Australian Maritime Safety Authority v Livestock Transport & Trading [2009] FCAFC 10 (10 February 2009)

Australian Maritime Safety Authority v Livestock Transport & Trading
[2009] FCAFC 10

ADMIRALTY – treatment or holding of livestock sewage onboard ship – Maritime Authority refused foreign-flagged ship permission to load livestock because of lack of compliance with parts of Marine Orders Pt 43, O 12.2 and cl 6.6 of Appendix 4 – appeal from decision by primary judge that these parts of Marine Orders were invalid, being inconsistent with Div 12C of Pt IV of Navigation Act 1912 (Cth), to extent applicable to foreign-flagged ships – law of State of flag of ship

STATUTORY INTERPRETATION – extent of regulation making power – Authority’s powers to make regulations or orders under ss 190B(1) and 257(1) – whether Div 12C of Pt IV of Navigation Act imposed limitation on Authority’s powers under ss 190B(1) and 257(1) to make regulations or orders with respect to Annex IV of MARPOL 73/78 – whether s 267ZQ gave Authority power to require structure of foreign ship to be modified so that it would comply with Annex IV – subject matter, scope and purpose of Act

Held: Impugned Marine Orders valid; Appeal allowed

Navigation Act 1912 (Cth), ss 425(1AA), 425(2), 425(5C), 257, 257(1), Pt IV Div 12C ss 267ZF, 267ZG, 267ZJ, 267ZK, 267ZL, 267ZM, 267ZN, 267ZQ
Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) Pt IIIB Div 2 ss 26D(3), 26D(6)

International Convention on the Prevention of Pollution from Ships 1973 as modified by the Protocol of 1978 – Annex IV of MARPOL 73/78

Marine Orders Pt 43 Cargo & Cargo Handling – Livestock, Issue 6

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 cited
ASIC v DB Management Pty Ltd [2000] HCA 7; (2000) 199 CLR 321 applied
Barcelo v Electrolytic Zinc Company of Australasia Ltd [1932] HCA 52; (1932) 48 CLR 391 referred to
Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2008] FCAFC 142; (2008) 170 FCR 560 cited
Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 cited
Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311 cited
Livestock Transport & Trading v Australian Maritime Safety Authority (No 2) [2008] FCA 1544 reversed
Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc [2003] HCA 43; (2003) 214 CLR 397 followed
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 cited
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 referred to
Morton v Union Steamship Company of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402 followed
Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 followed
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 applied
Wildenhus’s Case [1887] USSC 25; 120 US 1 (1887) cited

Tenterden’s Law of Merchant Ships (11^th ed, Shee J (ed), 1867
de la Rue C, Anderson CB, Shipping and the Environment: Law and Practice (1^st ed, Lloyd’s of London Press, 2003)

AUSTRALIAN MARITIME SAFETY AUTHORITY v LIVESTOCK TRANSPORT AND TRADING
WAD 247 of 2008

DOWSETT, RARES AND GILMOUR JJ
10 FEBRUARY 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WAD 247 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

AUSTRALIAN MARITIME SAFETY AUTHORITY
Appellant

AND:

LIVESTOCK TRANSPORT AND TRADING
Respondent

JUDGES:	DOWSETT, RARES AND GILMOUR JJ
DATE OF ORDER:	10 FEBRUARY 2009
WHERE MADE:	PERTH

1. The appeal be allowed with costs.
2. The orders made on 17 October 2008 be set aside, and in lieu thereof, order that:

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WAD 247 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

AUSTRALIAN MARITIME SAFETY AUTHORITY
Appellant

AND:

LIVESTOCK TRANSPORT AND TRADING
Respondent

JUDGES:	DOWSETT, RARES AND GILMOUR JJ
DATE:	10 FEBRUARY 2009
PLACE:	PERTH

1 Livestock Transport and Trading is the owner and operator of the Kuwaiti registered ship MV Al Messilah. It also operates two other similar ships. Livestock Transport’s ships carry live sheep between Australia and the Middle East. The MV Al Messilah is fitted to carry about 72,000 sheep per voyage. She has a gross tonnage of 38,988 tonnes. She was not equipped with a holding tank or sewage treatment plant to treat, store or discharge the effluent which the sheep produced.

2 On 1 October 2008 she was in the port of Fremantle intending to proceed to Portland, Victoria, to load a cargo of live sheep for carriage to the Middle East. A surveyor of the Australian Maritime Safety Authority then ordered the MV Al Messilah not to load livestock until resolution of the issue of her compliance with the Authority’s requirement that she be equipped with a holding tank or treatment plant to deal with sewage from livestock in accordance with Marine Orders Part 43 par 12.2 and appendix 4, cl 6.6. Those orders applied the standards for equipping ships set by the Regulations for the Prevention of Pollution by Sewage from Ships contained in the revised text of Optional Annex IV to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 (MARPOL 73/78) [2004] ATS 9.

