Karpany & Anor v Dietman [2012] HCATrans 210

[2012] HCATrans 210

[2012] HCATrans 210

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A18 of 2012

B e t w e e n -

OWEN JOHN KARPANY

First Applicant

DANIEL THOMAS KARPANY

Second Applicant

and

PETER JOHN DIETMAN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 7 SEPTEMBER 2012, AT 10.00 AM

Copyright in the High Court of Australia

MR I.C. ROBERTSON, SC:   May it please the Court, I appear with my learned friend, MR S.G. BERG, for the applicants.  (instructed by Berg Lawyers)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   May it please the Court, I appear with my learned friend, MR A.P. RODRIQUEZ for the respondent.  (instructed by Crown Solicitor (SA))

FRENCH CJ:   Yes, Mr Robertson.

MR ROBERTSON: Your Honours, the two matters upon which the applicants seek special leave relate, firstly, to extinguishment and, secondly, to the operation of section 211 of the Native Title Act.

FRENCH CJ:   Just so I understand, there were two charges against the applicants.  One related to the possession of abalone simpliciter and the other to the possession of undersized abalone.

MR ROBERTSON:   Correct, your Honour.  The possession simpliciter was not pursued, so it is only ground 2 of the information that your Honour will find ‑ ‑ ‑

FRENCH CJ:   So we are only dealing with the undersized?  Okay.

MR ROBERTSON:   Yes, your Honour.  Your Honours, the position in relation to the extinguishment point really falls into three discrete submissions.  The first is that the Full Court failed to identify the incidence of the customary or native title right to fish.  The second is that the Full Court thereby drove themselves into an error because they left themselves with no means of comparison of the relevant incidence of the native title right as compared to the purported legislative creation of inconsistent rights.  The third proposition, your Honours, is to the extent the majority on this point ‑ ‑ ‑

FRENCH CJ:   Sorry, just before you move on to this, I just want to understand, there was a concession which I think is mentioned at 21 - or common ground that:

the customary rights of the Aboriginal group to which the defendants belonged included fishing; and that the customary rights of the Aboriginal group, judged apart from the effect of prior State legislation, included the taking of abalone described as “undersized” under present State law.

MR ROBERTSON:   Correct, your Honour.

FRENCH CJ:   That is the extent of the common ground, as it were, as to relevant native title rights and interests?

MR ROBERTSON:   Correct, your Honour.

FRENCH CJ:   Yes.

KIEFEL J:   But one of the points taken in relation to whether this is an appropriate vehicle to consider the issue of extinguishment is that there is an insufficient factual substratum for this Court to be able to confidently proceed to deal with a matter of principle.

MR ROBERTSON:   Your Honours, we submit that the substratum of fact is, in a sense, not apposite to the conflict in principle because what has happened here is that the matter was considered as a matter of principle, and as a matter of principle the Court found that the native title rights were extinguished by the creation of the Fisheries Act 1971 without then making any inquiry into the relevant native title right.

KIEFEL J:   But what is going to occur if this Court deals with the question as a matter of principle and it hypothetically goes back to be tried on that basis and the factual basis is found to be missing?

MR ROBERTSON:   Your Honour, the short answer to your Honours is that that should not occur because if I take your Honours to the judgment of the magistrate and, in particular, firstly to paragraph 13, which your Honours will find on page 10 of the application book, your Honours will see that the magistrate records the position in relation to what evidence would be called to establish the incidence of the native title right.  That was the prima facie position subject to a ruling on the matter of principle, that is whether the Fisheries Act had extinguished the title as is recorded in paragraph 26 on page 12 of the application book.

KIEFEL J:   But paragraph 14, the prosecution are saying that they will put their defence of proof depending upon how the ruling on the native title right falls out.

MR ROBERTSON:   That is right, your Honour, and that then takes your Honour to paragraph 26 on the next page.

FRENCH CJ:   They changed the position.

