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 Act 1901 (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 1995 (Cth) ss 4.1(1)(a), 10.3(1) of the Schedule Customs Act 1901 (Cth) subdiv B of Div 1 of Pt XII, ss 4AB, 184A(1), 184A(10) and (11), 185, 185B, 185B(4) Federal Court of Australia Act 1976 (Cth) s 27 Federal Court Rules O 29 r 2 Fisheries Management Act 1991 (Cth) s 106A International Convention for the Safety of Life at Sea 1974  Art IV(b) Judiciary Act 1903 (Cth) s 78B Migration Act 1958 (Cth) Div 13A, ss 3B, 5, 42, 229, 232, 232A, 233, 261A, 261B, 261D, 261E, 261G Navigation Act 1912 (Cth) s 265 Protocol relating to the Status of Refugees 1967 Trade Practices Act 1974 (Cth) ss 52, 80, 82, 87
Cases cited:		Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 applied Australian Fisheries Management Authority v Su (2009) 176 FCR 95 referred to Australian Prudential Regulation Authority v Holloway (2000) 104 FCR 521 applied Australian Securities and Investment Commission v DB Management Pty Limited (2000) 199 CLR 321 referred to Banwell v Erceg [1984] 1 NSWLR 90 applied Bropho v Western Australia (1990) 171 CLR 1 applied Burton v Honan (1952) 86 CLR 169 considered Butler v Egg & Pulp Marketing Board (1966) 114 CLR 185 considered Calero-Toledo v Pearson Yacht Leasing Co 416 US 663 (1974) considered Carr v Western Australia (2007) 232 CLR 138 referred to Cheatley v The Queen (1972) 127 CLR 291 considered CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 applied City of Swan v Lehman Brothers Australia Ltd (2009) 179 FCR 243 referred to Coco v The Queen (1994) 179 CLR 427 applied Commonwealth v Tasmania (1983) 158 CLR 1 applied Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 referred to Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594 applied CTM v The Queen (2008) 236 CLR 440 applied Dimella Constructions Pty Ltd v Stocker & Stocker (1976) 14 SASR 215 applied Fencott v Muller (1982) 152 CLR 570 considered Fingleton v The Queen (2005) 227 CLR 166 referred to Flack v National Crime Authority (1997) 80 FCR 137 referred to Fox v Percy (2003) 214 CLR 118 considered George v Rockett (1990) 170 CLR 104 considered Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 considered Helton v Allen (1940) 63 CLR 691 referred to International Finance Trust Company Limited v New South Wales Crime Commission (2009) 261 ALR 220 applied Jeffrey v DPP (Cth) (1995) 121 FLR 16 applied Keyworth v Hill (1820) 3 B & Ald 685 referred to Kuwait Airways Corp v Iraq Airways Co (Nos 4 and 5) [2002] 2 AC 883 referred to Laemthong International Lines Co Ltd v BPS Shipping Ltd (1997) 190 CLR 181 referred to Lehman Bros Holdings Inc v City of Swan (2010) 265 ALR 1 referred to Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 referred to M’Leod v M’Ghie (1841) 2 Man & G 326 referred to Maxwell v The Queen (1996) 184 CLR 501 applied Mulholland v Australian Electoral Commission (2003) 128 FCR 523 applied Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 applied Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 considered Nguyen v R [2005] WASCA 22 referred to Olbers Co Ltd v Commonwealth of Australia (2004) 143 FCR 449 considered Olbers Co Ltd v  Commonwealth of Australia (2004) 136 FCR 67 applied Ostrowski v Palmer (2004) 218 CLR 493 referred to Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 considered Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 referred to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied R v Oblack (2005) 65 NSWLR 75 referred to Re Centennial Coal Co Ltd (2006) 226 ALR 341 referred to Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 considered Re Venice Nominees Pty Ltd (Receiver and Manager Appointed) (in liquidation) (1992) 108 FLR 237 referred to Reg v Credit Tribunal;  Ex parte General Motors Acceptance Corporation (1997) 137 CLR 545 referred to Rejfek v McElroy (1964) 112 CLR 517 considered Rutu v Dalla Costa (1997) 139 FLR 265 distinguished Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 considered Smith v ANL Ltd (2000) 204 CLR 493 considered Studman v Commonwealth Director of Public Prosecutions (2007) 177 A Crim R 34 applied The Queen v Commonwealth Court of Conciliation and Arbitration;  Ex parte Amalgamated Engineering Union, Australian Section (1953) 89 CLR 636 applied Theophanous v Commonwealth (2006) 225 CLR 101 applied Thomas v The King (1937) 59 CLR 279 referred to Tran v The Commonwealth [2008] FCA 901 reversed Tran v The Commonwealth [2009] FCA 474 reversed REFERENCES   Balkin & Davis:  Law of Torts (4th ed)   JG Fleming : The Law of Torts (9th 3d) Pollock & Wright:  Possession in the Common Law (Clarendon Press Oxford 1888) Pt III per RS Wright
Date of hearing:	12, 13 November 2009
Date of last submissions:	1 December 2009
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	238
Counsel for the Appellant:	Mr S Prince and Mr G Del Viller
Solicitor for the Appellant:	Fragomen
Counsel for the Respondent:	Mr G Kennett and Mr J Clark
Solicitor for the Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 537 of 2009

 

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	VAN TOL TRAN Appellant
AND:	THE COMMONWEALTH Respondent

 

JUDGES:	LANDER, RARES AND BESANKO JJ
DATE OF ORDER:	6 JULY 2010
WHERE MADE:	SYDNEY

 

THE COURT ORDERS THAT:

 

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:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 537 of 2009

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	VAN TOL TRAN Appellant
AND:	THE COMMONWEALTH Respondent

 

JUDGES:	LANDER, RARES AND BESANKO JJ
DATE:	6 JULY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

LANDER J:

1                     I have had the advantage of reading the draft reasons for judgment of the two other members of the Court and I adopt the statement of facts contained in the separate judgments.  As those reasons show this was a claim by the appellant for damages and compensation arising out of the destruction by the respondent of the appellant’s fishing vessel with the markings “Hao Kiet BL91693TS” (the vessel).

2                     The issues which were before the Court below are identified in their Honours’ reasons and may be summarised:

1.                  Whether a contravention of s 42 gives rise to the operation of the forfeiture provisions in s 261A of the Migration Act 1957 (Cth) (the Migration Act);

2.                  If not, whether the respondent was entitled to destroy the vessel under the powers given in s 185B of the Customs Act 1901 (Cth) (the Customs Act); and

3.                  If neither section sanctioned the respondent’s conduct, whether the appellant was entitled to damages and the extent of those damages.

3                     In the end result, despite two separate hearings, only the first question was answered in the Court below.

4                     As the reasons of the members of the Court show, the persons who were responsible for the destruction of the appellant’s vessel did not purport to rely in any way on any of the provisions of the Migration Act.  The respondent never utilised the statutory regime upon which it now relies before it destroyed the vessel.  In particular, it did not give the mandatory notice of seizure under s 261D to the appellant.  The respondent claimed at the time to be entitled to destroy the vessel under s 185B(4) of the Customs Act.  The respondent’s claim that the Migration Act authorised the destruction was made after the event and because the respondent thought that it was better able to defend itself by relying on the provisions of the Migration Act rather than the Customs Act.  Of course, if the statutory power existed and the Commonwealth was entitled to rely upon the existence of the power without claiming to act upon it, then the Commonwealth was entitled to raise the defence which it did.

5                     Section 261A of the Migration Act provides:

(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;

(b)        a vehicle or equipment:

(i)         on a vessel described in paragraph (a) at the time of the contravention mentioned in that paragraph; or

(ii)        used or involved in the contravention referred to in that paragraph.

(2)        Despite subsection (1), a vessel that:

(a)        was used or involved in a contravention of this Act of a kind referred to in that subsection; and

(b)        at the time of the contravention, was being used in the course of a regular public transport operation;

is not forfeited to the Commonwealth if both the master and the owner of the vessel:

(c)        did not know; and

(d)        could not reasonably be expected to have known;

that it was used or involved in the contravention.

6                     The Commonwealth argued before the primary judge that s 261A was engaged in any circumstances where a vessel was used or involved in any contravention of the Act of the kind mentioned in s 261A(1)(a) and, in particular, where there was a breach of s 42(1) or ss 229(1), 232(1), 232A and 233(1) of the Migration Act.  A breach or contravention of s 42 does not give rise to a criminal offence.  Each of the other sections provides that a breach of these sections will give rise to a criminal offence.

7                     I agree with the other members of the Court and with the primary judge that in the circumstances of this case, where the appellant was acquitted of the charge under s 232A of the Migration Act of facilitating the bringing into Australia of a group of five or more people to whom subsection 42(1) of the Migration Act applied, that meant that the sections which imposed criminal sanctions did not authorise a forfeiture under s 261A.  The appellant established a defence of sudden or extraordinary emergency which was available to him under s 10.3(1) of the Criminal Code Schedule in the Criminal Code Act 1995 (Cth).  The Criminal Code (except Part 25) applies by force of s 4A of the Migration Act.  His acquittal meant that the vessel had not been used in contravention of the Act in respect of those sections.  I therefore agree that that part of the notice of contention should be dismissed.

8                     Whether a contravention of s 42(1) engages s 261A requires a consideration of the true construction of s 261A.

9                     Both the heading to Division 13A “Automatic forfeiture of things used in certain offences” and the heading to s 261A “Forfeiture of things used in certain offences” suggest that a contravention in s 261A means a contravention of an offence provision.  The heading to the Division is deemed to be part of the Act: s 13(1) of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act).  The heading to the section is not to be taken to be part of the Act (s 13(3) of the Acts Interpretation Act) but is relevant extrinsic material.

10                  The explanatory material which was published at the time Division 13A was introduced and the Minister’s second reaching speech also support the construction of s 261A which would limit forfeiture to contraventions which give rise to offences.

11                  The section should be construed strictly because by declaring things forfeited to the Commonwealth the section is imposing a penalty: Jeffrey v Director of Public Prosecutions (Cth) (1995) 121 FLR 16 per Cole JA (Handley JA agreeing).

12                  I agree with the other members of the Court that a contravention of s 42(1) does not engage the provisions of s 261A.

13                  In those circumstances, it is not necessary to deal with the machinery provisions in Subdivision A of Division 13A (ss 261D and 261G) with which the respondent did not comply, because at the time the vessel was seized and destroyed the respondent did not purport to act or rely upon any of the provisions of the Migration Act.

14                  I would reject the alternative ground relied upon by the appellant that there was no contravention of s 42(1) in Australia.  Section 261A requires a contravention to occur in Australia.  I am of the opinion that a contravention of s 42(1) would occur whenever a non-citizen enters Australia including Australia’s territorial seas and waters without a visa that is in effect.  I would reserve for further consideration having regard to the definition of “migration zone” in s 5 of the Migration Act that if a non-citizen enters the migration zone without a visa the non-citizen would thereby contravene s 42.  Because s 42(1) speaks of a contravention in Australia, unless the definition of “migration zone” is synonymous with “Australia” it would not be necessarily correct to say that a non-citizen who enters the migration zone is thereby entering Australia.

15                  It follows that I agree that the respondent cannot rely upon the forfeiture provisions in the Migration Act as a defence to the appellant’s claim.  I therefore respectfully disagree with the primary judge’s conclusion in that regard.

16                  The respondent argued that if it was not entitled to rely upon the Migration Act it was entitled to rely upon the provisions of the Customs Act by way of defence to the appellant’s claim.

17                  The relevant section is s 185B of the Customs Act and subsections (1) and (4) which provide:

(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, section 72.13 or Division 307 of the Criminal Code or a prescribed Act.

(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.

18                  I agree with the reasons of Besanko J that the destruction of a vessel pursuant to the power given the CEO in s 185B(4) of the Customs Act does not amount to an acquisition under s 51(xxxi) of the Constitution and thereby entitle the owner to the protection of that placitum insofar as it requires any acquisition to be on just terms.

19                  It follows that the appellant cannot rely upon the provisions of s 4AB of the Customs Act because the appellant cannot make out that the Act or a particular provision of the Act results in an acquisition of property: s 4AB(1) of the Customs Act.

20                  The other members of the Court are not agreed as to whether this Court should determine whether the respondent’s conduct was lawful by reason of the provisions of the Customs Act or whether the matter should be remitted to the primary judge for that purpose.  Justice Rares favours the first course and Besanko J the second.  Indeed, Rares J has concluded that the CEO did not have any reasonable ground to form the belief required by s 185B(4) and that in fact he did not form such a belief.

21                  In my opinion, the preferable course is to remit the proceeding to the primary judge to make the necessary findings and holdings in relation to this aspect of the proceeding.  I think that to be the better course because this Court has not enjoyed the benefit of hearing the witness called by the respondent.  Moreover, if this Court were to address this issue for the first time there would be no opportunity of any Court reviewing the Court’s findings of fact except the High Court which would be both unsatisfactory from that Court’s point of view and from the parties’ point of view.

22                  In any event, if Rares J’s view on this issue is correct the matter has to go back to the primary judge for a consideration of the question of damages.

23                  For all those reasons I prefer the course proposed by Besanko J.  I would suggest the following orders:

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.

 

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:         05 July 2010

 

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 537 of 2009

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	VAN TOL TRAN Appellant
AND:	THE COMMONWEALTH Respondent

 

JUDGES:	LANDER, RARES AND BESANKO JJ
DATE:	6 July 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

RARES J

24                  On 1 July 2003 Van Tol Tran, the appellant, was the owner and master of a wooden ship registered in Vietnam.  He had sailed the ship into Australia’s territorial sea with 53 other persons all but one of whom were of Vietnamese origin.  The only exception was, Van Hoa Nguyen, an Australian citizen.  All of the Vietnamese were fleeing from feared persecution in Vietnam.

25                  A number of naval officers and crew from HMAS Canberra boarded the ship in the afternoon of 1 July 2003.  None of the 53 Vietnamese citizens on the vessel had a valid Australian visa, a fact of which the appellant was aware at all times.  On 2 July 2003, other officers of the Commonwealth boarded the ship and took control of her where she was stopped.  These may have included an officer of the Australian Federal Police, but included officers of the Australian Customs Service (Customs).  None of the officers or other persons who boarded and took control of the ship was an authorised officer within the meaning of ss 5 and 261B of the Migration Act 1958 (Cth), nor were they acting under any other authority within the meaning of that Act.

26                  On 2 or 3 July 2003 officers of the Royal Australian Navy reported to, among others, officers of Customs that the ship “… is cleanand in good condition and is assessed as seaworthy”.  Lieutenant Commander Brown of HMAS Canberra,prepared a report on 4 July 2003 that stated that the vessel was wooden, considered to be in good repair and well constructed.  He observed that the engine space was reported to be in good order with the diesel engine in good repair. 

27                  On 4 July 2003, the Chief Executive Officer of Customs (CEO)signed a direction under s 185B(4) of the Customs Act 1901 (Cth) directing one of his officers to destroy or move and destroy the ship, stating in the direction:

“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.”

28                  However, at the time, the CEO knew that first, the ship could not be destroyed because it was required for forensic purposes by officers of the Australian Federal Police who were investigating a possibility that the vessel had been used for people smuggling in contravention of one or more of the provisions in Div 12 of Pt 2 of the Migration Act.  Secondly, he knew that the ship was also being investigated to see whether there were any infestations which might require it to be destroyed.  Nor did the CEO have any belief as to the value of the ship.

29                  In late October 2003 the appellant and Mr Nguyen were charged on indictment with contraventions of s 232A of the Migration Act.  The appellant was charged with an offence of facilitating the bringing to Australia a group of five or more people to whom s 42(1) of that Act applied and did so reckless as to whether the people had a lawful right to come to Australia contrary to s 232A.  Ultimately, the appellant was acquitted by a jury, on a retrial.  He had established a defence pursuant to s 10.3(1) of the Criminal Code Act 1995 (Cth) in that he had brought the other 52 persons to Australia on the vessel in circumstances of a sudden or extraordinary emergency (being their fear of persecution).  This had followed from the decision of the Court of Criminal Appeal of the Supreme Court of Western Australia quashing Mr Nguyen’s conviction and ordering a retrial:  Nguyen v The Queen [2005] WASCA 22.  By 2005 all of the 53 Vietnamese who had come to Australia on the ship had been granted protection, refugee or humanitarian visas.

