Constitutional Law (Cth) - Operation and effect of The Commonwealth Constitution - General matters - Relationship between Commonwealth and States generally - Effect of State laws on the Commonwealth and its instrumentalities - Power of State Parliament to confer function incompatible with exercise by State court of Commonwealth judicial power - Act requiring State court to impose special mandatory penalties in respect of fisheries offences - Whether such provisions invalid as requiring State court to exercise a function incompatible with Commonwealth.

Sea Fisheries Regulations 1962 (Tas), regs31A(2) and 44(1)(o).

Fraser Henleins Pty Ltd v Cody [1945] HCA 49; (1945) 70 CLR 100; Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52; Moffatt v R (1997) 91 A Crim R 557; Wynbyne v Marshall (1997) 177 NTR 11, applied.

Kable v DPP [1996] HCA 24; (1996) 70 ALJR 814, considered.

Primary Industry - Fish - Offences - Taking or possessing under prescribed size or weight - Other fish - Abalone - Taking abalone "from the wild" - Whether abalone removed from rocks and placed in bag by one offender were taken "from the wild" by another offender raising bag to the surface.

Sea Fisheries Regulations 1962 (Tas), regs31A(2).

Appellant/Cross Respondent: Ritchie & Parker Alfred Green & Co

Respondent/Cross Appellant: Director of Public Prosecutions

Judgment Number: [1999] TASSC 117

3 Order dated 16 June 1997 setting aside the conviction of the appellant in respect of charge 2 on Complaint No 27491/1995 and the sentence thereon set aside.

4 Order that the conviction of the appellant on charge 2 on Complaint No 27491/1995 and the fine of $500 and special penalty of $29,400 thereon be restored.

5 Order that the sentence of the Court of Petty Sessions in respect of charge 3 on Complaint No 27491/1995 by substituting for the special penalty imposed thereon of $34,700 a special penalty of $34,200.

6 In all other respects confirm the order of the Court of Petty Sessions made on 28 May 1996 in respect of Complaint No 27491/1995.

1 I have had the advantage of reading the Reasons for Judgment prepared by Wright J in respect of this appeal and cross-appeal. I agree with them and with the orders he proposes.

2 The appellant appeared in the court of petty sessions on 28 May 1996 upon the following charges:

"Taking an undersize abalone from the wild, contrary to the Sea Fisheries Regulations 1962, reg31A(2), in that on 1 November 1995 at Nelson Bay he took 588 undersize abalone from the wild.

Taking more then ten abalone in one day, contrary to the Sea Fisheries Regulations 1962, reg44(1)(o), in that on 1 November 1995 at Nelson Bay he took in one day 694 abalone when he was not the holder of a subsisting commercial abalone diver's licence."

3 The appellant was convicted in respect of both counts and, in respect of the first, taking undersized abalone from the wild, he was fined $500 and ordered to pay a special penalty of $29,400 (calculated at $50 for each of the 588 undersized abalone referred to in the complaint). On the second count, taking in one day more than 10 abalone, he was fined $500 and ordered to pay a special penalty of $34,700 (calculated at $50 for each of the 694 abalone referred to in the complaint). In respect of the first complaint, the Sea Fisheries Regulations 1962 provided for a fine of not less than $200 and not more than $500,000 and a special penalty of exactly $50 in respect of each undersized abalone. In respect of the second count, the Regulations provided for a fine of not less than $200 and not more than $500,000 and a special penalty of exactly $50 in respect of each fish taken in breach of the Regulations.

4 The learned magistrate held that the operation of the provisions of the Probation of Offenders Act 1973, s7(1), were excluded by the Fisheries Act 1959, s9(1AAB). The appellant moved the Supreme Court to review his convictions and penalties and, on 16 June 1997, Crawford J upheld the motion to review in respect of taking undersized abalone from the wild and dismissed that complaint. His Honour refused the motion to review in respect of the complaint that the appellant had taken more than 10 abalone in one day and confirmed the penalties imposed by the learned magistrate. The appellant has now appealed to this Court in respect of the conviction and penalties imposed in respect of the second complaint on the grounds that:

1 Crawford J was wrong in law in finding that the decision of the High Court of Australia in Kable v DPP [1996] HCA 24; (1996) 70 ALJR 814 was not authority for holding that the special penalty provisions of the Fisheries Act and the Regulations made thereunder, were invalid; and

2 that the learned judge ought to have found that the imposition of special penalties on the appellant by the court of petty sessions was invalid by reason that the relevant sections of the Fisheries Act and the Regulations imposed by the Sea Fisheries Regulations, were invalid by reason of their incompatibility with the Commonwealth Constitution, Ch III.

