as defined in the Migration Act. 8. On or about 1 July 2003 officers of the Royal Australian Navy boarded the Ship and took the Relevant Persons off the Ship onto the HMAS Canberra where they were placed into immigration detention. 9. To the Applicant's knowledge, at all relevant times up to and including 2 July 2003 none of the Relevant Persons held a valid Australian visa. 10. All of the Relevant Persons and Van Hoa Nguyen travelled on the Ship from Vietnam to the point at which it was stopped and boarded. 11. On or about 2 July 2003 Commonwealth officers boarded the Ship and took control of the Ship where it was stopped. The team that took control of the Ship may have included an officer of the Australian Federal Police but otherwise comprised officers of the Australian Customs Service only. The officers which comprised the said team were not "authorised officers" within the meaning in sections 5 and 261B of the Migration Act nor were they officers who acted under an order by such an "authorised officer" within the meaning in the said sections. 12. At no point did the Applicant receive a Notice of Seizure in the form identified in section 261D of the Migration Act. 13. On or about 4 July 2003 the Chief Executive Officer of the Australian Customs Service gave a direction to the Commanding Officer of the Australian Customs Vessel Roebuck Bay to destroy the Ship ("the direction"). The direction relevantly stated: I have reason 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. 14. On or about 8 July 2003 the Ship was destroyed by officers of the Australian Federal Police and/or Australian Customs Service. 15. On or about 10 July 2003 the Applicant was issued with a notice from the Australian Customs Service which relevantly states: I must inform you that your ship with markings HAO KEIT BL91693TS was destroyed under section 185B(4) of the Customs Act 1901 on Tuesday 8 July 2003. The reason for destruction eventuated following consideration that led to the belief that the ship was in such poor condition that its maintenance by the Commonwealth would have involved expenses that would be greater than its value. You are also advised that compensation may be payable under Section 4AB of the Customs Act 1901. That provision provides for the payment of a reasonable amount of compensation in circumstances where property is acquired by the Commonwealth in accordance with the Customs Act 1901. 16. The Secretary to the Department ("Secretary") with the meaning of sections 5 and 261E of the Migration Act had no involvement in the destruction of the Ship. Neither has the Secretary given the Applicant any written notice (or any letter) in the form identified by section 261G of the Migration Act. 17. In about July 2003, whilst held in immigration detention, each of the Relevant Persons applied for protection visas under the Migration Act. 18. On or about 28 October 2003 the Applicant and two other persons who had travelled to Australia aboard the Ship (Van Hoa Nguyen ("Mr Nguyen") and Hoang Thanh Lai ("Mr Lai")) were issued with indictments by the Commonwealth Director of Public Prosecutions for contraventions of section 232A of the Migration Act. The Applicant was charged with: Facilitating the bringing to Australia of a group of 5 or more people to whom subsection 42(1) of the Migration Act 1958 applied, and did so reckless as to whether the people had a lawful right to come to Australia, contrary to section 232A of the said Act. 19. On 6 November 2003 the Applicant wrote to the Australian Customs Service seeking compensation, pursuant to section 4AB of the Customs Act, for the seizure and destruction of his Ship. Since that date and, prior to the commencement of the present proceeding, the parties have exchanged various further correspondences in relation to the Applicant's claim under section 4AB of the Customs Act. 20. On or about 17 March 2004 the Applicant and Mr Nguyen were convicted of contravening section 232A of the Migration Act in the District Court of Western Australia. Mr Lai's matter was dismissed. 21. The Applicant and Mr Nguyen appealed against their convictions on the basis of a defence of sudden and extra ordinary emergency pursuant to section 10.3(1) of the Criminal Code Act 1995 (Cth) ("Criminal Code"). 22. On 16 December 2004 the Supreme Court of Western Australia Court of Criminal Appeal allowed the appeal of Mr Nguyen (Nguyen v R [2005] WASCA 22). 23. On or about 22 March 2005 the Crown conceded the Applicant's appeal on the basis of the decision in Nguyen v R and the Applicant's conviction was quashed. 24. By 2005, all of the Relevant Persons were granted Protection (Class XA) visas except for two who were granted Refugee and Humanitarian (Class XB) visas. 25. 