Department of Environment and Natural Resources v Ocean Ship Management Limited and Department of Environment and Natural Resources v Gardon - [2020] NTSC 40

CITATION:Department of Environment and Natural Resources v Ocean Ship Management Limited & Department of Environment and Natural Resources v Gardon [2020] NTSC 40

IN THE MATTER of a Special Case stated by the Local Court for the opinion of the Supreme Court pursuant to s 162 of the Local Court (Criminal Procedure) Act in Complaints 21837441 and 21837939

PARTIES:DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES

v
OCEAN SHIP MANAGEMENT LIMITED (IMO Company 4140987)
and
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
v
GARDON, Ferdinand Perete

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:2 of 2020 (21837441) and
3 of 2020 (21837939)

DELIVERED:  30 June 2020
HEARING DATE:  11 June 2020
JUDGMENT OF:  Kelly J

CATCHWORDS:
CASE STATED by the Local Court for the opinion of the Supreme Court pursuant to s 162 of the Local Court (Criminal Procedure) Act – whether the Local Court has power to authorise service of a summons issued under the Local Court (Criminal Procedure) Act outside Australia by methods not specifically authorised by statute – the Local Court does not have such a power
Marine Pollution Act 1999 (NT) – whether s 97(1)(4) of the Act confers a power on the Local Court to authorise service of a summons issued under the Local Court (Criminal Procedure) Act outside Australia by a method other than those specified in the Marine Pollution Act – s 97(4)(b) does not confer such a power on the Local Court
Mutual Assistance in Criminal Matters Act 1987 (Cth) s 7(3) - Mutual Assistance in Criminal Matters (Greece) Regulations 2004 (Cth) regulation 4 – whether taken together these incorporate into domestic law the provisions of Article 10 of the Treaty between Australia and the Hellenic Republic on Mutual Assistance in Criminal Matters done at Athens on 4 July 2002 and thereby provide a mechanism for requesting assistance from Greece in the service of a summons issued under the Local Court (Criminal Procedure) Act in Greece - neither regulation 4 nor s 7(3) has the effect of incorporating into domestic law Article 10 of the Treaty except insofar as Article 10 relates to the service of documents for one of the purposes which are the subject of the Mutual Assistance in Criminal Matters Act - the words in s 7(3), “subject to such limitations, conditions, exceptions or qualifications” as are necessary to give effect to the Treaty, are words of restriction, they cannot expand the ambit of the Act – the Act and Regulations to not provide a mechanism for requesting assistance for the service of a summons issued under the Local Court (Criminal Procedure) Act in Greece
Evidence (National Uniform Legislation) Act2011 (NT)
Interpretation Act 1978 (NT) s 25
Local Court Act 2015 (NT) s 7, s 13, s 14, s 19, s 35
Local Court (Criminal Procedure) Act 1928 (NT) s 27, s 27A, s 35, s 49, s 57, s 97, s 192, s 162
Marine Pollution Act 1999 (NT) s 6, s 13, s 97
Traffic Regulations 1999 (NT)
Acts Interpretation Act 1901 (Cth) s 28A
Australian Postal Corporation Act 1989 (Cth)
Corporations Act 2001 (Cth) s 109X
Mutual Assistance in Criminal Matters Act 1987 (Cth) s 5, s 7
Mutual Assistance in Criminal Matters (Greece) Regulations 2004 (Cth)
Mutual Assistance in Criminal Matters (Switzerland) Regulations 1994 (Cth) s 7
Service and Execution of Process Act 1992 (Cth)
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature 15 November 1965, 658 UNTS 163 (entered into force 10 February 1969)
International Convention for the Prevention of Pollution from Ships, opened for signature 2 November 1973, 1340 UNTS 184 as modified by the Protocol of 1978 to the 1973 Convention, opened for signature 17 February 1978, 1341 UNTS 3 (entered into force 14 January 1988) (MARPOL 73/78)
Agar v Hyde [2000] 201 CLR 552; Bollag v Attorney-General for the Commonwealth (1997) 79 FCR 198; Filipowski v Frey [2004] NSWLEC 182; Laurie v Carroll (1957) 98 CLR 310; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; The Commissioner of the Australian Federal Police v Kaur and Singh [2016] VSC 13; Thompson v Noall (1980) 30 ALR 162, referred
REPRESENTATION:
Counsel:
Applicant/Complainant:              N Christrup SC
Respondent/Defendant:               Not represented
Solicitors:
Applicant/Complainant:
Respondent/Defendant:
Judgment category classification:    B
Judgment ID Number:  Kel2008
Number of pages:  25

