Pennings v Vlak
[2005] WASC 107
•1 JUNE 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PENNINGS -v- VLAK [2005] WASC 107
CORAM: JENKINS J
HEARD: 18 MARCH 2005
DELIVERED : 1 JUNE 2005
FILE NO/S: SJA 1113 of 2004
Consolidated by Orders dated 1 December 2004
MATTER :Justices Act 1902
BETWEEN: PETER ADRIAN PENNINGS
Appellant
AND
KEVIN IVAN VLAK
Respondent
FILE NO/S :SJA 1114 of 2004
BETWEEN :PETER ADRIAN JOSEPH PENNINGS
Appellant
AND
KARINA ANNE VLAK
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram :MR S P SHARRATT SM
File No :KA 4493 of 2003, KA 1096 of 2004, KA 1097 of 2004
Result :Complaints Dismissed and Costs Awarded
Catchwords:
Criminal law - Offences - Taking protected flora without a licence - Whether dead trees and the timber therefrom are "protected flora" under the Wildlife Conservation Act 1950 (WA)
Legislation:
Conservation and Land Management Act 1984 (WA), s 103(1)
Fauna Conservation Act 1975 (WA)
Forests Act 1919 (WA)
Forest Products Act 2000 (WA)
Interpretation Act 1984 (WA), s 19
Land Act 1933 (WA)
Native Flora Protection Act 1935-1938 (WA), s 6, s 8(1)
Parks and Reserves Act 1895, s 5
Wildlife Conservation Act 1950 (WA), s 6, s 23B(1)
Wildlife Conservation Act Amendment Act 1976 (WA)
Result:
Appeal dismissed
Category: A
Representation:
SJA 1113 of 2004
Consolidated by Orders dated 1 December 2004
Counsel:
Appellant: Mr N C Monahan
Respondent: Ms C A McKenzie
Solicitors:
Appellant: State Solicitor
Respondent: McKenzie Lalor
SJA 1114 of 2004
Counsel:
Appellant: Mr N C Monahan
Respondent: Ms C A McKenzie
Solicitors:
Appellant: State Solicitor
Respondent: McKenzie Lalor
Case(s) referred to in judgment(s):
Amalgamated Society of Engineers v Adelaide Steamship Company Ltd (1920) 28 CLR 129
Attorney General (Commonwealth) v The Queen (1957) 95 CLR 529
Beckwith v The Queen (1976) 135 CLR 569
Brott v The Queen (1992) 173 CLR 426
Lavars v Lambert, unreported; SCt of WA (Anderson J); Library No 950042; 7 February 1995
Smith v The Queen (1992) 7 WAR 52
Case(s) also cited:
FAI General Insurance Co Ltd v Maracorp Financial Services Ltd [1994] 1 VR 455
John While & Sons Pty Ltd v Changleng (1985) 2 NSWLR 163
Russell v Pennings (2001) 113 LGERA 216
Yanner v Eaton (1999) 201 CLR 351
JENKINS J:
The Decisions under Appeal
This is a consolidated appeal from three decisions of a Magistrate sitting in the then Court of Petty Sessions at Kalgoorlie on 19 October 2004. On complaints No 4493 of 2003 and 1097 of 2004 the Magistrate dismissed two charges against Karina Anne Vlak alleging that she breached the Wildlife Conservation Act 1950 (WA) ("the WC Act") s 23B(1) by taking protected flora without a licence. On complaint No 1096 of 2004, the Magistrate dismissed a charge against Kevin Ivan Vlak alleging that he breached the WC Act, s 23B(1) by taking protected flora without a licence. The appellant, who was the complainant in respect to each of these complaints, has appealed against each dismissal.
The grounds of appeal allege that the Magistrate erred in:
"(a)finding that the definition of "flora" in the WC Act did not include dead trees; and
(b)failing to find that the complaints had been proved beyond a reasonable doubt."
