Brown, Graeme Maxwell v Tyrer, Mark Christopher; Tyrer, Mark Christopher v Brown, Graeme Maxwell

[1999] TASSC 19

[1999] TASSC 19

PARTIES:  BROWN, Graeme Maxwell

v
TYRER, Mark Christopher

and
  TYRER, Mark Christopher

v
BROWN, Graeme Maxwell

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 58/1998

LCA 79/1998

DELIVERED:  3 March 1999
HEARING DATE/S:  11 and 12 February 1999
JUDGMENT OF:  Evans J

CATCHWORDS:

Statues - Acts of Parliament - Operation and effect of statutes - Retrospective operation - Declaratory and validating acts - Effect on proceedings - Fisheries prosecution.

Fisheries Rules (Validation) Act 1997 (Tas).
Living Marine Resources Management Act 1995 (Tas).
Brown v Petrie (No 2) 142/1998, referred to.
Aust Dig Statutes [75]

Statutes - By-law and regulations - Validity - Ultra vires in general - General principles - Whether subject matter of rule within the scope of the rule making power.

Green v Davies, 91/1997, referred to.

Fisheries Rules 1996 (Tas), rr29(1)(b), 32(a).
Aust Dig Statutes [131]

REPRESENTATION:

Counsel:
             Graeme Maxwell Brown
             (Applicant LCA 58/1998;
             Respondent LCA 79/1998):  F C Neasey
             Mark Christopher Tyrer

(Respondent LCA 58/1998;
Applicant LCA 79/1998):  W A Ayliffe

Solicitors:
             Graeme Maxwell Brown:  Director of Public Prosecutions
             Mark Christopher Tyrer:  Ayliffe & Ayliffe

Judgment category classification:
Judgment ID Number:  [1999] TASSC 19
Number of pages:  5

Serial No 19/1999

File No LCA 58/1998
LCA 79/1998

GRAEME MAXWELL BROWN v MARK CHRISTOPHER TYRER
MARK CHRISTOPHER TYRER v GRAEME MAXWELL BROWN

REASONS FOR JUDGMENT  EVANS J

3 March 1999

1. These appeals arise from the prosecution of Mark Christopher Tyrer ("the defendant") on the following charges:

"1        Charge:  Failed to have copy of diver's docket when in possession of excess abalone.

Breach of:  Rule 29 (1) (b) Fisheries Rules, 1996

Particulars:  You are charged with on the 14^th April, 1997 at Hobart Airport in Tasmania possessing more than twenty abalone of the genus Haliotis, namely two thousand, four hundred and fifteen (2,415) abalone and you did not have the third copy of the diver's docket relating to the abalone with the abalone to which the docket related.

2CHARGE:  Possess abalone meat, other greenlip abalone meat, that was less than 90 grams in weight.

BREACH OF:  Rule 32 (a) Fisheries Rules, 1996.

PARTICULARS:  You are charged with on the 14^th April, 1997 at Hobart Airport in Tasmania having possession of abalone meat of the genus Haliotis, which consisted of 606 Blacklip Abalone Meats, other than greenlip abalone meat, each of which was less than 90 grams in weight."

1. On the close of the prosecution's case, it was submitted on behalf of the defendant that he had no case to answer on either charge.  The learned magistrate found that the defendant had a case to answer on the r29(1)(b) charge, but dismissed the r32(a) charge, as he considered that that rule was ultra vires.

