Lietzow v Cowderoy
[2000] QDC 446
•1/12/2000
DISTRICT COURT OF QUEENSLAND
CITATION: Martin John LIETZOW v Anthony John COWDEROY
[2000] QDC 446
PARTIES MARTIN JOHN LIETZOW
(appellant/complainant)
v
ANTHONY JOHN COWDEROY
(respondent/defendant)
FILE NO.: Maroochydore 7/2000
DIVISION: Chambers
PROCEEDING: Civil
ORIGINATING
COURT: Maroochydore Magistrates Court
DELIVERED ON: 1 December 2000
DELIVERED AT: Maroochydore
HEARING DATE: 16 November 2000
JUDGE: J.M. Robertson DCJ
ORDER: (1) The appeal is allowed.
(2)The orders of the Maroochydore Magistrates Court made on 15 February 2000 and 18 February 2000 are set aside.
(3)The Respondent is to pay the Appellant’s costs of the proceedings below, to be assessed on the standard basis, or as agreed.
(4)The Respondent is to pay the Appellant’s costs of the appeal, to be assessed on the standard basis, or as agreed.
(5)In respect of Order 4, the appeal having succeeded on a point of law, I grant to the Respondent an indemnity certificate in respect of the appeal, pursuant to section 15(3) of the Appeal Costs Fund Act 1973.
`
CATCHWORDS: CONSTITUTIONAL LAW; CONSTITUTIONAL LEGISLATIVE POWER; STATE LEGISLATION; JURISDICTION; EXTRA- TERRITORIAL POWER; vessel involved in collision with tanker in shipping lane 32 nautical miles off the Queensland Coast; Respondent/ship’s captain charged with breach of section 94(1) of the Transport Operations (Marine Safety) Act 1994; failure to keep a proper lookout; pursuant to s222 Justices Act (Qld), appeal against decision of Magistrate dismissing charge on basis the State legislation in question was not capable of applying extra-territorially; sovereignty; whether the Transport Operations (Marine Safety) Act and Regulations apply extra-territorially; power of the District Court on appeal; Transport Operations (Marine Safety) Act 1994 (Qld) ss.11, 12, 193, 195, 211; Transport Operations (Marine Safety) Regulations 1995 (Qld) regs 93 and 94; Acts Interpretation Act 1954 (Qld) s36; Fisheries Act 1952 (Cth) s4(2); Navigation Act 1912 (Cth) ss 2, 6, 258; Commonwealth Constitution s109; Coastal Waters (State Title) Act 1980 (Qld) ss4, 7, 8; Seas and Submerged Lands Act 1973 (Cth) s14; Australia Act 1986 (Cth) s2; Justices Act 1886 (Qld) ss222, 223
CASES CITED IN The State of New South Wales v The Commonwealth of Australia JUDGMENT: (The Seas and Submerged Lands case) (1975) 135 CLR 337
Croft v Dunphy [1933] AC 156
Port Macdonnell Professional Fishermen’s Association Inc. v South Australia (1989) 168 CLR 340
MacLeod v Attorney-General (NSW) [1891] AC 455
Attorney-General (Canada) v Cain [1906] AC 542
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1
Broken Hill South Ltd v Commission of Taxation (NSW) (1937) 56 CLR 337
Pearce v Florenca (1976) 135 CLR 507
Robinson v Western Australian Museum (1976) 138 CLR 283 Gould v Brown (1998) 72 ALJR 375
R v Olney [1996] 1 QdR 187
Quinn and Ors v Associated Steamships Proprietary Limited, The Woomera (1968) 2 Lloyd’s Law Rep. 271
James Patrick and Company Limited v The Union Steamship Company of New Zealand Limited (1938) 60 CLR 650
COUNSEL: Mr Milton Griffin for the Appellant.
Mr Paul Crisp for the Respondent.
SOLICITORS: Crown Law for the Appellant.
Kruger Law for the Respondent.
