(a) No order to stop was issued to the vessel within the AFZ; and
(b) The purported pursuit was not commenced inside the AFZ.
In the alternative, it is said that any exercise of powers by AFMA over the vessel, equipment or catch was invalid because any purported pursuit was terminated or interrupted so that the conditions of the exercise of the powers of pursuit under s 87(1)(b) of the Act outside the AFZ were not met. The respondents admit that no direct order to stop was issued to the vessel, but otherwise deny these allegations. They say that the exercise of powers by the officers of AFMA was authorised by ss 84(1)(a), (g), (ga), (ia), (k) and (t), 87(1), 106A, 106C and 106F of the Act.
35 Olbers alleges that any purported exercise of powers conferred by the Act on AFMA over the vessel, equipment or catch was invalid also because, contrary to the requirements of s 84(1)(a), there were no reasonable grounds to believe that the vessel had been used, was being used or was intended to be used for fishing in the AFZ. This is denied. The respondents say that physical evidence found on board the vessel, the admissions made by its Master on 7 February 2002 and files recovered from the hard drive of its computer show that, in the period leading up to its boarding on 7 February 2002, it had been engaged in extensive long-line fishing in the AFZ, contrary to the provisions of the Fisheries Management Act.
36 Olbers says that no notice was served in respect of the catch in accordance with s 84(1A) of the Act. The respondents say that the catch was seized pursuant to s 84(1)(ga) and not pursuant to s 84(1)(g) and that accordingly no Notice of Seizure was required.
37 Olbers also takes a constitutional point contending that the Commonwealth and/or AFMA acquired the vessel, the equipment and the catch on unjust terms by reason that neither of them offered or paid any compensation to the applicant for the acquisition. This is denied. The respondents assert that the vessel, the equipment and catch were forfeited to the Commonwealth pursuant to s 106A, that title to the vessel, the equipment and catch vested in the Commonwealth immediately upon forfeiture and that s 106A is not a law with respect to the acquisition of property within s 51(xxxi) of the Constitution.
38 Olbers pleads a cause of action in negligence based on the broad proposition that the respondents owed it a duty of care to exercise their statutory powers lawfully and that they failed to do so causing it to suffer loss and damage. The existence of a duty of care and the breach are denied. It is also denied that Olbers has suffered any loss and damage. That denial is put partly on the basis that even if the respondents breached a duty of care the vessel, the equipment and the catch had already been forfeited to the Commonwealth prior to the boarding of the vessel on 7 February 2002.
39 Olbers also raises causes of action in detinue and misfeasance in public office.
40 The relief claimed is in the following terms:
'1. A declaration that the second respondent's seizure and detention of the vessel, equipment and catch was unlawful and that the vessel, equipment and catch are not forfeit.
2. An order that the first and/or second respondents pay the applicant's reasonable compensation in an amount determined by this Honourable Court under s 167A of the Fisheries Management Act 1991.
3. Further, or in the alternative, an order of this Honourable Court that the vessel and equipment be delivered up and returned to the applicant.
4. An order of this Honourable Court that the proceeds of the sale of the Catch be remitted to the applicant.
5. Further or in the alternative, judgment for the return, alternatively the value of the applicant's Goods and damages for their retention.
6. Damages.
7. Interest.
8. Costs.'
41 In its amended reply Olbers asserts that forfeiture of a foreign boat, net, trap, equipment or fish can occur only when a person has been convicted of at least one of the offences enumerated in s 106A(a) of the Act in respect of the boat or equipment. If such a conviction is not required to effect the forfeiture then to the extent that the Act purports to authorise such a forfeiture it is said to be unlawful and not authorised by the Constitution.
42 It also claims that the power of seizure under s 84(1)(ga) is conditioned upon the seizing officer having a reasonable belief that the boat and its equipment and catch are forfeit. The reasonable belief must be held on reasonable grounds and be to the effect that a person or persons responsible for the boat, equipment or catch has committed or will commit at least one of the offences enumerated in s 106A. The officer purporting to hold the belief must be able to identify the offence and offender or prospective offender in respect of which the belief is held.
43 Olbers further asserts that the exercise of power under s 84(1) of the Act outside the AFZ can only be done if one or more officers have pursued the person or boat from a place within the AFZ. Pursuit for the purposes of the Act must be understood in terms of the Commonwealth's obligations under the United Nations Convention on the Law of the Sea (UNCLOS). There was no lawful or authorised pursuit in this case because it was not commenced within the AFZ in a manner consistent with the UNCLOS provisions. Olbers claims to have had a legitimate expectation that the Commonwealth would enforce the Act only in a manner consistent with UNCLOS. The absence of any order to stop is pleaded as supporting the proposition that there was no lawful basis for any extraterritorial exercise of any power under s 84(1) of the Act. The pursuit is said not to have been conducted in a manner authorised by the Act or consistent with UNCLOS.
44 In relation to the condition of reasonable grounds for belief required under s 84(1)(g), Olbers says that the evidence relied upon by the respondents is irrelevant as it relates to material recovered from the vessel after the powers conferred by the Act had purportedly been exercised.