1. Both parties have appealed.  The threshold issue is whether the rules on which the charges are based are valid.

1. Over the years, there have been a number of challenges to the validity of regulations and rules governing fishing in this State, and Parliament has on several occasions passed retrospective legislation validating the same.  The Fisheries Amendment Act 1986, retrospectively validated regulations referable to crayfish. The predecessor to r29(1)(b), Sea Fisheries Regulations, reg44(1)(oc), has been the subject of retrospective legislation.  Regulation 44(1)(oc) was added to the Sea Fisheries Regulations on 12 December 1988, by Statutory Rules 1988, number 227.  That regulation, as amended, was held to be ultra vires in Graham v Davies A55/1995.  By the Fisheries Amendment Act 1995, s5, Parliament retrospectively validated the regulation.  The efficacy of that legislation was unsuccessfully challenged in Green v Davies, 91/1997.  The Sea Fisheries Regulations were made pursuant to the Fisheries Act 1959. That Act was repealed by the Living Marine Resources Management Act 1995. On 20 May 1996, the responsible Minister purported to make the Fisheries Rules 1996, under the Living Marine Resources Management Act 1995. Unfortunately, that Act did not commence until 31 May 1996, so there was no legislative authority for the Fisheries Rules 1996.  This resulted in the dismissal of a number of prosecutions for breaches of those rules.  See Brown v Petrie (1997) 7 Tas R 216. Parliament was prompted into action. The Fisheries Rules (Validation) Act 1997 was enacted. Section 3 of that Act provides:

"Validation of Fisheries Rules

3         The Fisheries Rules 1996 purportedly made under the Living Marine Resources Management Act 1995 are taken to be validly made and are valid as if they had been declared to constitute an interim management plan under section 45 of that Act with effect from 31 May 1996."

1. Counsel for the defendant submits that s3 does not validate the rules which, at the time of its enactment, purported to constitute the Fisheries Rules 1996 ("the Rules"). As I understand counsel's submission, he contends that the words "are valid as if they had been declared to constitute an interim management plan under section 45 of that Act with effect from 31 May 1996," confine the impact of the provision to making the Rules a valid interim management plan. This submission denies any meaning to the preceding words "are taken to be validly made". It is apparent from s3 that Parliament had two separate and distinct objectives in mind:

(i)        establishing the validity of the Rules; and

(ii)       giving the Rules effect as an interim management plan.

I can find no justification for reading the section in a manner which does not achieve both of these objectives.

1. An alternative submission advanced by counsel for the defendant is that the words, "The Fisheries Rules 1996 purportedly made under the Living Marine Resources Management Act 1995 are taken to be validly made …", should be construed as meaning that the Rules are taken to be validly made under that Act, but that the validity of each rule contained in the Rules is dependent upon the rule making powers contained in the Act. On this basis, it would be open to challenge the validity of individual rules on the grounds that they were ultra vires the rule making powers in the Living Marine Resources Management Act 1995. An intention to leave the validity of each separate rule open to challenge is not consistent with the stipulation that the Rules are validly made. Nothing in the Fisheries Rules (Validation) Act 1997 suggests to me that Parliament intended to derogate from an unqualified retrospective validation of all of the rules. I reject the submission.

1. In Brown v Petrie (No 2) 142/1998, Underwood J said that the terms of the Fisheries Rules (Validation) Act 1997, s3, very clearly reflect an intention on the part of Parliament to retrospectively vest the court with jurisdiction. The whole point of the legislation was to make unlawful, as from 20 May 1996, the conduct proscribed by the rules. I agree with Underwood J. I should add that it is apparent from the following passage from the Minister's speech to the House of Assembly when the Fisheries Rules (Validation) Act Bill was read for the second time that Parliament intended the Rules to be validated with retrospective effect:

"Validation of the rules is not unreasonable because the intention of the rules has always been clear.  They were a carryover of most of the lapsed Sea Fisheries Regulations 1962 done in full consultation with industry and with their approval.

There can be no argument that the Government is attempting in any way to make some form of retrospective policy change through this legislation.  It is simply a matter of correcting an error to ensure that the laws can be applied in the manner that they were understood to apply at the time.  The effect of validating the rules will be to enable a significant number of cases to be progressed through the courts.  These cases involve charges which either have been or are still to be lodged for alleged breaches of the rules during the period of concern.  Charges which have already been dismissed will of course not be open to prosecution again as a result of this legislation.

There are about 40 cases involving nearly 200 offences.  While the majority of the cases involve relatively minor offences, there are a few charges relating to significant use of excess fishing gear and serious abalone quota offences.  I am sure that both the industry and the general community would be very concerned if these more serious cases were to be lost because of a deficiency in the law.

