Pribil v State of Tasmania - [2022] TASSC 41

[2022] TASSC 41

COURT: SUPREME COURT OF TASMANIA

CITATION: Pribil v State of Tasmania [2022] TASSC 41

PARTIES:  PRIBIL, George Matthew
  v
  STATE OF TASMANIA

FILE NO:  238/2022
DELIVERED ON:  21 June 2022
DELIVERED AT:  Launceston
HEARING DATE:  22 March 2022
JUDGMENT OF:  Pearce J

CATCHWORDS:

Primary industry – Fish – Regulation – Permit or licences – Other matters – Suspension of licence for accumulation of demerit points – Calculation of demerit points based on special penalty.
Living Marine Resources Management Act 1995 (Tas), ss 242, 267 and 269.
Aust Dig Primary Industry [1111]

Primary industry – Fish – Offences – Penalty – Suspension of licence for accumulation of demerit points – Calculation of demerit points based on special penalty.
Living Marine Resources Management Act 1995 (Tas), ss 242, 267 and 269.
Aust Dig Primary Industry [1132]

Statutes – Acts of parliament – Interpretation – General approaches to interpretation – Purposive approach – General principles.

Living Marine Resources Management Act 1995 (Tas), s 242.
Aust Dig Statutes [1016]

REPRESENTATION:

Counsel:
             Appellant:  D G Grey
             Respondent:  D Elankovan
Solicitors:
             Appellant:  Darrell Grey
             Respondent:  Solicitor-General

Judgment Number: [2022] TASSC 41
Number of paragraphs: 49

Serial No 41/2022
File No 238/2022

GEORGE MATTHEW PRIBIL v STATE OF TASMANIA

REASONS FOR JUDGMENT

PEARCE J
21 JUNE 2022

Under the Living Marine Resources Management Act 1995, (the Act) persons, licences and fishing certificates are subject to a demerit points system. When a court convicts a person of an offence against the Act or any rules or regulations made under the Act, the prescribed number of demerit points are allocated to the person, the licence under which the person was operating and the fishing certificate on which the licence is specified: s 242(1). Accumulation of demerit points may result in disqualification of persons and suspension of licences for five years or permanently. By s 242(2)(a), the prescribed number of demerit points is "one demerit point for each penalty unit that the court imposes on the convicted person by way of a fine."
The Act also provides for the imposition of special penalties. At issue in this appeal is whether a special penalty calculated on the value of fish unlawfully taken attracts the imposition of demerit points. The appellant contends that it does not because, absent a sentence of imprisonment, a demerit point may only be imposed when a court imposes a fine or special penalty based on penalty units. For the following reasons that contention should not be accepted and the appeal must be dismissed.