Introduction
At 12.43pm on 2 February 1999, the ‘Tina’, an 18.2m fishing vessel, was anchored at a reef 32 nautical miles off Noosa Heads in a major shipping lane catering for vessels travelling along the East Coast of Australia. It was a calm clear day with some cloud. Visibility was fair to good. The captain of the ‘Tina’, Anthony John Cowderoy (the Respondent), was asleep in his bunk. The remaining crew, Rod Macintosh and Daniel Wright, were also asleep. The radar of the vessel was on but on standby. The crew of the ‘Tina’ had been at sea for 9 days, engaged in trawling for prawns during the night. They had been at anchor since 8am and asleep since around 10 am. The Respondent was awoken at 12.43 pm by the sound of a ship’s horn. What he observed undoubtedly terrified him. Bearing down on the ‘Tina’ at full steam was a veritable behemoth – a giant bulk carrier – the Cemtex General, 224.95 in length with a beam of 32.2 metres. The Respondent had 10 seconds in which to react. He screamed at his crew to wake them and ordered them to the back deck. As this occurred, the Cemtex General was upon the ‘Tina’. According to the Marine Incident Report completed the next day by the Respondent, the Cemtex General collided with the boom of the ‘Tina’; this may well have saved the ship. The tiny vessel, in effect, ran down the side of the giant carrier with the boom acting as a buffer. The rails on that side of ‘Tina’ were taken out. The boom appeared to hit something solid on the side of the carrier which bent the boom forward releasing the ‘Tina’ from what may well have been a fatal embrace. The vessel was damaged. There were no injuries to any of the crew.
The Proceedings
After an investigation by Captain Marchbank, Acting Harbour Master, Brisbane, the Respondent was charged with a breach of section 211(2) of the Transport Operations (Marine Safety) Act 1994 (Qld) (as amended) (the “TOMSA”) and section 94(1) of the Transport Operations (Marine Safety) Regulations 1995 (the “TOMSA Regulation”) as follows:
“…on the Second day of February 1999 on the waters of the Pacific Ocean approximately 32 nautical miles east of Noosa Heads in the Magistrates Court District of Maroochydore (the Respondent) being involved in the operation of a ship, namely an 18.2 metre vessel powered by a 250 HP inboard motor, did contravene the Collision Regulations without reasonable excuse. Particulars: (the Respondent) being the master of the ship, failed to comply with Rule 5 of the Collision Regulations by not keeping a proper lookout at all times, thereby being involved in a collision with another ship…”
The Respondent pleaded not guilty and a summary trial proceeded in the Maroochydore Magistrates Court before His Worship Mr Johnstone S.M. on 3 February 2000. Mr Crisp appeared for the Respondent and argued that the Court did not have jurisdiction to hear the complaint. The Magistrate received full argument on the preliminary point, but sensibly proceeded with the trial. The complaint was dismissed with costs, effectively on the basis that the TOMSA Regulation, in conjunction with section 11(1)(a) of the TOMSA, was not a provision capable of applying extra-territorially in the circumstances of the complaint. The learned Magistrate so held on the basis that the matter complained of occurred outside of three nautical miles from Queensland’s territorial baseline.
The Legislative Scheme
To clearly expose the legal issues raised on the appeal, it is necessary to set out in detail the legislative scheme which underpins section 94(1) of the TOMSA Regulations. Section 211(1) and (2) of the TOMSA provide:
“Regulation may give effect to treaties, conventions or international agreements or documents
211(1)A regulation may give effect (with or without changes and whether in whole or part) to a treaty, convention or international agreement or document about ships.
Examples-
1.The Prevention of Collisions Convention (within the meaning of the Commonwealth Navigation Act, part IV).
2.The Safety Convention (also within the meaning of the Commonwealth Navigation Act, part IV).
3.Resolutions, codes, recommendations and other documents issued by the International Maritime Organisation.
(2)A person must not contravene a regulation made under subsection (1) that is declared to be a regulation to which this subsection applies, unless the person has reasonable excuse.
Maximum penalty – 500 penalty units or imprisonment for 1 year.”
