Australian Maritime Law Update: 2009

• Author: Michael William White
• Position: QC, B.Com., LLB., PhD (Law); Adjunct Professor, University of Queensland - B.Com., LLB. Student, University of Queensland
• Pages: 168-186

Australia n Maritime Law Up da te: 2009

(2010) 24 A&NZ Mar LJ

AUSTRALIAN MARITIME LAW UPDATE: 2009

Mic hae l White∗

and Alex Mo llo y**

1 Introduction

The 2009 calendar year was one that had its issues in the Australian maritime jurisdic tion. The number of illegal

immigrants coming by sea, the number of illegal fisheries incidents and the usual annual co nfrontation in the

Southern Ocean between the Japanese whaling fleet and those opposed to it all received considerable publicity.

Also there has been some litigation of interest and a tiny amount of new legislatio n. These will all be dealt with

in turn in this artic le. It should be me ntioned that there is an enormous amount o f activity going on o ff the

Australian shores, i ncluding such activities as fisheries, tourism, oil and gas exploration and exploitation, mari ne

environmental protection, shipping and navigatio n and native title claims, but this article will restrict i tself those

main activities with legal consequences of note.

2 Fisheries and Other Offshore Issues

2.1 Fisherie s

The Australian ‘Update’ last year was pleased to report that there was a steady decrease in the number of illegal

fisheries cases in t he northern waters, a nd that the illegal fis heries incursions in southern waters were al most

eliminated. The manner in which the statistics are kept has been changed slightly but they are still sufficiently

comparative to draw some indications. During the 2009 calendar year this downward tre nd has continued and

the total number o f foreign fishery vesse l sightings by the Australian Border P rotection Command in northe rn

waters was down to 4863, from 6716 in the previous year. Also the total number of apprehensions was only 26,

down from 91 the previous year. As well there was one ‘legislative forfeiture’ of the fishing gear, which is a

forfeiture of the gear without detaining the actual vessel itself.1

2.2 Whaling Issues

Previous ‘Updates’ have outlined the issues that the Austr alian government has had with the annual J apanese

whaling fleet that takes whales in the Southern Ocean each southern summer. In short, the Australian legislation

prohibits it in the Australian EEZ and this includes the EEZ claimed by Australia offshore from the Australian

Antarctic Territory (AAT). However, very few countries recognise this EEZ claim offshore from the AAT and

they include Ja pan, so the argument is not strong. Further, as is well kno wn, Japan maintains the wha ling is for

scientific research, an argument that very few countries recognise as being valid.

During the 2009/201 0 southern summer the Jap anese fleet was in the Sout hern Ocean and, as usual, it was

harassed by the Sea Shepherd Conservation Society’s vessel Steve Irwin under Captain Paul Watson.2

Their

activities have resounded publicly and widely not least because fro m time to time the Steve Irwin and Captain

Watson are based in Australia, at the Gold Coast, southern Queensland. This year the Steve Irwin was joined by

the Sea Shepherd’s Bob Barker and a fur ther vessel the Ady Gil. Although it is slightly outside the 2009

‘Update’ period, much public ity was given in Australia, as it was world-wide, when the Japanese vessel the

Shonan Maru 2 came into collision with and sank the Ady Gil in the Southern Ocean on 6 Janua ry 2010. A

number of the Ady Gil crew suffered personal injuries but fortunately no one was killed. There is much video

evidence of the coll ision but without e xternal evidence it is inconclusive as to the facts surrounding the

collision.

∗ QC, B.Com., LLB., PhD (Law); Adjunct Professor, University of Queensland.

**B.Com., LLB. Student, University of Queensland.

[This article was first published by the Journal of International Maritime Law and Commerce in 2010 and is reproduced with their kind

permission. -Ed]

1 The authors are indebted to Commander Penny Campbell RAN, Command Legal Offi cer with the Border Protection Command, for

assistance with these statistics.

2 The media reports concerning these incidents are legion and easily found and it is not necessary to list them. Much information can also be

found on the web sites of t he Sea Shepherd Conservation Societ y, the American Cetacean Society and th e Japanese Institute of Cetacean

Research.

Australia n Maritime Law Up da te: 2009

(2010) 24 A&NZ Mar LJ

The Australian government ordered the Australian Maritime Safety Authority (AMSA) to investigate and it

published its report of 29 April 2010.3

However, AMSA had no jurisdiction as neither vessel was Australian

flagged and the collis ion was not in Australian waters. AMSA su mmarised the international maritime law

situation, accurately and succinctly, as follows:

The reported location of the collision is not in Australian waters. The location of the incident, as SSCS reported it

to the RCC, is within Australia’s search and rescue region but outside of Australia’s territorial sea adjacent to

Antarctica.

