Dietman v Brennan-Kuss

[2015] SASCFC 73

Supreme Court of South Australia

(Full Court)

DIETMAN v BRENNAN-KUSS

[2015] SASCFC 73

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and His Honour Chief Judge Muecke)

22 May 2015

PRIMARY INDUSTRY - FISH - OFFENCES - TAKING PROHIBITED TYPE OF FISH

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - REFERENCE TO FRAMEWORK OF ACT

PRIMARY INDUSTRY - FISH - OFFENCES - PENALTY

Appeal against acquittals entered by the appeal Judge.

In the early 1990’s, the third respondent, Mr 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, Mr Hicks placed a set of jaws and some loose teeth from a White Shark with the first and second respondent, Mr and Mrs Brennan-Kuss, for sale on consignment at their art gallery. The respondents were subsequently charged and found guilty in the Adelaide Magistrates Court for 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 1982 (SA).

The respondents appealed against their conviction to a single Judge in this Court, who set aside the orders of the Magistrate and substituted an acquittal on the basis that the proper construction of section 72(2)(b) of the Fisheries Management Act 1982 (SA) applied only to the possession of a fish of a protected species which was a protected species at the time of taking, or alternatively, that the section did not apply to fish which were taken lawfully under the Act. The appellant appealed against that decision.

Held per Kourakis CJ (allowing the appeal):

The proper construction of section 72(2)(b) of the Fisheries Management Act 1982 (SA) should not be read down, and prohibits possession of, or commercial dealing in, any aquatic resource that is declared as a protected species.

It is impermissible to use regulations to construe or read down statutory provisions of the Act under which they were made. So too it is to read down a statutory provision to avoid incongruence or irrational consequences.

The orders of the appeal Judge are set aside.

The appeal against the convictions entered in the Magistrates Court is set aside.

Fisheries Management Act 2007 (SA) s 3, s 5, Pt 6, Pt 7, s 70, s 71, s 72, s 73; Fisheries Act 1982 (SA) ; Fisheries Management (General) Regulations 2007 (SA) s 4, s 6, s 8, referred to.
Wallaby Grip Ltd v QBE Insurance (2010) 240 CLR 444; Deputy Federal Commissioner of Taxation (SA) v Ellis & Clark Ltd (1934) 52 CLR 85; Brayson Motors Pty Ltd (In Liq) v Federal Commissioner of Taxation (1984-1985) 156 CLR 651, applied.
O'Connell v Nixon [2007] VSCA 131, considered.

DIETMAN v BRENNAN-KUSS
[2015] SASCFC 73

Full Court:   Kourakis CJ, Bampton J and Chief Judge Muecke

1. KOURAKIS CJ:    The respondents, Kym Hicks and Terry and Josephine Brennan-Kuss were found guilty in the Magistrates Court of having possession of, and offering for sale an aquatic resource of a protected species, namely White Shark, in contravention of s 72(2)(b) of the Fisheries Management Act 2007 (SA) (the FMA).

2. It was accepted at trial that the sharks had been lawfully taken by Mr Hicks, a licensed fisherman, before White Shark was first declared a protected species in 1998. The respondents defended the charges brought against them on the basis that on its proper construction s 72(2)(b) FMA does not apply to the possession of an aquatic resource that was not of a protected species when it was lawfully taken. The Magistrate rejected the respondents’ contentions on the construction of s 72(2)(b) FMA. The Magistrate also found that the respondents had not made out a defence under s 72(5) FMA. The respondents appealed against their convictions to a single Judge of this Court (the appeal Judge) who allowed the appeal, holding that s 72(2)(b) of the FMA applied only to the possession of a fish of a protected species which was a protected species at the time of taking or that alternatively it did not apply to fish which were taken lawfully under the FMA or any of its statutory predecessors.[1] Having found that s 72(2)(b) of the FMA did not apply to lawfully taken White Shark, the Judge refrained from expressing a final view on the availability of the defence even though he indicated that he would have been inclined to construe subsection (5) in a way which denied the respondents a defence.

   [1]    Brennan-Kuss & Ors v Dietman [2014] SASC 28 at [73], [90].

3. The complainant has in turn appealed against the acquittals entered by the appeal Judge. 

4. I would allow the appeal. Both the text and context of s 72(2)(b) support a construction which proscribes possession of, or commercial dealing in, an aquatic resource of a species which is declared to be a protected species at the time of the possession or other dealing. That construction does not result in any statutory incongruity or incoherence. There is no reason to read the section down. I would also hold that of the defences enacted by s 72(5) FMA, only s 72(5)(b)(iii) is available to the respondents, namely that they had no reason to believe that the items in their possession were White Shark. The defence in s 72(5)(b)(ii) that they had no reason to believe that the White Shark in their possession was taken in contravention of the FMA is not a defence to a charge of possessing or dealing with a fish of a protected species. My reasons follow.