3 Livestock Trading successfully challenged the validity of those marine orders before the primary judge as being beyond the Authority’s power to make regulations under the Navigation Act 1912 (Cth). The Authority has appealed against that conclusion.

4 Annex IV of MARPOL 73/78 entered into force generally on 27 September 2003. Australia brought some of the provisions of Annex IV directly into force by proclaiming the commencement of amendments which had inserted Division 12C into Part IV of the Navigation Act 1912 ("the Act") and Division 2 into Part IIIB of the Protection of the Sea (Prevention of Pollution from Ships Act 1983 (Cth) ("the POTS Act"). Those Divisions had been enacted in the Protection of the Sea Legislation Amendment Act 1986 (Cth) but their domestic operation was intended to await international acceptance of the standards set in Annex IV (see s 267ZS of the Act and s 26DA of the POTS Act). Hence, the delay until 2003 for Annex IV to enter into force generally. One issue in this appeal is the extent to which Div 12C of Pt IV of the Act gave effect to Annex IV.

5 Annex IV provided that, relevantly, every existing ship of 400 gross tonnes and above engaged in international voyages had to comply with its provisions within five years of its entry into force generally (reg 2 (3), 4(1)). Hence, by 27 September 2008, vessels such as the MV Al Messilah were required, by reg 9 of Annex IV, to be equipped with one of three kinds of sewage system. "Sewage" was defined as meaning drainage and other wastes from toilets, as well as medical premises and "... drainage from spaces containing living animals; or ... other waste waters when mixed with the drainages defined above" (Annex IV reg 1(3)). The three sewage systems which could be approved by the administration of the ship’s flag State, were (Annex IV reg 9):

• a sewage treatment plant complying with the standards of the International Maritime Organisation;

• a sewage comminuting and disinfecting system which had sufficient temporary storage capacity to contain sewage when the ship was less than three nautical miles from the nearest land; or

• a holding tank of sufficient capacity to retain all sewage, having regard to the operation of the ship, the number of persons on board and "other relevant factors".

6 The MV Al Messilah carried an international sewage pollution prevention certificate issued on 15 September 2008 by a surveyor authorised by the government of Kuwait certifying that it was equipped with two independent holding tanks complying with Annex IV in respect of the 60 persons which the ship was certified to carry. This also certified that "... the ship complies with the applicable requirements of Annex IV ...". However, the certificate did not identify that the ship was equipped with any of the three kinds of sewage system for dealing with any livestock sewage specified in reg 9 of Annex IV. In fact, the MV Al Messilah is not equipped with any of those three kinds of sewage systems to deal with livestock sewage.

7 In December 2006 the Authority amended Marine Orders Part 43 in Issue 6 in anticipation that, on 27 September 2008, it would be five years after Annex IV had entered into force generally. Marine Orders Part 43 relevantly provide in O 12 and Appendix 4 the following (footnotes omitted):

8 The primary judge held that the part of O 12.2 emphasised above and the whole of cl 6.6 in Appendix 4 of Marine Orders Pt 43 were inconsistent with the Act in their application to foreign flagged ships and were therefore of no force and effect. He set aside the notice issued by the officer of the Authority refusing permission to load the MV Al Messilah. In essence, his Honour held that the impugned orders could not be made to require compliance with the provisions of Annex IV relating to the storage of sewage generated by livestock on foreign flagged or registered ships. This was, in effect, because a ship’s compliance with Annex IV could be secured only by its flag State. He held that the Authority’s only source of power arose in circumstances where it was necessary or expedient for the protection of the environment for it to act under the powers conferred by s 267ZQ of the Act.

9 Part IV of the Act applies to all ships, whether Australian registered or not (s 187(1)).

10 For the purposes of the Act, s 207(1)(a) provides that a ship is to be treated as seaworthy if, and only if, she is in a fit state as to the condition of its hull and equipment, boilers and machinery, the stowage of ballast or cargo, the number and qualifications of crew, including officers, and in every other respect, to: first, encounter the ordinary perils of the voyage then entered upon; and, secondly, not pose a threat to the environment. A substandard ship is defined as being seaworthy, but having conditions that on board are clearly hazardous to safety or health (s 207A(1)). The Authority can order that an unseaworthy or substandard ship be detained (s 210).

11 The Act contains a number of powers under which the Governor-General and the Authority may make both regulations and orders (which are legislative instruments under the Legislative Instruments Act 2003 (Cth): see s 6(1) definition of "regulations" in the Navigation Act). The Authority relied on s 257 as the source of its power to make the impugned orders. Relevantly s 257(1) and (2) provide:

(The words emphasised were added in 2006 (Act No 24 of 2006), after Div 12C had come into force. They were the first amendments made to s 257 since 1988.)

