Primary industry - Fish - Offences - Other cases - Two offences committed in relation to one catch - Whether separate special penalties to be imposed. Fisheries Act 1959 (Tas), s9(1)(y)(iii). Sea Fisheries Regulation 1962 (Tas), reg 44(5A). Munday v Cole [1986] TASSC 56; (1986) Tas R 160, followed. Ferraro v Glover (1989) 51 SASR 559, distinguished.

Primary industry - Fish - Offences - Forfeiture - What items liable to forfeiture - When a person is a member of a crew of a boat so that the boat becomes liable to forfeiture. Fisheries Act 1959 (Tas), ss57, 58.

Statutes - By-laws and regulations - Validity - Repugnancy - Repugnancy to authorising statute - Test for determining the validity of a regulation where its terms are such as to be capable of operating beyond that authorised by the authorising statute. Fisheries Act 1959 (Tas), s9(1)(y)(iii). Sea Fisheries Regulation 1962 (Tas), reg 44(5A).

ZEEMAN J The applicant was charged by a complaint charging seven breaches of the Sea Fisheries Regulations 1962 ("the Regulations"). The charges were dealt with by a magistrate. The learned magistrate dismissed the first of the charges, effectively on the basis that it disclosed no offence known to the law. The applicant pleaded guilty to the remaining charges. As to each of them he was fined and ordered to pay a special penalty.

2. The relevant breaches and the penalties imposed are as follows:

Breach of reg44(1)(o) Fine $500 Special penalty $6,500

Count 3

Breach of reg44(1)(s) Fine $200 Special penalty $7,000

Count 4

Breach of reg31(1)(d)(ix) Fine $100 Special penalty $100

Count 5

Breach of reg31(1)(d)(ix) Fine $100 Special penalty $100

Count 6

Breach of reg16D(3)(b) Fine $1,000 Special penalty $7,000

Count 7

Breach of reg17B(1)(a) Fine $100 Special penalty $100

3. By a notice to review the applicant seeks to have reviewed the orders of the learned magistrate whereby she "imposed fines of some $22,000" on the following grounds:

"1 The learned magistrate erred in law in imposing a special

penalty of $50 for each fish, which were the subject of

three different complaints relating to the same fish.

2 The learned magistrate erred in law in finding that

Reg44(5A) was intra vires the powers contained in the

Fisheries Act 1959."

4. The reference in the notice to review to "fines" is to be construed as including a reference to the special penalties. Substantially, ground 1 is limited to an argument concerning the special penalties imposed on counts 2, 3 and 6. Ground 2 is directed to all the special penalties which were imposed.

5. The learned magistrate also made an order, pursuant to the Fisheries Act 1959 ("the Act"), s61(2), condemning a rigid hull inflatable dingy, two fifty horse power Mariner outboard motors, two fuel tanks, two air bottles, a weight belt, a pair of goggles, an anchor and line, two fins, a backpack, three dive bags and a regulator. By the notice to review, the applicant also seeks a review of that order, upon the following grounds:

"3 The learned magistrate erred in law in finding that the

applicant was a member of the crew of the boat for the

purposes of the forfeiture provisions contained within S58

of the Sea Fisheries Act 1959.

4 The learned magistrate erred in law and fact in finding

that the diving equipment seized by the marine police should

be forfeited under the provisions of the Sea Fisheries Act

by way of S57 and S58 of the Act."

6. The following is a summary of the facts as they were stated to the learned magistrate by the prosecutor. At about 3.45pm on 2 June 1995, marine police were on duty in the area of Garden Island Creek when they observed a yellow inflatable travelling in the D'Entrecasteaux Channel towards Garden Island Creek in the mouth of the Huon River. The inflatable pulled into a jetty and boat ramp about 200 metres south of Garden Island Creek. Two persons were travelling in it. One carried ashore a half full hessian bag. A motor vehicle was observed near the jetty. About three minutes later police officers stopped that vehicle which was then being driven north on Garden Island Creek road. The female driver was spoken to. The vehicle was searched and the hessian bag was located in the boot. It contained 140 blacklipped abalone meats and two undersized crayfish. The officers took possession of the bag and its contents. Police officers then went to the boat ramp where they spoke to the applicant whilst he was in the process of pulling the inflatable from the water. He was asked whether he had a receipt for the abalone. He said that he did not. He declined to provide any explanation. A second male was in the inflatable whilst it was being pulled from the water. He also declined to offer any explanation. The applicant then said "he (ie, the second person) did not do anything, I took them all and I had possession of them, you don't think I'd own up to anybody else's fish at $50 a fish". Whilst the contents of the bag were being examined, the applicant commented, by reference to the abalone, "they're all fresh and still bleeding". Before the police left the area, the applicant said "I took all the fish and I had possession of them all the time". That statement of facts was quite inadequate. However, by his pleas of guilty the applicant is to be taken as having admitted all the necessary ingredients of the various offences.

