FEDERAL COURT OF AUSTRALIA
Sahring v Commonwealth of Australia [2014] FCA 246
FEDERAL COURT OF AUSTRALIA
Sahring v Commonwealth of Australia [2014] FCA 246
CORRIGENDUM
1. At paragraph 95, line 3 and paragraph 101, line 3 of the Reasons for Judgment, the term “AMSA” should read “AFMA”.
2. At paragraph 97, line 2 the reference to “cl 8(1)(d)” should read “cl 8(1)(b)”.
| I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Mansfield. |
Associate:
Dated: 11 June 2014
| NORTHERN TERRITORY DISTRICT REGISTRY | |
| GENERAL DIVISION | NTD 9 of 2011 |
| BETWEEN: | SAHRING First Applicant GUNTAR DAHLAN Second Applicant MUSTAFA Third Applicant HAJI MAPPIARE Fourth Applicant HAJI HAMITTU Fifth Applicant FICKHAR Sixth Applicant |
| AND: | COMMONWEALTH OF AUSTRALIA First Respondent AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Second Respondent |
| JUDGE: | MANSFIELD J |
| DATE: | 1 APRIL 2014 |
| PLACE: | ADELAIDE |
REASONS FOR JUDGMENT
INTRODUCTION
1 This matter has proceeded as a claim for the first applicant, Sahring only. The application by the other applicants has been stood over, by order made on 12 May 2011. I made final orders on this application on 19 March 2014. These are my reasons for those orders. Pursuant to Order 3, the time for any appeal is extended to run from 1 April 2014.
2 Much of the primary factual material is not disputed. Sahring is a citizen of Indonesia. He lives in or near the village of Oesapa, in Kupang, West Timor, Indonesia. As at 29 April 2008 he was the master and owner of the Indonesian fishing vessel, Eka Sakti.
3 On 29 April 2008, the Royal Australian Navy Armidale Class Patrol Boat, HMAS Broome, was patrolling in northern Australian waters in an area south of the Australian Seabed Boundary Line (ASBL) between Australia and Indonesia, and north of the Provisional Fisheries Surveillance and Enforcement Line (PFSEL), being an Australian fisheries enforcement area in relation to sedentary species known as Area B.
4 At approximately 0850 hours local time on 29 March 2008, a Contact of Interest was observed in Area B on HMAS Broome’s Navigation Data System, which was later identified as the Eka Sakti.
5 At approximately 0854 hours on 29 April 2008, HMAS Broome’s Commanding Officer, Lieutenant Commander Grant, gave orders to bring HMAS Broome to Boarding Stations, and a six man Boarding Party lead by Chief Petty Officer Boatswain (CPOB) Glenn Peck was launched in HMAS Broome’s Rigid Hull Inflatable Boat. Commander Zilko gave the order for the Boarding Party to “insert” on the EKA Sakti at 0909 hours on 29 April 2008.
6 At approximately 0912 hours on 29 April 2008, all members of the Boarding Party had boarded the Eka Sakti. The vessel was then searched and Sahring was interviewed by CPOB Peck and Petty Officer Boatswain (POB) Peter Morrison using Indonesian Translation Cards.
7 At approximately 0942 hours on 29 April 2008, CPOB Peck compiled and sent a fishing report (Fishrep) to Commander Zilko on HMAS Broome recommending that Eka Sakti be apprehended and destroyed. Commander Zilko then authorised the transmission of the Fishrep to Headquarters Joint Task Force 639 in Darwin and the National Surveillance Centre in Canberra, and it was transmitted at approximately 1038 hours.
8 At 1115 hours on 29 April 2008, Commander Zilko received approval from the second respondent Australian Fisheries Management Authority (AFMA) to apprehend and destroy the Eka Sakti.
9 At approximately 1136 hours on 29 April 2008, CPOB Peck showed Indonesian Translation Card 74 to Sahring which advised that the boat had been apprehended and would be destroyed at sea, and that he and his crew would be transported to a place in Australia for further investigation into possible breaches of Australian fisheries law.
10 CPOB Peck then handed Sahring a seizure notice pursuant to s 106C of the Fisheries Management Act 1991 (Cth) (the FMA).
11 At approximately 1140 hours on 29 April 2008, Sahring and the Eka Sakti’s crew were transferred to HMAS Broome. The Eka Sakti was prepared for destruction by burning at sea on 29 April 2008.
12 HMAS Broome then sailed towards Darwin, and subsequently transferred Sahring and the Eka Sakti’s crew to HMAS Glenelg. HMAS Glenelg arrived at Darwin on 2 May 2008.
13 On 2 May 2008, Sahring and the Eka Sakti’s crew were detained by detention officer Ms Cindy Johnson at the Northern Immigration Detention Centre in Darwin pursuant to subclause 10(1) of Sch 1A of the FMA.
14 On 12 May 2008, Sahring was detained under s 189(1) of the Migration Act 1958 (Cth) (the Migration Act) as an unlawful non-citizen.
