Brennan-Kuss v Dietman
[2014] SASC 28
•5 March 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BRENNAN-KUSS AND OTHERS v DIETMAN
[2014] SASC 28
Judgment of The Honourable Justice Blue
5 March 2014
PRIMARY INDUSTRY - FISH - CONSTITUTIONAL, TERRITORIAL AND RELATED ISSUES
PRIMARY INDUSTRY - FISH - OFFENCES - TAKING PROHIBITED TYPE OF FISH
PRIMARY INDUSTRY - FISH - OFFENCES - TAKING OR POSSESSING UNDER PRESCRIBED WEIGHT OR SIZE
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - REFERENCE TO FRAMEWORK OF ACT
PRIMARY INDUSTRY - FISH - OFFENCES - PENALTY
Appeal against finding of guilt by a Magistrate.
In the early 1990s, the third defendant Hicks caught two White Sharks when it was lawful to do so. In 1998, White Shark was declared to be protected under the Fisheries Act 1982 (SA). In 2010, Hicks placed jaws and teeth from the sharks with the first and second defendants, Mr and Mrs Brennan-Kuss, for sale on consignment at their gallery.
The defendants were charged with offering for sale and having possession of an aquatic resource of a protected species in contravention of section 72(2)(b) of the Fisheries Management Act 2007 (SA). At trial, the defendants contended that section did not apply to aquatic resources lawfully taken before the species became protected and in the alternative that they had a defence under section 72(5) because they honestly and reasonably believed that the sharks were lawfully taken before White Shark became a protected species. The Magistrate rejected the defendants’ contentions and found them guilty of the offence charged.
The defendants appeal on the grounds that the Magistrate erred in his construction of section 72(2)(b) and section 72(5). In the alternative, they contend that section 72(2)(b) is ultra vires due to extra-territoriality.
Held (allowing the appeal)
1. On its proper construction, section 72(2)(b) applies only to the sale or possession of aquatic resources taken in South Australian waters after the species became protected (at [73]-[76] above).
2. On its proper construction, section 72(2)(b) does not apply to the sale and possession of aquatic resources which were taken lawfully under the Fisheries Management Act 2007 (SA) or its predecessors (at [90] above).
3. On its proper construction, section 72(2)(b) is not ultra vires the legislative powers of the Parliament of South Australia due to extra-territoriality (at [103] above).
Australia Constitutions Act 1850 (Imp) s 14; Criminal Law (Sentencing) Act 1988 (SA) s 39; Constitution Act 1934 (SA) s 5; Fisheries (General) Regulations 1984 (SA) r 7a; Fisheries Management (General) Regulations 2007 (SA) rr 8(1)(a)(b), 1-23, 24, 25-29, 30-35, 36-60, 61-67, 68-112, 113, 114, 115-122, 123-126, Sch 2 items 5 and 6; Australian Act 1986 (Cth) s2(1), referred to.
Hoare v The Queen (1989) 167 CLR 348; Mobile Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1; Owen v State of South Australia (1996) 66 SASR 251; Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340; Re Bolton; ex parte Beane (1987) 162 CLR 514; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, considered.
BRENNAN-KUSS AND OTHERS v DIETMAN
[2014] SASC 28Magistrates Appeal Criminal:
BLUE J:
This is an appeal against a finding of guilt without conviction by a Magistrate.[1]
[1] Criminal Law (Sentencing) Act 1988 (SA) s 39.
The appellants/defendants, Kym Hicks and Terrance and Josephine Brennan‑Kuss were respectively found guilty of having possession of and offering for sale an aquatic resource of a protected species, namely White Shark, in contravention of section 72(2)(b) of the Fisheries Management Act 2007 (SA) (“the Act”).
It was accepted at trial that the sharks in question had been caught by Hicks several years before White Shark was declared to be a protected species in 1998. The defendants contended that section 72(2)(b) does not apply to aquatic resources not of a protected species when caught. Alternatively, they contended that they had a defence under section 72(5) because they did not know and had no reason to believe that the sharks were taken in contravention of the Act.
The appeal raises three broad issues:
1.Does section 72(2)(b) apply to sale or possession of aquatic resources taken before the species became protected?
2.Do the defendants have a defence under section 72(5) because they honestly and reasonably believed that the sharks were taken lawfully before White Shark became a protected species?
3.Is section 72(2)(b) invalid as being ultra vires the legislative powers of the Parliament of South Australia due to extra-territoriality?
Background
In 1991 and 1993, Hicks caught two sharks of the species White Shark lawfully under his South Australian professional fishing licence. He retained their jaws.
On 1 January 1998, the species White Shark was declared by the Fisheries (Management) Regulations 1984 (SA) (“the 1984 Regulations”) to be a protected class of fish under the Fisheries Act 1982 (SA) (“the 1982 Act”).[2] When the Act superseded the 1982 Act, White Shark continued to be a protected species under the Fisheries Management (General) Regulations 2007 (SA) (“the Regulations”) under the Act with effect on 1 December 2007.
[2] Regulation 248 of 1997 amending the Fisheries (General) Regulations 1984 (SA).
In early 2010, Hicks gave one set of the jaws and some loose teeth to the Brennan‑Kuss to offer for sale on consignment at their Josephine’s Gallery at Coober Pedy.
In July 2010, Fisheries officers attended at Josephine’s Gallery and took possession of the jaws and teeth.
In February 2012, the respondent/complainant laid a complaint in the Magistrates Court alleging that the Brennan-Kuss offered for sale, and Hicks had possession and control of, an aquatic resource of a protected species, namely White Shark.
The Magistrates Court trial
The trial proceeded on the basis of agreed facts and agreed documents. It was common ground that Hicks caught the two sharks lawfully in 1991 and 1993, that he was the owner of the set of jaws and loose teeth in question, that the Brennan-Kuss were proprietors of Josephine’s Gallery at Coober Pedy and that Hicks placed the jaws and teeth with the Brennan‑Kuss on consignment for sale.
It was also common ground that the Brennan-Kuss offered for sale and that Hicks was in possession of the jaws and teeth within the meaning of section 72(2)(b) and that, at the time the sharks were taken, it was not illegal under any legislation to take White Shark.
There were two issues at trial, each of which turned upon the proper construction of section 72. The first was whether section 72(2)(b) applies to the sale or possession of an aquatic resource which was not of a protected species when taken but is of a protected species at the time of sale or possession. The second was whether, if section 72(2)(b) was breached, there was available a defence under section 72(5)(b)(ii) that the defendants did not know and had no reason to believe that the aquatic resource was taken in contravention of the Act or a corresponding law.