7. It is appropriate to consider ground 2 first. It asserts that the Regulations, reg44(5A) is ultra vires the Act. This ground was argued upon the basis that the Act, s9(1)(y)(iii) authorises the making of regulations providing for the imposition of a special penalty in relation to offences of specified types, whereas reg44(5A) purports to apply to any offence created by the regulations which concerns an abalone or a portion of an abalone.

"9 (1) The Governor may make regulations

...

(y) providing for a contravention of, or a failure to comply

with, a provision of the regulations to be an offence and

...

(iii) providing in respect of any such offence for the

imposition of a special penalty of an amount to be

determined by the court, or of an amount being a fixed

amount no more and no less than the amount specified in

the regulations, in relation to each fish or the weight of

fish, or fish of any kind or species, taken, bought, sold,

offered, or exposed for sale in or in connection with the

commission of the offence, or in the possession of any

person committing the offence, or in relation to each net,

engine, or other article of any kind used or in the

possession of a person committing the offence".

"44 ...

(5A) If a person is guilty of an offence against these

regulations with respect to an abalone or a portion of an

abalone, there is to be imposed on the person, in addition

to any other penalty to which he or she is liable in respect

of that offence, a special penalty of exactly 0.5 penalty

unit in respect of each of those abalone or each of those

portions of abalone."

10. It would have been more sensible if the draftsman of reg44(5A) had adopted the same form of words as that which appears in s9(1)(y)(iii). Had that been done, the argument advanced by the applicant would not be open. However that argument does not succeed merely because it is possible to conceive that some offence might be created to which reg44(5A) would apply but which would fall outside the categories of offences referred to in s9(1)(y)(iii). The test of validity of reg44(5A) is whether, at the time that sub-regulation was made, the Regulations created any offence "with respect to an abalone or a portion of an abalone" which did not fall within s9(1)(y)(iii). If the answer to that question is in the negative then, notwithstanding the different form of words used in the two provisions, reg44(5A) is intra vires.

11. The expression "with respect to", as it appears in reg44(5A), is of wide import. It means having some substantial relationship to, or connection with, abalone (see Paull v Munday (1976) 9 ALR 245 at 251, 259). The Act, s9(1)(y)(iii) authorises the making of a regulation which provides, in respect of any offence created by a regulation made in the exercise of the power conferred by the preceding provisions of s9, for the imposition of a special penalty. Regulations may provide that the amount of the special penalty be in the discretion of the court or in a fixed amount. The amount of the special penalty insofar as it concerns fish, whether discretionary or mandatory, is to be determined in relation to each fish or the weight of fish taken, bought, sold, offered, or exposed for sale in or in connection with the commission of the offence, or in the possession of any person committing the offence. The wide introductory provisions of s9(1)(y)(iii), which suggest that a special penalty may be provided for in relation to any offence created by regulation, are cut down by the further provisions as to the method of calculating a special penalty. A special penalty may only be provided for in the case of an offence which is of such a nature as to make it possible to apply that method of calculation. I have not been able to find any offence created by the Regulations with respect to an abalone or portion of an abalone which does lend itself to the calculation of a special penalty in the manner provided for by s9(1)(y)(iii). The applicant was not able to point to any such offence. It follows that all offences which fall within the ambit of reg44(5A) are offences which s9(1)(y)(iii) authorises to be made the subject of a special penalty. Ground 2 fails.

12. The primary submission made in support of ground 1 is one which was also made in Ford v Richardson A70/1995 (unreported, available on SCALE), although in that case I found it unnecessary to deal with it. I said at 3:

"As a result it is unnecessary to consider the argument that

it is not lawful to impose more than one special penalty in

the case where a defendant is convicted of more than one

offence relating to the same fish. I observe that the state

of authority is not entirely clear on this question. In

Ferraro v Glover (1989) 51 SASR 559 the Full Court of the

Supreme Court of South Australia came to a conclusion in

accord with the submissions made by the applicants in

relation to equivalent legislation. Some observations were

made in Munday v Cole [1986] TASSC 56; (1986) Tas R 160 which counsel for the

respondent submitted are to contrary effect, albeit entirely

obiter and perhaps without there having been made

submissions to the effect of those which found favour in

Ferraro v Glover."

