Muslimin v The Queen

[2009] HCATrans 240

[2009] HCATrans 240

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D9 of 2009

B e t w e e n -

MUSLIMIN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO DARWIN

ON FRIDAY, 2 OCTOBER 2009, AT 9.31 AM

Copyright in the High Court of Australia

MR A. WYVILL:   If it please the Court, I appear for the applicant.  (instructed by Northern Territory Legal Aid Commission)

MR P.A. WILLEE, QC:   If the Court pleases, I appear with my learned friend, MS L.A. TAYLOR, for the respondent.  (instructed by Director of Public Prosecutions (Cth))

FRENCH CJ:   Yes, Mr Wyvill.

MR WYVILL:   Your Honours, may I deal with this application in two parts:  firstly the merits of the appeal and, secondly, the reasons why this Court ought to hear the appeal.  Firstly, in relation to the merits of the appeal, your Honours will have noted that this case concerns two related but distinct sets of extraterritorial sovereign rights granted under UNCLOS.  The first is Part V, the exclusive economic zone, and the second is Part VI concerning the continental shelf, most relevantly here, resource rights in relation to sedentary species on the seabed.

Your Honours will probably be aware that both sovereignties are limited under international law to exploring and exploiting resources, relevantly here, living resources, and sit side by side with the qualified freedom of navigation enjoyed by all nations referred to in Article 87.

FRENCH CJ:   Mr Wyvill, we are concerned, are we not, with a prosecution for a contravention of a statute?

MR WYVILL:   Yes, we are, your Honour.

FRENCH CJ:   Yes, are you going to take us to a basis for the grant of special leave by reference to the statutory provisions under which your client has been prosecuted.

MR WYVILL:   I will, your Honour, yes, but I would like ‑ ‑ ‑

FRENCH CJ:   I think broad discussions about sovereignty are not going to get us to that. 

MR WYVILL:   I understand that, your Honour, but it is important for your Honours to understand how the international law operates in the background here.  I will be very brief.

HAYNE J:   No, it is not, it is important for us to begin with the statute, then whether we get some assistance for construing the statute out of international law may be a separate question, but we begin in the Act, do we not?

MR WYVILL:   Thank you, your Honours, and with your Honours’ indication helpfully I will go straight to the legislation.  Would your Honours look at section 12(1) first?  That provision gives the Governor‑General the power to certify which species fall within and without sedentary species for the purpose of the legislation, and your Honours will note ‑ ‑ ‑

FRENCH CJ:   Well, that picks up bêche‑de‑mer and there has been a declaration, we are aware of that.

MR WYVILL:   Yes, your Honour, but your Honours will note the direct reference to international law as being the guide as to the exercise of that certifying power.  For present purposes, your Honours note that is Article 77(4) of UNCLOS, which defines what sedentary species are.  Your Honour, subsection (2) of course then is the difficult section for the purpose of – at least on our submissions – this appeal.  What it does, in our respectful submission, is this.  It purports to take a regime that was devised to deal with an area where Australia enjoys all rights under Part V and Part VI of UNCLOS, and to extend it insofar as it is capable of doing so to an area where Australia only enjoys the rights under Part VI.

Your Honours, the significance of that can be seen by looking at the provisions themselves, and it is important to look at 100 and 101 side‑by‑side.  Very briefly, with section 100, your Honours will note that it operates by defining certain conduct which will be unlawful unless licensed, and the conduct there is commercial fishing.  If we go over the page we see a very similar structure in relation to 101 but there are two key differences. 

The first is the beginning, the first paragraph, the first three lines of 101, cast the provision extremely broadly.  It captures the mere presence of a foreign fishing vessel unlicensed – the exceptions are unlicensed – in the AFZ.  It then goes on to excuse that presence under the five subparagraphs.  Four of them concern permits and licences, so we can forget those.  The fourth, paragraph (d) – but the fifth one I was talking about, paragraph (d) - is not found in section 100, and what it does is it defines particular kind of conduct which will be taken to be innocent.  So the way this provision works, unlike section 100, is it defines innocence.  It prescribes an entire area of conduct and then under paragraph (d) defines innocence. 

