Dietman v Karpany (No 2)
[2023] SASCA 119
•16 November 2023
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
DIETMAN v KARPANY (No 2)
[2023] SASCA 119
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
16 November 2023
PRIMARY INDUSTRY - FISH - SHELLFISH - ABALONE
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - WORDS TO BE GIVEN LITERAL AND GRAMMATICAL MEANING - PARTICULAR CASES
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DOUBLE JEOPARDY
The appellant informant appealed the decision of a magistrate acquitting the respondent of two counts of possession of an aquatic resource of a prescribed class in contravention of s 72(2)(c) of the Fisheries Management Act 2007 (SA). One count alleged possession of 153 greenlip abalone (Count 3) and the other alleged possession of 118 undersized greenlip abalone (Count 4). The abalone were in the one catch bag, with the 118 abalone being included with the 153 abalone.
This Court allowed the appeal and held that the magistrate had erred in upholding the respondent’s defence in reliance upon a native title right to fish. Whilst indicating an intention to set aside the acquittals on Counts 3 and 4, and to remit the matter to the Magistrates Court for sentence, the Court requested submissions from the parties as to whether it was appropriate to substitute convictions on both counts. In particular, the Court questioned whether the overlap in the elements and conduct the subject of the two counts meant that it would infringe the principle against double jeopardy to enter convictions on both counts.
Held (per the Court):
1.The elements of Count 3 are wholly included within the elements of Count 4. In accordance with the first aspect of double jeopardy described in Pearce v The Queen (1998) 194 CLR 610, the respondent should not be convicted of both Count 3 and Count 4 offences for the same abalone. It is appropriate that this Court enter a conviction in respect of Count 3 only and the matter be remitted for sentencing on that basis.
Fisheries (General) Regulations 2000 rr 7, 42, 44; Fisheries Management Act 2007 (SA) ss 3, 7, 72; Fisheries Management (General) Regulations 2007 rr 3, 8; Legislation Interpretation Act 2021 (SA) s 14; Native Title Act 1993 (Cth) s 211, referred to.
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; Dietman v Karpany [2023] SASCA 52; Disorganised Developments Pty Ltd v State of South Australia (2023) 97 ALJR 575; H Lundbeck A/S v Sandoz Pty Ltd (2022) 96 ALJR 208; King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184; Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; Mills v Meeking (1990) 169 CLR 214; Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; Pearce v The Queen (1998) 194 CLR 610; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; Wanganeen v Dietman (2021) 139 SASR 170, considered.
DIETMAN v KARPANY (No 2)
[2023] SASCA 119Court of Appeal – Criminal: Livesey P, Doyle and Bleby JJA
THE COURT: The appellant informant appealed the decision of a magistrate acquitting the respondent of Counts 3 and 4 of an Information dated 25 October 2017, being two counts of possession of an aquatic resource of a prescribed class in contravention of s 72(2)(c) of the Fisheries Management Act 2007 (SA). Count 3 alleged possession of 153 greenlip abalone. Count 4 alleged possession of 118 undersize greenlip abalone.
It was not in dispute at trial that the elements of each offence had been proved against the respondent. The respondent admitted being in possession of a catch bag containing 153 greenlip abalone, and that 118 of them were undersize.
The respondent sought to defend the charges against him by relying upon a native title right to fish for abalone under s 211(2) of the Native Title Act 1993 (Cth). The magistrate upheld this defence, and so acquitted the respondent of both counts. As explained in the earlier reasons published in this matter,[1] this Court reached a different conclusion, holding that the magistrate erred in upholding this defence.
[1] Dietman v Karpany [2023] SASCA 52.
Whilst indicating an intention to set aside the acquittals on Counts 3 and 4, and to remit the matter to the Magistrates Court for sentence, the Court requested submissions from the parties as to whether it was appropriate to substitute convictions on both counts. In particular, the Court questioned whether the overlap in the elements and conduct the subject of the two counts meant that it would infringe the principle against double jeopardy to enter convictions on both counts.