The Facts of the Seizure and Search of the Volga and its Activities in the AFZ
45 The facts relating to the first observation of the Volga in the AFZ and its subsequent interception, boarding and searching were set out in a number of affidavits which were not in dispute albeit there was some debate about the inferences to be drawn from some of the evidence. There was a narrow factual dispute on the question whether the ship had received a warning signal from a helicopter flying from the HMAS Canberra and whether its receipt of that signal could be inferred from a change in its course. The Court was provided with an agreed chronology of events. Based on that chronology and helpful summaries of the evidence contained in the affidavits, as set out in the written submissions of the parties, the following account of events can be made.
46 In late January 2002, the HMAS Canberra was required to undertake a fisheries surveillance patrol of the AFZ around the territories of Heard and McDonald Islands. The reason for the patrol was reported continuing foreign fishing vessel incursions into the zone. The Canberra's task was to locate, board and apprehend any foreign fishing vessels found to be in breach of the Fisheries Management Act. At the time only two Australian fishing vessels were authorised to fish inside the zone for Patagonian Toothfish. It was not suggested that they were fishing inside the zone at any time material to the present proceedings. In approaching the zone, which is coincident with the AFZ, Commander Boyce operated on the assumption that any visual or radar contacts within the AFZ would in all probability be foreign fishing vessels. The area is not generally frequented by merchant traffic. It is outside the usual shipping lanes. The extremes of adverse weather conditions in the area together with its remoteness generally precludes most shipping activities with the exception of vessels seeking Patagonian Toothfish. While en route to Heard Island, Commander Boyce and his officers were briefed by Roy McKay, a Senior Fisheries Officer who had acted as Operational Coordinator based in Canberra in connection with an earlier Southern Ocean pursuit of the vessel the Lena. Commander Boyce and his officers were provided with photographic and video footage of foreign fishing vessels, the Lena, the Volga and the Florence which they were told, had been sighted by the Civil Charter Service vessel MV Southern Supporter while undertaking a fisheries patrol in the AFZ in December 2001 and January 2002.
47 As at 6 February 2002, Commander Boyce believed that the Lena and the Volga were inside the AFZ. An entry in his ship's operations room narrative made on 6 February 2002 at 2030 refers to the presence of the vessels. There is a further entry at 0012 on 7 February which also refers to the Volga. I do not regard these entries, the observational basis of which was not made clear in the evidence, as indicating anything other than that Commander Boyce believed the Volga and the Lena to be within the AFZ at that time.
48 On 7 February 2002, a Royal Australian Airforce C130 Hercules aircraft was carrying out radar surveillance of the AFZ in support of the Royal Australian Navy vessels in the area. The C130 was operating its radar to scan 80 nautical miles on either side of its course of 248° true. It did not detect any vessels outside the AFZ within 80 nautical miles on either side of its course for a distance of about 102 nautical miles from the AFZ. Between 0831 and 0840 its radar located the HMAS Canberra at about 77 nautical miles inside the AFZ in close proximity to the HMAS Westralia and the foreign fishing boat 'Lena'.
49 At 0840 the C130 detected another vessel inside the AFZ. It was 32 nautical miles inside the AFZ at 51°, 51.6 South 77° 55.87m E at 0843. The vessel, as it subsequently turned out, was the Volga. The C130 tracked the vessel continuously on its radar until 0851 when it passed out of the radar scan. During this time there was no other vessel within 400 square nautical miles centred on the Volga. It may be noted that the C130's radar operated within the AFZ in MAP mode covering a 270° sector at a 40 nautical mile range and providing a coverage of approximately 3,700 square nautical miles. Once a contact was found on the 270° scan the area around the radar cursor was expanded so that the area displayed was in the approximate shape of a square, the sides of which were 20 nautical miles in length centred around the radar cursor. This accounts for the observation that when the C130 was tracking the vessel, there was no other vessel within 400 square nautical miles centred on it.
50 The vessel was detected again at 0957 on the C130's radar at position 51° 48m South, 78° 15m East, approximately 20 nautical miles inside the AFZ. There was no other vessel in the area within 30 nautical miles on a 270° sector, 40 nautical miles setting. Using the expanded view no vessel was observed within 400 square nautical miles centred on the vessel detected at 0957. The inference is that this vessel was the same as the one detected at 0840. Its course and speed based on the time difference between the two plotted positions was 72° true at 9 knots.