   Facts and Litigation History

5. Between 1991 and 1993, Mr Hicks lawfully caught two sharks of the species White Shark pursuant to his South Australian professional fishing licence.  He retained their jaws and teeth.

6. White Shark was declared a protected species pursuant to the Fisheries Act 1982 (SA) (1982 Act) on 1 January 1998. The 1982 Act was repealed by the FMA in 2007. White Shark was declared to be a protected species pursuant to the Fisheries Management (General) Regulations 2007 (SA) (the Regulations) made under the FMA on 1 December 2007.

7. In 2010 Mr Hicks provided to Mr and Mrs Brennan-Kuss one set of the jaws and some loose teeth of a White Shark on consignment to offer for sale from the store known as “Josephine’s Gallery” in Coober Pedy.

8. In July 2010, fisheries officers seized the jaws and teeth. In February 2012, the complainant laid a complaint alleging an offence against s 72(2)(b) FMA against all three respondents in the Magistrates Court. In the ensuing trial it was common ground that the sharks had been lawfully taken between 1991 and 1993 and that Mr and Mrs Brennan-Kuss had offered the jaw and teeth for sale, and that Mr Hicks was in possession of the jaws and teeth within the meaning of s 72(2)(b). The evidence showed that the respondents were aware that in 2010 White Shark was a protected species.

   The Legislation

9. I deal first with some terms defined by s 3 FMA which have a bearing on the issues raised in this appeal. For the purposes of the FMA, aquatic resources are both fish and aquatic plants. A “corresponding law” is defined to mean a law of the Commonwealth or another State, or a Territory, of the Commonwealth declared by the regulations to be a corresponding law. Regulation 5 and the Fourth Schedule of the Regulations prescribes the laws of the other States and mainland Territories of Australia. A “fishery authority” means a fishery licence or fishery permit given in respect of a fishery under Part 6 Division 1 of the FMA. A “fishing activity” or “fishing” is defined to mean the act of taking an aquatic resource, or an act preparatory to, or involved in, the taking of an aquatic resource. “Protected species” means a species of aquatic resource declared by the Regulations to be a protected species for the purposes of the FMA.

10. The term “take” means to catch, take or obtain an aquatic resource (whether dead or alive) from any waters or to kill or to destroy the resource.  Waters means:-

    (a) any sea or inland waters (including any body of water or watercourse of any kind whether occurring naturally or artificially created); and

    (b)     the bed of such waters.

11. Section 3(2) FMA provides the criteria of prescribed fishing activities that are regulated by other provisions of the Act, and includes all or any of the following:

    (a)     a species of aquatic resource;

    (b) a description of aquatic resource by reference to sex, size, weight or any other characteristic;

    (c)     a number or quantity of aquatic resource;

    (d)     a period of time;

    (e)     an area of waters or a place;

    (f)      a method of fishing;

    (g)     a class or number of boats;

    (h)     a class of persons;

    (i)      a purpose of activities;

    (j)      any other factor.

12. Section 5 relevantly applies the FMA to the water within the limits of the State but s 5(2) FMA qualifies its application to inland waters as follows:

    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).

13. It is convenient immediately to make several points about the effect of s 5(2) FMA because of the importance placed on that provision by the appeal Judge and the respondents. First, there is no reason to construe activity as having the same meaning as the defined terms “fishing activity” or “fishing”. Indeed, it is improbable that Parliament intended the same meaning because, if it had so intended, it would simply have made use of the defined terms. Moreover, the words in parentheses suggest that activity in s 5(2) FMA includes conduct which extends beyond those defined terms. Secondly, the words “in relation to” are of wide import. I would therefore give the word “activity” its ordinary meaning. It includes taking, processing, storing and consuming the aquatic resources of inland waters, so too the word includes the act of possession which allows those things to be done. Thirdly, the qualification in s 5(2) FMA is expressly limited to the person who owns the land surrounding the inland waters. It is personal to him or her. There is therefore no incongruity in other provisions of the FMA proscribing the possession of, or other dealing with, those resources by another person. For example, there are good policy reasons to prohibit possession by a third person to whom the resource has been given. Prohibition of possession by others ensures that any taking by the owner of the surrounding land is not for a commercial purpose, which the words in parentheses exclude from qualified application of the FMA to inland waters, by denying the possibility of sham gratuitous supply.

14. Part 6 FMA regulates the commercial fishing industry. The licensing of commercial fishing operations is a central pillar of the sustainable management of commercial fisheries under the FMA. Commercial fishers must be licensed[2] and their boats and fishing devices registered.[3]  Quotas can be imposed as conditions on licences.[4]   Commercial fishers must lodge periodic returns.[5]

    [2]    Section 52 FMA.

    [3]    Section 53 FMA.

    [4]    Section 55 FMA.

    [5]    Section 56 FMA.

15. Fish processors must be registered[6] and can only process fish endorsed on that registration.[7] 

    [6]    Section 62 FMA.

    [7]    Section 65 FMA.

