Collector of Customs for NSW v BP Australia Ltd
[1986] FCA 317
•21 JULY 1986
Re: COLLECTOR OF CUSTOMS FOR THE STATE OF WESTERN AUSTRALIA
And: BP AUSTRALIA LIMITED; THE SHELL COMPANY OF AUSTRALIA LIMITED; K.K. NIKKO
MARU and FEDERATION OF JAPAN TUNA FISHERIES CO-OPERATIVE ASSOCIATIONS
No. VG7 of 1986
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney J.
Lockhart J.
Jenkinson J.
CATCHWORDS
Administrative Law - overseas fishing vessels calling at Australian ports - whether currently engaged in international voyages - whether about to make a voyage other than an international voyage - whether ships' stores subject to excise duty.
Excise Act 1901. ss. 4(1), 160A(5).
Customs Act 1901. s.130c
Board of Trade v. Baxter (1907) AC373
HEARING
MELBOURNE
#DATE 21:7:1986
Counsel for the Appellant: Mr. B.J. Shaw Q.C. MR. K.S. Pose
Solicitors for the Appellant: Australian Government Solicitor
Counsel for the Respondents: Mr. J.D. Merralls Q.C. Mr. G. Garde
Solicitors for the 1st and 2nd Respondents: Messrs Arthur Robinson & Hedderwicks
Solicitors for the 3rd and 4th Respondents; Messrs Corrs Pavey Whiting & Byrne
ORDER
1. the appeal be allowed in relation to diesel fuel taken on board by the "Kaei Maru 28", the "Miho Maru 31" and the "Ryoei Maru 18";
2. the decision of the Tribunal dated 10 December 1985 in relation to that diesel fuel be set aside;
3. the decisions of the Collector of Customs in relation to that diesel fuel be affirmed;
4. the first and second respondents pay the costs of the appellant of the appeal in relation to that diesel fuel;
5. the appeal against the decision of the Tribunal in relation to the "Nikko Maru 5" be dismissed;
6. the appellant pay the costs of the third and fourth respondents of the appeal in relation to the "Nikko Maru 5".
JUDGE1
The outcome of this appeal from a decision of the Administrative Appeals Tribunal turns upon the construction of certain sections of the Customs Act 1901 and the Excise Act 1901 and their application to the voyages of three Japanese fishing vessels which used the ports of Fremantle and Hobart from time to time. The Tribunal was called upon to decide whether diesel fuel supplied to three Japanese fishing vessels in Fremantle was liable to excise duty. It was common ground between the parties that fuel was subject to excise duty if it were taken on board by
"(a) a ship that is not currently engaged in making international voyages; or
(b) a ship that is currently engaged in making international voyages but is about to make a voyage other than an international voyage",
within the meaning of s.130C of the Customs Act 1901.
The general course of the operations of the three vessels and of the way in which the questions came before the Administrative Appeals Tribunal ("the Tribunal") have been conveniently set out in its reasons for decision.
Sashimi or raw tuna fish is a delicacy in Japan. One principal source of sashimi is the southern bluefin tuna ("SBT"), found in waters around the 40 degree latitude south of the equator. The principal grounds occupied by the fish lie off the southern shores of South Africa and Australia, off the eastern coastline of New Zealand and in the Atlantic Ocean off South America.
Many Japanese long-line tuna vessels ply these waters. The vessels may be away from Japan for up to two years. A typical vessel has the capacity to hold approximately 300 tonnes of tuna in its fishing holds. Being away from Japan for such lengthy periods of time, the tuna vessels must call in at ports in the southern oceans for running repairs, to take on bait, to acquire supplies for the crews and to take on fuel. The Federation of Japan Tuna Fisheries Co-operative Associations, incorporated in 1950, has as one of its objectives the promotion of the productivity of the fishery business of its member fishermen. In accordance with this objective, the Japan Tuna Co-operative has a contract with the Shell group of companies for the supply and purchase of petroleum products, including diesel, to its member vessels, both at home and abroad. In fulfilment of its contract, Shell either supplies the fuel itself to the member vessels or arranges for the fuel to be supplied by another company, such as BP Australia Limited.