Issues on Appeal

30                  There are two critical issues raised in the appeal.  Each involved the construction of sections in the Migration Act and the Customs Act that had been added to those enactments by the Border Protection Legislation (Amendment) Act 1999 (No 160 of 1999).  The first issue was whether the ship was forfeited to the Commonwealth on 1 July 2003 because it was used or involved in a contravention of the Migration Act by force of the operation of s 261A(1).

31                  If the Commonwealth failed to make good the ship’s forfeiture under s 261A, it had to identify a lawful basis justifying its destruction of the vessel.  Before the primary judge, and in the appeal, it argued that the decision of the CEO to destroy the ship fell within his power under s 185B(4) of the Customs Act 1901.  That provision applied to a ship that was in Australia and that an officer reasonably suspected was or has been involved in a contravention or attempted contravention, either in or outside Australia, of, among others, the Migration Act (s 185B(1)). 

32                  The appellant pleaded that if the ship were not forfeited under s 261A, the destruction of his property and the seizure or use of it by officers of the Commonwealth was a trespass to his goods (the ship), conversion of it or a breach by the Commonwealth of its duty as an involuntary bailee. 

33                  The Commonwealth pleaded that if the ship were not forfeit, then no compensation was payable under s 4AB of the Customs Act on the ground that the destruction of the ship was authorised by s 185B(4) of that Act.  It argued that two issues were raised by the appellant’s claim for damages or compensation:  first, whether the Commonwealth had statutory authority to act as it did, and secondly, if it did not, whether its conduct in destroying the boat was tortious.

34                  Unless the Commonwealth can establish a lawful basis for its failure to return his ship in the same good order and condition it had at the time of its seizure on 1 July 2003, the appellant is entitled to damages.

The Factual Context

35                  At the trial, the parties proceeded on a statement of agreed facts supplemented by additional evidence.

36                  The primary judge did not make any findings on the second issue above.  That was unfortunate.  The parties spent some time in written submissions and oral argument on the appeal canvassing the facts.  It was not suggested that any issue of credibility prevented the Full Court from being able to discharge its function of a rehearing.  Since we received full argument on these matters and are in as good a position as the primary judge to make findings, I am of opinion that we should decide the matter as fully as possible.

37                  As a general rule, trial judges should make findings of fact on the substantial issues in the hearing even if, because of a particular conclusion to which they have come, those findings are not strictly necessary.  This is because, in the usual case, an appeal by way of rehearing lies by statute, as it does in this Court pursuant to s 27 of the Federal Court of Australia Act 1976.  As Gleeson CJ, Gummow and Kirby JJ said in Fox v Percy (2003) 214 CLR 118 at 126 [23] and [24], a trial judge has advantages over appellate courts.  Those derive from the obligation at the trial to receive and consider the entirety of the evidence, the opportunity to reflect on it and the obligation to give reasons for his or her decision;  they enable an appeal by way of rehearing to proceed efficiently and they enhance its utility.  Of course, no reasons can ever state or deal with all pertinent matters or issues:  cf  Fox 214 CLR at 132 [41].  But, in deciding whether or not he or she should make findings on substantive issues, a trial judge must consider whether, if an apparently decisive ground for his or her decision were overturned on appeal, the appellate court would have to remit the matter for further findings.  The failure to make those findings once for all at trial can be productive of cost, delay and the need for re-argument:  cf  Cornwell v The Queen (2007) 231 CLR 260 at 301 [105] per Gleeson CJ, Gummow, Heydon and Crennan JJ.

38                  In the present case the primary judge, at the suggestion of the parties, heard separate issues under O 29 r 2 on 6 February 2008 and gave his first reasons in June 2008.  He then conducted the final hearing over three days in December 2008 and February 2009, giving his second reasons in May 2009.  Neil Sugget, an officer of Customs, gave oral evidence that extended over nearly 50 pages of transcript.  His Honour made no findings about that evidence.  He considered his conclusion, that s 261A worked an automatic forfeiture, to be conclusive.  As will appear, the legal issues in the proceedings are not straightforward.  In my opinion, his Honour should have made factual findings about the decision to destroy the appellant’s ship even though, after he had reached his conclusion on s 261A, it was not strictly necessary for him to have done so.  That would have been of assistance to the Full Court.

The Appellant’s ship is boarded and detained

39                  The appellant was the master of the ship.  On 1 July 2003, the ship was stopped by Customs officers in Australia’s territorial sea and within the migration zone as defined in s 5 of the Migration Act.  At about 19:16 on that day, Lieutenant Antony Pisani, acting under the orders of the commanding officer of HMAS Canberra, Commander Mayer, requested permission to board her both over the VHF radio and verbally when the vessels were alongside each other.  Immediately after this, he led a boarding party onto the ship at 19:17.  At 19:46 Lieutenant Pisani served a detention notice on the person he thought was the master, Mr Nguyen.  Nothing was argued to turn on the fact that the appellant was the master.

40                  The Commonwealth argued that once the VHF radio or oral request to board were uttered by Lieutenant Pisai, he had authority to board the ship by force of ss 184A(10) and (11) of the Customs Act.  The powers of naval and other officers under s 185 to board, search and detain a vessel can be exercised once a request to board the ship has been made under s 184A (s 185(1)(a)).  There was no dispute that Lieutenant Pisani made the request to board and that this enlivened his powers and those of the other members of the boarding party to board and detain the ship under ss 185(2) and (3).

41                  All the persons originally on board the ship immediately before the naval officers came aboard, other than Mr Nguyen, were placed into immigration detention later on 1 July 2003 while all remained on the ship.  On 2 July 2003 Customs officers, and possibly an officer of the Australian Federal Police, boarded and took control of the ship where she had been stopped.  The parties agreed that those persons were not authorised officers for the purposes of ss 5 and 261A of the Migration Act.  Nor did any of them act at any time under the orders of such an authorised officer.  The Commonwealth accepted that the consequence of those agreed facts was that unless the ship had been forfeited under s 261A, it had to justify her destruction under a provision of the Customs Act.

42                  Again, there was no issue that in early July 2003 an officer reasonably suspected that the ship had been involved in a contravention or attempted contravention of the Migration Act for the purposes of s 185B(1) of the Customs Act.

How the ship came to be destroyed

43                  The Australian Quarantine and Inspection Service (AQIS) issued an order into quarantine in respect of the ship on 2 July 2003.  This meant that she could not be brought into Port Hedland for a few days until a survey had been conducted.  By 4 July 2003 Customs, and in particular, the CEO, had no information that the ship was affected by any problem that could later be revealed by a survey.  Mr Sugget reported to the CEO.  Mr Sugget was the only person the Commonwealth called to give evidence before the primary judge.  Mr Sugget said that he suggested to the CEO that he make a decision to destroy the ship.  He said that the CEO agreed.  Mr Sugget gave evidence in chief as follows:

“Now, when you were having discussions with the CEO about the course to be taken in relation to this vessel, did you tell the CEO your opinion about whether a direction could be made under section 185B(4) of the Act?  Before you answer that, can I just remind you that 185B(4) is the provision that relates to the condition of the vessel and expense to the Commonwealth? --- Yes.  We discussed a whole range of options and that was my suggestion to him that I believe that’s the option we should take.

So doing the best you can after this time lapse, could you tell the court the words you used or the substance of the words you used when you conveyed to the CEO that opinion? --- Okay.  We had had a general discussion about various options and eventually I said to the CEO, ‘The option I believe we should take is the option of saying the cost to the Commonwealth to maintain the vessel exceeds the value of the vessel’.”  (emphasis added)

44                  Mr Sugget did not refer in that evidence or in his more detailed affidavit  to the condition of the ship at 4 July 2003.  On 3 July 2003 he had been told that it would take two to three days (i.e. up to 6 July) until the results of an analysis would be received to show whether the vessel was adversely affected by black stripe mussels.  Photographs of the hull taken earlier by divers had been inconclusive, leading to the delay.  In the meantime, officers of the Australian Federal Police had informed Customs that they intended to serve a warrant on Customs to enable them to conduct a full forensic examination of the ship because they were treating her as a crime scene.  Thus, until that occurred, she would have had to remain afloat.

45                  However, there was no evidence of any person’s belief as to the ship being in any other than a good condition.  Nor was the ship valued at any time, despite an email sent to officers of Customs at 17:48 on 4 July 2003 informing them that they should draw to the attention of the CEO issues to do with his forming a belief for the purposes of s 185B(4).  That email suggested that the surveyor be asked for a comment on the ship’s value for the purpose of establishing reasonable grounds under that section.  However, as noted above, on 4 July 2003 the CEO decided to direct one of his officers to destroy the ship without having any belief as to her value.

46                  The survey of the ship was conducted by Victor Taylor on 7 July 2003, but it was not put into evidence.  However, on 7 July 2003 the Customs’ chief officer at Roebuck Bay carried out an inspection of the vessel and, in his pre-dumping inspection report, he recorded: “The vessel is of sound construction, estimated to be two to three years old”.  On 10 July 2003 Customs wrote to the appellant pursuant to s 185B(5) and (6) informing him that his ship had been destroyed on 8 July 2003 under s 185B(4).

Forfeiture:  The Statutory Context

47                  The Commonwealth argued that the ship was automatically forfeited because she had been used or involved in a contravention of s 42(1) of the Migration Act in bringing here 53 persons who became unlawful non-citizens when the ship entered Australia.  The primary judge held that it was forfeited for that reason.  The Commonwealth did not rely on any other provision to establish a contravention.

48                  No offence was created by a contravention of s 42(1) which provided:

“42(1)   A non-citizen must not travel to Australia without a visa that is in effect.”

49                  The only provision in Div 13A that provided for automatic forfeiture was s 261A.  Critically, s 261A had been introduced into the Act in the Border Protection Legislation Amendment Act 1999.  That Act inserted Div 13A into Pt 2.  The text in the Act of the headings for Div 13A and subdivision A, as well as the only section in that subdivision namely s 261A, was as follows (emphasis added):

“Division 13A – Automatic forfeiture of things used in certain offences

Subdivision A – Automatic forfeiture

261A    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;

(b)        a vehicle or equipment:

(i)         on a vessel described in paragraph (a) at the time of the contravention mentioned in that paragraph; or

(ii)        used or involved in the contravention referred to in that paragraph.

(2)        Despite subsection (1), a vessel that:

(a)        was used or involved in a contravention of this Act of a kind referred to in that subsection; and

(b)        at the time of the contravention, was being used in the course of a regular public transport operation;

is not forfeited to the Commonwealth if both the master and the owner of the vessel:

(c)        did not know; and

(d)        could not reasonably be expected to have known;

that it was used or involved in the contravention.

(3)        In this section:

regular public transport operation, in relation to a vessel, means an operation of the vessel for the purpose of a service that:

(a)        is provided for a fee payable by persons using the service; and

(b)        is conducted in accordance with fixed schedules to or from fixed terminals over specific routes; and

(c)        is available to the general public on a regular basis.”

50                  By force of s 13(1) of the Acts Interpretation Act 1901 (Cth) the headings of the parts, divisions and subdivisions into which any Act is divided are deemed to be part of that Act.  However, no headings to sections of the Act are taken to be part of the Act (s 13(3)).  Thus, the heading of Div 13A is part of the Act.  The critical question is whether its use of the word “offences” is an aid to construction for the subsequent use of the different word, “contravention”, in s 261A.  The word “offences” appeared in the heading to Div 13A but nowhere in its substantive provisions.  That word was not used in the operative section, but rather the word “contravention” was used repeatedly in s 261A.

51                  The ordinary meaning of “contravene” when used in an Act is given by s 22(1)(j) of the Acts Interpretation Act, which provides:

“22(1)   In any Act, unless the contrary intention appears:

            …

(j)         Contravene includes fail to comply with.”

Because it was not an offence to contravene s 42(1), if s 261A is construed as operating to effect an automatic forfeiture upon the commission of an offence, the ship will not have been forfeit to the Commonwealth for a contravention of s 42(1).  However, the opposite will obtain, if s 261A is construed as operating on any contravention of the Act (including a non-criminal failure to comply with any provision of the Act such as s 42(1)).

The Parliamentary History

52                  In the second reading speech for the Border Protection Legislation Amendment Bill 1999 that became Act No 160 of 1999 the Minister said (Hansard, House of Representatives, 22 September 1999 at p 10149):

“Amendments to the Migration Act and the Customs Act will allow the detaining, forfeiture, seizure and, as necessary, disposal of ships and aircraft used in people smuggling operations.

In addition, vessels found to be unseaworthy, a risk to safety or navigation or a threat to the environment, will be able to be moved or destroyed.

The main target of the bill is the smuggling of human cargo by sea.”  (emphasis added)

53                  In its original form cl 261A consisted only of what is now s 261A(1).  Later, when introducing amendment 1 to the Bill to add what became subs (2) and (3) in s 261A, the Minister said (Hansard, House of Representatives, 22 November 1999 at pp 12326-12327):

“Amendments 1 to 12 are designed to address concerns raised by the opposition that innocent third parties be protected from the consequences of the automatic forfeiture scheme as proposed in the bill. The appropriate safeguards for innocent bystanders could have been established administratively; however, I do appreciate the opposition's concern and agree to move these amendments. The proposed amendments will provide protection to a master and the owner of a vessel used to carry unauthorised arrivals where the master and the owner did not know and could not reasonably be expected to have known that the vessel was being used or involved in contravention of the Act. I have in mind here a regular passenger ship or airline unwittingly caught up in a people smuggling operation, but only where they are regular, scheduled services and normally carrying fare paying passengers.”  (emphasis added)

54                  The revised explanatory memorandum for the Bill said (at [163]):

“New section 261A sets out the circumstances when things used in certain offences are forfeited.”  (emphasis added)

55                  In introducing the Bill the Minister said that it was part of a package previously announced by the Prime Minister to combat international trade in people and that it would increase Australia’s capacity to detect and deter people smuggling (Hansard, House of Representatives, 22 September 1999 at p 10150).  That package was based on recommendations made in a June 1999 report by the Prime Minister’s Coastal Surveillance Task Force.  Relevantly, the Task Force recommended that a legislative forfeiture regime apply to “all boats or vehicles used in connection with the smuggling of migrants … regardless of whether prosecution action was taken  or a conviction obtained”.  It  proposed:

“Recommendation 18: That the Commonwealth introduce legislation to create a forfeiture regime in relation to all boats or vehicles used in connection with the smuggling of migrants to Australia. Within constitutional constraints, this would operate regardless of whether prosecution action were taken or a conviction obtained and penalties imposed. Such a scheme would result in the forfeiture of the vessel, vehicle or aircraft immediately upon its arrival in Australia with prohibited non-citizens on board. It would complement legislation to be considered by parliament on stronger penalties against people smuggling. Apart from the deterrence factor, such powers are necessary to enable derelict vessels to be disposed of quickly before they become a hazard to navigation.”  (emphasis added)

56                  The Minister also explained the purpose of amendment 15, which added what became s 185B(4) of the Customs Act as follows (Hansard, House of Representatives, 22 November 1999 at p 12327)

“The purpose of amendments 14 and 15 is, of course, to clarify the circumstances under which the CEO of Customs can order the destruction of a vessel which is in such poor condition that the cost of its custody or maintenance would be more than the vessel is worth. This reflects the fact that in those cases where vessels have recently reached Australian shores they were almost invariably worth little more than their scrap value.”  (emphasis added)

The Operation of a Forfeiture under s 261A - Submissions

57                  The Commonwealth propounded two principal submissions before the primary judge, one of which he accepted, and the other he rejected.  The successful argument was that the word “contravention” in s 261A could mean any contravention of the Act of the kind described, whether or not it involved the commission of a criminal offence.  The second argument, which his Honour rejected, and is the subject of a notice of contention in the appeal, is that a contravention of the Act could occur by establishing all of the ingredients to create an offence, but because of the operation of s 10.3 of the Criminal Code in the Criminal Code Act 1995 (Cth), the appellant’s acquittal merely should be understood as meaning that he was “not criminally responsible for the offence” within the meaning of s. 10.3(1).

