Moriarty v Nye

[2024] NSWCCA 116

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Moriarty v Nye [2024] NSWCCA 116

Hearing dates:

26-27 March 2024

Date of orders:

8 July 2024

Decision date:

08 July 2024

Before:

Kirk JA; Wilson J; Yehia J

Decision:

Answer the questions stated as follows:

Questions 1-3:

Section 211(2)(a) of the Native Title Act 1993 (Cth) (NT Act) refers to needs of the person in question, their household or their community which are capable of being satisfied directly by undertaking the activities in question, being needs of sustenance or consumption. It does not extend to indirect satisfaction of broader needs by using the product of the activities for sale or trade outside the household or community.

It is otherwise unnecessary and inappropriate to answer the questions.

Question 4:

The activity of receiving fish taken from the sea by others and assembling that fish for the purpose of sale to people outside the relevant native title community is not capable of constituting “fishing”, “gathering” or “a cultural or spiritual activity” within the meaning of s 211(3) of the NT Act.

Question 5:

When a party seeks to rely on s 211 of the NT Act in litigation against them, the legal burden of proof falls on the other party to negative the application of the provision, doing so on the standard of proof that otherwise applies to that party in making out their claim.

It is otherwise unnecessary and inappropriate to answer the question.

Catchwords:

LAND LAW – Indigenous land rights – Indigenous person charged under State law with possessing abalone without licence or permit – Section 211 of the Native Title Act 1993 (Cth) – Immunity from application of restrictive laws requiring licence or permit – Meaning of carrying on activity for the purpose of satisfying personal, domestic or non-commercial communal needs – Meaning of fishing, gathering or a cultural or spiritual activity

EVIDENCE – Burden of proof – Criminal proceedings – Burden and standard of proof of a defendant who invokes s 211 – Statutory exception to general rule – Legislative intent for immunity to be capable of practical and ready exercise by native title holders – Legal burden on person seeking to make out claim against native title holder

JUDGMENTS AND ORDERS – Court of Appeal – Decision of intermediate appellate court of another State interpreting Commonwealth legislation – Principles as to departing from such a decision – Whether previous decision of South Australian Court of Appeal plainly wrong

Legislation Cited:

Acts Interpretation Act 1901 (Cth), ss 13(1), 15AB(2)(h)

Commonwealth Constitution, s 109

Criminal Appeal Act 1912 (NSW), s 5B

Criminal Procedure Act 1921 (SA), s 56

Fisheries Management Act 1994 (NSW), ss 18(2), 18(2A), 18(2B), 21B, 287, Schs 1B, 1C

Judiciary Act 1903 (Cth), ss 68, 79, 80

Native Title Act 1993 (Cth), Preamble, ss 3, 8A(1), 13, 61, 82(3), 84(5), 84(5A), 84(9), 86G(1), 171, 172, 174, 203DG, 211, 223, 224, 225

Native Title Amendment Act 1998 (Cth)

Racial Discrimination Act 1975 (Cth)

Criminal Code (Cth), Pt 2.6

Fisheries Management (General) Regulation 2019 (NSW), Sch 1

Native Title Bill 1993

Cases Cited:

AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390

Akiba v Commonwealth [2013] HCA 33; (2013) 250 CLR 209

Akiba v Queensland (No 2) [2010] FCA 643; (2010) 204 FCR 1

Attorney-General (Cth) v Huynh [2023] HCA 13; (2023) 97 ALJR 298

Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485

Bankinvest AG v Seabrook (1988) 14 NSWLR 711

Carriage v NSW Department of Planning, Industry & Environment [2022] NSWDC 283; (2022) 39 DCLR(NSW) 66

Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249

Commissioner of Police (NSW) v Cottle [2022] HCA 7; (2022) 276 CLR 62

Commonwealth v Akiba [2012] FCAFC 25; (2012) 204 FCR 260

Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1; [2007] HCA 38

Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 248 CLR 619

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122; (2020) 279 FCR 631

David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Ltd [2024] NSWCA 83

Derschaw v Sutton (1996) 17 WAR 419

Dietman v Karpany [2023] SASCA 52; (2023) 377 FLR 307

Dillon v Davies (1998) 8 Tas R 229

Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594

Dudley v Department of Primary Industries and Regions (SA) [2018] SASCFC 23; (2018) 231 LGERA 13

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314

Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24

ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; (2009) 240 CLR 140

John v Commissioner of Taxation (Cth) [1989] HCA 5; (1989) 166 CLR 417

Karpany v Dietman [2013] HCA 47; (2013) 252 CLR 507

Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1

Mason v Tritton (1994) 34 NSWLR 572

Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554

Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381

Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1

Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181

Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v Director of Public Prosecutions; Ex parte Kebilene [2000] 2 AC 326

R v Edwards [1975] QB 27

Santo v David [2010] FCA 42; (2010) 182 FCR 438

Scott Fell v Lloyd (Official Assignee) [1911] HCA 34; (1911) 13 CLR 230

Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454

The King v Jacobs Group (Australia) Pty Ltd [2023] HCA 23; (2023) 97 ALJR 595

The Queen v Falzon [2018] HCA 29; (2018) 264 CLR 361

Totaan v R [2022] NSWCCA 75; (2022) 108 NSWLR 17

Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512

Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259

Wanganeen v Dietman [2021] SASCFC 25; (2021) 139 SASR 170

Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373

Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316

Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269

Woolmington v Director of Public Prosecutions [1935] AC 462

Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351

Texts Cited:

Commonwealth Senate, Parliamentary Debates (Hansard), 21 December 1993

Court of Criminal Appeal – General Practice Note SC CCA 1, para 18(a)(viii)

Macquarie Dictionary, online ed, accessed 8 July 2024

Category:

Principal judgment

Parties:

Andrew James Moriarty, Director Fisheries Compliance, Department of Regional NSW (Prosecutor)
Keith Ronald Nye (Respondent)

Representation:

Counsel:
JS Emmett SC and AR Sapienza (Prosecutor)
N Allan (Respondent)

Solicitors:
Crown Solicitor’s Office (Prosecutor)
Boom Lawyers (Respondent)

File Number(s):

2017/00051763

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

Not applicable

Date of Decision:

Not applicable

Before:

N Williams DCJ

File Number(s):

2017/00051763

HEADNOTE

[This headnote is not to be read as part of the judgment]

Section 211 of the Native Title Act 1993 (Cth) (NT Act) provides native title holders with an immunity from certain federal, State and Territory laws which prohibit or restrict them from fishing (amongst other things) where they do so in exercise or enjoyment of their native title rights for the purpose of satisfying their personal, domestic or non-commercial communal needs.

The respondent, Mr Keith Nye, is an Aboriginal man of the Yuin nation and member of a registered native title claim group. In January 2017 he obtained possession of some 567 shucked and frozen abalone which had been gathered by 25 or so other Yuin men. He took the abalone to Sydney, selling 128 of them (about 16 kg) to the owner of a Chinese restaurant before being intercepted by police. Mr Nye did not hold a licence or permit under the Fisheries Management Act 1994 (NSW) to possess or sell abalone. He was convicted in the Local Court of two offences under that Act for possession and trafficking abalone in a commercial and indictable quantity without a licence or permit. His reliance on s 211 of the NT Act was rejected. He appealed to the District Court, which then submitted a stated case to this Court pursuant to s 5B(1) of the Criminal Appeal Act 1912 (NSW).

The questions in the stated case, whilst stated in a somewhat problematic manner, raised three core issues relating to the construction and application of s 211 of the NT Act, namely:

whether collection by a native title holder of abalone from others for sale off Country can be characterised as “for the purposes of satisfying their personal, domestic or non-commercial communal needs” within the meaning of s 211(2)(a);

whether the activity in question can be characterised as “fishing”, “gathering” or carrying on “a cultural or spiritual activity” for the purposes of s 211(3); and

which party bears the legal burden of proof and persuasion as regards the matters raised by s 211, and to what standard.

The Court (Kirk JA, Wilson and Yehia JJ) answered the questions stated in part, holding as follows:

Issue (1):

1. The focus of the dispute as to the meaning of the purpose requirement in s 211(2)(a) was on what was encompassed by “non-commercial communal” along with the meaning of “needs”. These are issues of statutory construction to be resolved by reference to the text, context and purpose of the provision: at [41]. Section 211 is designed to benefit Indigenous people by providing them with an immunity from the operation of certain restrictive laws and may apply to a diverse range of regulatory schemes in a wide range of courts, but most commonly it will be invoked in local courts before magistrates. The Parliament can be taken to have intended that the provision was capable of operating in a practical way in such courts: at [50]. It is unlikely that the Parliament intended s 211 to require a determination of the reasonable level of exploitation of natural resources for an indigenous community, as the judgments involved are complex, polycentric, evaluative and overall unsuitable for courts especially in the criminal context: at [54]-[55]. While on any view the provision is beneficial to native title holders, no legislation pursues its purposes at all costs, and s 211 involves a balancing of interests: at [57].

Wilkesv Johnsen [1999] WASCA 74; (1999) 21 WAR 269; Karpany v Dietman [2013] HCA 47; (2013) 252 CLR 507; Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314; Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381; ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; (2009) 240 CLR 140; Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454; The King v Jacobs Group (Australia) Pty Ltd [2023] HCA 23; (2023) 97 ALJR 595; AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390, referred to.

Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 248 CLR 619, applied.

2. The imposition of the purpose requirement is the relevant limit: at [58]. The appropriate understanding of the statutory phrase “for the purposes of satisfying their personal, domestic or non-commercial communal needs” is that it refers to needs of the relevant classes of persons capable of being satisfied directly by undertaking the activities in question, being needs of sustenance – physical or spiritual – or consumption; it does not extend to indirect satisfaction of broader needs by using the product of the activities for sale or barter beyond the household or community so as to obtain money or goods which can in turn be used for satisfaction of those broader needs of the person in question: at [59]-[66]. This construction is firmly founded on the text and supported by the purpose of the provision as a whole: that is, to enable native title holders to exercise and enjoy their native title rights and interests, but doing so in a way which is limited so that it will not unduly burden natural resources, that being a concern manifest in the extrinsic materials: at [67] and [71]-[77]. Mr Nye’s purpose in receiving and assembling the abalone, and transporting it for sale, was not a purpose directed to the abalone being consumed by him, members of his household or members of his native title community: at [78].

Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351; Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422, referred to.

Issue (2):

3. The reference to “fishing” in s 211 has been held to extend to protect the possession of fish taken as a result, being a step in the reduction of fish into possession: at [83]. The protective operation of the provision would be undermined if other members of the relevant household or community could be penalised for receiving and possessing fish taken pursuant to a native title right or interest. The activities identified in s 211(3) encompass things done pursuant to, or giving effect to, the purpose identified in s 211(2)(a): at [89]. But what Mr Nye did was not only clearly beyond the ordinary meaning of “fishing”, as he did not catch or take the abalone himself, it also fell outside of the extended aspect of that definition because his purpose in gathering and possessing the fish could not be characterised as one within s 211(2)(a): at [90].

Wilkesv Johnsen [1999] WASCA 74; (1999) 21 WAR 269, applied.