In Pearce v The Queen,[2] the High Court described two aspects of the principle against double jeopardy. The first operates to prevent a person being prosecuted for, or at least convicted of, two offences arising out of the same conduct where the elements of each offence are the same, or the elements of one are wholly included within the elements of the other.[3] The second operates where a person stands to be punished for two offences containing common elements, and requires that the person not be punished twice for conduct falling within that area of overlap.[4]
[2] Pearce v The Queen (1998) 194 CLR 610.
[3] Pearce v The Queen (1998) 194 CLR 610 at [18], [24], [28] (McHugh, Hayne and Callinan JJ), [63] (Gummow J), [125] (Kirby J).
[4] Pearce v The Queen (1998) 194 CLR 610 at [40] (McHugh, Hayne and Callinan JJ), [68] (Gummow J), [120] (Kirby J).
There is plainly an overlap between Counts 3 and 4 in the present case. Both relate to the possession of the same catch bag of abalone. In determining whether convictions may nevertheless be entered for both counts, it is necessary to consider whether the first aspect of the principle against double jeopardy applies. As this turns upon an understanding of the elements of the offences alleged, it is necessary to commence by setting out the terms of the alleged offences, and the provisions of the legislative regime under which they arise.
The Information filed by the informant was in the following terms:
3.On 7 March 2017, at Cockle Beach on Yorke Peninsula in the State of South Australia, the first defendant was in possession or control of an aquatic resource of a prescribed class, namely 153 green lip abalone (Haliotis Laevigata).
Contrary to section 72(2)(c) of the Fisheries Management Act 2007 and Regulation 8(1)(b) and Schedule 3 of the Fisheries Management (General) Regulations 2007.
This is a minor indictable offence.
Particulars
3.1 The first defendant was in possession or control of a mesh catch bag containing 153 greenlip abalone (Haliotis Laevigata).
AND the information alleges that the fish were in the possession or control of the defendant for the purpose of sale.
AND the information alleges that the wholesale value of the aquatic resources at the time of the commission of the offence was $1,974.90.
4.On 7 March 2017, at Cockle Beach on Yorke Peninsula in the State of South Australia, the first defendant was in possession or control of an aquatic resource of a prescribed class, namely undersized abalone.
Contrary to section 72(2)(c) of the Fisheries Management Act 2007 and Regulation 8 and Schedule 2 of the Fisheries Management (General) Regulations 2007.
This is a minor indictable offence.
Particulars
4.1 At all relevant times the first defendant was in possession or control of a catch bag containing 118 greenlip abalone (Haliotis Laevigata) which were under size.
4.2 One hundred and seventeen shucked abalone were less than the minimum weight of 113 gm.
4.3 One unshucked abalone had a shell less than the minimum length of 13 cm.
AND the information alleges that the fish were in the possession or control of the defendant for the purpose of sale.
AND the information alleges that the wholesale value of the aquatic resources at the time of the commission of the offence was $1,379.30.
Counts 3 and 4 both allege contraventions of s 72(2)(c) of the Fisheries Management Act. Section 72 is in the following terms:
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.
(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).
(7) Subsection (2) does not apply where a person has possession or control of an aquatic resource of a protected species pursuant to a permit issued by the Minister.
(8) The Minister must not issue a permit for the purposes of subsection (7) unless of the opinion that it is in the public interest to do so.
Section 72(2)(c) prohibits the sale, purchase, possession or control of an aquatic resource of “a prescribed class”. The meaning of this phrase requires consideration of the Fisheries Management (General) Regulations 2007 (the Regulations).[5] Regulation 8 is in the following terms:
[5] The 2007 Regulations were in force as at the date of the alleged offending (7 March 2017), but were subsequently replaced by the Fisheries Management (General) Regulations 2017 with a commencement date of 8 August 2017. These subsequent regulations contain relevantly identical provisions to those addressed in these reasons.
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.
“Undersize fish” is defined in regulation 3(1) to mean fish that are undersize as determined in accordance with Schedule 2 of the Regulations. Schedule 2 relevantly provides, in clause 6(2)(b),[6] that greenlip abalone are undersize if less than 13 cm in length or 113 gm in weight (the meat having been removed from the shell).
[6] Noting that clause 5 applies to abalone taken by a licensed person (clause 5(b)), and clause 6 applies to abalone taken by an unlicensed person (clause 6(4)).