The only issue on appeal is whether the learned Magistrate erred, in respect to each complaint, in finding that dead trees and timber taken from them were not "protected flora" for the purpose of the WC Act, s 6 and 23B(1).
Details of Charges and the Proceedings
Complaint No 4493 of 2003 alleged that:
"On the 25th day of November 2002 north of the Kalgoorlie‑Perth railway line and north‑west of Coolgardie, KARINA ANNE VLAK wilfully took protected flora, namely Eucalypt species, on Crown land when that taking was not authorised by and carried out in accordance with the terms and conditions of a licence issued to her under section 23C of the Wildlife Conservation Act 1950; contrary to sections 23B(1) and 26 of the Act."
The other two complaints were similarly worded and identical to each other. The differences between them and complaint No 4493 being that the offences were alleged to have occurred on 25 June 2003 at the Ryans Find Road and Mt Walton Road intersection approximately 90 kilometres west of Coolgardie and the Eucalypt species the subject of the charges were identified as being Eucalyptus salmonophloia and Eucalyptus sheathiana.
The three complaints were heard together with other matters that are not the subject of this appeal. The respondents pleaded not guilty to each complaint. On 18 August 2004 a trial ensued. On 19 October 2004 the learned Magistrate delivered oral reasons for his decision, at the conclusion of which the complaints against both respondents were dismissed.
Factual Background
At the commencement of the trial the respondents admitted that the relevant events had occurred on unallocated Crown land. They also conceded that on the dates specified in the complaints they took timber which had at "one stage" been of the Eucalypt species and that the Eucalypt species is part of the class of Spermatophyta. By a declaration published on page 3855 of the Government Gazette on 9 October 1987, Spermatophyta was declared to be a class of flora which is "protected flora" for the purposes of the WC Act.
The Magistrate found that on 25 November 2002 and 25 June 2003 Karina Vlak loaded firewood logs, which had already been cut and debarked, onto Kevin Vlak's truck. He found that loading these logs was a wilful act which constituted taking within the meaning of the WC Act, s 6. He found that Kevin Vlak admitted to cutting down fire damaged trees with a chainsaw and that this was wilfully taking for the purposes of the WC Act. He found that the trees that were taken were three different sorts of gums that are native to this State and are flowering Eucalypts declared to be protected flora and flora for the purposes of the WC Act.
However, the learned Magistrate then went on to consider whether because the timber at the time of its taking was dead it was not "flora" within the meaning of the WC Act. The appellant conceded that the relevant trees were dead and that the relevant firewood came from dead trees.
In doing so, the learned Magistrate considered the definition of "fauna" in the WC Act which includes the eggs, larvae, semen, carcass, skin, plumage or fur of an animal. He referred to the judgment of Anderson J in Lavars v Lambert, unreported; SCt of WA (Anderson J); Library No 950042; 7 February 1995, wherein his Honour said that fauna is widely defined in the WC Act to include things both living and dead and parts or remnants of things.
The learned Magistrate noted that whilst the definition of "flora" in the WC Act included seeds and spores, it did not include any equivalent of the words "carcass or skin". He noted that the words "living or dead" could have been simply inserted after the word "plant" if that was what the framers of the legislation had wanted.
The learned Magistrate then referred to the dictionary definitions of the word "plant" and noted that they generally included the word "living".
He went on to consider corresponding definitions of "flora" and related terms in the Conservation and Land Management Act 1984 (WA) ("the CALM Act") and the Forest Products Act 2000 (WA) ("the FP Act"). He noted that in the CALM Act "flora" is defined as having the same meaning as in the WC Act but that the CALM Act has separate definitions for "forest produce", "firewood", "timber" and "tree" which leave little doubt that for the purposes of an offence under the CALM Act, s 103 of unlawfully taking forest produce the taking of felled, dead timber, unless otherwise authorised by law, would be an offence.
