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Baird, Rachel -- Foreign Fisheries Enforcement: Do not pass go , proceed slowly to jail – Is Australia playing by the rules? [2007] IHLRes 13 (28 June 2007)

Last Updated: 19 November 2007

Foreign Fisheries Enforcement: Do not pass go, proceed slowly to jail – Is Australia playing by the rules? ^[1]

by Dr Rachel Baird, Research Fellow, Centre for Public, International and Comparative Law, University of Queensland.

After studying the problems presented by illegal, Unreported and Unregulated fishing (or IUU fishing) for over 7 years I sometimes feel its time to move on. However the problem is ever present and shows every sign of becoming much worse – both globally and within Australia’s EEZ- before any improvement in terms of reduced activity will become evident. China, home to over 1.3 billion is heavily involved in trade of fish and fish products. There is already evidence of a growing trade through Asian ports to Chinese markets. Given this I feel it would be poor form to abandon a sinking ship – if you’ll forgive my maritime pun- at the cusp of a great battle.

Closer to home, Australia has been engaged in a high profile and high cost battle with illegal fishers in the Southern Ocean section of our EEZ (Heard and MacDonald lslands and Macquarie Island) and most recently in the northern AFZ. My recent attendance at an IUU stakeholders conference at Chatham House in May confirmed that Australia is not alone in this battle. IUU fishing and the detrimental long term impact on sustainable fisheries management is a major environmental challenge to the global community, arguable up there with climate change and water management.

¹Within this global context, my talk today focuses upon Australia’s policy and legislative responses to the illegal fishing activity within the northern AFZ. In particular I am concentrating upon two aspects of the Australian response:

• Enhanced enforcement through surveillance

• Rigorous prosecutions and vessel forfeiture

Within the second point I have identified three legal matters which warrant further examination in the context of fisheries prosecutions and offences. I should preface the comments I am about to make on these three matters, with the observation that my concerns have raised murmurs of dissent (mostly with Australia) and affirmation (mostly international) and by no means represent the settled view on the law. They are however my views and I would argue they accord with the rule of law- the theme of this year’s conference.

Back to the three matters then:

• The practice of default imprisonment in fisheries sentencing;

• The increasing use of Criminal Code Act charges when fishers resist arrest;

and

• forfeiture under the Fisheries Management Act

Before we venture into this legal battlefield, I would like to outline the enhanced enforcement through surveillance policy of the current federal Ministry and the current environment of illegal foreign fishing.

Arrests of foreign fishing vessels in 2005 were more than double those reported for 2004. Arrests remained high in 2006. The Fisheries Minister reported that on average one vessel was being apprehended per day. ^[2] In one two-week period in late March 2006, 23 FFVs were apprehended carrying a combined total of 197 crew.^[3]

Whilst apprehensions may have dropped in the first half of 2007, (and there are many factors which are relevant to the decline) the nature of illegal fisheries remains substantially the same. I am referring to the increased incidence of reports of passive resistance by illegal foreign fishing vessels. A review of the Sentencing Reports of Northern Territory Supreme Court Trials illustrates my point.

The arrest of the De Yuan Yu 01 in March 2006 provides an example of low level resistance. The Master of the, Mr Lan Delin did not follow orders broadcast and transmitted from the HMAS Ipswich to heave to for boarding. Evidence was lead at the trial of the vessel’s master, that the vessel increased speed and manoeuvred erratically away from the Ipswich and it was this behaviour which formed the basis of one of the charges against him.^[4]

The charge was laid under section 149.1 of the Criminal Code Act in that the accused knowing that the Commanding Officer of the HMAS Ipswich was a public official, resisted the Officer in the performance of his function as a public official. The maximum penalty is two years imprisonment. ^[5]

It is not clear why Lan Delin was not charged under section 108(1) (a) of the Fisheries Management Act which states that a person must not fail to facilitate by all reasonable means the boarding of a boat by an officer. The maximum penalty is imprisonment for 12 months although Article 73 of the LOSC expressly states that:

Coastal State penalties for violations of fisheries laws and regulations in the EEZ must not include imprisonment, in the absence of any agreements to the contrary by the states concerned, or any other form of corporeal punishment.

