Application for a writ of prohibition and a writ of certiorari dismissed with costs.

MASON CJ The facts of this matter are set out in the reasons for

2. My view of the interpretation of s.51(xxxi) is stated in my

reasons for judgment in Mutual Pools and Staff Pty. Ltd. v. The

Commonwealth ((1) Unreported, 9 March 1994.). There is, as I see

it, no inconsistency between what I said in that case and what is said

with respect to s.51(xxxi) by Deane and Gaudron JJ in the present

3. So far as the issue in the present case is concerned, I see no

reason to depart from the view taken in Cheatley v. The Queen ((2)

[1972] HCA 63; (1972) 127 CLR 291.). In that case, the Court held by majority that

s.13AA of the Fisheries Act 1952 (Cth) authorized an order for

forfeiture of a boat used in the commission of an offence which was the

property of a person other than the person committing the offence. The

argument rejected by the Court was one of statutory interpretation and

did not depend upon any suggestion of lack of legislative power or

collision with the just terms requirement of s.51(xxxi) of the

Constitution, though Walsh J, who alone dissented on the question of

statutory construction, had this to say on the question of power

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 ((4) [1952] HCA 30; (1952) 86 CLR 169.) and Forbes v. Traders Finance

Corporation Ltd. ((5) [1971] HCA 60; (1971) 126 CLR 429.)."

the same view of the scope of the legislative power under s.51(x) with

respect to fisheries and the non-application of s.51(xxxi); otherwise

4. It is evident from the judgment that the majority was of opinion

that the scope of the fisheries power was sufficiently broad to extend

to authorizing forfeiture of a vessel involved in the commission of

an offence against the Fisheries Act as a measure for the protection

of Australian fishing grounds, even if the owner was innocent of

complicity. Thus, Barwick CJ said ((6) (1972) 127 CLR 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."

"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."

"(I)t 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."

In the context of s.13AA, I pointed out that the difficulty of

enforcing compliance along the length of the Australian coastline

called for a stern deterrent if observance of the provisions was to

5. In essence, the position is that the prescription of forfeiture

of property used in the commission of a fisheries offence is within

the power conferred by s.51(x) and that power extends to the

prescription of forfeiture of that property, notwithstanding that

the owner is innocent of complicity in the commission of the offence.

Likewise, the legislative prescription of forfeiture of that property

pursuant to s.51(x) is not a law for the acquisition of property

within s.51(xxxi) and it does not become such a law by reason of

the legislative prescription authorizing forfeiture of property in

circumstances in which the owner is innocent of complicity in the

6. In the result I conclude that the challenge to the validity

of s.106(1)(a) of the Fisheries Management Act 1991 (Cth) which

authorizes forfeiture of a boat used in the commission of an offence

against s.100 of that Act fails.

BRENNAN J Kevin Canty was convicted of an offence under s.100(1)

of the Fisheries Management Act 1991 (Cth) ("the Act"). He was the

master of the New Zealand vessel "Jay Angela" that was found fishing

without a licence in the Australian fishing zone south of Norfolk

Island between September and December 1992. He was fined $9,000 and

the respondent Stipendiary Magistrate, on 11 March 1993, ordered the

forfeiture of the "Jay Angela". That order was made under s.106(1)(a)

of the Act which empowers the court convicting a person of an offence

against, inter alia, s.100 of the Act to order the forfeiture of a

boat used in the commission of the offence. The "Jay Angela" was

seized on 12 January 1993. It had been leased by the owners Messrs

Lawler and Penrose, the present applicants, to Bario Enterprises

Limited under an agreement for the hiring and sale of the vessel to

Bario. Kevin Canty was a director of Bario and a guarantor of its

2. Shortly before the Court sat to hear the application for

forfeiture, Messrs Lawler and Penrose purportedly terminated the

leasing agreement. The Stipendiary Magistrate found that the lessors

"were not aware of the fishing in the Australian waters by

the Defendant and that they were not interested in any

catch from the unlawful use of the vessel. A relationship

of master and servant did not exist between the Defendant

and the lessors. I accept that the lessors have sought

to terminate the lease and that they will both suffer

substantial financial losses should the vessel be

forfeited."

The applicants submit that s.106, at least in its application to the

circumstances of this case, is ultra vires in that it purportedly

authorizes the acquisition of the "Jay Angela" without the provision

of just terms in breach of the constitutional guarantee of just terms

contained in s.51(xxxi) of the Constitution. But the guarantee

conditions only the exercise of the power conferred by s.51(xxxi) to

make laws with respect to the acquisition of property. It does not

condition the exercise of other legislative powers which authorize the

taking of property. If property is taken under laws made in exercise

of other legislative powers, the guarantee has no application.

3. In Mutual Pools and Staff Pty. Ltd. v. The Commonwealth ((10)

Unreported, 9 March 1994.), I have stated my approach to the

classification of laws providing for the acquisition of property.

There is no doubt but that laws providing for the forfeiture of vessels

which are involved in the commission of fisheries and customs offences

are laws appropriate and adapted to the vindication of those laws. In

Burton v. Honan Dixon CJ said in reference to the forfeiture of goods

imported in breach of the Customs Act 1901 (Cth) ((11) [1952] HCA 30; (1952) 86 CLR

"It is not an acquisition of property for any purpose in

respect of which Parliament has power to make laws. It is

nothing but forfeiture imposed on all persons in derogation

of any rights such persons might otherwise have in relation

to the goods, a forfeiture imposed as part of the

incidental power for the purpose of vindicating the Customs

laws. It has no more to do with the acquisition of

property for a purpose in respect of which the Parliament

has power to make laws within s.51(xxxi) than has the

imposition of taxation itself, or the forfeiture of goods

in the hands of the actual offender."