13. Before dealing with that submission, it is necessary to consider as a separate matter the jurisdiction of the learned magistrate to impose any penalty, or indeed a conviction, on count 2. That count charged a breach of reg44(1)(o) which provides as follows:

"44 (1) No person

...

(o) shall, in State fishing waters, take more than 10

abalone in any one day, unless the person is the holder of a

subsisting commercial abalone diver's licence".

14. Count 6 charged the applicant with a breach of reg16D(3)(b). That count concerned the same abalone, except that it concerned all the abalone found in the possession of the defendant whereas count 2, by reason of the wording of reg44(1)(o), concerned those abalone other than the first ten. At the time that the applicant committed his offences, reg16D(3) provided as follows:

"16D ...

(3) A person who is not

(a) the holder of an abalone quota licence; or

(b) the holder of a non commercial diving licence issued for

the purpose of taking abalone;

(c) the holder of an abalone licence

shall not take any abalone in State fishing waters".

15. The draftsman of count 6 proceeded upon that basis that each of the three paragraphs contained in reg16D(3) created a separate offence. Plainly that is incorrect. The subregulation prohibited a person who was not the holder of any of the three specified forms of licence from taking abalone in State fishing waters. Count 6 states the charge as being one of taking "abalone in State fishing waters whilst not the holder of a non-commercial diver's licence issued for that purpose". That is not an offence which was created by reg16D(3). The offence created was the taking of abalone in State fishing waters by a person not the holder of any of the licences specified in that sub-regulation.

16. To understand the relationship between regs16D(3) and 44(1)(o) it is necessary to refer to the nature of the licensing system. At the time that the applicant committed his offences there were four types of licence pursuant to which abalone might be taken, namely an abalone quota licence, a non-commercial diving licence, an abalone licence and a commercial abalone diver's licence. The only subsequent relevant change in the law is to substitute a variety of recreational licences, including a recreational abalone dive licence, for non-commercial diving licences. Regulation 16G authorises the holder of an abalone quota licence, and any person authorised by the holder and approved under reg16J(1), to take the number of abalone quota units specified in the licence. An abalone licence is a licence which is conferred by an abalone deed of agreement authorised by the Act, s7. By such an agreement there is conferred, upon the licence holder, licence and authority to enter State waters and to take and acquire therefrom a specified number of abalone quota units per annum for commercial purposes. By reg16D(1) the expressions "holder of an abalone licence" and "holder of an abalone quota licence" include a licensed commercial abalone diver authorised by the holder to take abalone under that licence and whose authorisation has been approved under reg16J(1). The issue of commercial abalone divers' licences and the authority conferred by them is provided for by regs16QA and 16S. By operation of reg16D(6), the holder of an abalone quota licence or an abalone licence may not personally swim from or dive from a fishing boat for or in connection with the taking of abalone but must use the services of a person who is the holder of a commercial abalone diver's licence.

17. Non-commercial diving licences were provided for by reg17B as in force at the time that the applicant committed his offences. That regulation made no provision as to what was authorised to be done pursuant to such a licence beyond the requirement imposed by reg17B(3A)(a) that the holder of such a licence bring all abalone ashore above high water mark before detaching them from the shell. However, reg44(1)(o) effectively imposed a condition on such a licence that not more than ten abalone could be taken in any one day because, unless the licence holder was also the holder of another relevant licence, to do so constituted an offence.

18. The regulatory scheme to be gleaned from the various provisions, albeit that they are inconveniently scattered throughout the Regulations, is that provision is made for both commercial and non-commercial taking of abalone. Insofar as commercial taking is concerned, that may lawfully be done pursuant to an abalone licence or an abalone quota licence, where required using the services of a person who is the holder of a commercial abalone diver's licence. For such commercial taking to be lawful, it must be done in accordance with the terms of the licence and the relevant regulatory requirements. Insofar as non-commercial taking was concerned, it could only be done pursuant to a non-commercial abalone diver's licence (and may now only be done pursuant to a recreational abalone dive licence) and it was, and remains, limited to the taking of no more than ten abalone in one day.