12 A contravention of a regulation made under s 257 is an offence (s 257(3)). Division 10, in which s 257 is contained, is headed "Dangerous goods, livestock, grain, deck and other cargoes". However, livestock are not mentioned directly in the text of ss 248-257 which comprise Div 10. Nonetheless, since the Navigation (Deck Cargo and Live Stock) Regulations 1926 (Cth) were made, the executive government of the Commonwealth has regulated under the Act the conditions for carriage of livestock on ships.

13 After argument of the appeal, the Court drew the attention of the parties to s 190B(1) which provides:

The definition of "equipment" in s 6(1) includes every thing or article belonging to or to be used in connection with the ship.

14 Some provisions in Pt IV of the Act give effect, or make provisions with respect to various international Conventions. Thus, Div 2 of Pt IV deals with requiring steamships to be surveyed, Divs 2B and 2C with the issue of safety certificates and provision of survey and safety certificates required under, or for the purposes of, the International Convention for the Safety of Life at Sea (1 November 1974) ATS 1983 No 22. Divisions 6 and 6A deal with distress signals and carrying of radio equipment. Division 3, in which ss 207-214 are contained, deals with unseaworthy and substandard ships, and Div 4 with life-saving appliances and fire protection. Division 5 deals with load lines for the purposes of the International Convention on Load Lines (5 April 1966) ATS 1968 No 23 as amended. Division 9 deals with containers and enables regulations to be made providing for and giving effect to the International Convention for Safe Containers (2 December 1972) ATS 1981 No 3 (see s 240).

15 Division 11 of Pt IV deals with collisions, loss and damage. In s 258, a regulation making power is conferred to prescribe measures to be observed for the prevention of collisions. That power includes, but is not limited to, giving effect to the Convention on the International Regulations for Preventing Collisions at Sea (20 October 1972) ATS 1980 No 4.

16 Next, Divs 12-12D give effect to, or make provision for various aspects of annexes to MARPOL 73/78. Division 12 deals with Annex I, being the Regulations for the Prevention of Pollution by Oil. Division 12A deals with Annex II, being the Regulations for the Prevention of Pollution by Noxious Liquid Substances in Bulk (Annexes I and II entered into force generally on 2 October 1983 and in Australia on 14 January 1988). Division 12B deals with Annex III being the Regulations for the Control of Pollution by Harmful Substances carried by sea in packaged form (this entered into force generally on 1 July 1992 and in Australia on 10 January 1995). Division 12C deals with Annex IV (sewage) while Div 12D deals with Annex VI, being the Regulations for the Prevention of Air Pollution from Ships (which entered into force generally on 19 May 2005, and entered into force in Australia on 10 November 2007).

17 The schemes of Divs 12, 12A, 12C and 12D are similar. (The provisions of Div 12C will be explained in more detail later in these reasons.) Each Division refers to the relevant Annex to MARPOL 73/78 with which it deals. Each has a section which gives power to make regulations with respect to one or more, but not all, of the regulations in the relevant Annex. Each Division makes provision for Australia to carry out its responsibilities as the flag State of ships registered here, and to act at the request of the government of the flag State of other vessels in carrying out functions under the Annex. In addition, each of these Divisions confers a power on the Authority to give particular directions to a foreign ship, where it is of the opinion that the ship does not comply with the provisions of the relevant Annex (regardless of whether that Annex requires it to be compliant): ss 267K, 267Y, 267ZQ, 267ZZF. Those directions can include that the ship not enter any port, or a specific port or ports, in Australia, or that it comply with particular requirements while entering or leaving a port. However, the Authority is not entitled to exercise those powers except to the extent that it is necessary or expedient to do so for the protection of the environment (ss 267K(2), 267Y(2), 267ZQ(2), 267ZZF(5)). In contrast, the scheme of Div 12B is simpler. The latter provides that the regulations may make provision for and in relation to giving effect to some of the regulations in Annex III to MARPOL 73/78 (s 267ZC).

18 Importantly, s 425 contains a number of general regulation making powers for the purposes of the Act. First, s 425(1) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act or for the conduct of any business under the Act.

19 Additionally, s 425(1AA) gives the Authority power to make, by legislative instrument, orders with respect to any matter in, relevantly, Pt IV in relation to which provision may be made by the regulations. Next, s 425(2) and (5C) provide:

20 The provisions of Div 12C apply to ships, such as the MV Al Messilah, engaged in international trade. Section 267ZF authorises regulations to make provision for, and in relation to, giving effect to regulations 4, 9 and 10 of Annex IV. Regulations 4, 9 and 10 of Annex IV deal with requirements that each flag State’s administration can impose. Regulation 4 provides that ships to which Annex IV applies must have an initial survey before being put into service, and then one every five years to ensure that they comply fully with the applicable requirements of Annex IV. The survey is to be conducted by the "Administration", i.e. the government of the flag State. The effect of reg 9 is set out in [5] above. Regulation 10 specifies that there be a standard means for connecting the ship’s sewage system to shore-based or other discharge pipelines or facilities. Thus, when s 267ZF authorises the making of regulations to give effect to regulations 4, 9 and 10 of Annex 4, it does so in the context that these will be requirements made by Australia as the flag State of an Australian ship; i.e. a ship registered in Australia or an unregistered ship having Australian nationality (see the definition in s 267ZD(1)).