The applications before the Tribunal related to the visits to Fremantle of four Japanese long-line tuna vessels, but the Court is concerned only with three of them, as the appeal in relation to the fourth, the "Nikko Maru 5", was not argued. These visits were but a sample of the visits by Japanese vessels to Australian ports. It was agreed that the vessels the subject of these applications did not engage in fishing within the Australian fishing zone.
Application No. V.85/158 as it developed before the Tribunal related to the fact that on 1 November 1984, the "Kaei Maru 28" took on board 99,560 litres of diesel fuel. The issue before the Tribunal was whether excise duty was payable on that fuel.
After the "Kaei Maru 28" departed from the port of Shimizu in Japan on 6 February 1984, its ports of call were as follows:
Port Date/Time Date/Time Fuel(F)/Bait(B) of Arrival of Departure Loaded (Tons) (Provisions Ex- cluded) SHIMIZU --- FEB. 6TH, 1984 DURBAN MAR. 8TH, 1984 MAR.10TH, 1984 F 144, ---, CAPE TOWN JUN.26TH, " JUN.28TH, " F 197, B 17, FREMANTLE SEP.21ST, " SEP.25TH, " F 195, B 44,
(09:40) (16:10)
" OCT.30TH, " NOV. 1ST, " F 87, B 10,
(00:15) (13:55)
" FEB. 4TH, 1985 FEB. 7TH, 1985 F 166, B 20, " APR.21ST, " APR.22ND, " F 88, YAIZU (JAPAN) MAY 10TH, " ---
In application VG.85/198 the issue before the Tribunal was whether excise duty was payable with respect to 186,399 litres of diesel fuel which the "Miho Maru 31" took on board at Fremantle on 10 January 1985.
After the "Miho Maru 31" departed Yaizu, Japan, on 24 April 1983, its ports of call were as follows:
Port Date/Time Date/Time Fuel(F)/Bait(B) of Arrival of Departure Loaded (Tons) (Provisions Ex- cluded)
YAIZU (JAPAN) --- APR.24TH, 1983 P. LOUIS MAY.19th, 1983 MAY.20TH, " F 73, ---, CAPE TOWN AUG. 7TH, " AUG.11TH, " F 159 ---, " SEP.11TH, " SEP.17TH, " F 135, B 16, WALVIS BAY NOV.23RD, " NOV.25TH, " F 130, ---, CAPE TOWN JAN.25TH, 1984 MAR. 4Th, 1984 F 136, ---, " MAR.16TH " MAR.21ST, " F 42, B 42, " JUN. 4TH, " JUN. 8TH, " F 153, B 10, " JUL. 6TH, " JUL.10TH, " F 76, B 73, FREMANTLE AUG.28TH, " AUG.29TH, " F 132, B 14,
(08:10) (14:10)
" OCT.23RD, " OCT.25TH, " F 155, ---,
(08:30) (14:05)
" JAN.10TH, 1985 JAN.12TH, 1985 F 163, B 14,
(08:45) (14:00)
HOBART MAR.11TH, " MAR.14TH, " F 158, ---, " APR.26TH, " APR.26TH, " F 68, ---, YAIZU (JAPAN) MAY.17TH, " ---
In application VG85/209 the issue before the Tribunal was whether excise duty was payable with respect to 138,670 litres of diesel fuel which the "Ryoei Maru 18" took on board at Fremantle on 27 March 1985.