Forfeiture of property, especially in customs offences, is a penalty

exacted simply because the property is used in committing a breach

of the law. As Windeyer J explained in Forbes v. Traders' Finance

Corporation Ltd. ((12) [1971] HCA 60; (1971) 126 CLR 429 at 439-440.):

"But forfeiture of a thing by virtue of s.229(j) results

simply from its actual use by some person in an unlawful

activity as there described. Whether the owner of it knew

of the use to which it was put is immaterial. That has

been decided in cases arising under s.229 or similar

provisions: Lord Advocate v. Crookshanks ((13) (1888) 15 Rettie 995;

25 Sc LR 705.); Sandness v. The King ((14) (1933) Ex CR (Canada) 78.)

; Little's Victory Cab Co. Pty. Ltd. v. Carroll ((15) [1948] VicLawRp 42; (1948) VLR

If the owner is innocent of complicity in the unlawful use, his

remedy lies in an action for damages against the user whose wrongful

conduct deprived him of his property. An early illustration is

v. Hill ((16) [1810] EngR 500; (1810) 13 East 13 (104 ER 270).), a case of a hired

vessel used for smuggling."

4. A law which imposes a penalty or sanction for breach of a

provision prescribing a rule of conduct and which, apart from its

imposition of the penalty or sanction, is a law with respect to a head

of power other than s.51(xxxi) cannot be classified as a law with

respect to the acquisition of property within s.51(xxxi). To place

it within the s.51(xxxi) category would be to annihilate the penalty

or sanction and thus to weaken, if not destroy, the normative effect

of the prescription of the rule of conduct. The irrelevance of

s.51(xxxi) to the imposition of fines and forfeitures is trite law.

The authorities were cited in the Court's judgment in Reg. v.

Smithers; Ex parte McMillan ((17) [1982] HCA 76; (1982) 152 CLR 477 at 487-489.).

5. But the applicants submit that this approach to the classification

of laws imposing fines and penalties fails to take account of the

effect of forfeiture on an owner who is innocent of any complicity

in the offence. This submission would elevate to the level of a

constitutional limitation on legislative power the argument which was

unsuccessfully advanced to limit the construction of the forfeiture

provision considered in Cheatley v. The Queen ((18) [1972] HCA 63; (1972) 127 CLR

291.). Section 13AA of the Fisheries Act 1952 (Cth) created an

offence and imposed a liability to forfeiture of a foreign fishing boat

in terms similar to those contained in ss.100(1) and 106(1)(a) of the

" 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.

6. 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."

7. The forfeiture of things by which offences are committed goes back

to the law of deodands, but modern statutes which provide for the

forfeiture of property owned by an innocent person are justified on

the footing that the liability to forfeiture enlists the owner's

participation in ensuring the observance of the law and precludes

future use of the thing forfeited in the commission of crime. In

Goldsmith-Grant Co. v. United States ((20) [1921] USSC 13; (1921) 254 US 505 at

510-511.), the Supreme Court of the United States said:

"In breaches of revenue provisions some forms of property

are facilities, and therefore it may be said, that Congress

interposes the care and responsibility of their owners

in aid of the prohibitions of the law and its punitive

provisions, by ascribing to the property a certain

personality, a power of complicity and guilt in the wrong.

In such case there is some analogy to the law of deodand by

which a personal chattel that was the immediate cause of

the death of any reasonable creature was forfeited. To

the superstitious reason to which the rule was ascribed,

Blackstone adds 'that such misfortunes are in part owing to

the negligence of the owner, and therefore he is properly

punished by such forfeiture.' ...

But whether the reason for (the forfeiture) be

artificial or real, it is too firmly fixed in the punitive

and remedial jurisprudence of the country to be now

displaced."

And, in Calero-Toledo v. Pearson Yacht Leasing Co. ((21) [1974] USSC 126; (1974) 416 US

663 at 686-688.), the Court cited Goldsmith-Grant and said:

" Plainly, the Puerto Rican forfeiture statutes further

the punitive and deterrent purposes that have been found

sufficient to uphold, against constitutional challenge,

the application of other forfeiture statutes to the

property of innocents. Forfeiture of conveyances that

have been used - and may be used again - in violation of

the narcotics laws fosters the purposes served by the

underlying criminal statutes, both by preventing further

illicit use of the conveyance and by imposing an economic

penalty, thereby rendering illegal behavior unprofitable.

... To the extent that such forfeiture provisions are

applied to lessors, bailors, or secured creditors who

are innocent of any wrongdoing, confiscation may have the

desirable effect of inducing them to exercise greater care

in transferring possession of their property."

8. Both history and expediency justify a law forfeiting a vessel used

in a fisheries offence, as Mason J explained in Cheatley ((22) (1972)

" Historically forfeiture has been regarded as a 'mulct

or fine - a punishment for an offence' (R. v. The Mayor of

Dover ((23) (1835) 1 C M and R 726 at 736 [1835] EngR 305; (149 ER 1273 at 1277).)

Parke B.). But it is not an essential element in the legal concept

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."

The need for drastic penalties to vindicate the laws governing customs

and fisheries exists in part by reason of the difficulty in policing

these laws and ensuring that foreign owners of vessels (or other

conveyances) do not permit their use in breaching those laws. As

Mason J pointed out in Cheatley ((24) (1972) 127 CLR at 311.):

"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."

