Aregar v Cox - [2018] NTCA 3

CITATION:Aregar v Cox [2018] NTCA 03

PARTIES: AREGAR, Sarkawia

v
COX, Jamie

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:AP 10 of 2015 (21421576)
DELIVERED:  13 April 2018
HEARING DATES:  6 April 2016, 13 July 2017, 27 February 2018 and 21 March 2018
JUDGMENT OF:  SOUTHWOOD, KELLY and BLOKLAND JJ
CATCHWORDS:
CRIMINAL LAW – Appeal against conviction – offences against the
Fisheries Management Act 1991 (Cth) – whether prosecution proved
the boundary of the Australian Fishing Zone (AFZ) – construction of
Proclamation made under s 10B of the Seas and Submerged Lands Act 1973
(Cth) – Proclamation declaring the Exclusive Economic Zone comprises (a)
lines that are 200 international nautical miles seaward of baselines subject to
(b) where any line specified in the Schedule is less than 200 nautical miles
seaward of the baselines – discussion of the terms of the Proclamation –
held – necessary for prosecution to prove line specified is less than 200
nautical miles – by majority appeal allowed.
CRIMINAL LAW – Appeal against conviction – offences against the
Fisheries Management Act 1991 (Cth) – Proclamation made under s 10B of
the Seas and Submerged Lands Act 1973 (Cth) – approach taken to
interpretation of Proclamation – relevance of rules of statutory interpretation
– Proclamation to be interpreted to give effect to its object and purpose.
CRIMINAL LAW – Appeal against conviction – offences against the
Fisheries Management Act1991 (Cth) – evidentiary Certificate issued under
s 166(2) of the Fisheries Management Act 1991 (Cth) – effect of Certificate
– Certificate prima facie evidence of the matters stated in it – prosecution
not required to prove underlying facts – approach to be taken to Certificate
evidence – whether Certificate should have been admitted – whether
delegation of officer signing Certificate should be produced – grounds of
appeal relevant to objections taken to the Certificate dismissed.

CRIMINAL LAW – Appeal against conviction – offences against the
Fisheries Management Act1991 (Cth) – averment of prosecutor included in
information under s 166(1) of the Fisheries Management Act 1991 (Cth) – whether “near” position defined by coordinates expressed with sufficient
particularity – approach to be taken to averments discussed.
CRIMINAL LAW – Appeal against conviction – offences against the
Fisheries Management Act 1991 (Cth) – evidence – whether GPS evidence
satisfies the requirements of s 146 of the Evidence (National Uniform
Legislation) Act 2011 (NT) – whether displaced common law presumption –
GPS evidence admissible.
CRIMINAL LAW – Appeal against conviction – offences against the
Fisheries Management Act 1991 (Cth) – evidence of missions system
specialist – whether properly regarded as an expert witness – whether
opinions given based on inadmissible hearsay – expert opinion on GPS
evidence admissible.
CRIMINAL LAW – Appeal against conviction – offences against the
Fisheries Management Act 1991 (Cth) – s 9.2 of the Commonwealth
Criminal Code – whether defence of honest and reasonable mistake open –
inadvertence distinguished from mistake – not open on the evidence as a
reasonable possibility – ground of appeal dismissed.
CRIMINAL LAW – Appeal against conviction – offences against the
Fisheries Management Act 1991 (Cth) – evidence – Evidence (National
Uniform Legislation) Act s 144 – judicial notice of matters of common
knowledge and knowledge capable of verification by reference to a
document the authority of which cannot reasonably be questioned – whether
permissible for Court to have recourse to the Memorandum of
Understanding, Provisional Fisheries Surveillance and Enforcement Line
and a previous decision of the Court under s 144 – held by majority not
permissible to refer to those materials.
CRIMINAL LAW – Appeal against conviction – offences against the
Fisheries Management Act 1991 (Cth) – statutory interpretation – parties
agreed interpretation of provision – does not prevent a Court from adopting
interpretation it considers correct.
CRIMINAL LAW – Appeal against conviction – offences against the
Fisheries Management Act 1991 (Cth) – whether permissible for Court to
re-open proceedings – procedural fairness to parties – objection raised to
Court reopening proceedings dismissed – proceedings re-opened.
Acts Interpretation Act 1901 (Cth) s 2B, s 13(i)
Criminal Code Act 1995 (Cth) s 9.2, s 13.3(3), s 13.3(6)
Evidence (National Uniform Legislation) Act 2011 (NT) s 59, s 60(1), s 69,
s 136, s 144, s 146
Fisheries Management Act1991 (Cth) s 4, s 7, s 166(1), s 166(2), s 166(7),
s 66(8)
Legislation Act 2003 (Cth)
Legislative InstrumentsAct 2003 (Cth)
Maritime Legislation Amendment Act 1994 (Cth)
Seas and Submerged Lands Act1973 (Cth) s 3(1), s 3(2A), s 10B
Seas and Submerged Lands (Territorial Sea Baseline) Proclamation
2006
Seas and Submerged Lands Proclamation 1994
Seas and Submerged Lands Amendment Proclamation 2004 (No.1)
Seas and Submerged Lands Amendment Proclamation 2005 (No.1)
United Nations Convention on the Law of the Sea [Australian Treaty Series
1994 No 31], Arts. 15, 55, 57, 74
Vienna Convention on the Law of Treaties, Art. 31.1
AB Oxford Cold Storage Co Pty Ltd v Arnott (2005) 11 VR 298; Accident
Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987]
VR 529; Aregar v Australian Fisheries Management Authority [2015] NTSC
61; Australian Communication Exchange v Deputy Commissioner of
Taxation (2003) 77 ALJR 1806; Australian Fisheries Management Authority
v Su (2009) 176 FCR 95; Benbrika v R (2010) 29 VR 593; Bloemen v The
Commonwealth (1975) 49 ALJR 219; Charlton v Rogers; Ex parte Charlton
(1985)20 A Crim R 238; Chiou Yaou Fa v Morris (1987) 27 A Crim R 342;
Coal and Allied Operations Pty Ltd v Australian Industrial Relations
Commission (2000) 203 CLR 194; Coleman v Power (2004) 220 CLR 1;
Collector of Customs v Agfa Gevert Ltd (1996) 186 CLR 389;
Commonwealth v Baume (1905) 2 CLR 405; Coulton v Holcombe (1986) 162
CLR 1; CTM v R (2008) 236 CLR 440; Dillon v The Queen [1982] AC 484;
Douglass v The Queen [2010] HCA 34; Fox v Percy (2003) 214 CLR 118;
Gallagher v Cendak [1988] VR 731; Hindrum v Lane [2014] TASFC 5;
Impagnatiello v Campbell [2003] VSCA 154; Kauri v Malagorski [2011]
NTSC 17; Klein v Minister of Education (2007) 81 ALJR 582; Li Chia
Hsing v Rankin (1978) 141 CLR 182; Libke v The Queen (2007) 230 CLR
559; M v The Queen (1994) 181 CLR 487; Maloney v The Queen (2013) 252
CLR 168 Maritime Delimitation in the Black Sea (Romania v. Ukraine)
(Judgement) [2009] ICJ Rep 62; Maritime Delimitation in the Caribbean Sea
and the Pacific Ocean (Costa Rica v Nicaragua) and Land Boundary in the
Northern Part of Isla Portillos (Costa Rica v. Nicaragua) (Judgement)
(International Court of Justice, General List Nos. 157 and 165, 2 February
2018); Mehesz v Redman (No 2) (1980) 26 SASR 244; Metropolitan Gas Co
v Federated Gas Employees’ Industrial Union (1924) 35 CLR 449; Ministry
of Agriculture and Fisheries v Wallace [1998] DCR 837; North Sea
Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal
Republic of Germany/Netherlands) (Judgement) [1969] ICJ Rep 3; Norville
v Stokes [2006] NSWLEC 622; O’Brien v Komesaroff (1982) 150 CLR 310;
Penrose v Nominal Defendant and Anor [2009] NSWSC 1187; Porter v
Kolodzeij [1962] VR 75; PQ v Australian Red Cross Society [1992] 1 VR
19; Prior v Mole [2015] NTSC 65; R v Hush; Ex parte Devanny (1932) 48
CLR 487; R v Potter [2015] TASSC 44; Redman v Klun (1979) 20 SASR
343; Saif Ali v Sydney Mitchell & Co (A Firm) [1980] AC 198; Suttor v
Gundowda Pty Ltd (1950) CLR 418; Trust Co of Australia Ltd v The Valuer-
General (2007) 154 LEGRA 437; Tucci v VCAT (2010) 33 VAR 206; United
States of America v Brooks, 715 F 3d 1069 (8^th Cir, 2013); University of
Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Von Lieven v Stewart
(1990) 21 NSWLR 52; Warren v Coombes (1979) 142 CLR 531; Water
Board v Moustakas (1988) 180 CLR 491; Whelpton v Ku-Ring-Gai Council
(1994) 85 LEGRA 120; Wilgosh v Good Spirit Acres Ltd [2007] SKCA 43;
Woodcrest Homes Pty Ltd v Fair Trading Tribunal [2002] NSWSC 552.
REPRESENTATION:
Counsel:
Appellant:A Wyvill SC
Respondent:  G Lynhem
Solicitors:
Appellant:Ward Keller
Respondent:  Commonwealth Director of Public Prosecution
Judgment category classification:    A
Number of pages:  166

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Aregar v Cox [2018] NTCA 03

No. AP 10 of 205 (21421576)
BETWEEN:

SARKAWIA AREGAR

Appellant

AND:

JAMIE COX

Respondent

CORAM: SOUTHWOOD, KELLY & BLOKLAND JJ
REASONS FOR JUDGMENT
(Delivered 13 April 2018)
SOUTHWOOD J:
Introduction

