R v Turner (No 16) - [2002] TASSC 17

[2002] TASSC 17

CITATION: R v Turner (No 16) [2002] TASSC 17

PARTIES:  R
  v
  TURNER, Phillip Bruce

LEE, Mervyn Robin
JANSEN, Cornelius Marinus
COULSTON, Daren Te Ariki Charles
TEDESCO, Antonio

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  320/2000
DELIVERED ON:  18 March 2002

DELIVERED AT: Hobart

HEARING DATES: 26 - 30 March,
26, 27 April,
8, 17, 18, 23, 30 May,
8, 21 June,
2, 17, 23, 25, 27, 30, 31 July,
1-3, 6-10, 13-17, 20-24, 27-31 August,
3-6, 10-12, 14, 17-21, 24-26, 28 September,
1-5, 8, 9, 16-19, 22, 23, 29 October,
1, 2, 7, 8, 29 November,
18 December 2001,
14, 31 January,
1, 18-22, 25-28 February,
1, 4 - 8 March 2002

JUDGMENT OF: Blow J

CATCHWORDS:

Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Illegally obtained evidence - Particular cases - Returns as to fish catches - Lawfully created documents containing information from illegally obtained documents - Documents from which contents of excluded documents could be inferred.
Aust Dig Criminal Law [426]

REPRESENTATION:

Counsel:
Crown:  M Rozenes QC, K E Read, J Read & I M Arendt
First Accused:  M L Abbott QC & M Selley
Second Accused:  G L Sealy & B R McTaggart
Third Accused:  P A Dunn QC & J D Edwardson
Fourth Accused:  B J Powell QC & G A Brown
Fifth Accused:  J M Fuller

Solicitors:
Crown:  Commonwealth Director of Public Prosecutions
First Accused:     Jennings Elliott as agents for: Iles Selley
Second Accused:  Ogivlie Jennings
Third Accused:    Jennings Elliott as agents for: John Lister
Fourth Accused: Jennings Elliott as agents for: Coates PL
Fifth Accused:     Jennings Elliott as agents for: Lynch & Meyer

Judgment ID Number: [2002] TASSC 17
Number of Paragraphs: 99

Serial No 17/2002
File No 320/2000

THE QUEEN v PHILLIP BRUCE TURNER,
MERVYN ROBIN LEE, CORNELIUS MARINUS JANSEN,
DAREN TE ARIKI CHARLES COULSTON
and ANTONIO TEDESCO (No 16)

REASONS FOR JUDGMENT BLOW J

18 March 2002

These are my reasons for a determination which I made on 6 March 2002 pursuant to the Criminal Code, s361A. The five accused have pleaded not guilty to a single count of conspiring to defraud the Australian Fisheries Management Authority ("AFMA"), a public authority under the Commonwealth, contrary to the Crimes Act 1914 (Cth), s86A. The Crown alleges that they agreed that catches of orange roughy in the "South East Fishery" should be understated in forms known as SEF1 and SEF2 forms. A jury has not yet been empanelled. On 29 October 2001 I made a determination pursuant to the Criminal Code, s361A, whereby I decided that certain forms illegally obtained by AFMA were not to be admitted into evidence but declined to exclude certain other documents, including other categories of forms submitted to AFMA. The forms which I decided to exclude comprised (a) all SEF1 and SEF2 forms relating to fishing activities between 10 September 1992 and 31 December 1992 inclusive, and (b) all SEF2 forms completed or purportedly completed by receivers (ie, processors) of fish in 1993. I gave my reasons for that determination on 2 November 2001: R v Turner (No 14) [2001] TASSC 124. Subsequently counsel made a series of applications for me to reconsider my determination, in the following order:

(a)Mr Sealy submitted that I should exclude the SEF2 forms completed and submitted to AFMA by receivers between 3 February 1992 and 9 September 1992.
(b)Ms Powell QC submitted that I should exclude all SEF1 and SEF2 forms completed by or on behalf of permit holders during the year 1993.
(c)Mr Abbott QC submitted initially that I should exclude all SEF1 and SEF2 forms completed in January 1992, then that I should exclude all such forms completed in 1992 in respect of each of the fishing boats relevant to this case prior to the purported assignment of quota units to that boat under the South East Fishery (Individual Transferable Quota) Management Plan 1991 ("the 1991 management plan"), par14.2(b), and finally that I should exclude all such forms completed in 1992.
(d)Mr Rozenes QC submitted that I should vary my determination of 29 October 2001 so as not to exclude from the evidence the SEF1 and SEF2 forms relating to fishing activities between 10 September 1992 and a later date, which Ms Read later specified as 31 December 1992.

Generally speaking, these submissions have been made on the basis of evidence that was not before me at the time of my previous determination, and arguments that were not advanced before my previous determination. I accept that it is appropriate for me to entertain each of the defence submissions. It is well established that a ruling as to the admission of evidence can be varied or reversed during a trial when justice so requires: Cornelius v R (1936) 55 CLR 235 at 249; Sinclair v R (1946) 73 CLR 316 at 324; R v Watson [1980] 2 All ER 293 at 295; R v Wilson [1981] 1 NZLR 316 at 323; R v McNamara [1987] VR 855 at 864; R v Masters (1992) 27 NSWLR 450 at 480; Rozenes v Beliaievs [1995] 1 VR 533 at 572; R v Thaller (2001) 79 SASR 295 at 304.

Further, defence counsel submitted that I should exclude certain evidence relating to the SEF1 and SEF2 forms which I previously decided to exclude. The evidence to which that submission related fell into two categories. There was "derivative evidence", which comprised documents containing details of the excluded SEF1 and SEF2 forms and their contents. There was also "ancillary evidence", from which the jury might be able to infer that the excluded SEF1 and SEF2 forms were submitted, and to infer what they contained. I will deal first with the submissions concerning SEF1 and SEF2 forms, in chronological order according to the dates of the forms to which they related.

SEF1 and SEF2 forms submitted in 1992

The 1991 management plan took the form of a determination by the Minister for Primary Industries and Energy in purported pursuance of the Fisheries Act 1952 ("the 1952 Act"), s7B(1). That plan incorporated unreasonable formulae for the calculation of fish quotas, as a result of which it was wholly void ab initio, and all licences issued in connection with it were also void: Coleman v Gray (1994) 55 FCR 412. However, until the Full Court of the Federal Court held the plan to be void in that case in 1994, it was not appreciated by any relevant Commonwealth officer that it or the relevant licences were void. Prior to the commencement on 3 February 1992 of the Fisheries Administration Act 1991 and the Fisheries Management Act 1991 ("the 1991 Act"), the Commonwealth's fisheries were managed by the Australian Fisheries Service ("AFS"), which was part of the Department of Primary Industries and Energy. As from 3 February 1992, they were managed by AFMA. The 1991 management plan purported to apply to the "South East Fishery" with effect from 1 January 1992. At all material times it was believed by officers of the AFS and AFMA that the 1991 management plan was in force in respect of the "South East Fishery" for the whole of 1992. To understand the submissions made in respect of forms obtained in 1992, it is necessary to understand the terms of the 1991 management plan and the relationship between that plan and the purported legislative requirements for the completion and lodgement of SEF1 and SEF2 forms providing details of catches of orange roughy and other species.

According to the terms of the 1991 management plan, the following steps had to be taken, in the following order, when fishing for orange roughy was undertaken by a boat in the "South East Fishery" in 1992:

(i)One of a number of departmental officers listed in the definition of "Manager" in par3.1 of the plan was required to make a determination pursuant to par11.1 thereof of the number of units of orange roughy "available for assignment to a person in respect of a relevant boat".
(ii)Under par11.8(a), the Manager was required to notify the person in respect of whom that determination was made of the total allowable catch for orange roughy in the fishery, of the number of units of that species available to that person for assignment, of the quota in relation to those units, of the levy payable on those units, and of the day by which that levy was to be paid.
(iii)The Manager was required by par11.8(b) to issue that person with a certificate of unit holdings containing certain information.
(iv)The recipient of the par11.8(a) notification was required to apply to the Manager in accordance with par14.1 for the assignment of a number of units of orange roughy to a boat nominated in the application.
(v)That applicant was required to pay the levy payable in respect of the number of units specified in that application by the day specified in the par11.8(a) notification.
(vi)Once the application had been received and the levy paid, the Manager was required by par14.2(a) to cause the issue of a Commonwealth fishing boat licence under the 1952 Act, s9(2), if it was still in force, authorising the use of the boat in the fishery subject to the provisions of the plan. Following the repeal of s9 with effect from 3 February 1992, the Manager was instead required to issue a fishing permit under the 1991 Act, s31(1).
(vii)The Manager was then required by par14.2(b) to assign to the relevant boat the applicable number of units.
(viii)The Manager was then required by par14.2(c) to issue a revised certificate of unit holdings.

The boat could not lawfully be used to catch orange roughy in the fishery until the par14.1 application for the assignment of units to it had been made, the levy in respect of the units paid, a licence or permit issued, and the units assigned to it. Unless and until units had been assigned to the boat, par14.3 prohibited its use in the fishery to take any specified species, including orange roughy.

The plan also provided for units to be transferred by one person to another, and assigned to another boat: par19.

By two notices dated 12 November 1991 and gazetted on 15 November 1991, the Acting Minister for Primary Industries and Energy sought to compel the masters of boats to complete and submit SEF1 and SEF2 forms recording their catches in the "South East Fishery". Each notice contained a subparagraph in the following terms:

"(b)pursuant to subregulation 17(2) of the Fisheries Regulations [I] hereby determine:
(i) that subregulations 18(1), 18(2) and 18(3) of those Regulations shall apply in respect of the form of logbook referred to in paragraph (a) of this Notice, to the master of a boat, in respect of which units under the South East Fishery (Individual Transferable Quota) Management Plan 1991 have been allocated or assigned as the result of a transfer during the period beginning on 1 December 1991 and ending on 30 November 1994".

Regulations 18(1) and 18(2) required masters to record information as to catches, sales and disposals of fish in log-books. Regulation 18(3) required the completed pages of log-books to be furnished to the Department or an "officer", as defined in the 1952 Act. These provisions only operated when they were invoked by a Ministerial notice under reg17(1).