The learned Magistrate also expressed concern about giving "flora" the wide interpretation pressed by the appellant as in his view it would mean that persons lawfully taking firewood for non‑commercial purposes pursuant to the CALM Act would nonetheless be guilty of an offence under the WC Act, s 23B if they obtained that wood on Crown land.
He consequently concluded that the timber taken by the respondents was not protected flora for the purpose of the WC Act.
The Law
An appeal from a decision of the Magistrate sitting in the Court of Petty Sessions will not be allowed unless an error has been made by the Magistrate that is such as to demonstrate that a miscarriage of justice has occurred, or, that the proceedings were fundamentally flawed: Smith v The Queen (1992) 7 WAR 527. There must be shown to be a link between any error made by the Magistrate and the Magistrate's decision.
The appellant submits that the learned Magistrate erred in concluding that the dead trees and the timber taken from them taken by the respondents were not flora. None of the parties have been able to locate any authority on this issue, either from this State or elsewhere. Thus the issue is one of statutory construction with whatever aid may be obtained from the ordinary definitions of relevant words. I was referred to Lavars' case but that case construed the definition of "fauna" in the WC Act and is of little direct assistance in construing the definition of "flora" in the same Act.
The relevant statutory provisions in the WC Act include s 23B which states:
"(1)A person shall not on Crown land wilfully take any protected flora unless the taking of the protected flora is authorised by, and carried out in accordance with the terms and conditions of, a licence issued to him under section 23C.
(2)In any proceedings for an offence against subsection (1) it is a defence for the person charged to prove that the taking occurred as an unavoidable incident or consequence in the performance of any right, power or authority conferred upon, or in the discharge of any duty or obligation imposed upon, the person by or under any Act or agreement to which the State is a party and which is ratified or approved by an Act or notwithstanding the fact that the performance of that right, power or authority, or the discharge of the duty or obligation, was exercised in a reasonable manner."
It was not in issue that the respondents did not have a licence issued to them under s 23C at the time of the commission of these alleged offences.
"Flora" and "protected flora" are defined terms in the WC Act, s 6. The definitions are as follows:
"Flora' means any plant (including any wildflower, palm, shrub, tree, fern, creeper or vine) which is –
(a)native to the State; or
(b) declared to be flora pursuant to subsection (4),
and includes any part of flora and all seeds and spores thereof;
…
'Protected flora' means, any flora for the time being declared to be protected flora for the purposes of this Act;"
As I have already indicated it was conceded by the respondents that the Eucalypt timber taken by them, when alive, would have been part of the class of plants declared to be protected flora for the purposes of the WC Act.
I will refer to various provisions from other statutes when outlining the parties' submissions.
As "protected flora" is defined to mean "any flora" and "flora" is defined to mean "any plant". The issue on appeal is the definition of "plant", a term which is not defined in the WC Act. It was not suggested by either party that "plant" is a technical word. Thus, in the absence of an intention within the WC Act to depart from the accepted meaning of it, it should be given its ordinary and current meaning. It is acceptable to have regard to dictionary definitions in order to determine the ordinary meaning of a word.
The second definition of "plant" in the Oxford English dictionary appears to be the most relevant. It defines plant to mean "a member of the lower of the two series of organised living beings, i.e. of the vegetable kingdom; a vegetable generally distinguished from an animal by the absence of locomotion and of special organs of sensation and digestion, and by the power of feeding wholly upon inorganic substances". The dictionary says that the word is often popularly restricted to the smaller herbaceous plants to the exclusion of trees and shrubs. However, that is not the case in respect to the WC Act as the statutory definition of "flora" specifically includes trees.
In the reasons of the Magistrate, he referred to the definition in the Webster's On‑Line Dictionary being "a living organism lacking the power of locomotion". The learned Magistrate thought that it was relevant the dictionary definitions of "plant" generally included the words "living".
