Gray, K.J. v Coleman, M.A

[1994] FCA 368

KEVIN JAMES GRAY, FRANCESCO PIRELLO (JNR), GAVIN WICKS, ANTONIO LA MACCHIA AND
OTHERS v. MARK ANTHONY COLEMAN AND THE COMMONWEALTH DIRECTOR OF PUBLIC
PROSECUTIONS
Nos. NG128, 129 and 130 of 1994
FED No. 368/94
Number of pages - 14
Fisheries - Statutory Interpretation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
EINFELD J

CATCHWORDS

Fisheries - plan of management of fishery - validity of assignment under plan of fishing limits for boats in presence of invalidity of method of allocating limits under plan - validity of condition of licence and notice issued pursuant to plan - effect on charges against operators for breaches of conditions of licences and notice

Statutory Interpretation - severance - relevance of intention of legislature as found in objects of Act and plan of management for fishery

Fisheries Act 1952 (Cth) ss 5, 7B, 8, 9, 13
Acts Interpretation Act 1949 (Cth) ss. 33, 46(b)

Bank of New South Wales v Commonwealth (1948) 76 CLR 1
Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242
Saraswati v R (1991) 172 CLR 1
Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381
La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201
Director of Public Prosecutions v Head (1959) AC 83
Hoffman-La Roche v Secretary of State for Trade and Industry (1975) AC 295
Director of Public Prosecutions v Hutchinson (1990) 2 AC 783
Ellis v Dubowski (1921) 3 KB 621
Firman v Ellis (1978) QB 886
Dunkley v Evans (1981) 3 All ER 285
Quietlynn Ltd v Plymouth Council (1987) 3 WLR 189
Judicial Review of Administrative Action (1980) 4th ed
Administrative Law (1988) 6th ed, Clarendon Press, Oxford

HEARING

SYDNEY, 28 March 1994 #DATE 31:5:1994

Counsel and solicitors for Mr x Robson instructed by
the applicant in NG 128 OF 1994 Messrs A.P. Sparke and Broad

Counsel and solicitors for Mr P. Graham QC with Mr M.
the applicants in NG 129 Smith instructed by Messrs
of 1994 Kennedy and Cooke

Counsel and solicitors for Mr R. Gyles QC and Dr G.
the applicants in NG 130 Flick SC instructed by
of 1994 Messrs Bush Burke and Co

Counsel and solicitors for Mr JJ Spigelman QC with
the respondents Mr JJ Miller instructed

by Commonwealth Director of Public Prosecutions

JUDGE1

INTRODUCTION
EINFELD J The applicants in this matter have been charged in the Local Court with criminal offences in relation to the illegal taking of Rexea Solandri, commonly known as gemfish, in an area (the South East Fishery) covered at the relevant time by the South East Fishery (Individual Transferable Quota) Management Plan 1991 (the plan). The informant is the first respondent, a District Fisheries Officer. The offences involve alleged contraventions of a condition of fishing licences issued under the plan (the licence condition), and of Fisheries Notice No. SEF1 (the notice) under the Fisheries Act 1952 (the Act). The plan and notice were gazetted on 9 and 18 December 1991 respectively and were in force from then until the end of 1992. By that time the relevant parts of the Act had been repealed by the Fisheries Legislation (Consequential Provisions) Act 1991 to make way for the Fisheries Administration Act 1991, the Fisheries Management Act 1991 and other legislation introducing a new scheme of regulation. In this case, which was transferred from the Equity Division of the Supreme Court of New South Wales on 2 March 1994, the applicants seek declarations having the effect that the charges are not maintainable because of the invalidity of paragraph 11 of the plan. Paragraph 11, which contained a method for allocating quotas to fishing operators within the fishery, was held invalid by a Full Court of this Court, on appeal from O'Loughlin J who had held the same, in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 (Austral) for being so unreasonable "that no reasonable person could ever have devised it".

The Charges
2. The charges allege that the applicants have variously contravened one or all of paragraphs (f), (g) or (h) of section 13(1) of the Act. These paragraphs provided:

13 (1) A person shall not -

....

