Moriarty v Nye

Case [2024] NSWCCA 116


Court of Criminal Appeal


Supreme Court


New South Wales

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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…

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Moriarty v Nye [2024] NSWCCA 116
Case
[2024] NSWCCA 116
Decision Date

CaseChat Overview and Summary

The case of Moriarty v Nye involved the appellant, a native title holder, charged under state law with possessing abalone without a licence or permit. The legal dispute centred on the interpretation of section 211 of the Native Title Act 1993 (Cth), which grants immunity from certain restrictive laws to native title holders carrying on activities for personal, domestic, or non-commercial communal needs, or for fishing, gathering, or cultural or spiritual purposes. The appellant argued that his activities were protected under this section, while the respondent contended that the appellant had not met the burden of proving his immunity.

The court had to determine the scope of the immunity provided by section 211, particularly the meaning of "carrying on activity" for personal, domestic, or non-commercial communal needs, and what constitutes fishing, gathering, or a cultural or spiritual activity. Additionally, the court needed to address the burden and standard of proof required for a native title holder invoking section 211 in criminal proceedings. The court was required to consider the legislative intent behind the immunity, ensuring it was capable of practical and ready exercise by native title holders, and whether the burden of proof should lie with the person seeking to make out a claim against a native title holder.

The Court of Appeal examined the decision of the South Australian Court of Appeal and assessed whether it was plainly wrong. The court recognised the importance of adhering to the principles of stare decisis and the need to depart from precedents only when necessary. In this case, the Court of Appeal determined that the South Australian Court of Appeal's decision was not plainly wrong and upheld the interpretation of section 211 as set out in that decision. The court emphasised the need for a legislative intent that allows for practical and ready exercise of the immunity by native title holders, placing the legal burden on the person seeking to make out a claim against a native title holder to prove that the immunity does not apply.

The final orders of the Court of Appeal affirmed the decision of the South Australian Court of Appeal, dismissing the appeal and upholding the conviction of the appellant. The court held that the appellant had not met the burden of proving his immunity under section 211, and therefore, his activities were not protected from the application of the state law in question. The decision reinforces the importance of legislative intent in granting immunity to native title holders and the need for a clear understanding of the scope of activities protected under section 211 of the Native Title Act 1993 (Cth).

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