Radar Holdings Pty Ltd v State of Western Australia
[2004] WASC 251
RADAR HOLDINGS PTY LTD -v- STATE OF WESTERN AUSTRALIA [2004] WASC 251
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 251 | |
| Case No: | CIV:1969/2003 | 10 MARCH 2004 & 20 MAY 2004 | |
| Coram: | LE MIERE J | 26/11/04 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Parties entitled to a declaration that Fish Resources Management Act 1994 (WA), s 47, is partly but not wholly invalid | ||
| A | |||
| PDF Version |
| Parties: | RADAR HOLDINGS PTY LTD (009 287 585) STATE OF WESTERN AUSTRALIA |
Catchwords: | Constitutional law Section 109 Commonwealth Constitution Inconsistency between State and Commonwealth Act Whether s 47 of Fish Resources Management Act 1994 (WA) is beyond power "Fishing" Statutory construction Extent of operation of Fisheries Management Act 1991 (Cth) Actual inconsistency Operational inconsistency Extent of the inconsistency Whether restriction imposed by State Act alters, impairs or detracts from law of Commonwealth Whether Commonwealth Act covers the field |
Legislation: | Commonwealth Constitution, s 109 Fisheries Management Act 1991 (Cth), s 4, s 10, s 32, s 76, s 84, s 85, s 91, s 92, s 95, s 97 Fisheries Management Regulations 1992 (Cth), reg 10 Fish Resources Management Act 1994 (WA), s 5, s 47 Fish Resources Management Regulations 1995 (WA), reg 10, Sch 2 Pt 1, Sch 2 Pt 2 |
Case References: | Commonwealth v Western Australia (1999) 196 CLR 392 Telstra Corporation Ltd v Worthing (1999) 197 CLR 61 A Raptis & Son v South Australia (1977) 138 CLR 346 Airlines of New South Wales Pty Ltd v New South Wales (Airlines case (No 1)) (1964) 113 CLR 1 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' case) (1920) 28 CLR 129 Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 Attorney General v Great Eastern Railway Company (1880) 5 AC 473 Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 187 ALR 487 Botany Municipal Council v Federal Airports Corporation (Third Runway case) (1992) 175 CLR 453 Clyde Engineering Co Ltd v Cowburn (Cowburn's case) (1926) 37 CLR 466 Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151 Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47 Credit Tribunal, Re; Ex parte General Motors Acceptance Corp, Australia (GMAC case) (1977) 137 CLR 545 Hume v Palmer (1926) 38 CLR 441 Joye v Beach Petroleum NL & Cortaus Ltd (in liq) (1996) 67 FCR 275 McLean, Ex parte (1930) 43 CLR 472 Miller v Miller (1978) 141 CLR 269 O'Sullivan v Noarlunga Meat Ltd (Noarlunga case) (1954) 92 CLR 565 R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23 R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 Residential Tenancies Tribunal of New South Wales & Henderson, Re (1997) 190 CLR 410 Sankey v Whitlam (1978) 142 CLR 1 Small (Shiell's Trustee) v Smith (1884) 10 AC 119 Smith v Federal Commission of Taxation (1987) 164 CLR 513 TA Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177 Technical Products Pty Ltd v State Government Insurance Office (QLD) (1989) 167 CLR 45 Troncone v Aliperti (1994) 6 BPR 13,291 Victoria v Commonwealth (Kakariki/Shipwrecks case) (1937) 58 CLR 618 Western Australia v the Commonwealth; Wororra Peoples & Biljabu v State of Western Australia (Second Native Title Act Case) (1995) 183 CLR 373 Wilkes v Johnsen (1999) 21 WAR 269 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Constitutional law - Section 109 Commonwealth Constitution - Inconsistency between State and Commonwealth Act - Whether s 47 of Fish Resources Management Act 1994 (WA) is beyond power - "Fishing" - Statutory construction - Extent of operation of Fisheries Management Act 1991 (Cth) - Actual inconsistency - Operational inconsistency - Extent of the inconsistency - Whether restriction imposed by State Act alters, impairs or detracts from law of Commonwealth - Whether Commonwealth Act covers the field
Legislation:
Commonwealth Constitution, s 109
Fisheries Management Act 1991 (Cth), s 4, s 10, s 32, s 76, s 84, s 85, s 91, s 92, s 95, s 97
Fisheries Management Regulations 1992 (Cth), reg 10
(Page 2)
Fish Resources Management Act 1994 (WA), s 5, s 47
Fish Resources Management Regulations 1995 (WA), reg 10, Sch 2 Pt 1, Sch 2 Pt 2
Result:
Parties entitled to a declaration that Fish Resources Management Act 1994 (WA), s 47, is partly but not wholly invalid
Category: A
Representation:
Counsel:
Plaintiff : Mr G I Macnish
Defendant : Ms J C Pritchard
Solicitors:
Plaintiff : Cocks Macnish
Defendant : State Solicitor
Case(s) referred to in judgment(s):
Commonwealth v Western Australia (1999) 196 CLR 392
Telstra Corporation Ltd v Worthing (1999) 197 CLR 61
Case(s) also cited:
A Raptis & Son v South Australia (1977) 138 CLR 346
Airlines of New South Wales Pty Ltd v New South Wales (Airlines case (No 1)) (1964) 113 CLR 1
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' case) (1920) 28 CLR 129
Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237
Attorney General v Great Eastern Railway Company (1880) 5 AC 473
(Page 3)
Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 187 ALR 487
Botany Municipal Council v Federal Airports Corporation (Third Runway case) (1992) 175 CLR 453
Clyde Engineering Co Ltd v Cowburn (Cowburn's case) (1926) 37 CLR 466
Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151
Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47
Credit Tribunal, Re; Ex parte General Motors Acceptance Corp, Australia (GMAC case) (1977) 137 CLR 545
Hume v Palmer (1926) 38 CLR 441
Joye v Beach Petroleum NL & Cortaus Ltd (in liq) (1996) 67 FCR 275
McLean, Ex parte (1930) 43 CLR 472
Miller v Miller (1978) 141 CLR 269
O'Sullivan v Noarlunga Meat Ltd (Noarlunga case) (1954) 92 CLR 565
R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23
R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338
Residential Tenancies Tribunal of New South Wales & Henderson, Re (1997) 190 CLR 410
Sankey v Whitlam (1978) 142 CLR 1
Small (Shiell's Trustee) v Smith (1884) 10 AC 119
Smith v Federal Commission of Taxation (1987) 164 CLR 513
TA Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177
Technical Products Pty Ltd v State Government Insurance Office (QLD) (1989) 167 CLR 45
Troncone v Aliperti (1994) 6 BPR 13,291
Victoria v Commonwealth (Kakariki/Shipwrecks case) (1937) 58 CLR 618
Western Australia v the Commonwealth; Wororra Peoples & Biljabu v State of Western Australia (Second Native Title Act Case) (1995) 183 CLR 373
Wilkes v Johnsen (1999) 21 WAR 269
(Page 4)
1 LE MIERE J: By an originating summons filed on 7 August 2003 the plaintiff claims a declaration that s 47 of the Fish Resources Management Act 1994 (WA) ("the State Act") and reg 10 and Pt 1 of Sch 2 of the Fish Resources Management Regulations 1995 (WA) ("the State Regulations"), alternatively reg 10 and Pt 1 of Sch 2 of the State Regulations, insofar as they apply to striped marlin, are beyond power and invalid. The asserted basis of invalidity is an inconsistency between the provisions of the State Act and the Fisheries Management Act 1991 (Cth) ("the Commonwealth Act") within the meaning of s 109 of the Commonwealth Constitution. The State of Western Australia opposes the declaration sought.
2 The plaintiff carries on the business of commercial fishing in Western Australian waters and, in particular, in waters between Exmouth and Albany. The plaintiff is the holder of the following Commonwealth fishing permits:
(a) permit No 61177A which authorises the use of its commercial tuna fishing vessel "Empress" to:
(i) conduct commercial fishing operations using pelagic long-line and minor line methods;
(ii) fish in that part of the Australian Fishing Zone ("AFZ") adjacent to South Australia, Western Australia, Northern Territory and Queensland west of the meridian of longitude 142 degrees 30 minutes east, and on the high seas, as defined in Sch 2 to the permit ("the fishery"); and
(iii) fish for striped marlin ("marlin").
(b) permit No 60611 which authorises the use of its commercial tuna fishing vessel "Alcyone II" to:
(i) conduct commercial fishing operations in the fishery using pelagic long-line and minor line methods; and
(ii) fish for marlin.
(c) permit No 402508A which is not currently assigned to a vessel. Once assigned to a vessel, that vessel will be authorised, relevantly, to:
(Page 5)
- (i) conduct commercial fishing operations in the fishery using the pelagic long-line and minor line methods; and
(ii) fish for marlin.
3 The fishery includes the Southern and Western Tuna and Billfish Fishery ("SWTBF") which is all that part of the AFZ not covered by the Eastern Tuna and Billfish Fishery ("ETBF"), namely west of Cape York Peninsula in Queensland and west of longitude 141 degrees east at the border between South Australia and Victoria. "Empress" and "Alcyone II" fish in the SWTBF for 12 months of the year, generally between Exmouth and Albany.
4 The "Empress" and "Alcyone II" target bigeye tuna, yellowfin tuna and broadbill swordfish and also take escolar, rays, bream and albacore as by-catch.
5 Pursuant to s 47 of the State Act and reg 10 and Pt 1 of Sch 2 of the State Regulations the plaintiff is prohibited from:
(i) taking for the purpose of sale,
(ii) having in its possession for the purpose of sale,
(iii) processing for the purpose of sale,
(iv) consigning, or
(v) selling
striped marlin.