Your Honour, that paragraph (d) is a direct reflection of the right of innocent navigation in this area.  That is what, we say, the legislature had in mind when it enacted paragraph (d), to provide an excuse for freedom of navigation of foreign fishing vessels in this area.  But it is important to note this.  It does not attach onto the true intention of the person who was in possession of the vessel.  What it does is it deems certain conduct of the innocent and therefore, as a defence of strict liability, deems all other conduct to be malevolent. 

So, your Honour, if one is going to take that provision and apply it to a whole new area under international law, the first question is does that protection for freedom of navigation work and the answer is it does not.  You can see it for two reasons.  It has two elements to it.

FRENCH CJ:   I am sorry, Mr Wyvill, we are concerned primarily, are we not, first with the operation of section 12(2) upon section 101, that is, whether and to what extent section 101 is able to be extended beyond the AFZ but above the Australian continental shelf.  I would have thought that was your core argument, is it not?  This is the statutory question that we have to go to first.

MR WYVILL:  That is precisely right, your Honour, but to understand that point one needs to appreciate how 101 operates.  It operates by prescribing an entire area of conduct and then preserving a freedom of navigation in subparagraph (d). 

FRENCH CJ:   We can see that for ourselves.

MR WYVILL:  Your Honour, if that structure miscarries, as we submit it does, if applied to the outer Australian continental shelf, then 101 is not capable of applying, because the structure the legislature had in mind has miscarried.  We can see it most clearly by the second limb of paragraph (d) which is to define as a critical element of innocent navigation travelling across the AFZ by the shortest practical route.  Would your Honours turn up the map at page 105 ‑ ‑ ‑

HAYNE J:   Mr Wyvill, before we come into the detail, can we look at 12(2).  I would have thought that 12(2) was the start of the relevant inquiry.  Section 12(2) has an extending operation which has a number of elements.  Provision is made in relation to fishing in the AFZ.  Section 101 is such a provision, is it not?

MR WYVILL:  Yes, your Honour. 

HAYNE J:   Such provision, to the extent that it is capable of doing so, extends by force of this section to fishing for sedentary organisms.  Why is 101, which might conveniently be referred to as going equipped, why is 101 as an offence of going equipped extended by force of section 12(2) if it is not directed immediately to fishing for sedentary organisms.  It is directed to the radically separate and different subject matter of going equipped.  Now, is not that the start point, and it is a start point that I would have thought favoured your side.

MR WYVILL:  Well, yes, your Honour.  I would accept going equipped is critical and critically different to actions of fishing, for example, and while that is obviously a point we take, going equipped is so broad as to capture a whole range of conduct which may in truth be the innocent exercise of a foreign fishing vessel owner in Indonesian waters of the rights international law grants them.

FRENCH CJ:   What you would have to do is to look, of course, at the definition of “fishing” in section 4 and ask the question whether the going equipped is picked up in paragraph (e) which speaks of:

any operations at sea directly in support of, or in preparation for, any activities described in this definition -

What do you say about that?

MR WYVILL:  I am sorry, your Honour, may I have that point again?

FRENCH CJ:   Yes.  One looks to the definition of “fishing” in section 4, and in particular paragraph (e) of that definition, which refers to:

any operations at sea directly in support of, or in preparation for, any activities described in this definition -

That seems to me to be the element of the definition of “fishing” that comes perhaps closest to what section 101 is dealing with.  But the question is does it pick up going equipped with nets, traps or other equipment?

