Aussie Legal Hurdles (RTW) ???

[Pelagic]

Agreed Factor that this Theoretical Challenge is about the published Law.

But do these not become dynamic when taken right up to the highest Court for interpretation and ruling?

[Wotname]

Originally Posted by Rustic Charm

……...

It's as simple as this, (I thought), if you are leaving Australian waters for 'another place' you must have clearance to do so. You leave Australian waters the moment you sail beyond the 12 mile border. That's the basic requirement, and it's a law that you can be fined if you ignore it.

As is common with many laws there are exemptions that apply to this law. And the exemptions are quite simple.

Your permitted to sail outside the 12 mile border without clearing out when transitting from one Australia place to another Australian place. Clearly Fremantle to Bass remains Australia to Australia. Are you seriously going to check to see if your going to need to clear out?

You can also leave the 12 mile limit to fish, to simply sail, to copulate outside Australia's sovereignty if you like. You don't need 'clearance' approval to do these things. You do expose yourself to quarantine laws however, if they so choose to board you.

Now, why can't you go from Fremantle and head west to 'Bass Strait' without clearing out? I'd suggest it's because you are travelling through other sovereign areas of responsibility to do that. Where as just crossing Australia's border whilst fishing, sailing or playing, your remaining within Australia's areas of responsibility including its search and rescue area of responsibility.

I'm not grasping why this is so difficult to grasp or am I missing something in this game

RC I appreciate your efforts in providing the other side of this debate

So in true debating style, allow me to refute the above bold points.
It is quite possible to travel from one place in Australia to another place in Australia and leave our 12 mile limit and our EEZ without transiting any one else's sovereign waters. Accepting your premise that an exemption is the norm if one sails westwards from Tasmania to Western Australia, why would there not be the same exemption if one sailed eastwards (providing one did not enter another country's sovereign waters). Surely an exemption would not be determined on one's heading alone?????

I fail to see that our SAR areas of responsibility could possibly influence the requirements for a clearance and/or carriage of a passport. That smells like a "Ways and Means" argument

[Pelagic]

Originally Posted by Wotname

........Chris has identified that the Quarantine Act and Navigation Act applies to the voyage and while Chris hasn't read the current Border Force stuff, Chris assumes as inward clearance is necessary for Quarantine purposes, an outward clearance is probably required even though the voyage is from Oz to Oz.

Chris has also rolled over on getting the boat on the Aussie Shipping register even though the boat is not departing Oz for a place outside of Oz. It may be transiting a place outside Oz (and one outside any other national waters) but isn't going to a place outside Oz. However this a mute point once Chris rolled on the registration papers.

However Chris is holding firm about not getting a passport as Chris can't believe that one is needed to travel from Oz to Oz without any intervening stops.

OK... Can we accept that Chris requires to register an "identity" for his boat to prove Australian origin and accepts Quarantine protocols?

If so, that is 2 of the 3 proofs of legal carriage of marine carriers entering Australia.

The 3rd is Immigration.

Does Chris need to prove his timeline for both he and his boat being absent from Australia?

Is so and we accept that his identity for entry purposes is controlled by the Immigration Dept....
... Then What document other than a Passport, will Immigration accept to verify Chris's return?

I think the onus is on Chris to prove they will accept something else.

[Rustic Charm]

Originally Posted by Pelagic

That in effect is 'Cheating'
Governments are elected and empowered to interpret the Law and enforce their judgement......

From their perspective there are so many utility aspects to maintaining status quo, homeland security, customs and excise, that they would have no problem preventing Chris from starting a modern day legal smuggling. precedent.

That's not correct in any democratic country.

Governments are elected and empowered to 'make the laws', not to interpret them. That role is of the courts. And enforcement of those laws is of the police, armed forces, coast guards and a heap of others on land.