Issue (3):

4. Section 211 creates a statutory immunity against prohibitions or restrictions imposed by federal, State or Territory laws. The issue of onus is a question of statutory construction: at [105]-[107]. The High Court has identified some factors as providing guidance on this issue, but those cases involved consideration of statutory provisions in the same Act, or at least enacted by the same Parliament, as those creating the relevant offence or cause of action. Here s 211 is enacted by the federal Parliament and most commonly will arise in cases brought under State or Territory laws. In that context some of the factors are simply not apposite: at [108]-[116]. The question of onus is a question of proper construction of the NT Act which cannot be affected by State Acts: at [117]. None of ss 68, 79 or 80 of the Judiciary Act 1903 (Cth) apply here: at [119].

Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512; Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594 at 600-601; Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249; Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, considered.

Dietmanv Karpany [2023] SASCA 52; (2023) 377 FLR 307; Woolmington v Director of Public Prosecutions [1935] AC 462; Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1; R v Director of Public Prosecutions; Ex parte Kebilene [2000] 2 AC 326, referred to.

5. The text offers little, if any, guidance, thus the context and purpose assume particular significance: at [132]. The Preamble, s 3, the heading of the section and a statement in introducing the provision suggest that the immunity was intended not only to facilitate the exercise of the fishing (etc) rights for particular people from time to time, but also to thereby preserve the continued existence of the native title rights and interests themselves, which depends upon them continuing to being exercised. That understanding militates against imposing the legal burden on defendants: at [133]-[137]. While the beneficial and remedial character of an Act does not override all other considerations, the issue of onus does not go to how far the immunity extends: at [138]. Where the existence and content of native title with respect to particular land or waters has not been authoritatively recognised by the determination processes established by the NT Act, to impose a legal burden to make out the relevant existence and content of native title would commonly make the task so difficult for a defendant as to render the benefit of s 211 illusory: at [142]-[145]. The proponents of a criminal or civil claim in this context in general will be better placed to bear that burden, being generally part of government agencies with far greater resources: at [146]-[147]. It is neither odd nor incoherent to attribute an intention to the Parliament that proponents bear the legal burden to the standard of proof that otherwise applies to them in making out their claim: at [153]. Thus, leaving aside consideration of prior appellate authority, the appropriate resolution to the issue is that when a party seeks to rely on s 211 of the NT Act in litigation against them, the legal burden of proof falls on the other party to negative the application of the provision, doing so on the standard of proof that otherwise applies to that party in making out their claim: at [179].

Dillon v Davies (1998) 8 Tas R 229; Wanganeen v Dietman [2021] SASCFC 25; (2021) 139 SASR 170; Carriage v NSW Department of Planning, Industry & Environment [2022] NSWDC 283; (2022) 39 DCLR(NSW) 66, considered.

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Commissioner of Police (NSW) v Cottle [2022] HCA 7; (2022) 276 CLR 62; Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554; Mason v Tritton (1994) 34 NSWLR 572; Derschaw v Sutton (1996) 17 WAR 419; Scott Fell v Lloyd (Official Assignee) [1911] HCA 34; (1911) 13 CLR 230; Bankinvest AG v Seabrook (1988) 14 NSWLR 711, referred to.

6. The South Australian Court of Appeal has recently held that the claimant of native title rights and interests in the context of invoking s 211 in criminal proceedings against them bears the legal burden of proof: at [96]. Intermediate appellate courts should not depart from decisions of other intermediate appellate courts on the interpretation of Commonwealth legislation, uniform national legislation or the common law of Australia unless persuaded that the interpretation is plainly wrong: at [98]. There is much to be said for the view that speaking of there being “compelling reason” rather than a decision being “plainly wrong” is a more constructive and informative articulation of the principle enunciated by the High Court: at [156]. Various factors are relevant to making the required assessment: at [157]-[159].

John v Commissioner of Taxation (Cth) [1989] HCA 5; (1989) 166 CLR 417; Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89; Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259; The Queen v Falzon [2018] HCA 29; (2018) 264 CLR 361; Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24; Totaan v R [2022] NSWCCA 75; (2022) 108 NSWLR 17, considered.

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122; (2020) 279 FCR 631; David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Ltd [2024] NSWCA 83; Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, referred to.

7. The South Australian Court of Appeal erred in its approach, most significantly as to the nature of the issue and in not recognising that the notion of being an exception or exemption to a rule is inapposite to the analysis: at [160]-[161] and [166]. The errors are fundamental. The Court has asked and answered the wrong question: at [164]. The decision does not rest upon a principle carefully worked out in a series of cases: at [172]. It will undermine the practical efficacy and significance of s 211 to a significant extent: at [174]. The Court’s decision is only a year old, and it is difficult to see how there could have been significant detrimental reliance on it in the meantime, other than detrimentally to Indigenous defendants: at [175]. The decision can and should be characterised as plainly wrong: at [176].

Dietmanv Karpany [2023] SASCA 52; (2023) 377 FLR 307, disapproved.

JUDGMENT

1. THE COURT: Section 211 of the Native Title Act 1993 (Cth) (NT Act) provides native title holders with an immunity from federal, State and Territory laws which prohibit or restrict them from fishing (amongst other things) where they do so in exercise or enjoyment of their native title rights, for the purpose of satisfying their personal, domestic or non-commercial communal needs. The provision has been in the Act since it was first introduced, having been an amendment to the original Bill moved by a crossbench Senator. The meaning and practical application of the section has been the cause of some difficulty and controversy. A case has been stated to this Court by the District Court raising three issues in that regard.

2. The context is as follows. Section 18(2A) and (2B) of the Fisheries Management Act 1994 (NSW) (FM Act) make it an offence to possess a priority species of fish in a commercial quantity without a licence or permit. Schedule 1B prescribes abalone to be a priority species of fish and the commercial quantity specified is 10. Section 21B of the same Act makes it an offence to traffic an indictable quantity of an indictable species of fish. Schedule 1C prescribes abalone to be an indictable species of fish and its indictable quantity is 50.

3. The prosecutor is the Director of Fisheries Compliance in the Department of Regional NSW. The respondent, Mr Keith Nye, is an Aboriginal man of the Yuin nation on the south coast of New South Wales. He is a member of a registered native title claim group. In January 2017 he obtained possession of some 567 shucked and frozen abalone which had been gathered by 25 or so other Yuin men. He played no role in gathering the abalone himself. He took the abalone to Sydney, selling 128 of them (about 16 kg) to the owner of a Chinese restaurant before being intercepted by police. Mr Nye did not hold a licence or permit under the FM Act to possess or sell abalone.

4. Mr Nye was charged in the Local Court with certain offences under the FM Act. He invoked s 211 of the NT Act in the proceedings. In a carefully considered judgment by Magistrate Abdul-Karim, Mr Nye was convicted of two of the offences charged, under ss 18 and 21B of the FM Act. He appealed his convictions to the District Court. At the request of the prosecutor, and prior to determination of the appeal, N Williams DCJ submitted a stated case to this Court pursuant to s 5B(1) of the Criminal Appeal Act 1912 (NSW), identifying what were said to be five questions of law arising from these proceedings.

5. The questions are framed in a problematic way. It is apparent, however, that there are three core issues in dispute relating to s 211 of the NT Act:

1. Where a native title holder collects abalone caught by others of their community for sale outside their community can that activity be characterised as done “for the purposes of satisfying their personal, domestic or non-commercial communal needs” within the meaning of s 211(2)(a)? This issue is sought to be raised by questions 1-3. We conclude that it cannot.

2. Can that activity be viewed as “fishing”, “gathering” or carrying on “a cultural or spiritual activity” under s 211(3)? This issue is raised by question 4. Again, we conclude that it cannot.

3. Does the prosecutor or defendant bear the legal burden of proof and persuasion as regards the matters raised by s 211 where that provision is invoked in a criminal proceeding, and to what standard? This issue is raised by question 5. We conclude that the legal burden is on the prosecutor.

6. In what follows we set out the stated facts (at [7]); explain the difficulties with the questions stated (at [8]-[16]); set out the key legislative provisions (at [17]-[40]); and then address the issues identified in turn (at [41]-[79] for issue 1, at [80]-[94] for issue 2, and at [95]-[179] for issue 3).

The facts in the stated case

7. The facts stated by N Williams DCJ relevantly are as follows:

The Appellant’s [ie Mr Nye’s] conduct

5 On Friday 20 January 2017, Fisheries Officers (FO) Andrew Field, Matthew Cartwright and Anthony Chen were conducting surveillance of a residential premises at 136 Nottinghill Rd, Berala NSW (the Residence).

6 The Residence is within the territorial limits of New South Wales and is an area to which the FM Act applies.

7 In the afternoon of 20 January 2017, the Appellant telephoned Mr Hoa La. Mr La was the owner of the Dragon Bowl Seafood Restaurant in Canley Vale and resided at the Residence.

8 At about 5:25pm on 20 January 2017, the Appellant attended the Residence in his vehicle.

9 The Appellant entered the driveway and stopped his vehicle in the rear yard of the Residence.

10 The Appellant took two plastic bags containing 128 shucked and frozen abalone (Haliotis rubra) from the boot of his vehicle. The Appellant handed the two bags containing the abalone to Mr La. Mr La paid the Appellant $60 per kilo in cash, totalling $960, for the 128 abalone.

11 At about 5:45pm, the Appellant drove his vehicle away from the Residence.

12 At about 5:50pm, a NSW Police highway patrol vehicle intercepted the Appellant’s vehicle a short distance away on Amy St, Berala.

13 NSW Police inspected the contents of the boot following a short conversation during which the Appellant told NSW Police that he had “a couple of bags” of “abalone in the boot” of his car.

14 A short time later, FOs Kirwin and Chen arrived. The FOs identified themselves to the Defendant. FO Kirwin cautioned the Appellant. The Appellant acknowledged that he understood the caution. FO Chen then commenced to make a video recording of subsequent events.

15 The video recording discloses that the Appellant was questioned in relation to the possession of the abalone in the boot of his vehicle. He admitted to being in possession of the abalone.

16 FOs Chen and Kirwin conducted a search of the Appellant’s vehicle. In addition to the abalone in the boot of the vehicle, the FOs located cash in the console and a smaller amount of cash in a compartment in front of the gear stick. A count of the money determined there to be $1,060 in total. The Appellant told FO Kirwin that the money was cash he had won at a venue called the Tomakin Club. This was untrue.

17 A short time later, FO Chen had a conversation with the Appellant. In answer to a question whether the abalone belonged to the Appellant, the Appellant said that the abalone was “all mine, but I collect it down home”. The Appellant said that he was “shooting them through to a mob up here in Sydney”. The Appellant said that he did not gather the abalone by himself. When asked which mob, the Appellant said “Aah. Blacktown”.

18 The Appellant was arrested and conveyed to Auburn Police Station.

19 At Auburn Police Station, the FOs counted and measured the abalone from the vehicle in the presence of the Appellant.

20 At the time his vehicle was stopped by NSW Police, the Appellant was in possession of 439 shucked and frozen abalone. They were separated into bags in equal lots of about 1 kilogram.

21 At about 9.30pm on 20 January 2017, FOs executed a search warrant at the Residence. Police located and seized 128 abalone from a freezer. Mr La informed police that he purchased 16 kilograms of abalone from “Keith” that day for the purpose of cooking and selling them at his restaurant.

22 The 567 abalone in the possession of the Appellant on 20 January 2017 immediately prior to the sale to Mr La (the Abalone) were not taken from the sea by the Appellant, but were given to him by other men who had taken the Abalone from the sea.