16. A breach of the terms and conditions imposed on licences, permits and registrations is punishable as an offence. 

17. Part 7 FMA provides for the enforcement of the FMA’s regulation of fisheries by enacting a complementary suite of offences. The first of those offences is found in s 70 FMA which provides:

    A person must not engage in a fishing activity of a prescribed class.

    Maximum penalty:

    (a)     if the fishing activity involves fish of a priority species—

    (i) for a first offence—$10 000;

    (ii) for a second offence—$20 000;

    (iii) for a third or subsequent offence—$35 000;

    (b)     in any other case—

    (i) for a first offence—$5 000;

    (ii) for a second offence—$10 000;

    (iii) for a third or subsequent offence—$20 000.

    Expiation fee: A fee determined in accordance with the regulations.

18. Of all of the provisions of the FMA, s 70 most directly protects the State’s aquatic resources by controlling fishing effort and catch. It will be remembered s 3(2) FMA allows a class to be defined according to a diverse range of criteria. Regulation 7 does so by prescribing fishing activities listed in Schedule 6, and the taking of a fish by a net in waters specified in Schedule 7. Divisions 1 to 4 of Part 1 of Schedule 6 prohibit licensed persons using the devices specified therein. Division 5 imposes bag limits on licensed persons. The remaining divisions of Part 1 impose miscellaneous restrictions by reference to devices, boats, waters and seasons. Part 2 adopts a similar structure, but imposes much greater limitations, for unlicensed persons. Part 3 prescribes classes of fishing activity with respect to both licensed and unlicensed persons.

19. The focus of s 71 FMA is different. Its purpose is to protect particular species by proscribing the taking of, or injury to, fish of those species. It provides significantly higher penalties for persons convicted of offending against it. It relevantly provides:

    71—Taking, injuring etc aquatic mammals and protected species prohibited

    (1)     A person must not—

    (a) take an aquatic mammal or aquatic resource of a protected species; or

    (b) injure, damage or otherwise harm an aquatic mammal or aquatic resource of a protected species.

    Maximum penalty:

    (a) if the offence involves an aquatic mammal—

    (i) in the case of a body corporate—$250 000;

    (ii) in the case of a natural person—$100 000 or imprisonment for 2 years;

    (b) in any other case—

    (i) for a first offence—

    (A) in the case of a body corporate—$50 000;

    (B) in the case of a natural person—$10 000;

    (ii) for a second or subsequent offence—

    (A) in the case of a body corporate—$100 000;

    (B) in the case of a natural person—$20 000.

    Expiation fee: In the case of an offence not involving an aquatic mammal—$500.

20. Regulation 6 and Schedule 5 list protected species. I will discuss those Regulations shortly. Section 72(1) FMA prohibits the possession of, and trade in, fish by unlicensed persons.

    72—Sale, purchase or possession of aquatic resources without authority prohibited

    (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:

    (a) in the case of a body corporate—

    (i) if the offence involves the sale or purchase of fish of a priority species—$250 000;

    (ii) in any other case—$100 000;

    (b) in the case of a natural person—

    (i) if the offence involves the sale or purchase of fish of a priority species—$50 000 or imprisonment for 4 years;

    (ii) in any other case—$20 000 or imprisonment for 2 years.

21. Section 72(1) FMA enforces the distinction between licensed commercial fishing operations and recreational fishers by criminal sanction. It deters recreational fishers from exceeding bag limits and other restrictions applicable to them, for commercial purposes.

22. It will be observed that s 72(1) is limited to the sale or purchase of aquatic resources “taken in waters to which” the FMA applies without an authority. The reason for the geographical limitation of s 72(1) FMA is plain enough. Its purpose is to protect the regulation of fishing within the State’s territorial waters as defined by s 5. It reflects both limitations on the legislative power of the State and consensual arrangements made between the States and the Commonwealth.

23. Section 72(2) FMA has several different purposes. It 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.

    Maximum penalty:

    (a) in the case of a body corporate—

    (i) if the offence involves the sale or purchase of fish of a priority species or the possession or control of fish of a priority species for the purposes of sale—$250 000;

    (ii) in any other case—$100 000;

    (b) in the case of a natural person—

    (i) if the offence involves the sale or purchase of fish of a priority species or the possession or control of fish of a priority species for the purposes of sale—$50 000 or imprisonment for 4 years;

    (ii) in any other case—$20 000.

    (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).

24. Regulation 6 declares the species specified in Schedule 5 to be protected species for the purposes of s 72(2)(b) FMA. Schedule 5 lists all but one of the protected species without any geographic limitation but protests only those fish of the Western Blue Groper species which are found in parts of Spencer Gulf and Gulf of St Vincent.

1. Regulation 8 prescribes classes of fish for the purposes of s 72(2)(c) as follows:

   8—Sale, purchase or possession of aquatic resources

   (1)For the purposes of section 72(2)(c) of the Act, the following classes of aquatic resources are prescribed:

   (a)     undersize fish;

   (b)     aquatic resources of a class specified in Schedule 3.