Defence counsel advanced a Sargasso Sea of submissions as to the year 1992 which, once disentangled, can be summarised as follows:

(a)The AFS and AFMA tolerated and encouraged illegal fishing in the "South East Fishery" from 1 January 1992 to 15 February 1992. In particular, no objection was taken to fishing by existing operators' boats prior to the issue of fishing boat licences, and prior to the assignment of any quota units.
(b)The boats to which these proceedings relate were unlicensed until 30 January 1992. Whilst unlicensed, they fell outside the scope of the recording and reporting requirements which the Acting Minister sought to impose by means of the log-book notices of November 1991.
(c)Arithmetical errors were used in calculations that formed the basis of the determinations made for the purposes of par11.1 of the 1991 management plan as to the number of units of specified species available for assignment to persons in respect of boats. As a result, no valid determinations under par11.1 were ever made, and thus no valid assignments of units to boats were ever made.
(d)Even when applications were made for the assignment of units to boats, licences issued accordingly, and levies paid accordingly, nothing was ever done by way of assigning any units to boats as required by par14.2(b), or issuing certificates of unit holdings as required by par14.2(c).
(e)The effect of the log-book notices was to require masters of boats to complete and submit SEF1 and SEF2 forms only in respect of boats to which units had been assigned pursuant to par14.2(b) of the 1991 management plan, or assigned following transfer pursuant to par19 thereof. The mere making of a determination pursuant to par11.1 as to units available for assignment to a person in respect of a boat was not an allocation for the purpose of the notice and did not enliven the recording and reporting requirements. Thus the alleged failure validly to assign any units to boats meant that the recording and reporting requirements, if valid, could not have been applicable to anyone.
(f)The log-book notices of November 1991 were nullities because they did not relate to one or more kinds of fish as required by the Fisheries Regulations, reg17(1)(a), but purported to apply to all fish. Further, the period during which the notices purported to be in force ended on a date more than three years after their publication in the Gazette, contrary to reg17(5).
(g)AFS and AFMA officers commanded masters and receivers to submit SEF1 and SEF2 forms in 1992 when they knew or ought to have known of all the above matters. This made the illegal obtaining of those forms more culpable than would otherwise have been the case, and should result in the exclusion of those forms from the evidence. (The fact that the 1991 management plan was void meant that every SEF1 and SEF2 form obtained in 1992 was illegally obtained and able to be excluded in the exercise of the Court's public policy discretion, but I took the view in R v Turner (No 14) (supra) that that fact alone was insufficient to warrant exclusion.)

For the purpose of evaluating the conduct of AFS and AFMA officers, I will have to treat as valid a number of instruments that were not, including the 1991 management plan, the two November 1991 log-book notices, the relevant fishing boat licences, and a Ministerial notice dated 9 December 1991 and gazetted on 18 December 1991 purporting to prohibit fishing in the "South East Fishery" under the 1952 Act, s8, subject to exemptions.

Illegal fishing before 15 February 1992

The AFS was not ready for the implementation of the 1991 management plan on 1 January 1992. Ideally, it should have been ready for the taking of all steps that were prerequisites to lawful fishing for orange roughy speedily and efficiently at the very beginning of the year. That did not happen. On 7 November 1991 all operators in the fishery were sent a letter outlining the process for allocating individual transferable quotas in the fishery and providing an initial assessment of their proposed quotas. Notifications in accordance with par11.8(a) as to the number of units available to individuals for assignment were mailed out to operators on 23 December 1991. They were told that their levies were not required to be paid until 15 February 1992. A further circular was sent to all operators in the fishery on 16 January 1992 by Mr Paul Ryan, who was then the acting manager of the Quota Implementation Team of the AFS. It included the following:

"South East Fishery (SEF) Licences
On 23 December 1991 you were sent a letter outlining your final quota determination. In that letter you were advised that, under the terms of the South East Fishery (Individual Transferable Quota) Management Plan, you are required to pay levy before you can fish for your quota. However, given the late notice of levy payable, you were given until 15 February 1992 to pay your first instalment although you could commence fishing against your quota on 1 January 1992. You were also advised that not all your levy needs to be paid in the first instance but you should note that all levy must be paid by 31 May 1992.
In previous correspondence you were advised to apply for your SEF licence by 20 January 1992 to permit it to be issued prior to the commencement of AFMA on 3 February 1991. An extension of time has been granted and you now have until 24 January 1992 to apply for your SEF Licence. After this date, under the new legislation, CFBLs will not be able to be issued. Please note that a SEF licence. can not be issued until you have paid levy on at least part of your unit holdings and have applied to assign them to a boat.
Ninety applications for SFF Licences have been received to date, but levy payments have only been received for a very small proportion of these.
If you wish to obtain a SEF Licence you will need to apply and pay at least part of your levy by 24 January 1992 as it will not be possible to issue these licences after the introduction of AFMA on 3 February 1992.
From 15 February 1992 you will not be permitted to operate in the fishery unless a SEF Licence or a Fishing Permit has been issued in respect of your boat."

Although officers of the AFS and AFMA did not realise that the 1991 management plan was a nullity, and that therefore all fishing in the "South East Fishery" in 1992 was unlawful, they perceived that fishing in that fishery would be unlawful prior to boats becoming licensed, levies being paid, and quota units being assigned to boats. They decided to tolerate unlawful fishing in such circumstances between 1 January 1992 and 15 February 1992 in order to overcome the consequences of their own lamentable unreadiness.

Fishing boat licences

Fishing boat licences under s9(2) were granted in respect of the four boats relevant to this trial on 30 January 1992. On the Crown case, only one of the relevant boats, the Belinda, had undertaken a voyage during January 1992 for the purpose of fishing for orange roughy, and SEF1 and SEF2 forms were completed and lodged in respect of that voyage. The purported requirements for the completion and lodgement of SEF1 and SEF2 forms could not operate in respect of a boat that was not licensed, since the Fisheries Regulations, reg18(1) and 18(2), applied only to the masters of boats licensed under the 1952 Act, s9.

However all the relevant boats were the subject of s9 licences issued in March 1991 for the period 1 April 1991 to 31 March 1992. Even if such licences had not authorised the use of the relevant boats in the "South East Fishery", their subsistence would have resulted in the masters of the relevant boats being persons to whom reg18(1) could apply, though that is clearly not a situation that the authors of the relevant legislative instruments would have contemplated.

Mr Abbott QC submitted that each such licence would have ceased to be in force upon the publication of the Minister's s8 notice dated 9 December 1991 in the Gazette on 18 December 1991. Under s8, the Minister was empowered to prohibit the taking of fish in a specified area of proclaimed waters by means of a notice published in the Gazette. Under s8(2)(d), such a notice could provide for exemptions from any prohibition contained in it. Under s9(4), the Minister or the Secretary of the Department could endorse a s9 fishing boat licence so as to authorise the use of the relevant boat for fishing activities that were prohibited by a s8 notice. Each of the licences for the relevant boats for the year ending 31 March 1992 were endorsed to permit fishing that would otherwise have been prohibited by a number of s8 notices. Two of those s8 notices were revoked by the notice gazetted on 18 December 1991. Another s8 notice to which such endorsements related was Fisheries Notice No 144, which had been revoked by a notice published in the Gazette on 7 February 1991. There was only one other s8 notice in respect of which any relevant licence was endorsed. That was Fisheries Notice No 77. The Belinda's licence had an endorsement in respect of that notice, but the licences for the other relevant boats did not. I do not think I have any evidence as to when, if ever, that notice was revoked. If it remained current after 18 December 1991, I would have to reject the submission of Mr Abbott QC, insofar as it relates to the Belinda, on that basis.

However I have decided to I reject the submission of Mr Abbott QC on another basis. Each of the licences for the year ending 31 March 1992 was granted in respect of all "proclaimed waters", as defined in the 1952 Act. If any area of proclaimed waters was not covered by a s8 prohibition notice, then that licence authorised unrestricted fishing in that area. If all proclaimed waters were the subject of prohibition notices, then each licence remained a valid instrument, capable of being endorsed in respect of particular s8 prohibition notices, if a situation ever existed where it bore no current endorsements. Further, in such a situation the licence would have remained a valid instrument capable of authorising unrestricted fishing in any area of proclaimed waters which ceased to be the subject of a s8 prohibition notice. The revocation of all prohibition notices to which the endorsements on a licence related would thus not have resulted in the licence ceasing to be a licence, as suggested by Mr Abbott QC.

Mr Abbott QC took the unusual course of telling me that he understood the licences for the year ending 31 March 1992 had been surrendered prior to their expiry. As far as I am aware, the only evidence suggesting the possibility of surrender is contained in a circular apparently sent out by the AFS on 14 November 1991, by which operators were told they could obtain refunds of general licence levy if they surrendered their old licences. For reasons that will become apparent, I do not think a finding as to whether any of the licences due to expire on 31 March 1992 were surrendered before that date would have made any different to my determination.

Arithmetical errors

In early February 1992, AFMA officers formed the view that mistakes had been made in the calculation of the number of units to be made available to some persons by determinations under par11.1 of the 1991 management plan. I will explain the nature of the mistakes. The plan provided for a total allowable catch, expressed in kilograms, for each relevant species, and for the division of the total allowable catch amongst operators. The Manager was empowered by par8.2 to withhold units for the purposes of scientific research, and in anticipation of the reconsideration of decisions resulting in additional units being made available to some operators. Subject to any such withholdings, the total allowable catch was to be divided amongst operators in accordance with formulae specified in the plan. Thus a mistake in calculating the number of units to be made available to one operator would have an impact on the number of units made available to every other operator. The relevant formulae were based inter alia upon operators' catch histories. The mistakes that were discovered were in the calculation of the catch histories of some operators. On 14 February 1992, AFMA's principal legal officer, Mr Palmer, received advice from an officer of the Attorney-General's Department to the effect that each par11.1 determination, to the extent that unit allocations had been made using incorrect figures, was not valid. It was decided that new par11.1 determinations would have to be made, new par11.8(a) notifications given, and new par11.8(b) certificates of unit holdings issued. By 2 March 1992, revised calculations had begun, but were not complete. It had been decided to submit the calculations to an independent audit. A firm of accountants had been engaged. Mr Abbott QC contended that no revised par11.1 determinations, revised par11.8(a) notifications, or revised par11.8(b) certificates were ever made, given or issued. However he did not seek to establish that by evidence after I ruled that the making of an arithmetical error in a calculation that formed the basis of a determination under par11.1 could not have resulted in the invalidity of such a determination to any extent in any circumstances. My reasons for that ruling are as follows.

When the exercise of a power conferred by legislation is subject to a legislative requirement, and the requirement is not complied with, the purported exercise of power will in some cases be invalid and of no effect, but in other cases will be valid despite illegality. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the High Court considered the criteria to be applied in determining whether the breach of a particular legislative requirement does or does not result in the purported exercise of a statutory power being invalid and of no effect. At 388 - 389, McHugh, Gummow, Kirby and Hayne JJ said the following:

"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of that condition."

I see no reason why those words should not apply equally to subordinate legislation. In my view a s7B management plan under the 1952 Act was a piece of subordinate legislation: Austral Fisheries v Minister for Primary Industries and Energy (1992) 37 FCR 463 at 473; R v Turner (No 4) [2001] TASSC 51 at par57.

Paragraph 5 of the 1991 management plan provided that its objectives were "to achieve a level of parental biomass for each stock in the fishery consistent with optimum sustainable yields for that stock … " and "to promote optimum utilisation of the resource in the fishery". Paragraph 6 provided that the principal measures for obtaining those objectives were determining the total allowable catch for each species, dividing that total allowable catch for each species into units of fishing capacity, and allocating those units to individual operators, and exercising statutory powers so as to prevent operators from exceeding the quota in relation to the units assigned to a particular boat.

If an arithmetical mistake resulted in one operator being allocated fewer units than should have been allocated, and if that operator had been deprived by mistake of more units than had been held in reserve pursuant to par8.2, then correction of the mistake could only be achieved by either allocating so many units that the total allowable catch was exceeded, or by depriving other operators of units that they had received as a consequence of the arithmetical error.

