Mayes v Tasmania
[2005] TASSC 126
•19 December 2005
[2005] TASSC 126
CITATION: Mayes v Tasmania [2005] TASSC 126
PARTIES: MAYES, Nigel Joseph
v
TASMANIA, STATE OF
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 89/2004
DELIVERED ON: 19 December 2005
DELIVERED AT: Hobart
HEARING DATE: 25 – 26 August 2005
JUDGMENT OF: Crawford and Blow JJ, Hill AJ
CATCHWORDS:
Primary Industry – Fish – Offences – Other cases – Possession of fish with value exceeding $5,000 without lawful excuse – Whether holding of licence constitutes lawful excuse – Validity and meaning of regulation prohibiting possession of more than 20 abalone.
Living Marine Resources Management Act1995 (Tas), s264(1).
Living Marine Resources Management Amendment Act 2000 (Tas), s13(1)(a).
Fisheries (Abalone) Rules 2000 (Tas), rr17(1)(c), 20(3)(b), 35.
Aust Dig Primary Industry [35]
REPRESENTATION:
Counsel:
Appellant: D J Porter QC
Respondent: D G Coates SC
Solicitors:
Appellant: Chris Boland
Respondent: Director of Public Prosecutions
Judgment Number: [2005] TASSC 126
Number of paragraphs: 121
Serial No 126/2005
File No CCA 89/2004
NIGEL JOSEPH MAYES v STATE OFTASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
BLOW J
HILL AJ
19 December 2005
Order of the Court:
Appeal dismissed.
Serial No 126/2005
File No CCA 89/2004
NIGEL JOSEPH MAYES v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
19 December 2005
For the reasons for judgment of Blow J, I agree that the appeal should be dismissed. However, I wish to make some remarks concerning the third ground of appeal.
It is the appellant's argument that the Fisheries (Abalone) Rules 2000, r29(3)(b) was ultra vires because of uncertainty and unreasonableness. It purported to require that the holder of a fishing licence (abalone dive) complete Part A of a diver's docket "before the abalone leave the landing area" if the processing premises, to which the abalone were to be delivered, were not located within the landing area. It was submitted for the appellant that the meaning of "landing area", as provided by r35(1), was so vague and imprecise as to make the requirement of r29(3)(b) uncertain and unreasonable. The only landing area as defined in that rule, which could conceivably apply to the circumstances of this case, was in par35(l) in terms "at any other place, the area within a radius of 50 metres on the landward side from the high tide mark closest to the point of landing".
Many examples can be found of the use of either high or low water marks as boundaries in statutes, delegated legislation and the common law. No authority was cited in support of the proposition that the expressions are uncertain or unreasonable. In Smart & Co v Town Board of Suva [1893] AC 301 the Judicial Committee was concerned with a proclamation made pursuant to the powers given by an ordinance, that defined some of the boundaries of Suva by reference to the high water mark. The western boundary, which was so defined, was held to vary from time to time as the high water mark shifted. At 305, the Judicial Committee pointed out that such a mark had a variable character because it was liable to obliteration, either by accretion or encroachment of the sea or other causes. No suggestion was made that the proclamation was ultra vires for uncertainty or unreasonableness.
In Li Chia Hsing v Rankin (1978) 141 CLR 182 the High Court was concerned with a proclamation under the Fisheries Act 1952 (Cth) that fixed "proclaimed waters" and excluded from them waters within three miles of the low water mark. The court found no uncertainty. Barwick CJ, when referring to the use of the low water mark, said at page 192: "That line does not depend for its existence and significance upon any chart. The precise position of that line is a fact to be determined if occasion demands by a court of law." That statement should apply equally to the determination of the high water mark for the purposes of r35.
With respect to the common law, it was held by the majority of the court in R v Keyn(The Franconia) (1876) 2 Ex D 63 that the realm ended at the edge of the sea and did not extend to the bed of the sea, that is, to any portion of the earth's crust adjacent to the realm covered at low tide, nor did it extend to the waters which washed the shores. They constituted the high seas. Thus, the territorial limit of the realm was the low water mark. See Bonser v La Macchia (1969) 122 CLR 177 at 184, 219. Uncertainty or unreasonableness were not a concern for the court.
The Rules are intended to govern the activities of those who work at sea for the purpose of taking abalone and it cannot be accepted that such persons have any real difficulty ascertaining where the high tide mark, nearest the point of landing, may be.
It was submitted for the appellant that the landing areas defined in pars(a) – (k) of r35 were also too vague or uncertain to be identifiable. I do not accept that has been established. For example, the landing area described in par(h) is "at Petal Point, the area within a radius of 150 metres on the landward side from the high tide mark closest to the commencement of the access road at the southern end of Lemons Beach". There is no reason to think that the landing area in question cannot be identified without difficulty. A paragraph particularly referred to by counsel was par(f), which provides as a landing area "at Green Point near Marrawah, the area of Green Point Road to the intersection of Green Point Road and Comeback Road". The only question of difficulty that I can conceive may arise out of that is the precise width of the road itself, but there was no evidence concerning the road and it is impossible for this Court to conclude that the definition is in some way inadequate. In any event, there is no question that the appellant was nowhere near Green Point and that the only relevant landing area for him, on the evidence in this case, was the one defined in par(l).
It was also the appellant's argument that r17(1)(c) was ultra vires because it was unreasonable and uncertain. In the circumstances of this case, it purported to make it an offence for any person to have possession of more than 20 abalone without having the yellow sheet (the fourth copy) of the completed diver's docket relating to the abalone. Counsel for the appellant pointed out that the yellow sheet of a diver's docket was divided into Part A and Part B, and that Part B could not be completed by a person in the appellant's position until after the abalone had been delivered to and weighed by a processor. On that basis, it was argued that it would have been impossible for the appellant not to commit an offence against r17(1)(c), if it was valid, in circumstances where the abalone were destined for a processor whose premises were distant from the landing area. With respect, I agree with the interpretation of the rule of Blow J. It cannot have been the intention of the rule-making authority to make a rule that had such an absurd result. The provision should be interpreted as requiring no more than that the appellant complete only those sections of the docket that he could complete, leaving it to the processor to complete the balance of the docket after delivery of the abalone to the processor.
File No CCA 89/2004
NIGEL JOSEPH MAYES v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
19 December 2005
This is an appeal in respect of a conviction on a charge of being in possession of fish with a value exceeding $5,000 without lawful excuse. That is a crime by virtue of the Living Marine Resources Management Act 1995 ("the 1995 Act"), s264(1).
The conviction relates to events that occurred on 2 November 2000. The appellant was then a professional abalone diver. He was the holder of a licence called a "fishing licence (abalone dive)". On the day in question he went diving for abalone, took some 870 kilograms of the appropriate species, and brought his catch ashore at a jetty adjacent to the boat ramp at the camping ground on Macquarie Heads Road at Strahan. Part of his catch, weighing 606 kilograms, was loaded into a vehicle that was driven by a Mr O'Mahony. The rest of the catch, weighing 264 kilograms, was loaded into a vehicle that he drove himself. The two vehicles were intercepted by police officers. When intercepted, the appellant had possession of a commercial abalone diver's docket book, which had apparently been provided by the Department of Primary Industries, Water and Environment. The Fisheries (Abalone) Rules 2000 ("the rules") provided for such dockets to be completed in quadruplicate in relation to abalone landed by the holder of a fishing licence (abalone dive). In particular, r29(3)(b) required the holder of a fishing licence (abalone dive) to complete "Part A of a diver's docket" before the abalone left the "landing area" if the abalone were not taken to processing premises within the landing area. Rule 17(1)(c) made it an offence for a person to have possession of more than 20 abalone unless the person satisfied certain requirements as to a docket, receipt or licence. The only relevant exception in relation to abalone that had been landed but not reached the stage of being sold by a fish merchant was that provided for in r17(1)(c)(i), which created an exception when the person had the appropriate copy of "the completed diver's docket relating to the abalone with the abalone to which the docket relates". At the trial of the appellant, the State's case was that the appropriate docket was not properly completed; that the appellant had in his possession more than 20 abalone when intercepted; that he did not have the completed copy of the appropriate docket with them; that his possession of them was therefore an offence contrary to r17(1)(c); that they were worth more than $5,000; and that his possession of them therefore constituted an indictable offence contrary to s264(1).
