11 June 2015

Admiralty Jurisdiction of the Federal Court

An Introduction

The Federal Court's admiralty and maritime jurisdiction arises under or by reference to the following legislation:
The jurisdiction includes:
  • applications under the Administrative Decisions (Judicial Review) Act 1977 for review of decisions made under these Acts;
  • appeals from decisions of the Administrative Appeals Tribunal in relation to applications to that Tribunal for reviews of decisions made under these Acts; and 
  • matters arising under a provision of these Acts for the purposes of paragraph 39B(1A)(c) of the Judiciary Act 1903.

Jurisdiction under the Admiralty Act 1988

Of particular importance is the Court's jurisdiction under the Admiralty Act 1988 (Cth) ("the Admiralty Act"). Under the Admiralty Act, the Court may hear and determine 'proprietary' and 'general' maritime claims, as well as claims for damage done to a ship.
Proprietary maritime claims are defined in the Admiralty Act as including:
  • a claim relating to possession of a ship; title to or ownership of a ship or a share in a ship; a mortgage of a ship or a share in a ship; or a mortgage of a ship's freight;
  • a claim between co-owners of a ship relating to the possession, ownership, operation or earnings of the ship;
  • a claim for the satisfaction or enforcement of a judgment given by a Court (including a court of a foreign country) against a ship or other property in a proceeding in rem in the nature of a proceeding in Admiralty; or
  • a claim for interest in respect of a claim referred to in the previous three dot points.
General maritime claims are defined as including:
  • a claim for damage done by a ship (whether by collision or otherwise);
  • a claim in respect of the liability of the owner of a ship arising under Part II or IV of the Protection of the Sea (Civil Liability) Act 1981 or under a law of a State or Territory that makes provision as mentioned in subsection 7(1) of that Act;
  • a claim for loss of life, or for personal injury, sustained in consequence of a defect in a ship or in the apparel or equipment of a ship;
  • a claim (including a claim for loss of life or personal injury) arising out of an act or omission of the owner or charterer of a ship; a person in possession or control of a ship; or a person for whose wrongful acts or omissions the owner, charterer or person in possession or control of a ship is liable. The act or omission must occur in the navigation or management of the ship, including an act or omission in connection with the loading of goods on to, or the unloading of goods from, the ship; the embarkation of persons on to, or the disembarkation of persons from, the ship; and the carriage of goods or persons on the ship.
  • a claim for loss of, or damage to, goods carried by a ship;
  • a claim arising out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charter party or otherwise;
  • a claim relating to salvage (including life salvage and salvage of cargo or wreck found on land);
  • a claim in respect of general average;
  • a claim in respect of towage of a ship;
  • a claim in respect of pilotage of a ship;
  • a claim in respect of goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance;
  • a claim in respect of the construction of a ship (including such a claim relating to a vessel before it was launched);
  • a claim in respect of the alteration, repair or equipping of a ship;
  • a claim in respect of a liability for port, harbour, canal or light tolls, charges or dues, or tolls, charges or dues of a similar kind, in relation to a ship;
  • a claim in respect of a levy in relation to a ship, including a shipping levy imposed by the Protection of the Sea (Shipping Levy) Act 1981, being a levy in relation to which a power to detain the ship is conferred by a law in force in Australia or in a part of Australia;
  • a claim by a master, shipper, charterer or agent in respect of disbursements on account of a ship;
  • a claim for an insurance premium, or for a mutual insurance call, in relation to a ship;
  • a claim by a master, or a member of the crew, of a ship for wages; or an amount that a person, as employer, is under an obligation to pay to a person as employee, whether the obligation arose out of the contract of employment or by operation of law, including the operation of the law of a foreign country;
  • a claim for the enforcement of, or a claim arising out of, an arbitral award (including a foreign award within the meaning of the International Arbitration Act 1974 (previously known as the Arbitration (Foreign Awards and Agreements) Act 1974 ) made in respect of a proprietary maritime claim or a claim referred to in one of the preceding paragraphs;
  • a claim for interest in respect of a claim referred to in one of the preceding paragraphs.
The Court is also able to determine any matter of admiralty or maritime jurisdiction not otherwise within its jurisdiction that is associated with a matter in which the jurisdiction of the Court under the Admiralty Act is invoked.
For the purposes of the Admiralty Act, a ship is a vessel of any kind used or constructed for use in navigation by water however it is propelled or moved and includes a barge, a lighter or other floating vessel, a hovercraft, an offshore industry mobile unit within the meaning of the Navigation Act 2012 (Cth) and a vessel that has sunk or is stranded and the remains of such vessel. A ship does not include a seaplane, inland waterway vessel or a vessel under construction that has not been launched.
Proceedings under the Admiralty Act are commenced as either an action in rem or an action in personam.
An action in rem is an action against a ship or cargo or other property on, or related to, the ship. In such an action, a ship coming into Australian waters may be arrested for the purpose of providing security for money claimed from the ship owner and operator. If security is not provided, a judge may order the sale of the ship to provide funds to pay the claims.
An action in personam is a proceeding against a person, including an organisation.
An action in rem may be commenced against a ship or other property on the basis of:
  • a proprietary maritime claim; or
  • a maritime lien or other charge in respect of the ship or other property (a maritime lien is defined in the Admiralty Act as including a lien for salvage, a lien for damage done by a ship, a lien for the wages of a master or crew member, and a lien for a master's disbursements)
  • a general maritime claim where the owner of the ship or property when the action is commenced was the owner or charterer or was in possession or control of the ship or property when the cause of action arose, and such person would be also liable on the claim if commenced as an action in personam; and
  • a general maritime claim where the demise charterer (being a person who has full possession and control of a ship pursuant to a lease) of the ship when the action is commenced was the owner or charterer or was in possession or control of the ship when the cause of action arose, and such person would be also liable on the claim if commenced as an action in personam.
A proceeding in respect of a general maritime claim against a ship ('the first ship') may also be commenced as an action in rem against some other ship ('the surrogate ship') where the owner of the surrogate ship when the action is commenced was the owner or charterer or was in possession or control of the first ship when the cause of action arose, and such person would be also liable on the claim if commenced as an action in personam. The right to proceed against a surrogate ship does not arise in relation to a proprietary maritime claim.

