FEDERAL COURT OF AUSTRALIA

 

Humane Society International Inc v Kyodo Senpaku Kaisha Ltd

[2004] FCA 1510


PRACTICE – service outside the jurisdiction – alleged contravention of Commonwealth law by Japanese nationals acting under permits issued by the Japanese Government for killing of whales for scientific purposes.


Acts Interpretation Act 1901 (Cth)

Antarctic (Environment Protection) Legislation Amendment Act 1992 (Cth)

Antarctic Treaty (Environment Protection) Act 1980 (Cth) 

Australian Antarctic Territory Acceptance Act 1933 (Cth)

Australian Antarctic Territory Act 1954 (Cth)

Environment Protection and Biodiversity Conservation Act 1989 (Cth)

Federal Court of Australia Act 1976 (Cth) 

Judiciary Act 1903 (Cth)

Seas and Submerged Lands Act 1973 (Cth)  

Whale Protection Act 1980 (Cth)

 

Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30

Bray v F Hofman-La Roche Ltd (2003) 130 FCR 317

Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365

Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387

Petrotimor Companhia de Petroleos SARLv Commonwealth of Australia (2003) 126 FCR 354

Western Australia v Vetter Trittler Pty Ltd (1991) 30 FCR 102

 

Antarctic Treaty done at Washington 1 December 1959

Convention on the Conservation of Antarctic Marine Living Resources drawn up at Canberra 20 May 1980

International Convention for the Regulation of Whaling done at Washington 2 December 1946

Protocol on Environmental Protection to the Antarctic Treaty done at Madrid 4 October 1991

United Nations Convention on the Law of the Sea  done at Montego Bay 10 December 1982


Humane Society International Inc v Kyodo Senpaku Kaisha Ltd

NSD 1519 of 2004

 

ALLSOP J

23 NOVEMBER 2004

SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

 

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1519 of 2004

 

BETWEEN:

Humane Society International Inc

APPLICANT

 

AND:

Kyodo Senpaku Kaisha Ltd

RESPONDENT

 

JUDGE:

ALLSOP J

DATE OF ORDER:

23 NOVEMBER 2004

WHERE MADE:

SYDNEY

 

THE COURT ORDERS THAT:

 

 

1.         the hearing of the motion for service out of the jurisdiction stand over to a date to be fixed, and

2.         the applicant serve upon the Attorney-General for the Commonwealth the application, the statement of claim, the affidavits in support including exhibits, the submissions made and a copy of these reasons as soon as is reasonably practicable.


Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

 

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1519 of 2004

 

BETWEEN:

Humane Society International Inc

APPLICANT

 

AND:

Kyodo Senpaku Kaisha Ltd

RESPONDENT

 

 

JUDGE:

ALLSOP J

DATE:

23 NOVEMBER 2004

PLACE:

SYDNEY


REASONS FOR JUDGMENT

1                     This is an application for leave to serve originating process on the respondent in Japan.

2                     The application, which is supported by a statement of claim, seeks declaratory and injunctive relief concerning whaling said to have been carried out by the respondent in the Australian Antarctic Exclusive Economic Zone, contrary, it is said, to provisions of the Environment Protection and Biodiversity Conservation Act 1989 (Cth) (the “EPBC Act”).

3                     At the hearing of the application, I raised with Mr Gageler SC, who appeared, with Mr McGrath, for the applicant, the question of notification of the application to the Attorney-General.  I expressed the view that it may be that the Australian Government would wish to put submissions on the proper construction and interpretation of the legislation and treaties involved, in particular in the light of what might be seen to be Australia’s national interest, including inter-governmental relations between Australia and Japan. 

4                     The applicant has put submissions to the Court that, conformably with Order 6 rule 8 of the Federal Court Rules, and the possible affecting of rights of other parties, there is no direct affectation of rights of third parties; although, it did recognise that the Government of Japan may regard the proceedings as directly affecting the rights of its nationals.