   (2)For the purposes of section 72(6) of the Act, a quantity specified in Schedule 3 alongside a class of aquatic resources is the prescribed quantity of aquatic resources of that class.

2. Undersize fish are described in Schedule 2.[8]  In some instances, Schedule 2 provides different size limits for the same species by reference to the waters in which the fish is taken.  For example, Schedule 2 specifies the size limits for Abalone as follows:

   [8]    See definition in Regulation 3.

   5—Abalone taken by licensed person

   (1)Abalone of all species (except Blacklip Abalone and Greenlip Abalone) is undersize if—

   (a)     it is less than 13 cm in length; or

   (b)     the meat, having been removed from the shell, weighs less than 113 gm.

   (2)     Blacklip abalone is undersize—

   (a)     if taken in an abalone fishing area in the Southern Zone—its length is less than the length specified by the Minister from time to time by notice in the Gazette; or

   (b)     if taken in waters other than the Southern Zone—

   (i)     it is less than 13 cm in length; or

   (ii)the meat, having been removed from the shell, weighs less than 113 gm.

   (3)     Greenlip Abalone is undersize—

   (a)     if taken in the waters of the Western Zone—

   (i)     it is less than 14.5 cm in length; or

   (ii)the meat, having been removed from the shell, weighs less than 140 gm; or

   (b)     if taken in any other waters of the State—

   (i)     it is less than 13 cm in length; or

   (ii)the meat, having been removed from the shell, weighs less than 113 gm.

   The salient aspects of the offences enacted by Part 7 of the FMA appear to be as follows.

3. Schedule 3 of the Regulations lists in its first column much sought after fish species which are the subject of licensed fishers and in its second column specifies a quantity applicable to that species. That quantity is defined by Regulation 4 to be a commercial quantity for the purposes of the FMA and s 72 FMA in particular. The effect of s 72(6) FMA and the Regulations I have mentioned is that it is an offence for unlicensed fishers to be in possession of, or to sell, the prescribed quantities specified in Schedule 3 unless the applicable defence provided by s 72(5) FMA is established.

4. Section 72(2) of the FMA indirectly deters the unlawful taking of fish by proscribing the marketing of fish taken in contravention of the FMA, or corresponding laws, thereby shutting down markets through which unlawfully taken fish may be distributed. The reason for that approach is plain. South Australia has a long coastline with vast adjacent waters which support large and valuable fisheries. The difficulty in adequately policing the vast waters of the State is notorious and well known to the courts of the State in which prosecution for offences against the FMA are brought. On the other hand, catches are generally at jetties and boat ramps, which are relatively less difficult to police. Moreover, even though some fish species have relatively localised habitats, many species travel across long distances which cross over State and Commonwealth boundaries. These notorious facts provide the context in which s 72(2) of the FMA must be construed.

5. The offence created by s 72(2)(a) indirectly deters the taking of fish proscribed by s 70 and s 71 of the FMA, and in breach of licence conditions, by proscribing possession and commercial dealing with that fish. It also creates an offence in aid of the corresponding laws of other States and Territories in the same manner.

6. Sections 72(2)(b) and (c) FMA indirectly deter the taking of protected species and aquatic resources of prescribed classes. The difference between the two subparagraphs is that (b) must deal with a species whereas (c) allows a class to be defined, by reference to such matters as size, breeding cycle and location. Importantly, the offences created by subparagraphs (b) and (c), in contrast to subparagraph (a), are defined without reference to the circumstances of the taking. In so defining the offences, the FMA allows the Governor, by prescribing protected species, and other classes of aquatic resource, to prohibit the marketing of the species or aquatic resource so prescribed, irrespective of the circumstances in which the fish were taken. In that way, possible markets for unlawfully taken protected species and prescribed classes of fish are effectively closed down. The difficulty in proving when and where fish, found exposed for sale in markets, were taken is notorious. It is a rational, and indeed a globally recognised, environmental strategy to deter the taking of protected species by denying poachers a market in which to supply unlawfully taken animals, even though it entails denying persons who have lawfully come by animals of the same species, the right to sell their property. An example of that approach can be found in the Convention on International Trade in Endangered Species of Wild Fauna and Flora.[9]  I acknowledge that it may be harsh to proscribe the marketing of fish which were lawfully taken but it does not follow that it is irrational to do so.  The total prohibition on the marketing of a protected species or prescribed class of fish may be both a necessary and rational measure if a more limited proscription only of the selling or purchasing of unlawfully taken fish would be ineffective because of difficulties in proof.  I respectfully disagree with the appeal Judge that the King George Whiting example[10] illustrates any irrationality.  Leaving aside the fact that the practically relevant transitional period will be relatively brief because of the limited time in which the whole fish will be kept on ice or otherwise preserved and the notice of these changes which is generally given as a matter of good governance, there is every reason to apply the new size limit as soon as it is introduced irrespective of when the fish was caught.  If it is not, there would be much scope for practical evasion of the regulatory change by those who are prepared to lie about when the fish were caught.