Paragraph 26 of the plan provided for decisions of the Manager to be reviewed internally, and for internal review decisions to be reviewed by the Administrative Appeals Tribunal ("the AAT"). No doubt those provisions applied to determinations under par11.1. If review of a par11.1 determination had taken place under par26 and it had been decided, either internally or by the AAT, that an operator had been allocated too many units, the decision under review could no doubt have been varied by reducing the number of units allocated. If a review had resulted in a finding that too few units had been allocated to an operator, and a sufficient number of units had been withheld under par8.2(b) for allocation upon the reconsideration of decisions, then the appropriate number of additional units could have been allocated to the operator without difficulty. But if a review had resulted in a determination that an operator had been allocated too few units, and there had been no units, or insufficient units, available as a result of a withholding under par8.2, a question would have arisen as to whether it was lawful to allocate so many additional units to the aggrieved operator that the total allowable catch was exceeded. If the total allowable catch could never have been exceeded in such circumstances, the consequences would have been inconvenient to the point of absurdity. Increasing the number of units allocated to one operator would have required reducing the number of units allocated to every other operator. Procedural fairness would have required all operators holding units in respect of the same species to be notified of the review proceedings and afforded an opportunity to participate in them.

A somewhat similar quota regime existed under the Egg Industry Stabilisation Act 1971 (NSW). A State Hen Quota was fixed by a notice published in the Gazette and divided amongst individual poultry farmers, each of whom received an individual hen quota, leaving no part of the State Hen Quota available for late allocation to a farmer who had been allocated too low an individual hen quota. The New South Wales Court of Appeal took the view that the legislation clearly required the total of all individual hen quotas not to exceed the State Hen Quota: Tebbutt v Egg Marketing Board of NSW [1976] 2 NSWLR 179 per Hutley JA, with whom Glass and Samuels JJA agreed, at 183. But in my view the provisions of the 1991 management plan did not make it clear that the total of all the allocated quota units for a species was required, even after the making of review decisions under par26, not to exceed the total allowable catch prescribed for that species. In my view the plan treated the total allowable catch for each species as no more than a target figure to be adopted for the purpose of calculating unit allocations. The plan contained no express requirement that the AAT or decision-makers conducting internal reviews were not to make decisions that would result in a total allowable catch being exceeded. Such a requirement could have been inconvenient to the point of absurdity, as I have explained. In the absence of any such requirement, expressly or by implication, the figure adopted for a total allowable catch would have to be treated with appropriate respect as a piece of official policy-making: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.

The 1991 management plan's predecessor, the South East Trawl Fishing Preliminary Management Plan, provided for a total allowable catch of gemfish of 3,000 tonnes. In Re Musumeci and Minister for Primary Industries and Energy (Unreported AAT decision 5607, 8 December 1989, A89/63-68) the AAT, constituted by Hartigan J, Deputy President Forgie, and Senior Member Lynch, varied a number of quota allocation decisions with the result that the total allowable catch for gemfish was exceeded. The Tribunal took into account the provisions of the relevant management plan as to a total allowable catch as non-binding official policy in accordance with Drake. That decision pre-dated the 1991 management plan. If the author of that plan had intended it to be impossible for a valid decision allocating units, at first instance or on a review, to have resulted in the exceeding of the total allowable catch, a provision could have been inserted to make that clear, like the provision about the State Hen Quota in Tebbutt. The fact that no such clear provision was made is a strong indication that the provisions of the plan as to total allowable catches were to be treated in the same way as the equivalent provisions were treated in Musumeci.

In my view the intent of the 1991 management plan was that an incorrect allocation of units pursuant to par11.1 would not result in the invalidity of the allocation determination, nor in the invalidity of any other allocation determination affected by the same error, but that such determinations would be valid and reveiwable even if review resulted in the total allowable catch being exceeded. It follows that any arithmetical errors in the calculation of quota allocations were completely inconsequential, for present purposes.

Failure to assign units to boats and issue certificates of unit holdings

Mr Abbott QC submitted that I should make findings of fact that, during 1992, quota units were never assigned to boats in accordance with par14.2(b) of the 1991 management plan and that certificates of unit holdings were never issued in accordance with par14.2(c) thereof. He relied on the fact that thorough and appropriate efforts had been made by the legal representatives of the accused to obtain from AFMA and the Crown documents by which units were assigned, or evidencing such assignments, certificates of unit holdings, or copies thereof, but that practically nothing had been forthcoming. On behalf of the Crown, Ms Read submitted that there was evidence before me on the voir dire of assignments having been effected in accordance with par14.2(b). Some of the documents she relied on contained no more than hearsay assertions by AFMA officers to members of the public as to assignments having taken place. Another exhibit includes documentation in relation to a group of applications for the transfer of quota units on which AFMA officers appear to have noted that units have been re-assigned. More significantly, Ms Read tendered a certified copy of the records kept by AFMA recording many assignments of quota units to boats relevant to this case during 1992. As Ms Fuller pointed out, this does not establish conclusively that such assignments were effected by someone falling within the plan's definition of "the Manager" or at all.

The 1991 management plan was completely silent as to how a par14.2(b) assignment was to be effected. Although par21.2 required the keeping of a register containing a great deal of information about units and boats, that paragraph did not require assignments of units to boats during a fishing season to be recorded. I think it must follow that any sort of note or record, intended to effect or evidence an assignment, would have been a sufficient assignment if made by someone falling within the definition of "the Manager".

On the evidence before me, I am unable to make a finding as to whether there were any par14.2(b) assignments in 1992. But I do not think that matters. At worst, there was an administrative oversight. AFMA and its officers had nothing to gain by failing to effect assignments in accordance with par14.2(b). There is no evidence to suggest that any AFMA officer was ever aware that par14.2(b) was not being complied with (assuming that it was not).

Similarly, I am unable to make a finding one way or the other as to whether revised certificates of unit holdings were ever issued in 1992 in accordance with par14.2(c). If not, there was nothing worse than an administrative oversight, nothing to be gained by AFMA or its officers from not complying with the relevant provision, and no evidence that any AFMA officer realised that the provision was not being complied with. Further, any failure to comply with the provision could not have had any impact on the recording and reporting obligations that I am concerned with, assuming all relevant legislative instruments to have been valid.

Fishing when units had not been assigned to a boat

Mr Abbott QC submitted that the two log-book notices of November 1991, if valid, would have required the completion and lodgement of SEF1 and SEF2 forms only in respect of boats to which units had been assigned under par14.2(b), or assigned following a transfer under par19. If so, there could be two possible consequences. First, if as Mr Abbott QC contended nothing was ever done by way of assigning quota units to boats pursuant to par14.2(b), there would have been no legislative obligation on anyone to submit SEF1 or SEF2 forms in 1992, and all such forms would have been illegally obtained by AFMA. Secondly, if the Belinda's old unexpired licence had not been surrendered at the time of her alleged voyage in January 1992, there would have been no legislative obligation to complete or submit SEF1 or SEF2 forms in respect of that voyage, with the result that they would have been illegally obtained. Ms Read submitted that the old licence was current in January 1992; that the allocation of units in respect of the Belinda by a par11.1 determination had occurred in December 1991; and that it followed that there would have been a legislative obligation to complete and submit SEF1 and SEF2 forms in respect of the alleged voyage of January 1992 if the 1991 management plan had been valid. The argument advanced by Mr Abbott QC concerned the interpretation of the two log-book notices of November 1991. I rejected his suggested interpretation of those notices during argument.

The submissions in question concerned the proper interpretation of subpar(b)(i) of each of the two notices, which provided that the Fisheries Regulations, regs18(1), 18(2) and 18(3), were to apply in respect of the relevant forms of log-book to the master of a boat in respect of which units under the 1991 management plan "have been allocated or assigned as a result of a transfer". Mr Selley submitted that units were not "allocated" within the meaning of the subparagraph when the number of units of a species "available for assignment to a person in respect of a relevant boat" was determined pursuant to par11.1. He submitted that, in a situation not involving a transfer, units were "allocated" when, after the making of an application for the assignment of units to a boat, the paying of the levy in respect of the specified number of units, and the issue of a s9 licence, the Manager assigned the applicable number of units to a boat pursuant to par14.2(b). At first glance, such an interpretation has its attractions. The word "allocated" was obviously intended to refer to an administrative act involving some matching up of units and a boat, but not involving any transfer of units by one person to another. As the legislative scheme involved units being assigned to a boat under par14.2(b) prior to any fishing pursuant to the rights associated with those units, that would tend to suggest that a par14.2(b) assignment was referred to.

But I think other considerations compel a different interpretation. The words "allocation" and "allocated" appear to have been used in the 1991 management plan to refer to the making available of units pursuant to a par11.1 determination. Whilst the word "allocation" was not used in par11, that paragraph was headed, "Allocation of units available for assignment". Paragraph 6, which listed the principal measures to be undertaken for obtaining the objectives of the plan, referred to dividing the total allowable catch for each species into units of fishing capacity "and allocating those units to individual operators in the fishery". That was plainly a reference to the procedure prescribed by par11. Paragraph 8.2 provided for the Manager to "withhold from allocation" a proportion of the total number of units for the purposes of scientific research and "for the allocation of additional units upon reconsideration of decisions". Paragraphs 8.3, 8.4 and 8.5 referred to the "number of units of a specified species available for allocation at the commencement of this plan". Paragraph 8.3 required that number to be "divided into a number of units available for allocation to those persons eligible for a determination under paragraph 11 in respect of (a) otter trawl boats; and (b) Danish seine boats", obviously referring to the procedure under par11.1. Paragraph 15.1(a), which provided for the suspension of units, referred to "the allocation, assignment or transfer of … units" as if three distinct types of administrative activity were being referred to. Upon the making of a par11.1 determination, an individual became the holder of units in respect of a boat, but something further was required before those units were assigned to a boat ¾whether to the same boat pursuant to par14.2(b) or to another boat pursuant to par19. The procedure whereby an individual received units pursuant to par11.1 was referred to in the plan only as "allocation". The plan was not signed or gazetted until after the publication of the two log-book notices, but it was either in the course of preparation or in its final form when they were signed and gazetted. I infer that the author of the notices was aware of its wording when the notices were drafted.

By reason of the Acts Interpretation Act 1901 (Cth), ss15AA and 46(1)(a), a construction that would promote the purpose or object underlying the log-book notices must be preferred to a construction that would not promote that purpose or object. The notices appear to have been intended to assist the AFS and AFMA in the monitoring of compliance with quota restrictions, and in the collection of data relating to catches that would be of assistance for future fisheries management purposes. An interpretation of the notices giving them a wide application would promote those objects, whereas an interpretation giving them a narrow application would not. It follows that the word "allocated" should be interpreted so that the recording and reporting requirements imposed by the notices would have applied not just to the masters of boats to which units had been assigned under par14.2(b) or following a transfer, but also to the masters of boats to which no units had been assigned by either method, but in respect of which units had been made available to a person by a determination under par11.1.

Mr Abbott QC submitted that the minister who signed the notices could not have contemplated that there would be a recording and reporting regime applicable to both legal and illegal fishing. I accept that a minister could rarely, if ever, be taken to have accepted that illegal activity would take place, and to have introduced a form of subordinate legislation for the purpose of regulating officially condoned illegal activity. However fisheries management involves complex legislative schemes which give rise to complex prosecutions, some of which involve high stakes. In that context, it would not be unthinkable or improper for a minister to make a determination requiring recording and reporting of catches in terms so wide that it might survive a finding that someone's fishing activities were outside the law, or render irrelevant a clever legal argument.