The offences

The appellant is a commercial abalone diver. He was a person authorised under s 89 of the Living Marine Resources Management Act 1995, called a supervisor, to use a fishing licence (abalone dive) issued to and held by another person, a company, under that Act, s 78, and the Fisheries (Abalone) Rules 2017, r 12. For the purposes of the legislation the appellant was to be regarded as a licence holder and I will refer to him as such and to the licence as his. On 5 October 2021 the appellant pleaded guilty in the Court of Petty Sessions to two counts of failing to keep records in breach of the Act, s 145(1), and one count of taking an amount of abalone which exceeded the total amount specified in his licence at the time contrary to the Rules, r 15(3).
The circumstances of the offences as outlined to the sentencing magistrate, Mr K Stanton, were these. The fishing licence and fishing certificate the appellant used for the relevant fishery, and valid for the period 14 January 2020 to 31 December 2020, specified eight abalone quota units. Each quota authorised the taking of 24 kilograms of live green lip abalone, a total of 192 kilograms. In previous years four additional quotas were specified in the appellant's licence, authorising the taking of an additional 96 kilograms. Those additional quotas, owned by other persons, were also available to the appellant for use during 2020 but, by oversight, he forgot to include them in the administrative licensing documents completed at the commencement of that year. As a result, he mistakenly assumed that the total amount of abalone he was authorised by his licence to take was 288 kilograms.
On 6 July 2020, the appellant dived and took 137 kilograms of abalone. The dive and the taking of abalone were conducted in compliance with all of the legislative and regulatory requirements. The appellant correctly completed all of the documents which recorded and reported the details of the catch except that he stated that his total quota entitlement was 288 kilograms. On 10 July 2020, the appellant dived again. He believed that he had an entitlement to take a further 151 kilograms, when his licence entitlement was limited to a further 55 kilograms. On that day he took a further 166 kilograms of abalone, making his total catch 303 kilograms. Believing his total entitlement was 288 kilograms the appellant transferred the excess 15 kilograms to another commercial licence holder, as he otherwise would have been entitled to do in accordance with the Rules, r 56(2)(a). Again, the appellant correctly completed all of the required recording and reporting documentation except that he was wrong about his total quota entitlement. In the dive docket he recorded that his quota balance on that day was 151 kilograms when in fact it was 55 kilograms. The appellant's error in the total quota recorded in each of the dive dockets he signed was the basis of the two counts of failing to keep records under s 145. By taking abalone in excess of his quota entitlement he breached r 15(3) of the Rules.

