Olbers Co Ltd v Commonwealth of Australia

CONTEXT 2 The appellant Olbers Co Ltd ('Olbers') instituted a proceeding in this Court against the Commonwealth of Australia and Australian Fisheries Management Authority ('the Authority') seeking damages for what it alleged was the unlawful seizure and subsequent sale by the Commonwealth of the fishing vessel Volga. It was not in dispute that the appellant was the owner of the vessel prior to the events that gave rise to its seizure. The legal and factual issue that arose in the proceedings concerned the validity and lawfulness of the seizure and expropriation of the vessel and its catch. 3 For current purposes there is no dispute as to the correctness of the factual findings made by the primary Judge. They can be summarised as follows: (a) The Volga was engaged in fishing inside the Australian Fishing Zone (AFZ) during the period from 12 to 20 January 2002. The fishing took place in the Southern Ocean in the vicinity of Heard and the McDonald Islands. When it was intercepted and seized it had some 120 tonnes of 'Patagonian Toothfish' on board. (b) In carrying out the fishing activity within the AFZ Olbers breached s 100(1) (use of foreign boat for commercial fishing within the AFZ without a licence) of the Fisheries Management Act, 1991 (Cth) ('the Act'). In addition, some person or persons breached s 101(1) of the Act (in that that person had in its charge or possession within the AFZ a foreign boat equipped with equipment for fishing without relevant authorisation). (c) On 7 February 2002, and whilst the Volga was still within the AFZ, HMAS Canberra (which was then some 49 nautical miles from the Volga) changed course to intercept it. A helicopter from the Canberra was sent to investigate the Volga. By the time that the helicopter approached within its radar range of the Volga, the Volga was under way immediately outside the AFZ. The helicopter informed the Volga that it was about to be boarded. The Volga did not acknowledge the advice, but changed course and proceeded directly away from the AFZ. The helicopter requested the Volga to change course and proceed towards the Canberra. It did not acknowledge the message. Nor did it comply. The Volga was subsequently boarded by RAN personnel lowered from the helicopter. At the time it was boarded the Volga was outside of the AFZ. (d) Notwithstanding the objections of Olbers, theVolga, its equipment and the catch were seized. The respondents asserted that the seized property had been forfeited and were owned by the Commonwealth or by the Authority. The catch was sold. 4 Olbers commenced this proceeding against the respondents in which it sought a declaration that the seizure and detention of the vessel, its equipment and catch was illegal and that they were not forfeited. It sought an order that the vessel and its nets and equipment be released to Olbers. It also sought an order that the proceeds of sale of the catch be released to Olbers and, alternatively, that the Authority pay Olbers an amount equivalent to such proceeds. Other relief was also claimed. 5 Olbers argued that the vessel had been pursued pursuant to s 87 of the Act and that it had been seized pursuant to s 84 of the Act. Section 84 of the Act empowers an 'officer' (which term includes a member of the defence force) to board a vessel in specified circumstances and to require the master and crew of the vessel to take various actions including to take the 'boat' (the terminology employed by the Act) to a place in Australia. Section 87 limits the extent to which these powers can be exercised on the high seas. In particular, it is a condition of the exercise of those powers that the boat has been 'pursued' from a place within the AFZ to the place where it was boarded. Olbers said that those powers were not properly applicable in this case for various reasons, but particularly because the Volga had not been 'pursued' from within the AFZ. 6 The primary Judge did not accept these arguments. Instead he found that the relevant property had been forfeited during the period 12-20 January 2002 by reason of the breaches of ss 100 and 101 of the Act. The primary Judge found that this was the legal consequence and effect of s 106A of the Act. That section provides: '106A The following things are forfeited to the Commonwealth: (a) a foreign boat used in an offence against: (i) subsection 95(2); or (ii) section 99; or (iii) section 100; or (iv) section 100A; or (v) section 101; or (vi) section 101A; (b) a boat used in an offence against section 101B as a support boat (as defined in that section); (c) a net or trap, or equipment, that: (i) was on a boat described in paragraph (a) or (b) at the time of the offence mentioned in that paragraph; or (ii) was used in the commission of an offence against subsection 95(2) or section 99, 100, 100A, 101, 101A or 101B; (d) fish: (i) on a boat described in paragraph (a) or (b) at the time of the offence mentioned in that paragraph; or (ii) involved in the commission of an offence against subsection 95(2) or section 99, 100, 100A, 101, 101A or 101B.' 7 After considering similar provisions in customs and like legislation and the relevant Second Reading Speech, the primary Judge held that s 106A of the Act applied with the effect that the vessel, equipment and fish had been forfeited to the Commonwealth as from the time that the events occurred which