Case: Silk Bros. Proprietary Limited v State Electricity Commission of Victoria [1943] HCA 2 ; (1943) 67 CLR 1
Outcome: followed
considerations apply to the heading of Division 13A of Part 2 of the Migration Act which also contains the word 'offences.' Pursuant to s 13(1) of the Acts Interpretation Act a heading of a Division is part of the Act. In Silk Bros. Proprietary Limited v State Electricity Commission of Victoria [1943] HCA 2 ; (1943) 67 CLR 1 , Latham CJ said at 16: The headings in a statute...can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision... "But where the enacting words are clear and unambiguous, the title, or headings, must give way, and the full effect must be given to the enactment" ( Bennett v. Minister for Public Works (N.S.W.) [1908] HCA 50 ; (1908) 7 C.L.R. 372 at 383). The Court finds that there is no ambiguity in the text of s 261A. The section speaks of the contravention of the Migration Act as a whole. Ambiguity might arise when that section is read with the heading to the Division, but as observed by Latham CJ, the headings may provide guidance only when the provision itself is ambiguous. Following from the finding that the provision is unambiguous the text of the heading must give way. It may be assumed that if Parliament had intended automatic forfeiture to occur only where 'offences' existed, it would have been a simple matter for the draftsperson to have so provided, taking into consideration the choice of the word 'offences' in the heading of Division 13A of Part 2. It follows that the operation of the automatic forfeiture provision in s 261A of the Migration Act is not limited only to contraventions of the offence provisions of that Act nor is it dependent upon a conviction for an offence. The Court reiterates its finding at [31] of Tran No 1 . Has there been a contravention of the Migration Act ? As has been outlined in [18]-[20] of this judgment, ordinarily the Court cannot revisit a previous judgment that it has made. In Tran No. 1 at [31] the Court found that the Migration Act had been contravened by the applicant. However, a reading of that paragraph also records that the Court provided such answer within the context of a submission by the applicant that 'contravention' in s 261A should be made to be equated with 'offence' in order to enliven an automatic forfeiture. This Court, as stated at [33] of this judgment, finds that the word 'contravention' in s 261A means contravention of the Migration Act generally and not only of the offence provisions, and that contravention is not to be interpreted as being confined to conviction for an offence. The applicant has made a different submission at the subsequent hearing. The applicant now submits that, as a consequence of the acquittals or discontinuance of actions against the applicant, Mr Lai and Mr Nguyen, the automatic forfeiture never took place because the facts giving rise to automatic forfeiture under s 261A , namely contravention of the Migration Act , were never present. Such a submission does not depend on contravention being equated to an offence, nor to conviction of an offence. As was stated at [30]-[31] of Tran No. 1 , following the decision of French J in Olbers , for the automatic forfeiture to arise the Court ' must be satisfied to a high degree of probability ' that contraventions of the Migration Act exist. In Tran No. 1 the Court stated that it was so satisfied but only in the narrow context of that which was submitted relating to the meaning of the word contravention. The new submissions justify the Court considering the new submissions separately to the decision already made even though a different interpretation of the same facts may result in a conclusion incompatible to the answers already given in Tran No. 1 .