   [9]    Article III, Convention on International Trade in Endangered Species of Wild Fauna and Flora.

   [10]   Brennan-Kuss & Ors v Dietman [2014] SASC 28 at [72].

   The Appeal Judgment

7. The appeal Judge read down the scope of s 72(2)(c) FMA so that it applied only to fish of a species which was protected when it was taken for three primary reasons. First, his Honour held that it was not a purpose of the FMA to deter the taking of fish by denying a market for them: [11]

   It is conceivable that a legislature might chose [sic] 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.

   The enactment of disincentives to take fish unlawfully is a strategy to achieve the proper management of fisheries and not an object in itself. It is not surprising that the objects of the FMA do not specifically mention the licensing scheme of Part 6, the protection of particular species, the proscription of classes of fishing activity and possession of classes of fish all of which are strategies implemented by provisions of the FMA to achieve its objects. Nor would I expect s 72(2)(b) FMA to explicitly state this rationale. The context in which the FMA must be construed shows, for the reasons I have given, that there is no reason to read down the meaning its text naturally carries. It is intended to proscribe the possession of a fish of a protected species irrespective of when that fish was taken in order to more effectively protect that species. It is not difficult to imagine how the marketing of White Shark, which was not protected when taken, in Australian tourist destinations or over the internet might generate a market which would encourage to the taking of White Shark in contravention of s 71 FMA.

   [11]   Brennan-Kuss & Ors v Dietman [2014] SASC 28 at [67].

8. Overall there is good reason to conclude that the plain words of s 72(2)(b) FMA were intended to have the meaning they bear on their face.

9. Secondly, in support of his limited construction of s 72(2)(b), the appeal Judge relied on what he found to be a “geographical limitation”[12] on the operation of s 72(2)(b) and (c) such that those subparagraphs applied only to fish caught in the waters to which the FMA applied. That conclusion is at least slightly undermined by the absence from s 72(2) of the limitation found in s 72(1) FMA that the taking must be in waters to which the FMA applies, but as the appeal Judge observed, s 72(1) FMA, unlike s 72(2) FMA, is addressed specifically to the act of taking fish. Nonetheless, the legislature might easily have qualified s 72(2) with those words if it had so intended. Be that as it may the proscription of possession of fish taken in contravention of corresponding law in s 72(2)(a) strongly militates against a parochial construction of s 72(2)(b) and (c). Moreover s 72(4) FMA expressly authorises the making of regulations which prescribe a class for the purposes of s 72(2)(c) by reference to fish taken outside of the waters of the State. That suggests that s 72(2)(c) FMA and by implication s 72(2)(b) do not in themselves carry any intrastate limitation. The purpose of s 73(4) FMA is to address a possible implied limitation on the regulation making power when making regulations proscribing a class of fish by reference to the place where they were taken. I earlier referred to some regulations so framed and to the fact that some fish species cross State boundaries. Section 72(4) FMA makes it clear that a class may be prescribed by reference to a geographical area which extends beyond this State’s waters. Rock Lobster caught in the Southern Zone of this State and the Western Zone of Victoria is an example of a class of fish which may need regulation in that way. It is less likely that protected fish would require definition in that way and that is probably the reason for the limitation of s 72(4) FMA to prescribed classes of fish, even though the protection of the Western Blue Groper shows that on occasion fish may need to be protected by reference to a localised habitat.

   [12]   Brennan-Kuss & Ors v Dietman [2014] SASC 28 at [66], [71].

10. Thirdly, the Judge reasoned that it was “incongruous”[13] and “irrational”[14] to construe s 72(2)(b) FMA in a way which prescribed the possession of fish of a protected species which were lawfully taken within one zone because they had characteristics which placed them in a proscribed class when taken in another zone.

    [13]   Brennan-Kuss & Ors v Dietman [2014] SASC 28 at [65], [83], [85].

    [14]   Brennan-Kuss & Ors v Dietman [2014] SASC 28 at [88].

11. In my respectful opinion, that conclusion is attended by two errors. First, the application of s 72(2) FMA on the species of fish defined by reference to locality does not lead to incongruity or irrationality. The complainant rightly accepts that in cases in which a class of fish or a protected species is defined differentially by reference to the location from which it was taken, like for example Abalone in Schedule 2 of the Regulations and Western Blue Groper in Schedule 5, proof of an offence against s 72(2)(b) or (c) of the FMA will require proof of the waters from which the fish was taken. To use an example, if a person is prosecuted for possession of an undersized Greenlip Abalone which has a length of 14 centimetres, it will be necessary to prove that it was taken in the waters of the Western Zone for which the prescribed length is 14.5 centimetres rather than taken from any other waters of the State with respect to which the prescribed length is 13 centimetres.