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Department of Environment and Natural Resources v Ocean Ship Management Limited & Department of Environment and Natural Resources v Gardon [2020] NTSC 40
No. 2 of 2020 (21837441) and No. 3 of 2020 (21837939)

BETWEEN:

DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES

Applicant/Complainant

v

OCEAN SHIP MANAGEMENT LIMITED (IMO Company 4140987)
Respondent/Defendant

AND BETWEEN:

DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
Applicant/Complainant

v

FERDINAND PERETE GARDON

Respondent/Defendant

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 30 June 2020)
Background

On 19 August 2016 between 0400 to 0700 hours, oil was discharged from a vessel in Darwin Harbour resulting in an oil slick around 30 km long.
Investigations revealed that the oil matched oil from the MV Antung (IMO 9371957)[1] (“the vessel”) and on 10 August 2018, a complaint and summons was issued for offences under the Marine Pollution Act 1999 (NT) in relation to the oil slick, against each of the master, owner and manager of the vessel, all of whom were located outside Australia. The manager is a company registered in Greece.
The Local Court has made a finding that the manager is an “owner” within the definition of s 6 of the Marine Pollution Act as its role included:
(a)providing the crew and the master for the vessel;
(b)appearing as the listed manager for the purposes of the Time Charter over the vessel; and
(c)being responsible for the safety management systems of the vessel.[2]
The vessel has since been renamed the MCP London and the owner of the vessel at the time of the incident, a Dutch company, has been deregistered. The master is a resident of the Philippines and his whereabouts is unknown to the applicant.
Section 97 of the Marine Pollution Act provides methods whereby documents may be served on the owners and masters of ships. For reasons which are unnecessary to set out, the applicant has been unable to effect service on the manager by any of those prescribed means.
The manager has not been formally served with the summons, but it has been informally notified of the existence of the proceedings and the date on which it was to be heard and provided with a copy of the summons and all relevant material. The manager has responded, effectively acknowledging receipt of the summons and supporting documents, but has not entered an appearance.
The proceedings
The applicant applied to the Local Court for an order, effectively a declaration, that service had been validly effected on the manager, or alternatively, for an order authorising service by the means which have already been adopted and which have effectively brought the proceeding to the attention of the manager. It no longer presses the application for a declaration that service has been validly effected, but seeks an order from the Local Court authorising service by the informal method already adopted.
The application in relation to service was heard in the Local Court on 20 February, 4 March, 20 March and 6 April 2020. At the conclusion of those hearings, Judge Neill:
(a)dismissed the complaint against the owner, because the company is now deregistered;
(b)held the complaint against the master in abeyance pending any return to the jurisdiction from his home country of the Philippines so that personal service can be effected; and
(c)reserved a special case for the opinion of the Supreme Court pursuant to s 162 of the Local Court (Criminal Procedure) Act 1928 (NT) on whether the Local Court has jurisdiction to make an order for service on the manager with extraterritorial effect.
The Special Case reserved for the opinion of the Supreme Court is:
(a)whether there is any provision (express or implied) within Northern Territory legislation which confers jurisdiction upon the Local Court, thereby empowering it to make an order for service with extraterritorial effect, namely:
(i) whether the Local Court can exercise the powers in s 97(4) of the Marine Pollution Act 1999 (NT), or alternatively ss 19(2)(a) and 35(2)(d) of the Local Court Act 2015 (NT), to make an order authorising or permitting service with extraterritorial effect of the complaint filed under s 49 and summons issued under s 57(2) of the Local Court (Criminal Procedure) Act 1928 (NT) against Ocean Ship Management Ltd, the manager of the Vessel MV Antung at the relevant time (case 21837939); and
(ii) whether the Mutual Assistance in Criminal Matters Act 1987 (Cth) and the Mutual Assistance in Criminal Matters (Greece) Regulations 2004 (Cth), when taken together with the Northern Territory legislation, confers jurisdiction on the Local Court to order service of the complaint filed under s 49 and summons issued under s 57(2) of the Local Court (Criminal Procedure) Act 1928 against Ocean Ship Management Ltd, the manager of the Vessel MV Antung at the relevant time (case 21837939).
The Marine Pollution Act