23 The Abalone could have been provided to the Appellant by any or several of up to 25 Aboriginal men of the Yuin nation.

24 The Appellant was not present while the Abalone were taken from the sea. He did not know from where those who fished for the Abalone took it, except that it could have been from anywhere between La Perouse and Eden. He did not know when the Abalone was taken from the sea, how they were taken, when they were shucked or how long they had been frozen before they were delivered to him.

25 The Appellant said that, of the 439 abalone in his possession when he was stopped by the FOs, he intended to offer to his aunty in Blacktown however many she wanted.

26 The Appellant intended to sell the Abalone that he did not give to his aunty in Blacktown.

27 The Appellant intended to distribute the money from the sale of the Abalone to the men who had taken it from the sea after taking a “cut” of between $5-8 per kilogram.

28 On 20 January 2017, the Appellant did not hold a commercial fishing licence or any other licence or permit which allowed him to possess more than the possession limit of abalone or any authority allowing him to take, possess or sell abalone.

29 The learned Magistrate Abdul-Karim found that the Appellant (the Defendant at first instance) had a commercial purpose in possessing the Abalone, and selling 128 of the Abalone, which was inconsistent with a purpose of satisfying personal, domestic or non-commercial communal needs. …

The Appellant’s native title rights and interests

31 The Appellant denies that his conduct contravened the FM Act because of the operation of s 211 of the Native Title Act 1993 (Cth) (NT Act) (the native title exception).

32 The South Coast People have filed a native title determination application (NSD 1331/2017) in the Federal Court of Australia (the Application).

33 The Application covers a 16,808 square kilometre area, whose easterly boundary is the 3 nautical mile limit of the State’s territorial waters.

34 The Application describes apical ancestors whose biological descendants comprise the native title claim group.

35 For the purposes of the NT Act, the Application was assessed by the National Native Title Tribunal and considered to have met the requisite standard for the Application to be registered.

36 The South Coast proceedings are yet to be determined by the Federal Court of Australia.

37 The Appellant is a Yuin man and forms part of the native title claim group.

38 It was an agreed fact at trial that, as a consequence of registration and only for the purposes of s 211 of the NT Act, the Appellant is able to be considered to be a native title holder until such time as the Application is either determined, withdrawn or dismissed.

39 The learned Magistrate Abdul-Karim made the following findings in relation to the cultural practices of the Appellant (the Defendant at first instance) in respect of fishing and his native title rights and interests:

(a) Fishing for abalone is an everyday activity which Yuin elders observed, were taught and carried out from a young age in their families and Aboriginal communities.

(b) Abalone (and other species of fish) are collected because it is a food source.

(c) The sharing of fish, including abalone, to feed family and others in the Aboriginal community is a strong cultural practice.

(d) Yuin law and custom allows Yuin people to take from the ocean only what they need to feed family and the community, and requires them to allow the species a chance to regrow and not to waste.

(e) Bartering or swapping fish, including abalone, is a permissible practice and was taught by the Yuin elders’ parents, grandparents and families.

(f) Most Yuin elders consider selling abalone for money to be no different from bartering for goods, money being a commodity necessary for everyday living, and there is no need to make a strong distinction between barter and sale.

(g) The ethnographic record demonstrates that Aboriginal people, including those on the south coast of NSW, regularly engaged in trade and exchange activities and that such activities constituted an essential element of the economy, social relations and ritual practice from prehistoric times. A considerable degree of exchange relationships were predicated on the demand for items that were not ubiquitously available.

(h) In the post-sovereignty period, there were a number of instances in which mariners and settlers encountered Aboriginal people and exchange took place.

(i) Although there may be differences in understanding in each Aboriginal community about how to achieve sustainability in the environment, the prime guiding principle is that people should only take what they need to sustain themselves, their families and guests and that each species should not be depleted.

(j) Sustenance does not equate to “just eating”. Sustaining a community involves social relationships and ceremonial activities. This includes using resources to obtain goods that a community does not have within its own environment, but not to deplete the resource to the point where it cannot reproduce itself.

(k) The Defendant has a non-exclusive native title right to carry on the class of activity of fishing in relation to the claim area.

(l) Although the Defendant has strong cultural and traditional connections to marine resources including abalone, the Defendant’s native title rights did not extend to possessing large quantities of abalone and selling it as alleged.

(m) The Defendant’s native title rights did not extend to the right to act as a middleman in the sale of abalone, particularly where the Defendant played no role in the taking of the abalone.

40 One of the issues in the appeal is whether the learned Magistrate’s conclusions in subparagraphs (l) and (m) above are infected by error. However, the questions posed in this Stated Case may be answered in such a way that the native title exception is not available, regardless of the correctness of subparagraphs (l) and (m). If so, it will not be necessary to determine this issue to resolve the District Court appeal.

The Defendant’s convictions

41 On 25 November 2021, after a five-day hearing on 14-15 September 2020 and 22-24 February 2021, the learned Magistrate Abdul-Karim found the Defendant guilty of:

(a) An offence contrary to s 18(2A) of the FM Act: possession of more than [the permitted] limit of fish – namely, 439 Haliotis rubra (abalone) – in circumstances of aggravation, being that abalone is a priority species of fish and that the quantity of abalone possessed was greater than 10, being the commercial quantity of abalone (sequence 2);

(b) An offence contrary to s 21B(1) of the FM Act: trafficking in an indictable species of fish by dishonestly possessing fish of an indictable species – namely, Haliotis rubra (abalone) – where the possession contravened s 18(2A) of the FM Act and the quantity of abalone possessed (439) was greater than 50, being the indictable quantity of abalone (sequence 3);

(c) An offence contrary to s 18(2A) of the FM Act: possession of more than the [permitted] limit of fish – namely, 128 abalone – in the same circumstances of aggravation as sequence 2 (sequence 6); and

(d) An office contrary to s 21B(1) of the FM Act: trafficking in an indictable species of fish by dishonestly possessing abalone where the possession contravened s 18(2A) of the FM Act and the quantity of abalone possessed (128) was greater than 50, being the indictable quantity of abalone (sequence 7).

42 Sequences 2 and 6 were back-up charges and related to the same conduct as sequences 3 and 7. The Prosecutor did not seek convictions in relation to sequences 2 and 6.

43 The Defendant was convicted of sequences 3 and 7. Sequence 3 (2017/00051763) related to the abalone found in the Defendant’s car (the car trafficking offence). Sequence 7 (2017/00051767) related to the abalone that the Defendant sold to Mr La (the restaurant trafficking offence).

44 On 4 August 2022, the Defendant was sentenced in respect of sequences 3 and 7.

The Appellant’s Appeal

45 On 25 August 2022, the Appellant filed a “Notice of Appeal to the District Court” in respect of CNI 2017/00051763-002 which stated that it was an “all grounds appeal and a severity appeal”. CNI 2017/00051763-002 related only to the prohibition order imposed in respect of the car trafficking offence.

46 An amended Notice of Appeal signed on 27 October 2022 records the following grounds of appeal in relation to the convictions:

(1) The learned magistrate erred in construing s. 211 of the NT Act so as to exclude the possession and sale of abalone that the Defendant did not himself fish from the ocean (and was not present for during its fishing).

(2) The learned magistrate incorrectly found that there was no evidence that those who fished for this abalone did so in exercise of a native title right and interest.

(3) In the alternative to (2), the learned magistrate incorrectly failed to hold that the Crown had not negatived the possibility that those who fished for the abalone were exercising their native title rights and interest.

(4) The learned magistrate erred in his construction of the phrase “personal, domestic and non-commercial communal needs” in s 211(2) of the NT Act, and thereby wrongly found that the appellant’s sale of abalone was inconsistent with that subsection.

47 … there is now before the District Court for determination an appeal against the Defendant’s conviction and sentence in respect of the car trafficking offence and an appeal against the Defendant’s conviction and sentence in respect of the restaurant trafficking offence.

The stated questions of law and their difficulties

8. Her Honour stated five questions for determination by this Court:

(1) Under what circumstances would possessing a commercial quantity of fish or trafficking in an indictable quantity of fish be capable of satisfying a person’s personal, domestic or non-commercial communal needs within the meaning of s 211(2)(a) of the NT Act?

(2) Are the following matters indicia that an activity is not being carried on for the purpose of satisfying a person’s personal, domestic or non-commercial communal needs within the meaning of s 211(2)(a) of the NT Act?

(a) Quantity of fish taken from the sea being in excess of what could be reasonably consumed personally or domestically, or of what is required to fulfil the consumption needs of the person’s immediate community;

(b) The fact of the fish being traded or sold for value;

(c) Quantity of fish sold or possessed with the intention of being sold;

(d) The fish being given by the person who took them from the sea (the taker) to another person (the intermediary) for provision for value to an end purchaser;

(e) The taker or the intermediary compiling the fish and/or arranging it into transportable and marketable quantities;

(f) Money being exchanged, or an intention for money to be exchanged, in respect of the fish, between the person relying on the native title defence (defendant) and others in connection with the transfer or delivery of fish;

(g) The person who purchases the fish from the defendant not themselves having native title rights and interests;

(h) The defendant obtaining the fish for the purpose of selling it;

(i) The defendant intending or expecting that the person to whom they deliver the fish will on-sell the fish;

(j) The defendant taking the fish off Country for the purpose of sale.

(3) What are the indicia of an activity carried on for the purpose of satisfying a person’s personal, domestic or non-commercial communal needs within the meaning of s 211(2)(a) of the NT Act?

(4) Is the activity of receiving fish taken from the sea by others and assembling that fish for the purpose of sale capable of constituting any of the following activities:

(a) “fishing”,

(b) “gathering”, or

(c) “a cultural or spiritual activity”

within the meaning of s 211(3)(b), (c) or (d) of the NT Act?

In other words, are an individual’s native title rights and interests transferable to others, and if so, under what circumstances?

(5) a) What (if any) is the onus and standard of proof borne by a defendant who claims native title rights and interests?

b) Does that onus and standard of proof change when the defendant did not themselves take the fish from the sea but rather received the fish from another person who claims that they took the fish from the sea in exercise of native title rights and interests?

9. Section 5B of the Criminal Appeal Act authorises a judge of the District Court to submit any question of law to this Court arising on any appeal to that Court in its criminal jurisdiction, and this Court may make any such order or give any such direction to the District Court as it thinks fit. It has long been recognised that care is needed in framing questions of law in stated cases, and that this is often not an easy task. The questions were apparently first drafted by the prosecutor then redrafted by N Williams DCJ. With due respect to those involved, the questions are not well framed.

10. Question 1 effectively asks for an exhaustive statement of the circumstances in which possessing in excess of a particular quantity of fish defined under a State statute would fall within s 211(2)(a) of the NT Act, which seems an impossible, not to mention unnecessary, feat. Senior counsel for the prosecutor agreed that “no meaningful answer can be given”. Any answer attempted would be liable to be misleading.

11. Question 2 asks whether a list of specific matters are indicia that an activity is not carried on for the statutory purposes under s 211(2)(a). The matters are articulated at a level of generality where, as senior counsel for the prosecutor accepted, it will all depend upon the circumstances.

12. Question 3 again calls for an exhaustive list of indicia, thus suffering from the same problems as questions 1 and 2.

13. Both parties disavowed the language of transferability in the last sentence in question 4. It is not disputed that Mr Nye is a native title holder for s 211 purposes.