6 During the course of fishing operations, the plaintiff's vessels catch marlin as by-catch. The plaintiff says that in consequence of the prohibitions of s 47 of the State Act, the plaintiff is at risk of being prosecuted pursuant to s 47 of the State Act if it takes, has in its possession, processes, consigns or sells that marlin, notwithstanding that it is authorised to do so under the Commonwealth fishing permits. If the plaintiff was not prohibited by the State Act from catching, processing and selling marlin it would do so commercially. The plaintiff says that as a result of the prohibitions imposed by s 47 of the State Act the plaintiff is prevented from using the Commonwealth fishing permits to catch marlin and in consequence the plaintiff is unable to:
(Page 6)
- (a) fully exploit the permits;
(b) conduct commercial fishing operations to the same extent as commercial fishermen operating under Commonwealth fishing permits in the ETBF; and
(c) retain, process and sell the marlin it catches as by-catch and thereby suffers a substantial loss of income.
7 Affidavit evidence was given by Geoffrey Richard Diver, the Executive Officer of the Western Australian Pelagic Longline Association Inc ("the Association"). The Association is a fishing industry representative body which acts as a liaison between its members and Commonwealth scientific and fisheries bodies such as the Australian Fisheries Management Authority ("AFMA") and the Western Australian Department of Fisheries regarding, amongst other things, matters concerning the SWTBF. The Western Tuna and Billfish Fishery ("WTBF") and Southern Tuna and Billfish Fishery ("STBF") are separate fisheries but are managed as one by the Commonwealth through AFMA pursuant to the Commonwealth Act. The WTBF is all that part of the AFZ west of Cape York Peninsula in Queensland to latitude 34 degrees south of the west coast of Western Australia. The STBF extends eastward from latitude 34 degrees south across the Great Australian Bight to longitude 141 degrees east at the border between South Australia and Victoria. The STBF, WTBF and the SWTBF are all fisheries within the exclusive jurisdiction of the Commonwealth and are managed pursuant to the Commonwealth Act.
8 The SWTBF is not currently governed by a management plan, although the SWTBF Management Advisory Committee has prepared a draft plan referred to as "Western Tuna and Billfish fishery Management Plan 2002" ("the Plan") for ministerial consideration. Pursuant to the Plan, when introduced, it will be permissible to catch, as is the case now, marlin in the WTBF pursuant to the permit.
9 In January 1995 the State of Western Australia entered into an Offshore Constitutional Settlement Agreement and a Memorandum of Understanding ("MOU") relating to tuna and tuna-like species, including marlin, with the Commonwealth. Pursuant to the Offshore Constitutional Settlement Agreement the Commonwealth and the State agreed that "the fishery and waters relevant to the State, being coastal waters and waters of the AFZ that lie within the area described in Sch 2 of the Petroleum (Submerged Lands) Act 1967" for "tuna and tuna-like species" including
(Page 7)
- marlin, is to be managed in accordance with the law of the Commonwealth. Pursuant to the MOU:
(a) the State acknowledged that AFMA has responsibility for the management of "tuna and tuna-like species, including marlin", in all waters off Western Australia to the extent of the AFZ;
(b) the State acknowledged that the Commonwealth would not impose "trip limits" on the taking of billfish, including marlin, in the AFZ; and
(c) the Commonwealth agreed that it would not issue fishing concessions specifically for the targeting of billfish.
10 On 21 October 2003 the State filed a notice of contention. The notice of contention states that the State accepts that s 47 of the State Act is inconsistent with the Commonwealth Act to the extent that it would prohibit the use by the plaintiff, or a person acting on its behalf, of a boat for fishing for striped marlin in the waters off the Western Australian coast in a manner authorised by the Commonwealth permits held by the plaintiff and is therefore invalid to that extent within the meaning of s 109 of the Constitution. The State otherwise opposes the declaration sought by the plaintiff.
The Legislation
11 Section 32 of the Commonwealth Act provides that the AFMA may grant to a person a fishing permit authorising the use by that person of an Australian boat for fishing in a specified area of the AFZ or a specified fishery.
12 Pursuant to s 4 of the Commonwealth Act "fishing" is defined to include, amongst other things:
(a) searching for, or taking, fish;
(b) engaging in any other activity that can reasonably be expected to result in the locating, or taking, of fish; or
(c) the processing, carrying or trans-shipping of fish that have been taken.
(Page 8)
13 Section 10 of the Commonwealth Act provides that the Commonwealth Act applies to the exclusion of the State Act and the State Regulations so far as they would, but for the Commonwealth Act, apply to:
(a) activities in the AFZ;
(b) activities in the coastal waters of a State or Territory in respect of a fishery to which an arrangement mentioned in s 76 of the Commonwealth Act relates; or
(c) the landing in the State or Territory of fish taken under a fishing permit by requiring such landing to be done under a licence, permit or similar instrument or upon payment of a fee or charge.
14 Section 47 of the State Act provides that a person must not:
(a) take for the purpose of sale;
(b) have in the person's possession for the purpose of sale;
(c) process for the purpose of sale;
(d) consign; or
(e) sell or purchase
any "commercially protected fish".
15 Regulation 10 of the State Regulations provides that a species of fish listed in Pt I of Sch 2 to the Regulations are "commercially protected fish". Part I of Sch 2 to the State Regulations provides that billfish (marlin, sailfish and spearfish) which by definition includes striped marlin, are "commercially protected fish".