15 On 11 June 2008, an information on oath for an indictable offence was made by Wayne Morris Allen in the Court of Summary Jurisdiction at Darwin returnable on 13 June 2008, alleging that on about 29 April 2008 Sahring had committed an offence by engaging in conduct contrary to s 101(2) of the FMA. On 18 July 2008, an ex officio indictment was presented to the Supreme Court of the Northern Territory against Sahring based on the same alleged offence and the summary chargers were subsequently dismissed by the Magistrate. On the same day, Sahring was arraigned, entered a plea of not guilty, and was granted conditional bail in the Supreme Court criminal proceedings.
16 On 19 July 2008, Sahring was removed from Australia in accordance with s 198 of the Migration Act and flown to Kupang, West Timor. Thus, Sahring was kept in custody for some 82 days.
17 On 10 March 2010, the High Court delivered its decision in Muslimin v The Queen (2010) 240 CLR 470. As a result of that decision, the prosecution against Sahring could no longer be sustained.
18 Sahring has claims for damages or compensation under s 167A of the FMA arising from the seizure and destruction of the Eka Sakti and the equipment on it, and for his unlawful detention.
19 It is accepted that the officers of HMAS Broome were members of the Australian Navy, operating under and for the purposes of the Defence Act 1903 (Cth), and were also officers appointed under and for the purposes of the FMA, and so acting on behalf of AFMA. Consequently, it is accepted that, if either or both of Sahring’s claims succeed, both the Commonwealth and AFMA are liable for wrongs committed by the officers of HMAS Broome on 29 April 2008 and in relation to Sahring’s subsequent detention until 26 July 2008.
THE ISSUES
20 As a result of the refinement of the parties, the issues which emerged from those primary facts. They were helpfully identified by counsel for Sahring in the following way:
1.1 Was the Eka Sakti forfeited to the Commonwealth under s 106A of the FMA at the time it was seized and then destroyed on 29 April 2008?
There are two separate issues to this question.
• did Sahring commit an offence under s 100?
• is s 106A extended by s 12(2) to this area?
If the respondents fail on either of these issues, the Eka Sakti was not forfeited.
1.2 If not, were the respondents otherwise lawfully entitled to seize and destroy the Eka Sakti on 29 April 2008?
There are three separate issues to this question.
• is action founded on a mistaken assumption that s 106A extends to this area authorised by s 84(1)(ga)?
• if so, who was the “officer” who seized the Eka Sakti purportedly under s 84(1)(ga) and who therefore must have the “reasonable grounds” to believe that the Eka Sakti was forfeited to the Commonwealth under s 106A?
• did he have reasonable grounds? In this respect, in forming a reasonable belief, the officer “is obliged to make due inquiry to obtain material likely to be relevant to the formation of that (belief”.
1.3 If not, are they nevertheless immune from claim because Eka Sakti has been condemned by reason of Sahring’s failure to make a claim under s 106E within 30 days?
There are three separate issues to this question.
• was a valid notice given under s 106C?
• if not, are the respondents estopped from relying on s 106E?
• if not, does the operation of s 106E result in the acquisition of property otherwise than on just terms such as to give rise to a right to compensation under s 167A?
1.4 Was Sahring falsely imprisoned by the respondents between 29 April 2008 and 12 May 2008?
As a result of the primary facts, this question requires an examination of three separate periods.
• 29 April 2008 to 2 May 2008, whilst Sahring was transported to the Australian mainland;
• 2 May 2008 and 9 May 2008, following the purported exercise by Ms Ward of her power sunder cl 8 of Sch 1A; and
• 9 May 2008 to 12 May 2008 (in respect of this period, it is not disputed that Sahring was unlawfully detained).
1.5 If the respondents have committed an actionable wrong or wrongs, what damages should be awarded to Sahring.
The damages claimed are:
• damages for unlawful detention;
• damages for conversion of the boat;
• damages for loss of income as a result of the conversion of the boat;
• interest
Statutory Framework
21 Division 5 of Part 6 of the FMA sets out enforcement provisions in relation to foreign boats. Relevantly, ss 100 and 101 provide as follows:
100 Using foreign boat for fishing in AZ – strict liability offence
(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; or
(b) If the boat is a Treaty boat – a Treaty licence is in force in respect of the boat 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 2,500 penalty units.
(2A) Strict liability applies to subsection (2).
(3) …
(4) …
101 Having foreign boat equipped with nets etc. – strict liability offence
(1) A person must not, at a place in the AFZ, have in his or her possession or in his or her charge a foreign boat equipped with nets, traps or other equipment for fishing unless:
(a) The use, or presence, of the boat at that place is authorised by a foreign fishing licence, or a port permit; or
(b) A Treaty licence is in force in respect of the boat; or
(c) The boat’s nets, traps or other equipment for fishing are stored and secured and the boat is at that location in accordance with the approval of AFMA given under, and in accordance with, the regulations; or
(d) The boat’s nets, traps or other equipment are stored and secured and the boat was travelling through the AFZ from a point outside the AFZ to another point outside the AFZ by the shortest practicable route; or
(e) The use of the boat for scientific research purposes in that area is authorised under a scientific permit.
(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 2,500 penalty units.
(2A) Strict liability applies to subsection (2).