5                     It is to be recognised, of course, that any leave granted can be the subject of challenge by the respondent in due course, should it wish to do so.  My comments were, however, directed to the appropriateness of the opportunity of intervention at the point of the leave application.  I remain of the view that the Attorney-General should be notified of the matter.  I do not think that it is necessary, or appropriate, at least without hearing first from the Attorney-General, should he wish to put anything, that any other party, including the Government of Japan, be invited to put any submissions at this point.  That is not to say that I would not hear the Government of Japan, if it wished to put any submissions; rather, it is only to say that, certainly without hearing the Attorney-General on the matter, I do not think it appropriate to issue any such invitation. 

6                     Thus, the views that I have expressed in these reasons, are subject to hearing and considering any submissions to the contrary from the Attorney-General, should he wish to put any to the Court.

7                     The three issues with which I am concerned are whether (a) the Court has jurisdiction, (b) the case falls within one or more of the relevant grounds set out in Order 8 rule 1, and (c) whether a prima facie case for relief has been made out:  Order 8 rule 2(2).

The claim

8                     The statement of claim asserts that in the periods February to March 2001, November 2001 to March 2002, February 2003 to March 2003 and November 2003 to March 2004 the respondent, a company incorporated in Japan, has killed, taken and interfered with Antarctic minke whales (being cetaceans for the purposes of the EPBC Act) in the Australian Whale Sanctuary and subsequently intentionally treated and possessed those whales in contravention of ss 229, 229A, 229B, 229C, 229D and 230 of the EPBC Act.

9                     It is asserted that in the periods referred to in [8] above, in the order of 428 Antarctic minke whales were killed in the Australian Whale Sanctuary within 200 nautical miles seaward of the baseline established under international law of the Australian Antarctic Territory.

10                  It is asserted that five vessels owned by the respondent have been involved.

11                  It is asserted that this conduct was purported to be done in accordance with a special permit issued by the Government of Japan under Article VIII of the International Convention for the Regulation of Whaling done at Washington in 1946 (the “Whaling Convention”) for the conduct of scientific research.  I will return to the question of the importance of the word “purported”.

12                  It is asserted that this permission of the Japanese Government does not prevent the respondent’s conduct being a breach of the provisions of the EPBC Act to which I have referred.

13                  It is asserted that, unless restrained, the respondent will continue with the conduct in contravention of Australian law.

Jurisdiction

14                  Section 475(1) of the EPBC Act provides that an “interested person” may apply to this Court for an injunction where a person has engaged or proposes to engage in conduct that constitutes an offence under or a contravention of the EPBC Act.  This is to be taken as vesting this Court with jurisdiction:  s 15C of the Acts Interpretation Act 1901 (Cth).

15                  Section 475(7) defines “interested person” in a manner which, on the material before the Court, appears to be sufficiently wide to satisfy me that the applicant falls within the phrase.

16                  The offences and contraventions alleged arise under ss 229 to 230 of the EPBC Act.  These provisions are in the following terms:

SECT 229  Recklessly killing or injuring a cetacean

(1)   A person is guilty of an offence if:

(a)   the person takes an action; and

(b)   the action results in the death or injury of a cetacean; and

(c)   the cetacean is in:

(i)    the Australian Whale Sanctuary (but not the coastal waters, or a part of the coastal waters, of a State or the Northern Territory for which a declaration under section 228 is in force); or

(ii)   waters beyond the outer limits of the Australian Whale Sanctuary.

(2)   The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.

SECT 229A Strict liability for killing or injuring a cetacean

(1)     A person is guilty of an offence if:

(a)   the person takes an action; and

(b)   the action results in the death or injury of a cetacean; and

(c)   the cetacean is in:

(i)    the Australian Whale Sanctuary (but not the coastal waters, or a part of the coastal waters, of a State or the Northern Territory for which a declaration under section 228 is in force); or

(ii)   waters beyond the outer limits of the Australian Whale Sanctuary.

(2)     Strict liability applies to paragraphs (1)(a), (b) and (c).

(3)     The offence is punishable on conviction by a fine not exceeding 500 penalty units.

SECT 229B  Intentionally taking etc. a cetacean

(1)     A person is guilty of an offence if:

(a)   the person takes, trades, keeps, moves or interferes with a cetacean; and

(b)   the cetacean is in:

(i)    the Australian Whale Sanctuary (but not the coastal waters, or a part of the coastal waters, of a State or the Northern Territory for which a declaration under section 228 is in force); or

(ii)   waters beyond the outer limits of the Australian Whale Sanctuary.

