Tran v The Commonwealth [2010] FCAFC 80

Tran v The Commonwealth [2010] FCAFC 80

Destruction of the appellant's vessel under s 185B(4) of the Customs Act 1901 (Cth) did not constitute an acquisition of property under s 51(xxxi) of the Constitution, so no compensation was payable on that basis. Further, a breach of s 42(1) Migration Act (travelling to Australia without a visa) is not, for s 261A, a 'contravention' sufficient for forfeiture because the section refers to criminal offences, not civil breaches or non-offence contraventions. Where a jury acquitted the appellant and he was found not criminally responsible due to extraordinary emergency, there was no contravention to enliven forfeiture. The question whether the destruction was otherwise lawful under the...

Parties
Appellant: Van Tol Tran; Respondent: The Commonwealth
Jurisdiction
Australia
Judgment Date
06 July 2010
Procedural Posture
Appeal / Appeal Judgment; Orders Made; Remitted to Primary Judge
Outcome
Appeal allowed
Legal Topics
Compulsory Acquisition, Compensation for Destruction of Property, Customs Powers, People Smuggling and Forfeiture Provisions, Migration Law, Statutory Construction, Acquisition on Just Terms
Administrative Law Property Law Statutory Interpretation Constitutional Law Torts Compulsory Acquisition Compensation for Destruction of Property Customs Powers +4 more

Case Brief

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Parties

Van Tol Tran

Appellant

The Commonwealth

Respondent

Procedural Posture

Appeal / Appeal Judgment; Orders Made; Remitted to Primary Judge

Legal Issues

  1. 1 Whether the destruction of appellant's vessel under s 185B(4) of the Customs Act 1901 (Cth) constituted an acquisition of property under s 51(xxxi) of the Constitution entitling to compensation under s 4AB of the Customs Act
  2. 2 Whether destruction of the vessel was authorised by s 185B(4) of the Customs Act
  3. 3 Whether breach of s 42(1) is a 'contravention' of the Migration Act 1958 (Cth) for forfeiture under s 261A of the Act

Ratio Decidendi

Destruction of the appellant's vessel under s 185B(4) of the Customs Act 1901 (Cth) did not constitute an acquisition of property under s 51(xxxi) of the Constitution, so no compensation was payable on that basis. Further, a breach of s 42(1) Migration Act (travelling to Australia without a visa) is not, for s 261A, a 'contravention' sufficient for forfeiture because the section refers to criminal offences, not civil breaches or non-offence contraventions. Where a jury acquitted the appellant and he was found not criminally responsible due to extraordinary emergency, there was no contravention to enliven forfeiture. The question whether the destruction was otherwise lawful under the...

Court Disposition

Appeal allowed

Orders

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