The Magistrate found the defendants guilty of the offence charged and, without recording a conviction, ordered that they enter into a bond to be of good behaviour for 18 months on condition that they reappear for sentence in the event of breach of the bond.
The reasons of the Magistrate
In relation to the construction of section 72(2)(b), the Magistrate characterised the effect of the defendants’ contention as being that additional words should be read into section 72(2)(b) along the lines of “taken in contravention of this Act” after the word protected species.[3] He then reasoned as follows:
If I were to read into the existing provisions the words that Mr Zollo urges me to import, then it would have the effect that any person who may have committed the offences under the 1982 Act who had not been apprehended before that Act was repealed could not be prosecuted.
It is not unrealistic to imagine that a person who sees shark teeth or jaws on display in a retail outlet would come to the conclusion that the sale of such items must be permitted. It is difficult to believe that such a person might, on the strength of those observations head out to sea to catch a white shark. However, the fishing industry is a large one and it appears clear from the report provided to prosecution by Mr. Bruce from the CSIRO that “it is not possible to estimate the elapsed period of time since these sharks were caught and killed”. It seems to me that the objects set out in s.7(1)(a) fit comfortably with the embargo on sale and possession as contained in s.72 as part of the overall conservation strategy, mindful of the difficulties that exist in aging items of this kind for the purpose of prosecution.
Whilst it is not in issue in this particular matter, it is not difficult to envisage a situation where a person, aware of the difficulties associated with aging shark teeth, might offer for sale teeth or jaws taken when it was illegal to do so, on the same basis as that existing in this case. Unfortunately, such things are known to happen.
Having reviewed the evidence and the various authorities put to me, I am of the opinion that the legislation is valid and that the charges are properly brought.[4]
[3] Reasons of Magistrate Kitchin, 8 January 2013 at [8].
[4] Ibid at [14]-[17].
In relation to the construction of the section 72(5)(b) defence, the Magistrate said:
I am also of the view that the defendants cannot invoke the defence provisions as they are unable to rely on the second limb of the defence as provided in s.72(5)(b)(iii). I find all charges proved.[5]
[5] Ibid at [18].
The contentions on appeal
The defendants contend that the object and purposes of the Act are to conserve and protect the aquatic resources of the State. Section 71, which creates the offence of taking an aquatic resource of a protected species, implements the object and purposes in relation to endangered species. Section 71 only applies to the taking of an aquatic resource of a protected species in South Australian waters after the aquatic resource became a protected species. Section 72(2)(b) is ancillary to section 71 extending criminal liability beyond the taker of the protected resource to any person who subsequently sells or has possession of it. Section 72(2)(b) is limited in the same way as section 71, namely to an aquatic resource taken in South Australian waters after the aquatic resource became a protected species.
The defendants’ primary contention is that section 72(2)(b) should be construed such that it only applies to:
1.aquatic resources which were of a protected species when taken; or
2.aquatic resources taken in contravention of the Act or its predecessors; or
3.aquatic resources of which private ownership has not been acquired under section 6 of the Act.
The complainant contends that section 72(2)(b) should be given a literal construction: the offence is committed if a person sells or has possession of an aquatic resource in South Australia which is protected at the time of sale or possession regardless of where or when taken. The complainant points to the contrast in wording between section 72(2)(b) and (c) on the one hand and section 72(1) and (2)(a) on the other hand.
The defendants alternatively contend that the defence that they did not know and had no reason to believe that the aquatic resources were taken in contravention of the Act or a corresponding law is available to them under section 72(5)(b)(ii). The complainant contends that section 72(5)(b) is to be read distributively such that the only available defence in respect of a contravention of section 72(2)(b) is that the defendant did not know and had no reason to believe that the shark jaws and teeth were aquatic resources of a protected species under section 72(5)(b)(iii).
Finally, the defendants make an alternative contention that section 72(2)(b) is beyond the power of the State because there is no territorial nexus between the proscribed conduct and the State. The complainant contends that on its proper construction section 72(2)(b) is confined to sale or possession within the State.
Legislative regime
Section 72 makes it an offence to sell or possess an aquatic resource of a protected species. Section 72 provides:
(1) Subject to this section, if a person sells or purchases an aquatic resource taken in waters to which this Act applies but not under an authority, the person is guilty of an offence.
Maximum penalty: [Penalty Omitted]
…
(2) Subject to this section, if a person sells or purchases, or has possession or control of—
(a) an aquatic resource taken in contravention of this Act or a corresponding law; or
(b) an aquatic resource of a protected species; or
(c) an aquatic resource of a prescribed class,
the person is guilty of an offence.
Maximum penalty: [Penalty Omitted]
…
(3) In proceedings for an offence against subsection (2)—
(a) if it is proved that a person had a commercial quantity of an aquatic resource of any species in his or her possession or control, it will be presumed, in the absence of proof to the contrary, that the person had that aquatic resource in his or her possession or control for the purposes of sale;
(b) if it is proved that a person had a commercial quantity of an aquatic resource of any species in his or her possession or control in circumstances in which it is reasonable to presume that the aquatic resources were taken by that person in waters to which this Act applies, it will be presumed, in the absence of proof to the contrary, that the person took the aquatic resources from such waters.
(4) Regulations made for the purposes of subsection (2)(c) may prescribe a class of aquatic resource comprised of or including an aquatic resource taken elsewhere than in waters to which this Act applies.
(5) In proceedings for an offence against this section, it is a defence if the defendant proves—
(a) —
(i) that the aquatic resources to which the proceedings relate—
(A) were purchased from a person whose ordinary business was the selling of such aquatic resources; and
(B) were purchased in the ordinary course of that business; or
(ii) that the defendant did not take the aquatic resources in contravention of this Act or a corresponding law; and
(b) that the defendant did not know, and had no reason to believe, that the aquatic resources were (as the case may be)—
(i) aquatic resources taken in waters to which this Act applies but not under an authority; or
(ii) aquatic resources taken in contravention of this Act or a corresponding law; or
(iii) aquatic resources of a protected species; or
(iv) aquatic resources of a prescribed class.
(6) In proceedings for an offence against subsection (2) relating to aquatic resources of a class prescribed for the purposes of that subsection, if it is proved—
(a) that the defendant was not—
(i) the holder of an authority authorising the taking of aquatic resources of that class; or
(ii) a registered fish processor; and
(b) that the defendant sold or purchased or had possession or control of more than the prescribed quantity of aquatic resources of that class,
the offence is proved unless the defendant establishes the defence under subsection (5).