14. Question 5(a) is a question of law which is capable of being answered. Question 5(b) tends to muddy the waters with considerations which do not appear apposite to the issue of where the onus of proof lies.

15. The prosecutor’s written submissions sought to answer the five questions in a different order, with a view to addressing the key issues in a more logical sequence. Counsel for Mr Nye in written response began by pointing out the “two topics” in the stated case as follows:

a. The first is to ascertain the relevant meaning of a provision in a Commonwealth statute, s 211 of the Native Title Act 1993 (NTA). That section relates in turn to a New South Wales statute, the Fisheries Management Act 1994 (FMA), which makes it an offence to possess more than the bag limit for certain fish.

b. The second topic concerns what a native title holder must prove in a New South Wales criminal proceeding, when an issue at trial is his native title right to possess fish.

16. On the second day of hearing counsel for the prosecutor proposed a set of reformulated questions to better capture the issues as further developed in oral arguments. These questions were an improvement, though still with some difficulties. In any event, it is the questions as set out in the stated case which are before us. Taking account of the submissions made and the issues in dispute, we have distilled the relevant and answerable parts of questions 1-3 into issue 1, question 4 raises issue 2, and question 5 raises issue 3, as set out above at [5]. Our formal answers to the questions are set out at the end of this judgment.

Relevant statutory provisions

17. The notion of native title is relevantly defined in s 223 of the NT Act as follows:

223 Native title

Common law rights and interests

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

Hunting, gathering and fishing covered

(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests. …

18. It is useful to set out s 211 of the NT Act in full:

211 Preservation of certain native title rights and interests

Requirements for removal of prohibition etc. on native title holders

(1) Subsection (2) applies if:

(a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and

(b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and

(ba) the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; and

(c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.

Removal of prohibition etc. on native title holders

(2) If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so:

(a) for the purpose of satisfying their personal, domestic or non-commercial communal needs; and

(b) in exercise or enjoyment of their native title rights and interests.

Note: In carrying on the class of activity, or gaining the access, the native title holders are subject to laws of general application.

Definition of class of activity

(3) Each of the following is a separate class of activity:

(a) hunting;

(b) fishing;

(c) gathering;

(d) a cultural or spiritual activity;

(e) any other kind of activity prescribed for the purpose of this paragraph.

19. The section has been amended once, in a minor way, by the Native Title Amendment Act 1998 (Cth). The only changes made were that subs (1)(ba) and the note in subs (2) were added.

20. The effect of the provision, if applicable, is that it “removes the requirement of a ‘licence, permit or other instrument granted or issued ... under the law’ referred to in s 211(1)(b) as a legal condition upon the exercise of the native title rights specified in subs (3)”: Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 at 474. It creates an immunity from the application of the restrictive law in question when a person covered by the provision is carrying on a relevant activity or gaining access to the land or waters for the purpose of doing so.

21. The following requirements must be satisfied for s 211 to apply:

1. There is a native title right or interest the exercise or enjoyment of which consists of or includes hunting, fishing, gathering, a cultural or spiritual activity, or another kind of activity prescribed (see s 211(1)(a) and (3)). This involves consideration of the existence and content of native title, thus the following sub-issues arise:

1. Are there communal, group or individual rights and interests in relation to land or waters possessed under the traditional laws acknowledged, and the traditional customs observed, by the Indigenous people concerned (s 223(1)(a))?

2. Do the Indigenous people have a connection with the land or waters by those laws and customs (s 223(1)(b))?

3. Are the rights and interests recognised by the common law of Australia (s 223(1)(c))?

4. Have those rights and interests been extinguished?

5. Do those rights and interests consist of or include hunting, fishing, gathering, a cultural or spiritual activity, or any other kind of activity prescribed (s 211(1)(a) and (3))?

2. The person in question is a holder of the native title right or interest in question (s 211(2) chapeau).

3. The person who is carrying on the relevant specified activity in question (or gaining access to land or waters in order to do so) is doing so in exercise or enjoyment of their native title rights and interests (s 211(2)(b)).

4. The person is doing so for the purpose of satisfying their personal, domestic or non-commercial communal needs (s 211(2)(a)).

5. There is a relevant law of an Australian jurisdiction which prohibits or restricts people from carrying on that type of activity other than in accordance with a licence, permit or such like (subs (1)(b)). It is not a relevant law if it is so restrictive that licences (etc) can only be granted for the purposes of research, environmental protection, public health or public safety (s 211(1)(ba)). Nor is it such a law if it confers rights or interests only on Indigenous people (s 211(1)(c)).

22. As the above list illustrates, the first requirement involves identification of the existence and content of a native title right or interest. Doing so involves all the complexities that arise in connection with satisfying the criteria for recognition of native title as defined in s 223 of the NT Act. “Section 211 can be engaged only if relevant native title rights and interests continue to exist”: Akiba v Commonwealth [2013] HCA 33; (2013) 250 CLR 209 at [71]. That may raise complicated issues of fact, history and law. Further, native title is not a singular set of rights. As Gummow J explained in Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 at [72] (citations omitted):

Native title is not treated by the common law as a unitary concept. The heterogeneous laws and customs of Australia’s indigenous peoples, the Aboriginals and Torres Strait Islanders, provide its content. It is the relationship between a community of indigenous people and the land, defined by reference to that community’s traditional laws and customs, which is the bridgehead to the common law. As a corollary, native title does not exhibit the uniformity of rights and interests of an estate in land at common law and “ingrained habits of thought and understanding” must be adjusted to reflect the diverse rights and interests which arise under the rubric of “native title”.

23. The first requirement also involves characterising whether the native title right or interest in question consists of or includes one (or more) of the specific classes of activities identified in s 211(3). It is not enough that there is some existing native title rights or interest which has some connection with, say, fish. There must be a right or interest which can be characterised as “fishing” – or one of the other specified classes – within the meaning of s 211(3). Thus whilst the first requirement does involve ascertaining the existence and content of native title, the requirement does not end there. It is also necessary that some relevant native title or interest can be characterised as consisting of or including hunting, fishing, gathering, a cultural or spiritual activity, within the meaning of those terms as employed in s 211(3). That raises a need to construe and apply the statutory classes of activity.

24. The second requirement is that the person in question is a “native title holder”. That term relevantly is defined by s 224 of the NT Act:

The expression native title holder, in relation to native title, means:

(a) if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust—the prescribed body corporate; or

(b) in any other case—the person or persons who hold the native title.

25. As to the notion of “prescribed body corporate”, if and when the Federal Court comes to make a determination of native title, one of the things it must consider is whether the native title is to be held in trust (s 56(1)). The persons that the Court proposes to include in the determination of native title as the native title holders (described as the “the common law holders”) can opt for a trust arrangement, where the trustee may be a prescribed body corporate (ss 56-57). If such a determination is made, “the prescribed body corporate holds, in accordance with the regulations, the rights and interests from time to time comprising the native title in trust for the common law holders” (s 56(3)). The effect of the definition in s 224 is that if there is a prescribed body corporate trustee then that corporation is the native title holder for the purposes of the Act, and not the individuals comprising the common law holders. The link between this aspect of s 224 and the operation of s 211 was described by Logan J in Santo v David [2010] FCA 42; (2010) 182 FCR 438 at [40] as follows:

Read in context, the reference in s 211(2) to the “native title holders” means no more than, where that “native title holder” as defined is a prescribed body corporate, then those on whose behalf the native title is held in trust by that body corporate are not prohibited.

26. On that view, although s 211 is expressed so as to create an immunity for native title holders the immunity can in fact extend beyond the legal native title holder (at least where the holder is a prescribed body corporate).

27. The notion of native title holder also raises matters with respect to the identity of the person and their membership of the relevant native title community.

28. The third requirement is that the native title holder is carrying on the relevant activity in question (or gaining access to land or waters in order to do so) in exercise or enjoyment of their native title rights and interests. This third requirement presupposes the second, that is, that the person in question is a native title holder. It also requires that they are a person who is entitled to exercise or enjoy that right or interest (where that may not extend to every member of the native title community) and to do so in the circumstances in question (where, for example, the right or interest might be restricted in some way, such as to timing or extent): note Yanner v Eaton at [74]-[75].

29. The fourth requirement involves characterisation of the purpose of the particular person when undertaking the activity in question. The issue is whether their purpose can be characterised in a way which falls within the terms of s 211(2)(a). The identification of the purpose depends upon the terms of that provision. The required purpose is a statutory construct. It is not dependent upon the content of native title in any particular case.

30. The distinctions between these requirements are subtle but important. To some extent the issues tended to be run together in the submissions made on behalf of Mr Nye. Near the beginning of oral submissions his counsel said:

there are three really important questions for any person in the position of my client. The first is: What is the native title right and interest which is being claimed? The second is: What is the traditional law or custom which grounds that right? And thirdly, what is the adaptation which is in front of the Court?

31. Those questions may be important, being involved in the first and perhaps second and third requirements as we have identified them. But they do not complete the requirements. In particular, for current purposes, there is still the need to consider whether the rights or interests can be characterised as “fishing” (etc) within the meaning of s 211(3), and whether they were being exercised in the case in question for the purpose of satisfying personal, domestic or non-commercial communal needs as required by s 211(2)(a). As just explained, those issues (raised by the first and fourth requirements) are not directly dependent on the content of the native title. There is a distinction between the existence of native title and its exercise for a particular purpose. Section 211(2)(a) imposes a purpose requirement. As French CJ and Crennan J said in Akiba at [21] (see also at [25], and Hayne, Kiefel and Bell JJ at [66]-[67]):

A native title right or interest defines a relationship between the native title holders and the land or waters to which the right or interest relates. The right is one thing; the exercise of it for a particular purpose is another.

32. Counsel for Mr Nye emphasised the potential for native title to develop and adapt to changing conditions. As Gleeson CJ, Gummow and Hayne JJ explained in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 at [44], “[a]ccount may have to be taken of developments at least of a kind contemplated by that traditional law and custom”. That understanding is part of the context in which s 211 must be construed. But it is not directly to the point of those statutory requirements identified which apply in addition to the recognition of relevant native title rights or interests.

33. The fifth requirement raises an issue of law. It can involve consideration of whether or not the relevant restrictive or prohibitive law can be characterised as falling within s 211(1): see eg Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269; Karpany v Dietman [2013] HCA 47; (2013) 252 CLR 507 at [45]-[49]. In practice it appears unlikely to be controversial in most cases.

34. In this matter, the first, third and fourth requirements set out above were in dispute in the proceedings in the Local Court. The second and fifth requirements were and are not in dispute.

35. In this Court, the first issue that arises relates to construction of the required purpose set out in s 211(2)(a), that being the fourth requirement identified above. The second issue relates to part of what is encompassed by the first requirement (as identified in [21(1)(e)] above), that is, whether Mr Nye’s actions can be characterised as one of the specified activities in s 211(3). The third issue relates to who bears the legal burden of proof and persuasion as regards each of the identified requirements.

36. It is not necessary to address the operative provisions of the FM Act at length, as their application was not in dispute. Relevantly, s 18(2) creates an offence where a person has in their possession “more than the possession limit of any fish”. The possession limit – commonly described as the “bag limit” – for abalone is 2: Fisheries Management (General) Regulation 2019 (NSW), Sch 1. Section 18(2A) – under which Mr Nye was charged, found guilty but not convicted – creates an offence where the person has more than the possession limit “in circumstances of aggravation”, which is defined in s 18(2B) to mean that the fish is a “priority species of fish” and the person possesses “a commercial quantity” of that species. Abalone is such a priority species, and the commercial quantity is defined as 10: FM Act, Sch 1B Pt 1 Div 3. It is a defence to such a prosecution that the fish were cultivated under an authority conferred by an aquaculture permit or any other permit under the Act: s 21(1).