By his amended grounds of appeal, the appellant contends that s264 does not apply to persons holding licences authorising them to take fish worth more than $5,000 (ground 1); that rr17(1)(c) and 29(3)(b) are ultra vires (ground 3); and alternatively that r17(1)(c) was not intended to apply to the holder of a fishing licence (abalone dive) (ground 4). Ground 2 was abandoned.
The legislation
The provision under which the appellant was charged, s264(1), reads as follows:
"(1) A person who, without lawful excuse, has possession of fish with a value exceeding $5 000 is guilty of an indictable offence punishable under the Criminal Code."
The 1995 Act, by s9(1), provides to the effect that all living marine resources – and that includes abalone – present in Tasmanian State waters are owned by the State. By s78(1) the Minister is empowered to grant an application for a licence. By s60(1)(b) a person without a fishing licence is prohibited from taking fish in State waters. By virtue of s61, a fishing licence authorises the holder of the licence to carry out fishing in accordance with the licence. By virtue of s62(a), a fishing licence is subject to the rules of a management plan applicable to that licence. By virtue of s32, a management plan consists of rules relating to a specified fishery. The Minister is empowered to make rules by ss33 – 40D inclusive, which contain several pages of detailed provisions. The Fisheries (Abalone) Rules thus were and are the management plan for the Tasmanian abalone fishery. Under r11, it is an offence for a person to take abalone unless that person is the holder of a fishing licence (abalone dive) or a fishing licence (recreational abalone), or is an aborigine undertaking an aboriginal cultural activity.
Under the 1995 Act, by s145(1)(a), the holder of an "authorisation" is required to "keep records, accounts and other information in a manner and form approved by the Secretary". By s3, the word "authorisation" is defined to include a licence. The Living Marine Resources Management (Validation of Documents) Act 2002 ("the 2002 Act"), s4(e), provides that, for "the avoidance of doubt", any document issued or used, or purportedly issued or used, during a period from 31 May 1996 to 18 December 2002, is taken to have been properly approved for issue or use for the purposes of s145(1), and in a form approved for the purposes of that section, when it was so issued or used or purportedly so issued or used. Not surprisingly, it was an agreed fact at the trial that the appellant's docket book was in an approved form under s145 and had been issued to him.
As at 2 November 2000, the rules contained provisions as to the completion of divers' dockets by commercial abalone divers in r29, which read as follows:
"29 (1) The holder of a fishing licence (abalone dive) must complete the information relating to fishing in Part A of a diver's docket ¾
(a)on the day on which the abalone are taken; and
(b)as soon as possible after that day's diving is complete.
Penalty: Fine not exceeding the applicable Grade 3 penalty.
(2) The holder of a fishing licence (abalone dive) must complete Part A of a diver's docket within 4 hours after the abalone are landed.
Penalty: Fine not exceeding the applicable Grade 3 penalty.
(3) The holder of a fishing licence (abalone dive) must complete Part A of a diver's docket ¾
(a)if the processing premises are located within the landing area, before the abalone enters the premises, place or vehicle; or
(b)in any other case, before the abalone leave the landing area.
Penalty: Fine not exceeding the applicable Grade 3 penalty.
(4) The holder of a fishing licence (abalone dive) must ¾
(a)send the pink sheet of the completed diver's docket to the Secretary within 48 hours after Part B of the diver's docket has been completed; and
(b)retain the white copy of the completed diver's docket for at least 5 years.
Penalty: Fine not exceeding the applicable Grade 2 penalty.
(5) The holder of a fishing licence (abalone dive) must ensure that any information entered on a diver's docket appears and is maintained in a clear and legible manner on the pink sheet and each copy of the diver's docket.
Penalty: Fine not exceeding the applicable Grade 2 penalty."
The meaning of the term, "the landing area" in r29(3) was dealt with by r35 which, as at 2 November 2000, read as follows:
"35 The following are landing areas:
(a) at Great Musselroe Bay, the area within a radius of 200 metres on the landward side from the high tide mark closest to the point of landing in Great Musselroe Bay;
(b) at Bluff Hill Point, the area within a radius of 200 metres on the landward side from the high tide mark closest to the point of landing in Mawson Bay;
(c) at Couta Rocks, the area within a radius of 200 metres on the landward side from the high tide mark closest to the point of landing at Couta Rocks;
(d) at Garden Point near Port Arthur, the area within a radius of 500 metres on the landward side from the high tide mark closest to the launching ramp in Long Bay;
(e) at a place within 5 kilometres of Granville Harbour, the area within a radius of 1 500 metres on the landward side from the high tide mark closest to the point of landing;
(f) at Green Point near Marrawah, the area of Green Point Road to the intersection of Green Point Road and Comeback Road;
(g) at Ocean Beach, the area within a radius of 200 metres on the landward side from the high tide mark closest to the point of landing at Braddon Point;
(h) at Petal Point, the area within a radius of 150 metres on the landward side from the high tide mark closest to the commencement of the access road at the southern end of Lemons Beach;
(i) at South Arm, the area within a radius of 500 metres on the landward side from the high tide mark closest to the launching ramp in Halfmoon Bay;
(j) at Temma, the area within a radius of 200 metres on the landward side from the high tide mark closest to the point of landing in Temma Harbour;
(k) at Trial Harbour, the area within a radius of 300 metres on the landward side from the high tide mark closest to the point of landing in Trial Harbour;
(l) at any other place, the area within a radius of 50 metres on the landward side from the high tide mark closest to the point of landing."
Under r14(1)(e), the holder of a fishing licence (abalone dive) was required to "deliver all abalone to the holder of a fish processing licence that specifies abalone". Under r30, the fish processor was required to complete parts of the diver's docket. As at 2 November 2000, that rule read as follows:
"30 (1) At the time a person takes possession of abalone from the holder of a fishing licence (abalone dive), the person must complete Part B of the pink sheet of the diver's docket that relates to the abalone.
Penalty: Fine not exceeding the applicable Grade 2 penalty.
(2) A person who enters information on Part B of the pink sheet of the diver's docket must ensure that the information appears and is maintained in a clear and legible manner on the pink sheet and each copy of the diver's docket.
Penalty: Fine not exceeding the applicable Grade 2 penalty.
(3) A person must not take possession of abalone from the holder of a fishing licence (abalone dive) unless the green and yellow copies of the completed diver's docket which relates to the abalone are delivered when the abalone are delivered.
Penalty: Fine not exceeding the applicable Grade 2 penalty.
(4) The person who takes possession of abalone from the holder of a fishing licence (abalone dive) must –
(a)keep the yellow copy of the completed diver's docket with the abalone to which it relates until the abalone has been processed; and
(b)forward the green copy of the completed diver's docket to the Secretary within 48 hours after Part B of the diver's docket is completed; and
(c)retain the yellow copy of the completed diver's docket, in good condition, for at least 5 years after the abalone are delivered.