It is also relevant to have regard to the history of the relevant provisions in the WC Act. The first operative Western Australian legislation which protected flora was the Native Flora Protection Act 1935‑1938 (WA) ("the NFP Act"). The NFP Act, s 8(1) created an offence of destroying or mutilating so as to eventually destroy any native plant mentioned in the schedule to the Act. The schedule contained 27 species and there was power for the governor to notify other species. "Native plant" was defined to mean any tree, shrub, fern, creeper, vine, palm or plant indigenous to Western Australia and not growing under cultivation. The offence in s 8(1) read with the definition of "native plant" implied that the relevant native plant would be alive at the beginning of the offending behaviour but may die or, in the terms of the statute, be destroyed in the course of the offending conduct. That offence could be committed on Crown land, State forest, land reserved for a public purpose, land belong to or vested in any statutory authority, a road or private land where the offender did not have the permission of the owner.
The NFP Act, s 6 also created an offence of wilfully picking any protected wildflower or protected native plant. The offence could only be committed in respect to wildflowers or native plants specified in a proclamation during the protected period mentioned in the proclamation. "Pick" was defined in relation to a protected wildflower or a protected native plant to mean, to gather, pluck, cut, pull up, destroy, take, dig up, remove, or injure the flower or plant or any part thereof. It seems to me that this provision was also to cover the picking of living wildflowers or protected native plants.
Meanwhile, since the proclamation of the Forests Act 1919 (WA) ("the Forests Act") it had been an offence to fell, cut, injure, destroy, obtain or remove in or from any State forest, timber reserve or other Crown land any forest produce, without lawful authority. The Forests Act defined "Crown land" to mean land vested in the Crown and not dedicated to any public purpose. It included pastoral leases. "Forest produce" was defined relevantly, to include trees, timber, firewood, chips, sawdust, plants and roots. "Firewood" was defined by the Act to include parts of trees of all species made up into bundles, billets, or loads or cut up in the manner it is usual to cut wood for burning, and refuse wood generally. Thus the Forests Act provided that it was an offence to take timber from dead trees from a State forest, timber reserve or other Crown land.
In 1975 the Fauna Conservation Act 1975 (WA) which then only provided for fauna conservation was retitled the Wildlife Conservation Act 1950‑1975. A definition of "indigenous flora" was inserted into the Wildlife Conservation Act 1950‑1975. It defined the term to mean any wildflower, palm, shrub, tree, fern, creeper, vine or other plant which is native to the State, is not growing under cultivation and is not a noxious weed; and included any part of any indigenous flora and the seeds thereof. However, no new offences for the protection of indigenous flora were then inserted into the Wildlife Conservation Act 1950‑1975. It was the Wildlife Conservation Act Amendment Act 1976 (WA) ("WC Amendment Act 1976") which contained the principal provisions which amalgamated flora and fauna protection. It also repealed the NFP Act. Despite the date, the WC Amendment Act 1976 did not come into operation until 1980. The WC Amendment Act inserted a definition of "flora" into the Wildlife Conservation Act 1950‑1975 Act. That is the definition that I have previously referred to. It amalgamated the definitions of wildflower and native plant contained in the NFP Act but it did not significantly change the definitions which had previously separately appeared in the NFP Act. The WC Amendment Act deleted the definition of "indigenous flora" and inserted the definition of "protected flora" to which I have previously referred. It also inserted s 23B into the WC Act. That section has not been amended since. The WC Amendment Act added a definition of "to take" which term included to gather, pluck, cut, pull up, destroy, dig up, remove or injure the flora or to cause or permit the same to be done by any means. It can be seen that the definition of "to take" is substantially the same as to "pick" which was contained in the NFP Act 1935 but the subject is "flora" rather than the "flower or plant".
The WC Act also contained the definition of "fauna" which included the carcass, skin, plumage or fur of an animal. This was substantially the same definition which had been contained in the earlier FC Act.