The overcatch

On 15 September 2020, presumably after officers of the Department saw the documents, the appellant completed and lodged and became aware of the total amount of fish he had taken, the appellant was interviewed by the police. He admitted his error when it was pointed out to him. In accordance with the provisions of Part 6 of the Rules he elected to pay to the Crown, "an amount equal to twice the last beach price for the excess abalone calculated in accordance with the Fisheries (General and Fees) Regulations 2016." The learned magistrate was told by counsel for the prosecution:
"…the defendant elected to pay double the beach price for the 30 per cent overcatch in accordance with r 57 of the Fisheries (Abalone) Rules 2017. Thirty percent of the 111 kilograms is 16.5 kilos. One hundred and eleven kilos subtract 16.5 kilos equals 94.5 excess catch."
Before the magistrate, no reference was made to the 15 kilograms transferred to another diver under r 56(2)(a) other than to state that it had been "added back." The amount paid by the appellant purportedly in accordance with r 57 was $1,636.16. The magistrate proceeded to sentence on the basis that the relevant quantity of abalone taken in excess of the appellant's authority was thereby 94.5 kilograms. It is not a finding which is the subject of challenge in this appeal. However, there appears to me to be a real doubt about the correctness of the manner in which the excess catch election was put to the appellant at the time the error was discovered. Moreover, there is also a real doubt about the correctness of what the magistrate was told about the overcatch calculation, through no fault of the magistrate. It has an indirect effect on the order which is under challenge. The information given to the magistrate about the option the appellant was invited to take up contains an obvious mathematical error in the percentage calculation contained within it. Thirty percent of 111 kilograms is not 16.5 kilograms, it is just over 33 kilograms. In argument before me, counsel for the respondent contended that the appellant's quota limit "on that day", referring to 10 July 2020, was 55 kilograms and that weight was the balance of the appellant's quota limit. Thirty percent of 55 kilograms amounts to 16.5 kilograms, although that was not the calculation given to the magistrate. I doubt that either calculation is correct.
What the prosecutor referred to derives from rr 56, 57 and 58 of the Rules. Those rules apply when the holder of a fishing licence (abalone dive) "takes on a fishing trip an amount of abalone that exceeds his or her quota limit…" The term "quota limit" is defined to mean "the amount of abalone that may be taken in accordance with a fishing licence (abalone dive) in a part of the fishery at a particular time."
If the excess amount does not exceed 20% of the quota limit, one of the things the license holder may do is to pay to the Crown the last beach price for any excess up to 10% and twice the last beach price for any excess between 10% and 20%: r 56(9)(b). If the licence holder proceeds in that way, then he or she "does not commit an offence": r 56(1). Rule 57 relevantly applies if the holder of the licence "takes on a fishing trip an amount of abalone that exceeds the licence holder's quota limit by more than 20% but not more than 30%." In that case, the licence holder "does not commit an offence" if he or she pays to the Crown twice the last beach price for the excess abalone: r 57(3). Rule 58 applies when the excess abalone taken on a fishing trip is more than 30% above quota limit. In that case, the licence holder may proceed in accordance with r 57, such that if the sum is paid then he or she will commit no offence in respect to the amount of abalone up to 30% in excess of the quota. However proceedings or action may be taken against the licence holder for the amount of over catch which is more than 30% above the quota limit: r 58(2).
The respondent's contention is that the appellant's quota limit on 10 July 2020 was 55 kilograms, because that was the balance of his licence entitlement at that time. My view is that the words "a particular time" in the definition of "quota entitlement" should be read as referring to the period during which the licence is in force, not the balance on a particular day. Otherwise, the rules would apply in a way which creates considerable inconsistency and unfairness. If the respondent's interpretation were correct, a person who took all of a hypothetical total quota entitlement of 100 kilograms on a single day could resort the over catch provisions for up to 30 kilograms. However a person with the same 100 kilogram quota entitlement, who took the last 10 kilograms on a separate day, could resort to the over catch provisions for only 3 kilograms. The rules, or terms of the licence, do not impose a daily catch limit, or impose a limit, other than the total quota limit, on what may be taken on a particular fishing trip.
