This article will cover ‘dealing with things seized as automatically forfeited’ under the Migration Act 1958. Section 261A of the Migration Act states forfeiture provisions under the law. It specifies that certain items such as vessels, vehicles, and equipment, can be forfeited to the Commonwealth. This is true if parties used them in a contravention of the Act within Australia.
The contravention must relate to the bringing or entry of unlawful non-citizens into Australia. However, there is an exception to forfeiture. If a person was using a vessel in contravention in the course of a regular public transport operation at the time, they will not need to forfeit it to the Commonwealth. This is true if:
- Both the master and the owner of the vessel were unaware; and
- Both the master and the owner of the vessel could not reasonably have known about its use in the contravention.
The section also provides definitions.
“Regular public transport operation” refers to an operation of a vessel that:
- Provides a service for a fee
- Follows fixed schedules and routes to or from fixed terminals, and
- Is available to the general public on a regular basis
Read on to know more about different provisions about dealing with things seized as automatically forfeited.
Section 261B and 261C: Seizure of Things Used in Certain Offences
Section 261B about ‘dealing with things seized as automatically forfeited’ outlines the powers of an authorised officer to seize items within Australia. It states that an authorised officer has the authority to seize a thing in Australia or can issue an order for another officer to seize a thing in Australia under two circumstances:
- The thing is already forfeited under section 261A.
- The authorised officer has a reasonable suspicion that the thing is forfeited under section 261A.
If an authorised officer orders another officer to seize a thing, that officer has the power to carry out the seizure. Section 261C about ‘dealing with things seized as automatically forfeited’ deals with rules about a thing that an officer seizes under Section 261B. According to the Act, the term “officer” refers to:
- An officer of the Department, excluding officers specifically designated by the Minister in writing for this purpose.
- A person who holds officer status under the Customs Act 1901, except those specifically designated by the Minister in writing for this purpose.
- A person who serves as a protective service officer under the Australian Federal Police Act 1979, except those specifically designated by the Minister in writing for this purpose.
- A member of the Australian Federal Police or a police force of a State or an internal Territory.
- A member of the police force of an external Territory.
- A person who has received written authorisation by the Minister to act as an officer for the purposes of this Act.
- Any person who falls within a designated class of persons authorised in writing by the Minister to act as officers for the purposes of this Act. This includes individuals who become part of the class after the issuance of authorisation.
Section 261D: Notice of Seizure
Section 261D about ‘dealing with things seized as automatically forfeited’ outlines the requirements for providing notice of the seizure of a thing. It also includes the subsequent actions that the owner or possessor of the seized item can take. Here’s a breakdown of what it means:
- The officer who seizes the thing must provide written notice of the seizure to the owner. If the officer cannot identify the owner after a reasonable injury, the officer must provide notice to the person who had possession, custody, or control of the thing its seizure.
- If it is not convenient to give the notice in person, the officer may affix the written notice to a noticeable part of the seized thing.
- The notice must include the following information:
- Identification of the seized thing;
- A statement that the thing has been seized;
- Specification of the reason for the seizure; and
- Indication of the address of the Secretary or Australian Border Force Commissioner
According to Section 261D about ‘dealing with things seized as automatically forfeited’, the notice must also include a declaration that the thing will be condemned as forfeited unless:
- The owner or person who had possession, custody, or control of the thing makes a claim within 21 days to the Secretary or Australian Border Force Commissioner; or
- The Minister issues a written order within 21 days stating that the authorities are not condemn the thing as ‘forfeited.’
Section 261D: Additional Provisions
Section 261D about ‘dealing with things seized as automatically forfeited’ also has additional provisions. According to this Section, Section 261F stipulates that authorities will condemn the thing as forfeited if not claimed within 21 days. This is true unless the Minister issues an order preventing the condemnation.
Section 261H states that the thing will be condemned if a claim is made but the claimant does not obtain a court order supporting the claim. This is true unless the Minister issues an order preventing the condemnation. A claim made under Section 261D subparagraph (3)(d)(i) must fulfil the following requirements:
- It must be in writing.
- It must be in English.
- It must provide an address for service for the claimant.
261E: Dealing With Thing Before It Is Condemned
Section 261E about ‘dealing with things seized as automatically forfeited’ explains the authority of the Secretary or Australian Border Force Commissioner. These two should take action regarding the disposal of a seized thing on behalf of the Commonwealth. Here’s a breakdown of what it means:
1. The Secretary or Australian Border Force Commissioner, representing the Commonwealth, has the power to arrange for the disposal or destruction of the seized thing under certain circumstances, which are:
- If the custody or maintenance of the thing creates significant difficulties.
- If the expenses associated with its custody or maintenance, from the time of seizure until condemnation, are likely to exceed its value.
2. If the Secretary or Australian Border Force Commissioner decides to dispose of the thing, they may impose specific conditions for the disposal.
Our Migration and Immigration Lawyers
There are many more sections in the Migration Act that require legal assistance. Hence, it’s important for people to seek legal advice from our migration and immigration lawyers about these sections. We at JB Solicitors can:
- Give a clear understanding of the provisions and requirements
- Help comply with migration and immigration laws
- Protects the rights and interests of our clients
- Provide procedural guidance, and mitigates risks and liabilities
Contact us today if you want to know more about dealing with things seized as automatically forfeited under the Migration Act.