In 1980 the Forests Act was extant. It was later repealed by the CALM Act. As I have already noted the CALM Act, s 103(1) makes it an offence to, without lawful authority, fell, cut, injure, destroy, obtain or remove any forest produce in, on, or from any land to which the section applies. "Forest produce" is defined to include trees, parts of trees, timber, sawdust, chips, and firewood. Thus, the definition substantially picks up the relevant definition from the Forests Act. Land to which the section applies is land vested in the Crown and not reserved or contracted to be in fee simple. It includes pastoral leases. It is also defined to include State forest, timber reserves, national parks, conservation parks, nature reserves, marine parks, marine nature reserves and any other land reserved under the Land Act 1933 if it is vested in the authority and commission established by the CALM Act.
The appellant makes the point that the Forests Act did not make and the CALM Act does not make provision for the protection of flora on Crown land that is reserved and not vested in the authority or commission established by the CALM Act. Although as the land from which the respondents took the subject timber was not such reserved land, if the respondents had been charged with an offence under the CALM Act, s 103 it is likely that they would have been convicted of it.
Appellant's Submissions
The appellant submitted that the history of the legislation shows that "flora" in the WC Act was intended to have a broad meaning and not to be limited to living plants. For the reasons given earlier I do not agree. The fact that the offence and definition are derived from the NFP Act tends to suggest that it relates to living plants.
It is submitted that the WC Act, s 23B(2) provides a defence in circumstances where the defendant dealt with dead plants pursuant to legislation such as the Forests Act. I agree and in this respect the concern of the learned Magistrate that a broad definition of "flora" would attach liability to persons taking timber under the authority of other legislation appears to be ill founded.
It is submitted that the perceived differences between the definition of fauna and flora in the WC Act cannot be given significant weight in determining Parliament's intention as the definitions were drafted at different times for the purposes of different statutes and were not drafted as one unified piece of legislation.
It is submitted that there was no reason for the legislature to alter, in any significant way, the pre‑existing definition of "native plant" in the NFP Act when it introduced the WC Amendment Act unless it thought it was necessary to do so in order to change the scope of that definition from what it had been since 1935. It was submitted that there may well have been an assumption by the legislature that the NFP Act already applied to dead plants and so it was unnecessary to specifically say that when the WC Act was amended to include "flora". My response to this submission is that that is pure speculation. It is equally valid, but also speculative, to observe that the legislature may have left the definition untouched knowing that it did not include dead plants.
It is submitted that if "flora" includes dead plants then it would be otiose for the legislature to have specifically used the words living or dead in the definition of the term. That is true but it begs the question as to whether "flora", as defined, does include dead plants.
The appellant quoted the definitions of flora and plant from the New Shorter Oxford Dictionary and the Macquarie Dictionary. The definitions are as follows:
"flora
The plants or plant life of a given area, habitat or epoch [New Shorter Oxford]
flora
The plants of a particular region or period, listed by species [Macquarie]
plant
A living organism other than an animal, typically fixed to a substrate, able to subsist wholly on inorganic substances, and moving chiefly by growth; esp (more fully green plant) such an organism having cellulose cell walls and capable of photosynthesis by means of chlorophyll (ie excluding bacteria and fungi.). [New Shorter Oxford]
plant
Any living organism which is characterised by the capacity to synthesise food from inorganic substances and by the presence of cellulose in its cell walls, and which is incapable of voluntary motion, has limited response to stimuli, and lacks specialised sense organs and a nervous system. [Macquarie]"
It is submitted that these words are borrowed from scientific language rather than ordinary speech and that they are at the highest level of abstraction and therefore have the broadest possible scope. In particular, "flora" it is said, is ordinarily used to denote the category within which all classes of plants within the plant kingdom are classified. It is said that it is not a word which is concerned to make any distinctions in relation to the period in the life cycle of any plants which can be classified under the general heading "flora". It is submitted that "flora" and "plant" are used to specify scientific categories and that they are not concerned with individual plants and their respective life cycles but rather with broad scientific categories of kinds of organisms in relation to which the WC Act applies and to which ministerial power can be exercised from time to time.