51 The C130 reported to the HMAS Canberra the vessel's range and bearing from its own position at 0958. Using its radar to determine the position of the C130, the HMAS Canberra was able to calculate the position of the vessel. At 1008 the position of the vessel was 51° 45.6m South, 7.8° 11.7m East. This was within the AFZ. The HMAS Canberra altered course and increased speed towards the position of the vessel at 1012. Their distance apart at this time was 49 nautical miles. At 1145, a helicopter was launched from HMAS Canberra to investigate the vessel. At 1158, the helicopter detected the vessel on its radar. Its position, as reported to the HMAS Canberra at 1159, was 51° 38.6m South and 78° 43.8 m East at a point approximately 0.7 nautical miles inside the AFZ on an unknown course. The evidence of Christopher Aulmann, the Navigating Officer on the HMAS Canberra, involved a calculation and assessment which supported the inference that the vessel observed by the Canberra's helicopter at 1158 was the same as the vessel which had been detected by the C130 at 0843. This was based in part upon the absence of other vessels within the radar footprint during the period in question and the distances covered by that radar footprint, the steaming characteristics of the Volga and weather and current conditions in the Southern Ocean at the time. It was his opinion that when environmental conditions were taken into account it was easily possible for the Volga to have travelled from the position of the first radar contact by the C130 to the position of the first radar contact by the Canberra's helicopter. The Volga could not have travelled from outside the radar footprint to the position of the first radar contact held by the helicopter given the distance involved and its speed. Given the assumption that the C130 detected no other contacts within the radar footprint during the period in question, the Volga would have had to steam at least 55 nautical miles in less than two hours to be in the position where it was detected by the helicopter at 1159. To achieve that it would have had to travel in excess of 27 knots over two and a half times its maximum full power speed. I accept his evidence and the conclusions which can be drawn from his calculations.
52 At 1203.5 the vessel's position as determined on the helicopter's radar was 51° 37.11m South and 78° 44.03m East travelling approximately north just outside the AFZ. At 1204.5 the HMAS Canberra authorised the boarding of the vessel by the helicopter. It advised the helicopter that the vessel was 1 nautical mile inside the AFZ. This was not correct. The vessel was in fact 0.5 nautical miles outside the AFZ. The helicopter transmitted a challenge message to the vessel on VHF Marine Channel 16 at 1205 in the following terms:
'Unidentified fishing vessel in position 51° 36.36m South 78° 44.10 m East, this is an Australian Navy helicopter 15 nautical miles to the west of your position. In accordance with our powers contained in the Australian Fisheries Act of 1991 you are about to be boarded by Australian officers exercising these powers.'
The vessel did not acknowledge the challenge but immediately altered course by over 90° to approximately 120° true taking it away from the boundary of the AFZ. There was a dispute about whether the signal was ever received but, having regard to the conclusions which I have reached in this case, it is not material to its outcome.
53 At 1206 Commander Boyce rescinded the instruction to the helicopter to board pending advice from the Department of Defence, Canberra. He ordered the helicopter to continue intercepting the vessel and to standby. At 1208 the vessel's location on the helicopter's radar was reported to HMAS Canberra at 51° 36.78m South, 78° 45.30m East. At 1210, the helicopter sighted the vessel at a range of about 3 nautical miles. It flew over the vessel at 1212 at position 51° 36.32m South and 78° 45.82m East. It identified the vessel as the Volga. At 1213 the helicopter transmitted a message to the Volga on VHF Marine Channel 16 directing it to divert course towards the HMAS Canberra. The terms of the message were as follows:
'Fishing Vessel Volga, this is the Australian Navy helicopter hovering on your port beam. Request you alter heading left, 250° .'
The Volga did not reply. A second divert transmission was made at 1218 and again no response was received.
54 The HMAS Canberra gave the helicopter permission to board the Volga at 1220. The first boarding party or 'stick' consisting of seven RAN personnel under the command of Sean Leydon, Deputy Weapons Engineer on the Canberra, fast roped from the helicopter onto the Volga at 1223pm at position 51° 35.34m South 78° 48.17m East. They took control of the Volga and changed its direction to one which would intercept the HMAS Canberra. The helicopter returned to the HMAS Canberra to pick up the second 'stick' of the boarding party which consisted of six RAN personnel together with a Fisheries Officer, Michael Hugh Ferris. The second 'stick' also boarded the Volga from the helicopter.
55 In his affidavit Mr Ferris described the Volga as similar in appearance to a Japanese long line fishing vessel. There were 46 crewmembers on board. The captain was on the bridge and the remaining crew were assembled on the upper deck forward of the bridge. Mr Ferris identified himself to the Master, Mr Vasilkov, and showed him his authority advising that he was an Australian Fisheries Officer. Mr Vasilkov did not reply.
56 Mr Ferris conducted a search of the vessel. There were 120 tonnes of Patagonian Toothfish on board the Volga at the time. As he carried out the search he noted a large conveyor belt running from the fish factory working space located forward of the bridge to the stern of the vessel. It was wet and littered with damp small fish scales. In the stern area he found fresh wet fish gut and more damp fish scales. There was a number of fishhooks lying on the deck around the area of the conveyor belt. He found a small fish that looked like a Scaly Mackerel lying on the deck which was soft and pliable to touch. This part of the vessel was the long line setting space. There was a number of wooden segmented areas fenced off containing a large number of concrete blocks with a snap line attached to each block. On top of one of those piles of concrete blocks was a very large fishing net containing a large quantity of foam sponges. When Mr Ferris squeezed some of the sponges they oozed with water. There were also several racks of shelving containing brown plastic trays used for preparing small sections of long lines and holding baited hooks ready for setting. There was no prepared baited long line in the containers but they were wet and all the ones he checked at the time contained a large quantity of small fish scales.