MR ROBERTSON:   Yes, your Honour.

KIEFEL J:   I see, yes.  I had not read that.

MR ROBERTSON:   So that that issue will not arise, in my respectful submission.

KIEFEL J:   Yes, I see.  Justice Blue, am I right in thinking, took a different approach to the whole of the case from the majority?

MR ROBERTSON:   He took a different view on the extinguishment point from the majority, your Honours.  The majority adopt Justice Blue’s position in relation to the 211 issue.

FRENCH CJ:   That is whether the exemption is a licence, permit and so forth for the purposes of 211?

MR ROBERTSON:   Exactly, your Honour, yes, and that is paragraph 14 of the majority decision on page 22 of the application book.  Justice Blue takes the position in relation to extinguishment which we advance to this Court and we would submit, your Honours, is consistent with all the decided authority.

KIEFEL J:   But his Honour was I think against you in relation to the distinction between regulation and prohibition, and consistent with Yanner v Eaton and Ward that section 47(2) of the Fisheries Management Act is a complete prohibition in relation to the taking of undersized fish and that would apply whether or not there is a native title right or not.

MR ROBERTSON:   Well, no, with respect, your Honour.  I concede that if the extinguishment issue is decided against me, it does not matter what happens with the 211 issue, but I have to succeed on both the native title issue and the – so the extinguishment issue and the 211 issue.  His Honour decided the 211 issue against the applicants because he found, as your Honour has indicated, but, in our respectful submission, that is a separate issue from the extinguishment regulation versus prohibition issue.

KIEFEL J:   Yes, it is, but it suggests that even if you are right about the extinguishment issue you still have another hurdle and we are looking here about whether this is an appropriate vehicle to run the extinguishment argument.

MR ROBERTSON:   Yes, your Honour.  In my respectful submission, it is an appropriate vehicle because it brings in both aspects, both the native title extinguishment issue and the 211 issue.  In this case they present a convenient vehicle; in fact, they present an ideal vehicle to test the interaction of those particular principles.

FRENCH CJ: Well, you say that for the purposes of section 211(1)(b) the exemptions which the Minister can issue under the Act fall within the category of licence, permit or other instrument?

MR ROBERTSON:   We do, your Honour, but we go further than that and say that his Honour Justice Blue should not have stopped with section 115.  He should have considered the whole of the Act and there are other provisions which tend to suggest that it is regulatory, not absolute prohibition.  So we accept entirely what your Honour the Chief ‑ ‑ ‑

FRENCH CJ:   Well, it is clearly a prohibition subject to exemptions, is it not?

MR ROBERTSON:   Yes, your Honour, it is, and on that basis it is squarely within Yanner v Eaton.

KIEFEL J:   But an exemption is not the same thing as a licence.  That is the area of the difference between regulation, is it not?

MR ROBERTSON: Well, your Honour, it is a question of whether the relevant exemption gives rise to an instrument for the purposes of section 211.

FRENCH CJ:   There is some published register of some kind, is there not, that is required?

MR ROBERTSON:   There is the gazette, your Honour, and we submit that the gazette is relevantly an instrument by reason of the Acts Interpretation Act definition in section 4 of the Acts Interpretation Act (SA). The contention is that section 115, as with the equivalent exemption provision in the West Australian case, Wilkes, which his Honour distinguished, gives rise to a regulatory characterisation rather than to a prohibitory characterisation. 

The additional sections to which we have referred in the outline and, relevantly, your Honour, that is paragraph 29 of the outline which your Honours will find in the application book at page 57 where we have identified the sections, those provisions, your Honours, we say, together with section 115 give rise to a characterisation of the Act which is regulatory rather than absolute prohibition. 