12. Nor does the question of s 72(2) FMA on fish taken in inland waters lead to any incongruity or irrationality in the operation of the FMA. I acknowledge that if it did, it would be permissible to have regard to s 5(2) FMA to read down s 72(2) FMA in a way which is not permissible for the reasons I will shortly give. There is no incongruity in the proscription of the possession by a person of fish lawfully taken by the owner of land surrounding the inland waters. The taking the owner is permitted to do is limited to non-commercial purposes and s 72(2) FMA ensures that is the case by in effect limiting the owner to personal use of his or her catch.

13. Secondly, save for some exceptional cases, it is impermissible to use regulations to construe statutory provisions of the Act under which they were made.

14. In Wallaby Grip Ltd v QBE Insurance[15] QBE contended that the Workers Compensation Act 1926 (NSW) evinced a legislative purpose that insurance policies indemnifying employers for their liability under the Act were capped.  QBE relied on the terms of policy documents prescribed in regulations made under the Workers Compensation Act in support of that contention.  French CJ, Gummow, Hayne, Heydon and Keifel JJ rejected QBE’s submission explaining:[16]

    A basis for the statutory scheme for which QBE contends would have to be found in the provisions of the Act. No such scheme is discernible. The regulations and the words of the policy cannot be used to construe, and thereby to alter, provisions of the Act which created them. Moreover, the requirement in s 18(3)(a), that a policy contain “only such provisions as are prescribed”, can only refer to provisions which are required, permitted or necessitated by the Act, in accordance with the regulation-making power given. The inclusion of a maximum amount for indemnity in all policies first obtained by employers was neither permitted nor required.

    [emphasis added]

    [15] (2010) 240 CLR 444.

    [16]   Wallaby Grip Ltd v QBE Insurance (2010) 240 CLR 444 at 455.

15. In my respectful opinion, that passage states a principle of general application.

16. In Pearce & Geddes Statutory Interpretation in Australia that statement of general principle is significantly qualified:

    Reference to delegated legislation for purpose of interpreting Act

    3.41In Australia the general rule has been that delegated legislation made under an Act should not be taken into account for the purposes of interpretation of the Act itself.  In John Burke Ltd v Insurance Commr [1963] Qd R 587 Hanger J refused to take into account an order-in-council that amended the schedule to an Act, the schedule being part of the Act as passed by the parliament. His Honour said that he could not see how provisions made by the governor-in-council subsequent to an Act of Parliament could be used to ascertain the intention parliament had when it passed the Act. In Great Fingall Consolidated Ltd v Sheehan (1906) 3 CLR 176 Griffith CJ had expressed the same opinion with regard to a regulation made by the governor under the Act to be interpreted. More recently, in Webster v McIntoch (1980) 32 ALR 603 at 606 Brennan J, with whose judgment Deane and Kelly JJ agreed, commented that ‘the intention of Parliament in enacting an Act is not to be ascertained by reference to the terms in which a delegated power to legislate has been exercised’. See also Leue v Reynold (1986) 4 NSWLR 590 at 596; Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 at 577-8 per Southwell J; Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 244; 77 ALR 8 at 14 per Mason CJ and Gaudron J; Dowling v Commr of Water Resources (1991) 74 LGRA 420 at 425; Secretary, Department of Health, Housing, Local Government and Community Services v Kaderbhai (1994) 51 FCR 416 at 423; 122 ALR 577 AT 583-4; NRMA Insurance Ltd v Motor Accidents Authority of NSW [2004] NSWSC 567 at [28].

    There are, however, exceptions to the general rule stated above.  If there are regulations that, together with the principal Act, form part of a legislative scheme, it may be useful to refer to them to ascertain the nature of the scheme.  This has occurred in the interpretation of legislation contained in several Acts and sets of regulations which together make a legislative scheme; DFCT (SA) v Ellis Clark Ltd (1934) 52 CLR 85 at 89-95 per Dixon J; Brayson Motors Pty Ltd (in liq) v FCT (1985) 156 CLR 651 at 652 per Mason J; Thorn EMI Pty Ltd v FCT (1987) 71 ALR 728 at 733-5; Coleman v Gray (1994) 55 FCT 412 at 423; 133 ALR 328 at 337 per Beaumont J; Flanagan v Commr of Australian Federal Police (1996) 60 FCR 149 at 196-7; 134 ALR 495 at 537; Minister for Immigration and Multicultural Affairs v ‘A’ (1999) 91 FCR 435 at 445-6; 168 ALR 594 at 603. In the Brayson Motors case, Mason J observed (at 652): ‘One looks at regulations, not to construe an overall scheme or to throw light on ambiguity in a statutory provision, but to ascertain what the scheme is”.

    It may also be helpful to refer to delegated legislation as a direct aid to construction of an ambiguous or obscure statutory provision where a contemporaneously prepared Act and set of regulations establish an interdependent regime: Neill v Glacier Metal Co Ltd [1965] 1 QB 16 at 27; Shahin Enterprises Pty Ltd and Registrar of Trade Marks; Exxonmobil Oil Corp (2004) 76 ALD 272 at 289; Jones v White [2005] WASC 40 at [40]. In Ward v Commr of Police (1998) 80 FCR 427 at 437-8; 151 ALR 604 at 614 Moore J suggested another exception to the general rule; if a statutory provision permits exceptions to be made to it by regulations, it may be permissible to refer to the regulation as an aid to the interpretation of the provision.

