High Court of Australia|1972-12-07|Before: Forster J

Cheatley v R [1972] HCA 63; (1972) 127 CLR 291 (7 December 1972)

CHEATLEY v. THE QUEEN [1972] HCA 63; (1972) 127 CLR 291

Barwick C.J.(1), McTiernan(2), Menzies(3), Walsh(4) and Mason(5) JJ.

Sydney, 1972, November 15, 16; December 7. 7:12:1972

APPEAL from the Supreme Court of the Northern Territory.

BARWICK C.J. A magistrate in Darwin on 26th September 1972, upon the foreign boat within the meaning of the Fisheries Act 1952-1970 (Cth) (the Act), of having used that boat for fishing in an area of proclaimed waters in a declared fishing zone, contrary to the provisions of s. 13AA (1) (a) of the Act, and also with having aided and abetted the commission of the same offence by Su Tien Seng, the master of another such foreign boat, contrary to the same statutory provision, having regard to s. 5 of the Crimes Act 1914-1966 (Cth). The magistrate imposed a fine of fifty dollars in respect of the first offence but imposed no pecuniary penalty in respect of the second offence. But, in addition, exercising the power given to him by the section, he ordered that the boat of which Tan Gee Ou was the master, described as boat no. 21 Yung Yuan, along with its equipment, contents and any fish found upon it be forfeited to the Crown. (at p294)

2. Thereafter, on 23rd October 1972, on the application of Yung Yuan Ocean Enterprising Co. Ltd., the owner of boat no. 21 Yung Yuan, the Supreme Court of the Northern Territory (Forster J.) ordered that a writ of certiorari issue to the magistrate who had made the order of forfeiture and who was a respondent in the proceedings in the Supreme Court, to remove to the Supreme Court his order of forfeiture, that the writ together with the order of forfeiture be returned to that Court at or before noon on Thursday, 26th October 1972 and that upon such return the order of forfeiture be quashed without further order. (at p294)

3. The present appellant on the same day, 23rd October, lodged a notice of motion for special leave to appeal to this Court against the order of the Supreme Court for the issue of the writ of certiorari and also lodged a notice of appeal therefrom. An order of this Court made the same day, following upon the lodgement of the said notices, and extended in operation by a later order, stayed all proceedings upon the order of the Supreme Court until the disposal by this Court of the proceedings commenced by such notices. Thus, the writ and the order of forfeiture have not as yet been returned to the Supreme Court. (at p294)

"13AA. (1.) A person shall not, in an area of proclaimed

waters comprised in the declared fishing zone -

(b) have a foreign boat for fishing in his possession or in his

charge,

unless that boat is licensed under this Act, in his name or in

the name of a person on whose behalf he is acting, for use in

fishing in that area.

(2.) A reference in paragraph (b) of the last preceding subsection

to a foreign boat shall be read as not including a reference

to a foreign boat if -

(a) the nets, traps and other equipment for the taking of fish

belonging to the boat are stowed and secured ; and

(b) the work of cutting up, dismembering, cleaning, sorting

or packing fish is not being carried out on the boat.

(3.) A person who contravenes sub-section (1.) of this section

is guilty of an offence punishable -

(a) upon summary conviction - by a fine of not more than

One thousand dollars or imprisonment for a period of not

more than six months, or both ; or

(b) upon conviction on indictment - by a fine of not less than

One thousand dollars and not more than Ten thousand

dollars or imprisonment for a period of not more than

twelve months, or both,

and, if the court so orders, by the forfeiture of any boat used

in the commission of the offence and its equipment and contents

(other than the personal effects of members of the crew) and

any fish found on the boat or the proceeds of the sale of any

such fish.

. . ." (at p295)

5. We are not here concerned with the validity of the conviction of the master : there was a plea of guilty to the charges laid and no challenge is made to the power of the magistrate to convict. The Supreme Court, as the ground for the issue of the writ of certiorari, held that the magistrate had no power to make the order for forfeiture. The reason given was that upon the construction of s. 13AA adopted by the Supreme Court the magistrate could only make an order for forfeiture if the making of such an order was a punishment of the offender, that is, a punishment of the master of the foreign boat. "Without the aid of authority" said the learned judge constituting the Supreme Court, "I have reached the conclusion that since forfeiture is treated as a punishment the learned stipendiary magistrate had no power to impose a forfeiture which was not a punishment of the convicted persons before him", and again, "I conclude that as s. 13AA is drawn the learned stipendiary magistrate had power only to punish the captain by way of fine or imprisonment and had no power to order forfeiture." (at p295)

