Australian Maritime Safety Authority v Livestock Transport & Trading [2009] FCAFC 10

FEDERAL COURT OF AUSTRALIA

Australian Maritime Safety Authority v Livestock Transport & Trading [2009] FCAFC 10

ADMIRALTY – treatment or holding of livestock sewage onboard ship – Maritime Authority refused foreign‑flagged ship permission to load livestock because of lack of compliance with parts of Marine Orders Pt 43, O 12.2 and cl 6.6 of Appendix 4 – appeal from decision by primary judge that these parts of Marine Orders were invalid, being inconsistent with Div 12C of Pt IV of Navigation Act 1912 (Cth), to extent applicable to foreign‑flagged ships – law of State of flag of ship STATUTORY INTERPRETATION – extent of regulation making power –Authority's powers to make regulations or orders under ss 190B(1) and 257(1) – whether Div 12C of Pt IV of Navigation Act imposed limitation on Authority's powers under ss 190B(1) and 257(1) to make regulations or orders with respect to Annex IV of MARPOL 73/78 – whether s 267ZQ gave Authority power to require structure of foreign ship to be modified so that it would comply with Annex IV – subject matter, scope and purpose of Act Held: Impugned Marine Orders valid; Appeal allowed

Navigation Act 1912 (Cth), ss 425(1AA), 425(2), 425(5C), 257, 257(1), Pt IV Div 12C ss 267ZF, 267ZG, 267ZJ, 267ZK, 267ZL, 267ZM, 267ZN, 267ZQ Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) Pt IIIB Div 2 ss 26D(3), 26D(6) International Convention on the Prevention of Pollution from Ships 1973 as modified by the Protocol of 1978 – Annex IV of MARPOL 73/78 Marine Orders Pt 43 Cargo & Cargo Handling – Livestock, Issue 6

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia(1932) 47 CLR 1 cited ASIC v DB Management Pty Ltd (2000) 199 CLR 321 applied Barcelo v Electrolytic Zinc Company of Australasia Ltd (1932) 48 CLR 391 referred to Chiropedic Bedding Pty Ltd v Radburg Pty Ltd (2008) 170 FCR 560 cited Goodwin v Phillips (1908) 7 CLR 1 cited Harrington v Lowe (1996) 190 CLR 311 cited Livestock Transport & Trading v Australian Maritime Safety Authority (No 2) [2008] FCA 1544 reversed Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397 followed Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 cited Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 referred to Morton v Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402 followed Shanahan v Scott (1957) 96 CLR 245 followed Project Blue Sky Inc v Australian Broadcasting Authority 194 CLR 355 applied Wildenhus's Case 120 US 1 (1887) cited