Australian Maritime Law Update: 2008

• Author: Michael White - Peter Aaron Glover
• Position: Queen's Counsel; Adjunct Professor, University of Queensland. B.Com., LLB., University of Queensland; PhD Bond University; Member of the Editorial Board of the Journal of Maritime Law and Commerce. The authors wish to acknowledge the valuable research assistance of Ms Rosemary Gibson (BA, LLB student) in preparation of this article - Dip. Appl....
• Pages: 170-185

AUSTRALIAN MARITIME LAW UPDATE: 2008#

Michael White* and Peter Glover**

1 INTRODUCTION

The 2008 calendar year was a reasonably quiet one for the Australian scene so far as maritime law matters were

concerned even though most of the usual matters saw some developments. The fisheries incursions by illegal foreign

fishers in Australia’s northern waters fell from recent highs to more usual levels, and no illegal fishing was detected in

the deep Southern Ocean. The whaling issue with the Japanese whaling fleet making its annual voyage to the Southern

Ocean remains contentious and the ‘boat people’, mainly refugees from Iraq and/or Afghanistan, still continue to arrive

but they are now treated as they should be; on their merits or otherwise. The number of maritime cases in the courts

worthy of reporting was not large and there were the usual number of other issues that merit being touched on.

As a result the 2008 ‘Australian Update’ can be categorised more as interesting than dramatic and it begins with

fisheries.

2 FISHERIES AND OTHER OFFSHORE ISSUES

2.1 Fisheries

Previous Australian Annual Updates have devoted considerable space to the issues of international fisheries incursions

into the Australian EEZ and the attempts by the Australian government agencies and Australian defence forces to curb

them. It is pleasing to note that the rate of these incursions is showing signs of decreasing. Some comparison over the

past two years may be seen from this table under, in which the of sightings of vessels in the Australian EEZ, which is

the same as the Australian Fisheries Zone (AFZ), is much higher but the actual apprehensions are much lower. This

would appear to indicate that the unlawful incursions by foreign fishers have dropped markedly.1

Sightings inside the AEEZ Apprehensions Number of crew

apprehended

2007 4407 125 1049

2008 6716 91 712

As the Australian government has reorganised the offshore surveillance and enforcement powers of its various agencies

and defence assets under the one command, known as the Border Protection Command, it may be that an increased

efficiency has led to more sightings being recorded.2

Quite a few cases have been processed through the courts in Darwin, the Northern Territory capital city, but none of

them have proceeded on appeal. There were no apprehensions in the Southern Ocean or significant court cases in any of

the southern cities during 2008, which would appear to indicate that the drive to eliminate the depredations in the

Southern Ocean has been attended with some success.

# This paper first appeared in (2009) Journal of Maritime Law and Commerce; it is reproduced here by permission of the editor of the Journal of

Maritime Law and Commerce.

* Queen’s Counsel; Adjunct Professor, University of Queensland. B.Com., LLB., University of Queensland; PhD Bond University; Member of the

Editorial Board of the Journal of Maritime Law and Commerce. The authors wish to acknowledge the valuable research assistance of Ms Rosemary

Gibson (BA, LLB student) in preparation of this article.

** Dip. Appl.Science (Nautical), B.Bus (Mar.Management), JD, LLM (Int.Trade), MBA; Associate, Norton Rose LLP, London; PhD candidate,

University of Queensland.

1 Foreign Fishing Vessels sighted by Coastwatch aircraft within the AEEZ may include multiple sightings of the same vessel or vessels legitimately

inside the AFZ.

2 The organisation and activities of the BPC, which is mainly a partnership between Customs and defence, but with all of the other relevant agencies

cooperation, may be found on its web site at www.customs.gov.au and follow prompts.

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Australian Maritime Law Update: 2008

2.2 Whaling Issues

This ‘Update’ has for some years recorded the annual activities of the Japanese whaling fleet in the Southern Ocean

harvesting whales each southern summer season and the firm opposition of the Australian government, and that of New

Zealand, to this. As expected over December 2008 to March 2009 the Japanese whaling fleet conducted it activities and,

as usual, the Sea Shepherd Conservation Society vessel, MV Steve Irwin, harassed them. The Sea Shepherd called it

Operation Musashi in this its fifth crusade against the Japanese Whaling Fleet.3 Sea Shepherd has claimed considerable

success in its endeavours, maintaining that because of them the Japanese Whaling Fleet in the 2008-2009 season only

achieved a take of 679 Minke whales out of a target of 935 and only one of the endangered Fin whales out of a target of