6. The reasoning which led the Court to this conclusion was that, because of the use of the word "punishable" in the expression "is guilty of an offence punishable" in the section, and the presence there of "by" in the expression "and if the court so orders, by the forfeiture . . ." the authority the section gives is limited to the infliction of what in the circumstances amounts to punishment. It is then said that it cannot be, or at any rate is not, a punishment of the master to forfeit the boat of which he is neither the owner in whole nor in part. I am not clear as to the full import of this submission. It may be that it means that the power to order forfeiture can never be exercised unless the owner, or at least a person having some proprietary interest in the boat, is the person convicted of a contravention of the section or it may mean that, whoever the convicted person may be, the order of forfeiture may only be made if in fact upon the evidence before him the magistrate can properly conclude that the making of the order of forfeiture would be punitive of the offender. But, however the submission be regarded, it must, in my opinion, involve a departure from the actual language of the section and require some implication. The section is universal in its scope as to the persons upon whom its prohibitions are placed. It opens with the words "a person", without qualification. Its specification of what may not be done clearly includes acts which need not necessarily and indeed usually will not be done by the owner of a foreign fishing boat. Such a boat is by definition a boat owned by a person not resident, or a company not incorporated, in Australia or in a territory of Australia. The evident purpose of the section is to protect Australian fishing grounds from exploitation by the use of foreign boats without the permission of an Australian official. (at p296)

7. For the offence the section creates to have been committed, the foreign boat must have been intruded into and used for fishing in the proclaimed waters on a declared fishing zone. If that intrusion and use is deliberate the likelihood of it being done without the complicity of the owner of the boat must be small. If it is accidental that circumstance will be weighed in the exercise of any available discretion. (at p296)

8. The protection of the fishing grounds of the nation from foreign exploitation is somewhat akin to the protection of the country from smuggling. Drastic action in protection of the country's interests in each instance may be regarded as warranted, indeed, if not to be expected : each is an area where pecuniary penalties are unlikely to provide an adequate protection. (at p296)

9. In construing the section we are seeking the Parliament's intention. The submission thus must be that the Parliament intended that the discretionary power of forfeiture given to the court of summary jurisdiction to order the forfeiture of the foreign boat used in the commission of the offence was given only in cases where either the owner was the person who used it in contravention of the section or where the court of summary jurisdiction had before it evidence which satisfied it that to forfeit the boat would constitute a punishment of the offender. That intention can only be found, if at all, by implication of some qualifying words or by the use of the word "punishable". The whole argument is sought to be founded upon the circumstance that the draftsman in this case departed from the more common form of nominating a penalty in federal legislation. (at p296)

10. Section 13 of the Act illustrates the more usual form of specification of a penalty. In that case, the penalty for breach of a not dissimilar offence is expressed at the foot of the section to be

"Penalty : One thousand dollars and, if the court so orders,

the forfeiture of any boat, net, trap or equipment used in the

commission of the offence or any fish taken, cut up or

dismembered in contravention of this Act or the proceeds of the

sale of any such fish". (at p296)

11. Section 41 of the Acts Interpretation Act 1901-1966 (Cth) expands the brief announcement of the penalty at the foot of a section. It provides that the penalty, pecuniary or other, set out at the foot of any section of any Act shall indicate "that any contravention of the section . . . whether by act or omission, shall be an offence against the Act, punishable upon conviction by a penalty not exceeding the penalty mentioned". It is, in my opinion, plain to demonstration that the power to forfeit a boat, net, trap or equipment used in the commission of an offence under s. 13 is not confined to the forfeiture of any boat, net, trap or equipment the property of the person who committed the offence. Such a forfeiture under s. 13, using the terms of s. 41 incorporated into the section, is regarded as a punishment of the offender. The offence is regarded as "an offence punishable" by the imposition of what is called the penalty at the foot of the section, including the making of an order for forfeiture. (at p297)

12. In the case of s. 13AA, the Parliament has expressed in the section the words of s. 41 of the Acts Interpretation Act, that is to say, it says expressly and not relying on s. 41 that a contravention of the section shall be the commission "of an offence punishable" upon conviction by the penalty which may include the forfeiture of the boat used in the commission of the offence. Just as s. 41 expands the nomination of the penalty at the foot of the section into a statement that breach of the section involves the commission of an offence punishable by the stated penalty, so in the case of s. 13AA it is said that a contravention of the section is a commission of an offence punishable by the stated penalty. Where the Parliament has expressed the penalty for the offence by mere nomination in brief at the end of a section, it is not for the courts to decide whether the penalty chosen by the Parliament is a punishment. That is a matter for the legislature. In my opinion, the same is true in the case of a section which sets out the terms which would otherwise be imported by s. 41. Indeed, in my opinion, the situation of the two sections is precisely the same. The Parliament has chosen the orders which it will empower the magistrate or other tribunal to make consequential upon the commission of the offence. Those orders, when made, are the penalty. Neither the use of the word "punishable" in s. 41 or in s. 13AA to describe the offence or its consequences provide an occasion or warrant for the courts to examine the question whether any order which the Parliament authorises the convicting tribunal to make is in truth punitive of the offender either in general or in particular. I am unable to discern in the use of the word "punishable" in s. 13AA any intention on the part of the Parliament to qualify the discretionary power of the convicting magistrate to order forfeiture which it has expressly given him. (at p298)