The appellant is an Indonesian commercial fisherman. It was alleged he and the foreign vessel he was using for fishing made three unlawful incursions into the Australian fishing zone in the Timor Sea on 18, 20 and 21 April 2014 respectively. The foreign vessel was spotted by an Australian surveillance aircraft. For each incursion the appellant was charged on information in the Court of Summary Jurisdiction at Darwin with two offences: (1) using a foreign vessel, the Linggar Petak 69, for commercial fishing contrary to s 100(2) of the Fisheries Management Act 1991 (Cth); and (2) being in charge of a foreign vessel equipped for fishing contrary to s 101(2) of the Fisheries Management Act 1991 (Cth).
He went to trial and was acquitted of the charges for the alleged incursions on 20 and 21 April 2014 (charges 1, 2, 5 and 6 respectively) but found guilty of the charges for the incursion on 18 April 2014 (charges 3 and 4). On 27 April 2015, he was convicted of counts 3 and 4 and fined $2,000 and $3,000 respectively.
The appellant appealed against his convictions to the Supreme Court. On 17 September 2015, his Honour Hiley J dismissed the appeal. The appellant has then appealed to this Court. The appellant contends the verdicts of the trial Magistrate are unreasonable and not supported by the evidence tendered at the trial. It is claimed the respondent failed to prove beyond reasonable doubt that the appellant and the foreign vessel were in the Australian fishing zone. This was because there was no evidence at trial which established the position of that part of the outer boundary of the zone which the appellant was found to have entered was 200 nautical miles (200M), or less, seaward of the relevant territorial sea baselines. As the respondent failed to prove the position of the outer boundary of the zone, the respondent could not prove beyond reasonable doubt that the appellant and the foreign vessel entered the zone.
The outer boundary of the Australian fishing zone is the same as the outer boundary of Australia’s exclusive economic zone. The exclusive economic zone is a maritime zone beyond and adjacent to Australia’s territorial sea which shall not extend beyond 200M from the baselines from which the breadth of the territorial sea is measured. Section 4 of the Fisheries Management Act 1991 (Cth) states that the Australian fishing zone means the waters adjacent to the coast of Australia within the outer limits of the ‘exclusive economic zone’ but does not include coastal waters of, or waters within the limits of, a State or internal Territory; or waters that are excepted waters.
The outer boundary of Australia’s exclusive economic zone was declared by the Governor-General in the Proclamation under Seas and Submerged Lands Act 1973 made on 1 August 1994 under s 10B of the Seas and Submerged Lands Act 1973 (Cth) (the Proclamation). The Proclamation contains a Schedule. Item 2 of the Schedule specifies the boundary delimitation lines for the exclusive economic zone in the Timor and Arafura Seas. The respondent relied on the lines between coordinate points w, x and y, which are in Item 2, to establish the outer boundary of the part of the Australian fishing zone the appellant entered on 18 April 2014.
The respondent’s case at trial
The respondent sought to prove the prosecution case in the Court of Summary Jurisdiction by (1) proving the coordinates of the position of the Cobham Aviation Services surveillance aircraft VHZZA at the time it flew past the foreign vessel and made an on-top fix, which gave a GPS readout of the position of the aircraft, this position was designated point ‘a’; (2) proving that point ‘a’ was in the Australian fishing zone by certifying under s 166(2) of the Fisheries Management Act 1991 (Cth) that point ‘a’ was in the Australian fishing zone; (3) calculating and proving the distance between point ‘a’ and the foreign vessel at the time of the on-top fix; (4) plotting on a map point ‘a’, and the lines w – x – y, the coordinates for which were taken from the coordinates for the lines specified for the Timor and Arafura Seas in item 2 of the Schedule to the Proclamation; and (5) calculating the distance between point ‘a’ and the closest point on the line w – x – y. Point ‘a’ was calculated to be approximately 815 metres inside (landward of) the closest point on the lines w – x – y. The foreign vessel was calculated to be 135 metres from point ‘a’ when the on-top fix was made. The respondent averred that the foreign vessel was “near” point ‘a’. So it was said, that even if the foreign vessel was between point ‘a’ and the closest point on the line w – x – y when the on-top fix was made, it was established that the foreign vessel was well within the exclusive economic zone and therefore well within the Australian fishing zone. This method of proof assumes the whole of the lines w – x – y are part of the outer boundary of the exclusive economic zone.
If the whole of the lines w – x – y are part of the outer boundary of the exclusive economic zone, such a method of proof is an acceptable way of proving that the foreign vessel was inside the Australian fishing zone.[1]
The appellant contests the respondent’s method of proof on the following grounds. The evidence relied on by the respondent does not support the conclusion that the foreign vessel was inside the Australian fishing zone. There is a gap in the evidence. The respondent could not simply rely on the lines w – x – y as constituting the relevant part of the outer boundary of the exclusive economic zone. This is because subparagraph (b)[2] of the Proclamation expressly states that it is only those parts of the specified lines which are less than 200M seaward of the relevant baselines that are part of the outer limits of the zone. It was therefore necessary for the prosecution to prove that the lines w – x – y, or the relevant parts of those lines, were less than 200M seaward of the relevant baselines. The text of subparagraph (b), not the evidence tendered at trial, creates a reasonable possibility that the lines w – x – y are not less than 200M seaward of Australia’s territorial sea baselines. The evidence must also establish that the foreign vessel was inside (landward) of the lines w – x – y. Therefore, the appellant submits, the prosecution case must fail because there was no evidence which identified any parts of the lines w – x – y as being less than 200M seaward of the relevant baselines. Further, there was no other evidence which established the foreign vessel was at a position that was less than 200M seaward of the territorial sea baselines.
The main issues in the appeal
There are two key questions which must be resolved by the Court in this appeal. First, was the respondent entitled to rely on the lines w – x – y specified in the Schedule to the Proclamation without tendering evidence which proved the lines were 200M or less seaward of the relevant territorial sea baselines? This question involves the interpretation of s 10B of the Seas and Submerged Land Act 1973 (Cth) and the Proclamation. Second, was the evidence at trial reasonably capable of supporting a finding that the appellant and the foreign vessel were in the Australian fishing zone at 18.55 CST on 18 April 2014? This question involves a consideration of the whole of the evidence which was tendered at trial, and a consideration of whether the lines relied on by the respondent as the outer boundary were part of the outer boundary of the zone.
In my opinion, the answer to both questions is yes. As to the first question, it is apparent from the text of subparagraph (b) of the Proclamation that it is only those parts of the lines specified in the Schedule to the Proclamation that are 200M, or less, from the relevant territorial sea baselines which delineate the outer boundary of the exclusive economic zone. Nonetheless, the purpose of the lines specified in the Schedule is to delineate the outer boundary of the exclusive economic zone in accordance with the international law of the sea and the United Nations Convention on the Law of the Sea (Law of the Sea Convention). Consequently, it may be inferred that a very vast part of the total length of the lines specified in the Schedule will be within the declared limits. Otherwise the declaration of the outer boundary of the exclusive economic zone would be unworkable. It is anomalous for any part of the specified lines to be beyond the declared limits. There is no evidence at all to suggest that the whole of the lines specified for Timor and Arafura Seas in the Schedule to the Proclamation are not part of the outer boundary of Australia’s exclusive economic zone. I would dismiss the appeal. I am satisfied the evidence tendered in the Court of Summary Jurisdiction is capable of proving, and proved, that the appellant and the foreign vessel were in the Australian fishing zone at 18.55 CST on 18 April 2014.
The United Nations Convention on the Law of the Sea
Australia has ratified the Law of the Sea Convention which lays down a comprehensive regime of law, and establishes rules for the management of resources for the world’s oceans and seas. The Law of the Sea Convention was opened for signature on 10 December 1982 in Montego Bay, Jamaica. Article 308 of the Law of the Sea Convention provides that the convention shall enter force 12 months after the date of the sixtieth instrument of ratification or accession. That occurred on 16 November 1994. The convention is relevant to the determination of the first question referred to at [9] above. Parts II, V and VI of the Law of the Sea Convention are part of Seas and Submerged Lands Act. They are contained in the Schedule to the Act.
Part V of the Law of the Sea Convention contains provisions which govern the exclusive economic zone. Articles 55, 57 and 74 of the convention state the following.
Article 55
Specific legal regime of the exclusive economic zone
The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.
Article 57
Breadth of the exclusive economic zone
The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.
Article 74
Delimitation of the exclusive economic zone  between States with opposite or adjacent coasts
1.       The delimitation of the exclusive economic zone between the States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.
2.       If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.
3.       Pending agreement as provided for in paragraph 1, the States concerned in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final determination.
4.       Where there is an agreement in force between the States concerned, questions relating to the delimitation of the exclusive economic zone shall be determined in accordance with the provisions of that agreement.

