Muslimin v The Queen
[2010] HCATrans 5
[2010] HCATrans 005
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D12 of 2009
B e t w e e n -
MUSLIMIN
Applicant
and
THE QUEEN
Respondent
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 5 FEBRUARY 2010, AT 10.01 AM
Copyright in the High Court of Australia
MR A. WYVILL, SC: If it pleases the Court, I appear with my learned friend, MR S.W. LEE, for the appellant. (instructed by Northern Territory Legal Aid Commission)
MR P.A. WILLEE, QC: If your Honours please, I appear for the respondent with my learned friend, MS L.A. TAYLOR. (instructed by Director of Public Prosecutions (Cth))
FRENCH CJ: Yes, Mr Wyvill.
MR WYVILL: Thank you, your Honour. Your Honours, section 78B notices have been issued by the respondent. They are dated 28 January 2010.
FRENCH CJ: I take it, Mr Wyvill, from your submissions that you advance this case purely as one of statutory construction?
MR WYVILL: That is right, your Honour, yes.
FRENCH CJ: And you disallow any issue involving the Constitution or its interpretation?
MR WYVILL: That is right, your Honour, yes. We have nothing further to say about the point. They are set out in our submissions.
FRENCH CJ: Yes, all right, well I think you can proceed.
MR WYVILL: Thank you, your Honour. Your Honours, some housekeeping matters first. Would your Honours note three housekeeping matters? In the appeal book there is an error in relation to exhibit D5. Your Honours will find that at page 123 and following of the appeal book. Your Honours, this error reflects also an error in our agreed facts, which is common ground, and also an error in the judgment below.
There were two exhibits, D5 – two documents in exhibit D5. Both of them were in Indonesian unlike – which is contrary to what his Honour Justice Mildren said and we have said in our agreed facts. The one, unfortunately, which has been reproduced in the appeal book is the irrelevant one which relates to the waters between Papua New Guinea and Australia. Your Honours have been given the correct one, separately, which relates to the waters between Timor and Australia. Would your Honours regard that as the relevant part of exhibit D5.
FRENCH CJ: It is not in issue, is it, that your client’s vessel was above the Australian continental shelf and within the Indonesian Exclusive Economic Zone and outside the Australian fishing zone?
MR WYVILL: That is right, your Honour.
FRENCH CJ: That is really all we need to know, is it not?
MR WYVILL: That is right, your Honour. I did want to make sure, however, that your Honours were aware that we had made a mistake in our agreed facts which your Honours know are based upon his Honour Justice Mildren’s judgment. Would your Honours just note at page 237 of the appeal book that there is an error there - paragraph [35] says, “The charts were in both English and Indonesian”. That is incorrect. Both charts were in fact in Indonesian. I just wanted to make sure the record was correct in that respect.
FRENCH CJ: Thank you.
MR WYVILL: Your Honours, while the appeal book is there, one minor correction to the summing‑up, appeal book 188, the penultimate paragraph. It is agreed that there was an error in the first line - the reference to “offence” should be “defence”. Finally, your Honour, the third correction, and it is a matter in relation to our submissions, would your Honours note the error in footnote 17. The correct reference is not to Smith v Federal Commissioner of Taxation but to the case of Joye v Beach Petroleum NL (1996) 67 FCR 275 at page 285, per their Honours Justices Beaumont and Lehane. Copies of that have been provided to your Honours this morning.
Your Honours, moving then to our submissions. Given that the facts appear to be common ground we were not proposing to deal with either them or the events below but to go straight to our case in relation to the grounds of appeal, and in that respect to follow the structure of our written submissions. As your Honours may have noted, our submissions are in effectively two parts. The first part deals with grounds of appeal 2.1, 2.2 and 2.4, and the second part deals with the ground 2.3, which is the point about the mental element.
If I can deal with grounds 2.1, 2.2 and 2.4 first. They raise themselves two questions. The first is, as our submissions have made clear, we hope, the treatment by the Criminal Court of Appeal of the words themselves; that is the first matter I wish to deal with. The second point I wish to deal with is the treatment of the Criminal Court of Appeal of the presumption which is the subject of this appeal.
Your Honours, if I can go straight to what we say are the errors made by the majority in this respect? If I can take your Honours to the judgment of the majority, the leading judgment of his Honour Justice Mildren at pages 254 to 255? There will be three particular errors that we will seek to extract from paragraphs [81] and [82] of those reasons.
GUMMOW J: Are you going to take us through the statutory provisions first?
MR WYVILL: Yes, your Honour, I was going to take your Honour first to “fishing”, which is at paragraph [80] directly above there and in the course of - if it was possible to have your Honour look at the statute as we look at the reasons. Conveniently, his Honour has set out “fishing” at paragraph [80]. The obvious point is that “fishing” is defined in a finite way. The second obvious point is that it is concerning activities. His Honour then goes, in paragraph [81], to refer to section 101, and if I could ask your Honours to turn up that section as we deal with this. His Honour says:
Section 101 is plainly a provision made in relation to fishing in the AFZ. It prohibits being in possession or charge of a foreign boat within the AFZ equipped with “nets, traps or other equipment for fishing” –
The first point we would make is that in fact ‑ ‑ ‑
GUMMOW J: Wait a minute. What particular date are we looking at the statute?