13. It was submitted that the terms of the section in relation to the power of the magistrate to order forfeiture were ambiguous and that in choosing between possible constructions the Court should not give the section a meaning which would authorize the forfeiture of property of a person who had not committed any offence by a process which did not require notice to be given to the person whose property was being brought into jeopardy. Of course, in the case of ambiguity, where two equally possible constructions might be placed upon legislative expressions the Court would naturally incline to accept that construction which did not infringe the rules of natural justice. In other words, it would not attribute to the legislature an intention, as in the case of the present section, either to forfeit the property of a person who was innocent of wrong-doing or who was not given any notice of proceedings which might end in that forfeiture. But, in my opinion, there is no ambiguity whatever in the instant section. I have already indicated why I think that the description of the offence as an offence punishable by the prescribed penalty does not give colour to the view that that penalty can only be exacted if in some way it can be seen to be punitive of the person affected by the order made pursuant to the section. I find the section unambiguous in the use of expressions well known, if in no other case, by their employment in s. 41 of the Acts Interpretation Act. (at p298)

14. A question was raised whether the appellant needed special leave to appeal having regard to the fact that the proceedings before the magistrate were criminal proceedings. But the application for a writ of certiorari was not a continuation of the magistrate's proceedings. It was an independent proceeding initiated in the Supreme Court to invoke the exercise of its supervisory jurisdiction to keep inferior tribunals within the limits of jurisdiction. Such a proceeding is not in its nature, in my opinion, a criminal proceeding and does not become such because the tribunal, the limits of whose jurisdiction is to be examined, is a tribunal exercising a criminal jurisdiction. Whether or not an appeal lay as of right from the order of the Supreme Court directing the issue of the writ of certiorari must depend, in my opinion, on whether that order, which was clearly final, involved "directly or indirectly any claim, demand, or question, to or respecting any property . . . amounting to or of the value of Three thousand dollars" : s. 35 (1) (a) (2) of the Judiciary Act 1903-1969 (Cth). There was evidence before the Court that boat no. 21 Yung Yuan was worth more than that sum. The question before the Supreme Court was whether the order for the forfeiture of that boat was valid. Each party, the applicant and the respondent representing the Crown, in substance claimed the property in the boat, the one because, the order being invalid, he had not been deprived of that property, and the other because the order was valid. An order resolving the question of validity by the grant or refusal of a writ of certiorari to quash can, in my opinion, properly be said to involve at least indirectly a claim to, or a question respecting, property of the required value. In my opinion, the appeal was competent but, as other members of the Court either may not wish to decide that question or may disagree with my view, I would be prepared to join in the grant of special leave to appeal. (at p299)

15. A further submission was made that natural justice required the magistrate, before exercising the power to order forfeiture of the boat, to give notice to the owner of the boat. In my opinion, there is no substance in this submission. The statute describes the proscribed acts for which it imposes penalties. Of course, those who do the acts must be notified and have the rights of defendants or accused persons. The penalty of forfeiture of the boat is, in my opinion, part of the penalty for the offence. There is no room, in my opinion, for any requirement to be imposed by the Court by way of construction of the section or otherwise which would require the prosecutor or the magistrate to give the owner any notice of the pendency of the charge or which would require the magistrate to give notice of his intention to consider whether he should impose the penalty of forfeiture. The only persons required to be notified are the persons charged with the offence. (at p299)

16. In my opinion, the Supreme Court of the Northern Territory was in error in construing the section in such a fashion as to deprive the magistrate in this case of jurisdiction to order the forfeiture of the boat used by the person whom the magistrate convicted of a breach or breaches of s. 13AA of the Act. (at p299)

17. Certiorari to quash was, in my opinion, a proper remedy to be sought if in truth the magistrate had no jurisdiction to order forfeiture. Section 164 of the Justices Ordinance 1928-1961 (N.T.) is, in my opinion, clearly directed only to certiorari to rehear, that is to say, it prevents any appeal or procedure analogous to an appeal by way of certiorari. In my opinion, the section does not preclude the issue by a competent court of certiorari to quash for want or excess of jurisdiction - see, for example, Colonial Bank of Australasia v. Willan (1874) LR 5 PC 417 . Further, in my opinion, the applicant in this case was a proper party to seek certiorari to quash. (at p299)

18. In my opinion the appeal should be allowed. The order made by the Supreme Court for the removal of the record of these convictions into the Supreme Court with a view to the quashing of the order of forfeiture made by the magistrate should be set aside. (at p300)

19. The masters of three other foreign boats were also convicted by the magistrate of similar offences, and orders for forfeiture of the boats and equipment used by them were also made. There were similar applications to the Supreme Court and orders for certiorari were made by that Court in each matter; all four matters being heard together in that Court with the concurrence of the parties. (at p300)

20. In this Court all four matters were argued together. The cases are indistinguishable and, accordingly, the reasons I have expressed in the abovenamed case apply to the other cases. The appeals in these cases should be allowed. (at p300)