Schedule 3 is headed “Commercial quantities” and contains a two-column list, with Column 1 headed “Class of fish” and Colum 2 headed “Quantity”. The list in Column 1 includes “Abalone (Haliotis spp.)” with the quantity specified in Column 2 being “more than 25”.
In summary, Counts 3 and 4 both allege contraventions of the s 72(2)(c) prohibition against the possession or control of an aquatic resource of a prescribed class. Count 3 alleges contravention of that section by reason of the possession or control of 153 greenlip abalone, being aquatic resources of a class specified in Schedule 3 for the purposes of reg 8(1)(b). Count 4 alleges contravention of that section by reason of the possession of 118 greenlip abalone, being undersize fish in accordance with Schedule 2 for the purposes of reg 8(1)(a).[7] As mentioned earlier, the two counts relate to the same catch bag of abalone, with the 153 abalone the subject of Count 3 including the 118 abalone the subject of Count 4.
[7] With 117 of the abalone being under the minimum weight, and the other abalone being under the minimum length, provided for in Schedule 2 of the Regulations.
We observe in passing that both Counts 3 and 4 allege that the abalone were in the possession of the respondent for the purposes of sale, thus attracting the higher maximum penalty applicable to the “pseudo-aggravated”[8] form of the s 72(2)(c) offence.[9] By reason of s 72(3), a purpose of sale is to be presumed, in the absence of proof in the contrary, if it is proved that a person has a “commercial quantity” of the abalone in his or her possession or control. A “commercial quantity” is defined in s 3(1) of the Fisheries Management Act to mean a quantity declared by the Regulations to be a commercial quantity for the purposes of that Act; and under reg 4 of the Regulations, “a quantity specified in Schedule 3 is declared to be a commercial quantity in relation to the class of aquatic resource specified alongside that quantity”. As mentioned, the quantity appearing for abalone in Column 2 of Schedule 3 is “more than 25”.
[8] As it was described in Wanganeen v Dietman (2021) 139 SASR 170 at [190] (the Court).
[9] Noting that greenlip abalone are “fish of a priority species” (s 3(1)) for the purposes of the pseudo-aggravated form of the s 72(2)(c) offence.
The informant contends that Counts 3 and 4 allege two different offences. In support of this contention, the informant argues that the elements of the offences are to be determined having regard to not only the terms of s 72(2)(c) of the Fisheries Management Act, but also the provision in reg 8 of the Regulations of two means of establishing that an aquatic resource is of a prescribed class: namely, by reason that it is undersize in accordance with Schedule 2 (reg 8(1)(a)) or by reason that it belongs to a class specified in Schedule 3 (reg 8(1)(b)).
It follows that the elements of the Count 3 offence[10] are:
1.possession or control;
2.of an aquatic resource;
3.of a class specified in Schedule 3.
[10] Being the combined effect of s 72(2)(c) and reg 8(1)(b).
And the elements of the Count 4 offence[11] are:
1.possession or control;
2.of an aquatic resource;
3.which is undersize in accordance with Schedule 2.
[11] Being the combined effect of s 72(2)(c) and reg 8(1)(a).
This much may be accepted. However, it is the next step in the informant’s argument that is controversial. He contends that the third element of the Count 3 offence requires proof not merely that the defendant is in possession of an aquatic resource that is of a class listed in Column 1 of Schedule 3, but also that the defendant is in possession or control of the quantity of the relevant class of aquatic resource specified in Column 2 of Schedule 3. In the case of greenlip abalone, this would require proof of possession or control of more than 25 greenlip abalone. In other words, the third element of the Count 3 offence requires proof of a class and quantity specified in Schedule 3.
The informant accepts that if proof of a specified quantity is not an element of the Count 3 offence, then the elements of Count 3 would be wholly included within the elements of Count 4, with the result that the respondent could not properly be prosecuted for, or convicted of, both offences in respect of the 118 (undersize) greenlip abalone the subject of Count 4. By way of explanation, the first and second elements of each offence would be the same, requiring proof of (1) possession or control (2) of greenlip abalone. If the third element of Count 3 requires proof merely that the aquatic resource is of a class listed in Column 1 of Schedule 3, then this element would be satisfied by proof that the aquatic resource in question are greenlip abalone, and would not add anything to the first two elements. The result would be that the elements of Count 3 are wholly included within the elements of Count 4.