Now, in terms of his Honour’s reasoning on the 211 point, if I can move to the 211 point, picking up your Honour’s question, that reasoning was dependent upon, in substance, distinguishing the West Australian case in Wilkes and it relied upon three matters, we would submit.  The first is that it was not – that is, the South Australian exemption provision was not the subject of an application, but as your Honours know from Mr Berg’s affidavit, that is incorrect and your Honours will find the relevant application at page 340 of the application book and following.

FRENCH CJ:   Well, that is an administrative practice, is it not, and the respondent says that does not inform the statutory construction.

MR ROBERTSON:   That is true, your Honour, that is what the respondent says.  But in terms of his Honour’s reasoning, his Honour says there is no formal application.  There is.  His Honour says that it does not result in the issue of a licence.  We say it results in the issue of an – it is recorded in the instrument, namely the gazette, for the reason that we have identified, and thirdly, insofar as his Honour inferred that the power is exceptionally used, we point to the number of applications which are the subject of summary in SGB15 to Mr Berg’s affidavit, which your Honours will find at pages 344 to 360 of the application book.

FRENCH CJ:   Just coming back to the extinguishment point for a moment, the extinguishment argument against you, the first line argument is based on the Fisheries Act 1971 and on that being the removal, if you like, of the special provisions relating to Aboriginal people I think which had existed in previous statutes and the imposition of basically a prohibition subject to licence.  Now, do you point to a case which has dealt one way or the other with the question of a prohibition as distinct from grants of various forms of title and so forth effecting an extinguishment?

MR ROBERTSON:   No, your Honour, except in Yanner v Eaton the same argument was put forward in terms of the deletion from the provision of a specific reference to Aboriginal people, and that contention was refuted.  Your Honours will find the reference to it at paragraph 109 of Yanner v Eaton, and that is about as close as I could come in terms of pointing your Honours to some particular provision or some particular decision in that regard.

FRENCH CJ:   The respondent also points to section 41 of the 1982 Act on the basis that that was a prohibition inconsistent with the exercise of any native – I am looking at page 373 of the application book, paragraph 33 of the respondent’s submissions:

The provisions are of general application and no issue question of inconsistency with the Racial Discrimination Act 1975 (Cth) arises.

MR ROBERTSON:   Well, your Honour, the latter Act is obviously post the Racial Discrimination Act and that, in my respectful submission, puts an end to that particular argument.

FRENCH CJ:   No, he confesses and avoids, he says, but they are of general application.  The prohibition is of general application.

MR ROBERTSON:   Yes, your Honour, the contention is effectively the elevation of that subsequent provision to a characterisation of some kind of – creation of some kind of statutory right, and that is why we explored in our outline or our summary of argument a contention, in case the Full Court intended to reason but did not set out, that there had been some creation of a statutory right which abrogated by its general prohibition the common law right or a public right. 

In my respectful submission, your Honour, if that was the contention of the Full Court, then the Full Court conflated the two concepts and insofar as it said that the latter Act created an absolute prohibition, that argument rises no higher than the position as pertained under the 1971 Act.  In that regard, your Honour, the statutory right argument insofar as that is the argument the majority based its decision on in terms of extinguishment not only fails to apply the incidence of rights test, it also, with respect, ignores the special position of the right in South Australia, that is, the native title right in South Australia.

That is the relevance of the letters patent argument in the sense of the matters put before the court.  It arises in two ways.  It either arises so as to distinguish the public right from the native title right or, alternatively, it arises by reason of the fact that if one looks to the scheme of the fisheries legislation, in our respectful submission, it is insufficient to simply…..the scheme by looking at the fisheries legislation and ignoring the preservation of rights contained in the letters patent and the subsequent Orders in Council.

Your Honours, I have in substance dealt with my submission on extinguishment. It is recorded at 11 to 16 of our summary of argument, which your Honours will find at pages 53 and 54 of the application book. On the section 211 point, our argument is as identified to your Honours, firstly, that it is attendant of sufficient doubt because of the process of reasoning adopted by his Honour Justice Blue.