McTIERNAN J. The determination of each appeal depends entirely on s. 13AA of the Fisheries Act 1952-1970 (Cth). It is convenient for me, and I think sufficient to deal with the order of forfeiture of boat no. 21 Yung Yuan etc. of which the respondent, Yung Yuan Ocean Enterprising Co. Ltd. complains. The forfeiture in question was ordered in pursuance of the terms of sub-s. (3), upon conviction of a person charged with an offence against sub-s. (1) (a). The boat, the subject of the forfeiture, was used by the offender in the commission of the offence. He was not the owner of the boat. The attack on the order of forfeiture is based on this fact. (at p300)

2. First, it is said that forfeiture is not punishment in the case of an offender who is not the owner of the boat used in the commission of the offence of which he is convicted. Punishment includes a penalty occasioning retributive loss of the possession or use of property imposed by a court of justice on a convicted offender. In my opinion therefore, even though the convicted person was not the owner of the boat in question, the forfeiture of it to the Crown in right of the Commonwealth was punishment of that person, authorized by sub-s. (3). It follows that no implication can be drawn from the provision for forfeiture upon conviction that "a person" in sub-s. (1) of s. 13AA means a person who is the owner of a "foreign boat". (at p300)

3. Next, it is said, that where the person convicted of an offence against sub-s. (1) is not the owner of the offending boat, it is contrary to law and natural justice to order the forfeiture of the boat without hearing the owner or giving him an opportunity to be heard. In my opinion, the stipendiary magistrate constituting the court of summary jurisdiction which made the order of forfeiture in question, proceeded, in making the order, strictly in accordance with the provisions of s. 13AA. The subject matter of the section and its express words admit of no implication that the power given by sub-s. (3) to the court to make an order of forfeiture is exercisable in proceedings, other than proceedings in respect of an offence against s. 13AA, to which only the informant and the defendant are the parties. There is no room for implying any provision in the section making the owner of the offending boat a necessary party where he is not the person charged with the commission of the relevant offence against the section. (at p301)

4. The appeals should, in my opinion, be allowed, the orders granting certorari should be discharged and the orders of forfeiture affirmed. (at p301)

MENZIES J. These matters were heard together and can be disposed of together. (at p301)

2. The masters of four foreign fishing boats were each charged with using and aiding and abetting the use of a foreign fishing boat for fishing in an area of proclaimed waters comprised in a declared fishing zone contrary to s. 13AA of the Fisheries Act 1952-1970 (Cth). Each information was, with the consent of the defendant, heard and determined summarily by a stipendiary magistrate sitting in Darwin. Each defendant pleaded guilty and was convicted and fined $50.00. The magistrate described these fines as "personal penalties". His Worship then, in purported exercise of the power conferred by s. 13AA (3) made in each case an order for forfeiting the boat which the defendant was convicted of using in the commission of the offence. One such order was as follows:

"THE COMMONWEALTH OF AUSTRALIA FISHERIES ACT

1952-1968 ORDER FORFEITING BOAT

WHEREAS TAN GEE OU of Darwin in the Northern Territory

of Australia was convicted before me, the undersigned Stipendiary

Magistrate for the said Territory on the 26th day of

September, 1972, for that he did use a foreign boat for fishing

in an area of proclaimed waters in the declared fishing zone

AND FURTHER the said TAN GEE OU aided, abetted, counselled

or procured or by act or omission was directly or indirectly

knowingly concerned in or party to the commission of the

offence of using a foreign boat for fishing in an area of proclaimed

waters in the declared fishing zone by SU TIEN SENG. Contrary

to Section 13AA (1) (a) of the Fisheries Act 1952-1970.

UPON SUCH CONVICTIONS the said TAN GEE OU was fined for

his first offence in the sum of $50.00, together with costs of

$1.50 and in default of payment to be imprisoned for a period

of 26 days with hard labour. For his second offence he was

convicted without penalty.

IT IS ORDERED that the boat No. 21 Yung Yuan, its equipment,

contents and any fish found upon it, is forfeited to the Crown.

DATED at Darwin in the said Territory, this 26th day of

September, 1972.

3. To explain the making of the aforesaid orders, the magistrate said:

". . . I believe the primary purpose of the penalties imposed

by the Act is to deter as far as possible other persons from

embarking on a similar enterprise. In my view it was no

accident that four Taiwanese vessels found themselves in the

same place at the same time engaged in the business of fishing.

And, as Mr. McGregor says, this seems to predicate some

organized plan on the part of either the captains or the

companies involved. It seems clear that the companies are aware

of the risks run by the captains and it would seem to me that

this enterprise that we are discussing today was a calculated

risk and it seems only proper that the companies involved

should bear the burden of the penalty as they would appear

to exact the majority of the profit.

