Re Director of Public Prosecutions (Commonwealth); Ex parte Lawler

[1993] HCATrans 290

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No S31 of 1993
In the matter of -

An application for a Writ of

Prohibition and Certiorari

against DEREK MICHAEL PRICE

MAGISTRATE

First Respondent

DIRECTOR OF PUBLIC

PROSECUTIONS

Second Respondent

Ex parte -

KEVIN JOSEPH LAWLER and

PETER GERARD PENROSE

Applicants and Prosecutors

MASON CJ
BRENNAN J
DEANE J

Lawler(2) 1 6/10/93

DAWSON J

TOOHEY J

GAUDR0N J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 OCTOBER 1993, AT 11.31 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my

learned friends, MR A.W. STREET and

MR M.J. FITZSIMONS, for the applicants.

(instructed by Norton Smith & Co)

MR B.J. SHAW, OC: If the Court pleases, I appear with my

learned friend, MR P. ROBERTS, for the respondent
Director. (instructed by Commonwealth Director of

Public Prosecutions)

MR D.J. ROSE, QC: If the Court pleases, I appear with my

learned friend, MR G.R. KENNETT, for the

Commonwealth Attorney-General, intervening to

support the legislation. (instructed by Australian

Government Solicitor)

MASON CJ: Yes, Mr Rose. The first respondent has notified

the Registrar that he does not wish to be

represented at the hearing and would abide by the

decision of the Court save as to cost. Mr Jackson.

MR JACKSON:  Your Honours should have in front of

Your Honours, copies our outline of submissions?

MASON CJ: Yes, we have.

MR JACKSON:  Your Honours, as is apparent from the outline

of submissions, the issue which arises in this case
concerns one or perhaps two provisions of the

Fisheries Management Act 1991, and the issue can be

put, I suppose, in two ways. One is whether

section 106(l)(a) - and I will take Your Honours to

its terms in just a moment - in empowering the

making of an order for forfeiture of a vessel used

in the commission of an offence, there specified,

but which is owned by a third party who is

innocent, and, Your Honours, I will seek to develop

the term, "innocent", in just a moment, is a valid

law of the Commonwealth. Alternatively, the laws

to which reference is appropriate may be

sections 106(l)(a) and 106(3).

Your Honours, so far as the facts and

statutory provisions are concerned, the material in

the application book is relatively lengthy because

it concerns the events which took place before the

magistrate and the evidence before him. We have

sought to summarize what occurred in paragraphs 6

to 10 of our outline of submissions and,

Your Honours, I shall not read those out, but may I

take Your Honours to those paragraphs and, in

particular, to paragraph 8, which is an

introductory paragraph leading to the relevant

provision.

Lawler(2) 2 6/10/93

Your Honours will see in paragraph 8 that the

order for forfeiture was made in the exercise of the power conferred by section 106(l)(a). Mayr

take Your Honours to that now. It provides that:

Where a court convicts a person of an offence

against section 95 ..... 99 or 100 the court may

order the forfeiture of:
(a) a boat ..... used in the commission of the

offence -

Your Honours, the boat, when ordered to be

forfeited, as Your Honours will see from

section 106(3), becomes the property of the

Commonwealth. Section 106(3) says so expressly.

Your Honours, the relevant offence was an

offence under section 100(2) of the Act and that is a provision which takes one back to section 100(1),

and that is that:

A person must not, at a place in the AFZ, use a foreign boat for commercial fishing unless -

there is a foreign fishing licence, to put it
shortly. Your Honours will there see set out the

relevant offence in paragraph 9 of our outline of

submissions. Your Honours will see the facts

relating to the involvement, if I could use the
expression in inverted commas, of the applicants
set out in paragraph 10 and the relevant findings
by the magistrate in relation to their lack of

involvement are set out in the last sentence of

paragraph 10.	I will not take Your Honours to the
detail of them.

Having said that, if Your Honours would go

back for just a moment to the terms of

section 106(l)(a), Your Honours will see that it

possesses certain characteristics.	The first
characteristic of section 106(1)(a) is that it
operates upon conviction.	The second is that it

gives the court a power to order forfeiture of the

vessel. The only expressed requirement to enliven

the power to order forfeiture is that the boat be

"a boat used in the commission of the offence" and

in particular, to put the obverse of that, there is

no requirement that persons having interests in the

boat or being the owners of the boat be in any way
involved in the commission of the offence for the
boat and all the interests in it to be forfeited to

the Commonwealth.

Your Honours, in that regard the provision

seems, prima facie, relevantly indistinguishable

from the provision of section 13AA(3) of the

Lawler(2) 6/10/93

Fisheries Act 1952 to 1970, which was considered by

the Court in Cheatley v Reg, (1972) 127 CLR 291.

In that case, it was held that the provision of section 13AA(3) of that Act authorized the making of an order for forfeiture of a vessel used in the

commission of an offence under that Act, even

though the vessel was not the property of the

person committing the offence. The offence was

similar to the offence presently in question.

The relevant section is set out at page 294 in

the reasons for judgment of Chief Justice Barwick,

and the particular provisions of it which are

germane appear to be subsection (1) and then the

concluding words of subsection (3). The passages

in which the Court expressed its view on the

question of interpretation of the Act may be seen

at page 296 in the paragraph commencing at about

point 2 and going into the next paragraph as well;

at page 300 about point 7 in the penultimate

paragraph on the page, Justice McTiernan;

Justice Menzies at page 304 about point 4, the

paragraph commencing, "Not without some

hesitation"; and Your Honour the present

Chief Justice at page 311 about point 1 going to about point 4.

Your Honours, I propose to return to a couple

of the passages in Cheatleywhen I come to deal

with some other aspects of the case. I simply

refer Your Honours to it for the moment to indicate

that the provisions of that Act seem to be, for

practical purposes, indistinguishable from those of

the present Act, and assuming that proposition to

be correct, one then comes to a situation where,
prima facie, the terms of section 106(l)(a), as a

matter of construction, would operate to take away

the interests of any person in the boat upon

forfeiture.

Your Honours, having said that, may I turn

then to the operation of section Sl(xxxi) of the

Constitution and, Your Honours, the first question, in our submission, is this: what are the reasons why the provisions of the Fisheries Management Act, to the extent to which they have the operation in

respect of the rights of the innocent third party,

to which I have adverted, why do those provisions

not attract the operation of section Sl(xxxi)?

Your Honours, we would put the question in that way, at first, because on a simple and perhaps no

doubt guileless reading of section Sl(xxxi), its

terms would appear to be, prima facie, applicable.

What I mean by that, Your Honours, is this,

that one starts from, for example, section Sl(x)
which empowers the Parliament to make laws with

respect to fisheries beyond territorial limits;

Lawler(2) 6/10/93

clearly enough, the regulation of such fisheries is

a purpose for which the Parliament has power to

make laws.

Then there is, what we would submit, an

acquisition of property - and I will come back to

that in a moment - because the Commonwealth

acquires property which it did not have before and there is no question of any complication about the property going to any person other than the

Commonwealth by the operation of the law.

Section 106(3) makes it clear beyond measure,

although the forfeiture provision of 106(l)(a)

would seem to do it of its own force.

Your Honours, the third aspect is, are any

terms provided and, if so, are those terms just?

Your Honours, the only terms provided by the Act

are that the forfeiture is not automatic but only

occurs by the exercise of a judicial discretion as

appears from the opening words of section 106(1),

but the existence of the discretion, in our

submission, could not relevantly amount to just

terms, if considered by itself, because it would be
possible for the Court, dealing with the question
of forfeiture, to be satisfied that the owner was
absolutely innocent of the involvement in the
offence - the vessel may have been stolen, for

example - but yet, order forfeiture.

And the question of guilt or innocence of

involvement is a factor to be taken into account

but it is not decisive and, Your Honours, the fact

that it is a factor may be seen in an observation

of Chief Justice Barwick in Cheatley, (1972)

127 CLR 291, at page 296, at about point 3, where

Your Honours will see at the end of the first new

paragraph on that page, His Honour said:

If it is accidental that circumstance will be

weighed in the exercise of any available

discretion.

Now, Your Honours, having said that, one comes then

to seek to identify, in our submission, the reason

why laws, having the effect of sections 106(l)(a)

and 106(3), are not laws falling within

section Sl(xxxi). Your Honours, the cases suggest

two reasons, one being that such laws do not

satisfy the description of laws with respect to the

acquisition of property, the other being that such

laws do provide for just terms. Your Honours, I

propose to deal with those reasons in that order,

if I may. But may I, before doing that, say three

related things about section Sl(xxxi)?

Lawler(2) 6/10/93

Your Honours, the first is that the terms of

section 51(xxxi) have been said to be a

constitutional guarantee. I will not take

Your Honours to the detail of the passages but may

I give the references to them. The first is the

dictum of six members of the Court to that effect

in Clunies Ross v Commonwealth, (1984) 155 CLR 193,

at page 201, about point 9, to page 202, at the top

of the page. The second is the adoption of that

proposition by Your Honour The Chief Justice and by

Justices Brennan, Deane and Gaudron in the

Australian Tape Manufacturers Association Ltd v

Commonwealth, (1993) 112 ALR 53, at page 65, about

line 17.

Your Honours, the same passages demonstrate

the second broad proposition and that is that the
terms of section Sl(xxxi) are to be given the

liberal construction appropriate to a guarantee,

and Your Honours will see that proposition also

stated in Attorney General v Schmidt,

(1961) 105 CLR 361, at pages 370 to 371.

And, Your Honours, the third general matter,

in relation to section Sl(xxxi), and perhaps a

particular facet of its status as a constitutional

guarantee, is that section 5l(xxxi) provides the
only source of power to make laws providing for
acquisition of property. Could I give Your Honours

two references in the Tape Manufacturers' case to

that dictum. In 112 ALR in the judgment of four

members of the Court, at page 67 about point 1, and

then at page 78 about point 5, in the reasons for

judgment of Your Honours Justices Dawson and

Toohey.

Your Honours, having said those general

things, may I turn to the particular aspect with

which I seek now to deal, and it is this.

Your Honours, the view that a law effecting

forfeiture, even forfeiture of the goods of an

innocent third party, does not attract

section 51(xxxi), seems to derive from the
proposition that there are some laws which,
although effecting an acquisition of property, do

not attract the operation of section 51(xxxi).

With the broad proposition stated in more or less

that way, one could not caval and the obvious

category, of course, is taxation, that is laws made

pursuant to section Sl(ii) and, Your Honours, as

the Court said in Australian Tape Manufacturers at

page 65, the two notions effectively do not fit

together. In another instance recognized in the

cases is that of laws made pursuant to

section 5l(xvii), the power to make laws with

respect to bankruptcy and insolvency, and laws made

under that power, typically, involve the compulsory

Lawler(2) 6 6/10/93

acquisition of the property of the insolvent. But,

it would seem odd, in the extreme, if the insolvent

had to be compensated for that acquisition.

Chief Justice Dixon in Attorney-General v

Schmidt in 105 CLR 361 treated such a law as not

falling within section 5l(xxxi). His Honour, prima

facie, appears to have treated the case as one

where the subject-matter of the power fell outside

the provision. May I take Your Honours to that for

just a moment. At 105 CLR 372, what Your Honours

will see at about point 2 on the page, or point 3,

His Honour says:

For example, no one would doubt that under the

power to make laws with respect to bankruptcy,

property of the bankrupt may be sequestrated

and property of others which has been left in

his order and disposition may be vested in the

Official Receiver and that s.5l(xxxi) has no

bearing on the matter.

Your Honours, prima facie that passage seems

to indicate that His Honour was treating the case

as falling outside the subject-matter of 5l(xxxi)

acquisitions. A view equally open of course, in

our submission, was that section 5l(xxxi) did apply

in the sense that there was an acquisition of

property but that the provision for distribution

among creditors, and thus satisfaction of the insolvent's obligations, had the effect that,

bearing in mind the subject-matter, the acquisition

was on just terms. In any event, those are two

categories.

There are clearly, according to the decisions,

some other categories. One appears to be the

application of the property of former enemy

subjects for reparations, which was the decision in

Attorney-General v Schmidt, and the second is the

condemnation of prize that was referred to by

Chief Justice Dixon, again in Schmidt's case, at

page 373, at the top of that page, although

His Honour does not refer particularly to a

decision in support of the proposition.

Your Honours, could I just say that in the

argument in the case which preceded this case this

morning, the question of the operation of

section 5l(xviii) was raised. The question which

was raised by, I think, Your Honour Justice Deane

was whether the subject-matter of copyright and

other related rights might not be such as to make

section 51(xxxi) inapplicable to laws made under

that provision. I do not of course want to seek to

enter into that debate, but might I seek to say one

thing generally, and it is this, that one should be

Lawler(2) 7 6/10/93

careful not to water down the guarantee or, to use

the words in some of the cases under the provision,

one should not do indirectly what cannot be done

directly because the operation of the
constitutional guarantee in section Sl(xxxi) is one

of very significant importance.

If it be that the property of innocent third

parties may be taken as part of the punishment for an offence, for example, then it becomes difficult

to place limits upon it in some circumstances. It

might well be, as we have seen in earlier times

this century in some parts of the world, that not

just the property of the offender, but the property

of the offender's family, the offender's spouse or

the offender's children or parents, is also taken

because of the involvement of the offender in

something which is regarded as being proscribed. I

do not suggest that anything Your Honour was saying

would go to those limits. What I am simply seeking

to say is that it is a very important

constitutional guarantee that the polity cannot

acquire the property of persons for its own

purposes without there being the effecting of the

constitutional guarantee of just terms.

BRENNAN J: But is this an acquisition for a purpose for

which the Commonwealth has power to make laws?