Under Regulation 93 of the TOMSA Regulations, the Collision Regulations have effect as if they were part of the TOMSA Regulations. The Collision Regulations are defined in Schedule 11 to the TOMSA Regulations as the “Prevention of Collision Convention within the meaning of the Commonwealth Navigation Act”
Section 94(1) of the TOMSA Regulation provides that a person involved with a ship’s operation (including the owner, master, pilot and a member of the crew) must comply with the Collision Regulations. Section 94(1) is a regulation to which section 211(2) of TOMSA applies: s.94(2) TOMSA Regulation.
The Navigation Act 1912 (Cth) (as amended) (“the Navigation Act”) seeks to regulate many aspects of shipping in relation to the ships to which it applies, but does not apply to an Australian fishing vessel proceeding on a voyage other than an overseas voyage: section 2. An Australian fishing vessel means a fishing vessel that is registered in Australia or in relation to which an instrument under section 4(2) of the Fisheries Act 1952 (Cth) is in force. It is common ground that the ‘Tina’ is an Australian fishing vessel. An “overseas voyage” under the Navigation Act is defined in section 6 of that Act as follows –
“’overseas voyage’ in relation to a ship, means a voyage in the course of which the ship travels between:
(a)a port in Australia and a port outside Australia;
(b)a port in Australia and a place in the waters of the sea above the continental shelf of a country other than Australia;
(c)a port outside Australia and a place in the waters of the sea above the continental shelf of Australia;
(d)a place in the waters of the sea above the continental shelf of Australia and a place in the waters of the sea above the continental shelf of a country other than Australia;
(e)ports outside Australia; or
(f)places beyond the continental shelf of Australia
whether or not the ship travels between 2 or more ports in Australia in the course of the voyage.”
The undisputed facts here are that the ‘Tina’ left its home port of Mooloolaba some 9 days before the incident, intending to return to Mooloolaba, and therefore, was not engaged in an “overseas voyage” in terms of the Navigation Act. Consequently, the ‘Tina’ was a vessel covered by the section 2 exemption at the time of the incident.
The Respondent argued on appeal that the TOMSA does not apply because of the position of the ‘Tina’ 32 nautical miles off the Queensland coast. He faintly argued that in that event either the Navigation Act applied to cover the circumstances, or alternatively, there was a legal vacuum and no law applied. It is necessary, therefore, to consider any other provisions of the Navigation Act that may apply. Section 258 relates to collisions, lights and signals. It provides:
“258(1)The regulations may prescribe measures to be observed for the
prevention of collisions and may make provision for or in relation to the provision and use on ships of lights and signals.
(2)Without limiting subsection (1), the regulations may make provision for and in relation to giving effect to the Prevention of Collisions Convention.
(2A)The regulations, so far as they give effect to the Prevention of Collisions Convention, apply, despite section 2, in relation to ships in the areas constituted by:
(a)the high seas; and
(b)the territorial sea of Australia; and
(c)the sea on the landward side of the territorial sea of Australia; and
(d)waters other than waters of the sea;
as provided by subsections (2B) to (2E) (inclusive).
(2B)The regulations mentioned in subsection (2A) apply in relation to a ship (other than a ship of a kind referred to in subsection 2(1) while the ship is in any of the areas mentioned in subsection (2A)).
(2C)Subsection (2B) is not intended to exclude the operation of a state or Territory law, being a law that gives effect to the Prevention of Collisions Convention, in relation to a ship while it is in the area mentioned in paragraph (2A)(b), (c) or (d).
(2D)The regulations mentioned in subsection (2A) apply in relation to a ship of a kind referred to in subsection 2(1) while the ship is in the area mentioned in paragraph (2A)(A).
(2E)Subsection (2D) is not intended to exclude the operation of a State or Territory law, being a law that gives effect to the Prevention of Collisions Convention in relation to a ship while it is in the area mentioned in paragraph (2A)(a).[my emphasis added]
(2F)Where proceedings are instituted against a person for an offence, in relation to a particular matter, against:
(a)a provision of the regulations mentioned in subsection (2A); or
(b)a provision of a law of a State or Territory that gives effect to the Prevention of Collisions Convention;
proceedings must not also be instituted against the person for an offence, in relation to the same matter, against;
(c)if paragraph (a) applies – a provision of a kind referred to in paragraph (b); or
(d)if paragraph (b) applies – a provision of a kind referred to in paragraph (a).
