Alcock v Commonwealth of Australia

Alcock v Commonwealth of Australia - [2009] FCA 820 - FCA 2009 case summary — Zoe

[52]

17 I regard paragraph 10 as embarrassing because it does not identify "the provision of Commonwealth fishing law" under which "all wild abalone fishing" is said to be conducted. Nor does it indicate the meaning which the pleader says is borne by the expression "waters adjacent to Australia." If that is a term of art or is defined by a particular statutory provision, its meaning and source should be identified in the body of the pleading. As well, if it is intended to assert that all waters comprised in the Central Zone of the fishery regulated pursuant to the Fisheries Act 1995 (Vic) are subject to "Commonwealth fishing law", that assertion should be made explicitly on the face of the statement of claim. Paragraph 10 of the amended statement of claim in its present form must therefore be struck out. 18 If "primary authority" over relevant waters, including the Central Zone of the Victorian abalone fishery resides, as the pleader seems to suggest, in the Commonwealth, it does not add any material fact to assert that the existence of that primary authority has been "acknowledged by each of the States which has entered into Commonwealth / State fishing management arrangements". Accordingly, paragraph 11 of the amended statement of claim should also be struck out. 19 Paragraph 12 of the amended statement of claim seems unobjectionable as a narrative of background facts explaining how the applicant came to hold an AFAL in respect of the Central Zone of the Victorian abalone fishery. However, if those facts are said to entail some consequential limitation on the power of either Victoria or the Commonwealth to cut down or otherwise alter the rights attaching to a relevant AFAL, the pleading should indicate, with a statement of any material additional facts, how that consequence is alleged to follow. 20 Paragraph 13 of the amended statement of claim does not perform the function just indicated because it does not make clear what is the "fundamental jurisdiction" said to have been exercised by the Commonwealth over the Victorian abalone fishery. Nor is any definition given to the expression "waters adjacent to Victoria." If, as seems to be implied, "waters adjacent to Victoria" comprehend all the area comprised in the Central Zone of the Victorian abalone fishery, that should be expressly pleaded and the legislative provision having that effect should be identified. Moreover, paragraph 13 appears to identify a dichotomy between "fundamental jurisdiction" reposed in the Commonwealth and "management power" vested in Victoria. If that dichotomy is said to import a limitation on the power of Victoria to limit or exclude fishing for abalone in "waters adjacent to Victoria" the pleading should expressly say so and, preferably, indicate the statutory or other provision which creates the dichotomy and the alleged consequential limitation of power. In its present form paragraph 13 must be struck out. 21 Paragraph 14 does not reproduce, as far as I can discern, the terms or effect of any identified provision of the Seas and Submerged Lands Act 1973 (Cth). More significantly, no other paragraph of the amended statement of claim identifies the consequences said to attach to the sovereignty declared by the Seas and Submerged Lands Act to be vested in and exercisable by the Commonwealth. Paragraph 14 therefore should not be preserved in isolation from the preceding paragraphs 10, 11, 12 and 13.

[55]

24 That power given to the Commonwealth is concurrent with, and not exclusive of, the legislative power of the States. Accordingly, if it were intended to allege that some "fisheries laws and regulations enacted by the Parliament of Victoria" are inconsistent with some exercise by the Commonwealth of legislative power over "fisheries in Australian waters beyond territorial limits", it would be necessary also to plead that some part of the Central Zone of the Victorian abalone fishery over which a marine national park or marine sanctuary has been established is "in Australian waters beyond territorial limits" within the meaning of s 51(x). See also the observations at [31] below of these reasons about pleading an inconsistency of the kind contemplated by s 109 of the Constitution. 25 Section 108 of the Constitution provides; 'Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.' 26 That section is in the nature of a transitional provision intended to preserve in force Colonial and State laws related to an enumerated head of Commonwealth power unless and until provision is made "in that behalf" by the Commonwealth. As I understand the respective positions of the parties, it is common ground that the FMA makes provision "in that behalf" in respect of Australian waters beyond territorial limits. If that understanding be correct, any claim for relief based on inconsistency between the Victorian amending Act of 2002 and the FMA must identify the alleged inconsistency. In any event, paragraph 15 of the amended statement of claim in its present form cannot stand.