(2)     Strict liability applies to paragraph (1)(b).

(3)   The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.

(4)   In this Act:

interfere with a cetacean includes harass, chase, herd, tag, mark or brand the cetacean.

SECT 229C   Strict liability for taking etc. a cetacean

(1)   A person is guilty of an offence if:

(a)   the person takes, trades, keeps, moves or interferes with a cetacean; and

(b)   the cetacean is in:

(i)    the Australian Whale Sanctuary (but not the coastal waters, or a part of the coastal waters, of a State or the Northern Territory for which a declaration under section 228 is in force); or

(ii)   waters beyond the outer limits of the Australian Whale Sanctuary.

(2)   Strict liability applies to paragraphs (1)(a) and (b).

(3)   The offence is punishable on conviction by a fine not exceeding 500 penalty units.

SECT 229D  Treating an illegally killed or taken cetacean

(1)   A person is guilty of an offence if:

(a)   the person treats a cetacean; and

(b)   the cetacean has been:

(i)    killed in contravention of section 229 or 229A; or

(ii)   taken in contravention of section 229B or 229C.

(2)   The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.

(3)   In this Act:

treat a cetacean means divide or cut up, or extract any product from, the cetacean.

SECT 230  Possession of cetaceans

(1)   Subject to section 231, a person is guilty of an offence if:

(a)   the person has in his or her possession:

(i)    a cetacean; or

(ii)   a part of a cetacean; or

(iii)  a product derived from a cetacean; and

(b)   the cetacean has been:

(i)    killed in contravention of section 229 or 229A; or

(ii)   taken in contravention of section 229B or 229C.

(2)   An offence against this section is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.

17                  In addition to s 475(1) of the EPBC Act, this Court has jurisdiction in civil matters arising under a law of the Commonwealth Parliament: s 39B(1A)(c).  Even without s 475(1), the Court would have jurisdiction to hear a civil matter arising under the EPBC Act.  Declaratory and injunctive relief in respect of conduct dealt with by these provisions would fall within that category.  The question of the granting of declaratory and injunctive relief for which ss 18, 19, 21, 22 and 23 of the Federal Court of Australia Act 1976 (Cth) amply provide, would, however, need to be considered by reference to general law considerations concerning restraint of conduct which would otherwise be an offence, that are not, or may not be, relevant to an application expressly provided for by s 475(1).

The grounds in Order 8 rule 1

18                  Four grounds are relied upon:  rules 1(a), (b), (j) and (l) which are in the following terms:

(a)   where the proceeding is founded on a cause of action arising in the Commonwealth;

(b)  where the proceeding is founded on a breach of an Act, where the breach is committed in the Commonwealth;

(j)    where the proceeding is for an injunction as to anything to be done in the Commonwealth or against the doing of any act in the Commonwealth, whether damages are also sought or not; and

(l)   where the proceeding concerns the construction, effect or enforcement of an Act or a regulation or other instrument having or purporting to have effect under an Act.

19                  The phrase “in the Commonwealth” includes the waters of Australia’s exclusive economic zone (“EEZ”) adjacent to the Australian Antarctic Territory, which is an external territory of Australia:  see the Australian Antarctic Territory Acceptance Act 1933 (Cth), the Australian Antarctic Territory Act 1954 (Cth), s 10B of the Seas and Submerged Lands Act 1973 (Cth) and the proclamation of the EEZ on 29 July 1994 thereunder:  Gazette No S 290.

20                  Sections 5 and 224 and 225 of the EPBC Act extend the application of that Act to the EEZ of the external Territories, over-riding s 15B of the Acts Interpretation Act.

21                  As to the acceptance by Australian courts of the boundaries of the Commonwealth or defined by the Executive, see Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (2003) 126 FCR 354, 361-62.

22                  If the prima facie case is made out, including the questions as to the proper construction and interpretation of Commonwealth legislation and of international treaties, and subject to discretionary considerations, the foundations within Order 8 rule 1 would appear to be present by reference to grounds 1(a), (b), (j) and (l).