In my view, the rules would operate in respect to the appellant this way. His quota entitlement was 192 kilograms. He took 303 kilograms. The amount of abalone taken on 10 July 2020 in excess of his quota limit was thus 111 kilograms. Rule 58 entitled him to elect to pay twice the last beach price for 30% in excess of the quota limit. His quota limit was 192 kilograms, 30% of which was 57.6 kilograms. If the sum were paid, he committed no offence in relation to that 57.6 kilograms. The amount of the excess for which he was liable to be prosecuted would therefore have been 53.4 kilograms, not 94.5 kilograms as the magistrate was told.
As I have already pointed out, however, the foregoing calculations are not directly in issue in this appeal, and none of the overcatch payments were made beyond the payment based on 16.5 kilograms.
The learned magistrate proceeded to sentence on 13 October 2021. On the two counts of failing to keep records the appellant was convicted but no further order was made. For taking an amount of abalone which exceeded the total amount specified in his licence, the appellant was convicted and fined $1,720. By r 15 that offence is designated as a Grade 3 penalty. According to the definition provision in the Fisheries (Penalties) Regulations 2011, which were in force at the relevant time, reg 3, the offence was "level 2 offence" because it involved "no fewer than 20 kilograms of abalone". Because the appellant had two relatively minor relevant prior convictions he was a "third or subsequent offender." By operation of regulation 7, a Grade 3 penalty, for a level 2 offence, for a third or subsequent offender was "a fine of not less than 10 penalty units and not more than 5,000 penalty units or a term of imprisonment not exceeding 2 years, or both". At the relevant time a penalty unit was $172. The fine imposed by the magistrate was therefore 10 penalty units, the minimum sum which could have been ordered. His Honour could have imposed a fine up to 5,000 penalty units, or $860,000.
In sentencing, the magistrate accepted that the appellant made an honest error, arising from distraction caused by stressful and pressing personal circumstances. However his Honour found that the error was not reasonable because the correct quota and licences were written on the appellant's licence documents and he would have been aware of the correct entitlement had he read them properly. The magistrate accepted that the four additional abalone quota entitlements the appellant thought he was using during the 2020 dive season, but which were not included on his licence, were not used by any other person. The result was that, as expressed by the magistrate, the "effect on the resource of this offending is essentially zero." His Honour expressed the level of the appellant's culpability as very low.
The learned magistrate also imposed a special penalty under the Act, s 267 which provides:
267.   Illegally taking or possessing fish, &c.
(1)  On a finding of guilt for an offence under this Act or regulations or rules made under this Act relating to the taking, possession, purchase, sale or trafficking of fish, a court must impose a special penalty equal to 10 times the value of the fish.
(2)  A court must not reduce or suspend a special penalty for any reason.
Because s 267 applied, the magistrate was to determine the value of the fish by multiplying the weight of the abalone by the value declared by the Minister of a kilogram of abalone in accordance with s 269 which provides:
269. Value of fish
(1) For the purpose of this Division, a court must determine the value of any fish –
(a) by multiplying the weight of the fish by the value of each unit of weight declared for fish of that class or species; or
(b) by multiplying the number of fish by the value of each fish declared for fish of that class or species.
(2) The Minister, by order, may declare –
(a) the value of each unit of weight for fish of a specified class or species; or
(b) the value of each fish of a specified class or species.
The value was to be calculated by reference to only the excess weight: Blake v Richardson [2000] TASSC 15; 9 Tas R 141, Murfet v Visser [2000] TASSC 35. The declared value of a kilogram of abalone at the relevant time was $35.80. On the basis that the excess weight was 94.5 kilograms the special penalty was $33,831.
The total amount payable by the appellant for fines and special penalties was thus $35,551.