(3) …
(4) …
22 The offences in ss 100 and 101 are strict liability offences (ss 100(2A) and 101(2A)). Section 6.1 of the Criminal Code (Cth) provides that where an offence is an offence of strict liability, there are no fault elements for any of the physical elements of the offence, and the defence of mistake of fact under s 9.2 is available. However, pursuant to ss 9.3 and 9.4 of the Criminal Code, a person can be criminally responsible for an offence, even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of an Act or the subordinate legislation that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.
23 Section 100A of the FMA provides for a similar offence to the offence in s 100, except that there is a fault element of recklessness and a higher penalty. Likewise, s 101A provides for an offence similar to the offence in s 101, except that there is a fault element of recklessness and a higher penalty.
24 The term “AFZ” is defined by s 4 of the FMA to mean “the Australian fishing zone”. That term is also defined by s 4 as follows:
Australian fishing zone means
(a) The waters adjacent to Australia within the outer limits of the exclusive economic zone adjacent to the coast of Australia; and
(b) The waters adjacent to each external territory within the outer limits of the exclusive economic zone adjacent to the coast of the external territory;
but does not include:
(c) Coastal waters of, or waters within the limits of, a State or Internal Territory; or
(d) Waters that are excepted waters.
25 The term “exclusive economic zone” in paragraphs (a) and (b) of the definition of “Australian fishing zone” is defined in s 4 as:
Exclusive economic zone means the exclusive economic zone within the meaning of the Seas and Submerged Lands Act 1973.
26 Section 3(1) of the Seas and Submerged Lands Act 1973 defines exclusive economic zone to have the same meaning as in Articles 55 and 57 of the United Nations Convention on the Law of the Sea (UNCLOS).
27 The term “fishing” is defined in s 4 of the FMA as:
(a) searching for, or taking, fish; or
(b) attempting to search for, or take, fish; or
(c) engaging in any other activities that can reasonably be expected to result in the locating, or taking, of fish; or
(d) placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons; or
(e) any operations at sea directly in support of, or in preparation for, any activity described in this definition; or
(f) aircraft use relating to any activity described in this definition except flights in emergencies involving the health or safety of crew members or the safety of a boat; or
(g) the processing, carrying or transhipping of fish that have been taken.
28 Section 12 of the FMA extends the provisions of that Act in relation to fishing in the AFZ, or a fishery, to fishing for sedentary organisms in or on any part of the Australian continental shelf not within the AFZ as if they were within the AFZ or the fishery. It relevantly provides that:
12 Sedentary Organisms – Australian continental shelf
(1) If the Governor-General is satisfied that a marine organism of any kind is, for the purposes of international law, part of the living natural resources of the Australian continental shelf because it is, for the purposes of international law, an organism belonging to a sedentary species, the Governor-General may, by Proclamation, declare the organism to be a sedentary organism to which this Act applies.
(2) Were by this Act (other than Part 5), or the regulations, provision is made in relation to fishing in the AFZ or a fishery, such provision, to the extent that it is capable of doing so, extends by force of this section to fishing for sedentary organisms, in or on any part of the Australian continental shelf not within the AFZ or the fishery as if they were within the AFZ or the fishery.
(3) Without limiting the operation of subsection (2), a reference in that subsection to making provision in relation to fishing includes a reference to making provision in respect of:
(a) the granting of fishing concessions, scientific permits and foreign master fishing licences; and
(b) the prohibition or regulation of fishing; and
(c) the powers of officers.
(4) A reference in this section to the Australian continental shelf includes a reference to the waters above the Australian continental shelf.
29 On 12 December 1995, the Governor-General of the Commonwealth declared the organisms belonging to the species set out in the Schedule as sedentary organisms to which the FMA applies. The declaration has been registered as a legislative instrument under the Legislative Instruments Act 2003 (Cth), F2005B01608.
30 The term “officer” is defined in s 4 of the FMA as:
officer means:
(a) a person appointed under section 83 to be an officer for the purposes of this Act; or
(b) a member or special member of the Australian Federal Police or a member of the police force of a State or Territory; or
(c) a member of the Defence Force; or
(d) an officer of Customs (as defined in the Customs Act 1901).
31 Section 84 of the FMA gives various powers to officers in relation to boarding and searching vessels, vehicles, aircraft and premises, and to give directions to the master of a vessel, and to seize a vessel, its nets, traps and equipment and the fish on board the vessel. Relevantly, ss 84(1)(a), (c) and (ga) provide:
84 Power of officers
(1) An officer may:
(aa) …
(a) Board a boat in the AFZ or in Australia or an external Territory or a boat that the officer has reasonable grounds to believe has been used, is being used, or is intended to be used, for fishing in the AFZ may:
(i) search the boat for fish, for equipment that has been used, is being used, is intended to be used or is capable of being used for fishing or for any document or record relating to the fishing operations of the boat; and
(ii) break open any hold, compartment, container or other receptacle on the boat that the officer has reasonable grounds to believe contains anything that may afford evidence as to the commission of an offence against this Act; and …
(c) examine anything found by action taken under paragraph (a), (aaa) or (b); and
(ga) seize all or any of the following that are forfeited to the Commonwealth under s 106A or that the officer has reasonable grounds to believe are forfeited under that section:
(i) a boat;
(ii) a net, trap or other equipment;
(iii) fish; and …
(gd) seize anything:
(i) that is on, in or attached to a boat and that forms part of the boat; and
(ii) that is the property of the Commonwealth because of the operation of section 106AD or that the officer has reasonable grounds to believe are the property of the Commonwealth because of the operation of that section; and …
32 Section 106A of the FMA provides for the automatic forfeiture of foreign boats used in certain offences, and the automatic forfeiture of nets, traps, equipment and fish on such a boat or involved in the commission of such an offence.
