Munday v Barrett
[1992] TASSC 124
•28 October 1992
Serial No B47/1992
List “B”
CITATION: Munday v Barrett [1992] TASSC124; B47/1992
PARTIES: MUNDAY, Michael Francis
v
BARRETT, Robert Edwin
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NOS: LCA 32/1992
DELIVERED: 28 October 1992
HEARING DATES: 5 October 1992
JUDGMENT OF: Underwood J
CATCHWORDS:
Justices—Appeals from and control of Justices—Tasmania—Sea Fisheries Act—Meaning of "State fishing waters"—Includes Victoria Dock, Hobart—Sea Fisheries penalty reg44(5A) and 44(6) intra vires—Motion to review dismissed.
REPRESENTATION:
Counsel:
Applicant: In Person
Respondent: C Geason
Solicitors:
Applicant: In Person
Respondent: Director of Public Prosecutions
Judgment category classification:
Judgment ID Number: B47/1992
Number of paragraphs: 21
Serial No B47/1992
List "B"
File No LCA 32/1992
MUNDAY v BARRETT
REASONS FOR JUDGMENT UNDERWOOD J
28 October 1992
In a court of petty sessions the applicant was convicted of:
1having in his possession two undersize crayfish contrary to the Sea Fisheries Regulations, reg31(1)(d); and
2having in his possession thirty–two abalone that had been detached from their shells contrary to reg44(1)(s).
On the first conviction there was a fine of $50, and on the second there was a fine of $400 and a special penalty of $10 per fish.
The applicant seeks a review of the conviction of a breach of reg44(1)(s) on the ground that:
"The learned magistrate erred in law in finding the waters of Victoria Dock in Hobart Tasmania to be State fishing waters for the purposes of Regulation 44(1)(s) of the Sea Fisheries Regulations 1962."
The motion also seeks a review of all the penalties on the ground that:
"The learned magistrate erred in law in imposing penalties for offences relating to two crayfish and 32 abalone by way of the powers contained within Regulation 44(6) and Regulation 44(5A) of the Sea Fisheries Regulations 1962."
About 5 pm on 24 January 1991, two police officers attached to the Marine Division saw a boat being tied up in Victoria Dock. The applicant was at the helm. The officers boarded the boat and found the crayfish and abalone. The applicant admitted that he was the master of the vessel. Also on board were two deck hands. In the course of giving evidence the applicant told the learned magistrate that they had been on a fishing trip.
With respect to the appeal against conviction it is necessary to trace a rather tortuous legislative path. Regulation 44(1)(s) provides:
"No person shall have in his possession, or under his control, on any boat in State fishing waters an abalone that has been detached from its shell."
1The Sea Fisheries Act, s3A provides that a reference in the Act to "State fishing waters" is a reference to all waters that are within the limits of the State other than inland waters.
2Section 3B(1) defines inland waters for the purposes of the Act. Relevantly, it and Part II of Schedule 3 describe as inland waters (inter alia) that part of the river Derwent to the landward side of a parallel of latitude of the eastern extremity of Dogshear Point. [It was common ground that the docks are well to seaward of that latitude].
3The Coastal and Other Waters (Application of State Laws) Act 1982, s3(1) provides that the provisions of the laws of Tasmania have effect in, and in relation to the coastal waters of Tasmania and apply to any act done at any place within those waters.
4The Coastal and Other Waters (Application of State Laws) Act, s2 defines coastal waters to mean (inter alia) "the part or parts of the territorial sea of Australia that is or are within the adjacent area in respect of Tasmania, other than any part referred to in s4(2) of the Coastal Waters (State Powers) Act 1980 of the Commonwealth."
5The same section in the former Act defines "adjacent area of Tasmania" to mean the adjacent area of Tasmania ascertained in accordance with the Petroleum (Submerged Lands) Act 1967 (Cth), s5A.
6A combination of the Petroleum (Submerged Lands) Act 1967 (Cth) s5A(1) and (2) and Schedule 2 of that Act define the area in which the Victoria Dock is located as being the adjacent area of Tasmania within the meaning of Coastal and Other Waters (Application of State Laws) Act 1982, s2.