MR JACKSON:	Yes, Your Honour.
BRENNAN J:	What is the purpose?
MR JACKSON:	The purpose, Your Honour, was to regulate the operation of the fisheries.

BRENNAN J: Is that a purpose for which the boat is

acquired?

MR JACKSON:  Your Honour, the purpose which the boat was

acquired was to seek to vindicate, if I can put it

that way, the rights of the Commonwealth to

regulate fishing in the area, and what the

Commonwealth does is to say, if you fish in this

area without the necessary approval then the

Commonwealth will forfeit to itself the vessel in

which you fish and, Your Honour, if one is looking

to see what is the purpose of the Commonwealth, the purpose of the Commonwealth in acquiring the vessel is to, let us say, prevent its use.

BRENNAN J: Well then, the forfeiting of a vessel in a case

where the offender is the owner of the vessel,

falls within Sl(xxxi).

MR JACKSON:  Your Honour, we would say, it falls within the

concept of - Your Honour, may I put it two ways?

Lawler(2) 8 6/10/93

We would put it in the alternative, as it were:
the first is to say, assume it be an acquisition of
property, then, because of the involvement of the

offender in the offence, it is an acquisition on

just terms; the just terms being that because of

participation in the offence, one is in a situation

where it is just for the Commonwealth to say, the

instruments of the crime will be forfeited to the

Commonwealth. That is one way. The alternative way we put it, Your Honour - - -

BRENNAN J: It really puts the constitutional guarantee in a

very curious light, does it not? If the

participation, for example, is most marginal and

the boat is of great value, and yet the forfeiture

can take place irrespective of the degree of

culpability or the severity of the penalty, but in

every case just terms is satisfied.

MR JACKSON:  Your Honour, that is because one would say in a

case like that, that just terms involves not just a question of money, but a question of quality of the event as well.

TOOHEY J:  Does that mean then that if the Commonwealth

acquired land for some purpose, the use to which

the land was being put, perhaps whether it was

being put to some anti-social use, was relevant to

the notion of just terms? It just seems that you

have converted "just" into some sort of moral

assessment.

MR JACKSON:	In the particular case Your Honour is putting to me it would not, presumably, one would think, in
the first place because the use of the land would
probably be something that would be governed by a
State law rather than a Commonwealth law, but if
there were some question of the law being a law of
the Commonwealth which was being contravened, then
it may be that there would be no difference to be
drawn between the acquisition of land and the
acquisition of other property. But the starting
point, we would submit, really is the question
whether there is in the case of a penalty an acquisition of property.

BRENNAN J: For a purpose of the Commonwealth?

MR JACKSON:	Yes, Your Honour.
DAWSON J: Or an acquisition on terms.	It seems to me that

forfeiture is an acquisition on no terms at all.

MR JACKSON:  Your Honour, that is where the second aspect of

the problem comes in.

Lawler(2) 9 6/10/93

DAWSON J:  The problem is not whether they are just or not.

There just are not any.

MR JACKSON:  That is so, Your Honour. So the question in

the particular case, we would submit, comes down to

one whether there is an acquisition of the property

for the purpose of the Commonwealth, because there

are not any terms provided.

DAWSON J:  You seek to distinguish the forfeiture from the

owner who is implicated from the owner who is not

by saying in one case the terms are just and in the

other they are not, but if it is not on any terms

distinction. at all, that just does not constitute a

MR JACKSON:  I am sorry, Your Honour, what I am seeking to

say is this: if one looks at the question of

forfeiture, one is looking at circumstances where

the person whose interest in the item forfeited is
to be forfeited is a person who, to put it broadly

and somewhat perhaps inaccurately, either is or is
not a person in one way or another concerned in the commission of the offence. Can I leave to one side for a moment cases such as cases where a person's

negligence contributed to the offence, although

that person was not involved in the offence.

If one is dealing with the broad category of

persons who are concerned in the offence, then

there seems no particular reason why, as a matter

of imposition of penalty, and the Commonwealth
cannot say, "Your property used in relation to the
offence is forfeited to the Commonwealth".

Your Honour, we would not suggest that a law which imposes a penalty is a law which effects an

acquisition of property for the purposes of

section Sl(xxxi). It seems the two notions seem

antithetical to each other. That is why, in the

case of the person whose participation in the
offence gives rise to the forfeiture, that person's

property used in the commission of the offence can

properly be regarded as being forfeited in
circumstances not giving rise to an acquisition of

property because it is simply part of the penalty

for that offence. No doubt it depends on what is

used in the offence, but that is part of the

penalty.

If one comes to the other case, the other case being that of a person who has an interest in the

property which is forfeited, and that person has no

connection with the offence at all, it is

impossible to say that the acquisition of that

property by the Commonwealth is an acquisition of

property which can be in any way taken out of

section Sl(xxxi) on the ground that it is something

Lawler(2) 10 6/10/93

which can be described as punishment for the

offence, because the person has not done anything.

DAWSON J:	How can you say he has no connection with the offence, because it is his boat which is used to
commit the offence.
MR JACKSON:	Your Honour, what I am seeking to say is, if

one is looking to the question of punishment, and

saying things such as the imposition of fines or

forfeitures are something that can be regarded as

punishment, and thus is not falling within

Sl(xxxi), but in cases like that, one cannot say

that of the person who did not participate in the

offence at all.

DAWSON J:  Why not? Why should not he have ensured that his

boat was not used for this purpose?

MR JACKSON:  Your Honour, if one takes the case of a person

whose boat was stolen for example, without

negligence. Such a case is one that, in our

submission, cannot give rise to a case where one

can describe the forfeiture as being in any way a

penalty to that person for that person's

participation in the offence. Your Honour, what we

would seek to say is, we will accept that in

relation to punishment for offences, what can be

done is to enact laws which do, as we say in our

outline of submissions, for example, reverse the
onus of proof; or laws which provide for a standard
of proof which is higher than say, the civil
standard of probabilities; laws which require the

person claiming - the innocent person, to

demonstrate there was an absence of negligence on

the part of that person which might facilitate the

obtaining of the vessel, or, laws for example,

which impose a shorter limitation period.

But, at the end of all that, if the

circumstance which appears is that, if a person can

demonstrate all those things but yet loses an

interest in the vessel, having been entirely

innocent, then in circumstances such as that, that

is a situation which we would submit does give rise

simply to an acquisition of that person's property

by the Commonwealth for a purpose of the

Commonwealth.

BRENNAN J:  Mr Jackson, how does your submission deal with

the case of an innocent financier with a mortgage

over the boat or two co-owners, one of whom is

innocent and one guilty?

MR JACKSON:	Your Honour, in most of the cases to which the issue would arise, there are really, broadly, two
situations.  One situation is where the person who

Lawler(2) 11 6/10/93

committed the offence really had no interest at all

in the item of property at all, but had possession
of it at the time, for example, though briefly.

The other circumstance, the circumstance of the

nature to which Your Honour refers.

Now, the operation of the order for forfeiture in the cases to which Your Honour refers, is an

operation which really has two effects. One is, it

terminates the interest of the person who is the

offender, if I can describe them as that. The

other is that it terminates the interest of, for

example, a finance company. Now, if it be assumed

that the finance company had, for example, nothing

to do with the matter apart from the fact that it

had supplied the vessel or the vehicle or whatever

it may be then, Your Honour, the question which

arises in those circumstances is whether the

forfeiture operates validly as a forfeiture in

respect of its interests, as well as in respect of

the interests of the other person, the offender.

Now, in the case of the finance company, to

use that example, Your Honour, what we would submit

is that if the law says under no circumstances can

the financier demonstrate that the financier had

any involvement in, or contributed to it in any

way, then the financier - if the financier

demonstrates that it had no involvement in the

matter at all and it had not been in any way

negligent and that all it had done had been to

engage in the simple transaction then, in those

circumstances, its interest is not forfeited. The

other interest may be, but its interest is not

because, to forfeit its interest, Your Honour, is

for the Commonwealth to acquire its interest for

the Commonwealth's purpose of vindicating the law,

and the vice of it is that the Commonwealth pays no

compensation for that interest.

Now, Your Honour, we do not say that the

Commonwealth cannot provide for forfeiture, instant

forfeiture, if one likes, but it cannot do it

without provision allowing there to be compensation

in the case of persons who demonstrate an absolute

innocence in relation to the matter.

TOOHEY J:  I take it, Mr Jackson, it is implicit in that

argument that a provision such as section 106 is a

law with respect to fisheries, no matter how widely

the forfeiture provision is cast, and the only

attack then is made on the acquisition on just

terms?

MR JACKSON:  Yes, Your Honour.

Lawler(2) 12 6/10/93

TOOHEY J:	And you give "just" a meaning which looks not merely to the value of the property that is
acquired but the conduct of the individual whose property is acquired?
MR JACKSON:	Your Honour, we would really start a stage before that in this way: what we would say is that
one has to look at the interests of persons in the
particular item of property. If it be assumed
there are two, then one of those interests is
likely to be the interest of the person who is the
offender.  Now, in the case of the person who is
the offender, it is perfectly intelligible to say
this that section 51 contemplates that there will
be penalties for breaches of Commonwealth laws. may involve, apart from deprivation of liberty, an
obligation to pay pecuniary penalties, they may
involve also the forfeiture of various items of property.

The nature of a penalty as such seems to be

antithetical to the notion of an acquisition of

property that might be covered by section Sl(xxxi).

So far as the position of the offender is

concerned, that is a perfectly intelligible result,

but so far as the position is concerned of a person

who is not an offender but has an interest in that

property, what we would first seek to say about it,

Your Honours, is that it does so far as that person is concerned operate as nothing other than an

acquisition of property. Now, the acquisition of

property, Your Honours, is one that the

Commonwealth is perfectly entitled to legislate for

so far as that person is concerned. But, it is

something for which the qualification of Sl(xxxi)

applies, namely, that it has to be on just terms.

Your Honours, I will come back to the second

part of it, if I may, in just a moment, but so far

as the Commonwealth is concerned, it may well serve

important questions of policy to ensure that, for

example, vessels involved in breaches of the

fishing zone laws are forfeited and are not to be

used again, but so far as interest in the vessels

are concerned, if they are interests of persons who
are entirely innocent, that is a case, we would

submit, where the law really amounts to - I do not want to use an unduly emotive word - confiscation,

for a purpose of the Commonwealth, without there

being any terms at all.

Your Honours, the second way in which we would

put it is this: if all penalties, in a sense, are

to be regarded as being acquisitions of property,

contrary to the submission I was making a moment

ago, then it is possible to say, in those

Lawler(2) 13 6/10/93

circumstances, that perhaps there are just terms

provided in the case of the offender in the sense it is something the offender loses because of the

offender's participation in the crime, and in that

sense the term "just" will involve some kind of

moral judgment, as Your Honours put to me.

Your Honours, that simply could not apply, we

would submit, in the case of a person who is an

innocent owner in respect of it and the just terms

element of the argument, in that sense, really

comes, in a sense, from the second basis that I

adverted to before, which has been suggested in the

cases as possibly being the basis for why laws

involving forfeiture are valid. Your Honours, that

is referred to in Sir Owen Dixon's reasons for

a moment. judgment in Burton v Honan, to which I will come in

TOOHEY J:  It just seemed to be that the aspect of moral

judgment really came through in the first way in

which you put it, because you say, in the case of
the person whose participation is entirely
innocent, it is not just that that person's

property should be acquired.

MR JACKSON:  I really would say that the Constitution says

it is not just that that person's property be

acquired without just terms.

TOOHEY J: And the justice of the terms, as you put it,

depends at least in part upon the participation or

non-participation of the person whose property is

to be forfeited.

MR JACKSON: Well, Your Honour, there would be a judgment to

be made, if I can put it this way, at the edge on

whether Parliament had or had not gone too far in

prohibiting a person who was not involved or had

some notional involvement from obtaining anything

in respect of a forfeiture, but if one has a

situation where in no circumstances can a person

who has no involvement at all with the matter

obtain compensation in respect of the forfeiture,

then one has a case that cannot be justified by the

view that provisions for punishment, where the

sanction for the punishment becomes part of the Commonwealth's property, in those circumstances that exception, as it were, cannot apply.

Your Honours, what I was going to seek to do was this, that the summary of the cases in which

there has been, so far, the view expressed that

particular classes of case do not fall within

section Sl(xxxi), can be seen in really two places:

one is the summary by Justice Gibbs in Trade

Practices Commission v Tooth & Co, (1979)

Lawler(2) 14 6/10/93

142 CLR 397. It is a passage which commences at

about point 7 on page 407, and it is a passage

which goes over to about point 6 on page 408, and

Your Honours will see there listed a number of

categories, and His Honour says, in particular, at

about point 4:

I am not sure that a completely satisfactory

explanation has yet been given of the

principles by which it is to be determined

which laws do, and which laws do not, fall
within section 51(xxxi).

And His Honour proceeded to doubt the suggestion in Attorney-General v Schmidt, which is there set out,

as I think did Your Honour the Chief Justice in the

same case, in a passage to which I will come a

little later.

Your Honours, the second place where the cases

which seem to fall outside section 51(xxxi) are

referred to is in Reg v Smithers Ex parte McMillan, (1982) 152 CLR 477 at page 487, about point 6, and

going through to 489, about point 3. Your Honours

will see particularly on page 487, about point 9:

Just as the imposition of a penalty or fine by way of punishment for a criminal offence involves no acquisition of property, so also with the imposition of a civil liability for pecuniary penalties -

As I said a moment ago, we accept that in some

cases the Commonwealth may provide for forfeiture
without compensation of any item of property

involved in the commission of an offence. Perhaps

it may do so in the vast majority of cases.

