Aco & Ors v The Queen - [2008] NTSC 33

Aco & Ors v The Queen [2008] NTSC 33
PARTIES:ACO; RIDWAN; DULAH; FERNANDES; BOGAS (aka Ade); CECEP (aka Sulaiman); FICKHAR; SAHRING;

SEMARANI, Arifin; MUSLIMIN; DOKENG, Dewa (aka Muhamed Deokeng); ROSSI, William;
v
THE QUEEN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NOS:20813785; 20813800; 20813781; 20813798; 20814959; 20814958; 20815194; 20816020; 20814551; 20814583; 20814240; 20814541
DELIVERED:  29 August 2008
HEARING DATE:  21 August 2008
JUDGMENT OF:  RILEY J
CATCHWORDS:

INTERNATIONAL LAW – Statutory construction - fishing for sedentary species (trepang) – laws of Australia – Indonesian Exclusive Economic Zone
Fisheries Management Act 1999 (Cth)
Seas and Submerged Lands Act 1973 (Cth)
Polites v Commonwealth (1945) 70 CLR 60
Minister for Immigration and Ethnic Affairs vTeoh (1995) 183 CLR 273

United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS, (entered into force 16 November 1994)
Treaty between the Government of Australia and the Government of the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea, opened for signature 12 January 2006, [2007] ATS 12 (entered into force 23 February 2007)
Timor Sea Treaty, opened for signature 20 May 2002, [2003] ATS 13 (entered into force 2 April 2003)
REPRESENTATION:
Counsel:
Applicants Aco, Ridwan, Dulah,
Fernandes, Sahring, Bogas,
Cecap and Fickhar:  A Wyvill
Applicants Semarani, Muslimin,
Dokarni and Rossi:  D Dalrymple
Respondent:  P Willee QC and L Taylor
Solicitors:
Applicants:Northern Territory Legal Aid Commission
Respondent:  Commonwealth Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Ril0812
Number of pages:  19

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Aco & Ors v The Queen [2008] NTSC 33

Nos 20813785; 20813800; 20813781; 20813798; 20814959; 20814958; 20815194; 20816020; 20814551; 20814583; 20814240; 20814541

BETWEEN:
ACO; RIDWAN; DULAH; FERNANDES; BOGAS (aka Ade);
CECEP (aka Sulaiman); FICKHAR; SAHRING
ARIFIN SEMARANI; MUSLIMIN; KEWA DOKENG (aka MUHAMED DEOKENG); WILLIAM ROSSI
Applicants

AND:
THE QUEEN

Respondent

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 29 August 2008)

The applicants in these proceedings have been separately charged with offences under s 100(2) and/or s 101(2) of the Fisheries Management Act 1999 (Cth). Their trials have been set for later in the year. A preliminary hearing was conducted for the purpose of dealing with the submission made on behalf of the applicants that, on a true construction of s 12, s 100 and s 101 of the Act, the joint indictment, as particularised by the Commonwealth Director of Public Prosecutions, does not disclose an offence. Other submissions were made in relation to other matters and I will deal with those in the course of these reasons.
The primary issue
It was submitted on behalf of the applicants that, so far as possible, Commonwealth statutes should be construed to ensure they operate in a manner consistent with international law: Polites v Commonwealth[1] and Minister for Immigration and Ethnic Affairs v Teoh[2].
In these cases each of the offences is alleged to have occurred…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aco & Ors v The Queen

Details

AGLC: Aco v The Queen [2008] NTSC 33
Case: [2008] NTSC 33
Decision Date: 29 August 2008

CaseChat Overview and Summary

Aco & Ors v The Queen involved a legal challenge regarding the interpretation of fishing laws in Australia, specifically concerning the fishing of sedentary species such as trepang. The applicants argued that the relevant sections of the Fisheries Management Act were ambiguous and that the boarding of a vessel outside the Australian Fishing Zone (AFZ) was unlawful. The case was heard and decided by the court, which needed to determine whether the statutory provisions were correctly interpreted by the applicants and whether the boarding of the vessel in question was justified.

The primary legal issue was whether the statutory provisions concerning the fishing of sedentary species and the powers of officers to board vessels were narrowly interpreted by the applicants. The applicants contended that the sections should be read in a manner that limited the powers of the officers to board vessels only when there was clear evidence of recent or intended fishing activities within the AFZ. The respondent argued that the provisions should be interpreted more broadly, allowing for the boarding of vessels even when they were outside the AFZ if they were equipped for fishing sedentary species and were on the Australian continental shelf.

The court found that the statutory provisions should not be narrowly interpreted as the applicants suggested. The court held that the relevant sections of the Act, when read together, permitted officers to board vessels that were equipped for fishing sedentary species and were on the Australian continental shelf, even if they were outside the AFZ. This interpretation was deemed to be consistent with the intent of the legislation to protect sedentary species within Australia's jurisdiction. Consequently, the court concluded that the boarding of the vessel in question was lawful and dismissed the applications.

The court's decision clarified the scope of the statutory provisions concerning the fishing of sedentary species and the powers of officers to board vessels. It confirmed that the legislation applied to the entire Australian continental shelf, not just within the AFZ. This interpretation ensures that the laws are effectively enforced to protect sedentary species and maintain the integrity of Australia's fishing regulations.

Orders

Orders of the court

In my opinion s 101 of the Fisheries Management Act, read with s 12 of the Act, should not be narrowly interpreted in the manner for which the applicants contend. I accept the submission of the respondent that the effect of those provisions is that a person will commit an offence if he or she has a foreign boat equipped for fishing for sedentary organisms in his or her possession or charge at a place in or on, or in the waters above, any part of the Australian continental shelf not within the AFZ. In other words s 101 of the Act has, by virtue of s 12, operation on the continental shelf of Australia beyond the AFZ.

For present purposes, and for the reasons expressed, the boarding of the vessel of Mr Semarani has not been shown to be unlawful.

The applications are dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The submission on behalf of the applicant was that the section contained an inherent ambiguity. It was submitted that, if the first reference to AFZ in the section is understood as meaning "waters above the Australian continental shelf outside the AFZ", that should not automatically lead to a translation of the second reference to AFZ in the same way. It was submitted that it was arguable that the extended power is only exercisable where a boarding officer comes across a vessel in waters outside the AFZ above the Australian continental shelf equipped for gathering sedentary organisms from the seabed and where the officer forms a view that the vessel has either recently been used for fishing in the AFZ or is about to be used for fishing in the AFZ. However, as the respondent points out, the submission treats the parts of s 84(1)(a) as being conjunctive whereas they are, in fact, disjunctive. The section provides power to an officer to board a boat in the AFZ, in Australia or an external territory. It also gives a power to an officer to board a boat that the officer has reasonable grounds to believe has been used, is being used, or is intended to be used, for fishing in the AFZ. No relevant ambiguity arises.Conclusions In my opinion s 101 of the Fisheries Management Act, read with s 12 of the Act, should not be narrowly interpreted in the manner for which the applicants contend. I accept the submission of the respondent that the effect of those provisions is that a person will commit an offence if he or she has a foreign boat equipped for fishing for sedentary organisms in his or her possession or charge at a place in or on, or in the waters above, any part of the Australian continental shelf not within the AFZ. In other words s 101 of the Act has, by virtue of s 12, operation on the continental shelf of Australia beyond the AFZ. For present purposes, and for the reasons expressed, the boarding of the vessel of Mr Semarani has not been shown to be unlawful. The applications are dismissed.

Ratio Decidendi

Legal Principle Established

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