17. The first of the cited passages states the general principle and reveals the long line of authority on which the High Court’s reasoning in Wallaby Grip is founded. 

18. As to the second passage, I would emphasise that it refers to the use of the regulations to ascertain the nature of a “legislative scheme”.  That is quite a different matter to using regulations to construe the provisions of the statute itself.  A consideration of both the Act and the regulations made thereunder may be necessary properly to understand the scope and elements of an offence which is created by the joint operation of a statutory provision and regulations.  It may also be important in cases in which the validity of subordinate legislation is in issue.  However, that is very different to reading down a statutory provision by reference to regulation.

19. On very rare occasions it might also be useful to resort to regulations to identify a legislative scheme or policy in order to construe legislation.  In special circumstances, the regulations may reveal that policy, and the legislative policy so elucidated might then aid in the construction of the statute.  The use of regulations to understand a legislative scheme is perhaps best shown by the following passage from the judgment of Dixon J in Deputy Federal Commissioner of Taxation (SA) v Ellis & Clark Ltd[17] in which the High Court grappled with the proper construction of a complex taxation provision:

    Moreover the legislation depends in a remarkable degree upon the regulations made under the power which it confers on the Executive.  Without the regulations, not only is it unworkable, but the expression of legislative policy is so inadequate as almost to be unintelligible.

    [17] (1934) 52 CLR 85 at 89.

1. It is plain that it is in that very limited sense that counsel in Brayson Motors Pty Ltd (In Liq) v Federal Commissioner of Taxation[18] made reference to another set of taxation regulations.  It was in the course of counsel’s submissions in Brayson that Mason J, as he then was, made the remark cited by the authors in the second of the passages I have reproduced.  The full exchange is as follows:

   The regulations may be used to construe the Act:  Deputy Federal Commissioner of Taxation (S.A.) v Ellis & Clark Ltd; Brayson Motors Pty Ltd v Federal Commissioner of Taxation; Neill v Glacier Metal Co Ltd.

   [Deane J:  It is generally accepted that one looks at regulations only as an indication of what a government department thinks about the construction of an Act.] 

   That is the approach in Jackson v Hall, but it should be distinguished from the special type of case identified in the authorities just cited.

   [Mason J.  One looks at regulations, not to construe an overall scheme or to throw light on ambiguity in a statutory provision, but to ascertain what the scheme is.]

   [18] (1984-1985) 156 CLR 651 at 652.

2. In my view, the proposition put at the start of the third of the cited paragraphs is inconsistent with the principle stated in Wallaby Grip.  It will often be the case that regulations come into effect at the same time as a statute.  However, the regulations are made by the Executive Government based on its determination of the scope of the statute and the regulation making power.  The courts have no reason to defer to the Executive Government’s view of the meaning of a statutory provision.  Indeed, in Australia the constitutional position is that the judiciary is the sole authoritative arbiter of the meaning of the statutory expression of Parliament’s will.

3. The only apparent exceptions to the principle stated in Wallaby Grip are those cases in which a statute provides for its effect to be altered by regulations.  O’Connell v Nixon[19] was such a case.  The statute considered in that case was expressed to operate subject to the regulations made under it.  However on analysis this is not an exception.  The regulation only has its effect by operation of the statute itself.

   [19] [2007] VSCA 131.

4. Be that as it may, the appeal Judge’s approach in this case was not to read down s 72(2) FMA by reference to the text of the Regulations. Rather, he read the FMA down to avoid what he thought were the incongruous or irrational consequences of the operation of s 72(2) FMA on the Regulations made by the Government. That approach too is impermissible. If the Executive Government chooses to make regulations in a form which result in a statutory provision having an incongruous or irrational result, it may be that the regulation itself does not properly fall within the regulation making power. Courts should not read down a statutory provision to guard against the possibility that the Executive Government might make the regulations contemplated by that provision in a way which leads to harsh, irrational or incongruous results.

5. It is for Parliament to decide on the scope of the legislative power it wishes to delegate to the Executive Government. The Executive Government is answerable to the Parliament for the way in which it exercises its delegated legislative power. Indeed, Parliament may move to disallow regulations. If the approach of the appeal Judge were to be adopted, it must logically extend to reading down a statute even if such regulations have not yet been made. That is to say a statutory provision which is structured to work together with a regulation to be made by the Executive Government would need to be read down lest the Executive Government gives the provision a harsh or incongruous operation by the regulation it makes. If that approach were not taken, then the construction of a statutory provision might vary depending on whether regulations have been made or not, and if made, their particular content. For example, in this very case, if the Executive Government had not differentiated between fish according to the waters in which they were taken, the appeal Judge would have had less reason to read down s 72(2)(b) and (c) FMA to exclude fish which were not of a protected species or prescribed class. It cannot be the case that a statutory provision will be given one construction if the regulations which happen to have been made operate fairly but another construction if the regulations made operate harshly. The task of reading down legislation by reference to regulations which may be made is practically impossible.