58                  The Commonwealth argued that s 10.3(1) operated to relieve a person of criminal responsibility for a contravention that would otherwise have amounted to having the status of an offence.  Thus, it argued that the norms of conduct prescribed in ss 229(1), 232(1), 232A and 233(1)(a) of the Migration Act would be contravened if the basis of the verdict of not guilty was that the appellant, Mr Nguyen or others on the ship, had established that he or they were not criminally responsible for that offence under s 10.3.

59                  The Commonwealth’s first argument raised important issues of statutory construction.  It argued that a wider meaning should be given to “contravention” than it simply being confined to an “offence” having regard to the Parliamentary material associated with the enactment of Div 13A.  In addition, the Commonwealth argued that “contravention” should be interpreted cognately with the meaning given to “contravene” in s 22(1)(j) of the Acts Interpretation Act.

The meaning of “contravention” in s 261A

60                  The chapeau to s 22(1) of the Acts Interpretation Act qualified the meaning of the terms defined with the words “unless the contrary intention appears”.   Thus the real question here is whether “contravene” was used in s 261A of the Migration Act in a sense where a contrary intention appeared.  I am of opinion that it was.  First, the heading to Div 13A suggests that it was.  Secondly, the use of the remedy of forfeiture by the Parliament brings about the consequence that a person is deprived of his or her or its property.  Thirdly, s 261A can result in a completely innocent person forfeiting property if it were used by someone else or involved in the relevant contravention:  cf Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [15] per French CJ, Gummow, Hayne, Crennan, and Kiefel JJ.

61                  The primary judge found that there was no ambiguity in the word “contravention” as used in s 261A and refused to have any regard to the heading to Div 13A.  He said that he was applying what Latham CJ had said in Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 at 16, namely that the operation of s 13(1) of the Acts Interpretation Act allowed consideration of headings of divisions only where the provision was ambiguous.  The primary judge also rejected consideration of the heading to s 261A on the basis that it was extrinsic material that could only be considered under s 15AB(1)(b) of the Acts Interpretation Act if the provision were ambiguous or obscure.  He said that in the following passage in Rutu v Dalla Costa (1997) 139 FLR 265 at 270 Angel J had found s 42 to be unambiguous and that he would follow Angel J’s finding:

“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.”

62                  I am of opinion that his Honour erred in construing s 261A in this way.  The word “contravention” can be used in a variety of senses.  The construction of the section, including the word “contravention”, depended on ascertaining a meaning consistent with the language and purpose of all the provisions of the statute, including the context in which s 261A appeared.  In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71], 384 [78] McHugh, Gummow, Kirby and Hayne JJ explained the general principles of statutory construction.  They drew attention to the need to consider the context in the following passage (Project Blue Sky 194 CLR at 381 [69]):

“The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole” (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ.  See also South West Water Authority v Rumble’s [1985] AC 609 at 617, per Lord Scarman, “in the context of the legislation read as a whole”.).  In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397), Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed (Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597;  Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332;  K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (157 CLR 309 at 312, per Gibbs CJ;  at 315, per Mason J;  at 321, per Deane J).”  (emphasis added)

63                  The heading to Div 13A provides part of the context in which s 261A must be construed, as a part of that division.  Headings in a statute can be taken into account in determining the meaning of a provision where the provision is ambiguous and may sometimes be of service in determining the scope of a provision.  However, if the section is clear and unambiguous, a title or heading must give way, and full effect must be given to the enactment:  see Silk Bros (1943) 67 CLR at 16 per Latham CJ, Rich and McTiernan JJ concurring.  A heading does not, control the permissible scope of the substantive provisions of an Act, and cannot properly be used to impose an unnaturally constricted meaning upon the words of those substantive provisions, as Mason CJ, Deane, Dawson, and Gaudron JJ pointed out in Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594 at 601.  They said that a heading of a Part of an Act constitutes part of the context within which the substantive provisions of the Part must be construed and should be taken into consideration in determining the meaning of those provisions in case of ambiguity.  Thus, they concluded that the meaning of “misleading” in s 52 of the Trade Practices Act was apt to be elucidated by reference to the headings of Pt V and Div 1 of that Act, in which s 52 appeared, as Mason J, with the agreement of Barwick CJ, Gibbs, Stephen and Jacobs JJ had explained previously in Reg v Credit Tribunal;  Ex parte General Motors Acceptance Corporation (1997) 137 CLR 545 at 561 where he said:

“‘Misleading’ is a word which is capable of expressing various shades of meaning, sometimes signifying that which is subjectively misleading and at other times that which is objectively misleading. Its meaning therefore is apt to be influenced, indeed decisively influenced, by the context in which it is found. Here the setting in which s. 52 (1) appears is shown by the headings ‘Part V --Consumer Protection" and "Division 1 --Unfair Practices’.”

64                  The heading to a division in an Act is not irrelevant to the process of ascertaining what the purpose of a substantive provision was or how it should be construed.  While the heading to a division is part of an Act, the words in the heading cannot of themselves create rights or liabilities or have an operative effect that expands or limits what may or may not be done.  Nonetheless, the heading may provide a context in which the sections that it precedes may be understood.  Naturally, not all headings will be of particular assistance, especially in construing provisions in Acts that have been amended many times since a particular heading had been inserted in a part of the Act in which subsequent amendments had been made.  In the present case, however, Div 13A was inserted into the Act together with s 261A in its current form.  Thus, there is an immediacy of relationship between the context that the heading to Div 13A provides and the content of the only section in that division that deals with automatic forfeiture.

65                  In addition, the heading to s 261A reinforces that context.  The heading to a section is not part of an Act, but is extrinsic material which the Court may consider in construing a substantive provision either to confirm that its meaning is the ordinary meaning conveyed by the text of the section taking into account its context in the Act and the purpose or object underlying the Act, or where the meaning is obscure or ambiguous or that ordinary meaning leads to a result that is manifestly absurd or unreasonable:  see s 15AB(1) and (2)(a) of the Acts Interpretation Act;  Laemthong International Lines Co Ltd v BPS Shipping Ltd (1997) 190 CLR 181 at 201 per Gaudron, Gummow and Kirby JJ.  As Mansfield J has said, a heading can also be used as a brief guide, not necessarily accurate or complete, for the provisions that it introduces:  Australian Prudential Regulation Authority v Holloway (2000) 104 FCR 521 at 537 [50]-[51].

66                  The task of statutory construction must begin with consideration of the text itself and historical considerations together with extrinsic materials cannot displace the clear meaning of the text, as Hayne, Heydon, Crennan and Kiefel JJ explained in Alcan Aluminium (NT) Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47] (see too Saeed [2010] HCA 23 at [32]-[34]).  They went on to emphasize that the language actually employed in the text of the legislation was the surest guide to the legislative intention, adding:

“The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision (Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 per Dixon CJ quoted with approval in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69] per McHugh, Gummow, Kirby and Hayne JJ), in particular the mischief (Re Heydon’s Case (1584) 3 Co Rep 7a at 7b;  76 ER 637 at 638) it is seeking to remedy.”

67                  Their Honours went on to point out that fixing on a general legislative purpose with which the statute deals may carry a danger that the text of the relevant section being construed did not receive the attention it deserved.  They illustrated the point (Alcan 239 CLR at 47-48 [51]) by referring to remarks of Gleeson CJ in Carr v Western Australia (2007) 232 CLR 138 at 143 [6].  The Chief Justice had given the example of a taxing Act.  Such an Act would have a general underlying purpose of raising revenue for government.  But Gleeson CJ warned that such a purpose should not be allowed to overwhelm consideration of the particular text of the statutory provision under consideration:  Carr 232 CLR at 143 [6].  He discussed the legislative command in s 15AA of the Acts Interpretation Act, that the preferable construction of a provision should be one that promotes the purpose or object underlying an Act, as follows (Carr 232 CLR at 143 [6]):

“That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.”  (emphasis added)

68                  Again, a court should be cautious in searching for general or overall purposes of Acts that, like the Migration Act, are today in a form vastly different from and more expansive than it was when originally enacted in 1958.  It is now a commonplace that Acts are amended frequently, sometimes more than once a year.  These considerations support an approach to statutory construction that pays primary attention to the text of the particular section or sections in issue.  In our common law method of dispute resolution, each case requires the Court to have close regard to the actual circumstances of the controversy and how the relevant statutory provision is engaged in that question.  This justifies the initial focus of the enquiry into a statutory provision’s construction on the text of the provision itself, while bearing in mind its context in the statutory scheme.

69                  So, in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 Brennan CJ, Dawson, Toohey and Gummow JJ observed that the modern approach to statutory interpretation insisted that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and uses the concept of “context” in “… its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy …” (footnote omitted).  They continued:

“Further, inconvenience or improbability of a result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent (Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-321).”

70                  The word “contravention” can include a disobedience which consists merely in abstaining from doing an act, a failure to perform a positive requirement, as well as disobedience of a negative command:  The Queen v Commonwealth Court of Conciliation and Arbitration;  Ex parte Amalgamated Engineering Union, Australian Section (1953) 89 CLR 636 at 649 per Dixon CJ, Webb, Fullagar and Kitto JJ.  The word “contravention” can mean both an offence and a mere non-trivial breach of a norm set by an enactment.

71                  The question is in what sense did the Parliament intend to use the word when it employed it in s 261A.  That sense can be elucidated by considering the heading to Div 13A in which the section was found.  It suggested that its provisions dealt with the consequences of offences against the Act as opposed to every non-conformity with any of its provisions, whether criminal or civil.  The consequence of forfeiture on an innocent owner of property that others use, without his or her or its knowledge or approval, can be draconian and unjust.

72                  The word “contravention” is used variously in legislation to signify both the commission of an offence as well as a non-compliance with some provision or norm set out in the Act, whether by a person’s acts or omissions.  “Contravention” is not a word that signifies one single discrete legal concept.  As Bray CJ suggested in Dimella Constructions Pty Ltd v Stocker (1976) 14 SASR 215 at 221-222 the word “contravention” can be used in statutes to link civil liability to the actual existence of criminality liability.  He held that a person entitled to be acquitted of an offence on the ground of an honest and reasonable mistake of fact had not contravened criminally or civilly a legislative prohibition by doing the proscribed act.  That was because the Parliamentary intention, disclosed there, was to “tie up civil irrecoverability with criminal liability”:  Dimella 14 SASR at 221 and see too per Jacobs J and King J at 224.  The sense in which “contravention” is used in s 261A(1) is not self-evident from the terms of the section itself.  Therefore, the context in which the word is used in Div 13A may provide assistance in ascertaining which of the different meanings of “contravention” the Parliament intended be given effect in providing for automatic forfeiture.

73                  The Parliament may make forfeiture provisions that are “drastic and far reaching” in order to vindicate the right of the Crown and to ensure strict and complete observance of Customs’ or other laws.  Dixon CJ noted that the absence of a strong provision supporting the administration of the Customs’ laws would make it notoriously difficult to ensure that they would be completely enforced:  Burton v Honan (1952) 86 CLR 169 at 178-179.  If the forfeiture is imposed as an exercise of the incidental power under s 51(xxxix) of the Constitution for the purposes of the Migration Act it will not be an acquisition of property but serve the purpose of enforcing that Act:  cf  Burton 86 CLR 181 per Dixon CJ.  That again, raises the question as to the sense in which the Parliament has used the term “contravention”.

74                  The Parliament may employ a remedy or consequence such as forfeiture of a vessel used or involved in the contravention of a statutory command as a means of securing compliance with or obedience to the command, provided that the ancillary provision (i.e. the remedy or consequence) is reasonably adapted to securing such compliance or obedience:  Fencott v Muller (1982) 152 CLR 570 at 599 per Mason, Murphy, Brennan and Deane JJ.  Forfeiture has long been a means of securing compliance with both the civil and criminal law.  Menzies J suggested in Cheatley v The Queen (1972) 127 CLR 291 at 305 that it may be that modern provisions for forfeiture had their roots in the old law of deodand.  This led to the forfeiture of property involved in the death of a person, regardless of any involvement of the owner of the property in that death.  Menzies J quoted from O W Holmes:  The Common Law (1881) at pp 24-25 to make the point good.  Holmes gave illustrations of a man falling from a tree and dying, as a result of which the tree was deodand.  And, of course, in cases where a person was murdered, the murder weapon became deodand.  These instances dated from the time of Edward I.  Subsequently, the common law developed a doctrine that a person convicted of felony or treason, forfeited all their property to the Crown. 

75                  In International Finance Trust Company Limited v New South Wales Crime Commission (2009) 261 ALR 220 at 228-229 [25]-[27] French CJ discussed the development of statutory forfeiture.  He said there were broadly two classes of statutory forfeiture, one depending upon conviction and the other upon unlawful conduct.  The Chief Justice went on to note that the process of statutory construction, including the identification of constructional choices, is informed by the text, context, legislative purpose, and, “… when applicable, the conservative principle that, absent some clear words, Parliament does not intend to encroach upon fundamental common law principles”:  International Finance 261 ALR at 232 [41]; Saeed [2010] HCA 23 at [15], [58].

76                  The Courts do not impute to the legislature an intention to interfere with fundamental rights in the absence of clear, unmistakable and unambiguous language:  Coco v The Queen (1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ;  Saeed [2010] HCA 23 at [58].  A statutory provision will only be construed to modify or take away property rights if that result is conveyed by clear words or necessary implication:  Bropho v Western Australia (1990) 171 CLR 1 at 18 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ;  CTM v The Queen (2008) 236 CLR 440 at 447 [7] per Gleeson CJ, Gummow, Crennan and Kiefel JJ approving what Gleeson CJ said in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 492 [30];  see also Lehman Bros Holdings Inc v City of Swan (2010) 265 ALR 1 at 17-18 [63]-[67] per Heydon J;  City of Swan v Lehman Brothers Australia Ltd (2009) 179 FCR 243 at 267-268 [74]-[76] where I collected the authorities.  Forfeiture provisions are construed in this way:  Jeffrey v DPP (Cth) (1995) 79 A Crim R 514 at 517-518 per Cole JA with whom Handley JA and Giles AJA agreed;  Studman v Director of Public Prosecutions (Cth) (2007) 177 A Crim R 34 at 40 [35] per McClellan CJ at CL with whom Spigelman CJ and Handley AJA agreed.

77                  It is well established for the Parliament to use forfeiture of property, even in the hands of an innocent owner, as a means of obtaining compliance with the law:  Theophanous v The Commonwealth (2006) 225 CLR 101 at 128 [71] per Gummow, Kirby, Hayne, Heydon and Crennan JJ;  see too Gleeson CJ at 115-116 [12]-[13].  Laws providing for the forfeiture of fishing vessels that were used in circumstances where the owner of the vessel may have been innocent of the commission of the relevant offence or contravention have been upheld in Cheatley v The Queen (1972) 127 CLR 291 and Re Director of Public Prosecutions;  Ex parte Lawler (1994) 179 CLR 270.  Those cases establish that the validity of the forfeiture need not depend upon the involvement in any way by the owner of the vessel forfeited in the commission of the offence or contravention.  However, that said, the decisions are of limited assistance in how to construe s 261A. 