The "Ryoei Maru 18" departed Japan from the port of Kochi on 4 March 1984 its ports of call were as follows:
Port Date/Time Date/Time Fuel(F)/Bait(B) of Arrival of Departure Loaded (Tons) (Provisions Ex- cluded) KOCHI (JAPAN) --- MAR. 4TH, 1984 DURBAN MAY.27TH, 1984 MAY.30TH, " F 263, ---, FREMANTLE SEP.21ST, " SEP.25TH, " F 278, B 13, " JAN. 9TH, 1985 JAN.13TH, 1985 F 219, B 51, " MAR.27TH, " APR, 1ST, " F 122, B 5, " MAY.13TH, " MAY.13TH, " F 120, ---, KOCHI (JAPAN) MAY.31ST, "
Section 160A of the Excise Act 1901 (Cth) provides, inter alia,
"160A.(1) Except as provided by the regulations, ship's stores and aircraft's stores are not liable to Excise duty.
...
(5) In this Part -
'ship's stores' means stores for the use of the passengers or crew of an overseas ship, or for the service of an overseas ship."
Section 4(1) of the Excise Act 1901 (Cth) defines "Ship" as
"... any vessel used in navigation, other than air navigation, and includes a barge, lighter or any other floating vessel."
The sub-section defines "Overseas ship" as having
"... the same meaning as 'ship' has in Part VII of the Customs Act 1901."
Sections 127 to 130C form Part VII of the Customs Act 1901 (Cth).
Section 130C provides, amongst other things:
"130C. In this Part -
'international voyage', in relation to a ship, means a voyage, whether direct or indirect, between a place in Australia and a place outside Australia;
'place outside Australia' does not include -
(a) a ship, or an area of waters, outside Australia;
(b) an installation outside Australia; or
(c) a reef, or an uninhabited island, outside Australia;
'ship' does not include -
(a) a ship that is not currently engaged in making international voyages; or
(b) a ship that is currently engaged in making international voyages but is about to make a voyage other than an international voyage;
'ship's stores' means stores for the use of the passengers or crew of a ship, or for the service of a ship."
The diesel fuel supplied to the "Kaei Maru 28", the "Miho Maru 31" and the "Ryoei Maru 18" was taken on by the vessels as stores for the service of the ship. There was no issue before the Tribunal concerning this. There were no relevant regulations dealing with stores.
The Collector of Customs submitted to the Tribunal in substance that each Japanese vessel was not an overseas ship, for it was either not currently engaged in making international voyages or, if it were so engaged, it was about to make a voyage other than an international voyage. He relied, for example, on the fact that the "Kaei Maru 28", which took on board diesel fuel on 1 November 1984, departed Fremantle on that date but its next port of call was also Fremantle, to which it returned on 4 February 1985. Likewise, the "Miho Maru 31" which took on diesel fuel on 10 January 1985, departed Fremantle on 12 January 1985 but its next port of call was Hobart, Tasmania, where it berthed on 11 March 1985. The "Ryoei Maru 18" took on fuel on 27 March 1985, departed Fremantle on 1 April 1985 and returned to Fremantle as its next port on 13 May 1985.
The applicants submitted that each of the vessels was engaged upon a continuous voyage, commencing in Japan and terminating in Japan and that the movement of the vessels from port to port was always an uncertain matter, determined by the circumstances at the time. Evidence was given that fishing for SBT is seasonal. The tuna mature as they migrate. Most visits by Japanese tuna vessels to the port of Fremantle occur in the months of August to February. The other major port in the southern ocean which is visited is Capetown, South Africa. Visits to other ports, such as Durban in South Africa and Port Hedland, Albany and Hobart in Australia occur with less frequency. The vessels must enter port to refuel but they may also need to do so to collect bait and provisions for the crew, to provide rest and medical care for the crew and to undertake running or emergency repairs to the vessel. The port, the date of call and the frequency of calls varies from vessel to vessel, being influenced by factors such as the area of best catches reported, the position of the vessel in relation to that area, the quantity of tuna already taken, sea water temperature and tide and the stocks of fuel, bait and provisions remaining on board. While tuna migrate generally in an easterly direction, a vessel may move west or east at any time.