The effect of Part V of the Law of the Sea Convention is that the States who have ratified the convention recognise that coastal States may exercise certain functional and jurisdictional rights that are sovereign in nature over their exclusive economic zones, which is an area of the seas and oceans beyond and adjacent to the territorial sea, subject to a specific legal regime which is established by the convention. The rights, jurisdiction and duties of the coastal State are set out in Article 56 of the convention. Broadly, the outer boundary of the exclusive economic zone is a line that is 200M from the baselines from which the breadth of the territorial sea is measured. However, the States participating in the various United Nations Conferences on the Law of the Sea recognised that because of the extensive breadth of the exclusive economic zone and the proximity of neighbouring States with opposite or adjacent coasts issues of delimitation would arise. Article 74 of the Law of the Sea Convention was inserted into the convention to provide a mechanism for resolving any potential delimitation matters or disputes.
The main mechanism for resolving delimitation matters is set out in Article 74.1 which, as is set out above, states, “the delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law … in order to achieve an equitable solution (emphasis added)”. That is, in the circumstances referred to in Article 74, the boundary between the States respective exclusive economic zones are to be determined (effected) by agreement. If agreement cannot be reached, the States must resort to the procedures provided by Part XV of the Law of the Sea Convention.
The guiding principle for the formation of a delimitation agreement for the exclusive economic zone is – the result must be an equitable solution of the delimitation issues. Unlike Article 15 of the Law of the Sea Convention, Article 74 does not prescribe a specific methodology of delimitation but points to the achievement of an equitable solution as the goal of the delimitation. While there is a primacy of the median line method in the delimitation of territorial seas, Article 74 is wholly result oriented. No specific method of delimitation is identified in Article 74. Under Article 74, it is open to the States to choose any method for delimitation in order to arrive at an equitable solution. It has traditionally been considered that delimitation of the exclusive economic zone requires more flexibility than the delimitation of the territorial sea. This is so for the following reasons. Unlike the territorial sea where coastal States have sovereignty, in the exclusive economic zone coastal States have only sovereign rights, jurisdiction and obligations in respect of certain functions and are expected to have due regard to the rights and duties of other States, and conduct themselves in accordance with the Law of the Sea Convention.[3] Further, the potential distorting effects of the equidistance line are more magnified in the more distant exclusive economic zone.[4]
However, over the years an equidistance/relevant (special) circumstances/disproportionality method of delimitation has evolved as a guide for achieving an equitable solution. The first significant case to approach the delimitation of the exclusive economic zone in such a way was Maritime Delimitation in the Black Sea (Romania v Ukraine).[5] In that case the International Court of Justice adopted a three step approach to the delimitation of the exclusive economic zone. In the first stage, a provisional equidistance line is drawn; in the second stage, an examination is carried out to determine whether there are any relevant circumstances requiring adjustment or shifting of that line; and in the third stage, a check is carried out to ensure that there is no disproportionality between the relevant coasts and the relevant areas to be delimited. A similar approach was adopted by the majority of the International Court of Justice in Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v Nicaragua).[6]
The effect of Articles 55, 57 and 74 of the Law of the Sea Convention is that the outer boundary of the exclusive economic zone is a line that is 200M from the territorial sea baselines except where the outer boundary has been effected by a delimitation agreement, in which circumstances the boundary specified in the delimitation agreement prevails. According to ordinary principles of construction, the specific takes precedence over the general. That is, any boundary line that is the product of a delimitation agreement takes precedence over the general outer boundary referred to in Article 57 of the convention. Such an approach to interpretation is consistent with Article 31.1 of the Vienna Convention on the Law of Treaties of 23 May 1969 which states, “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
Shortly before the commencement of the Law of the Sea Convention, Australia passed the Maritime Legislation Amendment Act 1994 (Cth) which has a commencement date of 1 August 1994. The amendment Act extensively amended the Seas and Submerged Lands Act 1973 (Cth) by, among other things, inserting a Preamble, inserting a definition of exclusive economic zone, inserting Division 1A – The Exclusive Economic Zone, and by inserting a Schedule which contains Parts II, V and VI of the Law of the Sea Convention.
In the Second Reading Speech, the then Minister for Justice stated the following.
The purpose of this bill is to complete the process of bringing Australia’s maritime zones into line with those to which Australia is entitled under international law, as reflected in the 1982 United Nations Convention of the Law of the Sea. The bill makes changes to existing law in four principle areas. These are the establishment of rights in an exclusive economic zone, adoption of a revised definition of the continental shelf, assertion of rights in a contiguous zone and adoption of new international legal provisions for the drawing of territorial sea baselines.
The principal legislation to be amended is the Seas and Submerged Lands Act 1973. The bill amends, in a consequential way, a number of other pieces of legislation. At present the Seas and Submerged Lands Act refers to the 1958 Geneva Conventions on territorial sea and continental shelf. References to those conventions are no longer appropriate. In 1982 a new United Nations Convention on the Law of the Sea was adopted and signed by Australia. Australia has not yet ratified the convention. That convention, however, now has 59 ratifications and is likely to enter into force in the near future – it needs 60 ratifications to do so. It is, apart from the provisions relating to mining of the deep seabed, generally accepted as reflective of international law. The government considers that in relation to maritime zones the convention should govern Australian practice [emphasis added].
At present, consultations are taking place under the auspices of the Sectary General of the United Nations with a view to overcoming some of the difficulties that have arisen under the convention in relation to the provisions dealing with deep seabed mining. If these consultations are successful, Australia and other developed States will be in a position to give serious consideration to ratifying the Convention and hence ensuring that it is universally accepted as the law on the subject. It is therefore appropriate, at this time, for Australia to amend its domestic law to bring its practice in relation to maritime zones into conformity with that provided for in the 1982 convention [emphasis added]. As I indicated earlier, Australia considers the maritime zone aspects of the convention to be reflective of customary international law.
Australia has, over the years, gradually asserted its various maritime entitlements under international law. Thus, in 1983 certain territorial sea baselines were proclaimed and in 1990 a 12-nautical mile territorial sea was established in place of the previous three-nautical mile territorial sea. As long ago as 1979 Australia established a 200-nautical mile fishing zone. The current bill completes the process of bringing Australia’s maritime zones up to date. It replaces operative provisions in Commonwealth legislation which refer to the 1958 conventions with references to the 1982 convention.
The bill makes clear that Australia asserts full rights to which it is entitled under international law in a 200-nautical mile exclusive economic zone. […]
[...]
[…] The relevant parts of the 1982 convention are set out in schedule 2 to the bill and will form part of the revised Seas and Submerged Lands Act.
The passage of this legislation reflects the need for Australia with its significant interests as both a coastal and maritime state to position itself to take advantage of developments in the law of the sea. Australia’s actions in this regard will promote further consolidation of coastal and maritime state rights and obligations as set out in the 1982 convention.
At the time of the Second Reading Speech the Minister for Justice also presented the explanatory memorandum for the Maritime Legislation Amendment Bill 1993. The outline of the explanatory memorandum states, among other things, the following.
The Bill completes the process of bringing Australia’s maritime zones into line with those to which Australia is entitled under international law, as reflected in the 1982 Convention on the Law of the Sea.
This Bill amends the Seas and Submerged Lands Act 1973 and a number of other Acts to replace references to the 1958 Territorial Sea and Continental Shelf Conventions with references to comparable provisions in the 1982 Law of the Sea Convention. It also provides for the first time in Commonwealth legislation provisions declaring sovereign rights and jurisdiction in an exclusive economic zone and rights of control in a contiguous zone. It incorporates a new definition of the continental shelf based on that in the 1982 Convention.
The amendments to the Seas and Submerged Lands Act 1973 to deal with the exclusive economic zone and contiguous zone follow the format of the existing provisions of that Act dealing with the territorial sea and continental shelf. This includes provisions for the limits of the various zones to be established by proclamation [emphasis added] and for charts to be issued as prima facie evidence of the limits of such zones.
A number of consequential amendments are made to other Acts to ensure that references to the continental shelf or territorial sea are references to those zones as defined by the Seas and Submerged Lands Act. It is also necessary to amend the description of the picture frame boundary used to determine the offshore adjacent areas for Tasmania and Western Australia. This will ensure that the Petroleum (Submerged Lands) Act and other offshore resources legislation can operate over areas falling within the new definition of the continental shelf.
The Bill does not affect the offshore constitutional settlement.
It is apparent from the second reading speech and the explanatory memorandum that Parliament intended to give full effect to Parts II, V and VI the Law of the Sea Convention.
Seas and Submerged Lands Act 1973
Australia’s exclusive economic zone is now governed by the Seas and Submerged Lands Act 1973.
Subsection 3(1) of the Seas and Submerged Lands Act 1973 states that the exclusive economic zone has the same meaning as in Articles 55 and 57 of the Law of the Sea Convention. The reference to Article 55 of the convention is significant. Article 55 states the exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established by Part V of the Law of the Sea Convention. The legal regime includes Article 74 of the convention is part of the Act.
Subsection 3(2A) of the Seas and Submerged Lands Act 1973 states that a reference to the exclusive economic zone is a reference to that zone so far as it extends from time to time. This subsection contemplates that the outer limits of the exclusive economic zone are not absolutely fixed. In particular, as is stated in the explanatory memorandum for the Maritime Legislation Amendment Bill 1993 (Cth), the purpose of this subsection is to ensure that changes in the relevant baselines will ensure automatic changes to the meaning of the zone in the Seas and Submerged Lands Act 1973 and other Acts which pick up these meanings by cross-reference. Subsection 3(2A) of the Act must also take into account the provisions of Article 74 of the Law of the Sea Convention and any international agreements made in accordance with those provisions of the convention. For example, the outer limits of the zone may soon need to be changed as a result of the Treaty between Australia and the Democratic Republic of Timor-Leste Establishing their Maritime Boundaries in the Timor Sea which was signed on 18 March 2018 but has not been ratified.
Subsection 3(4A) of the Seas and Submerged Lands Act 1973 states “if a proclamation is in force under s 10B, the exclusive economic zone is taken, for all purposes of this Act, to extend to the limits declared by that proclamation.”
Section 10B of the Seas and Submerged Lands Act 1973, which is headed, ‘Limits of exclusive economic zone’, states:
The Governor-General may, from time to time, by proclamation declare, not inconsistently with:
(a)Article 55 or 57 of the Convention; or
(b)any relevant international agreement to which Australia is a party;
the limits of the whole or of any part of the exclusive economic zone of Australia.
It can be seen from the text of s 10B of the Act that the section recognises the two methods by which the outer boundary of the exclusive economic zone may be determined under the Law of the Sea Convention. They are either by application of the outer limit specified in Article 57 or by international delimitation agreement. The section contemplates that the declaration making power of the Governor-General is to be exercised in a manner that does not attempt to override either: (a) the outer boundary specified in Article 57, where that outer limit is applicable, or (b) the outer boundary specified in any international delimitation agreement, where an international delimitation agreement has effected the outer boundary of the exclusive economic zone. In other words, the declaration making power granted to the Governor-General under s 10B of the Act is to be exercised, not inconsistently with the operation of Articles 55, 57 and 74 of the Law of the Sea Convention which is discussed at [17] above. In addition to Article 57, subparagraph (a) of s 10B picks up the legal regime specified by Article 55, and subparagraph (b) of s 10B picks up the provisions of Article 74 and any other relevant international agreement which is in accordance with international law. Where the general outer limit of 200M from the relevant baselines applies, any declaration made by the Governor-General must not be inconsistent with that outer limit; and where an international delimitation agreement has been made between Australia and a neighbouring State, any declaration by the Governor-General must not be inconsistent with any agreed boundary of the exclusive economic zone that is the product of such an agreement. This interpretation of s 10B is supported by the explanatory memorandum for the Maritime Legislation Amendment Bill 1993 which states, “this clause [s 10B] authorises a proclamation to be made defining the limits of the whole or part of the exclusive economic zone. [The proclamation] must not be inconsistent with the relevant provisions of the Law of the Sea Convention or any agreement to which Australia is a party.”
The whole of the outer limits of Australia’s exclusive economic zone, including the outer limits of eight particular parts of the zone,[7] was declared by the Governor-General in the Proclamation which commenced on 1 August 1994. The Proclamation has since been amended on at least two occasions.[8] The eight parts of the outer limits of the zone specified in the Schedule to the Proclamation involve maritime boundaries treaties and other agreements Australia has entered into with Indonesia, Papua New Guinea, Solomon Islands, France (New Caledonia and Kerguelen) and New Zealand, and in the future East Timor.[9] All of which are countries with opposite coasts to mainland Australia, or Australia’s external territories. The agreements delimit and very largely pull back the outer limits of Australia’s exclusive economic zone.
So far as is relevant to this appeal, the Proclamation as amended, and as in force on 25 January 2006, states:
I, WILLIAM GEORGE HAYDEN, Governor-General … acting … under section 10B of the Seas and Submerged Lands Act 1973 and section 4 of the Acts Interpretation Act 1901, declare that, commencing on 1 August 1994:
(a)subject to paragraph (b), the outer limits of Australia’s exclusive economic zone comprise:
(i)the lines that are 200 international miles seaward of the baselines determined by Proclamation under section 7 of the Seas and Submerged Lands Act 1973 for areas of Australia other than its external Territories; and
(ii)in relation to external Territories, the lines that are 200 international nautical miles seaward of the baselines established under international law; and
(b)where any part of a line specified in the schedule is less than 200 international nautical miles seaward of the relevant baselines referred to in paragraph (a), that part of the line so specified forms part of the outer limit of that zone.
The Schedule to the Proclamation is headed, SPECIFIED LINES. It specifies the lines of the outer limits of eight parts (items) of Australia’s exclusive economic zone by reference to coordinate points of latitude and longitude. The Schedule does so for Christmas Island, Timor and Arafura Seas, Torres Strait, Coral Sea (Islands), Norfolk Island/New Zealand, Macquarie Island, Heard Island and the McDonald Islands, and Lord Howe Island.
Of relevance to this appeal, are the lines specified in the Schedule for the Timor and Arafura Seas. The lines start in the west at the point of Latitude 13º15’ South, Longitude 118º 27’ East (a) and ends in the east at the point of Latitude 10º 50’ South, Longitude 139º 12’ East (zzf). The lines between the coordinate points w (Latitude 11º 31’ South, Longitude 126º 00’ East), x (Latitude 11º 26’ South, Longitude 126º 12’ East) and y (Latitude 11º 21’ South, Longitude 126º 28’ East) comprise the part of the outer limits of the exclusive economic zone which is the subject of this appeal. The lines w – x – y are located just to the west of the Joint Petroleum Development Area, which is part of the Timor Gap, and run between Australia and West Timor.
The effect of the Proclamation is that the outer limits of the exclusive economic zone and, therefore, the outer limits of the Australian fishing zone, are comprised of lines that are 200M from the territorial sea baselines unless otherwise specified as a result of an international agreement made between Australia and a near neighbour which delimits Australia’s maritime boundary with the other country.
The first question[10] and the interpretation of the Proclamation
The Proclamation is a legislative instrument.[11] It is to be interpreted as if it were an Act of Parliament.[12] Further, the Schedule to the Proclamation is part of the instrument and the declaration of the outer limits of Australia’s exclusive economic zone. It is to be interpreted as if it were a provision of an Act of Parliament. Under s 13(1)(a) of the Legislation Act 2003 (Cth), unless the contrary intention appears, the Acts Interpretation Act 1901 (Cth) applies to the Proclamation as if it were an Act of Parliament. Subsection 13(1) of the Acts Interpretation Act 1901 (Cth) provides that Schedules to an Act are part of the Act.

