Court of Appeal (WA)|1999-03-31|Before: Mr P, Heenan J, Parker J, Kennedy J, Pidgeon J, Murray J

Aruli v Christopher Ralph Mitchell & Ors [1999] WASCA 1042 (31 March 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

Fisheries - Foreign nationals fishing commercially without licence in Australian fishing zone - Persistent offenders - Offenders without means to pay - Substantial fines imposed - Order for imprisonment of each offender for a specified period or until the fine was paid - Penalty of imprisonment precluded under United Nations Convention on the Law of the Sea, Article 73 - Default order for imprisonment valid - Convention on the Law of the Sea, Article 73 not part of municipal law of Australia - Fines not excessive.

Respondent : Commonwealth Director of Public Prosecutions

Cheatley v The Queen [1972] HCA 63; (1972) 127 CLR 291

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

Kioa v Minister for Immigration and Ethnic Affairs [1985] HCA 81; (1985) 159 CLR 550

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273

Akimin v Cooper, unreported; SCt of WA (Heenan J); Library No 950071; 24 February 1995

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253

Chen Yin Ten v Little (1976) 28 FLR 480

Chiou Yaou Fa v Morris [1987] NTSC 20; (1987) 87 FLR 36

Clyde Engineering Co Ltd v Cowburn [1926] HCA 6; (1926) 37 CLR 466

Colvin v Bradley Bros Pty Ltd [1943] HCA 41; (1943) 68 CLR 151

The Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1

re Director of Public Prosecutions; Ex parte Lawler [1994] HCA 10; (1994) 179 CLR 270

Gayfer v Bere, unreported; SCt of WA (Parker J); Library No 980360; 24 June 1998

Hwang Ming Heui v Mellon (1980) 5 NTR 9

Kartinyeri v Commonwealth [1998] HCA 22; (1998) 72 ALJR 722

Kioa v Minister for Immigration and Ethnic Affairs [1985] HCA 81; (1985) 62 ALR 321

Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168

Minister for Immigration and Ethnic Affairs v Teoh (1994) 138 CLR 273

Mitchell v Abas, unreported; SCt of WA (Wallwork J); Library No 980185; 9 April 1998

New South Wales v The Commonwealth [1975] HCA 58; (1975) 135 CLR 337

Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60

R v Sabrudin, unreported; SCt of NT; Matter Nos 9624411 and 9702924; 7 February 1997

Re DPP; Ex parte Lawler [1994] HCA 10; (1993-1994) 179 CLR 270

Simsek v Macphee (1982) 148 CLR 636

Wilde v Menville Pty Ltd [1981] FCA 6; (1981) 50 FLR 380

I have had the benefit of reading in draft the reasons to be published by Murray J, with which I am substantially in agreement. I desire only to add some brief observations of my own with respect to the Convention on the Law of the Sea and with respect to any consequence which may flow from the apparent incapacity of the appellants to pay the fines which were imposed upon them.

Stephen J considered the status of treaties entered into by the Australian Government in Simsek v MacPhee (1982) 148 CLR 636. At 641, he said:

"Accepted doctrine in this Court is that treaties have "no legal effect upon the rights and duties of the subjects of the Crown" - Chow Hung Ching v The King [1948] HCA 37; (1948) 77 CLR 449 at 478; aliens are in no different position - Bradley v The Commonwealth [1973] HCA 34; (1973) 128 CLR 557 at 582."

At 641-642, he explained, "(t)he reason of the matter is to be found in the fact that in our constitutional system treaties are matters for the Executive, involving the exercise of prerogative power, whereas it is for Parliament, and not for the Executive to make or alter municipal law : Wade & Phillips, Constitutional Law, 8th edn (1977), p277. Were it otherwise "the Crown would have the power of legislation" : Mann, Studies in International Law (1973), p328".