Your Honours, one can understand readily enough

that it may be appropriate to cast the burden of

proof of non-involvement upon the person claiming

to have an interest in the property and to be
innocent.	One can understand, again readily

enough, that it may be appropriate for the

legislature to require that the standard of proof

necessary to satisfy the burden be a standard

higher than the civil standard.

Again, one can understand that the legislature

is not restricted to the traditional criteria for

judging participation in conduct proscribed by

statute. The legislature might choose to require,

for example, that there has been no conduct on the

part of the owner which was relevantly negligent,

for example, in any way leading to or assisting in

commission of the offence, notwithstanding that

that conduct itself might not have been criminal.

Your Honours, again one can understand that the

Lawler(2) 15 6/10/93

legislature could impose a relatively short period

of limitation for an innocent owner to start
proceedings but if, at the end of the day, the

effect of the law is that the conduct of a person

who is entirely innocent - that person's property

is confiscated by the Commonwealth - we would

submit that is an acquisition of property by the

Commonwealth for the purpose for which the

Commonwealth enacted the law. The reason why it is

not an acquisition of property is one to which the

cases which have dealt with the issue do not, in

our submission, provide, with respect, a very

satisfactory answer.

Could I go for a moment to the passages in the cases which deal with the explanations which have

been provided. The starting point, and really the

leading case, is Burton v Honan, (1952) 86 CLR 129.

That case was one, if I could say initially, which was not based on a claim to ownership in any

traditional sense but rather on a claim to a

possessory title said to arise after a forfeiture

had taken place, and it was in respect of that

possessory title that section 5l(xxxi) was said to

be applicable.

Your Honours, the facts may be seen at

page 175, about point 2, in a passage that goes
through to the next page, but they are also seen at

page 176, about point 8, through to page 177,

point 2. Your Honours, the section 5l(xxxi) issue

may be seen at page 180, at about point 1, and may

I take Your Honours to take? What had happened in

the case was that the forfeiture had occurred

before the transactions which were in question, but the fact that their goods had been forfeited to the

Crown was relied on as between subsequent buyer and

seller.

Now, at page 180, about point 1, Your Honours

will see the first paragraph on the page, and the

relevant passage is about two-thirds of the way

through it, in the sentence commencing:

But, in the course of the arguments in which

it has been referred to, it has always been

treated as obvious that if the purpose of the

forfeiture is to bring a penalty upon the
offender it could not come withins. 5l(xxxi),

it not being an acquisition of property for

any purpose in respect of which the Parliament
has power to make laws within that provision.

And then, Your Honours, one sees in the next sentence the genesis of the other argument about

lack of injustice. The way in which the particular

case arose appears in the paragraph commencing on

Lawler(2) 16 6/10/93

the same page, but in the present case, and Your

Honours will see that in that paragraph the claim

that was made was a claim in respect of a

subsequent possessory title. Your Honour will see

down at the bottom of the page the short answer

being given, that being:

that the whole matter lies outside the power

given bys. Sl(xxxi).

That goes through to the end of the paragraph on

page 181, and there is a comparison made with

taxation. Now, Your Honours will see that the

forfeiture was to bring a penalty upon the offender, then section Sl(xxxi) did not apply.

first aspect of the view which was taken by

Your Honours will see that at point 4, on page 180.
Your Honours, that, in our submission, is not

really a very surprising view to adopt.

The second aspect, which appears at the bottom

of page 180 and at the top of page 181, seems, in a

sense, no more than a further aspect of the first,

and that is that no one may acquire rights in the

forfeited goods adverse to the Crown.

BRENNAN J: It is really a significant departure from the

first part, is it not? The first part says it is

part of a penalty for conduct. At the bottom

of 180 to 181, it says:

It is not an acquisition of property for any

purpose -

it is a forfeiture, "on all persons", and in

vindication of the customs laws.

MR JACKSON:  Your Honour, what I was seeking to say when I

was saying that, was this, that Your Honour will

see at about point 4 on page 180 that His Honour

says in the passage commencing: 

But, in the course of the arguments -

and he refers to the view that it is not an

acquisition of property because it is to bring

about "a penalty upon the offender". Then he goes

on to say at the bottom of the page the same thing,

in effect. He returns to that. He says:

It is not an acquisition of property for any

purpose in respect of which Parliament has

power to make laws.

And, Your Honour, it is in respect of that he says

it is:

Lawler(2) 17 6/10/93

a forfeiture imposed as part of the incidental

power.

Your Honours, it is not, with respect, in contest,

that there can be a forfeiture imposed as part of

the incidental power for the purpose of vindicating

customs or other laws. The point, in our

submission is this: it may be so imposed, but if

it is to be imposed on persons who have not been in

any way in breach of the customs laws, or the

fisheries laws, or whatever the law might be, then

in respect of those persons, what it does not do,

with respect, is to vindicate the laws. What it

does do is simply to impose a forfeiture which may

take the property to the Commonwealth but, in

respect of those persons, section Sl(xxxi) applies.

DAWSON J:  What is being said there, it seems to me is, the

purpose you look to is the purpose for which the
property is being taken. In other words, the

purpose for which it is going to be used when it is

taken, and it is not taken for any purpose in that

sense. I mean, it is not going to be used in

interstate trade or for some other purpose with

respect to which the Commonwealth has power to make

laws.

MR JACKSON:  It is true to say that it is not being taken to

be used by the Commonwealth otherwise, no doubt,

than to be disposed of. But, having said that,

that is not quite the terminology, with respect,

used in section Sl(xxxi), because section Sl(xxxi)

says, "Acquisition of property" - I do not have the
exact words in front of me - "for the purposes of

the Commonwealth".

DAWSON J:	No, what is said is that this property is not being acquired for any purpose. The motive behind
the acquisition may be to punish, but the property itself is not being acquired for any purpose and
therefore it lies outside section Sl(xxxi)
MR JACKSON:	What I am seeking to say about that is, with

respect, that view is one that the Court should not

adopt to the extent to which it is applicable to

the interests of persons who are innocent third

parties, to put it shortly, and to the extent to

which it is necessary not to follow Burton v Honan,

the Court should not do so. I have too many

negatives there, but I am sure Your Honours will

understand what I mean.

What we would submit in that regard, is that

the view taken there really does not give to the

constitutional guarantee in section Sl(xxxi) the

effect which it should have. Your Honours, in that

regard, that is why we would seek to submit that

Lawler(2) 18 6/10/93

whilst it may be necessary, for example, to have
stringent laws and so on in respect of these items,

or these subject-matters, if what is done is to

select the method of forfeiture, then the

forfeiture is done for a purpose, which is a

purpose of the Commonwealth in terms of Sl(xxxi).

I do not know that I can take that beyond that.

But that is our submission, it really goes beyond

the acquisition of property to be used by the

Commonwealth.

Your Honours, the provision, of course, goes beyond that because there are decisions of the

Court in which it said that Sl(xxxi) applies to
cases where the property is not to be used by the

Commonwealth itself, or acquired by the

Commonwealth itself. It may be used by persons who

are not the Commonwealth at all. This is the case
which brings it directly within Sl(xxxi) to the

extent it may not otherwise be applicable because

106(3) says it becomes the property of the

Commonwealth.

DAWSON J:	What would say if the provision was that the property be forfeited and destroyed?
MR JACKSON:	The forfeiture aspect of it would, in our submission, yet apply. The property - indeed, the
destruction of it would perhaps be the greatest or the most dramatic way in which the property rights acquired by the Commonwealth, by reason of the
forfeiture, could be exercised. The conduct of the
Commonwealth, or the statutory authorization of the
Commonwealth to destroy it, Your Honour, would have
the effect, in our submission, that in relation to it the Commonwealth was acquiring and for its
purpose destroy it and, in my opinion, would fall
within the provision.

DAWSON J: But the destruction is not a purpose for which

the Commonwealth sets out to make laws.

MR JACKSON:  The destruction as such, but the destruction

would simply be part of the purpose of the law, for

example, with respect to fisheries. It would have

the effect, of course, that such vessels or

equipment as were destroyed could not participate

any longer in such a trade.

DAWSON J:  But that is right. You find the power to order

destruction in the fisheries power; you do not find

it in section Sl(xxxi).

MR JACKSON: Quite, Your Honour, yes.

DAWSON J:  Then Sl(xxxi) has nothing to say about it. That

is the point that is being made.

Lawler(2) 19 6/10/93

MR JACKSON:  I am sorry, the point I am seeking to make,

with respect, is this, that it is true that one has

to go outside section 51(xxxi) to find the purpose

of the Commonwealth, but one always does.

DAWSON J:  I know. One goes outside 51(xxxi) to the

fisheries power to find the power to impose this

penalty. Having done that, you are right outside
5l(xxxi) because section 51 otherwise, for its

purposes, extracts from all the other powers of 51

that with which it deals.

MR JACKSON:  But having done that, one then looks to see

what is done by the other power. The other power

is one which empowers, whether it be 5l(x), or

51(x) plus 51(xxxix) together, or by 51(x) alone,

the result is that the law which imposes the

forfeiture is a law with respect to the relevant

fisheries. Your Honour, having said that, one of

the parts of the law is one that effects, and

effects in order to achieve the purpose of the

Commonwealth in enacting the law, it effects an acquisition of property. It is in respect of that that section Sl(xxxi) says there have to be just

terms.

DAWSON J: There you said "acquisition of property"; of

course it is an acquisition of property, but the

point is, is it for a purpose which the

Commonwealth has the power to make laws? If it is

merely incidental ..... a punishment.

MR JACKSON: Well, Your Honour, if one says it is incidental

to a matter of punishment, one - - -

DAWSON J: Incidental to the regulation of fisheries.

MR JACKSON: Yes, Your Honour. Section Sl(xxxix) is not, in

our submission with respect, immune from the
operation of section Sl(xxxi). If one takes the

long-running discussion on whether 5l(xxxix) adds

anything relevantly to the heads of legislative

power, the issue still arises and, Your Honour, the
point I am seeking to make about it is this, that

if one looks at 51(xxxix), one of the legislative

choices open is that vessels which are found

engaging in the fisheries trade, as it were, in

contravention of the Act, are vessels which may be

forfeited to the Crown. Well, Your Honour, that is

something done by the Commonwealth, amongst other

things, to achieve a situation where it has an

element of punishment, it has an element of

removing those vessels from the possibility of

doing the same again, but Your Honour, it is

something done for the purposes of the

Commonwealth.

Lawler(2) 20 6/10/93

If it is to be justified as not being within

section Sl(xxxi), because it is on the basis of

punishment, one has to seek to identify who is the

person being punished. Now, if the person who is

involved in the matter, and whose right is lost, is

a person who is not being punished because no

occasion for punishment arises in respect of that

person, then that appears to be a case, in our

submission, where, true, the law providing for the

forfeiture is good, provided that it follows the second part of Sl(xxxi) and that is provides for just terms in respect of that person.

What I have been seeking to say, Your Honour,

in relation to the various legislative options open

that I referred to earlier, onus of proof and so

on, are simply to seek to indicate that it is

possible, and perfectly possible, for there to be

an intelligible system which does not absolutely

cut out the person who is the innocent proprietary

right holder.

BRENNAN J:  Mr Jackson, could I interrupt you just a little

further. What would you say about a law which says

with reference, for example, to a consignment of
cattle semen infected with anthrax which the owner,

or person having an interest in it, does not know

is being imported into Australia by somebody else,

and it is forfeited for the purposes of

destruction? A law which authorizes that would

require compensation to the innocent owner?

MR JACKSON: It would require just terms, yes, Your Honour.

The question of what would be just terms for

bringing into Australia something that was - - -

BRENNAN J:  I am not suggesting in the case of the person

who brings it in. Take, for example, an innocent

financier.

MR JACKSON:

Your Honour, the first thing I would say is

that the value on the market would be small except

for those engaged in germ warfare.

BRENNAN J: Perhaps anthrax might not be a good example, but

something which is a prohibited import because of

its unsuitability for Australian conditions though

it may be readily saleable elsewhere.

MR JACKSON:  It would in the end come down to a question of

whether there were terms provided and whether the

terms were just.

BRENNAN J: But they would have to be provided?

MR JACKSON:  Yes.

Lawler(2) 21 6/10/93

BRENNAN J:  Even if the thing itself was a source of danger

to health?

MR JACKSON:  Yes, Your Honour. That might well affect the

quantification very significantly because the term

is in the end "just terms", and it does involve

some question of what the justice of the

compensation should be. What one sees more and

more today in Commonwealth legislation is a fairly

common drafting device that says something to the

effect that, "The operation of this Act would
effect an acquisition of property in terms of

section Sl(xxxi). Reasonable compensation is to be

paid by the Commonwealth."

BRENNAN J: But your argument really comes to this, does it

not, that there is nothing wrong with the

forfeiture provision provided it has attached to it

a proviso which says, "But in the case of the loss

of a property right by any innocent person, that

person is entitled to compensation on just terms"?

MR JACKSON:  Yes, Your Honour. Your Honour will see that

expressed in the penultimate paragraph in our

outline of submissions, I think.	I mentioned the
drafting form that is commonly adopted.	May I give

Your Honours an example of it, to be seen from

section 23 of the Petroleum Retail Marketing

Franchise Act? Your Honours will see it is a

fairly simple form commonly enough adopted.

I should say also, and I will come to it just

a little later, that the proposition we are

advancing is one that seems to have been treated as

a not inappropriate, if I could use a term of some

neutrality, qualification in the United States to

the ambit of the power to make laws otherwise

effecting forfeiture of the goods of third parties.

I will come to that in just a moment.