106A Forfeiture of things used in certain offences
The following things are forfeited to the Commonwealth:
(a) A foreign boat used in an offence against:
(i) subsection 95(2); or
(ii) section 99; or
(iii) section 100; or
(iv) section100A; or
(v) section 100B; or
(vi) section 101; or
(vii) section 101A; or
(viii) section 101AA;
(b) a boat used in an offence against section 101B as a support boat (as defined in that section);
(c) a net or trap, or equipment, that:
(i) was on a boat described in paragraph (a) or (b) at the time of the offence mentioned in that paragraph; or
(ii) was used in the commission of an offence against subsection 95(2) or section 99, 100, 100A, 100B, 101, 101A, 101AA or 101B;
(d) fish:
(i) on a boat described in paragraph (a) or (b) at the time of the offence mentioned in that paragraph; or
(ii) involved in the commission of an offence against subsection 95(2) or section 99, 100, 100A, 100B, 101, 101A, 101AA or 101B.
33 Section 106AD of the FMA provides:
106AD Things on, in or attached to boats.
At any time during which a boat is the property of the Commonwealth because:
(a) The court has ordered the forfeiture of the boat under section 106; or
(b) The boat is forfeited under section 106A;
anything on, in or attached to the boat that forms part of the boat is also the property of the Commonwealth.
34 Subdivision C of Division 6 of Part 6 of the FMA is entitled “Dealing with things seized as automatically forfeited”. Section 106B sets out rules dealing with things seized under s 84(1)(ga), (gb), (gc) and (gd) as automatically forfeited under Subdivision B, or seized as the property of the Commonwealth under Subdivision BA, or things seized because an officer has reasonable grounds to believe they are forfeited or the property of the Commonwealth under those subdivisions. Relevantly, ss 106C, 106D and 106E provide that:
106C Notice of Seizure
Giving notice
(1) The officer must give written notice of the seizure of the thing to the person:
(a) who was the master of the boat immediately before the seizure; or
(b) whom the officer has reasonable grounds to believe was the master of the boat immediately before the seizure.
However, if the officer cannot conveniently give the notice to the person in person, the officer may give written notice of the seizure of the thing by fixing the notice to a prominent part of the thing, unless the thing is a fish.
Content of notice
(2) The notice must:
(a) identify the thing; and
(b) state that the thing has been seized; and
(c) state that the thing will be condemned as forfeited unless the owner of the thing or the person who had possession, custody or control of the thing immediately before it was seized gives the Managing Director of AFMA within 30 days a written claim in English for the thing; and
(d) specify the address of the Managing Director of AFMA.
106D Dealing with thing before it is condemned
(1) On behalf of the Commonwealth, AFMA may cause the thing to be disposed of or destroyed if it is a boat and AFMA is satisfied that:
(a) the boat is unseaworthy; or
(b) the boat poses a serious risk to safety, public health or quarantine; or
(c) the boat poses a serious risk of damage to other property or the environment; or
(d) the expenses of custody and maintenance of the boat between its seizure and condemnation are likely to be greater than its value.
106E Thing condemned if not claimed in time
(1) By force of this subsection, the thing is condemned as forfeited to the Commonwealth 30 days after notice of seizure of the thing has been given under section 106C, unless:
(a) within the 30 days the owner of the thing or the person who had possession, custody or control of it immediately before it was seized gives the Managing Director of AFMA a written claim for the thing; and
(b) the claim is in English; and
(c) the claim sets out an address for service on the person making the claim.
(2) A person may claim the thing even if it is disposed of or destroyed before or after the claim.
35 Section 167A of the FMA provides for compensation in certain circumstances:
167A Compensation for acquisition of property
(1) If, apart from this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay reasonable compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may apply to the Federal Court to determine a reasonable amount of compensation.
(3) The jurisdiction of the Federal Court is exclusive of the jurisdiction of all other courts except that of the High Court.
(4) Any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this section must be taken into account in assessing compensation payable in a proceeding begun under this section and arising out of the same event or transaction.
(5) In this section:
acquisition of property and just terms have the same meaning as in paragraph 51(xxxi) of the Constitution.
36 Schedule 1A of the FMA contains provisions relating to the detention of suspected illegal foreign fishers. Subclause 8(c) of Schedule 1A provides:
(1) An officer may detain a person in Australia or a Territory for the purposes of determining during the period of detention whether or not to charge the person with an offence against section 99, 100, 100A, 100B, 101, 101A, 101AA, 101B, 105E or 105F or an offence against section 6 of the Crimes Act 1914 relating to such an offence, if the officer has reasonable grounds to believe that the person:
(a) is not an Australian citizen or an Australian resident; and
(b) was on a foreign boat when it was used in the commission of such an offence.