The position was expressed succinctly by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273. They said, at 286-287:

"It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law." (footnotes omitted)

It was common ground in that case that the Convention in question had not been incorporated into Australian municipal law. Their Honours went on to say, however, at 287:

"But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law." (footnote omitted)

Their Honours added, at 288, that, subject to the constraints which they identified, apart from influencing the construction of a statute or subordinate legislation, an international Convention may play a part in the development by the courts of the common law. Furthermore, a treaty, although not incorporated into municipal law, may give rise to a material legitimate expectation.

In Kioa v West [1985] HCA 81; (1985) 159 CLR 550, Gibbs CJ, at 570, said:

"The argument that the delegate [of the Minister] should in some way have considered the provisions of the International Covenant on Civil and Political Rights and of the Declaration of the Rights of the Child is based on the fact that the preamble to the Human Rights Commission Act [1981] recites that "it is desirable that the laws of the Commonwealth and the conduct of persons administering those laws should conform with the provisions of the International Covenant on Civil and Political Rights, the Declaration of the Rights of the Child .. and other international instruments relating to human rights and freedoms". It is trite to say that treaties do not have the force of law unless they are given that effect by statute: Simsek v MacPhee (1982) 148 CLR 636. The words of the preamble to the Human Rights Commission Act do not have the effect of making the Covenant and the Declaration part of Australian municipal law."

Notwithstanding that a schedule to an Act is deemed by s13(1) of the Acts Interpretation Act 1901 (Cth) to form part of the Act, merely to set out a treaty as a schedule to the Act does not incorporate that Act into our municipal law. The English texts of the International Covenant on Civil and Political Rights ("ICCPR") and the Declaration of the Rights of the Child were both set out in the schedule to the Human Rights Commission Act, but they did not thereby become part of Australian municipal law. See also Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, at 305, 321 and 361.

In Bradley v The Commonwealth [1973] HCA 34; (1973) 128 CLR 557, at 582, Barwick CJ and Gibbs J said:

"The Parliament has passed the Charter of the United Nations Act 1945 (Cth), s3 of which provides that "The Charter of the United Nations (a copy of which is set out in the Schedule to this Act) is approved." That provision does not make the Charter itself binding on individuals within Australia as part of the law of the Commonwealth. In Chow Hung Ching v The King [1948] HCA 37; (1948) 77 CLR 449, at 478, Dixon J said: "A treaty, at all events one which does not terminate a state of war, has no legal effect upon the rights and duties of the subjects of the Crown and speaking generally no power resides in the Crown to compel them to obey the provisions of a treaty : Walker v Baird [1892] AC 491, and a similar view was expressed by Latham CJ in R v Burgess; ex parte Henry [(1936) [1936] HCA 52; 55 CLR 608 at 644]."

In my opinion, the United Nations Convention on the Law of the Sea has not been incorporated into Australian municipal law by the amendments made in 1994 to the Seas and Submerged Lands Act 1973 (Cth), except to the limited extent necessary to give effect to those provisions of that Act noted below. The Act has not implemented the provisions of the Convention and it has not created justiciable rights for individuals.

The amendments to the Act, which were made prior to the ratification of the Convention on 5 October 1994, substituted a new schedule for the two previous schedules to the Act. Of the Convention, only Parts II, V and VI are set out in the new schedule, although the second recital in the preamble to the Act states that Australia, as a coastal State, has "other rights and duties in relation to the exclusive economic zone provided for in the United Nations Convention on the Law of the Sea". The long title of the Act does not refer to the Convention. The schedule itself commences by referring to "Subsection 3(1) (definition of "the Convention")" before setting out the English text of the three Parts of the Convention referred to above. Subsection (1) of s3 of the Act defines "the Convention" to mean "the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982 (Parts II, V and VI of which are set out in the Schedule)". Other expressions in s3(1), including "exclusive economic zone", are defined by reference to the meanings set out in various articles of the Convention, in effect using those parts of the Convention set out in the schedule as a dictionary. Section 10A of the Act declares and enacts, without any reference to the Convention, that the rights and jurisdiction of Australia in its exclusive economic zone are vested in and exerciseable by the Crown in right of the Commonwealth. The source of authority for this declaration would seem to have been customary international law. By s10B, the exercise of the power of the Governor General from time to time by proclamation to declare the limits of the whole or of any part of the exclusive economic zone of Australia may not be inconsistent with Articles 55 and 57 of the Convention. Similar constraints are to be found in relation to the powers conferred by ss7(1), 12 and 13B. Accordingly, there is specific reference in the body of the Act to some, but not to all, portions of each of the Parts set out in the Schedule.