The allocation of demerit points

On 25 November 2021, an officer of the Marine Resources Division of the Department of Primary Industries, Parks Water and Environment wrote to the appellant informing him that 206 demerit points had been allocated to him, and to his licences and certificates under the Act. By operation of s 246A of the Act, the appellant was thereby disqualified for five years from obtaining or holding a licence because he was a person to whom "200 or more demerit points have been allocated in any 5-year period." The letter from the Department notified the appellant that, from the date of conviction, he was "suspended from obtaining or holding any commercial or recreational sea fishing licences…until 12 October 2026."

The Department's calculation of the number of demerit points

Demerit points are allocated by operation of s 242. It provides that "the prescribed number" of demerit points are allocated when a person is convicted of a fisheries offence. It is the terms of s 242(2) which are directly relevant to this appeal. That provision reads:
(2) For the purposes of subsection (1), the prescribed number of demerit points is the aggregate of the following:
(a) one demerit point for each penalty unit that the court imposes on the convicted person by way of a fine;
(b) 50 demerit points for each month of suspended imprisonment, of each term of imprisonment, that the court imposes on the convicted person;
(c) 100 demerit points for each month of actual imprisonment, of each term of imprisonment, that the court imposes on the convicted person.
The terms "fine" and "penalty unit" are defined in s 242(4):
fine includes a fine by way of special penalty;…
penalty unit means a penalty unit within the meaning of the Penalty Units and Other Penalties Act 1987 ;
Because no sentence of suspended or actual imprisonment was imposed in this case, the prescribed number of penalty units was "one demerit point for each penalty unit that the court imposes on the convicted person by way of a fine." The Departmental officers who calculated the demerit points to be allocated to the appellant and his licences did so by dividing $35,551, the total amount of the fine and special penalty imposed on the appellant, by the amount of a penalty unit under the Penalty Units and Other Penalties Act 1987, which was then $172. The result of the calculation was rounded down to the next whole number, producing the result of 206.
Upon receipt of the Department's letter advising that his licenses had been suspended, the appellant formed the view that the allocation of demerit points to him consequent upon his convictions on 13 October 2021 was incorrect. The appellant challenged the calculation by application to a magistrate under s 250(2) for an order to correct a register of demerit points kept by the Secretary of the Department under s 249. The basis of the challenge was that the special penalty should not have been included in the calculation. The appellant contended that the special penalty was not, on the proper construction of s 242(2)(a), to be regarded as penalty units imposed on the appellant by way of fine.
The same magistrate, Mr Stanton, heard the application. On 28 January 2022, his Honour dismissed the application and published written reasons to the parties. This appeal challenges the correctness of that determination. Because it is an appeal under the Magistrates Court (Civil Division) Act 1992, it is by nature of a rehearing on the materials before the learned magistrate: Tubb v Reissig (No 2) [2014] TASSC 13.