57 Mr Ferris then inspected the fish factory area which he described as damp and untidy. There were brown plastic trays scattered all over the working benches. There were numerous plastic bags containing a large quantity of fish hooks attached to a length of monofilament fishing line lying on top of the working benches. Mr Ferris searched for evidence of fresh product and eventually found two Patagonian Toothfish under a wire cage. One still had a hook in its mouth attached to a piece of fishing line. Both were still soft and pliable. He opened the gills on one fish and blood oozed out. The gills were still red in colour. When he did it with the other fish the blood did not ooze out but the gills were still pink.
58 Mr Ferris returned to the bridge and gave the Master a notice under s 84(1)(k) of the Fisheries Management Act. He tried to explain in English that he was recommending the apprehension of the Volga and directing the captain to take the vessel to Fremantle for further investigation. He endeavoured to conduct an interview with the Fishing Master, Mr Lijo and the Master, Mr Vasilkov. He did this by using language cards. He used Spanish for Mr Lijo and Russian for Mr Vasilkov. He was told that the ship had left its homeport to go fishing on 6 November 2001. It had been in the area for about 2 ˝ months. They were using bottom long line. He asked them whether they had caught any fish in the area and the answer was 'in the hold'. The bottom long lines were 8 to 9 nautical miles in length and contained about 9,500 hooks. Normally two long lines were set and left in the water for 20 to 22 hours. Mr Ferris was told by Mr Lijo that the vessel was equipped with two GPS units, two radars, two HF radios, a satellite phone and two VHF radios.
59 The Fishing Master showed Mr Ferris a fishing log purporting to indicate that the Volga had been fishing on 6 February 2002 at Williams Ridge outside Australian waters. This however was not consistent with records obtained from the Volga's navigation computers which were later reconstituted. Two desktop computers were recovered from the vessel, their hard disks duplicated and their data reconstituted. Some data files had been deleted. By a process set out in the affidavit evidence of a systems engineer, James Phelan and Declan O'Toole of Seabed Mapping International Ltd, tracks were later plotted from the computer records which showed that the vessel had been in the AFZ from 12 to 20 January 2002. Catches recorded by the ship during the time were shown on plots recovered from its computer records. These were recorded by reference to date and locations. The plotting data so recorded was viewed and interpreted by Mr Andrew Smith of AP Smith Fish Consultancy who has had extensive experience with plotting equipment including the Maxsea Navigation Charter System computer software used in the Volga. Mr Smith had actually been in the area on a fishing trawler in connection with a project with Sealord Products and Petuna Fisheries. The depths shown in the plots he examined were consistent with the information gathered during that project.
60 As submitted by the respondents, the evidence of Messrs. Phelan, O'Toole and Smith shows that the vessel was engaged in fishing inside the AFZ during the period from 12 to 20 January 2002. I so find.
61 The sequence that followed after the seizure of the vessel and its return to Fremantle including the Notices of Seizure under s 106C, the Olbers' notice that it claimed the vessel, equipment and catch pursuant to s 106E and the AFMA notices served under s 106F has already been set out.
62 I am satisfied on the basis of the undisputed evidence in this case that it is more likely than not that the Volga was used for commercial fishing inside the AFZ at least between 12 and 20 January 2002, that it did not have in force a foreign fishing licence authorising its use for that purpose, and that it was not a Treaty boat with a Treaty licence. There was therefore an offence committed under s 100 of the Fisheries Management Act.
63 It is clear also that the Volga was at various times, including 7 February 2002, at places inside the AFZ and that it was, for the purposes of s 101, 'a foreign boat equipped with nets, traps and other equipment for fishing. Its presence was not authorised by a foreign fishing licence or port permit. There was no treaty licence in force in respect of it. As appears from the evidence of Mr Ferris, parts of its equipment, especially the net to which he referred, were not stored and secured. And even if it had been stored and secured, there was no AFMA approval for the boat to be in the AFZ. Moreover there was nothing to suggest that the boat was travelling through the AFZ from a point outside the AFZ to another point outside the AFZ by the shortest possible route.
64 Olbers made no case to suggest that the exception to the general prohibition imposed by s 101(1) applied to the Volga. The matters of exception referred to in pars (a) to (e) being matters peculiarly within the knowledge of the vessel's owners and operators were, in my opinion, matters for Olbers to establish or in respect of which it should at least have adduced some evidence.
65 It is not necessary for present purposes that I make any finding that a named person or persons committed the offences against ss 100 and 101. It is sufficient that I am satisfied that the Volga was used by some person or persons for commercial fishing in the AFZ in contravention of s 100(1) and that it was a foreign boat in the AFZ equipped with equipment for fishing and to which none of the exceptions in s 101 applied. I have regard to the fact that although these are civil proceedings a finding that offences had been committed is a serious matter and it is necessary that an appropriate degree of satisfaction be reached, albeit it is not necessary that I be satisfied beyond reasonable doubt that offences have been committed. I am satisfied to a high degree of probability that the offences to which I have referred were committed.