It is the Government's firm desire that all these cases should be proceeded with.  As I indicated, there is no retrospective change in policy, this bill simply validates what was considered to be law for the period 31 May 1996 to 11 June 1997"

1. Further grounds advanced in support of the defendant's appeal against the learned magistrate's ruling that the defendant had a case to answer on the r29(1)(b) charge are that:

"1The Learned Magistrate erred in law in holding that Rule 29(1)(b)(i) applied to any person rather than construing the law as applying only to processors.

2The Learned Magistrate erred in law and in fact in failing to hold that Rule 29(1)(b) was limited to fish taken in state waters."

1. At the relevant time, r29(1) was as follows:

   "29      (1)       A person must not –

   (a)in State waters, take more than 10 abalone in any one day, unless the person is the holder of a fishing licence (abalone dive); or

   (b)have possession of more than 20 abalone unless the person –

   (i)has the third copy of the diver's docket which relates to the abalone; or

   (i)has the third copy of the diver's docket relating to the abalone with the abalone to which the docket relates; or

   (ii)has a receipt relating to the purchase of the abalone from a fish merchant with the abalone to which the receipt relates; or

   (iii)is the holder of a fishing licence (abalone dive) who has taken the abalone under that licence and the abalone have not been landed.

   Penalty:Fine not exceeding the applicable Grade 3 penalty."

2. Whilst the drafting of the particulars of the r29(1)(b) charge are unsatisfactory, it was accepted by the prosecution that its obligation was to establish that the defendant had the abalone in his possession in circumstances other than those authorised by subpars(i), (ii) and (iii) of the rule, and evidence was adduced to that end.

1. In developing his argument that r29(1)(b) did not apply to any person and should only be construed as applying to a processor, counsel for the defendant embraced the proposition that the rule should be construed as applying only to those who came within the categories of people who were potentially able to avoid breaching it by satisfying the requirements of subpars(i), (ii) or (iii).  Although processors are not expressly referred to in subpar(i), counsel submitted that they are the only people who could avail themselves of it because a diver is obliged to deliver the third copy of the diver's docket to a processor, who is in turn obliged to retain the docket for five years.  See rr25(1)(d), 26 and 26A(3) and (4).  Purchasers of abalone from a fish merchant are said to be the only people who may be able to rely on subpar(ii); and holders of a fishing licence (abalone dive) are the only people who may be able to rely on subpar(iii).  Counsel submits that people other than processors, purchasers and licensed divers could legitimately be in possession of abalone and it would be unjust if they could be held to be in breach of r29(1)(b).  He says that a carrier transporting abalone for a diver or a processor would be unable to satisfy subpars(i), (ii) and (iii).  A processor could not provide a carrier with the third copy of the diver's docket as the processor is obliged by r26A(4)(c) to retain that docket for five years.  In any event, as the catch to which a diver's docket relates is split up, it is not possible for the third copy of the diver's docket to accompany each portion of the catch.  Whilst the Fisheries (General and Fees) Regulations, reg11, makes provision for the export of abalone accompanied by a docket in the approved form issued by the exporter, that docket does not afford anyone protection pursuant to subpars(i), (ii) or (iii) of r29(1)(b).  Counsel for the defendant submits that because of potential injustice to persons who are not within the categories of people who can obtain protection under the subparagraphs, but who are legitimately transporting or handling abalone, r29(1)(b) should be construed as applying only to people who may be able to satisfy the requirements of the subparagraphs, that is, processors, purchasers or licensed divers.