MR WYVILL: This is as of the date of the offence, your Honour.
GUMMOW J: Which is?
MR WYVILL: Which is in April 2008 - 23 April 2008.
GUMMOW J: That is before the coming into force of Act 36 of 2008?
MR WYVILL: That is correct, your Honour, yes. Your Honour, the changes are, if it is convenient for your Honours, set out in a document called annexure 4, which was our original annexure 2 updated to take account of the statutes that the respondent wishes to have included, so that may be a convenient place to refer. I apologise immediately because annexure 4 is not paginated. Your Honours will see section 101 there in the condition at which it was at the time of the offence. The underlining shows what disappeared after the date of the offence.
FRENCH CJ: We are safe with Reprint 4, are we, the blue reprint?
MR WYVILL: Yes, your Honour, your Honour could be safe with that as well. Your Honours, the key points we make about section 101 are these. It is a provision that relates to unlicensed or otherwise unauthorised foreign fishing vessels in the AFZ. It is a provision that prohibits a state of affairs in relation to those vessels, and that is being they are equipped for fishing.
It then operates to exempt an activity from the offence and the activity relevant for those unauthorised foreign fishing vessels is the activity described in subparagraph (d), that is navigating directly across the area with your gear stowed. Unlike section 100, it is not a provision that prohibits activity as such. It prohibits a state of affairs and then exempts from that prohibition activity. It is, in our respectful submission, given that the subject of the provision is a foreign fishing vessel without the authorities, a provision that relates to navigation of those vessels across the AFZ. If we go back then to his Honour Justice Mildren’s reasons at paragraph [81], his Honour concludes in the last sentence of paragraph [81]:
A direct relationship exists between the subject matter of “fishing”, as defined, and the activity prohibited by s 101.
Just pausing there, the obvious point we make is that it does not prohibit an activity. It prohibits a state of affairs. A stronger point, because we accept that looked at on their own the words “in relation to” are capable of, in many respects, infinite varieties of meaning, a stronger point then is in relation to the next paragraph which considers not the subject which we have just looked at in section 12(2), but the object of section 12(2), and the object is set out by his Honour in the first two lines at page 255 of the appeal book. It extends, reading from his Honour’s judgment:
but only to the extent that s 101 is “capable” of extending to fishing for sedentary organisms.
This object is narrower than the subject. The object is plainly only fishing, it is not in relation to anything, it is just fishing, and it is fishing of a particular type. That fishing, of course, is defined by the Act. We then go on to follow his Honour’s reasoning:
It is not difficult to postulate an example of circumstances in which s 101 would be capable of so extending. If a foreign boat in the relevant area was equipped with equipment, the sole purpose of which was to search for or take sedentary organisms, s 101 would be capable of extending to that factual situation because the boat was equipped with equipment for fishing for sedentary organisms.
In effect, what his Honour has done there is rewritten the definition of “fishing”, in our respectful submission, because the object of the section is only fishing, and his Honour has included within that definition something which is not included with it. That is the mere equipping. That is the second error in that passage.
The third error is an error of omission. His Honour does not refer to, as Justice Angel did, section 7(2) of the Act and if I can take your Honours very quickly to that. Section 7(2) reinforces the distinction that we see in section 12(2), the distinction between the AFZ as an area and its extension to an activity. We see in particularly 7(2) that it says:
In relation to the AFZ –
which, of course, is the physical area, and then –
to fishing for sedentary organisms outside the AFZ, this Act applies to all persons, including foreigners, and to all boats, including foreign boats.
That, we say, reinforces the fact that section 12(2) is not intended to extend to anything other than the activity of fishing, and not intended to extend provisions that prohibit a state of affairs in a particular area. They are the three errors we say that his Honour made in construing the words themselves. If I can take your Honours ‑ ‑ ‑
GUMMOW J: What is the meaning of this word “fishing”? Is that defined?
MR WYVILL: That is defined, your Honour, yes. If your Honour still has page 254 of the appeal book open you will see the definition there. Just taking your Honour very quickly through it you will see they are all activities in relation to fishing. As his Honour Justice Angel held ‑ ‑ ‑
GUMMOW J: So your client was not fishing?
MR WYVILL: He was not fishing. It was not alleged that he was. That was not part of the Crown’s case.
FRENCH CJ: Your proposition is that prohibition has been there in these circumstances, that is to say in charge of a foreign boat equipped with, et cetera, and that being there in charge of a foreign boat does not fit within any of the categories which define fishing.
MR WYVILL: Yes, your Honour. We can see that his Honour Justice Angel picked up this point very clearly and if I can take your Honours to that at pages 231 to 232 of the appeal book. His Honour Justice Angel makes at paragraph [19] the point that your Honour the Chief Justice just made to me:
“Fishing”, whilst widely defined, nevertheless denotes activity beyond the elements of the offence encompassed by s 101 or that alleged or proven against the appellant. Notwithstanding the broad definition of “fishing” the appellant was not “fishing” as defined. He was a foreign national in command of an Indonesian vessel on Indonesian waters. Prima facie he was immune from Australian domestic law.