(f) being the holder of a licence under this Act, contravene or fail to comply with a condition of the licence;

(g) being the holder of a licence under this Act in respect of a boat, cause or permit a person acting on his behalf to contravene or fail to comply with a condition of the licence;

(h) being a person acting on behalf of the holder of a licence under this Act in respect of a boat, contravene or fail to comply with a condition of the licence...

1. The relevant licence condition provided:
   

This licence only permits the taking, by the method known as trawling, of a specified species, as defined in (the plan), by the boat described in Schedule 1 of the licence when it has:

- assigned to it units under (the plan) in respect of that species

not been used to take, during the year in the area of proclaimed waters specified in Schedule 1 of (the notice), a total weight of that species exceeding the quota in relation to those units

1. Some of the applicants have also been charged with contraventions of paragraph (i) of section 13(1), which provided that a person shall not:
   

do an act prohibited by a notice for the time being in force under section 8.

1. Clause 4 of the notice prohibited the taking of most fish species by trawling in specified waters from 1 January 1992. However, clause 6 granted an exemption to a boat which:
   

(a) has assigned to it units under (the plan) in respect of a species; and

(b) has not been used to take, during that year in the area of proclaimed waters specified in schedule 1, a total weight of that species exceeding the quota in relation to those units...

1. The alleged offences under these sections occurred in July 1992; the decision on appeal in Austral was handed down on 19 February 1993; and the informations bringing the present charges against the applicants were laid in July 1993.

The legislative scheme
The Act
7. The objects of the Act were as follows:

5B. In the administration of this Act, the Minister shall have regard to the objectives of -

(a) ensuring, through proper conservation and management measures, that the living resources of the Australian fishing zone are not endangered by over-exploitation; and

(b) achieving the optimum utilization of the living resources of the Australian fishing zone...

1. Part III of the Act, headed "Regulation of Fisheries", vested discretionary power in the Minister to make plans of management (s. 7B); to publish notices in the Gazette which inter alia, prohibit fishing (s. 8); to issue licences (s. 9(2)); and to specify "conditions" in licences and grant exemptions from prohibition to licensed operators (s. 9(5)(a)).

2. Section 7B relevantly provided:
   

(1) The Minister may, by instrument in writing, determine a plan of management for a fishery in proclaimed waters.

(2) A plan of management for a fishery shall set out -

(a) the objective of the plan of management; and

(b) measures by which the objective is to be attained.

(3) Without limiting the generality of sub-section (2), the Minister may, in a plan of management for a fishery -

(a) determine the manner in which the fishing capacity of the fishery is to be measured; and

(b) determine the fishing capacity, measured in that manner, permitted for the fishery.

(4) Without limiting the generality of sub-section

(2), a plan of management for a fishery may make provision for and in relation to -

(a) the granting of licences under sub-sections 9

(2) and (3) in relation to the fishery;

(b) the conditions to which licences granted under sub-sections 9 (2) and (3) in relation to the fishery are to be subject; and

(c) the duration, transfer, renewal and variation of licences under sub-sections 9 (2) and (3) in relation to the fishery.

(5) Where, in a plan of management for a fishery, the Minister determines the fishing capacity permitted for the fishery, then, without limiting the generality of sub-section (2), the plan of management may make provision for and in relation to -

(a) the division of the fishing capacity permitted for the fishery into units (in this section referred to as "units of fishing capacity");

(b) the allocation to persons of units of fishing capacity in the fishery;

(c) the assignment of units of fishing capacity to boats, and the holding, and cessation of holding, of units of fishing capacity in relation to boats;

(d) requiring units of fishing capacity to be held in relation to boats;

(e) the determination of the number of units of fishing capacity to be held in relation to boats;

....

(8) While a plan of management is in force for a fishery, the Minister and the Secretary shall perform their functions, and exercise their powers, under this Act in relation to the fishery in accordance with the plan of management, and not otherwise. ....

1. Section 8 relevantly provided:
   

(1) The Minister may, by notice published in the Gazette - ....

(c) prohibit the taking of fish, or fish included in a class of fish specified in the notice, by a method, equipment or boat of a kind specified in the notice; ....

