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Evans v Strachan

Evans v Strachan

Case [1999] TASSC 115 1 November 1999

Constitutional Validity

Separation of Powers

Judicial Review

Constitutional Law

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[1999] TASSC 115

CITATION: Evans v Strachan [1999] TASSC 115

PARTIES:  EVANS, Kim Ronald
  v
  STRACHAN, David Campbell

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  M305/1998
DELIVERED ON:  1 November 1999
DELIVERED AT:  Hobart
HEARING DATES:  6, 8 October 1999
JUDGMENT OF:  Slicer J

CATCHWORDS:

Constitutional Law (Commonwealth) - Operation and effect of the Commonwealth Constitution - General nature of Commonwealth powers - Separation of powers - Judicial power - Executive power - Act empowering a court to implement control orders against specified classes of people - Consistency with judicial process - The Constitution, ChIII.

Living Marine Resources Management Act1995 (Tas), Pt9, Div7.
Commonwealth of Australia Constitution Act 1900, ChIII.
Kable v The Director of Public Prosecutions (1997) 189 CLR 51, distinguished.
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; R v Toohey; ex parte Northern Land Council (1980 - 1981) 151 CLR 170; Moffat v R (1997) 91 A Crim R 557; Kruger v Commonwealth of Australia (1997) 146 ALR 126; Nicholas v R (1998) 99 A Crim R 57, considered.
Aust Dig Constitutional Law [136]

Constitutional Law (Commonwealth) - Operation and effect of the Commonwealth Constitution - Full faith and credit to state laws - Double jeopardy - Whether implementation of a control order creates double jeopardy - Purpose and scope of legislation.

Living Marine Resources Management Act1995 (Tas), Pt9, Div7.
Commonwealth of Australia Constitution Act 1900, s118.
Moffat v R (1997) 91 A Crim R 557, followed.
Gratwick v Johnson (1945) 70 CLR 1; Renkon v Renkon (1918) 25 CLR 291; Breavington v Godleman (1988) 169 CLR 41; McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1; Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd (1933) 48 CLR 565, considered.

Aust Dig Constitutional Law [137] [254]

REPRESENTATION:

Counsel:
             Applicant:  F C Neasey
             Respondent:  G Wendler
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Baker Tierney & Wilson

Judgment Number: [1999] TASSC 115
Number of Paragraphs: 30

Serial No 115/1999
File No M305/1998

KIM RONALD EVANS v DAVID CAMPBELL STRACHAN

REASONS FOR JUDGMENT SLICER J

1 November 1999

The applicant seeks the making of a control order against the respondent, a former licensed fisherman, in accordance with the Living Marine Resources Management Act 1995 ("the Act"), Pt9, Div7. The respondent has numerous convictions commencing in 1970 for breaches of fisheries legislation in Tasmania and Victoria. On 12 March 1997, the respondent was convicted of seven offences contrary to the Sea Fisheries Regulations 1962, such offences occurring on 15 January 1995 and was sentenced to a term of imprisonment of six months and fined (with special penalties) a total of $8,550. On 24 April, he was sentenced to a term of imprisonment for four months and fined (with special penalties) a further sum of $132,500 following his conviction, pursuant to the Act, s60. By virtue of the latter conviction alone, he…

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.

Continue reading Evans v Strachan

Details

AGLC: Evans v Strachan [1999] TASSC 115
Case: [1999] TASSC 115
Decision Date: 1 November 1999

CaseChat Overview and Summary

Evans v Strachan involved a challenge to the validity of provisions of the Living Marine Resources Management Act 1995, Part 9, Division 7, which provided for the making of control orders against certain classes of people. The applicant, Evans, was seeking a control order against Strachan, a former licensed fisherman with numerous convictions for breaches of fisheries legislation. The challenge was based on the principles of judicial power as stated by the High Court in Kable v The Director of Public Prosecutions and the effect of the Constitution, s118, on the capacity of the Secretary to have regard to convictions imposed in other jurisdictions in any decision to commence proceedings. The court rejected the contention that the statutory provisions offended the constitutional principles of the exercise of judicial power and held that the legislation was within power and did not offend the principles governing the proper exercise of judicial power. The court also held that the legislation did not offend the provisions of the Constitution, s118 or the principles of autre fois convict or "double jeopardy". The court found that the provisions of the Act were a condition precedent to the commencement of proceedings and the court had unfettered discretion in relation to its determination. The court also held that the restriction order attached to the protective or managerial purpose of the legislation and a person was not liable to sanction (over and above restriction of movement) unless the order was breached.

Orders