(c) there is an exception to the general rule for matters described as procedural provisions, for example the manner in which the trial for a past offence is to be conducted: Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595; Rodway v The Queen (1990) 169 CLR 515.
31 The difference between substantive law and procedure is often difficult to draw and statutes which were commonly (and formerly) classified as procedural - for example statutes of limitation - may operate in such a way as to effect existing rights and obligations. When they operate in that way, they are not merely procedural and they fall within the presumption against retrospective operation: Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595; Rodway v The Queen (1990) 169 CLR 515; Maxwell v Murphy (1957) 96 CLR 261.
32 The approach described above is also to be found in s 30 of the Interpretation Act 1987 (NSW), in particular in s 30(c).
33 Mr Nell submits that the amendments to s 57 of the Marine Pollution Act 1987 which commenced in 2002 are not amendments to the manner in which a trial of a past offence is to be conducted (see Rodway) or which otherwise only affect mere matters of procedure, such that the presumption against retrospectivity has no application to them. Rather, those amendments affect substantive rights and liabilities of a defendant to a prosecution under the Act, in particular a defendant not present within Australia. This is because the amendments to s 57 have the effect of conferring upon the Court from 1 November 2002 jurisdiction to hear a prosecution against a defendant not present within Australia in circumstances (namely upon service of the summons on the Vessel's agent within Australia) where prior to 1 November 2002 the Court did not have that jurisdiction and the defendant would not otherwise have been amenable to the Court's jurisdiction.
34 It is submitted that the Court only has jurisdiction to hear the prosecution of a defendant where that defendant is validly served with the appropriate summons, minute of order and accompanying affidavit(s). Subject to the exceptions earlier identified, these must be served personally. Personal service may only be affected on the defendant if present within the Court's jurisdiction. Service outside of the jurisdiction is not ordinarily available in criminal matters, at least in the absence of express legislative provision (see Thompson v Noall (1980) 30 ALR 162 at 163). There are express statutory provisions permitting service of originating process issued in New South Wales, including originating process in criminal proceedings issued elsewhere in Australia (Service and Execution of Process Act 1992 (Cth) s 24 and s 27). But there are no legislative provisions permitting service of a class 5 summons (let alone the other documents required by Pt 75 r 9 SCR to be served) on a defendant outside of Australia (cf Pt 10 SCR, which is not picked up Pt 75 r 2 or r 6 SCR).
35 Accordingly, it is submitted that prior to 1 November 2002, this Court would only have had jurisdiction to hear and determine a prosecution against a defendant if the defendant was in Australia and personally served or the Prosecutor was able to effect service in accordance with one or other of the limited alternative means then available.
36 Prior to 1 November 2002, in the absence of an express authority from a defendant appointing the Vessel's agent as the defendant's agent for the purpose of accepting service, service of a summons upon the Vessel's agent did not constitute valid and effective service, and therefore was not deemed personal service on a defendant, especially a defendant who was not present in the jurisdiction. Accordingly, this Court could not exercise jurisdiction to entertain such proceedings solely for that reason.
37 It is submitted that the effect of the amendments to s 57 of the Marine Pollution Act 1987, introduced on 1 November 2002, was to introduce from that date a new means by which a member of the crew of a vessel being prosecuted for having caused a discharge of oil from the vessel contrary to that Act could be validly served with proceedings and thereby made amenable to the jurisdiction of the Court in respect of that prosecution, other than by having been served with those proceedings personally. The amendments to s 57 thereby introduced a new exception to the general rule that otherwise applied, which requires originating process in criminal proceedings to be served both personally and upon the defendant in the jurisdiction (Australia). The amendments thereby provided a new means by which the Court could secure jurisdiction over a crew member who was not present in the jurisdiction, who therefore could not and had not been personally served, and who was therefore not otherwise amenable to the Court or its jurisdiction.
38 Finally, it is submitted that such amendments are more than a mere matter of procedure. Even if the permitted manner of service is classified as a procedural provision, it is nonetheless a procedural provision that affects substantive rights and whose amendment affects substantive rights.
39 I acknowledge the assistance of Mr Nell's carefully prepared submission in this matter. However, in my opinion the amendment to s 57 was relevantly procedural and merely provides for the manner of affecting service of process in proceedings in respect of breaches of the Act which may have occurred.
40 The relevant principles applicable to determining whether or not a legislative enactment has retrospective operation are conveniently considered in the High Court's decision in Rodway, where the Court observed (at CLR 518):
"The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events."
41 The Court went on to say (at CLR 519-520):
"It was recognition of the fact that the simple classification of a statute as either procedural or substantive does not necessarily determine whether it may have a retrospective operation which no doubt led Dixon CJ in Maxwell v Murphy to formulate the general rule in terms which did not rest simply upon that classification. He said:
'The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish LJ in Republic of Costa Rica v Erlanger. 'No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done." [footnotes omitted]
42 Finally, the Court said (at CLR 521):
"… The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by Dixon CJ in Maxwell v Murphy, that no one has a vested right in any form of procedure. It is a principle which has been well established for many years: see also Wright v Hale, per Wilde B; Attorney-General v Sillem, per Lord Wensleydale; Warner v Murdoch, per James LJ." [footnotes omitted]
43 It is suggested by Mr Nell that a person who may have committed an offence within the State has a "right", which will be protected by the courts, not to be prosecuted for the offence so long as the defendant is absent from the jurisdiction. Although, subject to other means of service, absence from the jurisdiction may render a defendant unable to be prosecuted, this does not amount to a right. The means by which a defendant may be served merely regulates one of the procedural aspects relating to the manner by which he may be prosecuted for an alleged offence.
44 There are two further difficulties in Mr Nell's submission. The first is that at the time when the offence was committed, the defendant was liable to have process served upon him pursuant to the Mutual Assistance in Criminal Matters Act 1987 (Cth). Although the procedure may be complex, nevertheless it would have been available. However, perhaps the more substantive matter is that at the date of the amendment, by reason of the authority given to Mr Liddy, the defendant was amenable to service within the jurisdiction. Any suggestion that the amendment eliminates a right not to be prosecuted so long as the defendant remains absent from the jurisdiction, is at odds with the existence of the authority.