Procedural rules for matters under the Admiralty Act

The general procedure for the conduct of matters under the Admiralty Act is set out in the Admiralty Rules 1988 (Cth). As the Admiralty Rules do not provide a comprehensive code, the Federal Court Rules 2011 also apply except to the extent of any inconsistency.

Commencing a proceeding under the Admiralty Act

A proceeding which is an action in rem under the Admiralty Act is commenced by filing a writ in the Court and paying the relevant fees. Details of the procedure to be followed and the forms to be used are set out in the Admiralty Rules.
The Admiralty Rules do not provide for how an action in personam is to be commenced, other than to state that such an action can not be commenced by the same initiating process as the process initiating an action in rem. In the Federal Court the usual practice is for an action in personam to be commenced by filing the application form (Form 15) prescribed by the Federal Court Rules 2011 and paying the relevant fees.
If a genuine steps statement is required by section 6 of the Civil Dispute Resolution Act 2011, a Federal Court Form 16 must be filed with the originating application.
Documents may be filed in accordance with Division 2.3 of the Federal Court Rules 2011, which provides that a document may be presented to a Registry when the Registry is open for business; or sent by post to a Registry; or sent by document exchange to the Federal Court of Australia at its box at the Australian Document Exchange; or sent by facsimile transmission to a Registry in accordance with rule 2.22; or sent by electronic communication to a Registry in accordance with rule 2.23.
Where the proceeding is an action in rem against a ship or other property on the ship, the Admiralty Rules provide that service is effected by securely affixing a sealed copy of the writ to a mast or some other conspicuous part of the ship. Where the action in rem is against property that is not at the time of service on board the ship, service is effected by securely affixing a sealed copy of the writ to the property or to a package or container containing the property. The Admiralty Rules also provide for service where it is not possible to gain access to the ship or property, or where the action in rem is against the proceeds of the sale of the ship or property that has been paid into the Court. Substituted service is not possible in an action in rem.
Where the proceeding is an action in personam, service of a sealed copy of the application must be carried out in the usual way. That is, service must be effected in accordance with the Federal Court Rules 2011.