The Ownership of the Volga
66 Although the statement of claim in this case raises a number of issues about the exercise of the powers conferred by ss 84 and 87 of the Act, 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.
67 Blackstone spoke of forfeiture as a punishment for illegal acts or negligence whereby the owner of land 'loses all his interest therein' - Bl Comm vol ii p 267. Forfeiture of personal property for the commission of various kinds of felony was used in a similar sense albeit at common law it occurred only upon conviction - Bl Comm vol iv p 380. The ordinary English meaning of the word 'forfeit' used as a transitive verb, has two aspects, one referring to loss of title, the other to liability for loss of title:
'to lose, lose the right to, to render oneself liable to be deprived of; also to have to pay in consequence of a crime, offence, breach of duty'
Shorter Oxford English Dictionary
The particular meaning to be applied will depend upon the context. This is well illustrated by the judgment of Kay J, In Re Levy's Trusts [1885] 30 Ch D 119. The payment of rents and profits to a beneficiary of a trust was expressed to cease if he did anything whereby 'the rents and profit would, if hereby settled absolutely upon or in trust for him, be forfeited to or become vested in any other person or persons whatsoever'. Kay J (at 125) pointed to the contrast between the word 'forfeited' and the words 'vested in any other person' in construing 'forfeited' in that context as meaning 'liable to be taken from him'. In so doing he referred to the quotation in Dr Johnson's dictionary from Shakespeare's Measure for Measure:
'All the souls that were, were forfeit once; and He that might the vantage best have took, Found out the remedy.'
So Kay J concluded (at 125):
'Clearly the word "forfeit" means not merely that which is actually taken from a man by reason of some breach of condition, but includes also that which becomes liable to be so taken.'
68 The distinction was recognised by the High Court in De Britt v Carr (1911) 13 CLR 114. Section 41 of the Crown Lands Act 1895 (NSW) provided that an alien, applying for the conditional purchase of land who failed to become naturalised within a certain period, would 'absolutely forfeit' the land. Griffith CJ, with whom Barton J concurred, said (at 124):
'There was no doubt what that meant. It meant that the title ceased, and the land revested in the Crown.'
This was in contradistinction to other provisions in the Act where 'forfeit' was used without the word 'absolutely' and allowed for waiver of forfeiture by the Crown. A more recent example of a case in which statutory forfeiture was held not to effect immediate loss of ownership until perfected by seizure was Attorney-General of New Zealand v Ortiz [1984] 1 AC 1. What this illustrates is the necessity to attend to the particular statutory setting in which the word is used in order to determine its legal operation.
69 Section 229 of the Customs Act 1903 (Cth) provided that 'the following goods shall be forfeited to His Majesty' and specified 'goods imported which are prohibited goods' and 'all goods in respect of which any invoice, declaration, answer, statement or representation which is false or wilfully misleading in any particular has been delivered, made or produced. In upholding the validity of that provision in Burton v Honan (1952) 86 CLR 169, Dixon CJ (with whom the other members of the Court agreed) said (at 176):
'On authority it is clear that under the provisions of s 229, provided the facts exist which justify a forfeiture, the title to the goods vests in the Crown when the forfeiture takes place in consequence of the occurrence of the facts. No further proceedings are requisite to make title, although of course further proceedings may be necessary either to vindicate the title of the Crown or to exclude the claim of some person asserting a right to the goods.'
70 That application of the term 'forfeited' in customs and like legislation is of long standing. Section 103 of the Merchant Shipping Act 1854 (UK)provided for forfeiture of a ship if certain offences had been committed. In The Annandale (1877) LR 2 179 P.D, 218 a forfeiture action was brought against a vessel and defended by a person claiming to have been its bona fide purchaser. A demurrer to the defence was allowed. James LJ said (at 219):
'The ... section... does not say that the ship shall be liable on conviction of the offence to be forfeited, but that the ship itself shall by reason of the offence be forfeited; and it goes on to say that the officer of customs shall seize the ship and shall bring her into port for adjudication.'
Bagallay LJ, who agreed, said (at 220):
'The claim for protection is based upon this, that there is no actual forfeiture until adjudication, or any rate until seizure; and if that were the true construction of the Act no distinction could be drawn in the case of a purchaser for value with or without notice. If that be the case, as in almost every instance where any act is done, which is made punishable under the second subsection, it is done in secret, it would not be impossible to make a sale of the ship before the time when any seizure could be made, or before the time when an adjudication could be brought about.'
See also Cotton LJ at 220-221. James LJ referred to decisions of the United States Supreme Court to like effect in United States v 1960 Bags of Coffee (1814) 8 Cranch 398 and Gelston v Hoyt 3 Wheat 311.