5 The respondent has cross-appealed in respect of Crawford J's dismissal of the first complaint on the grounds that:

"1 The Learned Judge erred in fact and/or in law in holding that the Appellant, in participating as a principal in the raising of abalone from under the sea to the surface and onto the shore, did not thereby take the said abalone from the wild, within the meaning of the said regulation.

2 The Learned Judge erred in fact and/or in law in holding that once an abalone has been prised from its natural position on a rock and placed in a state of capture in a bag, it has been taken from the wild and cannot thereafter be taken from the wild, unless it is first returned to the wild."

6 After hearing argument from counsel for the appellant, the members of this Court determined that they did not require to hear from counsel for the respondent. In my opinion, the appeal must be dismissed. In Kable v DPP (supra), the majority of the High Court held that a State legislature cannot invest a State court with functions which are incompatible with the exercise of Federal judicial power by that court. The special features of the State legislation (the Community Protection Act (NSW)) which led the High Court to that conclusion are not present in the current case. Arguments similar to those which were advanced by counsel for the appellant in the present appeal have already been dealt with and rejected by courts of high authority. In Fraser Henleins Pty Ltd v Cody [1945] HCA 49; (1945) 70 CLR 100, at 119 to 120, Latham CJ said:

"It has never been suggested that the sphere of judicial power is invaded when Parliament provides for a maximum or minimum penalty for offences which are duly proved in courts of law."

In Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52, Barwick CJ expressed his agreement with the views of Latham CJ in Fraser Henleins case and said, at 58:

"It seems to me that the argument supporting the applicant's submission as to its invalidity was founded on a basic misconception as to the exercise of judicial power in relation to the imposition of penalties or sentences for the commission of offences created by statute. It is beyond question that the Parliament can prescribe such penalty as it thinks fit for the offences which it creates. It may make the penalty absolute in the sense that there is but one penalty which the court is empowered to impose and, in my opinion, it may lay an unqualified duty on the court to impose that penalty. The exercise of the judicial function is the act of imposing the penalty consequent upon conviction of the offence which is essentially a judicial act. If the statute nominates the penalty and imposes on the court a duty to impose it, no judicial power or function is invaded : nor, in my opinion, is there any judicial power or discretion not to carry out the terms of the statute. Ordinarily the court with the duty of imposing punishment has a discretion as to the extent of the punishment to be imposed ; and sometimes a discretion whether any punishment at all should be imposed. It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime. But whether or not such a discretion shall be given to the court in relation to a statutory offence is for the decision of the Parliament. It cannot be denied that there are circumstances which may warrant the imposition on the court of a duty to impose specific punishment. If Parliament chooses to deny the court such a discretion, and to impose such a duty, as I have mentioned the court must obey the statute in this respect assuming its validity in other respects. It is not, in my opinion, a breach of the Constitution not to confide any discretion to the court as to the penalty to be imposed."

In Moffatt v R (1997) 91 A Crim R 557, the Court of Appeal in Victoria was called upon to consider a similar argument to that which has been advanced to us in the present case. There, an indefinite sentence of imprisonment had been imposed upon a convicted rapist, pursuant to the Sentencing Act 1991 (Vic). The Court was unanimously of the view that the legislation there in question was not incompatible with the Commonwealth Constitution, Ch III, and was not invalid. At 564 - 565, Winneke P said:

Although, for my own part, I do not find it easy to discern with any precision where the line of constitutional invalidity of State legislation is to be drawn conformably with the principles explained in Kable's case, it nevertheless seems clear that the legislation considered in that case was regarded as exceeding the limits of the Parliament's power because its manifest purpose was to use the court as the instrument through which one man (Gregory Kable) was to be detained, not for what he had done but for something which the executive government feared he might do. It was the ad hominem nature of the legislation combined with its use of the court to carry out a legislative plan by methods far removed from the judicial processes which, in the majority opinion, led to the conclusion that the Act was invalid. Thus:

'The Act seeks to ensure, so far as legislation can do it, that the appellant will be imprisoned by the Supreme Court when his [current sentence] expires. It makes the Supreme Court the instrument of a legislative plan, initiated by the executive government, to imprison the appellant by a process that is far removed from the judicial process that is ordinarily invoked when a court is asked to imprison a person' (per McHugh J (at 850)).