The grounds of appeal

There are six grounds of appeal, but all raise the same issue. The respondent contends that on the proper construction of the legislation, demerit points should not have been imposed on the special penalty to which the appellant was subject because the special penalty imposed under s 267 was based on the value of the fish he unlawfully took, and not on penalty units. He contends, by reference to the terms of s 242(2)(a), that even though a fine is defined to include a special penalty, a distinction is to be drawn between a special penalty based on penalty units and a special penalty based on the value of the fish. Because the special penalty imposed on him was based on value of fish, he submits that the court did not impose any penalty units and therefore s 242(2)(a) has no application.

Interpretation of the legislation

The task of statutory construction is to be undertaken in accordance with settled principle. The terms of the statute are to be considered having regard to the text, context and purpose and the mischief they are intended to remedy. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, 262 CLR 362 the plurality stated at [14]:
“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” [Footnotes omitted].

In a separate judgment, Gageler J emphasised at [36]-[38] the importance of considering context in the first instance:
“Drawing on that statement, and its antecedents, Brennan CJ, Dawson, Toohey and Gummow JJ said in CIC Insurance Ltd v Bankstown Football Club Ltd:
‘[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.’"
The principles were more recently restated in R v A2 [2019] HCA 35; 269 CLR 507 by Kiefel CJ and Keane J at [32]–[37] and by Bell and Gageler JJ at [124].
As expressed in the opening words, the Act is an Act to promote the sustainable management of living marine resources, to provide for management plans relating to fish resources, to protect marine habitats. Its purpose and objectives are expressed in s 7:
Purpose and objectives
(1) The purpose of this Act is to achieve sustainable development of living marine resources having regard to the need to –
(a) increase the community's understanding of the integrity of the ecosystem upon which fisheries depend; and
(b) provide and maintain sustainability of living marine resources; and
(ba) take account of a corresponding law; and
(c) take account of the community's needs in respect of living marine resources; and
(d) take account of the community's interests in living marine resources.
The legislative scheme imposes very strict compliance requirements aimed at enabling the authorities to monitor, manage, protect and preserve a very valuable and vulnerable resource. In the event of breach, the power to impose sentences of imprisonment, fines and the requirement to impose special penalties all serve to advance the statutory purpose and objectives. As the learned magistrate correctly recognised, the demerit point system also forms an important part of the scheme. The prospect of disqualification from holding or obtaining a licence for five years or permanently, and the five year suspension of a licence, carries a strong disincentive to offend against the legislative and regulatory requirements.
As the respondent correctly points out, the Acts Interpretation Act 1931, s 8A, provides that "an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object."
The Acts Interpretation Act allows consideration of extrinsic material if a provision is ambiguous or obscure or if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable: s 8B(1)(a) and (b). The respondent refers to statements of the relevant Minister in parliamentary debates in 1995, 1998 and 2007 in support of its submissions. In the second reading speech made on 4 July 1995 for the original Act, the Minister described the demerit points system as a "mechanism to discourage illegal activities" and which "will also enable the banning from the fishing industry and from certain activities in the marine environment of persons who demonstrate clear disregard for the management frameworks in the Bill designed to achieve sustainability."
In the second reading speech for an amendment Bill in 1998 the Minister said:
"Amendments to the provisions relating to special penalties are also proposed. Poaching in our more valuable fisheries continues to be of concern to both the industry and government. The imposition of special penalties is seen as a major deterrent and in an integral part of the demerit point provisions in the Act. The amendments propose that special penalties will be applied on a finding of guilt and will not be conditional on other penalties being imposed."
Another Ministerial statement relied on by the respondent was made on 13 March 2007 in the course of debate on a further amendment Bill. At that time the Act provided that a person who accumulated more than 200 demerit points within a five year period was to be disqualified from holding or obtaining a licence for life, and amendments were proposed to ameliorate the potential harshness of that provision. After explaining the operation of the demerit point system the Minister said:
"In effect, a person who receives a fine of $20,000 or more for an offence under the Act will be disqualified from being a licensed participant in the industry for life, and the licence he or she used will be cancelled. In the commercial sector it is quite possible to face a special penalty for a breach of the law in excess of $20,000."
The foregoing provisions, and the legislative policy they reflect, are also consistent with the interpretation of the legislation contended for by the appellant. Special penalties will be imposed, such as the significant penalty which was imposed on the appellant in this case. Demerit points will be imposed in accordance with the Act.
The Penalty Units and Other Penalties Act 1987 is, according to its introductory words, an Act to provide generally for the introduction of a penalty units system with respect to offences against Acts and subordinate instruments in place of the existing system providing for penalties in monetary terms. What is a penalty unit is established in s 4:
4. Penalty units
Where, in any Act or subordinate instrument for the time being in force, a number (whether whole or fractional) of what in the Act or subordinate instrument are referred to as "penalty units" is prescribed as the penalty for an offence against that Act or subordinate instrument or is specified for some other purpose in that Act or subordinate instrument, then the Act or subordinate instrument shall, subject to section 37 of the Acts Interpretation Act 1931 , be construed as setting out a penalty of a number of dollars equal to the product obtained by multiplying the amount specified in the most recent notice published under section 4A(4) by the number of penalty units so prescribed or so specified.
In accordance with amendments which came into effect in 2015, s 4A established the penalty unit for the financial year commencing 1 July 2015 at $154, and provided for the amount of the penalty unit for each subsequent financial year to be adjusted or calculated in accordance with the formula set out in the section, which is by reference to changes in the consumer price index. The obvious purpose of the legislation is to allow a simple and convenient means of adjustment of financial penalties across all legislation by changing the penalty unit by reference to which the penalty is calculated. Otherwise, changes to individual statutory penalties would be highly inefficient.
The result is that legislative financial penalty provisions are now almost always expressed in terms of penalty units rather than specific sums; that an offence is punishable by a fine not exceeding or not less than a specified number of penalty units. Such is the case in the Act and the Fisheries (Penalties) Regulations 2011, now the Fisheries (Penalties) Regulations 2021. For example, the offence under s 145 of the Act to which the appellant pleaded guilty was punishable by a "fine not exceeding 200 penalty units". The Fisheries (Penalties) Regulations 2011, which applied at the time of the appellant's offences, provide that the penalty for offences specified as Grade 1 offences by "fine of not less than one penalty unit and not more than 20 penalty units." The penalty for Grade 2 offences, regardless of whether for the person convicted it is a first, second, third or subsequent offence, may be a fine of "not more than 1,000 penalty units." For Grade 3 offences, the penalty ranges from a fine of not less than one penalty unit to, depending on whether the person convicted has offended before and the seriousness of the offence, a fine not exceeding 200 penalty units up to 5,000 penalty units.