The object of the Act is to protect, manage, use and develop the aquatic resources of the State consistently with ecologically sustainable development. Section 7 relevantly provides:
(1)An object of this Act is to protect, manage, use and develop the aquatic resources of the State in a manner that is consistent with ecologically sustainable development and, to that end, the following principles apply:
(a) proper conservation and management measures are to be implemented to protect the aquatic resources of the State from over-exploitation and ensure that those resources are not endangered;
(b) access to the aquatic resources of the State is to be allocated between users of the resources in a manner that achieves optimum utilisation and equitable distribution of those resources to the benefit of the community;
(c) aquatic habitats are to be protected and conserved, and aquatic ecosystems and genetic diversity are to be maintained and enhanced;
(d) recreational fishing and commercial fishing activities are to be fostered for the benefit of the whole community;
(e) the participation of users of the aquatic resources of the State, and of the community more generally, in the management of fisheries is to be encouraged.
…
(5) For the purposes of subsection (1), ecologically sustainable development comprises the use, conservation, development and enhancement of the aquatic resources of the State in a way, and at a rate, that will enable people and communities to provide for their economic, social and physical well-being while—
(a) sustaining the potential of aquatic resources of the State to meet the reasonably foreseeable needs of future generations; and
(b) safeguarding the life-supporting capacity of the aquatic resources of the State; and
(c) avoiding, remedying or mitigating adverse effects of activities on the aquatic resources of the State,
…
The subject matter of the Act is the aquatic resources of the State. Aquatic resources are defined to mean fish or aquatic plants. A fish is defined to mean an aquatic animal other than a bird, mammal, reptile or amphibian. An aquatic animal is defined to mean:
an aquatic animal of any species, and includes the reproductive products and body parts of an aquatic animal.
The Act and Regulations make very few provisions concerning aquatic plants. Occasionally, they apply to aquatic mammals as well as fish (for example, protected species the subject of sections 71(1) and 72(2)(c)). For ease of reference, I use the term “fish” taxonomically incorrectly to mean fish as defined by the Act and, where applicable, aquatic mammals. I ignore aquatic plants and treat aquatic resources and fish synonymously (albeit inaccurately).
The Act applies[6] in relation to waters of the State except land-locked inland waters within single private ownership (other than in respect of taking for a commercial purpose) (“State waters”). Section 5 relevantly provides:
(1) Subject to any limitations expressly prescribed in this Act, this Act applies—
(a) in relation to all waters that are within the limits of the State;
…
(2) This Act does not apply in relation to an activity (other than the taking of aquatic resources for a commercial purpose or the introduction of exotic aquatic organisms or disease in aquatic resources) engaged in relation to inland waters if those waters are surrounded by land that is in the ownership, possession or control of the same person (being a person other than the Crown or an instrumentality of the Crown).
…
[6] This is subject to Commonwealth-State arrangements under Part 4 of the Act which may either extend the operation of the Act into Commonwealth waters or exclude the operation of the Act in relation to State waters.
Section 6 vests ownership of all aquatic resources in the State, but provides for property to pass to the taker where taken under an authority or for which an authority is not required (effectively where taken lawfully). For ease of reference, I treat authorities and licences as synonymous (although there are types of authorities other than licences).
Part 6 creates a system of licensing for commercial fishing and processing. Licences are subject to conditions, which may include limits on fish taken or processed.
Part 7, Division 1 creates offences relating to fishing activities. The offences fall into three broad categories:[7]
1.taking certain fish in certain waters[8] and/or in certain seasons[9] or by certain devices (sections 70 and 71(1)(a));
2 selling or purchasing fish taken other than under an authority (section 72(1)); and
3.selling or purchasing (collectively “dealing with”) or having possession or control (“possession”) of certain fish in certain circumstances (sections 72(2), 73 and 74).
[7] There is a fourth category, namely interfering with certain fish or with the lawful taking of fish (sections 71(1)(b), 71(2) and 75). However, it is relatively uncommon and of no relevance to the present case.
[8] In some cases State waters and in other case a defined subset of State waters.
[9] In some cases in defined seasons and in other cases any time.
Part 7, Division 1 gives to the Regulations an integral role in defining each offence. The identification of fish which cannot be taken by certain devices or in certain waters or in certain seasons under section 70 is left entirely to be prescribed by regulation. The same applies to sections 71, 72, 73 and 74.
Taking fish
Section 70 of the Act provides:
A person must not engage in a fishing activity of a prescribed class.
Fishing activity is defined by section 3(1) to mean:
the act of taking an aquatic resource, or an act preparatory to, or involved in, the taking of an aquatic resource
The Regulations define prescribed classes of fishing activity for the purposes of section 70. They comprise:
(a)taking by the use of certain devices in certain waters at certain times;[10]
(b)taking more than a prescribed number of fish in certain waters per day;[11]
(c)taking certain fish in certain waters at certain times;[12]
(d)taking undersize fish in certain waters.[13]
[10] Fisheries Management (General) Regulations 2007 (SA) Schedule 6, Cl 1-23, 25-29, 36-60, 68-112, 123-126. In some cases in any State waters and in other cases in a defined subset of State waters.
[11] Fisheries Management (General) Regulations 2007 (SA) Schedule 6, Cl 24, 61-67 and 113. In some cases in any State waters and in other cases in a defined subset of State waters.
[12] Fisheries Management (General) Regulations 2007 (SA) Schedule 6, Cl 30-35 and 115-122. In some cases in any State waters and in other cases in a defined subset of State waters.
[13] Fisheries Management (General) Regulations 2007 (SA) r 114. In some cases in any State waters and in other cases in a defined subset of State waters.
Undersize fish are defined by regulation 3 and Schedule 2 generally in terms of length and/or weight depending upon the species. In some cases, they are also defined by reference to the waters from which or the person by whom they are taken. In some cases they are defined by reference to whether they are taken from a jetty, wharf, pier or breakwater (collectively “jetty”). For example, Blacklip Abalone is undersize if:
1. less than 13 cm in length if taken by an unlicensed person;
2. less than 11 cm in length if taken by a licensed person in the Southern Zone Area S;
3. less than 12.5 cm in length if taken by a licensed person in the Southern Zone other than Area S; or
4. less than 13 cm if taken by a licensed person in waters other than the Southern Zone.[14]
Flounder are not undersize if taken by an unlicensed person. It is not unlawful to take fish from a jetty regardless of their size.
[14] Fisheries Management (General Regulations) 2007 (SA), Schedule 2, Cl 5(2) and 6.
Section 71(1)(a) provides:
A person must not‑
(a) take an aquatic mammal or aquatic resource of a protected species.
Protected species are defined by regulation 6 and Schedule 5. They include White Shark (Carcharodon carcharias). In some cases, they are only protected if taken in defined waters (Western Blue Groper) or are females carrying external eggs (Blue Swimmer Crab or Southern Rock Lobster).