37 Subclause 10(1) of Schedule 1A of the FMA provides:
For the purposes of facilitating an officer determining whether or not to charge a person with an offence against section 99, 100, 100A, 100B, 101, 101A, 101AA, 101B, 105E or 105F or an offence against section 6 of the Crimes Act 1914 relating to such an offence, a detention officer may detain the person in Australia or a Territory if the detention officer has reasonable grounds to believe that the person:
(a) has been detained by an officer under Division 1; and
(b) has been presented, while detained by that officer, to a detention officer for detention by a detention officer.
38 The end of detention under Schedule 1A of the FMA is provided by clause 13 which provides:
13 End of detention
A detainee must be released from detention:
(a) as soon as an officer or detention officer knows or reasonably believes that the detainee is an Australian citizen or an Australian resident; or
(b) at the time the detainee is brought before a magistrate following a decision to charge the detainee with an offence referred to in subclause 8(1); or
(c) at the time a decision is made not to charge the detainee with an offence referred to in that subclause; or
(d) at the end of 168 hours after the detention began;
whichever occurs first.
Consideration
39 As is apparent from the above description of events, this matter arises from conduct engaged in outside the Australian Fishing Zone (AFZ), but in waters which were over the ABSL, so the area was an Australian fisheries enforcement area in relation to sedentary species such as trepang or sea cucumber. That matter is contentious, but I have decided it adversely to Sahring.
40 The boat at the time was about 6.26 nautical miles on the Australian side of the sea bed boundary (as fixed by reference to the sea bed/continental shelf boundary as agreed between Australia and Indonesia) but in the Indonesian fishing zone and north of the AFZ.
41 The evidence indicates that, when it was boarded, the boat was drifting as an engine had failed. None of its crew, at the time, were diving or preparing to dive and there were no trepang on board.
42 Nevertheless, the respondents say that at the time Sahring was using the boat for fishing for trepang. It was not an offence under s 100 of the FMA for him to be using the boat for fishing for swimming fish due to its location. It is necessary for the respondents to show that Sahring was, at the time, acting in contravention of s 100 of the FMA (as it applied to sedentary species in the particular area) to support the subsequent conduct of seizing the boat, destroying it, and taking Sahring and his crew to Australia.
43 The starting point of the process is the power of an officer (who I have found to be CPOB Peck for reasons which appear below) under s 84(1)(ga) of the FMA to seize the boat and its equipment either because the boat and the equipment were forfeited under s 106B because Sahring contravened s 100 or because CPOB Peck had reasonable grounds to believe that the boat and its equipment were forfeited.
(i) Does s 106A extend to the area where the events occurred?
44 Before dealing with the factual issues, I indicate that I consider that s 106A, dealing relevantly with the forfeiture of the boat, does extend in its operation to the area where the relevant events took place.
45 In broad terms, I accept the submissions of the respondents on this issue. That is, I consider that s 12(2) of the FMA and the Declaration by the Governor-General made on 12 December 1995 extending the operation of the FMA to fishing for sedentary organisms in or on any part of the Australian Continental Shelf together have that effect. I note in particular the terms of s 2(3) which expressly enable such a Declaration to be made extending to the powers of officers.
46 I regard s 106A, dealing with forfeiture of specified contraventions of the FMA, as a provision in relation to fishing and its regulation or control. It is a semantic point to say, as Sahring says, that it deals with “title and/or penalty” in relation to offences. Whilst that is in one sense correct, it does not follow that it is not part of the statutory regime in relation to fishing. It specifically encompasses provisions such as s 100. The fact that it imposes consequences upon the boat used in the contravention does not remove its character as relating to fishing: see eg Tran v Commonwealth (2010) 187 FCR 54 at [74]-[77]. Apart from s 12(2) and (3), I note that s 7(2) of the FMA also expressly contemplates that it may extend to fishing for sedentary species outside of the AFZ.
47 I do not consider that the more conservative or limited construction proposed by Sahring is the correct one in the face of those clear materials. Nor do I consider that there is any inconsistency between the respective rights of Indonesia and Australia in relation to these waters: the Indonesian rights are in respect of swimming fish and the Australian rights are in respect of fishing for sedentary species. Whether the force of the Australian legislative regime to control fishing for sedentary species in this area is appropriate is not a matter for the Courts. That is a matter of policy. But in my view, it is clear for the reasons given that the FMA provides for the forfeiture of an Indonesian boat used for fishing for trepang in this area.
(ii) Credit of witnesses
48 It is now necessary to say something about the credit of several of the witnesses, as my assessment of their evidence is relevant to the findings of fact I have made.
49 In my view, Sahring was generally a reliable witness. He gave his evidence through an interpreter, so it is difficult to assess his demeanour. However, his answers generally were responsive and short. He did not appear to endeavour to avoid difficult questions. His evidence that he was “intending to fish for swimming species” is consistent with the fishing equipment he had on board, and with the records of past catches from his note book. I think the use of “ikan” in his terms as swimming fish is apparent. He gave quite a clear and graphic description of how the large gill net found on board was used to herd reef fish for catching. To the extent that his answers during his questioning when the boat was boarded might suggest he was intending to fish for trepang, in my view that was a consequence of the unfortunately inadequate means of communication adopted (on observation which is not intended to be critical of any particular person).
