Tran v The Commonwealth

[2009] FCA 474

Federal Court of Australia|2009-07-01|Before: Cowdroy J

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Federal Court of Australia

Decision date

2009-07-01

Before

Cowdroy J

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Judgment (47 paragraphs)

[1]

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 Act 1995 (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 NSWLR 75 considered Re Centennial Coal Co Ltd (2006) 226 ALR 341 referred to Re Director of Public Prosecutions; Ex parte Lawler and Another (1994) 179 CLR 270 at 289 referred to Re Venice Nominees Pty Ltd (Receiver and Manager appointed) (In liquidation) (1992) 108 FLR 237 referred to Rutu and Another v Dalla Costa (1997) 139 FLR 265 followed Silk Bros. Proprietary Limited v State Electricity Commission of Victoria (1943) 67 CLR 1 followed The Commonwealth of Australia v WMC Resources Limited (1998) 194 CLR 1 cited Theophanous v The Commonwealth (2006) 225 CLR 101 cited Tran v The Commonwealth (2008) 103 ALD 290 followed Wentworth v Woollahra Municipal Council and Others (1982) 149 CLR 672 referred to Whim Creek Consolidated NL v Colgan (1991) 31 FCR 469 cited Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 discussed VAN TOL TRAN v THE COMMONWEALTH; THE COMMONWEALTH v VAN TOL TRAN

[16]

APPLICANT'S SUBMISSIONS 10 The applicant submits that its challenge to the forfeiture of the ship under s 261A of the Migration Act will succeed if the Court is not satisfied to a high degree of probability that the ship has been involved in a contravention of one or more provisions of the Migration Act which creates a relevant criminal offence and that the Court could not be so satisfied in the circumstances of the current proceedings. 11 In support of its submission the applicant relies upon the text of the heading of Division 13A of Part 2 of the Migration Act entitled 'Automatic forfeiture of things used in certain offences' and submits that the Court must consider whether an offence of the relevant kind has been committed. The applicant also refers to the headings of ss 261A and 261B of the Migration Act entitled respectively 'Forfeiture of things used in certain offences' and 'Seizure of things used in certain offences'. The applicant submits that pursuant to ss 13(1) and 15AB(2)(a) of the Acts Interpretation Act 1901 (Cth), both the heading of the Division as well as the heading of the section can be considered when construing the operation of s 261A. The applicant relies upon the headings and the use of the words 'in contravention of this Act' in s 261A(1)(a) as evincing Parliament's intention that s 261A effects forfeiture in situations arising from more than a mere failure to abide by any rule or norm, and that only contravention of sections of the Migration Act creating offences will be sufficient to result in forfeiture. 12 The applicant relies upon the decision of the Full Court of the Supreme Court of South Australia in Dimella Constructions Pty. Ltd v Stocker and Stocker (1976) 14 SASR 215 in which the Court at 221-222 considered the meaning of the word 'contravention'. Additionally, the applicant submits that the principle of interpretation that Parliament is not taken to deprive persons of property rights without expressing its intention in unmistakable and unambiguous terms applies: see Coco v R (1994) 179 CLR 427 at 437-438. 13 The applicant refers to extrinsic material, being the Second Reading speech of the Border Protection Legislation Amendment Bill 1999 (Cth) ('the Border Protection Bill'), in which the Immigration Minister referred to the forfeiture and disposal of ships and aircraft 'used in people smuggling operations'. The applicant submits that while such speech reveals the intention that vessels used in the commission of criminal offences such as people smuggling may be liable to forfeiture, forfeiture cannot occur where the commission of an offence has not been established. 14 The applicant relies on the result of the charges brought under the Migration Act against those on board the ship. The applicant was charged with a breach of s 232A of the Migration Act and following his conviction in the Supreme Court of Western Australia he appealed. The Crown conceded the appeal and the conviction was quashed. The applicant was subsequently acquitted on a retrial after establishing the defence of sudden or extraordinary emergency as provided by s 10.3(1) of the Criminal Code Act 1995 (Cth) ('the Criminal Code'). Charges under the Migration Act were also brought against other persons on the ship, namely Mr Hoang Thanh Lai and Mr Van Hoa Nguyen. The claim against Mr Lai was dismissed. Mr Nguyen successfully appealed his conviction in the Court of Criminal Appeal of Western Australia, and in consequence his conviction was quashed and a retrial ordered. However, the Crown thereafter filed a notice of discontinuance in respect of the charges. 15 The applicant argues that the defence of sudden and extraordinary emergency applies to the relevant offence provisions of the Migration Act, namely ss 229(1), 232(1), 232A and 233. The applicant argues it must follow that the applicant cannot be found liable for any offence under the Migration Act. The applicant also relies upon the fact that every person on the ship has been granted a protection visa or refugee visa. The applicant accordingly submits that the Court could not be satisfied that any contravention of the Migration Act exists arising from the entry of the ship into Australia 16 For these reasons the applicant submits that there is no relevant contravention of the Migration Act, and that in the absence thereof there has been no forfeiture and accordingly the Court should not confirm the automatic forfeiture. The applicant invites the Court to revisit its findings in Tran No. 1 in light of its further submissions. 17 The applicant claims that there has been a trespass to his property or intentional or negligent interference with his property and that just terms are payable under the Customs Act 1901 (Cth) in respect of the loss of the ship. The claim for damages is itemised in the amount of $307,274.85.