37. Section 21B(1) of the FM Act – the provision under which Mr Nye was convicted – creates an offence of trafficking in an indictable species of fish. The notion of “trafficking” is spelt out in s 21B(2). It involves, amongst other things, that the amount of fish in question be “not less than an indictable quantity”. Abalone is such a fish, for which the indictable quantity is 50: FM Act, Sch 1C. The provision allows a defendant to rely on other defences available under the Act, which would potentially include having a relevant permit or licence: s 21B(3).

38. As set out at [28] of the stated case, at the relevant time Mr Nye did not hold any licence or permit which allowed him to possess more than the possession limit of abalone or any authority allowing him to take, possess or sell abalone.

39. Section 287 of the FM Act should be mentioned. It provides:

287 Native title rights and interests

This Act does not affect the operation of the Native Title Act 1993 of the Commonwealth or the Native Title (New South Wales) Act 1994 in respect of the recognition of native title rights and interests within the meaning of the Commonwealth Act or in any other respect.

40. Arguably the effect of this provision is that insofar as s 211 applies to any conduct prohibited under the FM Act, the FM Act is rolled back to that extent (s 5G of the Corporations Act 2001 (Cth) is an example of that technique, being a provision with the converse effect). On that view there would strictly be no inconsistency between the two Acts for the purposes of s 109 of the Constitution. However, it is unnecessary to address the point here.

Issue 1: the required purpose under s 211(2)(a)

41. Questions 1-3 of the stated case all concern the construction of s 211(2)(a) of the NT Act, that is, what is meant by carrying on one of the identified classes of activity “for the purpose of satisfying the [native title holder’s] personal, domestic or non-commercial communal needs”, and whether Mr Nye’s actions could be characterised as such. The parties did not dispute that the reference to personal needs meant the needs of the native title holder in question, and that the reference to domestic needs was to the needs of that person’s household. The focus of the dispute was on what was encompassed by the third of the adjectival notions employed, “non-commercial communal”, along with the meaning of the noun “needs”. These are issues of statutory construction to be resolved by reference to the text, context and purpose of the provision. Needless to say, there are dangers in focusing on particular words as though distinct from the phrase and provision in which they are employed.

42. Neither side had identified any superior court authority grappling with these matters. The prosecutor noted that they had been touched upon twice by the Full Court of the South Australian Supreme Court. In Dudley v Department of Primary Industries and Regions (SA) [2018] SASCFC 23; (2018) 231 LGERA 13 the Full Court treated a purpose of sale as inconsistent with the person in question satisfying their “personal, domestic or non-commercial needs” under s 211(2)(a) (at [18] n 8 and at [123]). In Wanganeen v Dietman [2021] SASCFC 25; (2021) 139 SASR 170 the Court noted, without comment, that the Magistrate at first instance had treated “commercial purposes” as inconsistent with all of the purposes identified in s 211(2)(a) (see at [103] and [131]-[132]). Earlier, members of the Federal Court had similarly referred to “commercial purposes” as not being encompassed by s 211: Akiba v Queensland (No 2) [2010] FCA 643; (2010) 204 FCR 1 at [775] (Finn J); Commonwealth v Akiba [2012] FCAFC 25; (2012) 204 FCR 260 at [33] (Keane CJ and Dowsett J). Strictly, as we discuss below, the word “commercial” qualifies only the communal needs in s 211(2)(a), not personal or domestic needs.

43. The construction primarily advocated by the prosecutor was this:

To satisfy a person’s personal, domestic or non-commercial communal needs, an activity must satisfy the needs directly, not indirectly. In that sense, “need” should be understood in the sense of “demand”, that is, a reasonable demand of the individual, that person’s household or that person’s community. It is more than something wished for or convenient, but is not confined to what is imperative or critical. Where fishing is concerned (and the same goes for hunting, gathering or a cultural or spiritual activity that has a tangible product), the activity must be for the purpose of satisfying the need (demand) of the person, the person’s household or the person’s community for the things fished (more generally, it must involve the use or consumption of things taken from the land or waters by the person, the household or the community). Section 211(2)(a) does not apply where the purpose of an activity is to generate a resource that, in turn, satisfies a different personal, domestic or communal need.

44. The construction advocated by Mr Nye was as follows:

The reference in s 211 to satisfying “non-commercial communal needs” is to a community using an adaptable native title right to meet their prevailing socio-economic conditions [fn: Modern needs include the purchase of clothing; payment of rent and rates; obtaining medicine; registering a vehicle]. The commerce that is prohibited in this context, and discussed by Parliament, is the exploitation of a resource beyond what is a reasonable level for an indigenous community and a responsible level for the environment. Reasonableness is principally judged against what is appropriate to help a community preserve and protect its identity as a native title group. It is not a concept that readily lends itself to profit, retained earnings, capital expenditure or an elaborate level of organisation. Trade or sale of a resource to satisfy communal needs is, however, comprehended within the expression. Before European settlement Aboriginals traded what they obtained [citing a paragraph of the Magistrate’s reasons], and the simple modern adaptation of that trade is to exchange the resource’s value into the intermediate form of money, which is then traded to satisfy communal needs. That cannot be the commerce which the section is concerned to avoid.

45. The key points that divide the parties are as follows:

1. What sorts of needs are encompassed by s 211(2)(a)? The prosecutor argued that it is the reasonable demands or expectations of the relevant person, household or community capable of being directly satisfied by the activities in question. Mr Nye submitted that the notion “includes not only the base needs of those who happen to have been born into an Aboriginal community, but the higher order needs of the man and woman of an Aboriginal nation”. That broader view of needs meant that they could be satisfied indirectly by fishing (etc) for the purposes of trade and sale in order to generate a material or financial return, which could then be used to satisfy the broader needs.

2. What is the permissible scale of the activities that may be undertaken? This issue raises the effect of the label “non-commercial”. It also raises the suggestion of Mr Nye that the “inquiry into a hunting, fishing, cultural or spiritual activity is qualitative, and it is conducted with an eye to resource sustainability and the Indigenous community needs that are being satisfied”.

Text, context and purpose

46. This is a case where it is not very helpful sharply to delineate issues of text, context and purpose, save that we will address separately below what is revealed by consideration of the extrinsic materials.

47. The central issue is what type of needs are encompassed by s 211(2)(a). The qualifying words “personal, domestic or non-commercial communal” can be construed more broadly (eg as encompassing any material needs of the relevant persons) or more narrowly (in particular as those needs capable of being satisfied directly by the activities in question).

48. The notion of “needs” is not further explained in the NT Act. The word is used three times in the Preamble to the Act, most notably in referring to “[t]he needs of the broader Australian community” in a particular regard. Neither these usages, nor the other usage in the note to s 87A(4), throws any real light on the meaning of the word as employed in s 211(2)(a), as the context is different.

49. The openness of the term is illustrated by the first definition of the noun “need” in the Macquarie Dictionary: “a case or instance in which some necessity or want exists; a requirement”: online ed, accessed 8 July 2024. Even that first definition conveys a possible spectrum as to how imperative the need must be, between a “want” and a “requirement”. The term is similar in that regard to the notion of “necessary”, which may mean for example “essential” or “unavoidable” in some legal contexts or, more flexibly, “reasonably appropriate and adapted” in others: see Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at [39].

50. The nature and function of s 211, in the context of the NT Act, assists in considering its meaning. It is a provision designed to benefit Indigenous people by providing them with an immunity from the operation of certain restrictive laws of the nine Australian jurisdictions. It may apply to “a very diverse range of regulatory schemes”: Wilkes at [89]; see also Karpany v Dietman at [48]. Those schemes will commonly involve criminal prohibitions on fishing (etc) without a licence of some kind, but they could also provide for civil penalties or other forms of civil litigation. In any event – and as discussed further below with respect to the onus issue – the section may fall to be applied in a wide range of courts, but most commonly the provision will be invoked in local courts before magistrates around the country. The Parliament can be taken to have intended that the provision was capable of operating in a practical way in such courts. It can be assumed that the Parliament did not intend the provision to be ineffective, having mere symbolic value.

51. Mr Nye’s construction involves an encompassing view of “needs” that is at the less imperative side of the spectrum. He submits that s 211 does not prohibit trade in items collected as a result of the activities protected by the section, whether it be trade by way of bartering or simply for money. Such trading is subject only to the limit of resource sustainability and, perhaps, to some restriction on seeking to profit (whether or not that was an additional limitation was not entirely clear). There are many difficulties with this proposed construction.

52. To begin with, insofar as there is a textual basis for the construction at all it seems to build upon the reference to “non-commercial communal needs”. That is shown by Mr Nye’s explanation of “the commerce that is prohibited in this context …” (see the quotation above at [44]). Yet the main limitation he suggests seems to be based upon resource sustainability. That limitation has no particular textual footing in the provision. It is quite a different idea to what is conveyed by the word “non-commercial”. It seems to represent Mr Nye’s attempt to acknowledge that, as shall be seen, the extrinsic materials manifest a concern about that issue. It is one thing to take account of that concern as throwing light on the purpose and meaning of the provision. It is another thing to manufacture a distinct statutory limit out of that concern which has little to do with the words that the Parliament has adopted.

53. Next, how are any courts, let alone magistrates dealing with crowded criminal lists, supposed to assess such matters? Mr Nye’s reference to “the higher order needs of the man and woman of an Aboriginal nation” is directed to material needs, and is obviously meant to encompass more than base sustenance. Courts determine economic compensation for loss of a person’s capacities every day of the week. In this century compensation for loss of income is often set or capped by Parliaments by reference to average weekly earnings or the like; there is no possible basis to read in any such limitation here. In any event, that type of compensatory assessment is quite different from making some generic judgment as the reasonable level of material aspiration of Indigenous peoples. That type of issue seems to be raised by speaking of the “higher order needs of the man and woman of an Aboriginal nation”. Where, on the spectrum of requirements and wants, would such a notion fit? For a judicial officer to be required to make such a determination would be invidious. It is most unlikely to have been intended.

54. Similarly, it is difficult to see how the courts concerned could make judgments about “what is a reasonable level [of exploitation] for an indigenous community and a responsible level for the environment”. That task would be further complicated if “reasonableness is principally judged against what is appropriate to help a community preserve and protect its identity as a native title group”, which appears to raise sociological and anthropological assessments. Even leaving that aside, making judgments about the sustainable limits of exploitation of a natural resource require a current and historical understanding of the resource in question, along with information as to who is exploiting the resource and at what rate. The judgments involved are complex, polycentric and evaluative. They are of a kind suited to executive determination in the context of a legislative scheme. Even then, the results are often controversial: note eg Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314; Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381; and, in a different context, ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; (2009) 240 CLR 140. They are not judgments of a kind suited to judicial decision-making in any court, let alone in a local court prosecution. Amongst other limitations, the court will generally only be considering the actions of one defendant. But the sustainability of what that person has done cannot be considered in isolation from what other people have been doing. That would require consideration of the activities of members of both the Indigenous and non-Indigenous communities.