19. The case against the applicant, as accepted by him by his plea of guilty to count 6, was that he was not the holder of a licence at all. It may be that reg44(1)(o), in the form in which it took when the applicant committed his offences, should be construed as being limited in its application to persons holding a non-commercial abalone diver's licence. That would be consistent with the regulatory scheme provided for by the Regulations. Regulation 44(1)(o) may be contrasted with reg44(1)(oa) which deals with scallops. It is drawn in far more satisfactory terms. I do not need to decide whether reg44(1)(o) should be limited in its operation in this way because, as the applicant was alleged to have committed breaches of each of the two regulations by virtue of taking abalone when he was not the holder of any licence and nothing else, it was not open to the learned magistrate to convict and sentence the applicant in respect of breaches of each of the two provisions.

20. The elements of the offence charged by ground 6, although by reason of a mis-statement of the offence that does not appear therefrom, were that the applicant took abalone in State fishing waters when he was not the holder of any form of licence which authorised their taking. Proof of those facts established all the elements of that charge. Those same facts established all the elements of the offence charged by count 2. In accordance with the principles laid down in Wood v Major (1992) 1 Tas R 407 (NC 13) and Dellar v Crawford (1992) 62 A Crim R 171, the learned magistrate was required to dismiss count 2. By the learned magistrate doing otherwise, the applicant was unlawfully punished twice for the same conduct. The proper course would have been for the complaint to have charged a breach of reg44(1)(o) only as an alternative to the charge under reg16D(3)(b). Such a course is permissible (Richards v McGaurr A42/1994, (unreported, available on SCALE)). The conviction on count 2 must be quashed and the penalties in respect thereof set aside.

21. That leaves the question as to whether it was open to the learned magistrate to impose special penalties on each of counts 3 and 6. The offences charged are those of having possession in a boat of abalone which had been detached from their shells and of having unlawfully taken abalone. The two offences concerned the same abalone. On the face of it, authority required that the learned magistrate impose a special penalty in respect of each offence, notwithstanding that the same abalone were involved. The authority is to be found in the decision of the Full Court in Munday v Cole [1986] TASSC 56; (1986) Tas R 160, which concerned the Act, s9(1)(y) and the Regulations, reg44(5A) in earlier forms. In that case Cosgrove J said, at 170:

"It is clear that the regulations, if they are valid, did

bind the learned magistrate to impose both a minimum penalty

and a special penalty of $10.00 per fish in respect of each

offence. This means that, if an offender commits several

offences in the course of one illegal transaction (as the

appellant did, by taking and shucking the abalone) he

becomes liable to the special penalty in respect of each

offence. This puts great power into the hands of a

prosecutor. If he so chooses, he can limit the charges to

one, so minimizing the penalty. On the other hand, by

multiplying the charges, he could increase the penalty

payable many times. To repose such power in the hands of a

person whose acts are not subject to review is in my view a

dubious and unwise exercise of a regulation-making power."

22. Green CJ, by way of a passing reference at 163, appears to have agreed that an offender who commits several offences in the course of one illegal transaction becomes liable to a special penalty in respect of each offence. The third member of the Court, Nettlefold J, expressed no opinion on the matter. The observations of Green CJ and Cosgrove J plainly were obiter because the ratio of that case was that the Act, s9(1)(y), as it then stood, did not authorise the making of a regulation providing for the mandatory imposition of a special penalty in a fixed amount. As a result, the Court held that reg44(5A) in its then form was ultra vires the Act.

23. Subsequent to Munday v Cole (supra) being decided, the Full Court of the Supreme Court of South Australia, in Ferraro v Glover (1989) 51 SASR 559, directly dealt with the question of whether an offender who commits several offences in the course of one illegal transaction becomes liable to a special penalty in respect of each offence. That case concerned the Fisheries Act 1982 (SA), s66, which provided as follows:

"Where a person is convicted of an offence against this Act

involving the taking of fish, the court shall, in addition

to imposing any other penalty prescribed by this Act, impose

a penalty equal to

(a) five times the amount determined by the convicting court

to be the wholesale value of the fish at the time at which

they were taken;

or

(b) ten thousand dollars,

whichever is the lesser amount."