His Honour then goes on at paragraph [20] ‑ ‑ ‑
FRENCH CJ: This is in the context of the view about the extraterritorial operation of the Act, was it not?
MR WYVILL: Yes, it was. His Honour did what we say was the right thing to do in the situation. His Honour has construed the legislation whilst having the provisions of UNCLOS in mind and so he was alive immediately to the limits of Australian sovereignty, to the significance of focusing on the activity fishing for sedentary species only and we can see that through this passage. His Honour then deals with section 7(2) and makes – I will not read it – but he makes the same point that I have already made to your Honours about 7(2) reinforcing the fact that it is not intended to extend to anything else, other than fishing.
At [21] he notes the limit of Australian sovereignty in the area. He then notes that section 12(2) can only be extended to fishing. He then, over the page if I can take your Honours page 232:
Only an offence “in relation to fishing” or embodying “fishing” as an element of the offence is conformable with being extended by s 12(2) to “fishing . . .” Section 101(2) can be said to be a provision “in relation to” fishing which is capable in its terms of being extended by s 12(2) “to fishing for sedentary organisms”.
If I can just put a marker there and come back to that shortly and then move on to the next passage. He then goes on to say:
However in my judgment s 12 and s 101(2) can not be construed to have local application to Indonesian waters above the Australian continental shelf outside the AFZ so as to affect Indonesian and other foreign vessels ‑ ‑ ‑
FRENCH CJ: But that is a wider proposition than the one you are putting. The proposition that you are putting is simply that section 12(2), as a matter of construction, not informed by questions of sovereignty, does not extend section 101 because the offence created by section 101 does not fall within the scope of “fishing” as defined by section 4.
MR WYVILL: It is, I accept that, your Honour, because there is no question that his Honour has been informed by the sovereignty issues, but I do adopt what ‑ ‑ ‑
FRENCH CJ: Well, that is not territory you would want to get into, presumably.
MR WYVILL: Well, it is territory I am very comfortable to get into, with respect, your Honour, but we do not say it is territory that we need to get into. Our first point, of course, is if you look at the statute on its own the words are sufficiently clear to make this point of construction – the point we make the correct conclusion. Your Honours, if I can indicate that what his Honour does do, particularly – and this is the point we make on the construction point and we would adopt is at paragraph [23] - he refers to the provisions:
“to the extent that it is capable of doing so” in s 12(2) qualify the reach of the Act beyond the AFZ. They accommodate the inapplicability of Australian domestic law to certain circumstances.
That, I should have said, your Honours, is a reference back to what he said in [22] where his Honour refers to the:
necessary nexus with “fishing” on the Australian continental shelf.
Particularly in the last three lines of [22]:
Australian domestic law only operates relative to an area of Australian sovereignty, here, relevantly, by activity in relation to “fishing . . . in or on any part of the Australian continental shelf not within the AFZ …”
I accept that his Honour is informed there by the sovereignty issues, but it does reinforce the pure construction point on the words themselves that we make, that because section 101 is only a provision in relation to a state of affairs, is not a provision in relation to fishing as such, it is not capable of being extended to the area outside the AFZ within the meaning of section 12(2).
Now, once that is borne in mind we then go back to the point about “in relation to”, and we say that “in relation to” being suggested of a connection, that the connection is the activity fishing, and for both reasons, both because it is not within – because the relevant connection “in relation to” is the activity fishing, and also because the object is fishing and hence a provision in relation to a state of affairs is not capable of extending to an activity, for both of those reasons the correct construction of this provision is that it does not extend section 101.
HAYNE J: The force to be given to the phrase “in relation to” is force in determining the class of provisions with which section 12(2) engages. It engages with provisions that are described as provisions made in relation to fishing in the AFZ, but the work that is then done by 12(2) is to look at that class of provision and then extend by force of this section to fishing, and the extension that is worked is an extension to the activity, the defined activity, fishing.
MR WYVILL: Yes.
HAYNE J: The activity in issue in this case is, as you describe it, a state of affairs.
MR WYVILL: Yes. Your Honour, we would - that would certainly be our second position, but we would also make the point that one can use the object of section 12(2) to inform the ambit of “in relation to”, but we would certainly accept that either approach is open and both lead to the result that the provision is extended.
Your Honours, if I can then move briefly to the presumption, and I think Justice Angel’s judgment leads inexorably to it for the reasons your Honour the Chief Justice has pointed out, because that was the approach he took. He read this provision in with the provisions of UNCLOS and the limits of Australian sovereignty in mind, and we say that that was the correct thing to do.
Your Honour, there are two elements in relation to the question of the presumption. The first is can you refer it all to UNCLOS, and the second issue is, if you can, what role does it play in the process of construction. It does not appear that the first issue was controversial within the Court of Criminal Appeal. All judges appear to have accepted that it was right to refer to UNCLOS for the purpose of construing a legislation. That is not the subject of a notice of contention, but it does appear my learned friends do take a point about that in their written submissions.
We have dealt with that in a reply, and we have explained why we believe UNCLOS – principally because of the definitions of the AFZ, sedentary species and sedentary organisms and the continental shelf, why one can and should have reference – and also, of course, to the fact that this is an extraterritorial provision - why one could and should have reference to UNCLOS in construing the Act. The question then is at what stage it comes in and what role it plays.