50 On the other hand, I am very cautious about placing weight on the evidence of CPOB Peck or POB Morrison. They each were adamant that they had prepared their original statements independently. That is not something I accept. The similarities in expression and spelling (including errors) point firmly to the opposite view. It may be understandable that routine, and time pressure, produces a tendency to collaborate when independence should be and was required, but they did not say that had occurred. My view about their evidence in this respect has caused me to be doubtful about the reliability of their evidence in other respects. They may have made assumptions about the significance of equipment they saw, or have been superficial in their observations. I refer to certain aspects of that below. The consequence in part is that I have not placed reliance on their evidence where it is not supported by other evidence, and in the case of CPOB Peck, I have not been able to conclude that he had reasonable grounds to believe that Sahring contravened s 100 of the FMA so as to support the application of Subdiv C of Div 6 of Part 6 of the FMA (the regime dealing with things seized as automatically forfeited). Nor do I find that he was entitled to seize the boat or its equipment under s 84(1)(ga) either because it was forfeited under s 106A or because he had reasonable grounds to believe that it had been forfeited under s 106A.
(iii) Did Sahring contravene s 100
51 As to whether Sahring in fact contravened s 100 of the FMA, I consider the evidence is that Sahring did not intend to use the boat for fishing, other than swimming fish.
52 Firstly, I accept his evidence that his commercial fishing was directed towards swimming fish only. His notebook seized by the respondents contains his notes of the bearings of good places for catching swimming fish. The word he uses is “ikan”, meaning swimming fish. There is no reference to trepang anywhere in this document.
53 Sahring described in his evidence how he catches swimming fish in these places by using divers to herd the fish into a large gill net. When the divers see reef fish they circle a reef and then startle the fish into the gill net where they are caught. The fish are then transferred into a larger holding net which is suspended over the side of the boat, whilst the divers continue their work. The fish are then transferred form the holding net into either the holding tank on board (where they are kept alive) or an ice box.
54 That is consistent with the equipment on the boat.
55 The boat had a large ice box and ice with a capacity of about 1 tonne and it had a depth up to Sahring’s forehead. The boat carried about 800 kgs of ice. Trepang are not stored on ice but in salt. Sahring explained that the salt which was on board was used to slow defrosting.
56 The boat also had a large holding net on the boat deck. This was the net which is used to store fish overboard when the boat was resting or at anchor. It is about 3 x 2.8 metres. It is not the same as the much smaller netted “catch bag” which, on the evidence, is the net used when catching trepang.
57 The gill net size was about 4 x 1.5 metres with squares of 2.5 inches, and was stored with the salt. Again, this is consistent with fishing for swimming fish as Sahring described.
58 Sahring’s note books also tend to confirm that Sahring’s commercial fishing was directed towards catching swimming fish caught on previous trips. These records were kept to assist Sahring calculate his crew’s profit share. In spite of the number of entries, there is no reference to trepang anywhere in these records.
59 Finally, on the evidence, the season and the weather were not favourable for the catching of trepang on this occasion and Sahring said that trepang is very scarce in the area and subject to tides.
60 There was also evidence that, after this occasion, AFMA realised that such equipment was not to catch trepang. Garner accepted in cross-examination that similar apprehensions at about the same time had caused embarrassment to AFMA because, it seems, of mistakes AFMA had made in its assessment of the activities of other Indonesian fishermen. Particularly, it appears that, when exercising powers under the FMA to seize and destroy Indonesian fishing vessels, AFMA had erroneously assumed that certain facts or matters necessarily indicated fishing for trepang when in fact they were directed to fishing for swimming fish.
61 Sahring speaks Indonesian but not English. CPOB Peck and his boarding party speak English not Indonesian. The card system used for communication allows only for yes or no answers. None of the cards took account of the complexity of this particular area, that is they did not distinguish between fishing for swimming fish and fishing for trepang. Grotherr accepted that there was a possibility he could “easily have been mistaken as to what (he) heard said on the ship that day from people who couldn’t speak English”. In the circumstances, that material is of little weight.
62 There was no other direct evidence of fishing for trepang. No trepang was found on board or in the possession of divers.
63 I also note that, on the evidence, the search of the boat was not as thorough as desirable to draw any adverse inferences to Sahring from its outcome.
64 The holding net was described as a trepang “catch bag” when a proper examination would have revealed that it was too large to be a catch bag, and no search was undertaken forward, and as a result the gill net was not discovered. Moreover, the search suggested there was only one engine when there was cogent material to suggest that it is not correct. I also have placed little weight in the overall circumstances on general statements made to Indonesian authorities for the purpose of licensing. I do not think they establish an admission of any relevance on the issue of whether or not on or about this occasion Sahring was intending to use his boat for commercial fishing for proclaimed sedentary species.
65 I note that the respondents in the course of submissions asserted that, despite the particulars they give of the alleged offence against s 100 relating only to this particular voyage to this particular area, they also said there had been commissions of an offence against s 100 on earlier occasions (including by unidentified members of his crew).