[Rustic Charm]

Originally Posted by Wotname

RC I appreciate your efforts in providing the other side of this debate

So in true debating style, allow me to refute the above bold points.
It is quite possible to travel from one place in Australia to another place in Australia and leave our 12 mile limit and our EEZ without transiting any one else's sovereign waters. Accepting your premise that an exemption is the norm if one sails westwards from Tasmania to Western Australia, why would there not be the same exemption if one sailed eastwards (providing one did not enter another country's sovereign waters). Surely an exemption would not be determined on one's heading alone?????

I fail to see that our SAR areas of responsibility could possibly influence the requirements for a clearance and/or carriage of a passport. That smells like a "Ways and Means" argument

The thing is you can't sail East from Tasmania without sailing into New Zealand's waters, and then beyond that into Chile's.. Going West from Fremantle and you will come into South Africa's SRR.

Any responsible authority in Australia before giving clearance out is going to consider the very high likelihood that anyone travelling around the world may require assistance from another region's SRR. And for that purpose a Passport would be a must. And whilst I don't know for certain, I would put money on it that is the reason they 'require' people like Jessica Watson to have carried a passport.

[Wotname]

Originally Posted by Rustic Charm

The thing is you can't sail East from Tasmania without sailing into New Zealand's waters, and then beyond that into Chile's.. Going West from Fremantle and you will come into South Africa's SRR.

Any responsible authority in Australia before giving clearance out is going to consider the very high likelihood that anyone travelling around the world may require assistance from another region's SRR. And for that purpose a Passport would be a must. And whilst I don't know for certain, I would put money on it that is the reason they 'require' people like Jessica Watson to have carried a passport.

IMO, the Aus SRR has absolutely nothing to do with this question. I am assuming you haven't ever cleared from Australia by way of a recreational boat. Customs don't give two hoots about your ability or that of the vessel unless it is so manifestly inappropriate that even blind Freddy would take pause to say whoa there.

SRR is all about helping people and vessels in distress, not who has sovereign powers of areas of the sea.

Why would a government official take it on their heads about who and what is safe. We still live in a society where the master of the vessel makes those calls.

Perhaps Jessica Watson and Kay Cottee and Jon Sanders "needed" to clear out and in to establish the bona fides of their record claims or for the publicly or whatever. I agree there may be legal reason but to date I can't find any act to support this.

[El Pinguino]

Originally Posted by Viking Sailor

Hi Gang,

This has been a really fun read! As such, I feel compelled to take a leap and plop my size 14 viking sea boots right in the meddle of it...

Firstly, DNA testing would soon resolve any question of the relationship between Chris and the baby. So, momma and baby would not be separated (at least for along).

People do get separated from their passports all the time while traveling. It is inconvenient but not the end of the world. You have to fill out some forms and go to the right offices. You don't go to jail!

I don't know about OZ but in most places I have been to in this world people still interact largely based upon trust. If you tell someone that you went for a very long sail, didn't stop anywhere along the way, and didn't see any reason way you would needed a passport they tend to give you the benefit of the doubt. It is usually when someone tries to lie their way out of trouble that things end up in the crapper.

Best regards,

Paul

You obviously haven't been to the land of Oz

What hasn't been mentioned here is that Chris was born in Islamistan ( her birth certificate was lost when a bomb was dropped in India House ( ok so that was an earthquake 300 years ago but never mind)). Being islamic in faith (and features) her parents ( since deceased) did not allow her to drive so no driving licence and of course her dog ate all her utility bills....

So first stop for her is a detention camp on Christmas Island ( if she is lucky... Nauru if she lucks out ) and of course the 'do gooders' will have taken her child.....

Undocumented Latams have it easy getting into the southern US ( aka 'Occupied Mexico') compared with the lot of suntanned folks trying to get into Oz....

[Wotname]

^^ hey start your own hypothetical

As I recall, the Aussie and KIWI Orions are in formation searching for Indian Rounder's supposed Dad last seen fishing around 50S.
Meanwhile back in Canberra there is hullabaloo over the dollars spent and the PM has been ousted and someone called Julie has taken over the reins and has issued an apology to Chris for the whole affair.