Penalty: Fine not exceeding the applicable Grade 2 penalty."
As I have indicated, provisions limiting the number of abalone that individuals may have in their possession are contained in r17(1). As at 2 November 2000, it read as follows:
"17 (1) A person must not ¾
(a)take more than 10 abalone in any one day, unless the person is the holder of a fishing licence (abalone dive); or
(b)have possession of more than 5 abalone unless the person ¾
(i) is the holder of a fishing licence (recreational abalone); or
(ii) is undertaking an aboriginal cultural activity; or
(iii) is a person referred to in paragraph (c); or
(c)have possession of more than 20 abalone unless the person ¾
(i) has the third copy of the completed diver’s docket relating to the abalone with the abalone to which the docket relates; or
(ii) has a receipt relating to the purchase of the abalone from a fish merchant with the abalone to which the receipt relates; or
(iii) is the holder of a fishing licence (abalone dive) who has taken the abalone under that licence and the abalone have not been landed.
Penalty: Fine not exceeding the applicable Grade 3 penalty."
Legislative and administrative blunders seem to have been a feature of the administration of the Tasmanian abalone fishery. It seems that the standard docket books issued by the relevant government department and used by commercial abalone divers contained dockets in quadruplicate. The first copy, ie, the one on the top, was pink, and was intended to be sent to the secretary of the department by the diver after all details were filled in: r29(4)(a). The second copy was white, and was intended to be retained by the diver for at least five years: r29(4)(b). The third copy was green, and was intended to be completed by the fish processor and forwarded to the secretary of the department: r30(4)(b). The fourth copy was yellow, and was intended to be retained by the processor: r30(4)(c). By mistake, r17(1)(c)(i) in its original form referred to the third or green copy, when it should have referred to the fourth or yellow copy. The problem with it referring to the third or green copy was that the instructions in the docket book required the processor to send that copy to the secretary of the department, but once that was done the processor would have been left in possession of more than 20 abalone without the copy referred to in r17(1)(c)(i), and would therefore have committed an offence. The provision in question should have referred to the fourth or yellow copy, which the processor was intended to retain with the abalone after sending the third or green copy to the secretary. Accordingly, r17(1)(c)(i) was amended by the 2002 Act, s5(2)(a), with retrospective effect, by changing "third copy" to "yellow sheet". Some less significant amendments to the rules were made at the same time. By s5(2)(b), the expression "white copy" in r29(4)(b) was changed to "white sheet". By s5(2)(c), the expression "the pink sheet and each copy" in r29(5) was changed to "each sheet".
Another piece of legislation passed by Parliament to overcome some of the legislative and administrative blunders affecting the abalone fishery was the Living Marine Resources Management Amendment Act 2000 ("the 2000 Act"), s13 of which provided as follows:
"(1) The Fisheries (Abalone) Rules 2000 ¾
(a)are taken to have been validly made; and
(b)apply on and from 1 January 2000 as if a reference in rule 2 of those rules to the day on which their making is notified in the Gazette were a reference to 1 January 2000.
(2) Rules 8, 14(1)(c), 15 and 16 of the Fisheries (Abalone) Rules 2000 are valid despite any inconsistency with any provision of a deed of agreement relating to the abalone fishery made under the Fisheries Act 1959 or the Principal Act.
(3) The Fisheries (Abalone) Rules 2000 are the management plan for the abalone fishery."
It seems that the rules were notified in the Gazette on 9 February 2000, and would have commenced on that day but for s13(1)(b). If nothing had been done to change that situation, the consequences would have been complicated and absurd since the fishery was managed by means of quota allocations in respect of calendar years.
Ground 1 – scope of s264(1)
Ground 1, as amended, reads as follows:
"1 The learned trial judge erred in law:
(a) in determining that the holder of a fishing licence which entitled the accused to possession of fish with a value exceeding $5,000 could be convicted of a crime under the Living Marine Resources Management Act 1995, s264(1);
(b) in directing the jury that possession of a dive licence and the taking of abalone within quota did not provide a lawful excuse for the possession of abalone."
It was common ground at the trial that the appellant's licence entitled him to take abalone with a value exceeding $5,000, subject to certain quota restrictions. Under s264(1), it is an indictable offence for a person to have possession of fish with a value exceeding $5,000 "without lawful excuse". The central issue at the trial was whether the appellant had a "lawful excuse" for the possession of over $5,000 worth of abalone.
The evidence established that the appellant had filled in only the most minimal details in relation to his catch for the day in question in his docket book. He had not filled in the weight in kilograms of the black lip abalone that he had landed, the time of landing, the depth to which he dived in metres, the dive time in hours and minutes, his entitlement number, or his name. The form required him to allocate his catch to one or more quota units, and to record the number of kilograms allocated to each relevant quota unit, but he had not done this. Recording the number of kilograms allocated to each quota unit was something required to be done in completing the diver's docket, but that information did not appear on the fourth or yellow copy of each docket, intended to be kept by the processor for five years, since that section of that copy was blacked out. The State contended that the appellant did not have the yellow sheet of "the completed diver's docket" since the docket was not completed; that he therefore did not have the benefit of r17(1)(c)(i); that he did not have the benefit of r17(1)(c)(ii) or (iii) either; that his possession of more than 20 abalone therefore constituted an offence contrary to r17(1)(c); and that he therefore had no lawful excuse for the possession of the abalone in question.
Mr Porter QC referred us to a number of provisions in the Act and the rules whereby licensees entitled to possess fish worth over $5,000 can become subject to substantial penalties if they contravene strict rules that apply to the abalone fishery. Under the 1995 Act, s86A, it is an offence for a person to contravene, or fail to comply with, a condition of a licence, and the maximum penalty is a fine of 500 penalty units or two years' imprisonment, or both, and a daily fine not exceeding 50 penalty units. A contravention of r17(1)(c) is punishable by a fine "not exceeding the applicable Grade 3 penalty" – ie the most severe penalty prescribed under the Fisheries (Penalty) Regulations 1996. Furthermore the 1995 Act, s267(1), requires the imposition of a mandatory special penalty equal to 10 times the value of the relevant fish in relation to each offence against that Act or the regulations or rules thereunder relating to the taking or possession of fish. Mr Porter QC submitted that Parliament could not have intended, in the context of that penal regime, that a person who has authority to possess fish with a value exceeding $5,000, but has that authority extinguished by a breach of the rules, would be liable to conviction and punishment under s264(1) when that breach in itself would constitute an offence attracting very significant penalties.
I think that submission should be rejected. I think that the key to the proper interpretation of s264(1) is the requirement of the Acts Interpretation Act 1931, s8A(1), that an interpretation that promotes the purpose or object of the Act in question must be preferred to one that does not promote that purpose or object. The purpose of the 1995 Act is clear from its long title, which begins with the words, "An Act to promote the sustainable management of living marine resources, to provide for management plans relating to fish resources, to protect marine habitats …". Tasmania's abalone fishery is a very valuable resource, and also a vulnerable one. It needs to be conserved and managed for the benefit of the Tasmanian public, and for future generations. Abalone poaching can be fairly easy, extremely lucrative, and very hard to detect. The 1995 Act therefore makes provision for a strict and detailed management regime, and substantial penalties. The interpretation of s264 contended for by the appellant would exempt from the operation of that section a licensee whose possession of fish, originally lawful, had somehow become unlawful. That would not promote the purposes or objects of the Act. The additional exposure of an offending licensee to prosecution for an indictable offence when the offending involves fish worth more than $5,000 would promote the purposes and objects of the 1995 Act simply by providing a strong deterrent against such large-scale offending.