21 Next, ss 267ZG-267ZP provide for the Authority to regulate in Australia first, the issue of international sewage pollution prevention certificates, surveys and the production of certificates as to compliance with Annex IV for Australian ships and, secondly, in the case of foreign ships, if the Authority is requested by the government of a vessel’s flag State to assist, in providing such a certificate or survey.

22 Critically, s 267ZQ(1) provides that, subject to s 267ZQ(2), where the Authority is of the opinion that a foreign ship is not constructed in accordance with the provisions of Annex IV (whether or not it is required by Annex IV to be so constructed), the Authority may give a notice, in writing addressed to the master or owner of the ship, directing it not to use any port or off-shore terminal (either generally or in respect of specific locations), or to comply with specified requirements while it is entering, in or leaving any port or off-shore terminal (generally or specified) in Australia. However, s 267ZQ(2) provides that the Authority is not to exercise its powers under s 267ZQ(1), "except to the extent that it appears to the Authority necessary or expedient to do so for the protection of the environment". Failure to comply with a notice is an offence of strict liability (s 267ZQ(4) and (4A)).

23 The primary judge found that the last sentence of O 12.2 and the whole of par 6.6 of Appendix 4 to Marine Orders Pt 43 Issue 6, so far as they applied to foreign flagged ships, were inconsistent with the Act and were of no force or effect. He reasoned that the power of the Authority to deal in Australian waters with a foreign flagged ship that is not constructed in accordance with the provisions of Annex IV is limited to giving directions under s 267ZQ of the Act. Thus, he held that, unless there was a relevant risk to the environment, the Authority had no power to make the impugned orders or to give directions to the same effect. In addition, his Honour found that s 267ZQ did not give the Authority power to require the structure of a ship to be changed so that it would comply in the future with the provisions of Annex IV.

24 His Honour reasoned that Div 12C contained a legislative scheme which was inconsistent with the impugned parts of Marine Order Pt 43. He held that it did not matter that provisions, such as s 257, might otherwise have authorised the making of the impugned orders, because s 425(1AA) provided that those orders could not be inconsistent with the provisions of the Act. The primary judge found that the impugned orders were inconsistent with the legislative scheme of Div 12C of the Act to the extent that they enforced compliance with the provisions of Annex IV by foreign flagged ships. Hence, he held that the impugned orders were invalid.

25 Livestock Trading argued that MARPOL 73/78, to which each of Annexes I, II, III, IV and VI form part, provides for flag State control of a ship under whose authority she is operating. Livestock Trading argued that provisions of Art 5 of MARPOL 73/78 bear on the construction of the regulation making powers under ss 190B(1) and 257(1) of the Act, which it contends must be read as constrained by Div 12C and MARPOL 73/78. Article 5 of MARPOL 73/78 provides that a certificate issued under the authority of a party to the Convention in accordance with the provisions of its regulations will be regarded by all parties to the Convention for all purposes covered by it as having the same validity as a certificate issued by each State party. And, Art 5 r 2 provides that a ship required to hold a certificate in accordance with provisions of the regulations (including Annex IV) while in ports or offshore terminals under the jurisdiction of a State party is subject to inspection by duly authorised officers of the port State.

26 However, Art 5 r 2 goes on to provide that any such inspection is limited to verifying that there is a valid certificate on board, unless there are clear grounds for believing that the condition of the ship or its equipment does not correspond substantially with the particulars of that certificate. In the latter case, or if the ship does not carry a valid certificate, the port State can take steps to ensure that the ship will not sail until it can proceed to sea without presenting an unreasonable threat of harm to the marine environment. Livestock Trading relied on the provisions of s 267ZQ as being intended to give effect to Art 5 r 2 of MARPOL 73/78 and as being an aid to limiting the operation of the provisions of the Act.

27 The MV Al Messilah did not have a certificate under Annex IV issued by the authority of the flag State, Kuwait, in respect of any sewage system to treat effluent created by livestock the vessel might carry. However, Livestock Trading relied on the international sewage pollution certificate issued with the authority of Kuwait certifying compliance with Annex IV with respect to human sewage on the MV Al Messilah. It contended that this certificate must be treated as being conclusive for all purposes in respect of the application of Annex IV. Livestock Trading contended that, under the provisions of MARPOL 73/78, it was a matter for the flag State alone to determine questions of compliance by ships on its register with the provisions of, among others, Annex IV. It argued that Div 12C was a comprehensive statement of the Authority’s powers with respect to Annex IV and that the impugned orders were beyond those powers.