Your Honours, one of the difficulties, we believe, which led to the errors made by his Honour Justice Mildren, was the fact that he construed the section first in effect and then went to UNCLOS. He should have done what Justice Angel did, and if you do that, then you minimise the risk of underestimating the impact of the limits of Australian sovereignty in this area on the proper construction of this Act.
FRENCH CJ: You keep talking about the limits of Australian sovereignty. You have eschewed any question of constitutional limits on power. You tell us it is simply a matter of statutory construction. I do not understand why you keep talking about sovereignty.
MR WYVILL: In sovereignty within the scope of international law, your Honour.
FRENCH CJ: But what does it have to do with the construction of this statute?
MR WYVILL: Because the statute is ambiguous, there is a presumption that one should go to applicable international law to resolve that construction.
FRENCH CJ: That is all you mean, is it? You are not talking about any question of limits on legislative power?
MR WYVILL: That is absolutely all I mean.
FRENCH CJ: Then perhaps what you need to do is to identify the constructional choices and tell us how they are informed by international law.
MR WYVILL: It would only be if your Honours were against me about our primary submissions that we need to resort to that. In that case, the ambiguity would be over whether section 101 is a provision in relation to fishing, and ‑ ‑ ‑
HAYNE J: Why would one resolve any supposed ambiguity in a criminal statute in a way that extended its reach? Leave aside questions of power, international law and the like. You have a criminal statute. If it said that that is capable of bearing two meanings, why would you adopt a larger rather than a narrower meaning, when people go to gaol if they breach it?
FRENCH CJ: Or have their boats burnt.
MR WYVILL: They certainly have their boats forfeited, yes, and burnt. Yes, your Honour, we would obviously respectfully agree with that. I do not wish to trespass upon your Honour’s patience if your Honours do not wish to hear about any submissions in relation to the presumption. They are set out in my written submissions. We have given you some additional authorities, particularly decisions of this Court, which are relevant to that presumption, particularly because that presumption appeared to be necessary for the decision in those cases.
I should, for completeness, indicate which particular cases we believe the application of presumption were necessary for the decision of the Court - Burns Philp & Co v Nelson and Robertson, which is in the errata to our reply; a case we have handed up to your Honours today, Zachariassen v Commonwealth (1917) 24 CLR 166, and that is per their Honours Justices Barton, Isaacs and Rich at page 181; and the final one, and we say this somewhat faintly - it is, although it was plainly not – it played a powerful role - the presumption and the role of the relevant convention did play a role in the decision of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v QAAHof 2004 (2006) 231 CLR 1, the particular passages at pages 15 and 16.
We would in relation to maritime matters particularly draw your Honours attention to Burns Philp and Zachariassen because they both concern shipping. We would also draw your Honours attention to the decision in Sellers v Maritime Safety Inspector of the New Zealand Court of Appeal.
FRENCH CJ: For what proposition, Mr Wyvill?
MR WYVILL: I will take your Honour directly to that, if I may. The proposition that we rely upon in Sellers is found at page 57 of the judgment of the court and particularly at line 16:
It is in the above context that the Maritime Transport Act, in particular s21, is to be understood and interpreted. New Zealand Courts have for over a century made it plain that legislation regulating maritime matters should be read in the context of the international law of the sea and, if possible, consistently with that law –
Your Honours will see similar statements about the application of the presumption at page 59, line 27 to the end of the page. At 61, line 13 and, finally, at page 62 which I will take your Honours very briefly to, their Honours say at line 8:
We consider that the gloss proposed in the preceding paragraph is consistent with the wording of s21(1)(b) and (c) when that provision is read, as it must be, in its wider context. To repeat, for centuries national law in this area has been essentially governed by and derived from international law with the consequence that national law is to be read, if at all possible, consistently with the related international law. That will sometimes mean that the day‑to‑day (or at least year‑to‑year) meaning of national law may vary without formal change.
HEYDON J: I find that proposition an extraordinary one.
MR WYVILL: Your Honour, it is in this Act because the definition of “sedentary species and organisms” is said to be ‑ ‑ ‑
HEYDON J: If it is in an Act, yes, but but for that that is a general proposition that the New Zealand Court of Appeal has stated. What one does in odd numbered years leads one to go to gaol and what one does in even numbered years leads one to be given a membership of the Order of Merit, apparently, according to what some people think in New York or Geneva or The Hague.
MR WYVILL: Yes, your Honour. I accept that taken at its broadest that is precisely what that is saying and for that reason one might quibble with it, challenge it.
HEYDON J: I think everything is all right up to that point.
MR WYVILL: Yes, your Honour, but we do have of course in this Act a plain reference to a single treaty and we have that treaty – the terms of that treaty adopted in the definitions of this Act.
GUMMOW J: But what is the relevant treaty here?
MR WYVILL: The United Nations Convention on the Law of the Sea, your Honour. There are several treaties referred to in the Act. If I can just explain how we get there, your Honour. You will not see - and I accept this in my written submissions – you will not see a relevant reference to UNCLOS in the FMA.
GUMMOW J: That is because, perhaps, it was not in force in 1991. It only came into force in 1994, did it not?
MR WYVILL: It did, your Honour, but I think it was open for signature by that stage and it was a fait accompli to the extent that one was waiting for 60 signatures.
