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.