Olbers Co Ltd v Commonwealth of Australia & Anor

[2005] HCATrans 228

[2005] HCATrans 228

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P71 of 2004

B e t w e e n -

OLBERS CO LTD

Applicant

and

THE COMMONWEALTH OF AUSTRALIA

First Respondent

AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

Second Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 22 APRIL 2005, AT 11.41 AM

Copyright in the High Court of Australia

__________________

MR P.W. DAVID:   If it please your Honours, I appear on behalf of the applicant for special leave.  (instructed by Jackson McDonald)

MR P.R. MACLIVER:   If it please your Honours, I appear for the respondents.  (instructed by Australian Government Solicitor)

HAYNE J:   Yes, Mr David. 

MR DAVID:   Your Honour, the argument for special leave is set out in much fuller form than I can manage in my allotted time in the summary of argument points in reply.  I propose to make some key points and answer questions.  Your Honour, special leave is resisted on the grounds that there is insufficient doubt attending to the decisions in the courts below and that the decision is not of sufficient public importance and it is not in the interest of justice generally to hear the appeal from the courts below.

Now, the applicant says that on the construction of the Act, a construction which gives a dispossessed owner in the circumstances of the applicant is to be preferred to the one which was adopted below, which removes all rights by the operation of section 106A.  It also says that the question in the case concerning the scope of the powers of the Commonwealth to seize vessels on the high seas is plainly a matter of fundamental importance, not only for this owner, but also internationally.

I would like to make some points in relation to the construction arguments.  These relate to the effect of the decision below, what it disregards and why alternative constructions ought to be preferred.  The decision in the courts below means effectively, logically, that if a vessel is forfeit under section 106A, the Commonwealth has automatic title to it.  That removes any right of possession, in the words of the Full Federal Court, so that the vessel can be seized with force if need be, even if the vessel is on the high seas, at any time, anywhere.  In my submission, that is the logical effect of the construction of the statute.

This, it is submitted, can occur regardless of the provisions of the Act, in particular, section 87, which is expressed to limit the exercise of power to seize on the high seas under section 84(1)(ga).  So, effectively, the effect of the decisions in the court below is to remove any private right for remedy in the dispossessed owner for the seizure. 

Your Honour, the Act on its face provides for the exercise of the power in a particular manner, consistent with international law, in fact comes down and was reduced to a provision which no longer reflects international law or the provisions of the Act itself.  The approach means that the owner is bereft of remedy under statute or at common law and there is no real check on the power of the Commonwealth. 

HAYNE J:   Why not?  If the Commonwealth seizes a vessel believing, perhaps reasonably believing, perhaps genuinely believing it to be forfeit, but in truth it turns out not to be, is not the Commonwealth then liable to the owner for the consequent detention or conversion of the vessel?

MR DAVID:   Your Honour, that is correct.  Under the statute, if the vessel was not involved in any activity in the AFZ, then the scheme does have that effect.  In other words, it would allow the owner to come to court and say the vessel ought not be forfeit.  The applicant’s point, though, is that there is no remedy under the statute if the seizure is undertaken on the high seas in breach of international law and in breach of section 87 of the Act.  And, in my submission, the construction of the Act, notwithstanding the policy grounds that drive the statute to outlaw the taking of fish in the AFZ, there are also policy grounds that go the other way. 

A construction which favours, a construction which allows, a remedy where there is a seizure on the high seas in breach of the statute ought to be preferred.  Because if the statute is approached as it is in the courts below, it involves disregarding the international background to the legislation itself.  It sets to one side provisions of the Act which are plainly intended to limit the exercise of power on the high seas, whether the vessel has been involved in illegal activity or not, section 87.  It is plainly intended to limit the circumstances in which power to seize a boat can be exercised on the high seas.  And the statute itself clearly reflects an international legal norm, which requires a hot pursuit if a vessel is to be validly seized on the high seas.

If the approach in the courts below is adopted, there is no regard to those matters.  Section 87 expressly applies to the exercise of the power to seize a vessel under section 84(1)(g).  If section 106A is absolute, the Commonwealth can disregard the provisions as it pleases.

HAYNE J:   Well, the alternative point of view would be, I think, that section 84 powers are engaged where officers have reasonable grounds to believe, perhaps suspect certain things, and thus the power to pursue given by section 87 is a power to pursue vessels that an officer reasonably believes have engaged in illegal activity.  The automatic forfeiture in 106A, by contrast, is engaged when in fact there has been an unlawful operation in the Australian Fishing Zone.  Now, on that understanding, the Act has a perfectly congruent operation.

MR DAVID:   Your Honour, in my submission, the scheme under section 106A is related back to the exercise of power under section 84(1)(ga) by, for example, section 106B, and the effect of those provisions is that there is a linkage between the exercise of power on the high seas and the seizure which brings the vessel within section 106A.  In my submission, it will be submitted that the statute ought to be read so as to reflect section 87 in the exercise of the powers outside of the Australian AFZ. 