Your Honours, in some of the cases, both

constitutional and non-constitutional since

Burton v Honan, some reasons have been given for

the need for stringent laws for customs and the
like, including laws forfeiting the interests of

persons not involved in the commission of the

offence. May I take Your Honours to those

observations in just a moment, but before doing so

could I perhaps mention the decision in the

United States to which I was about to refer.

Your Honours, in that jurisdiction a very

broad view has been taken of the power to legislate

for forfeiture, notwithstanding the Fifth and

Fourteenth Amendments, but the Supreme Court has

drawn back from an absolute shutting out of the

third party. Your Honours, could I refer to that

Lawler(2) 22 6/10/93

court's decision in Calero-Toledo v Pearson Yacht

Leasing Co, (1974) 416 US 663 and, in particular at

page 686 about point 9, in a passage which goes

through to page 691 about point 1. Now,

Your Honours, I propose to return to the case a

little later, but after dealing with the history of

forfeiture provisions both in England and in the

United States.

The opinion of the Court per Justice Brennan, goes on to say at page 686 about point 9 - and,

Your Honours, this is a case where a boat was

leased and the persons to whom it was leased then

used it to carry drugs - and Your Honours will see

at the bottom of that page:

Plainly, the Puerto Rican forfeiture

statutes further the punitive and deterrent purposes that have been found sufficient to

uphold, against constitutional challenge, the

application of other forfeiture statutes to

the property of innocents.

And, Your Honours will see, as that paragraph

continues that:

Forfeiture of conveyances that have been

used - and may be used again - in violation of

the narcotic laws -

et cetera, and then at page 687, the last line of

the main text on that page, to the extent that:

such forfeiture provisions are applied to

lessors, bailors, or secured creditors who are

innocent of any wrongdoing, confiscation may

have the desirable effect of inducing them to

exercise greater care in transferring

possession of their property.

Then Your Honours will see that they speak of the

fact that the US District Court had really not

followed the Supreme Court's earlier decisions on

forfeiture. But, they go on to say, Your Honours,

at the bottom of page 688:

This is not to say, however, that the

"broad sweep" of forfeiture statutes remarked

in Coin & Currency could not, in other

circumstances, give rise to serious

constitutional questions.

And Your Honours will see the reference to

Chief Justice Marshall:

that "a forfeiture can only be applied to

those cases in which the means that are

Lawler(2) 23 6/10/93

prescribed for the prevention of a forfeiture

may be employed." ..... It therefore has been

implied that it would be difficult to reject

the constitutional claim of an owner whose
property subjected to forfeiture had been

taken from him without his privity or consent.

Your Honours, could I just pause to say there

that the cases there cited are ones in which the need to resolve that question is adverted to but

said it is not in this case, in effect.

Their Honours then go on to say:

Similarly, the same might be said of an owner

who proved not only that he was uninvolved in

and unaware of the wrongful activity, but also

that he had done all that reasonably could be

expected to prevent the proscribed use of his

property -

could I pause there to say that takes one back in a

sense to what is at the top of the preceding page,

"the use of reasonable care" -

for, in that circumstance, it would be

difficult to conclude that forfeiture served

legitimate purposes and was not unduly

oppressive.

Your Honours, to the same effect is the judgment in

dissent in part of Justice Douglas.

May I then proceed to move to the Australian

cases in which the question has been adverted to in
passing, or the need for there to be fairly

stringent provisions have been adverted to in

passing. The first of those is Forbes v Traders

Finance Corporation Ltd, (1971) 126 CLR 429. That

is a case where there was no constitutional issue

raised, but the issue was whether a requirement for

mens rea in effect should be imported into

section 229J of the Customs Act. That provision

Your Honours will see at page 432, about two-thirds

of the way down the page. It was a provision

providing for forfeiture of:

Any carriage or animal used in smuggling or in

the unlawful importation -

et cetera. It was held that there should not be

any such requirement of knowledge imported, and in

the course of the reasons for judgment there are

some references to the history of a need for

relatively drastic provisions in aid of revenue

laws. Your Honours will see that per

Justice Menzies at the bottom of page 432 and the

top of page 433, and again at page 437 in the

Lawler(2) 24 6/10/93

passage half-way down the page, in the paragraph

commencing, "Here we are concerned with a drastic

provision", he refers to the fact that:

provisions imposing forfeiture must be

construed strictly.

And goes on to say that:

breaches of the Act, which is notoriously

difficult to enforce against persons who may

stand behind those who actually break it.

Your Honours, as to that observation, what we would

submit is that section 5l(xxxi) does not at all

prevent instant forfeiture, for example; it simply
requires that there be just terms. There is

nothing to prevent the facilitation of the

enforcement of the laws by provisions of the kind

to which I referred earlier: onus and standard of

proof, and so on and, indeed, perhaps by summary

procedures. Your Honours, the difficulty of
enforcing does not carry with it the consequence

that those persons must be shut out altogether.

Your Honours, I was going to move on to

another passage in the case, but I see the time.

MASON CJ:  We will adjourn now and resume at 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

MASON CJ: Yes, Mr Jackson.
MR JACKSON:	Your Honours, may I say four things before

moving on to the matter with which I was dealing

with before lunch. The first two simply concern

some references dealing with matters to which I

referred earlier. The first concerns an

observation I made in response, in a sense, to

Your Honour Justice Deane in the earlier case.	I
referred to some dicta to the effect that

section 51(xxxi) could not be avoided by indirect

means. Your Honours will see references to those

dicta in the Bank's case, 76 CLR 349, and also in

the BMA case, 79 CLR 270, and Your Honour

Justice Deane in the Tasmanian Dam case, 158 CLR

270.

Lawler(2) 25 6/10/93

That is the first thing. The second thing is

in relation to the fact that the acquisition of

property need not be by the Commonwealth itself,

but extends to the acquisition of property for any

Commonwealth purpose, Your Honours will see the

cases in that regard referred to by Justice Aickin

in Trade Practices Commission v Tooth & Co Ltd,

142 CLR at pages 451 and 452.

The third matter concerns what was put to me

by Your Honour Justice Dawson relating to the

relationship between, for example, section 5l(x)

and section 5l(xxxi) and, Your Honours, I suspect I

did not express myself very clearly this morning.

What we would say is that there may be a law made

under, for example, section 5l(x) which provides

for forfeiture to the extent that the provisions of
the law would provide for the forfeiture of the
property of persons who have offended or in some
way, played a part in, or leading to the commission
of the offence, and laws of that kind are laws that

are within the power as incidental to it, as being

in some way in respect of the punishment for the

involvement in the offence.

But, Your Honours, when the law goes on to

take the interests in property of persons who have

nothing to do with the offence, they are then, we

would submit, laws which are outside section 5l(x),

they depend, really, as does any other acquisition,

upon section 5l(xxxi), as much as if, for example,

the Commonwealth, for the purpose of reducing the

number of vessels engaged in trade and commerce

with other countries, were to acquire compulsorily

such Australian vessels, and then, for example, to

destroy them or as much as if it were to take sheep

that were to be, in the international trade, for

example, sent, as live sheep consignments to the

Middle East and decided they did not want to be

engaged in that trade, acquire the sheep

compulsorily, and then destroy them.

DAWSON J: Well, that highlights the problem, does it not?

You say that the law providing for forfeiture from innocent owners is not a law made pursuant to paragraph 10, not a law in respect to management of

fisheries, it is a law made pursuant to 5l(xxxi)?

MR JACKSON:  Yes, Your Honour. I suppose really one could

say the same about many acquisitions, all

acquisitions, really.

DAWSON J: All acquisitions for a purpose of which the

Commonwealth can make laws?

MR JACKSON:  Yes, and Your Honour, if the Commonwealth says

by legislation, that what it is doing is to say

Lawler(2) 26 6/10/93

that vessels that have been engaged in activities

which are in breach of the fisheries law are

vessels that are to be forfeited to the

Commonwealth and to become the property of the

Commonwealth, then what the Commonwealth does

achieve by that legislation is a situation where,

on the one hand, those persons who have used the

vessels in contravention of the law are persons in

respect of whom that forms part of, in a sense, the

punishment, that is the part that comes, in a
sense, under Sl(x) but the Commonwealth also, as

part of its view of what should take place in

relation to customs, say, or fisheries says that

those vessels should not further participate in

that activity. Your Honour, to the extent to which
that occurs, it falls within Sl(xxxi) to the extent

to which it takes the interests of persons not

involved in the contravention.

Your Honours, the next matter with which I

seek to deal is this. Your Honour Justice Brennan

referred to the case of forfeiture by an

importation of, I think, anthrax infected animal

semen, and, Your Honour, perhaps I dealt with that

a little flippantly, in a sense. What I would seek

to say is this, it is not surprising, Your Honour,

that in a case like that, in some cases like that,

just terms may be required and require there be
some compensation to a person whose interest in the

item is brought to an end by the forfeiture.

What I mean by that is this, if one were to

assume, for example, that an .American company was

carrying out research in relation to improving the
condition of beasts of particular kinds, and one of

the things that it might be doing was to test the

animals by reference to particular diseases. Now,

Your Honour, leaving aside any difficult social

questions that can arise in relation to that kind
of testing, it might well be that the anthrax

infected semen, though a particularly noxious

subject-matter itself, has in fact a significant

commercial value. It may have cost a great deal to

develop it in that form.

Australia is perfectly entitled to say, "These

items do not come into the country, and if they

come in they are forfeited." They are destroyed,

for example. But if one of the effects of that is

that, for example, the item had been stolen from

the .American company without any negligence on its

part, and without any participation on its part in
bringing it into Australia, it does not seem a
particularly surprising thing if the price of being

able to enforce the quarantining of Australia in

that way was that there had to be a price paid to

the person whose goods were destroyed in that way.

Lawler(2) 27 6/10/93

Similarly, if one were to say that if an

overseas pharmaceutical company had a supply of

heroin or marihuana or some other drug that it was

using to make or might use to make ordinary

pharmaceuticals, and if that were stolen and

for example, destroyed". It would not be

imported to Australia one can quite understand

surprising if there had to be some payment made to

persons who had a genuine interest in it, who had

played no part in the contravention of the

Australian law.

I will- not multiply examples except to say one

more, and one can make them as ghastly as one likes. But if one were to take, for example,
material that could be used in the manufacture of

nuclear weapons, it may well be that those items on

importation into Australia were items that were

immediately forfeited to the Commonwealth. But it

may well have been that the persons who brought

about their importation were persons who had
acquired them unlawfully from somebody in ano~her

country where they would be perfectly lawful items

in the sense of being used to develop, for example,

part of the defence industry of the country.

Your Honours, it need not be surprising if, in

circumstances of that kind, one has a situation

where the national purpose of not permitting the

items to come into Australia is achieved, but the

laws made in respect of it are laws which invite,

for their validity, section Sl(xxxi).

Your Honours, could I go back then to the

issue with which I was dealing prior to lunch. I was about to refer Your Honours to a further part

of Forbes v Traders Finance Corporation Ltd,

126 CLR. The particular passage I was going to

refer to Your Honours is in an observation of

Justice Windeyer at the bottom of page 439, where

His Honour was in the course of referring to the

question whether guilty knowledge was necessary for

the relevant provision to be breached. His Honour

said about eight lines from the bottom of the page:

Whether the owner of it knew of the use to

which it was put is immaterial. That has been

decided in cases arising under s 229 ..... If

the owner is innocent of complicity in the

unlawful use, his remedy lies in an action for

damages against the user whose wrongful

conduct deprived him of his property.

Your Honours, the ability to sue the offending

person may in some cases be a kind of solace, often

an empty one, one might think, but it really does

not provide, we would submit, an answer to the

Lawler(2) 28 6/10/93

constitutional imperative that is to be found in

section Sl(xxxi). One should start, we would

submit, from Sl(xxxi) and treat it as representing

a national value.

Could I turn then, Your Honours, to the

passage at the top of the next page, 440, in that

case where His Honour refers to the fact that in

Canada the stringency of provisions for forfeiture

was mitigated by statute. Your Honours will see

that there referred to. But what we would submit

in the present case is that in Australia there is

not a need for mitigation of the stringency by

statute because there is a constitutional

mitigation, if I can call it that. At page 441,
about point 8, in a passage that goes for quite

some pages following that, His Honour then

discusses the history of provisions dealing with

smuggling and says in effect that stringent

provisions have always been found necessary, and it

is a proposition with which one would not disagree.

Your Honours, I have referred earlier to some

passages in Cheatley v Reg, (1972) 127 CLR 291.

That case was concerned with the equivalent

provision of the earlier Fisheries Act and at
page 296 point 2 in the first and second new

paragraphs on that page, Your Honours will see the

passage to which I referred earlier in which

Chief Justice Barwick referred to the need

for"drastic action" and to the fact that:

pecuniary penalties are unlikely to provide an

adequate protection.

Your Honours, no doubt, that is to an extent a

matter for legislative judgment but it provides, we would submit, no reason why section Sl(xxxi) ceases

to apply to the legislature. It is no doubt

possible, no doubt in some cases necessary as a

matter of legislative judgment, and no doubt very

often appropriate, for there to be stringent

provisions in the case of the customs and fisheries

law. But, Your Honours, to say that provides no

reason, we would submit, why provisions which

permit forfeiture of an interest, even if there is

no conduct remotely meriting it, should be

necessary or valid.

Your Honours, at page 303 about point 4,

Justice Menzies adverted to, in a sense, the

present question, saying:

It is not in doubt that by a properly framed provision, the Parliament of the Commonwealth could provide for the forfeiture of a

Lawler(2) 29 6/10/93

boat ..... notwithstanding that the offender was

not the owner of the boat.

Your Honours, His Honour does not further discuss

though what he meant by "a properly framed

provision" and, Your Honours, again, it is a broad

proposition with which we would not seek to

dissent.