MR WYVILL:   The point your Honour is making is that this kind of conduct, if it was malevolent, would already be caught by ‑ ‑ ‑

FRENCH CJ:   Forget the epithets about malevolence.  Just looking at the words of the statute, the question is section 12(2), which extends provision made in relation to fishing, picks up section 101 which has to do with having in “charge a foreign boat equipped with nets, traps or other equipment for fishing” and that directs attention then to the definition of “fishing” in section 4.

MR WYVILL:  Yes, your Honour, I think we would have to accept that it is a provision in relation to fishing and particularly would be captured by that subparagraph. 

HAYNE J:   I must confess that is not a reading of the section that I have made and it is a reading of the section that seems to be directly antithetical to your proposed ground 2.4.2.  Are you telling us that you are not pressing 2.4.2 because it seems to me that that is to abandon what seemed on its face to be at the heart of the case you wanted to make?

MR WYVILL:  I apologise, your Honours, if I am not following your Honours’ questions.  We are certainly not abandoning any grounds of appeal.  It is clear to me that I have not followed your Honour’s question and I apologise for that.  We certainly are pressing that this – I can take up the ground of appeal to which your Honour is referring.

HAYNE J:   It is at application book 102, lines 8 or thereabouts, 7 or 8, if you leave aside the chapeau of failing to conclude, et cetera, and their references to international law, the essence of the ground seemed to be that in its terms 12(2) does not effect the extension of operation of 101 over the continental shelf because it is not relevantly a provision which is extended to fishing.  Now, the point may be good or bad but it seems to me that that is the point at which you start.

MR WYVILL:   Yes, your Honour.

HAYNE J:   In aid of that proposition you may deploy a number of international law arguments saying that there are various reasons to favour that construction over other constructions but that seems to me to be where you begin.

MR WYVILL:   Yes, your Honour.  Can I for that reason also then begin again.  I accept that that is the starting point.  It is the question you get to before you ask the question of whether it is capable of extending.  One looks at the definition of “fishing” and we do make the point that this does fall outside that definition for the reasons we have discussed.

FRENCH CJ:   Yes.

MR WYVILL:  Your Honours, we certainly make that point and can I then move on, conscious of the time, to this question of miscarrying because we do say the structure of section 101 as particularly indicated by subsection (d) fails if it is applied to the outer continental shelf.  The critical element to that failure is the inapposite protection given to the freedom of navigation in this new area by subsection (d), the most obvious example being that Indonesian fishing vessels, unlike in the AFZ where if they are acting innocently are going to be going across the AFZ with their gear stowed, Indonesian fishing vessels here, even those equipped for multiple purposes, (a) are likely to be using their fishing equipment and have it on deck, and (b) are not likely to be going across but likely to be going south then north.  For both of those reasons the protection of the freedom of navigation in subparagraph (d) fails.

HAYNE J:   Now, if you would be good enough to look again at your draft notice of appeal, pages 101 to 103.

MR WYVILL:  Yes, your Honour.

HAYNE J:   If there were to be a grant of leave in this matter – we have not yet heard from the respondent about why there should not be – but if there were to be a grant of leave, would you need more than appears in ground 2.4?  Is that not the heart of the case you want to make?

MR WYVILL:  Yes, it is, your Honour. 

FRENCH CJ:   Well, perhaps we can hear from Mr Willee in relation to 2.4.

MR WILLEE:   Well, your Honour, the only thing we can say about that is that it has been obvious from the first time these points were raised, which was of course not at the original hearing, so it never got the sort of airing which would have assisted this Court in relation to dealing with the matter and the matter in front of it at the moment.

However, we say it is not something that we can answer at this time because on its face all that has been done is to make the bald assertion throughout these proceedings on appeal that either the interference with the sovereign rights is sufficient for the purpose per se, or the unreasonableness of the provisions achieves the same object.

HAYNE J:   But if we strip out any reference to international law for the moment, and ultimately I think you would have to come back and look at international law, but strip it out for the moment, confine yourself to the text of the section, why is it not arguable – let me put it as high as that – that 101 is not engaged?