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) 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 & 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) 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) 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. 26 It is not disputed that the ship entered the 'migration zone' after it entered waters comprising part of 'Australia'. 27 On the basis of the agreed facts, each of the Relevant Persons entered Australia on the ship when the ship entered the coastal area of Australia. In consequence there was a prima facie contravention of s 229(1) of the Migration Act which renders, inter alia, the master and owner of a vessel on which a non-citizen is brought to Australia guilty of an offence unless the non-citizen held an appropriate visa. Further, s 232(1) relevantly renders the master and owner of the vessel guilty of an offence if a non-citizen to whom s 42(1) of the Migration Act applies enters Australia without holding the requisite visa; s 232A makes it an offence for a person to organise or facilitate the bringing or coming to Australia of a group of five or more persons to whom s 42(1) of the Migration Act applies; and s 233 of the Migration Act makes it an offence for a person to bring into Australia a non-citizen in circumstances where the conduct involves the concealment of that person. 28 In Re Venice Nominees Pty Ltd (Receiver and Manager appointed) (In liquidation) (1992) 108 FLR 237 Miles CJ said at 242: A contravention in the ordinary sense of that word involves an infringement or violation of a rule or standard or norm. A contravention of an Act does not necessarily involve the commission of an offence unless the Act or the law otherwise makes it so: cp Dimella Constructions Pty Ltd v Stocker (1976) 14 SASR 215. 29 In Banwell v Erceg (1984) 1 NSWLR 90, Yeldham J at 94 said: … there is no reason to read down or qualify the words "in respect of any contravention" so that they relate only to proceedings for an offence in respect of such contravention. 30 In Olbers, French J considered s 106A of the FMA which made provision for the forfeiture of, inter alia, a boat used in an offence against various sections of that Act. French J rejected the submission that a conviction for the alleged offence upon which forfeiture arose was necessary before forfeiture under that section took effect: see [79]. His Honour concluded that satisfaction 'to a high degree of probability' that the offences had been committed was sufficient for s 106A of the FMA to take effect and it was not necessary for him to find that the offence had in fact been committed: see Olbers at [65]. 31 Applying the test of French J, if the Court is satisfied 'to a high degree of probability' that contraventions exist, such is sufficient to engage s 261A(1) of the Migration Act. It is not necessary that such 'contraventions' should constitute 'offences' for s 261A(1) to become operative. It follows that the entry into the migration zone of all Relevant Persons on the ship constituted contraventions of the Act. HAS THERE BEEN FORFEITURE OF THE SHIP? 32 Section 261A(1) of the Migration Act refers to things that are 'forfeited' to the Commonwealth. An analysis of the authorities referred to hereunder reveals that, depending upon the terms of the legislation, forfeiture may effect an immediate divestment of property or a divestment only after seizure has occurred. 33 In Attorney-General of New Zealand v Ortiz and Others [1984] AC 1, Lord Denning said at 15A-B: So far as England is concerned, whenever there is legislation providing that goods are to be forfeited for one cause or another, the law has always said that the forfeiture does not take effect until the goods are seized and that the title then relates back to the cause of forfeiture. If the owner or anyone else disputes the forfeiture, there are proceedings for condemnation. After condemnation, the title is perfected and can no longer be disputed by anyone. 34 Lord Ackner observed in the same case at 25C: An Act may provide for automatic forfeiture, or it may provide merely that the goods shall be liable to forfeiture if some further step is taken to that end. 35 In Powers v Maher (1959) 103 CLR 478 Kitto J, in referring to goods seized pursuant to s 229 of the Customs Act, said at 483: As to this, it may be observed that "forfeited" is an ambiguous word: it may mean either taken from a man or liable to be taken from him. 36 In Whim Creek Consolidated NL v Colgan and Another (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. 