The boats Lan Yang no. 1 and no 2 and the boats no. 21

and 22 Yung Yuan, their equipment, contents and any fish

found upon them are forfeited to the Crown." (at p302)

4. The owners of the boats so forfeited, Lan Yung Enterprising Co. Ltd. and Yung Yuan Ocean Enterprising Co. Ltd., thereupon sought certiorari from the Supreme Court of the Northern Territory to quash the orders for forfeiture. In each case the result was the removing and quashing of the order for forfeiture. Appeals against the orders lie either as of right pursuant to s. 46 (1) (a) of the Northern Territory Supreme Court Act, or by special leave pursuant to s. 47 (2). If special leave is necessary, it should be granted. Perhaps the better course is simply to treat the appeals as appeals in a criminal matter and to grant the special leave that has been sought. Such orders, even if unnecessary, do no more than establish the jurisdiction of this Court to hear the appeals. (at p302)

5. For the appellant, it was objected that the proceedings in the Supreme Court for certiorari were misconceived. However, as I have no doubt that if the orders for forfeiture ought not in law to have been made by the magistrate, the owners of the boats so wrongly forfeited have some redress, and as I do regard proceedings for certiorari as a most suitable procedure for granting them redress if there has been such error, I would not give effect to the objection of the appellant. It seems to me that the question is really one of the jurisdiction conferred by s. 13AA and if there has been excessive jurisdiction certiorari lies and so lies, notwithstanding s. 164 of the Justices Ordinance 1928-1961 which, in some cases, would prevent the removal into the Supreme Court by certiorari of orders made by magistrates under that Ordinance. (at p303)

6. The real problem as I see it is the extent of the power to order forfeiture conferred by s. 13AA (3). For the appellant, it is contended that it is a power which can be exercised in any case where a person is convicted of the offence of using a foreign boat for illegal fishing. For the respondents, it is contended that the power to order forfeiture is limited to cases where the convicted offender is punished by the operation of an order for forfeiture, i.e. by the transfer of the property of the boat in question from the owner to the Crown. I find it convenient in writing to treat the problem of construction as if each boat only had been forfeited, notwithstanding that each order for forfeiture extends to the boat, its equipment, contents, and any fish upon it. (at p303)

7. It is not in doubt that by a properly framed provision, the Parliament of the Commonwealth could provide for the forfeiture of a boat used for the commission of an offence against the Act, notwithstanding that the offender was not the owner of the boat. The question is whether, by s. 13AA, Parliament has done so. In considering this narrow question, I gain no assistance from an examination of the forfeiture provisions of other Acts or indeed of other forfeiture clauses to be found in the Fisheries Act itself. Such other provisions do not help me to ascertain what the words of s. 13AA mean. Furthermore, as the question does not relate to the extent of legislative power but merely to the exercise of admitted power in particular terms, this case is not, I think, complicated by any consideration of general legislative practice. (at p303)

8. The case for the respondents' limited construction of the section depends entirely upon the circumstances that the word "punishable" in the opening words of s. 13AA (3) governs the words "by the forfeiture of any boat used in the commission of the offence" in the closing words of the sub-section. It is then asked how can the offence of one person be punished by the forfeiture of a boat belonging to another person? (at p303)

9. It may, of course, be acknowledged that to forfeit the boat of an owner may involve those who live or work upon it in unpleasant consequences and, if it be that the forfeiture ordered is due to the offence of some person upon the boat, that person's loss of habitation and transport and the fact that he may be exposed to discipline by the owner, could properly be said to be due to his own fault. Such consequential loss, however, is not punishment for the commission of an offence. Accordingly, it seems to me, that the question of the construction of the section is not to be answered by any speculation upon the consequences of the forfeiture to any person other than the owner of the property who loses his title to the Crown. (at p304)

10. If, then, it is only a forfeiture which itself punishes an offender which is authorized by s. 13AA, the magistrate here was in error and the Supreme Court was right. Clearly enough, the magistrate made the order for forfeiture to punish the owners of the boats rather than the masters who had committed the offences in using the boats as they did. The language that I have already quoted makes this clear. (at p304)

11. The basic problem, therefore, as I see it, is whether a forfeiture which does not itself punish the offender is authorized by the section. (at p304)

12. Not without some hesitation, I have come to the conclusion that it would be attributing too much to the words " . . . punishable . . . by the forfeiture of any boat . . . " to treat them as requiring that a forfeiture can be ordered only when the boat is the property of the offender. I consider that what s. 13AA (3) does is to authorize an order for the forfeiture of a boat used in the commission of an offence by a person convicted for the offence and to do so regardless of the ownership of the boat and yet, nevertheless, to do so as part of the punishment of the offence. I read the section as one providing that every person committing an offence is liable upon a conviction to a fine or imprisonment and authorizing the court to order that the boat used in the commission of the offence be forfeited. I acknowledge that this reading of s. 13AA (3) might be thought to be a free reading, but upon reflection, I find myself unable to adopt a construction which restricts the order for forfeiture to the property of the person convicted. The express exemption of the personal effects of the members of the crew tells against such a construction for, if only what belongs to the offender is subject to forfeiture, this exemption would be unnecessary except to protect the personal effects of a crew-man who was himself the offender - an unlikely subject for special provision. (at p304)