The movie screenplay wants to change the facts and have poor little Indian Rounder born prematurely due to a combination of a severe Southern Ocean Storm and the fear that was instilled in Chris by Customs when she departed.

[Pelagic]

Wottie.....Does that mean we have to change the working title to....
'The Second coming of Chris.....a Tale of two Horns'

[Wotname]

^^ not a bad working title. It will do unless someone can trump it

[Pelagic]

If we go for 'R' rating.

'The Second coming of Chris.....a Tale of two Horns.....and one horny customs officer'

[Factor]

Originally Posted by Pelagic

Agreed Factor that this Theoretical Challenge is about the published Law.

But do these not become dynamic when taken right up to the highest Court for interpretation and ruling?

In aprt yes, remembering that unless you can identify a Constitutional issue then the High court of Australia won't consider any appeals, it is likely that the matter would only make it as far as a Federal Court, if the offences prosecuted were Commonwealth, which in all likelihood they will be.

[Rustic Charm]

Originally Posted by Wotname

IMO, the Aus SRR has absolutely nothing to do with this question. I am assuming you haven't ever cleared from Australia by way of a recreational boat. Customs don't give two hoots about your ability or that of the vessel unless it is so manifestly inappropriate that even blind Freddy would take pause to say whoa there.

SRR is all about helping people and vessels in distress, not who has sovereign powers of areas of the sea.

Why would a government official take it on their heads about who and what is safe. We still live in a society where the master of the vessel makes those calls.

Perhaps Jessica Watson and Kay Cottee and Jon Sanders "needed" to clear out and in to establish the bona fides of their record claims or for the publicly or whatever. I agree there may be legal reason but to date I can't find any act to support this.

No, I've never cleared out.

I wasn't suggesting they care about the ability so much. But Governments do most certainly care about diplomatic bureaucracy. I'm only surmising, but I wouldn't mind betting that when someone plans heading off around the world non stop, they most certainly do expect to plan for lessoning any diplomacy problems. This may be why they require people making this attempt, to carry a passport when clearing out.

And as Jessica Watson and Kay Cottee and Jon Sanders record attempts have nothing to do with government bureaucracies, then carrying passports could not be the reason.

I can't think of any other reason to offer, other than it makes sense that the government is ensuring for contingencies that will affect diplomacy. That is an Australian reaching New Zealand for example and needing assistance in their SAR area would require a passport or it would become difficult. Let alone, Chile and then South Africa.

[Rustic Charm]

Originally Posted by Factor

In aprt yes, remembering that unless you can identify a Constitutional issue then the High court of Australia won't consider any appeals, it is likely that the matter would only make it as far as a Federal Court, if the offences prosecuted were Commonwealth, which in all likelihood they will be.

It doesn't have to be Constitutional. The High Court hears appeals on error of Law from any Appellant Court. But there has to be a error in law made by the Appellant Court to succeed to the High Court. Doesn't happen very often.

[Factor]

Originally Posted by Rustic Charm

It doesn't have to be Constitutional. The High Court hears appeals on error of Law from any Appellant Court. But there has to be a error in law made by the Appellant Court to succeed to the High Court. Doesn't happen very often.

Errors of law are the usual but not only basis for any appeal i see Hatzimanolis v AM Corporation Ltd, appeals in the criminal jurisdiction are not "as of right" they only occur when leave is granted and leave will only be granted when the matter is or is likely to have wide ranging effect, when the matter defines a contentious point of law or when the miscarriage of justice is so gross that the court must act.

The High Court has consistently stated that it is not a court of criminal appeal. see for example MASON J discussion on this point

I

n Liberato v The Queen,* a majority of the Court held that the High Court, not being a court of criminal appeal, will not grant special leave in criminal cases unless some point of general importance is in- volved which, if wrongly decided, might seriously interfere with the administration of criminal justice.

I am enjoying these discussions.