(2) A notice under sub-section (1) may do all or any of the following:

....

(d) provide for exemptions from the prohibition or prohibitions contained in the notice. ....

(4D) A notice under sub-section (1) may provide that the activities to which a prohibition contained in the notice are -

(a) activities in relation to a managed fishery specified in the notice that would be authorized by a licence granted by virtue of paragraph 9(2)(b) or (3)(b) in relation to the managed fishery; or

....

1. Section 9 relevantly provided:
   

(2) ...the Minister or the Secretary may grant to a person a licence in respect of a boat authorizing the use of the boat by that person, or a person acting on that person's behalf, for -

....

(b) a specified managed fishery... ....

(5) A licence granted under this section -

(a) is subject to such conditions as are -

(i) specified in the licence ....

(iii) in the case of a licence granted by virtue of paragraph (2)(b) or (3)(b) - specified in the plan of management for the managed fishery in relation to which the licence has been granted...

....

The plan
12. Paragraphs 5 and 6 of the plan provided:

Objectives

5. For the purposes of subsection 7B(2) of the Act, the objectives of this plan are -

(a) to achieve a level of parental biomass for each stock in the fishery consistent with optimal sustainable yields for that stock having regard to among other things scientific assessments of the status of that stock; and

(b) to promote optimum utilisation of the resource in the fishery.

Measures for obtaining objectives

6. The principal measures for obtaining the objectives specified in paragraph 5 are -

(a) determining the TAC for each specified species that may be taken from the fishery;

(b) at the commencement of this plan dividing the TAC for each specified species into units of fishing capacity and allocating those units to individual operators in the fishery; and

(c) exercising the powers in Part III of the Act so as to prevent a person from using a boat, other than in the course of exempt fishing, to take in a season a liveweight of specified species exceeding the quota in relation to the units in respect of that species which are assigned to the boat.

1. "TAC" (paragraph 6(a)), or "total allowable catch", was defined in the plan as
   

the total liveweight in kilograms, as defined in Schedule 3, of a specified species which may be permitted to be taken from the fishery during a season other than in the course of exempt fishing.

1. Provision was made in paragraph 7.2 of the plan for variation of the TAC by notification in the Gazette.

2. Paragraphs 11.1 - 11.7 of the plan purported to devise a method of determining:
   

11.1 The number of units in respect of a specified species available for assignment to a person in respect of a relevant boat...

1. Once a determination of units had been made using that method, then under paragraph 11.8 the manager of the plan was required to notify the person in respect of whom the determination had been made of, inter alia, the number of units available in respect of the person's boat, and to issue a certificate of unit holdings.

2. Paragraph 14 of the plan, in Part III headed "ASSIGNMENT OF UNITS", provided:
   

Units to be assigned to a boat

14.1 Following the receipt of a notification under subparagraph 11.8, a person may apply to the Manager in a form approved by the Manager for assignment of a number of units of a specified species, not greater than the number of units determined under paragraph 11, to a boat nominated in the application. 14.2 Where an application under subparagraph 14.1 is received by the Manager, and where levy payable in respect of the number of units specified in that application has been received by the Department by the day specified in the notification under subparagraph 11.8, the Manager must -

(a) cause to be issued in respect of the nominated boat an SEF licence ... authorising the use of the boat in the fishery, subject to the provisions of this plan; and

(b) assign to the boat the applicable number of units; and

(c) issue a revised certificate of unit holdings. 14.3 A person must not use a boat in the fishery to take a specified species during a season, other than in the course of exempt fishing, except where units in respect of that species have been assigned to the boat and the boat has not been used during the season to take a total liveweight of that species exceeding the quota in relation to that boat.

"SEF licence" in paragraph 14.2(a) was defined in the plan as

a licence granted in respect of a boat under paragraph 9(2)(b) of the Act authorising the use of the boat in the fishery subject to the provisions of this plan

1. Paragraph 9.1 of the plan specified the quota for each unit at the commencement of the plan to be "one kilogram liveweight".

