Tran v The Commonwealth

(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;

(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:

(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

(c) is a non‑citizen who is eligible for a special category 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:

(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:

(iii) would, when entering Australia, be the holder of a special purpose 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:

(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

(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:

(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:

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

(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

(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.

(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

(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;

(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.

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.

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, 3rd 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.

(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.

(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:

(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.

(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:

(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.

(a) that the ship has been destroyed under subsection (3) or (4); 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).

(7) A failure to give a notice under this section does not affect the validity of the ship's destruction.

(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

(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

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).

(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

(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.

(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.