Part 2 of the Marine Pollution Act is headed “Prevention of pollution by oil”. Section 13 (in Part 2) provides that the purpose of Part 2 is to give effect to the relevant provisions of MARPOL. (MARPOL is defined in s 7 as the International Convention for the Prevention of Pollution from Ships, 2 November 1973.) Section 14 creates a number of offences.
Relevantly, s 14(4) provides:
A ship’s owner and a ship’s master must not cause or permit the discharge of oil from a ship into coastal waters if:
(a) material environmental harm results; and
(b) he or she knows, or ought reasonably be expected to know, that serious environmental harm or material environmental harm will or might result from the discharge.
Section 14(5) provides:
A ship’s owner and a ship’s master must ensure that oil is not discharged from the ship into coastal waters.
An offence against s 14(5) is a regulatory offence[3] and carries a lesser penalty than an offence against s 14(4). The manager of the vessel (along with the owner and master) has been charged with offences against both sub-sections.
The issue
The issue before the Local Court, which has been referred for the opinion of this Court pursuant to s 162 of the Local Court (Criminal Procedure) Act is whether the Local Court has the power to make an order for service of the summons on the manager outside Australia by means other than those prescribed in the Marine Pollution Act.
General Principles
The general common law rule is that “the writ does not run beyond the limits of the State”.[4] For actions in personam, the defendant must be amenable to the command of the writ and that amenability depends on his being present within the jurisdiction.[5]
The common law position may be overridden by statute or by rules of court which provide for service of court processes out of the jurisdiction (including out of Australia).[6]
Service outside the jurisdiction is not ordinarily available in criminal matters. Legislative provisions need to be clear and unambiguous before they should be treated as authorising the service of an originating process in a criminal matter outside the jurisdiction.[7]
Service out of the jurisdiction must be effected in accordance with the rules providing for service out of the jurisdiction. A plaintiff cannot obtain substituted service of a writ (or other originating process) out of the jurisdiction; otherwise the strict conditions regulating service out of the jurisdiction would be ineffective.[8]
The question, accordingly, becomes whether there are any statutes or rules of court pursuant to which the Local Court has power to make an order for service on the manager which has extraterritorial effect.
Service provisions on which the applicant does not rely
On the hearing of the Special Case, counsel for the applicant helpfully outlined potential provisions relating to service of proceedings which the applicant has investigated and on which it does not rely either as authorising service outside Australia on their own terms[9] or as empowering the Local Court to authorise service outside Australia.
(a)The Corporations Act 2001 (Cth) s 109X does not apply. It refers to service of companies registered in Australia, or on directors of companies resident in Australia. The manager is not registered in Australia and has no directors resident in Australia.
(b)The Service and Execution of Process Act 1992 (Cth) applies only to service between the States and Territories in Australia.
(c)Extradition procedures cannot apply because the manager is a corporation, not a natural person.
(d)The Interpretation Act 1978 (NT) s 25 provides:
Service of documents
(1)A person may serve a document on an individual or body (the recipient):
(a)   by giving it to:
(i)    if the recipient is an individual – the recipient; or
(ii)if the recipient is a body – an executive officer of the body; or
(iii)in any case – a person authorised by the recipient to receive the document; or
(b)   by sending it by prepaid post addressed to the recipient at the recipient’s address; or
(c)   by sending it to the recipient by fax; or
(d)   by leaving it, addressed to the recipient, at the recipient’s address with someone who appears to be at least 16 years old and appears to live or be employed there.
(2)A document served under subsection (1)(b) is taken to be served when it would have been delivered in the ordinary course of post.
(3)Subject to evidence to the contrary, a document served under subsection (1)(c) is taken to be served when it was sent to a current fax number of the recipient.
(4)A document served under subsection (1)(d) is taken to be served when it was left with the person mentioned in the subsection.
(5)This section has effect for the service of a document whether or not the word serve is used in the law providing for the service of the document.
(6)In this section:
“address”, of a recipient, includes the latest home and business addresses of the recipient that are recorded for a law in force in the Territory.
“body” includes an incorporated body.
“document” includes a notice and any other thing that may be sent by a method mentioned in subsection (1).
“executive officer”, of a body, means:
(a)for an Agency – the Chief Executive Officer of the Agency. or
(b)otherwise – a person (however described) who is concerned with, or participates in, the body’s management.
However, that section does not assist because the Local Court (Criminal Procedure) Act ss 27 and 27A require personal service of a summons issued under that Act.
(e)Section 160 of the Evidence (National Uniform Legislation) Act2011 (NT) concerns proof of receipt of documents posted within Australia only.
(f)The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 15 November 1965 applies to civil proceedings only.
The service provisions of the Local Court (Criminal Procedure) Act are contained in s 27 and 27A. They make no express reference to service outside Australia, and there is nothing in the Local Court Rules which makes provision for service outside Australia. Those sections provide:
Section 27:
Service of summonses and notices under this Act
Subject to the provisions of this or any other enactment specially applicable to the particular case, any summons or notice required or authorised by this Act to be served upon any person, may be served upon the person by:
(a)     delivering it to him personally; or
(b)     leaving it for him at his last or most usual place of abode or of business with some other person, apparently an inmate thereof or employed thereat, and apparently not less than 16 years of age.
Section 27A:
Service of summons under section 57(2)[10]
(1) A summons issued under section 57(2) to a person other than a corporation may be served on a defendant:
(a)by delivering 2 copies of the summons to the defendant personally; or
(b)subject to subsection (2),[11] by leaving 2 copies of the summons for the defendant at his last-known place of abode or business with a person apparently an inmate or employed at that place and apparently not less than 16 years of age; or
(c)subject to subsections (2) and (3), by posting by registered post service, as provided under the Australian Postal Corporation Act 1989 of the Commonwealth, 2 copies of the summons to the defendant at his last-known place of abode or business.
(3)   A summons served under subsection (1)(c) on a defendant shall be served:
(a)if the offence alleged in the summons is an offence in respect of which a traffic infringement notice, within the meaning of Part 3 of the Traffic Regulations 1999, may be served – not later than 90 days after the date of the alleged offence; or
(b)in any other case – not later than 60 days after the date of the alleged offence,
and not earlier than one month before the date shown on the summons as the date for the hearing of the charge to which that summons relates.
(4) A summons issued under section 57(2) to a corporation may be served on the corporation:
(a)by delivering 2 copies of the summons to a director, secretary, or other responsible officer of the corporation; or
(b)by posting by registered post service, as provided under the Australian Postal Corporation Act 1989 of the Commonwealth, 2 copies of the summons to the principal place of business of the corporation in the Territory.
(5)   In the absence of evidence to the contrary, the address appearing on the summons shall be deemed to be the defendant’s last-known place of abode or business.
(6)   Where a summons has not been served personally, the Court may, if it is of the opinion that there is a reasonable probability that the summons has not come to the notice of the defendant, refuse to adjudicate upon the complaint and direct that a fresh summons be issued and served personally on the defendant.
Sub-section (4)(b) does not assist. The Australian Postal Corporation Act 1989 contains no reference to registered mail. The applicant advised the Court that registered mail through Australia Post is available only within Australia.
The applicant does not rely on s 27A(6) conceding, correctly in my view, that it cannot be construed as permitting the Local Court to adjudicate upon a complaint where the summons has come to the attention of the defendant. It merely gives the court a discretion to refuse to do so where service has been effected by one of the means authorised in the earlier sub-sections but there is a reasonable probability that the summons has not come to the defendant’s attention.
Provisions upon which the applicant relies
The applicant contends that the Local Court does have power to authorise service on a defendant outside Australia on two alternative bases.
First, the applicant contends that s 97(4)(b) of the Marine Pollution Act confers on the Local Court the power to authorise service outside Australia by means other than those specified in the balance of that section. Alternatively, the applicant contends that the Mutual Assistance in Criminal Matters Act 1987 (Cth) and the Mutual Assistance in Criminal Matters (Greece) Regulations 2004 (Cth) empower the Local Court to request the Commonwealth Attorney General to facilitate the service of the summons on the manager in Greece.
(a)Section 97(4)(b) of the Marine Pollution Act