Consequently, the Proclamation must be read as a whole. The Schedule and each paragraph of the Proclamation must be read as part of the whole instrument.[13] In accordance with the overarching principle, all provisions of the Proclamation are subject to one another. While the task of statutory interpretation must begin with a consideration of the text itself,[14] consideration must be given not only to the text but to the structure and purpose of the Proclamation and to relevant provisions of the Seas and Submerged Lands Act 1973 including the Schedule to the Act which contains Parts II, V and VI of the Law of the Sea Convention.
When the Proclamation is read as a whole, it is apparent that the purpose of the Proclamation is to declare the whole of the outer limits of Australia’s exclusive economic zone, including those parts of the outer limits of the zone which have been delimited by international treaties or provisional agreements. Given the great importance of the sovereign rights which may be exercised in the exclusive economic zone, the importance of managing the resources in the zone, and the obligations imposed on coastal States, it is important that the outer limits of the zone are clearly delineated so that potential boundary disputes with Australia’s near neighbours are avoided and Australia’s sovereign rights are protected.
The interpretation of the Proclamation is complicated because it declares the outer boundary of Australia’s economic zone in two ways, which is to be expected given that Australia is a coastal State with a number of near neighbours with opposite coasts. First, in paragraph (a)(i) and (ii), the Proclamation broadly declares the outer limits of Australia’s exclusive economic zone as lines that are 200M seaward of the relevant baselines. There are two relevant baselines, one for mainland Australia, and one for Australia’s external territories. This is consistent with Article 57 of the Law of the Sea Convention and s 10B(a) of the Seas and Submerged Lands Act 1973. Secondly, the Schedule and paragraph (b) of the Proclamation declare the outer limits of eight specific parts of the outer boundary of the zone. The lines specified in the Schedule delimit and very largely pull back the outer boundary of the exclusive economic zone in accordance international delimitation agreements. This has primarily been done to deal with the problem of overlap between Australia’s exclusive economic zone and the exclusive economic zones of neighbouring States with opposite coasts in an equitable manner. This part of the Proclamation is intended to be in accordance with Article 74 of the Convention and s 10B(b) of the Act. Paragraph (b) of the Proclamation confirms that the parts of the lines specified in the Schedule that are less than 200M seaward of the baselines (also) form part of the outer boundary of the zone thus avoiding conflict with paragraph (a) of the Proclamation.
Both parties have submitted that a strict literal interpretation should be given to paragraph (b) of the Proclamation. They submit that the text paragraph (b) confines the outer boundary of the eight parts of the exclusive economic zone specified in the Schedule, to those parts of the specified lines (the delimited boundaries) which are less than 200M seaward of the baselines. In other words, consistently with Article 57 of the Law of the Sea Convention, which expressly states that the exclusive economic zone shall not extend beyond 200M from the relevant baselines, the delimited boundary lines which are the result of international agreements cannot extend beyond 200M seaward of the relevant baselines. The 200M limit is now a major norm of the law of the sea on which Part V of the Law of the Sea Convention is based. There is considerable force in this submission.
However, it seems to me, that there is also an alternative interpretation of subparagraph (b) of the Proclamation which is to the contrary of the submission of the parties. It is arguable that the literal interpretation is subject to the following criticisms. It is most unusual to unilaterally alter by proclamation the effect international agreements which were negotiated over extensive periods of time for the very purpose of delimiting such maritime boundaries. The literal interpretation does not explain why parts of the delimited boundaries which are not less than 200M seaward of the baselines are included in the Schedule to the Proclamation. The interpretation ignores the provisions of Article 74 of the Law of the Sea Convention, which emphasises flexibility; and it makes it very difficult to determine the precise boundaries that have been declared in the Schedule to the Proclamation. There may be relevant circumstances in cases involving States with overlapping exclusive economic zones and opposite coasts where an equitable solution is best achieved by varying the equidistance line such that in some places the outer boundary of the exclusive economic zone of one State is a agreed to be a greater distance than 200M from the relevant baseline and vice versa in other places.
Further, the interpretation the parties submit must be given to paragraph (b) of the Proclamation would appear to create a conflict or an inconsistency between paragraph (b) and s 10B of the Seas and Submerged Lands Act 1973, and Articles 55 and 74 of the Law of the Sea Convention. The conflict or inconsistency arises in the following way. On the presumption that the lines specified in the Schedule to the Proclamation represent the outer boundary lines of the exclusive economic zone which are the product of equitable and proportionate international delimitation agreements, then those boundary lines are recognised by Articles 55 and 74 of the Law of the Sea Convention, and s 10B(b) of the Act, as the boundary lines which are to be effected by such agreements. They are recognised provided the international delimitation agreements represent an equitable and proportionate solution to any delimitation problems; and there is nothing to suggest that the lines specified in the Schedule to the Proclamation do not. Rather than recognise the outer boundary lines which are the product of international delimitation agreement, and in conflict with such agreements, paragraph (b) of the Proclamation reduces the boundary lines to only those parts of the specified lines which are less than 200M seaward of the relevant baselines. Paragraph (b) does so in circumstances where, under Article 74 of the Law of the Sea Convention, there is no specified method of delimitation for the outer boundary of the exclusive economic zone and the parties are free to agree on an equitable solution, and in the face of international agreements which have been in place for some considerable time.
If there is a conflict or inconsistency between paragraph (b) of the Proclamation and s 10B of the Seas and Submerged Lands Act then, to the extent that there is any inconsistency created by paragraph (b) of the Proclamation, the paragraph would be invalid and of no effect. However, before that conclusion is reached, every endeavour is to be made to save paragraph (b) from invalidity. The words of the Proclamation should be interpreted in such a way that produces the greatest harmony and the least inconsistency.[15]
When paragraph (b) is read in the context of the whole of the Proclamation and consideration is given to the purpose of the Proclamation, it may be said that it is apparent that all paragraph (b) declares is, ‘despite’ the broad declaration in paragraph (a), the lines specified in the Schedule, including those parts which are less than 200M seaward of the baselines, are part of the lines that delineate the whole of the outer limits of Australia’s exclusive economic zone. The reference to “line/s” in paragraphs (a) and (b), and the Schedule of the Proclamation is a reference to the lines which form the same boundary of the maritime zone. Paragraph (b) ends with the words, “that part of the line so specified forms part of the outer limit of that zone.” That is, forms part of “the lines” that define the outer limits of Australia’s exclusive economic zone which include the whole of the lines in the Schedule. Paragraph (b) does not state that the other parts of the specified lines in the Schedule do not. The structure of paragraphs (a) and (b) and the use of the words “subject to” in paragraph (a) is the drafting technique which has been adopted to avoid any doubt about whether those parts of the lines in the Schedule which are less than 200M seawards of the relevant baselines form part of the lines that define the outer limits of this maritime boundary. The structure has been adopted by way of abundant caution to overcome any potential conflict between the broad declaration in paragraph (a) and the lines specified in the Schedule. Such a conflict may well have arisen if the Proclamation simply specified lines in the Schedule without any reference to those parts of the lines which are less than 200M seaward of the baselines.
If the Governor-General intended otherwise, the lines specified in the Schedule would be confined to the precise parts of the lines that are less than 200M seaward of the baselines. To specify more would be otiose. The notion that parts of the outer limits of Australia’s exclusive economic zone which extend over very long distances in the vicinity of Christmas Island, Timor and Arafura Seas, Torres Strait, Coral Sea, Norfolk Island/New Zealand, Macquarie Island, Heard Island and the McDonald Islands, and Lord Howe Island cannot be identified and defined until the necessary calculations and measurements are undertaken and the ‘true’ coordinates determined is unsustainable. It defies common sense and defeats the purpose of the Proclamation. The adoption of such an interpretation of the Proclamation would make the declaration of the outer limits of Australia’s exclusive economic zone at these eight significant, and potentially problematic, maritime boundary positions impractical and unworkable.
Consequently, it may be said that the whole of the lines specified in the Schedule for each of the eight items in the Schedule are part of the declared outer limits of Australia’s exclusive economic zone. Unless demonstrated otherwise, it is to be presumed that the lines specified in the Schedule are consistent with the purpose of the Proclamation, the requirements of s 10B of the Seas and Submerged Lands Act 1973 (Cth), and Part V of the Law of the Sea Convention. There is no reason for it to be otherwise. Effect is to be given to all parts of the Proclamation.
The alternative interpretation is supported by the legal and factual context in which the Proclamation was made. The context includes the provisions of s 10B(b) of the Seas and Submerged Lands Act 1973 (Cth) and Articles 55 and 74 of the Law of the Sea Convention, which contemplate that in circumstances covered by Article 74.1 the outer boundary of the exclusive economic zone is to be effected by international agreement under any equitable method determined by the parties. The context also includes the existence of international delimitation agreements between Australia and other countries, including Indonesia, Papua New Guinea, Solomon Islands, France (New Caledonia and Kerguelen), and New Zealand; the potential for further delimitation of the maritime boundary by further international agreements; the existence of Australia’s external territories; and the close proximity of Australia’s near neighbours including neighbours with territorial sea baselines closer than 400M to Australia’s territorial sea baseline and, therefore, the existence of an overlap between Australia’s exclusive economic zone and the exclusive economic zone of some of its near neighbours.
The context also includes the fact that in 1979 following the commencement of the Fisheries Amendment Act 1978 and by proclamation made under the Fisheries Act 1952 (Cth) Australia declared the outer boundary of the Australian fishing zone to be from 12 to 200M from the baselines by reference to which the territorial limits of Australia were defined, except in circumstances where Australia had entered into a delimitation agreement with another country. In which circumstances, the Act provided the delimitation agreement was to automatically limit the extent of the Australian fishing zone as specified in the agreement. The proclamation was announced on 22 September 1979.[16] That is, a very similar regime to that established by the Maritime Legislation Amendment Act 1994 was in place for the Australian fishing zone before the commencement of that Act, and the previous regime made due allowance for delimitation boundaries established by international agreements in the same manner that Article 74 does under the Law of the Sea Convention.
Finally, it may be said that in order to declare the limits of the whole and, more particularly, eight specific parts of Australia’s exclusive economic zone, the Proclamation does a number of things. First, it specifies the baselines from which the outer limits of the exclusive economic zone are to be determined. Second, the Proclamation adopts the 200M limit specified in the Law of the Sea Convention as the general outer limit of the exclusive economic zone. Third, the Proclamation adopts the delimitation agreements that Australia has made and pulls back the outer limits of the exclusive economic zone in accordance with those agreements and other provisional arrangements. Fourth, it specifies in the Schedule, with great particularity, the lines that define the outer limit of the exclusive economic zone for a number of external territories and for areas of the seas that run between Australia and its near neighbours. In those locations the outer limits of Australia’s exclusive economic zone have been specified in accordance with the relevant international delimitation agreements.
There is also considerable force in the alternative interpretation of paragraph (b) of the Proclamation that I have raised at [38] to [46] above. However, I have not been able to find a decision of the International Court of Justice or any other international tribunal where, in cases involving delimitation matters, it has been acknowledged that either relevant circumstances or matters of proportionality may result in an outer boundary of an exclusive economic zone extending beyond 200M seaward of the relevant baselines. Further, it is important to take account of the historical development of Australia’s maritime boundaries. The history reveals that the expansion of Australia’s maritime boundaries has been slow and conservative and the purpose of international delimitation agreements is to pull back the outer boundary of Australia’s exclusive economic zone to be less than 200M seaward of the relevant baselines. Finally, courts must be convinced that there is an inconsistency before they will be persuaded to act. Without a full analysis of each of the international agreements that have resulted in the eight items in the Schedule to the Proclamation, and on the basis that any part of the specified lines which does not comply with the 200M limit is likely to be an anomaly, I am not so convinced.
In the circumstances, I accept the submissions of the parties about the interpretation to be given to paragraph (b) of the Proclamation. As a result I find that any part of any line specified in the Schedule to the Proclamation which is greater than 200M seaward of the relevant baselines, if any, does not form part of the outer boundary of Australia’s exclusive economic zone.
That said, it has not been shown that any part of the lines in the Schedule to the Proclamation are more than 200M seaward of the relevant baselines. While both of the parties have asserted that parts of the delimited boundary which has been agreed under the Agreement on Marine Delimitation between the Government of Australia and the Government of the French Republic (Agreement on Maritime Delimitation between Australia and France) for the Coral Sea exceed the 200M limit. This has not been established. As is apparent from Article 1 of Agreement on Maritime Delimitation between Australia and France, a number of Australian Islands were involved in the delimitation of the maritime boundary. These islands include what are known as the Coral Sea islands which became an external territory of the Commonwealth in 1969. They have been described as “distant outposts of Australia’s empire”.[17] In addition to Norfolk Island these islands include a number of scattered reefs and islands such as Osprey, Bougainville, Moore and Holmes reefs, Herald and Lihou Cays and Willis Island in the North, and Frederick, Kenn and Saumarez reefs, and Cato Island in the south. As is recognised by subparagraph (a)(ii) of the Proclamation, the outer boundary of the exclusive economic zone for external territories is not measured from the baselines determined by proclamation under s 7 of the Seas and Submerged Lands Act 1973 but is measured from baselines established under international law. This may well have been how the boundary delineated by the specified lines for the Coral Sea in the Schedule to the Proclamation was established. In which case the lines specified in the Schedule to the Proclamation for item 4. Coral Sea may not be more than 200M from the relevant baselines.
The correctness of the adoption of the parties’ interpretation of the Proclamation is further demonstrated by the manner and circumstances in which the Proclamation has been amended from time to time. For example, in 2004 and 2005 the Proclamation was amended by two amending proclamations so as to ensure the outer limits of Australia’s exclusive economic zone were consistent with maritime boundaries that had been agreed between Australia and New Zealand. The relevant amending proclamations are the Seas and Submerged Lands Amendment Proclamation 2004 (No. 1) and the Seas and Submerged Lands Amendment Proclamation 2005 (No. 1).
The Explanatory Statement for Seas and Submerged Lands Amendment Proclamation 2005 (No. 1) states the following.
Section 10B of the Seas and Submerged Lands Act 1973 (the Act) provides that the Governor-General may, from time to time, by Proclamation, declare, not inconsistently with Article 55 or 57 of the United Nations Convention on the Law of the Sea (Law of the Sea Convention), or any relevant international agreement to which Australia is a party, the limits of the whole or of any part of the exclusive economic zone of Australia [emphasis added].
The Proclamation revokes the Seas and Submerged Lands Amendment Proclamation 2004 (No. 1) of 16 December 2004 and declares the outer limits of Australia’s exclusive economic zone consistent with boundaries agreed between Australia and New Zealand [emphasis added].
The exclusive economic zone is a maritime zone that may extend up to 200 nautical miles from the coast of a State and in which the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the living and non-living resources, including those resources on or under the sea bed.
The Australian Minister for Foreign Affairs and his New Zealand counterpart signed the Treaty between the Government of Australia and the Government of New Zealand establishing certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries (the Treaty) on 25 July 2004.
The outer limits of Australia’s exclusive economic zone were first declared in a Proclamation of 26 July 1994. The Seas and Submerged Lands Amendment Proclamation 2004 (No. 1) was made on 16 December 2004. The Proclamation of 16 December 2004 amended the Proclamation of 26 July 1994 to ensure that the outer limit of Australia’s exclusive economic zone in relation to New Zealand is consistent with the Treaty [emphasis added].
The Australian signature text of the Treaty contained five erroneous coordinates in relation to that part of the exclusive economic zone generated by Macquarie Island. These errors also occur in the Proclamation of 16 December 2004. The errors in the Treaty have been rectified by an Exchange of Notes. The Proclamation is required to ensure Australian law reflects the Treaty as rectified [emphasis added].
The Proclamation will commence on the day on which the Treaty enters into force. The Treaty will enter into force when Australia and New Zealand advise each other that their respective requirements for entry into force have been finalised. From Australia’s perspective, the making of Proclamations declaring the outer limits of Australia’s exclusive economic zone and continental shelf in relation to New Zealand is the only action of a legislative nature required before the Treaty can enter into force.
The Proclamation is consistent with Article 55 and 57 of the Law of the Sea Convention (which define and set the limits of the exclusive economic zone).
No public consultation was undertaken in relation to the Proclamation, as it merely makes minor changes to a previous Proclamation.
The Proclamation is a legislative instrument for the purpose of the Legislative Instruments Act 2003.