If an offending licensee has possession of more than 20 abalone contrary to r17(1)(c), he or she will be liable to prosecution under that provision, a heavy fine, and a special penalty under s267(1). If the fish in question happen to be worth more than $5,000, the offender will also be liable to prosecution for an indictable offence under s264(1).
The words "without lawful excuse" in s264(1) are not particularly well chosen. No doubt individuals involved in commercial fishing and commercial fish processing routinely have possession of quantities of fish worth more than $5,000. In ordinary language, it could hardly be said that they need an "excuse" to have possession of so much fish. But the intention of s264(1) is clear enough. It means that if anyone is in possession of fish worth more than $5,000 without lawful justification, that person is guilty of an indictable offence. Ground 1 must fail.
Ground 3 ¾ validity of rr17(1)(c) and 29(3)(b)
Mr Porter QC submitted that r29(3)(b) was ultra vires because of uncertainty. Rule 29(3)(b) was the provision that required the holder of a fishing licence (abalone dive) to complete Part A of a diver's docket "before the abalone leave the landing area" if the processing premises were not located within the landing area. The argument advanced by Mr Porter QC can be summarised as follows:
·By virtue of r35(l), the "landing area" applicable to the appellant was defined as "the area within a radius of 50 metres on the landward side from the high tide mark closest to the point of landing".
·The "high tide mark" is the mean line between the spring tides and neap tides throughout the year, or the point on the shore which is, about four days in every week, reached and covered by the tides: Halsbury's Laws of England, 4 ed, vol 49, par288; Butterworth's Concise Australian Legal Dictionary at 204; Li Chia Hsing v Rankin (1978) 141 CLR 182.
·When a piece of subordinate legislation is intended to apply only within a defined geographical area, and that geographical area is described so vaguely or imprecisely that its boundaries cannot be identified, the provision in question is not a true or valid exercise of the delegated legislative power, and is therefore ultra vires: Ingwersen v Borough of Ringwood [1926] VLR 551; Stewart v City of Essendon [1924] VLR 219; Corless v City of Richmond [1924] VLR 408; Velachoutakos v City of Port Melbourne [1972] VR 720; Hetchener v Ham [1961] VR 97.
·As the contravention of r29(3) by the holder of a fishing licence (abalone dive) amounted to an offence, it was a penal provision and should be construed strictly.
·Because of the uncertainty as to the position of the high tide mark, the limits of the landing area defined by r35(l) were so uncertain that r35(l) and r29(3)(b) were both ultra vires.
·The limits of the eleven defined areas referred to in r35(a) – (k) inclusive are also too vague or uncertain to be identifiable. For example, r35(f) purports to prescribe as a landing area at Green Point near Marrawah, "the area of Green Point Road to the intersection of Green Point Road and Comeback Road". It follows that each of pars(a) – (k) of r35 is ultra vires.
· Since r35(l) is expressed to apply "at any other place", ie in relation to any place not within the limits of the areas referred to in r35(a) – (k) inclusive, the area within which r35(l) applies is also unascertainable. It follows that, on this basis also, r35(l) is ultra vires.
Mr Porter QC also submitted that r29(3)(b) was ultra vires because of unreasonableness. His argument can be summarised as follows:
· "Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws." Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 per Lockhart J at 384.
· Because of the unreasonable difficulty that a commercial abalone diver might have in identifying the high water mark, and thus the limits of the "landing area", r29(3)(b) is not a valid exercise of the rule-making power.
· The consequences of a contravention of r29(3)(b) by the holder of a fishing licence (abalone dive) are so disproportionate to the seriousness of the contravention that r29(3)(b) is not a valid exercise of the rule-making power: House v Forestry Tasmania (1995) 5 Tas R 169.
Mr Porter QC also submitted that r17(1)(c) was ultra vires on the basis of unreasonableness. That argument can be summarised as follows:
· Rule 17(1)(c), as retrospectively amended by the 2002 Act, made it an offence for any person to have possession of more than 20 abalone unless the person either:
"(i)has the yellow sheet [ie fourth copy] of the completed diver's docket relating to the abalone with the abalone to which the docket relates; or
(ii)has a receipt relating to the purchase of the abalone from a fish merchant with the abalone to which the receipt relates; or
(iii)is the holder of a fishing licence (abalone dive) who has taken the abalone under that licence and the abalone have not been landed."
· Thus, under r17(1)(c), when the holder of a fishing licence (abalone dive) has taken more than 20 abalone under that licence, and has landed them, but has not yet delivered them to a fish merchant, and has therefore not yet obtained a receipt from a fish merchant relating to their purchase, that licence holder will commit an offence unless he has "the yellow sheet of the completed diver's docket relating to the abalone".
· The yellow sheet of a diver's docket is divided into Part A and Part B. Part B includes spaces where the details required to be completed include the name of the fish processor; the date, time and place of the receipt of the abalone by the fish processor; the amount of abalone received in kilograms; the number of containers; the size or type of bin; the serial number of the weighing device; and the date that it was last certified.
· These details cannot be completed until the abalone have been received and weighed by the processor.
· It follows that the effect of r17(1)(c)(i) is to make it impossible for an abalone diver who lands more than 20 abalone and takes them to a processor beyond the landing area not to commit an offence contrary to r17(1)(c).
· The operation of r17(1)(c)(i) is therefore so arbitrary, unjust and capricious that r17(1)(c) cannot be within the scope of the rule-making power.
· Rule 17(1)(c) is not a reasonably proportionate means of attaining the objects of the rule-making power: House v Forestry Tasmania (supra).
Alternatively, Mr Porter QC submitted that, if the words "completed diver's docket" in r17(1)(c)(i) were not intended to have their literal meaning, the intended meaning of those words was so uncertain or obscure that r17(1)(c) was too uncertain to be a valid exercise of the rule-making power. He relied on Ex parte Zietsch; re Craig (1944) 44 SR (NSW) 360 at 365 – 366; King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 at 194 – 195; and Minister for Primary Industries v Austral Fisheries Pty Ltd (supra) at 382.
Mr Coates SC, on behalf of the State, advanced various arguments as to why, at common law, the provisions in question should be regarded as valid exercises of the rule-making power. I do not think it necessary to address those arguments, because of the provision in the 2000 Act, s13(1)(a), to the effect that the rules "are taken to have been validly made".
Mr Porter QC submitted in relation to the 2000 Act that Parliament intended only to validate the making of the rules, and that the validation of them was not a validation for all purposes. He relied on the relevant second reading speech (House of Assembly, 20 April 2000), in which the Minister for Primary Industries, Water and Environment, Mr Llewellyn, said the following:
"Also included in this bill are provisions which clarify the management arrangements in relation to the abalone fishery which commenced on 1 January 2000. The provisions confirm that the Fisheries (Abalone) Rules 2000 were validly made and operated as if from 1 January 2000.
The Fisheries (Abalone) Rules 2000 are a consolidation of the Fisheries (Abalone) Rules 1997 as amended and including the amendments resulting from the conduct of the review of the abalone fishery management plan last year in accordance with the requirements of the act [sic]. The consolidation was done because there was a suggestion that the 1997 Rules had lapsed before the rule amending the expiry date commenced. The commencement date of the Fisheries (Abalone) Rules 2000 was the date of gazettal, 9 February.
As a result of there being some doubt as to the status of the Rules and hence the Abalone Fishery Management Plan from 1 January 2000, it is considered necessary to remove that doubt by stating that the Fisheries (Abalone) Rules 2000 applied from 1 January 2000. This is to ensure the protection of the fishery as well as the rights of the abalone unit and licence holders. The industry is too important to the fishers, the unit holders and to the Tasmanian community for us to take any risks with the rules for the fishery. The royalties are a significant source of revenue for the State and every effort must be made to maintain the integrity of the 'management system and the sustainability of the resource'."
It seems likely that no-one in Parliament had noticed any problems about the meaning of "landing area" or the meaning and effect of r17(1)(c)(i) at the time the 2000 Act was passed. However it would be wrong, in my view, to give a narrow meaning to the provision that the rules "are taken to have been validly made". Generally a legislative provision should be given its ordinary literal meaning. The words in question would ordinarily be taken to mean that the rules must be assumed to have been within the scope of the rule-making power intended by Parliament, and to have been made in accordance with the rule-making procedure prescribed by Parliament. The requirement of the Acts Interpretation Act, s8A(1), that an interpretation that promotes the purpose or object of an Act is to be preferred to one that does not promote that purpose or object applies also to subordinate legislation by virtue of s5(1) of that Act. Plainly the purpose or object of the 2000 Act was to avoid what the Minister called "any risks with the rules for the fishery". It follows that the words in question should be interpreted as meaning that the rules are to be taken as valid for all purposes.
Whatever the merits of the arguments as to uncertainty and unreasonableness otherwise would have been, the 2000 Act, s13(1)(a) must therefore require all courts to treat every provision in the rules as a valid exercise of the rule-making power. Ground 3 must therefore fail.
Ground 4 – construction of r17(1)(c)(i)
By this ground the appellant contends that r17(1)(c)(i), if valid, was not intended to apply to the holder of a fishing licence (abalone dive), and that the learned trial judge erred in law in failing to interpret r17(1)(c) accordingly and in failing to direct the jury accordingly.
Rule 17(1)(c) makes it an offence for a person to have possession of more than 20 abalone, subject to three exceptions which are listed in subpars(i), (ii) and (iii). Subparagraph (i) makes an exception when the person "has the yellow sheet [or fourth copy] of the completed diver's docket relating to the abalone with the abalone to which the docket relates".
Mr Porter QC submitted that r17(1)(c) can only properly be applied to a person who takes possession of abalone from the holder of a fishing licence (abalone dive). He referred us to r14(1)(e), which requires the holder of a fishing licence (abalone dive) to "deliver all abalone to the holder of a fish processing licence that specifies abalone". He referred us to r30(4), which requires the person who takes possession of abalone from the holder of such a licence to keep the yellow or fourth copy of the diver's docket with the abalone until it has been processed, and then to retain that copy in good condition for at least five years. He made the point that r17(1) is a penal provision, and submitted that it should therefore be given a strict or narrow interpretation.
I do not think that r17(1)(c)(i) should be interpreted as not referring to abalone divers. It is not a provision that creates an offence. It is a provision that operates to make the possession of abalone lawful when such possession would otherwise be an offence. If the holder of a fishing licence (abalone dive) cannot receive the benefit of r17(1)(c)(i), then every such licensee must commit an offence if he or she lands more than 20 abalone, and does not already have the receipt referred to in r17(1)(c)(ii) – "a receipt relating to the purchase of the abalone from a fish merchant". Such a licensee is protected by r17(1)(c)(iii) until the abalone are landed, but can only be protected by r17(1)(c)(i) or r17(1)(c)(ii) thereafter.
In my view the proper approach to the interpretation of r17(1)(c)(i) is as follows. The 2000 Act, s13(1)(a), requires the rule to be treated as having been validly made. Generally, a piece of legislation should be given its ordinary literal meaning. If r17(1)(c)(i) was given a strict literal interpretation, an absurd situation would exist whenever the holder of a fishing licence (abalone dive) landed more than 20 abalone. The diver's docket referred to in r17(1)(c)(i) cannot be fully completed until after the delivery to the fish processor and the weighing of the fish. If the words "completed diver's docket" were interpreted as strictly and literally as possible, that subparagraph would give no protection to a licensee landing more than 20 abalone. An offence would be committed every time such a licensee landed more than 20 abalone. That absurd result cannot have been intended. Since the rule must be treated as valid, it must be given a different meaning, and that meaning must be one that achieves a reasonable result. The words "completed diver's docket" should therefore be taken as referring to a diver's docket that has been completed to the extent that the person in possession of the abalone has been reasonably able to complete it. Thus, when a licensee has landed more than 20 abalone but not reached the stage of delivering them to the holder of a fish processing licence, the diver's docket will be "completed" within the meaning of r17(1)(c)(i) if it has been completed except for the filling in of information that is not available until after delivery to the processor.
I think such an interpretation is consistent with the requirement of the Acts Interpretation Act, s8A(1), whereby an interpretation that promotes the purpose or object of an Act is to be preferred to one that does not promote that purpose or object. The 1995 Act and the rules provide for a regime whereby licence holders may take limited quantities of abalone, and must allocate every kilogram of their catches to quota units. Record-keeping requirements have been imposed in order to prevent the circumvention of those restrictions. All abalone taken in Tasmanian waters, once landed, are required to be accompanied by dockets from which the authorities can check that they were taken within the limits of the relevant licence and quota restrictions, and that a record has been made allocating them to one or more available quota units. This system promotes the conservation and management of Tasmania's abalone resources and accords with the purposes and objects of the 1995 Act. An interpretation of r17(1)(c) whereby a commercial abalone diver commits an offence if he possesses abalone without having completed and retained the required records promotes the purposes or objects of the Act. An interpretation whereby the same abalone diver would not commit an offence if he had possession of abalone without having completed and retained the required records would not promote the purposes or objects of the Act.
For these reasons, I think that ground 4 must also fail.
Conclusion
I would dismiss the appeal.
File No CCA 89/2004
NIGEL JOSEPH MAYES v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
HILL AJ
19 December 2005
The appellant was charged with another person, with illegal possession of fish, contrary to the Living Marine Resources Management Act 1995, ("the Act"), s264(1), which provides:
"(1) A person who, without lawful excuse, has possession of fish with a value exceeding $5 000 is guilty of an indictable offence punishable under the Criminal Code."
The particulars of the offence were that the appellant, with another, at Strahan in Tasmania, on or about 2 November 2000, had, without lawful excuse, possession of fish, namely 870 kilograms of abalone with a value of, determined in accordance with the Act, s269, to exceed $5,000, namely $23,490.
Alternative charges were also left to the jury, but they are not relevant to this appeal.
It was an agreed fact that the appellant held a fishing licence (abalone dive) Entitlement No 98, which was subject to the following conditions:
"schedule of licence conditions foil fishing licence (abalone dive)
Issued 21 June 2000
It is a condition of this licence that the only person with the authority to take abalone using this licence is the person specified in this fishing licence (abalone dive),
and that the holder*-
1 Complies with the Living Marine Resources Management Act 1995 (the LMRMA) and all regulations and rules made thereunder whilst carrying on any activity under the licence.
2 Does not carry out any fishing which is not authorised by a fishing licence pursuant to the LMRMA and subordinate legislation.
3 Must, when diving for abalone under this licence, only do so from a fishing vessel which is specified on a fishing licence (vessel).
4 Must ensure the use of accurate measuring and weighing instruments throughout the period of this licence to determine the weight information to be entered into any original return or record when carrying on any activity under the licence as required by the Living Marine Resources Management Act 1995.
5 Must retain at an address notified to the Secretary in writing, all statutory records which are in the possession, custody or, control of the holder upon commencement of this licence in relation to operations conducted under the licence, and in relation to business activities arising in connection with those operations, for a period of 5 years from the occurrence of the matter recorded.