constituted the relevant offences. The effect of that legal conclusion was that the vessel was owned by the Commonwealth at the time that it was boarded. The primary Judge then held that there was nothing illegal under Australian law in such a boarding. As the primary Judge put it: '… the threshold question is whether before the vessel was boarded, Olbers had ceased to be its owner by operation of s 106A. If that is the case then there can be no complaint, relevant to the relief sought in this case, about the purported exercise of powers under ss 84 and 87 for the Commonwealth was merely seizing its own property. Nor could there be any cause of action in negligence, detinue or misfeasance in public office. The question of forfeiture has to be approached by reference to the proper construction of s 106A of the Act. … The pre-existing forfeiture provisions of s 106 apply to any boat, net, trap or equipment used in the commission of one of the offences specified in that section. Section 106A recognises the special difficulty of the detection and apprehension of foreign boats in the AFZ by imposing the automatic forfeiture regime. It creates a real risk for any fishing vessel owner whose boat enters the AFZ. The risk to the owner is that, even if not apprehended at the time of any illegal fishing (s 100) or presence (s 101) in the AFZ, the boat will leave the AFZ, with an insecure title. While apprehension may not be immediate if there is evidence by aerial or other surveillance of the identity, activity and/or presence of the boat the Commonwealth may be in a position to assert that, under Australian law, it has become the legal owner of the boat. Escape to the high seas will not shed that status under Australian law or in any jurisdiction in which Australian title will be recognised. … It was contended for the applicants that before s 106A could operate to effect forfeiture of a boat or its equipment or catch it was necessary that there be a conviction for one or more of the offences upon which such forfeiture was said to arise. As a matter of construction this proposition cannot be sustained. Where there has been a conviction for an offence forfeiture can be ordered by the convicting court under s 106. Section 106A does not require any judicial determination to give effect to the forfeiture for which it provides albeit a judicial determination may be made if the occurrence of the forfeiture is contested in later proceedings. In such proceedings a civil court may make a finding whether the boat has been used in one of the specified offences. Absent the institution of such proceedings within thirty days of a notice of seizure under s 106C the asserted forfeiture will be put beyond question by operation of s 106E. That process requires no conviction to have been recorded. I reject the contention that s 106A depends for its application upon a conviction for one or more of the offences mentioned in it. On the basis of the findings I have already made about the commission of offences involving the Volga and the proper construction of s 106A, the Volga, its equipment and catch was forfeited to the Commonwealth and passed into the ownership of the Commonwealth in January 2002.' 8 Having reached that view it was unnecessary for the primary Judge to reach any conclusion as to whether the vessel had been lawfully boarded and seized pursuant to ss 84 and 87 of the Act. His Honour stated that he expressed 'no concluded view on these matters.' 9 Olbers argued that s 106A, interpreted in this manner, was invalid under the Commonwealth Constitution, including for effecting an acquisition of property other than on just terms. The primary Judge rejected the submission that the relevant law effected an invalid acquisition of property, relying primarily on the authority of Re Director of Public Prosecutions Ex parte Lawler & Anor (1994) 179 CLR 270 (Lawler). The primary Judge concluded: 'Lawler's Case is authority for the proposition, in respect of s 106 of the Act, that it is not a law with respect to the acquisition of property within s 51(xxxi) of the Constitution because it imposes a penalty, by way of forfeiture, for an unlawful activity. The same is true of s 106A.' 10 The appellant also argued that s 106A, interpreted in this manner, was invalid as an impermissible conferral of Commonwealth judicial power upon the Executive. The primary Judge also rejected this argument: 'In my opinion, any forfeiture effected under s 106A is effected by operation of law and not by executive acquisition. The question whether a vessel and its equipment and catch have been forfeited under that provision is contestable in a court of law subject to compliance with the time limits imposed by the provisions of subdiv C. There is, in that scheme, no infringement of judicial power by the legislature or the executive. To provide, as the Act does, that a vessel which has been seized shall be condemned as forfeited unless proceedings are started within a specified time does not work any executive acquisition. A vessel condemned as forfeited without any judicial proceeding pursuant to the provisions of subdiv C may be regarded as conferring title on the Commonwealth by one of two theoretical routes: 1. On the hypothesis that an unascertained forfeiture has already occurred because the offences triggering the forfeiture had been committed - by confirmation of that forfeiture.