78                  The primary judge reasoned that Angel J’s “… finding in relation to s 42 is unambiguous and the Court respectfully follows the finding”.  I am of opinion that the primary judge should not have found the provisions of s 42(1) to be unambiguous in construing s 261A without considering their context and the extrinsic material.  What Angel J had said in Rutu 139 FLR at 270 was not a finding on the meaning of the word “contravention” as used in s 261A.  Angel J was considering an appeal on the question whether an offence had been committed under s 233(1)(a) of the Act.  Angel J’s reference to a contravention of the Act in the passage on which the primary judge relied that I have quoted at [61] above, related to s 42 as one of the ingredients in s 233(1)(a), namely its requirement that “the non-citizen intended to enter Australia in contravention of this Act” (emphasis added).  However, the offence under s 233(1)(a) was for a person to take part in the bringing or coming to Australia of a non-citizen under circumstances from which it might reasonably have been inferred that the non-citizen intended to enter Australia in contravention of the Migration Act.  Thus, s 233(1)(a) attached a criminal consequence to a particular type of intentional contravention of, or failure to comply with, s 42(1).

79                  It did not necessarily follow that the statutory construction of the word “contravention” in s 233(1)(a), that was based on how that provision treated a contravention of s 42(1), governedthe construction of s 261A.  Angel J did not consider the meaning of “contravention” as used in s 261A or the impact of that meaning on the legislative intention that any property used or involved in a contravention to which that section applied be forfeited. 

80                  Here, the construction of s 261A must be approached by considering the context in which it appears in the Act itself, including the heading to Div 13.  I am of opinion that the heading makes clear that the purpose for which s 261A was enacted is accurately described in the heading to Div 13A, namely to provide an automatic forfeiture in respect of offences of the kind referred to in the section.  It is not simply to provide automatic forfeiture for any contravention at all of the Act, even if there be no contravention of the criminal law.  This construction is confirmed by the second reading speech and explanatory memorandum

81                  One reason that supports such a construction is that the Parliament would have been conscious of Australia’s and mariners’ obligations to rescue persons and protect lives at sea.  Often there will be persons in distress at sea who require rescue but will have no valid visa to enter Australia and will therefore become unlawful non-citizens immediately upon their entry into this country’s territory.  If the Commonwealth’s construction be correct, masters of vessels involved in international shipping would be deterred from rescuing persons at sea and bringing them to Australia.  An example that the Court raised with counsel for the Commonwealth during the course of argument supposed that if a ship sank in international waters adjacent to Australia’s territorial sea, and the master of a passing ship needed to provide assistance and rescue persons so that they may be brought to the mainland for urgent medical attention.  If “contravention” in s 261A meant “failure to comply with”, the valuable property of shipowner would be automatically forfeited as soon as the ship entered Australia were any of the rescued persons an unlawful non-citizen without a visa. The Commonwealth suggested  that in such a situation the non-visa holders would no longer be “travelling” in any ordinary sense and so were outside the reach of s 42(1).

82                  I reject that argument.  The prohibition in s 42(1) used an ordinary English word “travel” to cover the multitude of means by which a person may approach Australia.  Because it is an island, the only physical means by which a person can arrive in Australia is to travel to it by sea or air.  The fact that the person diverged in his or her journey from the intended destination does not mean that they did not travel to Australia before they arrived here.  People taken by ambulance to hospital, travel there, even though before the crisis leading to that journey they may have been travelling to their place of work, home or somewhere else.

83                  The Commonwealth suggested that a master faced with a crisis of the kind supposed would avoid forfeiture by causing his ship to wait outside the territorial sea awaiting “instructions from Australian authorities”.  However, unless those authorities issued visas to all non-citizens rescued by the master who did not have a visa, the “instructions” would be useless to avoid forfeiture if a contravention of s 42(1) was comprehended by s 261A and the ship entered Australia’s territorial waters.

84                  Obviously, s 261A(2) could not apply to a large commercial freight vessel or oil tanker that rescued persons at sea, even if it might possibly apply to a passenger liner.  The exception does not apply simply to a case of an emergency.  Thus even a lone yachtsman, who did not have a visa to come to Australia and who was not an Australian citizen, if rescued in distress at sea, when brought into Australian territory would cause a master to have his or her vessel forfeit to the Commonwealth automatically.  A master whose ship was blown off course in a gale into Australian waters could suffer a similar fate, especially if the ship had to make for land because it had been damaged or sought to escape danger.  These are very draconian consequences.  There is nothing in the Parliamentary or extrinsic material to which we were taken to suggest that the Parliament had in mind consequences of this kind.  Indeed, the emphasis in the extrinsic material was squarely placed on s 261A being used to prevent or discourage people smuggling.  The concept of smuggling is associated with criminal conduct.

85                  And scenarios created by emergency or adverse weather were recognised as exceptions to the offences created in ss 229 and 232 of the Migration Act.  The former created an offence of absolute liability where a master of a ship brought into Australia a non-citizen without a valid visa or who was not otherwise excepted in s 229(1).   And, s 232(1) created an offence deeming a master guilty where a non-citizen, to whom s 42(1) applied, entered Australia on a vessel and that person became an unlawful non-citizen upon entry into Australia because of either s 173 or the fact that he or she did not hold a valid visa.  But, both ss 229(5)(c) and 232(2)(c) created a defence for the master where the vessel entered Australia from overseas only because of the illness of a person on board, the stress of weather or circumstances beyond the control of the master.  Both sections were contained in Subdiv A of Div 12 in Pt 2 of the Act providing for offences, including those created by s 232A (under which the appellant and Mr Nguyen were prosecuted) 233 and 233A.

86                  It is hardly surprising, given Australia’s status as a great maritime trading nation that s 265 of the Navigation Act 1912 creates a duty on the master of certain ships, including ships registered in Australia or engaged in the coasting trade, to cause his or her ship to proceed with all practicable speed to the assistance of persons on or from a ship whom the master has reason to believe are in distress.  By force of s 265(1) the master is liable to imprisonment for 4 years if he or she does not do so.  The master of a ship in distress is given power by s 265(2) to requisition a ship that answers his or her call for assistance.  Once such a requisition is made, the master of the requisitioned ship must comply and cause her to proceed with all practicable speed to the assistance of the persons in distress on or from the ship in distress.  Again, a failure to comply is a criminal offence punishable by imprisonment for 10 years (s 265(2)).

87                  Article IV(b) of the International Convention for the Safety of Life at Sea 1974 (contained in Sch 1 to the Navigation Act;  see Div 1 of Pt IV, and Pt IV of that Act generally) also recognises that persons who are on board a ship “… in consequence of the obligation laid upon the master to carry shipwrecked or other persons” are not to be taken into account in ascertaining whether the provisions of that convention have been breached.  This reflects the obvious importance of the obligations that international custom and mariners have placed on masters of ships to go to the aid of others in distress at sea.

88                  If the Commonwealth’s argument were correct the master of an Australian registered ship or a ship engaged in the coasting trade here who complied with s 265(1) or (2) of the Navigation Act by rescuing persons in distress, who were obviously non-citizens from a sinking, frail small boat seeking to come to Australia to claim asylum, would subject the ship he commanded to be automatically forfeited if it returned into Australian waters with any of those persons on board.  It is not to the point that the executive government may thereafter choose to reverse the forfeiture or that a court may undo the condemnation.  The inconvenience to commerce and to maritime trade while debates occurred over whether a ship had been forfeited are too obvious to need much consideration.  Masters who knew that they could not re-enter Australian waters if the persons who were in distress did not have a visa to travel here, would be loath to rescue them.  They would have to sail to another country in the hope that they could discharge the rescued persons there.  That may or may not be allowed.  It would involve the shipowner in expense, delay and the risk that they may have to try travelling to more than one country to discharge the rescued persons at a port well off the ship’s planned course.

89                  Over 10% of the world’s trade by volume enters and leaves Australia by sea.  It is highly unlikely that the Parliament intended that a cargo ship, and all its cargo would be forfeit to the Commonwealth automatically simply because the master acted in accordance with the Navigation Act, international conventions and traditional concerns of mariners by rescuing persons in distress at sea in circumstances where those persons had no visa valid to travel to Australia.  No purpose would be served by such a draconian and irrational insistence.  It is much more likely that the Parliament intended to ensure that forfeiture occurred in cases of criminal conduct of people smuggling (regardless of whether a prosecution occurred), particularly given the context and purpose for which Div 13A was introduced into the Act.  That is confirmed by the context of the headings to Div 13A and s 261A, together with the Parliamentary and other extrinsic material relating to the enactment of s 261A.

90                  For these reasons and the additional reasons given by Besanko J whose reasons I have had the privilege of reading, the primary judge erred in construing s 261A(1) as relating to any contravention, including the civil contravention which he found namely, a contravention of s 42(1) in the use of the appellant’s ship to have him and the other 52 unlawful non-citizens travel to Australia without visas.

The Construction of s 10.3 of the Criminal Code SCHEDULE

91                  The appellant had been indicted for:

“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.”

He was acquitted of that charge by a jury verdict of not guilty on 17 October 2005.  Mr Nguyen was retried but the jury could not agree.  In December 2005, the charge against him was discontinued.  No-one was convicted of any offence under the Migration Act in respect of the circumstances in which the appellant’s ship travelled to or entered Australia.  The primary judge found that he was not satisfied that any contravention of the Migration Act amounting to an offence had occurred.  The Commonwealth accepted that finding and did not challenge it on appeal.

92                  Relevantly, s 232A of the Migration Act and s 10.3 of the Schedule to the Criminal Code provided:

“232A  Organising bringing groups of non-citizens into Australia

A person who:

(a)        organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people to whom subsection 42(1) applies; and

(b)        does so reckless as to whether the people had, or have, a lawful right to come to Australia;

is guilty of an offence punishable, on conviction, by imprisonment for 20 years or 2,000 penalty units, or both.

Note: Sections 233B and 233C limit conviction and sentencing options for offences under this section.

…

10.3      Sudden or extraordinary emergency

(1)        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.

(2)        This section applies if and only if the person carrying out the conduct reasonably believes that:

(a)        circumstances of sudden or extraordinary emergency exist; and

(b)        committing the offence is the only reasonable way to deal with the emergency; and

(c)        the conduct is a reasonable response to the emergency.” 

(emphasis added)

93                  Under s 3.1(1) of the Criminal Code Schedule,an offence consists of physical elements and fault elements.  And s 4A of the Migration Act applied Ch 2 (other than Pt 2.5 which has no application to the present matter) of the Criminal Code to all offences against that Act.  The concept of a person not being criminally responsible for an offence because of a provision such as s 10.3 of the Criminal Code Schedulehas a long history in the criminal law of this country.  When Sir Samuel Griffith drafted the Queensland Criminal Code he employed similar terminology to that now found in Division 10 of the Commonwealth’s Criminal Code and that of the other Code States, Tasmania and Western Australia:  CTM v The Queen (2008) 236 CLR 440 at 444-445 [1]-[3] per Gleeson CJ, Gummow, Crennan and Kiefel JJ.

94                  Basic legal principles of criminal responsibility, informing the understanding and interpretation of the criminal law can be excluded by a sufficiently expressed legislative intention in a statute.  Ordinarily, where the problem is one of interpretation of what a Parliament has enacted, general principles of criminal responsibility inform the task of interpretation.  However, the language of the statute will ultimately control its true interpretation:  CTM 236 CLR at 446 [5], 456 [35].  Their Honours explained the concept under the Queensland Code of the “defence” or “excuse” relieving a person of criminal responsibility for an act done on the basis if his or her honest and reasonable belief in the existence of circumstances, which if true, make the act charged innocent as follows (CTM 236 CLR at 447 [8]):

“[8]      Where it is a ground of exculpation, the law in Australia requires that the honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word "innocent" means not guilty of a criminal offence. In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be “outside the operation of the enactment” (Proudman v Dayman (1941) 67 CLR 536 at 541).”  (emphasis added)

95                  In Maxwell v The Queen (1996) 184 CLR 501 at 531 Gaudron and Gummow JJ said that a determination of guilt was the same as a finding that an accused was criminally responsible.  The effect of s 10.3 is to create an immunity from criminal responsibility and the provision is not concerned with civil liability:  cf  Fingleton v The Queen (2005) 227 CLR 166 at 184 [32], 186 [38]-[40] per Gleeson CJ.  But, nor is s 232A or any other provision in Div 12 concerned with civil liability or establishing some general norm of conduct applicable outside the criminal law, unlike s 42 of the Migration Act.

96                  The Commonwealth argued that somehow a contravention of ss 229(1), 232(1), 232A or 233(1)(a) could occur without a finding of the fault elements required to establish criminal responsibility or guilt.  It argued that it could rely on proof of the conduct element in each offence provision to demonstrate a contravention of a norm of behaviour established by the Parliament in these sections.  I am of opinion that this argument has no foundation.

97                  The Commonwealth’s argument ignored the fact that the sections on which it relied in Div 12 of Pt 2 of the Act created serious criminal offences.  The contravention that each of those sections prohibited was not divorced from the elements that together constituted an offence, namely the physical and fault elements referred to in s 4.1(1)(a) of the Criminal Code and each of the sections in the Migration Act.  Each section prohibited conduct (the physical element) that was accompanied by a state of mind (the fault element).  This is the Criminal Code’s methodology, replacing the familiar common law conceptions of actus reus and mens rea;  a guilty act together with a guilty mind.  There was no challenge to the primary judge’s finding that he was not satisfied, on the balance of probabilities, that any offence occurred under ss 229(1), 232(1), 232A or 233(1)(a) of the Migration Act.  Each norm of conduct those sections prescribed was the composite of both the physical and fault elements amounting to the offence that the Parliament created.  It follows that no contravention of those sections was established before his Honour.

98                  The conduct of the appellant, Mr Nguyen and the others who entered Australia on the appellant’s ship was not criminal.  That is because first, the jury by whom the appellant was tried, returned a verdict of not guilty;  secondly, the primary judge was not satisfied that any of them had committed an offence amounting to a contravention of the Migration Act;  and thirdly, but perhaps, irrelevantly at least in respect of the criminality alleged, the appellant established that he carried out the conduct constituting the defence in response to circumstances of sudden or extraordinary emergency and, by force of s 10.3(1) of the Criminal Code, he was not criminally responsible for the offence.  I have qualified the third of these reasons by saying that it is perhaps irrelevant because the jury returned a verdict of not guilty when the appellant was retried.  Although the parties agreed that he was acquitted because he had established a defence under s 10.3(1) to the charge against him under s 232A, the verdict was not guilty.  That verdict determined that the appellant’s conduct was not criminal.

99                  The Commonwealth did not demonstrate what further work the Parliament intended s 232A to perform beyond creating criminal liability.  It referred to the section, and the others in Div 12, as creating norms of conduct, but no further consequence beyond that criminal liability, apart from forfeiture under s 261A, was identified as vindicating the norms of conduct supposedly created.

100               When s 10.3(1) speaks of “the conduct constituting the offence” it is describing the physical element constituting the offence as identified in s 4.1(1)(a) of the Criminal Code.  The Commonwealth’s argument misconceived that expression as used in s 10.3(1) as connoting that the conduct itself wholly constituted the offences under ss 229, 232(1), 232A, 233(1)(a).  However, each of those offences requires the proof of both a physical element, namely conduct, and fault elements.  This is an ordinary and well understood feature of legislation imposing criminal liability.  Clear words are usually essential if a provision in legislation is to be construed as creating an offence of absolute liability or one which has no fault element or requirement that the offender have a guilty mind.

101               The Parliament intended that a person who established that he or she was not criminally responsible for an offence under s 10.3(1), would not be criminally responsible for or guilty of that offence.  Conduct may be a physical element of an offence under s 4.1(1)(a) of the Criminal Code.  However, conduct by itself does not amount to a contravention of s 232A.  The ingredients of the offence created by s 232A included not just a physical element of conduct but also, fault elements, namely intention and recklessness, as is clear from both pars (a) and (b) in s 232A and s 3.1(1) of the Criminal Code.  The fault elements necessary for the prosecution to prove beyond reasonable doubt included that the appellant had the guilty states of mind.  He could establish, under s 10.3 that he believed in a state of facts, namely those in s 10.3(2), that, if true, made his conduct innocent, or such as would not amount to guilt of a criminal offence:  CTM 236 CLR at 447[8].

102               What is important is that s 232A did not prohibit merely conduct.  The proof of a contravention of that section required the prosecution to establish as well as the physical element of conduct, the fault elements of intention (under s 232A(a)) and recklessness (under s 232A(b)).