55. Again, it is most unlikely that the Parliament would have intended this type of judgment to be required by s 211. Indeed, any intention to require courts to undertake such a generally unsuitable task would need to be clearly expressed. It is also relevant that the provision will commonly apply in a criminal context. In general the law aspires to certainty in the operation of criminal law: note Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454 at 465-466; The King v Jacobs Group (Australia) Pty Ltd [2023] HCA 23; (2023) 97 ALJR 595 at [24] and [38].

56. As alluded to above, counsel for Mr Nye made arguments relating to the potentially evolving nature of native title rights and interests. He also argued that some native title rights or interests involving the collection of resources might traditionally have extended to use of those resources for the purpose of trading with other Indigenous groups. Yet, as explained, the requirement in s 211(2)(a) applies distinctly from, and additionally to, the content of the relevant native title rights and interests.

57. Counsel for Mr Nye sought to invoke the Racial Discrimination Act 1975 (Cth) in support of his argument. How that Act assists in the construction of a provision overtly to the benefit of Indigenous people was not satisfactorily explained. Counsel also argued that s 211 should be given a “fair, large and liberal” interpretation as a beneficial provision, citing AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390 at [24]. On any view the provision is beneficial to native title holders. The question is how far it goes in pursuing that beneficial purpose, in circumstances where the Parliament sought to balance competing interests by setting the purpose requirement. No legislation pursues its purposes at all costs: Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 248 CLR 619 at [41]. Indeed, in the Senate debate about the provision the leader of the Government in that chamber, Senator Gareth Evans, spoke of “a pretty reasonable balance of interest that has been struck”, describing the provision as “a fairly intricate and balanced clause”: Commonwealth Senate, Parliamentary Debates (Hansard), 21 December 1993 at 5444.

58. The purpose of s 211(2)(a) is apparent from how it fits into the structure of s 211 (as reinforced by reference to the extrinsic materials). As explained above, it sets an additional requirement relating to the purpose of the person concerned, which must be met beyond establishing that the person is carrying on the relevant activity in exercise or enjoyment of their native title rights and interests. The imposition of the purpose requirement is the relevant limit. There is no indication that another limit relating to reasonable maintenance of the community in the context of reasonable exploitation of resources should be constructed. Further, whether or not that person was acting in pursuit of that purpose is something which must be capable of meaningful and practical assessment by the range of courts in which the issue may arise. That point militates in favour of a simpler construction than proposed by Mr Nye. As addressed below, comments made by Senator Evans in the Senate debate support this point (see below at [74]-[75]).

59. In our view the appropriate understanding of the statutory phrase is that it refers to needs of the relevant classes of persons capable of being satisfied directly by undertaking the activities in question, being needs of sustenance or consumption. It does not extend to indirect satisfaction of broader needs by using the product of the activities for sale or barter beyond the household or community so as to obtain money or goods which can in turn be used for satisfaction of those broader needs of the persons in question.

60. The construction of s 211(2)(a) must take account of the nature of the activities prescribed in s 211(3). Hunting, fishing and gathering are activities undertaken in order to meet human needs, generally being physical sustenance. In some instances those activities may also, or instead, have a particular intangible cultural dimension. Cultural or spiritual activities generally are undertaken for sustenance of the human spirit. Construing s 211(2)(a) as referring to a purpose of directly satisfying such human needs for sustenance is a natural and harmonious reading of the provision.

61. The construction we prefer is consistent with and supported by the qualifying word “non-commercial” placed before “communal”. The word “communal” refers to the community of the person in question who has undertaken the relevant activity. The relevant community here is that community to which the relevant native title rights and interests attach (noting that such rights and interests may attach to a community without necessarily being shared by all members of the community – see Yanner v Eaton at [74]). Native title arises out of the laws and customs of particular societies: Yorta Yorta at [49]-[50]. That understanding of “communal” is consistent with the fact that native title is defined in s 223(1) of the NT Act as “the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters” which satisfies the criteria identified in that provision.

62. On the text of s 211(2)(a) it is strictly the communal needs which are required to be non-commercial; the word does not in terms qualify the identified purposes of the person undertaking the action. A reason for placing the qualifying word before “communal” can be understood as indicating that the sort of needs of the community being met are not commercial ones, that is to say, ones involving commerce and the generation of money. Otherwise, it might have been argued that the needs of a community are inherently broader and more diverse than the needs of a person or household, which might have supported a broader understanding of communal needs. That understanding of the reason for including the word “non-commercial” supports our construction that the relevant types of needs are ones of consumption or sustenance capable of being met directly by the activities in question.

63. That being said, it is also reasonable to understand the reference to being non-commercial as relevant to the construction of s 211(2)(a) as a whole. As explained further below at [73]-[77], in the Senate debate on the provision Senator Evans said that the provision authorised a relevant activity “provided it does not have any commercial character about it” and not so as “to take commercial quantities”. The use of that qualifier throws some light on the intended character of the purpose being identified in the provision.

64. What, then, of bartering or sale within the community in question? For example, a person might collect some abalone to trade with another member of the community for some other resource (eg other fish; firewood), or even in return for cash. The prosecutor accepted that this could occur to some degree consistently with s 211(2)(a):

118. Mr Nye also sought to place some reliance on the fact that s 211 was enacted prior to introduction of the State’s FM Act. That fact is not to the point when the issue is construing a provision of an overriding federal law which applies regardless of what is provided by any State or Territory law.

Case law

122. Dietman is the first appellate court authority which determined authoritatively the issue of onus with respect to s 211. However, the issue had been touched on in earlier cases. There had been two cases addressing similar claims made prior to the commencement of the NT Act: Mason v Tritton (1994) 34 NSWLR 572; Derschaw v Sutton (1996) 17 WAR 419. Those matters do not advance consideration of how to construe s 211.

123. More relevantly, Dillon v Davies (1998) 8 Tas R 229 did concern the application of s 211. Underwood J, on reviewing in the Tasmanian Supreme Court the decision of a magistrate, stated (at 234) that the magistrate had:

correctly set out that it was not necessary for the applicant to establish a defence upon the balance of probabilities and held that, although the applicant carried an evidentiary burden, once that had been satisfied, the onus rested on the prosecution to establish guilt beyond reasonable doubt.

124. It is not apparent from the judgment to what extent the matter had been the subject of argument.

125. In Dudley in 2018 the South Australian Full Supreme Court recorded (at [71]) that it was common ground in that case that the defendants bore an evidential burden in relation to s 211 (it being implicit that that was the only burden the defendants relevantly bore). Three years later, in Wanganeen, the same Court considered arguments by the prosecutor that the legal burden lay on the defendant, but it was not necessary for the Court to resolve the issue (at [211]-[245]).

126. The issue was the subject of argument and reasoned determination by Buscombe DCJ in a criminal appeal in the District Court of New South Wales in Carriage v NSW Department of Planning, Industry & Environment [2022] NSWDC 283; (2022) 39 DCLR(NSW) 66. His Honour concluded that the legal burden with respect to applying s 211 fell on the prosecution, with the defendant bearing an evidential onus (at [225]-[239]).

Construction of s 211 as to onus

127. Neither s 211 itself, nor anything else in the NT Act, addresses in terms the issue of onus or standard of proof in applying the section. The only sections of the NT Act that engage in terms with the issue of onus are ss 171, 172, 174 and 203DG, the notes to which provide that a defendant who raises “reasonable excuses” to offences prescribed by those sections in relation to proceedings before the National Native Title Tribunal bears an “evidential burden”. No such words or notes accompany s 211, but the contexts are quite different. The fact that the Parliament has expressly addressed the issue to the extent of inserting such notes puts into relief the fact that it has not done so with respect to s 211. It does nothing to support an inference one way or the other as to what the Parliament’s intent was with respect to that section.

128. Nor are the terms of s 211 especially suggestive of where the federal Parliament intended the onus to lie. The provision does not, for example, speak of either side establishing any of the requirements or satisfying a court that they are met, in contrast to many other provisions in the Act: eg ss 82(3), 84(5), 84(5A), 84(9), and 86G(1) of the NT Act. It sets out the criteria for the immunity to apply without any indication of who must make out those criteria.

129. An argument could be made that there is some significance in the fact that the operative language of s 211 is that if the relevant requirements apply, “the law does not prohibit or restrict” the specified activities. This could be said to change the operation of relevant laws in question to the effect that it is no longer an offence or otherwise impermissible to take the actions. That might be said to bring the characterisation of s 211 closer to an element of crime, if not a defence, as compared to a statutory exception. That said, the point does not greatly advance debate. Suffice it to say that it is entirely consistent with the text of the section that the legal burden be on the proponent.

130. Given the substantial silence of the text, Mr Nye sought to call in aid something said by French CJ in Momcilovic:

[44] The common law “presumption of innocence” in criminal proceedings is an important incident of the liberty of the subject. The principle of legality will afford it such protection, in the interpretation of statutes which may affect it, as the language of the statute will allow. A statute, which on one construction would encroach upon the presumption of innocence, is to be construed, if an alternative construction be available, so as to avoid or mitigate that encroachment. On that basis, a statute which could be construed as imposing either a legal burden or an evidential burden upon an accused person in criminal proceedings will ordinarily be construed as imposing the evidential burden.

131. That reasoning does not advance matters here. His Honour was addressing construction of provisions imposing criminal liability. Section 211 is not such a provision. It is not a section “which on one construction would encroach upon the presumption of innocence”. On any view of it s 211 aids relevant defendants by immunising them from potential criminal (and civil) liability. The issue here is how far the provision goes in achieving that end.

132. Where the text offers little, if any, guidance the context and purpose assume particular significance. Here those matters overlap.

133. To begin with it is relevant that the section is headed “Preservation of certain native title rights and interests”. The heading to the section is part of the Act: Acts Interpretation Act 1901 (Cth), s 13(1). The reason the section can be seen to preserve the rights and interests addressed in the section is that it facilitates their exercise by overriding laws which would impede or prevent that occurring. The point was alluded to by Senator Chamarette in her short speech introducing the amendment (Hansard at 5441):

The clause is particularly important for those Aboriginal and Torres Strait Islander people who may already be largely dispossessed and whose native title rights are limited to particular activities or resources. Without it there could be a creeping process of dispossession as native title rights are regulated out of existence, one by one, while other people remain free to carry out those same activities. …

134. That statement, taken together with the heading to the section, suggests that the measure was intended not only to facilitate the exercise of the fishing (etc) rights for particular people from time to time, but also to thereby preserve the continued existence of the native title rights and interests themselves, which depends upon them continuing to being exercised. That dual significance of the section suggests the immunity created by the Parliament was both important in the context of the Act and meant to be capable of practical and ready exercise by native title holders. That understanding militates against imposing the legal burden on defendants.

135. The point is reinforced by both s 3 and the Preamble. Section 3 sets out four “main objects” of the NT Act, the first of which is “to provide for the recognition and protection of native title”. Section 211 can be seen as one measure providing for the protection of native title by facilitating its exercise in particular ways.

136. The long and eloquent Preamble refers to the past progressive dispossession of Indigenous peoples and their subsequent disadvantage. Amongst other things it then says:

The people of Australia intend:

(a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

(b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire. …

It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests.