Sale or purchase not under an authority
Section 72(1) provides:
Subject to this section, if a person sells or purchases an aquatic resource taken in waters to which this Act applies but not under an authority, the person is guilty of an offence.
This provision ensures that only fish taken by commercial fishers operating under a licence can be sold and bought. It is no element of the offence that the fish have been taken unlawfully. In the case of recreational fishers, the fish will in most cases have been taken lawfully because no licence is required.[15]
[15] Assuming that the fisher did not contravene Schedule 6 of the Regulations in taking the fish.
Dealing and possession
There are three provisions which govern dealings in and possession of fish.
Section 72(2) provides:
(2) Subject to this section, if a person sells or purchases, or has possession or control of—
(a) an aquatic resource taken in contravention of this Act or a corresponding law; or
(b) an aquatic resource of a protected species; or
(c) an aquatic resource of a prescribed class,
the person is guilty of an offence.
For the purpose of section 72(2)(c), prescribed classes of fish comprise:
1. undersize fish listed in Schedule 2 of the Regulations;[16] and
2. fish of a class specified in Schedule 3 of the Regulations.[17]
[16] Fisheries Management (General) Regulations 2007 (SA) r 8(1)(a).
[17] Fisheries Management (General) Regulations 2007 (SA) r 8(1)(b).
The evolution of relevant provisions
Regulation of undersize fish
Fisheries legislation has long protected undersize fish and made it an offence not only to take undersize fish but also to sell or have possession of undersize fish. For many years, the legislation created a composite offence to address taking and selling and/or possession of undersize fish. Section 8 of the Fisheries Act 1878 (SA) created an offence of taking, selling or having possession of undersize fish. Section 39 of the Fisheries Act 1919 (SA) did likewise.
Section 47 of the Fisheries Act 1971 (SA) (“the 1971 Act”) relevantly provided:
(1) The Governor may by proclamation declare that fish of any specified species which do not comply with any minimum dimension or weight specified for fish of that species (whether such dimension or weight is a dimension or weight of the whole fish or any part of the fish) shall be undersize fish within the meaning of this Act.
(2) A person shall not-
(a) except as allowed by proclamation under subsection (4) of this section take any undersize fish;
...
or
(c) sell any undersize fish.
...
(3) If a person takes any undersize fish and returns them to the water forthwith unencumbered in any way and with as little injury as possible he shall not be deemed to have taken those fish in contravention of a proclamation under this section.
(4) The Governor may by proclamation declare that it shall be lawful for any person or any person of a specified class of persons to take undersize fish in accordance with such limitations or conditions as are set out in the proclamation and such limitations or conditions may relate to the waters or place where undersize fish may be taken, the devices which may be used to take such fish, or the number of such fish which may be taken by any person during any period.
The 1971 Act contemplated that the prohibition on taking undersize fish was not absolute, but might apply only to certain persons, certain waters, certain numbers of undersize fish taken over a certain period or taken by certain devices.
The Governor made a proclamation, inter alia, on 30 November 1971 under section 47 of the 1971 Act. The proclamation was amended from time to time until 30 June 1984 when the 1971 Act was repealed by the 1982 Act (“the 1971 Proclamations”). Clause 4 of the 1971 Proclamations defined undersize fish. It excluded certain fish from the definition as follows:
This subparagraph shall not apply to—
(a) undersize fish taken from any jetty, pier, wharf or breakwater abutting land;
(b) undersize fish taken from the drain adjacent to Section 309, hundred of Rivoli Bay which connects Lake George to Rivoli Bay.[18]
[18] Proclamation made inserting this subparagraph on 6 April, 1972.
The 1982 Act created an offence of dealing in fish of a prescribed class. Section 44(2)(b) provided:
(2) No person shall sell or purchase, or have in his possession or control—
(a) ...
(b) fish of a prescribed class.
It was clearly intended that undersize fish would be prescribed as a prescribed class under section 44(2)(b) because dealing in or having possession of undersize fish had always been an offence since 1878 and no other provision of the 1982 Act was apt to serve this purpose. At the time of enacting the 1982 Act, undersize fish were already defined by the 1971 Proclamations under the 1971 Act.
Regulations 21 to 29 of the 1984 Regulations declared fish of various species to be undersize. Regulation 21 excluded from the definition of undersize fish any fish taken from a jetty. In the case of Greenlip Abalone, the definition of undersize depended on inter alia whether they were taken from the western zone or from other State waters.
Regulations no 67 of 1989 amended the 1984 Regulations. The new regulation 7a provided that undersize fish were fish of a prescribed class for the purposes of section 44(2)(b).
On 1 September 2000, the 1984 Regulations were revoked and replaced by the Fisheries (General) Regulations 2000 (“2000 Regulations”). Regulation 7(1) of the 2000 Regulations also provided that undersize fish were fish of a prescribed class for the purposes of section 44(2) of the 1982 Act.
Schedule 6 of the 2000 Regulations contained a list of undersize fish. As under the 1982 Regulations, the 2000 Regulations also defined certain fish to be undersize depending the water from which the fish were taken.
Regulation of protected species
The concept of protected species evolved out of provisions regulating numbers of fish of a particular species which could be taken and prohibitions on taking fish of a particular species in certain seasons, in certain waters or while carrying eggs.
Section 46 of the 1971 Act empowered the Governor by proclamation to declare that it shall not be lawful to take fish of a specified species from South Australian waters or specified waters therein. Section 46 relevantly provided:
(1) The Governor may by proclamation-
(a) ...
(b)...
(c)declare that it shall not be lawful to take any fish or fish of a specified species from any waters or from specified waters at any time during any specified period.
(2) A person shall not take fish in contravention of a proclamation under this section.
Clause 9 of the 1971 Proclamations defined protected species. Clause 9 provided:
It shall not be lawful for any person to take any fish of the species specified in the schedule to this paragraph in the waters appearing opposite those species respectively.
SCHEDULE
Species of fish
Area
All marine mammals including whales, seals and dolphins of every species.
All South Australian waters
Leafy Sea Dragon (Phyllopterix eques)
All South Australian waters
Blue Crab (Portunos Pelagicus) – female carrying external eggs[19]
All South Australian waters
[19] Inserted by proclamation dated 11 December 1980.
Section 42 of the 1982 Act provided:
No person shall take a fish of a class declared by regulation to be protected.
Regulations 6 and 7 of the 1984 Regulations declared the following classes of fish to be protected:
·any marine mammal;
·any leafy sea dragon;
·female blue crabs and southern rock lobsters carrying external eggs; and
·blue groper in defined waters only.