66 Even if those earlier unpleaded occasions can be relied upon, the occasions are lacking in detail. The area Sahring referred to as the Kupang Waters extends beyond and outside the AFZ and it extends beyond the agreed Australian sea bed where the catching of proclaimed sedentary species is not an offence against Australian law. It is not clear whether that occurred in the relevant area.
67 Consequently, I am not satisfied that the boat was in the relevant area for fishing for sedentary species including trepang. In my view, no contravention of s 100 of the FMA by Sahring has been made out, so there is no forfeiture of the boat and its equipment on that basis: cf Olbers Co Ltd v Commonwealth (2004) 143 FCR 449, affirming Olbers Co Ltd v Commonwealth (2004) 136 FCR 67.
(iv) Who decided to seize the boat?
68 There was a dispute between the parties as to whether it was CPOB Peck or Garner who exercised or purported to exercise the power of seizure of the boat.
69 I agree with the respondents that the relevant officer was CPOB Peck.
70 In my view, even if CPOB Peck saw his role as making recommendations only, and did not hold the belief that the boat had been forfeited, the fact is that he was the responsible officer. He believed that the boat was forfeited. This was all that was required under the FMA for seizure to be effected by CPOB Peck, even though instructions to proceed with seizure were issued by Mr Garner.
71 CPOB Peck, as the Boarding Officer, physically seized the boat, not Mr Garner. It is the person who physically seizes a boat who exercises the power under s 84(1)(ga) of the FMA: see Commonwealth v Fernando (2012) 200 FCR 1 at [83] and [84], where it was held that the person who physically detains a suspected unlawful non-citizen is exercising the power of detention under s 189(1) of the Migration Act 1958 (Cth).
72 Section 106B of the FMA provides in paragraph (a)(ii) that Subdivision C sets out rules about a thing that an officer seizes under paragraph 84(1)(ga) or (gb) because the officer had reasonable grounds to believe the thing is forfeited. Subsection 106C then provides that “[t]he officer” must give written notice of the seizure of the thing to the master. Here, CPOB Peck gave a written notice of the seizure of the Eka Sakti to Sahring after the notice had been prepared and signed by POB Morrison on his instructions. It was CPOB Peck who believed that the EKA Sakti was solely or substantially equipped for fishing for sedentary species, being trepang. He said he understood that if the boat was in the relevant area with equipment to fish (for sedentary species) it would (or may) lead to the forfeit of the boat and equipment. When it was suggested to CPOB Peck in cross-examination that AFMA’s approval was the reason why he thought that the boat was forfeited, he responded “No, I believe the boat should have been forfeited anyway. I believe the boat was there illegally”.
73 CPOB Peck’s belief that the Eka Sakti was forfeited by his actions is reflected in the Fishrep he sent to HMAS Broome after his questioning of Sahring and the search of the boat by members of the boarding party, in which he recommended that the boat be apprehended and destroyed.
74 Thus, even if Garner was the person in theory or structure responsible for authorising the apprehension of vessels believed to be forfeited under s 106A, it was the conduct of CPOB Peck that amounted to the exercise of the power of seizure under s 84(1)(ga) in the circumstances.
(v) Did CPOB Peck have reasonable grounds for his belief?
75 I do not consider, on the whole of the evidence, that CPOB Peck had reasonable grounds for believing that Sahring had contravened s 100 of the FMA or that the boat and its equipment were forfeited.
76 Assuming that CPOB Peck started with the (proper) understanding that it was only if the boat was to be, or was being, used for fishing for sedentary species such as trepang in this area that the forfeiture would occur, in my view he did not have reasonable grounds for the belief that that was the case.
77 There is little doubt that he had such a belief, but the real issue is whether he had reasonable grounds for that belief. It is not a belief to be formed capriciously or irresponsibly, or as I suspect was the case in this instance based upon preconceptions or assumptions. The significance of the consequences shows the need for the belief to be based on reasonable grounds in the particular circumstances.
78 I have referred above to the general circumstances in which his belief was formed. A proper search or inspection of the boat would have revealed that the net sizes were not suitable for, or usually used for, trepang fishing. Other physical indicia pointed the same way, other than the salt storage which is on the evidence a neutral factor as between swimming fish and sedentary fish. So too, on the evidence, was the proximity to a reef.
79 So, much turns on what was said by Sahring to CPOB Peck when questioned with the use of the cards, and whether what was said was so clear that the inadequate search of the boat can be put aside.
80 As to that, I am not satisfied that Sahring’s answers in all the circumstances were of themselves sufficient to found a reasonable belief of the facts as required. I have referred above to the language difficulties, and to the limitations of the card system of communication for the particular area where sedentary fishing only was the relevant contravention. I am inclined to think the CPOB Peck was listening only for what he wanted to learn, without regard to the particular circumstances and the terms and context of the answers. An example is the way he took the answer to card 45, which on the evidence equally concerns swimming fish as sedentary fish.
81 In my view, having regard to my assessment of the reliability of his evidence generally, I am not satisfied that CPOB Peck had reasonable grounds to believe that the boat and its equipment were forfeited under s 106A.