Paragraph 4 of the Seas and Submerged Lands Amendment Proclamation 2005 (No. 1) states:
Schedule 1 amends the Proclamation made under s 10B of the Seas and Submerged Lands Act 1973 on 26 July 1994 and published in the Gazette on 29 July 1994.
Schedule 1 of the Seas and Submerged Lands Amendment Proclamation 2005 (No. 1) is headed ‘Amendments’. Paragraph [4] of Schedule 1 to the amending proclamation amends item 5 of the Proclamation by substituting new coordinates for the old coordinates defining the line for Norfolk Island/New Zealand. Paragraph [5] of Schedule 1 to the amending proclamation amends item 6 of the Proclamation by substituting new coordinates for the old coordinates defining the line for item 6 – Macquarie Island.
Paragraph [6] of Schedule 1 to the amending proclamation amends the Schedule to the Proclamation by inserting item ‘8   Lord Howe Island’. It does so in the following terms.
[6]     Schedule, after item 7
insert
8       Lord Howe Island
The line:
(a)commencing at the point of latitude 32º 30’ south, longitude 163º 06’ 58.81” east; and
(b)then running clockwise southerly along the geodesic arc of radius 200 nautical miles concave to Lord Howe Island to the point of latitude 33º 52’ 40.25” south, longitude 162º 21’ 59.44” east [emphasis added].
While item 8(b) in the Schedule to the Proclamation expressly incorporates a 200M limit as part of the maritime boundary specified in the Schedule for this location, and this would not be picked up by paragraph (b) of the Proclamation, it is clearly picked up by paragraph (a) of the Proclamation. Significantly, the explanatory memorandum states, “the exclusive economic zone is a maritime zone that may extend up to 200 nautical miles from the coast of a State ….” That is, the declaration is consistent with a maximum outer boundary of 200M seaward from the relevant baselines. It is plain that the intention of the amending proclamation was to specify the parts of the lines resolved the delimitation issues and comply with the 200M maximum limit for the outer boundary of the exclusive economic zone.
However, it does not follow from the interpretation of paragraph (b) of the Proclamation I have adopted that the lines w – x – y are not less than the 200M limit, or that it was necessary for the respondent to tender evidence that established the distance of the lines from the relevant baselines.
The principles governing the resolution of the second question[18]
The main thrust of the appellant’s submissions on the second question is that the alleged gaps, discrepancies and inadequacies in the evidence tendered in the Court of Summary Jurisdiction are such that the guilty verdicts for counts 3 and 4 are unreasonable and cannot be supported having regard to the whole of the evidence. This is clear from what senior counsel for the appellant said at the start of his oral submissions.
Mr Wyvill stated:
Your Honours before I proceed to open part A [of the appellant’s submissions], may I deal with two preliminary matters. The first is the nature of this appeal. May I take your Honours to an authority of your Honour Southwood J of Prior v Mole[19] where your Honour looked at these issues? That is found in our list of authorities as authority number 16, and if I could briefly take your Honours to four paragraphs of that judgment, paragraphs [6], [7], [34] and [35].
So if your Honours have a copy of Prior v Mole, I would invite you to turn to [6] and just invite your Honours to read the extract from Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission[20] which your Honour has quoted at [6]. And then invite your Honours to turn to [7] and to note the same in relation to the plurality’s judgment in Fox v Percy.[21]
And would your Honours then turn forward to [34] and that is in essence the ground that we advance here, that there was not sufficient evidence to satisfy the magistrate beyond reasonable doubt. And we adopt with respect, what your Honour says at [35] on the next page, and particularly invite your Honours to note the application in the case of Justices Appeals to the decision of the plurality in M v The Queen.[22] And for those short reasons we submit that your Honours must, in our respectful submission, examine the evidence afresh to see whether it supports the judgment below [emphasis added].
The ground of appeal that a guilty verdict is unreasonable and cannot be supported having regard to the whole of the evidence was considered by the High Court in M v The Queen.[23] The principles enunciated in that case have been applied by appellate courts on appeal from courts of summary jurisdiction[24] and to cases of trial by judge alone, even if the appeal provisions did not expressly provide such a ground of appeal.[25]
The legal principles which govern the consideration of such a ground of appeal are well established. The question which must be determined is one of fact, to be resolved by the appellate court making its own independent assessment of the evidence.[26] Notwithstanding that there is evidence upon which a trial Judge might have convicted the appellant, the appellate court must nevertheless determine whether it would be dangerous in all the circumstances to allow the verdict to stand. The High Court has stated the question for consideration by the Court is:[27]
[…] whether it was open to the [trial Judge] to be satisfied of guilt beyond reasonable doubt, which is to say whether the [trial Judge] must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the [trial Judge] to be sufficient to preclude satisfaction of guilt to the requisite standard. (Footnotes omitted)
The relevant principles were fully explained by the Victorian Court of Appeal in Benbrika v R[28] as follows.
The approach required of appellate courts in considering a ground which contends that a verdict is “unsafe and unsatisfactory” involves the following steps:
1.the court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the [trial Judge] to be satisfied beyond reasonable doubt that the accused was guilty;
2.in considering that question, the appeal court must bear in mind that the [trial Judge] has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses;
3.in most cases a doubt experienced by an appellate court will be a doubt which a [trial Judge] ought also to have experienced; and
4.it is only where a [trial Judge’s] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice has occurred.
A guilty verdict can only be said to not have been reasonably open to the [trial judge] if there was no aspect of the evidence which obliged – as distinct from entitled – the [trial Judge] to come to a different conclusion. In Libke v R, Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the “unsafe and unsatisfactory” ground:
But the question for an appellate court is whether it was open to the [trial Judge] to be satisfied of guilt beyond reasonable doubt, which is to say whether the [trial Judge] must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the [trial Judge] to be sufficient to preclude satisfaction of guilt to the requisite standard.
In other words, the question posed in M v R, namely, “whether … upon the whole of the evidence it was open to the [trial Judge] to be satisfied beyond reasonable doubt that the accused was guilty”, requires a court of criminal appeal to decide “whether the state of the evidence was such as to preclude a [trial Judge] acting reasonably from being satisfied of guilt to the requisite standard”. The question is whether there was a “solid obstacle to reaching a conclusion beyond reasonable doubt” or whether, instead, “the path to conviction [was] open”.
The evidence about the lines w – x – y and the position of the foreign vessel on 18 April 2014
As I have stated, the appellant’s primary contention about the state of the evidence was that, for textual reasons to do with the interpretation of paragraph (b) of the Proclamation, it was necessary for the prosecution to prove beyond reasonable doubt that the whole of the lines w – x – y were less than 200M from the territorial sea baselines. The possibility that parts of the lines w – x – y may be more than 200M seaward of Australia’s territorial sea baselines was not said by the appellant to arise as a conclusion of fact from any evidence before the Court of Summary Jurisdiction. As his Honour Hiley J stated in the court below,[29] no evidence was introduced which supported such a possibility. The contention was only supported by an assertion that the Agreement on Maritime Delimitation between Australia and France specifies the maritime boundary between New Caledonia and Australia in the Coral Sea by reference to a number of coordinates in the Schedule to the Proclamation that are said to be outside the 200M limit from the territorial sea baselines. On 21 March 2018 senior counsel for the respondent told the Court that the respondent agreed with this assertion. Even if this were correct, which has not been established,[30] that fact would have no application to this case. The anomaly relied on by the appellant, if it exists, arises out of the particular delimitation agreement that was made between France and Australia. The Court was told nothing about the relevant circumstances that gave rise to the ‘expanded’ maritime boundary which was effected by that agreement.
In accordance with M v The Queen, I have reviewed the whole of the evidence. I agree with his Honour Hiley J that the evidence tendered at trial about the position of the foreign vessel establishes that both the foreign vessel and the appellant were in the Australian fishing zone on 18 April 2014. The evidence includes the evidence of Mr Graham Lindsay Porter, Mr Brian Thomas Morgan, Mr Mark Simpson, an Evidentiary Certificate given under s 166(2) of the Fisheries Management Act 1991 (Cth), and two charts being exhibits P23 and P24.
The evidence of Mr Porter was that at 18.55 CST on 18 April 2014 he was on a surveillance flight and he noted a radar contact which indicated that the contact was at a position inside Australia’s exclusive economic zone. On his screen in the aircraft, he was able to bring up certain layers including Australia’s exclusive economic zone and the contact was inside the zone when it first appeared.
Mr Morgan determined the position of the Cobham Aviation Services surveillance aircraft VHZZA and the foreign vessel at 18.55 CST on 18 April 2014. He gave the following evidence. He was an electronic mission coordinator. On 18 April 2014 he was on a surveillance flight on aircraft VHZZA. At 18.55 CST on 18 April 2014 he took a GPS fix of the aircraft’s position by photographing the foreign vessel with a digital camera as the aircraft flew past the vessel. This is referred to as an ‘on-top fix’. The GPS reading reflects the position of the aircraft. It does not reflect the precise position of the foreign vessel. At the time of the on-top fix the aircraft was at point Latitude 11º26’46” South and Longitude 126º11’19” East. This position was designated point ‘a’. Mr Morgan explained that the aircraft was not permitted to fly within a certain distance of the foreign vessel. He calculated that the foreign vessel was less than 135 metres away from the aircraft’s point of Latitude and Longitude when he made the on-top fix. The calculation was a simple trigonometric exercise which was based on the height of the aircraft and the angle between it and the foreign vessel. He also gave evidence that the foreign vessel was to the North East of the aircraft.
Mr Simpson plotted the position of aircraft VHZZA (position ‘a’) at 18.55 CST on 18 April 2014 and the line/s w – x – y on a chart, and calculated the distance between the position of the aircraft and the line w – x – y. In his statement dated 15 September 2014, Mr Simpson stated that on 12 September 2014 he received a request to produce a chart plotting the positions of a number of foreign fishing vessels, including the Linggar Petak 69, and to provide information on the distances of those positions from the outer boundary of the Australian fishing zone. He plotted the coordinates (w, x and y) which delineated the relevant outer boundary of the Australian fishing zone on a chart. The maritime boundary line was in the sea between Australia and Timor at a position to the west of the Joint Petroleum Development Area, northwest of Australia. He then used Graphic Information Systems (GIS) software to measure the distances requested. On 12 September 2014 he forwarded the chart titled “FFV Linggar Petak 69 Positions” and the distance measurements to Mr Jamie Cox who is an AFMA Fisheries Officer. As to the distance between the position of the Linggar Petak 69 (which was taken to be the coordinates of aircraft VHZZA), at 18.55 CST on 18 April 2014, and the outer limits of the Australian fishing zone, he stated:
Distances (inside AFZ unless otherwise stated):
18/04/2014 1855 hrs, Coast Watch 120852 sights FFV a. 900m (0.48 n miles)
The evidence in Mr Simpson’s statement was that the position of aircraft VHZZA was 900 metres inside the Australian fishing zone. According to this evidence and the evidence of Mr Morgan the Linggar Petak 69 was at least 765 metres inside the Australian fishing zone.
Mr Simpson also gave oral evidence on two occasions. He did so because he first plotted the various points on a chart and calculated various distances in accordance with the Geocentric Datum of Australia 1994, GDA94, rather than the Australian Geodetic Datum 1966, AGD66, which is the datum specified for the Timor and the Arafura Seas in the Proclamation. He was recalled to give evidence about the position of the various points and distances between them after he replotted them on a chart in accordance with AGD66.
When he first gave evidence-in-chief, Mr Simpson confirmed that his statement and the two attached maps were true and correct. In substance, he said the coordinates of the points w, x and y were taken from the lines specified for Timor and Arafura Seas in the Schedule to the Proclamation. He believed the points in the Schedule defined the outer limits of Australia’s exclusive economic zone for the Timor and the Arafura Seas.
When Mr Simpson was first cross-examined the only question he was asked was to confirm that the words “Geographic Coordinate System datum: GDA94” appeared at the bottom of the maps annexed to his statement. The purpose of this was to establish that he had not plotted the relevant points in accordance with AGD66. At no stage was it put to Mr Simpson that the coordinates of the points w, x and y did not constitute the relevant maritime boundary. Rather, the question asked by senior counsel for the appellant assumed the validity of those points constituting part of the outer limits of Australia’s exclusive economic zone, and the challenge was to the validity of the plotting of the various points and the measurements based on that plotting.
When Mr Simpson was recalled to give evidence he had created a new map on which he had replotted the points w, x and y using the Australian Geodetic Datum 1966. He gave evidence that if the lines w – x – y are replotted in accordance with AGD66, as he had done, but the position of point ‘a’ is not replotted, at 18.55 CST on 18 April 2014 the aircraft VH-ZZA would be 815 metres inside the maritime boundary. If accepted, this evidence would mean that at 18.55 CST on 18 April 2014 the Linggar Petak 69 was at least 680 metres inside the Australian fishing zone. If both the lines w – x – y and the point (a) were replotted in accordance with the AGD66 datum, Mr Simpson stated the aircraft VHZZA is 900 metres inside the Australian fishing zone. This would mean the foreign vessel was at least 765 metres inside the zone.
Once again, when Mr Simpson was cross-examined after he was recalled, no challenge was made to the assumption that the coordinates of the points w, x and y were on the line that defined the outer boundary of the Australian fishing zone. Mr Simpson was cross-examined about the method of plotting the various coordinates on the chart and whether he was sufficiently qualified to explain the differences that may or may not arise as a result of the recalibration based on AGD66. He was also cross-examined in order to try and create some uncertainty about how the readings taken by Mr Morgan could be connected to Mr Simpson’s calculations and plotting of the various points on a map.
The cross-examination of Mr Simpson was unsuccessful. The trial Magistrate accepted the evidence of Mr Simpson, as he was entitled to do. There is no doubt that one or other of the datum points would have been the basis of the readings made by Mr Morgan. If the basis of the reading made by Mr Morgan was GDA94, Mr Simpson’s calculations placed the aircraft VHZZA 815 metres inside the Australian fishing zone and therefore the foreign vessel at least 680 metres inside the Australian fishing zone. If the basis of the reading made by Mr Morgan was AGD66, Mr Simpson’s calculations placed the aircraft VHZZA 900 metres inside the Australian fishing zone. Therefore the foreign vessel was at least 765 metres inside the Australian fishing zone.
An Evidentiary Certificate given under s 166(2) of the Fisheries Management Act 1991 (Cth) was tendered in evidence. The Certificate is prima facie evidence that at 18.55 CST on 18 April 2014 the Cobham Aviation Services surveillance aircraft VHZZA was in the Australian fishing zone. The certificate stated, inter alia, that: “During the period 17 April 2014 to 22 April 2014 the area of waters being 11º26’46” South and 126º11’19” East was part of the Australian fishing zone.
Exhibits P23 and P24 comprise the same chart of maritime boundaries in the Timor and Arafura Seas. Exhibit P23 is an Indonesian version of the chart. Exhibit P24 is an English translation of the chart. The two exhibits were tendered at trial by the appellant. The chart contains information which is capable of being used as evidence to establish that the lines w – x – y are less than 200M seaward of Australia’s territorial sea baselines.
The evidence before the trial Magistrate was that exhibit P23 is a chart that was located on the wall of the cabin of the foreign vessel which was seized by Customs officers when they boarded the vessel but was not retained. The evidence was that exhibit P23 is an Indonesian version of an AFMA chart which is provided to Indonesian fishermen to define the location of Australia’s various maritime boundaries. Both exhibits P23 and P24 were received into evidence in the Court of Summary Jurisdiction without limitation. When the appellant tendered the charts he did not seek to limit the use which could be made of either exhibit under s 136 of the Evidence (National Uniform Legislation) Act (NT).
As no limitation was sought in respect of the use of exhibits P23 and P24, s 60(1) of the Evidence (National Uniform Legislation) Act (NT) also permits the written statements in the exhibits to be evidence for “all purposes” and therefore evidence of the facts stated. Irrespective of the operation of s 60(1) of the Act, to the extent that exhibits P23 and P24 contain written statements that are previous representations that would otherwise be inadmissible for hearsay purpose under s 59 of the Evidence (National Uniform Legislation) Act (NT), the business record exception under s 69 of the Act operates. The charts are a business record of the Australian Fisheries and Management Authority. The Authority is a business and the charts are documents which are kept by the Authority in the course of or for the purposes of its business. Previous representations in writing contained within the charts are therefore admissible in evidence of the facts represented therein.

In terms of the apparent contradiction between his observation of the direction the vessel was travelling in and his examination of the screenshots, Mr Morgan said that the middle crosshairs were not in the same position each time. The screenshots were taken from a video. When conducting an on-top fix, he said they would get the cross hairs on the vessel, on the water line and take the photo at that position. When taking videos, however, they are looking at and around the vessel at different stages so the videos could be at different angles, changing position. He did say, however, that he would rely on the screen captures to provide evidence of roughly the direction the vessel was travelling in.[192]
The screenshots taken from the video were tendered.[193] The electro optics in screenshot D14 records that at 18:54:50, the vessel was at latitude 11º26’51” and longitude 126º11’04”; the electro optics in screenshot D15 records at 18:55:28 the vessel was at latitude 11º26’49” and longitude 126º11’06”; the on-top fix records a reading at 18:55:45 of latitude 11º26’46” and longitude 126º11’19”. Overall it was suggested there was a significant disparity in the order of 500 metres between the positions of the vessel as measured by the electro optics recorded[194] and the on-top fix. Some significant caution is, however, required. The suggested disparity cannot be accepted as accurate given the screenshots were taken from distances of 2.2 nautical miles and 0.6 nautical miles.
A number of factors relevant to the reliability of the on-top fix were referred to by the appellant, for example, that the photo is taken to the side of the vessel, that it is the aircraft’s and not the vessel’s position that is recorded, and that it is taken when both the aircraft and the vessel are travelling, apparently in different directions.
On behalf of the appellant it was also submitted the on-top fix reading was unreliable when compared with the electro optics readings. The electro optics readings were, however, taken at a distance. As the intermediate judge observed, only the uncertainties raised in relation to the on-top fix process would be relevant to the presumption concerning the location of the aircraft.[195] I agree with his Honour’s conclusion that there was no evidence or other basis for the trial magistrate to feel any degree of uncertainty about “processing delays” that referred to a potential delay between a sighting and taking a photo. Further, I also agree that there is no reason to doubt the accuracy of the position of the aircraft, as recorded in the Sighting Report.[196] There was no serious challenge to the evidence that through a process of triangulation, the Linggar Petak 69 was calculated to be 132 metres from the aircraft when the aircraft was at position “a”. However, Mr Morgan’s evidence did not prove the appellant was within the AFZ as properly defined at the relevant time.
John Head was an experienced Missions Systems specialist who gave evidence about the electro-optical system used by aircraft to provide geographical locations of sighted foreign fishing vessels. Mr Head explained the GPS is part of the system that determines the position of the aircraft and also the vessel. He said the electro-optical system deems the aircraft and the vessel to be in the same place. He explained various aspects of how the system works and the camera’s location. He said the location of the vessel is calculated using standard purpose-designed algorithms. Mr Head said the GPS system was accurate within 30 metres. He relied on information from the American Air Force for the material supportive of the level of accuracy he referred to, and to establish a degree of confidence of 95 per cent. He acknowledged in his evidence that his assessment of accuracy did not take account of “issues within the aircraft”.[197] He referred to small delays within the aircraft systems that, although small, could add up to “decent amounts of errors” due to the speed of the aircraft.[198] He agreed that with on-top fix readings there is potential for operator error, such as delay between observing an event and pressing a button.[199]
The contradiction between the observation of seeing the vessel travelling southwest between two and three knots as opposed to the readout on the equipment showing the vessel travelling in the opposite direction at 30 kilometres was put to Mr Head for comment. Mr Head said the management of the turret can give misleading data. He was also asked about the apparent difference of around 500 metres of the position given of the vessel between two instruments on the aircraft. Mr Head said it could happen, when the datum is observed. He said “[i]f you add all the extremes of the errors, yeah, it’s possible. Without seeing the datum, it’s a little hard to comment”.[200] In re-examination, when asked about the accuracy of the electro optics and what factors could affect reliability, Mr Head replied “the EO is, in fact, probably the most accurate geolocational tool we have. The errors associated with electro optics are extremely small.”[201] Mr Head was also asked in re-examination about factors affecting reliability and whether the electro optics were accurate at 70 metres. He explained that in relation to inaccuracies he was referring to on-top positions, not to electro optics. He made the point that with electro optics, all the calculations are done by machine, however with the on-top position, there is the button press and the congregation of the navigation information through the aircraft computer system which has some small errors.[202] In relation to electro optics, he said there was no issue with the aircraft that would affect the accuracy beyond 70 metres. He said the electro optics “are extremely accurate”.[203] In my view there was nothing of significance in Mr Head’s evidence that would cast doubt on the on-top fix method. Mr Head pointed to potential factors of unreliability in that method, but there is nothing to indicate there were such errors in this case. The disparity with the electro optics readings were explained, principally as a result of distance. Although the evidence of Mr Morgan, Mr Porter and Mr Head does not establish the position of the AFZ, nor that the Linggar Petak 69 was within the AFZ at the relevant time, I would not uphold grounds 2.8 and 2.9.
I agree with the intermediate judge[204] that Mr Head’s evidence about the accuracy of the GPS system is admissible, including the use of the GPS system in conjunction with the on-top fix reading. I agree also that the evidence is admissible either on the basis of the common law presumption that has not been displaced by s 146 of the UEA, or it is admissible under s 146 of the UEA. The presumption of accuracy of scientific instruments embodies the evidential presumption that, on proof that an instrument belongs to a class of notoriously accurate scientific instruments, an opponent must adduce evidence suggesting the inaccuracy of a particular reading.[205] Mr Head had been a missions system specialist for 15 years. He provided oversight on aircraft for the very activities under consideration. He gave evidence of his familiarity with the GPS system and referred to the basis of the accuracy of the system. There was no error in accepting he was an expert capable of giving the evidence he did.
As the trial magistrate and the intermediate judge have both concluded, there is wide acceptance of the admissibility of GPS readings.[206] The circumstances here do not justify any departure from the presumption of accuracy. Further, the basis of the opinion given by Mr Head about the operation of the GPS, including its accuracy, was established well within the principles articulated in PQ v Australian Red Cross Society.[207]
Conclusions on the review of the evidence on whether the AFZ was properly proved and hence the appellant’s position within it.
As already stated, the averments should be disregarded. The evidentiary Certificate proved the aircraft operated by Mr Morgan and Mr Porter was within in the AFZ at 11º26’46” South and 126º11’19” East at the relevant time. The Certificate did not, however, prove the Linggar Petak 69 was at that position. So much is clear. The position of the Linggar Petak 69 was proven to be approximately 132-135 metres northwest from the aircraft VH-ZZA that Mr Simpson plotted at position point “a”. Point “a” was said to be 900 metres within the AFZ according to GDA94, and 815 metres if using AGD66. Mr Simpson plotted the AFZ assuming the scheduled points defined the AFZ but gave no evidence as to distance. The position of the AFZ, beyond the area referred to in the Certificate, was not proven. The Certificate did not, for instance, refer to an area by way of a radius. The remaining evidence did not establish the Linggar Petak 69 was within the boundary of the AFZ. The position of the relevant part of the AFZ was not established.
Without accurate evidence as to the outer limits of the AFZ it would be speculative to attempt to infer that 132 metres from point “a” is a point within the AFZ.
Honest and reasonable mistake of fact
For the reasons given by the intermediate judge and Kelly J, I agree that the defence of honest and reasonable mistake of fact was not open on the evidence. There was no evidential material from which an inference could be drawn showing a mistake was made. I have nothing to add to their Honours’ reasons.
For the reasons already outlined, I would, however, allow the appeal.
Orders of the Court
1.   The appeal is allowed.
2.   The order of the Supreme Court dismissing the appeal is set aside.
3.   The convictions imposed by the Court of Summary Jurisdiction on 30 March 2015 are quashed and in lieu thereof the appellant is acquitted of both charges.
4.   We will hear the parties as to costs.
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[1]Li Chia Hsing v Rankin (1978) 141 CLR 182.