The Plaintiff's Submissions
16 The plaintiff submits that it is entitled to "fish", as defined in s 4 of the Commonwealth Act, for marlin in the fishery pursuant to the Commonwealth fishing permits.
17 The plaintiff submits that the prohibition under s 47 of the State Act and the State Regulations on the plaintiff "taking", "having in its possession" or "processing" marlin for the purpose of sale, or consigning or selling marlin:
(Page 9)
- (a) within "WA waters", as defined in s 5 of the State Act; or
(b) within the State, but outside WA waters, the fishery or the AFZ
- is beyond power and invalid.
18 The plaintiff submits that the State Act, the State Regulations and the Commonwealth Act are "laws" for the purposes of s 109 of the Constitution, and that the provisions of the State Act and the State Regulations are inconsistent with a law of the Commonwealth, and to the extent of the inconsistency invalid by reason of s 109 of the Constitution.
19 In its written submissions that plaintiff put its case on four bases. First, the prohibition under s 47 of the State Act and the State Regulations on the plaintiff taking, having in its possession or processing marlin for the purpose of sale, or consigning or selling marlin within the specified areas is directly inconsistent with the Commonwealth Act since it takes away the privilege granted to the plaintiff pursuant to s 32 of the Commonwealth Act entitling it to "fish" for marlin in the fishery.
20 Secondly, the prohibition is indirectly inconsistent with the Commonwealth Act since it purports to deprive the plaintiff of its right to fish for marlin pursuant to the permits granted under the Commonwealth Act.
21 Thirdly, the prohibition is indirectly inconsistent with the Commonwealth Act because the inability of the plaintiff to take, have in its possession, consign, process or sell marlin in WA waters and all of the State as a result of the prohibition renders nugatory the whole purpose of the Commonwealth fishing permits, which is to enable the plaintiff to catch fish, including marlin, in the fishery and process or sell that fish commercially for profit.
22 Fourthly, the prohibition is indirectly inconsistent with the Commonwealth Act since it invades a "field", namely the management of the fishery which the Commonwealth Act was intended to cover exclusively and exhaustively.
The State's Position
23 The State accepts that an inconsistency arises between the State Act and the Commonwealth Act but contends that the extent of that inconsistency and consequent invalidity of the State Act is more confined.
(Page 10)
24 The State accepts that s 47 of the State Act is inconsistent with the Commonwealth Act to the extent that it would prohibit the use by the plaintiff, or a person acting on its behalf, of a boat for fishing for striped marlin in the waters off the Western Australian coast in a manner authorised by the Commonwealth permits held by the plaintiff and is therefore invalid to that extent within the meaning of s 109 of the Constitution.
25 However, the State contends that s 47 of the State Act otherwise operates validly in relation to striped marlin, and in particular operates:
(a) where there is no relevant permit for the taking of the marlin issued under the Commonwealth Act; and
(b) to prohibit the possession, processing, consignment and sale of striped marlin after the marlin has been landed from a vessel which is the subject of a permit under the Commonwealth Act.
The State's Submissions
26 Section 47 of the State Act would purport to apply to the taking of striped marlin for the purpose of sale. However, its operation is not confined to taking, and it will apply to the possession, processing, consignment and sale of marlin on land which does not involve the operation of a boat.
27 Section 32 of the Commonwealth Act provides for the grant of fishing permits. Section 32(1) relevantly provides that the AFMA may grant to a person a fishing permit authorising the use by that person, or by a person acting on that person's behalf, of an Australian boat for fishing in a specified area of the AFZ or a specified fishery. Section 32(4) of the Commonwealth Act provides that a fishing permit may authorise the use of a boat for certain specified activities or uses.
28 The State submits that the focus of s 32 of the Commonwealth Act is on the authorisation of the use of a boat for fishing. The term "fishing" defined in s 4(1) of the Commonwealth Act focuses on the activity of taking fish, rather than the sale or other dealing with fish after they are landed. The State submits that even if references to processing or carrying fish that have been taken extend to processing or carrying on land in the definition of fishing, the limitation in s 32 of the Commonwealth Act, requiring the use of a boat, makes it clear that a permit can only authorise the processing or carrying of fish on a boat. It
(Page 11)
- does not extend to authorise the processing or carrying of fish on land. Thus the plaintiff's permits all authorise the use of a specified boat for each specified activity.
Basis of State's Concession as to Inconsistency
29 The State submits that in relation to fishing in offshore waters, s 47 of the State Act can be said to be inconsistent with the Commonwealth Act in two respects. First, s 47 of the State Act would derogate from the right conferred by the permits issued under the Commonwealth Act so as to be inconsistent with s 32 of the Commonwealth Act. In some contexts an approval granted pursuant to Commonwealth law has been seen to give a right by way of positive authority to undertake the approved activity. In such a case, a State law that detracts from that authority by imposing a concurrent prohibition or approval requirement will be inconsistent with the Commonwealth law. The State law will be invalid because it would alter, impair or detract from the operation of the Commonwealth law or would take away from a right conferred by the Commonwealth law. However, no inconsistency in this sense need arise if the Commonwealth law operates within the setting of other laws so that it is supplementary or cumulative upon State law. The State accepts that the Commonwealth Act positively authorises the plaintiff to take, carry and process striped marlin using the identified boats in all the waters off the Western Australian coast. To the extent that s 47 of the State Act would prohibit any of those activities it would detract from the positive authorisation given by the permit issued under the Commonwealth Act, and it will be inoperative in that respect.