Mr Abbott QC also submitted that, accepting that the log-book notices were so widely drawn as to require SEF1 and SEF2 forms to be completed and submitted by masters of boats in respect of which quota units had been allocated to a person, whether there had been any assignment of units to such boats or not, that the scope of the recording and reporting obligation was narrowed by the subsequent making and gazetting of the 1991 management plan. He submitted that it followed from the plan's prohibition of fishing by boats to which quota units had not been assigned that the log-book notices thereafter did not operate so as to require recording and reporting in respect of illegal fishing by boats in respect of which units had been allocated, but to which units had not been assigned. I reject that submission. There is nothing in the wording or context of the 1991 management plan to suggest that it was intended to limit the scope of the operation of the log-book notices. The structure of the Fisheries Regulations, regs16, 17 and 18, were such that the scope of a reg17(1) log-book notice could not be varied by the making of a s7B management plan.

For these reasons I conclude that, if the 1991 management plan and the log-book notices of November 1991 had been valid, those notices would have required the completion and lodgement of SEF1 and SEF2 forms in respect of fishing by licensed boats in respect of which units had been allocated under par11.1, but to which no units had been assigned under par14.2(b). This provides a further answer to the argument that nothing was ever done by way of assigning units to boats in accordance with par14.2(b). Quota units were purportedly allocated to all relevant boats, including the Belinda, in December 1991. If the Belinda undertook the alleged voyage of January 1992, and if her licence for the year ending 31 March 1992 had not then been surrendered, her master would have been obliged to complete and submit SEF1 and SEF2 forms if the 1991 management plan and the November 1991 log-book notices had been valid.

Log-book notices of November 1991

The two notices gazetted on 15 November 1991 purported to be pursuant to the Fisheries Regulations, reg17(1), which provided as follows:

"Where the Minister has, by notice in writing published in the Gazette and in a newspaper circulating in a State or the North Territory, determined in respect of a form of log-book:
(a)the kind of fish;
(b)the kind of fishing activity; and
(c)the area of waters;

in respect of which the form of log-book is to be used in accordance with these Regulations, the form of log-book is for the purposes of these Regulations the appropriate form of a log-book in relation to a boat:
(d)engaged in taking in that area of waters fish included in that kind of fish; or
(e)engaged in an activity related to the taking in that area of waters fish included in that kind of fish."

Unless a reg17(1) determination referred to one or more kinds of fish as required by reg19(1)(a), it did not fall within the scope of reg17(1), and must have been a nullity. Neither of the two log-book notices gazetted on 15 November 1991 specified any kind or kinds of fish. They were therefore nullities. There is no evidence to suggest that any AFS or AFMA officer ever realised or contemplated that either or both notices were nullities for this reason.

The period during which the notices purported to be in force ended on a date more than three years after their publication in the Gazette, contrary to reg17(5). However, if the notices had not otherwise been invalid, the Acts Interpretation Act, s46(1)(b), would have resulted in them remaining in force until 15 November 1994 instead of 30 November 1994. I accept that the Acting Minister was an "authority" for the purposes of s46(1)(b) since he was a person exercising power or command. See Federal Commissioner of Taxation v Silverton Tramway Co Ltd (1953) 88 CLR 559 per Dixon CJ at 565.

Conduct of AFS and AFMA officers

Mr Ryan's circular of 16 January 1992, to which I have referred, contained the following paragraph:

"Logbooks
There has been some confusion about the requirement to complete the SEF1 Logbook and SEF2 Catch Disposal Report. As you were previously advised, you are required to complete the SEFI Logbook and SEF2 Catch Disposal Report as soon as you have units of quota assigned to your boat. However, you are also required to complete these forms to cover the operations of vessels in respect of which quota was allocated. This means that you are required to fill in logbooks and catch disposal reports for vessels which generated quota even if you have not yet assigned quota to them. Both the Logbook Notices and the Fisheries Regulation relating to these books have this provision."

This paragraph was incorrect and misleading as to the situations in which SEF1 and SEF2 forms would have been required to be completed and lodged if the 1991 management plan and the log-book notices had been valid. As I have said, the November 1991 log-book notices were worded so widely that they purported to apply not just when quota units had been assigned to a boat, but also whenever quota units had been allocated in respect of a boat in accordance with par11.1 of the subsequently gazetted 1991 management plan. However the operation of the log-book notices was restricted by the Fisheries Regulations, regs18(1) and 18(2). Those subregulations were worded in such a way that the recording and reporting obligations imposed by the log-book notices could only have applied to boats licensed under the 1952 Act, s9. No doubt some of the boats operating in the "South East Fishery" prior to the issue of their new licences in 1992 did not have unexpired licences issued in 1991 or earlier. To the extent that Mr Ryan's circular was addressed to the masters of unlicensed boats, it asserted that recording and reporting obligations existed, when that could not have been the case.

Mr Ryan's subsequent conduct had shown quite clearly that he was prepared to mislead fishermen by pretending, when it suited AFMA, that they had legal obligations when he knew that they did not. However he was not cross-examined about this circular, and I am therefore not prepared to make findings that he turned his mind to the situation of masters of unlicensed vessels and issued the circular dishonestly or recklessly. For reasons that will become apparent, I do not think findings as to these matters would have made any difference to my determination.

There is no evidence to suggest that any AFS or AFMA officer was alert to any failure to assign units to boats in accordance with par14.2(b), nor to any failure to issue revised certificates of unit holdings in accordance with par14.2(c), nor to the defect in the log-book notices resulting from the failure to specify any kind or kinds of fish.

As I have been asked to re-exercise the discretion to exclude evidence, I think the appropriate course is for me to evaluate all the evidence and arguments that have been relied upon in relation to SEF1 and SEF2 forms before deciding whether to exclude any further forms or to admit any forms that I had previously decided to exclude.

Receivers' SEF2 forms from 3 February 1992 to 9 September 1992

From its inception on 3 February 1992 onwards, AFMA demanded that receivers submit SEF2 forms giving details as to quantities of orange roughy and other species caught in the "South East Fishery" and received by them for processing. It did so in reliance upon the Fisheries Regulations, reg15A, which was made and gazetted in December 1991. Whilst that regulation was validly made, it did not ever become operative, for two reasons. First, its terms were such that it applied only to fish taken by a boat in relation to which units had been allocated or assigned under the 1991 management plan, but that plan was a nullity. Secondly, reg15A(5) required the use of a form approved by the Minister, but no form was ever so approved: R v Turner (No 14) (supra) at par19.

Regulation 15A was made pursuant to the 1952 Act. With effect from 3 February 1992, the 1952 Act was repealed (except for Part IVA which is not relevant to these proceedings) and replaced by the 1991 Act. There was transitional legislation whereby the repealed provisions of the 1952 Act could remain in operation in relation to unexpired licences: Fisheries Legislation (Consequential Provisions) Act 1991 ("the FLCP Act"), s6(1). It was believed by all relevant authorities that, pursuant to that provision, all licences issued under the 1952 Act for the "South East Fishery" in accordance with that plan would remain in force until 31 December 1992. However, as a consequence of the invalidity of the 1991 management plan, all the relevant licences were invalid, and the critical transitional provision did not operate in relation to them: Coleman v Gray (supra); R v Turner (No 4) (supra) at pars39 - 60. As a result, there is no doubt that reg15A was repealed with effect from 3 February 1992.

Mr Sealy submitted that counsel and I had overlooked at the time of my earlier ruling the fact that the wording of the relevant transitional provision, s6(1), and the wording of reg15A were such that, even if the 1991 management plan and the relevant licences had been valid, reg15A, could not have been preserved in force after 3 February 1992. Counsel for the Crown submitted that s6(1) had been capable of preserving the operation of reg15A. The wording of s6(1), is as follows:

"(1) Despite the repeal of the Fisheries Act 1952, other than Part IVA, by this Act, a licence granted to a person under section 9 of that Act that was in force immediately before the commencement of this section continues in force after that commencement until its date of expiry, or until it is surrendered or cancelled, as if the Fisheries Act 1952, other than Part IVA, had not been repealed and that Act and instruments made or determined under that Act (including regulations, Proclamations, orders, plans of management or notices) as in force immediately before the commencement of this section continue to apply in relation to the licence, the holder of the licence or a person acting on behalf of the holder of the licence to the extent that they are capable of so applying."

It can be seen that the subsection had two limbs. The first limb preserved the operation of licences. The second limb preserved the operation of the 1952 Act and instruments thereunder, but only to the extent that they applied in relation to licences, licence holders, and licence holders' agents.

Regulation 15A required receivers to complete returns and submit them to the Department of Primary Industry and Fisheries. Receivers were not licensed, or required to be licensed in any way, under the 1952 Act. However Ms Read submitted on behalf of the Crown that reg15A was capable of applying to licences for the purposes of s6(1), whether that subsection was interpreted according to a literal approach or according to a purposive approach.

Ms Read submitted that reg15A was capable of operating only in relation to fish taken by a boat that was licensed under the 1952 Act, s9(2). She based this submission on reg15A(2), which read as follows:

"This regulation applies only to SEF species taken by a boat in relation to which units under the Management Plan have been allocated or have been assigned as a result of a transfer."

She submitted that there was such a strong connection between fishing boat licences under s9 and the operation of reg15A that the regulation applied in relation to each s9 licence, within the meaning of the second limb of s6(1). However I do not think a literal interpretation of s6(1) justifies such a conclusion. Regulation 15A was certainly capable of applying in relation to receivers and fish, but I do not think it can properly be said that it could have applied in relation to licences. The words "in relation to" in s6(1) suggest something in the nature of a relevant relationship, and something more than a coincidence or mere connection: O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 per Dawson J at 367. Bearing in mind the use of the words "apply" and "applying" in s6(1), I think a literal approach requires one to consider how, if at all, reg15A could ever have been regarded as "applying" in relation to a s9 licence. Given that a licence could only ever have been a prerequisite to the valid operation of a regulation requiring receivers to record and report information as to deliveries of fish, it would be inconsistent with the ordinary literal grammatical meaning of s6(1) to regard it as having been capable of preserving the operation of reg15A.

Further, the scheme of the 1991 management plan was such that units could be allocated in relation to a boat prior to any licence being granted in respect of it. Thus, if a receiver had taken delivery of fish from an unlicensed boat in respect of which units had been allocated, that receiver would have been obliged to complete and submit an SEF2 form. Given that reg15A was capable of operating both in respect of licensed and unlicensed fishing, I do not think it should be regarded as capable of applying in relation to a licence for the purposes of s6(1).

However the Acts Interpretation Act, s15AA, requires a construction that would promote the purpose or object underlying the Act to be preferred to a construction that would not promote that purpose or object. In general terms, the purpose or object of the FLCP Act was to achieve a smooth transition from the fisheries management regime in force under the 1952 Act to that created by the 1991 Act. More specifically, its purposes included the continuation in force of unexpired licences and permits. Very similar provisions were contained in s5(1) which related to scientific permits, s6(1) which related to licences under the 1952 Act, and s9(1) which related to licences and permits under the Continental Shelf (Living Natural Resources) Act 1968 (Cth). Ms Read submitted on behalf of the Crown that the purpose or object of s6(1) was to save the whole scheme of management of fisheries in which unexpired licences were in force at the time of the repeal. Defence counsel submitted that no such wide objective was evident from the legislation or established by evidence, and that there was nothing to indicate that s6(1) had been intended to do anything other than preserve licences, and legislation and instruments incidental to licences. As I understood her, Ms Read also submitted that the author of s6(1) had evidently not adverted to the existence of regulations requiring receivers to complete and submit returns in certain situations; that the preservation of such recording and reporting requirements accorded with the object and purposes of the Act; that the author would therefore have worded s6(1) so as to make clear an intention that such regulations were to continue in force if they had been drawn to his or her attention; and that it was in accordance with authority to interpret s6(1) as if those regulations had been brought to its author's attention and dealt with accordingly. Defence counsel submitted to the contrary.