The contention that s 97(4)(b) of the Marine Pollution Act empowers the Local Court to authorise service of the summons on the manager outside Australia has two aspects.
(a)First, the applicant contends that s 97(4)(b) empowers the Local Court to authorise service of a summons by a method other than that set out in the Act.
(b)Second, the applicant contends that that power extends to authorisation of service outside Australia.
Section 97 provides:
Service of documents
(1)     A document may be served on a ship’s master by leaving it:
(a)if, at the time of service, there is a person on board who is apparently in charge of the ship – with the person, after explaining to the person the purpose of the document; or
(b)otherwise – in a reasonably secure way in a conspicuous position near the ship’s controls.
(2)     If a document is required or permitted to be served on a ship’s master and it is impracticable to serve the document on the ship’s master, the document may be served on:
(a)the ship’s owner, including a previous owner of the ship; or
(b)the ship owner’s agent, including a previous agent of the owner of the ship.
(3)     A document is taken to be served on all owners of a ship if it is served on:
(a)an owner of the ship, including a previous owner of the ship; or
(b)the ship’s master; or
(c)an owner’s agent, including a previous agent of an owner of the ship.
(4)     Nothing in this section affects:
(a)the operation of another law that requires or permits service of a document other than as provided in this section; or
(b)the court’s power to authorise service of a document other than as provided in this section.
(5)     In this section:
previous owner, in relation to a ship, means the owner of the ship at the time the conduct occurred that is the subject of the document being served.
previous agent, in relation to a ship’s owner, means the ship owner’s agent at the time the conduct occurred that is the subject of the document being served.
The applicant has been unable to rely on sub-sections (1), (2) and (3). However, the applicant contends that s 97(4)(b) should be construed as a stand alone power authorising the Local Court to authorise service of a document otherwise than in accordance with the other provisions of s 97. I do not agree.
I agree with the applicant’s contention that the reference in s 97 to service of documents must include summonses issued under the Local Court (Criminal Procedure) Act for breaches of the provisions of the Marine Pollution Act. The Marine Pollution Act applies primarily to complaints about marine pollution; there is the reference in subsection (4) to “the court”; and there is no other section in the Act which provides for service of court documents.
However, I do not agree that s 97(4)(b) confers a power on the Local Court. On their plain meaning, the words of s 97(4)(b) refer to an existing power which the court has outside the Marine Pollution Act. It is a saving provision. So much is plain from the opening words of the subsection: “Nothing in this Act affects”. The other subsections provide methods of service. Subsection (4) is intended to make it clear that those methods of service are not exclusive. If another law permits a different method of service, then that method of service is preserved as valid [s 97(4)(a)]. If the court has power to authorise service by a different method, that power is preserved [s 97(4)[(4)(b)]].
The applicant contends that the use of the term “the court” rather than “a court” points to the construction contended for by the applicant. That contention cannot be accepted. The use of that term points, rather, to the provision being a saving provision referring to an existing power. It is certainly not a “clear and unambiguous” legislative provision empowering the Local Court to authorise service of a summons overseas by means other than those specified elsewhere in the Marine Pollution Act.
This view is supported by the decision of Forrest J in the Supreme Court of Victoria in The Commissioner of the Australian Federal Police v Kaur and Singh[12] (“Kaur and Singh”) in which the Court considered the effect of s 28A(2) of the Commonwealth Acts Interpretation Act 1901. Section 28A is in similar terms to s 97(4) of the Marine Pollution Act. It provides:
(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then the document may be served:
(a)on a natural person:
(i)by delivering it to the person personally; or
(ii)by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or