28 These arguments must be rejected. The scheme of Div 12C is to give effect to and make provision for Annex IV only to a limited extent. The Governor-General or the Authority has power under s 267ZF to make a regulation or order to give effect to regs 4, 9 and 10 of Annex IV. This enables Australia, as the flag State or "Administration" to exercise flag State control in issuing sewage certificates and carrying out surveys of Australian ships and, where requested by the flag State of the ship to act as that State’s delegate in performing its functions with respect to ships under its jurisdiction for the purposes of Annex IV. However, Div 12C does not ratify or give the force of law to Annex IV as a whole. Nor does Div 12C give the force of law to acts of other flag States, with respect to the registration of ships, the issue of certificates or surveys for the purposes of Annex IV.

29 Doubtless the Parliament enacted Div 12C, as well as many other parts of the Act, on the assumption that the ordinary operation of the principles of international law in general recognises the authority of the law of the State of the flag of a ship as governing matters of her internal discipline and the general regulation of the rights and duties of her officers and crew towards the ship or among themselves: Wildenhus’s Case [1887] USSC 25; 120 US 1 (1887) at 11-12 per Waite CJ stating the opinion of the Court; Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc [2003] HCA 43; (2003) 214 CLR 397 at 417-419 [49]- [52] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.

30 The principle is that when a merchant ship of one country enters the ports of another for the purposes of trade, she subjects herself to the law of the place to which she goes. However, ordinarily, comity among trading nations has allowed the law of the flag of the ship to govern matters of her internal discipline and things done on board which affect only the ship or her company and do not involve the peace or dignity of the port State. Thus, crimes committed while the vessel is within the jurisdiction of the port State are governed by that State’s laws, as would be ordinary civil or common law relations between members of the ship’s crew or company or the ship herself and other persons within the port State. The question is whether the interests of the port State are engaged so as to attract the operation of its legislation upon a particular subject to the visiting ship: CSL Pacific Shipping 214 CLR at 418 [52].

31 Livestock Trading argued that ss 190B(1) and 257(1) should be construed, so far as their language permitted, as not being intended to deal with matters over which the jurisdiction properly belonged to another nation according to the comity of nations. It contended this was in accordance with the judgment of Dixon J in Barcelo v Electrolytic Zinc Company of Australasia Ltd [1932] HCA 52; (1932) 48 CLR 391 at 423-424.

32 This argument should be rejected. Critically, Dixon J said that the rule of construction confined "... the operation of general language in a statute to a subject matter under the effective control of the Legislature": Barcelo 48 CLR at 423. Here, the Parliament has effective control over all ships within Australian waters engaged in international trade and commerce. The interests of Australia are engaged by ships which seek to load cargo here or sail in Australian waters when not equipped to an appropriate standard, particularly an internationally agreed standard, such as reg 9 of Annex IV: CSL Pacific Shipping 214 CLR at 418 [52].

33 The limited recognition and application given to Annex IV in the Act does not evince a legislative intention to withdraw the whole of the subject matter of Annex IV from the Authority’s powers to make regulations or orders under provisions such as ss 190B(1) or 257(1). The subject matter, scope and purpose of the Act does not support a construction that Australia withdrew from the capacity of the Governor-General, or the Authority, power to make appropriate regulations or orders requiring ships entering its jurisdiction to adhere to appropriate standards of carriage for livestock treatment and disposal of sewage they generate while on board, or for the protection of the environment.

34 Annex IV is principally concerned with the protection of the environment. It recognises that sewage will be generated on board ships carrying livestock and that, for the protection of the environment, ships must now be equipped with an appropriate sewage system complying with reg 9. Annex IV requires flag States to implement its provisions, including by requiring ships they register to be equipped with one of the sewage systems specified in reg 9. But that does not exhaust the field of possible regulation of ships on which livestock are carried with respect to sewage waste the livestock generates. Not every ship entering Australian waters will be registered with a State party to MARPOL 73/78 or Annex IV. There is no reason to suppose that the Parliament, in enacting Div 12C, or the Governor-General, in proclaiming it to come into force, intended to leave unregulated any ships registered in States which had not given effect to, or were even States party to, Annex IV.

35 If Livestock Trading’s argument were correct, the consequence would be that such ships could not be regulated because of this lacuna in the Act. However, that construction demonstrates the unsoundness of the argument. There is no such lacuna in the natural and ordinary meaning of Div 12C or the Act read as a whole. And, since s 267ZQ was expressed to operate in respect of all ships, including those to which Annex IV applies, it is unlikely that the Parliament limited the fulsome powers in ss 190B(1) and 257(1) to situations other than those which Annex IV could possibly regulate. The primary judge’s construction assumes that Div 12C covers the field of all flag States. However, Div 12C can only apply to Australia as a flag State, and to other States party which have given effect to Annex IV. Even in the latter case, as with Australia, a State party may choose to give only partial effect to Annex IV thus leaving a potentially wide and unregulated area in the State party’s failure fully to ratify Annex IV. There is nothing in Div 12C of Pt IV of the Act which suggests that the Parliament intended it to be an exhaustive delimitation of the manner in which the executive government, including the Authority, could make regulations or orders under the Act providing for equipping ships, so as to be seaworthy, or for the disposal or treatment of sewage generated by livestock loaded in Australian ports onto foreign flagged ships.