The relevant rules which govern a country’s jurisdiction over a foreign vessel are the same under international law

in a country’s EEZ as they are on the high seas. As a general rule, Article 92 of the United Nations Convention on

the Law of the Sea 1982 (UNCLOS) provides that a vessel is subject to the exclusive jurisdiction of its flag State

on the high seas. Article 58 of UNCLOS provides that this general rule applies equally in a country’s EEZ.

Accordingly, New Zealand and Japan, as th e flag States of the Ady Gil and the Shonan Maru 2 respectively, have

exclusive jurisdiction in relation to incidents of this kind.

Further, as a general rule, Article 97 of UNCLOS provides that, in the event of an incident of navigation

concerning a ship on the high seas involving the penal or disciplinary responsibility of the master or any other

person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except

by the flag State or the State of which the person is a national.4

Although the captains of the Ady Gil and the Bob Barker cooperated and gave their versions, the Japanese

officials and crew refused to cooperate with the investigation so the AMSA report was inconclusive.5 T he

Japanese government and its Institute of Cetacean Research denied any wrong-doing by the Shonan Maru 2. As

the Ady Gil was New Zealand-flagge d, NZ had jurisdiction, and Maritime New Zealand stated in a media

release that it would investigate. Unfortunately, no report was available at time of writing 6

and the Japanese

government has not o ffered to publish an y report at all.

In April 2010 Mr Ady Gil himself, the person after whom the vessel was named in thanks for his generous

donation towards its cost, visited Australia. He met with one o f the authors, Michael White, and indicated his

passionate opposition to killing wild animals. He subsequently returned to his home and busi ness in California.

Although well out of the 2009 time period it is worth mentioning in this ‘Update’ that the Aust ralian

government has anno unced that it is finally taking its long-threatened step to initiate action against Japan in the

International Court of Justice in the Hague.7

The 2010 ‘Update’ will bring readers further detail about it.

2.3 Boat People

In previous years t he incursion of refugees and others into Australian waters by boat, the ‘boat people’, had

mainly fled from Iraq and then later from Afghanistan. During the 2009 c alendar year those from Ira q gradually

reduced, those fro m Afghanistan graduall y increased and they were joined by many people escaping from the

end of the civil war in Sri Lanka, mainly people of Tamil culture and background. In the 2009 calendar year the

number of suspected irregular entry vessels (SIEVs) was 60 with a total number of people onboard of 2867.8 Of

course far more irregular people arrive by air, but it is the boat people who are given nearly all of the publicity

in the media.9

The Tamil people had good reason to flee from Sri Lanka as the detention camps esta blished by

the government forces were closed to outside media and humanitarian bodies and the evidence is that many

unlawful murders and other crimes were being perpetuated against those detained.

3 Australian Maritime Safety Authority,‘Fact finding report into the reported collisi on involving the New Zealand registered craft Ady Gil

and the Japan registered whaling ship Shonan Maru No. 2 in the Southern Ocean on 6 January 2010’ (29 April 2010)

<http://www.amsa.gov.au/Shipping_Safety/Incident_Reporting/documents/AMSA-Report-on-Ady-Gil-collision.pdf>.

4 Ibid 6.

5 Ibid 13-14.

6 Maritime New Zealand, ‘Collision Under Investigation’ (7 January 2010) <http://www.maritimenz.govt.nz/news/media-releases-

2010/20100107a.asp>.

7 Peter Alford, ‘Australia takes Japan to court on whaling', The Australian (Online), 28 May 2010

<http://www.theaustralian.com.au/politics/australia-takes-japan-to-court-on-whaling/story-e6frgczf-1225872445926>.

8 The authors are indebt ed to Commander Penny Campbell RAN, above, for these statistics as well.

9 By way of illustration that the influx of boat people is not Australia’s major immigration problem; it is estimated some 90 to 95 per cent of

boat people are granted protection visas but only some 45 per cent of those who arrive by air are gra nted them; The Australian, 24

November 2009. Only about 1 per cent of the total of Australia’s migration for 2009 arrived by boat; The Courier Mail 7 June 2010,

reporting the opinion of Professor Nancy Vivi anni, professor of international relations at Griffith University. The Australian Parliamentary

web site has much information on the issue, particularly ‘Background Note’ – see Janet Phillips and Harry Sprinks, ‘Boat a rrivals in

Australia since 1976’ (23 Septemb er 2010) Parliament of Australia >.