The case
19. To determine the sustainability of the charges, several questions require to be answered:

1. Did the invalidity of paragraph 11 of the plan taint any other part of the plan?
   20. The invalidity of paragraph 11 established at first instance and on appeal in Austral not being disputed in this case, the real question here is one left undecided in La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201, delivered after the first instance decision in Austral. In La Macchia Justice Burchett refused to grant an interlocutory injunction to restrain the Minister from enforcing the plan as he was not prepared to consider the question of the plan's validity in the context of such an application. His Honour said at 203:
   

...an interlocutory injunction to restrain prosecutions, or investigatory actions directed to possible prosecutions, would not readily be granted in the absence of a final conclusion of invalidity of the management plan.

1. And at 208:
   

In agreement with O'Loughlin J, I hold it follows that para 11 of the management plan is void. But I am unable to see any justification for the suggestion made by counsel for the applicants in argument, without supporting it by any detailed analysis of the provisions of the plan, that the fixing of the total allowable catch is in some way tainted by the invalidity of para 11. Nor has it been demonstrated that any other provision of the plan is so connected with para 11 as to be vitiated with it.

1. This decision was upheld on appeal by a Full Court on 19 February 1993 on the same day as the decision in Austral was published. In none of these judgments has any conclusive finding been made concerning the validity or invalidity of any provision of the plan other than paragraph 11. Justice Burchett in La Macchia found himself unable to do so in the absence of a "detailed analysis" of the plan and in the context of an application for interlocutory relief. Unfortunately, I have not escaped so lightly.

2. Severability of paragraph 14 from paragraph 11
   23. The submissions on behalf of each of the separately represented applicants attacked the licence condition and notice in similar ways, and in the course of the hearing it appeared that all parties wished largely to adopt the submissions of the others. Rather than enunciating each of their various arguments, I shall address them by examining the respondents' submissions in favour of validity, especially their argument for the validity of the licence condition and notice exemption on the basis that paragraph 14 of the plan is severable from paragraph 11. The respondents concede that if paragraph 14 is inseverable from paragraph 11 and therefore invalid, the licence condition and notice exemption are also invalid.

Test of severance
24. It is clear that the Court should attempt severance wherever possible, and that the "blue pencil test" is no longer, if it ever was, the only test. In Dunkley v Evans (1981) 3 All ER 285 an administrative order similar to the plan in this case prohibited herring fishing within a specified area, 0.8% of which was outside the jurisdictional limit of the enabling Act. A fishing operator had been charged with offences in relation to an area not within the offending 0.8%. Rather than striking down the entire order, the English Court of Appeal in effect allowed textual modification by finding that it was intra vires with respect to the remaining 99.2% of the fishery. The Court said at 287:

The general principle is stated in 1 Halsbury's Laws (4th Edn) para 26 thus:

`Unless the invalid part is inextricably interconnected with the valid, a court is entitled to set aside or disregard the invalid part, leaving the rest intact.'

The principle is more fully formulated in the judgment of Cussen J in the Supreme Court of Victoria in Olsen v City of Camberwell Corpn (1926) VLR 58 at 68, where he said: `If the enactment with the invalid portion omitted is so radically or substantially different a law as to the subject matter dealt with by what remains from what it would be with the omitted parts forming part of it as to warrant the belief that the legislative body intended it as a whole only, or in other words, to warrant belief that if all could not be carried into effect, the legislative body would not have enacted the remainder independently, then the whole must fail.'

We respectfully agree with and adopt this statement of the law. It would be difficult to imagine a clearer example than the present case of a law which the legislative body would have enacted independently of the offending portion and which is so little affected by eliminating the invalid portion. This is clearly, therefore, an order which the court should not strive officiously to kill to any greater extent than it is compelled to do.

1. Delivering the judgment of the English Court of Appeal, Ormrod LJ said at 288:
   

We can see no reason why the powers of the court to sever the invalid portion of a piece of subordinate legislation from the valid should be restricted to cases where the text of the legislation lends itself to judicial surgery or textual emendation by excision.