Regulation 6 of the 2000 Regulations (as in force immediately before the enactment of the Act) declared the following classes of fish to be protected:
·fish of defined species or genus;
·female crab, lobster and yabbie if carrying external eggs; and
·blue groper in defined waters only.
The Fisheries (Miscellaneous) Amendment Act 1991 (SA) (“the 1991 Amendment Act”) further amended section 44 of the 1982 Act. One of the amendments was to insert new paragraph (ab) into subsection (2) addressing protected species. Section 44(2)(ab) provided:
(2) Subject to this section, if a person sells or purchases, or has possession or control of-
(a) ...
(ab) fish of a class declared to be protected for the purposes of section 42;
(b) ...
the person is guilty of an offence.
This amendment merely provided a discrete head of power to make regulations specifying protected species separate to the more general head of power under paragraph (b) which already authorised the making of regulations specifying prescribed species for the purposes of the offence of dealing created by subsection 44(2).
Regulation of selling fish not taken commercially under licence
The 1982 Act created for the first time a prohibition on selling fish other than those taken under a commercial licence. Section 44(1) was the predecessor of section 72(1) of the Act. Section 44(1) provided:
(1) No person shall sell or purchase fish taken in waters to which this Act applies unless the fish was taken pursuant to a licence.
[Penalty omitted]
Dealing in fish taken in contravention of Act
The 1982 Act created for the first time offences of dealing in fish taken in contravention of the Act. Section 44(2)(a) of the 1982 Act was the predecessor of section 72(2)(a) of the Act. Section 44(2)(a) provided:
(2) No person shall sell or purchase, or have in his possession or control-
(a) fish taken in contravention of this Act;
The defence of honest and reasonable belief
The Fisheries Act Amendment Act 1988 (SA) (“the 1988 Amendment Act”) substituted a new section 44 into the 1982 Act. Existing subsections (1) and (2) were re-enacted in substance. A new defence was created. New subsection (3) provided:
(3) In proceedings for an offence against subsection (1) or (2), it is a defence if the defendant proves-
(a) that the fish to which the proceedings relate were purchased from a person whose ordinary business was the selling of such fish;
(b) that the fish were purchased in the ordinary course of that business; and
(c) that the defendant did not know, and had no reason to believe, that the fish were, as the case may be-
(i) fish taken in waters to which this Act applies but not pursuant to licence;
(ii) fish taken in contravention of this Act;
or
(iii) fish of a prescribed class.
Construction of section 72(2)(b): temporal limitation
The defendants’ first contention is that section 72(2)(b) of the Act is subject to both geographical and temporal limitations. It is confined to fish taken from State waters because section 6 confines the operation of the Act generally to apply in relation to State waters. It is confined to fish which, at the time of taking, were of a protected species because that is the relevant date at which it is to be ascertained whether the fish are of a protected species. These limitations are in accordance with the evident purpose of section 72(2)(b) and of the Act generally.
The complainant conversely contends that section 72(2)(b) is not subject to any geographical or temporal limitations. It applies to a person who deals in or has possession of a fish of the species White Shark even if the fish was taken before White Shark was declared to a protected species and even if the fish was taken elsewhere in the world. To take an extreme hypothetical case, an offence is committed by a person who brings into South Australia a fossilised tooth from a White Shark found in the waters off Maine in the Atlantic north-east which lived 15 million years ago.
The complainant points to the fact that the subject matter of each of section 72(2)(b) and (c) is expressed simply to be fish of a protected species or fish of a prescribed class without further limitation. Neither provision is expressed to be confined to fish taken in State waters (in contrast to section 72(1))[20] or to fish which were of a protected species or prescribed class at the time they were taken. Neither provision is expressed to be limited to fish taken in contravention of the Act (in contrast to section 72(2)(a)). In both cases, it is sufficient to constitute an offence that a person deals in or has possession of a fish which, at the time of the dealing or possession, is of a protected species or a prescribed class, regardless of where and when taken.
[20] See s 5 of the Act.
Geographical limitation
In the present case, it is common ground that the two sharks were caught by Hicks in South Australian waters. Any geographical limitation in respect of the waters from which fish the subject of a charge under section 72(2) of the Act were taken does not directly arise. However, both parties made extensive submissions on this issue of construction. This is because, if there is a geographical limitation, there is more likely to be a temporal limitation and, if there is no geographical limitation, there is less likely to be a temporal limitation. While ultimately the issue of a temporal limitation must be considered on its merits, it is useful to address first the issue of construction as to a geographical limitation.
Section 5(1)(a) provides that the Act applies in relation to State waters. Section 5 operates as an overriding limitation upon the operation of specific provisions of the Act. For example, section 70 is not expressed to have any geographical limitation. It simply provides “a person must not engage in a fishing activity of a prescribed class” and “fishing activity” is simply defined as the act of taking an aquatic resource. However, section 70 must be read subject to section 5 such that it is not an offence to engage in a fishing activity other than in relation to State waters. The same applies to section 71(1)(a), which is limited by virtue of section 5 to taking fish of a protected species from State waters. By virtue of section 5(2), it is not an offence to take fish which would otherwise be in contravention of section 70 or section 71(1)(a) if they are taken other than for a commercial purpose from a land‑locked lake or dam wholly within the ownership of one person.
The evident purpose of section 72(2)(b) is to create a “downstream” offence in respect of the principal offence created by section 71(1)(a). If an offence is created of taking a fish of a protected species, the evident purpose of creating an offence of dealing in or having possession of a fish of a protected species is to discourage the taking in the first place. The offence of dealing or possession can be contrasted with an offence of possession or sale of harmful chemicals where the harm ultimately being addressed is the use of the harmful chemicals and manufacture, sale or possession is an “upstream” offence. Similarly, the evident purpose of creating an offence of dealing in or having possession of undersize fish is to discourage the taking of undersize fish as proscribed by section 70.
Undersize fish
Paragraphs (b) and (c) of section 72(2) have a similar structure and, insofar as paragraph (c) is addressed to undersize fish, have a similar purpose and perform a similar function. The proper construction of one paragraph is likely to inform the proper construction of the other. For this reason, I consider the proper construction of section 72(2)(c) of the Act insofar as it addresses undersize fish before coming to construe section 72(2)(b) of the Act. The predecessor of section 72(2)(c) was section 44(2)(b) of the 1982 Act. There was nothing in the 1982 Act which suggested that the provision was intended to apply to fish of a prescribed class other than those taken from South Australian waters. Undersize fish were listed as a prescribed class for the purpose of section 44(2)(b).[21] Undersize fish were defined by Part 7 (regulations 21 to 29) of the 1984 Regulations.
[21] Fisheries (General) Regulations 1984, regulation 7a (inserted in 1989).