The regulation with which I am concerned was not made until some considerable time after the FLCP Act received the Royal Assent, nor was the 1991 management plan. However, for some time before the Bill for the FLCP Act was introduced, there were three regulations in force pursuant to the 1952 Act which compelled receivers in specified areas to keep records and submit returns in relation to deliveries of particular species of fish. These regulations were obviously made for the purpose of monitoring the compliance by fishermen with quota restrictions. There is nothing in Hansard or the explanatory memorandum published by the Minister in relation to the Bill to suggest that s6(1) was intended to do anything beyond preserving unexpired licences. A substantial collection of Parliamentary papers was tendered on the voir dire, but the only hint that some wider purpose may have underlain s6(1) appears in an answer given by an AFS officer, Mr Meany, in evidence before the Senate Standing Committee on Industry, Science and Technology on 17 June 1991 (Hansard, pages IST23, IST24) in the following terms:

"The existing licences under the Fisheries Act 1952 and all of the other provisions that go with that will, of course, continue until they expire. So it means that from day one we will be managing mostly under the 1952 Act because we will be using the instruments that are ¾ ".

At that point Mr Meany was interrupted by a senator. He did not ever complete his sentence. There is nothing to indicate one way or the other whether he considered s6(1) would preserve the regulations imposing reporting requirements on receivers, nor is there any indication that the views of AFS officers as to the relevant clause were shared by its author or authors. There is insufficient evidence for me to conclude that s6(1) was intended to save the whole scheme of management of fisheries where unexpired licences were in force at the time of the repeal, and I certainly do not think any such intention is evident from the wording of the subsection.

It may also be significant that the 1991 Act did not provide for the making of regulations requiring receivers to keep records or submit returns except in relation to fish from fisheries controlled pursuant to a plan of management made under that Act. See R v Turner (No 6) [2001] TASSC 89 at par27; R v Turner (No 14) (supra) at par22. (Having regard to the provisions of the Acts Interpretation Act, s33(3B), I should perhaps have added to my reasons in those earlier rulings. My conclusion that the 1991 Act, s168(1), did not empower the Governor-General to make regulations compelling receivers to keep records or furnish returns in respect of unmanaged fisheries did not depend solely on the fact that power to make similar regulations in respect of managed fisheries was conferred elsewhere in the Act. The fact that Parliament amended the Act in 1994 so as to empower the Governor-General to make such regulations in respect of receivers of fish from all fisheries, managed or not, also indicates that s168(1) did not confer that power when the Act commenced. See Pearce & Geddes Statutory Interpretation in Australia, 4 ed, par3.18.)

Since receivers could not be compelled to keep records and submit returns under the new Act unless and until a plan of management was in force in the relevant fishery, one would have to have great hesitation in thinking that s6(1) was intended to preserve every aspect of the management arrangements of fisheries in respect of which unexpired licences were in force at the time of the repeal.

In my view a purposive approach to the interpretation of s6(1) does not lead to the conclusion that it was capable of preserving reg15A. In particular, I do not think it can be said that the purpose or object behind s6(1) was so wide that one could read into the subsection words extending its operation to all aspects of the management of fisheries with unexpired licences, or to regulations imposing recording and reporting requirements on receivers. I accept Mr Sealy's submission that s6(1) was incapable of preserving the operation of reg15A.

This point is a little more significant than one might at first suppose. After AFMA came into existence on 3 February 1992, it illegally commanded receivers to submit SEF2 forms to it, apparently relying only on reg15A, for the rest of that year. It thus illegally obtained SEF2 forms from them. The fact that the Minister had not approved a form of return pursuant to reg15A was apparently not adverted to by anyone in AFMA that year, nor was it appreciated in that year by anyone in AFMA that the 1991 management plan was void, nor that the licences issued under the 1952 Act for the "South East Fishery" for the year 1992 were also void. (Although one paragraph in the plan was held to be void by O'Loughlin J on 28 July 1992 in Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 37 FCR 363, it was not until the decision in Coleman v Gray (supra) in 1994 that a court held that the whole plan was void, or that the licences were also void.) However, it was submitted that AFMA officers realised, or ought to have realised, that receivers were not obliged to complete or submit SEF2 forms from 3 February 1992 onwards because reg15A did not fall within the scope of s6(1). If so, that factor would make the illegal obtaining of SEF2 forms from receivers during the period in question more reprehensible than would otherwise have been the case, and would thus be relevant to the exercise of the Court's discretion to exclude evidence.

There is a controversy as to the extent to which it was realised, or ought to have been realised, within AFMA in 1992 that reg15A was repealed with effect from 3 February 1992 and was incapable of preservation by s6(1). That controversy centres on evidence given by two AFMA officers, Mr Palmer and Mr Ryan, on the voir dire. Mr Palmer has been AFMA's principal legal officer, and head of its legal department, ever since it came into existence, having been seconded to the AFS at about the end of August 1991. Mr Ryan, whom I have already referred to as the author of the circular of 16 January 1992, was the manager of AFMA's Monitoring Unit from 3 February 1992 until January 1993, and has worked for AFMA in other positions ever since.

Mr Palmer gave evidence that he turned his mind to the scope of s6, apparently at or about the time of the transition from the 1952 Act to the 1991 Act, and formed the view that, if it were not interpreted widely, there could be a hole in the management arrangements in relation to anything that could not be related in some way to a licence. He gave evidence to the effect that he decided that a wide interpretation of s6 would be correct, and that he told no-one what he had been thinking about the consequences of it being given a narrow interpretation. Regulation 15A was drafted within the Office of Legislative Drafting pursuant to instructions from the legal section of the AFS, headed by Mr Palmer, after the FLCP Act received the Royal Assent, but before it commenced. Mr Palmer said a number of times in his evidence that he had been involved in providing the drafting instructions for the new regulation, but he resiled from that evidence after seeing a document which, he said, indicated that someone other than him had been responsible within his office for attending to the making of the regulation. Ms Powell QC submitted that I should make findings that Mr Palmer realised all along that s6(1) was too narrow to preserve the operation of reg15A; that he realised that receivers could not be compelled to complete and submit returns after the commencement of the 1991 Act without an amendment to the FLCP Act, and that no such amendment could be obtained in time because of the Parliamentary summer recess; and that he decided that the best way to ensure that receivers continued to record and report catch information was to make them believe, falsely, that they were obliged by a regulation to do so. I reject that submission. My impression of Mr Palmer is that he was honest, but not very good at what he did. This accords with evidence given before me some seven months ago, at an earlier stage in this trial, by AFMA's first Chairperson, Mr McColl, to the effect that the AFMA board became unhappy in 1993 about the quality of its in-house legal advice.

An arrangement whereby receivers completed and submitted SEF2 forms was important because it created an obstacle to the understatement of catches by fishermen, and provided more accurate information as to the quantities of fish caught by operators who were subject to quotas than the corresponding information submitted by fishermen based on estimates at the times of unloading. Having perceived some degree of risk that s6 might be given a narrow interpretation which could make a hole in AFMA's management arrangements, Mr Palmer should have alerted the senior management of AFMA to that risk and to the need for an urgent statutory amendment to obviate it. The principal legal officer of a statutory authority administering a multi-million dollar industry ought to be expected and relied upon to identify possible problems on his or her own initiative, to propose solutions, and to advise as to what must be done if no solution is found or implemented. I think Mr Palmer failed in his duty by not bringing his thoughts as to the scope of s6 to the attention of his superiors, but I would characterise that failure as a product of honest false optimism rather than wilful blindness. Since an appropriate statutory amendment, even an urgent one, would have taken some time to arrange, Mr Palmer should have invited his superiors or the board to decide not to continue demanding that receivers complete and lodge SEF2 forms, but he did not do that. However reprehensible his personal failures in relation to reg15A might have been, it must also be significant that the risk that reg15A was not preserved was not appreciated by the AFMA hierarchy.

Mr Ryan was personally responsible for monitoring reporting arrangements for the year 1992. He was well aware of the significance of receivers' SEF2 forms, the repeal of the 1952 Act, the existence of reg15A, and the fact that reg15A could survive the repeal only if the FLCP Act preserved it. Although the relevant legislation was available to him, he had no recollection of having looked at the FLCP Act, s6, with a view to satisfying himself that it preserved reg15A. Although in-house legal advice was available to him, he did not seek advice as to whether the operation of reg15A was preserved. Ms Powell QC submitted that he should have either checked the legislation for himself, or else sought advice about it; that he knew he was obliged to take one of those two courses; and that he was reckless in taking neither. Although his subsequent conduct in relation to the illegal obtaining of SEF2 forms from receivers in 1993 does him no credit, I do not think the criticisms made of him in relation to reg15A are justified. He was not a lawyer. Statutory interpretation was not part of his job. The AFS and AFMA had in-house lawyers whom its other officers should have been entitled to rely upon to advise of any legal problems concerning the transition to the 1991 Act without being asked. I know that the board had concerns about the performance of its in-house lawyers, but I have no evidence to suggest that officers at Mr Ryan's level were aware of their shortcomings in 1992.

Aftermath of the Austral Fisheries case: 10 September to 31 December 1992

I will deal with the Crown's submission on its merits, without deciding whether the evidence and argument presented on behalf of the Crown was of such a nature to warrant entertaining that submission.

As I have said, the documents that were excluded by my determination of 29 October 2001 included all SEF1 and SEF2 forms relating to fishing activities between 10 September 1992 and 31 December 1992. My reasons for excluding them appear fully in R v Turner (No 14) (supra). In summary, the situation was as follows. On 28 July 1992, O'Loughlin J held in Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy (supra) that par11 of the 1991 management plan was void for unreasonableness. If that paragraph was void, it followed that no quota units had been allocated or assigned pursuant to the plan. The two log-book notices of November 1991 applied only to the masters of boats in respect of which units had been allocated or assigned under the plan. Regulation 15A was also expressed to apply only to "SEF species taken by a boat in relation to which units under the Management Plan have been allocated or have been assigned as a result of a transfer". It followed that the recording and reporting requirements in relation to SEF2 forms were of no effect if par11 was void. That consequence was apparently understood by AFMA officers, at least following a meeting held on 9 September 1992. However AFMA continued to demand that masters and receivers complete and submit SEF1 and SEF2 forms for the rest of 1992, hoping that the decision of O'Loughlin J would be reversed by the Full Court on appeal. I took the view that the illegal obtaining of SEF1 and SEF2 forms in such circumstances involved such a reckless disregard of the rule of law that all such forms relating to fishing undertaken between 10 September 1992 and 31 December 1992 should be excluded from the evidence. Ms Read submitted that I should vary my determination so as not to exclude any of those forms.

Ms Read sought to tender on the voir dire a quantity of documents apparently produced from AFMA's files, but defence counsel did not consent to the tender. I studied the documents in question, heard Ms Read's submissions in relation to them, and in relation to the Crown's application generally, and decided that the evidence sought to be tendered and the arguments advanced were not sufficient to warrant the variation of my previous determination. My reasons are as follows.