9. These considerations demonstrate that the provision for forfeiture

contained in s.106(1)(a) of the Act authorizing, as it does, the

forfeiture of vessels owned by persons who are or might be innocent

of any complicity in the offence which creates the liability to

forfeiture is appropriate and adapted to the enforcement of the

offence-creating provision. The forfeiture provision is therefore

properly characterized as a law with respect to fisheries supported

by s.51(x) of the Constitution. That power is not to be read down in

order to protect the rights of private owners. I would recall the

passage from Charles River Bridge v. Warren Bridge ((25) [1837] USSC 2; (1837) 11 Pet

420 at 548; 36 US 341 at 431.) which I cited in my judgment in Mutual

10. Section 106(1)(a) of the Act is not to be classified as a law with

respect to the acquisition of property falling within s.51(xxxi). The

guarantee contained in s.51(xxxi) does not affect the validity of

11. The motion for prohibition and certiorari should be dismissed.

DEANE AND GAUDRON JJ The applicants, Kevin Joseph Lawler and

Peter Gerald Penrose, owned a New Zealand registered fishing vessel,

the "Jay Angela". In April 1992, they entered into an agreement

with Bario Enterprises Limited ("Bario") for its lease and sale ("the

agreement"). The purchase price was to be paid by instalments.

Kevin Canty and Trevor Wayne Canty guaranteed the agreement and, by

cl.13.11, one or other of them was to be master of the vessel.

2. The "Jay Angela" was present in the Australian fishing

zone ((26) The Australian fishing zone is defined by s.4(1) of the

Fisheries Management Act 1991 (Cth) to be, essentially, the area

constituted by Australian waters, beyond territorial limits.) ("the

AFZ") on several occasions between 8 September and 5 December 1992,

when it was boarded by Australian officials. Kevin Canty identified

himself as the master and, when questioned, confirmed that fishing gear

had been set in the water. The gear, consisting of 1.5 nautical miles

of dropline with 50 lines attached and 12 hooks per line, was located

within the AFZ. Seventy-four fish were retrieved and brought on

3. Kevin Canty was subsequently charged with using a foreign fishing

boat for commercial fishing within the AFZ, contrary to s.100 of the

Fisheries Management Act 1991 (Cth) ("the Act") ((27) Section 100 of

the Act relevantly provides:

"(1) A person must not, at a place in the AFZ, use a

foreign boat for commercial fishing unless:

(a) there is in force a foreign fishing licence

authorising the use of the boat at that

place;

...

(2) A person who contravenes subsection (1) is guilty of an

offence punishable on conviction by a fine not exceeding

$250,000.").

He pleaded guilty before a magistrate, Mr D.M. Price S.M., in the St James Local Court, Sydney and was convicted and fined $9,000.

4. The Magistrate heard evidence and submissions on behalf of the

applicants, who, by then, had given notice to Bario purporting to

terminate the agreement. The Magistrate proceeded on the basis that

the applicants had a substantial interest in the "Jay Angela". He

found that they were not aware of its use for fishing in the AFZ;

that they were not interested in any catch from its unlawful use; and,

that they were not in a relationship of master and servant with Kevin

Canty. Nevertheless, he ordered that the "Jay Angela" be forfeited

under s.106 of the Act.

Section 106 relevantly provides, in sub-s.(1):

"Where a court convicts a person of an offence against

section ... 100 the court may order the forfeiture of:

(a) a boat, net, trap or equipment used in the commission

of the offence".

"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."

5. The applicants contend - and it is their only contention - that,

in so far as s.106(1)(a) of the Act authorizes an order for the

forfeiture of the property of persons referred to in argument as

"innocent third parties", it is invalid by reason that it authorizes

an acquisition of property other than on just terms as required by

s.51(xxxi) of the Constitution. That argument was rejected by the

Magistrate and the applicants claim that, in consequence, he purported

to exercise jurisdiction which he did not possess. They now apply for

6. Before turning to the substance of the applicants' case, it is

appropriate to note two matters which are not in contention. First,

the applicants accept, consistently with the decision in Cheatley v.

The Queen ((28) [1972] HCA 63; (1972) 127 CLR 291. There it was held that s.13AA(3)

of the Fisheries Act 1952-1970 (Cth), which allowed for orders for

"the forfeiture of any boat used in the commission of (an offence

under s.13AA(1))", extended to a boat which was the property of

a person, other than the person who committed the offence.) and, in

our view, correctly, that s.106(1)(a), if valid, authorizes the

forfeiture of a boat used in the commission of an offence under s.100

of the Act, even though the boat is not owned by the person who

committed that offence. They also accept that, if s.106(1)(a) is

valid, the order made by the Magistrate resulted in the forfeiture of

7. By s.51(xxxi) of the Constitution, the Commonwealth Parliament

has power, subject to the Constitution, to make laws with respect to:

"The acquisition of property on just terms from any State or

person for any purpose in respect of which the Parliament

has power to make laws".

8. It has long been established that, to the extent that s.51(xxxi)

confers legislative power, it also abstracts power with respect to the

acquisition of property from the other paragraphs of s.51 ((29) See

Johnston Fear and Kingham and The Offset Printing Co. Pty. Ltd. v. The

Commonwealth [1943] HCA 18; (1943) 67 CLR 314 at 318, 325; W.H. Blakeley and Co. Pty.

Ltd. v. The Commonwealth [1953] HCA 12; (1953) 87 CLR 501 at 521; Attorney-General

(Cth) v. Schmidt [1961] HCA 21; (1961) 105 CLR 361 at 371-372; Trade Practices

Commission v. Tooth and Co. Ltd. [1979] HCA 47; (1979) 142 CLR 397 at 403, 407, 427,

445-448; The Commonwealth v. Tasmania (The Tasmanian Dam Case) [1983] HCA 21; (1983)

158 CLR 1 at 282; Australian Tape Manufacturers Association Ltd. v. The

Commonwealth [1993] HCA 10; (1993) 176 CLR 480 at 526. Note, however, s.51(xxxiii),

which although also providing a power to acquire, does so with respect

to State railways, in circumstances amounting to a purchase: see

Australian Railways Union v. Victorian Railways Commissioners

[1930] HCA 52; (1930) 44 CLR 319 at 349.). It is

also well established that the power conferred by s.51(xxxi) is only

validly exercised if the law in question provides just terms ((30) See

Johnston Fear and Kingham and The Offset Printing Co. Pty. Ltd. v. The

Commonwealth [1943] HCA 18; (1943) 67 CLR 314; The Commonwealth v. Huon Transport Pty.

