Border Protection Legislation Amendment Act 1999 (160 of 1999)

Schedule 1   Migration Act 1958

Part 2   Forfeiture

10   After Division 13 of Part 2

Insert:

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.

Subdivision B - Seizure

261B Seizure of things used in certain offences

(1) An authorised officer may seize a thing in Australia, or may order an officer to seize a thing in Australia, if:

(a) the thing is forfeited under section 261A; or

(b) the authorised officer reasonably suspects that the thing is forfeited under section 261A.

(2) If an officer is ordered by an authorised officer to seize a thing under subsection (1), the officer may seize the thing.

Subdivision C - Dealing with things seized as automatically forfeited

261C Application of this Subdivision

This Subdivision sets out rules about a thing that an officer seizes under section 261B.

261D Notice of seizure

(1) The officer must give written notice of the seizure of the thing to the owner of the thing. However, if the owner cannot be identified after reasonable inquiry, the officer must give the notice to the person in whose possession or custody or under whose control the thing was immediately before it was seized.

(2) If the officer cannot conveniently give the notice to the person referred to in subsection (1) in person, the officer may give written notice of the seizure of the thing by fixing the notice to a prominent part of the thing.

(3) The notice must:

(a) identify the thing; and

(b) state that the thing has been seized; and

(c) specify the reason for the seizure; and

(d) state that the thing will be condemned as forfeited unless:

(i) the owner of the thing, or the person who had possession, custody or control of the thing immediately before it was seized, gives the Secretary, within 21 days, a claim for the thing; or

(ii) within 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited; and

(e) specify the address of the Secretary.

Note: Section 261F condemns the thing if it is not claimed within 21 days, unless the Minister gives an order that the thing is not to be condemned as forfeited. Section 261H condemns the thing if a claim is made, but the claimant does not get a court order supporting the claim, unless the Minister gives an order that the thing is not to be condemned as forfeited.

(4) A claim under subparagraph (3)(d)(i) must:

(a) be in writing; and

(b) be in English; and

(c) state an address for service on the person making the claim.

261E Dealing with thing before it is condemned

(1) The Secretary may, on behalf of the Commonwealth, cause the thing to be disposed of or destroyed if:

(a) its custody or maintenance creates serious difficulties; or

(b) the expenses of its custody or maintenance between its seizure and condemnation are likely to be greater than its value.

(2) If the Secretary causes the thing to be disposed of, the Secretary may cause the disposal to be subject to specified conditions.

261F Thing condemned if not claimed in time

(1) By force of this subsection, the thing is condemned as forfeited to the Commonwealth 21 days after notice of seizure of the thing has been given under section 261D, unless:

(a) the following conditions are satisfied:

(i) within the 21 days, the owner of the thing or the person who had possession, custody or control of it immediately before it was seized gives the Secretary a written claim for the thing;

(ii) the claim is in English;

(iii) the claim sets out an address for service on the person making the claim; or

(b) within the 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited.

Note: Section 261I requires things condemned as forfeited to be dealt with in accordance with the Secretary's directions.

(2) A person may claim the thing even if it is disposed of or destroyed before or after the claim.

261G Dealing with claim for thing

(1) If the thing is claimed under section 261F:

(a) an officer may retain possession of the thing whether or not any proceedings for the condemnation of the thing have been instituted; and

(b) the Minister may give a written order that the thing is not condemned as forfeited; and

(c) unless an order has already been made under paragraph (b), the Secretary may give the claimant a written notice stating that the thing will be condemned as forfeited unless:

(i) the claimant institutes proceedings against the Commonwealth within one month to recover the thing, or for a declaration that the thing is not forfeited; or

(ii) within one month, the Minister gives a written order that the thing is not condemned as forfeited.

Note 1: An officer may retain possession even if the Secretary does not give notice. If so, the claimant will be able to recover the thing only if a court orders its release to the claimant.

Note 2: If the Secretary does give the notice and the claimant institutes proceedings, whether the claimant recovers the thing will depend on the outcome of the proceedings.

(2) The Secretary may give the notice to the claimant by posting it prepaid as a letter to the last address of the claimant that is known to the Secretary. If the Secretary does so, the letter is taken to be properly addressed for the purposes of section 29 of the Acts Interpretation Act 1901.

(3) Subsection (2) does not limit the ways in which the notice may be given.

Note: Sections 28A and 29 of the Acts Interpretation Act 1901 explain how a notice can be given, and when it is taken to be given.

261H What happens if thing is claimed

(1) This section applies if the Secretary gives the claimant a notice under section 261G about instituting proceedings:

(a) to recover the thing; or

(b) for a declaration that the thing is not forfeited.

(2) If, within the period of one month after the notice is given:

(a) the claimant does not institute such proceedings; and

(b) the Minister does not give a written order that the thing is not to be condemned as forfeited;

the thing is condemned as forfeited to the Commonwealth immediately after the end of that period.

(3) If the claimant institutes such proceedings within the period of one month after the notice is given, the thing is condemned as forfeited to the Commonwealth unless:

(a) before the end of the proceedings, the Minister gives a written order that the thing is not to be condemned as forfeited; or

(b) at the end of the proceedings, there is:

(i) an order for the claimant to recover the thing; or

(ii) if the thing has been sold or disposed of - an order for the Commonwealth to pay the claimant an amount in respect of the thing; or

(iii) a declaration that the thing is not forfeited.

(4) For the purposes of subsection (3), if the proceedings go to judgment, they end:

(a) if no appeal against the judgment is lodged within the period for lodging such an appeal - at the end of that period; or

(b) if an appeal against the judgment is lodged within that period - when the appeal lapses or is finally determined.

(5) Proceedings relating to the thing may be instituted or continued even if it is disposed of or destroyed.

(6) If the court hearing the proceedings decides that it would have ordered that the thing be delivered to a person apart from the fact that the thing had been disposed of or destroyed, the court may make such orders as the court considers appropriate, including an order that the Commonwealth pay the person an amount equal to:

(a) if the thing has been sold before the end of the proceedings - the proceeds of the sale of the thing, less such costs incurred by the Commonwealth in respect of the thing as the court considers appropriate; or

(b) if the thing has been disposed of (except by sale) or destroyed before the end of the proceedings - the market value of the thing at the time it was disposed of or destroyed, less such costs incurred by the Commonwealth in respect of the thing as the court considers appropriate.

261I Dealing with thing after it is condemned

If the thing is condemned as forfeited to the Commonwealth, the thing must be dealt with or disposed of in accordance with the directions of the Secretary.

Subdivision D - Operation of Division

261J Operation of Division

Sections 245G, 260 and 261 do not limit the operation of this Division.

Subdivision E - Minister's order that a thing not be condemned as forfeited

261K Minister's order that a thing not be condemned

(1) A power of the Minister under this Division to give a written order that a thing is not to be condemned as forfeited must be exercised by the Minister personally.

(2) The Minister does not have a duty to consider whether to exercise such a power in respect of any thing, whether the Minister is requested to do so by any person, or in any other circumstances.

(3) If the Minister makes an order under this Division that a thing is not to be condemned as forfeited, he or she must cause to be laid before each House of the Parliament a statement that sets out:

(a) the order; and

(b) the Minister's reasons for making the order.

(4) A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days of that House after:

(a) if the order is made between 1 January and 30 June (inclusive) in a year - 1 July in that year; or

(b) if the order is made between 1 July and 31 December (inclusive) in a year - 1 January in the following year.