Arrest of a vessel under the Admiralty Act

Immediately after an action in rem is commenced, an application supported by an affidavit may be made for an arrest warrant to be issued in respect of the ship or property concerned. The application constitutes an undertaking to the Court to pay on demand the fees and expenses incurred by the Marshal in relation to the arrest.
An arrest warrant is executed in the same way as a writ is served. It may be executed at the same time as the writ is served, or at some later time. The Court is able to execute an arrest warrant anywhere in Australia.
An applicant for a warrant may ask that it not be executed. It is also possible for an interested person in relation to a ship or property that is the subject of a warrant to apply to the Court for the warrant to be discharged, not to be executed at all or not to be executed within a specified time.
The ship or property specified in a warrant is under arrest from the time the warrant is executed until the ship or property is lawfully released from arrest or sold by order of the Court. Any person removing the ship or property, without leave to do so, may be in contempt of Court.
The Court may make orders at any stage of a proceeding in relation to the preservation, management or control of a ship or property, including the loading and unloading of cargo, that is under arrest. The Marshal or a party may apply at any time for directions with respect to the ship or property.

Caveats against arrest

A caveat against the arrest of a ship or property may be filed in the registry of the Federal Court. The caveat constitutes an undertaking by the person lodging the caveat to enter an appearance in any action in rem started against the ship or property specified in the caveat. In certain situations the caveat also operates as an undertaking to pay into the Court, unless otherwise agreed, within three days of being served with a writ, either the amount claimed in the writ or the amount specified in the caveat (whichever is the less) or to enter a bail bond in that amount.
The register of caveats against arrest can be searched at any registry of the Federal Court.
A list of the current caveats against arrest on the Register is available on the Court's web site through the Federal Law Search facility.

Release of an arrested vessel

A ship or property may be released from arrest where:
  • the party who obtained the arrest consents in writing to the release and makes an application to the Registrar; or
  • the Court orders release on just terms, or where the proceeding is discontinued or dismissed; or
  • a bail bond in the required amount is filed in the Court; or
  • the required amount is paid into the Court.
The ship or property will only be released if satisfactory arrangements have been made for the payment of the fees and expenses incurred in connection with its custody while under arrest.

Caveats against release

A caveat against release may be filed in the Court by which the arrest warrant was issued. Where a caveat against release is in force, the person who lodged the caveat must be given a copy of any application to the Court for an order to release the ship or property under arrest. In addition, the Registrar is not able to order the release of the ship or property unless the Court so orders. The caveat may be withdrawn by the person who lodged it, or the caveat may be wholly or partly set aside by the Court.
The register of caveats against release filed in the Federal Court can be searched at any registry of the Court.
A list of the current caveats against release on the Register is available on the Court's web site through the Federal Law Search facility.

Ref: http://www.fedcourt.gov.au/law-and-practice/areas-of-law/admiralty/jurisdiction

PLEASE NOTE: The validity of law is put aside
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10 June 2015

Afghan refugee jailed for eight years for thwarted 'honour killing' in Melbourne

A 28-year-old Afghan refugee who organised a so-called honour killing that was later thwarted has been sentenced to eight years in jail.



Wahid Najibi was found guilty of organising the murder of the new partner of a woman he was once engaged to (his first cousin - corpau).

He was convicted by a Victorian Supreme Court jury in April of one charge of incitement to murder in 2012.
The woman, known only as ZN, was Najibi's first cousin and was promised to him by her family in an arranged marriage in 2008.
There is nothing at all 'honourable' in what you proposed be done ... and that it reflects a skewed moral or ethical paradigm that is entirely unacceptable in this or any society.
Justice Karin Emerton

She was against the union and later fled to Queensland with another member of Melbourne's Afghan community, where they married and had a child.

The court heard Najibi arranged to have his cousin's new partner killed after she and her family returned to live in Melbourne's north.