The definition of Greenlip and Blacklip Abalone as undersize under the 1984 Regulations depended on the waters from which they were taken. Under the 2000 Regulations (in force until 30 November 2007 when the Act was passed), Greenlip Abalone was undersize if taken from the Western Zone if less than 14.5 centimetres (as opposed to 13 centimetres if taken in other State waters). Blacklip Abalone was undersize if taken by a licensed person from the Southern Zone Area S if less than 11 cm or from the Southern Zone outside Area S if less than 12.5 cm. Blacklip Abalone was undersize if taken by a licensed person from other State waters or by an unlicensed person from any State waters if less than 13 cm. This strongly suggests that the offence of dealing in undersize abalone depends in turn on the waters from which the abalone were taken. It would be incongruous to construe section 44(2)(b) of the 1982 Act and section 72(2)(c) of the Act as creating an offence of having possession of Greenlip Abalone outside the Western Zone which had been lawfully taken at 14 cm in the Western Zone.
Under the Act and the Regulations, a distinction is still drawn in defining undersize Blacklip and Greenlip Abalone according to whether it is taken from the Southern Zone or the Western Zone.[22] There is also a distinction in the definition of undersize Rock Lobster, Cockles, Mulloway and King George Whiting according to the waters from which they were taken. Under the Act, it would be also incongruous if it were not an offence to take undersize fish from a land-locked lake but it were an offence to have possession of them.
[22] Fisheries Management (General) Regulations 2007. Schedule 2, clauses 5 and 6.
Section 72(4) of the Act explicitly empowers regulations prescribing a class of fish for the purposes of section 72(2)(c) to prescribe a class of fish taken elsewhere than in State waters. This suggests that, unless the regulations otherwise provide, section 72(2)(c) is limited in its operation to dealing in or possession of fish of a prescribed class (such as undersize fish) taken from State waters. If the Regulations made under section 72(4) prescribe a class of aquatic resource taken elsewhere than in State waters, it is implicit that section 72(2)(c) is limited in its operation to the dealing in or having possession of fish of a prescribed class taken from the waters defined by the Regulations made under section 72(4).
It is conceivable that a legislature might chose to make it an offence to deal in fish which are undersize (or of a protected species) regardless of where or when they were taken and regardless of whether it was unlawful to take them at the time they were taken. It is conceivable that a legislature might make a policy decision that such dealings should be outlawed so as not to encourage the taking of undersize fish (or fish of a protected species) after it has become unlawful to do so. However, there is nothing in the objects or the structure of the Act which suggests that the legislature adopted such a policy in the enactment of section 44(2) of the 1982 Act or section 72(2) of the Act. The objects and general operation of those Acts are confined to fish taken from South Australian waters as described at [22] to [25] above.
Fish of a protected species
The predecessor of section 72(2)(b) was section 44(2)(ab) of the 1982 Act.[23] There was nothing in section 44(2)(ab) which suggested that it extended to fish of a protected species taken other than from State waters. At the time of the amendment in 1991, protected fish were defined by regulations 6 and 7 of the 1984 Regulations. Protected fish included Blue Groper, but only if taken from defined waters. It would be incongruous if section 44(2)(ab) created an offence of dealing in or having possession of Blue Groper taken from waters in which it was lawful to take them under regulation 7. Under the Act and Regulations, Blue Groper remain protected but only if taken from the same defined waters.
[23] Inserted by the 1991 Amendment Act.
The predecessor of section 72(4) was introduced into the 1982 Act in 1991 (as section 44(2a)) at the same time as the predecessor of section 72(2)(b) was introduced. The fact that both the 1982 Act and the Act do not empower regulations to prescribe protected species as being taken elsewhere than from State waters suggests that the prohibition on dealing in or having possession of protected species is confined to fish taken from State waters.
The fact that section 72(1) refers explicitly to fish “taken in waters to which this Act applies” does not indicate that section 72(2) is not so limited. Section 72(1) addresses a quite different subject matter to section 72(2). Section 72(1) addresses fish taken other than under a commercial license, which will usually have been taken lawfully. It addresses dealing but not possession.
Confining section 72(2)(b) to fish taken from State waters is consistent with the overall approach taken by sections 5 and 7 of the Act that the concern is about protecting the aquatic resources of the State and fish taken from State Waters rather than about the aquatic resources of Australia or the world.
Temporal limitation
Undersize fish
Undersize fish are defined by Schedule 2 of the Regulations. In some cases, they are defined by reference to length. It is apparent that the reference to length is a reference to the length of the fish at the time it is taken. If the fish were to bloat or shrink after being taken increasing or decreasing its length, it would be irrational to use the increased or decreased length after death to define whether the fish is undersize for the purpose of section 72(2)(c). Similarly, where undersize fish are defined by reference to weight, it would be irrational to refer to the increased or decreased weight of the fish after death to ascertain whether it is undersize for the purpose of section 72(2)(c). The question whether the fish falls within the definition of undersize is to be determined at the time of taking and not at the time of dealing or possession. Equally, the question of the lawful dimensions should be determined as at the time of taking and not as at the time of dealing or possession. For example, if the definition of undersize King George Whiting at the time of taking was under 30 centimetres but at the time of possession is 28 centimetres, it would be irrational to use the latter length for the purpose of determining whether the whiting is undersize under section 72(2)(c).
Protected species
Similar considerations apply to determining whether a fish is “of a protected species” for the purposes of section 72(2)(b). At the time of enactment of section 44(2)(ab) of the 1982 Act in 1991, protected species included female Blue Crabs and female Southern Rock Lobster “carrying external eggs”. The reference to carrying external eggs must be to crabs (and lobster) at the time of taking and not at some later time of dealing or possession at which the external eggs have been removed. This confirms that, to determine whether a person has dealt in or had possession of fish of a protected species, the question is whether the fish fell within the definition of protected species at the time of taking.
Section 6 of the Act provides that property in aquatic resources of the State passes to the taker when taken in accordance with a licence or where no licence is required. Where (as in the present case) a fish has been taken lawfully under a licence and property vested in the person taking the fish, it is an unlikely intention to attribute to the legislature that it becomes unlawful for that person to have possession of the property merely because the fish is of a species which later becomes protected. While this consideration would not stand in the way of an explicit provision or necessary intendment, it tends to support a construction of section 72(2)(b) as only applying to fish taken when they were of a protected species.
The complainant relies upon the absence of the words “taken in contravention of this Act” from section 72(2)(b) and (c) in contrast to section 72(2)(a). However, in section 72(2)(a) those words are essential because they represent the only qualification to an aquatic resource of which a person has possession or in which a person deals. Without those words, it would be an offence merely to deal in or have possession of any aquatic resource. By contrast, section 72(2)(b) and (c) are confined to aquatic resources of protected species and prescribed classes respectively.