The documents which Ms Read sought to tender, and the voir dire exhibits to which she referred me, indicated that, before the judgment in Austral Fisheries, AFMA officers had given earnest consideration to the implications of an adverse finding. They also indicated that, after the judgment, a great deal of work was done to place AFMA's house in order in respect of quota allocations, the allocation formulae for all species including orange roughy having been held unreasonable in all the circumstances. That work culminated in the Minister making purported amendments to the plan with a view to increasing to reasonable levels the quota allocations to unit holders who had been disadvantaged by the original unreasonable formulae. As the 1991 management plan was a nullity, the purported amendments were of no effect, but this was not realised until years later. The purported amendment determination was signed and gazetted in good faith, and the invalid scheme, as so amended, was administered by AFMA in good faith for the rest of 1992. AFMA and the Minister relied upon legal advice from appropriately senior members of the legal profession in relation to the amendments and the institution of a Full Court appeal from the decision of O'Loughlin J, with one exception: senior counsel had advised AFMA that amending the plan would damage the chances of the appeal succeeding, but AFMA decided, in the best interests of the fishing industry, to procure an amendment by the Minister.

However, Ms Read's submissions and the documents she relied on do not make any significant difference, in my view, to the factual matrix on which my previous determination was based. The following matters were all clear to me at the time of my previous determination. Paragraph 11 was so linked to the rest of the 1991 management plan that the result of that paragraph being void was that the whole plan was void. As a legislative instrument, the plan was void ab initio, regardless of whether a court declared it void, regardless of when any such declaration was made, and regardless of whether a stay was granted in respect of any such declaration. The plan was a nullity that could not be repaired or given life by an amendment. There was nothing to suggest that anyone in AFMA doubted the effectiveness of the amendment to the plan as a means of establishing a valid and reasonable regime for the allocation and assignment of quota units. AFMA officers no doubt sincerely believed that the conclusions reached by O'Loughlin J were wrong. These matters could all be said to weigh against the exclusion of the evidence in question, but I was aware of them all at the time of my previous determination.

There is no doubt that AFMA continued to obtain SEF1 and SEF2 forms from masters and receivers in the latter part of 1992 as if there were legislative obligations requiring those forms to be completed and submitted. Nothing put to me causes me to doubt the correctness of my finding that, after 9 September 1992, AFMA demanded and received SEF2 forms knowing that it followed from the Austral Fisheries decision that its demands for those forms were unlawful. There is nothing in the evidence before me, nor in the evidence which Ms Read unsuccessfully sought to tender, to suggest that anyone in AFMA gave any thought to the impact of the purported amendments to the 1991 management plan in relation to that state of affairs. On the contrary, the fact that the purported amendments were so worded as to assume the validity of par11 suggests that AFMA officers preferred to continue to treat the decision of O'Loughlin J in Austral Fisheries, and the similar decision of Burchett J in La Macchia v Crean (1992) 110 ALR 201 with reckless disregard. The critical factor that tipped the balance in favour of excluding the SEF1 and SEF2 forms for the period from 10 September 1992 to 31 December 1992 was that AFMA illegally obtained them with reckless indifference to the possibility, which any public authority or public servant should have treated as a certainty, that O'Loughlin J and Burchett J were correct, and that there was therefore no legislative obligation on anyone to complete or submit SEF1 or SEF2 forms. No new documents or new arguments have shaken me from the conclusion that I reached in relation to that conduct.

Permit holders' forms in 1993

As a result of Mr Sealy applying for me to exclude receivers' SEF2 forms from 1992, Mr Palmer gave evidence on the voir dire some weeks ago. Ms Powell QC cross-examined him, asking him a number of questions relevant to his credit which concerned his perceptions in relation to defects in the legislative regime concerning fishermen's SEF2 forms in 1993. It was as a result of Mr Palmer's evidence that she sought the exclusion of all permit holders' forms from 1993.

As I explained in R v Turner (No 6) (supra) at pars24 - 27 and R v Turner (No 14) (supra) at pars23 - 26, there was no valid legislative basis for AFMA to require fishermen to complete or submit SEF1 or SEF2 forms in 1993, for a number of reasons. Although the 1991 Act, s42, authorised the making of regulations requiring the holders of fishing concessions to complete records and supply information, the critical regulation was ultra vires because it infringed the rule against sub-delegation. The Fishing Management Regulations, reg32(1), purported to delegate the power to make determinations prescribing forms of log-book to the chairperson of AFMA, but the Governor-General was not authorised to delegate the power conferred by s42(1) to anybody. The chairperson of AFMA published Log-Book Notices Nos SEF1 and SEF2 in the Gazette on 22 December 1992 in purported pursuance of reg32(1). They purported to require the completion and submission of SEF1 and SEF2 forms respectively. Even if reg32(1) had been valid, both notices would still have been nullities because they failed to comply with reg32 in certain respects. Neither specified a kind of fish, as required by reg32(1)(a), but purported to refer to all fish, except for one family of prawns. Each purported to require the use of the November 1991 forms of log-books until users individually received the new forms of log-books, despite reg32(2) being worded so as to require only one form of log-book to be prescribed. Each purported to apply for a period starting less than 14 days after notification in the Gazette, contrary to reg32(8), and ending more than three years after that notification, contrary to reg32(9), but the Acts Interpretation Act, s46(1)(b), would have preserved their validity in respect of the period from 5 January 1993 to 22 December 1995 if there had been no other irregularity. Although s42 authorised the making of recording and reporting regulations applicable to the holders of fishing concessions, reg33, as in force at the time of the determinations of 22 December 1992, provided for the imposition of recording and reporting requirements, not on the holders of fishing concessions, but on the masters of vessels. The new SEF1 and SEF2 forms referred to in those determinations contained instructions requiring permit holders or their representatives to complete and lodge them. Clearly reg33 was ultra vires. Had reg33 been valid, the new forms would have been ultra vires. The fact that the new forms were worded consistently with s42 does not improve the situation because they did not accord with any regulation in force at the time of the determinations.

Significant amendments were made to the Fisheries Management Regulations by the Fisheries Management Regulations (Amendment) (Statutory Rules 1992 No 445), which were notified in the Gazette on 24 December 1992, and took effect from that day pursuant to the Acts Interpretation Act, s41(1)(b)(iv). A number of regulations which had conferred powers on AFMA's chairperson and/or its managing director were amended so as to provide that the relevant powers were conferred on AFMA. By virtue of the Fisheries Administration Act, s44(3), the managing director could do in the name of AFMA anything that it could do. Significantly reg32, which related to log-books, was amended to take powers away from the chairperson and give them to AFMA. The invalid log-book notices gazetted on 22 December 1992 took the form of determinations by AFMA's chairperson. The amendment of reg32 did not cure its invalidity, since the Governor-General was not authorised by the 1991 Act to delegate the power conferred by s42(1) to AFMA, just as he was not authorised to delegate it to the chairperson.

Further, the original reg33, which required masters to complete log-books, was repealed and replaced by a new reg33 which required the holders of statutory fishing rights and fishing permits, or persons acting on their behalf, to complete log-books. The original reg33 consisted of five subregulations, whereas the new reg33 consisted of only three subregulations. This change made nonsense of the log-book notices of 22 December 1992, each of which expressly provided "that subregulations 33(2), 33(3) and 33(4) of the Regulations apply in respect of the forms of log-book referred to in paragraph 1 of this Notice".

Ms Powell QC submitted that Mr Palmer sought and obtained the amendments to regs32 and 33 because he had doubts as to their validity; that he knew AFMA was compelling fishermen to submit SEF2 forms in 1993 on the basis of log-book determinations made in pursuance of regulations of dubious validity without any fresh determinations having been made following the amendments of 24 December 1992; that he did not tell anyone of these matters until September 1993; that his conduct in relation to the obtaining of SEF2 forms from fishermen in 1993 amounted to a deliberate or reckless disregard of the law; and that all fishermen's SEF1 and SEF2 forms for 1993 ought therefore to be excluded from the evidence.

Mr Palmer attended the meeting on 13 September 1993 that I referred in R v Turner (No 14) (supra) at par70. It concerned a prosecution that was then pending in Hobart. It was attended by a Tasmanian barrister who had been briefed to prosecute, his instructing solicitor, and various officers from AFMA's legal section. A question was raised as to whether a regulation concerning the chairperson of AFMA was ultra vires. I have inferred that reg32, in its original form, was the regulation discussed. However the question as to the validity of the regulation was left open at the meeting. I am not able to make any finding as to who queried the validity of the regulation, nor am I able to make a finding as to whether that querying resulted from a perception of a possible sub-delegation problem or from some ill-considered idea concerning some other basis for invalidity.

In my view the thinking which underlay the amendment to reg32 is that which appears in a letter from the chairperson of AFMA to the Minister dated 30 November 1992, by which approval for the giving of instructions for the amendment was sought. The relevant passage read as follows:

"Other proposals are more in the way of housekeeping and include:
· deleting references to 'Chairperson' and substituting 'AFMA'
The present Regulations give a number of responsibilities to the 'Chairperson' which include approval of logbooks and directions relating to the placement of observers on fishing vessels. As the Regulations essentially cover matters of an operational nature, in my view it would be more appropriate if such functions were exercised by AFMA which by subsection 44(3) of the Fisheries Administration Act 1991 effectively means by the Managing Director."

Mr Palmer may well have doubted the validity of reg32, in its original form, on some misconceived basis without perceiving even the possibility of a sub-delegation problem. However I am reasonably satisfied that he did not doubt its validity on any sensible basis prior to the meeting on 13 September 1993. I simply cannot imagine him spotting the sub-delegation problem.

Mr Palmer doubted the validity of the original reg33, and was right to do so. As I have said, he obtained an amendment so that the new reg33 accorded with s42 and required permit holders and the holders of other fishing concessions to complete log-books whenever they engaged in fishing "in an area to which an approved logbook relates". Being unaware of the sub-delegation problem that invalidated reg32, and being aware that the log-book determinations of 22 December 1992 had been made pursuant to the old reg33 whose validity had been in doubt, he ought to have initiated the making of fresh log-book determinations pursuant to the new reg33. He did not do so and, when cross-examined, was unable to advance a satisfactory explanation for not having done so. He said, "I think we thought the current determinations continued", referring to the notices of 22 December 1992. At the meeting of 13 September 1993, someone raised a question as to whether there had been a need for fresh log-book determinations and notices after the amendment of 24 December 1992. That question was left open at the meeting. I am unable to make a finding as to who asked it. But I accept, on the basis of Mr Palmer's oral evidence, that he did not perceive a need for a fresh log-book determination before that meeting.

There is no evidence to suggest that Mr Palmer or anyone else noticed that the reference in the December 1992 log-book determinations to regs33(2), 33(3) and 33(4), related to a repealed regulation, and that the new reg33 did not include a subreg(4).

I accept that Mr Palmer's failure to do anything about fresh log-book determinations prior to the meeting of 13 September 1993 was the result of an oversight, rather than dishonesty or recklessness. Thereafter, I am reasonably satisfied that his failure to do anything about the concerns that were raised at the meeting resulted from inertia. That inertia was shared by other AFMA legal officers, but the legislative difficulties that should have been addressed were apparently not brought to the attention of senior management or the AFMA board. When I made my determination of 29 October 2001 I took into account the evidence as to the discussion at that meeting and the possibility that Mr Palmer had perceived a need for fresh log-book determinations and notices prior to that meeting, possibly months prior to it. I now accept that he did not perceive any such need prior to the meeting.