MR WILLEE:   Well, your Honour, I can only say that we submit a totally different view to the one which your Honour has taken.  I cannot put it any higher than that.  The language, both in (c) and (e), which your Honour has drawn attention to, of section 4 in relation to the definition of “fishery”, either singly but preferably combined is sufficient for that purpose.  It is an operation at sea.  The mere transiting through the area is an operation of that sort.  It is “directly in support of, or in preparation for, any activity described in this definition”.

It is clear that the vessel carried all the apparatus for the purpose of sedentary fishing, and we cannot take the matter any further than that because the evidence that related to such a contention as your Honour puts to us now was never canvassed at the trial.

HAYNE J:   I had not understood it – and you will need to correct me if I am wrong in this – as turning immediately on a question of evidence.  Rather, I had understood the issue as turning critically on the proper construction of the words in 12(2), in particular whether this offence that I have described as going equipped, which of course has all the hazards of undue abbreviation, but this offence of going equipped can be described as a provision to the extent that it is capable of doing so which has been extended by the Act to fishing; that is, is going equipped fishing.  That is the area that troubles me at the moment.

MR WILLEE:   Your Honour, I cannot go beyond the words of the subsections.

FRENCH CJ:   This is not a point of evidence.  I mean, there was evidence apparently of people on the deck and nets out and so forth.  The question is simply whether as a matter of construction the offence described in section 101 is picked up within the definition of “fishing” in section 4.

MR WILLEE:   Yes, and we say it picks up this activity.  It is within that section of the Act, which your Honour will remember no doubt dealing with in Olbers, and the comments that flowed from your Honour the Chief Justice in relation to that case, particularly I think at paragraph 86, which I have not extracted but I intended to make a reference to.  There was never a suggestion that – although the extension was not the issue ‑ ‑ ‑

FRENCH CJ:   That was within the AFZ.

MR WILLEE:   It was certainly within the AFZ, but it would be our submission that the principles that were enunciated there are sufficient for the purposes of these proceedings.  I suppose there always has to be a first time, but we cannot submit any particular matter which assists with contracting that statute in a way that would suggest that it was not capable of carrying out the purpose for which we say it was intended.

FRENCH CJ:   Anything further?

MR WILLEE:   No, your Honour, not on that point.

FRENCH CJ:   Or any other point?

MR WILLEE:   Your Honour, it is clear to me that those are the points that your Honours are concerned with, and the only other matters I was going to address were simply a summation of the matters that clearly you did not want to hear about and I do not want to waste the Court’s time with dealing with them.

HAYNE J:   It is a question of the point at which you enter the problem.  Do you enter the problem with an examination of international law first, or do you enter the problem first as a question of construction, then aided by consideration of international law?

MR WILLEE:   Yes.  Your Honour, we could not in any way demur from the process which your Honour has suggested is correct, and we do not.

FRENCH CJ:   There is unfortunately a chronic problem in advocacy in areas involving international law that people seem to want to enter the debate at the level of international law when they are talking about domestic statutes.  That is an inversion.  All right.  Thank you. 

MR WYVILL:   Thank you, your Honour.

FRENCH CJ:   There will be a grant of special leave in this matter confined to ground 2.4 of the draft notice of appeal.  Mr Wyvill, we would suggest that you might give attention to the drafting of the ground and perhaps bear in mind that the point of entry for any debate that the Court is likely to entertain will be the construction of the statute.  Of course international law has its role to play with respect to that, but you start with the statute.  I think if you bear that focus in mind when looking at ground 2.4, it would assist in the precision with which you can advance your submissions.  This should not take more than half a day to a day, should it?

MR WILLEE:   One would have thought not, your Honour.

MR WYVILL:   I agree, your Honour, yes.

FRENCH CJ:   All right.  There will be a grant of special leave.  Thank you.  We will adjourn briefly.

AT 9.55 AM THE MATTER WAS CONCLUDED