Opinion Number. 381

Subject

FISHING BY FOREIGN VESSELS IN AUSTRALIAN WATERS APPLICATION OF COMMONWEALTH AND STATE LAWS

Key Legislation

CUSTOMS ACT 1901, ss. 58-61, 64, 127-191129, 184-191192, 203, 228 : THE PEARL SHELL FISHERY ACT 1886 (W.A.). s. 2 : THE SHARKS BAY PEARL SHELL FISHERY ACT 1892 (W.A.) : ACT No. 19 OF 1897 (W.A.)

Date
Client
The Comptroller-General of Customs

It has been reported that certain vessels from Koepang have since April last been working on the north-west coast of Western Australia collecting turtle shell, trocas shell and trepang.

The Assistant Comptroller-General of Customs has referred the matter to me for advice with the following minute:

Would you kindly advise as to our powers in dealing with vessels poaching off the coast of Australia. The particular case now under consideration is that of vessels from Batavia visiting the Rowley and other shoals off the coast and within the waters subject to the jurisdiction of Western Australia. They do not report or clear at the Customs, do not pay duty on the stores consumed, and their trade consists in collecting trepang seed and probably other pearls, etc.

The following sections of the Customs Act 1901 appear to bear on the case, viz: sections 58-61,64,127-191129, 184-191192, 203, 228 (2) and (3).

If a vessel enters any place in Australia (other than a port) except from stress of weather or other reasonable cause, the master is liable under section 58 to a penalty not exceeding £100. If the vessels mentioned are in any place in Australian waters for the purpose of fishing and have no authority or licence to fish, they would, in my opinion, come within that section.

Under section 127 ships' stores are not allowed to be used unless entered for home consumption or their use is allowed by the regulations. The master of a vessel who in Australian waters permitted the use of ships' stores not entered for home consumption would under section 128 be liable to a penalty not exceeding £50 unless he was acting in pursuance of some regulation of the Customs.

Under section 185 an officer may require the master of any ship hovering within one league of the coast to depart, and if she fails to depart accordingly within twelve hours thereafter, he may board her and bring her into port and take steps for her forfeiture under section 228 (3) if under 250 tons.

The various powers in relation to chasing, and requiring vessels to bring to, boarding, searching, and securing goods could be exercised.

The masters of the vessels could under section 64 also be required to answer questions and produce documents.

Under the law of Western Australia fishing for pearl shell in territorial waters (other than the pearl shell fishery at Sharks Bay) is only allowed under licence. See Act 1886, No. 7(1), section 2. Under that Act the master of a vessel unlawfully used in pearl fishing is liable to pay a penalty not exceeding £100, and the vessel may be detained for three months pending payment, and if the penalty is not paid in that time, the vessel shall be declared to be forfeited. The Sharks Bay Pearl Shell Fishery Act 1892, No. 9, applies to the pearl shell fishery at Sharks Bay, but by Act 1897, No. 19, may be applied to any part of the coast of Western Australia or of the adjacent islands. Under it provision is made for a similar penalty for pearling without a licence. The vessels under consideration would therefore come within one or other of these Acts if employed in pearl shell fishing in Western Australian waters.

(1) The Pearl Shell Fishery Act 1886 (W.A.).