71 In Powers v Maher (1959) 103 CLR 478, Kitto J, sitting alone in proceedings for the return of goods seized as forfeited under s 229, referred to a submission that s 229 operated to change the ownership of goods and said:
'As to this, it may be observed that "forfeited" is an ambiguous word: it may mean either taken from a man or liable to be taken from him.'
He acknowledged a number of the authorities cited for the first meaning and suggested that they would need careful consideration. He did not need to resolve which of the two constructions was correct for the purposes of the proceedings. As Rath J said in Bert Needham Automotive Co Pty Ltd v Commissioner of Taxation (Cth) (1976) 26 FLR 108 (at 115):
'I do not think that Kitto J was necessarily saying that the question was an open one; he was in my view merely raising a query as to the state of the authorities.'
Rath J regarded himself as bound by The Annandale and by Burton v Honan to hold that it is upon mere occurrence of the facts specified in s 229 that a change of ownership occurs.
72 The characterisation of forfeiture under s 229 of the Customs Act 1901 as 'automatic' is reflected in the proposition that it is not 'a decision' amenable to review under the Administrative Decisions (Judicial Review) Act 1977 - Tetron International Pty Ltd v Luckman (1986) 8 ALD 243 at 246 (Northrop J); Pearce v Button (1986) 8 FCR 408 at 410 (Fox J). As O'Loughlin J put it in the Full Court in Whim Creek Consolidated NL v Colgan (1991) 31 FCR 469:
'It is clear from the consideration of the Act and from earlier cases that no unilateral power is reposed in any officer of Customs to make a declaration of forfeiture. Indeed, the concept of forfeiture does not evolve out of any administrative decision to which the provisions of the Judicial Review Act might attach. On the contrary, it arises by force of statute upon the happening of certain prior events.'
The question remains what is the proper construction of the statute in this case?
73 Section 106A of the Fisheries Management Act was introduced into the Act by the Fisheries Legislation Amendment Bill (No 1) 1999. Prior to its enactment there was no provision for automatic forfeiture in the Act. Section 106 provided, and still provides, that when a court convicts a person of a specified offence under the Act 'the court may order the forfeiture of all or any of the following ...' and then refers to boats, equipment, fish and the proceeds of sale of fish. Subsection (3) of s 106 provides:
'Any boat or other property (including fish) ordered by a court to be forfeited becomes the property of the Commonwealth and must be dealt with or disposed of in accordance with the directions of the Minister.'
There is no doubt, having regard to the provisions of s 106(3) that the word 'forfeiture' is used in that section in the first sense of divestiture of title to the property forfeited.
74 There is no reason to suppose that 'forfeiture' in s 106A is used in any lesser sense than 'forfeiture' in s 106. The question whether property has been forfeited pursuant to s 106A remains contestable after seizure until the exhaustion or non-invocation of the mechanisms for contesting it under subdiv C. That it remains for a time a contestable question does not mean that its resolution is in any sense discretionary. The characterisation of a thing as 'condemned as forfeited to the Commonwealth' under s 106E does not involve the final transfer of title in something which was forfeited by operation of s 106A. In the Bert Needham case Rath J said (at 114):
'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.'
Of course if it were the case that the thing purportedly forfeited could be shown, after condemnation, not to have been forfeited, then it might be said that condemnation had effected a divesting. That is not a question which needs to be finally considered here. It does seem however that the condemnation provisions have at least a privative character.
75 I am fortified in my conclusions about the meaning of forfeiture in s 106A by the heading of subdiv B 'Automatic forfeiture of things used in offences'. The heading of subdiv C 'Dealing with things seized as automatically forfeited' (emphasis added) supports the proposition that its provisions are concerned with the contestability of a purported automatic forfeiture.
76 The challenge posed by illegal foreign fishing and the legislative purpose underpinning the introduction of s 106A was evidenced by the Second Reading Speech for the Fisheries Legislation Amendment Bill (No 1) 1999 given on 1 September 1999. The legislative purpose is entirely consistent with forfeiture depriving a boat owner of title immediately upon the commission of one of the qualifying offences. The Minister referred to the amendments contained in the Bill as addressing '... the growing issue of illegal unregulated and unreported fishing'. He spoke of '... rising concern over the ongoing activities of illegal foreign fishing vessels in the Australian Fishing Zone, particularly in remote areas of the zone such as our sub-Antarctic territories and off North-Western Australia'. The government was determined to take 'stern measures to deter illegal foreign fishing in the Australian Fishing Zone'. In relation to the new forfeiture provisions it was said:
'Amendments under schedule 1 will provide for a more effective catch, gear and boat forfeiture scheme to deter illegal fishing in the Australian fishing zone.'
The Minister also said:
'Australian fisheries officers will be able to seize foreign boats, fishing gear or catch which have been automatically forfeited to the Commonwealth as a result of illegal fishing in the Australian fishing zone.'
Source - Parl Info Web
77 The automatic forfeiture provisions in s 106A apply only to foreign boats or their support vessels. 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.