30 Secondly, the offences created by s 47 of the State Act largely overlap those provided for by s 95 of the Commonwealth Act. The State and Commonwealth provisions are directed to the same or a similar purpose in two Acts dealing with the same subject matter. In that context, an inconsistency would arise.
31 The State submits that that is not to say that s 47 of the State Act is invalid as a whole. Section 109 of the Constitution operates to render a State law inoperative only to the extent of its inconsistency with a law of the Commonwealth and only for so long as the inconsistency remains. The possibility of such an "operational" inconsistency arising in particular cases does not deny the valid operation of the State law in cases where there is no operational inconsistency.
32 The State submits that the extent to which the operation of s 47 of the State Act on land within Western Australia is excluded falls to be
(Page 12)
- determined in circumstances where the Commonwealth permit authorises only activities on particular boats. Further, the extent to which the Commonwealth Act operates to the exclusion of State laws, pursuant to s 10(2) of the Commonwealth Act, is geographically limited. Paragraphs 10(2)(a) and (b) of the Commonwealth Act refer only to State law that would apply to activities in the AFZ or in coastal waters. Those paragraphs do not exclude the operation of any State law within the land territory of the State. Paragraph 10(2)(c) of the Commonwealth Act only refers to the landing of fish, and not conduct in relation to fish after they have been landed. Further, par 10(2)(c) only refers to the landing of fish by requiring such landing to be done under a licence, permit or similar instrument or upon payment of a fee or charge. Therefore, the State submits, s 10 of the Commonwealth Act does not exclude s 47 of the State Act in its operation with respect to fish after they have been landed. Having regard to the terms of the authorisation given by the permits, and the language of s 10, s 32 and s 95 of the Commonwealth Act, the Commonwealth Act does not have any relevant operation after the landing of the fish, so that the State Act can continue to operate after that point.
33 The State submits that it is not to the point for the plaintiff to contend that the inability of the plaintiff to deal with marlin taken by the plaintiff on land might defeat the purpose for which the plaintiff would choose to fish. It might have been open to the Commonwealth to extend the scope of the authority conferred by the permits to dealings on land with fish taken pursuant to the permits. However, the Commonwealth has stopped the geographic extent of the operation of the Act at the point when the fish are landed.
34 The State submits that s 47 of the State Act is valid insofar as it applies to fish after they have been landed. It is also valid, the State says, in those cases where the taking of the striped marlin was not authorised by a permit issued under the Commonwealth Act.
Plaintiff's Submissions in Reply
35 In submissions in reply, the plaintiff submitted that the Commonwealth Fishing permits authorise "commercial fishing in the SWTBF" which is described as a fishery. Fishing includes "the processing, carrying or trans-shipping of fish that have been taken". Fishing is not confined to activities by the permit holder nor is it confined to activities within the AFZ, but is sufficiently wide to cover activities by the permit holder on land including within the confines of a port and, as well, those to whom fish have been transferred for any of the stated
(Page 13)
- purposes. Section 91, s 92 and s 97 of the Commonwealth Act and reg 10AA, reg 10AB, reg 10AC and reg 10C of the Fisheries Management Regulations 1992 (Cth) ("the Commonwealth Regulations") all contemplate that striped marlin will be brought ashore and dealt with commercially. Section 10(2)(c) of the Commonwealth Act demonstrates that the Commonwealth intended that the Commonwealth Act operate beyond the AFZ because it deals specifically with the landing of fish and that fact is inherent, in any event, in the definition of fishing. That the Commonwealth intended the operation of the Commonwealth Act to extend beyond the AFZ is reinforced by the extensive powers conferred by s 84 and s 85 of the Commonwealth Act which specifically relate to land-based activities which themselves "relate to a fishery".
36 The plaintiff submits that permission given by the Commonwealth in legislation dependent upon a particular head of power necessarily includes within that permission everything that is necessary and incidental to the effective use of that permission unless specifically excluded. One of the purposes of the Commonwealth Act is to regulate fishing within the AFZ and as part of that Regulation to permit commercial fishing for, and the processing of, striped marlin. Everything that is prohibited in s 47 of the State Act is specifically, or by necessary implication, included within the permission granted by the Commonwealth permit. The exclusion of any one of the matters prohibited by s 47 from the permission granted by the permit is itself sufficient to render nugatory the permit, the sole purpose of which is to allow commercial fishing activities. Section 47 of the State Act is not confined in its valid operation, as the State says, to the possession, processing, consignment and sale of striped marlin after it has been landed from a vessel because in its terms it operates to prohibit possession of striped marlin on the vessel whilst within the precincts of a port. Section 47 of the State Act prevents the permit holder from dealing with striped marlin which it has lawfully caught.