Prima Facie case

Facts

23                  A prima facie case for relief is made out if, on the material before the Court, inferences reached at a somewhat lesser degree of scrutiny than is called for in circumstances such as consideration of a no-case submission are open which, if translated into findings of fact, would support the relief claimed:  see generally Western Australia v Vetter Trittler Pty Ltd (1991) 30 FCR 102, 110; Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317, 325, 340; Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387, 390; Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365, 372-73.

24                  On the material contained in the affidavits read on the application (being the affidavits  of Ms Nicola Jane Beynon of 18 October 2004, Mr Michael Geoffrey Kennedy of 18 October 2004, Ms Jessica Bernadette Simpson of 19 October and 12 November 2004 and Mr Kieran Paul Mulvaney of 9 November 2004) the following inferences are open which if translated into findings of fact would support the conclusion that, subject to the questions of construction and interpretation discussed below, the provisions of ss 229 to 230 of the EPBC Act have been contravened in the past, and unless restrained, may well be contravened in the future, by the respondent.

(a)    Between December 2000 and March 2004 employees of the respondent aboard 5 vessels owned by the respondent killed in the order of 428 Antarctic minke whales within the Australian Whale Sanctuary in the Antarctic EEZ.

(b)   At no time has the respondent held a permit or authority under ss 231, 232 or 238 of the EPBC Act.

(c)    The respondent apparently intends to return to the Australian Whale Sanctuary in the Antarctic EEZ in December 2004 and in the southern summer months of 2005 and in the following year.  The apparent intention is to kill, in 2004-2005, up to 36 whales within the Australian Whale Sanctuary in the Antarctic EEZ.

(d)   The respondent has a permit for its whaling issued by the Government of Japan to conduct its activities both inside and outside the Australian Whale Sanctuary in the Antarctic EEZ.

Legal questions

25                  A central question in the decision whether to grant leave is whether the permit issued by the Government of Japan which the respondent holds means that there has been and will be no relevant contravention of the provisions of the EPBC Act.  The resolution of this issue depends upon the proper construction and interpretation of various pieces of municipal legislation and international instruments.

26                  In what follows, I do not intend to express any concluded views as to the proper construction and interpretation of the legislation and instruments, because, as I have said, I think it appropriate to give the Attorney-General an opportunity to put submissions on these matters.

27                  To assist and expedite that opportunity, I do propose, however, to set out the issues for consideration and some tentative or preliminary views.  This will, I hope, assist the applicant and the Attorney-General (should he desire to consider the matter) in assessing whether any submissions, and in the case of the applicant further submissions, are desired to be made.

28                  Section 9 of the EPBC Act deals with relationships with other Acts.  Section 9(2) states:

To avoid doubt, nothing in this Act affects the operation of subsection 7(1) of the Antarctic Treaty (Environment Protection) Act 1980 or regulations made for the purposes of that subsection.

29                  The Antarctic Treaty (Environment Protection) Act 1980 (Cth) (the “AT(EP) Act”) makes provision, amongst other things, for giving effect to the Protocol on Environmental Protection to the Antarctic Treaty done at Madrid on 4 October 1991 (The “Madrid Protocol”).  Section 7(1) of the AT(EP) Act is in the following terms:

Notwithstanding any other law, but subject to the regulations, no action or proceeding lies against any person for or in relation to anything done by that person to the extent that it is authorized by a permit or by a recognised foreign authority.

30                  There are no relevant regulations under the AT(EP) Act.

31                  A “permit” referred to in s 7(1) of the AT(EP) Act is a permit under Part 2 of the AT(EP) Act:  s 3(1) of the AT(EP) Act.  There is apparently no such permit issued to the respondent.

32                  A “recognised foreign authority” is defined in s 3(1) of the AT(EP) Act as meaning:

a permit, authority or arrangement that:

(a)     authorises the carrying on of an activity in the Antarctic; and

(b)     has been issued, given or made by a Party (other than Australia) to the Madrid Protocol that has accepted under that Protocol the same obligations as Australia in relation to the carrying on of that activity in the Antarctic.

33                  Mr Gageler accepted that if there was here a “recognised foreign authority” in relation to the carrying on of that activity no action or proceeding would lie against the respondent under s 475 of the EPBC Act.