13. The construction of s. 13AA which I have adopted makes it necessary to consider a second argument advanced by counsel for the respondents in support of the decision of the Supreme Court of the Northern Territory. It is that if the section does authorize the forfeiture of goods of persons not convicted of an offence, natural justice requires that no order for the forfeiture should be made without giving the owner an opportunity of being heard. This I cannot accept. If a law provides for the forfeiture of the goods not belonging to the person convicted - as I hold s. 13AA does - and no provision is made for intervention by the owners of the goods liable to forfeiture in criminal proceedings to which they are not party, it seems to me that not only is there no duty resting upon the Court to entertain the representations of such owners, but there is in truth no power to do so. It may be, of course, that a rule of court in common form giving power to join as a party to proceedings persons whose presence before the Court may be necessary to enable the Court effectively and completely to settle all questions arising would serve to authorize the joinder as parties to civil proceedings of persons whose interests would be directly affected by any order that might be made. In criminal proceedings, however, I know of no procedure whereby any person other than the defendant may be joined to enable that third person to oppose either the prosecution or the making of any authorized order which might adversely affect that third person. There are, of course, many cases establishing and illustrating the rule that a party should be heard before a court or a tribunal makes any order to his disadvantage. These cases have no application here where, as I have read the legislation, the forfeiture of the property of persons who are not party to the proceedings is authorized. (at p305)

14. It may be that modern provisions for forfeiture have their roots in the old law of deodand. I quote from Holmes, The Common Law, at pp. 24, 25:

"In Edward the First's time some of the cases remind us of

the barbarian laws at their rudest stage. If a man fell from a

tree, the tree was deodand. If he drowned in a well, the well

was to be filled up. It did not matter that the forfeited

instrument belonged to an innocent person. 'Where a man

killeth another with the sword of John at Stile, the sword

shall be forfeit as deodand, and yet no default is in the owner.'

That is from a book written in the reign of Henry VIII, about

1530. And it has been repeated from Queen Elizabeth's time

to within one hundred years, that if my horse strikes a man,

and afterwards I sell my horse, and after that the man dies,

the horse shall be forfeited. Hence it is, that, in all indictments

for homicide, until very lately it has been necessary to state

the instrument causing the death and its value, as that the

stroke was given by a certain penknife, value sixpence, so as

to secure the forfeiture. It is said that a steam-engine has been

forfeited in this way."

Holmes then goes on to illustrate how this concept of the liability of inanimate objects was adopted by the Courts of Admiralty and has survived in the law of shipping. (at p305)

15. In looking at the old law, I have found nothing to suggest that in ancient times the law permitted representation by the person whose property was deodand, although the development in Admiralty whereby proceedings were later against a ship itself provided a ready means of giving representation to those connected with the ship. However, to decide that in such a case as the present, an owner in proceedings against others must have the opportunity of being heard before an order is made for the forfeiture of his ship would be to impose an unexpressed limitation upon the statute. (at p306)

16. For the foregoing reasons, I would allow the appeals and restore the orders for forfeiture made by the magistrate. (at p306)

WALSH J. In the reasons for judgment of Menzies J. an account is given of the facts and of the proceedings in the Northern Territory in consequence of which these matters have come before this Court. Therefore, I may proceed immediately to consider the principal question which the Court has to decide, which is a question as to the proper construction of sub-s. (3) of s. 13AA of the Fisheries Act 1952-1970 (Cth) (the Act). Section 13AA is in the following terms:

"(1) A person shall not, in an area of proclaimed waters

comprised in the declared fishing zone -

(b) have a foreign boat for fishing in his possession or in

his charge,

unless that boat is licensed under this Act, in his name or in

the name of a person on whose behalf he is acting, for use in

fishing in that area.

(2) A reference in paragraph (b) of the last preceding

sub-section to a foreign boat shall be read as not including a

(a) the nets, traps and other equipment for the taking of fish

belonging to the boat are stowed and secured ; and

(b) the work of cutting up, dismembering, cleaning, sorting

or packing fish is not being carried out on the boat.

(3) A person who contravenes sub-section (1) of this section

is guilty of an offence punishable -

(a) upon summary conviction - by a fine of not more than

One thousand dollars or imprisonment for a period of not

more than six months, or both ; or

(b) upon conviction on indictment - by a fine of not less than

One thousand dollars and not more than Ten thousand

dollars or imprisonment for a period of not more than

twelve months, or both,

and, if the court so orders, by the forfeiture of any boat used

in the commission of the offence and its equipment and contents

(other than the personal effects of members of the crew) and

any fish found on the boat or the proceeds of the sale of any

such fish.

(4) Subject to the next succeeding sub-section, an offence

against this section may be prosecuted either summarily or

upon indictment, but an offender is not liable to be punished

more than once in respect of the same offence.

(5) Proceedings in respect of an offence against this section

shall not be heard and determined summarily except with the

consent of the defendant".