36 Indeed, recently an increasing trend has been identified of port and coastal States taking unilateral action to enforce antipollution standards in the absence of rigorous supervision of MARPOL 73/78 regulations by flag states: see de la Rue C, Anderson CB, Shipping and the Environment: Law and Practice (1^st ed, Lloyd’s of London Press, 2003 at pp 771, 900-901). And, despite the practical application of principles of international law, port States have long exerted their jurisdiction to regulate or exercise control over some matters of the management of vessels flagged by other States. Thus, the Merchant Shipping Act 1854 (Imp); 17 & 18 Vict. c 104, made provisions in Pt IV dealing with safety and the prevention of accidents for all foreign steamships carrying passengers between places in the United Kingdom (s 291). Moreover, ss 14-16 of that Act gave the Board of Trade power to appoint inspectors, among other things, to consider whether the hull and machinery of any steamship were sufficient and in good condition (s 14(3)). The inspector appointed had power to conduct such enquiries as were necessary, including by examining witnesses on oath for that purpose: see the description in Tenterden’s Law of Merchant Ships (11^th ed, Shee J (ed), 1867, at pp 90-92).

37 No argument was addressed to us on the United Nations Convention on the Law of the Sea [1994] ATS 31 or the Seas and Submerged Lands Act 1973 (Cth) and it is not necessary to rely on their provisions for the purposes of deciding the appeal. However, the following observations may be made about those provisions. Australia has declared its sovereignty over its territorial sea by s 6 of the Seas and Submerged Lands Act. That Act gives partial effect to the Convention on the Law of the Sea. That convention provides that coastal or port States may:

• establish particular requirements for the prevention, reduction and control of pollution of the marine environment as a condition for the entry of foreign vessels into their ports (Art 211 r 3);

• adopt laws and regulations for the prevention, reduction and control of pollution from foreign vessels in the exercise of their sovereignty within their territorial sea (Art 211 r 4).

38 It follows that under the Convention on the Law of the Sea, Australia may exercise its sovereign powers over foreign vessels in its territorial sea with respect to pollution (Art 211 r 4). The principles of international law as found in that convention do not support Livestock Trading’s contention that only the flag State was intended to have jurisdiction over compliance by its vessels with international conventions such as MARPOL 73/78 and Annex IV.

39 Similar powers are now given to make regulations and orders under s 190B(1) of the Act specifying requirements with which the construction, hull, equipment and machinery of ships must comply and to make provision for or in relation to the survey and inspection of ships. There is no reason to read down the general words of s 190B(1). It is found in Pt IV which applies to all ships, as s 187(1) provides. Each of ss 190B(1) and 257(1) is a sufficient source of power to make the impugned orders.

40 No reliance was placed in oral argument on the provisions of s 190B(1), rather attention was focused on the interplay between s 257, Div 12C of Pt IV and s 425. However, the Authority subsequently filed written submissions adopting s 190B(1) as an additional source of power to make the impugned orders. Livestock Trading adopted its arguments on the construction of s 257 as applying equally to s 190B(1). The impugned orders specify requirements with which the equipment and machinery, at least, if not the construction, of ships carrying livestock must comply. They are directed to matters within each of ss 190B(1) and 257(1).

41 The width of the regulation making powers in the Act can only be discerned by an examination of the subject matter, scope and purpose of those powers viewed in the context of the Act as a whole. Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ discussed the principles for the construction of regulation making powers in Morton v Union Steamship Company of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402 at 410. They said that an Act of the Parliament which laid down only the main outlines of policy and indicated an intention of leaving it to the Governor-General to work out that policy by specific regulation, may confer a wide ambit on the power to make regulations. However, the ambit of that power may be very different in an Act which deals specifically and in detail with a subject matter to which the statute is addressed.

42 Livestock Trading argued that the detailed functions conferred on the Authority by Div 12C of Pt IV of the Act were of the latter character, and that s 267ZQ reinforced the circumscription which, it said, the Parliament intended to apply to the power of the Authority to make regulations with respect to Annex IV. That argument should be rejected.

43 The ambit of the powers to make regulations and orders under ss 190B(1) and 257(1) is not circumscribed by Div 12C at all. Division 12C contains provisions which deal with the role of the Authority as the "Administration" of Australia as a flag State, and as delegate of other flag States to act at their request in specific circumstances, as envisaged in Annex IV. The power to give a direction in s 267ZQ is a specific power applicable to any foreign ship (whether or not Annex IV applies to it) to take particular action for the purposes of protection of the environment. There is nothing in the scheme of Div 12C or in the particular provisions of s 267ZQ which suggests that the Parliament exhaustively defined within their ambit whatever powers the Governor-General or the Authority was to have under the Act with respect to the carriage of livestock loaded in Australia on a foreign flagged ship sailing to another country. Moreover, if the flag State were not a State party to or had not given effect to Annex IV, it would be appropriate to construe Div 12C as deferring Australia’s sovereignty over a ship to that of her flag State which had not given effect to Annex IV.