103               Moreover, s 10.3 of the Criminal Code excused the conduct from being a contravention if the person had the belief specified in s 10.3(2):  cf  Australian Fisheries Management Authority v Su (2009) 176 FCR 95 at 97 [12] per Mansfield and Bennett JJ, Black CJ agreeing at 96 [3];   R v Oblack (2005) 65 NSWLR 75 at 80 [28] per Spigelman CJ, Sully J and Hulme J agreeing at 89 [83], 91 [95].  That belief is an answer to a charge of contravention of s 232A:  CTM 236 CLR at 456 [35]. Section 10.3 applies to the fault elements of an offence under s 232A, i.e. to some of the essential ingredients to make an act criminal:  cf  Ostrowski v Palmer (2004) 218 CLR 493 at 503 [10] per Gleeson CJ, and Kirby J;  Thomas v The King (1937) 59 CLR 279 at 311 per Dixon J, Rich agreeing.

104               The Commonwealth’s argument that either s 10.3(1) or any of ss 229, 232(1), s 232A or 233(1)(a) created a norm of conduct that operated regardless of the availability of a ground of exculpation under s 10.3, or of other fault elements, is contrary to deeply engrained principles applicable to the construction of statutes creating criminal offences.  And if that agreement were accepted, would work a result discreditable to our criminal law and common sense:  Thomas 59 CLR at 311.  I reject the argument as untenable.

105               The only norm created by each of ss 229, 232(1), 232A and 233(1)(a) consists of a prohibition that applies cognately to both conduct and an accompanying state of mind that does not make the conduct excusable.  Thus, if the Commonwealth had established before the primary judge, on the balance of probabilities in accordance with s 140 of the Evidence Act, that the appellant or anyone else on his ship had contravened s 232A or one of the other provisions of Div 12 on which it relied, it would have established a contravention of the Act.  That would have enlivened the automatic forfeiture provision in s 261A.  The acquittal of the appellant, of itself, did not deny the possibility that in civil proceedings that he could be proved to have committed an offence – i.e. that he had contravened the Act.  Such a course is generally open in civil proceedings, including, as was the position in Helton v Allen (1940) 63 CLR 691, proving that the defendant had murdered the deceased despite his acquittal on his criminal trial of that charge.  The allegation of criminality in civil proceedings needs only to be proved on the civil standard of the balance of probabilities:  Rejfek v McElroy (1964) 112 CLR 517.  However, here the contravention to be proved is one that would have amounted to a crime, and very serious one, since s 232A carried a maximum penalty of 20 years imprisonment.  Thus, the Court would pay close attention to the requirements of s 140(2) of the Evidence Act in arriving at the requisite state of satisfaction, on the balance of probabilities, that the appellant, or another voyager on his ship, committed such a crime:  see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at 479-482 [29]-[38] per Weinberg, Bennett JJ and myself.

106               No consideration was given during argument of the appeal as to the capacity of the Commonwealth to contradict the appellant’s acquittal of a charge brought by its Director of Public Prosecutions in the name of the Queen in right of the Commonwealth.  That acquittal was based on the agreed fact that the appellant had established his innocence – i.e. proved his exculpation – under s 10.3(1).

107               However, if, as I consider to be the case, the purpose of s 261A is to vindicate the observance of the criminal proscriptions in the Migration Act, it would be inconsistent with achieving that end to construe the section as working a forfeiture if no person had done anything for which he or she had criminal responsibility.  A person who acted with the belief referred to in s 10.3 of the Criminal Code, would do something that the Parliament regarded as excusable.  That would negate the existence of the fault element necessary to establish an offence and to entitle him or her to an acquittal.  Thus, no contravention of any provision in Div 12 of the Act amounting to an offence against the Act would have occurred, even if the physical element constituting the offence were proved.  The offence would not be “constituted” because the fault element had been negated.  It is highly unlikely that despite this, the Parliament intended the consequence that a person who acted in the reasonable belief that the only reasonable way to deal with circumstances of sudden or extraordinary emergency was to act as he or she did and no-one else had committed an offence contravening the Migration Act, would nonetheless automatically forfeit his or her property.  The unfairness and capriciousness of such a result is self evident.

108               That consequence is different from the result faced by an innocent, and uninvolved, owner of property that was used in an actual offence (whether or not the offence is proven in a prosecution or in civil proceedings) so that the property becomes forfeit.  In this situation, not only would the physical element of conduct have occurred but, the offence itself would be committed because the fault element was also present, even if no criminal proceedings be brought.

109               It is difficult to see how the application of s 261A to a situation of the kind here, where no offence was established before the primary judge, even on the balance of probabilities, would vindicate observance of the criminal provisions in the Act.  That is because the emergency (or a reasonable belief in its existence) caused the conduct complained of to occur without a concomitant fault element rather than a deliberate use of the property to break the law.

110               For these reasons, I am of opinion that a contravention of s 42(1) is not a contravention of the Act within the meaning of s 261A.  The Parliament intended that when used in s 261A “contravention” meant “offence against” so as to cause property used in people smuggling to be forfeited.  It did not intend to cause such forfeiture where, as here, no people smuggling or other serious criminal conduct occurred.  I also agree with Besanko J’s reasons for rejecting the Commonwealth’s argument on this issue.

Statutory Authority – The Legislative Scheme

111               A number of important powers were created under subdiv B of Div 1 of Pt XII of the Customs Act.  These included the power of the commander of an Australian ship to request the master of another ship to permit the commander or his or her crew to board the master’s ship under s 184A(1).  Once such a request had been made, an officer could board, search, detain and move the master’s ship under s 185(1), (2) and (3).

112               The Commonwealth argued that these provisions gave its officers lawful authority to board the appellant’s ship on 1 July 2003 and thereafter to detain and move it.  Once the ship was detained under these powers, the Commonwealth contended that s 185B(4) gave the CEO power to direct that it be destroyed.  The critical provisions in s 185B of the Customs Act were in the following terms:

“s 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).

....”  (emphasis added)

Did the CEO have the reasonable grounds to believe required by s 185B(4)?

113               The CEO did not give evidence.  The Commonwealth sought to establish, through the evidence of Mr Sugget, that there were reasonable grounds to believe that the expense of keeping the ship in custody or maintaining it would be likely to be greater than its value.  The Commonwealth conceded that there was no evidence that the CEO had any information that the vessel was in poor, or indeed, any condition or about her value, let alone that he had reasonable grounds to believe that the ship was in such a poor condition or of a value as described in s 185B(4).  This led the Commonwealth to resort to an argument that the condition referred to in the section was broader than simply the state of repair and could allow the CEO simply to have a belief about the type of vessel it was and the expense of its custody, rather than the relative paucity of its present condition.

114               The Commonwealth asserted that somehow it needed to secure the appellant’s now unmanned ship by keeping on hand a Customs vessel at a cost of $17,000 per day on and after 2 July 2003.  That assertion was baseless.  She was at anchor in a quarantine area outside Port Hedland, so there were no mooring or other actual costs.  There was no crew.  There was no evidence of any immediate need for action to secure her from weather or other matters that may affect the cost of her custody or maintenance.

115               The Commonwealth did not rely on s 185B(3) as giving it the power to destroy the ship.  Importantly, s 185B(3)(b) entitled the CEO to direct the ship’s destruction if she posed a serious risk to quarantine, safety or public health.  There was no evidence that she did.  Rather, the Commonwealth argued only that, by dint of s 185B(4), it had power to act as it had.  It contended that the CEO needed only to have had a belief as to the nature of the vessel rather than its condition in order to exercise that power.

116               I reject that argument.  That section is explicit.  It required the ship to be “in such poor condition” that her custody or maintenance by the Commonwealth would involve an expense likely to exceed her value.  In contrast, s 185B(3) enabled the CEO to direct the destruction of a ship that met some other, distinct criterion, than a comparison between its poor condition and its likely value.  In order to have reasonable grounds for the belief required by s 185B(4), some objective foundation had to exist concerning the actual condition of the boat so that it could be reasonably believed to meet the criterion of “poor”.  A seaworthy, well maintained vessel in good condition that was not worth very much could not be “in such poor condition” that its custody or maintenance would involve an expense likely to be greater than her value.

117               It would have been easy for the Parliament to identify in s 185B(4) that a ground for destroying a ship was that its value was less, or likely, to be less than the cost of keeping it in custody or maintaining it, if the argument of the Commonwealth were correct.  Its argument gives no meaning to the words “in such a poor condition” as qualifying the circumstances in which the ship would be kept in custody or maintained having regard to the relative expense and value to which the section is addressed.  The grammatical meaning of s 185B(4) is clear.  That meaning is confirmed by the Minister’s explanation of the purpose of s 185B(4) that I have set out in [56] above.  No plausible formulation of an alternative legal meaning was put forward by the Commonwealth:  Australian Securities and Investment Commission v DB Management Pty Limited (2000) 199 CLR 321 at 338 [34]-[35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ.

118               Indeed, s 185B(3) provides another, independent, set of grounds upon which the CEO may direct the destruction of a ship where he has reasonable grounds to believe that the ship is either unseaworthy, poses a serious risk to navigation, quarantine, safety, public health or of damage to property or to the environment. 

119               When a statute prescribes that there must be reasonable grounds for a state of mind, including belief, it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person:  George v Rockett (1990) 170 CLR 104 at 112 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.  As their Honours said the requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers, explaining that (George 170 CLR at 116):

“The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.”  (emphasis added)

120               The criterion of “in such poor condition” in s 185B(4) is not capable of being construed as enabling the CEO to form a belief that the expense of the custody or maintenance of a ship would be likely to exceed its value, regardless of its condition.  Yet that is what the CEO did.  He had no lawful justification for doing so.

121               The issue for the CEO was whether some fact or facts concerning the condition of the appellant’s ship enabled him to have reasonable grounds to believe that it was capable of being described as being “in such poor condition” within the meaning of s 185B(4).  The material before the CEO pointed only to the appellant’s ship being in good condition.  No reasonable person could form a belief on that material that he or she had reasonable grounds to believe that she was “in such poor condition” as to justify a direction under s 185B(4) for her destruction.  The subsection did not authorise that course merely because a ship was actually, or reasonably believed to be, worth less than the likely expense involved in keeping or maintaining her.

122               The evidence before the primary judge established that the ship was in good condition on 1 July 2003 and nothing had happened to change that condition before the direction to destroy her was given by the CEO on 4 July 2003.  That direction recited the words of s 185B(4) that, if they had a basis, would have justified the destruction.  But there was no evidence before his Honour on which the CEO could have been found to have had any reason to believe that the ship was 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.

123               I am satisfied that the CEO did not have any reasonable ground to form the belief required by s 185B(4) and that he did not form such a belief.  I am of opinion that the notice under s 185B(4) was invalid and was given without any lawful basis.

Is the Commonwealth liable in damages?

124               It follows that the destruction of the appellant’s property has not been justified.  The exercise of the powers to detain, move and keep a ship in custody in s 185(3) implicit in s 185B(4) of the Customs Act does not necessarily result in the possession of the ship passing to the person exercising that power.  Similarly, when a ship is arrested under the Admiralty Act 1988 (Cth) she remains in the possession of her owner or demise charterer, but the Marshal has custody of her.

125               It follows that unless the ship was forfeit to the Commonwealth by force of s 261A of the Migration Act, the appellant is entitled to compensation for the destruction without lawful justification of his property.  This should never have been in issue.  The Commonwealth sought to engage the primary judge and ourselves in dealing with a suggestion that the CEO could possibly be thought to have had reasonable grounds for a belief he never expressed, and about which he failed to give evidence, without any explanation.  The Commonwealth has known from the time of the vessel’s destruction that the CEO had no reasonable ground to cause that to happen under the powers he purported to exercise under s 185B(4).  The Commonwealth may wish to revisit its approach to the issue of liability under s 185B(4) in light of the orders that Lander J and Besanko J propose for the remittal of that question having regard to the recent inclusion of Pt VB into the Federal Court of Australia Act 1976 (Cth).

126               The Commonwealth accepted that the destruction of the ship, if done without legal justification, was inconsistent with the appellant’s rights as her owner.  The Commonwealth offered no submissions as to why, in those circumstances it would not be liable for damages in tort, if the appellant succeeded on the argument that his property was destroyed without lawful justification.

127               In Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 229, Dixon J (with whose exposition of the principles Starke J agreed at 221, see too per McTiernan J at 234-235, per Williams J (dissenting) at 239) explained that the essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property or special property in the chattel.  He said that such a dealing could take the form of the destruction of the chattel.  A long line of authority supports that view.  Conversion could occur without the defendant acquiring property in a chattel if the defendant destroyed it:  Keyworth v Hill (1820) 3 B & Ald 685 at 687 per Abbott CJ, and Bayley J, 688 per Holroyd J and 688-689 per Best J.  It is not necessary that the defendant acquire property in the chattel in order to support an action in conversion based on its destruction:  see too M’Leod v M’Ghie (1841) 2 Man & G 326 at 328 per Tindal CJ, Bosquanet, Erskine and Maule JJ;  Flack v National Crime Authority (1997) 80 FCR 137 at 141A-B per Hill J;  Kuwait Airways Corp v Iraq Airways Co (Nos 4 and 5) [2002] 2 AC 883 at 1084 [39] per Lord Nicholls of Birkenhead with whom on this issue Lords Steyn, Hoffmann and Hope of Craighead agreed at 1105 [124], [125] and 1116 [169];  JG Fleming : The Law of Torts (9^th 3d) at 68;  Pollock & Wright:  Possession in the Common Law (Clarendon Press Oxford 1888) Pt III per RS Wright at pp 120-121;  Balkin & Davis:  Law of Torts (4^th ed) at [4.21].

128               The CEO deliberately caused the appellant’s ship to be destroyed by other officers of the Commonwealth without a lawful basis.  That requires the damages to be assessed at a further hearing before the primary judge on additional evidence.  Regrettably the parties deferred dealing with the issue of damages.  In Butler v Egg & Pulp Marketing Board (1966) 114 CLR 185 at 191, Taylor and Owen JJ noted that the general rule in conversion is that the plaintiff is entitled to recover the full value of the goods converted.  Lord Nicholls followed the approach to assessment of damages in conversion adopted in Butler 114 CLR 185 as being the loss sustained by the plaintiff:  see Kuwait [2002] 2 AC at 1090 [66].  Prima facie, that principle appears to be applicable here although the primary judge will have to deal with the damages case as presented to him on the remittal.

Conclusion

129               The appeal should be allowed.  The orders and declaration made by the primary judge on 15 May 2009 should be set aside and the matter be remitted to him to hear and determine the amount for which damages should be assessed.  The Commonwealth should pay the appellant’s costs of the whole of the trial to date and of the appeal.

I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:         6 July 2010

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 537 of 2009

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	VAN TOL TRAN Appellant
AND:	THE COMMONWEALTH Respondent

 

JUDGES:	LANDER, RARES AND BESANKO JJ
DATE:	6 JULY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BESANKO J:

Introduction

130               Mr Van Tol Tran brought a proceeding in this Court against the Commonwealth. After a trial, the primary judge made the following order and declaration, relevantly:

The Court orders that:

1.         The application be dismissed.

The Court declares that:

1.         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 1993.

The primary judge’s reasons are set out in Tran v The Commonwealth [2008] FCA 901 (“Tran No 1”) and Tran v The Commonwealth [2009] FCA 474 (“Tran No 2”).

131               The parties put before his Honour a statement of agreed facts and, by reference to that document, I will set out the main facts. Other evidence was put before his Honour and I will refer to that evidence later in these reasons.

132               On 3 June 2003, a ship, with the markings Hao Kiet BL91693TS (“the ship”), left Vietnam bound for Australia. The ship was a Vietnamese registered vessel. There were 54 persons on board the ship. Of those persons, 53 were Vietnamese citizens and one (Van Hoa Nguyen) was an Australian citizen. The appellant, who was the owner and master of the ship, was one of the Vietnamese citizens on board the ship.