37 In Bert Needham Automotive Co. Pty. Ltd. v Commissioner of Taxation of the Commonwealth of Australia (1976) 26 FLR 108 (applied by the Full Court in Olbers Co Ltd v Commonwealth and Another (2004) 143 FCR 449) Rath J considered provisions of the Customs Act concerning the time at which the forfeiture occurred (see 114-115) and found at 114 that title passed to the Crown 'immediately upon a cause of forfeiture arising, without either seizure or condemnation. Such a strict construction is consistent with decisions on customs legislation both in England and Australia (The Annandale (6); Burton v. Honan (7))'. His Honour continued: The terms "forfeiture", "seizure" and "condemnation" are not defined in the Act. They are well-known terms in customs legislation. The term "condemnation" refers not to a proceeding which has the effect of vesting title in the Crown, but to a proceeding which determines that upon some cause previously arising title had vested in the crown (Burton v. Honan (8); Willey v. Synan (9)). 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. EFFECT OF CONDEMNATION PROCESS 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. 44 It should be observed that if irrevocable forfeiture occurred by virtue of the operation of s 261A alone, the latter provisions of the Migration Act would have no operation. 45 It follows that since there has been no confirmation, the forfeiture 'remains contestable' until the condemnation process has been completed. 46 The concept of forfeiture followed by condemnation is not novel to the Migration Act. In De Keyser v British Railway Traffic and Electric Company, Limited [1936] 1 KB 224 Lord Hewart CJ in referring to the term 'forfeited' in s 202 of the Customs Consolidation Act 1876 (UK) said at 230: There may be, where the owner of the property or other person authorized by him gives notice of a claim, an inchoate forfeiture which is to be completed by the combined forfeiture and condemnation contemplated by s. 226. 47 In Burton v Honan (1952) 86 CLR 169 at 176 Dixon CJ said of s 229 of the Customs Act: On authority it is clear that under the provisions of s. 229, provided the facts exist which justify a forfeiture, the title to the goods vests in the Crown when the forfeiture takes place in consequence of the occurrence of the facts. No further proceedings are requisite to make title, although of course further proceedings may be necessary either to vindicate the title of the Crown or to exclude the claim of some person asserting a right to the goods. 48 In response to the submissions of Tran, it is not a requirement of the Migration Act that notice of forfeiture be given to Tran. Section 261A has automatic effect upon the occurrence of the events prescribed in such section. It is not relevant to the automatic forfeiture that each of the Relevant Persons was subsequently granted a visa to remain in Australia, nor is it relevant that Tran was not convicted of an offence under s 232A of the Migration Act resulting from him establishing a defence under s 10.3(1) of the Criminal Code of a sudden and extraordinary emergency. Quite apart from the fact that an 'offence' is not required to enliven s 261A, the basis of the acquittal was an exculpatory provision, and contraventions exist under ss 42(1), 232A and 233 of the Migration Act by virtue of the ship's entry into the Migration Zone. The contraventions arise from the action of either Tran or others on board the ship upon such entry, and it is the contraventions which result in forfeiture. 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]). IS COMPENSATION PAYABLE? 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. 51 The authority relied upon by the Commonwealth, namely Lawler, concerned the forfeiture of a foreign fishing boat used for unlawful commercial fishing in the Australian Fishing Zone. Section 100(1) of the FMArequires a licence for a person to use a foreign boat for commercial fishing in the Australian Fishing Zone. Section 106(1)(a) of the FMA empowers the Court to order forfeiture of a boat used in the commission of the offence. The High Court in Lawler concluded that such forfeiture did not amount to an 'acquisition of property' for the purpose of s 51(xxxi) of the Constitution. Deane and Gaudron JJ observed (at 284) that there were two reasons why some laws 'stand outside s 51(xxxi)'. Those reasons were firstly that the guarantee of 'just terms' does not apply to laws 'clearly encompassed in another power' and secondly that there was no guarantee of 'just terms' 'outside the area in which s. 51(xxxi) operates as a grant of power'. Their Honours concluded at 285: That phrase [acquisition of property on just terms] must be read in its entirety and, when so read, it indicates that s. 51(xxxi) applies only to acquisitions of a kind that permit of just terms. It is not concerned with law in connexion with which "just terms" is an inconsistent or incongruous notion. Thus, it is not concerned with a law imposing a fine or penalty, including by way of forfeiture, or a law effecting or authorizing seizure of the property of enemy aliens or the condemnation of prize. Laws of that kind do not involve acquisitions that permit of just terms and, thus, they are not laws with respect to "acquisition of property", as that expression is used in s. 51(xxxi). 