High Court of Australia|1994-03-09|Before: Mason CJ

Re Director of Public Prosecutions; Ex Parte Lawler [1994] HCA 10; (1994) 179 CLR 270; (1994) 119 ALR 655; (1994) 68 ALJR 289 (9 March 1994)

EX PARTE LAWLER AND ANOTHER [1994] HCA 10; (1994) 179 CLR 270

MASON CJ(1), BRENNAN(2), DEANE(3), DAWSON(4), TOOHEY(5), GAUDRON(3) AND McHUGH(6) JJ

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

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

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):

Re Director of Public Prosecutions; Ex Parte Lawler [1994] HCA 10; (1994) 179 CLR 270; (1994) 119 ALR 655; (1994) 68 ALJR 289 (9 March 1994)

At a glance

Court

Decision date

Before

Source

Judgment (684 paragraphs)

Re Director of Public Prosecutions; Ex Parte Lawler [1994] HCA 10; (1994) 179 CLR 270; (1994) 119 ALR 655; (1994) 68 ALJR 289 (9 March 1994)

Legislation Cited (14)

Cases Cited (28)