Ltd. [1945] HCA 5; (1945) 70 CLR 293 at 306; Bank of N.S.W. v. The Commonwealth ("the

Bank Nationalization Case") [1948] HCA 7; (1948) 76 CLR 1; PJ Magennis Pty. Ltd. v.

The Commonwealth [1949] HCA 66; (1949) 80 CLR 382; Australian Tape Manufacturers

Association Ltd. v. The Commonwealth (1993) 176 CLR at 509-511.).

These two features give s.51(xxxi) its character as a constitutional

guarantee against laws providing for the acquisition of property

9. It is clear that some laws stand wholly outside s.51(xxxi). In

Trade Practices Commission v. Tooth and Co. Ltd. ((31) [1979] HCA 47; (1979) 142 CLR

397.), Gibbs J considered various laws of that kind, saying ((32)

"it has been held that laws providing for the forfeiture

of prohibited imports ((33) Burton v. Honan [1952] HCA 30; (1952) 86 CLR 169 at

180-181.) , the compulsory payment of provisional tax ((34)

Commissioner of Taxation v. Clyne [1958] HCA 10; (1958) 100 CLR 246 at 263, 270.)

the application of the property of former enemy subjects

reparations ((35) Attorney-General (Cth) v. Schmidt [1961] HCA 21; (1961) 105 CLR

361.) are not within s.51(xxxi). Other laws to which s.51(xxxi)

obviously does not apply are those for the imposition of tax,

sequestration of the property of a bankrupt or the

condemnation of prize ((36) ibid. at 372-373. As to imposition

of a tax, see further, Federal Commissioner of Taxation v. Barnes

[1975] HCA 61; (1975) 133 CLR 483 at 494-495; MacCormick v. Federal Commissioner of

Taxation [1984] HCA 20; (1984) 158 CLR 622 at 638-639; Australian Tape Manufacturers

Association Ltd. v. The Commonwealth (1993) 176 CLR at 508-510;

and, as to sequestration of the property of a bankrupt, The

Tasmanian Dam Case (1983) 158 CLR at 282.)."

His Honour continued ((37) Trade Practices Commission v. Tooth and Co.

"I am not sure that a completely satisfactory explanation

has yet been given of the principles by which it is to be

determined which laws do, and which laws do not, fall within

s.51(xxxi). With great respect I doubt whether the

suggestion of Dixon CJ in Attorney-General (Cth) v.

Schmidt - that the section does not affect 'anything which

lies outside the very general conception expressed by the

phrase "use and service of the Crown"' - fully expresses the

ground of distinction."

10. There are two reasons why some laws stand outside s.51(xxxi).

The first is the nature of the guarantee effected by s.51(xxxi). As

we explain in Mutual Pools and Staff Pty. Ltd. v. The Commonwealth

((38) Unreported, High Court of Australia, 9 March 1994 at 21.), it is

an indirect guarantee which comes about in consequence of a rule of

construction and that rule is subject to any contrary intention that is

manifest from the terms or content of the other legislative powers

conferred by s.51. Thus, its guarantee of just terms does not apply to

laws clearly encompassed in another power as, for example, a law

imposing a tax or a law vesting a bankrupt's estate in an Official

Receiver or Trustee. The second is that there is no guarantee of "just

terms" outside the area in which s.51(xxxi) operates as a grant of

11. If s.51(xxxi) is viewed as, first and foremost, a constitutional

guarantee, there may be a tendency to approach it as if the words

"on just terms" were no more than a condition of the valid exercise

of a power with respect to the acquisition of property. However,

s.51(xxxi) is, primarily, a grant of power. The content of that power

and, hence, the area in which s.51(xxxi) operates as a guarantee of

acquisition on just terms can only be ascertained by reading that

paragraph as a whole and in that process it is necessary to have

regard to the words "acquisition of property on just terms" and "for

any purpose in respect of which the Parliament has the power to make

12. It is not necessary to repeat what we say in Mutual Pools with

respect to the effect of the words "for any purpose in respect of

which the Parliament has power to make laws" ( (39) See ibid. at 27.) .

However, it is necessary to elaborate a little on the phrase

"acquisition of property on just terms". Because s.51(xxxi) operates

as a constitutional guarantee ((40) Minister of State for the Army v.

Dalziel [1944] HCA 4; (1944) 68 CLR 261 at 276, 284-285; Bank Nationalization Case

(1948) 76 CLR at 349; Clunies-Ross v. The Commonwealth (1984) 155 CLR

193, at 201-202; The Tasmanian Dam Case (1983) 158 CLR at 282;

Australian Tape Manufacturers Association Ltd. v. The Commonwealth

(1993) 176 CLR at 509.), the words "acquisition" and "property" are to

be construed liberally ((41) Bank Nationalization Case (1948) 76 CLR

at 349-350; Attorney- General (Cth) v. Schmidt (1961) 105 CLR at

370-371; Clunies-Ross v. The Commonwealth (1984) 155 CLR at 202;

Australian Tape Manufacturers Association Ltd. v. The Commonwealth

(1993) 176 CLR at 509.). However, the power conferred by s.51(xxxi)

is one with respect to "acquisition of property on just terms". That

phrase must be read in its entirety and, when so read, it indicates

that s.51(xxxi) applies only to acquisitions of a kind that permit of

just terms. It is not concerned with laws in connection with which

"just terms" is an inconsistent or incongruous notion. Thus, it is

not concerned with a law imposing a fine or penalty, including by way

of forfeiture, or a law effecting or authorizing seizure of the

property of enemy aliens or the condemnation of prize. Laws of that

kind do not involve acquisitions that permit of just terms and, thus,

they are not laws with respect to "acquisition of property", as that

expression is used in s.51(xxxi). It follows that a law which effects

or authorizes forfeiture of property in consequence of its use in the

commission of an offence against the laws of the Commonwealth stands

outside s.51(xxxi).