However, the informant argues that if proof of a specified quantity is an element of the Count 3 offence, then it would follow that whilst there is an overlap between the two offences (given the identity between elements 1 and 2 of both offences), it could not be said that the elements of the two offences are identical, or that the elements of one are wholly included within the other. The third element of Count 3 would require proof of a matter (a specified quantity) that is not an element of Count 4; and the third element of Count 4 would require proof of a matter (undersize) that is not an element of Count 3.
The informant accepts that, on a strict textual analysis of s 72(2)(c) and the Regulations, proof of a specified quantity is not an element of the Count 3 offence. There is nothing on the face of s 72(2)(c) or reg 8(1)(b) which indicates that the quantity of the aquatic resource is relevant to establishing that the aquatic resource is of a prescribed class. Regulation 8(1)(b) requires merely that the aquatic resource be “of a class specified in Schedule 3”. It does not mention quantity. Schedule 3 then lists, in Column 1, the classes of fish which are prescribed. Whilst Schedule 3 separately lists or specifies quantities for each class in Column 2, there is nothing on the face of s 72(2)(c) or reg 8(1)(b) which engages the quantities appearing in that column.
It is significant in this regard that the Fisheries Management Act and Regulations recognise a distinction between class and quantity in several places. For example, whilst s 72(2)(c) and reg 8(1)(b) refer to a “class” of aquatic resource, the s 72(3) aid to proving that possession or control is “for the purposes of sale” in order to make out the pseudo-aggravated form of the offence is engaged by proof of a “commercial quantity”. As explained earlier, by reason of the s 3(1) and reg 4 definitions of commercial quantity, this engages the specified quantities in Column 2 of Schedule 3. Similarly, the operation of s 72(6) is predicated upon proof of a “prescribed quantity” of aquatic resource of the relevant class; and by reason of reg 8(2), the prescribed quantity for the purposes of that subsection is the quantity specified in Column 2 of Schedule 3.
However, the informant contends that the Court should reject this strict textual analysis of s 72(2)(c) and the Regulations. He contends that the Court should do so on the ground that a literal construction of these provisions would be contrary to the purposes of the Fisheries Management Act and, indeed, lead to unexpected, if not absurd, consequences.
In developing this contention, the informant argues that the effect of a literal reading of these provisions would be that possession of a single abalone (or indeed, a single King George Whiting, Southern Garfish, or Blue Swimmer Crab, being fish of a prescribed class) would be a criminal offence. He argues that this would be an absurdity in circumstances where the Fisheries Management Act and Regulations clearly contemplate recreational fishing. Section 7(1) of the Fisheries Management Act provides that, in pursuing the Act’s object of protecting, managing, using and developing the aquatic resources of the State in a manner that is consistent with ecologically sustainable development, a principle which applies is that “recreational fishing and commercial fishing activities are to be fostered for the benefit of the whole community”.[12] Consistently with this, the Fisheries Management Act and Regulations are drafted in terms that contemplate permitting recreational fishers to engage in fishing activities, and to take and possess fish, where this is not otherwise prohibited by the Act (for example, taking fish in excess of the prescribed bag and boat limits[13] or selling recreationally caught fish[14]).
[12] Fisheries Management Act, s 7(1)(d).
[13] Relevantly for abalone, the bag limit is five and the boat limit is 10 per day; see s 70 of the Fisheries Management Act and reg 7(a) and Schedule 6, clause 62 of the Regulations.
[14] Fisheries Management Act, s 72(1).
Based on the above, the informant contends that the literal construction of s 72(2)(c) and reg 8(1)(b) would be inconsistent with the context and purpose revealed by a consideration of the provisions of the statute as a whole;[15] that it would not be an interpretation which best achieves the purpose or object of the Act and Regulations;[16] and that it would result in an unexpected, if not absurd, breadth of criminal liability that cannot have been intended.
[15] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] and [71] (McHugh, Gummow, Kirby and Hayne JJ).