Justice Walsh, at page 307, at the bottom of

the page, in the last four lines and at the top of

the next page, seems really to simply follow what

had been said in Burton v Honan. Your Honour

the Chief Justice, at page 309, in the third

paragraph in Your Honour's judgment, in a passage
going over to page 311, at the end of the new

paragraph on page 311, dealt with the arguments

advanced in that case. Could I say in relation to

what Your Honour said at the bottom of page 309,

Your Honour contrasted the two approaches there

referred to in dealing with the case of a boat that

was, for example, owned by more than one person.

Your Honour, the position, we would submit, is that

the two owners have to be dealt with separately.

It may, of course, be a relatively rare situation,

in fact, for the activities of a boat owned by two

or more persons to be being engaged in by one of

them without that person having the authority of

the other, but it is a perfectly possible

situation.

But, Your Honours, it is not very surprising,

we would submit, that what there may be in terms of

forfeiture, is forfeiture of the interest of the

person or persons who are, in one way or another,

involved in the relevant contravention.

Your Honour goes on to say at page 310, in the

passage commencing half-way down the page, in the

second sentence:

But it is not an essential element in the

legal concept of forfeiture as a penalty that
its imposition is confined to forfeiture of

goods owned by a convicted offender.

Your Honour goes on to develop that.

Could we just say in relation to that that

generally speaking, with respect, we would not

cavil with what Your Honour says, but what one has

to bear in mind is that to the extent to which

provisions of that kind are provisions which go
beyond the position of the person who commits the

offence, there has to be, we would submit, some

conduct or some activity or lack of activity on the

part of the person committing the offence in order

to prevent that person from saying, "There has

Lawler(2) 30 6/10/93

simply been an acquisition of my interest in the

property, my property, with my getting nothing for

it." Your Honours, what we would submit is that

the policy of an Act is not advanced by imposing an

absolute prohibition upon compensation.

I mentioned this morning the case of the

potentiality for imposition of penalties and

forfeitures, not just upon the persons involved but

upon other persons. If one took the case, for

example, of an offence of defrauding the

Commonwealth or a conspiracy to defraud the

Commonwealth, it might not be too large a jump to

say that al~ members of the family living in the

same house as the person who committed the offence

were persons whose property was forfeited to the
Commonwealth by reason of the commission of the

offence by the person who was, for example, a member of the household. That is the kind of

danger that arises if one says that forfeiture of

property is not something which is capable of being

something which falls within section Sl(xxxi).

Your Honours, could I go then to one othe:t-

observation, and that is to be found in Trade
Practices Commission v Tooth & Co Ltd, 142 CLR 397.

The observation to which I wish to refer was that of Justice Gibbs, about half-way down the page,

where His Honour said:

It appears to me that there are cases in which

s 51 authorizes ..... for example, it would be

absurd to say that the legislature could make

provision for the exaction of a fine, or for

the imposition of a forfeiture of property

used in the commission of a crime, only on

just terms.

Your Honours, it is, with respect, we would submit,

not entirely clear why it is absurd to say that the

forfeiture of property must be on just terms in

some cases. It is perfectly intelligible to say

that forfeiture of a person's own property or

interest in property is an element of punishment by that person, but it is by no means absurd, we would

submit, to say that other persons whose interests

are taken should be compensated for those

interests.

McHUGH J: Is not your difficulty this: that if forfeiture

of the innocent person's property is not incidental
to the power, then it is completely outside the

provision, such as in this case, the fisheries

power. But if it is, why should you draw a

distinction between the case of the innocent owner

of the property and the offender, because in both

Lawler(2) 31 6/10/93

cases the hypothesis is that the forfeiture of the property promotes some purpose of the legislation?

MR JACKSON:  Your Honour, it is a question whether that is

the correct hypothesis, with respect, because the

correct hypothesis, we would submit, is that the

forfeiture of the property to the extent to which

it is the property of the offender or of some
person who participated in the offence, or perhaps

permitted the offence to occur, is something which

can be regarded as being within the ambit of the

power, reasonably proportionate, if one uses that

expression.

The line we would seek to draw, Your Honour,

is to say that when one goes beyond that and says

not only do you say that those who have in some way

permitted, allowed, contributed to or participated

in the offence lose their property, but anyone else

whose property happened to be used also loses their

property simply because it happened to be there,
and no more. That, in our submission, is something

that really goes beyond the ambit of the power

itself, and that is on the assumption that Sl(xxxi)

takes out the acquisition of property. If one says

it is within the - if it is to happen, then the way

in which it happens is because the acquisition of

the additional person's property as well is

regarded as being for the purpose of the law

relating to fisheries.

Having said that, the way in which one gets

there is to say that must be done under Sl(xxxi)

which applies to any acquisition of property, and

if that is to happen it is something that must be

on just terms. Your Honours, I used the expression

"constitutional value" before, I think, but

section Sl(xxxi) does, we would submit, imply

throughout the legislative powers of the

Commonwealth, except in the case of the

inconsistent ones, the view that whatever might
have been the ancient or perhaps sometimes

barbarous laws about forfeiture of property, that

for the future that was not to be the case in

Australia in relation to Commonwealth laws.

DEANE J:  What about a Commonwealth statute which gave

statutory sanction to the admiralty action in rem?

MR JACKSON:  Your Honour, I wish I remember more about

admiralty, but Your Honour says that - - -

DEANE J:  No, which said a ship which causes damage to

another ship is, to the extent of the damage,

forfeited to the owner of the other ship.

Lawler(2) 32 6/10/93

MR JACKSON: Well, Your Honour, to the extent of the damage,

the issue may well not arise, in a sense, because
the terms would be just in that case. If it were

forfeited for - - -

DEANE J:  It is only just if you take the view that the

owner bear some responsibility for what his ship

does, regardless of blame in the sense you are

talking about.

MR JACKSON:  I am sorry, Your Honour, I was assuming that.

Your Honour, that might encounter. some difficulty and the difficulty - - -

DEANE J:  I suppose your answer is I am just moving the

problem into another area where one can look at

common law support.

MR JACKSON:  Your Honour, the feature about it really, we

would submit, is that one can look at, for example,

historical circumstances in which there were

forfeitures, and they are discussed really very

lucidly in Justice Brennan's judgment and the

American case to which I referred earlier. But, as is said in that, time have moved on a little and

the thing that makes time move on a bit is that one

does have a provision like section Sl(xxxi).

Now, what one tends to find the influence of

historical causes of action in particular

circumstances - the influence of those things tends

to be that one is inclined to say, · "Well what about

cases like this", where in the past, without

particular reference to a provision like

section 51, it has been thought that there should

be a forfeiture or that a property should go to A

without fault.

Well, Your Honour, the effect of

section Sl(xxxi), we would submit, means that one

must, in particular circumstances, look again.

Now, it may be that the legislative resolution of

the issue is to do things of the nature that I

referred to before: a standard of proof, onus of

proof and so on. But, Your Honour, having said

that, if one has the effect of a Commonwealth law

being it involves an acquisition of the property of

someone for no reason in terms of any fault or

activity, or lack of activity on the part of that

person, then that, we would submit, is the very
thing in respect of which there should be just
terms, because it is - one can use terms that are

bland or terms that are sharp, but it is a form of

confiscation.

Now, Your Honours, I was about to refer to

what Your Honour the present Chief Justice said in

Lawler(2) 33 6/10/93

Trade Practices Commission v Tooth. At page 426,

about half-way down the page, Your Honour also did

not adopt the proposition of Sir Owen Dixon in one
of the earlier cases about the acquisition of

property being limited to acquisition for the use

and service of the Crown.

Your Honours, at page 457, about point 8, in

Justice Aickin's reasons for judgment, a passage

Your Honours heard earlier in the day, what

His Honour said was:

However the nature of the common law right was

to effect a forfeiture, such as would not

ordinarily be described as an acquisition of

property.

Your Honour, that is true, of course, if one is

speaking of the position of an offender, but it is

not, we would submit, true, if one is speaking of

some other person.

Your Honours, I went a little earlier to the decision of the Supreme Court of the United States

in Calero-Toledo v Pearson Yacht Leasing Co,

416 US 663. The United States Constitution

contains two provisions which are relevant.	They
which say, "nor shall private property be taken for public use without just compensation", and the	are the concluding words of the Fifth Amendment of the States, and says in paragraph 1, amongst
other things, "nor shall any State deprive any
person of life, liberty or property without due process of law".

The issue which arose in that case is stated

by Justice Brennan at the top of page 665, the

leasing company leased a pleasure yacht, marihuana

was discovered on board it later, there was a

violation, to use the American word, of one of the

Statutes, and Your Honours will see at the top of

page 666 that the vessel was liable to seizure and

forfeiture. At the top of page 667, it "was seized

without prior notice" and "without a prior

adversary hearing".

Your Honours will see at page 668 about

point 2, it was conceded that the appellant:

"was "in no way ..... involved in the criminal

enterprise carried on by (the) lessee" and

"had no knowledge that its property was being

used in connection with or in violation of

( Puerto Rican Law) "

Lawler(2) 34 6/10/93

One of the issues that arose is that which

Your Honours will see in the paragraph 2 on

page 668 at about point 7 on the page, that it was

said that the provision:

unconstitutionally deprived appellee of its

property without just compensation.

In note 5, Your Honours will see the reference to both the Fifth and Fourteenth Amendments, and the

court said it was not necessary to decide which

applied. Their Honours at page 669 in the fifth

line refer to the fact that the United States

District Court had viewed the case that they

referred to United States v United States Coin &

Currency "as having effectively overruled" what

they describe as:

our prior decisions that the property owner's

innocence has no constitutional significance

for purposes of forfeiture -

If one moves, Your Honours, from there to page 680,

in the intervening space the court dealt with
issues relating to jurisdiction, and then at

page 680 under the heading, "III", proceeds to

discuss the history, in effect, of forfeiture. Can

I indicate to Your Honours the passages that seem

to be the principal ones that are involved in a

somewhat lengthy discussion.

They are, it is the second paragraph under the

heading "III" on page 681, which goes through to

the end of the main text on page 681 where

Your Honours will see that charity moved to

practicality, and what had been the deodand, or the

application of the deodand, then became a penalty

for carelessness.

Your Honours, could I just pause at that point

to say this. I have submitted at a relatively

early point in our submissions that we could not

contest the proposition that the Commonwealth might

legislate in such a way that made involvement

meriting forfeiture something different from, and

perhaps more extensive than, what are the

traditional forms of involvement in criminal

offences. By that I mean the usual list of aiders

and abettors and so on. Carelessness or negligence

in the looking after or the keeping of objects or

property may fall within that category.

Now, Your Honours, at the top of page 682

there is a reference to:

Forfeiture also resulted at common law from conviction for felonies and treason.

Lawler(2) 35 6/10/93

In the next paragraph there is a discussion of: statutory forfeitures of offending objects

used in violation of the customs and revenue

laws -

then, Your Honours, at the bottom of page 683, the

reference to the fact that:

the innocence of the owner of property subject
to forfeiture has almost uniformly been

rejected as a defense.

That is discussed through the pages going to

page 686, arid at the bottom of page 686 one comes

to the passage to which, I think, I commenced to

take Your Honours earlier:

Plainly, the Puerto Rican forfeiture statutes further the punitive and deterrent

purposes that have been found sufficient to

uphold -

et cetera, and Your Honours will see the bases -

referred to at the top of the next page, and then
Your Honours will see at the top of page 688 the
reference to the, perhaps, effect on having a

"greater care".

But then, Your Honours, one comes to, having

said all that and taken or affirmed a strong view
against the notion that the innocent person, by
virtue of innocence simpliciter, may escape, in

effect. Their Honours then go on to say:

This is not to say, however, that the

"broad sweep" of forfeiture statutes ..... could
not, in other circumstances, give rise to

serious constitutional questions.

Then, Your Honours, is the passage to which I

referred this morning and, in particular about

point 3 on page 689:

It therefore has been implied that it would be

difficult to reject the constitutional claim

of an owner whose property subjected to

forfeiture had been taken from him without his

privity of consent ..... Similarly, the same

might be said of an owner who proved not only
that he was uninvolved in and unaware of the

wrongly activity, but also that he had done

all that reasonably could be expected to

prevent the proscribed use of his property;

for, in that circumstance it would be

difficult to conclude that forfeiture served

Lawler(2) 36 6/10/93

legitimate purposes and was not unduly

oppressive.

Your Honours, words that are different from, but

not entirely dissimilar from, in meaning, the

concept of reasonable proportionality.

Now, Your Honours, if one goes to the other

judgments, Your Honours will see that

Justice Stewart agreed with Justice Douglas and,

Your Honours, the relevant parts of

Justice Douglas' reasons for judgments appear to be

page 692, last paragraph, and the last paragraph on
page 693, and then, Your Honours, in the last two
paragraphs on page 694 on the concluding paragraph

of His Honour's reasons for judgment on page 695.

Now, Your Honours, if I could go then back for

a moment to our outline of submissions, and in

particular to paragraph 19 at page 7, Your Honours

will see that that summarizes, in effect, I think

the principal point I have been seeking to make

but, Your Honours, if one comes then to the second

reason which was advanced - and which was advanced

really in passing, in the sense - in Burton v Honan

by Sir Owen Dixon, namely that the acquisition may

be, in effect, on just terms, Your Honours, it is

very difficult, we would submit, to regard that as

having any possible application to the acquisition
of the property of a person who has had no

involvement in the commission of the offence. But,

in any event, the issue is one which does not

really arise in this case because the Act makes no

provision for any terms.	Your Honours, those are
our submissions.

I am sorry, Your Honours, I should have said

one further thing, and it is this: there is

nothing very surprising in finding in that a

provision of the nature such as section Sl(xxxi)

should be regarded as a constitutional guarantee.