13. The validity of a law that effects or authorizes forfeiture of

property in consequence of its use in the commission of an offence

depends on whether it can be characterized as a law with respect to

some matter concerning which the Commonwealth Parliament has power to

make laws. Almost invariably, the validity of a law which effects or

authorizes forfeiture of the property of "an innocent third party",

by which is meant a person who neither committed the offence nor

knowingly facilitated its commission, will depend on the law being

reasonably incidental to the power in question. And that will usually

involve a consideration of whether it is reasonably capable of being

seen as appropriate and adapted to achieving, or, as reasonably

proportionate to some object or purpose within power ((42) See,

generally, Nationwide News Pty. Ltd. v. Wills [1992] HCA 46; (1992) 177 CLR 1 at

14. It can, we think, be taken that a law for the forfeiture of the

property of an innocent third party, in the sense indicated, will not

often satisfy the tests which reveal whether a law is reasonably

incidental to a head of legislative power. However, a law authorizing

forfeiture of a foreign boat used for unlawful commercial fishing

in the AFZ, notwithstanding that its owner was not involved in that

unlawful fishing, is, at the very least, one that is reasonably

incidental to the protection and preservation of the subject-matter of

s.51(x) of the Constitution, namely, "(f)isheries in Australian waters

beyond territorial limits." Indeed, it was not suggested otherwise.

DAWSON J The "Jay Angela" is a fishing vessel, registered in New

Zealand, which along with associated equipment is valued by one valuer

at $A173,050 and by another at $A260,000. The registered owners of

the vessel are the applicants, Kevin Joseph Lawler and Peter Gerald

Penrose. Bario Enterprises Limited ("Bario Enterprises"), a New

Zealand company, is the registered lessee. The directors of Bario

Enterprises are Kevin Canty and his brother Trevor Wayne Canty.

2. By an agreement in writing dated 3 April 1992 the applicants

agreed to lease, and ultimately sell, the "Jay Angela" to Bario

Enterprises. The purchase price was $NZ440,000 plus GST and the

settlement date was 3 April 1994 or any earlier date on which Bario

Enterprises paid the balance of the purchase price. Rent was payable

at the rate of $NZ4,400 plus GST per month and an instalment of

$NZ5,000 of the purchase price was payable with each rental payment.

The balance of the purchase price was to be reduced each month by the

purchase price instalments and upon settlement the applicants were

to refund to Bario Enterprises the difference between the total rent

payments received by the applicants and interest, described as "rent",

at 12% per annum calculated monthly over the period of the agreement

3. The agreement provided that all fishing rights acquired by Bario

Enterprises during the term of the lease should automatically vest in

"(Bario Enterprises) shall during the term of the lease

use the ("Jay Angela") for lawful fishing purposes and

operations within the limits of the exclusive economic

zone as defined by the Territorial Sea and Exclusive

Economic Zone Act 1979 (N.Z.) or such other waters as the

(applicants) shall in writing agree."

The master of the vessel was named as "Kevin Canty/Trevor Wayne Canty"

and the Canty brothers were guarantors of Bario Enterprises'

4. On a number of occasions during the latter part of 1992 the

"Jay Angela" was inside the Australian fishing zone ("the AFZ").

On 5 December 1992 the vessel was intercepted in the AFZ and was

boarded. The master at the time was Kevin Canty. He was charged with

an offence under s.100(2) of the Fisheries Management Act 1991 (Cth)

of using a foreign fishing boat for commercial fishing at a place in

5. The prosecution sought an order for forfeiture under s.106 of the

Fisheries Management Act which, so far as is relevant, provides:

"(1) Where a court convicts a person of an offence

against section ... 100 the court may order the forfeiture

of:

(a) a boat, net, trap or equipment used in the

commission of the offence; or

(b) fish on board such a boat at the time of the

offence; or

(c) the proceeds of the sale of any such fish.

...

(3) 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."

6. The magistrate hearing the matter, Mr D.M. Price S.M., allowed the

applicants, as owners of the "Jay Angela", to be represented before

him and to submit that no order for forfeiture should be made in the

circumstances. The magistrate accepted that the applicants were not

aware of the fishing in the AFZ and that they were not interested in

any catch from the unlawful use of the vessel. He also accepted

that they had sought to terminate the lease of the vessel and would

suffer substantial financial losses should the vessel be forfeited.

Nevertheless he ordered the forfeiture of the vessel and of the

equipment used in the commission of the offence. In doing so, he

"The offence before the Court as I have found previously is

serious. The defendant deliberately on 27 occasions in a

comparatively modern vessel enter(ed) into Australian waters

and fished in those waters. A large amount of fish (was

caught) to the value on my calculations of A$52,750.35. I

am of the opinion that this is a case where the imposition

of the fine of $9,000 will not provide adequate protection

of Australian fishing grounds and will not satisfy the need

for deterrence."

7. These proceedings are by way of application by the lessors of the

"Jay Angela" for writs of prohibition and certiorari in relation to

the decision of the magistrate. They seek to prevent the enforcement

8. The applicants accept that if they had used the vessel in the

commission of the offence, its forfeiture might be regarded as part of

the penalty for the offence and would either not be an acquisition or

would be on just terms. But they say that a law which deprives them

of their interest in the vessel when they were not involved in the

offence constitutes an acquisition of property upon terms which are

not just. Having regard to the terms of the agreement under which the

"Jay Angela" was let to Bario Enterprises, it is not beyond question

that the applicants were uninvolved in the activities of the vessel.