52 In Lawler McHugh J said at 292-293: The complete answer to the contention of the prosecutors is that an order made under s. 106 does not effect an acquisition of property for the purposes of s. 51(xxxi). An order made under s. 106 is a drastic but incidental measure whose purpose is to facilitate compliance with those provisions of the Act which regulate commercial fishing in Australian waters. When the forfeiture of property is a reasonably proportional consequence of a breach of a law passed under a power conferred by s. 51 of the Constitution, no acquisition of property for the purpose of s. 51(xxxi) takes place. The notion of paying fair compensation to the owner of property which is validly forfeited to the Crown for a breach of the law is simply absurd. In the case of the forfeiture of property to the Commonwealth for breach of a law of the Parliament, the question is whether the forfeiture is reasonably incidental to the exercise of a power other than s. 51(xxxi). If it is not, the forfeiture is invalid. If it is, s. 51(xxxi) has no operation. 53 The above decision has been applied subsequently: see Olbers. See also Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 306-307 where the majority said: Not every Commonwealth law with respect to the acquisition of property falls within s. 51(xxxi) of the Constitution. It may be outside that paragraph because, although it effects an acquisition of property, it is a law of a kind that is clearly within some other head of legislative power. That is the case with a law imposing taxation or a law providing for the sequestration of the estate of a bankrupt. Or it may be outside s. 51(xxxi) because it effects an acquisition of a kind that does not permit of just terms, as in the case of a law imposing a penalty by way of forfeiture. And, it may fall outside s. 51(xxxi) because it cannot fairly be characterized as a law for the acquisition of property for a purpose in respect of which the Parliament has power to make laws. That will generally be the case with laws directed to resolving competing claims or providing for "the creation, modification, extinguishment or transfer of rights and liabilities as an incident of, or a means for enforcing, some general regulation of the conduct, rights and obligations of citizens in relationships or areas which need to be regulated in the common interest". 54 Consistent with the finding in Lawler and in Olbers, there has been no 'acquisition of property' within s 51(xxxi) of the Constitution in the present proceedings because of the forfeiture of the ship. It follows that unless the forfeiture is set aside Tran is not eligible for compensation under s 4AB of the Customs Act or under s 3B of the Migration Act. 55 Although the Commonwealth wrote to Tran on 10 July 2003 informing him that the ship was destroyed pursuant to s 185B(4) of the Customs Act, at that time Tran had no rights in the ship in consequence of its automatic forfeiture. Such letter cannot operate to provide any rights in the ship if a deprivation of such rights had already occurred. If the forfeiture is successfully challenged, a divesting of rights in the ship from the Commonwealth to Tran may result. In this event, because the ship had been destroyed, any claim by Tran could only be made for compensation arising out of the loss of the ship. ANSWERS TO QUESTIONS 56 The questions asked are to be answered as follows: 1. Section 261A has effected an automatic forfeiture of the ship when it entered the migration zone. That forfeiture remains contestable because the ship has never been condemned as forfeited, for all legal purposes, in the Commonwealth as legal owner of the property. 2. The forfeiture of the ship did not constitute an acquisition of property within the meaning of s 51(xxxi) of the Constitution, but if a successful challenge is made to the purported forfeiture, circumstances could arise in which an acquisition of property within s 51(xxxi) may have occurred. 3. 4. The Court declines to answer these questions because it is unnecessary to do so in view of the answers to questions 1 and 2. 5. 6. Whilst the forfeiture remains, the Applicant is not entitled to compensation under either the Migration Act or the Customs Act. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 16 June 2008 Counsel for the Applicant: Ms Jowett Solicitor for the Applicant: Mr Varess Counsel for the Respondent: Mr Kennett Solicitor for the Respondent: Ms Deane Date of Hearing: 6 February 2008 Date of Judgment: 16 June 2008