(b)on a body corporate--by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.

(2) Nothing in subsection (1):
(a)affects the operation of any law of the Commonwealth or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or
(b)affects the power of a court to authorise service of a document otherwise than provided in that subsection.[13]

Forrest J said:[14]
In my view, all that s 28A (1) and (2) mean is this: prima facie service may be effected personally or by pre-paid mail to certain addresses. However, if there are other Commonwealth or State laws that authorise a method of service, s 28A(1) of the AIA will not detract from, or override that method.
Although directed to the effect of s 28A(1) [the equivalent of s 97(4)(b)] this decision is support for the view that such statutory provisions are saving provisions which refer to existing State or Territory laws [in the case of s 97(4)(a)] and, by extension, existing court powers [in the case of s 97(4)(b)], and that s 97(4)(b) does not purport to confer any additional power on “the court”.
Had I determined that s 97(4)(b) empowered the Local Court to authorise service of a summons by methods other than those set out in s 97(1), (2) and (3), I consider there is some force in the applicant’s contention that such a power would have extended to authorising service outside Australia. (The applicant relied on the fact that the purpose of the Marine Pollution Act was to give effect to MARPOL;[15] the fact that the second reading speech for the Bill stated that the Act would apply to all international, interstate and Territory ships and boats and referred to the fact that MARPOL was aimed primarily at larger commercial ships; the fact that commercial shipping is primarily an international industry; and also on the fact that service on international vessels is notoriously difficult.) However, as I have determined that s 97(4)(b) does not confer such a power, this issue does not arise for decision.
(b)The Mutual Assistance in Criminal Matters Act and Regulations
The general principle is that a treaty does not become part of the domestic law of Australia unless and until it is incorporated into the law of Australia by legislation.[16] The applicant relies on the Mutual Assistance in Criminal Matters Act and Regulations as enactments that incorporate into Australian law a provision in the Treaty between Australia and the Hellenic Republic on Mutual Assistance in Criminal Matters which provides mutual obligations on Australia and the Hellenic Republic in relation to effecting service of documents when requested to do so.
Regulation 4 of the Mutual Assistance in Criminal Matters (Greece) Regulations provides:
The Mutual Assistance in Criminal Matters Act 1987 applies to Greece subject to the Treaty between Australia and the Hellenic Republic on Mutual Assistance in Criminal Matters done at Athens on 4 July 2002, a copy of the English text of which is set out in Schedule 1.
Article 10 of the Treaty annexed as Schedule 1 of the Regulations provides:
1. The Requested State shell, insofar as possible, effect service of documents which are transmitted to it for this purpose by the Requesting State.
(The following paragraphs set out times for requests to be made and other ancillary matters and contain a reference to service of “a document by which the appearance of a person is required” which would be apt to apply to court documents including summonses.)
The objects of the Mutual Assistance in Criminal Matters Act are set out in s 5:
The objects of this Act are:
(a) to regulate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country in respect of which powers may be exercised under this Act (whether or not in conjunction with other Australian laws); and
(b) to facilitate the obtaining by Australia of international assistance in criminal matters.
Section 7 provides (relevantly):
(2) The regulations may provide that this Act applies to a foreign country subject to:
(a)any mutual assistance treaty between that country and Australia that is referred to in the regulations;
…
(3) If the regulations provide, in accordance with subsection (2), that this Act applies to a foreign country subject to a mutual assistance treaty, then:
(a)if the treaty relates wholly to the provision of assistance in criminal matters – this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the treaty in relation to that country;
Since regulation 4 does provide that the Act applies to Greece subject to the Treaty between the two countries, s 7(3) is applicable. The applicant contends that the effect of s 7(3) is to incorporate the Treaty into domestic law and that Article 10 of the treaty therefore authorises the making of a request to Greece to serve the manager with the summons. (This could not be done directly by the Local Court: s 10 of the Act provides that such requests may only be made by the Commonwealth Attorney General. However, the applicant contends that Article 10 provides a mechanism whereby a request could be sent to Greece to serve the summons on the manager.)
I do not agree that s 7(3) has the effect of incorporating the Treaty into domestic law. The section does not explicitly do so. The words in s 7(3) are words of limitation. They start with the proposition that “this Act” [ie the Mutual Assistance in Criminal Matters Act] applies, but subject to “the limitations, conditions, exceptions or qualifications that are necessary to give effect to the Treaty”. There is nothing in the words of s 7(3) that could be construed as incorporating into domestic law any provisions of the Treaty that are outside the parameters of the Act.
It is therefore necessary to look at the scope of the Mutual Assistance in Criminal Matters Act to see whether it extends to service of originating processes in criminal matters and the conclusion is that it does not.
Part I deals with “Preliminary” matters and does not include any provision relating to the service of originating processes in criminal matters; Part II deals with “Assistance in relation to taking of evidence and production of documents or other articles”; Part III deals with “Assistance in relation to search and seizure”; Part IIIA deals with “Assistance in relation to stored communications’; Part IIIBA deals with “Assistance in relation to use of surveillance devices”; Part IIIBB deals with “Assistance in relation to data held in computers”; Part IIIB deals with “Assistance in relation to telecommunications data”; Part IV deals with “Arrangements for persons to give evidence or assist investigations”; Part IVA deals with “Forensic procedures”; Part V deals with “Custody of persons in transit”; Part VI deals with “Proceeds of crime”; Part VIIA deals with “Search, seizure and powers of arrest”; and Part VIII is headed “Miscellaneous” and deals with various administrative issues – it does not refer to the service of originating processes in criminal matters.