[16] Legislation Interpretation Act 2021 (SA), s 14(1).
In an attempt to overcome these contended difficulties with a literal construction of the relevant provisions, the informant proffered two alternative approaches to the construction of the relevant provisions of the Act and Regulations, which may conveniently be referred to as the second and third constructions.
The second construction involves reading the reference to “aquatic resources of a class specified in Schedule 3” in reg 8(1)(b) as implicitly referring to not only the class specified in Column 1 of Schedule 3, but also the corresponding quantity appearing in Column 2 of Schedule 3. There is some attraction to this construction of reg 8(1)(b). Whilst it involves departing from the literal interpretation of the references to “class” (as opposed to quantity) in the relevant provisions, it appears to give effect to the purpose of the Act, and to avoid the unexpected, if not absurd, breadth of criminal liability consequent upon the literal construction of these provisions.
In developing his submissions, the informant adverted to a potential difficulty with this second construction, which he contended also affected the literal construction. The potential difficulty is that, like the literal construction, the second construction might be said to create a tension with the operation of s 72(6). As the informant explains, s 72(6) reads as though it is intended to operate as an aid to proof of the offences created by ss 72(2)(a), (b) and (c). However, if the literal construction is adopted, then the threshold requirement for the operation of s 72(6) (namely, proof of possession or control of more than the prescribed quantity of the relevant aquatic resource (s 72(6)(b))) would be more onerous than what s 72(2)(c) otherwise requires (namely, proof of possession or control of any number of the relevant aquatic resource). Further, even if the second construction were to be adopted, then the threshold requirement for the operation of s 72(6) would be the same as what s 72(2)(c) otherwise requires (namely, proof of possession or control of the quantity of the aquatic resource specified in Column 2 of Schedule 3).
In an attempt to overcome this potential difficulty, the informant also proffered a third construction, which he ultimately submitted was the preferable construction of the relevant provisions.
The third construction involves reading s 72(6) not as an aid to proof of the offences created by s 72(2), but rather as setting out additional matters that must be proved in order to establish an offence under that section in respect of an aquatic resource of a prescribed class. Reading s 72(6) in this way would mean that, by reason of s 72(6)(b), proof of an offence under s 72(2)(c) requires proof of the possession or control of the prescribed quantity of aquatic resources of the relevant class. Under reg 8(2), the prescribed quantity is the quantity specified in Column 2 of Schedule 3. In this way, the quantity specified in Column 2 of Schedule 3 becomes an element of the offence alleged in Count 3.[17]
[17] Noting also that, by reason of s 72(6)(a), proof that the defendant did not hold an authority or was not a registered fish processor would also be an element.
In urging this third construction upon the Court, the informant contended that it involved construing s 72(2)(c) and reg 8(1) in the context of s 72(6) and reg 8(2), and giving those provisions work to do. He contended that by incorporating the specified quantity as an element of the offence, this construction also reflected the objects of the Fisheries Management Act, and avoided the unexpected, if not absurd, results of the literal construction.
The informant contends that support for the third construction can be found in the legislative history of s 72. The predecessor to s 72 was s 44 of the Fisheries Act 1982 (SA). Section 44(2) of the predecessor legislation initially prohibited a person selling or purchasing, or having possession or control of either (a) fish taken in contravention of that Act or a corresponding law or (b) fish of a prescribed class. Sections 44(2)(a) and (b) were thus the equivalents of ss 72(2)(a) and (c) of the current legislation. The concept of fish of a prescribed class in s 44(2)(b) was intended to capture protected species of fish as well as undersize fish. In 2002 the legislature introduced a separate prohibition against selling or purchasing, or having possessing or control of, protected species of fish in s 44(2)(ab) (being the equivalent of s 72(2)(b) in the current legislation). As a result, the prohibition in respect of fish of a prescribed class in s 44(2)(b) was confined to undersize fish.[18] It followed that the s 44(2) offence was confined in its operation to fish that it was always unlawful to sell, purchase, possess or control; that is, regardless of quantity.
[18] Fisheries (General) Regulations 2000, reg 7(1).