Re-exercise of the exclusionary discretions as to SEF1 and SEF2 forms

As a result of the evidence that I have received on the voir dire on and since 31 January 2002, and as a result of the submissions that have been made since that date, my findings of fact and law that led to my determination of 29 October 2001 have been added to in various respects, nearly all of which weigh in favour of the accused. The appropriate course is for me to take into account all of the matters that I took into account at the time of that determination, and all of my new findings of fact and law, and then to decide whether the exclusionary discretions that I referred to in R v Turner (No 14) (supra) should be exercised so as to exclude SEF1 and/or SEF2 forms that were not previously excluded. The new matters that I must take into account, omitting those that I have already decided have no significance at all, can be summarised as follows:

(a) The AFS and AFMA tolerated and encouraged illegal fishing in the "South East Fishery" from 1 January 1992 to 15 February 1992 by boats that were unlicensed, and by licensed boats to which quota units had been allocated but not assigned.
(b) Unless the Belinda's old licence, due to expire on 31 March 1992, had not been surrendered, if it was used to fish for orange roughy on a voyage in January 1992 as alleged by the Crown, the SEF1 and SEF2 forms allegedly completed and submitted in respect of that voyage were therefore illegally obtained.
(c) Even if the 1991 management plan, the licences issued on 30 January 1992 for the boats relevant to this case, and the Minister's s8 prohibition notice of December 1991 had all been valid, which none of them were, the November 1991 log-book determinations would not have been valid, and the SEF1 and SEF2 forms obtained in 1992 would still have been illegally obtained, because those log-book notices were not confined to any specified kind or kinds of fish as required by the Fisheries Regulations, reg17(1)(a), though this was something that AFS and AFMA officers were apparently never alert to.
(d) Mr Palmer, but only Mr Palmer, was aware of a risk that the FLCP Act, s6, might be interpreted so narrowly that receivers would not be required to complete or submit SEF2 forms from 3 February 1992 to 31 December 1992. As a matter of law, that was the true situation, but he was falsely optimistic, did not believe that to be the case, and told no-one of his concerns.
(e) Mr Palmer, whilst not positive that reg33 in its original form was ultra vires, which it was, was aware of the possibility that it was, but had not thought through the consequences. One of those consequences was that there could not have been valid legislative requirement for permit holders or their representatives to complete or submit SEF1 or SEF2 forms in 1993. But if he had thought through the consequences of the invalidity of the original reg33, he would probably only have arranged for fresh log-book determinations and notices. Unless he had also recognised that reg32 was ultra vires before and after the amendment of 24 December 1992, and arranged for a new regulation to be made, there would still have been no valid requirement for the completion or lodgement of SEF1 or SEF2 forms in 1993. He did not doubt the validity of reg32 on any sensible basis.

Taking all of these matters into account, I do not think that, separately or collectively, they warrant the exclusion of any further SEF1 or SEF2 forms. The most reprehensible conduct involved was that the AFS and AFMA tolerated illegal fishing in the first 46 days of 1992. The fact that 1992 commenced should not have come as a surprise to the AFS, and its officers should have been ready for it. But, since they were not, they had to decide whether the rule of law should give way to pragmatism, or whether fishing activity in a multi-million dollar fishery should be stopped until they completed appropriate paperwork. In those circumstances, it is my view that tolerating illegal fishing was far less reprehensible than compelling receivers to complete and submit SEF2 forms in 1993 knowing that they were under no legislative obligation to do so, and far less reprehensible than compelling masters and receivers to complete and submit SEF1 and SEF2 forms after realising the implications of the judgment of O'Loughlin J in Austral Fisheries, and soon afterwards the judgment of Burchett J in La Macchia, with reckless disregard to the possibility that what was said in those judgments was correct. At worst, the AFS knowingly illegally obtained SEF1 and SEF2 forms in respect of only one voyage by one boat relevant to this case in respect of that 46-day period of lawlessness.

Taking into account all of these matters, and all of the matters that I took into account in R v Turner (No 14) (supra), and assuming in relation to each factual question on which I have been unable to make a finding that the facts were as defence counsel asserted them to be, I do not think that the conduct of AFS and AFMA officers, collectively or individually, or when viewed in relation to a particular period or over all relevant periods, was so reprehensible as to warrant the exclusion of any further SEF1 or SEF2 forms. That is to say, the new evidence and new arguments presented since my determination of 29 October 2001 did not warrant excluding any additional SEF1 or SEF2 forms from the evidence. Nothing tendered or put to me in relation to the "derivative" and "ancillary" evidence had any impact in relation to this conclusion, since the obtaining of that evidence did not involve any additional illegality or impropriety.

Derivative and ancillary evidence

Counsel for all of the accused submitted that I should exclude (a) all evidence as to the use of information contained in the SEF2 forms that I have decided to exclude; and (b) all evidence as to the fishing activities of the accused and companies associated with them during the period from 10 September 1992 to 31 December 1992 inclusive. Evidence in the first of those categories has been referred to as "derivative evidence". Evidence in the second category has been referred to as "ancillary evidence". It is necessary to explain the context in which those submissions have been made.

The Crown case is that the accused conspired to defraud AFMA, not in such a way as to imperil any economic interests, but by conduct that they knew was likely to deflect public officers from the performance of their public duties, such conduct being the submission of SEF1 and SEF2 forms in which catches of orange roughy were understated. I held in R v Turner (No 4) (supra) that such conduct would amount to fraud for the purposes of the Crimes Act, s86A. The Crown alleges that the accused were parties to a continuing conspiracy; that the conspiratorial agreement was entered into in December 1991 or January 1992; and that the conspiracy was maintained until about December 1993. Essentially the accused are charged with entering into and maintaining a conspiratorial agreement. The alleged lodging of SEF2 forms containing false information is not part of the criminal conduct which is the subject of the charge, but is relied on by the Crown as evidence of that conduct. The lodging of false forms is said to be the product or fruit of the alleged conspiracy. Evidence that false forms were lodged is evidence which tends to prove that an agreement to lodge false forms was entered into and maintained over a period of time.

To obtain a conviction, the Crown will need to establish beyond reasonable doubt inter alia that AFMA and its officers performed public duties; that the lodgement of false SEF1 and SEF2 forms was likely to deflect AFMA and its officers from the performance of their public duties; and that the likelihood of such deflection was known to the accused. The Crown proposes to call evidence from AFMA officers detailing the use that was made of the catch data in SEF2 forms submitted in 1992 and 1993. Quotas in respect of orange roughy in the "South East Fishery" were allocated to licensees in 1992 under the invalid 1991 management plan, and to permit holders in 1993 pursuant to valid policy arrangements. In respect of each operator (ie, each licensee or permit holder) AFMA maintained quota holder transaction records. These included a running record as to the allocation, assignment and use of orange roughy quotas in each geographical sector of the fishery. When SEF2 forms were received in respect of a voyage, AFMA officers recorded the date of landing the fish, the boat, the SEF2 form number, and the quantity of fish in kilograms. The figures in SEF2 forms submitted by receivers were always used in preference to those submitted by fishermen, ie, masters or permit holders. AFMA's policy was to use the figures from their forms only when no form was received from a receiver, but that situation was either rare or non-existent. Running balances as to unused quota units, expressed in kilograms, were recorded in the quota holder transaction records. The weight of each catch was subtracted from the previous balance to give a new balance. This was referred to as "decrementing the quota". The Crown wishes to rely on these quota holder transaction records to establish that AFMA officers were discharging their public duties in the management of the fishery by keeping track of the use by quota holders of their quota entitlements. There are various other types of documents that were prepared by AFMA officers in 1992 and 1993 upon which the Crown proposes to rely, or might seek to rely, to establish the use of data from SEF2 forms by AFMA officers in the course of discharging public duties. Defence counsel sought the exclusion of such documents, and of evidence as to them, because their admission would provide the jury with evidence of the lodgement and contents of every SEF2 form that I excluded on 29 October 2001.

The Crown proposes to tender a substantial quantity of documentary evidence as to the fishing activities of the accused and related companies with a view to proving that orange roughy catches were understated in SEF1 and SEF2 forms. The relevant aspects of the Crown case can be summarised as follows. The accused Turner was employed by Victrawl Pty Ltd ("Victrawl") at Port Lincoln in South Australia as its business manager. The accused Jansen was originally the shore manager for Victrawl in Hobart. He was replaced by the accused Tedesco at an early stage in the conspiracy. Victrawl owned two vessels ¾the Lorna Dorn and the Roza-S. It managed and operated three other vessels ¾the Belinda, the Monika and the Teena-B. All five vessels caught orange roughy in the "South East Fishery". The shore managers, Mr Jansen and Mr Tedesco, oversaw the unloading of the vessels, including the weighing of the catches and the false recording of the catch details. The accused Coulston was the master of the Lorna Dorn. He entered into special arrangements for him and his crew to be paid on the basis of the true catches, rather than the under-recorded catches. The accused Lee was the managing director of a company named Trident Seafoods Pty Ltd ("Trident") which processed orange roughy landed from the relevant boats in Tasmania. Mr Jansen, Mr Tedesco and Mr Coulston completed and/or signed false SEF2 forms. Mr Lee directed employees of his company to submit false SEF2 forms and, together with each of Mr Jansen, Mr Tedesco and Mr Coulston, caused the figures as to orange roughy catches in SEF2 forms lodged by Trident to match the figures in SEF2 forms lodged by or on behalf of the masters of the vessels and the permit holders. Mr Turner had documentation as to codes in his possession. That documentation allowed him to calculate the actual quantity of fish caught by reference to false catch figures. He calculated the pays for the crews based on codes indicating the percentage by which each understated catch had been understated. He acted in furtherance of the conspiracy by creating, or causing to be created, and causing to be delivered to crew members of the vessels, master crew share sheets which intentionally understated catches.

Subject to my exclusionary rulings, the documentation that the Crown proposes to tender in respect of each allegedly false SEF2 form comprises the following:

(a) The SEF2 forms. (These forms were issued and completed in quadruplicate. One copy was lodged by or on behalf of the master or permit holder, one copy kept by the master or permit holder, one copy lodged by or on behalf of the receiver, and one copy kept by the receiver.)
(b) An invoice billing Trident for the catch, showing the understated weight of the catch that appears on the SEF2 form, an inflated price per kilogram, and the true price that Trident was charged for the catch.
(c) An invoice from the fish unloader, billing Trident for the unloading of the catch. (It is alleged by the Crown that the unloaders charged a flat rate for unloading the fish, but billed the declared part of the catch as "wages" and the undeclared part of the catch as "overtime".)
(d) Fish unloading dockets generated by Trident which recorded the loaded weight, empty weight, and net weight of the bins containing the catch.
(e) Summary sheets generated by Trident, recording the true weight of the bins of fish unloaded.
(f) Trident's production reports, recording the true weight of fish received at Trident's factory.
(g) Purchase payment records generated by Trident, recording the understated weight of the catch, an inflated price per kilogram, and the true price of the catch.
(h) Sales reports said to have been sent from Victrawl in Hobart to Victrawl in Port Lincoln, and to have been used by Mr Turner to prepare master crew share sheets for the purposes of calculating payments to crews. (It is alleged that, whenever a catch was understated, a letter of the alphabet was entered in a column headed "book" in the line relating to that catch, and that each such letter corresponded with a code from which Mr Turner could determine the percentage by which the catch had been understated.)
(i) A vessel trip report, understating the quantity of fish consigned, consistently with the SEF2 form.
(j) Master crew share sheets, alleged to have been prepared by Mr Turner and to understate the quantity of fish sold, consistently with the SEF2 form, but to show an inflated crew pay rate, expressed in dollars per kilogram, adopted to compensate the crew for the understatement of the catch.
(k) A table showing the fictitious crew pay rates to be adopted according to the extent of the understatement of the catch and other relevant circumstances.