We say the foundation for that reasoning has not been established and, therefore, that line of reasoning is attendant of doubt, and, secondly, that in any event his Honour has characterised the relevant section by reference to section 115 only and he should have looked to the other provisions which we have identified which tend to give the Act a regulatory rather than a prohibitory character.  Unless I can assist your Honours any further, they are my submissions on the application for special leave.

FRENCH CJ:   Yes, thank you, Mr Robertson.  Yes, Mr Solicitor.

MR HINTON:   If the Court pleases.  To the extent that a majority of the Full Court has held that section 29 of the 1971 Fisheries Act has extinguished all native title fishing rights in this State we concede that this is a case of importance to the Aboriginal people of this State.

KIEFEL J:   You place reliance, though, upon the view taken by Justice Blue, with whom the other members of the court agreed ‑ ‑ ‑

MR HINTON:   Precisely, your Honour.

KIEFEL J:   ‑ ‑ ‑ to show that this is not an appropriate vehicle.  So regardless of extinguishment, you say that the matter would fail?

MR HINTON:   Yes, your Honour.  It is not the end in terms of the extinguishment argument if special leave were to be refused.  That can be contested in the course of applications for native title determinations in the Full Court, and it can be tested, not only by the Narrunga people of which these two men are members, but by the various other groups around the State who are still waiting for determinations who claim native title fishing rights.  So it is not as though a refusal of a grant of special leave here is decisive and the point once and for all will never be relitigated to the disadvantage of the Aboriginal people.

One more thing before I move on to the section 211 argument, in answer to a question asked by your Honour the Chief Justice of my learned friend as to any case dealing with a prohibition similar to what we have. In my submission, in Western Australia v Ward, the very bylaw there concerning a prohibition on:

“[t]he removal, plucking, or damaging of any wildflower, shrub, bush, tree or other plant growing on any land reserved for or vested in the Minister within half‑a‑mile –

et cetera, is the closest we get to section 72(2)(c) to be found behind tab 17 of the applicant’s materials, which is a prohibition.  Yanner v Eaton is markedly different.  The provision with which it was concerned is to be found behind tab 1, the cases, in my learned friend’s materials, set out in the judgment of the Chief Justice, Justices Gaudron, Kirby and Hayne at paragraph 2, page 360 of the report:

“A person shall not take, keep or attempt to take or keep fauna of any kind unless he is the holder of a licence, permit, certificate or other authority –

a regulatory provision.  This case is closer to Western Australia v Ward.  The bylaw in ‑ ‑ ‑

FRENCH CJ:   Is that bylaw within a national park in Ward?

MR HINTON:   I believe so, your Honour, yes.  Yes, your Honour.

FRENCH CJ:   Because the vesting of the national park was held to effect the extinguishment, was it not, in Ward?

MR HINTON:   Your Honour is testing me now.

FRENCH CJ:   That is the whole point.

MR HINTON:   Unfortunately, we do not have the case in the courtroom here, but as I understood it, it was not just the vesting of the national park but the bylaw itself was held to extinguish native title in any wildflower, shrub, et cetera.  Can I turn to the 211 argument?  What I was attempting to do there was to provide your Honour the Chief Justice with a case closer to this where it has to some extent been considered and considered in favour of the respondent.

With respect to the 211 argument, I have taken your Honours to section 72(2)(c).  It is a prohibition, not regulation.  Its relationship to the regulations that pick up undersize abalone is explained by Justice Blue, application book pages 31 and 32, paragraphs 47 and 48 of his judgment.  You cannot take green lip abalone less than 13 centimetres in size.  There is no provision in this Act that permits you to obtain a licence or a permit to take green lip abalone of less than 13 centimetres in size.

FRENCH CJ:   You can get a thing called an exemption from that prohibition, can you not, which may apply to a class of persons or to individuals?

MR HINTON:   Agreed, your Honour.  It takes you outside the Act entirely.