Consideration of the appeal

When sentencing, the magistrate made two pecuniary orders. His Honour imposed a fine of $1,720, the equivalent of 10 penalty units for taking abalone in excess of his quota. The second pecuniary order was imposition of the special penalty. The special penalty was based on the weight of the fish taken in excess of the authority of the appellant’s licence. The special penalty was not calculated by reference to penalty units.
After considering the text, context and purpose of the legislation, his Honour concluded that "a construction of the demerit point provisions which would implement a ban on the [appellant] is consistent with the general purpose of the Act and the particular provisions of Division 6 of Part 9." The purposive considerations applied by the magistrate, and which are now advanced by the respondent, cannot, of course, justify an interpretation of the terms of ss 242 and 267 which the ordinary and literal meaning of the words of the sections cannot bear. The substance of the appellant's submission is that the approach adopted by the Departmental officers of simply dividing the amount of the special penalty imposed on the appellant by the amount of a penalty unit, which the magistrate adopted and described as a matter of mathematics, is an approach which cannot be justified according to the terms of the legislation. A construction which seeks to advance a perceived legislative purpose cannot extend to effectively inserting words into the provision which do not appear and which are too much at variance with the language used. In Taylor v Owners — Strata Plan No 1 1564 [2014] HCA 9; 253 CLR 531, the majority of the High Court consisting of French CJ, Crennan and Bell JJ said at [37]–[38]:
"Consistently with this Court’s rejection of the adoption of rigid rules in statutory construction … it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. … [I]t is possible to point to decisions in which courts have adopted a purposive construction having that effect. … [T]he question of whether a construction ‘reads up’ a provision, giving it an extended operation, or ‘reads down’ a provision, confining its operation, may be moot.
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision … It is answered against a construction that fills ‘gaps disclosed in legislation’ … or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’. [Citations omitted]
As to the text of the legislation the magistrate rejected the appellant's submission that, when calculating the demerit points to be imposed, a distinction was to be drawn between a special penalty based on a penalty unit and a special penalty based on the value of the fish. His Honour found that such a distinction was not suggested by the definition of fine in s 242(2), and would amount to an "arbitrary distinction between different types of special penalties which is not justified on any principled basis." I would not go so far as to describe the distinction as arbitrary. There is some merit in the appellant's submission that the distinction is based on the words of the legislation. It arises not only from the terms of s 242, but from the distinction illustrated by a comparison of s 267 under which a special penalty is based on the value of the fish, and s 268 under which a special penalty is based on penalty units. The words in s 242 which refer to penalty units are to be given meaning and effect. A court construing a statutory provision "must strive to give meaning to every word of the provision": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71]; Leon FinkHoldings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679. Those words have operation, when read in the context of s 242(2)(a), because they have direct application to another provision of the Act. Section 268 applies to special penalties for an apparatus offence as that term is defined in s 268(3). In that case the special penalty is determined by reference to penalty units. Moreover, the interpretation advanced by the appellant does not altogether undermine the object and policy of the legislation. As has already been explained, the legislation provides for the imposition of very heavy fines, most if not all of which are based on penalty units and would attract demerit points. No doubt the level of a fine, in the ordinary sense, imposed by a sentencing court, within the range between the minimum or maximum fines set by penalty units, might be reflective of the level of culpability of the convicted person and the gravity of the offence.
However, I have concluded that the interpretation contended for by the respondent and applied by the magistrate, more accurately advances the context, object and the purpose of the legislative scheme. It is not a construction which seeks to fill perceived gaps in the legislation or which is too much at variance with the language in fact used by the legislature. The terms of s 242(4) that a fine "includes a fine by way of special penalty" are somewhat ambiguous. They carry a degree of circulatory in that a special penalty is not a fine unless it is a fine "by way of special penalty". However the definition, when considered in light of all of the factors relevant to the proper interpretation of the provision to which I have referred, clearly discloses a legislative intention that the term "fine" is intended to apply to a sum of money payable either pursuant to a penalty provision or as a special penalty, however the special penalty is calculated. It is consistent with the extended definition of "fine" in the Sentencing Act, s 4, which includes the "sum of money payable by an offender under an order of a court made on the offender being found guilty, or convicted, of an offence and includes a sum of money payable as costs, a restitution order and a compensation order."
The learned magistrate also concluded that the interpretation argued by the appellant would "require a dramatic redefinition of court procedure" because "[w]hen a court imposes a sentence it does not impose a penalty unit." The appellant challenges that conclusion on the basis this appeal is not concerned with a sentence, but with the administrative imposition of demerit points. The appellant argues that the legislation does not provide for division by a penalty unit, and that a penalty unit cannot be "used as a divisor." That submission, in my view, misses the point being made by the magistrate. The appellant argues that it is impermissible to divide the special penalty based on value of fish by the amount of a penalty unit because the penalty was not calculated on the basis of penalty units. It is therefore an artificial and unjustified process. However, there could be no doubt that a demerit point must be imposed of a fine in the usual sense, and the same division process may attend that calculation. As the learned magistrate correctly pointed out, the penalty provisions based on penalty units operate only to legislate a minimum or maximum penalty. The fine may be any amount within that range. Hypothetically, for example, the learned magistrate may have decided to impose a fine of $3,000. The appellant argues that unless a magistrate imposes a fine by express reference to the imposition of penalty units then no demerit points can be imposed. That submission must be rejected as clearly contrary to the terms and context of the legislation. In such a case it is unavoidable that the calculation of demerit points involves division of the amount of a fine by the current amount of a penalty unit, in circumstances in which the result may not be a precise number.
The magistrate was correct to conclude that the fine of $1,720 imposed on the appellant attracted demerit points because it was the equivalent of 10 penalty units. The magistrate was also correct to conclude that the special penalty imposed on the appellant attracted demerit points as calculated by the respondent even though it was based on the weight and value of the fish.
A legislative policy strongly directed to protection of the integrity and sustainability of the valuable and vulnerable marine environment is of obvious benefit. For this appellant, however, the suspension of licences which resulted from the imposition of demerit points was punitive in the extreme when the circumstances of his offences are taken into account. He did not display any disregard to the legislative regime. As the learned magistrate correctly pointed out, all of the appellant's breaches resulted from inadvertence and none had any material impact on the resource. It is the inevitable result of legislative mandatory penalty provisions that injustice may sometimes result, as I think has occurred in this case.