I turn now to the penalties imposed upon the appellants. Section 16C of the Crimes Act 1914 (Cth) provides that, before imposing a fine on a person for a federal offence, a court must take into account the financial circumstances of the person, in addition to any other matters that the court is required to take into account. Nothing in this section, it is said, however, prevents a court from imposing a fine on a person because the financial circumstances of the offender cannot be ascertained by the court. A similar provision is to be found in s53 of the Sentencing Act 1995 (WA). The significance in the sentencing process of an offender's capacity to pay a fine is discussed in Ruby, Sentencing, 4th edn at 300-304, and see also Ashworth, Sentencing and Criminal Justice, 2nd edn at 192-196.

The Fisheries Management Act 1991, ss100(1) and 101(1), under which the relevant charges were brought, in terms makes provision only for the imposition of a fine. Section 20(1) of the Crimes Act does, however, provide for the conditional release of offenders after conviction. Such a disposition, having regard to the gravity of their offences and the records of the appellants, would not have constituted a proper disposition of the present matter.

In this case, it was quite clear that the offending fishermen had no means of paying fines of any significant amount, and certainly no means of paying fines of the amounts in fact imposed. However, it has for some years been recognised that the difficulty of enforcing compliance with fisheries legislation along the length of the Australian coastline calls for a stern deterrent if the legislative restrictions are to be enforced - see Cheatley v The Queen [1972] HCA 63; (1972) 127 CLR 291, per Barwick CJ, at 296. Accordingly, in Arifin v Ostle, unreported; FCt SCt of WA; Library No 8923; 18 June 1991, this Court held that a fine must reflect the gravity of the offence and must be imposed even though it is known that the offender will inevitably serve a default term of imprisonment. In the circumstances, I do not consider that the amounts of the fines fall outside the range of a fair discretionary judgment.

It is noted that, on 29 June 1998, after the appellants had pleaded guilty and been fined, amendments were made to s15A of the Crimes Act. Those amendments apply in relation to a fine regardless of whether it was imposed before, on or after the commencement of the amending Act No 49 of 1998. They affect the powers of persons other than Magistrates to make an order enforcing recovery of a fine imposed on an offender for an offence against a law of the Commonwealth. The amended section has no application to the present case.

I agree with the reasons of Murray J and the further observations of Kennedy J. I would dismiss the appeals.

These appeals are brought by leave granted by Walsh J. There was an order that the hearing of the appeals be consolidated and because of the nature of the subject-matter, an order was made under the Judiciary Act 1903 (Cth) s78B that the Attorneys-General of the Commonwealth and the States should each be notified of the proceedings so that they may consider intervention. We were informed that the responses received from all of the Commonwealth and State Attorneys-General declined the opportunity.

Something of the nature of the appeals may be gathered from the amended grounds of appeal which in each case are in identical terms as follows:

(b) the character and antecedents of the Applicant;

(c) the Applicant's inability to pay such a fine and the resultant disproportionate effectual sentence of imprisonment; and

(d) the fact that forfeiture of the boat was ordered by the Court in addition to the above penalty.

2. The learned Magistrate erred in law by taking into account irrelevant considerations, namely his belief expressed at the time of sentencing that Indonesian fishermen (and by implication the Applicant) were returning from periods of detention in Australia with goods which they sold on return to Indonesia to finance further fishing trips.

3. The learned Magistrate had no power to impose a sentence including imprisonment under section 58 of the Sentencing Act 1995 (WA) ('the State provision') for a violation by the applicant of the prohibitions of the Fisheries Management Act 1991 (Cth) ('the FMA') because the State provision was:

(a) inapplicable and had no operation in relation to the Commonwealth offences; or

(b) to the extent that it purported to apply in relation to those offences, it was invalid and of no legal force and effect.