It is to be noticed that the only person who is declared by the section to be guilty of an offence is a person who contravenes sub-s. (1) thereof. Although in sub-s. (3) the word "punishable" qualifies the word "offence" and not the word "persons", it is obvious that it is a person (not an offence) who is capable of being punished. This is recognized in sub-s. (4) in the provision that "an offender" is not liable to be punished more than once in respect of the same offence. (at p307)

2. The question for decision is whether the Court is empowered by sub-s. (3) to make an order for forfeiture of the property therein described or some part of it which will divest property from a person who has not been charged with or convicted of any offence against the section. In my opinion, that question should be answered in the negative. The sub-section gives a discretion to the court before which there has been a conviction for an offence to include, in the punishment which it imposes in respect of the offence, the forfeiture of property. But in my opinion, it confers no power to make an order for forfeiture other than an order which operates, solely and directly, as a part of the punishment imposed upon an offender who has committed an offence. An order which divests property from some other person and vests it in the Crown cannot be regarded, in my opinion, as such an order, whether or not the making of the order happens to have some consequences which are detrimental to the offender himself. (at p307)

3. The conclusion which I have stated appears to me to be required by the language of the provision. It does not depend upon reading additional words into the sub-section in order to confine its operation to property of which the person convicted is the owner. That limitation is contained in the words that are used in the sub-section, which provides that the offence is "punishable" by forfeiture. (at p307)

4. The question is not, of course, a question as to whether the Parliament could have enacted either that a boat or other property connected in some way with the commission of an offence should be forfeited or that such property might be forfeited at the discretion of a court. In other enactments provisions of that kind have been made. Examples are provided by ss. 228, 229 and 262 of the Customs Act 1901-1971 (Cth). Such enactments are within the power of the Commonwealth Parliament, whether or not persons innocent of any offence or of complicity in any offence are thereby deprived of property and the power to enact them is not limited by s. 51 (xxxi.) of the Constitution : see Burton v. Honan [1952] HCA 30; (1952) 86 CLR 169 and Forbes v Traders Finance Corporation Ltd.(1971) [1971] HCA 60; 126 CLR 429 (at p308)

5. The circumstances that such extensive legislative powers exist and that they have been exercised in other enactments do not provide any warrant for approaching the question of construction in the present case with any presupposition that probably the Parliament intended to achieve the same result in this enactment, so as to ensure so far as it could the strict observance of a law which may be difficult of enforcement in the absence of stringent provisions to support its administration (see Burton v. Honan (1952) 86 CLR, at p 179) On the contrary, a law should be interpreted as accomplishing such a drastic result as the forfeiture of a person's property without proof of any offence, without compensation and without an opportunity to contest the legality or the propriety of the forfeiture, only if the language of the enactment expresses clearly the intention to do so. In my opinion, the provision here under consideration does not disclose clearly that intention, but on the contrary, is inapt to express it. (at p308)

6. I do not regard the exception which is made in sub-s. (3) of "the personal effects of members of the crew" as providing a sufficient reason against the construction which I have adopted. That construction does not deprive the excepting provision of any operation, since members of the crew could themselves be guilty of the offence of using a foreign boat for fishing. (at p308)

7. I am of opinion therefore that the decision of the Supreme Court of the Northern Territory that the magistrate had no power to make the orders of forfeiture was correct. (at p308)

8. It has been submitted upon a number of grounds that in any event the remedy of certiorari was not available in the circumstances of this case. In my opinion these submissions should not be accepted. I do not propose to discuss them in detail. Some of them are based upon principles which have no application to a case in which there has not been a mere error of law by a Magistrate affecting the making of an order which he had power to make, but there has been an excess of jurisdiction. In my opinion, this is a case of that character. I am of opinion, also, that the Supreme Court was not precluded by s. 164 of the Justices Ordinances 1928-1970 (N.T.) from granting the relief sought by the present respondents in that Court. Finally, I am of opinion that it is not a valid objection to the orders made by the Supreme Court that they did not relate to the quashing of the whole of the proceedings before the magistrate, but dealt only with the orders for forfeiture : see Reg. v. Lewes Justices ; Ex parte Plumpton and District Club Trustees (1960) 1 WLR 700 and see S.A. de Smith Judicial Review of Administrative Action 2nd ed. (1968), p. 442. (at p309)

9. For the reasons stated I am of opinion that, on the assumption that the appellant was not entitled to appeal to this Court as of right in accordance with s. 46 (1) of the Northern Territory Supreme Court Act 1961, an assumption which I think is probably correct, special leave to appeal should be granted in each case pursuant to s. 47 (2) of that Act and that the appeals should be dismissed. (at p309)

MASON J. The facts relating to these appeals have been recounted in the reasons for judgment prepared by Menzies J. (at p309)

2. The question is whether the presence of the word "punishable" in s. 13AA (3) of the Fisheries Act 1952-1967 or the circumstance that it might be held to be contrary to the rules of natural justice to forfeit by judicial order the property of a person not a party to the proceedings provides a sound reason for construing the sub-section as authorizing an order for the forfeiture of a foreign boat only in the event that the owner is convicted of an offence against s. 13AA (1). In my opinion the authority to order forfeiture should not be read so narrowly. (at p309)