78 There is no conflict between the regime of automatic forfeiture established by s 106A and the court ordered forfeiture under s 106. If there were a conviction for an offence which would ground a forfeiture order under s 106 and it turned out that the same circumstances had already given rise to automatic forfeiture under s 106A, confirmed by condemnation under subdiv C, then a forfeiture order by a convicting court would be unnecessary and futile. On the other hand, if the question whether forfeiture had occurred under s 106A were unresolved pending the outcome of proceedings it does not seem that there would be any impediment to a convicting court ordering forfeiture under s 106. At worst it would be an unnecessary order.
79 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.
80 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.
81 It was pointed out in the applicant's written submissions that s 106G(3)(a) confers power on the Court to order that a claimant in proceedings before the Court recover the thing seized. It was submitted that an order for recovery of the thing must follow 'where there has been some disqualifying conduct on the part of the Commonwealth irrespective of whether an offence may have been committed'. Such an interpretation was said to provide 'a balance to the otherwise extreme provisions of a statute that purports to forfeit property without any judicial intervention'. It was submitted that, if the Court's powers were intended to be limited to deciding whether the requirements of s 106A had been met, the Act would have said so.
82 The applicant's submissions would confer on the Court a discretion to refuse to recognise or give effect to the Commonwealth's ownership of property which had been forfeited to it by the automatic operation of s 106A. As I have already observed, the judicial resolution of the forfeiture question is not discretionary. It involves the application of the law enacted by the Parliament to the facts as found by the Court.
83 An applicant might seek to assert its title against seizure in a variety of ways. It may seek a declaration of non-forfeiture. It may also seek an order for recovery. But there must be a legal basis for such an order. In some cases it may not be ownership but a right to possession. A claimant may be a person with a right of possession derived from the owner. Section 106G(3)(a) does not require the invocation of a disciplinary judicial spirit to explain its presence in the section.
Whether the Provisions of Sections 106A to 106H of the Fisheries Management Act 1991 are Valid
84 The applicants contend that the provisions of ss 106A to 106H of the Fisheries Management Act purport to enact a scheme of executive forfeiture and condemnation of a 'foreign boat' as defined in s 4 of the Act, seized by officers of the first and second respondents that is incompatible with the requirements of Ch III of the Commonwealth Constitution. It is also said that the scheme is beyond the legislative powers of the Parliament to enact under s 51(x), (xxix), (xxxi) or any other head of legislative power. Further it is put that, subject to the application of s 167A of the Act, the scheme is inconsistent with the requirement expressed in s 51(xxxi) of the Constitution that the Commonwealth may only acquire property from a person for a purpose in respect of which the Parliament has power to make laws on just terms.
85 Consideration of the constitutional validity of ss 106A to 106H begins with their characterisation. Section 51(x) of the Constitution confers upon the Parliament of the Commonwealth power to make laws with respect to 'Fisheries in Australian Waters beyond Territorial Limits'. In Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270, the High Court held s 106(1)(a) of the Fisheries Management Act to be a valid law of the Commonwealth under s 51(x) even in its application to the case in which the owner of the forfeited boat was not involved any unlawful fishing. This was consistent with the view expressed by a majority of the Court in Cheatley v The Queen (1972) 127 CLR 291.
86 The operation of the law may be draconian in the eyes of some but that did not, in the view of the court, deprive it of the character of a law with respect to fisheries. The practical imperatives which give rise to strict penal and forfeiture provisions in relation to fisheries were outlined in both Cheatley and Lawler. In Cheatley, Barwick CJ said (at 296):
'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.'
McHugh J said in Lawler (at 295):
'Protection of the nation's fishing grounds is a matter of high public importance. If protection is to be achieved, drastic deterrents may be needed. If the means selected are reasonably proportionate to the purpose of protection, it is for the Parliament and not this Court to say whether they should be used. In weighing the proportionality of Parliament's response in this particular field, the utility of deterrent measures is of paramount importance. Illegal fishing in the vast expanse of the Australian territorial waters is difficult to detect and expensive to combat. The forfeiture of vessels engaged in illegal fishing not only sends a persuasive message to potential wrongdoers, it also prevents further illegal use of the vessels and renders the illegal behaviour of the masters and crews unprofitable. Knowledge by the owner of a foreign vessel that he or she can lose the vessel also assists in enforcing the Act because it makes it likely that the owner will exercise vigilance to prevent the vessel being used in breach of the Act.'
87 Lawler also lies against the applicant's proposition that the impugned provisions are invalid for authorising acquisition of property other than on just terms contrary to s 51(xxi) of the Constitution. The way in which this was put in the applicant's written submissions was that s 106G of the Act contemplates that, if the use of a foreign boat and its equipment are adjudged in proceedings under the Act not to have justified forfeiture, the orders which the Court may make may not be sufficient to compensate the claimant for the losses which have been suffered. It was submitted that, save for the possibility of an order under s 167A of the Act for reasonable compensation, the confinement of remedies, in the event of an unjustified and wrongful seizure, to those available under s 106G fails to satisfy the requirement in s 51(xxxi) of the Constitution that acquisition be on just terms. Plainly this does not impact on the present case as I have determined that there has been a forfeiture. The challenge to the provisions of subdiv C are posited on the premise that the seizure was unjustified and that there was in truth no forfeiture.