1. The case was remitted to the justices to convict the operator and impose appropriate penalties.

2. In Director of Public Prosecutions v Hutchinson (1990) 2 AC 783 the House of Lords endorsed a mandatory test of "substantial severability". At 804 their Lordships said:
   

A legislative instrument is substantially severable if the substance of what remains after severance is essentially unchanged in its legislative purpose, operation and effect.

1. Lord Bridge, with whom three of the other four Lords agreed, referred to Dunkley v Evans as an illustration of where the "blue pencil" or "textual severability" test was not appropriate, as it
   

would have the unreasonable consequence of defeating subordinate legislation of which the substantial purpose and effect was clearly within the law-maker's powers when, by some oversight or misapprehension of the scope of that power, the text, as written, has a range of application which exceeds that scope. It is important, however, that in all cases a test of substantial severability should be applied. When textual severance is possible, the test of substantial severability will be satisfied when the valid text is unaffected by, and independent of, the invalid. The law which the court must uphold and enforce is the very law which the legislator has enacted, not a different law. But when the court must modify the text in order to achieve severance, this can only be done when the court is satisfied that it is effecting no change in the substantial purpose and effect of the impugned provision.

1. Continuing at 813, he said:
   

I think the proper test to be applied when textual severance is impossible, following in this respect the Australian authorities, is to abjure speculation as to what the maker of the law might have done if he had applied his mind to the relevant limitation on his powers and to ask whether the relevant instrument

`with the invalid portions omitted would be substantially a different law as to the subject matter dealt with by what remains from what it would be with the omitted portions forming part of it:' Rex v Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow and Co, ((1910) 11 CLR 1 at 27 per Griffiths CJ ...

1. In Hutchinson that case their Lordships held that a by-law providing penalties against entry to a military base was wholly invalid because the invalid part including commoners under the prohibition was inseverable, the legislative purpose being to prohibit all unauthorised access; and if all persons exercising rights of common were to be permitted access the by-law would be of a completely different character to that intended.

2. In my opinion these principles contain the correct test for severance in this case, regardless of whether the making of the plan was a legislative or administrative act: as to this question see Austral at first instance and on appeal. The unavoidable issue is therefore whether paragraph 14 is "inextricably interconnected" with paragraph 11. For the reasons which follow I think that it is.

Invalidity of paragraph 14
32. The respondents conceded in argument that paragraph 11, which dealt with the allocation of units to persons in respect of boats, was a "stepping stone" to the operation of paragraph 14, which dealt with the assignment of those units to a boat. I think that even that characterisation goes some way towards indicating its inseverability from paragraph 11. It is clear that paragraph 14 was triggered by a notification made under paragraph 11.8 once the allocation of units in respect of a person under 11.1 - 11.7 was calculated. The process of allocation of units being invalid, I do not see how it was possible for a valid assignment of units to be made, regardless of the validity of the provision in respect of the total allowable catch.

1. I do not think that the reading down provision in section 46(b) of the Acts Interpretation Act 1901 can save paragraph 14. This is not a situation like that in Dunkley v Evans where the relevant provision could be read sensibly so as to encompass only the fishing area within jurisdiction as was obviously intended. Here, the method of allocating quotas to fishing operators has been held entirely invalid. There is no clue as to what method would have been intended to be substituted, nor is the Court equipped to devise one. Yet without a method of allocating quota there is no valid way of dividing between operators the total allowable catch of the relevant species.

The licence conditions
34. It follows from what I have just said that the licence conditions were also invalid. It would lead to an absurd result to require fishing operators to obey quotas determined under an invalid method of allocation. I do not accept the submission of the respondents that the language used in the condition, viz "assigned to it units", was by using the words of paragraph 14 somehow untainted by paragraph 11. In fact paragraph 14 itself was locked in the deadly embrace of paragraph 11. Nor does it assist the respondents to argue that the powers to licence and impose conditions on a licence were derived directly from the Act itself (ie ss. 9(2) and (5)). These powers were required by section 7B(8) to be exercised in accordance with the plan and not otherwise. They were, therefore, also required to be exercised in accordance with paragraph 14.