[72]

39 The High Court in Port MacDonnell (supra) did not, in terms, refer to the Coastal Waters (State Titles) Act 1980 (Cth) which is invoked in paragraph 26 of the amended statement of claim. What that Act does is to vest in the Crown in the right of each State, subject to certain exceptions principally in favour of the Commonwealth; 'the same right and title to the property in the sea-bed beneath the coastal waters of the State as extending [on 14 February 1983], and the same rights in respect of the space (including space occupied by water) above that sea-bed, as would belong to the State if that sea-bed were the sea-bed beneath waters of the sea within the limits of the State' [ie, the traditional 3 mile limit]. 40 Accepting for the purposes of the argument that neither the Coastal Waters (State Powers) Act 1980 (Cth) nor the Coastal Waters (State Titles) Act 1980 (Cth) purported to surrender to any State Commonwealth "sovereignty" over coastal waters or to confer on any State "sovereign rights" over those waters, I have not been referred to anything in the Fisheries Act 1995 (Vic) or the National Parks (Marine National Parks and Marine Sanctuaries) Act 2002 (Vic) which purports to assert sovereignty or sovereign rights in Victoria over the disputed areas. In the absence of any feature which distinguishes the Victorian legislation from the Fisheries Act 1982 (SA), the following observations of the Full High Court in Port MacDonnell (supra) at 373, appear to apply to the present case; 'Putting to one side the provisions of s 5(c) of the Coastal Waters (State Powers) Act (see below), possible inconsistency with Commonwealth law may be shortly disposed of. Clearly the State Fisheries Act does not purport "to vest or make exercisable any sovereignty or sovereign rights" and thus escapes any possible inconsistency with s 16(b) of the Seas and Submerged Lands Act; see Robinson v Western Australian Museum [(1977) 138 CLR, at p 306], per Gibbs J. Nor can the operation claimed for the State Fisheries Act by s 14 conflict in any way with the Commonwealth Fisheries Act. Section 12L of that Act withdraws the operation of that Act from the precise field which s 14 of the State Fisheries Act prescribes as the field of operation of the State Fisheries Act. It withdraws the operation of the Commonwealth Act from a particular fishery when there is an arrangement in force under Div 3 of Pt IVA of that Act for the management of the fishery.' 41 It is true, as Ms Doyle of Counsel for Victoria conceded, that there was no reference in Port MacDonnell to s 123 of the Constitution. That may have been because s 7 of the Coastal Waters (State Powers) Act expressly provides that; 'Nothing in this Act shall be taken to:

[75]