It might be contended that, if section 72(2)(b) is to be read as confined to fish taken from State waters when they were protected, paragraph (b) does not perform any substantive work over and above that performed by paragraph (a). However, paragraphs (a) and (b) represent different approaches from different directions. The approach of paragraph (a) is from the perspective of the taking having been in contravention of the Act or a corresponding law. The approach of paragraph (b) is of the fish being of a protected species. The mere fact that largely the same conduct would be caught in the different nets cast by each paragraph approaching the matter from different directions does not necessarily mean that paragraph (b) should be construed in a manner contrary to the construction which would otherwise be appropriate. While this consideration should be given weight, it does not outweigh the factors identified above pointing in favour of a construction of paragraph (b) as applying to fish being of a protected species when taken from State waters.
It is appropriate to have regard to the explanation by the responsible Minister in the second reading speech to assist in ascertaining the purpose of and mischief addressed by legislation.[24] However, the words of a Minister must not be substituted for the text of the law.[25] This would be inappropriate because it goes beyond ascertaining the purpose of the legislation to give weight to a specific meaning put by a Minister upon a specific provision contained in a Bill which was ultimately enacted.
[24] Hoare v The Queen (1989) 167 CLR 348 at 360 per Mason CJ, Deane, Dawson, Toohey and McHugh JJ; Owen v State of South Australia (1996) 66 SASR 251 at 255-256 per Cox J (Prior J agreeing).
[25] Quoted from ReBolton; ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ, (see also 532 per Deane J) approved in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [33] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.
The new section 44(2)(ab) inserted into the 1982 Act in 1991 made it an offence to deal in or have possession of a protected fish. In his Second Reading Speech introducing the Bill which became the 1991 Amendment Act, the Minister explained the mischief addressed by and purpose of this amendment as follows:
10. Possession of Protected Fish.
Under existing provisions of the Act, it is an offence for a person to take protected fish. Examples of protected fish include seals, dolphins, whales and leafy sea dragons.
Under the evidentiary provisions of the Act, if it is proved that a protected fish was in the possession or control of a person in proximity to waters, it shall be presumed, in the absence of proof to the contrary, that the fish was taken by that person. The evidentiary provisions do not assist in situations where a person is not in proximity to any waters. In such circumstances, the department’s ability to successfully prosecute offenders could be compromised by not having a specific provision which makes it an offence to be in possession of protected fish. Given the serious nature of taking protected fish the legislation should make it quite clear that not only is the taking of protected fish an offence, but also being in possession of such fish would be an offence.
It is recognised that in some instances, persons would be in possession of fish that were not taken unlawfully at the time, for example, a leafy sea dragon taken prior to such fish being declared as a protected species. Defence provisions have been included to cover such situations.
It is proposed that section 44 be varied to make the possession of declared protected fish an offence.[26]
[26] Parliamentary Debates, House of Assembly, 20 August 1991, page 287.
This explanation makes it clear that it was intended that it would not be unlawful to be in possession of fish which had been taken before they became a protected species. This reinforces the construction already derived from the wording, structure, context and evident purpose of section 72(2)(b).
Construction of s 72(2)(b): taken in contravention of the Act
In the alternative to their first contention that section 72(2)(b) has no application to a fish taken before it became a protected species, the defendants contend that section 72(2)(b) should be read as referring to an aquatic resource of a protected species not taken lawfully under the fisheries legislation.
An obvious obstacle in the way of the defendants’ contention is that these words do not appear in either subsection (2)(b) and (c) but similar words do appear in subsection (2)(a). However, if subsections (2)(b) and (c) are not read in the manner contended by the defendants, substantial difficulties arise.
Undersize fish
Section 72(2)(c) applies, and its predecessor section 44(2)(b) applied, to undersize fish. The definition of undersize fish under the 1982 Act was effected by regulations 21 to 29 of the 1984 Regulations. Under Regulation 21, fish were excluded from the definition of undersize fish if taken from a jetty. Similarly, under the 1971 Act, clause 4 of the 1971 Proclamations had excluded fish from the definition of undersize fish if taken from a jetty. It would be incongruous if it were an offence under section 44(2)(b) of the 1982 Act, and if it is an offence under section 72(2)(c) of the Act, to have possession of fish which were lawfully taken from a jetty.
Under the 1971 Proclamations, 1984 Regulations and 2000 Regulations, the definition of undersize fish depended in some cases upon the waters from which they were taken. It would be incongruous if it were an offence to have possession of 14 cm Greenlip Abalone because they are undersize if taken from the Western Zone but they had in fact been lawfully taken from the Southern Zone. It would be incongruous if it were an offence to have possession of 12 cm Blacklip Abalone because they are undersize if taken by a licensed person from the Southern Zone within Area S but which were in fact lawfully taken by an unlicensed person.
These considerations suggest that, on its proper construction, section 72(2)(c) does not apply to the possession of undersize fish which were lawfully taken.
Protected species
I turn to section 72(2)(b) which addresses dealing in or possession of fish of a protected species. At the time of the enactment of its predecessor (section 44(2)(ab) of the 1982 Act) in 1991, protected fish were defined by regulations 6 and 7 of the 1984 Regulations. Blue Groper were only protected if taken from defined waters. It would be incongruous if section 44(2)(ab) applied to the possession or sale of Blue Groper which had been lawfully taken from State waters other than the waters specified in regulation 7(2). Under the Act and Regulations, Blue Groper is still protected only if taken from the same defined waters. Similarly, protected species can be lawfully taken from a land-locked lake. These considerations suggest that, like section 72(2)(c), section 72(2)(b) only applies to protected fish which were not lawfully taken under the fisheries legislation.
The complainant contends that the defendants’ construction of paragraphs (b) and (c) effectively reads into those paragraphs words to the effect “not taken lawfully under this Act or a predecessor Act” and that the words read into those paragraphs are very similar to the words which appear in paragraph (a), namely “in contravention of this Act or a corresponding law”. The complainant also contends that, on this construction, paragraphs (b) and (c) are given no work to do which is not already achieved by paragraph (a).
The defendants’ construction of paragraphs (b) and (c) does give those paragraphs additional work to do beyond that achieved by paragraph (a). The Act only came into operation on 1 September 2007. On the defendants’ construction, it would be an offence under paragraphs (b) and (c) for a person to deal in or have possession of undersize fish or fish of a protected species which had been taken in contravention of the 1982 Act or indeed of the 1971 Act or its predecessors. On the defendants’ construction, if Hicks had taken the sharks in 1998, he would be guilty of an offence in contravention of section 72(2)(b) on his construction of that provision but he would not be guilty of an offence in contravention of paragraph (a).