Similar criticisms of the legislation were expressed by Toohey J (at 837), Gaudron J (at 841-842), and Gummow J (at 856-857). It was their Honours' view that legislation which required the court to imprison a person without trial or finding of guilt was the antithesis of judicial process and, if pursued, was likely to bring that process and the courts who administered it into public disrepute. The ratification by the judiciary of a political decision that one man should be incarcerated without findings of criminal conduct would create the impression in the public mind that the judiciary:

'is apt to be seen as but an arm of the executive which implements the will of the legislature' (per Gummow J at 857)."

"But exactly what is the underlying principle is not clear. As I have said, the legislation under consideration in Kable was extraordinary: it was directed at one man; it required (or at the least contemplated) the confinement of that man in prison and did so not for what he had done but for what he might do. But by what principle is one to decide whether legislation is incompatible with CH III? Is its being novel sufficient? Is the perception that reasonable members of the public may have of it relevant? If so, what kind of perception is relevant?

Again I do not think that we have to resolve those questions.

The indefinite sentencing provisions now under consideration are very different from the Community Protection Act. First, an indefinite sentence may be imposed only upon an offender found guilty of a particular offence. Secondly, unlike the Community Protection Act the indefinite sentencing provisions of the Sentencing Act are general in their application; they are not directed to any particular individual. Thirdly, there is nothing in the legislation or the circumstances existing at the time of its enactment which would lead reasonable members of the public to conclude that the Supreme Court or County Court was being called on to act as no more than an instrument of the executive government."

7 In Kable, the New South Wales legislature had not only sought to impose non-judicial functions upon the court, but to do so by establishing proceedings unknown to the law by which it compromised the institutional impartiality of the Supreme Court and required the court to exercise judicial power in a manner which would have been inconsistent with traditional judicial processes.

8 In Wynbyne v Marshall (1997) 177 NTR 11, the Full Court of the Supreme Court of the Northern Territory unanimously concluded that legislation prescribing both maximum and minimum punishment for offenders was not unconstitutional. At 14, Martin CJ said:

"In its operation the law will be harsher on some offenders than the law prior to its enactment. In so far as the minimum term is required to be imposed, it does not discriminate in relation to many matters relevant to sentencing, such as the value of the goods stolen or damaged, the circumstances in which the offence is committed or the circumstances of the offender. The intention of the parliament is clear. It imposes a duty on the courts, and, in my opinion, the duty here imposed is within the competence of parliament. That proposition is firmly established in Australia by the decision of the High Court in Palling v Corfield (supra). There is nothing in the reasons for the decision in that case that would indicate that they were in any way dependent upon the nature of the legislation there in question."

On 21 May 1998, an application to the High Court of Australia for leave to appeal against the Northern Territory court's decision was refused.

9 The draconian penalties required by the Tasmanian legislation are plainly designed to have a deterrent effect upon poachers and would-be poachers of scarce natural resources, but the severity of the penalties alone is not sufficient to transform the character of the legislation into an unconstitutional interference with the Court's powers and functions. In my opinion, the appeal must be dismissed.

10 His Honour, Crawford J, outlined the prosecution case in the following terms:

"On Wednesday 1 November 1995, the applicant travelled in a van from Sisters Beach on the north coast of Tasmania to Nelson Bay on the west coast, with his mother and Mr Thomas Henderson, who lived with the mother in a de facto relationship. The van was owned and driven by Mr Henderson. It contained diving equipment for use by both men. At about 12.30pm Constables Barnard and Radford commenced a surveillance operation at Nelson Bay. They saw Mr Henderson's van parked near the foreshore. Over from the van, in rocks on the edge of the water, was a compressor with its engine going. A yellow hose was running from it into the water. At about 12.55pm the applicant came out of the water. He was wearing a wet suit and a scuba diving tank. He removed the tank and wandered around the rocks, as if he was having a rest from diving. While he was there, Mr Henderson was seen in the water trailing the yellow hose. After a short time, the applicant returned to the water, wearing the same diving equipment.