The learned magistrate was entitled to take judicial notice of the location of Victoria Dock in Hobart and the fact that it is part of the river Derwent. In Le Cocq v McErvale [1908] VLR 69 A'Beckett J said at 72:
"I think that in this matter the decisions which have been referred to establish what apart from them I should have thought to be the law – namely, that the magistrate is at liberty to act upon his own knowledge, that it is his duty to inform himself of the limits of his jurisdiction, but that the principle is that he can act on his own knowledge of the place at which the offence is alleged to have occurred in deciding whether he has jurisdiction to deal with it or not."
See also Blatchford v Dempsey [1956] SASR 285; Grasso v Love [1980] VR 163. Apart from judicial notice, a map was tendered in evidence showing the location of Victoria Dock and the position of the bridge over the link between it and the river Derwent.
The applicant also submitted (correctly) that the Marine Act 1976 gave the Marine Board of Hobart jurisdiction over Victoria Dock to the extent provided for by that Act. However, the provisions of that Act do not affect the efficacy of the provisions of the Fisheries Act nor the meaning of "State fishing waters" used in that Act. The motion to review conviction fails.
I turn to the other ground in the motion to review. The relevant penalty provisions in the Sea Fisheries Regulations are:
(1) with respect to the crayfish:
"44(4) a person who is guilty of an offence against these regulations with respect to any crayfish or any portion of a crayfish is liable to a penalty –
(a) for a first offence, of not less than $40 or more than $500 in respect of that offence;
(b) for a second offence, of not less than $200 or more than $1,000 in respect of that offence; or
(c) for a third or subsequent offence, of not less than $500 or more than $2,000 in respect of that offence.
44(4A) where a person is found guilty of an offence against these regulations with respect to any crayfish or any portion of a crayfish, there may be imposed in addition to any penalty under sub–regulation (4) a special penalty of $20 (no more or no less) in respect of each of those crayfish or each of those portions of those crayfish."
(2) with respect to the abalone:
"44(5A) Where a person is found guilty of an offence against these regulations with respect to any abalone or any portion of an abalone, there may be imposed in addition to any other penalty to which he is liable in respect of that offence a special penalty of $10 (no more or no less) in respect of each of those abalone or each of those portions of abalone.
44(5B) A person who is guilty of an offence against these regulations with respect to any abalone or any portion of an abalone, or an offence against Regulation 17AA or Regulation 44(1)(dc), (ra), (s), (ta), (tb), or (tc), is liable to a penalty –
(a) for a first offence, of not less than $40 or more than $500 in respect of that offence;
(b) for a second offence, of not less than $200 or more than $1,000 in respect of that offence; or
(c) for a third or subsequent offence, of not less than $500 or more than $2,000 in respect of that offence."
In addition to the foregoing penalty provisions, the regulations provide a general penalty in the following terms:
"44(6) A person who is guilty of an offence against these regulations with respect to any matter in relation to which no penalty is prescribed elsewhere in these regulations is liable to a penalty of not less than $40 or more than $1,000."
The learned magistrate ruled that reg44(4) and (5B) were ultra vires the Act. Accordingly, he imposed no special penalty with respect to the unlawful possession of crayfish because reg44(4A) is expressed to operate only "in addition to any other penalty under sub–regulation (4)." The learned magistrate’s order of a fine with respect to the unlawful possession of crayfish relied for its authority upon the general reg44(6).
With respect to the possession of the abalone not in their shells, the learned magistrate relied upon the same source of power for the order of a fine of $400 and, as reg44(5A) has effect "where a person is found guilty of an offence against these regulations with respect to any abalone ...", he ordered in addition, pursuant to the power contained in that sub–regulation, a special penalty of $10 per abalone.