Importantly, s 44(4) of the predecessor legislation (being the equivalent of s 72(6) in the current legislation) was expressed as applying only to offences under s 44(2)(a) of the predecessor legislation (the equivalent of s 72(2)(a) of the current legislation); it did not apply to s 44(2)(ab) or (b) (the equivalents of s 72(2)(b) and (c)). In that context, s 44(4) operated to reverse the onus of proof in relation to the s 44(2)(a) offence in relation to fish taken in contravention of the law. It meant that a person who sold, purchased, possessed or controlled more than the prescribed quantity of fish bore the onus of proving that they were not taken unlawfully.
Upon the introduction of the Fisheries Management Act and Regulations in 2007, the reach of s 72(2)(c) was expanded beyond that of its predecessor. By reason of reg 8(1), it was expanded to cover not only undersize fish (reg 8(1)(a)) but also aquatic resources of a class specified in Schedule 3 (reg 8(1)(b)) (which included a number of species which it was not always unlawful to take (such as King George Whiting)). Further, the reach of s 72(6) was expanded to apply to all offences under s 72(2), and not just offences under s 72(2)(a).
Drawing on this legislative history, the informant contends that it supports the construction of s 72(6) as a provision that operates substantively upon s 72(2)(c) by setting out additional matters that must be proved to make out that offence.
In concluding his submissions, the informant contends that because s 72(6) would have no work as an aid to proof, it is best construed as introducing the requirements of s 72(6)(a) and (b) as matters that must be proved by the prosecution when alleging contravention of s 72(2)(c). Accordingly, he contends, s 72(2)(c) and reg 8(1)(b) may be read as either:
·only picking up the species listed in Column 1 of Schedule 3 as the relevant ‘class’ (the literal construction), with s 72(6) additionally requiring proof of a lack of authority (s 72(6)(a)) and a prescribed quantity (s 72(6)(b)); or
·implicitly picking up both Columns 1 and 2 of Schedule 3 (the second construction), with s 72(6) additionally requiring proof of a lack of authority (s 72(6)(a)).
On either interpretation, the informant maintains that a prescribed quantity (being the quantity specified in Column 2 of Schedule 3) is an element of the Count 3 offence.
In considering the informant’s submissions, and the competing constructions contended for, it is important to bear in mind the proper approach to the interpretation of legislation, and in particular the limits upon the use that may be made of purposive, and broader contextual, considerations. As the High Court recently emphasised in Disorganised Developments Pty Ltd v State of South Australia,[19] they may not be used to remedy perceived legislative inattention or to otherwise rewrite legislation in light of its purposes. Any meaning must be consistent with the language in fact used in the legislation:[20]
The general principles relating to the interpretation of primary legislation are equally applicable to the interpretation of subordinate legislation[21]. Accordingly, the task of construing the Cowirra Regulations involves attributing legal meaning to the legislative text, read in context: expounding the meaning of the text and not seeking "to remedy perceived legislative inattention".[22]
A purposive approach to the interpretative task is required by s 14(1) of the Legislation Interpretation Act 2021 (SA), which provides that "the interpretation that best achieves the purpose or object of the Act or the instrument (whether or not that purpose or object is expressly stated in the Act or instrument) is to be preferred to any other interpretation". The court may consider the purposes of the relevant legislation in determining whether there is more than one possible construction but may not rewrite legislation in the light of its purposes.[23] Any meaning must be consistent with the language in fact used in the relevant legislation.[24]
[19] Disorganised Developments Pty Ltd v State of South Australia (2023) 97 ALJR 575.
[20] Disorganised Developments Pty Ltd v State of South Australia (2023) 97 ALJR 575 at [14]-[15] (Kiefel CJ, Gageler, Gleeson and Jagot JJ).
[21] Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101 at 110 [19]; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398; King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 195.
[22] Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531 at 556-557 [65]. See also Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 127 [28]; H Lundbeck A/S v Sandoz Pty Ltd (2022) 96 ALJR 208 at 222 [63]; 399 ALR 184 at 198.
[23] Mills v Meeking (1990) 169 CLR 214 at 235.
[24] Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113; Taylorv The Owners – Strata Plan No 11564 (2014) 253 CLR 531 at 549 [39].