50 whales.4 It must be noted that the controversial and at times aggressive tactics at sea of Sea Shepherd’s vessels had

led to its having been denied accreditation for observer status to the International Whaling Commission since 1987.5

In the 2008-2009 season the Australian government did not send its Fisheries Support vessel, the Oceanic Viking to

gather evidence for a possible legal challenge to Japan and adopted a more diplomatic stance instead. The Australian

government had previously said it was gathering evidence from the Oceanic Viking for an international court case

against Japan6 but these comments have been absent over the earlier part of 2008 year. This may be explicable in light

of the fact that the New Zealand government, which has maintained a similar attitude over previous years to that of

Australia, revealed that its legal advice was that its case had ‘significant difficulties’ and so one infers the advice was

that its prospects of success were not high.7

However, the Australian government has pursued its opposition through all diplomatic avenues open to it. At the

International Whaling Commission Intersessional meeting in London in March 2008 the Australian Minister for the

Environment, Heritage and the Arts, Mr Garrett, directed the Australian delegation to put forward three main proposals

for reform of the IWC; namely, development of conservation plans for whaling, improved scientific research beginning

with the Southern Ocean and for strict IWC authority over the so-called ‘scientific’ research resulting in killing whales.8

At the annual IWC meeting, held in Santiago, Chile, over 23 – 27 June 2008 the Australian Minister’s statements

included a high profile and vigorous attack on the Japanese attitude and the conduct of lethal research in the Southern

Ocean, including calling on the Japanese government to suspend whaling operations.9 This meeting of the IWC had a

much wider agenda than that on which the Australian delegates concentrated and its 81 members had issues in other

oceans apart from the Southern Ocean. However the Chairman’s summary of the Day 3 proceedings did devote

considerable space to Japanese special permit whaling, ie. ‘scientific research’ whaling, and the Japanese JARPN

whaling program.10

To put the worldwide and the Japanese whaling take in perspective, the annual report of the IWC on member nations

catches for 2007 and 2007/2008, in both the northern and the southern oceans, reveals that world-wide Denmark

(Greenland), Norway, St Vincent and The Grenadines, South Korea, Russia and the USA take was a total of 405 of all

species and all these were for Aboriginal subsistence, whereas only Japan and Iceland had catches under the ‘special

permit’ system and they were a total of 912 for Japan and 39 for Iceland.11

Unlike earlier years the Japanese Institute of Cetacean Research, an organ of the Japanese government, has published

very little recent information.12 It has however published the opening statement for Japan to the 2009 Annual meeting

of the IWC, in which amongst other statements its representative said that the IWC suffers from serious disagreements

among different groups and the ‘paucity of constructive, rational and science-based discussions’ can only be described

as ‘dysfunctional’.13 These comments were and are hardly likely to endear Japan to the other IWC delegates.

3 Details can be obtained from the Sea Shepherd Society web site, <www.seashepherd.org > (accessed 28 April 2009).

4 ‘Operation Musashi: Antarctic Whale Defense Campaign 2008-09’, Sea Shepherd web site <www.seashepherd.org> (accessed 28 April 2009).

5 Statement on Safety at Sea made to the IWC Intersessional meeting in March 2008, being Appendix G to the IWC Chair’s Annual Report; see IWC

web site > (accessed 5 May 2009).

6 Joint Press Release and Transcript of press interview Ministers Peter Garrett, Environment, Heritage and the Arts, and Bob Debus, Home Affairs, 7

February 2008; ministerial media releases; <www.iwcoffice.org/meeings/meeting2008.htm> (accessed 5 May 2009).

7 The Australian 8 May 2008.

8 Press release and transcript of interview with Hon Peter Garrett AM MP dated 1 March 2008; ministerial web site, above n6.

9 Press release and transcript of interview with Mr Garrett dated 26 June 2008; above n6.

10 See IWC web site above n 5 and ‘Chair’s Summary Report for the 60th Annual and Associated Meetings, Santiago, Chile 2008; web site

<www.iwcoffice.org/meeings/meeting2008.htm> (accessed 5 May 2009).

11 Report by the IWC of ‘Catches by IWC Member Nations’, Annex K to the Chair’s Annual Report; see IWC web site above n 5.

12 See ICR web site <www.icrwhale.org> (accessed 28 April 2009).

13 Ibid, Opening Statement, second paragraph.

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