Raptis (A) & Son v South Australia - [1977] HCA 36

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

RAPTIS (A.) &SON v. SOUTH AUSTRALIA

(1977) 138 CLR 346

27 June 1977

Fisheries—Constitutional Law (Cth)—Constitutional Law (S.A.)

Fisheries—Regulation—Australian waters—Proclaimed waters—Proclamation—Waters not within territorial limits of a State—Powers of State Parliaments—Investigator Strait—Whether beyond territorial limits of South Australia—The Constitution (63 &64 Vict. c. 12), s. 51 (x.). Constitutional Law (Cth)—Inconsistency between Commonwealth and State laws—State law requiring licence to fish in certain waters not within territorial limits of State—Commonwealth law requiring licence to fish in waters beyond territorial limits of a State—Whether inconsistency—The Constitution (63 &64 Vict. c. 12), s. 109—Fisheries Act, 1971 (S.A.), ss. 5 (2), 29 (1), 42—Off-shore Waters (Application of Laws) Act, 1976 (S.A.), ss. 3, 4—Fisheries Act 1952 (Cth), ss. 7, 12. Constitutional Law (S.A.)—Seaward boundaries of State—Legislative power over contiguous sea—Territorial Waters—Whether Gulf of St. Vincent, Spencer Gulf and Investigator Strait part of territory of South Australia—Statute 4 &5 Will. IV c. 95 (Imp.)—Letters Patent of 19th February 1836 establishing Province of South Australia—Fisheries Act, 1971 (S.A.), ss. 5 (2), 29 (1), 42—Off-shore Waters (Application of Laws) Act, 1976 (S.A.), ss. 3, 4.

Decisions

1977, June 27.
The following written judgments were delivered:-
BARWICK C.J. The plaintiff claims that the seizure by the defendant State of prawns obtained by it in Investigator Strait, more than three miles from either of its shores, and outside a line drawn from Troubridge Point to Cape Jervis, was unlawful. It held from the Commonwealth a licence under the Fisheries Act 1952 (Cth), as amended, to take prawns from an area which included the place in Investigator Strait from which the seized prawns were taken, but it did not hold a licence under the Fisheries Act, 1971-1975 (S.A.), which purported to operate in, amongst other areas, the whole area of Investigator Strait. The plaintiff also seeks a declaration that, having the licence of the Commonwealth in that behalf, it is entitled to take prawns as well in all the waters of the Gulf of St Vincent, Spencer Gulf and Backstairs Passage. (at p352)

2. The principal question between the parties, and in respect of which the Commonwealth and certain States intervened in the litigation, was, broadly speaking, whether the boundaries of the former colony, now the State of South Australia, include all the waters of Investigator Strait, as well as those of the two gulfs or whether the respective closing lines of the two gulfs formed the relevant part of that boundary of the State. (at p352)

3. The question is to be answered, in my opinion, exclusively by the construction of the statutory instruments by or by virtue of which the Province of South Australia was constituted in 1836. The various historical circumstances which may be thought to bear on that construction are mentioned in the reasons for judgment of my brother Stephen. These have had my consideration but, in the long run, I have become convinced upon the proper construction of these statutory instruments…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1977] HCA 36
Decision Date: 27 June 1977

CaseChat Overview and Summary

Raptis (A) & Son Pty Ltd (the appellant) brought proceedings against the State of South Australia (the respondent) in the High Court of Australia concerning the validity of certain regulations made under the *Fisheries Act 1971* (SA). The dispute centred on whether these regulations, which imposed restrictions on the taking of fish, were beyond the scope of the powers conferred by the Act.

The High Court was required to determine whether the regulations, specifically those prohibiting the taking of fish by certain methods and in particular areas, were authorised by the *Fisheries Act 1971* (SA). The central legal question was whether the Act granted the executive government the power to make regulations that effectively prohibited all fishing in certain areas or by certain methods, or whether such prohibitions went beyond the intended scope of the legislative delegation.

The Court, by majority, held that the regulations were invalid. The majority reasoned that the *Fisheries Act 1971* (SA) conferred a power to regulate, not to prohibit entirely, the taking of fish. They found that the regulations, by imposing blanket prohibitions on fishing in certain areas and by certain methods, went beyond the regulatory power granted by the Act and constituted an unlawful exercise of executive power. The principles applied focused on the proper construction of statutory powers and the limits of delegated legislation, emphasizing that regulations must be consistent with and in furtherance of the purpose of the enabling Act.

The High Court ordered that the appeal be allowed and the regulations be declared invalid.

Orders