Foreign fishing crew have previously been charged under section 108. It is not always an easy charge to prove. The Master of the South Tomi was charged under section 108(c)^[6] and was acquitted on the basis that the prosecution could not establish that specific directions were given.^[7]

Resistance to arrest has also been at the higher end of passive resistance as illustrated by the crew aboard a FFV boarded on 14 July 2006 by Australian naval personnel.^[8] The Master, Aceng pleaded guilty to throwing in excess of 35 plastic bottles filled with concrete at members of the boarding party, hitting three of them. After throwing the bottles, Aceng produced a long sword and brandished it in a threatening manner at the boarding party.^[9] In the words of the sentencing judge, “[Y]ours was not a case of minor resistance. It was prolonged...and you were aggressive.”^[10]

Understandably in such an environment of increased resistance and even belligerence, the authorities need to respond. They have with the legislative forfeiture regime introduced in 1999 which was upheld as valid by the Full Federal Court in Olbers Co Ltd v The Commonwealth of Australia . Olbers, the owners of the Volga, sought a declaration that the seizure and detention of the vessel, gear and catch was unlawful and that had been no forfeiture. At first instance, Justice French, held that on a proper interpretation of section 106A, title of the foreign fishing vessel transfers to the Commonwealth at the time it is used for a relevant fisheries offence.^[11]

In this matter, the question of compliance with international law looms large. There is a real risk that the impact of the automatic forfeiture regime may undermine previous gains against IUU fishers. The government may be called to defend the operation of section 106A of the Fisheries Management Act should a flag State pursue its international rights through the dispute resolution provisions of the LOSC.^[12] A probable unfavourable outcome would undermine the framework upon which the Australian enforcement regime is currently premised and significantly prejudice the Commonwealth fisheries management policy.

A system under which ownership in a vessel can vest in a coastal State upon the commission of a fisheries offence when the fact of the commission is not determined by the judicial system, is open to abuse. The decision of Justice French does not elaborate on the mechanism whereby the ‘fact’ of commission is determined, that is the ‘use’ of the vessel in the offence. Possibly this is because the legislation provides no guidance on the matter. This is a significant weakness in the legislation. Section 106A states that any fishing vessel used in an offence (as listed) is forfeited to the Commonwealth yet, it is silent as to how that ‘use’ is determined.

This leaves a significant discretionary power in the hands of the fisheries officers onboard patrol vessels to determine that the vessel has been used in an offence. The function of Courts is to provide access to a judicial system within which such questions can be determined by due process. The legislation as drafted creates an environment where the word of the fisheries officer will prevail over that of the fisher and title to vessel, gear and catch, transfers automatically.

An important legal issue raised by the confirmation of the forfeiture provisions relates

to the duty under Article 73(2) of the LOSC, to ‘promptly release arrested vessels and crew upon the posting of a reasonable bond or security.’ The Full Federal Court has deemed there is forfeiture and transfer of ownership under the Fisheries Management Act, at the time the vessel is used for an offence. This raises the question of whether Australia remains obligated to set a reasonable bond and to release the vessel if the bond is paid by the vessel’s past owner? This depends on whether the right of prompt release under Article 73(2) has been extinguished by the act of forfeiture alone. The answer to this question depends on the whether the forfeiture can be seen to equate to a judgement on the merits by a domestic court.^[13] Put another way, is the vessel still in detention such that the ‘question of release from detention’ may be put to the Tribunal?^[14]

The analysis of the forfeiture regime under the Fisheries Management Act indicates that it operates in the absence of a judgement of any kind, whether procedural or on the merits. It has been observed by Bantz that ‘only such decisions as are final under the domestic legal order would qualify as decisions on the merits for the purposes of article 292, and would be the only ones capable of putting an end to detention and, thereby extinguish the duty of prompt release.’^[15]Accordingly the right to prompt release must remain. There has been no judgement, let alone one that can be that examined to determine its finality. Thus it is submitted that the mere operation of the forfeiture provisions is insufficient to extinguish the right to prompt release of the vessel.^[16]

The remaining two legal matters relate to prosecutions. The practices of ordering imprisonment in default of fine and the charging fishers under the Criminal Code rather than the Fisheries Management Act.

With respect to default imprisonment, it is also important to note that the offence provisions in the Fisheries Management Act which are applicable to foreign fishers provide for a monetary penalty only. The default imprisonment is authorised under the Sentencing Act. This distinction would seem to support the argument that the default imprisonment is not a penalty imposed for a violation of a fisheries law or regulation. It is, as Justice Murray concluded, part of a process of providing sanctions to enforce compliance with the law. ^[17] The sanction can be avoided by paying the penalty and or staying out of Australian jurisdiction.