He met several times with a petty criminal he had met in Warragul to discuss the plan and provided him with photos of the man, his vehicle and address.

But the court heard the man he chose to carry out the murder inadvertently subcontracted it out to an undercover police officer who was posing as a hit man for hire and later cooperated with police.

Najibi was arrested on Valentine's Day 2012, the day the murder was supposed to have been carried out.

He was charged with a string of offences that were later dropped.

Najibi travelled to Afghanistan and was rearrested after returning to Australia in 2013.

"This type of criminal conduct in which you attempted to engage ... is sometimes referred to as an honour killing," Justice Karin Emerton said.

"It must be clearly stated that there is nothing at all 'honourable' in what you proposed be done ... and that it reflects a skewed moral or ethical paradigm that is entirely unacceptable in this or any society.

"It shows a profound disrespect for the lives of others and for the rule of law."

'Driven to exact bloody revenge' over a perceived slight

The court heard Najibi grew up in Afghanistan while the country was at war with the Soviet Union and later moved to Pakistan.

Several relatives were killed or disappeared due to the family's political affiliations and after the family moved to Australia in 1996, Najibi's parents worked long hours and he took over caring duties for his younger siblings.

Justice Emerton told Najibi, in many ways, he had lead "an exemplary young life" and had been "a very responsible and caring son and brother" who had "carried a heavy burden as the oldest child of a refugee family in which the parents, in addition to the challenges of dislocation, have experienced serious health issues."

"[But] the offence of incitement to murder is a serious one ... your offending, which involved inciting a person who was a local thug and 'enforcer' with a serious drug and alcohol problem to go to the home of a young family in the dead of night to kill one of them with a shotgun, merits severe punishment," she said.

"This conduct is redolent of the lawlessness and brutality from which you and your family fled in the first place."

Justice Emerton told Najibi she believed his family's influence provided a "skewed" rationale for his offending and general and specific deterrence were important factors in sentencing.

"I consider it likely that you felt pressure from your family ... and that you saw it as part of your role as a dutiful son to deal with him [the target of the murder] thus," she said.

"However, in considering your moral culpability, I do so on the basis that you were driven by a desire to exact brutal and bloody revenge for what you perceived as a slight.

"I cannot ignore the fact that you were the instigator of the offending, that you stood to derive the main benefit from the murder ... and that the benefit was vengeance."

A young woman sitting with Najibi's parents sobbed loudly after the sentence was handed down.
He will be eligible for parole in four years and nine months.

abc.net.au 10 Jun 2015

The Australian government importing criminals under the 'refugee' banner.

 Is this good governance 'for the people'? Definitely not, never was and never will be.

 Putting the people of Australia, the community at risk.

 Send this piece of garbage back to where it came from
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Paedophile set free in community

Paedophile set free in community
Support: A former senior police officer and a civilian WA Police employee supported man's return to the community. Picture: The West Australian
A dangerous paedophile with a history of depraved and repugnant offences has been granted supervised release after a former senior police officer and a civilian WA Police employee supported his return to the community.

Gavin John Wesley was convicted of sex offences against children aged under 13 after two trials in 2002 and has a record of child pornography offences.

His sentences total 17 years jail for the offences that involved prolonged grooming of young children after gaining a position of trust from their families.

A judge described some of Wesley's crimes as depraved and among the worst of their type.

State prosecutors wanted Wesley deemed a dangerous sex offender in March last year as he approached a full term of 11 years and eight months in jail.

But this has taken a year to resolve in the Supreme Court and in the interim, he was granted temporary release on an undertaking approved by a judge.

In a decision on Thursday, Justice Eric Heenan ruled Wesley remained a serious danger but his risk could be adequately managed by a five-year supervision order with 45 conditions.

He revealed that at a hearing in March, Wesley's release was supported by the former senior ranking police officer who had been the paedophile's friend for more than 20 years.

Wesley had been living with the former officer's frail, 93-year-old father in a semi-rural area on Perth's outskirts during his interim release over the past year.

He had been cooking and repairing the home, which the former officer visited every three to four days.
A system was also set up to monitor his computer use.