3. The two arguments presented for the respondent owners in support of the narrow interpretation do not lead necessarily to the same interpretation, although in this case they would, if accepted, lead to a result favourable to the respondents. They seek to use the expression "punishable . . . by" as indicating that forfeiture may be imposed but only where it is capable of directly punishing the convicted offender by depriving him of his property in the boat. Then they submit that consistently with the rules of natural justice the power to forfeit should not be exercised unless the owner is the convicted offender, for otherwise he will not be a party to the proceedings. (at p309)

4. The difference in the two approaches is apparent when they are applied to one part-owner of a foreign boat who contravenes sub-s. (1), there being no contravention by the other part-owner. The making of an order for forfeiture would be authorized, according to the first submission, because it directly punishes the offending part-owner by divesting him of his property. However, on the other approach it would be unauthorized because, if made, it would have the effect of depriving a person not a party to the proceedings of his property. (at p309)

5. The word "punishable" may be applied to a person or an offence. Here it qualifies the offences and serves to introduce the orders which may be made consequential upon conviction, orders which, when made, are made by way of, or as part of, the penalty or punishment for the offence. The section is directed to use and possession of a foreign boat, irrespective of its ownership. Forfeiture is an authorized penalty for that offence ; it is qualified only by the expression "and, if the court so orders" ; it is not qualified by any reference to the existence of a proprietary interest in the offender. (at p310)

6. In this context I do not discern a sufficient foundation for concluding that the power to impose the penalty of forfeiture is confined to cases in which an order for forfeiture of the boat will punish the offender directly by depriving him of his property in the boat. I therefore read the word "punishable" as introducing the various penalties or orders which the court is empowered to impose or order once it finds an offence has been committed. Whether forfeiture is to be ordered is a matter of discretion, not of power. (at p310)

7. Historically forfeiture has been regarded as "a mulct or fine - a punishment for an offence" (R. v. The Mayor of Dover (1835) 1 C, M & R 726, at p 736 (149 ER, 1273 at p 1277) per Parke B.). 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 other than the owner of the goods. There is a variety of circumstances such as the nature of 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. Notable examples are the forfeiture of firearms as a consequence of unlawfully possessing firearms and the automatic forfeiture under ss. 228 and 229 of the Customs Act 1901 (as amended) of ships used in smuggling and goods unlawfully imported. In the latter instances forfeiture does not occur by means of judicial order. Nevertheless they are a striking illustration of a context in which forfeiture occurs to the disadvantage of the owner although he may not be a party to the prohibited transaction. (at p310)

8. It may be said then that forfeiture is a penalty or consequence which attends, on some occasions at least, the illegal use or possession of goods. Even on these occasions it is a punishment of the wrongdoer because it brings to an end his possession or use of the goods. (at p310)

9. The circumstance that the power may be exercised so as to deprive an owner of his property in a foreign boat in proceedings to which he is not a party is not in my opinion a ground for accepting the restricted interpretation suggested by the respondents. Section 13AA is the central provision of a licensing scheme regulating fishing by foreign boats in proclaimed waters in the declared fishing zone extending twelve miles seawards from territorial limits. The legislature plainly viewed a contravention of its provisions as a very serious matter. The difficulty of enforcing compliance along the length of the Australian coastline called for a stern deterrent if observance of the provisions was to take place. There were obvious difficulties in laying obligations upon foreign owners and taking proceedings against them. Such considerations in my opinion make it inappropriate to arrive at a conclusion as to legislative intention based on the consideration that the power, if exercised, will result in a deprivation of property of an owner who is not a party to the proceedings. (at p311)

10. The submission that the proceedings before the magistrate resulted in a denial of natural justice because notice was not given to the respondents and they had no opportunity of appearing to present a case against forfeiture may be shortly answered. If, as I have already held, the section authorized the making of an order for forfeiture as part of the punishment of the offender in the proceedings against him, that is an end of the question, for there can be no denial of natural justice when what has been done has been done with the authority of the statute. The statute made no provision for the giving of notice to the appellants ; nor did it provide for their appearance. (at p311)

11. I agree that, if the orders for forfeiture had not been authorized by s. 13AA (3), there was jurisdiction to grant certiorari on the ground that the magistrate had exceeded his jurisdiction. (at p311)

12. In the circumstances I would grant special leave to appeal in each of the four cases and uphold the appeals. (at p311)

Special leave to appeal granted. Appeal allowed with costs. Order of the Supreme Court of the Northern Territory set aside and in lieu thereof order that the application for a writ of certiorari be dismissed with costs.

Acts Interpretation Act 1901

Justices Ordinance 1928

Northern Territory Supreme Court Act 1961

Cheatley v R [1972] HCA 63;

At a glance

Court

Decision date

Before

Source

Judgment (99 paragraphs)

Cheatley v R [1972] HCA 63; (1972) 127 CLR 291 (7 December 1972)

Parties

Legislation Cited (7)

Cases Cited (2)