There is an contrary argument to be made. The practice of setting a term of default imprisonment has become widespread.^[18] Furthermore it is frequently acknowledged that the defendant has no means of paying the fine. Whilst the Australian courts have been prepared to find this practice acceptable as a means of deterring offenders, the International Tribunal for the Law of the Sea may form a different view. Whilst the merits are not explored in this paper, it is possible that a case might be made against Australia for an abuse of rights granted under the LOSC. Article 300 of the LOSC states that:

State Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognised in this Convention in a manner which would not constitute an abuse of right.

The validity of the Australian practice of default imprisonment under international law may not come to be tested in an international forum. This does not give it any imprimatur under international law. Nor should any false sense of comfort be drawn from the blessings of the domestic courts.

Whilst default imprisonment might be regarded as being borderline compliant with the LOSC prohibition of imprisonment for violations of fisheries laws or regulations, the imprisonment of fishers charged with resisting arrest or a public official in the course of his duties, is more worrisome. The crux of the Australian government’s position appears to be that if charges are laid under the Criminal Code Act, the offence loses its nexus with a fisheries law or regulation. It becomes a criminal offence as distinct from a regulatory offence. Hence any imprisonment is imposed under the Criminal Code and is not contrary to Article 73 of the LOSC.

With respect, it is not such a straightforward matter; however attractive the argument is from an enforcement perspective. The substance of the offence remains one which relates to illegal fishing within the AFZ. The usual scenario is that a FFV is detected and ordered to stop or heave too on suspicion of breaching Australia’s fisheries laws. The source of authority to order the vessel to stop lies in the Fisheries Management Act.^[19] The conduct which gives rise to a charge is integrally linked to fishing (or being equipped to fish) within the AFZ. In failing to stop the boat as required under section 84(aa)(i), the Master of the FFV is violating an Australian fisheries law. Seeking to compartmentalise the conduct into discrete events so that part of the conduct can be presented as a non-fisheries offences is an exercise in semantics. The substance remains the same.

The case of the Sepakat Jaya, involved foreign fishers brandishing knives, a machete and hatchet. The Crew also threw lead weights, extended long timber poles from their vessel and attached burning hessian bags to the poles, all to deter boarding. Yet nine of the crew were charged under section 108(1) of the Fisheries Management Act. The eight accused who pleaded guilty were sentenced to imprisonment for nine months. Time was taken into account for the four months spent in pre-trial detention.

Two observations are made at this juncture. First, the imprisonment is contrary to Article 73(3) of the LOSC. Second, the conduct of the crew on the Sepakat Jaya is similar to that of Aceng and his crew. As with default imprisonment, the government runs the risk of an abuse of rights claim in its vigorous pursuit of foreign fishers both on and off the water.

This is a matter of some importance for the Australian government which seeks to employ international law as a foil in its battle against illegal fishers and the wider problem of IUU fishing. It would be unwise to provide the State of nationality with a basis for initiating international action in relation to the jailing of one of its nationals consequent upon conviction for a fisheries related offence. It is noted that most of the crew onboard FFVs arrested in the northern AFZ are nationals of Indonesia or China. The fact that neither of these States has taken action to call Australian to account should not lull Australian authorities into a false sense of legitimacy.^[20]

It is useful to consider whether there would be any circumstances in which the conduct of FFV crew might constitute a criminal offence as opposed to a regulatory fisheries offence. That is where the crew behave in such a manner as to constitute an assault upon the boarding party. Such conduct would be an interference with the coastal States’ exercise of it sovereign rights rather than a fisheries offence. In the case of Aceng, mentioned above, the throwing of cement filled bottles and brandishing of the long sword may support the formulation of a charge of assaulting a public official. That is, the assault on the officer is a matter relating to the exercise by the coastal State of its sovereign rights over the EEZ rather than a matter relating to a fisheries violation.

As with most matters of legal interpretation, the distinction between when conduct constitutes a violation of a fisheries law and when it amounts to a interference with the exercise of sovereign rights, is grey. This is a matter for the prosecution to determine, whilst balancing the need to vigorously prosecute illegal fishers with the obligation, as a State party to the LOSC, to observe the rule of international law.

Conclusions

In focusing on these three aspects arsing from Australia’s foreign fishing enforcement policy it has not been my aim to be negative or throw stones from the sideline. It has been necessary to adopt graduated responses to the persistent and increasingly belligerent behaviour of foreign fishers. Whilst the resolve to strike a decisive blow to the heart of corporate operations largely funding the illegal forays into the Australian EEZ is strongly supported, measures such a legislative forfeiture of vessels and locking the crew away need to be scrutinised in terms of compliance with the rule of international law – for it is from international law that Australia derives her rights as a coastal State.