(d) a declaration that the thing is not forfeited.' 15 Olbers argued that the 'forfeiture' referred to in s 106A of the Act should be understood as not transferring title to the Commonwealth unless and until the thing is 'condemned as forfeited' under the provisions of ss 106B-106G of the Act. If s 106A was interpreted in this way then property did not pass as at the date of the offence. Consequently, Olbers submitted, the Commonwealth could only seize the property after complying with ss 84 and 87 of the Act. Olbers submitted that the Commonwealth (through its officers) did not comply with those sections and consequently the vessel had not been lawfully forfeited to it. 16 In our view this submission misunderstands the meaning and effect of ss 106B-106G of the Act. The word 'condemned' as used in those provisions is used in a technical sense to mean 'adjudge or pronounce forfeited' (Shorter Oxford English Dictionary). One finds the word 'condemned' used in that sense within prize jurisdiction, in some customs legislation and in some other contexts where property is forfeited upon the occurrence of a specified event and then a procedure is afforded by which the occurrence of that event can be adjudged and the consequences of it officially recognised and recorded. Such an adjudication is properly described as a 'condemnation'. However, the adjudication does not affect the forfeiture - it adjudicates and records that a forfeiture has already occurred. The use of the word 'condemned' in this way was explained by O'Loughlin J (with whom Spender and French JJ agreed) in Whim Creek Consolidated NL v Colgan (1991) 31 FCR 469 at 477-478: '… it remains clear that in any such proceedings, the term "condemnation" refers not to a proceeding which has the effect of vesting title in the Crown, but to a proceeding which determines that upon some cause previously arising title had vested in the Crown.' 17 Understood in this way the provisions of ss 106B-106G do not themselves effect a forfeiture of the relevant property. Nor are they to be understood as conferring any broad (indeed, unfettered) discretion upon the Court. Rather, they provide a mechanism by which it can be adjudged and formally recorded whether a forfeiture has already occurred. In particular s 106G(3) of the Act is not to be understood as conferring upon a Court a broad discretion to determine property forfeited by operation of s 106A should not be 'condemned'. Rather, that section provides a procedure by which orders can be made providing for the return of the property (or its value) in circumstances where it had not been forfeited e.g. because the Commonwealth was unable to satisfy the Court that the vessel had been involved in a relevant offence. As already noted, the primary Judge interpreted the relevant provisions in this way. In our view he was correct to do so. 18 Of course, even if Olber's argued interpretation of s 106A of the Act were accepted, the submission put by Olbers would still depend upon establishing that the Commonwealth, or its officers, had no authority to board and take control of the vessel. This, in turn, depends upon whether the relevant Commonwealth officers were 'in pursuit' of the vessel before it left the AFZ. As already noted, the primary Judge expressed no 'concluded view' on this question. His Honour did, however, find as a fact that the naval vessel changed course for the purpose of intercepting the Volga, and sent off helicopters also for that purpose, whilst the Volga was within the AFZ. On the other hand, no contact was made with the Volga requiring that it stop until the Volga was outside the AFZ. Olbers argued that the pursuit did not commence until the ship had been ordered to stop. This is consistent with Art 111(4) of the United Nation Convention on the Law of the Sea (UNCLOS). Australia is a party to UNCLOS. In any event many of its provisions are reflective of customary international law. 19 Olbers drew attention to the Second Reading Speech of the Minister when introducing s 87 of the Act, which suggests that that provision was intended to reflect the provisions of the Convention. On the other hand, it is difficult to read s 87 in this way. On the face of it, a number of requirements of the Convention, including the requirement for an order to stop, are not reflected in s 87 of the Act. We note that Blaxell DCJ, in hearing the prosecution of members of the crew of the Volga, held that s 87 did not fully reflect the requirements of the Convention and held that the pursuit had commenced before the Volga left the AFZ: see R v Lijo & Ors [2004] WADC 29. The District Court judge's reasons for that conclusion seem compelling. Although he expressed no concluded view it is clear that the primary Judge also had considerable sympathy for the view that s 87 did not merely reflect the provisions of the Convention. It is also unnecessary for us to express a concluded view. 20 Olbers put an alternative argument that, even if the vessel had been automatically forfeited upon the commission of the offence, nevertheless the Commonwealth could not seize the vessel unless it complied with the requirements of ss 84 and 87 of the Act. Olbers says that the seizure was unlawful and that, consequently, it is entitled to damages and the return of the vessel. 