[2]See [29] below.

[3]Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v Nicaragua), (Judgment) (International Court of Justice, General List Nos 157 and 165, 2 February 2018) dissenting opinion Judge Robinson at 2 - 3.

[4]North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), (Judgment) [1969] ICJ 3. Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v Nicaragua), (Judgment) (International Court of Justice, General List Nos 157 and 165, 2 February 2018) dissenting opinion Judge Robinson at 2 - 3.

[5](Judgment) [2009] ICJ Rep 62.

[6](Judgment) (International Court of Justice, General List Nos 157 and 165, 2 February 2018) at 44 – 68.

[7]Schedule to the Proclamation.

[8]The Proclamation was amended by the Seas and Submerged Lands Amendment Proclamation 2004 (No.1) and the Seas and Submerged Lands Amendment Proclamation 2005 (No.1) which were proclaimed to ensure that the outer limit of Australia’s exclusive economic zone in relation to New Zealand was consistent with the Treaty between the Government of Australia and the Government of New Zealand establishing certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries.

[9]The Treaty between Australia and the Democratic Republic of Timor-Leste Establishing their Maritime Boundaries in the Timor Sea was signed on 18 March 2018.

[10]See [9] above.

[11]Legislation Act 2003 (Cth).

[12]Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398.

[13]Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1925) 35 CLR 449 at 455.

[14]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 – 7. [47]; Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39].

[15]Australian Alliance Assurance Co Ltd v Attorney-General (Qld) [1916] St R Qd 135 at 161.

[16]House of Representative Debates 1979, Vol 115, 1463-6.

[17]Commonwealth of Australia, Hansard (H of R) vol. 64, 240, 13 August 1969 (Mr E.G. Whitlam).

[18]See [5] above.

[19][2015] NTSC 65.

[20](2000) 203 CLR 194 at [14].

[21](2003) 214 CLR 118.

[22][1994] HCA 63; 181 CLR 487.

[23][1994] HCA 63; 181 CLR 487.

[24]Karui v Malogorski [2011] NTSC 17.

[25]Douglass v The Queen [2012] HCA 34; 290 ALR 699.

[26]M v The Queen [1994] HCA 63; 181 CLR 487.

[27]Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113].

[28](2010) 29 VR 593 at [476] - [478].

[29]Aregar v Australian Fisheries Management Authority [2015] NTSC 61 at [36].

[30]See [49] above.

[31]Geoscience Australia is a public sector geoscience organisation. It has the primary role in the delineation of Australia’s maritime boundaries. The organisation has been in existence since 1946.

[32](1987) 46 NTR 1 at 29 – 30.

[33]Aregar v Australian Fisheries Authority [2015] NTSC 61 at [52].

[34](1987) 46 NTR 7 at 29 - 30.

[35]Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, per Kirby J at [243].

[36]Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 at 547; Klein v Minister of Education [2007] HCA 2; (2007) 81 ALJR 582 at [38]; Trust Co of Australia Ltd v The Valuer-General [2007] NSWCA 181; (2007) 154 LGERA 437, at [11]; Tucci v VCAT [2010] VSC 425; (2010) 33 VAR 206 at [16].

[37]Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529.

[38](1997) 47 NSWLR 631 at 645 - 646.

[39](1997) 47 NSWLR 631 at 645 - 646.

[40]See for example: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Bloemen v The Commonwealth (1975) 49 ALJR 219; O’Brien v Komesaroff (1982) 150 CLR 310; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Coulton v Holcombe (1986) 162 CLR 1; and Water Board v Moustakas (1988) 180 CLR 491.

[41](2003) 77 ALJR 1806 at [41].

[42][2007] HCA 2; (2007) 81 ALJR 582 at [38].

[43][1980] AC 198 at 212.

[44][1987] VR 529 at 547.

[45] (1994) 85 LGERA 120 at 126.

[46][2004] HCA 39; (2004) 220 CLR 1 at [243].

[47][2007] NSWCA 181 at [11].

[48][2010] VSC 425; (2010) 33 VAR 206 at [16].

[49][2002] NSWSC 552 at [33].

[50]Klein v Minister of Education [2007] HCA 2; (2007) 81 ALJR 582 at [38].

[51]contrary to s 100(2)

[52] contrary to s 101(2)

[53]s 166(1) FMA

[54]s 166(2)(b) & (7)(a) FMA

[55]The Vessel was sailing South West. Mr Morgan said the plane flew North East till it was alongside the Vessel and took a reading (at point a) and that the Vessel was coming down the left hand side of the plane. That would place the Vessel North West of point a.

[56] Because the Earth is a globe, the true position is that the lines will not be straight but will follow a geodesic arc (the shortest distance between two points on a globe), but this has no practical effect on the position of the boundary as delineated on a (flat) chart over the distances involved.

[57] As Southwood J has pointed out, counsel for the appellant opened the appellant’s case on the basis that the relevant principles to be applied were those applicable to the “unsafe and unsatisfactory” ground of appeal. However, that was not a ground of appeal specified in the notice of appeal and the actual basis of the appeal as argued was that the prosecution had failed to adduce any evidence as to the location of the boundary of the AFZ – and hence had failed to prove an essential element of the offence.

[58] (1932) 48 CLR 487 at pp 507-8: cited by the intermediate judge in Aregar v Australian Fisheries Management Authority [2015] NTSC 61 at [26]

[59] Aregar v Australian Fisheries Management Authority [2015] NTSC 61 at [39]

[60]Ibid at [28]

[61] AB Oxford Cold Storage Co Pty Ltd v Arnott (2005) 11 VR 298 per Nettle JA at [26]

[62] [2006] NSWLEC 622

[63] at [24] to [26]

[64] Section 166(2)(b)

[65]In practical terms of course, there would be little utility in issuing a certificate which had nothing to do with the location of a relevant vessel, and would be inadmissible on the grounds of relevance, but that is neither here nor there.

[66] Acts Interpretation Act 1901 s 4 deals with the exercise of powers between enactment and commencement of an Act and has nothing to do with the subject matter of the Proclamation.

[67][1982] AC 484 at 487

[68][2003] VSCA 154 at [30] per Eames JA

[69]This submission was made for the purpose of supporting the appellant’s contention that, as a matter of law, it was necessary to prove that the points in the s 109B Schedule (in this case points w, x and y) are less than 200 nautical miles from the relevant baselines. It was not in support of a submission that, as a matter of fact, there was a reasonable possibility that the lines w, x and y may be more than 200 nautical miles seaward of Australia’s territorial sea baselines.