Evidence concerning fish receiver permits
37 At the hearing of this matter on 10 March 2004, the plaintiff read an affidavit of Lee Simon Panotidis, sworn on 9 March 2004. Mr Panotidis deposed, by way of hearsay, that a company by the name of Latitude Fisheries Pty Ltd receives fish for processing from persons engaged in commercial fishing in fisheries managed by the AFMA on behalf of the Commonwealth, including the SWTBF, and holds a current fish receiver permit pursuant to s 91 of the Commonwealth Act. I gave leave to the State to file an affidavit in response to the affidavit of Mr Panotidis. The State filed and served an affidavit of Anthony John Noel O'Connor, sworn
(Page 14)
- 19 March 2004. The plaintiff objected to the affidavit of Mr O'Connor on the grounds that it contained inadmissible hearsay. Further, the plaintiff submitted that Mr O'Connor's affidavit was seeking to answer submissions that were not made by the plaintiff. The plaintiff submitted that it did not submit that the SWTBF had been declared under s 91 of the Commonwealth Act and it is not the plaintiff's case that s 47 of the State Act is inconsistent with s 91 of the Commonwealth Act and invalid to that extent. The Court reconvened on 20 May 2004 to hear further submissions concerning the affidavit of Mr O'Connor. After hearing submissions on behalf of the plaintiff the State did not press the tender of the affidavit of Mr O’Connor. In the end it seems to me that the evidence in the affidavit of Mr Panotides of 9 March 2004 concerning fish receiver permits under s 91 of the Commonwealth Act does not assist me in resolving the issues in this case.
Section 109 of the Constitution
38 The starting point in considering the issues raised in this case is s 109 of the Constitution. The application of State legislation is always subject to s 109 of the Constitution which provides: "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."
39 Inconsistency may be actual or operational. Actual inconsistency occurs where two Acts are inconsistent as a matter of statutory construction. See, for example, Telstra Corporation Ltd v Worthing (1999) 197 CLR 61. Actual inconsistency might arise:
(a) where a State law would alter, impair or detract from the operation of the law of the Commonwealth; or
(b) where it appears from the terms, nature or subject matter of a Federal law that it was intended as a complete statement of the law governing a particular matter (covering the field).
40 The other form of inconsistency is operational inconsistency. Where the Commonwealth law does not comprehensively cover a particular field, and it confers a power on the executive to regulate an activity, the Court may conclude that there is only potential inconsistency – only when the executive takes action under its statutory powers of control or regulation will the operation of s 109 be enlivened.
(Page 15)
Actual direct inconsistency
41 I will first consider whether there is actual direct inconsistency. Direct inconsistency arises where a State law would alter, impair or detract from the operation of a law of the Commonwealth.
42 In Telstra v Worthing (supra), an employee of Telstra applied for workers' compensation in respect of alleged injuries to his back. The employee made the application under the Workers Compensation Act 1987 (NSW) rather than under the Safety Rehabilitation and Compensation Act 1988 (Cth), which contains a workers' compensation scheme for employees of the Commonwealth and certain Commonwealth-owned corporations, including Telstra. The Compensation Court, and, on appeal, the New South Wales Court of Appeal, found that the New South Wales Act validly applied so as to give jurisdiction to the Compensation Court to determine the application for workers' compensation. The result of the Court of Appeal decision (if it had stood) would have been that, in respect of its employees, the Commonwealth would have been potentially subject to the workers' compensation schemes of each of the States and Territories as well as its own scheme, including possible application to the Commonwealth of the provisions of the State and Territory schemes in relation to licensing and insurance of employers. A Commonwealth employee could have chosen whether to make his claim for workers' compensation under the Commonwealth Act or under an otherwise applicable State or Territory workers' compensation statute. The High Court allowed the appeals and unanimously held that the Compensation Court did not have jurisdiction to determine the workers' compensation application. The High Court held that the NSW Act was inconsistent with the Commonwealth Act to the extent that it provided for the determination of a workers' compensation application by an employee to whom the Commonwealth Act applied. By providing an alternative right of compensation to that available under the Commonwealth compensation law, the State compensation law altered or impaired the rights provided for under Federal law, and it was therefore inconsistent with that law.
43 Section 32 of the Commonwealth Act provides for the grant of fishing permits. The AFMA may grant to a person a fishing permit authorising the use by that person of an Australian boat for fishing in a specified area of the AFZ or a specified fishery. There is no actual inconsistency between s 47 of the State Act and the provisions of the Commonwealth Act because no inconsistency can arise unless and until
(Page 16)
- the AFMA has granted a permit. The inconsistency that may arise is operational inconsistency.