1. Whilst r29(1)(b) may give rise to difficulties in some circumstances, the difficulties are overstated.  In conjuring up problems for a hypothetical carrier of abalone, counsel assumes that the carrier would be held to be in the possession of the abalone.  A finding of possession depends on the circumstances of the particular case.  In many instances a carrier would have no more than custody or control of the abalone.  Possession of an item may remain with the owner, even though it is in the custody of another.  It has been held in relation to Sea Fisheries Regulations, reg44(1)(oc), the predecessor to r29, that possession involves a larger degree of connection to the abalone than control.  Green v Davies (supra), applying Hedberg v Woodhall (1913) 15 CLR 531. As to the meaning of possession in the criminal law, see Criminal Law, 4^th ed (1997) at 793, a text by Professor Gillies, and Lowe v Goodluck A9/1985.  A person transporting or otherwise handling abalone in circumstances which might amount to being in possession of the abalone could be provided with a copy of the receipt relating to their purchase and in this way obtain the protection of subpar(ii).

1. The difficulties of avoiding breaching r29(1)(b) in some circumstances do not warrant confining the application of the rule to people who may be able to satisfy the subparagraphs.  The rule is expressed to apply to "A person …", without qualification.  Plainly, it is intended to apply to all people.  Any person in possession of more than twenty abalone must be able to satisfy one of the three subparagraphs to avoid breaching the rule.  It would be absurd in the extreme if it was construed as defence counsel submits.  It would mean that conduct of a licensed diver in breach of the rule would result in a conviction, but the same conduct by an unlicensed diver would result in an acquittal.

1. Counsel for the defendant submits that the learned magistrate erred in failing to hold that the application of r29(1)(b) is limited to abalone taken in State waters.  He referred to r4 which provides that the Rules apply to fishing in State waters.  Throughout the Rules and the Living Marine Resources Management Act, there are many provisions which expressly apply to fishing and other actions in State waters.  Counsel submits that it is implicit that r29(1)(b) applies only to abalone taken in State waters.

1. Whilst the provisions in the Rules in the main apply to fishing and related activities in State waters, it is not correct to say that they only apply to fish taken from State waters.  An aspect of the procedural requirements put in place to protect fisheries is a receipt system which facilitates monitoring transactions involving fish in Tasmania.  Rule 16 imposes a receipt requirement on a person who purchases fish from a fish merchant for the purposes of resale.  The purchaser is obliged to obtain a receipt and retain it for five years.  Subrule (5) of that rule provides that it is a defence to any proceeding for a breach of r16 for a person to prove that the fish were obtained from a person who carries on the business of selling fish outside Tasmania.  The subrule recognises that r16 applies to fish purchased in Tasmania, whatever their source, and shows that the rule is not confined in its application to fish taken from State waters.  Rule 17 obliges a fish merchant to supply and retain a copy of a receipt for the sale of more than ten rocklobster or twenty abalone. Unlike r16, r17 makes no provision for a defence on the basis that the rocklobster or abalone came from out of Tasmania.  Rule 29(1)(b) also facilitates the monitoring of transactions involving fish in Tasmania by prohibiting people from being in possession of more than twenty abalone, without a diver's docket or a receipt.  It does not distinguish between abalone taken from State waters or elsewhere.  To limit its application to abalone from State waters would adversely impact on the ability of authorities to authenticate the source of abalone and monitor abalone transactions in this State.  That r29(1)(a) is expressly confined in its application to State waters, whilst r29(1)(b) is not, is an obvious indication that r29(1)(b) is not intended to apply only to abalone from State waters.

1. Zeeman J, when considering Sea Fisheries Regulations, reg44(1)(oc), the predecessor to r29(1)(b), in Graham v Davies (supra), observed that it was not concerned with whether the abalone were taken contrary to the Sea Fisheries Regulations 1962.  Had Parliament been minded to confine the application of r29(1)(b) to abalone, unlawfully obtained from State waters, it could have done so on those occasions when the validity of it, or its predecessor, were before Parliament.  It did not do so.  I can see no justification for the Court implying that the application of the rule should be confined to abalone taken in State waters.

1. For these reasons, the defendant's appeal is dismissed and the prosecution's appeal against the finding that r32(a) was invalid is allowed.  The order dismissing the r32(a) charge is quashed and the matter is remitted to the learned magistrate to conclude the hearing.