(3)The conviction of a person for an offence against the regulations made by virtue of this section or the orders made under subsection 425(1AA) does not relieve that person from civil liability for damage occasioned by a default of that person.
(4)omitted
(5)The Court before which proceedings against a person for an offence against the regulations made by virtue of this section or other orders made under subsection 425(1AA) are heard shall be assisted by not less than 2 assessors of nautical experience appointed under Part IX who shall advise the Court but shall not adjudicate on the matter before the Court.
(6)An assessor who assists a Court shall be paid such remuneration and allowances as are paid to an assessor engaged in attendance on a Court of Marine Inquiry.
(7)A person who is guilty of an offence against the regulations made by virtue of this section is punishable on conviction:
(a)if the offender is a nautical person – by a fine not exceeding $10 000 or imprisonment for a period not exceeding 2 years, or both; or
(b)if the offender is a body corporate – by a fine not exceeding $20 000.”
The ‘Tina’ was 32 nautical miles from the shore, in the high seas. The effect of s258(2D) and (2E) is that, where a fishing vessel is on the high seas and a State law gives effect to the Collision Regulations, then the State law may apply to the fishing vessel whilst it is in that area. Similarly, the effect of s258(2B) and (2C) is that if a fishing vessel is in the territorial sea of Australia, or on the sea on the landward side of the territorial sea of Australia or in waters other than waters of the sea, a State law giving effect to the Collision Regulations in relation to a ship in such areas will have application to that ship. Section 12 of the TOMSA provides that the Act does not apply to a ship to the extent that the Navigation Act applies to the ship. This provision is designed to meet any challenge to the validity of the TOMSA by virtue of section 109 of The Constitution. Section 12(2) of the TOMSA provides that “if the ….Navigation Act provides that it does not apply to a matter if a State Act deals with the matter, and this Act makes provision for the matter, this Act applies…..to the extent of the provision made for the matter” [my emphasis added].
Section 211 of the TOMSA and regulations 93 and 94 of the TOMSA Regulations purport to apply to ships under the TOMSA. The Respondent submits that it does not. The first question is whether the ‘Tina’ is a ship to which the TOMSA applies. Section 11(1) of the TOMSA provides:
“This Act applies to the following ships –
(a) all ships connected with Queensland, wherever they may be;…”
A ship is “connected with Queensland” if –
“(a)it is registered under the Shipping Registration Act 1981 (Cwth) with a homeport in Queensland; or
(b) it is, or is required to be, registered or licensed under this or
another Act; or
(c) it is owned or chartered by –
(i)an individual whose place of residence, or principal place of residence, is in Queensland; or
(ii)a person whose place of business, or principal place of business, is in Queensland; or
(iii)a person whose principal place of business for managing the ship’s operations in Queensland; or
(d)it is ship declared by regulation to be a ship connected with Queensland.”
For the reasons stated earlier (by reference to section 258(2E) of the Navigation Act, s109 of the Commonwealth Constitution and section 12 of the TOMSA), the Navigation Act will not apply to some of the ships caught by section 11(1) of the TOMSA. As the ‘Tina’ was not on an “overseas voyage” in terms of the Navigation Act, and is a ship connected with Queensland in terms of either section 6(a), (b) or (c) of the TOMSA, it is a ship to which the TOMSA applies.
The second question then is whether the TOMSA applies in relation to the particular area which is in the high seas. It is to this point that the primary thrust of the Respondent’s argument on appeal relates. In light of the approach taken by the learned Magistrate it is necessary to examine the legislative power of the State of Queensland in relation to extraterritorial matters. This involves a consideration of two distinct issues, namely the sovereignty of the State of Queensland over a proprietary interest in land below the low water mark, and its right to regulate to control activities and to impose penalties extra-territorially.