21 There are several problems with this alternative argument: (a) It is not at all apparent that this argument is consistent with the action as pleaded. The action as pleaded is an action based upon Olber's ownership of the vessel and property and what is alleged to be an unlawful interference with those rights of ownership. Olbers did not plead or argue at trial that it was entitled to damages and other remedies even if the property was owned by the Commonwealth at the time it was seized. (b) It is an essential step in this new argument that, even if the Commonwealth was the owner of the vessel, it could not authorise the naval officers to board and take control of it, unless those officers complied with ss 84 and 87 of the Act. The primary Judge clearly rejected such a step. In his view the owner of a vessel (be it the Commonwealth or anyone else) was entitled to take steps to recover it even on the high seas, unless there was some law which prevented it doing so. This approach seems plainly right. On their face, ss 84 and 87 of the Act are empowering provisions - they do not purport to limit the common law powers of the owner of property to recover that property. That would include authorising military personnel to act as agents on behalf of the state owner to which ownership has passed. The only possible limitation upon the power to give such an authority would seem to be that referred to by Murphy J in Li Chia Hsing v Rankin (1978) 141 CLR 182 (Rankin) at 203: namely a possible limitation upon the executive power of the Commonwealth to use military personnel in civil affairs. No such limitation has been suggested or argued in this case. In light of the decision in Rankin that military personnel could be used to assist in the investigation and enforcement of fisheries offences there seems no obvious reason why they could not be used to 're‑possess' on behalf of the owner property forfeited to the Commonwealth under the Act. (c) In any event, even if ss 84 and 87 did impose some duty upon Commonwealth officers, breach of that duty would not necessarily sound in damages. In the ordinary course, a non-'deliberate' (see Sanders v Snell (1998) 196 CLR 329 at 346-347) breach of a statutory duty does not sound in damages, unless an action can be brought for breach of statutory duty (as to which, see Byrne v Australian Airlines (1995) 185 CLR 410 at 458-461) or unless the relevant act falls within one of the established torts: see NT & Ors v Mengel & Ors (1995) 185 CLR 307. Olbers argued that 'The Act should be construed to provide a remedy for a detention, apprehension and seizure made wrongly and not in accordance with ss 84 and 87.' Put in those broad terms, the argument involves an apparent confusion between private and public law: see generally A Robertson, 'Liability of Public Officers' Australian Institute of Administrative Law Forum Vol 34, 2002, p 25. Olbers was not entitled to damages for breach of any public duty allegedly imposed by ss 84 and 87 of the Act if no private right of Olbers was also infringed. This does not mean, of course, that a public law remedy would not be available if Olbers had sought one and if ss 84 and 87 of the Act had been infringed: see Ainsworth & Anor v Criminal Justice Commission (1992) 175 CLR 564 at 580-582; 594-597. However, public law remedies were not being sought in this case. Olbers was seeking damages and other private law remedies. To the extent it was seeking declarations, these were only sought as an aid to the enforcement of its private rights. (d) Olbers sought to avoid some of these problems by putting two further arguments: a. The first was an argument that s 106G(3) of the Act should be construed as conferring a private right of action in damages for breach of the duty imposed by ss 84 and 87 of the Act. We have already dealt with the purpose and interpretation of that provision. In our view it is not capable of being construed as creating a private right of action for damages. b. The second was an argument put during oral submissions that the forfeiture of the property effected by s 106A of the Act did not divest Olbers of its lawful possession of the vessel. Olbers submitted that the interference with that possession was a tort, even if the property had been forfeited to the Commonwealth. Plainly enough this argument is a very long way from the action as pleaded and from the grounds of appeal that are before us. In any event, the forfeiture effected by s 106A of the Act is clearly a forfeiture of all interests in the vessel, including any rights of possession. (e) Finally, we note that it would also be a complete answer to this argument if the relevant officers had in fact complied with ss 84 and 87 of the Act. For the reasons given above we express no concluded view on whether or not they did so. 22 Subject to the constitutional arguments referred to below, we are of the view that the approach of the primary Judge was clearly correct. The Volga was forfeited to the Commonwealth upon the commission of the offence. The vessel, the relevant equipment and the catch were the property of the Commonwealth at the time that the vessel was boarded by military personnel. Those personnel were acting as agents for the owners of the vessel at the time that the vessel was boarded and taken into their custody. On that basis the primary Judge was correct to dismiss the action. 23 Much of the argument put by Olbers was based upon the assumption that the interpretation of the Act adopted by the primary Judge had the necessary consequence that the actions of the Australian government in this case were in breach of UNCLOS. It is unnecessary for us to express any final view on this question. We did not receive detailed submissions on the meaning and operation of UNCLOS. It should not be assumed that we would accept, on the information and argument put to us, that the exercise of 'self-help' remedies by the owner of a ship was necessarily subject to UNCLOS even where the owner is a 'State'. It may be that such issues are governed by domestic law, rather then international law. The proceedings before the primary Judge and before us have proceeded on the basis that the relevant domestic law is that of Australia. 