Moreover, the interest of Bario Enterprises in the vessel would seem

to have extended beyond that of a mere lessee. However, the

magistrate accepted that there was no master-servant relationship

between the applicants and those operating the vessel and it is

convenient to assume that the applicants were not involved in its

9. In the way that it is put by the applicants, the argument never

really reaches s.51(xxxi). The essence of the argument under

s.51(xxxi) is that the acquisition of property belonging to a person

uninvolved in an offence cannot be characterized as a penalty. But

if the forfeiture of the vessel is not a penalty for the offence, it

would also lie outside the relevant head of legislative power, namely,

s.51(x) of the Constitution. That paragraph provides that the

Parliament may make laws with respect to "Fisheries in Australian

waters beyond territorial limits" ((43) Reliance was also placed upon

s.51(xxix), the external affairs power.). Quite clearly it is

incidental to the main purpose of the fisheries power to impose

penalties on foreign vessels which fish in the AFZ. But if a law

providing for the forfeiture of a vessel were not regarded as the

imposition of a penalty because the vessel's owners had an

insufficient connection with its prohibited use, that law would not be

incidental to the main purpose of the fisheries power. It would then

not be possible to resort to s.51(xxxi), because the forfeiture would

not be for any purpose in respect of which the Parliament has power to

make laws, and s.51(xxxi) only confers the power to acquire property

10. Even where a forfeiture does constitute a penalty, the law

imposing the penalty does not constitute an acquisition of property

for a purpose in respect of which the Parliament has power to make

laws. The imposition of a penalty may be incidental to the main

purpose of a power which the Parliament does have, but the imposition

of a penalty is not a purpose in itself with respect to which the

Parliament has power to make laws ((44) See Burton v. Honan [1952] HCA 30; (1952) 86

CLR 169 at 180-181; Mutual Pools and Staff Pty. Ltd. v. The

Commonwealth, unreported, 9 March 1994 at 39 per Dawson and Toohey JJ).

It must be remembered that to be within s.51(xxxi) the actual

acquisition of property, and not the law within which the power of

acquisition is to be found, must be for a purpose in respect of which

the Parliament has power to make laws. For similar reasons, therefore,

an acquisition of property by a forfeiture which is not a penalty would

not be an acquisition for a purpose in respect of which the Parliament

11. Be that as it may, in my view the forfeiture of the "Jay Angela"

ordered by the magistrate pursuant to s.106(1) was by way of penalty,

even though the applicants were not involved in the crime. The

forfeiture was validly authorized by s.106(1) as an incident of the

legislative power conferred by s.51(x). Confiscation of property

connected with the commission of crimes was long part of the common

law and had its origin in the doctrines of attainder and deodand ((45)

Freiberg, "Criminal Confiscation, Profit and Liberty", (1992) 25

Australian and New Zealand Journal of Criminology 44; Calero-Toledo v.

Pearson Yacht Leasing Co. [1974] USSC 126; (1974) 416 US 663 at 680- 682.).

Property could be forfeited even if its owner was not involved in

the crime ((46) Mitchell v. Torup (1766) Parker 227 at 232-234 (145 ER

764 at 766); Rolle, Un Abridgment des plusieurs Cases et Resolutions

del Common Ley, (1668) at 530.). Forfeiture at common law was

abolished in England in 1870 and thereafter in this country ((47) See,

e.g., Forfeitures for Treason and Felony Abolition Act 1878 (Vict.).),

but statutory powers of forfeiture have remained in certain areas and,

indeed, have been introduced in some new areas ((48) See, e.g., Crimes

(Confiscation of Profits) Act 1986 (Vict.).). Smuggling was one

activity which traditionally attracted confiscatory penalties and as

Barwick CJ remarked in Cheatley v. The Queen ((49) [1972] HCA 63; (1972) 127 CLR

291 at 296; see also ibid. at 311; Forbes v. Traders' Finance

Corporation Ltd. [1971] HCA 60; (1971) 126 CLR 429 at 441-442.):

"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."

12. A punishment may have more than one aim, but in addition to the

common aims of deterrence ((50) Burton v. Honan (1952) 86 CLR at

178-179; Mitchell v. Torup (1766) Parker at 232-234 (145 ER at 766).)

and retribution, forfeiture by way of penalty has an element of

incapacitation which has no regard to the innocence or otherwise of the

person who must bear the loss of property. Rather the concern of the

law is that the offence will not be repeated by the same means. As the

Supreme Court of the United States observed in Calero-Toledo v. Pearson

Yacht Leasing Co. ((51) (1974) 416 US at 686-687.):

"Forfeiture of conveyances that have been used - and may be

used again - in violation of the narcotics laws fosters the

purposes served by the underlying criminal statutes, both

by preventing further illicit use of the conveyance and by

imposing an economic penalty, thereby rendering illegal

behavior unprofitable. ... To the extent that such

forfeiture provisions are applied to lessors, bailors, or

secured creditors who are innocent of any wrongdoing,

confiscation may have the desirable effect of inducing them

to exercise greater care in transferring possession of their

property."

13. In Burton v. Honan ((52) [1952] HCA 30; (1952) 86 CLR 169; and see also Forbes v.

Traders' Finance Corporation Ltd. [1971] HCA 60; (1971) 126 CLR 429; Cheatley v. The

Queen (1972) 127 CLR at 296, 303, 310.) this Court upheld the

forfeiture of a motor car imported in contravention of customs

legislation notwithstanding that the car had found its way into the

hands of an innocent purchaser. Under the relevant legislation the

conviction of the offender operated as a condemnation of the goods and

the legislation was upheld as dealing with matters incidental to trade

and commerce or to taxation. The penalty operated harshly upon the

innocent purchaser but, as Dixon CJ pointed out ((53) ibid. at 179.)

, "once the subject matter is fairly within the province of the

Federal legislature the justice and wisdom of the provisions which it

makes in the exercise of its powers over the subject matter are

matters entirely for the Legislature and not for the Judiciary".