42 At all events, it is clear that, in seeking in a further amended statement of claim to preserve what I understand to be the thrust of paragraphs 24 to 30 of the present amended statement of claim, the pleader will have to identify each element of the impugned legislation which is said to constitute arrogation by Victoria of sovereignty or sovereign rights over the disputed areas. As I perceive it, the observations of Barwick CJ in Bonser v La Macchia (1969) 122 CLR 177 which were relied on by Mr Fitzgibbon in the course of argument, will not afford any assistance to the performance of that task. In the passage to which I was referred, his Honour observed, at 197; 'As I remarked earlier, in my opinion, there has been a misconception in the minds of the law officers of the colonies, of the States, and now I think of the Commonwealth. It has been thought that the colonies had a territorial sea which was a colonial territorial sea as distinct from an Imperial territorial sea. The concept has been carried down into the State and Commonwealth sphere after federation. Indeed, in the case of the Commonwealth it has extended so far as to include a territorial sea as appurtenant to and as part of each Territory of the Commonwealth. In the case of the Northern Territory, the supposition may have been that the State of South Australia had a northern territorial sea which remained as a territorial sea appurtenant to the ceded territory when Northern Territory became a Commonwealth Territory. I have indicated my view as to the position of the colonies and the States in this regard. In any case I find nothing in the instruments by which the Northern Territory was transferred to the Commonwealth which would justify such an assumption; see the description of the Northern Territory in the definition in the agreement scheduled to the Northern Territory Acceptance Act 1910-1919 (Cth). As I have mentioned earlier at some point of time but certainly by the time the Commonwealth became a party to the Convention on the Territorial Sea the Commonwealth acquired "sovereignty" in the territorial sea around the whole of Australia and its territories, and the subjacent soil so that the territorial limits of Australia accepted internationally extend beyond the land mass of Australia and its territories to a point, as of this time, at least three nautical miles seaward of the shores of Australia and its territories. But that "sovereignty" has not been passed away from the Commonwealth so far as I can discover. However, this is not the question here. The question is whether the words of exception in the proclamation can be read as referring to an area of waters between the coastline and three nautical miles therefrom. As I have said, I feel confident that it was the intention of the writer of the proclamation so to provide. But, though a misconception, the evident existence of the idea of a territorial sea of a colony which set its territorial limits is, I think, relevant to the construction of the proclamation. It is not an area where thinking it so may make it so: but the existence of the misconception may aid the construction of the statutory instrument. Bearing in mind this evident misconception and the other indications I have mentioned, I have come to the conclusion, though not without considerable hesitation, that it is permissible to interpret the words of exception in the proclamation as intending to describe an area of waters confined in the three-mile belt. Consequently, so construing the proclamation, I conclude that the proclamation does not include waters which are not within the ambit of the constitutional power or of the definition of the Act.' 43 Indeed, the Full High Court in Port MacDonnell expressly approved the views expressed by Windeyer J in Bonser v La Macchia (supra) at 226, where his Honour said; 'My view therefore is that the legislatures of the Australian States have power to make laws about fishing at sea: but saying that does not presuppose that they have any sovereignty over the open sea or any title to the subjacent land of any part of that sea. The laws which they make must not be inconsistent with Commonwealth law. And, generally speaking, they will be read as referring only to the off-shore waters of the particular State, which are sometimes conveniently, but misleadingly, called its territorial waters: e.g., Green v. Burgess [[1960] VR 158]; cf. Munro v. Lombardo [[1964] W.A.R. 63]. But this territorial restriction arises rather as a matter of construction than of power. The power of a State legislature to make laws which operate upon persons, things and events beyond the State is not limited by three miles of sea. It depends upon relationship to the State, not upon distance from it--on whether the persons concerned, or their transactions, are related to the peace, order and good government of the State.' 44 It is undesirable in the circumstances for me to make any more specific suggestions about how a further amended statement of claim might be framed in order to overcome the powerful objections advanced on behalf of the Commonwealth and Victoria which are fatal to the pleading in its present form. It suffices, for present purposes, to indicate that paragraphs 24 to 30 must be struck out.

[105]

Conclusion 74 It will be apparent from the examination undertaken above of the substantive allegations in the present amended statement of claim that almost all of them are defective in one way or another. Because of the manifest lack of precision and the ambiguity which infects many of the defective paragraphs, I have not been able to reach a concluded view, as required by s 31A(2)(b) of the Federal Court of Australia Act 1976 (Cth), that the applicant has no reasonable prospect of successfully prosecuting the proceeding. That is not to say that there is any lack of cogency in the arguments addressed by Counsel for the Commonwealth and Victoria to substantive principles of constitutional law. I have endeavoured to indicate in the foregoing reasons respects in which those principles most obviously restrict or preclude one or other of the claims for relief which the applicant apparently wishes to pursue. However, against the possibility that the conceded defects in the amended statement of claim may have concealed a claim on which the applicant could have reasonable prospects of success against one or other of the respondents, I have decided not to dismiss the proceedings summarily under s 31A or pursuant to O 20 r 5 of the Rules of this Court as frivolous or vexatious or an abuse of process. Instead, I shall order pursuant to O 11 r 16 that the whole of the amended statement of claim be struck out. As French J did in Matheson Engineers Pty Limited v El Raghy (1992) 37 FCR 6, where his Honour characterised an amended statement of claim as "plainly inadequate", I shall grant the applicant leave to file a further amended statement of claim in substitution for the existing pleading. The applicant must pay the costs of the Commonwealth and Victoria of and incidental to the motions on notice each dated 24 September 2008. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

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