133               On or about 1 July 2003, the ship entered Australia’s territorial sea. On the same day, it was stopped by officers of the Australian Customs Service (“the ACS”) at a location which was within the migration zone as that term is defined in s 5 of the Migration Act 1958 (Cth) (“Migration Act”). On or about the same day, officers of the Royal Australian Navy boarded the ship and took the 53 Vietnamese citizens off the ship and onto the HMAS Canberra where they were placed in immigration detention. To the appellant’s knowledge, at all relevant times up to and including 2 July 2003, none of the Vietnamese citizens held a valid Australian visa.

134               On 2 July 2003, Commonwealth officers boarded the ship and took control of it where it was stopped. The officers were officers of the ACS although they may have included an officer of the Australian Federal Police. The officers were not authorised officers within the meaning of s 5 and s 261B of the Migration Act, nor were they officers who acted under an order by such an authorised officer within the meaning of the said sections.

135               At no stage was the appellant given a notice of seizure in the form identified in s 261D of the Migration Act.

136               On 4 July 2003, the chief executive officer of the ACS gave a direction to the commanding officer of the Australian Customs Vessel “Roebuck Bay” which was in the following terms:

Direction to Destroy Vessel

Under authority of Section 185B (4) of the Customs Act 1901, you are directed to destroy, or move and destroy, the ship with the markings HAO KIET BL91693TS.

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.

You are to carry out this direction in accordance with other requirements, for example environmental and occupational health and safety considerations, and report the date you destroy the vessel.

137               On 8 July 2003, the ship was destroyed by officers of the Australian Federal Police or of the ACS or both.

138               On 10 July 2003, the ACS sent a notice to the appellant which was in the following terms:

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.

139               The Secretary to the Department within the meaning of s 5 and s 261E of the Migration Act had no involvement in the destruction of the ship and the Secretary did not give the appellant any written notice, or any letter, in the form identified in s 261G(2) of the Migration Act.

140               In or about July 2003, the 53 Vietnamese citizens, who had been taken off the ship on or about 1 July 2003, applied (whilst held in immigration detention) for Protection (Class XA) visas under the Migration Act. By 2005, 51 of those persons had been granted Protection (Class XA) visas and the other two had been granted Refugee and Humanitarian (Class XB) visas.

141               On 28 October 2003, the appellant and two other persons who had travelled on board the ship (Mr Nguyen and one Hoang Thanh Lai) were issued with indictments by the Commonwealth Director of Public Prosecutions for contraventions of s 232A of the Migration Act. The appellant was charged with the following offence:

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.

142               On or about 17 March 2004, the appellant and Mr Nguyen were each convicted in the District Court of Western Australia of contravening s 232A of the Migration Act. The charge against Mr Lai was dismissed.

143               The appellant and Mr Nguyen each appealed from their convictions on the basis of the defence of sudden or extraordinary emergency pursuant to s 10.3(1) of the Schedule to the Criminal Code Act 1995 (Cth) (“the Criminal Code”). On 16 December 2004, the Court of Appeal of the Supreme Court of Western Australia allowed Mr Nguyen’s appeal (Nguyen v R [2005] WASCA 22). On 22 March 2005, the Crown conceded the appellant’s appeal on the basis of Nguyen v R and his conviction was quashed. At his retrial, on or about 17 October 2005, the appellant was acquitted by jury verdict because he established a defence to the offence pursuant to s 10.3(1) of the Criminal Code in that he brought the Vietnamese citizens to Australia in circumstances of sudden or extraordinary emergency.

144               Since November 2003, the appellant has sought compensation for the seizure and destruction of his ship pursuant to s 4AB of the Customs Act 1901 (Cth) (“Customs Act”).

145               The Commonwealth denied liability and the appellant issued this proceeding.

146               In the proceeding, the appellant claimed various declarations against the respondent and damages for trespass, conversion and breach of duty. He also claimed compensation pursuant to s 4AB of the Customs Act. In view of the fact that the respondent relied on s 261A of the Migration Act, the appellant also claimed compensation pursuant to s 3B of the Migration Act. The respondent defended the claim. It challenged the appellant’s title to sue and it claimed that the ship had been forfeited to the respondent by operation of s 261A of the Migration Act. In the alternative, the respondent claimed that it had a “defence” to the claims in tort and breach of duty because it acted under statutory authority in the Customs Act. I will refer to this claim by the respondent as a defence. I do this for convenience only and it should be noted that this Court did not have the benefit of detailed submissions on the question of the onus of proof in relation to the issues arising under the Customs Act. The respondent also denied that the appellant had a claim for compensation pursuant to s 4AB of the Customs Act.

147               The primary judge made the orders set out at the beginning of these reasons and it is from those orders that this appeal is brought by the appellant.

148               It is important to identify at the outset the principal issues before the primary judge.

149               At the relevant time, the conduct of the respondent and its officers was not undertaken by reference to the forfeiture provisions in the Migration Act. Those provisions are in Part 2, Division 13A of the Act and include a regime involving the automatic forfeiture, seizure and condemnation of a thing or proceedings for recovery of a thing.

150               Parliament may provide for forfeiture of property to occur only upon conviction of a criminal offence and judicial order. However, it is open to Parliament to provide for the automatic forfeiture of property upon the commission of an offence, whether or not a conviction is recorded, or a prosecution instituted. The forfeiture provisions in the Migration Act are of the latter type, subject to the fact that the Migration Act uses the word contravention not the word offence.In such a case, it may fall to a civil court to determine whether an offence has been committed or a contravention has occurred. That might be because the procedure in the forfeiture regime has been adopted or because the owner has taken civil proceedings to vindicate his property rights. Again, this case falls into the latter category.

151               Section 261A of the Migration Act provides as follows:

261A  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;

(b)        a vehicle or equipment:

(i)         on a vessel described in paragraph (a) at the time of the contravention mentioned in that paragraph; or

(ii)        used or involved in the contravention referred to in that paragraph.

(2)        Despite subsection (1), a vessel that:

(a)        was used or involved in a contravention of this Act of a kind referred to in that subsection; and

(b)        at the time of the contravention, was being used in the course of a regular public transport operation;

is not forfeited to the Commonwealth if both the master and the owner of the vessel:

(c)        did not know; and

(d)        could not reasonably be expected to have known;

that it was used or involved in the contravention.

(3)        In this section:

regular public transport operation, in relation to a vessel, means an operation of the vessel for the purpose of a service that:

(a)        is provided for a fee payable by persons using the service; and

(b)        is conducted in accordance with fixed schedules to or from fixed terminals over specific routes; and

(c)        is available to the general public on a regular basis.

152               The potential contraventions of the Migration Act which were identified before the primary judge were a breach of, or failure to comply with, s 42(1) and a breach of one or more of a group of sections which create offences and are contained in Part 2 Division 12 of the Act, namely, ss 229(1), 232(1), 232A and 233(1).

153               Section 42(1) provides, subject to certain exceptions which are not relevant for present purposes, that a non-citizen must not travel to Australia without a visa that is in effect. A breach of, or failure to comply with, s 42(1) is not a criminal offence, nor does it give rise to a civil penalty. For convenience, I will refer simply to a breach of s 42(1).

154               At the relevant time, the four offence provisions are relevantly as follows:

229  Carriage of non‑citizens to Australia without documentation

(1)        The master, owner, agent, charterer and operator of a vessel on which a non‑citizen is brought into Australia on or after 1 November 1979 are each guilty of an offence against this section unless the non‑citizen, when entering Australia:

(a)        is in possession of evidence of a visa that is in effect and that permits him or her to travel to and enter Australia; or

(b)        holds a special purpose visa; or

(c)        is a non‑citizen who is eligible for a special category visa; or

(d)        holds an enforcement visa; or

(e)        is a non‑citizen who is covered by subsection 42(2) or (2A) or by regulations made under subsection 42(3).

 

(2)        A person who is guilty of an offence against this section is liable, upon conviction, to a fine not exceeding $10,000.

(3)        An offence against subsection (1) is an offence of absolute liability.

Note:       For absolute liability, see section 6.2 of the Criminal Code.

 

(5)        It is a defence to a prosecution for an offence against subsection (1) in relation to the bringing of a non‑citizen into Australia on a vessel if it is established:

(a)        that the non‑citizen was, when he or she boarded or last boarded the vessel for travel to Australia, in possession of evidence of a visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that:

(i)         did not appear to have been cancelled; and

(ii)        was expressed to continue in effect until, or at least until, the date of the non‑citizen’s expected entry into Australia;

(b)        that the master of the vessel had reasonable grounds for believing that, when the non‑citizen boarded or last boarded the vessel for travelling to and entering Australia, the non‑citizen:

(i)         was eligible for a special category visa; or

(ii)         was the holder of a special purpose visa; or

(iii)        would, when entering Australia, be the holder of a special purpose visa; or

(iv)        was the holder of an enforcement visa; or

(v)        would, when entering Australia, be the holder of an enforcement visa; or

(c)        that the vessel entered Australia from overseas only because of:

(i)         the illness of a person on board the vessel;

(ii)        stress of weather; or

(iii)       other circumstances beyond the control of the master.

(6)        A defendant bears a legal burden in relation to the matters in subsection (5).

…

232  Penalty on master, owner, agent and charterer of vessel

(1)        Where:

(a)        a non‑citizen:

(i)         enters Australia on a vessel; and

(ii)        because he or she is not the holder of a visa that is in effect, or because of section 173, becomes upon entry an unlawful non‑citizen; and

(iii)        is a person to whom subsection 42(1) applies; or

(b)        a removee or deportee who has been placed on board a vessel for removal or deportation leaves the vessel in Australia otherwise than in immigration detention under this Act;

the master, owner, agent and charterer of the vessel shall each be deemed to be guilty of an offence against this Act punishable by a fine not exceeding 100 penalty units.

(1A)     An offence against subsection (1) is an offence of absolute liability.

Note:       For absolute liability, see section 6.2 of the Criminal Code.

 

(2)        It is a defence to a prosecution for an offence against subsection (1) in relation to the entry of a non‑citizen to Australia on a vessel if it is established:

(a)        that the non‑citizen was, when he or she boarded or last boarded the vessel for travel to Australia, in possession of evidence of a visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that:

(i)         did not appear to have been cancelled; and

(ii)        was expressed to continue in effect until, or at least until, the date of the non‑citizen’s expected entry into Australia; or

(b)        that the master of the vessel had reasonable grounds for believing that, when the non‑citizen boarded or last boarded the vessel for travelling to and entering Australia, the non‑citizen:

(i)         was eligible for a special category visa; or

(ii)        was the holder of a special purpose visa; or

(iii)       would, when entering Australia, be the holder of a special purpose visa; or

(iv)       was the holder of an enforcement visa; or

(v)        would, when entering Australia, be the holder of an enforcement visa; or

(c)        that the vessel entered Australia from overseas only because of:

(i)         the illness of a person on board the vessel; or

(ii)        stress of weather; or

(iii)       other circumstances beyond the control of the master.

(3)        A defendant bears a legal burden in relation to the matters in subsection (2).

232A  Organising bringing groups of non‑citizens into Australia

A person who:

(a)        organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people to whom subsection 42(1) applies; and

(b)        does so reckless as to whether the people had, or have, a lawful right to come to Australia;

is guilty of an offence punishable, on conviction, by imprisonment for 20 years or 2,000 penalty units, or both.

Note:       Sections 233B and 233C limit conviction and sentencing options for offences under this section.

233  Persons concerned in bringing non‑citizens into Australia in contravention of this Act or harbouring illegal entrants

(1)        A person shall not take any part in:

(a)        the bringing or coming to Australia of a non‑citizen under circumstances from which it might reasonably have been inferred that the non‑citizen intended to enter Australia in contravention of this Act;

(b)        the concealing of a non‑citizen with intent to enter Australia in contravention of this Act; or

(c)        the concealing of an unlawful non‑citizen or a deportee with intent to prevent discovery by an officer.

(2)        A person is guilty of an offence if:

(a)        the person harbours another person; and

(b)        the other person is an unlawful non‑citizen, a removee or a deportee.

Penalty:   Imprisonment for 10 years or 1,000 penalty units, or both.

155               The primary judge held that there had been a contravention of s 42(1) for the purposes of s 261A and he rejected the appellant’s contention that, for two reasons, s 261A(1) was not engaged. First, the appellant contended that a breach of s 42(1) was not a contravention of the Act within s 261A(1). Secondly, he contended that, even if a breach of s 42(1) was a contravention within s 261A(1), it was not a contravention which occurred in Australia. The primary judge’s rejection of those contentions meant that he concluded that s 261A(1) had been engaged by a breach of s 42(1). It followed that the forfeiture effected by s 261A was a complete answer to the appellant’s claims because the appellant did not have title to the ship at the time of the alleged torts and breach of duty. The primary judge’s rejection of those two contentions is challenged by the appellant on the appeal.

156               The primary judge also dismissed the appellant’s claim for compensation under s 3B of the Migration Act, which is in the following terms:

3B  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)        Any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this section must be taken into account in assessing compensation payable in a proceeding begun under this section and arising out of the same event or transaction.

(3)        In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

157               The primary judge held that the forfeiture of the appellant’s ship under s 261A was not an acquisition of property within s 3B(1)(a). That particular conclusion of the primary judge is not challenged by the appellant on the appeal.

158               As can be seen from the terms of the sections, each of ss 229(1), 232(1), 232A and 233(1) of the Migration Act create an offence in relation to the bringing into Australia, or the entry into Australia, of non-citizens. Neither party argued that a criminal offence was not a contravention within s 261A. Before the primary judge, the respondent argued, in addition to its argument that there had been a contravention of s 42(1), that the primary judge could be satisfied to the requisite degree that, on the facts, one or more of the offences created by those sections had been committed. The primary judge found against the respondent on that point and the primary judge’s conclusion is not challenged by the respondent on the appeal. In the alternative, the respondent argued before the primary judge that a contravention within s 261A(1) involved only the establishment of the prima facie elements of an offence. Put another way, the respondent argued that a contravention within s 261A of the Migration Act involved the breach of a rule of conduct even though the defendant was not guilty of an offence because he was able to make out a defence. The primary judge rejected that argument and, by notice of contention, the respondent challenges that conclusion on the appeal.

159               The respondent’s alternative basis for resisting the appellant’s claim was a defence of statutory authority under the Customs Act. It was argued that the ship was boarded and later destroyed under sections in the Customs Act. The primary judge heard evidence relevant to that defence. For example, he heard quite detailed evidence from Mr Neil Sugget, who was a customs officer at the relevant time. He was involved in briefing the chief executive officer before the latter gave his direction under s 185B(4) of the Customs Act. The primary judge did not deal with this defence. He said that it was not necessary for him to do so because he had reached the conclusion that the ship had been forfeited to the respondent by reason of s 261A(1) of the Migration Act. The issues under the Customs Act were argued before this Court in the event the Court concluded that the ship had not been forfeited to the respondent by operation of s 261A of the Migration Act.

160               The fact that the primary judge did not deal with the respondent’s defence under the Customs Act raises a question as to whether, should it become necessary to do so, this Court can and should deal with the issues which arise in relation to the defence. The defence of statutory authority raises a number of factual issues. I describe them in somewhat general terms. First, there is an issue as to whether the appellant’s ownership rights were interfered with before the ship was destroyed and in a way giving him a right to relief. Secondly, there is an issue as to whether the chief executive officer’s direction to destroy, or move and destroy, the ship was a lawful direction within the terms of s 185B(4) of the Customs Act.

161               There is a further issue in relation to the Customs Act and that arises even if the direction by the chief executive officer was lawful. It is whether the appellant is entitled to compensation under s 4B of the Customs Act. Section 4B is, in material respects, in the same terms as s 3B of the Migration Act. This last issue raises a question as to whether the destruction of the ship under the direction of the chief executive officer of the ACS was an acquisition of property within s 4B of the Customs Act and s 51(xxxi). Notices under s 78B of the Judiciary Act 1903 (Cth) were given, but no Attorney-General applied to intervene in the appeal.