The various Parts of the Act appear, in general, to relate to assistance in the investigation of crime, the obtaining of evidence, and the enforcement of orders: there is nothing in the Act about assistance in relation to the service or criminal originating processes.
In my view, neither regulation 4, nor s 7(3) has the effect of incorporating into domestic law Article 10 of the Treaty except insofar as Article 10 relates to the service of documents for one of the purposes which are the subject of the Mutual Assistance in Criminal Matters Act listed above. It cannot be used to import into that Act (or into domestic law in any other way) matters not legislated for by the parliament.
I am fortified in this conclusion by the decision of the Federal Court in Bollag.[17] That case concerned a treaty between Australia and Switzerland annexed to the Mutual Assistance in Criminal Matters (Switzerland) Regulations (Cth). The respondents in that case argued that because the regulations resulted in the Swiss Treaty being applicable as a result of s 7 of the Act, the wider terms of the treaty effectively supersede and amend the narrower terms of the sections of the Act under consideration (dealing with requests for assistance in relation to search and seizure). The court rejected that contention and held that the words in s 7(3), “subject to such limitations, conditions, exceptions or qualifications” as are necessary to give effect to the Treaty, were words of restriction: they could not expand the ambit of the Act. Therefore the sections of the Act under consideration remained unchanged in their operation except to the extent that their operation might be read down to accord with the Treaty.[18]
The Mutual Assistance in Criminal Matters Act and Regulations and the treaty annexed to the Regulations do not authorise the Local Court (through the Attorney-General for the Commonwealth) to request the Hellenic Republic to assist in the service of the summons on the manager in Greece.
Local Court Act ss 19(2)(a) and 35(2)(d)
On the hearing of the Special Case, rightly in my view, counsel did not press an argument that ss 19(2)(a) and 35(2)(d) had the effect of empowering the Local Court to make an order for service of the summons outside Australia.
Section 19(2) provides:
Criminal jurisdiction under other laws
(2) The Court also has any other jurisdiction that:
(a)is conferred on the Court by another Act; and
(b)is expressed to be part of the Court’s criminal or summary jurisdiction (however described).
Section 35(2) provides:
Procedure generally
(2) The Court must conduct criminal proceedings in accordance with the following:
(a)the Local Court (Criminal Procedure) Act;
(b)the Criminal Code;
(c)this Act and the Rules;
(d)another Act that makes provision for the practice and procedure of the Court in criminal proceedings to which that Act applies.
These provisions do not, either separately or in combination, empower the Local Court to order service out of Australia of a summons charging a defendant with breaches of the Marine Pollution Act. At most, s 35(2)(d) would pick up any power conferred by s 97 of the Marine Pollution Act and, as set out above, that section does not empower the Local Court to order or authorise service of a summons outside Australia by means other than those set out in the balance of s 97.
The answers to the questions referred to this Court from the Local Court are, therefore as follows.
Special Case questions reserved for the opinion of the Supreme Court:
(a)Is there any provision (express or implied) within Northern Territory legislation which confers jurisdiction upon the Local Court, thereby empowering it to make an order for service with extraterritorial effect?
Answer:No
(i) Does s 97(4) of the Marine Pollution Act 1999 (NT), empower the Local Court to make an order authorising or permitting service with extraterritorial effect of the complaint filed under s 49 and summons issued under s 57(2) of the Local Court (Criminal Procedure) Act 1928 against Ocean Ship Management Ltd, the Manager of the Vessel MV Antung at the relevant time (case 21837939)?
Answer:No
(i) Does the Mutual Assistance in Criminal Matters Act 1987 (Cth) and the Mutual Assistance in Criminal Matters (Greece) Regulations 2004 (Cth), when taken together with the Northern Territory legislation, confer jurisdiction on the Local Court to order service of the complaint filed under s 49 and summons issued under s 57(2) of the Local Court (Criminal Procedure) Act 1928 against Ocean Ship Management Ltd, the Manager of the Vessel MV Antung at the relevant time (case 21837939)?
Answer:No. Nor do that Act and Regulations empower the Local Court to request the Attorney-General of the Commonwealth to make a request to the Hellenic Republic to assist in the service of the summons.
The capacity of the Local Court to make rules
If, as is the case, the answer to each of the referred questions is no, the applicant has requested this Court to comment on the capacity of the Local Court to make rules which would authorise the service of its summonses outside Australia. In support of this request, counsel for the applicant helpfully supplied examples of three instances in which Australian inferior courts have made rules providing for service of originating process abroad where the enabling rule making power does not refer specifically to service abroad.[19]
I do not think it is appropriate for me to give what would effectively be an advisory opinion, not necessary for the determination of any controversy before the Court. This is entirely a matter for the Local Court, taking advice, if thought necessary, from an appropriate source.
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[1]A unique official identification (“IMO”) number is allocated to ships and permanently linked to the hull, regardless of name, flag or owner under the International Convention for the Safety of Life at Sea.