At about 2.15pm both men came out of the water at the same time. They both removed all their diving gear, except for their wetsuits, and placed the gear in the rear of the van where they spoke for a time to the applicant's mother, who was in the van. The two men then returned to the water's edge. Mr Henderson donned a diving mask and snorkel and returned to the water. The applicant remained at the water's edge on the rocks. He threw the end of a rope to Mr Henderson in the water. Mr Henderson dived below the surface. He obviously did so for the purpose of tying the rope to a net bag containing abalone. He resurfaced shortly afterwards and the applicant pulled on the rope, hauling the bag out of the water onto the rocks. This operation was repeated another five times, so that the applicant hauled onto the shore six bags of live abalone in their shells. Once he had done so, Mr Henderson came out of the water. Mr Henderson then carried one bag to the van and returned to the water's edge. He and the applicant then carried a bag each to the van.

At that point of time, which was at 3.25pm, the police officers approached the two men at the van and identified themselves as police officers. When questioned, both men said that they were not the holders of diving licences in Tasmania. Constable Barnard asked for an explanation for their having more than the legal limit of ten abalone each. The applicant said that he did not know there was a legal limit. The police officers then counted the abalone and checked them for size. There were 694 in all, of which 588 were under the legal size of 132 millimetres. The applicant was asked for an explanation as to why he had undersize abalone. He said that he did not know there was a size limit. Both men were asked whether they had a certificate allowing them to have that quantity of abalone and they said they knew nothing of a certificate. The police officers seized the abalone and diving equipment and removed them from the van. Included were two full sets of diving gear, including fins, weight belts and wetsuits."

His Honour also reviewed the defence case and then continued:

"Having reviewed the evidence, I have concluded that the finding that the applicant aided and abetted Mr Henderson in the removal of the abalone from the rocks was a reasonable one. It was a circumstantial case, of course, and one question which arose was whether the applicant's version given in evidence was a rational hypothesis open on the evidence and another was whether the inference of guilt was the only inference reasonably available on the evidence. There was evidence strongly suggestive that the taking of the abalone was a joint enterprise of Mr Henderson and the applicant."

His Honour then reviewed certain aspects of the evidence and continued:

"In my view the learned magistrate was justified in rejecting the applicant's claim that he was not a party to removing the abalone from the rocks and placing them in the net bags."

"There was ample evidence from which the learned magistrate could conclude that the applicant knew Mr Henderson would be taking more than ten abalone. No doubt he did not know that precisely 694 abalone would be taken, but obviously the precise number which would be taken did not matter to him. There was sufficient evidence to justify a conclusion that he aided and abetted the commission of the offence under reg44(1)(o).

However, there was no evidence leading to a conclusion that when he aided and abetted Mr Henderson to take the abalone, the appellant knew that Mr Henderson would be taking undersized fish. There was no evidence that he knew of a size limit or that he knew the size of the fish which were about to be taken.. I conclude, therefore, that there was insufficient evidence to justify the conclusion of the learned magistrate that the appellant was guilty as an aider and abettor of the offence under reg31A(2)."

11 Earlier, at 5 of his judgment, the learned judge had said:

"To be liable as an aider or abettor the offender must know of all the essential facts constituting the principal offence. It was not enough therefore, that the applicant knew that Mr Henderson was taking abalone. For him to be liable as an aider or abettor of the offence constituted by reg31A(2), it was also necessary that at the time of his relevant acts he knew that Mr Henderson was going to take undersize abalone from the wild."

"Counsel for the respondent submitted that the learned magistrate unnecessarily restricted himself to a consideration of whether the applicant aided and abetted Mr Henderson to take the abalone from the rocks and place them in the net bags and ought to have considered whether the applicant, by assisting Mr Henderson to raise the abalone to the surface and pull them onto the shore, was committing the offences, not just as an aider and an abettor, but as a principal. I think there is merit in this submission so far as count 3 is concerned, but not count 2. The meaning of 'take' by s3 includes 'raise' and the applicant certainly took part as a principal in the raising of the fish from under the sea to the surface and onto the shore. However, by participating in the raising of the abalone, the applicant was not thereby guilty of count 2, for the raising of the abalone would not have been 'from the wild'. Once the abalone had been taken by Mr Henderson and placed in the bags, they were no longer in the wild and could no longer be taken from the wild.