(a) Sovereignty
Since the decision the High Court decision in The State of New South Wales v The Commonwealth of Australia (The Seas and Submerged Lands case) (1975) 135 CLR 337, it is clear that the boundaries of Queensland end at the low water mark, with the possible exception in the case of historic bays or other exceptions under section 14 of the Seas and Submerged Lands Act 1973 (Cth). In purported reliance on section 51(xxix) of the Constitution, the external affairs power, the Commonwealth passed the Coastal Waters (State Title) Act 1980. The preamble to the Act states its purpose as to vest in each of the States “proprietary rights and title in respect of certain land beneath the coastal waters adjacent to the State and within the sovereignty of the Commonwealth”. Section 4(1) of the Coastal Waters (State Title) Act 1980 provides:
“4(1)By force of this Act, but subject to this Act, there are vested in each State, upon the date of commencement of the Act, the same right and title to the property in the sea-bed beneath the coastal waters of the State, as extending on that date, and the same rights in respect of the space (including space occupied by water) above the sea-bed, as would belong to the State if that sea-bed were the sea-bed beneath waters of the sea within the limits of the State.”
On its face this section would during the operation of the Act, give the States the same right and title to the territorial sea-bed and waters above as they have to Crown land (and waters above) within the frontiers or borders of those States. Furthermore, on its face, it purports to vest in Queensland property, rights and title to the coastal waters and submerged lands over which the Commonwealth of Australia has sovereignty and over which, having regard to the decision in the Seas and Submerged Lands case, the States never enjoyed sovereignty.
Sovereignty is “the supreme authority in an independent society”. Internal sovereignty is the paramount power over all action within a State. At the same time, the Parliament, using the “request powers” under section 51(xxxviii) of the Constitution, enacted the Coastal Waters (State Powers) Act 1980 (Cth). This latter Act, “in furtherance of the Offshore Constitutional settlement with the Australian States” extended the legislative powers “exercisable from time to time under the constitution of each State” to the making of, inter alia, “all such laws…as could be made by virtue of those powers if the coastal waters…were within the limits of the State”. The “coastal waters of the State” extend from the low water mark to the territorial seas baseline and beyond for three nautical miles. Additionally, the Act provided that the legislative power exercisable from time to time under the Constitution of each State extends to the making of laws of the State with respect to fisheries in Australian waters beyond the outer limits of the coastal waters of the State, being laws applying to, or in relation to, those fisheries only to the extent to which those fisheries are, under an arrangement to which the Commonwealth and the State are parties to be managed in accordance with the laws of the State.
Nothing in the Coastal Waters (State Title) Act 1980 or the Coastal Waters (State Powers) Act 1980 affects the status of the territorial sea of Australia under international law, or the rights and duties of the Commonwealth in relation to ensuring the observance, in relation to that sea or any other waters, of international law, including the provisions of international agreements binding on the Commonwealth and, in particular, the provisions of the Convention on the Territorial Sea and the Contiguous Zone relating to the right of innocent passage of ships (see section 6 of both Acts). Nothing in the Coastal Waters (State Title) Act 1980 is to be taken to extend the limits of any State or derogate from any right or title of a State apart from the provisions of these Acts: see section 8. A similar but not identical provision appears in section 7 of the Coastal Waters (State Powers) Act 1980 which reads:
“7.Nothing in this Act shall be taken to:
(a)extend the limits of any State;
(b)derogate from any power existing, apart from this Act, to make laws of a State having extra-territorial effect; or
(c)give any force or effect to a provision of a law of a State to the extent of any inconsistency with a law of the Commonwealth or with the Constitution of the Commonwealth of Australia or the Commonwealth of Australia Constitution Act.
[my emphasis added]
By express terms neither the Coastal Waters (State Title) Act 1980 nor the Coastal Waters (State Powers) Act 1980 has the effect of derogating from the right of the State of Queensland to make extra-territorial laws for the purpose of achieving the peace, order and good government of Queensland within its State boundaries under the principle explained in Croft v Dunphy [1933] AC 156 at 162; see also Port Macdonnell Professional Fishermen’s Association Inc. v South Australia (1989) 168 CLR 340 at 370.