It is submitted that although the dictionary definitions of "plant" typically refer to the word as denoting a living organism that must be understood as part of the definition concerned to allow a distinction to be made between organic and inorganic material and that a plant which has died does not cease to be a plant but is still regarded as a plant for the purposes of the distinctions drawn by the dictionary definition. It is submitted that the purpose of the WC Act is to define a broad scientific category of organisms belonging to the plant kingdom, rather than to specify specimens within that kingdom which are living as opposed to dead. In my opinion these views require "living" to be given a meaning that it does not ordinarily bear.
It is also submitted that the inclusion of dead flora within the WC Act is important in order to maintain the property regime that the State has created in respect to flora, including timber. The WC Act, s 23A states that the property in protected flora on Crown land, until lawfully taken, is, by virtue of the Act, vested in the Crown. A corresponding provision was not contained in the NFP Act.
It is submitted that this statutory vesting of property in the Crown is the foundation of the regulatory and royalty schemes enacted by the legislature. It is submitted that if the definition of "flora" excluded dead timber then s 23A did not vest property of dead timber in the Crown and this undermined the statutory regime.
It was submitted that there is no reason to assume that the legislature would not want to have the capacity to obtain royalties on dead material with a commercial value and thus would have wanted to include it within the royalty scheme.
However, I note that the Forests Act and its successors have always protected the Crown's proprietary interests in timber on Crown land. The only Crown land not included in such protection is Crown land dedicated to a public purpose. I note that in this respect the legislature has also acted. For example, in the Parks and Reserves Act 1895 (WA), s 5 a board which is responsible for the management of reserved land may grant licences for the cutting and removing of wood. Such a board, pursuant to s 8, may make by‑laws "prohibiting damage or injury to and destruction of trees, shrubs, plants and flowers on the land".
It is also submitted that difficulties of proof in relation to whether a plant is living or dead meant that it was unlikely that the legislature would intend to delineate between dead and alive plants.
It is further submitted that the search and seizure provisions of the WC Act only make sense if flora is defined to include dead flora. The WC Act, s 20(2)(b) empowers a wildlife officer who on reasonable grounds suspects that an offence against the Act has been committed or is about to be committed to, amongst other things, search a vehicle or dwelling house in which the wildlife officer, on reasonable grounds, suspects there is any flora taken and to seize the flora. It is pointed out that if the offence that is suspected of having been committed is the taking of protected flora then it is likely that the flora will be dead at the time when any search and seizure occurs. It is submitted that it could not be the intention of the legislature that a wildlife officer would not be empowered to seize such flora because it was then dead.
Similarly, the WC Act, s 23E provides that a person shall not sell any protected flora unless the sale is authorised by other provisions of the Act or it was purchased from a person lawfully entitled to sell it. The section refers to the subject of the offence being flora. The appellant points out that if the interpretation favoured by the Magistrate is correct this offence would not be committed by a person selling dead, dried flowers.
The appellant submits that a broad definition of flora is consistent with the purpose of the Act being to "provide for the conservation and protection of wildlife". That is that stringent prohibitions on dealing with dead flora conserve and protect living flora and fauna by protecting their habitats and environments.
The Respondents' Submissions
The respondents submitted that the WC Act seeks to conserve and protect wildlife, that is, living things. I do not believe that this argument is valid. The Act expressly defines fauna to include the carcass, skin, plumage or fur of dead animals as well as live animals. Although it may be a moot point as to whether or not it protects dead flora there is no issue that it seeks also to protect dead wildlife: Lavars v Lambert (supra).
The respondents relied upon the definition of animal as any "living thing" as indicating that the legislature intended that "plant" wherever it appears in the WA Act, means a living thing. The respondents' submission is that dead animals are only included in the definition of "fauna" in the Act because of the extended definition of "fauna" to include the carcass, skin, plumage or fur of animals.