24. The respondent in that case had been convicted of offences of taking undersize abalone and of taking abalone in excess of the limit allowed to an unlicensed fisherman. The question was whether s66 required that there be imposed a separate special penalty in respect of each of those two offences. The court held that it did not so require and that only one special penalty could lawfully be imposed. King CJ expressed his reasons for coming to that conclusion as follows (at 560);

"The additional penalty is related to the value of the fish

involved in the offending. I think that the intention

underlying the provision is that the offender should suffer

the penalty appropriate to each offence, and should in

addition be required to pay five times the wholesale value

of the fish involved in the offending. I consider that to

construe the section as requiring a separate additional

penalty for each offence committed in respect of the same

catch of fish would be unnecessarily Draconic and contrary

to the intention which I discern in the provision. I think

that in accordance with s26(b) of the Acts Interpretation

Act 1915 the word 'offence' in the singular number should be

construed as including 'offences' in the plural number."

25. Cox J (at 563) considered s66 to be ambiguous in that it was open to the construction favoured by King CJ and also open to a construction which required the special penalty to be imposed in relation to each offence of which an offender was convicted in relation to the same catch of fish. In those circumstances, relying on Byrne v McLeod [1934] HCA 61; (1934) 52 CLR 1 at 8, he preferred the former construction as one that avoided harshness. Millhouse J said that he agreed, although without indicating that he agreed with any particular reasons expressed by the other members of the court.

26. I consider that the South Australian provision is distinguishable from reg44(5A) in that it provided for a special penalty related to the value of the catch, supporting the proposition that the catch, rather than the offences committed, was the primary object of the special penalty. By way of contrast, reg44(5A) fixes a monetary amount unrelated to fluctuations in value. That aspect was important in the reasoning of King CJ. The South Australian provision is also distinguishable because the form of words used by it did not specify that the special penalty was to be imposed in respect of the offence of which the offender was convicted. In my view reg44(5A) does so specify. The obligation imposed by reg44(5A) to impose a special penalty "in addition to any other penalty to which (the offender) is liable in respect of that offence" is to be construed as an obligation to impose the special penalty in relation to each relevant offence. I note that the important words "in respect of that offence" did not appear in the South Australian section.

27. Although I am not bound by the dicta in Munday v Cole (supra), I consider that they correctly state the proper construction to be placed on reg44(5A). Ferraro v Glover (supra) is distinguishable for the reasons I have expressed. The learned magistrate lawfully imposed special penalties in respect of each of counts 3 and 6. Nevertheless, it is important to restate the concerns expressed by Cosgrove J, also adverted to by King CJ, as to the injustices which may result from the requirements of a provision such as reg44(5A). A provision which effectively makes the amount of a monetary penalty to be imposed in a particular case a matter for the prosecutor may be made the instrument of injustice. Fixed penalties to protect natural resources may be justified on policy grounds. It is difficult to see how those policy grounds are capable of justifying the multiplication of those penalties in respect of one interference with the natural resource through the ingenuity of a prosecutor in formulating various offences all arising out of that one interference.

28. I turn now to those grounds which concern the order of condemnation made by the learned magistrate. Provisions concerning forfeiture and condemnation are contained in the Act, ss57 - 68A. Forfeiture is provided for by ss57 and 58 and condemnation of a forfeited item by s61. Condemnation may occur in one of two circumstances. Section 61(1) provides for the automatic condemnation of a forfeited item upon conviction for an offence involving forfeiture. Section 61(2) provides for condemnation on a complaint for forfeiture. The order made by the learned magistrate was made under s61(2), the applicant having given notice in writing disputing the forfeiture pursuant to s59(2). The effect of such a notice is that condemnation does not occur upon conviction but may only occur as the result of an order under s61(2) (Cole v Esanda Ltd (1982) Tas R 130 at 134). It may be that s61(2) is also capable of being utilised in a case where there has been a forfeiture but no conviction and no notice has been given.

29. The applicant gave evidence in relation to the complaint for forfeiture. The learned magistrate accepted that evidence. The applicant told the learned magistrate that on the day in question he decided that he would go diving. He went by boat from Charlotte Cove to Bruny Island, taking with him a friend, Mr Darman, who was recuperating from injuries he had suffered in a motor vehicle accident. On reaching Bruny Island, the applicant drove the boat ashore. He then left it, taking a tank and other diving equipment, and went to an area some fifty metres to the north where he dived for abalone. He succeeded in catching the abalone which were the subject of various of the charges. He removed the abalone from the rocks using a knife and took them ashore in a hessian bag. He then returned to the boat. He placed the hessian bag and the tank and other equipment in the boat. The applicant then sat in the boat for an hour or so whilst Mr Darman dived. The two men then returned in the boat to Charlotte Cove. There was no suggestion that Mr Darman ever was anything other than a passenger in the boat whilst it was on its way to and from Bruny Island.