137. The Preamble is not all one way. It also says, for example, that: “The needs of the broader Australian community require certainty and the enforceability of acts potentially made invalid because of the existence of native title. It is important to provide for the validation of those acts.” But s 211 does not relate to issues of validation or creating certainty for landholders or the like. The relevance of the Preamble for present purposes is that it conveys the Parliament’s view as to the significant, reparative and beneficial effects intended to be achieved by the NT Act, including in particular in the importance of enabling native title holders to be “able to enjoy fully their rights and interests”.

138. As we have already noted, the beneficial and remedial character of an Act does not override all other considerations relating to any particular provision, which may manifest the drawing of a balance between competing interests and ends. However, the issue of onus does not go to how far the immunity extends, in contrast to the two issues we have addressed above. Rather, it goes to how the immunity created by the section is to be addressed in courts. Of course, whichever side of a case bears the legal burden will be disadvantaged, so in that sense the issue is a zero sum game. The significance of what is said in the Preamble is to reinforce the importance and the practical impact of what the Parliament was seeking to achieve. That understanding lends further weight to the conclusion that the immunity created by s 211 is meant to be capable of practical and ready exercise.

139. In the Senate debate there was no discussion of who would bear the onus. At one point Senator Evans said that Aboriginal people “would have to establish [native title] before they will be completely immunised from prosecution and so on under this clause” (Hansard at 5444). On the other hand, he later said this (at 5452):

Then it would be a matter for the court at which the case was heard to apply this particular provision and satisfy itself, firstly, that the native title right existed. This creates an interesting task for the court. It might want to adjourn the matter whilst these things are considered and maybe the claim just would not be able. to be credibly made, unless it had been through some determination process-and that may well be the situation.

140. These statements throw limited light on the issue of onus, at best. However, Senator Evans went on to state that the idea of the provision “is not to immunise native titleholders completely from the operation of state laws of general application that bear upon hunting, fishing, gathering and things of that kind, such that they can do anything at all” (at 5443). And, as already noted, he said (at 5445):

The whole point of this is to say that, notwithstanding all those normal restrictions, native titleholders can bypass them, provided that – and the proviso is very important – it is on a very small, intimate and personal scale and they are doing it pursuant to a genuinely held native title right.

141. These statements by Senator Evans imply that the idea was to immunise native title holders to some extent, and that the provision was meant to give a meaningful way for such people to bypass restrictive laws. That objective also would be undermined if the legal burden is on defendants.

142. These points lead to this important, practical issue. We have identified at [21] above the requirements which must be established in order for s 211 to apply. The first of those involves whether or not there is a native title right or interest which consists of or includes fishing or one of the other identified activities. As we have explained, that necessitates establishing the ongoing existence, and relevant content, of native title for the land or waters concerned. The NT Act has been in place for some 30 years. The process of ascertaining and identifying the existence and content of native title has been a very slow one. It still goes on, as this case illustrates – there is an as yet undetermined native title claim over relevant parts of the south coast of New South Wales.

143. That the process has been slow and difficult is inherent in the nature of the concept, for it involves close consideration of historical, anthropological and legal matters, informed by the evidence of Indigenous people from the relevant area. A range of stakeholders may be affected. Brennan J recognised at the start of the journey that “ascertainment may present a problem of considerable difficulty”: Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 58. In Yorta Yorta it was said that “[i]t may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof” (at [80]). The Parliament may be taken to have understood that this would be so when the NT Act was enacted.

144. In some cases the existence and content of native title with respect to particular land or waters will have been authoritatively recognised by the determination processes established by the NT Act: see in particular ss 13, 61 and 225. In many other cases, such as this one, that will not be so. In such cases, to impose a legal burden to make out the relevant existence and content of native title would commonly be to make the task so difficult for a defendant as to render the benefit of s 211 illusory. That practical effect defeats not only the intended practical benefit of the immunity created by s 211 but also undermines the Parliament’s clear intent to preserve native title rights by facilitating their exercise.

145. There is much force in the following submission made on behalf of Mr Nye about the effect of placing the legal burden on a defendant:

It warns the individual off ever attempting to use his or her native title, and in that way, it diminishes it. He can credibly explain to the officer what he is doing and why he is doing it, only to face the response that “you can prove it in court”, without any call for further investigation on the officer’s part. Such a reality stands in stark contrast to the lack of burden faced by the other type of fisherman, the permit holder. When he is approached by the fisheries officer all he must do is produce his permit. His fishing right is not diminished in any practical sense by a proof obligation.

146. Proving or disproving the existence and content of native title is difficult, whichever side bears the onus. But it is clearly proponents who, in general, will be better placed to bear that burden: see, similarly, Carriage at [230]. As we have indicated, by and large the issue will arise in criminal prosecutions in local courts. Mr Nye was represented in the Local Court by senior counsel and substantial evidence was taken. It can be inferred that the case was viewed as a test case, with significant pro bono resources expended. This case cannot be viewed as typical or representative. It is unconvincing to suggest that individuals prosecuted in such a manner will be in a position to discharge the onus in most cases.

147. Prosecutors or other proponents will, in general, be part of government agencies. As the federal Parliament would have appreciated, State and Territory governments can be expected to know of and be involved in addressing native title claims made over land or waters within their jurisdictions. They will thus be likely to have existing knowledge of the relevant issues; they will have experience in dealing with those issues; and they will generally have far greater resources available to them to deal with the complex matters involved than the defendants in such cases. The fact that a defendant claims to be a native title holder does not say much about their ability to call evidence to prove in a court, even on the balance of probabilities, the existence and content of their claimed native title.

148. The prosecutor referred to the fact that the legal onus of proof is on claimants when seeking recognition of native title pursuant to a native title determination under the Act: see eg Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 at [114]-[117]. Yet there is a significant difference between the position of a community, group or persons seeking a one-off formal determination and recognition of native title with binding and ongoing effect, on the one hand, and an individual who is (typically) being prosecuted in a local court for the illegal taking of fish on the other. The fact that the onus is on the claimant in the former type of case gives no real indication of the Parliament’s intention as to onus in the latter.

149. The prosecutor here argued that the matters raised by s 211 are to a substantial extent peculiarly within the knowledge of defendants. That is the third factor we identified above from the High Court case law (see above at [111]). We have just addressed that point with respect to the existence and content of native title, which goes to the first of the five requirements we have identified. The second requirement – whether the defendant is a holder of the native title right or interest in question – will be something within the defendant’s knowledge, but will also be affected by broader issues about the existence of the native title rights and interests, where the proponent side is likely to have an advantage. The same is true of the third requirement, relating to whether the defendant is carrying on the relevant specified activity in question (or gaining access to land or waters in order to do so) in exercise or enjoyment of their native title rights and interests. The fifth requirement relates to characterisation of the restrictive legal regime being enforced, where issues of proof do not arise, and neither side has any particular advantage.

150. The fourth requirement is that the defendant was the person undertaking the activity for the purpose of satisfying their personal, domestic or non-commercial communal needs. Here, defendants will have an advantage over proponents, because it relates to the purpose of their own activities. But the significance of that advantage should not be overstated. It is commonplace for prosecutors to bear the onus of proof on matters of a defendant’s intent or state of mind. Woolmington itself illustrates the point. Even if a defendant has made no statements nor given evidence, a state of mind may be proved by inference from what they have done in the context of the circumstances in which they did it.

151. In our view, on balance, the third interpretative factor we have identified from the cases favours the burden being found to be on the proponents, not defendants.

152. The fourth interpretative factor is the nature and subject matter of the qualification in question (see above at [112]). That factor is intertwined with the issues relating to the nature of native title, which we have already addressed.

153. The prosecutor here argued that incoherency would arise if the legal burden was to be on proponents. That was said to be because s 211 may arise in criminal or civil proceedings. If the burden was on prosecutors in criminal proceedings, it was accepted by the prosecutor that that would be a burden to the standard of beyond reasonable doubt. But in civil proceedings, presumptively, it would be a burden on the balance of probabilities. We agree that it would be odd, and unlikely, for the federal Parliament to have intended that a legal burden be on proponents in civil cases to disprove a plausible claim made under s 211 beyond reasonable doubt. However, it is neither odd nor incoherent to attribute an intention to the Parliament that proponents bear the legal burden to the standard of proof that otherwise applies to them in making out their claim. It is an aspect of the basic legal notion that the one who claims must prove: see eg Scott Fell v Lloyd (Official Assignee) [1911] HCA 34; (1911) 13 CLR 230 at 241; Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 717. The differential burden simply reflects the fact that s 211 may be invoked in different sorts of matters.

146. In sum, we consider that there is a strong basis for concluding that the federal Parliament can be taken to have intended that the legal burden of proof when a person asserts an immunity under s 211 is on the proponent asserting a case against that person, to the standard that otherwise applies to the proponent in making out their claim. That conclusion gains support from the heading to the provision, as reinforced by s 3 and the Preamble to the Act, along with the extrinsic materials, and the relevant interpretative factors identified in the case law. When the nature of what is involved in addressing a claim under s 211 is understood, to reach the contrary conclusion would undermine the efficacy and significance of the provision to such a substantial extent that we cannot take that to have been the intention of the Parliament.

147. The remaining issue is whether we should nevertheless follow the contrary conclusion reached in Dietman. That turns on whether or not we are convinced that the decision can be characterised as plainly wrong. The prosecutor informed us that special leave to appeal that decision to the High Court had not been sought.

The decision in Dietman

156. In Zuda the High Court articulated the relevant test as not departing from an applicable decision of another intermediate appellate court “unless convinced that the interpretation is plainly wrong or, to use a different expression, unless there is a compelling reason to do so” (at [25], citations omitted). There is much to be said for the view that speaking of there being “compelling reason” rather than a decision being “plainly wrong” is a more constructive and informative articulation of the principle enunciated by the High Court: note Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122; (2020) 279 FCR 631 at [126]; David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Ltd [2024] NSWCA 83 at [22] and [140]. In any event, there is no doubt that such a conclusion should not lightly be reached. As Bell CJ has said, speaking for a bench of five in this Court, “[u]nderpinning language such as ‘a strong conviction’ or ‘compelling reasons’ … employed in this area of discourse are the important goals of fostering stability and predictability in the law and consistency and certainty in the administration of justice”: Totaan v R [2022] NSWCCA 75; (2022) 108 NSWLR 17 at [74], citing Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1 at [286] and [300].

157. In John v Commissioner of Taxation (Cth) [1989] HCA 5; (1989) 166 CLR 417 at 438-439 the High Court articulated four factors which guide whether or not to overturn one of its own decisions:

The first was that the earlier decisions did not rest upon a principle carefully worked out in a significant succession of cases. The second was a difference between the reasons of the Justices constituting the majority in one of the earlier decisions. The third was that the earlier decisions had achieved no useful result but on the contrary had led to considerable inconvenience. The fourth was that the earlier decisions had not been independently acted on in a manner which militated against reconsideration …

158. It has been accepted that these factors may also provide a useful although not exhaustive guide when intermediate appellate courts decide whether to depart from an earlier decision of another court at that level: Gett at [297]; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [85] (Heydon J). As Bell CJ put it in Totaan at [76], relevant factors can be said to include:

whether the challenged decision(s) are closely reasoned, whether the principle for which the decision stands has been worked through in a series of cases, and whether the decision(s) challenged have been unanimously followed or whether there is some tension between decisions of courts of coordinate authority in relation to the challenged decision(s).