[70]at [53] above

[71]at [36]

[72]It would not have been necessary for the prosecution to prove that w, x and y formed part of the boundary of the AFZ if the Certificate had specified that the area of waters within (say) a 900 metre or 200 metre radius of [the co-ordinates of point a] were, at the relevant time, within the AFZ. Further, the evidentiary arguments relating to the evidence of Mr Heard referred to below (and indeed the need to call that evidence at all) could have been avoided if the averments had stated that the vessel was at a place within a radius of (say) 135 metres of [the co-ordinates of point a] (or was at a place between 132 and 135m NW of point a) rather than “near” point a.

[73]Procedural fairness requires that, if a court is considering deciding a case on a basis not raised by the parties, that it put the parties on notice of that and give the parties an opportunity to make submissions on the issue. Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576; Zurich Bay Holdings Pty Ltd v Brookfield Multiples Engineering and Infrastructure Pty Ltd [2014] WASC 40 at [10]

[74]Multicon Engineering v FAC [1997] 47 NSWLR 631 at p 645

[75]Banque Commerciale SA (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at p 284 per Gibbs CJ, Wilson, Brennan and Dawson JJ

[76] Rowe v Australian United Steam Navigation Company, Ltd (1909) 9 CLR 1 at p 24 per Isaacs J

[77]The majority, and Kirby J rejected the interpretation applied by the Full Federal Court not because it was not supported by either party, but because they disagreed with it.

[78] [2003] HCA 55; (2003) 201 ALR 271

[79] at [41]

[80]at [51]

[81] at [52]

[82]at [101]

[83]The final position adopted by the respondent on this question of construction was not only inconsistent with its earlier conduct of the case, it lacked logic. In answer to a question from the bench, counsel for the respondent contended that the points specified in the s 10B Schedule in the area around New Caledonia which (it was agreed) were more than 200 nautical miles from the baselines do define part of the boundary of the EEZ while simultaneously maintaining that, on the true construction of paragraph (b) the points in the Schedule only define the boundary of the EEZ if they are less than 200 nautical miles from the baselines. Counsel acknowledged that these positions were irreconcilable but could not further explain the respondent’s position other than to describe the area around New Caledonia as an anomaly.

[84] The intermediate judge did not find it necessary to decide the construction question.

[85] Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355 at [13]

[86]Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ; Project Blue Sky v ABA (supra) at [71]

[87] Acts Interpretation Act (Cwth) s 15AA: In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

[88] (1998) 194 CLR 355 at 384

[89]Counsel for the appellant suggested that they were there to provide certainty to Australian fishermen that if they stayed on the Australian side of the line defined by the s 10B Schedule they could be sure they would not fall foul of the laws of another country with which Australia had treaty obligations but that assumes that the points in the Schedule define a line specified in Australia’s treaties with other countries. That might be the case but there is nothing in the s 10B proclamation to suggest that it is the case or from which any inference can be drawn about the purpose of the s 10B Schedule other than that it must have something to do with defining Australia’s EEZ.

[90]It is permissible to have reference to this under the Acts Interpretation Act (Cwth) s 15AB(1) and, specifically, s 15AB(2)(a)

[91] meaning, presumably, the relevant baselines established under international law

[92]Counsel for the appellant and the respondent were agreed that in the area of New Caledonia the points specified in the s 10B Schedule define a line which is more than 200 nautical miles from the relevant Australian baselines.

[93]Exhibit P23 (T79)

[94] Exhibit P24 (T79)

[95](1987) 46 NTR 1 at 29-30 This decision was before the trial magistrate for other reasons and is referred to by Hiley J in the court below – again for other reasons.

[96] The respondent relied on Maloney v The Queen [2013] HCA 28; 252 CLR 168 at [352] per Gaegler J for this distinction.

[97] Had the prosecution suggested to the trial magistrate that such a chart would show that points w, x and y were less than 200 nautical miles from the relevant Australian baselines and that s 144(3) obliged him to take notice of the fact, I have no doubt that the response would have been, “I know no such thing. I don’t have such a chart. Why didn’t you obtain one and tender it?” In my view, the same response would be appropriate from this Court. It is not the business of this Court to do independent research in order to establish facts on appeal which it was the obligation of the prosecution to prove at first instance. The question on this appeal is not whether points w, x and y are less than 200 nautical miles from the relevant baselines, but whether the prosecution proved that beyond reasonable doubt at the trial.

[98] It would not be to the point to say that there was no evidence that there were other foreign fishing vessels in the area: the onus was on the Crown to prove that the Vessel was inside the AFZ at the relevant time. In any case, the evidence of Mr Simpson was that he was asked to plot the positions of a number of foreign vessels in the area.

[99] One might intuitively think that in the waters to Australia’s north, the southerly component of the direction of travel might be likely to bring the Vessel closer to Australia, but there is the westerly component to take into account and in any case this is a long way from proof beyond reasonable doubt that the vessel was inside the AFZ at 18:55.

[100]at [55]

[101]at [56] and [57]; Section 9 of the UEA expressly provides that the Act does not affect the operation of a principle or rule of common law or equity except so far as this Act provides otherwise expressly or by necessary intendment.

[102]for the reasons set out in paragraphs [58] to [66] of the judgment

[103] at [54]

[104]See for example detailed discussion in PQ v Australian Read Cross Society [1992] 1 VR 19 from p 34.

[105] [1992] 1 VR 19

[106] at p 34

[107] ibid

[108]at [66]–[67]

[109]at [34]

[110]The appellant was originally charged with offences under FMA 100(2) and 101(2) on 18 April, 20 April and 21 April 2014. He was acquitted of the charges relating to 20 and 21 April.

[111] Australian Fisheries Management Authority v Su (2009) 176 FCR 95 at [26]

[112] Hindrum v Lane [2014] TASFC 5 at [16] – [19] and [70].

[113] at [82]

[114] Von Lieven v Stewart (1990) 21 NSWLR 52 at pp 66-67

[115] at [80]

[116] (2008) 236 CLR 440 at [8]

[117]at [89]

[118] at [90]

[119] at [91] and [92]

[120]at [93] – [94]

[121] At [96].

[122] Aregar v Australian Fisheries Management Authority [2015] NTSC 61.

[123] Reasons at AB 533-550.

[124] Email of 12 July 2017.

[125] AB 439, 442, AB 82.

[126] The points appear in ‘Schedule 2 Timor and Arafura Seas’ of the gazetted Proclamation declaring the outer limits of the EEZ/AFZ. This will be discussed later in these reasons.

[127] Article 55 provides that the legal regime of the EEZ is governed by Part V of the Convention of the Law of the Sea; Article 57 provides the EEZ shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

[128] [1987] NTSC 20; 27 A Crim R 342, per Asche J.

[129] 31 July 2017, 8 August 2017, 10 August 2017).

[130] Email of 12 January 2018.

[131] Joint note for the Court from the parties, 17 January 2018 at 2.2.

[132] Email of 7 February 2018.

[133] Email of 28 February 2018.

[134] AB 609.

[135] Aregar v Australian Fisheries Management Authority [2015] NTSC 61 at [36].

[136] D Pearce and R Geddes, Statutory Interpretation in Australia, (Lexis Nexis Butterworths, 8^th ed, 2014) at 1.6 and cases cited in the text.

[137] Commonwealth of Australia Gazette, 29 July 1994, AB 193.

[138] Aregar v Australian Fisheries Management [2015] NTSC 61 at [35].

[139] Explanatory Statement for Seas and Submerged Lands Amendment 2005 Proclamation (No.1), set out in full in Southwood J’s judgment.

[140] 21 March 2018.

[141] Transcript, 21 March 2018, 24-26, 31.

[142] Transcript, 21 March 2018, 32.

[143] [2003] VSCA 154.

[144] Impagnatiello v Campbell [2003] VSCA 154 at [25]-[32].

[145] [1982] AC 484.

[146] Exhibit 28, as per Fisheries Management Act1991 (Cth) s 166(2).

[147] R v Hush; Ex parte Devanny [1932] HCA 64; 48 CLR 487 at 501, in reference to s 30R of the Crimes Act 1914 (Cth) that permitted averments constituting prima facie proof; Charlton v Rogers; Ex parte Charlton (1985); 20 A Crim R 238 at 243.

[148] Gallagher v Cendak [1988] VR 731 at 739.

[149] Charlton v Rogers; Ex parte Charlton (1985) 20 A Crim R 238 at 243.

[150] Transcript, 6 April 2016 at 100-101.

[151] Transcript, 6 April 2016 at 100-101.

[152] Transcript, 6 April 2016 at 101.

[153] Aregar v Australian Fisheries Management Authority [2015] NTSC 61 at [75].

[154] AB 538-539.

[155] AB 539.

[156] AB 539.

[157] More particularly, count 3 is an offence of using foreign boat for commercial fishing, against s 100(2); count 4 is being in charge of a foreign boat, equipped for fishing, contrary to s 101(2).

[158] AB 8.

[159] AB 53-56.

[160] Exhibit P16, AB 433-437; exhibits P29 and P30, AB 474-476.

[161] AB 55.

[162] Exhibit P16, AB 435.

[163] Exhibit P16, AB 436-437.

[164] AB 55.

[165] Exhibit P29, AB 474, using AGD66 only; exhibit P30, AB 476.

[166] AB 125.

[167]AB 128.

[168] Exhibit P30, AB 476.

[169] AB 128.

[170] AB 128.

[171] Aregar v Australian Fisheries Management Authority [2015] NTSC 61.

[172] AB 546.

[173] Articles 16, 47, 75, 76 and 84.

[174] For example Petroleum (Submerged Lands) (Datum) Regulations 2002 No.198 reg 10 dealing with the conversion of datum from AGD66 to GDA94.

[175] Petroleum (Submerged Lands) (Datum) Regulations 2002 No.198 Explanatory Statement Attachment A under “How to understand the Datum” states “[t]he… latitude and longitude of a point do not in themselves provide the means of identifying the position of that point on the surface of the Earth with any accuracy. A “datum”, the reference surface for the latitude and longitude, also needs to be specified. The issue is similar to quoting a volume with appropriate units, eg 100 imperial gallons is different from 100 US Gallons”.

[176] AB 82.

[177] Exhibit P23.

[178] Exhibit P24.

[179] AB 81.

[180] Appellant’s further submissions, para 26.1, footnote 13.

[181] Respondent’s further submissions at [11].

[182] AB 32-51.

[183] AB 541.

[184] AB 542.

[185] AB 542.

[186] Exhibit P10, AB 425.

[187] Exhibit 12, AB 430.

[188] AB 36-37.

[189] AB 37-38; exhibit P11, AB 427.

[190] AB 43-44.

[191] AB 44.

[192] AB 45.

[193] Exhibits D14 and D15.

[194] Exhibits D14 and D15.

[195] Aregar v Australian Fisheries Management Authority [2015] NTSC 61 at [66].

[196] Exhibit P12, AB 430.

[197] AB 101.

[198] AB 101.

[199] AB 102.

[200] AB 103.

[201] AB 105.

[202] AB 106.

[203] AB 106.

[204] Aregar v Australian Fisheries Management Authority [2015] NTSC 61 at [52]-[63].

[205] Porter v Kolodzeij [1962] VR 75; Redman v Klun (1979) 20 SASR 343; Mehesz v Redman (No 2) (1980) 26 SASR 244 at 251-2; Chiou Yaou Fa v Morris (1987) 27 A Crim R 342 at 347-9.

[206]Ministry of Agriculture and Fisheries v Wallace [1998] DCR 837; Wilgosh v Good Spirit Acres Ltd [2007] SKCA 43; United States of America v Brooks, 715 F 3d 1069 (8^th Cir, 2013); Penrose v Nominal Defendant and Anor [2009] NSWSC 1187.

[207] [1992] 1 VR 19.