162               The primary judge did not find it necessary to assess the appellant’s damages. It follows from the fact that he did not do so that, even if the appellant succeeds on all points argued before this Court, the proceeding will have to be remitted to the primary judge for damages to be assessed.

The Primary Judge’s reasons

163               The parties asked the primary judge to determine six questions separately from, and before, any other issues in the proceeding (see Federal Court Rules O 29 r 2). The answers to those questions were the subject of the primary judge’s reasons in Tran No 1. The determination of the separate questions did not resolve the proceeding and the primary judge heard the proceeding and made the orders which are the subject of this appeal: Tran No 2. Some of the primary judge’s conclusions in Tran No 2 were different from the conclusions he reached in Tran No 1. That appears to have come about because there were additional or different submissions in Tran No 2.

164               The primary judge examined the meaning of contravention in s 261A of the Migration Act. He referred to the decision in Olbers Co Ltd v Commonwealth of Australia (2004) 136 FCR 67 (“Olbers”) and said that, in light of that decision, in order for a forfeiture to occur, it was not necessary that there be a conviction for an offence or even a prosecution for an offence. What was necessary was that the Court be satisfied to a high degree of probability that a relevant offence had been committed.

165               The section under consideration in Olbers was s 106A of the Fisheries Management Act 1991 (Cth) which provided for the forfeiture to the Commonwealth of foreign vessels used in offences against various provisions of the Act. As to the standard of proof required in relation to a finding that an offence had been committed, French J (as his Honour then was) said (at 86 [65]):

It is not necessary for present purposes that I make any finding that a named person or persons committed the offences against ss 100 and 101. It is sufficient that I am satisfied that the Volga was used by some person or persons for commercial fishing in the AFZ in contravention of s 100(1) and that it was a foreign boat in the AFZ equipped with equipment for fishing and to which none of the exceptions in s 101 applied. I have regard to the fact that although these are civil proceedings a finding that offences had been committed is a serious matter and it is necessary that an appropriate degree of satisfaction be reached, albeit it is not necessary that I be satisfied beyond reasonable doubt that offences have been committed. I am satisfied to a high degree of probability that the offences to which I have referred were committed.

166               The unsuccessful applicant in Olbers appealed to the Full Court of this Court, but its appeal was dismissed. The Full Court did not suggest that the approach taken by French J was not the correct one: Olbers Co Ltd v Commonwealth of Australia (2004) 143 FCR 449.

167               On this appeal, both parties accepted that French J’s approach was also the correct one in the case of s 261A of the Migration Act.

168               The primary judge said that the text of the relevant Act needed to be examined to determine whether contravention meant merely a breach of its provisions or the commission of an offence. He referred to the heading to s 261A which is as follows:

261A  Forfeiture of things used in certain offences

He said that the heading of a section was not part of the Act, and he referred to s 13(3) of the Acts Interpretation Act 1901 (Cth) (“AIA”). The primary judge said that the heading was extrinsic material and could only be considered if the text of the section was ambiguous or obscure. He did not consider that the text of the section was ambiguous or obscure. He considered that the meaning was plain and he relied heavily on the fact that the words in the section were a contravention of this Act and not simply a contravention. His Honour considered that that indicated that contravention was not limited to particular sections creating criminal offences. It included the breach of, or failure to comply with, a statutory norm or rule.

169               The primary judge said that there was no ambiguity in the text of the section and that to resort to extrinsic material was neither permitted, nor necessary. He said that extrinsic material may be used to resolve ambiguity, but not to create it.

170               The heading to the Division in which s 261A appears is in the following terms:

Division 13A – Automatic forfeiture of things used in certain offences

 

171               The heading of a Division is part of the Act (AIA s 13(1)). The primary judge said that, although part of the Act, the heading of the Division could not alter the plain meaning of the text of s 261A.

172               The primary judge concluded that a breach of s 42(1) was a contravention of the Migration Act within s 261A and that the contravention had occurred in Australia. Although, on the approach he had taken, the primary judge said that he did not need to consider extrinsic material or rules of construction in the event of ambiguity, he did make reference to those matters. I do not think it is necessary for me to summarise his observations.

173               The primary judge held that the forfeiture of the appellant’s ship under s 261A did not result in an acquisition of property and that no compensation was payable to the appellant by operation of s 3B of the Migration Act. As I have said, that conclusion is not challenged by the appellant.

174               The primary judge examined an argument by the respondent that there had been a contravention or contraventions within s 261A by reason of what he called “prima facie” contraventions of sections creating criminal offences in the Migration Act, namely, ss 229(1), 232(1), 232A and 233(1). In Tran No 1, he accepted that argument. In Tran No 2, he reached a different conclusion. He held that the establishment of a defence under the Criminal Code meant that “it could not be suggested that an Act had been contravened”.

175               In summary, before the primary judge and before this Court, the appellant argued that contravention in s 261A of the Migration Act meant the commission of an offence. The respondent argued that contravention meant breach of a statutory rule of conduct or norm. Section 42(1) was such a statutory rule of conduct or norm. In addition, the offence provisions – the respondent identified ss 229(1), 232(1), 232A and 233 – contained statutory rules of conduct or norms. They were less than the complete offence, but could be identified, and, where breached, constituted a contravention within s 261A(1). The primary judge accepted the respondent’s argument in relation to s 42(1), but rejected it in relation to the offence provisions.

176               The primary judge said that, in light of his conclusion concerning the operation of s 261A, there was no need for him to consider the appellant’s challenge to the decision by the respondent to destroy the ship, nor to deal with any issue concerning damages claimed by the appellant.

Issues on the appeal

A contravention of the Migration Act

177               The first question is whether, as the primary judge held, a breach of s 42(1) is a contravention of the Migration Act within s 261A. The meaning of the word, contravention, will be relevant to this question and also to the respondent’s notice of contention in relation to ss 229(1), 232, 232A and 233(1).

178               The meaning of the word contravention is a question of statutory construction to be determined by the application of common law principles and the provisions of the AIA. At common law, context must be considered at the outset and not simply after an ambiguity has been identified. Context includes the existing state of the law and the mischief the law is designed to remedy. Those matters may be identified by reference to such extrinsic material as is relevant. These propositions were stated by the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ. There are limits to the use of extrinsic material, but they need not be examined here: Mulholland v Australian Electoral Commission (2003) 128 FCR 523 at 532-533 [26]. With respect, the primary judge erred in concluding that he could not have regard to extrinsic material unless and until an ambiguity had been identified.

179               Under the AIA, a Court may have regard to extrinsic material in the circumstances identified in s 15AB. Those circumstances are well known and there is no need to set them out. The extrinsic material which may be considered includes the material listed in s 15AB(2).

180               The question of construction in this case is not an easy one. The Migration Act itself contains matters which support the appellant’s suggested construction and others which support the respondent’s suggested construction. The extrinsic material supports, for the most part, the appellant’s suggested construction. The principles of construction in cases of ambiguity also support the appellant’s suggested construction. I have reached the conclusion that contravention in s 261A(1) does not include a breach of s 42(1).

181               The primary judge placed considerable weight on the fact that the words in s 261A were not simply a contravention, but were, a contravention of this Act. As I understand the primary judge’s reasons, this meant that the section embraced all relevant provisions of the Act and not just the offence provisions. With respect, I do not think that this difference is of any great significance. It does not seem to me to point to the conclusion that a contravention includes only criminal offences, whereas a contravention of this Act includes criminal offences and breaches of statutory rules of conduct or norms. It follows, it seems to me, that the proper inquiry is as to the meaning of the word contravention.

182               As an ordinary English word, contravention is capable of a wide meaning and one which includes breaches of statutory rules of conduct or norms as well as offences. A dictionary definition of the verb “contravene” is as follows:

1. v.t 1. go counter to; infringe (a law, rule, etc);

The New Shorter Oxford English Dictionary on Historical Principles (Clarendon Press, Oxford, 3^rd ed, 1993).

183               Furthermore, s 22(1)(j) of the AIA provides that, unless the contrary intention appears, “contravene includes failure to comply with”.

184               There are many examples in Commonwealth legislation of the words “contravene” or “contravention” being used to describe breaches of sections which do not constitute criminal offences, although usually some form of civil penalty or relief attends the breach (see, for example, Trade Practices Act 1974 (Cth) ss 52, 80, 82 and 87; Corporations Act 2001 (Cth) Part 9.4B).

185               There are authorities too which make it clear that, depending on the statutory context, contravention may have a wider meaning than offence. It is sufficient to refer to Dimella Constructions Pty Ltd v Stocker & Stocker (1976) 14 SASR 215; Banwell v Erceg [1984] 1 NSWLR 90; Re Venice Nominees Pty Ltd (Receiver and Manager Appointed) (in liquidation) (1992) 108 FLR 237 at 242 per Miles CJ; Re Centennial Coal Co Ltd (2006) 226 ALR 341 at 346 per Barrett J.

186               Although not a great deal can be drawn from this point, it should be noted that s 261A(1)(a)(i) includes one unlawful non-citizen and one unlawful non-citizen is perhaps not the more usual case of what was called in argument, people smuggling.

187               Section 233(1)(a) makes it an offence for a person to take part in the bringing or coming to Australia of a non-citizen under circumstances from which it might reasonably have been inferred that the non-citizen intended to enter Australia in contravention of the Migration Act. The respondent submits that this could only be a reference to a non-citizen who intends to travel to Australia without a visa that is in effect. This is the statutory rule of conduct or norm in s 42(1) and the reference in s 233(1)(a) to contravention suggests (so the respondent submits) that a breach of s 42(1) is a contravention of the Act within s 261A(1). I think a non-citizen who intends to enter Australia in contravention of the Act includes, but may not be restricted to, a non-citizen who intends to travel to Australia without a visa that is in effect. It follows that if the word contravention in s 261A(1) is used in the same way as it is in s 233(1)(a) then it includes a breach of s 42(1). The words in s 233(1)(a) are suggestive of the respondent’s construction of contravention in s 261A, but the point is not decisive as it is not unknown for the same word to have a different meaning in different sections of an Act. I would make the same observation about the decision relied on by the respondent: Rutu v Dalla Costa (1997) 139 FLR 265 at 270 per Angel J.

188               In addition to these matters, the respondent points to the exception to s 261A(1) contained in subsection (2). The respondent submits that there would be no need for the exception in s 261A(2) if contravention in s 261A(1) was restricted to a criminal offence. Put another way, the respondent submits that the exception is only in the Act because a breach of s 42(1) might lead to forfeiture and that Parliament must be taken to have been aware of that circumstance and desirous of avoiding it.

189               This argument would have force if it was at least reasonably clear that the circumstances in s 261A(2) would not fall within one of the offences which meet the description in s 261A(1)(a). I do not think that conclusion is reasonably clear. The four offence provisions which meet the description in s 261A(1)(a) are set out above (at [154]). There may be others, but for present purposes reference to these sections will suffice.

190               I note with respect to these offence provisions that s 4A of the Migration Act provides that Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against the Act.

191               It seems to me that there are at least two examples of cases where a breach of one of the offence provisions may lead to forfeiture even though the circumstances identified in s 261A(2) exist. First, there may be an offence under s 229(1) even if the owner or master of the vessel did not know and could not reasonably be expected to have known that it was used or involved in the contravention because s 229(1) applies to an agent, charterer or operator of the vessel as well as the owner or master of the vessel. Furthermore, there may be an offence under s 229(1) even though the owner or master of the vessel did not know and could not reasonably be expected to have known that it was used or involved in the contravention because that state of knowledge or, more accurately, lack of knowledge, does not precisely correspond with the defence in s 229(5). Secondly, as the appellant pointed out, the master of a cruise ship upon which there is a non-citizen stowaway who is brought to Australia may be guilty of an offence under s 229(1) of the Act.

192               It follows, in my opinion, that it cannot be said that Parliament enacted the exception in s 261A(2) only because it had in mind that a contravention in s 261A(1) extended beyond an offence and included a breach of 42(1) of the Migration Act. In those circumstances, the presence of s 261A(2) is a neutral matter.

193               The matters to which I have referred support the respondent’s suggested construction or are neutral. Support for the appellant’s suggested construction is found in the heading to Division 13A of the Act. The heading is set out above (at [170]). A heading can be an important contextual matter: Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594. At the same time, it is only a heading and it is by no means uncommon for legislation to contain headings which do not reflect the full scope and effect of the sections which follow.

194               Before considering the extrinsic material, I will address the submissions made by the parties as to the effect of the construction advanced by his or its opponent.

195               The forfeiture of property used in the carrying out of proscribed conduct is a penalty. The law may provide for forfeiture to occur in order to vindicate the law which proscribes the conduct, or, by removing the property from private ownership, to prevent a repetition of the conduct, or both (Burton v Honan (1952) 86 CLR 169 at 181 per Dixon CJ (with whom McTiernan, Webb and Kitto JJ agreed); Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270). Generally speaking, forfeiture follows the use of property in the commission of a criminal offence. The law may provide for forfeiture of property even though it is not the owner of the property who commits the criminal offence. That may be done because it is desirable having regard to the nature of the goods, the need for a deterrent penalty or the difficulty of enforcing provisions against foreign owners (Calero-Toledo v Pearson Yacht Leasing Co (1974) 416 US 663 at pp 686-688; Cheatley v The Queen (1972) 127 CLR 291 at 310 per Mason J (as his Honour then was)).

196               The penalties for the offence provisions set out above are, in some cases, very heavy. For example, s 232A provides for a penalty of imprisonment for 20 years or 2,000 penalty units, or both. In addition, there are mandatory penalties for some of the offences (see s 233C). It is clear that Parliament treats these matters very seriously and it is not surprising that, in those circumstances, there is provision for vessels used or involved in the commission of such offences to be forfeited to the Commonwealth.

197               However, it seems to me that it is one thing for an owner who has not himself committed a criminal offence to lose his goods because they have been used by another in the commission of a criminal offence. It is another for an owner to lose his goods in circumstances where no other person has committed a criminal offence. If the latter was intended then one would expect to see that expressed in clear words.

198               With a view to emphasising the harsh consequences which could follow from the respondent’s suggested construction, the appellant outlined a number of hypothetical cases where he submitted that, on the respondent’s suggested construction, forfeiture would occur. These cases are quite divorced from the facts of this case.

199               The appellant gave the example of a ship blown off course and carrying non-citizens without visas and the example of a ship with one or more non-citizens aboard which travels to Australia only because of unexpected weather conditions or because of the condition of the ship or the condition of those on board the ship. Submissions were also made about a ship which rescues people at sea – those persons being non-citizens travelling to Australia without visas that are in effect – and brings those persons to Australia.

200               The appellant submitted that, in each of these cases, it is likely there would be a breach of s 42(1) and, if such a breach was a contravention within s 261A(1), the ship would be forfeited to the Commonwealth. The appellant submitted that such a result would be harsh and unreasonable. The respondent sought to meet this submission by arguing that, for various reasons concerning the proper construction of s 42(1), there would not be a breach of that subsection in the examples given. I do not find it necessary or desirable to resolve the competing submissions. It is not necessary because I am able to resolve the question of construction in favour of the appellant without doing so. It is not desirable because the resolution of the question whether there has been a breach of s 42(1) is likely to turn on the particular facts of the case.

201               I turn now to examine the extrinsic material.

202               The heading to s 261A is not part of the Act, but it is relevant extrinsic material. The heading supports the appellant’s contention that contravention is restricted to offences. As with the heading of the Division, it is not decisive.

203               Part 2 Division 13A, of which s 261A is a part, was introduced into the Migration Act by the Border Protection Legislation Amendment Act 1999 (No 160 of 1999) (Cth). A number of other amendments to the Migration Act and amendments to the Customs Act and Fisheries Management Act 1991 (Cth) were made by the same Amendment Act. The Court was given copies of the following documents:

1.         Prime Minister’s Coastal Surveillance Task Force Report (June 1999).

2.         Revised Explanatory Memorandum, Border Protection Legislation Amendment Bill 1999 (Cth).

3.         House of Representatives, Border Protection Legislation Amendment Bill 1999, Second Reading Speech: Commonwealth, Parliamentary Debates, House of Representatives, 22 September 1999 (Phillip Ruddock).