[2] For the purposes of s 6 of the Marine Pollution Act: “owner” in relation to a ship means the person who owns the ship, whether or not the person is registered as the ship’s owner and includes a person:
(a) who exercises or purports to exercise, a power of an owner; and
(b) who operates the ship or causes or allows the ship to be operated by someone else.

[3] Marine Pollution Act 1999 (NT) s 14(6)

[4] Laurie v Carroll (1957) 98 CLR 310, 322

[5]ibid p 323; Agar v Hyde [2000] 201 CLR 552, 570-571, 575 per Gaudron, McHugh, Gummow and Hayne JJ; See also the judgment of Deane J in the Federal Court in Thompson v Noall (1980) 30 ALR 162, 163

[6] Laurie v Carroll (1957) 98 CLR 310, 322, 324 and 325

[7] Thompson v Noall (1980) 30 ALR 162, 163

[8] Laurie v Carroll (1957) 98 CLR 310, 325 and 332; Filipowski v Frey [2004] NSWLEC 182, 46, [49](b)

[9] Whether or not these, or any other statutory provisions authorise service of an originating process out of the jurisdiction on their own terms is not a question which has been referred to this Court. The only question referred is whether the Local Court is empowered to authorise service of a summons outside of Australia.

[10] Section 57(2) refers to summonses issued by a public official. The summons in this case was issued under s 57(2).

[11]There is no sub-section (2).

[12] [2016] VSC 13

[13] Subsection 28A(1) provides for different methods of service of documents.

[14] The Commissioner of the Australian Federal Police v Kaur and Singh [2016] VSC 13, [41]

[15]Marine Pollution Act 1999 (NT) s 13

[16]Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 286-287, 304, 315; See also Bollag v Attorney-General for the Commonwealth (“Bollag”) (1997) 79 FCR 198, 210

[17] supra

[18] Bollag, 215

[19] These are rules 7 and 80 of the County Court Civil Procedure Rules 2018 (Vic), rule 29(4) of the Children’s Court Rules 2016 (Qld) and rules made under the District Court Act 1991 (SA) and the Magistrates Court Act 1991 (SA) and incorporated in rules 63.4, 65.6 and 82.4 of the Uniform Civil Rules applicable in that State.