(b) Extra-territorial Power
In the latter part of the nineteenth century, it was assumed that the legislative competence of the Parliaments of the States was subject to territorial limitation, so that they could not legislate with respect to the control of activities and the imposition of penalties beyond their borders: see MacLeod v Attorney-General (NSW) [1891] AC 455 at 458; Attorney-General (Canada) v Cain [1906] AC 542; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 13-14. Over the past 60 years, however, it has become accepted that a State may legislate in relation to persons, things and events outside its borders, so long as the legislation is “for the peace, welfare and good government” of that State. Thus, in Broken Hill South Ltd v Commission of Taxation (NSW) (1937) 56 CLR 337 at 358, Latham CJ said:
“…[T]he real principle to be applied in determining the territorial competence of a Dominion legislature is whether the particular law in question is really a law for the peace, welfare and good government of the territory in question and not merely whether the law operates by reference to some extra-territorial elements.”
Dixon J in that same case explained the reasoning as follows:
“…The power to make laws for the peace, order and good government of a state does not enable the State parliament to impose by reference to some act, matter or thing occurring outside the State a liability upon a person unconnected with the State whether by domicile, residence or otherwise. But it is within the competence of the state legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicile, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers. As in other matters or jurisdiction or authority the court must be exact in distinguishing between ascertaining that the circumstances over which the power extends exist and examining the mode in which the power has been exercised. No doubt there must be some relevance to the circumstances in the exercise of the power. But it is of no importance upon the question of validity that the liability is imposed is, or may be, altogether disproportionate to the territorial connection or that it includes many cases that cannot have been foreseen.”
The subsequent decisions of Pearce v Florenca (1976) 135 CLR 507 and Robinson v Western Australian Museum (1976) 138 CLR 283 illustrate a degree of tension between an expansive approach and a restrictive approach as the test of extra-territorial power of the States: see also Gould v Brown (1998) 72 ALJR 375 at 383. In Pearce v Florenca (supra), Western Australia was held to have power to legislate in respect of fish resources within three miles of the low-water mark because of the proximity of such off-shore waters to the State, per Gibbs J at 518:
“…it is obviously in the public interest that the test should be liberally applied and that legislation should be held valid if there is any real connection – even a remote or general connection – between the subject matter of the legislation and the State.”
However, in Robinson v Western Australian Museum (supra), members of the High Court opted for a restrictive view and concluded that there was no self-evident connection between Western Australia and the adjacent off-shore area within three miles of the low-water mark and in which historic shipwrecks might be located: see Barwick CJ at 294-295 and Murphy J at 344. Since these decisions, the Australia Act 1986 (Cth), which is mirrored by legislation of the British Parliament of the same title, and subsequent decisions of the High Court have confirmed the judicial inclination to view the states’ extra-territorial powers in an expansive or liberal way. Section 2 of the Australia Act provides:
“(1)It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation.
(2)It is hereby further declared and enacted that the legislative powers of the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State a capacity that the state did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.”
The Court in Port Macdonnell Professional Fishermen’s Association Inc v South Australia (supra), in upholding the validity of South Australian legislation controlling lobster fishing at distances of up to 200 miles from the State’s coast, affirmed the necessity for a real and substantial connection between the State and the subject matter of the law as the foundation of State extra-territorial legislative validity. The Court said, at 372-373:
“It is now established that what is essential to the extra-territorial operation of a State law is a connection between the enacting State and the extra-territorial persons, things and events on which a law operates. Union Steamship v King gave effect to that rule. It is unnecessary to rehearse the authorities relating to the extra-territorial operation of State legislation recently reviewed in that case, but it is desirable to recall that the Court agreed with the comments of Gibbs J in Pearce v Florenca…
It follows that the limitation on the extra-territorial operation of the State Fisheries Act depends not on the distance of the arrangement area from the seaward boundary of the State’s territory but on the existence and nature of a connection between South Australia and the activities which constitute the fishery in the assigned area. The circumstances of this case….demonstrate a real and substantial connection. The fishery described in the arrangement is a finite resource available for exploitation and exploited by South Australian residents; it is a significant source of South Australian trad and employment. Since the area of water referred to in the second arrangement is to be construed as confined to waters on the South Australia side of the lines of equidistance, the land territory of South Australia is the closest land territory to the fishery. A law for the management of the fishery is a law for the peace, welfare and good government of South Australia. But it does not necessarily follow from that conclusion that…the State Fisheries Act is effective to prescribe the extra-territorial operation of the Act. [It] fails in its intended effect if it is inconsistent with a valid law of the Commonwealth or if the extra-territorial operation claimed by it for the Act exceeds what might properly be claimed having regard to the legislative powers which adjoining States might exercise over the same fishery.”