(i) The offences occurred in the Australian Fishing Zone at a place not within the territorial sea of Australia.

(ii) The Australian Fishing Zone is defined in section 4 of the FMA as:

(a) the waters adjacent to Australia within the outer limits of the exclusive economic zone; and

(b) the waters adjacent to each external territory within the outer limits of the exclusive economic zone;

(iii) The exclusive economic zone is defined in section 4 of the FMA to mean the exclusive economic zone, within the meaning of the Seas and Submerged Land Act (1973) ('SSLA'), adjacent to the coast of Australia or the coast of an external Territory.

(iv) The State provision is applicable to and operative in relation to judicial proceedings to enforce violations of Australia's fisheries laws, including Commonwealth offences, to the extent that the relevant State Court, in this instance the Court of Petty Sessions, Broome, is authorised by section 15A of the Crimes Act 1914 (Cth) and section 79 of the Judiciary Act 1904 (Cth) to apply that provision.

(v) Section 15A of the Crimes Act 1914 (Cth) and section 79 of the Judiciary Act 1904 (Cth) only authorises a court exercising jurisdiction under the FMA to apply the provisions of State law, including the State provision, to the extent that section 15A of the Crimes Act (Cth) and section 79 of the Judiciary Act 1904 (Cth) operate consistently with section 19A of the SSLA.

(vi) Section 10A of the SSLA provides in effect that the rights and jurisdiction in the exclusive economic zone conferred on Australia pursuant to the United Nations Convention on the Law of the Sea ('the Convention') as contained in the Schedule to the SSLA are vested in the Crown in right of the Commonwealth.

(vii) The rights and jurisdiction of Australia in the exclusive economic zone, as that area is defined in Article 55 of the Convention, include, under Article 73 paragraph 1 of the Convention, the right to take such judicial proceedings and other measures as may be necessary to ensure compliance with the fisheries laws of Australia, save to the extent that in that zone, by virtue of Article 73 paragraph 3 of the Convention, Australia may not impose a penalty including imprisonment for a violation of its fisheries law, except where there is an agreement to the contrary with other States concerned.

(viii) There is no such agreement between Australia and the Republic of Indonesia, the applicant being an Indonesian National.

(ix) Section 15A of the Crimes Act 1914 (Cth) and section 79 of the Judiciary Act 1904 (Cth) do not, in the premises, authorise, or may not be construed to authorise, the application in judicial proceedings to enforce the provisions of the FMA of a State law such as the State provision contrary to Article 73 paragraph 3 of the Convention.

(x) Accordingly the learned Magistrate had no power under the State provision to impose the penalty including imprisonment.

(i) The applicant repeats particulars (i) to (viii) above.

(ii) Section 10A of the SSLA vests in the Commonwealth the rights and jurisdiction of Australia in its exclusive economic zone as provided under Article 55 of the Convention, namely subject inter alia to Article 73 paragraph 3 of the Convention.

(iii) In purporting to authorise the learned Magistrate to impose a penalty including imprisonment for violations of fisheries laws in the exclusive economic zone in the absence of an agreement between Australia and Indonesia, the National States concerned, the State provision is therefore inconsistent with section 10A of the SSLA.

(iv) The State provision is therefore invalid and of no legal force and effect to that extent."

The background of these matters may be stated shortly as follows. The three appellants are fishermen. They are Indonesian nationals. They came into Australian waters in the form of the Australian Fishing Zone on one vessel. It was a commercial fishing enterprise for which there was no licence. The crew of the boat numbered 16 fishermen. La Bau was its master and the other appellants, Aruli and La Nunu, were members of the crew. Nine other crewmen were charged. The remaining four were children in the eyes of the law and were not charged.

The incursion was in fact deep into Australian waters and when the vessel was apprehended while it was fishing on 12 May 1998 it was close to the coast in the vicinity of King Sound. It was a deliberate incursion taking the risk of apprehension for commercial gain although, as the learned Magistrate in the Broome Court of Petty Sessions observed when passing sentence, those before the Court lived a "subsistence-type lifestyle" and were no doubt having economic or financial difficulties given the present state of the Indonesian economy.