6. Ultimately, the proper construction of a statutory provision must proceed from the text and context of the legislation itself and not from the regulations which the Executive Government has made or might make.

   The Defence

7. The four placita of s 72(5)(b) FMA naturally refer to the descriptions of the resources, possession or sale of which is proscribed by s 72(2) FMA. I set out in tabula form the way in which they relate.

Section 72(1) & section 72(2)	Section 72(5)(b)
Aquatic resource taken in waters but not under an authority (s 72(1))	No reason to believe that aquatic resource taken in waters but not under an authority (s 72(5)(b))
Aquatic resource taken in contravention of the FMA or a corresponding law (s 72(2)(a))	No reason to believe that aquatic resource taken in contravention of the FMA or a corresponding law (s 72(5)(b)(ii))
Aquatic resource of a protected species (s 72(2)(b))	No reason to believe that aquatic resource was of a protected species (s 72(5)(b)(iii))
Aquatic resource of a prescribed class (s 72(2)(c))	No reason to believe that aquatic resource of a prescribed class (s 72(5)(b)(iv))

1. The strong structural correlation between s 72(1) and (2) FMA on the one hand and s 72(5) FMA on the other suggests that the placita of s 72(5)(b) should be read distributively with s 72(1) and the placita of s 72(2). The words in parentheses (as the case may be) in s 72(5)(b) and the disjunctive “or” at the end of each placitum also indicate that the defences apply distributively. On the respondents’ construction, the words “as the case may be” have no work to do and the disjunctive “or” allows a defendant to avail himself or herself of any one of the defences irrespective of the charge.

2. The respondents accepted that there must be some limits to the defences on which a defendant can rely. For example, a person charged with possession of fish not taken under an authority which also happens to be a protected species, and who knew that the fish was not taken under an authority could not escape conviction for an offence against s 72(1) FMA by proving that he had no reason to suspect that the fish was of a protected species. Once a limit, even of that kind, is accepted the statutory intention to apply the defences distributively should be accepted in preference to some other implied limitation of uncertain content.

3. Moreover that construction becomes not only a natural, but also a necessary, construction once it is accepted that s 72 FMA proscribes the possession of a fish of a protected species even if that fish were lawfully taken. That construction of s 72(2)(b) FMA would be defeated if a defendant could rely on the defence in s 72(5)(b)(ii). Moreover the structure of s 72(5) FMA which lends itself to a distributive construction also supports the construction I give to s 72(2)(b) FMA. That is to say Parliament could, if that was its intention, have made it clear that the defence given by s 72(5)(b)(ii) FMA was not limited to a defence of an offence committed against s 72(2)(a) FMA and in so doing have produced the same result, apart from the question of onus, reached by the appeal Judge’s limited construction of s 72(2)(b).

   Conclusion

4. I would allow the appeal.  I would set aside the orders of the appeal Judge.  I would order instead that the appeal against the convictions entered in the Magistrates Court be dismissed. 

5. BAMPTON J:      I would allow the appeal.  I agree with the reasons of the Chief Justice and the orders he proposes.

6. MUECKE DCJ:     I would allow the appeal.  I agree with the reasons of the Chief Justice and with the orders he proposes.

7. My view is that no incongruity or irrationality results by construing s 72(2)(b) FMA such as to give full force and effect to Parliament’s purpose to protect a particular species such as White Shark. The protection of White Shark is achieved as much by Parliament proscribing the selling or purchasing, or having possession or control of a part or parts of White Shark that was taken when that species could lawfully be taken, as it is by proscribing that activity in respect of a part or parts of White Shark that was taken after it was declared to be a protected species. Parliament not infrequently proscribes dealing in or having possession or control of items which may have been lawfully obtained. Certain firearms that may not have been previously regulated (including imitation firearms), certain drugs, and ivory are some examples.

8. It is also my view that Parliament’s purpose can be achieved by giving the relevant parts of s 72 FMA their ordinary and natural meaning and by not straining that meaning in any way. An aquatic resource of a “protected species” is quite different to one of a “prescribed class”.

9. I agree with the Chief Justice’s remarks regarding the “strong structural correlation” between s 72(1) and (2) FMA on the one hand and s 72(5) FMA on the other. My view is that correlation is so strong that it leads me to no construction other than the one reached by the Chief Justice. Section 72(5) FMA expressly relates to proceedings for offences against s 72. Those offences are set out in s 72(1) and (2). Section 72(5)(b)(i) FMA can only be applicable, in its terms, to a proceeding for an offence against s 72(1) FMA and s 72(5)(b)(ii),(iii) and (iv) FMA can only be applicable to proceedings against s 72(2)(a)(b)(c) FMA respectively.