The exemption
35. In my opinion the exemption in clause 6 of the notice, being referable in its terms to paragraphs 11 and 14 of the plan, suffered the same fate as the licence condition. Section 7B(8) of the Act required the power to issue notices in section 8 to be exercised in accordance with the plan. More importantly, the notice was essentially linked to the plan as it recognised the regulatory "measure" envisaged by paragraphs 6(c) and 14.2. It was not possible for clause 6 to have an operation independent of paragraphs 11 and 14 of the plan. Clause 6 of the notice was therefore also void.

1. Effect of invalidity of licence condition and exemption
   36. The problems of interpretation arising in the context of a partially invalid legislative or administrative act is identified by J M Evans in de Smith's Judicial Review of Administrative Action (1980) 4th ed at pages 105-106 where, in relation to partially invalid by-laws, it is stated:
   

The typical problem in this area of the law arises where a permit or licence has been granted subject to void conditions. Three approaches may be followed by the court...First, it may set aside the entire decision because the competent authority might well have been unwilling to grant unconditional permission; the applicant must therefore start again. Secondly, it may simply sever the bad from the good. In such a case the effect will be to give unconditional permission if all the conditions are struck down, and this may frustrate the intentions of the competent authority. Thirdly, the court may adopt an intermediate position, and sever the invalid condition only if it is trivial, or if it is quite extraneous to the subject-matter of the grant, or perhaps if there are other reasons for supposing that the authority would still have granted permission had it believed that the conditions might be invalid...But (this approach) involves the courts in a speculative attribution of intent to an administrative body, and it would be more satisfactory if the court had statutory power (a) to remit the decision to the competent authority and (b) to award the applicant damages or compensation for such pecuniary loss as he had sustained because of that authority's failure to render a valid decision in the first place.

1. The question arising here is whether, the licence conditions being void, the applicants were in possession of unrestricted licences, or whether the licences too were void, leaving the applicants as unlicensed fishing operators liable to be charged with the taking of any fish whatsoever under section 13(1)(i) of the Act.

2. I shall deal with the alternatives set out in de Smith in reverse order. The third may be quickly disposed of, as the provisions under challenge here are not "trivial". As to the second, in my opinion the applicants were not in possession of unrestricted licences, as the infection of paragraph 14 also fatally injured the issue of licences under the plan. It was submitted for the applicant in NG 130 of 1994 that this result did not follow from the invalidity of paragraph 14, as the power to licence in the Act was separate and distinct from the power to make plans of management or to publish notices. However, as earlier stated, section 7B(8) of the Act required the power to be exercised in accordance with the plan and therefore in accordance with paragraph 14. As a matter of severability, an unconditional licence would be a very different creature from what was purported to be issued and quite contrary to the objects of the plan and the Act. The result is that the licences issued to the applicants were also void.

3. De Smith's first alternative is more difficult. It is clear that the relevant authority would not have granted unconditional permission to catch fish, nor is it possible for the applicants to "start again" as they have already been charged with offences in respect of the invalid licence condition and the notice referable to that condition. The consequence of invalidity of the licences and of clause 6 of the notice is prima facie that the applicants contravened clause 4 of the notice placing a prohibition on fishing -- unless clause 4 too was tainted.

4. The question before the Court therefore becomes: could the delegate have intended that the notice would fall entirely in this situation and that there would be a "free-for-all"? The respondents submitted that this consequence would be in complete contradiction of the Act's stated object of preventing over-exploitation, and that rather there would be a continuing regulation of the total allowable catch as (still) validly defined in the plan. The problem with this submission is that the invalidity of paragraph 11 meant that no method for fixing and regulating the total allowable catch remained. The only submission the respondents could make on this point was that the applicants could be prosecuted under section 13(1)(i) for taking any fish and that they would have available to them a defence of reasonable and honest belief that they were not breaking the law if they had not in fact taken more than the quota determined by reference to paragraph 11. In this way, it was said, the Court would ensure that the consequence of a free-for-all would not occur. A passage from the judgment of Justice McHugh in Saraswati v R (1991) 172 CLR 1 at 21 - 22 was cited.