The purported source of power for each of the regulations set out above is the Sea Fisheries Act 1959, s9(1)(y). That section provides that the Governor may make regulations:
"Providing for a contravention of, or a failure to comply with, a provision of the regulations to be an offence and –
(i) providing in respect of any such offence for the imposition of –
(A) a term of imprisonment for a period not exceeding two years; or
(B)a penalty not exceeding twenty penalty units and, where the offence is of a continuing nature, a daily penalty not exceeding one penalty unit for each day during which the offence continues;
(ii)prescribing a minimum penalty for any such offence and, subject to sub–paragraph (i), prescribing different maximum penalties for successive offences;
(iii)providing in respect of any such offence for the imposition of a special penalty of an amount to be determined by the court, or of an amount being a fixed amount no more and no less than the amount specified in the regulations, in relation to each fish, or fish of any kind or species, taken, bought, sold, offered, or exposed for sale in or in connection with the commission of the offence, or in the possession of any person committing the offence, or in relation to each net, engine, or other article of any kind used or in the possession of a person committing the offence; and
(iv)providing that any special penalty referred to in sub–paragraph (iii) may be imposed for an offence in addition to any other penalty that may be imposed for the offence."
The learned magistrate ruled reg44(4) and (5A) ultra vires on the basis that each regulation prescribed not only "different maximum penalties" as referred to in the Act, s9(1)(y)(ii) but also different minimum penalties for successive offences. The learned magistrate held that s9(1)(y) only empowered the prescription of a single minimum penalty and not different minimum penalties for successive offences and consequently, those two regulations he found to be ultra vires.
Upon the hearing of the motion to review counsel for the Crown expressly elected not to challenge the correctness of the magistrate's decision in this respect and accordingly that decision forms no part of the determination of this motion to review.
In summary, the applicant argued that:
1 The learned magistrate was correct in ruling that reg44(4) and (5B) were ultra vires.
2Regulation 44(6) has no application because it only operates in cases where "no penalty is prescribed elsewhere in these regulations" and with respect to the two matters of conviction, penalties are prescribed elsewhere, albeit such provisions are ultra vires the regulation making power.
3Assuming that argument to be correct, no special penalty can be imposed with respect to the abalone as reg44(5A) only operates "in addition to any other penalty to which he is liable".
4 Further or alternatively, in any event reg44(6) is also ultra vires the Act.
The applicant submitted that reg44(6) was ultra vires because it imposed both a minimum and a maximum penalty. The applicant’s argument was that, although s9(1)(y)(ii) empowered the fixing of minimum penalties, it only empowered regulations which fixed "different maximum penalties for successive offences" and did not authorise a regulation in terms of reg44(6), which fixed a single maximum penalty. I reject this submission. Two regulation making powers are conferred in s9(1)(y)(i)(B) namely, to impose a penalty not exceeding twenty penalty units and, in the circumstances prescribed, to impose a daily penalty not exceeding one penalty unit per day. There is nothing in the language of the enactment to warrant a construction that both powers must be exercised together. The same observation can be made about s9(1)(y)(ii). In that instance, the two regulation making powers are to prescribe a minimum penalty for a contravention or failure to comply with a provision of the regulations and to prescribe different maximum penalties for successive offences. Again, there is no warrant for the construction that both powers must be exercised together or not at all.
Accordingly, the imposition of a minimum penalty is authorised by s9(1)(y)(ii) and the imposition of the maximum penalty authorised by s9(1)(y)(i)(B).
In view of the concession on behalf of the Crown that the magistrate correctly ruled that reg44(4) and (5B) are ultra vires, I shall determine this appeal upon that basis without examining the issue for myself. The applicant submitted that reg44(6) was not a source of power for imposing the fines, for that regulation only operated in circumstances where "no penalty is prescribed elsewhere in the regulations". He argued that penalties were prescribed elsewhere namely, by the two regulations the learned magistrate declared ultra vires. I reject this argument. The expression "prescribed elsewhere in these regulations" is clearly intended to mean prescribed elsewhere in the lawful exercise of the power conferred by the authorising enactment. It follows that as reg44(6) was the lawful authority for the imposition of fines, reg44(5A) authorised the imposition of the special penalty with respect to the abalone.
I hold that the learned magistrate was empowered to order that the appellant be fined $50 for a breach of reg31(1)(d) and that he be fined $400 and pay a special penalty of $320 for a breach of reg44(1)(s). The motion to review will be dismissed.
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