FRENCH CJ:   Well, it does not take you outside the Act, it is within the framework of the Act.  It lifts the prohibition, does it not?

MR HINTON:   It does, your Honour, but it is not a provision that permits the Minister to set up some sort of ad hoc permit licence system.  It is for that reason, in our submission, Justice Blue, with respect, was correct.

FRENCH CJ:   What are the constraints on the issue of exemptions?

MR HINTON:   The constraints are none specific, but they would be, of course ‑ ‑ ‑

FRENCH CJ:   The scope and purposes of the Act, I suppose.

MR HINTON:   The scope and purpose, yes, your Honour.  Here, of course, it is to regulate and manage fisheries for a sustainable industry.  You would not expect then that there would be, as a matter of course, run‑of‑the‑mill exemptions granted to people so that they can take undersize abalone.

FRENCH CJ:   Do you say it would fall outside the scope and purposes of the Act for the Minister to issue an exemption directed to people of a particular Aboriginal society in relation to the common or non‑commercial use of abalone, including undersize abalone?  I mean, are you saying he would not have a power to issue such an exemption?

MR HINTON:   It would be beyond the scope and purpose of the Act, yes, your Honour.  It would not be consistent with the ‑ ‑ ‑

FRENCH CJ:   It depends on what view he took about the effect of that on the management of the stock, would it not?  It might be that that level of use would not threaten the stock.

MR HINTON:   Then we set up, in effect, an avenue for an ad hoc permit system up and down the lengths of the shores of South Australia, wherever you can establish that - if you took undersize here, it actually would not affect the fishery, contrary to a system where we had a defined limit, 13 centimetres, set.  In our submission, Justice Blue, whose treatment of this issue commences application book page 34, paragraphs 58 to 65, performs the necessary construction exercise.  It compares Part 6, in which you find the various prohibitions, and indeed, those sections that permit licences or permits to be granted, it compares that to what you find in Part 10 which is where section 115 is contained.

He looks at the difference between a licence, permit or registration and an exemption, paragraph 64. There is a distinction. He arrives at his conclusion, paragraph 65. We are not here concerned with regulation but prohibition. He then applies that to section 211 of the Native Title Act and his conclusion ultimately is at paragraph 67, application book page 36.  With respect, it was an exercise of statutory construction, one that does not involve a question of general importance, one germane to this State and, in our submission, one that is not attended by sufficient doubt to warrant a grant of special leave.

FRENCH CJ: Section 211(1)(b) contemplates a law which prohibits persons from carrying on a form of activity, does it not, other than something that does extend to prohibition. Regulation, in a sense, is an objective. It may be conditions, prohibition; it may be exempted prohibition, prohibition subject to exemption.

MR HINTON:   Yes, your Honour.  His Honour, Justice Blue, looks at the difference between – he derives that assistance from those terms, “regulation” and “prohibition”, having had regard to this Court’s decisions in Western Australia v The Commonwealth and, indeed, Yanner v Eaton.  You will see he refers to those at paragraphs 53 and 55 of his judgment on pages 32 and 33 and in particular Yanner v Eaton, a question of regulating identified.  That is where we get the distinction from and in my submission his Honour is correct when he concludes that section 115 is not of a type that brings this matter within 211(1)(b).  For those reasons, if the Court pleases, this is not a suitable vehicle for a grant of special leave. 

If the Court is against me, may I say something briefly about the grounds of appeal?  Firstly, they are to be found at pages 48 and 49 of the application book.  My concern is in particular with the proposed ground in paragraph 3.  Firstly, 3.1, in my submission, the Full Court does not make that error when one has regard to application book 29, paragraph 35.  Secondly, 3.2 - that was an argument that has never ever been put.  Paragraph 3.3 is an argument that has never been put and there is no evidence ever been led in support of it; 3,4 – there is no evidence in support of it other than the concession made by the prosecution, the concession set out in the judgment of his Honour Justice Gray at paragraph 21 of his judgment.