6 Must advise the Secretary in writing of the location(s) of all other records and documents which are in the possession, custody or control of the holder upon commencement of this licence in relation to operations conducted under the licence, and in relation to business activities arising in connection with those operations, for a period of 5 years from the occurrence of the matter recorded.
important information in relation to all licences specified in this schedule
The attention of the holder is drawn to the requirement of Section 89 of the LMRMA that any activity for which a licence under that Act is required must at all times be supervised by a supervisor. Expressions used in this licence have the same meaning as in the Living Marine Resources Management Act 1995.
*The holder of a fishing licence (abalone dive) includes a supervisor of such a licence."
It was also agreed he had sufficient quota entitlement issued to that licence to take 870 kilograms of abalone.
On 2 November 2000, after intercepting the appellant's vehicle at the Strahan airport, police found 264 kilograms of abalone on his boat and a further 606 kilograms on a vehicle driven by one O'Mahoney at the same airport.
It was not an issue that the appellant had landed the abalone (870 kilograms) in a landing area defined by the Fisheries (Abalone) Rules 2000 ("the Rules"), r35 .
It was not an issue that after transferring some abalone at the landing area to O'Mahoney, both he and the appellant left the landing area and were intercepted some five kilometres away by police.
It was not an issue that the appellant did not fill out the dive docket prior to leaving the landing area as required by r29(3).
The appellant contended at his trial he was going to a factory to weigh the abalone, despite the fact (not in issue) that scales were found in O'Mahoney's truck.
The appellant contended he had a "lawful excuse", pursuant to s264.
The trial judge, after hearing submissions prior to trial (State of Tasmania v Mayes and O'Mahony [2004] TASSC 52), made the following rulings :
"(1)The prosecution is entitled to present a case to a jury as stated in the indictment.
(2)The prosecution is entitled to rely on evidence of non-compliance with the Fisheries (Abalone) Rules 2000, r29, as part of its case in support of the indictment.
(3)The prosecution is entitled to rely on the provisions of r17(1)(c) in support of its case of 'possession without lawful excuse' as stated in the indictment.
(4)The onus of proving the possession to be 'without lawful excuse' remains with the prosecution.
(5)Nothing in this ruling precludes the raising by the accused of any other matters as a basis for 'lawful excuse'.
(6)Nothing in this ruling affects the operation, in this case, of the Code, s14."
and he directed the jury in the following terms:
"5.1The prosecution is required to prove that the possession was unlawful. The accused is not required to prove lawfulness.
5.2Parliament has used the term 'without lawful excuse'. The prosecution must establish that the accused had no lawful authority or entitlement to the possession of the abalone.
5.3Possession of a dive licence and the taking of abalone within quota do not of themselves provide a lawful excuse for the possession of abalone outside of the landing area.
5.4Completion of the divers docket at the time of delivery to another permits delivery to another or continued possession outside of the landing area.
5.5For the purpose of count 3, a fish processor or its agent, is required to complete prescribed documentation at delivery and/or before transportation outside of the landing area.
5.6The abalone found in the possession of the accused and the agent of the processor was outside of the defined landing area.
5.7Possession, absent the completion of the prescribed documentation, was not a lawful entitlement. Belief that compliance was not necessary does not provide a lawful excuse.
6.1There may be lawful justification for the non-completion of the documentation sufficient to amount to a lawful excuse under certain circumstances.
6.2The issue of lawful justification is a question of fact for the jury.
6.3Lawful justification might exist where the reasons, honestly held by a person, for the non-completion of the documentation, are reasonable and are caused by particular circumstances. Those circumstances:
6.3.1must take into account the regulatory scheme provided by the Parliament;
6.3.2since through events not chosen by the person required to comply;
6.3.3must take into account the alternative courses or options open to that person;
6.3.4the response must, in the circumstances in which the person was placed, be regarded by the jury as reasonable;
6.3.5provide lawful justification rather than simple excuse.
7.1In the circumstances of this case, the presence or otherwise of the scales and the knowledge or belief of the accused as to their presence or absence is the evidentiary basis of the issues stated in 5 and 6.
7.2It is for the prosecution to prove that there was no lawful excuse."
The first ground of appeal, as amended is as follows:
"The learned trial judge erred in law;
(a)in determining that the holder of a fishing licence which entitled the accused to possession of fish with a value exceeding $5,000 could be convicted of a crime under the Living Marine Resources Management Act 1995, s264(1);
(b)in directing the jury that possession of a dive licence and the taking of abalone within quota did not provide a lawful excuse for the possession of abalone."
The appellant argues he could not be convicted.
Underwood J (as he then was) considered the status of a fishing licence in Adelaide Bay Seafoods Pty Ltd and Anor v Chief Magistrate A G Shott and Ors [2005] TASSC 30 at par17 in the following terms:
"With respect to the provisions of the Act generally, the learned Chief Magistrate observed that the fishing industry is highly regulated. Indeed it is. All the living marine resources in State waters are vested in the State. The Act provides for the making and enforcement of management plans for these resources, and tightly controls the exploitation of the resources by an extremely detailed regime of licensing, imposition of quotas and a demerit points system, together with the imposition of an unwavering obligation upon licence holders to supply information to enable the authority to better manage the resources. There is a clear statutory intention to impose personal obligations and accountability on the licence holders on pain of imposition of substantial penalties for non-compliance with the regime.
…
The learned Chief Magistrate referred to all the statutory provisions which impose personal liability and accountability on licence holders in a setting of very strict statutory regulation of a precious natural resource …".
In Gard v Gibsons Ltd [2004] TASSC 108, the question was whether a person had lawful justification for the committing of a nuisance if, at the time, that person had a land use permit which had not been breached. In that case, the respondent operated a processing plant used for the production and sale of stock feed from grain, fish, or meat meal. Such operation was pursuant to a licence issued under the Environment Protection Act 1973, as varied by a deemed permit, pursuant to the provisions of the Environmental Management and Pollution Control Act 1994. Complaint was made that the respondent's activities were a breach of that latter Act. At pars43 and 44, Blow J said:
"The terms of the respondent's licence are set out in full in the reasons for judgment of Evans J. I need not repeat them. The licence authorises the use of the premises as a fish meal processing factory. It does not impose quantitative restrictions on air pollution. It does not positively authorise the emission of pollutants. The respondent contends that the effect of its licence, and of the fact that a permit under the LUPA Act must be taken to have been granted in respect of its premises on the conditions specified in the licence, is that it now has lawful authority and justification to emit pollutants, and that it cannot thereby contravene the EMPC Act, s53(2). If it causes an environmental nuisance by emitting pollutants, it contends that it does not do so unlawfully within the meaning of s53(2). The appellants and the Attorney-General contend that the opposite is the case.
In my view the LUPA Act and the EMPC Act create concurrent systems of prohibitions and restrictions on land use and activities. I think it must follow that, subject to any specific provisions, the granting of permission by a public authority under one of those Acts for some particular use or activity does not automatically authorise the contravention of a provision of the other Act."
At par47, his Honour continued:
"If the respondent's contentions are correct, the granting of a permit under the LUPA Act authorising a particular use of a piece of land would confer the right to emit unlimited pollution from that piece of land, subject to any condition contained in the permit. … The Acts Interpretation Act 1931, s8A, requires an interpretation of a provision of an Act that promotes the purpose or object of the Act to be preferred to one that does not promote that purpose or object."
The Act, s61, provides:
"A fishing licence authorises the holder of the licence to carry out fishing in accordance with the licence."