The concluding passages to which I referred in the

judgment of the majority in Calero-Toledo provide,

we would submit, good reasons why, in a case such

as the present, there needs to be some let out, and

Your Honours, of course one sees in article 17.2 of
the Universal Declaration of Human Rights, a
provision that, expressing the value again, a
person is not to be arbitrally deprived of their
property, and Your Honours, that provision is as

follows:

No one shall be arbitrally deprived of his

property -

And if the person's property is taken away from

them simply because, through no fault of theirs,

Lawler(2) 37 6/10/93

the property is forfeited to a government,

Your Honours, that in our respectful submission, is

a deprivation which is relevantly arbitrary, but

Your Honours, relying on section 5l(xxxi), of

course.

MASON CJ: Thank you, Mr Jackson. Mr Shaw.

MR SHAW:  If the Court pleases. The agreement pursuant to

which Canty was fishing in the period between

8 September and 5 December 1992 is in the appeal

book at page 29.	If I could take the Court to
that, there is a schedule at the front.	It will be

seen that Lawler and Penrose are called the lessor

and are one of the parties, Bario Enterprises is

called the lessee and another of the parties, and

the two Cantys are called the guarantors. The

background recites that Lawler and Penrose own the "Jay Angela" and have agreed to lease and sell her

to Bario.

Going to the next page at about line 10, it

will be seen that the master - I will come to the

clause that provides this - is Kevin Canty,

Trevor Wayne Canty. In clause 1 there is the grant

of a lease, in clause 3 there is a provision for

payment of purchase instalments, in clause 4 on

page 31 there is a provision for payment of the

outstanding balance of the purchase price on the

settlement date. At page 33 in clause 9 there is a

provision that the vessel is to be used for lawful

fishing purposes within, in effect, New Zealand

waters and a provision that the vessel is not to be

engaged in anything other than lawful commercial

fishing operations. In clause 10 there is

provision that all fishing rights acquired by the

lessee vest in the lessor.

On page 34 in clause 12.2 at line 36, there is

provision that the lessor may inspect the vessel's

log books, fishing records and returns whenever

requested and that:

The Lessee shall from time to time keep the

Lessor advised of the intended employment of the Vessel.

At page 36, in clause 13.11 there is a provision

that:

The Master of the Vessel shall be the person

named in Part I.

That is to say, Kevin Canty, or Trevor Wayne Canty.

In clause 26, at page 41, there is the guarantee

provision. The guarantee is a guarantee by

Kevin Canty who is the person who was convicted,

Lawler(2) 38 6/10/93

and by Trevor Wayne Canty. At page 42, in

paragraph 29, there is a series of provisions

relating to:

Remedies on Failure to Make Payments Due under

Agreement.

The relevant one seems to be on page 43. That

provides that:

If the Lessee fails duly and punctually to pay

any rental due under this Agreement on or

within one month of the date upon which it

fell due for payment, then the Lessor may

immediately give notice to the Lessee calling

up the unpaid balance of the purchase price.

In paragraph 29.4:

If the Lessee does not comply with the terms of the settlement notice served by the Lessor then -

the lessor can do various things, including in (a),

"cancel the Agreement".

BRENNAN J:  To which ground of the notice of motion is this

material?

MR SHAW:  It is material to the suggestion that my learned

friend makes, that the case raises the question of

somebody who can properly be called innocent third

parties. That is what it is relevant to. My

learned friend referred to the Pearson Yacht case

as suggesting, by way of analogy, the kind of

approach which might be taken in this case, and

what we are concerned to show the Court is that,

had this case been heard by that court, in fact,

the result would have been precisely the same,

namely, that there was no defence available to the
forfeiture.	My learned friend said that in that

case what had occurred was that the vessel had been
engaged in drug running. That somewhat overstates

the position and, indeed, it was what outraged

Justice Douglas because what had happened in that

case was that the vessel had been boarded and there

had been found upon it one marihuana cigarette only

which might have been used for recreational

purposes.

Your Honour Justice Deane looks surprised, but

that is what His Honour says. If I might just show

Your Honour that that is indeed so. It is in

Justice Douglas' judgment in the Pearson Yacht

Leasing Co case, 416 US, and what His Honour says is at page 693 in the first complete paragraph:

Lawler(2) 39 6/10/93

The present case is one of extreme

hardship. The District Court found that the

owner "did not know that its property was

being used for an illegal purpose and was

completely innocent of the lessee's criminal

act.

Then he goes on to say that no notification was

given, and in the next paragraph:

If the yacht had been notoriously used in

smuggling drugs, those who claim forfeiture

might have equity on their side. But no such showing was made; and so far as we know only one marihuana cigarette was found on the

yacht. We deal here with trivia where harsh

judge-made law should be tempered with

justice.

So that was a case, it is submitted, where the

facts were much more favourable to the owner than,

in fact, they are here.

BRENNAN J: Your proposition is that the question which

Mr Jackson was addressing does not really arise in

this case?

MR SHAW:  Yes, it is, and my learned friend presented an

anodyne view of the facts which an examination of

the application book simply does not support, it is

submitted. In our submission, the facts which are

stated in paragraphs 1 and 7 of our outline are

undeniable. The vessel was at the time the

offences were committed, when the vessel was

apprehended, when the vessel was seized and until

one day before the hearing, assuming that the

notice of termination was effected, beneficially

owned by Bario Enterprises, the Cantys' company.

The notice which was alleged to terminate the lease

apparently under those clauses that I referred to
appears in the application book at page 22.	It

plainly seems to be ineffective, but effective or

not, it was plainly served in an attempt, we would

say, vainly, to improve the situation of the

applicants between the time when the various

offences were committed and the seizure took place

and the hearing. What is being said is something

has happened in between when the offences were

committed and the time when the magistrate made the

order, which was on 11 March, the hearing having

taken place on 18 February, one day after this

notice, assuming it to have been served on the

17th, which has made all the difference. In our submission that is a very surprising suggestion.

McHUGH J:  Is not one difficulty that you have in your way,

that the magistrate forfeited the vessel on the

Lawler(2) 40 6/10/93

ground that the owners were not guilty of any

fault?

MR SHAW:  No, it is not, Your Honour. It is perfectly clear

that the magistrate held that the applicants were

innocent of wrongdoing, and if I could take

Your Honour to page 99 of the appeal book at

line 7, the magistrate said:

I am of the view that the economic

consequences to an owner of a vessel who may

be innocent of wrong-doing -

and of cours·e, it cannot be suggested here that the
owner himself was guilty of the offence of using

the boat in the Australian fishing zone -

is not determinative of the question of

forfeiture.

And then he goes on to say that:

It is in my opinion one of those circumstances which the Court may take into account -

that is at about line 16, and at the bottom of the

page, refers to the lessors as being "innocent

third parties", but, in our submission, what that

means is, innocent of wrongdoing.

McHUGH J:  I know how it is, but this is an application for

a rid of prohibition, and if the magistrate

misconceived his jurisdiction and thought that he

could forfeit a boat, even though just terms were
not provided as, on the hypothesis,

constitutionally they should be, why cannot we look

at that issue in this particular case?

MR SHAW: Well, simply because it does not - we wish to

submit that the situation of, if one likes the

extreme example, the owner whose vessel or goods

have been stolen and then employed in some illegal

enterprise, that this is very far from that.

McHUGH J: But the magistrate seems to have acted on the

basis that he had jurisdiction to forfeit the
vessel whether or not the owners were negligent or

irrespective of their participation or what they

ought to have done.

MR SHAW:  Yes, in our submission, he did have that,

Your Honour, that jurisdiction.

McHUGH J: But, supposing, constitutionally, he has not got

that jurisdiction?

Lawler(2)	41	6/10/93
MR SHAW:	Your Honour,	then the question might arise whether

the provision	can be read down and whether the
circumstances	are such as to really give rise to
the question.	In our submission, they simply do
not.

McHUGH J: Yes, but the magistrate did not consider the case

on whether he should forfeit it because they failed

to take steps to inspect the catch, or the catches.

He did not do it on that basis.

MR SHAW:  He did it on the sort of basis that is referred to

by Chief Justice Barwick and Your Honour the

Chief Justice in Cheatley, yes, he did, and we say

that he was perfectly entitled to do that. But, in

our submission, it would be wrong to consider this

case on the basis of facts which simply do not

exist.

BRENNAN J:  The magistrate accepted that the lessors had

sought to terminate the lease.

MR SHAW:	Yes.
BRENNAN J:	And that they will suffer substantial financial losses should the vessel be forfeited.
MR SHAW:	Yes, indeed, he did, and we do not say that there

was not an attempt to terminate the lease. All we say is that first of all the attempt happened very

late - - -

BRENNAN J:	Do you say that it failed?
MR SHAW:	- - - and, it failed.

BRENNAN J: Well, you have not got a finding to support

that, have you?

MR SHAW:  What I have got, Your Honour, is the evidence.

BRENNAN J:  Of course you have got the evidence and you have

got the magistrate's finding as expressed at

page 98 which, if it was intended to result in a

finding that, in truth, there was no termination of

the lease, might have been expected to say so.

MR SHAW:  Your Honour, I do not suppose he thought it was

particularly relevant to decide whether it was

actually effective or not, but what he says is that

they did attempt to terminate the lease. The

evidence at pages 78 and 79 is clear that the

termination was made on the basis of failure to

make the lease payments and only on that basis, and

when one looks at the terms of the lease that I

have taken Your Honour to, it sees that the attempt

was probably ineffective.

Lawler(2) 42 6/10/93

BRENNAN J:	Where does your submission lead, that the Court should now find as a matter of fact that the
problem is that this is not a suitable case for considering the question which has been addressed
and should refrain from doing so?
MR SHAW:	Yes, Your Honour.
BRENNAN J:	We should make those findings on the material

before us?

MR SHAW:  What I am doing, Your Honour, is looking at the

material which has been put before the Court by the applicants and submitting to the Court that this is what the material shows. It does not raise the

question which my learned friend wants it to raise,

that is all; it is as simple as that. We go

further and say it just is a mile away from the

Pearson Yacht case. We go on to say moreover - and

this is really a matter which was raised by

Your Honour Justice Deane - one has here a ship,

and ships have been treated in the law in a special

way.

The first thing which I handed up is an

extract from Oliver Wendell Holmes, The Common Law.

Justice Menzies in either Cheatley or Forbes - I

cannot remember which, but one of them - referred

to the pages immediately before this. In the Pearson Yacht Leasing Co case this chapter is

referred to. It is of some significance because

The Common Law was first published in 1881. This

is an extract from the 1911 edition. I think that

so far as we are presently concerned, they are the

same. The reason I am saying it is of significance

is that it is about the time of Federation. This

is from the first chapter of the book in which the

author was considering various forms of liability,

deodand and things of that kind.	One of the things
he looks at is ships.	He says, on page 27, in the
first complete paragraph:

By way of seeing what those peculiarities

are, take first a case of collision at sea. A

collision takes place between two vessels, the

Ticonderoga and the Melampus, through the

fault of the Ticonderoga alone. That ship is

under a lease at the time, the lessee has his

own master in charge, and the owner of the

vessel has no manner of control over it.	The
owner, therefore, is not to blame, and he

cannot even be charged on the ground that the

damage was done by his servants. He is free

from personal liability on elementary

principles. Yet it is perfectly settled that

there is a lien on his vessel for the amount

of the damage done, and this means that the

Lawler(2) 43 6/10/93

vessel may be arrested and sold to pay the

loss in any admiralty court whose process will

reach her.

I will go to the rest of that in a moment.	I have
handed up a copy of the Ticonderoga which is
reported in Swabey. It is a decision of Dr

Lushington in 1857 and it is reported in Swabey at

page 215. If I could go to page 1104, it is the

second of the two pages, about 12 lines down, after

having pointed out that the blame was due to

somebody who was towing the Ticonderoga, he says:

We must recollect that this is a proceeding in

rem.

Which was the matter which Your Honour

Justice Deane raised.

I am not aware, where there has been any proceeding in rem, and the vessel so proceeded

against has been clearly guilty of damage,

that any attempt has been made in this Court

to deprive the party complaining of the right

he has by the maritime law of the world of

proceeding against the property itself.

Supposing a vessel is chartered so that the

owners have divested themselves, for a

pecuniary consideration, of all power, right,

and authority over the vessel for a given

time, and have left to the charterers the

appointment of the master and crew, and

suppose in that case the vessel had done

damage, and was proceeded against in this

Court; - I will admit, for the purpose of

argument, that the charterers, and not the

owners, would be responsible elsewhere,

although I give no opinion upon that point; -

but still I should here say to the parties who

maritime law of nations, a remedy against the had received the damage, that they had, by the ship itself.

Then he goes on to say there is an exception in the

case of compulsory pilotage, and this was not

compulsory pilotage and accordingly the ship was

liable. So that, one has here, it is submitted,

Holmes, dealing with a case which clearly does

demonstrate that property had, for the 19th

Century, and it still is, or ships at least, are

regarded as responsible for wrongs or offences

committed by their use.

If I can go back to the passage in Holmes,

going over to page 28, the first complete

paragraph. The author said:

Lawler(2) 44 6/10/93

It may be admitted that, if this doctrine were

not supported by an appearance of good sense,

it would not have survived. The ship is the

only security available in dealing with

foreigners, and rather than send one's own

citizens to search for a remedy abroad in

strange courts, it is easy to seize the vessel

and satisfy the claim at home, leaving the

foreign owners to get their indemnity as they

may be able. I dare say some such thought has

helped to keep the practice alive, but I

believe the true historic foundation is

elsewhere.