204               The second and third documents provide some support for the appellant’s contention that the word contravention means criminal offences. The explanatory memorandum refers to the recommendations of the Task Force “to strengthen legislative provisions relating to people smuggling in order to maintain the integrity of Australia’s borders”. It contains the following statement in relation to s 261A:

163.      New section 261A sets out the circumstances when things used in certain offences are forfeited.

With particular reference to the fact that s 261A(1) refers to vessels involved in a contravention as well as used in a contravention of the Act, the explanatory memorandum states:

165.      This provision is intended to provide for the forfeiture not only of those vessels which are used in the actual contravention of the Migration Act (for example, the vessels used to actually bring the persons in question into Australia), but also of vessels which may be “involved” in such a contravention (by, for example, being used as a “mothership” in support of, or in preparation for, the actual bringing of such persons into Australia).

205               The Minister’s Second Reading Speech refers to a package of measures announced “in response to a massive increase in the number of attempts at illegal entry to Australia”. The Minister refers to the Bill as strengthening legislative provisions relating to the prevention of the smuggling of people into Australia and the maintaining of the integrity of Australia’s borders against attempted intrusions of the criminal elements behind most people smuggling activities. The Minister refers in some detail to the criminal industry of people smuggling. The Minister refers to the inadequacy of Australia’s existing laws to deal with people smuggling and he refers to the use of “mother” ships lying in international waters and used in people smuggling. The Minister states that amendments to the Migration Act and the Customs Act, “will allow the detaining, forfeiture, seizure and, as necessary, disposal of ships and aircraft used in people smuggling operations”. The main target of the Bill is the smuggling of human cargo by sea. The Minister refers to a “qualitative” difference between organised people smuggling and the irregular movement of people in need of a safe haven.

206               The matters to which I have referred suggest that the word contravention in s 261A should be construed as being limited to offences, and as not including a breach of s 42(1). Any remaining uncertainty or ambiguity should be resolved in favour of a narrow construction of the word having regard to two important principles of construction. First, Parliament should not be taken to deprive a person of an existing property right unless it expresses its intention in clear and unmistakable language: Cole v R (1994) 179 CLR 427 at 437-438 per Mason CJ, Brennan, Gaudron and McHugh JJ; Bropho v Western Australia (1990) 171 CLR 1 at 17-18 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Secondly, the forfeiture of property is a penalty and a section providing for forfeiture should be strictly construed: Jeffrey v DPP (Cth) (1995) 121 FLR 16 at 19 per Cole JA; Studman v Commonwealth Director of Public Prosecutions (2007) 177 A Crim R 34 at 40 per McClellan CJ at CL. Even if this second “principle” comes to be applied in a different way in the future, it remains a relevant consideration (see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 49 [55]-[57] per Hayne, Heydon, Crennan and Kiefel JJ).

207               The appellant argued before the primary judge that Article 31 of the Convention relating to the Status of Refugees 1951 and the Protocol relating to the Status of Refugees 1967 was extrinsic material which could be used to support his suggested construction (see Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ). The primary judge rejected that argument and gave detailed reasons for doing so. The argument was not the subject of any detailed submissions on the appeal and I do not propose to address it. The present issue can be decided without doing so.

208               In my respectful opinion, the primary judge erred in concluding that the word contravention in s 261A includes a breach of s 42(1) of the Act.

209               This conclusion and the reasons for it support the rejection of the respondent’s argument raised by notice of contention to the effect that contravention in s 261A includes the breach of the rules of conduct in the offence provisions which meet the description in s 261A(1)(a).

210               The respondent’s notice of contention contains a ground to the effect that the primary judge erred in his construction of s 261A(1) in that “the availability of a defence to criminal charges does not determine whether a person has contravened a provision of the Act”. The respondent submits that there is a contravention of the Migration Act within s 261A(1) where the prima facie elements of an offence are made out even though a defendant has a defence to the criminal charge. For example, there is a contravention where all the elements of s 232A are made out, but the person is absolved from criminal responsibility because a defence under s 10.3 of the Criminal Code is made out. The respondent submits that, in fact, this is what occurred in this case.

211               Section 10.3 appears in Chapter 2, Part 2.3, Division 10 of the Criminal Code and that Division is entitled, “Circumstances involving external factors”, and each of the sections contains a statement of circumstances in which a person is not criminally responsible for an offence. Section 10.3 provides:

(1)        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.

(2)        This section applies if and only if the person carrying out the conduct reasonably believes that:

(a)        circumstances of sudden or extraordinary emergency exist;

(b)        committing the offence is the only reasonable way to deal with the emergency; and

(c)        the conduct is a reasonable response to the emergency.

(Emphasis added.)

212               Part 2.3 itself is entitled “Circumstances in which there is no criminal responsibility”. Part 2.6 of the Criminal Code deals with proof of criminal responsibility and s 13.3 provides that a person wishing to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3) bears an evidential burden in relation to that matter. An evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that a matter exists or does not exist.

213               The respondent submits that the passages in s 10.3 which I have emphasised reinforce the conclusion that the effect of making out the defence is that an offence has been committed, but the defendant is not criminally responsible for it. The respondent submits that, where a defendant has avoided criminal responsibility only because he has made out the defence in s 10.3, there is a contravention within s 261A of the Migration Act. The respondent submits that, even if it is appropriate to construe contravention in s 261A as applying only to the breach of an offence provision in the Migration Act, there is no justification for taking what it submits is the further step of limiting the word to an offence for which a person is criminally responsible.

214               The difficulty with the respondent’s submission is in fixing the precise boundaries of the meaning of contravention and then in concluding that that is the boundary Parliament decided to fix. The point can be illustrated in this way. The offences in s 229(1) and s 232(1) are offences of absolute liability. Section 6.2 of the Criminal Code defines absolute liability, but it is not necessary for me to set out the definition. Both sections provide for defences which range from the holding of a visa or, belief as to the eligibility for a visa, to circumstances beyond the control of the master, owner, agent or charterer of the vessel. A legal burden is placed on the defendant to prove the defences (see Criminal Code s 13.4 and s 13.5). If a contravention (within s 261A(1)) of s 229(1) or s 232(1) only occurs where the defences in s 229(5) or s 232(2) are not made out then that produces an odd result if, at the same time, the respondent’s submission concerning the operation of s 232A of the Migration Act and s 10.3 of the Criminal Code is correct. It would mean that no contravention would occur and therefore no forfeiture in the case of a master or owner who fell within the terms of s 229(1), but was not guilty of an offence because the vessel entered Australia only because of circumstances beyond the control of the master, whereas there would be a contravention, and therefore forfeiture, in the case of a person who falls within s 232A, but has a defence under s 10.3 of the Criminal Code. I cannot think that Parliament intended to draw such a distinction. It follows that the respondent’s argument must be that there is a contravention (within s 261A(1)) of s 229(1) whenever the facts fall within s 229(1) and irrespective of whether the defence in s 229(5) is made out. The same observation may be made about s 232(1). For the reasons given in relation to s 42(1), I do not think that that was Parliament’s intention. The respondent’s argument raised by its notice of contention must be rejected.

215               In conclusion, there was no contravention of the Migration Act within s 261A in this case and it follows that there was no forfeiture of the vessel by operation of that section.

Place of contravention

216               Section 261A(1) provides that the contravention of the Act must have occurred in Australia. I have held that no contravention of the Act occurred in this case and, in those circumstances, it is not strictly necessary for me to deal with the appellant’s alternative argument that, if a breach of s 42(1) was a contravention of the Act, it did not occur in Australia. However, the matter was fully argued and I think it is appropriate for me to address the submission.

217               Under the AIA, s 15B(1)(b) and (4)(a), “Australia” includes the territorial sea and coastal waters.

218               The Migration Act defines an area called the “migration zone” (s 5). It means:

… the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:

            (a)        land that is part of a State or Territory at mean low water; and

            (b)        sea within the limits of both a State or a Territory and a port; and

             (c)       piers, or similar structures, any part of which is connected to such land or to ground under such sea;

but does not include sea within the limits of a State or Territory but not in a port.

The terms “enter Australia”, “leave Australia” and “remain in Australia” are each defined in s 5 of the Migration Act and each definition is framed by reference to the migration zone. Section 6 of the Migration Act provided:

6  Effect of limited meaning of enter Australia etc.

To avoid doubt, although subsection 5(1) limits, for the purposes of this Act, the meanings of enter Australia, leave Australia and remain in Australia and as well, because of section 18A of the Acts Interpretation Act 1901, the meaning of parts of speech and grammatical forms of those phrases, this does not mean:

(a)        that, for those purposes, the meaning of in Australia, to Australia or any other phrase is limited; or

(b)        that this Act does not extend to parts of Australia outside the migration zone; or

(c)        that this Act does not apply to persons in those parts.

219               In my opinion, the words in s 42(1), travel to Australia, mean to travel to the territorial sea and coastal waters of Australia. The appellant’s submission is that to travel to a place does not include being in that place. I do not agree. In my opinion, travelling to a place includes entering that place.

220               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

221               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

222               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.

223               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.

224               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.

225               Section 185B(4) did not in terms state that the power to give a direction is premised on the respondent then having custody of the ship. However, s 185B is to be read having regard to the sections around it, and, in particular, to s 185 and s 184A.

226               Section 185 relevantly provided:

185  Power to board and search etc. ships and aircraft

Application of section to ships

(1)        This section applies to a ship that is outside the territorial sea of a foreign country if:

(a)        a request to board the ship has been made under section 184A; or

(b)        the ship is a foreign ship described in subsection 184B(3) (which allows foreign ships on the high seas to be chased); or

(c)        the ship is an Australian ship.

However, this section does not apply to a ship if a request to board the ship has been made under subsection  184A(8) or (9) (certain ships on the high seas), unless an officer is satisfied under subsection 185A(3) that the ship is an Australian ship.

Note:      Section 185A deals with the boarding of ships where a request has been made under subsection 184A(8) or (9).

…

Power to detain and move ship or aircraft

(3)        An officer may detain the ship or aircraft and bring it, or cause it to be brought, to a port or airport, or to another place (including, in relation to a ship, a place within the territorial sea or the contiguous zone in relation to Australia), that he or she considers appropriate if:

(a)        in the case of a ship that is in Australia—the officer reasonably suspects that the ship is or has been involved in a contravention, either in or outside Australia, of this Act or an Act prescribed consistently with UNCLOS; and

(b)        in the case of an Australian ship that is outside Australia—the officer reasonably suspects that the ship is, will be or has been involved in a contravention, either in or outside Australia, of this Act or any other Act; and

(c)        in the case of a foreign ship that is outside Australia—the officer reasonably suspects that the ship is, will be or has been involved in a contravention:

(i)         in Australia of this Act or an Act prescribed consistently with UNCLOS; or

(ii)        in Australia’s exclusive economic zone of an Act prescribed consistently with UNCLOS; and

(d)        in the case of an aircraft that is in Australia—the officer reasonably suspects that the aircraft is or has been involved in a contravention, either in or outside Australia, of this Act.

However, a ship need not be brought to a port or other place if the CEO makes a direction in relation to the ship under section 185B.

227               Section s 184A relevantly provided:

 184A  Request to board a ship

General power to request to board

(1)        In the circumstances described in subsection (2), (3), (4), (5), (6), (7), (8) or (9), the commander of a Commonwealth ship or Commonwealth aircraft may request the master of a ship to permit the commander, a member of the commander’s crew or an officer to board the master’s ship.

Note:      Sections 185 and 185A give power to board the master’s ship if a request is made under this section.

Foreign ships in Australian waters

(2)        The commander may make the request if the master’s ship is a foreign ship that is on the landward side of the outer edge of Australia’s territorial sea. However, the request must be made for the purposes of this Act or an Act prescribed by the regulations consistently with UNCLOS.

228               When read in context, it is clear that s 185B and the powers referred to therein are part of a statutory regime which is engaged upon a reasonable suspicion of a ship being involved in a contravention or attempted contravention of the Customs Act or other prescribed Acts.

229               The respondent submits, correctly in my view, that whether, in authorising the destruction of a vessel, s 185B(4) is a law with respect to the acquisition of property within s 51(xxxi) of the Constitution raises two questions, namely, whether the mere destruction of a chattel amounts to an acquisition of property in the relevant sense and, if so, whether such an acquisition comes within s 51(xxxi) in the present circumstances.

230               There is a well recognised distinction between an acquisition of property and the mere deprivation of property: Commonwealth v Tasmania (1983) 158 CLR 1 at 145-146 per Mason J (as his Honour then was), 181 per Murphy J, 247-248 per Brennan J. The destruction of the appellant’s ship deprives him of his property in the ship, but neither the respondent nor any third party becomes the owner of the ship. The law does not result in the respondent receiving a benefit “precisely corresponding” with the appellant’s loss of his property (Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 (“Mutual Pools”) at 176 per Brennan J (as his Honour then was)) or an “identifiable and measurable countervailing benefit or advantage” (Mutual Pools at 185 per Deane and Gaudron JJ) or “a corresponding benefit of commensurate value in the Commonwealth” (Mutual Pools at 223 per McHugh J).

231               In Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 311, Brennan J (as his Honour then was) spoke of a release of liability as the “correlative” of the plaintiff’s claim and as “of the same nature” as the claim extinguished.

232               In Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513, Brennan CJ (at 530-531) spoke of the Commonwealth having the benefit of relief from the burden of Newcrest’s rights. Gummow J (with whom Toohey J (at 560) and Gaudron J (at 561) agreed) said (at 634):

The appellants say that, in substance, the Commonwealth and the Director acquired identifiable and measurable advantages. In the case of the Director, those advantages were the acquisition of the land freed from the rights of Newcrest to occupy and conduct mining operations thereon and, in the case of the Commonwealth, the minerals freed from the rights of Newcrest to mine them. In accordance with the authorities, that is sufficient derivation of an identifiable and measurable advantage to satisfy the constitutional requirement of an acquisition.

There is no reason why the identifiable benefit or advantage relating to the ownership or use of property, which is acquired, should correspond precisely to that which was taken.

(Citations omitted.)

(See McHugh J in dissent at 573.)

233               In Smith v ANL Ltd (2000) 204 CLR 493, Gleeson CJ referred (at 500 [7]) to the modification of a right to bring an action in circumstances where a corresponding advantage accrues to the party against whom action may be brought (see also Kirby J at 527-528 [96]).

234               The destruction of the ship would relieve the respondent of the cost of keeping the ship in its custody and the cost of maintaining it. However, that benefit does not correspond (I assume, in accordance with the above authorities, that it need not precisely correspond), nor is it of the same nature as the ownership rights in the ship before its destruction. In my opinion, the respondent’s first submission is correct and the destruction of the ship under s 185B(4) is not an acquisition of property within s 51(xxxi).

235               There is another reason why the destruction of the appellant’s ship is not an acquisition within s 51(xxxi). Section 185B(4) of the Customs Act refers to “the” ship and that is the ship referred to in s 185B(1), that is to say, a ship that is in Australia and which an officer reasonably suspects is or has been involved in a contravention or an attempted contravention either in or outside Australia of the Customs Act or other prescribed Acts. As I have said, s 185B(4) is part of a statutory regime for the enforcement of the Customs Act and related Acts by way of detection of potential breaches. That regime is found in Part XII Division 1 of the Customs Act. Section 185 confers a range of powers on officers to board and search ships and aircraft. In exercising those powers, the ship may be 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 or, at least, there are reasonable grounds to believe that that is the case. In such circumstances, the imposition of just terms would be incongruous: Theophanous v Commonwealth (2006) 225 CLR 101 at 124-126 [55]-[60] per Gummow, Kirby, Hayne, Heydon and Crennan JJ.

236               For these reasons, the appellant does not have a right to a reasonable amount of compensation under s 4AB of the Customs Act in circumstances where the ship was lawfully destroyed under s 185B(4) of that Act.

237               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

238               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.

I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:         6 July 2010