• Specific Year
    Any

White, Michael --- "Australian Maritime Law Update: 2006. General Maritime issues" [2007] MarStudies 22; (2007) 155 Maritime Studies 3

[1] First published in Journal of Maritime Law and Commerce, vol. 38, pp. 293-, 2007. Reprinted with permission of the author, the Editor of the Journal of Maritime Law and Commerce, Mr Edward V. Cattell Jr. and its publisher, Jefferson Law Book Co., USA.

[2] Queen’s Counsel; Adjunct Professor, University of Queensland; B.Com., LL.B., University of Queensland; Ph.D., Bond University; Member of the Editorial Board of the Journal of Maritime Law and Commerce. I would like to acknowledge the valuable research assistance of Mr Michael Wells, Bachelor of Arts and Bachelor of Laws student, for this article and the useful commentary on it by my colleague, Dr Rachel Baird, TC Beirne School of Law.

[3] Journal of Maritime Law and Commerce, vol. 39, 2007, web site http://www.jmlc.org.

[4] EV Cattell Jr, Holstein Keating Cattell Johnson & Goldstein, Philadelphia, USA; email ecattell@hkcjg.com.

[5] This article only concerns itself with enforcement against foreign fishers although there is also a vigorous effort devoted to regulating the domestic fishing and prawning industries. For an expert dissertation on fisheries in Australian waters see R Baird, Aspects of Illegal, Unreported and Unregulated Fishing in the Southern Ocean, Springer, 2006. For a fascinating account about the pursuit of the FV Viarsa by the Australian fisheries enforcement vessel Southern Supporter and a description of the Patagonian toothfish catch and sales industry see B Knecht, Hooked: A True story of Pirates, Poaching and the Perfect Fish, Allen & Unwin, 2006.

[6] ABC News Online 4.1.07; The Australian 25.9.06.

[7] ABC News Online 4.1.07.

[8] The requirement in UNCLOS Art. 73(3) that no prison sentence be imposed for fisheries offences in the EEZ does not extend to imprisonment for other offences, such as failure to pay fines, unlawfully resisting boarding and inspection, etc.

[9] The Australian 6.3.06 on WA and The Australian 4.12.06 and 23.2.07 on the NT situation.

[10] Minister for Customs and Fisheries media release of 22 January 2007. These media releases are to be found on the web site http://www.mffc.gov.au/ and follow prompts to media releases.

[11] Minister for Fisheries press release of 10 March 2006; The Courier Mail 6.5.06.

[12] The present government (under Prime Minister John Howard) has resisted calls for one to be established even though the benefits of having the non-defence offshore duties performed by the one agency appears very strong. It is part of the stated electoral platform of the Opposition (under Mr Kevin Rudd) to establish a Coastguard if elected to government in the elections due in late 2007.

[13] The government agencies and departments are Defence, Customs, the Australian Fisheries Management Authority, the Australian Quarantine and Inspection Service, Department of Agriculture, Fisheries and Forestry and the Department of Immigration and Multicultural Affairs; Joint Statement by the Minister for Fisheries, Minister for Defence and Minister for Justice and Customs dated 9 May 2006.

[14] Joint Statement by the Minister for Fisheries, the Minister for Defence and the Minister for Justice and Customs dated 9 May 2006.

[15] Minister for Customs media release of 10 December 2006; The Courier Mail 11.12.06.

[16] Minister for Customs media release, 22 November 2006; The Marine & Costal Community Network Newsletter, Northern E-Bulletin, November 2006 edition.

[17] It is difficult to convince mariners and maritime lawyers that ‘terrorism’ is anything new as mariners and the maritime law have been dealing with criminals involved in unlawful violence, such as piracy, kidnapping and murder at sea, for many centuries. Even if the motive is purported to advance some religious, political or philosophical motive it is violent criminality under any name.

[18] Agreement between Australia and the Republic of Indonesia on the Framework for Security Cooperation, done at Lombok, Indonesia, on 13 November 2006; [2006] ATNIF 25. It is to enter into force when the two parties have notified each other that their internal requirements have been met – Art.10; The Australian News 13.11.06.

[19] ‘IUU’ is the phrase often used, which is the acronym for illegal, unreported and unregulated fishing.

[20] Minister for Fisheries media release, 9 January 2007.

[21] It is worth mentioning that the Australian government is pursuing diplomatic avenues to reduce IUU fisheries in southern waters. It has pressed the 2006 Annual Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) to be more active, including banning gill-net fishing in the Convention Area, put in place stronger port controls of documentation and over the sale of Patagonian toothfish catches landed for processing with member nations and also other nations in the region that were not members. The CCAMLR came into force in 1982 as part of the Antarctic Treaty System, under its Article XI; Maritime Studies, no. 151, Nov./Dec. 2006, pp. 33-34.

[22] Joint Press Release by Ministers for Justice and Customs and the Minister for Fisheries on 23 September 2006.

[23] Joint Press Release by Ministers for Justice and Customs and the Minister for Fisheries on 26 September 2006.

[24] Sections 106A and 108A are the main operative sections.

[25] For a new book by my colleague Dr Sarah Derrington on the arrest of ships and Admiralty matters, setting out the UK Australian laws, see Sarah Derrington & James Turner The Law and Practice of Admiralty Matters, OUP, 2007.

[26] Admiralty Act, 1988, (Cth), Sections 4,17.

[27] Redhead v Admiralty Marshall, Western Australia District Registry (1998) 87 FCR 229.

[28] Ryan and Tamberlin JJ.

[29] Darter v Diden [2006] SASC 152; Doyle CJ.

[30] As noted above, this reflects UNCLOS Art. 73(3).

[31] [2007] NTSC 4. The hearing and the judgment were in January 2007 but as the case arose from 2006 events it is dealt with in this year’s Update.

[32] As mentioned above, the test case of Arula v Mitchell (1999) WASCA 1042 established that imprisonment for failure to pay a fine did not offend the spirit of Art. 73(3) of UNCLOS.

[33] [2006] SASC 104.

[34] The Age 7.12.06; ABC Newsonline 6.12.06; ABC Newsonline 7.12.06.

[35] ABC Newsonline 7.12.06.

[36] Dr R Baird, University of Queensland, UQ News Online 8.12.06.

[37] Under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) an Australian Whale Sanctuary is created in the EEZ in which it is an offence to kill or injure whales.

[38] Minister for Environment and Heritage media releases dated 17, 19 and 26 June 2006.

[39] Readers may follow these issues from the IWC web site at http://www.iwcoffice.org/.

[40] The Courier Mail, 24.3.07.

[41] Treaty between the Government of Australia and the Government of the French Republic on cooperation in the maritime areas adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands, [2005] ATS 6, entered into force 1 February 2005.

[42] Joint media releases by the Ministers for Foreign Affairs, the Minister for Agriculture, Fisheries and Forestry and the Minister for Justice and Customs on 29 August 2006; Media release by the Minister for Fisheries, Forestry and Conservation on 9 January 2007; (2007) Australian Maritime Digest 3-4 (Feb. 2007).

[43] The Australian 7.3.06; The Courier Mail 24.3.06; The Australian 7.4.06.

[44] (2006) Australian Maritime Digest 4-5 (1 April 2006 Issue).

[45] Minister for Foreign Affairs media release dated 23 February 2007.

[46] Much of this material on the GBR was used for the author’s recent book, M White, Australasian Marine Pollution Laws, 2nd edn, Federation Press, 2007. Acknowledgement is made to Federation Press for this use.

[47] See http://www.gbrmpa.gov.au/corp_site/management/ zoning/documents/area_statement_082004_updated_w3version.pdf

[48] ReefRep News, September 2004, 4th Edition, produced by Maritime Safety Queensland and the Australian Maritime Safety Authority, p. 4.

[49] Most ships use the inner route of the GBR, with the balance entering or departing through Hydrographers, Palm and Grafton Passages. About 20% are on transit through the GBR and do not call at any Queensland port; see Great Barrier Reef & Torres Strait Shipping Impact Study, Australian Maritime Safety Authority (AMSA), 2002, pp.3,7. Also see AMSA, The Great Barrier Reef and Torres Strait Management Plan, 2003-05, 2003; web site at http://www.amsa.gov.au/Shipping_Safety/Great_Barrier_Reef_and_Torres_Strait.

[50] Land Use and Water Quality in the Great Barrier Reef Catchment Research Report, 2003, cited in the Great Barrier Reef & Torres Strait Shipping Impact Study, op. cit., p.15.

[51] See http://www.gbrmpa.gov.au/corp_site/info_services/publications/brochures/protecting_biodiversity/index.html.

[52] See http://www.gbrmpa.gov.au/corp_site/management/zoning/documents/area_statement_082004_updated_w3version.pdf.

[53] The Commonwealth has jurisdiction over 70 islands within the GBRMP, two of which are partly owned by Queensland.

[54] Because of the large number of islands, cays, etc and some doubts as to the accuracy of the areas and boundaries under the Queensland Letters Patent issued to the Queensland Colonial Government, the exact areas and boundaries remain to be confirmed by future surveys and consequential government action.

[55] A more detailed discussion of the GBR and marine pollution from ships is be found in M White, ‘Navigational Rights in Sensitive Marine Environments: The Great Barrier Reef’, in S Bateman and D Rothwell (eds), Navigation Rights and Freedoms and the New Law of the Sea, Kluwer International, 2000.

[56] GBRMPA has many publications setting out its structure and activities; see its web site footnoted above.

[57] For the definition of ‘nearest land’ see MARPOL 73/78 Annex 1, Reg 1(9).

[58] For mention of the Australian National Plan on pollution spills see M White, Australasian Marine Pollution Laws, 2nd edn, 2007, Chapter 11.

[59] A sound history of pilotage in the Torres Strait and the GBR is in Captain J Foley, Reef Pilots, Banks Bros & Street, Sydney, 1982.

[60] The three main pilotage companies are Queensland Coastal Pilotage Services Pty Ltd (Coastal Pilots); Australian Reef Pilots (Reef Pilots), formerly Queensland Coast and Torres Strait Pilots Association; and Hydro Pilots (Australia) Pty Ltd (Hydro Pilots).

[61] Compulsory Pilotage is not the complete answer to maritime casualties in the GBR as a study has found that, of an average of 1.8 incidents a year, about 1.1 involve vessels with pilots onboard; see Det Noritas Consultancy Services Report, Great Barrier Reef: Pilotage Fatigues Risk Assessment, 1999, AMSA, p.7, Table 3.2. For accident reports since 1999, see generally the Marine Safety Investigation Reports, available on the ATSB web site at www.atsb.gov.au.

[62] REEFREP is an interactive mandatory ship reporting system, established in accordance with SOLAS Chapter V, Regulation 8-1, which was adopted by resolution of the IMO Safety Committee (MSC52.66).

[63] Other vessels are encouraged to participate. Defence ships are not included but the Australian Defence requires that its ships comply with the system.

[64] See the booklet Reef Guide: A Shipmaster’s Handbook to the Torres Strait and the Great Barrier Reef, published by AMSA and Queensland Transport.

[65] This mandatory reporting system was established consistently with SOLAS Chapter 5 Regulation 8-1 and approved by the IMO in 1996; see the booklet Reef Guide, op. cit., ‘Foreword’.

[66] Australian Ship Reporting System, administered by AMSA.