This ground of appeal takes us into uncharted waters where there just is not the evidential material before your Honours that it would appear is necessary to its consideration.  If your Honours are against me and your Honours do consider this a matter suitable for a grant of special leave then, in my submission, it should be limited to what is identified in ground 2 on page 48 and ground 4 on page 49 of the application book.  If the Court pleases, those are my submissions.

FRENCH CJ:   Yes.  Thank you, Mr Solicitor.  Yes, Mr Robertson.

MR ROBERTSON:   Your Honour, can I just identify that in paragraph 63 of Justice Blue’s reasons in relation to the 211 issue he accepts that section 115 gives the Minister “a general power to exempt” so we start from the position that there is an acknowledgement of the general power to exempt.  Thereafter, his Honour reasons that that general power is not applicable and is to be distinguished from the power considered in Wilkes v Johnsen on the basis of the reasoning which he sets out at paragraphs 64

and 65, which I have already traversed and I will not do it again.  Contrary to what my learned friend, the Solicitor‑General, says, we start from the proposition that the Minister has the general power to exempt and there is no relevant constraint upon to that power. 

In relation to the decision in Ward, in my submission, your Honour the Chief Justice is absolutely correct.  The reason it was found to be extinguished was because of the vesting through the national parks, and your Honours may contrast that proposition with the consideration of the vesting of property which was considered by the plurality in Yanner v Eaton in terms of the Fauna Act applicable in the context of that case. 

In my respectful submission, your Honours, the 211 issue and the extinguishment issue in this case make it an appropriate vehicle for the consideration of the matter in terms of the extinguishment of a prior inconsistent piece of legislation as construed by the majority in the Full Court.  If your Honours please.

FRENCH CJ:   Mr Robertson, what do you say about the Solicitor‑General’s comment relating to ground 3 in your notice?

MR ROBERTSON:   I think, with respect, the Solicitor‑General is quite right about ground 3, if your Honour pleases, in the sense that it was not argued in the court below.

FRENCH CJ:   Yes, thank you, Mr Robertson.

MR ROBERTSON:   Thank you.

FRENCH CJ:   The Court will refer this application to an enlarged Bench in respect of grounds 2 and 4, and will refuse special leave in relation to ground 3.  Your time estimate, Mr Robertson - a day?

MR ROBERTSON:   It should not be any more than a day, your Honour.  I would have thought it could be done in less.

FRENCH CJ:   Is there any risk of a constitutional issue involved in this in relation to the connection between the Commonwealth and the State statutes?

MR ROBERTSON:   Not between the Commonwealth and the State statutes, I would not have thought, your Honour.  There is, of course, complementary fisheries legislation in the other States and Territories ‑ ‑ ‑

FRENCH CJ:   No, I am talking about the interface between the Native Title Act and the State fishing legislation.

MR ROBERTSON:   Yes, there is some potential for that, your Honour.

FRENCH CJ:   I do not want to jump at shadows, Mr Robertson.  Perhaps just give that some careful thought, to make sure that there is not a problem that emerges later on.

MR ROBERTSON:   Thank you, your Honour.

FRENCH CJ:   Mr Solicitor, do you agree with that time estimate of a day?

MR HINTON: I do, your Honour. The only constitutional issues I can see possibly arising are how section 211 and section 109 of the Constitution work together, and their operation upon a State Act.

FRENCH CJ:   Yes, that is right.

MR HINTON:   At the moment, that issue has never been raised, so I do not think any notices have to be issued, but we will consider it.

FRENCH CJ:   All right.  The matter may be able to be listed for hearing in November.  There is a schedule of time limits for filing of submissions, which is a breach to take account of that possibility, so perhaps you would have regard to that.

MR HINTON:   Yes, your Honour.

FRENCH CJ:   All right.  The Court will now adjourn to reconstitute.

AT 10.36 AM THE MATTER WAS CONCLUDED