Muslimin v The Queen

Muslimin v The Queen [2010] HCA 7 (10 March 2010)

Summary
Majority: French CJ, Gummow, Hayne, Heydon and Kiefell JJ (unanimous)
Decision: Appeal allowed

The appellant was convicted of an offence of having a foreign boat equipped with ‘nets, traps and other fishing equipment’ intended for sedentary fishing under s 101 of the Fisheries Management Act 1991 (Cth). That section applied only within the Australian Fishing Zone (AFZ), however a deeming provision of the Act (s 12) purported to extend the operation of any section beyond the AFZ if it is a provision made ‘in relation to fishing’. The issue before the Court was whether the offence for which the appellant was convicted extends beyond the AFZ by virtue of s 12. The High Court ruled, unanimously, that as a matter of statutory interpretation, s 101 relates only to a fishing boat rather than an act of fishing. Accordingly, it is not a provision made ‘in relation to fishing’ and therefore it does not extend beyond the AFZ.

Facts

The appellant, an Indonesian national, was convicted of an offence under s 101 of the Fisheries Management Act 1991 (Cth) (the Act) which makes it an offence to have a foreign boat equipped with ‘nets, traps and other fishing equipment’ intended for sedentary fishing within the Australian Fishing Zone (AFZ). That section provides:

101 Having foreign boat equipped for fishing—strict liability offence(1) A person must not, at a place in the AFZ, have in his or her possession or in his or her charge a foreign boat equipped for fishing unless:

(a) the use, or presence, of the boat at that place is authorised by a foreign fishing licence, or a port
permit; or
(b) a Treaty licence is in force in respect of the boat; or
(c) the boat’s fishing equipment is stowed and the boat is at that location in accordance with the approval of AFMA given under, and in accordance with, the regulations; or
(d) the boat’s fishing equipment is stowed and the boat was travelling through the AFZ from a point outside the AFZ to another point outside the AFZ by the shortest practicable route; or
(e) the use of the boat for scientific research purposes in that area is authorised under a scientific permit.

(1A) For the purposes of paragraphs (1)(c) and (d), a boat’s fishing equipment is not stowed unless all of the boat’s:

(a) nets, traps and other fishing equipment; and
(b) associated equipment, including buoys and beacons;

are disengaged and secured, and where practicable stored inside the boat, in such a manner as not to be readily available for fishing.

Section 12 of the Act, a deeming provision, provides for the extension of certain provisions of the Act beyond the AFZ to other areas of the Australian continental shelf:

12 Sedentary organisms—Australian continental shelf
(2) Where by this Act (other than Part 5), or the regulations,
provision is made in relation to fishing in the AFZ or a fishery,
such provision, to the extent that it is capable of doing so,
extends by force of this section to fishing for sedentary
organisms, in or on any part of the Australian continental
shelf not within the AFZ or the fishery as if they were within
the AFZ or the fishery.

The appellant was found outside of the AFZ with a foreign fishing boat. The question for the Court was whether s 101 was a ‘provision ... made in relation to fishing’, such that s 12 would extend the scope of s 101 to apply outside of the AFZ.

Decision

The Court found that the reference in s 12(2) to provisions of the Act “made in relation to fishing”, should be construed using its ordinary meaning. Therefore in the context of the Act, ‘fishing’ should be read as the act of fishing. As such the extension provided by s 12(1) should be constrained to provisions of the Act which deal with the act of fishing: at [15].

In relation to the s 101 offence the Court determined that unlike other offences in Division 5 of the Act (which is titled ‘Foreign boats – additional enforcement provisions’), s 101 relates ‘to the existence of a state of affairs, namely having possession or charge of a particular kind of boat: a foreign boat equipped for fishing’: at [16]. In contrast, the other provisions in Division 5 of the Act ‘are directed expressly to the activity of fishing’: at [16]. As such the Court found that s 101 was not ‘made in relation to fishing’ and as such not subject to the extension afforded by s 12(2).

Commentary

The High Court has decided Muslimin in a narrow fashion, relying upon construction and interpretation of the Act. The Court did not need to examine the more complex, and for that matter interesting, question of whether, if s 101 had applied beyond the Australian Fishing Zone, would it be congruous with international law. It should be noted that, since the decision, the Australian Fisheries Management Authority has subsequently stated that it will likely drop similar charges against other Indonesian fishermen. Further than that, Muslimin provides only a relatively innocuous example of statutory interpretation.