(vi) Events after seizure
82 It follows that no notice of seizure under s 106C was given, because the notice under s 106C is required when and only if, s 106B applies. It also follows that neither s 106D nor 106E were enlivened.
83 Nevertheless, the boat and the equipment on it were destroyed by the direction of AFMA through Garner, and in turn Yates. They relied on the Fishrep.
84 Although his authority to cause the destruction of the boat cannot be found in s 106D for the reasons given, so that Sahring is entitled to recover the value of the boat and its equipment, the fact is that AFMA made the decision to destroy the boat because it was believed to be unseaworthy.
85 In my view, both Garner and Yates had reasonable grounds to believe, and did believe, that the boat was unseaworthy on the basis of the Fishrep.
86 The consequence of that decision, although not authorised under s 106D of the FMA so that compensation is payable: see also s 167A of AFMA, was that in the interests of Sahring and his crew, rather than allow them to be left in what was reasonably believed to be an unseaworthy boat, they were taken on board HMAS Broome, and then HMAS Glenelg, to Darwin.
87 Before dealing with the consequences of that process, and what then transpired in relation to Sahring, it is convenient to deal with the compensation to be awarded.
(vii) Compensation for loss of the boat and equipment
88 The fundamental object is to award just compensation for the loss suffered by Sahring. Damages for destruction of the boat should include its value and (in theory) loss of earnings it would have produced up to the judgment at which point Sahring would be able to acquire a replacement vessel. The respondents must take Sahring as they found him. It is reasonably foreseeable that someone like Sahring will not have enough money to acquire a replacement vessel if his own is destroyed. Sahring’s impecuniosity in this respect cannot be relied upon by the respondents to avoid providing just compensation.
89 However, the evidence as to the value of Eka Sakti and the equipment on board is scanty. It was admitted without objection and is the only evidence as to the value of the Eka Sakti.
90 I do make allowance for the fact that the Eka Sakti was apparently in poor condition and at least potentially not seaworthy. It was in fact drifting at the time of the events in question whilst an engine was repaired. There is no expert evidence as to its value.
91 On the limited material, I can do little more than provide a rough estimate. I assess the value of the Eka Sakti at April 2008, including its equipment, at $25,000.
92 It is also necessary to be cautious about Sahring’s claim for loss of earnings. Whilst not critical of the quality of his evidence, given his personal circumstances, it is fair to say that it was loosely expressed and assumed both that the Eka Sakti would continue to be available to be used for fishing and would be so used without further material expense, that the loose figures provided were reliable, and that Sahring in the period after April 2008 has been unable to earn in any significant way, even if not through conducting his own fishing business with the boat. All of those things are obviously somewhat speculative.
93 On the limited information available, and in the light of those considerations, I assess his loss of income as a consequence of the destruction of the boat at $15,000.
(viii) The claim for wrongful imprisonment
94 I revert to Sahring’s claim for damages for wrongful imprisonment.
95 There was not a great deal of material about the consequences of how Sahring (and his crew) were dealt with on the basis that, although the destruction of the boat was not lawful under s 106D, the relevant officers of AMSA made the decision to remove Sahring (and his crew) from the boat and transport them to Darwin in the mistaken but reasonable belief that the boat was not seaworthy.
96 I accept that, in the circumstances, the taking of Sahring to Darwin was not lawful (because the respondents did not argue that, in the circumstances I have found to exist, it was lawful). I shall however take into account the circumstances in which that unlawful imprisonment occurred in assessing the appropriate compensation.
97 Once Sahring was in Darwin on 2 May 2008, Ward decided to detain him under cl 8(1)(d) of Sch 1A of the FMA. Ward believed, correctly, that Sahring was not an Australian citizen. Because she also believed, incorrectly as I have found, that he had been on an Indonesian boat used in the commission of an offence against one of the sections specified in cl 8(1) of Sch 1A, she caused him to be detained.
98 Again, as the foundation for that detention is not made out, it was unlawful.
99 By 9 May 2008 and until 12 May 2008, that detention under cl 8(1) and 10(1) of Sch 1A became unlawful in any event: see cl 13 of Sch 1A.
100 Then, after that date, Sahring was taken into immigration detention until his discharge on 19 July 2008. It is said that, because the initial detention was unlawful this otherwise lawful detention was also unlawful.
101 I have found considerable difficulty in forming a view as to the appropriate award of damages for the reasons I have given. Although Sahring I accept did not want to be brought to Australia, he was brought here at the instigation of AMSA through Garner and Yates because they thought the boat was unseaworthy. They had, in theory, the choice of leaving Sahring and his crew on what they believed was an unseaworthy boat, which was drifting while the engine was being (or attempted to being) repaired, or taking the course of action they did. Had Sahring sought the assistance of HMAS Broome because he thought the boat was unseaworthy, he could have been brought to Darwin where he would in any event have been placed in immigration detention until his release.
102 In those circumstances, I think a relatively small award of damages is warranted. I fix them at $4000. I have considered in that context the case of Fernando v Commonwealth (No 5) [2013] FCA 901.
CONCLUSION
103 Accordingly, I made the orders of 19 March 2014, including the orders for interest included as part of those orders.
| I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. |
Associate:
