The case heard in the Federal Court on Monday centres on the statutory interpretation of “transport” and whether Tigers,which digs up the coal and trucks it to a port,is,in fact,transporting the banned commodity to be imported to another country.
“The transport at issue within Russia is for the purpose of export of Russian coal,and inhibiting that transport at issue tends to inhibit the trade in Russian coal,” said Perry Herzfeld,the barrister representing DFAT. “And that’s plainly the intention of the sanctions directed at Russia.”
Through its Russian subsidiaries,Tigers owns and operates a coal mine in the Chukotka Autonomous Okrug district in Russia’s far east,as well as a port. The coal is eventually loaded onto independently owned vessels,which ship it to customers predominantly in north Asia.
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Christopher Ward,representing Tigers,implored Justice Geoffrey Kennett to accept that the legislation bans the transportation of coal once it has crossed Russia’s land or sea border,and reject the Commonwealth’s position that Australian citizens and businesses trading Russian coal falls foul of the law.
“The production process is not intended to be captured,but transport for the purpose of movement as part of the process of importation or cross border movement is,” Ward said. “If we are wrong,we have to close down … And the consequences are not simply corporate in a criminal sense,they are potentially personal in relation to directors of this listed company.”
Herzfeld described Ward’s argument there should be a distinction between the production of sanctioned commodities and transportation as a “porous concept”.