Operational inconsistency
44 Operational inconsistency was considered by the High Court in Commonwealth v Western Australia (1999) 196 CLR 392. This case concerned the application of the Mining Act 1978 (WA) to land at Lancelin that had been declared as a defence practice area under the Defence Force Regulations 1952 (Cth). The Commonwealth applied to the High Court for declarations that Mining Wardens appointed under the Mining Act do not have jurisdiction to consider applications for mining tenements over land within the defence practice area, that the Mining Act was invalid to the extent that it purports to apply to the land within the defence practice area and that the Mining Act does not bind the Commonwealth. The High Court decided that the Mining Act does not, as a matter of construction, apply to freehold or leasehold land vested in the Commonwealth and therefore does not apply to land of this kind within the defence practice area. However, the Mining Act applied, as a matter of construction, to land within the defence practice area that was not owned or leased by the Commonwealth (ie, to State Crown land). It was therefore necessary for the Court to consider the question of inconsistency in relation to this land. The majority held that, in relation to the land within the defence practice area that was vested in the Commonwealth, there is no "covering the field" inconsistency between the Defence Force Regulations and the Mining Act such as would preclude the application of the Mining Act at all. They contemplated that "operational inconsistency" could arise in some circumstances – eg, if the person were authorised to enter the land for exploration purposes at a time when a defence practice operation had been authorised. The State law may give rights of access to land for purposes of mineral exploration, including to defence practice areas, but unless and until a permit was issued under the State law authorising access and notice was given restricting access during a defence practice period, no actual inconsistency would arise. The relevant Defence Force Regulations did not purport to immunise defence practice areas from all non-defence access at all times. Rather, the Regulations created a system to control access by conferring powers on relevant persons to notify practice periods, and in those periods to exclude persons. Once that system of control was exercised, there may well be an inconsistency. The fact that a State law might confer a general right of access to the area in question did not impair the ability to exercise the powers under the Defence Force Regulations to restrict access when and if that was necessary.
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45 In this case, no inconsistency might arise unless and until the AFMA issues a Commonwealth fishing permit. Section 47 of the State Act prohibits a person from taking for the purpose of sale, or having in his or her possession for the purpose of sale, or processing for the purpose of sale, or consigning, or selling or purchasing any commercially-protected fish. There is no inconsistency between that prohibition and the provisions of the Commonwealth Act in the absence of the AFMA having issued any Commonwealth fishing permit.
46 However, on the AFMA issuing a fishing permit, an inconsistency then arises between s 47 of the State Act and the Commonwealth Act. In those circumstances, the State Act would alter, impair or detract from the operation of the Commonwealth law whereby the Commonwealth law authorises the permit holder to carry out activities in the specified area that are prohibited by s 47 of the State Act.
47 The State recognises that operational inconsistency. The State concedes that s 47 of the State Act is inconsistent with the Commonwealth Act to the extent that it would prohibit the use by the plaintiff, or a person acting on its behalf, of a boat for fishing for striped marlin in the waters off the Western Australian coast in a manner authorised by the Commonwealth permits held by the plaintiff and is therefore invalid to that extent within the meaning of s 109 of the Constitution.
Extent of inconsistency
48 The extent of the inconsistency that arises upon the issue of a permit depends on the terms of the permit. It is necessary to examine the terms of the permit to discern what the permit authorises the permit holder to do. It is then necessary to determine the extent to which the State laws alter, impair or detract from the operation of the permit issued under the law of the Commonwealth.
49 I will consider Fishing permit 61177A issued to the plaintiff in respect of its boat "Empress". The permit describes the authorised activity and fishery as "Commercial fishing, Southern and Western Tuna & Billfish Fishery, longline (pelagic), minor line". The permit says that the permit holder is subject to the provisions of the Commonwealth Act and the Commonwealth Regulations as well as additional conditions specified on the permit.
50 Commercial fishing is not defined on the permit or by the Commonwealth Act. The permit defines "fishing" to mean all fishing
(Page 18)
- activity conducted by the boat in accordance with the meaning of "fishing" as defined in the Commonwealth Act. Fishing is defined by s 4 of the Commonwealth Act. The plaintiff draws attention to par (g) of s 4, which incorporates within the definition the:
"… processing, carrying or transhipping of fish that had been taken."
52 The difference between the plaintiff and the State concerns the right of the plaintiff to do things in relation to striped marlin on land after landing the fish taken pursuant to the permit. The permit does not expressly authorise the holder to do anything after landing the fish.
53 The plaintiff submits that permission given by the Commonwealth necessarily includes within that permission everything that is necessary and incidental for the effective exercise of that permission unless specifically excluded. The plaintiff submits that the State Act and Regulations render nugatory the entire benefit in Western Australia of the authority granted by the permit issued under the Act. The plaintiff submits that its permit authorises commercial fishing for striped marlin and this is precisely what the State Act prevents.
54 In my view, the permit held by the plaintiff does not impliedly authorise the plaintiff to do anything with fish on land. All of the activities expressly authorised by the permit may be carried out at sea. The plaintiff submits that the permit authorises it to undertake "fishing" and that includes all of the activities within the definition of "fishing" in s 4 of the Commonwealth Act. None of the activities forming part of the definition of "fishing" include having fish in the permit holder's possession on land or processing, consigning or selling fish on land in Western Australia. The core activity authorised by the permit is taking fish. The permit authorises other activities ancillary to taking fish. Fishing also includes the processing, carrying or transhipping of fish that have been taken. All of those activities may be undertaken at sea. The permit relates to the use of a specified boat. It does not authorise
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- activities to be undertaken by the permit holder except in relation to the specified boat.