Prior to leaving Japan on a voyage, the fishing master of a particular vessel meets with the owner to plan a basic schedule for the voyage. The crew are employed on an open-ended basis for the duration of the voyage from Japan and back to Japan. On the voyage itself, the fishing master keeps in contact with the vessel's owner. Any major changes in the pre-planned schedule require the approval of the owner. But at all times the fishing master must use his discretion and there is no strict calendar of events or map for the voyage, for the aim of the voyage is to maximise the catch in the shortest time.
The Collector of Customs relied upon the forms completed by the captains and masters of the vessels and the agents of the owners upon arrival and departure from the port of Fremantle.
The Customs Regulations require that various forms set out in Schedule 1 to those regulations be completed on arrival or before departure of vessels from Australia. These include - form 1, Australian Customs Ship's Report Inwards; form 5, which is a declaration signed by members of the crew, including the master and officers, detailing articles owned by or in the possession of the master, officers and crew at the time of arrival of the vessel; form 39, Australian Customs Ship's Outward Manifest; form 40, Australian Customs Application for Clearance and Guarantee to Pay Duty; form 41, Australian Customs Certificate of Clearance; and form 43, Australian Customs Application for Permission to take on Board Ships' Stores or Aircraft Stores. Other forms include form W.601, a Report of Dutiable Stores on Foreign Fishing Vessels, various forms of the Fremantle Port Authority, including an Application for Clearance, and various forms of the Western Australian Harbour and Light Department, including a Port Bill. Other forms were tendered to the Tribunal which need not be detailed.
The Tribunal did not feel that the forms assisted it greatly. What it regarded as their limited relevance lay in their reference to vessel destinations. In some cases, the documentation underwent change in this respect. Thus, for example, in the case of the "Ryoei Maru 18", form W.601 was initially endorsed "TBA" (to be advised) and the words "fishing grounds" added later and form 40 was initially endorsed "fishing/grounds" and the letters "FREM" endorsed later.
With respect to the "Kaei Maru 28" and its visit to Fremantle of 30 October to 1 November 1984, the only forms before the Tribunal were a Field Sheet which was not a form submitted to the Customs Service but a form of the vessel's owner's agents, which indicated the destination of the vessel to be "fishing grounds" and another form which indicated that the vessel "Kaei Maru 28" was departing from an Australian port and exiting from the Australian fishing zone to the high seas. As is now known, the vessel, after travelling to fishing grounds, returned to Fremantle before making any other port.
With respect to the visit of the "Miho Maru 31" to Fremantle of 10-12 January 1985, various documents were tendered to the Tribunal :
(1) the Field Sheet indicated in one column the destination as "TBA" and in the right hand column "next port TBA FREM";
(2) form W.601 indicated "TBA" as destination;
(3) form 40 indicated "Fremantle" as destination;
(4) the Port Bill had the description "from Japan to Japan";
(5) form 43 indicated "Fremantle to overseas" as the voyage.
In fact, the next port of call of the vessel was Hobart on 11 March 1985.
In respect of the "Ryoei Maru 18" and the visit to Fremantle of 27 March to 1 April 1985, the documentation was as follows:
(1) the Field Sheet indicated in the left hand column "destination TBA" and in the right hand column "next port (FREM)";
(2) form W.601 indicated "TBA fishing grounds" as the destination;
(3) the Port Bill indicated "from Japan to Japan" as the voyage;
(4) form 40 indicated "fishing/grounds FREM" for destination.
The "Ryoei Maru 18" returned to Fremantle on 13 May 1985.