88 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.
89 The judicial power issue said to arise under Ch III of the Constitution was that the provisions of subdivs B and C effectively impose penal forfeiture of a foreign boat without recourse to a determination of guilt in accordance with the standards of the criminal legal process. A penalty for a deemed contravention of Commonwealth law without the determination of a Ch III court was said to be constitutionally impermissible. A legislative direction of forfeiture without the adjudication of criminal guilt or civil liability for contravening a law of the Commonwealth was said to be a usurpation by Parliament of the judicial power. It was further submitted that a process of executive acquisition of property was involved which was not safeguarded by an effective judicial process. It was argued that ss 106A and 106B were predicated on a statutory fiction - the transfer of property in the foreign boat to the Commonwealth legislatively effected by the 'notional existence' of an offence without any exercise of judicial power to determine whether an offence had occurred.
90 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.
91 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.
2. On the hypothesis that no forfeiture has taken place because no offence was committed - by the condemnation which places the Commonwealth for all legal purposes in the position of legal owner of the property.
In each case the effective forfeiture is by operation of law and not by any executive acquisition.
92 The submission was also made that s 106B and the provisions of subdiv C can operate, without any judicial determination, to effect the result that the seizing officer's belief that the boat was forfeited becomes unchallengeable. I do not accept that submission. The officer's belief under s 84 is a necessary condition of the power to seize. That puts in train processes that could conceivably lead to the condemnation of a vessel as forfeited without any judicial intervention. That outcome could occur in the case in which a notice of seizure is given under s 106C and no written claim is made as required by s 106E within thirty days of the notice. Such an outcome could also occur where a notice is given by the manager of AFMA under s 106F(1)(b) stating that the boat will be condemned if proceedings are not instituted against the Commonwealth within two months and the claimant does not institute such proceedings. Both the belief and the forfeiture are contestable in a court of law within the time limits prescribed by the provisions of subdiv C. There is in my opinion, therefore, no infringement of the judicial power.
93 In relation to just terms acquisition it is the case that the Act empowers the AFMA to dispose of or destroy a boat before condemnation on specified grounds. In the event that a challenge to forfeiture were to be subsequently successful there would no doubt be an entitlement to compensation in respect of which s 167A imposes liability on the Commonwealth in order to comply with the just terms requirements of s 51(xxxi). It may be that there are other circumstances in which s 167A would apply to give rise to a liability on the part of the Commonwealth. It is not necessary to canvass those here.
94 In my opinion none of the grounds of the alleged constitutional invalidity of the forfeiture and condemnation provisions of subdiv B and subdiv C is made out.
The Exercise of Powers under Sections 84 and 87
95 Olbers submitted that the officers who boarded and seized the Volga purported to do so in the exercise of powers conferred by ss 84 and 87 of the Act and that they were acting outside those powers. These contentions were put on the following bases:
1. That the officer or officers exercising powers under ss 84(1)(a), s 84(1)(g) and (ga) had no reasonable grounds to believe that the Volga had been used or was intended to be used for fishing in the AFZ or that it had been forfeited under s 106A.
2. By reason of s 87 an officer could not validly exercise any powers over the Volga outside the AFZ on the high seas unless he could establish that he pursued the vessel from a place within the AFZ and that the pursuit was not terminated or interrupted.
3. That in the light of Art 111 of UNCLOS a pursuit could not commence until the vessel being pursued was given an order to stop. It was submitted that on a proper interpretation of the Fisheries Management Act and because of the importance of the principle of the freedom of the high seas, if the respondents could not show that they had properly pursued and boarded the Volga in terms of the Act, the only course open to the Court was to order the release of the vessel and proceeds of sale of the catch.
As to the latter proposition, I have already rejected that having regard to the proper construction of subdiv B and C and in particular the operation of s 106A. Given that I am satisfied that the vessel was forfeited to the Commonwealth by operation of s 106A there is no relevant relief claimed by Olbers which would flow from a finding that the powers to board the vessel and to seize it conferred by ss 84 and 87 had not been engaged.
96 There may be an interesting constructional question about what constitutes pursuit of a boat from a place within the AFZ for the purposes of s 87. The construction of that term must have regard to the practical exigencies of the circumstances in which pursuit might have to be undertaken. This is recognised in s 87(2) which provides that a pursuit of a person or boat is not taken to be terminated or substantially interrupted only because an officer or officers concerned lose sight of the person or boat.
97 Notwithstanding the submissions on behalf of Olbers to the contrary, I am inclined to think that the language of s 87 cannot accommodate the requirement of a stop order specified in Art 111. While statutory provisions may be construed to accord with Australia's international obligations, where those obligations have been entered into before the enactment of the relevant provisions, such construction can only occur where the language permits it. However, for the reasons which I have indicated I express no concluded view on these matters.
Conclusion
98 For the foregoing reasons the application is dismissed. The applicant will be required to pay the costs of the application.