And then he goes on to refer to deodand and he then

refers, after having referred at the bottom of

page 28 to the personalization of a ship by calling

her "she", at the top of page 29:

to say, "The ship has to pay for it," was

simply a dramatic way of saying that

somebody's property was to be sold, and the

proceeds applied to pay for a wrong committed

by somebody else.

He goes on to say this:

It would seem that a similar form of words has been enough to satisfy the minds of great

lawyers. The following is a passage from a

judgment by Chief Justice Marshall, which is

quoted with approval by Judge Story in giving

the opinion of the Supreme Court of the United

States: "This is not a proceeding against the

owner; it is a proceeding against the vessel

for an offence committed by the vessel; which

is not the less an offence, and does not the

less subject her to forfeiture, because it was

committed without the authority and against

the will of the owner. It is true that

inanimate matter can commit no offence. But

this body is animated and put in action by the

crew, who are guided by the master.	The
vessel acts and speaks by the master.	She

reports herself by the master. It is,

therefore, not unreasonable that the vessel

should be affected by this report." And again

Judge Story quotes from another case: "The

thing is here primarily considered as the

offender, or rather the offence is primarily
attached to the thing."

Now, the reference there is a reference to the case of the United States v Brig Malek Adhel,

(1844) 43 US (2 Haw) 210, at page 211, in the first

column there is an admission by the proctors for

the United States that the owners did not

Lawler(2) 45 6/10/93

contemplate the acts of piracy which were in

question here, and that the vessel, when she left

port, was armed in the way one would expect a

vessel to be armed when she was embarking on an

innocent commercial voyage.

Going to page 232, Justice Story in delivering

the opinion of the court says this, in the first
column, in the second complete paragraph:

The next question is, whether the innocence of the owners can withdraw the ship from the penalty of confiscation under the act of

Congress. Here, again, it may be remarked

that the act makes no exception whatsoever,

whether the aggression be with or without the

co-operation of the owners. The vessel which

commits the aggression is treated as the

offender, as the guilty instrument or thing to

which the forfeiture attaches, without any

reference whatsoever to the character or

conduct of the owner. The vessel or boat

(says the act of Congress) from which such

piratical aggression shall have been first

attempted or made shall be condemned.

And then His Honour goes on:

Now is there anything new in a provision of

this sort. It is not an uncommon course in

the admiralty, acting under the law of

nations, to treat the vessel in which or by

which, or by the master or crew thereof, a

wrong or offence has been done as the

offender, without any regard whatsoever to the

personal misconduct or responsibility of the

owner thereof. And this is done from the

necessity of the case, as the only adequate

means of suppressing the offence or wrong, or

insuring an indemnity to the injured party.

The doctrine also is familiarly applied to

cases of smuggling and other misconduct under

our revenue laws; and has been applied to

other kindred cases, such as cases arising on

embargo and non-intercourse acts. In short,

the acts of the master and crew, in cases of

this sort, bind the interest of the owner of

the ship, whether he be innocent or guilty;

and he impliedly submits to whatever the law

denounces as a forfeiture attached to the ship

by reason of their unlawful or wanton wrongs.

And then His Honour goes on and refers to what was

said by Chief Justice Marshall in The Schooner

Little Charles, which I have already - - -

Lawler(2) 46 6/10/93

DAWSON J: Where is all this getting us, Mr Shaw? Are you

saying that there is not an acquisition of property, that their ship is the offender?

MR SHAW:  What I am saying is this, Your Honour, that at the

time of Federation and for a long time before and

indeed afterwards, it had long been established,

especially in the case of ships, that forfeiture

was available and was not regarded differently in

situations where the owner was innocent, from

situations where the owner was guilty, and what I

am really saying is, Your Honour, forfeiture is

forfeiture and really this is what Your Honour

the Chief Justice said in Cheatley, that forfeiture

is forfeiture and the innocence or involvement of

the owner - - -

DAWSON J:  So what, for the argument that is put against

you? Is it an aquisition of property or is it not?

MR SHAW:  What I am saying, Your Honour, is this: no, it is

not.

DAWSON J: It is not an acquisition?

MR SHAW:  It is not an acquisition of property, no; not

within Sl(xxxi).

DAWSON J:	Oh, that is a different matter.
MR SHAW:	I am sorry, I misunderstood what Your Honour was

asking me. What I was saying was, it is not an

acquisition of property within section Sl(xxxi) and for a long while, forfeitures had been common grist

for the law and were regarded quite differently

from the sort of acquisitions which are dealt with in section Sl(xxxi) and the distinction my learned

friend seeks to make between cases in which the

owner is innocent and the owner is involved in the

commission of the offence is simply not available

and either - - -

DAWSON J: But you have to carry that further, do you not?

You must say if it is not an acquisition within

section 51, given that it is an acquisition of

property, it is because it is not for a purpose

with respect to which the Commonwealth has power to

make laws; it must be right. Why are we reading

all these old cases then, if that is the problem?

MR SHAW:  To show, Your Honour, that the distinction which

my learned friend seeks to draw between the two

different kinds of forfeiture which he sees is

simply not a distinction which has ever been

recognized by the cases.

Lawler(2) 47 6/10/93

DAWSON J:  So be it, but then you have to show that

forfeiture does not involve an acquisition of

property for the purposes .....

MR SHAW: Indeed, Your Honour, I do. But if I can say this, Your Honour: in a sense I do not, and the reason I

do not is because my learned friend concedes the

validity of forfeitures where the owner is involved

one way or another. He simply says in the case

where the owner is an innocent third party,

whatever that may be, one is in a different

situation from the situation in which one is in if

the owner is involved because - and he gives two

alternative·versions - either if the owner is

completely innocent, there are not just terms;

that is one version of it. The other version is

that where the owner is completely innocent, it is

an acquisition which falls within section Sl(xxxi),

although it is not if the owner is in some way

other than innocent.

What I am simply pointing out is that there is

a long history of the failure to make the

distinction which my learned friend seeks to make

and, indeed, if I could remind Your Honour of what

was said in Cheatley: at page 310 Your Honour the

Chief Justice said - and my learned friend read

part of this before - in the long paragraph towards

the bottom of the page:

Historically forfeiture has been regarded

as "a mulct or fine - a punishment for an

offence". But it is not an essential element

in the legal concept of forfeiture as a

penalty that its imposition is confined to
forfeiture of goods owned by a convicted
offender. Forfeiture of goods may be

prescribed as the penalty or consequence of

offences or acts committed or done by persons

variety of circumstances such as the nature of	other than the owner of the goods. There is a	the goods, the need for a deterrent penalty or the difficulty of enforcing provisions against
foreign owners which may make it appropriate
to provide for forfeiture although the owner
is not the offender -

and His Honour goes on to discuss that.

What I am simply putting, Your Honour, is this that what His Honour said there is perfectly

correct. All forfeitures fall within the same

head, there is not a distinction to be drawn

between one kind of forfeiture and another kind of

forfeiture, and they are not to be seen - - -

DAWSON J:  And why do all forfeitures lie outside Sl(xxxi)?

Lawler(2) 48 6/10/93

MR SHAW:  Because they are seen as the consequence of a

wrong done with the goods. The goods - - -

DAWSON J:  So be it. Must the argument go that the

Commonwealth has no power to make laws for the

purpose of punishment. Punishment is something

that is incidental to another purpose with respect

to which the Commonwealth has the power to make

laws and, therefore, this legislation falls within

the fisheries power ..... external affairs power

not -

MR SHAW: That seems to be the argument.

DAWSON J: Well, is that your argument?

MR SHAW:  No, Your Honour, what we say is this, here you

have a boat which was used in fishing in the

relevant fishery. You, therefore, have a law which

falls within the fisheries power, in so far as it

relates to what is to happen as a consequence of

that having happened. What the law provides is

that if the fishery has been interfered with by the

boat, one way or another, then the boat is forfeit,

and it is - - -

DAWSON J:	And that is an acquisition of property?
MR SHAW:	I should have said, "May be forfeit," Your Honour,

I should have said, because if is not automatically

a forfeit - - -

DAWSON J: But, if it is it is an acquisition of property?

MR SHAW: That is an acquisition of property, yes

Your Honour, but two things, it is not for the

purpose of the fishery, as it were, or it is not

for use for one of the purposes for which the

Parliament has power to use things.	What it is
forfeited for is in consequence of what has

happened, so that the primary character of it is as

a penalty or consequence of its use in a forbidden

way, that is all. The cases seem to say that just

as provisions relating to the use of aliens

property or enemy property, or just as provisions

relating to what is to happen to a bankrupt's

property fall outside section Sl(xxxi), so does

this.

McHUGH J:  Why do you concede it is an acquisition of

property in any sense? Has it not been said that a voluntary agreement for the sale of property of the Commonwealth is not an acquisition of property by

the Commonwealth?

MR SHAW: It has, Your Honour.

Lawler(2) 49 6/10/93

McHUGH J:  I appreciate the Commonwealth receives this

property, but does it acquire under any common

understanding of the term, quite apart from the

special sense of section Sl(xxxi)?

MR SHAW:  Your Honour, what my learned friend says is

whatever you might say without the provisions of

section 106(3), that does provide that the

forfeited property becomes the property of the

Commonwealth. In that sense one can say it is an

acquisition because, as my learned friend said,

even if that was not there, one would understand

that in any case, I suppose. That does follow from

the forfeiture, if you like, but it is not what the

forfeiture consists of. The forfeiture consists of

the deprivation, not the acquisition. It simply

follows as a necessary consequence perhaps of the

deprivation. We would say that for that reason, it

falls completely outside section Sl(xxxi).

McHUGH J:  I think in Tasmanian Dams Justice Deane gave

illustration of a boundary being put around some

property so that you could not use it, so you were

deprived of your property.	Would that be an
acquisition?

MR SHAW: That would not, no, Your Honour, but here you have

to accept the fact that the Commonwealth can, for

example, sell it, I suppose. In that sense there

is an acquisition. We say in paragraph 5 that

forfeiture provisions are to be found in very many

provisions of Commonwealth law. If I could just

hand up to the Court a summary of the various

forfeiture provisions which we have been able to

find. I do not want to read it to the Court, but

it just illustrates the significance of the -

perhaps I should say this. In paragraph 9 of the

outline we refer to first of all the cases in this

Court where the question of whether or not a

considered, and other cases where the validity of	forfeiture falls within section Sl(xxxi) has been
such provisions has been assumed.

My learned friend in the latter part of his

submissions seeks to rely really on the parallel

which he draws with the Pearson Yacht Leasing Co case. We deal with that in paragraph 11 and the

following paragraphs. We first of all seek to make

the point in relation to the facts which I made

earlier, and that relies on the facts which are set

out in paragraph 7 of the summary. We then go on

to submit that the fact that the liability in

respect of forfeiture is strict does not change the

provision from a permissible one relating to

fisheries.

Lawler(2) 50 6/10/93

In paragraph 12 we refer to way in which the

Supreme Court of the United States justified what

it said in relation to the defence, namely, that if

the owner was completely innocent it could not be

said that a forfeiture would serve legitimate

purposes. We say that question does not arise here, but assuming it did, we suppose that one

would have to do as my learned friend did, change

the question to a question about proportionality

and ask whether strict provisions for forfeiture

are reasonable and appropriate. What we seek to
say is that both practical necessity and long

history of such provisions does show they are

reasonable, .~o that there is simply no room, we

would say, however one looks at it, for the kind of

approach which my learned friend has suggested by

reference to the US authority. If the Court

pleases.

MASON CJ:  Mr Shaw, just one question. The record of

proceedings before the magistrate, were they before

me when the application for an order nisi was made?

MR SHAW:  I am sorry, Your Honour, I cannot answer that--

question without finding out what the answer is.

Our side was not there, Your Honour.

MASON CJ:  But you would know whether or not it was put on

subsequently?

MR SHAW:  As I understand it, Your Honour, the application

book consists of some, but not all, of the exhibits before the magistrate and some, but not all, of the

transcript before the magistrate, and the

magistrate's reasons.

MASON CJ:  My recollection is that only the magistrate's

decision was before me, but I cannot pretend that I

have a very clear recollection of that.

MR SHAW:  Your Honour, it is pretty clear that they were not

exhibited to the affidavit because -

MASON CJ: Yes, exactly; that is confirmatory of that

recollection.

MR SHAW:  - - - and I wondered when I first looked at the

application book what they were and they turned out

to be, as it were, some of the material which was

before the magistrate, which seems to have been put

in without any supporting - - -

MASON CJ: There may be an affidavit. There is an affidavit

by a deponent called Webster that has not been

reproduced that was sworn later.

Lawler(2) 51 6/10/93

MR JACKSON:	Your Honour, I cannot immediately assist, but could I just say that at page 10 of the record
Your Honours will see there that the affidavit at that point said that the magistrate's judgment in
paragraph 9 was not yet to hand and, Your Honour, as best I can recall, certainly Your Honour had the
judgment at the time when the matter was before the
Court.

MASON CJ: Yes, that is right, the judgment came to hand

then.

MR JACKSON:  I do not myself think that the other material

was before Your Honour.

MASON CJ: No. Yes, Mr Rose.

MR ROSE:  If the Court pleases, may I hand up our outline of

submissions.

MASON CJ: Thank you. Yes.

MR ROSE:  If the Court pleases. The first part of this

submission has been prepared because the terms of

the 78B notice and things said at the special leave

application indicated that there may have been an issue concerning the scope of the fisheries power

in particular, putting section Sl(xxxi) aside.	As
I understood the argument from my friend,

Mr Jackson, much of that material does not need to

be canvassed now.

Our submissions are for the validity of

section 106 to the full extent of its tenor, in

relation to forfeiture of a foreign boat, even if
the owner was not involved in the commission of the
offences and even if the owner was entirely
innocent in the sense of having taken all

reasonable steps to prevent the commission of the

offences.