The respondents submitted that the WC Act, s 23B imposes a penalty and therefore the WC Act is a penal statute. If the language of the statute is ambiguous any doubt about the meaning of a provision should be resolved in favour of the subject: Beckwith v The Queen (1976) 135 CLR 569 at 576 and Brott v The Queen (1992) 173 CLR 426 at 437 – 438. In Beckwith v The Queen (supra) Gibbs J said:
"The rule formally accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences … the rule is perhaps one of last resort."
Therefore, this principle is only to be applied if, after trying to resolve any ambiguity in the provision using the usual aids to statutory construction, there remains ambiguity. In that case the ambiguity should be resolved in favour of the respondents.
The respondents relied on the Literal Rule of statutory construction under which they say the Court should determine the ordinary and natural meaning of the statutory wording in its statutory context and apply that meaning even if the result appears inconvenient, impolitic or improbable: Amalgamated Society of Engineers v Adelaide Steamship Company Ltd (1920) 28 CLR 129 at 162.
The respondents relied upon the dictionary definitions of "plant" as including a requirement that it be a "living organism" to support the proposition that "plant" and "flora" when used in the WC Act denote living things. It is submitted that this interpretation is supported by the definition of "fauna" in the Act which expressly includes the carcass, skin, plumage or fur of an animal. In contrast, the respondents say that "flora" does not expressly include dead plants. Thus the respondents rely upon the principle that express reference to one matter in the statute can indicate that other related matters are excluded: Attorney General (Commonwealth) v The Queen (1957) 95 CLR 529 at 538. Unfortunately, it is also possible that the legislature thought that it was unnecessary to qualify flora by any express reference to living or dead plants because it was, in its view, clear that flora included both living and dead plants whereas it was not so obvious that "fauna" included both living and dead animals.
However, the respondents submitted that having regard to the ordinary meaning of "flora" and "plant" there is no doubt or ambiguity in the meaning of the words and they clearly do not include dead plant specimens. Thus, the respondents submitted there is no licence given to the court by the Interpretation Act 1984 (WA), s 19 to have regard to matters outside of the WC Act in order to construe the meaning of the provision.
However, the respondents submit that even if the court does have regard to the other statutes I have referred to, they support their interpretation of the WC Act. The example given by the respondents is that the definition of "forest produce" in the CALM Act expressly excludes protected flora within the meaning of that term. This example is no longer relevant as the Conservation and Land Management Amendment Act 1991 (WA) deleted that definition of "forest produce" and substituted a definition which includes timber but does not exclude protected flora. Thus it can no longer be argued that it is "nonsensical" for timber to be included within the definition of "flora" under the WC Act and also to be expressly included in the definition of "forest produce" in the CALM Act.
Conclusion
This is a matter which is finely balanced. There are persuasive arguments in favour of both interpretations. The appellant's strongest argument is that based on the problems that arise in the application of the WC Act if flora is narrowly construed. For example, there is much to be said for the argument that Parliament did not intend that there be limitations on wildlife officers' powers depending upon whether a plant was dead or alive. Or that proof of offences under the WC Act would depend upon fine distinctions as to whether a plant, when taken, was dead or alive.
The respondents' strongest argument is that based on the ordinary meaning of "plant". Whilst "flora" may, without specific definition, include both living and dead specimens from the plant kingdom, the WC Act does define it to mean "any plant". The dictionary definitions of "plant" refer to living organisms. If I then look to the dictionary definition of "living" there is really only one definition which applies. The Oxford English Dictionary defines "living" as being something that lives or has life. It is impossible to get away from the conclusion that a living organism is one that has life or is alive. Consequently, a dead plant is excluded from it.
I have reluctantly come to this conclusion as I can see much strength in the appellant's argument that to define "flora" to exclude dead plants may expose some inadequacies in the WC Act. On the other hand, given that the legislature specifically saw fit to include the carcass of animals within the definition of "fauna" but not to expressly include dead plants within the definition of "flora", it seems clear enough that the legislature did not intend to include dead plants within the definition of "flora".
The appeal is dismissed.
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