The appellants and the others were brought to Broome pursuant to the Fisheries Management Act s84. There, they were kept in detention pursuant to the Migration Act 1958 (Cth) s189. A few days later, complaints were made against them. La Bau was charged with two offences. The first was that as skipper he had in his charge a foreign boat equipped with equipment for fishing in the Australian Fishing Zone, contrary to the Fisheries Management Act s101(1). Speaking generally, that is an offence unless there is a licence or permit in existence in respect of the boat. The complaint advised the intention upon conviction to seek the forfeiture of the boat and its equipment to the Crown pursuant to s106(2) of the Act. Such an order was ultimately made.

The three appellants were each charged with using the boat for commercial fishing without there being in force a foreign fishing licence authorising that use in the Australian Fishing Zone, contrary to the Fisheries Management Act s100(1). Both offences are indictable, but with the consent of the prosecution and the defendant each may be dealt with summarily. In this case those consents were given. In that event each offence was punishable by a fine of $27,500.

Each of the appellants pleaded guilty to the offence or offences with which he was charged and pleas in mitigation were advanced. Each appellant admitted previous convictions. La Bau had convictions arising out of six prior fishing incursions into Australian waters. Aruli had convictions arising out of four prior incursions (the first as a child) and La Nunu had convictions arising out of three prior incursions. For various previous offences, bonds to be of good behaviour, fines and, in the case of La Bau and La Nunu, imprisonment had been imposed.

In passing sentence the learned Magistrate remarked that the case seemed to him to be particularly serious in that a large number of the defendants convicted before him had multiple prior convictions. He made particular reference to the situation with respect to the appellant La Bau. Whilst his Worship recognised the economic imperative which he thought might have been causally related to the breach of Australian law, and he noted the early pleas of guilty and co-operation with the Australian authorities, he described the offences as serious because of the depth of the incursion into Australian waters, an incursion deliberately made for commercial fishing purposes. His Worship thought, without doubt correctly in my opinion, that deterrent sentences were called for, not only having regard to the seriousness of the particular offences and the antecedents of some of the offenders, including the appellants, but also because of the prevalence of such offending generally. Situated where he was in Broome, his Worship would of course be well placed to arrive at a proper appreciation of the latter aspect.

His Worship relied for guidance upon previous unreported decisions of this Court, particularly the decision of the Full Court in Arifin v Ostle, unreported; FCt SCt of WA; Library No 8923; 18 June 1991. In that case the Court was concerned with the circumstances in which a fine might be imposed for such offences upon a defendant who was without the means to pay and might therefore be expected to serve a period of imprisonment in default of payment. Pidgeon J, with whom Franklyn and Walsh JJ agreed, observed that when a fine was to be imposed by way of penalty, it had to be proportionate to the seriousness of the offence and the circumstances of the offender. His Honour recognised that a fine ought not ordinarily to be imposed unless the offender has the means to pay because otherwise to impose the fine is in truth to imprison through the back door. But the penalty of imprisonment was not open under the Act with which the Court was there dealing. It is the same in this case. That being the case, it was appropriate for the learned Magistrate to be guided by the view expressed by Pidgeon J at 25 of the reasons:

"...that where the only option open is a fine and where the option such as a bond is otherwise excluded by the facts of the case, then the fine must reflect the gravity of the offence and must be imposed even though it is known that the defendant will serve a default term by reason of his not being permitted to be in the jurisdiction in order to pay the fine by other means."

The latter is of course a reference to the Migration Act s198(5) which requires persons such as these appellants to be repatriated to their country of origin as soon as reasonably practicable.