The Tribunal turned to the first issue, whether the vessels were currently engaged in making international voyages. Mr G. Short, who appeared for the Collector of Customs, submitted that they were not so engaged. He referred to the definition of "international voyage" in s.130C of the Customs Act 1901 (Cth) and submitted that, on any view of the matter, the course of the vessels did not meet that definition. He submitted that if the voyage were from Japan to Japan it was not a voyage between a place in Australia and a place outside Australia. If the voyage were looked at as being between the port of departure and the next most likely port of call, then in the case of the voyages with which we are concerned, voyages from Fremantle to Fremantle or Hobart, the voyages were not between a place in Australia and a place outside Australia. He further submitted that the SBT fishing grounds were not a "place" for the purpose of the definition and thus, if the voyage be looked at as from a port of departure, Fremantle to fishing grounds, it was not a voyage between a place in Australia and a place outside Australia. He submitted that a place is a fixed position and that a voyage to the best fishing grounds wherever they may be was not a voyage to a place and, indeed, s.130C specifically provided that "place outside Australia" does not include "an area of waters, outside Australia".
"In our opinion", the Tribunal said,
"the crucial question is whether the meaning of the term 'international voyages' is limited to the plural of the meaning given to 'international voyage' in s.130C. Every voyage has a commencement and an end. If the section required all international voyages to have a commencement or an end in Australia, the section would exclude from its ambit those voyages in which ships visited Australia in the course of voyages commencing and terminating in a country or countries overseas. There are three reasons for concluding that the section does not intend this result. The first is that the context of Part VII of the Customs Act 1901 (Cth) is as applicable to all vessels which engage in international voyages as it is to those whose voyages have a commencement or an end in Australia. Secondly, the definition of 'ship' is not a definition which operates by way of inclusion but is one that operates by way of exclusion. Thirdly, it is the term 'international voyage' which is defined not the term 'international voyages'. In our opinion, the definitions in s.130C do not restrict Part VII of the Customs Act 1901 (Cth) to vessels whose voyages commence or conclude in Australia but rather they make it clear which vessels are not subject to the Part. In our opinion, the term 'international voyages' ought to be read as comprehending all international voyages properly so described in ordinary parlance, including those voyages which meet the description of 'international voyage' in s.130C. The definition of 'international voyage' plays a particular though not a sole role by defining the circumstances when a ship, which would otherwise be subject to the Part, is not so entitled by reason of the fact that it 'is about to make a voyage other than an international voyage'.
We have no doubt that the subject vessels were currently engaged in making international voyages, using that term in its ordinary sense. These vessels were currently engaged in making fishing voyages from Japan to the southern oceans, calling in at ports in Africa and Australia and from time to time New Zealand, Indonesia and other countries, back to Japan. No other voyages could more appropriately be called international voyages. The pattern of the trade in which the vessels were engaged involved them continuously in international voyages."
The Tribunal held that the definition of "ship" in s.130C "excludes (a) a ship that is not currently engaged in making international voyages. None of the subject vessels was so excluded. Paragraph (b) of the definition, excludes a ship which, although it is currently engaged in making international voyages, is 'about to make a voyage other than an international voyage'". The Tribunal referred to Board of Trade v Baxter (1907) AC 373 and held that "in the present case, none of the vessels commenced a separate enterprise or voyage in Australia. In the case of each vessel, its voyage was from Japan to Japan. Its enterprise was to fish and to fill its holds with SBT, on the completion of which it was to return to its home base. The visits to Fremantle were simply part of this international trade. None of the vessels made or was about to make 'a voyage other than an international voyage'".
In the Tribunal's opinion, "as the subject vessels were currently engaged in making international voyages and were not making or about to make a voyage other than an international voyage, they were 'ships' for the purposes of Part VII of the Customs Act 1901 (Cth) and were 'overseas ships' within the meaning of the definition in s.4(1) of the Excise Act 1901 (Cth) and within the meaning of that as used in s.160A(5) of that Act".
It followed, the Tribunal held, "that the diesel fuel which was taken on board in Fremantle was 'ship's stores' for the purposes as defined in s.160A(5) of the Excise Act 1901 (Cth) and therefore was not liable to excise duty".