As I pointed out earlier, by virtue of the extended meaning in the Act, s3, 'take' includes 'catch, dredge for, raise, kill, and attempt to take'. By virtue of it, a person may be deemed to have taken fish because of something that person did before or after the fish were caught, or even without the fish being caught at all. By attempting to take fish they are deemed to be taken, whether or not any are in fact caught. By dredging for fish they are deemed to be taken, whether or not any are caught. Equally, fish already taken might be taken again. For example, one person might dredge for fish and be deemed thereby to have taken them. A second person might actually catch the same fish and be deemed to have taken them. A third person might then raise those fish from the bottom of the sea where they were caught, and would also be deemed to have taken them. A fourth person might then kill those fish and, by doing so, would also be deemed to have taken them. However, for the offence in reg31A(2) to be committed, the undersize abalone must be taken 'from the wild'. That expression is not defined and its meaning is certainly not clear and it has taken me some time to make up my mind about the question. It suggests a condition of being in the wild, or of being in a natural state, uncontrolled and uncaptured by humans. My conclusion is that once a person has prised an abalone from its natural position on a rock and has placed it in a state of capture in a bag, it has been taken from the wild and cannot thereafter be once again taken from the wild unless it is first returned to the wild, that is to say, into a wild state. By raising net bags containing the undersize abalone, the applicant was taking them, because of the extended meaning of that word in s3, but he was not taking them from the wild and therefore he was not committing the offence in reg31A(2).

I have considered whether the words 'from the wild' limit the word 'take' and not the words 'undersize abalone'. A consideration of subreg(3), which makes it an offence to 'possess or have control of an undersize abalone which has been taken from the wild' suggests the former and I think 'from the wild' should be interpreted as applying in the same way in both subregulations."

12 The question for determination in this appeal is, therefore, whether the appellant, although not guilty as an aider or abettor to the process of prising undersized fish from the rocks, became a principal offender with Henderson when he assisted in raising the undersized fish in the collection bag from the sea floor to the surface. The central issue here is whether or not the abalone were still "in the wild" during that process.

13 As a starting point for the examination of this question, it may be useful to consider the necessary connotation of the words "from the wild". Its seems to me that the relevant dichotomy is with a state of domestication, rather than a state wherein the animal in question has been placed under control or restraint by a human agency (cf Reeve v Wardle; ex p Reeve [1960] Qd R 143). It seems to me that a creature is still "in the wild" if it is within its natural environment or habitat and that it has not necessarily been removed from that environment or habitat because it has been trapped or confined by the action of man. Plainly enough, questions of fact and degree will always be involved in considering this issue, but it cannot be automatically assumed that, because a creature has been captured or even reduced into possession, it has been removed from the wild so that its further abduction can no longer be regarded as a taking of it from the wild. A simple illustration will suffice. Flathead fish live and breed on or near the bottom. If hooked by an angler's line, a flathead is clearly "in the wild" in the relevant sense, at least until it is brought into the boat and deposited in the fish bin. In my opinion, a sea creature will normally be regarded as being "in the wild" until it is removed from the sea to a boat or to a land environment where it will be unable to survive without the provision of an artificial marine habitat. On this view, the prosecution in the present case should have succeeded. The abalone in question were still "in the wild" while being raised from the sea floor. In my opinion, there is no real need to consider whether the respondent's broader contention that the words in question merely serve to distinguish "the taking of fish from State fishing waters at large as opposed to State fishing waters the subject of marine farm leases", although it is fairly clear that any fish cultivated and kept in an artificial marine environment are not "in the wild" in the sense intended by the statute. In my opinion, on the facts as found by the learned magistrate, the appellant was guilty of an offence against reg31A(2) and his conviction and penalties should be restored.

14 The appellant's conviction in respect of taking more than 10 abalone in one day should be confirmed. However, counsel for the respondent has conceded there has been an arithmetical error in calculating the penalty in respect thereof in that the learned magistrate made no deduction in respect of the first 10 abalone caught. The fines and special penalties should have been applied in respect of 684 abalone, not 694 abalone. The special penalty should, accordingly, be reduced from $34,700, to $34,200 and the total payable by the appellant in respect of fines, special penalties and costs should accordingly reduce to $64,635.

15 In respect of the complaint for taking undersized abalone from the wild, the appellant's conviction should be restored and the fine of $500 and the special penalty of $29,400 should also be restored, together with lower court costs.

16 I agree with the reasons for judgment prepared by Wright J and with the orders he proposes.