We have stated in the outline there, the

submission that the forfeiture provisions, putting

section Sl(xxxi) aside, are clearly within the

scope of the fisheries power, either within the
core of it, because the forfeiture operates by

reference to the fact that the boat was used in an

illegal fishing activity. Alternatively, that it
is within the scope of the incidental powers as

having more than a tenuous, remote, fanciful or

exiguous connection to the protection of the

fisheries, being within the range of measures that

the Parliament can reasonably take as being

appropriately adapted for the protection and

promotion of the fisheries.

Lawler(2) 52 6/10/93

What was said in paragraph 4, is in terms of

the section being essentially a deterrent measure,
given the difficulty of detecting and prosecuting
overseas owners for their possible involvement.

The practical problems arise there in terms of

prosecuting overseas owners, for example, the lack of ability to search foreign premises for evidence

and the ease otherwise available to owners of

concealing evidence of their actions in relation to

the use of the boats. I think mention has already

been made of the fact that overseas owners may have

no funds in Australia to meet any. fines or

penalties. It is in the nature of a strict

liability.

In paragraphs 5 and 6 we mention some features of the legislation which are relevant, not only to

the question of the positive power apart from

section 51, but also in relation to some of the

arguments which my friend, Mr Jackson, put to the

Court. In paragraph 5 we point out that

section 106 does not make forfeiture mandatory or

automatic. It may be contrasted, for example, with

the automatic forfeiture provision in

Burton v Honan, which operated and affected persons

several transactions down the line from the
original importation which triggered the

forfeiture.

Section 106 empowers a court to order

forfeiture and no restrictions are placed on the

matters that may be taken into account by the

court. If the owners are innocent: for example, if the boat had been stolen without negligence by the owner, that factor could be taken into account,

as for example, the circumstances of a small scale

fisherman who had been involved in a relatively

minor breach. But, with a provision like that, it

is important, in our submission, to see it in the

context of people operating businesses. We are

dealing with a section which is concerned with

commercial fishing. People in that situation,

owners of boats, know the risks of forfeiture and

they can make their business arrangements

accordingly.

I am putting this, because it is necessary to

take that into account, as opposed to the picture

which my friend, Mr Jackson, sought to paint, of

forfeiture necessarily being unfair or unjust in

relation to an owner who has not been involved in

the offence.

An owner of a ship, which he has let out to

somebody else to go fishing with, can take

precautions; business precautions such as obtaining

security to be realized in the event of the

Lawler(2) 53 6/10/93

forfeiture resulting from its use. If the owner

considers the business risks there too great it can
leave the boat hiring business. There are

analogies there with the risks that any boat owner

runs from common law liability in rem if the person

operating the ship collides and incurs, or causes,

great damage to another ship. They are all

business risks and forfeiture in the event of the

boat being used by a hirer for unlawful fishing is

one that must be seen in that general context.

We have in paragraph 7 referred to the long

history of what we have described here as "blanket forfeiture provisions", provisions which cover the innocent as well as the guilty. In reference to

the convention debates - I do not really wish to
take the Court to it - but we have mentioned it in

our outline and it might be useful if I could hand

up that background to the reference in the

convention debates to the background of colonial
fisheries legislation and, indeed, two laws passed

by the Federal Council of Australasia, each

providing for the forfeiture of vessels used in

unlawful fishing.

If I can come now to the question of

acquisition of property. In a formal sense the
forfeiture of a boat, of course, involves the

transfer of the property from the owner to the

Commonwealth but, in our submission, that transfer

of property is not an acquisition of property

within the meaning of section 51(xxxi).

Your Honours have already been referred to various

categories of laws which result in transfers of

property, but which have been held not to effect

acquisitions of property of the kind to which

section 51(xxxi) applies - - -

DAWSON J: Well, why, on the assumption it is an acquisition

of property, is it not within 51? I am not

suggesting it is not, but why is it not within

section 51(xxxi)? There are various reasons for

these categories. Why, in this case, is it not an

acquisition of property?

MR ROSE: Because the concept of forfeiture, Your Honour, as

a deterrent, would simply be nullified if one had

to give compensation. The forfeiture only serves

its purpose if it is taken without compensation,

just as the imposition of taxes.

DAWSON J: But what does that matter if forfeiture is a

purpose with respect to which the Commonwealth has

the power to make laws?

MR ROSE: With respect, the purpose for which the

Commonwealth has power to make laws is not

Lawler(2) 54 6/10/93

forfeiture. The purpose is the protection and

promotion of the fisheries, and forfeiture is a

means to the achievement of that purpose. So

putting section 5l(xxxi) aside, one would say a law
providing for forfeiture is a law to achieve the

purpose of promoting and protecting the fisheries.

DAWSON J:	I follow that.
MR ROSE:	Just as if one had a penalty by way of forfeiture

of property from the actual offender. That, of

course, involves a transfer of property. The

extraction of the property from the offender is

ultimately for the purpose of promoting and

protecting the fisheries by way of the criminal

process that has led to the forfeiture order.

DAWSON J: Is it acquisition, or is there an argument that

it is not an acquisition of property on the basis

that really what its aim is is to deprive someone

of property rather than acquire the property for

itself.

MR ROSE:  Your Honour, we cannot escape the fact that the

Commonwealth does obtain the property in the goods, so in that sense we have not only got - - -

DAWSON J: But I think the argument goes something like,

"Well look, this is not really acquiring property.

You are not setting out to acquire property. The

result is the property is foisted upon you, but

that is a mere consequence of achieving what you

wanted to achieve."

MR ROSE:  Yes, with respect, one can see it as the property

corning to the Commonwealth merely as an incidental

consequence of the main focus of the law which is

the deprivation. Yes, I would - - -

DAWSON J: But you do not embrace that?
MR ROSE:	I would adopt it as an additional way of putting

the - - -

McHUGH J: That seemed to be the way Mr Justice Aickin

looked at some of the provisions, in some of these

categories in Tooth & Co.

MR ROSE:  Yes, Your Honour. The main rationale, in our

submission, would be the one provided by

Justice Gibbs in terms of the very nature of the

deprivation, it simply nullified, simply not

possible to do it if one has to turn around and

give compensation for it. It is the same as

extracting money by way of taxes or the other

example that is given in Tooth's case, the

sequestration of a bankrupt's property.

Lawler(2) 55 6/10/93

McHUGH J:  So you do not rely on the just terms provision.

You say that it is altogether outside the scope of

Sl(xxxi)?

MR ROSE:	Yes, Your Honour.
DEANE J:	Of course, one thing that seems to have been

somehow dropped from the reasoning in the cases is

that you cannot get within subsection (xxxi) unless

you can characterize the law as a law with respect

to the acquisition of property because it is only
on the basis of that characterization that

section Sl(xxxi) can apply.

MR ROSE:	Indeed, Your Honour.
DEANE J:	Somehow that just seems to be ignored in the cases

which seem to suggest if you can find something

that you can somehow describe as involving

acquisition of property, you pull that out of the

relevant legislative power unless the nature of the

legislative power is such that that would deprive

it of its efficacy.

MR ROSE:  In all these categories there is inescapably the

fact that property is obtained by the Commonwealth

or somebody else and somebody loses property.	In a
literal or colloquial sense outside this Court,

perhaps most people would say yes, there has been

an acquisition of property. But to characterize

the law in that sense, as has been pointed out in

relation to transfers of bankrupt's property and

the other categories we are talking about, it

simply would make no sense to say that they must be

characterized as laws with respect to the

acquisition of property with the consequence that

just terms attach.

DEANE J:  It may be that that has to be looked at, and that

obviously a secondary or a tertiary

characterization would suffice, but if you cannot,

realistically, characterize the law as a law with
respect to acquisition, it may have some limiting

effect on what is seen as the wide scope of

section Sl(xxxi).

MR ROSE: Well, our submission is that here with forfeiture,

be it forfeiture from the offender himself, and

there is no need, perhaps, to repeat that.

DEANE J: Yes, I follow the way you put it in those terms.

MR ROSE:	We move to the reference to Burton v Honan and
finding in that case direct authority for what is
done here. Earlier in the outline we have
mentioned the possibility that Burton v Honan may
one day, perhaps, be re-examined in relation to the

Lawler(2) 56 6/10/93

situation of a person five transactions removed

from the importation. But that is not the case

here, it is the acquisition from the owner at the

time the offence was committed.

In paragraph 15, under the heading "just

terms", we make the submission that even if there

were an acquisition of property within the meaning

of section 51(xxxi), there are just terms here.

But I think what is there under the heading "just

terms" simply reinforces the oddity of

characterizing a forfeiture law as one with respect

with to acquisition of property. When one comes to

talk about just terms in terms of the court that

makes the forfeiture order having to act justly,

and of taking into all the relevant factors and so

on, that is only another way of saying that the

acquisition in those circumstances that results

from the court's order, that the acquisition is

just.

The concept of an acquisition on just terms

seems to be something quite different. This does

not seem to be a matter of the terms of the

acquisition. So really, putting those submissions

together, it comes back to the fundamental

proposition that it really is simply inappropriate

to characterize this sort of forfeiture, being one

which, ex hypothesi, is an appropriate means of

protecting fisheries. I go back to what we have said earlier about the incidental power. Given

that it is an appropriate and reasonable means of

doing that, then it becomes very strange indeed to

characterize it as a law with respect to the

acquisition of property for which just terms are to

be provided.

In the final paragraph we have submitted that

if contrary to what, with respect, we regard as a

very clear position that there is no acquisition of

property here, but if there were any problem in

relation to innocent owners then the legislation,

in our submission, could be read down, section 15A

of the Acts Interpretation Act, but it may be there

are some problems in that regard. I should mention

to the Court that yesterday or the day before an

amendment was moved in the House of Representatives

to a bill to amend the Fisheries Management Act, to

insert a new reading-down provision and, subject to

what the Senate may do, it may be enacted before

very long and therefore the Court may need to take

it into account in making the judgment on this.

I hand to the Court copies of the amendment and to the explanatory memorandum. It seeks to

overcome, as the explanatory memorandum says, some

of the difficulties that have been encountered in

Lawler(2) 57 6/10/93

recent times with the reading down of Commonwealth

legislation, where section 15A and the judicial

approach that has been taken to that has been found

inadequate to enable the reading down. But if my

main submissions are accepted it would be

unnecessary for the Court to trouble itself with

that new provision. If the Court pleases.

MASON CJ: Yes, thank you, Mr Rose. Mr Jackson.

MR JACKSON:  Your Honours, just a few matters with which I

wish to deal: the first is in relation to the

proposed amendment to the Fisheries Management Act

and other Acts. May we, if it comes into force,

address some submissions in writing in due course,

Your Honours?

MASON CJ: Yes, in a reasonably short space of time,

Mr Jackson.

MR JACKSON:  Yes, Your Honour.

MASON CJ: Fourteen days?

MR JACKSON: Fourteen days after it comes into force,

Your Honour?

MASON CJ: Yes.

MR JACKSON:  Yes, of course. Your Honour, the second thing

is our learned friends made some submissions about

the effect of the facts in the matter. There are

some other matters we wish to draw to the Court's attention. May we do so in writing by the end of tomorrow, if there are any further references we

want to give Your Honours in relation to the

matters that he has mentioned and give our learned

friends a copy of course.

MASON CJ: Yes, that is acceptable.
MR JACKSON:	Your Honours, dealing again with that general

subject-matter. The only material that was before

Your Honour the Chief Justice at the time when the matter was before Your Honour, as we understand it,

was the judgment of the magistrate, and that

appears to be the position.

Your Honours, could I just say one other thing

about our learned friends' submissions concerning

the appropriateness of this case, and it is this,

that if one took what he said at the highest, we

are still in a position where what we had was an

unpaid vendor's lien. So that it is not a case

where on any view of the matter we have no interest

in the property and certainly not a case where our

whole case depends upon the giving of the two

Lawler(2) 58 6/10/93

notices that are referred to. There may be a
question of quantification of what our interest

was, and perhaps identification of it, but the

issue arises in any event.

Your Honours, the issue arises in any event

because our compla~nt is that section 106 in the
relevant parts of it makes no provision at all for
a person in our position. It is not that it

provides some terms which we do not satisfy; it

simply provides none. It would be an impossible

task for the Court to seek to read it down by

current standards.

Turning then to our learned friends'

submissions, it is said that the purpose of

provisions of this kind is that they operate as a

deterrent as distinct from a penalty for conduct.

One sees, for example, observations of that kind in

Cheatley at 296 and 310 to 311. One sees also in

the American case, Calero-Toledo, at page 607,

another reason given, that provisions of this kind

perform another function as well, and that is to

take out of, in effect, the stock of vessels ones

of this kind.

Your Honours, all those purposes, other than

the purpose of imposing some penalty upon the

person who is the offender, are purposes which are
properly described, in our submission, as purposes

of the Commonwealth. No doubt, in enacting

legislation effecting those purposes, that is

purposes in terms of section Sl(xxxi), the

Commonwealth is entitled to frame the legislation

in such a way as to be a deterrent but if, to use
the expre·ssion again, at the end of the day what it
effects is an acquisition of property, then in the
circumstances to which it applies, even though

there may be the forfeiture, the forfeiture has to

be one for which just terms are provided.

Your Honours, could I just say one further

thing in relation to it, and it is just this. It

is not an insignificant thing to have property

taken away from one and converted into a right to

compensation. That has a deterrent aspect of its

own character.

MASON CJ:  Thank you, Mr Jackson. The Court will consider

its decision in this matter.

AT 4.14 PM THE MATTER WAS ADJOURNED SINE DIE

Lawler(2) 59 6/10/93