GUMMOW J: It did not come into force until the necessary number of states had signed up. They met in Montego Bay in 1982 and no doubt had a good time, but it took 12 years to get the relevant numbers.
MR WYVILL: Yes, your Honour.
GUMMOW J: Which bears upon the point that Justice Heydon was just making to you. Now, insofar as some of these sections we are construing are enacted after 1994 that may be a different matter.
MR WYVILL: I think that is relevant because the Act, as I said, in this respect, does not refer to UNCLOS, your Honour, but it does refer to the definitions in the Seas and Submerged Lands Act and they were changed from time to time to accommodate the developments in international law.
GUMMOW J: That is where the continental shelf comes from, does it not?
MR WYVILL: That is right, your Honour, yes. Indeed, the exclusive economic zone comes from there as well which is relied upon for the AFZ definition. That is how we draw those particular provisions of UNCLOS because of that updating process.
Your Honours, if the critical way in which - and probably this is the best way to highlight the importance of being aware of the law of the sea in this particular case - the most fatal way in which the transposition of section 101 to the outer continental shelf miscarries is in relation to the operation of subsection (d). That is a perfectly sensible provision in respect of preserving the very limited freedom of navigation enjoyed by foreign fishing vessels across the Australian continental shelf. It is very limited, there is just the freedom of navigation and that is it.
FRENCH CJ: That is the Australian Fishing Zone. It is only if it is extended that you are talking about the continental shelf.
MR WYVILL: I am sorry, your Honour, yes, it is the Australian Fishing Zone. It is a sensible provision, albeit tough, and there commentators who have said that it is controversial international law to legislate that way, but it does provide a freedom of navigation for foreign fishing vessels across the AFZ, so it does reflect the freedoms which are enjoyed by foreign states and their flagged boats in that area. If one transposes section 101 to the outer continental shelf, that protection is entirely inadequate to deal with the far greater freedoms and entitlements enjoyed in that area. To take an example, section 101(d) talks about going across the AFZ ‑ ‑ ‑
FRENCH CJ: This is going to the question of whether it is capable of extension. Is that right?
MR WYVILL: Indeed, your Honour, yes.
FRENCH CJ: In other words, that it is simply inapposite to apply that exception or exemption from liability to the travel across the Australian continental shelf.
MR WYVILL: Precisely, your Honour, and to that extent we would not ‑ ‑ ‑
FRENCH CJ: So that just goes to the construction of section 12?
MR WYVILL: Yes, that is right, your Honour, and to that extent we would not have any difficulty, particularly with the use of the word “practical” in terms of capability which is the word adopted, I think, at all levels below by the majority and by Justice Riley.
If we are talking about the practical ability of subsection (d) to provide a proper protection for the innocent navigation across the outer Australian continental shelf, and of course a boat that is equipped for fishing for sedentary species may indeed have all of its gear properly stored and secured, but it is not going to be navigating across the outer continental shelf for innocent purposes. It is going to be navigating down to assist other Indonesian boats, perhaps to fish using other equipment which it is entitled to do, perhaps simply to assist another boat which is what the defendant said here, and then navigating back towards the north. So south and then north again. It is never going to be going across, at least very unlikely to. In fact, if it is going across it is likely to be going to the AFZ, which would be committing an offence.
So the protection in relation to the limited freedoms of navigation in section 101(1)(d) in the AFZ simply miscarry when one tries to apply them to the outer continental shelf where you have not just the freedoms of the boats of other flag states, but you also have exclusive Indonesian sovereignty in relation to the regulation of fishing matters in the waters above the ACS.
So it is quite possible to imagine that Indonesia might regulate the safety requirements of its fishing boats by saying you shall not have the gear stored and secured below because it is unsafe to do so and thereby create a direct conflict between Australian law in relation to those boats and Indonesian law.
Your Honour, again I am conscious of not wishing to trespass on your Honours’ patience by taking this point beyond where your Honours wish it to be taken. Your Honours, unless there was something further your Honours wished me to say about the extension of section 101 and, particularly grounds of appeal 2.1, 2.2 and 2.4 and the presumption, I would rest on the written submissions we have handed to your Honour and the cases.
The very last point we have is appeal point 2.4, which is only necessary if your Honours are against me on the first point. This has some point of general importance because section 101, insofar as it applies in the AFZ is an offence of strict liability and certainly Justice Angel was of the view that for that reason there is no mental element at all in the offence and that means, in effect, that any boat, which is by a happenstance, to use his Honour’s word, equipped for fishing will commit an offence and including, for example, leisure craft, ships - you have ships with no intention ever to fish, but who happen to have a combination of equipment, which is capable of fishing - could commit an offence.
FRENCH CJ: This was against a sole purpose construction, was it not?
MR WYVILL: I do not think so, with respect, your Honour. This point was made in relation to the ambit of the provision and the fact that it would capture navigation by vessels which are not fishing vessels. Your Honour, the point we would make is that there must be hidden in the elements of section 101, a mental element in relation to the circumstance equipped for fishing, that it is not to run contrary to the strict liability provisions in section 101 because there is still no fault element in relation to that circumstance. But the circumstance – and we are giving your Honour a reference to authorities where this has been held to be correct – a circumstance can have it, as part of it, proof of a particular state of mind and the state of mind here, we say, is the intention of the equipper to equip for fishing. That then solves the problem ‑ ‑ ‑
FRENCH CJ: When you say buried in section 101 you mean in the word “for”, do you, before fishing?
