Constitutional Law (Cth)—Freedom of interstate trade and commerce—Prohibition by State law of sale of undersize crayfish—Application to crayfish brought for sale from another State—The Constitution (63 &64 Vict. c. 12), s. 92—Sea Fisheries Regulations 1962 (Tas.), reg. 31(1) (d).
Decision
MASON C.J., WILSON, BRENNAN, DEANE, DAWSON, TOOHEY AND GAUDRON JJ. This case and Bath v. Alston Holdings Pty Ltd, which were heard successively, turn upon the effect of s.92 of the Constitution. The appellant in this case, the plaintiff in Bath v. Alston Holdings Pty Ltd and the interveners (the Commonwealth and the States) presented arguments which invited the Court to acknowledge that there is now no settled interpretation of s.92 and which supported the adoption of what has been broadly described as the "free trade" approach to the construction of the section. Before we examine these arguments, we shall explain the factual and legislative context of the present case.
2. Section 9 of the Fisheries Act 1959 (Tas.) ("the Act") empowers the Governor of Tasmania to make regulations relating to a number of subjects including:
"(1)...
(m) prohibiting the taking of any undersized, unclean, or unseasonable fish;
(n) prohibiting, either generally or for any rescribed period, the buying, selling, or offering or exposing for sale, or the having possession or control of any fish (whether taken in this State or elsewhere) falling within all or any of the following classes, namely:-
(i) fish, or the female of fish, or fish of less than a prescribed size, of a articular kind or species;
(ii) undersized, unclean, or unseasonable fish;
(iii) fish the taking of which is contrary to the regulations."
The Sea Fisheries Regulations 1962 were made under the Act and reg.31(1)(d) provides, inter alia, as follows:
"31. (1) No person
...
(d) shall take, buy, sell, offer or expose for sale, or have in his possession, or under his control, any fish of any of the kinds or species respectively enumerated in the table to this paragraph that is of less size than the minimum size rescribed therein in respect of that kind or species of fish, whether or not the fish was taken in State fishing waters:
TABLE
------------------------------------------------ Kind or species Minimum size of of fish fish in centimetres
------------------------------------------------
...
(ix) Male Crayfish 11
(x) Female Crayfish 10.5
... "
Sub-regulations (2) and (3) prescribe the manner of measuring fish for the purposes of the regulation. Regulation 44(3) makes it an offence for a person to contravene, or fail to comply with, a provision of the regulations that is applicable to him.
3. The appellant, a senior inspector of the Tasmanian Fisheries Development Authority, laid a complaint against the respondents charging them with a breach of the provisions of the Sea Fisheries Regulations. The matter of the complaint was heard and determined in the Court of Petty Sessions…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Cole v Whitfield [1988] HCA 18
Case
[1988] HCA 18
Decision Date
CaseChat Overview and Summary
In *Cole v Whitfield*, the High Court of Australia considered a dispute between the appellant, a Tasmanian oyster farmer, and the respondent, a South Australian fisheries officer. The appellant was charged with an offence under the Tasmanian Fisheries Act 1959 (Tas) for possessing oysters during a closed season, which had been lawfully taken from South Australian waters. The core of the dispute concerned the validity of the Tasmanian legislation in light of section 92 of the Australian Constitution, which guarantees freedom of interstate trade, commerce, and intercourse.
The High Court was required to determine whether the Tasmanian Fisheries Act 1959, by prohibiting the possession of oysters during a closed season irrespective of their origin, imposed a burden on interstate trade that was contrary to the guarantee of freedom of interstate commerce under section 92 of the Constitution. Specifically, the court had to consider whether the Tasmanian law discriminated against interstate trade or imposed a quantitative restriction on it.
The Court held that the Tasmanian legislation did not contravene section 92 of the Constitution. The majority reasoned that the prohibition on possessing oysters during a closed season was a non-discriminatory measure aimed at conserving the oyster population, a legitimate objective for fisheries management. The law applied equally to oysters whether they were sourced from within Tasmania or from interstate. The Court clarified that section 92 protects interstate trade from discriminatory burdens and quantitative restrictions, but does not protect it from regulations that are generally applicable and do not discriminate against interstate commerce. The appeal was dismissed.