It is evident that the learned Magistrate regarded La Nunu as marginally the least serious offender among the three appellants. He was fined $12,500 and was ordered to be imprisoned until the fine was paid, provided that the term of imprisonment was not to exceed 250 days. Aruli was fined $15,000. Again an order was made for his imprisonment until the fine was paid or for not more than 300 days. La Bau was clearly regarded as the most serious offender before the Court. His Worship said that he had no doubt that La Bau was unrepentant. Although aware of the consequences of detection he made a commercial decision to come illegally to Australian waters. He had not been deterred by previous punishment, including a term of imprisonment. In his case a global fine of $20,000 was imposed for the two offences and he also was ordered to be imprisoned until the fine was paid, but for no longer than 400 days.

It is apparent that in making the default order in that form in each case, his Worship relied upon the Sentencing Act 1995 (WA) s58. Specifically in relation to the case before him, s58(1)(b) provides that where a fine is imposed and the court is satisfied that the offender is about to leave the State and that his absence would defeat or materially prejudice the operation of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) then, by s58(2) the court is empowered to make an order in the form employed in this case, the maximum period of imprisonment being set by the court. By s58(3) that period may not be longer than two years and under s58(6) service of that period discharges the offender from the obligation to pay the fine. So if s58 was available in this case it was appropriate to use it because as I have noted, under the provisions of the Migration Act authorising the detention of the appellants, they were to be returned to Indonesia "as soon as reasonably practicable".

By the Crimes Act 1914 (Cth) s15A(1), in respect of the punishment to be imposed for a federal offence in any State or Territory, the laws of that State or Territory "with respect to the enforcement and recovery of fines" apply to persons convicted in the State or Territory of a federal offence, including "the awarding of imprisonment ... in default of the payment of fines", "so far as those laws are applicable and are not inconsistent with the laws of the Commonwealth". As has been seen, the application of the Sentencing Act s58 to the cases of these appellants is undoubted. The only question then is one of inconsistency with the laws of the Commonwealth. In other words, there being no applicable Commonwealth law concerned with the enforcement of the payment of fines imposed for federal offences in Western Australia, the laws of this State have application subject only to inconsistency with any Commonwealth law. As has been seen from the quotation of the third ground of appeal, the inapplicability of s58 by reason of its inconsistency with Commonwealth law is the central thrust of the appellants' case on appeal.

However, before turning to that issue it will be convenient to deal firstly with grounds 1 and 2. I commence with the more limited proposition expressed in ground 2. I would not allow the appeal on this ground. The exchange of which it complains occurred between the learned Magistrate and prosecuting counsel prior to sentence being passed. There is no indication that anything said by his Worship at that time had any effect upon the form or severity of his sentence or the order of imprisonment made by way of its enforcement. Indeed, his Worship concluded his remarks with the observation that the capacity of Indonesian nationals to use money received while in custody in Australia to purchase goods which might be sold in Indonesia so that the proceeds could be used to finance fishing trips was "a matter for the authorities", the implication being that his Worship recognised that it was not a matter for him to attempt to rectify, if it was occurring, in the course of sentencing any particular offender.

The more generally expressed ground directed to the proposition that the sentences passed were manifestly too severe is ground 1. Again, in the circumstances as I have reviewed them above, it seems to me that having regard to the maximum penalty available, the seriousness of the offences, the history of these offenders and what I consider to be the incapacity of their co-operation with the Australian authorities and their early pleas of guilty to substantially ameliorate the severity of the penalty to be inflicted, no matter was raised in support of this ground which would entitle the court to conclude that the penalties inflicted were so severe as to require the intervention of this Court. I have dealt already with the court's obligation in relation to penalty where a fine is the only appropriate penalty and the defendant has a perceived incapacity to pay anything other than a nominal amount. I would not uphold the appeal on this ground.

Turning then to ground 3, the argument is presented in the following way. The offences defined by the Fisheries Management Act ss100 and 101 are offences committed within the Australian Fishing Zone as defined by s4(1) of that Act. As so defined, the Zone does not include coastal waters of a State or Territory which for present purposes, under s5, is the territorial sea. Otherwise, however, the Australian Fishing Zone is co-extensive with the "exclusive economic zone" of the seas adjacent to the coast of Australia. That is an expression which takes its meaning from the Seas and Submerged Lands Act 1973 (Cth).