It may be appropriate to depart from a literal construction where that is necessary to avoid patently unintended or absurd results. This may extend to reading statutory text as containing implicit words. However, once again, as Gageler and Keane JJ observed in Taylor v The Owners – Strata Plan No 11564, there are limits to this approach:[25]
The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
[25] Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531 at [65] (Gageler and Keane JJ).
Having had regard to all of the above, it is difficult to escape the force of the literal construction of the relevant provisions and in particular reg 8(1)(b). In circumstances where the Fisheries Management Act and Regulations clearly distinguish between the class and quantity of aquatic resources, the reference in reg 8(1)(b) to a “class” specified in Schedule 3 must be understood as a reference to a class of aquatic resources in Column 1 of that Schedule. It does not encompass, even implicitly, reference to the corresponding quantity in Column 2. These quantities are engaged by other provisions of the Fisheries Management Act and Regulations, but not by reg 8(1)(b).
It is true that this results in what may be described as a surprising, and unlikely to have been (subjectively) intended, extension of criminal liability under s 72(2)(c) to the possession or control of small quantities of various classes of fish. It is also true that it sits uncomfortably with the general purposes of the Fisheries Management Act insofar as its objects include fostering recreational fishing. These difficulties with the literal construction may be ameliorated to some extent by the defence provided for in s 72(5). But regardless of the extent to which this may be so, the authorities mentioned above make it plain that there are limits to the use that may be made of broader contextual and purposive considerations when construing legislation. The construction adopted must be consistent with the language used. In the present case, it would be to depart from the language used, and to engage in the task of rewriting or repairing the legislation, to construe the reference in reg 8(1)(b) to a “class” specified in Schedule 3 as meaning a “class and corresponding quantity” specified in Schedule 3. If that is what was (subjectively) intended, then the regulation will have to be amended to give effect to that meaning.[26]
[26] Assuming it would be within the Regulation making power to specify a class by reference to a class and quantity, as to which we express no view.
The above is enough to reject the second construction proffered by the informant. The third construction should also be rejected. To construe s 72(6) as stipulating additional elements that must be proved to establish a s 72(2)(c) offence would be to depart from the text and context of that subsection. It is expressed as an aid to proof, rather than a substantive offence provision. This understanding of s 72(6) is supported by not only its terms but also its location, separate from the offence provisions (ss 72(1) and (2)), and after another aid to proof provision (s 72(3)) and a defence provision (s 72(5)).
In supporting the third construction, the informant argued that s 72(6) would not have any work to do as an aid to proof, and sought to support this argument by reference to the predecessor to s 72(6) (being s 44(4) of the Fisheries Act 1982). However, it seems that, if anything, this legislative history supports the view that s 72(6) is intended as an aid to proof. As the informant accepted, under the predecessor legislation, s 44(4) operated to reverse the onus of proof in relation to the s 42(2)(a) offence. If this is so, then it would seem that s 72(6) of the current legislation should be construed similarly; that is, as a provision operating to reverse the onus in the context of a prosecution for an offence under s 72(2)(a).
It is to be acknowledged that s 72(6) purports to apply to offences under s 72(2) generally, and hence, unlike s 44(4), is not expressly confined in its operation to the s 72(2)(a) offence (in the way that s 44(4) was confined to the s 42(2)(a) offence). If follows that s 72(6) is textually applicable to, but would not have any work to do, in the context of offences under ss 72(2)(b) and (c). However, we do not consider that this tension in the drafting is a sufficient basis to adopt the third construction.
It follows from an acceptance of the literal construction that the quantity specified in Schedule 3 is not an element of the Count 3 offence. It also follows that the elements of the Count 3 offence are wholly included within the elements of the Count 4 offence. In accordance with the first aspect of the principle against double jeopardy described in Pearce v The Queen, the respondent should not be convicted of both the Count 3 and Count 4 offences for the same abalone.
The informant indicated a preference to proceed with the Count 3 offence in the event that the Court reached the view that it could not proceed with both. In the circumstances, it is appropriate that this Court, in addition to the orders previously indicated, enter a conviction in respect of Count 3 only. The matter should be remitted for sentencing on that basis.
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