MR WYVILL: Equipped for fishing, equipped - the verb “equipped” I think would be what I would rely upon, your Honour. Equipped for fishing.
KIEFEL J: And “for” implies for the purpose of and purpose might carry the intention that you are talking about?
MR WYVILL: Precisely, your Honour, yes. For that reason we say there is a mental element there and it is not contrary to the offence being a strict liability offence. If one then goes to extend that to the outer continental shelf we would say that it ought to be extended as section 12(2) says in its narrowest form - the intention must be to equip for the purpose of fishing, not just for sedentary species, but for sedentary species on the Australian continental shelf.
HAYNE J: But assume all that to be right, what is the consequence?
MR WYVILL: The consequence is that there was no proof in this case that the ‑ ‑ ‑
HAYNE J: Well, you are now going well beyond your grant of leave, are you not, and well beyond matters that were agitated in the Court of Criminal Appeal?
MR WYVILL: No, your Honour will see it was dealt with in the Criminal Court of Appeal at page 256, ground 2.
HAYNE J: Do you have a grant of leave in this Court that would extend this far?
MR WYVILL: It is the subject of ground of appeal 2.3.
HAYNE J: Leave was limited.
MR WYVILL: Your Honour, it was, but the grounds of appeal were settled after the – as I understand approved by the Court after the grant of special leave. Your Honour, this point is ‑ ‑ ‑
HEYDON J: What was ground 2.4 of the draft notice of appeal?
MR WYVILL: Ground 2.4 is the point about the presumption, and if I remember correctly ‑ ‑ ‑
HEYDON J: That was the only ground that Chief Justice French recorded as being in support of the grant of special leave. I am looking at the transcript of the special leave argument on 2 October.
MR WYVILL: Yes, your Honour.
FRENCH CJ: It may be that this is – is this picked up in – I am just looking at 267, 268 – 2(a)(iii)?
HAYNE J: Perhaps the last four lines of it.
MR WYVILL: Yes, your Honour. The point, your Honour, is a narrow point. It is put in our written submissions. We say that if you are going to
extend it, the mental element which one finds in that circumstance ought to be construed narrowly such as to require proof of fishing for sedentary species on the Australian continental shelf. Your Honours, unless there is something in particular that your Honours wish me to add further, they are our submissions.
FRENCH CJ: Thank you, Mr Wyvill. Yes, Mr Willee.
MR WILLEE: If your Honours please, we have set out in our submissions everything we wish to say in relation to this matter. They were submissions, they were not an outline of submissions, and there is very little that we can add orally to what we have said in relation to those matters.
That said, having heard what I have heard this morning from my learned friend, we have a fundamental difficulty in identifying precisely what the point of ambiguity is in relation to the section that is complained of. We would submit that this is clearly a provision in relation to fishing and that there is nothing clearer from the totality of the legislation in the FMA indicating that, and the history of the concept.
We would also submit that the actual suggestion that this is a provision in relation to navigation based on an argument that we are not dealing with an activity, that we are dealing with a circumstance, cuts right across the notions of what is encompassed by the broadness of the concept of fishing, as we have set out in our submissions. It is picked up specifically by the words of subsection 4(c) of the Fisheries Management Act:
engaging in any other activities that can reasonably be expected to result in the locating, or taking, of fish –
and in subsection (e):
any operations at sea directly in support of, or in preparation for, any activity described in this definition -
as well as in section 12(3)(b)
the prohibition or regulation of fishing -
To suggest that the evidence showed that these people were suspended, as it were, on the surface above the Australian continental shelf in the circumstances in which they were found by the boarding officers from this patrol boat is a circumstance and nothing more, is an interpretation which would belie the evidence, the surrounding circumstances, and everything else related to what they were in fact doing there.
If the Court is against us on that and that the mere presence alone is sufficient to say this is simply a circumstance and not an activity, the activity of manning, controlling, steaming, ensuring the safety of a fishing vessel at sea ‑ ‑ ‑
FRENCH CJ: He is not charged with any of that, he was charged with having in his possession, or in his charge, a foreign boat.
MR WILLEE: Yes. But what is the foreign boat doing?
FRENCH CJ: It is not in the indictment.
MR WILLEE: It was certainly in the evidence, what it was doing, and it was not stationed, and indeed, as I think the chart in the appeal book on the evidence shows it was moving in that area. It would not, in our submission, be something that could simply be described as a circumstance such as a meteor suddenly appearing or being in a particular position at a particular time. There is activity connoted in what the definitions pick up. If the Court is against us on that, then we of course have a serious problem. But this area of fishing as an activity had to carry with it the notion of the ability to regulate or indeed prohibit, and in our submission, it is not a simple answer to say that this is just a circumstance, not an activity or part of what is encompassed by the circumstances of this particular boat and its place on the ocean.