44 The Parliament gave importance to the protection of the environment as reflected in s 207(1)(a)(ii). That has extended the common law meaning of seaworthiness of a ship to include it being in every respect in a fit state not to pose a threat to the environment. In recent years there have been many pollution disasters involving ships engaged in international trade, particularly carrying oil cargos or bunkers which have damaged the environment, through the pollution that they released. It is scarcely surprising that legislative intervention has sought to address potential threats in this way.

45 One means that the Parliament authorised the Authority to use for the protection of the environment was contained in Div 3 of Pt IV of the Act. That entitled the Authority to order a ship that was unseaworthy or substandard to be provisionally detained under s 210(1). Another means was contained in s 267ZQ. Neither of those two sections evinces an intention to exhaust the power of the Governor-General or the Authority to make regulations under ss 190B(1) or 257(1) with respect to the carriage of livestock, including, but not limited to the pollution that livestock may generate through its creation of sewage. Sewage does not merely have the potential to pollute the environment, including the sea. Sewage has the real potential to affect the safety, health and welfare, not merely of livestock, but of the human beings on a ship while the sewage remains on board.

46 Annex IV of MARPOL 73/78 prescribes a means of dealing with sewage so as to minimise its capacity to cause or pose a threat to the environment from pollution. But this does not preclude the measures Annex IV sets out from being used to provide for animal welfare, or risks to animal and human safety and health posed by livestock sewage produced on board a ship. It would make little sense to impose different requirements for storing sewage for the purposes of eliminating threats posed to the environment on the one hand and threats posed to safety, health or welfare of animals or humans on the other. It was open to the Authority to take a commonsense view that the measures provided in Annex IV were an adequate, practicable and sensible means of dealing with the issues of human and animal safety, health and welfare, while at the same time addressing the objectives to prevent pollution, for which Annex IV had been agreed.

47 It would be an odd consequence if the wide powers to make regulations and orders conferred under the Act were circumscribed because, although a regulation would be appropriate and adapted to achieve the legitimate end of protection of animal or human safety, health or welfare from sewage while on a ship, it would be invalid because it would also achieve the objects of Annex IV.

49 Here, the purpose of the regulation making powers under ss 190B(1) and 257(1) extends to providing for equipping ships to carry livestock and for animal and human safety, health and welfare as well as eliminating threats to the environment posed by the ship (see s 207(1)(a)). They also extend to the prevention of pollution. The powers conferred by those sections enable the Governor-General or the Authority to make regulations and orders addressing a very broad range of matters affecting all ships, not merely those for which Australia is the flag State.

50 Nonetheless the power to make regulations and orders under the Act is not unlimited. That power cannot be used to widen the purposes of the Act that conferred it, so as to add new and different means of carrying them out, or to depart from or vary the plan which the legislature has adopted to attain its end: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 380 [61] per McHugh, Gummow, Kirby and Hayne JJ; Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311 at 324-325 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 at 250 per Dixon CJ, Williams, Webb and Fullagar JJ. The power to make regulations is ancillary to the scope and general operation of the Act and permits the adoption of means that are incidental to the execution of specific provisions: Shanahan 96 CLR at 250.

51 The Parliament did not simply ratify and give force of law to Annex IV in Australia. Rather it adopted the more limited means used in Div 12C of Pt IV of the Act to give effect to some of the provisions of Annex IV. Thus, Annex IV may be of assistance in understanding and providing context to the construction of Div 12C, and perhaps, other provisions of the Act, but will not control the meaning of the words used by the Parliament: Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2008] FCAFC 142; (2008) 170 FCR 560 at 570 [40]- [42] per French, Rares and Besanko JJ.

52 Livestock Trading argued that the ambit of s 257(1) was limited and should be read down so as to make it consistent with the provisions of Annex IV and MARPOL 73/78. It contended that the Parliament had adopted the primary means of flag State control and regulation of ships: see Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287-288 per Mason CJ and Deane J. That argument suggested that until Div 12C came into force in May 2004, each of ss 190B(1) and 257(1) had a different meaning that was unconstrained by any need to take into account Annex IV. In effect, Livestock Trading argued that the commencement of Div 12C impliedly repealed the ordinary and natural meaning which ought be given to the plenary words of each of ss 190B(1) and 257(1). That argument should be rejected.

53 In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at 584-586 [47]- [51] Gummow and Hayne JJ (see also per Gleeson CJ at 571-572 [1]-[2], Heydon and Crennan JJ at 612 [149]) discussed the principles dealing with implied repeal by a later enactment of an earlier one. The process of statutory construction begins by seeking to read the two Acts’ provisions together. Only where both provisions are so inconsistent that the former cannot stand with the latter will the Court find that the former legislation must have been impliedly repealed when the latter was enacted: see Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7 per Griffith CJ, at 10 per Barton J.