159. The factors also include “the length of the period for which the earlier decision has stood, and whether it has been relied upon in the arrangement of human affairs”: Personnel Contracting at [126].

160. The South Australian Court of Appeal gave a number of reasons for reaching its conclusion, but it is clear that its primary reason was as follows. After examining relevant authorities, including in particular Chugg, the Court said the following (citation omitted):

[77] … The issue is whether the matter or provision relied upon forms part of the statement of the general rule (whether as a positive or negative element of the relevant offence), or is an answer by way of an exception which serves to take a person outside the operation of that general rule. The issue is one of statutory construction, with Parliament's intention to be discerned from the express words used in the relevant provision, or by implication. While the form of the legislative provision is relevant, the focus is on the substance of its operation. …

[83] In considering whether s 211(2) of the Native Title Act was intended to operate by way of exception to a general rule, rather than forming a part of the statement of a general rule, it is relevant that it appears separately from the statement of the general rule(s) in the offence provisions in the Fisheries Management Act; indeed, it appears in an entirely separate piece of legislation, enacted by a different Parliament. …

[85] It is also relevant that s 211(2) is broader in its terms and subject matter than the offence provisions in the Fisheries Management Act. It extends beyond fishing to provide for the exercise of native title rights and interests more generally. It is expressed as providing for the exercise of those rights free from the constraints of any other law, rather than as a defence or negative element of any particular offence provision(s).

[86] The above are strong textual and contextual indications that s 211(2) was intended to operate by way of exception to, rather than as part of the statement of, the general rules provided for in the offence provisions of the Fisheries Management Act.

[87] The terms of s 211(2) also suggest a legislative intention that it operate by way of an exception rather than forming part of the statement of a general rule. The terms of s 211(1) and 211(2) are expressly predicated upon the existence of some general rule (a prohibition or restriction) which exists separately in some other law (here, a State law). Further, s 211(2) fits the description of a provision that exempts compliance with a prohibition or restriction under that other law “in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities”. It fits that description both as a matter of form and substance. It is a provision that applies to persons of a specified class (native title holders) in specified circumstances (where they are exercising native title rights and interests for the purpose of satisfying their personal, domestic or non-commercial communal needs).

161. In short, thus, the Court’s conclusion was based particularly upon the first and second of the factors identified in the High Court cases as we summarised them above at [108]-[110]. In so doing the Court manifests two errors, in our respectful view. The first is as to the nature of the issue. The Court appropriately described it as a matter of statutory construction at [77]. But in the same paragraph the Court put that issue in terms of whether the issue is “part of the statement of the general rule” or “is an answer by way of an exception”. The High Court cases show that that issue is usually a key consideration, but it is best understood as a factor guiding ascertainment of the relevant intent. That leads to the second and critical error. As we have sought to explain above at [114]-[115], the first and second factors are relevant and important when, as in the usual case, the court is considering provisions in the one statute or, at the least, enacted by the same legislature. They will in general be inapposite when the provisions in question are enacted by different legislatures. And they are certainly inapposite here. The Court of Appeal referred to this issue at [83]. But it did not follow the logic of where it leads.

162. Undoubtedly s 211 can be characterised as drafted so as to operate by way of exception and as a matter of exculpation. But how else could it have been drafted when the federal Parliament overtly intended that s 211 cut across and override any contrary legislative provision in any legislative scheme in any jurisdiction of the Commonwealth? The Parliament was not crafting an exception to some particular restriction. It was providing for an immunity from any conflicting law, whether in place when the NT Act was enacted or that might come into force in the future. No issue of reconciling it with some particular statement of a general rule arises.

163. Senior counsel for the prosecutor in this case was asked how s 211 could possibly have been drafted other than as an exception cutting across all laws, and he said “of course it couldn’t be otherwise”. When asked why, then, the Court of Appeal had not erred in giving such significance to the factor, he responded that “that’s because the question is how can the Commonwealth Parliament provide otherwise, the answer is very easily by saying so expressly”. The prosecutor’s only answer to the point, thus, was to say that the federal Parliament could have addressed the issue of onus expressly. But that was not to explain or justify the error; it was to make a different point. The reasoning of the Court of Appeal was not about whether or not the Commonwealth could have addressed the issue expressly. And to say that it could have done so was only to identify the need to engage in a process of statutory construction in order to ascertain the Parliament’s intent. It did not provide an answer to the question of the Parliament’s intention.

164. In our view these errors are at the heart of the Court of Appeal’s reasons. The errors are fundamental. In short, the Court has asked and answered the wrong question.

165. In our view the Court makes a related error earlier in its reasons. The Court said this:

[78] As mentioned, s 56 of the Criminal Procedure Act is a statutory reflection of this exception to the general rule in Woolmington. But it leaves the issue of whether a particular matter or provision falls within the exception to be determined by reference to the (common law) principles of statutory construction to which we have referred.

[79] When considering the application of s 211(2) of the Native Title Act, the Court exercises federal jurisdiction. However, by reason of ss 79 and 80 of the Judiciary Act 1903 (Cth), and in the absence of any Commonwealth law that provides otherwise, both s 56 of the Criminal Procedure Act and the common law principles of statutory construction apply in determining where the persuasive onus lies.

166. Section 56 of the Criminal Procedure Act 1921 (SA) addresses where there is an “exception, exemption, proviso, excuse, or qualification” (it is quoted by the Court of Appeal at [48]). To refer to the provision is thus to assume, again, that the notion of being an exception or exemption to a rule is relevant to analysis. A further error is that, as we have sought to explain above at [117]-[119] (and as the prosecutor in this case accepted), no State provision is relevant to construing s 211 of the NT Act, and that is not altered by ss 79 and 80 of the Judiciary Act.

167. In our view the Court of Appeal made further errors, although we recognise that these matters are more contestable issues of statutory construction. First, at [81] the Court noted that s 211 was not expressly directed to criminal proceedings, and said that it “might be invoked in civil proceedings, for example, seeking declaratory relief as to its operation in a particular regulatory setting”. It is not clear if this observation played any real role in the Court’s conclusion. The Court was of course quite right to observe that it could apply in civil regulatory proceedings. But if the Court did attribute any significance to the fact that it might arise in proceedings seeking declaratory relief – perhaps, by implication, brought by native title holders – that suggestion appears to involve the tail wagging the dog. The obvious and likely application of s 211 is in criminal, or perhaps more rarely civil enforcement, proceedings brought against those taking fish or the like.

168. The Court also said this with respect to the issue of difficulties of proof and which side was likely to be better placed to discharge the onus:

[90] … One would expect a defendant seeking to rely upon s 211(2) to have knowledge of the existence and content of the relevant native title right relied upon, as well as whether it was being exercised for the purpose of satisfying personal, domestic or non-commercial communal needs on the occasion in question. Possessed with such knowledge, proof of these matters seems more naturally imposed upon a defendant. It will often be no easy task for the prosecution to disprove the existence of any relevant native title right, or the existence of the prescribed purpose on the part of the defendant.

[91] It may nonetheless be accepted that proof of the existence of a relevant native title right may involve a difficult forensic task, extending to the obtaining of expert evidence. It may thus involve a significant cost imposition upon a defendant. Whilst the fairness of imposing this burden upon a defendant is not irrelevant, a consideration of the parties' relative capacities to prove the matters required by s 211(2) favours its construction as an exception to be proved by the defendant.

169. For the reasons given above at [142]-[151], we respectfully disagree with this conclusion.

170. We also respectfully disagree with the Court’s view that purposive considerations did not weigh in favour of a conclusion contrary to the one it reached (see at [92]).

171. If the issue were simply one of disagreeing with the relative weighing up of text, context and purpose then it is doubtful that we would have concluded that the Court of Appeal’s decision was plainly wrong. However, as we have sought to show, our difference of view goes deeper than that.

172. The decision in Dietman can be described as closely reasoned. But it does not rest upon a principle carefully worked out in a series of cases. As we have summarised above at [122]-[126], there was no previous appellate authority determining the point, the South Australian Full Supreme Court had once assumed the contrary, and there was a previous decision of the Tasmanian Supreme Court (albeit perhaps without argument) and the District Court of this State to the contrary.

173. There was obviously no difference between the reasons of the judges, as Dietman is a joint decision of the court.

174. The third John indicium is that the earlier decision achieved no useful result but instead led to considerable inconvenience. For reasons we have sought to explain, we consider that the conclusion reached by the Court of Appeal will undermine the practical efficacy and significance of s 211 to a significant extent. That weighs heavily against following the Court’s decision.

175. As to the fourth John factor, it is relevant that the Court’s decision is only a year old, and it is difficult to see how there could have been significant detrimental reliance on it in the meantime (other than reliance detrimental to Indigenous defendants).

176. Our respect for the eminent members of the South Australian Court of Appeal who determined Dietman is unfeigned. However, in our respectful view, the Court’s decision manifests error in important ways. Weighing up the relevant factors, and taking account of the nature of the errors, we have reached the conclusion that there are compelling reasons militating against following it. The decision can and should be characterised as plainly wrong. We therefore decline to follow it.

Conclusion on issue 3

177. Question 5(a) asks about the onus and standard of proof borne by a defendant who claims native title rights and interests. The question is asked generically, but plainly is meant to address which side bears the legal onus of proof when a party seeks to rely on s 211 of the NT Act in litigation brought against them. We will answer it in those terms. As noted above, Mr Nye did not dispute that a defendant bore an evidential burden in relation to the section. As there was no dispute on that point and it was not the subject of argument, we do not consider it necessary or appropriate to address that point in our answer.

178. Question 5(b) asks whether the onus and standard of proof change “when the defendant did not themselves take the fish from the sea but rather received the fish from another person who claims that they took the fish from the sea in exercise of native title rights and interests”. There is no basis for suggesting here that the legal burden may shift because of the particular way in which s 211 is said to apply in the circumstances of the case brought against a defendant. Neither party argued to the contrary. In the circumstances it is not necessary to answer the question in terms, and to do so might be to elevate a misconception.

179. Our answer to question 5 is thus this:

When a party seeks to rely on s 211 of the NT Act in litigation against them, the legal burden of proof falls on the other party to negative the application of the provision, doing so on the standard of proof that otherwise applies to that party in making out their claim.

It is otherwise unnecessary and inappropriate to answer the question.

Answers to questions

180. For the reasons set out above, our answers to the questions asked of us are as follows:

Questions 1-3:

Section 211(2)(a) of the Native Title Act 1993 (Cth) (NT Act) refers to needs of the person in question, their household or their community which are capable of being satisfied directly by undertaking the activities in question, being needs of sustenance or consumption. It does not extend to indirect satisfaction of broader needs by using the product of the activities for sale or trade outside the household or community.

It is otherwise unnecessary and inappropriate to answer the questions.

Question 4:

The activity of receiving fish taken from the sea by others and assembling that fish for the purpose of sale to people outside the relevant native title community is not capable of constituting “fishing”, “gathering” or “a cultural or spiritual activity” within the meaning of s 211(3) of the NT Act.

Question 5:

When a party seeks to rely on s 211 of the NT Act in litigation against them, the legal burden of proof falls on the other party to negative the application of the provision, doing so on the standard of proof that otherwise applies to that party in making out their claim.

It is otherwise unnecessary and inappropriate to answer the question.

**********

Amendments

16 July 2024 - Statutory provision references corrected.

Decision last updated: 16 July 2024