34                  It was accepted that the word “permit” in the definition of “recognised foreign authority” cannot be governed by the defined meaning in s 3(1), the contrary intention clearly appearing.

35                  Thus, the respondent has a permit or authority which, it was accepted, authorised the carrying on of the whaling activity in the Antarctic issued by a Party other than Australia to the Madrid Protocol (that is, Japan) for the purposes in the permit or authority.

36                  The first question is: has Japan, as a Party to the Madrid Protocol, accepted under the Madrid Protocol the same obligations as Australia in relation to the carrying on of the relevant activity in the Antarctic.

37                  The applicant says that the answer is, ‘no’.  This is so, it is said, not because Australia and Japan have not accepted the same obligations under the Madrid Protocol.  It was not suggested that this was relevantly so.  Rather, it was said, neither Japan nor Australia has accepted any obligations under the Madrid Protocol in relation to the carrying on of the relevant activity in the Antarctic.  That is, neither has any obligations under the Madrid Protocol in relation to whaling.  It is said, in effect, that the permit or authority contemplated by the phrase “recognised foreign authority” (and so by s 7(1) in the AT(EP) Act) is limited to one authorising an activity in respect of which Parties to the Madrid Protocol have accepted obligations.  Whaling (for whatever purpose) is not, it is said, such an activity.

38                  One needs to turn, therefore, to the Madrid Protocol and other relevant treaties.  One starts with the Whaling Convention.  The Whaling Convention includes a Schedule which can be amended from time to time by the Whaling Commission established under the Whaling Convention.  Contracting Governments can, however, present objections to such amendments to the Schedule becoming effective against such Governments:  Art. I cl 1, Art. III cl 1 and Art V cll 1 and 3.

39                  The current form of the Schedule to the Whaling Convention contains, in clause 7(b), a total prohibition of commercial whaling, whether by pelagic operations or from land stations in an area designated as the Southern Ocean Sanctuary, which includes the area in the Antarctic EEZ being the Australian Whale Sanctuary.  Japan has presented an objection to cl 7, and cl 7(b) does not bind, nor is it effective against, Japan.

40                  Clause 10(e) of the same schedule, to which the Government of Japan has not presented an objection provides (and has since 1986 provided), in effect, for a moratorium on commercial whaling, worldwide, including thereby the sanctuaries to which cl 7 of the Schedule is directed.

41                  Article VIII of the Whaling Convention deals with the killing of whales for scientific research.  It is in the following terms:

1.         Notwithstanding anything contained in this Convention, any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take, and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention.  Each Contracting Government shall report at once to the Commission all such authorizations which it has granted.  Each Contracting Government may at any time revoke any such special permit which it has granted.

2.         Any whales taken under these special permits shall so far as practicable be processed and the proceeds shall be dealt with in accordance with directions issued by the Government by which the permit was granted.

3.         Each Contracting Government shall transmit to such body as may be designated by the Commission, insofar as practicable, and at intervals of not more than one year, scientific information available to that Government with respect to whales and whaling, including the results of research conducted pursuant to paragraph 1 of this Article and to Article IV.

4.         Recognizing that continuous collection and analysis of biological data in connection with the operations of factory ships and land stations are indispensable to sound and constructive management of the whale fisheries, the Contracting Governments will take all practicable measures to obtain such data.

42                  The respondent has apparently been granted a special permit of the kind referred to in clause 1.  The argument has proceeded before me thusfar on the basis that I can assume that the conduct of the respondent has been in conformity with the terms of the permit issued by the Japanese Government.  The pleading however uses the word “purported” when it deals with the activity of the respondent and its conformity with the permit issued by the Japanese Government: see [7] of the statement of claim.  I will return to this question.  For the present, I make the assumption just referred to.

43                  There are a number of relevant treaties concerning the Antarctic:

(a)           the Antarctic Treaty done at Washington 1 December 1959

(b)          the Convention for the Conservation of Antarctic Seals done at London 1 June 1972

(c)           the Convention on the Conservation of Antarctic Marine Living Resources drawn up at Canberra 20 May 1980

(d)          the Madrid Protocol to the Antarctic Treaty (1959)

44                  The treaties and such municipal law as gives effect to them are said to be a regime distinct from that which governs whaling.  Thus, it is said, s 9 of the EPBC Act and s 7(1) of the AT(EP) Act, with the definition of “recognised foreign authority” properly understood, can be seen as exempting from the EPBC Act and the offences created thereunder, only matters authorised by provisions of treaties within this “Antarctic regime”.  That is put, perhaps, with insufficient precision.  It is necessary to go to the treaties.

45                  The Madrid Protocol, which is Schedule 3 to the AT(EP) Act is a Protocol to the Antarctic Treaty (1959).  Article 4 deals with the other components of the “Antarctic Treaty System” as follows:

RELATIONSHIP WITH THE OTHER COMPONENTS OF THE ANTARCTIC TREATY SYSTEM

1.         This Protocol shall supplement the Antarctic Treaty and shall neither modify nor amend that Treaty.

2.         Nothing in this Protocol shall derogate from the rights and obligations of the Parties to this Protocol under the other international instruments in force within the Antarctic Treaty system.

46                  Article 9 provides that the Annexes are an integral part of the Protocol.

47                  Annex II deals with conservation of Antarctic fauna and flora.

48                  Article 3 of Annex II (when read with relevant definitions) contains a prohibition (in public international law) on killing or relevantly interfering with creatures defined in a way as to include whales, except with a permit contemplated by that article.  Article 3 clause 2 describes the permits as follows:

2.    Such permits shall specify the authorized activity, including when, where and by whom it is to be conducted and shall be issued only in the following circumstances:

(a)          to provide specimens for scientific study or scientific information;

(b)          to provide specimens for museums, herbaria, zoological and botanical gardens, or other educational or cultural institutions or uses; and

(c)          to provide for unavoidable consequences of scientific activities not otherwise authorized under sub-paragraphs (a) or (b) above, or of the construction and operation of scientific support facilities.

[emphasis added]

 

49                  Article 7 of Annex II is as follows:

RELATIONSHIP WITH OTHER AGREEMENTS OUTSIDE THE ANTARCTIC TREATY SYSTEM

 

Nothing in this Annex shall derogate from the rights and obligations of Parties under the International Convention for the Regulation of Whaling.


50                  Thus, for the purposes of public international law rights and obligations, nothing in Annex II to the Madrid Protocol affects the Whaling Convention.  In other words, for public international law purposes, nothing in the Madrid Protocol Annex II is to be taken as derogating from Japan’s right to issue its nationals with a permit under Article VIII of the Whaling Convention authorising such nationals to kill whales in the Antarctic for the purposes set out in Article VIII of the Whaling Convention.

51                  I would, however, be grateful for further submissions on why, notwithstanding Article 7 of annex II, Article 3 of Annex II may be answered by a permit issued under Article VIII of the Whaling Convention.

52                  The Antarctic Treaty 1959 (to which Australia and Japan are parties) applies to areas which include the Australian Whale Sanctuary in the EEZ.  Article IX provides, relevantly, as follows:

1.         Representatives of the Contracting Parties named in the preamble to the present Treaty shall meet at the City of Canberra within two months after the date of entry into force of the Treaty, and thereafter at suitable intervals and places, for the purpose of exchanging information, consulting together on matters of common interest pertaining to Antarctica, and formulating and considering, and recommending to their Governments, measures in furtherance of the principles and objectives of the Treaty, including measures regarding:

(f)   preservation and conservation of living resources in Antarctica.

53                  The Convention on the Conservation of Antarctic Marine Living Resources (1980), to which both Japan and Australia are parties, applies to the Antarctic area including that covered by the Australian Whale Sanctuary in the EEZ and deals with the conservation of Antarctic marine life:  see in particular article II.  Article VI is in similar terms to article 7 of Annex II of the Madrid Protocol and is in the following terms:

Nothing in this Convention shall derogate from the rights and obligations of Contracting Parties under the International Convention for the Regulation of Whaling and Convention for the Conservation of Antarctic Seals.

54                  Article 55 under Part V of the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982 (“UNCLOS”), provides for the legal regime of the EEZ according to Part V. Article 65 deals with marine mammals and is in the following terms:

Nothing in this Part restricts the right of coastal State or the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part.  States shall co-operate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work though the appropriate international organizations for their conservation, management and study.

55                  Thus, it was said, this treaty contemplates and provides for municipal law being passed on the subject matter there identified.

56                  So, it was said, Australian municipal law has created offences which govern the killing and dealing with whales in the Australian Whale Sanctuary in the EEZ.  By the combined effects of s 9 of the EPBC Act and s 7(1) of the AT(EP) Act those offences do not apply to activities authorised by a permit of a foreign government in relation to which activity the foreign Government and Australia have accepted the same obligations under the Madrid Protocol concerning, amongst other things, conservation of Antarctic fauna.  A permit issued under Article VIII of the Whaling Convention is said not to be such a permit because whaling for scientific purposes is not the subject of obligations under the Madrid Protocol.  As I have indicated, I would be grateful for further submissions on the relationship between Articles 3 and 7 of Annex II and s 7(1) and the definition of “recognised foreign authority”.

57                  This construction may be seen to reflect the separate development in public international law of the protection of whales as part of the marine environment and the regulation of whaling.  It may also be seen to reflect the development of Australian municipal law in implementing marine and environmental protection in the Antarctic.

58                  The Antarctic Treaty System in its early recommendations for the conservation of Antarctic fauna and flora excluded whales from the definition of “native mammal” in the Agreed Measures:  see the Third Antarctic Treaty Consultative Meeting at Brussels on 2 June 1964.  From 1964 a regime was developed for conservation of Antarctic marine living resources.  In 1989 at the Fifteenth Antarctic Treaty Consultative Meeting an approach was developed which was adapted and became in the Madrid Protocol.  Under this approach, no longer were whales excluded from the relevant definition of fauna; though whaling itself remained excluded.

59                  Section 7(1) of AT (EP) Act as originally passed was in the following terms:

Notwithstanding any other law, no action or proceeding lies against any person for or in relation to anything done by that person to the extent that it is authorized by a permit or by an authority of another Contracting Party.

The following phrases were also defined:

Authority of another Contracting Party means a permit or authority issued or given, or an arrangement made, by another Contracting Party for purposes of, and in accordance with, the Agreed Measures;

Agreed Measures means measures for the conservation of Antarctic fauna and flora approved by Australia under Article IX of the Treaty, and includes any measures for like purposes so approved after the commencement of this section;

another Contracting Party means a Contracting Party to the Treaty other than Australia;

Treaty means the Antarctic Treaty set out in the Schedule to the Antarctic Treaty Act 1960, including nay modification or amendment of that Treaty made after the commencement of this section and for the time being in force as to Australia.

60                  However, just as the 1964 Agreed Measures excluded whales, so did the definition of “native mammal” in s 3 of AT(EP) Act in its original form:

Native mammal means any member, at any stage of its life cycle, of any species of the Class Mammalia indigenous to the Antarctic except whales;

61                  Section 7(1) was amended into its current form, together with the definition of “recognised foreign authority” by the Antarctic (Environment Protection) Legislation Amendment Act 1992 (Cth) to take up the Madrid Protocol.  Until amendments that took effect on 16 July 2000, whales remained excluded from the definition of “native mammal”.  Until 16 July 2000 whales were protected in the Antarctic EEZ under separate legislation:  Whale Protection Act 1980 (Cth).  Since 16 July 2000, with the repeal of the Whale Protection Act by the EPBC Act and the creation of the Australian Whale Sanctuary it can be seen that the protection of whales in that area continues.

62                  This development may be seen to conform with a conclusion that whatever the rights in public international law that Japan enjoys under Article VIII of the Whaling Convention, the content of the relevant Australian municipal law can be seen to be such as to prohibit the killing of whales for any purpose within Australian territory, including the Antarctic EEZ.

63                  Thusfar, I have dealt with the matter only on the basis that the activity of the respondent is in conformity with the permit issued by the Government of Japan.  That is the only basis upon which the matter has been argued to this point.

64                  It is important to recognise the arguments that are being put to this Court, in particular to avoid unnecessary confusion and misunderstanding of the function of the Court.