54 Here, Div 12C gives the Authority new powers in connection with Annex IV of MARPOL 73/78. In addition, s 267ZQ expressly enables the Authority to take specific action for the protection of the environment in certain circumstances. The character of Div 12C is to add to the powers of the Authority under the Act, not to constrain its existing powers or functions. There is nothing inconsistent between the ordinary and natural meaning of Div 12C and other powers given to the Authority under the Act, including the power to make regulations and orders under ss 190B(1) and 257(1). A construction of Div 12C as expanding the powers of the authority gives effect to harmonious goals in the Act of ensuring that the executive government, through the regulation making powers conferred on the Governor-General and the Authority, has an amplitude of powers with which to deal with matters affecting the environment and Australia as both a port and a flag State in dealing with ships engaged in international trade or commerce: Project Blue Sky 194 CLR at 381-382 [69]-[70].

IS EACH OF SS 190B(1) AND 257(1) A GENERAL PROVISION WHICH YIELDS TO THE SPECIFIC PROVISIONS IN DIV 12C?

55 In Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7, Gavan-Duffy CJ and Dixon J held that when the legislature had explicitly given a power by a particular provision which prescribed the mode in which it should be exercised and the conditions and restrictions which must be observed, it thereby excluded the operation of general expressions in the same instrument which might otherwise be relied on for the same power.

56 Livestock Trading argued that each of ss 190B(1) and 257(1) was a general provision and Div 12C a specific provision which attracted the operation of this principle. Livestock Trading contended that because Div 12C gave the Authority limited powers to deal with the implementation of the requirements of Annex IV (particularly with respect to Australian ships or foreign flag ships when the Authority was acting at the request of the administrations of the flag State of those vessels), the Authority could not use general regulation making powers to deal with the same subject matter with respect to foreign flagged vessels. This argument should be rejected.

57 First, s 190B(1) is a power to make regulations with respect to, among other things, the equipment all ships must have. Holding tanks for sewage produced by livestock carried on a ship is such equipment. Secondly, s 257(1) is a power to make regulations with respect to, among other things, carriage of cargo in ships. Livestock is cargo carried in ships. Div 12C deals with a different subject matter, namely pollution by ships and the equipping of ships to prevent pollution. Thirdly, as the Authority argued, each of ss 190B(1) and 257(1) is not a general power, but is properly to be respectively construed as a specific one dealing with the limited subjects of the equipment which a ship must have, and loading, stowage and the carriage of cargo in ships and the unloading of cargo from ships.

58 In Nystrom 228 CLR at 571 [2], Gleeson CJ said that there is nothing novel or even particularly unusual about a statute creating two sources of power by which a person could be exposed, by different processes, and in different circumstances, to similar practical consequences. Legislative provisions can be distinct and cumulative in their effect. They can have different purposes and different criteria can apply for their exercise: Nystrom 228 CLR at 615 [162]-[163] per Heydon and Crennan JJ.

59 The present is such a case. There is no reason for construing the power to make provision for the carrying of cargo by regulations or orders under s 257(1) or, for that matter the equipping of a ship under s 190B(1), as not extending to making provision as to how sewage produced by livestock carried on ships departing Australia should be dealt with on board the ships. Similar or even identical issues may be addressed under those regulations and under either Annex IV or Div 12C. A requirement for there to be tanks to hold sewage on ships carrying livestock loaded in Australia is not concerned only with implementing Annex IV. In a real sense, the requirement deals with the very subject matter of s 257(1), namely the carriage of livestock on ships. It also deals with the seaworthiness of ships under s 207(1)(a)(ii) and their equipment under s 190B(1). It could not be a criticism of the impugned orders that the means chosen to effect those objects was actually consistent with those in reg 9 of Annex IV. It would be likely to be inconvenient for international shipping if the treatment of sewage were regulated by idiosyncratic port State requirements. Livestock Trading’s argument fails.

60 Livestock Trading did not contend that, if its challenge to the impugned orders failed, the notice dated 1 October 2008 prohibiting the MV Al Messilah from loading was invalid. The notice required compliance with the impugned orders. Since the challenge to the impugned orders has succeeded and they were valid, the notice should not have been set aside.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Dowsett, Rares and Gilmour.

Counsel for the Appellant:	Mr A Robertson SC, Mr PR MacLiver

Solicitor for the Appellant:	Australian Maritime Safety Authority

Counsel for the Respondent:	Mr GH Murphy SC, Mr P Hopwood

Solicitor for the Respondent:	Cocks Macnish, Baristers & Solicitors

Date of Hearing:	9 December 2008

Date of Judgment:	10 February 2009

Federal Court of Australia - Full Court

Australian Maritime Safety Authority v Livestock Transport & Trading [2009] FCAFC 10 (10 February 2009)