GUMMOW J: Does one not have to look at section 101 as part of Division 5, Part 6 looking at it as a whole. There is a whole range of offences in Division 5, some of which plainly involve actual fishing in the ordinary sense. Others, of which 101 is one, look at a state of affairs, namely having possession of a boat equipped for doing something. Another provision, I think it is 103, is landing fish and so on, and then you have to look at those offences which are limited to the AFZ back into the extended application necessary for this case under section 12, is it not?
MR WILLEE: We would respectfully adopt that, your Honour. It is informed by all those matters which have been equated to fishing over the centuries, and indeed in this particular case, the need for a provision of the sort ‑ ‑ ‑
GUMMOW J: Just a minute – and then going to 12(2), you have to get out of the words “in relation to” sufficient to rope in section 101, do you not?
MR WILLEE: Yes, your Honour.
GUMMOW J: Then the question is why should one strain to do that if this is a criminal strict liability provision?
MR WILLEE: If it were any sort of a strain, and the Court regards it a strain, then I cannot argue with what your Honour says, or against it. However, in our submission it does not require any great strain or stretch to accomplish that and that is the plain and ordinary construction that this provision, on a purposive approach, is intended to do. When one looks at ‑ ‑ ‑
GUMMOW J: Well, wait a minute. There is a question what purposive approach means and whatever it means, how it collides with principles of construction of strict liability of criminal provisions. One does not normally give them “purposive” interpretation. I think that is the area of debate anyway.
MR WILLEE: I take your Honour’s point, but if the words can be said to be plain, as in our submission they can be, then it becomes simply a matter of applying it. Your Honour, to inform what, on the face of it, I have to admit is not the most felicitous way of doing what was done, it really goes back to the fact that this provision was originally in the Australian continental shelf legislation. That Act was passed in 1968 and a copy of it has been provided this morning to the Court.
Now, even before that Continental Shelf Act was passed there was legislation which attempted to protect sedentary organisms on the Australian continental shelf and that meant the whole of the Australian continental shelf in those days because despite in 1958 the original Law of the Sea Convention coming into force, the concepts of EEZ and the other concepts simply did not come into existence until people, I think, or states like one of the South American states suddenly, to the consternation of the US, extended unilaterally its boundaries 200 miles out seaward from the base line. Leaving that aside, at the time that that legislation was contemplated, that is the continental shelf legislation ‑ ‑ ‑
GUMMOW J: It was Chile, I think. Chile was the avaricious state.
MR WILLEE: I think it was Chile, your Honour. I was not absolutely sure, but that was my recollection. But in the second reading speech to that Bill, which has also been provided to your Honours this morning, the Minister made absolutely plain in the second column of 3136 at the top of the page what the main purpose of the Bill was:
to enable the fullest possible protection to be given to the living sedentary resources on the continental shelves of Australia and the external Territories.
FRENCH CJ: The equivalent of the extended 101(2) would seem to be 15(3), is that right, of the 1968 Act?
MR WILLEE: Continental shelf legislation.
FRENCH CJ: Yes.
MR WILLEE: Well, yes, your Honour, it would. But it is the mechanism that causes the problem because ‑ ‑ ‑
FRENCH CJ: There you have a direct offence created in relation to a controlled area over the Australian continent shelf.
MR WILLEE: Yes, your Honour.
FRENCH CJ: Here, you have this rather ambulatory provision which requires rewriting a substantive offence provision into an area above the continental shelf.
MR WILLEE: Well, that puts it in a nutshell, your Honour, and when the two Acts were in fact merged in the Fisheries Management Act in 1991, section 12 was seen to be the solution to that problem. Nonetheless, if one looks at the other portions of the second reading speech, it refers to the Convention, and it refers in the next paragraph at the end of that paragraph to the proposal now under consideration that the legislation should apply to foreigners as well as to Australians and the definition has been adopted or adapted for the purpose of the Bill.
Interestingly, it refers to the then understanding of international law, at the foot of the page, for the fact that there are no doubts about the sovereign rights of exploiting the natural resources. But that could only be said to reflect perhaps current treatment at that time. Over the page there is the reference at the top of the page in the left-hand column to the government intending:
to use to the full the powers that are available to it under international law to ensure that the legislation is complied with and that any offences under it are dealt with in accordance with Australian law.
Then later on it refers to the mechanism. In clause 7 the process whereby the Governor‑General made the proclamation in the same way as is done under the Fisheries Management Act now.
Now, your Honour, the clear intention, in our submission, does not change as a result of the process which is used to perfect the merger, as it were, of the two disparate methodologies for the protection. But, of course, if this Court determines that that still leaves it a tortured process or one that requires going further than the court ought to in a criminal statute, and I note that there is a suggestion in some parts of Pearce and Geddes that the very strong presumption that one should do no such thing is now shown by the authorities not to be necessarily as strong as it was, and that there is room for looking at the intention. I do not have a reference to that at the moment but I can certainly provide the Court with one.
It again is a matter for the Court, and there is nothing further that I can say one way or the other that will convince the Court that this is appropriate. If one moves on from that, if I may, to the simple issue of the meaning of “capable”, as we have said in our submissions at length and pointed to many, many examples, it is simply a matter of physical capability, but there is no evidence to support my learned friend’s contention that there is in this process anything done by the legislation which interferes with the rights in the area that he says have been interfered with.