[67] Under SOLAS Chapter 5, a VTS system may be established when the volume of traffic or the degree of risk justifies it. Its Australian legislative basis is under the Navigation Act 1912 (ss.191 and 425(1AA) and Marine Orders). Marine Order 56 gives the detailed regulatory authority to the system.

[68] AMSA is a Commonwealth government authority and Maritime Safety Queensland (MSQ) is an agency of the Queensland government.

[69] The Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as the Torres Strait, and Related Matters signed at Sydney on 18 December 1978 and which entered into force on 15 February 1985. For more complete discussion see S Kaye, The Torres Strait. International Straits of the World Series, Vol. 12, The Hague & Boston, Martinus Nijhoff Publishers, 1997; S Kaye, Australia’s Maritime Boundaries: Wollongong Papers on Maritime Policy No. 4, Centre for Maritime Policy, University of Wollongong, 1995. Also see the material on the DFAT web site; www.dfat.gov.au and follow prompts to ‘Torres Strait Treaty’.

[70] To give effect to the provisions of the Torres Strait Treaty the Commonwealth passed the Torres Strait Treaty (Miscellaneous Amendments) Act 1984 and Queensland passed the Torres Strait Fisheries Act 1984.

[71] For full details see the IMO MEPC 53rd Session, Agenda Item 24, 25 July, 2005, including Annex 1, ‘Description of the Particularly Sensitive Sea Area: Torres Strait’. The inclusion of the Torres Strait as a PSSA was, in fact, an extension of the GBR PSSA to the north. The eastern and part of the western boundary of the new PSSA aligns with the ‘nearest land’ definition include in Annexes I, II, IV and V of MARPOL; see Annex 1, above, p.1. The author is indebted to Mr Paul Nelson, AMSA, for assistance in obtaining material on this aspect.

[72] For instance see R Beckman, ‘Australia’s Pilotage System in the Torres Strait: A threat to Transit Passage’, Maritime Studies, no. 153, 2007, pp 1-2.

[73] See Sea Power Centre ‘Compulsory Pilotage in the Torres Strait’ [2007] MarStudies 11; (2007) 153 Maritime Studies 23.

[74] Fisheries Legislation Amendment (Foreign Fishing Offences) Act 2006.

[75] Art.73(3).

[76] For a discussion of this settlement in the offshore maritime setting see M White, Australasian Marine Pollution Law, 2nd edn, Federation Press, 2007, Chapter 6.

[77] Oil Pollution Act 1990, enacted after the Exxon Valdez grounding and maritime casualty in Alaska in 1989.

[78] Australia lodged its claim to parts of the Outer Continental shelf with the CLCS in December 2004, see the UN LOS web site on www.un.org/Depts/los/index.htm and follow prompts.

[79] Protection of the Sea (Powers of Intervention) Amendment Act 2006.

[80] Maritime Transport and Offshore Facilities Security Amendment (Maritime Security Guards and Other Measures) Act 2006.

[81] Maritime Transport and Offshore Facilities Security Amendment (Security Plans and Other Measures) Act 2006.

[82] Amended by the Maritime Legislation Amendment (Prevention of Pollution from Ships) Act 2006.

[83] Environment and Heritage Legislation Amendment Act (No.1) 2006.

[84] Convention on the Prevention of Marine Pollution from Dumping of Wastes and Other Matter 1972.

[85] The amendment includes changes to the Antarctic Treaty (Environment Protection) Act 1980.

[86] Jurisdiction of the Federal Magistrates Court Legislation Amendment Act 2006.

[87] Each one of the States, the Northern Territory and the Australian Capital Territory has courts which also have maritime jurisdiction to deal with maritime matters in their respective states or territories.

[88] The Hon. Justice James Allsop has been appointed as the Australia-wide coordinating judge and each region has an appointed maritime judge and a designated registrar or other staff who have special training and expertise in maritime matters. Details may be found on the Federal Court web site at http://www.fedcourt.gov.au/how/admiralty.html.

Download

No downloadable files available