Your Honour, there are two alternative constructions available here.  One says that section 106A is an absolute construction.  The other says that the scheme under 106A through to G ought to be interpreted in a way to allow the seizure of the vessel to give rise to rights in an owner to come before the court and say – as the section itself says, and, in my submission, there is no reason to read the relief provisions down – that the owner is entitled to an order to recover the thing by reason of the seizure being in breach of section 87 or a declaration the thing is not forfeit.

Your Honour, in my submission, the alternative constructions are much more in accordance with the balance of rights that is represented by the Act.  There is another purpose that underlies the statute, namely, that it reflects the international order of circumstances in which a vessel can be taken on the high seas.  Your Honour, what this comes down to in the approach below gives the Commonwealth absolute rights which are expressed to be self‑help at common law in a matter.  It does not matter, it would seem, that the acts are contra to international law, contrary to provisions of section 87 of the domestic law, contrary to the common law itself.  At that point, I would refer to paragraphs 16 of the outline, in which it is submitted that the international legal norms which require a hot pursuit for a vessel to be seized represented by freedom of navigation are in fact part of the common law of Australia.  But the approach to the statute allows those matters to be disregarded.

If that is to be the effect of the statute on its construction, it would require the clearest possible words, and, in my submission, that is not available here.  There are available choices which allow the Act to be construed to give an owner dispossessed by a wrongful seizure in breach of the Act – to give the owner the right to claim orders that the property be not forfeit or be recovered.  This kind of construction, in my submission, is consistent with the limits placed on the power to detain under the Act consistent with international law.

The alternatives, your Honours, are set out in the summary of argument.  If section 87 is contravened, paragraphs 12 to 16, then, in my submission, the seizure is wrongful, notwithstanding that the vessel has been involved in illegal fishing activities.  In my submission, it is clearly the intention of Parliament that a vessel falling under 106A where powers are exercised over it under section 84(1)(ga) – they would only be exercised outside the AFZ in circumstances where the requirements for a hot pursuit were met.

In my submission, the scheme under 106B to G, paragraphs 18 to 19 of the outline, can be interpreted as not permitting immediate forfeiture, but rather a process by which after forfeiture, after its fulfilment of the scheme, forfeiture can ultimately declare.  The Full Court refers to the prize cases, and in fact that is what happens in prize cases, your Honours.  A final order of a prize court is required before the person claiming the prize has got title.  In my submission, that is a perfectly proper interpretation of section 106B to G and it accords with the words of the statute, which allow the person whose property has been seized under 84(1)(ga) to apply to recover the thing, or for a declaration that the thing is not forfeited.

So, in my submission, the forfeiture scheme can properly be interpreted to allow a remedy in this situation.  That approach better balances the underpinning of the Act, which has said it is based on the international law of the sea and the limited rights to take a vessel on the high seas. 

Paragraphs 20 to 22 of the outline, even if the forfeiture is immediate, as the Commonwealth has contended, the statutory scheme should, in my submission, be interpreted on its wording to provide a remedy for a person who has been dispossessed.  Again, the words of the statute permit this and that is a proper approach which balances and allows a remedy where there has been seizure in breach of 87.

Similarly, with rights to the breach of statutory duty, paragraph 23 and paragraph 24, there is, in my submission, no reason to obliterate those potential claims by operation of section 106A.  On the proper interpretation of the statute, the converse can be argued and those claims ought to survive, particularly as a common law claim depends on the right to possession, which the owner at the time of the seizure certainly had. 

In my submission, the points on the statute give rise to a choice of interpretation.  It is submitted the choice whether to interpret the Act and apply the common law to provide a remedy for wrongful seizure, that option, or to interpret the Act in a way which makes the manner of seizure completely irrelevant, the applicant will submit that the conclusion that the manner in which the Commonwealth removes goods is not relevant and

gives rise to no rights in a person dispossessed should only be reached with the clearest words. 

That is not the case in this statute.  In fact, the scheme can properly and ought properly to be interpreted to allow a remedy to a dispossessed owner for a seizure which is wrongful.  Where there is an important principle of international law underpinning the limits on the power to seize, as there is here, the case for an interpretation which gives the person dispossessed a remedy for the breaches is more compelling.  Similar reasons apply, in my submission, where the dispossessed owner is able to claim at common law that those rights should not be removed by section 106A either.  In my submission, this is an appropriate case for a grant of special leave.

HAYNE J:   Yes, thank you, Mr David.  Mr Macliver, we need not trouble you.

There is no reason, in our opinion, to doubt the correctness of the decision of the Full Court of the Federal Court of Australia.  Accordingly, special leave is refused with costs.

The Court will adjourn to reconstitute.

AT 11.55 AM THE MATTER WAS CONCLUDED