The preamble to that Act includes the assertion that Australia has sovereign rights in respect of the waters, sea bed and sub-soil constituting the exclusive economic zone of Australia and it is asserted that Australia has, apart from various enumerated matters, "other rights and duties in relation to the exclusive economic zone provided for in the United Nations Convention on the Law of the Sea". Parts II, V and VI of that Convention are a schedule to the Act. Section 10A provides simply that:

"It is declared and enacted that the rights and jurisdiction of Australia in its exclusive economic zone are vested in and exercisable by the Crown in right of the Commonwealth."

By that means, it is argued, Australian law has enacted the United Nations Convention on the Law of the Sea subject to the limitations contained therein. Articles 55 and 56 of the Convention assert the rights and jurisdiction of the coastal State and other States subject to the relevant provisions of the Convention.

The enforcement of the laws of the coastal State is dealt with in Article 73. Of specific relevance to this case, it is said, is para 3 which is in the following terms:

"Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment."

It is said that Australia and Indonesia have not agreed to include imprisonment in such penalties. Therefore, so far as the Crimes Act s15A applies State law, it is argued that it may not apply the Sentencing Act s58 insofar as it provides for imprisonment because to do so would be to apply a law in terms inconsistent with a Commonwealth law in the form of Article 73 of the Convention as enacted by s10A of the Seas and Submerged Lands Act. In terms of s15A itself, it is argued, the Sentencing Act s58 may not be so applied in a manner which would be inconsistent with Commonwealth law. For that reason it is submitted that the award of imprisonment to be served unless and until the fines were paid is contrary to law and must be set aside.

To my mind there are two compelling answers to those submissions. In the first place s10A of the Seas and Submerged Lands Act has not enacted Article 73 of the Convention. It is accepted that the mere fact that Australia has entered into, or ratified, a treaty or other international convention, does not make it part of Australian domestic law. An Act of the Australian Parliament incorporating a convention into the Law of Australia is required: Bradley v The Commonwealth [1973] HCA 34; (1973) 128 CLR 557, 582-3. Whether such an Act has that effect is simply a matter of statutory interpretation in the ordinary way.

Section 10A is directed to declaring the sovereignty of the Crown in right of the Commonwealth of Australia over the exclusive economic zone as defined. It does that by vesting the rights and jurisdiction of Australia in the Crown. The fact that in the preamble to the Act, the justification given for that enactment is the possession by Australia of rights and duties in relation to the exclusive economic zone as provided for in the United Nations Convention on the Law of the Sea is insufficient to justify an interpretation of s10A, when it refers to the rights and jurisdiction of Australia in the exclusive economic zone, as incorporating into domestic law all the scheduled provisions of the Convention.

However, if I am wrong about that, the second reason which precludes acceptance of the argument advanced by the appellants is the simple proposition that in my opinion, there is no inconsistency between the application to this case of the provisions of the WA Sentencing Act s58 by the Commonwealth Crimes Act s15A and the terms of Article 73 of the Convention. In my opinion, the penalties provided by Commonwealth law for the relevant offences against the Fisheries Management Act are the fines. The Crimes Act s15A applies State laws "with respect to the enforcement and recovery of fines" including imprisonment in default of payment.

The WA Sentencing Act s58 is such a provision. To apply it is not to provide a penalty which includes imprisonment. The penalty is the monetary penalty. The enforcement of its payment may be avoided by paying the penalty. In that way it is demonstrated that any imprisonment suffered is not by way of the imposition of a penalty but by way of the ordinary process of providing sanctions to enforce compliance with the law. In my view there is no relevant inconsistency within the terms of the Crimes Act s15A(1).

For those reasons, in my opinion, these appeals should be dismissed.

Submerged Lands Act 1973

United Nations Act 1945(Cth)

Interpretation Act 1901

Penalties and Infringement Notices Enforcement Act 1994

Aruli v Christopher Ralph Mitchell & Ors [1999] WASCA 1042

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Aruli v Christopher Ralph Mitchell & Ors [1999] WASCA 1042 (31 March 1999)

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