Consequently, in the circumstances in this case, the State of Queensland may assert its legislative competence on the basis that there is a sufficient connection between the prevention of collisions involving Queensland registered vessels and the peace, order and good government of the State of Queensland. This connection may be simply established on the basis that the ‘Tina’ is a Queensland registered vessel, or on the basis if the residency of the owner. Obviously, however, the capacity to legislate extra-territorially is subject to any inconsistent legislation passed by the Commonwealth in relation to the collisions. For the reasons stated earlier, section 258 of the Navigation Act clearly facilitates the application of state laws in relation to state registered vessels.
On the hearing of the appeal and in his outline of argument, the Respondent argued that section 11(1)(a) of the TOMSA should be interpreted narrowly and not in a broad extra-territorial way. He conceded that the TOMSA does not itself purport to have extra-territorial effect except to the extent “to which section 11(1)(a) can be said to apply in an area 32 nautical miles at sea beyond the territorial sea and on the high seas” (paragraph 20 of the Respondent’s outline of argument). For the reasons stated above, this primary contention by the Respondent, based on a passage in the judgment of Lord Halsbury in MacLeod v Attorney-General (supra), must be rejected. In support of his argument, Mr Crisp argued that the phrase “in Queensland waters”, mentioned in section 11(1)(d) and (e), is not defined anywhere and, therefore, the phrase “wherever they may be” in section 11(1)(a) has to be interpreted narrowly. The phrase “Queensland waters” is in fact defined in section 36 of the Acts Interpretation Act 1954 (Qld) to mean:
“…all waters that are-
(a)within the limits of the State; or
(b)coastal waters of the State”
It follows that the phrase “wherever they may be” in section 11(1)(a) must have a different meaning. Consequently, the learned Magistrate was in error in determining that section 94(1) of the TOMSA Regulations in conjunction with section 11(1)(a) of the TOMSA was not capable of applying extra-territorially to the circumstances of this case. Thus, he was wrong in finding that the Court did not have jurisdiction to determine the complaint.
Sections 193 and 195 of TOMSA clearly vest jurisdiction in the Magistrates Court at Maroochydore to hear and determine the complaint. Although not directly on point, some observations by Thomas J (as His Honour then was) in R v Olney [1996] 1 QdR 187, support the conclusions I have reached. In that case the appellant was convicted of murder in circumstances in which the offence was committed whilst on the high seas. The question in Olney related to the extra-territorial application of section 14A of the Criminal Code (Qld). The Court held that section 14A was, from its inception, “a valid exercise of State Legislative Power, capable of applying to circumstances such as those charged in the present indictment” (at page 195). At page 188, His Honour observed:
“It is not suggested that the Court lacks jurisdiction to try the accused man
for murder”.
The only issue was whether he should be tried under the Criminal Code or the common law of the United Kingdom.
The Appeal is allowed and the orders made below are set aside.
Power of the District Court on Appeal
Both parties sensibly argue that in the event of a successful appeal, this Court should proceed to hear and determine the complaint. Neither party seeks to call fresh or additional evidence. Section 223 of the Justices Act provides that an appeal under section 222 is a rehearing on the evidence. This course can be adopted by this Court because of the sensible approach taken by the Court below to receive all relevant evidence.