Section 62 provides that a fishing licence authorises the holder of the licence to carry out fishing in accordance with the licence. "Fishing" is defined in s3 as including:
"(a) searching for, attempting to take, catching, taking or harvesting fish;
(b)any other activity which may reasonably be expected to result in catching, taking or harvesting fish."
"Possession" is defined as including "control for the use or benefit of any person whether or not that person has actual possession or custody".
"Possession" is a different concept, it seems, to "fishing".
It was not an issue that the appellant, a licensed abalone diver, did not fill out the dive docket prior to leaving the landing area as required by r29(3).
Of course the appellant contends r29 is ultra vires and I will deal with that later.
The appellant contends he could not be convicted. He contends being the holder of a fishing licence "in the context of the intricate and complex regulatory regime established by the Act and various rules and regulations" provided him with a lawful excuse. He contends "once there is a licence to have possession of fish with a value exceeding $5,000 there is a lawful excuse for that possession and no question of an offence under s264 arises."
Section 264 does not say that. There is no provision which excludes the holder of a fishing licence from its operation. The appellant's licence was subject to conditions. The appellant was authorised by his licence "to take abalone". "Take fish" is defined as including:
"(a) fish for, remove, gather, catch, capture, kill, destroy, dredge for, raise, collect, carry away or obtain in another way from water, land under water or the foreshore;
(b)land from a vessel or in another way, bring ashore or transfer from one fishing vessel to another fishing vessel;
(c)attempt, cause or permit an act mentioned in paragraph (a) or (b)."
The concept of "take", "possess" and "fish", seems to be in the legislative context of this legislation, separate and distinct actions requiring their own regulation.
It seems to me implicit that the appellant, having been authorised to take abalone, must at some time be in "possession" within the ordinary meaning of the word.
His licence does not authorise possession. Further, he is to "comply with the Living Marine Resources Management Act and all regulations and rules made thereunder whilst carrying on activity under the licence" (Condition 1).
Therefore, if the appellant is to be in possession, it seems to me he must be so with the relevant legislative approval. He does not do so under his licence.
I do not accept the submission that he could not be convicted on the basis that having a licence was a lawful excuse. In my view, the section simply does not say that. The phrase "lawful excuse" was considered by the High Court in Attorney-General of the Commonwealth v Breckler (1999) 197 CLR 83 at par17 in the following terms:
"The phrase 'reasonable excuse' has been used in many statutes but whether an excuse answers that description depends not only on the circumstances of the particular case but also on the purpose of the provision to which the exception is provided Taikato v The Queen (1996) 186 CLR 454 at 464. However, the scope of the phrase 'lawful excuse' appears to be more limited. A trustee will have a lawful excuse for failure to comply with an order, direction or determination of the Tribunal if the trustee has a reason recognised by law as sufficient justification for such failure, whether by way of answer, defence, justification or other legal right or immunity. See McGuinness v Attorney-General (Vict) (1940) 63 CLR 73 at 105; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 338-339, 347-348; Signorotto v Nicholson [1982] VR 413 at 416-417."
Adopting that test, that is, a lawful excuse is one recognised by law as sufficient justification, the trial judge's directions, I think with respect, cannot be challenged.
The construction of s264 urged by the appellant is not one which, in my view, is open. The fact that a set of facts, if proved, may give rise to a liability under legislative provisions, some to be dealt with summarily and others to be dealt with on indictment, is not a novel one, and in my opinion does not help the appellant here. In my view, the appellant can take fish in accordance with his licence, but his continued possession must be subject to the legislative provisions. If the appellant's submissions concerning s264 were correct, the licence holder would, after taking in accordance with his licence, effectively be without restraint in his future handling and dealing with the fish. That would not be in accordance with the policy and intentions of the legislation.
Ground 1 ought be dismissed.
Ground 2
This ground was not pursued.
Ground 3
This ground, as amended, alleges that the trial judge erred:
(a)in failing to hold rr17(1)(c) and/or 29(3)(b) were ultra vires;
(b)in directing the jury that the possession, absent the completion of the prescribed documentation, was not a lawful entitlement.
As to the purpose of the legislative scheme, the respondent submitted as follows:
"The combined purposes of Rules 14, 17, 29, 30 and 35 is a tracking system that abalone upon leaving the landing area and prior to it getting to a licensed processing factory has documentation to show its weight, that it has been caught by the holder of Fishing Licence (Abalone Dive), it has been allocated to an abalone quota unit and is either in possession of a person holding Fishing Licence (Abalone Dive) or the holder of a Fish Processing Licence."
No issue was taken with that statement.
Licensed fishermen have obligations pursuant to the rules following on the catching of fish.
Rule 14(1)(b) provides that the licence holder must ensure any abalone taken are landed in Tasmania before the abalone are transported outside State waters; (e) must deliver all abalone to the holder of a fish processing licence that specifies abalone and (g) must ensure the relevant divers docket accompanies the abalone.
Further, r14(2)(e) provides that the licence holder must not land abalone without being in possession of a divers docket at the landing area. "Landed" means "is taken ashore or makes contact with an artificial extension of land after the abalone has been taken".
"Landing Area" is an area specified in r35.
Rule 29(2) provides that the holder of a fishing licence (abalone dive) must complete Part A of the divers docket within four hours after the abalone are landed or, at the very least, before they leave the landing area.
The appellant submits whichever is the sooner, and I accept that.
The appellant says there is no explicit requirement that the licence holder does the weighing and recording. There is, of course, an obligation on the diver to make the declaration as to the accuracy of the information placed on the divers docket (see page 17 appeal book).
The appellant says that the moment a licence holder comes ashore with abalone, he is in breach of r17(1)(c) as he is not in possession of a completed (yellow) divers docket and is therefore in conflict with r29.
The State says that rule must be read with r29 which provides a timeframe for completion.
I agree with the State's submission. That seems to me to be the legislative policy and a commonsense approach to the construction of the two rules. In my assessment of the scheme, r17(1)(c) must be read together with r29. I accept the submission that this construction allows both possession and tracking of the abalone from the time it leaves the landing area to arrival at the processing area.
The policy of regulation would support that construction, in my view.
I see no conflict with rr17(1)(c) and 29 on that basis.
The appellant further submits that there was a conflict between these rules by the use of the words "completed divers docket". The appellant argues that this phrase means "Parts A and B".
The State contends that only two classes of people can have a dive docket, either the licence holder or the person with the processing licence. Each of them is required to complete a part of the docket. The State submits "completed" means completes that part of the docket the law requires a person to complete. The learned trial judge summarised the appellant's argument as follows, at par33:
"The management plan requires the completion of documentation before abalone is transported from a defined area. The accused claim such to be impossible, since the rules require the completion of both Part A and Part B of the drivers docket and absent completion of Part B, no 'completed divers docket' can accompany the abalone to the processing premises. Further, it is contended that there must always be a hiatus between the delivery to the processor for weighing and verification and the issue of a receipt or completion of the Part B documentation."
As the trial judge went on to observe:
"The contention requires a linguistic construct of the words 'completed divers docket' appearing in r17(1)(c)(i)."
and also:
"… 'completed' as used in the rules has varying meanings."
With respect, I agree with his conclusion that "completed" must be interpreted in relation "to the stage of the journey or chain of possession" of the abalone.
That construction is one that gives effect to the policy of the scheme in the rules, namely to track the abalone from the time of the catch through the possession and beyond. There are (or can be) different persons involved in different stages. They have different roles to play. As each concludes his obligations in dealing with the fish, he "completes" the relevant part of the docket which relates to him. He is thereby protected. The "completed" docket at any stage of the process is, in my view, that part of the docket that has been "completed" up to that stage of the process. To read "completed docket" otherwise is to strain the language of the rules to an unacceptable degree. I cannot see any conflict between the rules on that basis.