55 The plaintiff submits that the permit authorises commercial fishing for striped marlin. In my view, "commercial fishing" means taking fish for the purpose of sale. The permit authorises the holder to take fish for the purposes of sale, and to undertake other activities ancillary to and for the purpose of taking fish. The permit does not authorise the permit holder to sell fish in Western Australia or in any other specified place.
56 The critical issue is whether the restriction imposed by the State Act upon possessing fish for the purpose of sale, and other activities on land in Western Australia, alters, impairs or detracts from the operation of the law of the Commonwealth. In my view, it does not. The State law may render less valuable the right conferred upon the permit holder, but it does not alter, impair or detract from the rights conferred on the permit holder.
Covering the field
57 Whether s 47 of the State Act, and the relevant Regulations, is inconsistent to any greater extent with Commonwealth law depends upon whether the Commonwealth Act "covers the field".
58 In his final written submissions, counsel for the plaintiff submitted that it is not the plaintiff's case that the Commonwealth has attempted to cover the field of the receipt and processing of fish caught in commercial fishing operations. Counsel submitted that the plaintiff's case is that s 47 of the State Act and the State Regulations, insofar as they apply to striped marlin, are directly inconsistent with the Commonwealth Act and Regulations and hence invalid. Nevertheless, I will consider whether the Commonwealth Act and Regulations cover the relevant field.
59 The question of the concurrent operation of the Commonwealth Act and State Acts is expressly addressed by s 10 of the Commonwealth Act. Section 10 of the Commonwealth Act provides:
"(1) Except as provided by subsections (2) and (3), this Act is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2) Subject to subsection (3), the Parliament intends that this Act is to apply to the exclusion of any law of a State or Territory relating to fishing so far as that law would, but for this Act, apply to:
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- (a) activities in the AFZ; or
(b) activities in the coastal waters of a State or Territory in respect of which a fishery to which an arrangement mentioned in section 12K of the Fisheries Act 1952 , or section 76 of this Act, relates; or
(c) the landing in the State or Territory of fish taken under a statutory fishing right or fishing permit by requiring such landing to be done under a licence, permit or similar instrument or upon payment of a fee or charge.
- (3) This Act does not apply to:
(a) recreational fishing carried on in the AFZ or …
(b) recreational fishing carried on by the use of an Australian boat …
(c) activities in the AFZ to which, because of section 77, this Act does not apply.
61 Paragraphs 10(2)(a) and (b) of the Commonwealth Act exclude the operation of any State law to activities in the AFZ or in the coastal waters of a State or Territory to which an arrangement mentioned in s 12K of the Fisheries Act 1952 or s 76 of the Commonwealth Act relates. That exclusion does not exclude s 47 of the State Act in its operation with respect to fish after they have been landed in Western Australia.
62 A more difficult issue concerns par 10(2)(c) of the Commonwealth Act. The State submits that par 10(2)(c) of the Commonwealth Act only refers to the landing of fish, and not to conduct in relation to fish after they have been landed. I have difficulty accepting that submission. Section 47 of the State Act and the relevant Regulations in effect prohibit a person from having in his possession, for the purpose of sale, marlin. If a fish was landed in Western Australia by a person with the intent of selling it, then the moment after it was landed they would be in contravention of s 47. It would not be possible to land fish that they
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- intended to sell without contravening s 47. However, par 10(2)(c) of the Commonwealth Act does not extend to any law relating to fishing so far as that law would, but for the Commonwealth Act, apply to the landing in the State of fish taken under a permit. The paragraph is more limited than that. The paragraph excludes the operation of any State law that would apply to the landing in the State of fish taken under a fishing permit by requiring such landing to be done under a licence, permit or similar instrument upon payment of a fee or charge. The subject matter of the paragraph is the fact of landing and limiting the landing of fish by requiring such landing to be done under a licence or permit or upon payment of a fee or charge. The paragraph does not exclude any law of a State relating to the landing of the fish. The paragraph does not exclude any law of a State relating to fish after it has been landed, except insofar as the landing requires a licence or permit or the payment of a fee or charge. For example, a State law regulating the transport of fish within a State or its sale at retail outlets is not excluded by par 10(2)(c).
63 In my view, par 10(2)(c) of the Commonwealth Act does not render s 47 of the State Act, and the relevant Regulations, invalid by reason of inconsistency with the Commonwealth Act.
64 In my view, the field covered by the Commonwealth Act, to the exclusion of any law of a State or Territory, does not include a State law prohibiting or regulating the possession of or dealing with fish after the landing of the fish in the State.
Conclusion
65 Section 47 of the State Act, and the relevant Regulations, are not wholly invalid. There is an operational inconsistency that arises upon a Commonwealth fishing permit being issued to a person. Section 47 of the State Act is valid insofar as it applies to fish after they have been landed. It is inconsistent with the Commonwealth Act and invalid to the extent that it would prohibit the use by the plaintiff, or a person acting on its behalf, of a boat for fishing for striped marlin in the waters off the Western Australian coast in a manner authorised by the Commonwealth permits held by the plaintiff.
66 I will hear the parties as to the appropriate relief to be granted consistent with these reasons.
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