14. In Nationwide News Pty. Ltd. v. Wills ((54) [1992] HCA 46; (1992) 177 CLR 1 at

87-88.) I observed that there are dangers in the use of reasonable

proportionality as a test of whether there is a sufficient connection

between a law and the subject matter of a power. The question is, of

course, one of connection, not whether the means adopted to achieve the

end are appropriate or desirable in the view of the Court. And

notwithstanding the immediate operation of the law, if its end lies

within the scope of the power, then there will ordinarily be a

sufficient connection to support the law. In the present case, there

is to my mind an evident connection between the confiscation of a

foreign vessel which has been found poaching upon Australian fishing

grounds and the subject matter of fisheries in Australian waters

beyond territorial limits. The absence or lack of involvement of the

owners of the vessel in the illegal activity is not sufficient to

15. Section 106 of the Fisheries Management Act 1991 (Cth) is, in

my view, a law dealing with a matter which is incidental to the

power contained in s.51(x) of the Constitution. That being so, the

forfeiture imposed pursuant to that section in this case raises no

question of an acquisition of property within the meaning of

s.51(xxxi). As Toohey J and I have previously pointed out ((55)

Mutual Pools and Staff Pty. Ltd. v. The Commonwealth, unreported, 9

March 1994 at 39; see also Trade Practices Commission v. Tooth and Co.

Ltd. [1979] HCA 47; (1979) 142 CLR 397 at 454-455; Reg. v. Smithers; Ex parte McMillan

[1982] HCA 76; (1982) 152 CLR 477 at 488-489.), as a matter of nomenclature a

confiscation or forfeiture of property is not the same thing as an

acquisition of property even though both involve the passing of

property. But in any event, a confiscation or forfeiture by way of

penalty does not involve an acquisition of property for any purpose in

respect of which the Parliament has power to make laws. The purpose of

the confiscation or forfeiture is complete at the time at which it

takes place and the property in the confiscated matter passes to the

16. For these reasons, I would uphold the validity of s.106 and refuse

TOOHEY J I would refuse the application for writs of prohibition

2. I agree substantially with the reasons advanced by Dawson J

However, I would reserve for another day the question whether

reasonable proportionality is a test of whether there is a sufficient

connection between a law and the subject matter of a power conferred

on the Parliament by s.51 of the Constitution. I do so because

s.106(1) of the Fisheries Management Act 1991 (Cth), which relevantly

authorises the forfeiture of a foreign boat used for commercial

fishing in the Australian fishing zone where there is not in force an

appropriate foreign fishing licence, is on any view within s.51(x)

of the Constitution. Clearly, the sub-section is a law "with respect

to" the power contained in par.(x) - "Fisheries in Australian waters

beyond territorial limits". Indeed, the applicants did not contend

3. The order for forfeiture of the fishing vessel made by the

magistrate pursuant to s.106(1) raises no question of acquisition

of property within the meaning of s.51(xxxi) of the Constitution.

Dawson J has referred to the comment in our joint judgment in

Mutual Pools and Staff Pty. Limited v. The Commonwealth ((56)

Unreported, High Court of Australia, 9 March 1994.) that, as a matter

of nomenclature, forfeiture of property is not the same thing as

acquisition of property. And in that joint judgment the point is made

((57) ibid. at 39.) that forfeiture does not involve the acquisition

of property for any purpose for which the Parliament has power to make

laws because the purpose of the forfeiture is complete at the moment

of acquisition. As Dixon CJ said of forfeiture in Burton v.

Honan ((58) [1952] HCA 30; (1952) 86 CLR 169 at 180.): "the whole matter lies

outside the power given by s.51(xxxi)".

McHUGH J The prosecutors seek the issue of a writ of prohibition

directed to the respondents prohibiting them from acting upon or

enforcing an order for forfeiture made under s.106 of the [Fisheries

](/cgi-bin/viewdoc/au/legis/cth/consol_act/fma1991193/)Management Act 1991 (Cth) ("the Act") in respect of the fishing

vessel, the "Jay Angela". The prosecutors also seek the issue of a

writ of certiorari to quash the order of forfeiture. They contend

that the forfeiture constitutes an acquisition of the property of the

prosecutors on terms which are not just, contrary to s.51(xxxi) of the

Constitution.

2. The complete answer to the contention of the prosecutors is that

an order made under s.106 does not effect an acquisition of property

for the purposes of s.51(xxxi). An order made under s.106 is a

drastic but incidental measure whose purpose is to facilitate

compliance with those provisions of the Act which regulate commercial

fishing in Australian waters. When the forfeiture of property is a

reasonably proportional consequence of a breach of a law passed under

a power conferred by s.51 of the Constitution, no acquisition of

property for the purpose of s.51(xxxi) takes place. The notion of

paying fair compensation to the owner of property which is validly

forfeited to the Crown for a breach of the law is simply absurd. In

the case of the forfeiture of property to the Commonwealth for breach

of a law of the Parliament, the question is whether the forfeiture

is reasonably incidental to the exercise of a power other than

s.51(xxxi). If it is not, the forfeiture is invalid. If it is,

s.51(xxxi) has no operation.

3. The prosecutors were the owners of the "Jay Angela" which, for the

purpose of the Act, was a foreign fishing vessel registered in New

Zealand. In April 1992, the prosecutors entered into an agreement

with Bario Enterprises Limited for the lease and eventual purchase

of the "Jay Angela", the purchase to be completed in April 1994. The

purchase price was $NZ440,000 plus Goods and Services Tax ("GST").

Purchase instalments of $NZ5,000 per month were to be paid during the

currency of the agreement together with an annual rental of $NZ52,800

4. In 1993, Kevin Canty, the master of the "Jay Angela", pleaded

guilty before a magistrate, the first respondent, to an offence

against s.100(2) of the Act. The offence was based on s.100(1) of the

Act which provides that a person must not use a foreign boat in the

Australian Fishing Zone for commercial fishing without a licence.