Ultra vires rr29(3)(b) and 35
It is said these rules are ultra vires "on the basis that they are unreasonable in the sense of being arbitrary and unjust and beyond what was intended and they also offended the proportionality test. More practically they are void for uncertainty".
The purpose of the Act is to "promote the sustainable management of living marine resources to provide for management plans relating to fish resources to protect marine habitats".
Rules 29(3)(b) and 35 are said to be ultra vires "because of the vagueness of the defined landing areas" (r35) and by consequence rr29(3)(b) and 17(1)(c)(i) "are ultra vires on the basis that they are unreasonable in the sense of being arbitrary and unjust and beyond what was intended, and also offend the proportionality test. Moreover particularly they are void for uncertainty."
Parliament has made provision for extensive regulatory powers. The learned trial judge set these out at par4 of his reasons and there is no need to repeat them here.
The rules are attacked because they are allegedly vague and uncertain. It is not said that they are beyond power. The courts have taken a cautious approach to attacks on subordinate legislation on that basis.
In House v Forestry Tasmania B57/1994, Zeeman J was considering the validity of the Industrial Safety, Health and Welfare (Administrative and General) Regulations 1979, reg201. At par64, his Honour said:
"It imposes an obligation which might be thought to be nigh on impossible of discharge in its entirety. Whilst impossibility of performance might constitute a defence on a prosecution for breach of the regulation (Narrandera Pastures Protection Board v Coote (1961) 78 WN (NSW) 697 at 699) it is not difficult to conceive of steps that the occupier of a work place might be able to take to reduce the risk of injury, but which are steps which would be entirely unreasonable and wholly disproportionate to the magnitude and nature of the risk."
His Honour referred to the test expressed by Deane J in Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 260, as follows:
"Implicit in the requirement that a law be capable of being reasonably considered to be appropriate and adapted to achieving what is said to provide it with the character of a law with respect to external affairs is a need for there to be a reasonable proportionality between the designated purpose or object and the means which the law embodies for achieving or procuring it. … The law must be seen, with 'reasonable clearness', upon consideration of its operation, to be 'really, and not fancifully, colourably, or ostensibly, referable' to and explicable by the purpose or object which is said to provide its character ...".
Zeeman J continued in House, at par68:
"A regulation which has the effect that a work place either ceases to operate or operates in breach of the regulation is wholly disproportionate to what is required to give effect to the purposes of the Act. It does not satisfy the proportionality test. The Act does not specifically authorise the making of such a regulation. Regulation 201 imposes absolute obligations which are so onerous that the occupier of a workplace could never ensure that he discharges those obligations in all respects. It imposes obligations which may only be capable of being discharged by incurring expenditure or taking steps out of all reasonable proportion to the risks sought to be guarded against. It does not satisfy the proportionality test. Therefore it is ultra vires the Act and void."
On appeal, (House v Forestry Tasmania and Her Majesty's Attorney-General for the State of Tasmania (1995) 5 Tas R 169), Crawford J said, at 181:
"However, when determining the validity of a regulation care should be taken not to consider whether it is a reasonable exercise of the power. A regulation is not to be held invalid for unreasonableness simply because it does not commend itself to the mind of a court."
His Honour concluded, at 182:
"There is not reasonable proportionality between the regulation and the purposes of the regulation-making power of s49. The regulation does not satisfy the reasonable proportionality test of validity and should be considered ultra vires the Act and void."
I might add the rules under consideration here are, in my view, quite specific.
As Dixon J observed in King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 at 194:
"But I am not prepared to subscribe to the doctrine that certainty is a separate requirement which all forms of subordinate legislation must fulfil, so that an instrument made under a statutory power of a legislative nature, though it is directed to the objects of the power, deals only with the subject of the power and observes its limitations, will yet be invalid unless it is certain. The doctrine appears to me to be an innovation and to have come from a generalization from, or transfer of, a rule or supposed rule for determining the validity of by-laws."
And at 195:
"I am unaware of any principle of law or of interpretation which places upon a power of subordinate legislation conferred upon the Governor-General by the Parliament a limitation or condition making either reasonableness or certainty indispensable to its valid exercise."
In Hitchener v Ham [1961] VR 97, Sholl J held the court rules under discussion were void as being "too uncertain and too difficult to understand".
Part of the regulations under consideration referred to speed limits imposed on boats travelling "within 400 yards of low water mark on the foreshore".
It was submitted "there was insufficient evidence of any low water mark".
At 99, his Honour referred to evidence:
"… which would justify a finding that the defendant did drive within 400 yards 'of the existing water-line', 'of the shore', and 'of the beach', all of which expressions were probably intended by the various witnesses to mean the same thing, namely, the point where at that time the water met the shore."
His Honour did not express concerns, it seems, on the use of the term "low water mark" in the regulations, but the appeal was allowed and the conviction set aside on a different basis.
I do not see that that case is authority for the proposition that terms such as "low water mark" (or here, "high tide mark") ought not to be used in subordinate legislation, or if they are, that they necessarily create uncertainty.
In Li Chia Hsing v Rankin (1978) 141 CLR 182, the High Court found no uncertainty with a definition of the territorial limits of Australia for the purposes of international law as being defined by reference to the points beyond "low water line along the Australian coast". Barwick CJ observed, at par26:
"But, in any case, it seems to me that the baseline by reference to which the territorial limits of Australia for the purposes of international law are defined is the low water line along the coast of Australia. That line does not depend for its existence and significance upon any chart. The precise position of that line is a fact to be determined if occasion demands by a court of law. No doubt a hydrographer's chart will provide cogent evidence of that fact …".
Gibbs J observed, at par5:
"If there are no such charts, the territorial sea continues to be measured from where the low-water line is in fact. No doubt if it is intended to use the method of straight baselines rather than follow the sinuosities of the coast (see Art 4) charts will be necessary."
Here, the appellant was not landing at one of the specified areas in r35(a) – (k), but instead his landing area was to be that described in r35(l) as "at any other place, an area within a radius of 50 metres on the landward side from the high tide mark closest to the point of landing".
With respect, the learned trial judge was quite correct when he said that the appellant could choose his point of landing. One would have thought this was precisely the point behind r35(l). In these circumstances, compliance with the rule was certainly not impossible, it may not even have been difficult. I do not accept that the rules are uncertain in the manner alleged by the appellant. His alleged non-compliance would become a question of fact for the jury. I do not think there is any substance in this ground and I dismiss it.
Ground 4
This ground alleges the learned trial judge erred in law in:
(a)failing to hold that upon a proper construction of r17(1)(c) it did not apply to the holder of a fishing licence (abalone dive);
(b)in failing to direct the jury accordingly.
I repeat what I said earlier as to the extent of the authority of the licence held by the appellant. There is nothing in the terms of the licence, nor in the legislation, to exclude the holder of such a licence from the provisions of r17(1)(c). The policy of the legislation does not support the appellant's submission in this regard. That rule, as the State submits, purports to define when a person can lawfully possess abalone. On a proper construction of the legislative scheme, once the appellant chose to deliver part of his catch to another and transport the remainder from the landing area without completion of the relevant portion of the divers docket, he became a person subject to r17(1)(c)(i). The reference to a holder of a fishing licence (abalone dive) in this rule refers to the legal right of the licence holder to take more than ten abalone in one day, not to continue to possess them after landing.
There is no substance in this ground and it ought be dismissed.
9
2