Dietman v Karpany

The appeal concerned charges brought against the defendants for possessing undersized Greenlip abalone, contrary to section 72 of the *Fisheries Management Act 2007* (SA). The defendants, members of an Aboriginal group with customary native title fishing rights, asserted that section 72(2)(c) of the State Act was inoperative due to section 211 of the *Native Title Act 1993* (Cth). The parties agreed that if section 211 applied, it would prevail over the State Act due to section 109 of the Commonwealth Constitution. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The central legal issues before the court were whether the Magistrate erred in law by construing an exemption under section 115 of the *Fisheries Management Act 2007* (SA) as a "permit, licence or other instrument" for the purposes of section 211 of the *Native Title Act 1993* (Cth), and whether section 211 applied to permit the defendants to take undersized abalone. Additionally, the court considered whether the native title rights of the defendants' group to take undersized Greenlip abalone had been validly extinguished under State law.

The court found that the *Fisheries Act 1971* (SA) had extinguished the relevant customary native title rights of the Narrunga people. Consequently, it was unnecessary to consider further submissions regarding the *Fisheries Act 1982* (SA) or the application of section 211 of the *Native Title Act 1993* (Cth) to the specific circumstances.

The appeal was allowed. The court found that the elements of the complaint were established beyond reasonable doubt and remitted the matter for resentencing, including consideration of whether to proceed without recording convictions.