Final Determination
The Respondent submits that there was insufficient evidence to support a finding of guilt and “the defence was made out”. I understand this to mean that the Appellant had failed to prove the charge to the relevant standard and that the Respondent had, in any event, satisfied the onus on him to show “reasonable excuse” on the balance of probabilities. Regulation 5 of the relevant Collision Regulations provides that “all vessels must keep a proper lookout”. With some minor, and inconsequential, variations, the factual scenario set out in the introduction to these reasons was common ground between the parties. There was no challenge to the credibility of any witness. Captain Marchbank gave evidence of what constitutes a “proper lookout” at page 24 of the transcript:
“A proper lookout is maintained at all times, by all available means, by sound, hearing and all available means through all circumstances in order to ascertain if risk of collision exists”
and
“…your own eyes, your own ears. Vessels radio”.
In his record of interview, the Respondent acknowledged that he was asleep until seconds before the collision. He accepts that there was no member of the crew keeping watch at the time of the incident and for some time before. It appears that he was awake from midday for approximately 30 minutes, but then went back to sleep. The incident occurred at 12.43pm. In his address to the learned Magistrate, Mr Crisp referred to some statements of MacFarlane J in Quinn and ors v Associated Steamships Proprietary Limited, The Woomera (1968) 2 Lloyd’s Law Rep. 271 at 280 in which His Honour, by reference to James Patrick and Company Limited v The Union Steamship Company of New Zealand Limited (1938) 60 CLR 650 at 661-662, sets out a statement of standards which seamen and the law expect of a competent lookout. The purpose of a lookout is:
“to ensure as far as practicable that any material object large enough to be a source of danger to the ship will be seen at an adequate distance and that no craft or other thing that the ship might injure will escape notice. The practice and experience of seamen must form a guide, in determining what, in any given conditions, constitutes a sufficient lookout.”
His Honour observed:
“What is required of seamen is ordinary skill and ordinary intelligence. They are not expected to forsee and provide against every accident…”
In this regard, the Respondent’s written outline seems to argue that the ‘Tina’ was not in a shipping lane at the time of the collision. The submission is largely based on the evidence of Captain Marchbank during cross-examination. He accepted that the extremities of the shipping lane are not marked on a chart unless a specified area under Government control. He agreed that there are no specified widths to the main commercial shipping lanes, but as a general rule the route would be 20 miles wide. In his evidence in chief, he gave evidence that was not contested that the position marked on the incident report by the Respondent was in the main shipping route on the East Coast of Australia, going North to South. The Respondent acknowledged that he had been in the area before and had seen ships navigating in that area, he even admitted to witnessing some vessels turning around and retracing their paths. The overwhelming weight of the evidence leads to one conclusion, and that is that the ‘Tina’ was anchored in a shipping lane. In any event, the issue is largely irrelevant as the graveman of the offence is failure to keep a proper lookout. Just prior to the collision, indeed only seconds before impact, the Respondent and his crew were all asleep. The radar system was on standby, thus effectively inoperative. The navigational system was operative but could not have any possible effect as a warning or lookout for any approaching vessel or danger. No human person was engaged as a lookout. It follows that there was absolutely no system in place whatsoever, whether human, mechanical or otherwise, which could possibly be said to have operated as a lookout in all the circumstances.
The prosecution has proved beyond a reasonable doubt that the Respondent, as the master of the vessel, failed to keep a proper lookout, in contravention of Regulation 5 of the Collision Regulations. Therefore, I find the Respondent guilty as charged.
The orders of this Court are as follows:
(1)The appeal is allowed.
(2)The orders of the Maroochydore Magistrates Court made on 15 February 2000 and 18 February 2000 are set aside.
(3)The Respondent is to pay the Appellant’s costs of the proceedings below, to be assessed on the standard basis, or as agreed.
(4)The Respondent is to pay the Appellant’s costs of the appeal, to be assessed on the standard basis, or as agreed.
(5)In respect of Order 4, the appeal having succeeded on a point of law, I grant to the Respondent an indemnity certificate in respect of the appeal, pursuant to section 15(3) of the Appeal Costs Fund Act 1973.
I will hear submissions as to the appropriate penalty.
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