Kevin Canty and his brother were directors of Bario Enterprises

Limited. The Canty brothers were also guarantors of the lease and

purchase agreement. The learned magistrate found that Kevin Canty was

not the servant or agent of the prosecutors, that they were not aware

that Canty had fished in Australian waters, and that they had no

financial interest "in any catch from the unlawful use of the vessel".

Although the learned magistrate found that the prosecutors were

"innocent third parties", he exercised his discretion under

s.106(1)(a) of the Act to order the forfeiture of the vessel.

"(1) Where a court convicts a person of an offence

against section ... 100 the court may order the forfeiture

of:

(a) a boat ... used in the commission of the offence

...

(3) Any boat ... ordered by a court to be forfeited

becomes the property of the Commonwealth".

5. It was not disputed that, if s.106 validly applied in the

circumstances of this case, the order of forfeiture was within the

discretion of the learned magistrate. The concession was correctly

made. Cheatley v. The Queen ((59) [1972] HCA 63; (1972) 127 CLR 291.) held that

similar legislation empowered a court to order the forfeiture of a

vessel even though the vessel was not the property of the person

committing the offence. Furthermore, Mr Jackson, QC for the

prosecutors conceded that the penalty for breach of federal law may

include the forfeiture of property involved in the offence and that

such a forfeiture does not constitute an acquisition of property for

the purposes of s.51(xxxi). He did not dispute that no breach of

s.51(xxxi) would have occurred if Kevin Canty had been the owner of the

"Jay Angela". But he contended that the case is different when the

owner of the vessel can "demonstrate an absolute innocence in relation

to the matter". On that hypothesis, the law is not enforcing a penalty

but unjustly providing for the acquisition of the property of the

6. It is, however, much too narrow a view of the fisheries power ((60)

Section 51(x) of the Constitution provides:

"The Parliament shall, subject to this

Constitution, have power to make laws for the peace,

order and good government of the Commonwealth with

respect to:-

...

(x) Fisheries in Australian waters beyond territorial

limits".)

to conclude that the Parliament has no power to order the forfeiture

of a foreign fishing vessel involved in a breach of s.100 unless just

compensation is paid to every innocent person having a proprietary

interest in the vessel. The object of s.100 is to protect Australian

fishing grounds from exploitation by foreign fishing vessels without

the consent of the executive government ((61) Cheatley (1972) 127 CLR

at 296.). Forfeiture of foreign vessels involved in illegal fishing

in Australian waters is a reasonably proportional means of achieving

that object. Of course, in determining whether a law is a reasonably

proportional means of achieving a legislative purpose, the Court must

take into account the adverse impact of the law on those affected by

the law. But forfeiture of property used or involved in the commission

of a breach of the criminal or civil law has been seen for centuries as

a reasonably appropriate means of obtaining compliance with such a

law, irrespective of the degree of fault attributable to the owner of

7. Customs legislation in particular has contained forfeiture

provisions which have been "common, drastic and far-reaching, and ...

considered a necessary measure to vindicate the right of the Crown and

to ensure the strict and complete observance of the Customs laws,

which are notoriously difficult of complete enforcement in the absence

of strong provisions supporting their administration" ((62) Burton v.

Honan [1952] HCA 30; (1952) 86 CLR 169 at 178-179 per Dixon CJ). So in Burton v.

Honan ((63) [1952] HCA 30; (1952) 86 CLR 169.), the Court upheld the validity of a

section of the Customs Act 1901 (Cth) which provided for the forfeiture

of unlawfully imported goods even in those cases where they had been

released from the control of the Customs and might "be found in the

hands of persons who have dealt with them quite honestly and have

acquired apparent title to them as the last of a line of successive

people all dealing in perfect bona fides and for value" ((64) ibid. at

178.). In Forbes v. Traders' Finance Corporation Ltd. ((65) [1971] HCA 60; (1971)

126 CLR 429.), this Court held that, upon the proper construction of a

provision of the Customs Act, it provided for the forfeiture of goods

used in the unlawful importation or conveyance of goods even though the

owner of the first-mentioned goods was unaware of the use to which they

were being put. In Forbes, without the knowledge of the owner, a motor

vehicle had been loaded by the hirer with a consignment of unlawfully

imported birds. The Court held that the effect of the legislation was

that motor vehicles became forfeited to the Crown. However, no

challenge to the validity of the legislation was made in that case.

8. In my opinion, the reasons that led this Court in Burton to

conclude that the forfeiture provisions of the Customs Act did not

infringe the provisions of s.51(xxxi) are equally applicable to

s.106 of the Act. 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 ((66) See Calero-Toledo v. Pearson

Yacht Leasing Co. [1974] USSC 126; (1974) 416 US 663 at 687.). 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

9. In Cheatley ((67) (1972) 127 CLR at 296.), Barwick CJ declared

"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".

Mason J pointed out ((68) ibid. at 311.) that the difficulties of

"enforcing compliance along the length of the Australian coastline

called for a stern deterrent". In the same case, Walsh J, who

dissented on the construction of the legislation, nevertheless said

((69) ibid. at 307.) that forfeiture 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)".

10. Of course, the Parliament could have provided that a vessel was

not to be forfeited if the owner proved that he or she had taken

every reasonable step to prevent a breach of the Act. But the fact

that the Parliament has chosen to make liability to forfeiture

independent of the fault of the owner does not make s.106 unreasonably

disproportionate to the purpose which it seeks to achieve. The

section is not invalid because, among a range of reasonable measures

to combat breaches of the Act, the Parliament has chosen a

particularly drastic one. Section 106 is reasonably incidental to the

fisheries power. Once that conclusion is reached, the case is outside

11. In my opinion, s.106 of the Act is a valid law of the