Even if paragraphs (b) and (c) did not have additional work to do beyond that already achieved by paragraph (a), it does not necessarily follow that the complainant’s construction of those paragraphs should be adopted. As observed at [76] above, paragraph (a) on the one hand and paragraphs (b) and (c) on the other hand approach the question of dealing and possession from quite different directions. The mere fact that, in the majority of cases, the same conduct will comprise an offence against both sets of provisions does not require that an irrational construction be adopted of paragraphs (b) and (c).
In the case of paragraph (a), without the addition of the words “taken in contravention of this Act or a corresponding law”, prima facie it would otherwise be an offence for any person to deal in or having possession of any fish whether taken under a licence or without the need for any licence or otherwise. The paradigm case in which paragraph (a) operates is where it is not inherently unlawful to take the fish as such and the lawfulness of taking will depend upon whether a licence is required and, if so, whether the taker held a licence. It was therefore both natural and essential that the offence be confined to the taking of fish in contravention of the Act (or a corresponding law). By contrast, the paradigm case addressed by paragraphs (b) and (c) and the one most obvious to the legislature was where there was an absolute prohibition upon the taking of undersize fish or fish of a protected species. It was not obvious that words to the effect “taken unlawfully” needed to be added explicitly to those paragraphs and it may well be said that the addition of those words went without saying.
I conclude that, if section 72(2)(b) and (c) are not confined to fish taken from State waters which were of a protected species or prescribed class at the time of taking (in accordance with the construction I have adopted at [73] above), those provisions should be read as not applying to fish which were taken lawfully under the fisheries legislation (the Act or a predecessor).
Construction of s 72(2)(b): private ownership
In the alternative to their first and second contentions, the defendants contend that section 72(2)(b) of the Act should be construed so as not to apply to aquatic resources of which private ownership has been acquired under section 6 of the Act.
While the operation of section 6 is a factor which I have taken into account in relation to the defendants’ earlier contentions,[27] if they were to be rejected, there would be no warrant for reading section 72(2)(b) as being excluded from applying to aquatic resources in which private ownership has vested under section 6.
[27] See [74] above.
Defence under section 72(5)
In the alternative to their principal contention concerning section 72(2), the defendants contend that they made out the defence under section 72(5).
This issue only arises if section 72(2)(c) is not construed as being confined to fish which were protected at the time they were taken or to fish taken unlawfully. For the purposes of this section of my judgment, I assume that section 72(2)(c) is not to be so construed.
Section 72(5) of the Act provides:
(5) In proceedings for an offence against this section, it is a defence if the defendant proves—
(a) —
(i) that the aquatic resources to which the proceedings relate—
(A) were purchased from a person whose ordinary business was the selling of such aquatic resources; and
(B) were purchased in the ordinary course of that business; or
(ii) that the defendant did not take the aquatic resources in contravention of this Act or a corresponding law; and
(b) that the defendant did not know, and had no reason to believe, that the aquatic resources were (as the case may be)—
(i) aquatic resources taken in waters to which this Act applies but not under an authority; or
(ii) aquatic resources taken in contravention of this Act or a corresponding law; or
(iii) aquatic resources of a protected species; or
(iv) aquatic resources of a prescribed class.
It was and is common ground that the defendants proved at trial that they did not take the sharks in contravention of the Act or a corresponding law and hence satisfied the first limb in paragraph (a) (subparagraph (ii)).
The issue at trial was and the issue on appeal is whether the defendants had available to them under the second limb of the defence (subparagraph (ii)) that they did not know and had no reason to believe that the sharks were taken in contravention of the Act or a corresponding law. They contend that either subparagraph (ii) or subparagraph (iii) of paragraph (b) is applicable to a charge of a contravention of section 72(2)(b) and they can rely upon either subparagraph. The complainant contends, and the trial Judge held, that section 72(5)(b) is to be read distributively, such that only paragraph (iii) is available in respect of a charge of a contravention of section 72(2)(b).
There is an obvious correlation between the four subparagraphs of section 72(5)(b) and the offences created respectively by subsections 72(1), (2)(a), (2)(b) and (2)(c). Some of the matters the subject of the subparagraphs of subsection (5)(b) are simply inapplicable to some of the contraventions. For example, it is irrelevant to a charge of possession of aquatic resources of a prescribed class that the defendant did not know that the aquatic resources were aquatic resources of a protected species, and vice versa. In addition, a reference to not knowing that aquatic resources were taken in contravention of the Act tends to connote that they were in fact taken in contravention of the Act.
On the assumption (contrary to my finding) that section 72(2)(b) applies to fish lawfully taken before the species became protected, there are difficulties in adopting a simple distributive reading of subsection (5)(b) in its application to the offences created by subsection (2). Those difficulties are the difficulties identified at [64], [65], [68], [72] and [73] above. If subsection (5)(b) is read distributively, all of the anomalies identified at [82], [83] and [85] above will arise in relation to undersize fish and fish of a protected species which were taken lawfully before the species became protected.
If I had concluded that the defendants prima facie committed an offence by having possession of the jaw and teeth of the sharks notwithstanding that they were taken before White Shark became a protected species, I would have been inclined to construe subsection (5) as distributive in accordance with the complainant’s contention. However, as this appeal should be allowed on the basis of the defendant’s principal contention, I refrain from expressing a final view on this issue of construction.
Validity and extraterritoriality
In the alternative to their contentions concerning the proper construction of subsections 72(2) and (5), the defendants contend that section 72(2)(b) is invalid as exceeding the legislative power of the State.
The State legislature has power to make laws for the peace, welfare and good government of South Australia.[28] The State legislature has power to enact laws having extraterritorial operation provided that there is a connection (even general or remote) with the peace, order and good government of the State.[29]
[28] Constitution Act 1934 (SA) s 5; Commonwealth Constitution s 107; the Australian Constitutions Act 1850 (Imp) s 14; Australia Act 1986 (Cth) s 2(1).
[29] Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 13-14 per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ; Port MacDonnell Professional Fishermen’s Association Inc and Anor v South Australia and Anor (1989) 168 CLR 340 at 369-373 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1 at [9]-[12] per Gleeson CJ, [45]-[48] per Gaudron, Gummow and Hayne JJ. Compare the approach of Kirby J at [102]-[143] and of Callinan J at [184]-[189].
On its proper construction, section 72(2)(b) should be read as being confined to dealing or possession in South Australia. No issue of invalidity on the ground of extraterritorial operation arises.
Conclusion
I allow the appeal. I set aside the orders of the Magistrate and substitute a verdict of acquittal.
I will hear the parties as to consequential orders.
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