24 The above analysis assumes the validity of s 106A of the Act. As already noted, Olbers argued before the primary Judge that s 106A of the Act, interpreted in this way was invalid. Before us Olbers abandoned the argument that it was invalid as effecting an acquisition other than on just terms contrary to the implication derived from s 51(xxxi) of the Commonwealth Constitution. However, Olbers did submit that the section could not be supported by any available head of legislative power and/or that it involved an invalid interference with judicial power. 25 The most obvious power that might support s 106A of the Act is the power of the Commonwealth Parliament with respect to 'fisheries in Australian waters beyond territorial limits' (s 51(x)). It is likely that 'Australian waters', for the purpose of s 51(x), would include the AFZ as now defined: see Bonser v La Macchia (1969) 122 CLR 177. If so, then s 106A would seem to fall squarely within the power, dealing, as it does, with the commission of fisheries offences within the AFZ and the legal consequences of such an offence. Nevertheless, Olbers argued that s 106A could only be supported by the incidental power in s 51(xxxix) of the Commonwealth Constitution and that it was not 'reasonably proportionate and adapted' to the fisheries power. 26 It is not obvious to us why it is necessary to refer to the incidental power (see McHugh J in Al-Kateb v Godwin [2004] HCA 37 at [37]-[39]). However, even if it were necessary to rely upon the incidental power in this case, and even if it were accepted that the relevant test for validity under that power is whether the law is 'reasonably proportionate and adapted' to the exercise of the principal power (contrast Leask v Commonwealth (1996) 187 CLR 579 at 593-595, 605-606, 612-614, 624, but see at 616-617 and 634-635), it is our view that s 106A would answer that test. The forfeiture effected by s 106A is conditional upon the existence of a specified offence. The relevant offences appear to be appropriate legislative responses to the protection of a 'limited public natural resource': see Harper v Minister for Sea Fisheries & Ors (1989) 168 CLR 314 at 325. If it matters, knowledge and proof that an offence has occurred are likely to be difficult. In these circumstances it would seem clear that a law providing for the automatic forfeiture of the vessel and equipment used to commit such an offence and of the proceeds of it are reasonably proportionate and adapted to the legislative purpose: see Lawler at 281, 285-286, 289-291, 291-292, 295-296. This is so even if the relevant legislative regime were in breach of some norm of international law (although we have not reached any view that any such breach occurred in this case). 27 Subject to the question of any implied limitation arising from Chapter III of the Constitution, it is our view that the relevant provisions of the Act, including s 106A, can be supported by the fisheries power. It may also be that those provisions can be justified under the external affairs power (s 51(xxix)), the trade and commerce power (s 51(i)) and maybe others. It is unnecessary to express any view on whether there are other legislative powers which would also support the relevant provisions. 28 Finally, Olbers submitted that s 106A of the Act was invalid as an exercise by the Parliament of the judicial power of the Commonwealth. The structure and text of the Commonwealth Constitution contain within them an implied qualification upon the legislative powers otherwise granted to the Commonwealth Parliament such that, with some limited exceptions, the Parliament cannot confer the judicial power of the Commonwealth upon a body other than a 'Chapter III' court. Plainly enough the Parliament cannot exercise such a power itself. So, for example, a legislative determination of criminal guilt might well be invalid as involving a breach of the implied limitation: see Re Tracey Ex parte; Ryan (1989) 166 CLR 518 at 580. 29 However, that is not what this legislation does. The legislation provides that if event 'x' occurs then the legal consequence is 'y'. On the face of it, that is a proper exercise of legislative power. The ultimate determination of whether event 'x' has occurred or not, is a determination by a 'Chapter III' court, as these proceedings bear witness. Such a law is not inconsistent with the constitutional limitation: see Silbert v DPP (WA) (2004) 205 ALR 43 at 46 [10]-[12]. True it is that the provisions of ss 106B-106G do contain a number of 'deeming' provisions related to failures of owners and others to take various steps within various time limits. Properly construed, however, those provisions appear to regulate the exercise by a person of his or her capacity to seek to have the question whether there had been a forfeiture to the Commonwealth adjudged by a Chapter III court. Those provisions do not render the exercise of judicial power nugatory or futile: contrast Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 535-536. 30 For these reasons we are of the view that s 106A, interpreted in the manner described above, is a valid law of the Commonwealth. 31 The appeal must be dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, Justice Emmett and Justice Selway.

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