Again – and I am sorry to raise this as it was not raised in the submissions but it only came to my attention last night – there was an agreement, which again the Court has been provided with this morning, which set out what is effectively ‑ ‑ ‑
FRENCH CJ: This is defining the boundaries between the two EEZs?
MR WILLEE: Yes, and defining it in that paragraph, the first paragraph, and there are some charts attached which show the actual measure, or the placing, of that boundary, which is in accord with the edge of the Australian continental shelf. I am just trying to pick – none of those charts are numbered.
FRENCH CJ: How does this go to the question whether section 101 is capable of extending?
MR WILLEE: Per se it does not, your Honour, but it goes to the issue that my learned friend raised of the incapability in terms of its likelihood of interfering unjustifiably with the provisions of UNCLOS which allow the freedom of navigation. In the first place, we would submit, you cannot have a provision, a penal provision, which forbids activity on the surface of the subsoil under water, even at the relatively lowly depths involved here, without the means of enforcing it on the surface.
We would submit that in this particular case the existence of that agreement between the two countries at a point which is giving sovereign rights, as it is expressed in the first article, to each country - one to the north and one to the south at the edge of continental shelf - shows that there can be no real contention, that there is an interference, which is not acceptable, to Indonesia, and which has not been tolerated since the time of that particular fixing of the seabed boundary.
This a matter under the provisions of UNCLOS that we say is, particularly in light of the provisions of the EEZ, which is perfectly proper for nations to agree about in the circumstances. There is that agreement, and we would submit that that has in fact put a position which shows that the interference, or the unjustifiable nature, simply cannot be sustained either on the basis of what is done or purported to be done.
If, as the cases show, these sorts of activities are like smuggling, for example, they require a heavy hand. However, a heavy hand does not include the circumstance of the boat being confiscated or even burnt. That is a concomitant of the process. It is not a punishment that can be inflicted under the provisions of the FMA and it ought not to be considered as a punishment.
The other matter that we wanted to draw the Court’s attention to in relation to the issue of whether or not the actual activity that my learned friend complains of in relation to Indonesian fishing craft or foreign fishing craft at all has been grossly inflated. It does not apply to every boat; it only applies to a very small area, relatively speaking. It only applies to those boats that are travelling in the area and are caught because they have failed to store and secure the relevant equipment.
It is little enough, in our submission, to assist in the process of ensuring that the sedentary organisms are not plundered. Furthermore, there is no evidence to establish, as my learned friend suggests, that these vessels are more likely to do one thing or another in that area. The suggestion that they would be likely, for example, to travel as is in the submissions, in and out of the area ‑ ‑ ‑
FRENCH CJ: It is not a matter of evidence where we are looking at the construction of ‑ ‑ ‑
MR WILLEE: Perhaps that is so, your Honour. I cannot gainsay that but nonetheless ‑ ‑ ‑
FRENCH CJ: I do not think we need to get involved in sort of speculative activities.
MR WILLEE: No. That equally applies to the submission. That is really all the point of the Costa Rican Nicaragua Case that we cited in the submissions was raised for, to demonstrate that, albeit in relation to a river in which the same rules of navigation and in relation to a treaty in which the same rules of navigation are – freedoms are – and the way in which they operate as the high seas or on the Black Sea and all those sorts of areas - what is required to be taken into account by the Court under international law is that it is the sovereign state in relation to the area that decides what the regulation should be and the need for it but certainly the mere assertion that there has been such an interference, unjustifiably, is not enough.
Your Honour, subject to those matters, unless your Honours ‑ ‑ ‑
GUMMOW J: If the appeal were to succeed, do you accept that the order we would then make would involve the entry of an acquittal?
MR WILLEE: May I just take a moment of instruction on that? Your Honour, we do accept that. May I just add some things that my learned junior has pointed out to me in relation to fishing and the provisions of 101 that your Honour drew my attention to. Section 12(3)(a) refers to the circumstance of granting of licences; 12(3)(b), “prohibition or relation of fishing”; 12(3)(c), “the powers of officers”. The Act is not limited to the physical circumstance of taking fish and it gives a very wide meaning to the connection necessary in the concept of “in relation to”. May it please the Court.
FRENCH CJ: Thank you, Mr Willee. Mr Wyvill.
MR WYVILL: Two points, your Honour. Just on that last point first. Section 12(3) - we characterise section 12(3) as identifying provisions whose extension is necessary to make provisions in relation to fishing either coherent or effective, coherent because you need to have the licensing provision there to protect in relation to the grant of licences and effective in the sense that the powers in relation to the prohibition of fishing needs to be made effective by the powers given to officers to enforce that provision so it does not change, in our respectful submission, the position at all.
The final point we would make is my learned friend referred to the physical capacity as being the capability that they would put forward. The construction adopted below – Justice Riley, appeal book 56 point 20 – was practical capability and Justice Mildren, appeal book 253 point 30, also practical capability. I have nothing further unless your Honours have a question for me. Thank you, your Honours.
FRENCH CJ: Thank you, Mr Wyvill. The Court will reserve its decision. The Court adjourns to 10.15 am, Tuesday next, 9 February.
AT 11.15 AM THE MATTER WAS ADJOURNED