[17]

FINDINGS 18 Before considering the substance of the applicant's claims, it is to be observed that ordinarily the Court cannot revisit its findings. In Wentworth v Woollahra Municipal Council and Others (1982) 149 CLR 672 at 684 Mason ACJ, Wilson and Brennan JJ said:- …the circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard. Similarly, Mason CJ in Autodesk Inc. and Another v Dyason and Others (No. 2) (1993) 176 CLR 300 at 303 said that the power of the Court to reconsider judgments would not be exercised for the purpose of 're-agitating arguments already considered by the Court', nor 'because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put'. 19 In 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) 169 ALR 227 at [20]. 20 The 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) 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. 21 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.

[19]

24 On appeal (see Olbers Co Ltd v Commonwealth and Another (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 143 FCR 449, adopting the reasoning in Whim Creek Consolidated NL v Colgan (1991) 31 FCR 469 at 477-478, determined that such provision enabled the recording of the forfeiture having already occured: see Olbers 143 FCR 449 at [16]-[17]; Tran No. 1 at [43]. 25 Section 261A of the Migration Act adopts the term 'contravention' in its text as enlivening the automatic forfeiture, rather than the word 'offence', as used in s 106A of the FMA. 26 The 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. 27 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. 28 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. 29 Section 261A applies to 'a vessel used or involved in a contravention of this Act...' (emphasis added). Such phrasing indicates the Migration Act at large and thus does not limit s 261A to being activated only by specific sections of that Act. Of course not every contravention of the Migration Act will lead to a forfeiture of a vessel. The relevant contraventions enlivening s 261A are limited by the use of the words '(where the contravention occurs in Australia)' and the text of ss 261A(1)(a)(i) and (ii) which require the bringing in of persons who become unlawful non-citizens on entry or the proposed entry of such persons into Australia. The provision itself provides terms of limitation and there is no occasion to import a further limitation from extrinsic material. 30 For these reasons the applicant's submission that 'contravention' must be read to refer only to offences is rejected. The applicant's submission might have had substance if s 261A only provided 'a vessel used or involved in a contravention' without the additional words 'of this Act.' However, extrinsic material cannot be used to create ambiguity where no ambiguity exists in the text of a section of an Act. Extrinsic material may be used to resolve ambiguity, not to create it. 31 Different considerations apply to the heading of Division 13A of Part 2 of the Migration Act which also contains the word 'offences.' Pursuant to s 13(1) of the Acts Interpretation Act a heading of a Division is part of the Act. In Silk Bros. Proprietary Limited v State Electricity Commission of Victoria (1943) 67 CLR 1, Latham CJ said at 16: The headings in a statute…can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision… "But where the enacting words are clear and unambiguous, the title, or headings, must give way, and the full effect must be given to the enactment" (Bennett v. Minister for Public Works (N.S.W.) (1908) 7 C.L.R. 372 at 383).

[21]

Has there been a contravention of the Migration Act? 33 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. 34 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. 35 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. 36 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.

[29]

Such distinctions no longer exist, but this context led their honours to find (at 658) that self defence, 'as we now know it, was essentially exculpatory in origin'. The difference between the defences considered above demonstrates that, at the common law at least, one might be said to a have contravened the law even if a defence to a charge were available. 44 The 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) [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. 45 There 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) 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]

[34]

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. 52 It was submitted by the applicant that a breach of s 42(1) cannot be a relevant contravention for s 261A. The applicant argued that since s 42 says '…a non-citizen must not travel to Australia without a visa that is in effect', it must follow that s 42 cannot be relevant to s 261A because it deals with events antecedent to arrival in Australia, while s 261A(1)(a) requires the contravention to occur in Australia. Such interpretation of the Migration Act is not reasonable. In order to 'travel to Australia' one must actually arrive in Australia at some point. On the applicant's interpretation of s 42, it could not be breached before one reached Australia because one would not have 'travelled to Australia' yet it could not be breached when one arrived in Australia either. Such construction leads to an absurd result. As found at [24]-[26] of Tran No. 1, the ship entered Australia. From the moment of the ship's entry in Australia (completing the 'travel' for the purpose of s 42) s 42 was contravened, and that contravention must necessarily have occurred in Australia, satisfying s 261A.

[42]

It follows that the legal concept of 'refugee' is a status which is not conferred upon a person merely by the existence of circumstances sufficient to support such a claim. This status must positively be found, and it must be found according to the standards set by the particular state, in this case, Australia. Such concept is consistent with international law only having effect within Australia by virtue of its positive adoption into municipal law. Accordingly, the passengers on the ship were not refugees until such time as they were granted that status from the Australian authorities pursuant to s 36 of the Migration Act (dealing with protection visas), and that was not until well after the facts giving rise to the contravention had occurred. At their time of entry into Australia (and thus the time when the forfeiture occurred) the ship's passengers were no more than unlawful non-citizens by force of s 14 of the Migration Act. Therefore it could not be said that forfeiture of the ship would punish the applicant as a refugee, because at the relevant time he was not a refugee, and nor was anyone else on the ship. After the fact events such as the granting of refugee status cannot affect the validity of the forfeiture. 63 Secondly, the passage relied upon by the applicants at [89] of NAGV states, 'where the words of a statute are susceptible to an interpretation that is consistent with international law, that construction should prevail over one that is not.' The key word is 'susceptible'. Section 36 is clearly intended to operate subsequently to s 261A because s 261A will occur automatically the moment a vessel enters Australia. There is nothing in s 261A that suggests that it should be limited in its operation by s 36 of the Migration Act so that it has no application to people to whom s 36 applies. Whether s 36 applies to an unlawful non-citizen may not be known until years after a vessel's entry in Australia, and s 261A is phrased as to operate instantaneously. Reading s 261A in the way the applicant submits completely ignores the wording of the section. It must therefore be concluded that it is not a provision which can be said to be 'susceptible' in the manner discussed by Kirby J.

Tran v The Commonwealth

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