^[1] This paper was presented at the 2007 ANZSIL Conference, ‘Restoring the rule of Law in International Affairs’ The matters discussed have been split into two papers. The issues of default imprisonment and the use of the Criminal Code Act to charge illegal foreign fishers are discussed in (2007) 30(1) UNSWLR. The forfeiture provisions are discussed in a forthcoming paper.
^[2] Abtez, E. Australian Minister for Fisheries, Forestry and Conservation, Nelson, B. Australian Minister for Defence, Ellison, C. Australian Minister for Justice and Customs, ‘Taruman finding welcomed: One illegal fishing vessel; being destroyed per day’ 26 September 2006, <www.mffc.gov.au/releases/2006/06116aj.html> (5 October 2006). See. A. Wilson and C. Hart, ‘Blitz on illegal fishing will fill Top End jails’ The Australian 23 February 2007, 2.
^[3] See Macdonald I, Australian Minister for Fisheries, Forestry and Conservation, “Record Arrest for Northern Illegal Fishing”, Media release, 3 January 2006: see http://www.mffc.gov.au/release/2006 viewed 30 January 2006. Abetz E, Australian Minister for Fisheries, Forestry and Conservation, Nelson B, Australian Minister for Defence and Ellison C, Australian Minister for Justice and Customs, “Operation Breakwater – Protecting Our Waters While Netting 23 Suspected Illegal Fishing Vessels”, Media release, 5 April 2006: see http://www.mffc.gov.au/releases/2006/06022aj.htm viewed 7 April 2006.
^[4] For further detail on resisting arrest see the sentencing remarks of Martin A/J in The Queen v Lian Yu Zhong (sentence) 12 September 2006 <www.nt.gov.au/ntsc/doc/sentencing_remarks/2006/09/200609/12zhong > (4 October 2006). This case involved the arrest of the sister ship, the De Yuan Yu 02.
^[5] Note Section 108 does not relate specifically to foreign fishers. The specific foreign fishers offences are in Division 5 of Part 6-Surveillance and Enforcement. Section 108 is in Sub-division E, Division 6- General of Part 6.
^[6] The South Tomi was boarded on 21 April 2001. Section 108( C) creates the offence of refusing or neglecting to comply with a requirement by an officer under section 84.
^[7] The Defence were able to cast enough doubt on the specificity of the order given.
^[8] This FFV was one of several boarded that day after detection by HMAS Dubbo and HMAS Success. See the sentencing remarks of Martin CJ in The Queen v Aceng 9 November 2006. <www.nt.gov.au/ntsc/doc/sentencing_remarks/2006/11/20061109aceng.html> (25 November 2006).
^[9] _{See the Sentencing remarks of Martin CJ in The Queen v Aceng, for further details.}
^[10] Ibid.
^[11] Olbers Co Ltd v The Commonwealth of Australia [2004] FCAFC 262
^[12] These concerns are re-iterated by W.Gullett, ‘Smooth Sailing for Australia’s Automatic Forfeiture of Foreign Fishing Vessels’ Editorial Commentary (2005) 22 Environmental and Planning Law Journal 169, 172-173.
^[13] The nexus between the finality of a judgement on the merits and the duty of (and right to) prompt release is thoroughly examined in V.Bantz, ‘‘Views from Hamburg: The Juno Trader Case or How to make sense of the Coastal State’s rights in light of its duty of prompt release’ (2005) 24(2) The University of Queensland Law Journal 415, 433. See, also, B.H. Oxman and V.P. Bantz, ‘The Grand Prince case’ (2002) 96 American Journal of International Law 219, 233.
^[14] The wording of Article 292 (1), LOSC uses the word detention five times. For example, if a vessel is detained, the ‘question of its release from detention may be submitted to any court or tribunal...’
^[15] Bantz, ‘Views from Hamburg’ above n 13, 424.
^[16] With respect to the condemnation process, it is argued that the right of owner to apply for prompt release cannot be extinguished by failure to lodge a claim within 30 days against the forfeiture notice. Such a conclusion would arguably amount to the acquisition of property without due process.
^[17] Aruli v Mitchell, (1999) WASCA 1042.
^[18] This is an observed practice from the many case reports and interviews the author has conducted.
^[19] Part 6 Surveillance and Enforcement, section 84(1)(aa). It is noted that Customs Officers are authorised to conduct boardings under the Customs Act 1901.
^[20] Neither State recognises the compulsory jurisdiction of the ICJ. China has not ratified the LOSC.