Mr Rozenes QC submitted that the Crown should be permitted to tender every such document, except the excluded SEF2 forms, in respect of the voyages to which the excluded SEF2 forms relate. Defence counsel rightly pointed out that such a course would enable the jury to infer that SEF2 forms were lodged in respect of each such voyage, containing understated catch figures consistent with those appearing in the invoices to Trident, Trident's purchase payment records, and the crew payment records. They submitted that the ancillary documents relating to each excluded SEF2 form should be excluded from the evidence so that my previous determination could not be circumvented. Mr Rozenes QC submitted that it was appropriate for the Crown to seek to tender the ancillary documents, not with a view to proving the lodgement and contents of the excluded SEF2 forms, but as evidence of the continuation of the alleged conspiracy during the periods to which the excluded forms relate, and of the participation of the accused in the alleged conspiracy during those periods. No doubt the ancillary documents constitute evidence relevant to those important issues. But defence counsel argued that they should be excluded, either as an automatic consequence of my previous determination, or pursuant to a fresh exercise of an exclusionary discretion.

Defence counsel submitted that my earlier determination precluded the Crown from tendering any of the derivative evidence and ancillary evidence on the trial. They said that such evidence was within the scope of my earlier determination; that it followed as night follows day that such evidence could not be tendered; that it would be an abuse of process to seek to tender such evidence after my earlier determinations; and that "Res judicata pro veritate accipitur". Those submissions were misconceived. My previous determination was the result of an application by defence counsel for the exclusion of all SEF1 and SEF2 forms, and of all documents seized upon the execution of invalid search warrants, but not for the exclusion of anything else. That application did not relate to the derivative and ancillary evidence, except to such extent, if any, as that evidence was coincidentally seized upon the execution of the warrants in question. I was not asked to exclude any evidence on the basis of it being derived from or ancillary to any SEF1 or SEF2 forms. As the previous application did not relate to derivative or ancillary evidence, that evidence should not be excluded automatically, or practically automatically, unless the factors relevant to its admission or exclusion are identical with those relevant to the admission or exclusion of the forms. In fact there are different considerations applicable to the derivative evidence and the ancillary evidence, because each type of evidence has a relevance that the excluded forms do not have. The derivative evidence is, inter alia, relevant to the issues as to the performance of public duties by AFMA officers, and the likelihood or otherwise that the lodgement of false SEF2 forms would deflect them from the performance of public duties. The ancillary evidence is not just evidence tending to prove the lodgement and contents of the excluded forms but, like the excluded forms themselves, is evidence that tends to prove the continuation of the alleged conspiracy and the participation of the accused, or some of them, in it. Because the derivative evidence and the ancillary evidence each have a relevance that the excluded forms do not have, the only appropriate course is to consider the exercise of the Court's exclusionary discretions separately in relation to each such category, ie, separately from the exercise of discretion in respect of both the other category and the excluded forms.

I see no reason to exclude the whole of any document in which derivative evidence appears. If it is appropriate to exclude the derivative evidence, that can be done by making copies of the original documents, with the derivative evidence blanked out. If the residue of the document has relevance and the Crown wishes to rely on it to prove the performance of duties and/or the likelihood of deflection therefrom, it can be tendered in that form. So far as the derivative evidence within each such document is concerned, the only significant issue is whether it falls within the scope of any exclusionary discretion. If it does, then I see no reason not to exercise the discretion in the same way as I have exercised it in respect of the excluded forms.

The discretion that I exercised on 29 October 2001 was the Court's public policy discretion to exclude evidence that has been illegally or improperly obtained. To understand the scope of that discretion, it is necessary to consider its purpose. It exists because convictions obtained by the aid of unlawful acts may be obtained at too high a price: R v Ireland (1970) 126 CLR 321 at 335. It exists because of "the public interest in ensuring that public confidence in the justice system is not undermined by the perception that the courts of law condone or encourage unlawful or improper conduct on the part of those who have the duty to enforce the law", as McHugh J put it in Ridgeway v R (1995) 184 CLR 19 at 82 - 83. No aspect of the reasons for the existence of the discretion warrants treating information derived exclusively from an illegally obtained document any differently from the document itself. I think it must follow that not only an illegally obtained document itself, but also the information contained in that illegally obtained document, must be regarded as falling within the scope of the discretion. It would be ludicrous if this were not the case. If, for example, a person unlawfully detained by police officers made a voluntary confession of a crime to them, as happened in Foster v R (1993) 67 ALJR 550, it would be ludicrous if details of the confession could be entered in some sort of custody register which could then be treated as something distinct from the confession itself that fell outside the scope of the public policy discretion. I accept Mr Sealy's submission that the law as to legal professional privilege provides a useful analogy. That privilege "attached to communications, not to pieces of paper": Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 per Gleeson CJ, Gaudron and Gummow JJ at 65. The public policy discretion applies to the information communicated via a piece of paper, and not just to the piece of paper itself. I see no reason to draw any distinction between deliberately false information contained in an illegally obtained document and other information contained in such a document. It must follow that the contents of the SEF2 forms, and even the information that they were lodged, falls within the scope of the exclusionary discretion. There being no basis from treating such information differently from the forms themselves, the Crown must not be permitted to lead any evidence of the lodgement of the forms, nor any evidence as to information derived from the forms.

I turn to the ancillary evidence. Plainly, if the Crown tenders the various types of documents I have described in relation to each catch that was the subject of an excluded SEF2 form, the jury might very well infer, without being asked to, that a false SEF2 form was submitted in respect of every such catch, containing false details consistent with Trident's records. Mr Abbott QC referred me to Ridgeway v R (supra) at 43, where Mason CJ, Deane and Dawson JJ said the following:

"… the learned trial judge should have ruled that all evidence tending to show that the heroin supplied to the appellant had been, or was reasonably suspected of having been, illegally imported should be rejected on public policy grounds. The evidence so excluded should have included any evidence from which any inference of illegal importation might be drawn (eg that heroin is not produced in Australia)."

He and other defence counsel also relied on the judgment of the Privy Council in Lam Chi-Ming v R [1991] 2 AC 212. One of the appellants in that case had confessed to a murder, but the trial judge excluded his confession because he was not satisfied it was voluntary. However he admitted into evidence, without the sound, a videotape showing that appellant directing police officers to a place on the Hong Kong waterfront, and making gestures indicating the throwing of something into the water. Evidence was given of the recovery of a knife from that place. There was no evidence other than the videotape linking the knife with the accused. The Privy Council held that the videotape was evidence of an inadmissible confession, and was therefore inadmissible.

In my view both Ridgeway and Lam Chi-Ming must be distinguished from this case, at least in relation to the ancillary evidence. In Ridgeway, the High Court decided that nothing short of the exclusion of all evidence that tended to prove the importation of the heroin was appropriate as an exercise of the applicable discretion. It does not follow that so drastic a course should be taken in cases involving different facts. Assuming, without deciding the point, that the public policy discretion permits the exclusion of evidence from which the existence, delivery and contents of an illegally obtained document could be inferred, it does not follow that, whenever such a document is excluded from admission into evidence, such ancillary evidence must be similarly excluded. Factors relevant to the ancillary evidence might be inapplicable to the illegally obtained document itself. The illegal conduct might not be so reprehensible as to warrant the exclusion not only of the illegally obtained document, but also of evidence ancillary to it.

Lam Chi-Ming concerned part of the evidence of the making of an involuntary confession. It had nothing to do with the exercise of a discretion. The ancillary evidence in this case amounts inter alia to circumstantial evidence tending to establish the existence, lodgement and contents of the excluded SEF2 forms. When a court is asked to exercise the public policy discretion, it will often be appropriate for categories of documents having different evidentiary status and significance to be considered separately.

Unlike the excluded SEF2 forms, the ancillary evidence relating to them did not come into the possession of the Commonwealth authorities as a result of illegal commands involving deliberate or reckless disregard for the rule of law. On the Crown case, any false statements made in the ancillary documents as to catch quantities, fish prices or crew pay rates, whilst probably made to conceal the falsity of figures in SEF1 and SEF2 forms, must have been made in furtherance of the conspiracy charged. Such documents must therefore be regarded as evidence that supports the Crown's central allegations as to the alleged conspiracy separately from the SEF2 forms and in parallel with them. Assuming, without deciding, that the public policy discretion applies to the ancillary evidence, and that all factual questions as to which I have been unable to make a finding were to be answered in favour of the accused, and taking into account all the matters relevant to the exercise of the public policy discretion that I have referred to in R v Turner (No 14) (supra) and above, I think that these factors weigh so heavily in favour of admitting the ancillary evidence that it should not be excluded.

Mr Sealy developed his submission as to an analogy with the law regarding privileged communications to the extent of submitting that just as a waiver of privilege in relation to one communication will result in privilege being lost in respect of another communication where the result would otherwise be unfair, the exclusion of an illegally obtained document must, in appropriate cases, result in the exclusion of other documents not illegally or improperly obtained. I accept that to be the case for the purpose of these reasons, but only with the reservation that, because the exercise of a discretion is involved, the exclusion of a related document, lawfully and properly obtained, will not automatically follow if, as here, such a document has evidentiary significance that the illegally or improperly obtained document does not have.

Mr Abbott QC submitted that the prejudicial effect of the ancillary evidence exceeded its probative value. I take him to have meant that it would be unfair to the accused for the jury to be provided with evidence from which it might deduce, uninvited, that the excluded SEF2 forms were lodged and that they contained false catch information identical to that in Trident's records. However, in my view the probative value of the ancillary evidence, providing as it does independent evidence that the alleged conspiracy was ongoing, outweighs any such prejudicial effect.

It was not suggested that any of the ancillary evidence was unfairly obtained. I therefore see no scope for the exclusion of any of the ancillary evidence in the exercise of the Court's unfairness discretion.

If the overall discretion discussed in R v Swaffield (1998) 192 CLR 159 is applicable in relation to non-confessional evidence, I see no basis for any result other than the one I have arrived at by considering the Court's more specific discretions.

Conclusion

For these reasons, I made a determination on 6 March 2002 as follows:

1I decline to exclude from the evidence on the trial any of the SEF1 forms and SEF2 forms not excluded from the evidence by my determination of 29 October 2001.
2I decline to vary that determination so as to permit any SEF1 forms and SEF2 forms relating to fishing activities between 10 September 1992 and 31 December 1992 to be tendered upon the trial.
3I decline to exclude from the evidence on the trial any of the evidence described by defence counsel as "ancillary evidence" in respect of excluded SEF1 forms and SEF2 forms.
4Those parts of the evidence described by defence counsel as "derivative evidence" in respect of excluded SEF1 forms and SEF2 forms that relate or record the existence, lodgement or contents of such forms, and figures calculated by reference to the contents of such forms, will be excluded from the evidence.
5The rest of each document that includes such "derivative evidence" may be tendered on the trial.