The Tribunal thought that "the position would have been different had the subject vessels made Fremantle their home port on a temporary basis. Had they based themselves in Fremantle for six or nine months and had they then fished within or outside the Australian Fishing Zone off-loading their catch at Fremantle, then they would have been engaged in making individual voyages from Fremantle that were not voyages from a place within Australia to a place outside Australia. A voyage to fishing grounds outside the Australian Fishing Zone is not a voyage to a place outside Australia. That situation does not apply to the vessels with which we are concerned, for the voyage on which they were engaged was a voyage which commenced in Japan and ended in Japan. No separate voyage from Fremantle to Fremantle, from Fremantle to Hobart or Fremantle to the fishing grounds was undertaken".
As has been noted, s.130c provides that "ship" does not include
(a) a ship that is not currently engaged in making international voyages; or
(b) a ship that is currently engaged in making international voyages but is about to make a voyage other than an international voyage.
The section provides that "international voyage" in relation to a ship means a voyage, whether direct or indirect, between a place in Australia and a place outside Australia. "Place outside Australia" does not include
(a) a ship, or an area of waters, outside Australia;
(b) an installation outside Australia, or
(c) a reef, or an uninhabited island outside Australia."
For excise purposes in relation to a ship, the questions to be asked are
1. Is the ship in question one that is currently engaged in making international voyages?
2. If so, is it about to make a voyage other than an international voyage?
If the first question be answered "No", there is liability to excise in respect of its stores. If both questions be answered "Yes", there is liability to excise.
The section thus provides for the characterisation of the ship itself. Upon its becoming currently engaged in making international voyages, its stores are not liable to excise but they become liable if it is about to make a voyage other than an international voyage.
Section 23(a) of the Acts Interpretation Act 1901 provides:-
"In any Act unless the contrary intention appears, ...
(b) words in the singular number include the plural and words in the plural number include the singular"
If the definition of "international voyage" in the singular in s.130C includes the plural, "international voyages" in relation to a ship means voyages, whether direct or indirect, between a place in Australia and a place outside Australia, as defined.
On this interpretation, the section provides a self-contained code by which liability to excise is to be determined. Those who may be liable to excise and those who are called upon to collect it are provided with statutory tests by reference to which liability to excise is to be determined. Those tests are to be applied in deciding not only what are international voyages but also what is not an international voyage.
If, on the other hand, "international voyage" is to be given its statutory meaning but "international voyages", in the words of the Tribunal,
"ought to be read as comprehending all international voyages properly so described in ordinary parlance, including those voyages which meet the description of 'international voyage' in s.130C"
those who may be liable to excise and those who are called upon to collect it have to apply two quite different tests. They must first ask the question -
"Is the ship currently engaged in international voyages properly so described in ordinary parlance",
and if they succeed in correctly identifying the meaning of the term "international voyages" in that sense, and answer the question in the affirmative, they must then ask the second question whether the ship is about to make "a voyage other than an 'international voyage'". For that latter purpose they must construe "international voyage", in the statutory sense, as being a voyage, whether direct or indirect, between a place in Australia and a place outside Australia, as defined.
It would be a strange result if the question of liability to excise were to be determined in this fashion. In my opinion, no contrary intention appears which prevents the singular "international voyage" from including the plural.
The interpretation of the term "international voyages" was rightly described by the Tribunal as crucial to its decision.
Once it is held that the singular "international voyage" includes the plural, liability to excise duty is established in respect of the fuel taken on board by each of the three vessels.
Each vessel was either not currently engaged in making international voyages, or, if it were, it was about to make a voyage to the fishing grounds, an area of waters outside Australia, and so was about to make a voyage other than an international voyage.
I would:
1. allow the appeal in relation to the diesel fuel taken on board by the "Kaei Maru 28", the "Miho Maru 31", and the "Ryoei Maru 18"
2. set aside the decision of the Tribunal dated 10 December 1985 in relation to that diesel fuel
3. affirm the decisions of the Collector of Customs, Western Australia in relation to that diesel fuel
4. order that the first and second named respondents pay the costs of the Collector of Customs, Western Australia of the appeal in relation to that diesel fuel
5. dismiss the appeal against the decision of the Tribunal in relation to the "Nikko Maru 5"
6. order that the Collector of Customs, Western Australia pay the costs of the third and fourth respondents of the appeal in relation to the "Nikko Maru 5".