65                  The applicant has not pleaded and has not argued that the Government of Japan was not entitled under international law or Japanese municipal law or by reference to any other body or system of law to issue the permit that it has.  Nothing before this Court on the pleadings or in argument calls, or has called, into question the conduct of the Japanese Government.

66                  The applicant has pleaded that the activity that has been undertaken by the respondent was purportedly covered by the permit. That way of putting the matter is pregnant with an assertion that it is not accepted by the applicant that the activity is in conformity with the permit.  That may give rise to a factual debate in due course as to whether the activity has been done by the Japanese national in conformity with the permit issued by the Japanese Government.  I have heard no submissions on that question.

67                  That issue would only arise if the applicant’s first argument were wrong, that is, that irrespective of the conformity of the activity with the permit there is a breach of Australian municipal law.  That is what has been argued thusfar.

68                  I need to hear the applicant on whether I should grant leave to serve the originating process in its present form containing, as it does, the phrase “purported to be done” in [7] of the statement of claim.  There is no evidence before me that there is any disconformity between the activity and the permit.  If the applicant wishes to run this alternative case, if leave were granted, it will need to persuade me that leave should be given to the pleading so framed.

Discretion

69                  There appears to me to be no basis to argue that Australia is not a convenient forum.  Therefore, I have difficulty, subject to submissions to the contrary, in conceiving how any argument as to forum non conveniens should prevent the granting of leave.

70                  There may or may not be a question of the effectiveness of the orders sought.  Perhaps even to raise that issue at this point is to assume matters which should not be the subject of assumption.  The Court will not make futile orders.  Whether or not they are futile may depend upon many matters, including but far from limited to the attitude of persons who are not present before the Court.  This is a matter which is better dealt with in due course, with an understanding of the response to the litigation of the respondent.

71                  The principles of international comity are that in general Courts will not adjudicate upon the validity of acts and transactions of a foreign sovereign state, within that sovereign’s own territory:  Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30, 40-41.  If the above construction propounded by the applicant is correct, the Government of Japan has contravened no obligation under international law by the issue of the permit to the respondent.  Similarly, the respondent, by undertaking activity in conformity with the permit, has not caused the Government of Japan to be in breach of any public international law obligation.  However, it would mean that the respondent in undertaking activity in conformity with the permit within the Australian Whale Sanctuary in the Antarctic EEZ does commit a breach of Australian municipal law.  This conclusion is not one which adjudicates upon the validity of acts and transactions of the Government of Japan.

72                  As I indicated at the hearing of this matter it is appropriate that the Attorney-General be given an opportunity to put submissions about such issues in this matter as he thinks appropriate.  Those matters will be a matter for the Attorney-General and may go to the proper construction and interpretation of the treaties in question, the municipal law in question and aspects of discretion.

73                  As I have earlier said, it is important that what is before this Court is not misunderstood.  The issues currently tendered for consideration include whether there is a prima facie case that Australian domestic law, that is an Act of the Commonwealth Parliament, has been and is likely to be, contravened by the respondent.  That does not involve passing any judgment on the lawfulness (by reference to international law or any other body or system of law) of the conduct of the Government of Japan.

74                  This Court, in the exercise of the judicial power of the Commonwealth, conferred by laws of the Commonwealth Parliament made under Chapter III of the Constitution is dealing with an issue of asserted contravention of a law of the Commonwealth Parliament.  It is not enforcing in any way obligations or rights under public international law.

75                  The orders that I will make for the moment are simply that:

(a)    the hearing of the motion for service out of the jurisdiction stand over to a date to be fixed, and

(b)   the applicant serve upon the Attorney-General for the Commonwealth the application, the affidavits in support including exhibits, the submissions made and a copy of these reasons as soon as is reasonably practicable.

76                  It is appropriate to give the Attorney-General a reasonable time to consider these matters.  The applicant should liaise with officers of the Attorney-General’s Department about the future conduct of the matter.

77                  I will put the matter in the list for directions in December to ascertain the current position and if possible to set a date as soon as possible for any resumed hearing.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.



Associate:


Dated:              23 November 2004


Counsel for the Applicant:

Mr S Gageler SC with Mr C McGrath



Solicitor for the Applicant:

Environmental Defender’s Office



Date of Hearing:

16 November 2004



Date of Judgment:

23 November 2004