The civilian police employee, who was a police officer overseas, testified that Wesley had shown good signs of reintegrating into normal society and committed to keep a check on him at all times.

The identities of both men were suppressed to protect them from "unthinking and unjustified attention", Justice Heenan said.

news.yahoo.com 16 May 2015

 According to official reports apparently the police care for the community, you know reduce the deaths on the road by fining people hundreds of dollars for traveling 3km/h over the speed limit, etc.

 Yet, dangerous paedophiles are let out into the community.

 How is this part of 'to serve and protect'? It's not.

 It's deliberate, to cause anguish and suffering to the community at large.

 The police are not there for your protection nor to help you, they are corporate policy enforcers, with guns.
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How common are cousin marriages? More than you might think

Jaime and Cersei Lannister broke the incest taboo in Game of Thrones.
Jaime and Cersei Lannister broke the incest taboo in Game of Thrones. Source: Supplied
 
FOR most Westerners, marrying a relative is the last taboo. 

But in some communities, it’s considered completely normal and is even on the rise.

In many parts of the world, a union between cousins and even uncles and nieces are seen as favourable, because it means the family remains intact.

Marriages between second cousins or closer relatives even in Australia are thought to make up around 0.2 per cent of all unions, involving almost 50,000 people.

“In deprived rural areas, it’s a strong family tradition,” Professor Alan Bittles from Edith Cowan University in Western Australia told news.com.au. “It can mean a socio-economic advantage.

“It’s also common in parts of the world where there’s terrorist activity or civil insurrection, like northwest Pakistan, where 40 to 50 per cent might marry a cousin.

“You’ve got little or no control from the government, and there’s this idea that ‘blood is thicker than water’ — you can rely on your family more than even your neighbours. It’s a self-protecting mechanism.”
Inter-family marriage are more common than you might expect.
Inter-family marriage are more common than you might expect. Source: Supplied
 
There are 1100 million people living in countries where the rate of inter-family marriages is 20-50 per cent.

Many families value knowing their new social circle and the medical history of those entering the bloodline.

Marrying a relative, or “consanguinity”, is particularly common among migrant communities in Australia.

Prof Bittles, who works at the Centre for Human Genetics explains. “In Australia, it’s second or third generation migrants from countries with strong traditions, like the Middle East.”

Italian-Australian actor Greta Scacchi caused outrage even among her own family when she had a child with her cousin, Carlo Mantegazza. Several of her relatives declared it unacceptable and against the Catholic Church.

But despite the horrified rhetoric around marrying a relative, there has been no move in Australia to ban it. The country operates under laws taken from 15th century England, when Henry VIII declared it legal.

Actor Greta Scacchi caused outrage when she had a child with her cousin.
Actor Greta Scacchi caused outrage when she had a child with her cousin. Source: News Limited
 
In Europe there has been some movement, with Denmark banning marriage between relatives by equating it with forced marriage, and the Netherlands set to follow suit. Some MPs in the UK, where it is mainly seen in rural areas, said it should be banned because of health problems, but these were “grossly exaggerated”, said Prof Bittles, and their progress stalled.

“Until the mid-19th century, it was quite valued,” added the professor. “It was seen as favourable for a girl to marry into a branch of the same family, not an alien one.”

But now family size is shrinking, the pool for possible marriages to relatives of a similar age is getting smaller. Women staying in school for longer and delaying marriage also makes it less likely, he explained.

Prof Bittles says he was “taken aback” when he first encountered marriages between uncles and nieces in the 1970s on a visit to India, but his tests on genetic defects showed only a negligibly detrimental effect. “It’s hard for us to come to terms with,” he said. “It’s a touchy subject, but one people find inherently fascinating.”

news.com.au 30 May 2015

Wondering why there are so many mentally retarded people around?

The 'Royals' have figured this out a little while ago, hence the new blood of Diana, Mary, etc.

The rules of marriage are found in Leviticus 18:6-18.