JUDGE2
This case concerns the interpretation of Part XIV of the Excise Act 1901 (Cth) and Part VII of the Customs Act 1901 (Cth) relating to ship's stores. The relevant facts and statutory provisions are set out in the reasons for judgment of Sweeney J. so I need not repeat them in any detail.
The legislation exempts from excise duty and customs duties ship's stores where the ship is currently engaged in making international voyages and is about to make a voyage between a place in Australia and a place outside Australia. Although this is broadly stated it is in essence the purport of the provisions which are somewhat convoluted. The history of the legislation illustrates in particular that the legislature has been concerned to ensure that the exemption from excise and customs duties does not apply to ships engaged in Australian coastal traffic. The legislation makes similar provision exempting aircraft's stores from excise and customs duties.
The provisions took a fairly simple form until 1982 when the Customs and Excise (Amendment) Act 1982 (Act No. 81 of 1982) made substantial changes to the interpretation provision of Part VII of the Customs Act, namely, s. 130C. The section is simple in concept though not in language. The effect of the legislation in its present form is that if a ship is currently engaged in making "international voyages" it is entitled to exemption from duty but not if it is about to make a voyage other than an "international voyage". If it were not for the definition of the expression "international voyage" in s. 130C I would recognise the force of the view taken by the Administrative Appeals Tribunal that the expression "international voyages" where appearing in para. (a) of the definition of "ship" means international voyages according to ordinary parlance, that is, ships engaged in voyages between ports of different countries, not necessarily Australian ports. But I find it impossible to so construe the expression "international voyages" when both it and the singular of the same expression appear in the same definition section which itself defines the singular expression "international voyage" by an exhaustive definition, in relation to a ship, as meaning a voyage whether direct or indirect between a place in Australia and a place outside Australia. I see no warrant therefore for giving the expression "international voyages" a meaning different from the defined expression "international voyage". It is true that one is cast in the plural and the other in the singular; but para. 23(b) of the Acts Interpretation Act 1901 (Cth) operates to treat the singular "international voyage" as including the plural and to include the singular in the plural expression "international voyages". Not only do I discern no intention to the contrary of the operation of the Acts Interpretation Act, but in my view its application produces a consistent and sensible interpretation and one that is consonant with the legislative scheme of exemption of ship's stores from duties. Thus, for ship's stores to be exempt from excise duty and customs duty the ship must first, be one currently engaged in making voyages between places in Australia and places outside Australia, and second, the particular voyage that is about to be undertaken by it (and for which it is presumably taking stores on board) is not a voyage of a different character.
There is, therefore, no room for the interpretation of the expression "international voyages" as encompassing voyages of ships between overseas ports not necessarily being Australian ports; and it is useful to remember that the Excise Act and the Customs Act only relevantly concern ship's stores when the vessel touches at an Australian port. Hence, by construing the expression "international voyages" in s. 130C as being the plural of the defined expression "international voyage" no violence is done to the legislative provisions and no result is produced that is not consonant with the legislative scheme.
In the course of argument various examples were cited which may produce an occasional anomaly if the construction which I prefer is followed; but there are also anomalies, probably more, if the construction for which the respondents contend is accepted, namely, that "international voyages" is to be understood in its ordinary sense rather than as the plural of the statutorily defined expression "international voyage".
The use of the word "currently" with reference to a ship that is not currently engaged in making international voyages or a ship that is currently so engaged but is about to make a voyage other than an international voyage calls for some comment. "Currently" obviously imports a temporal consideration and it takes its meaning from the statutory context. "Currently" means the time when the master or owner of the ship applies to a Collector of Customs for his approval to take ship's stores on board the ship and the Collector then considers whether to grant the approval or not pursuant to s. 129 of the Customs Act. The availability of the exemption is therefore determined at that time and the first question for the Collector to decide is whether the ship is or is not currently engaged in making international voyages in the sense of voyages between places in Australia and places outside Australia. If this question is answered in the affirmative the next question for the Collector to determine is whether the voyage on which the ship is about to embark will be between a place in Australia and a place outside Australia. If that question is answered in the affirmative the exemption applies; and if it is not the exemption is not available and duty is exigible.