The transferred abalone

The foregoing reasons determine the appeal subject to one remaining matter. The weight of unlawfully taken abalone upon which the special penalty imposed by the learned magistrate was calculated took no account of the 15 kilograms transferred by the appellant to the holder of another fishing licence. As previously explained, the transfer was in purported compliance with r 56(2)(a), (6), (7), and (8). According to those rules a licence holder does not commit an offence in respect to excess abalone if, when an amount of abalone taken exceeds a quota limit by not more than 20%, the excess is transferred to that other licence holder and attributed to that person's quota limit, provided the administrative requirements are complied with. Had the assumptions made by the appellant as to the amount of his quota limit been correct, upon transferring the 15 kilograms, he would have committed no offence.
The appellant argues that, regardless of the correctness or otherwise of his principal contentions, the 15 kilograms ought to have been taken into account in reduction of the quantity of fish unlawfully taken. If that contention is correct, then the special penalty would be calculated on a weight of 79.5 kilograms, not 94.5 kilograms. The difference is significant because, if accepted, the special penalty become $28,461 and the demerit points attributed to it 165 (rounded down). Once the 10 demerit points which were attributable to the fine were added to it, the total demerit points would reduce the number of demerit points to less than 200, avoiding the suspension of his licences.
Counsel for the respondent submitted that the 15 kilograms was not taken into account because, in light of the extent of the overcatch, r 56 did not apply and had no operation, even though that 15 kilogram part of the overcatch was attributed to the quota of another licence holder. The contention should be accepted. Rule 56 applies in circumstances in which the overcatch does not exceed 20% of the quota limit. Unless r 56 is shown to apply, all of the abalone taken by the appellant in excess of his quota limit were taken unlawfully. On any view of the facts, the amount of the overcatch exceeded 20%. No estoppel can apply to overcome the operation of the legislation.

Result and order

For the foregoing reasons none of the grounds of appeal are made out. The learned magistrate was correct to refuse the application to correct the register of demerit points. The appeal is dismissed.