Also see article:

Inbreeding brought down Habsburg dynasty

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09 June 2015

Builder names Opposition Leader Bill Shorten named in royal commission

Premier Dan Andrews’s staffer has been drawn into the web of the Royal Commission into Un
Premier Dan Andrews’s staffer has been drawn into the web of the Royal Commission into Union Governance and Corruption. Picture: Ian Currie
 
BILL Shorten has been named in a royal commission as having a relationship with a builder who paid union membership fees on his workers’ behalf for more than 20 years. 

Dino Strano, founder of building firm Winslow, told the Royal Commission into Union Governance and Corruption that he had an association with the Australian Workers Union since the early 1990s.

He said he had paid AWU memberships for his workers to give his company a “degree of stability” and avoid working with the militant CFMEU.

Of his relationships with AWU leaders he said: “There’s been a variety of people from, you know, Bill Shorten, Peter Smoljko, Cesar, and various organisers over the years, yes.”

The Opposition Leader was Victorian secretary of the AWU from 1998 until 2006.

His office said: “As stated previously, Labor is not going to give a running commentary on the royal commission.”

The AWU also organised meetings with government agencies including VicRoads as part of the relationship, the commission heard.

Premier Daniel Andrews has also become tangled in the AWU memberships affair.

Mr Andrews’ private office employee John-Paul Blandthorn has given evidence to the commission this morning about his former role as an organiser for the Australian Workers’ Union.

He was quizzed over a pay deal with Clean Event that he negotiated that allegedly ripped off cleaners.
Mr Blandthorn was the right hand man of former AWU boss Cesar Melhem, who is now an Upper House Labor MP.

Mr Blandthorn said that he had kept Mr Melhem, whose political career is now in crisis, “in the loop” about the pay deal that short changed workers up to $27 an hour.

Mr Blandthorn said that Mr Melhem knew the details of the Clean Event deal, which did not provide penalty rates for weekend and public holiday work.

“I was keeping him in the loop the whole time,” he said.

Mr Blandthorn said that he had daily meetings with Mr Melhem about matters, including the pay deal.

And he revealed that Mr Melhem attended a meeting in May 2010 with Clean Event where he demanded a $25,000 payment to the AWU as a “service fee.”

Mr Melhem had told Clean Event at the meeting that the company had no industrial troubles because of the AWU’s work as he requested the money.

Mr Blandthorn could not recall the figure of the payment but did confirm that Mr Melhem had made a request for payment.

Mr Blandthorn said he raised concerns with Mr Melhem about the deal, but his complaints were dismissed.
“He said, ‘Look JP, it’s your job to make sure it gets done,” Mr Blandthorn said.

Clean Event was negotiating an extension to its pay deal in 2010, which was based on a Work Choices era agreement.

The company told the AWU that they could not afford to pay penalty rates, which would have increased weekend pay rates to $45 an hour, because competitors were paying staff at lower rates in cash.

Mr Melhem signed off on the pay deal that significantly reduced workers’ pay in comparison with the modern award.

The deal saved Clean Event $2 million a year in wages, and the company paid an annual $25,000 fee to the union during its operation.

heraldsun.com.au 3 June 2015

 Bill Shorten, another criminal politician in office, but no doubt will escape any wrongdoing, as per usual from the corrupt government.
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Families pay for corporate and politician's tax dodging

Australia is truly a corporate (tax) criminal's paradise.

It's not a 'conspiracy theory', or a 'tin foil hat' syndrome, where the actions of the so called government speak louder than any 'theory'.


  • In Australia, politicians commit fraud and deception against the people they are actually supposed to be serving with no interference from police, and even if they are brought to 'justice' before a court, the 'brotherhood' sets them free of any wrongdoing.


  • In Australia apparently the ATO (Australian Tax Office) has release figures that 55 millionaires did not pay tax. Also Australia has an approximate 160,000 millionaires, according so some government statistic.



So who is left to mop up the tax dollars the corporations and politicans have defraud from the general populous?

STILL not convinced you're a CORPORATE SLAVE?
Why the 'mums and dads', the unemployed, the pensioners and the vulnerable, that's who...

Don't take our word for it... It's in the 'papers'.
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