5. But his Honour's observation at that point were concerned with the interpretation of a valid provision so as to give effect to the underlying purpose or object of the legislation, as required by section 33 of the Acts Interpretation Act, and not with a situation such as this where the relevant Act disclosed two competing objects purported to be balanced by a method of allocation of fishing quotas now found invalid. In such a case, it is not the function or province of the Court to discover what other method of allocation might have been devised so as to give effect to those twin objects. Nor is any help to be derived from the objects and contents of the plan. The only legitimate judicial surgery which may be performed is that of rescuing what the legislature has already created and which, although wounded, may survive as the same creature. It is not legitimate to create a new animal altogether on the pretext that it too would satisfy the objects of the Act or the plan.

6. The prohibition in the notice standing alone was, like the licence without its condition, a vastly different creature from the notice originally published: see eg Dixon J in Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 369-70. It cannot have been the object of the legislature that, paragraph 11 of the plan being invalid, any fishing operator who had been issued a licence under the plan and taken any fish at all could be prosecuted, leaving the operator to make out a defence of honest and reasonable belief that the quota specified in the relevant licence condition was not exceeded. It is simply not permissible for the authorities to enforce the unreasonable, arbitrary and unfair quota allocation of paragraph 11 of the plan in this indirect or "backdoor" way.

7. The result of this finding is that, as a matter of construction and interpretation, clause 4 of the notice could not have been intended by its framers to be capable of severance from clause 6 and the entire notice must fall. It is true that the result of the combined failure of the licence conditions and of the notice means that there was a free-for-all. However, that is not something judicial interpretation can correct and in any event it only applies to a time in the past with no ongoing effects. The consequences of invalidity are for the relevant authorities to address: cf Hutchinson. It has always been the privilege of the Minister to amend the plan or issue new notices, as he has done both before and subsequently to the matters involved here.

8. I do not know of any authority that a person may be prosecuted for breach of a law known to be invalid. Ellis v Dubowski (1921) 3 KB 621 stands for the proposition that no charge can be maintained against a person for breach of an invalid licence condition; and see Quietlynn Ltd v Plymouth Council (1987) 3 WLR 189. An other authority against prosecution for breach of an invalid by-law is Hutchinson. In Director of Public Prosecutions v Head (1959) AC 83 at 104 Lord Somervell of Harrow said:
   

Is a man to be sent to prison on the basis that an order is a good order when the court knows it would be set aside if proper proceedings were taken? I doubt it.

1. In this case the applicants have taken proper proceedings and the licence condition and notice in respect of which they have been charged have been shown to be wholly invalid.

2. The void/voidable distinction
   46. The Full Court in Austral arguably not having determined exactly from when its decision as to the invalidity of paragraph 11 was to run, the respondents' final submission was that, as a matter of both construction and discretion, that date should be the date of the order, being later than the date of the alleged offences. I do not accept this submission. Even Lord Denning, despite his earlier dissent in Head, came to accept that action which is ultra vires is void ab initio: Firman v Ellis (1978) QB 886 cited in Wade, Administrative Law (1988) 6th ed, Clarendon Press, Oxford at pp 348-351. See also Hoffman-La Roche v Secretary of State for Trade and Industry (1975) AC 295 at 365; Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 at 277. As Wade correctly states, discretion is relevant only in the context of remedies, and must not interfere with the citizen's fundamental right to resist unlawful governmental action. In this case I do not think it is appropriate to refuse the relief sought by the applicants, who at common law have the right to fish in pursuit of their livelihood. Orders and declarations
   

3. In the proceedings commenced in the Supreme Court the applicant La Macchia (No. NG 130 of 1994 in this Court) sought no less than 27 separate substantive declarations, the applicant Pirrello (No. NG 129 of 1994) limited himself to a mere 5, and the applicant Gray (No. NG 128 of 1994) a modest and almost inconsequential 4. For myself I should have thought that one declaration would be sufficient in each matter. However, I shall leave to the parties the task of bringing in short minutes of the orders regarded as appropriate to give effect to these reasons for judgment. Those minutes should include orders that the respondents pay the applicant's costs in each case.