Accepting this interpretation and applying it to the facts of this case it is apparent that none of the vessels with which this case is concerned qualify for exemption for two reasons. First, they are not vessels which at any relevant time were "currently engaged in making international voyages"; that is voyages between places in Australia and places outside Australia. The expression "place outside Australia" is defined in s. 130C as not including, amongst other things, "an area of waters" outside Australia. The vessels with which this case is concerned each entered the port of Fremantle from time to time. One of them, the Miho Maru 31, entered the port of Hobart on two occasions. The vessels took on board stores including fuel and, after a considerable lapse of time, they generally returned to the same Australian port. They were, in the meantime, fishing for Southern Blue-fin Tuna in waters which it is agreed were outside Australian territorial waters. Each vessel made a voyage from an Australian port, but a voyage for the purpose of continuing its fishing activities. This meant that in due course the vessel would enter a port but the particular port selected depended upon the discretion of the fishing master at the time which in turn depended upon numerous considerations including the need for fuel, other ship's stores and rest and recreation of the crew. In no sense were the vessels, upon leaving an Australian port, about to make voyages between a place in Australia and a place outside Australia. They were not therefore "currently engaged in making international voyages".
The second reason for the exemption not applying in this case is that none of the vessels was about to make an "international voyage" in the relevant statutory sense when taking on board the stores including fuel with which this case is concerned. I do not subscribe to the view that the vessels were engaged in merely one voyage commencing in Japan and ending there some considerable time, indeed years, later. For the purposes of the Excise Act and Customs Act the relevant enquiry must be whether at the time approval is being sought from a Collector to take ship's stores on board, the vessel is about to make a particular voyage of the kind postulated by s. 130C, namely, an "international voyage". The section requires that the vessel is about to make a specific voyage if immunity from duty is to be available. If it is not, then duty is exigible. For the reasons I have already given none of the particular voyages for which stores were taken on board in this case answer the description of an "international voyage" in its statutory sense.
I have examined the second reading speeches of the responsible Ministers when introducing the legislation amending the Customs Act and the Excise Act from time to time, in particular the amendments made to the Customs Act by the Customs Act (No. 2) 1968 and by the Customs and Excise (Amendment) Act 1982 and the amendments made to the Excise Act by the Excise Act (No. 2) 1968, but they shed no light on the questions before us.
The Tribunal dealt not only with the question of excise duty relating to "ship's stores" but with the further question whether certain cigarettes, whisky, beer and diesel oil were liable to customs duty, namely, those on board the vessel the Nikko Maru 5 when it berthed at Fremantle on 19 November 1984. Although the Tribunal dealt with this question and answered it favourably to the relevant respondents, namely, the third and fourth respondents, and the appeal was brought by the Collector from this decision of the Tribunal, the Collector abandoned this ground of appeal before us.
I would therefore allow the appeal in respect of the question of excise duty, set aside the decision of the Administrative Appeals Tribunal dated 10 December 1985 relating to that question and affirm the decisions relating to that question of the appellant, Collector of Customs for the State of Western Australia, which were under review by the Administrative Appeals Tribunal. The Tribunal's decision setting aside the Collector's decision relating to the customs duty question should be affirmed and the appeal from that decision of the Tribunal dismissed. The first and second respondents should pay the Collector's costs of the appeal to this Court. The Collector should pay the costs of the third and fourth respondents of the appeal to this Court.
JUDGE3
I have had the advantage of reading the reasons for judgment prepared by each of the other two members of the Court. I agree in the reasons each gives for the orders they propose and I concur in those orders.
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