30. The relevant errors asserted by the notice to review are that the learned magistrate erred in concluding that the applicant was a member of the crew of the boat (which is relevant for the purposes of s58) and in finding that the diving equipment was encompassed within the description of things liable to be forfeited. The Act, ss57 and 58 provide as follows:

"57 All boats, engines, nets, and other articles used by,

or in the possession of, any person, and all fish taken,

bought, sold, offered, or exposed for sale, or in the

possession of any person, contrary to the provisions of this

Act, are, by force of this section, forfeited to and are the

property of the controlling body constituted under the Part

under or in relation to which the contravention occurs.

58 A boat the crew of which, or any part of the crew of

which, is found

(a) fishing or taking fish; or

(b) preparing to fish; or take fish,

or is proved to have been fishing or taking fish anywhere

within the jurisdiction of the State contrary to the

provisions of this Act, and a boat on board of which any

fish unlawfully taken, or any part thereof, or any engine or

apparatus for fishing, the use of which is prohibited by

this Act, is found, together with all other boats, if any,

connected or used therewith, and the tackle, rigging,

furniture, stores, and appurtenances, engines, nets, and

other apparatus, belonging thereto or being therein, are, by

force of this section, forfeited to and are the property of

the controlling body constituted under the Part under or in

relation to which the contravention occurs."

31. The applicant argued that on the evidence he was a member of the crew of the boat from the time that it left Charlotte Cove until he left it on reaching Bruny Island and during its return journey, but that he was not a member of the crew at the time that he took the abalone. I observe that there was no reference in the evidence to the taking of crayfish. That matter can be ignored for present purposes because it cannot affect my conclusions as to the grounds concerning the condemnation order.

32. Both ss57 and 58 would be worthy subjects of re-drafting in a more intelligible form. Those sections would be better expressed if they adopted objective standard, rather than using expressions such as "is found" and "is proved". However, whatever else it may provide for, s58 provides that a boat, the crew or any part of the crew of which is proved to have been fishing contrary to the provisions of the Act, is, by force of the section, forfeited to the controlling body.

33. The applicant submits that he was not a member of the crew of the boat at the time that he was fishing for the abalone the subject of the complaint. The applicant dived for and caught the abalone when he was some fifty metres from the boat. The boat was used by him to travel to the place where he intended to obtain abalone. Merely because the applicant did not dive from the boat but walked some distance and then dived, he did not cease to be a member of the crew. The boat was an inherent part of the applicant's undertaking. The error asserted by ground 3 is not made out.

34. This leaves the question of the diving equipment which is raised by ground 4. The applicant submitted that this equipment does not fall within the categories of things which are the subject of ss57 and 58. I do not consider that it falls within s57. For it to fall within this section it must have been an article "used by, or in the possession of (the applicant) ... contrary to the provisions of (the) Act". The diving equipment does not fall within this description because its use or possession was not unlawful. There are of course many offences which are constituted by using or possessing a certain thing. Many examples of such offences may be found in the Regulations, reg44(1).

35. In order to determine whether the diving equipment fell within s58 it is necessary to identify what is subject to forfeiture under that section. That is not an easy task because of the convoluted language employed. I have concluded that the following matters are subject to forfeiture by force of that section:

1 A boat, the crew of which, or any part of the crew of

which, is found fishing or taking fish or preparing to fish

or take fish contrary to the provisions of the Act.

2 A boat, the crew of which, or any part of the crew of

which, is proved to have been fishing or taking fish

anywhere within the jurisdiction of the State contrary to

the provisions of the Act.

3 A boat on board which there is found any fish unlawfully

taken.

4 A boat on board which there is found any engine or

apparatus for fishing, the use of which is prohibited by the

Act.

5 A boat connected or used with a boat falling into any of

the first four categories.

6 The tackle, rigging, furniture, stores, appurtenances,

engines, nets and other apparatus belonging to, or being in,

a boat falling into any of the above categories.

36. In passing, I observe that if these provisions were to be applied literally a large cruise liner visiting Tasmania might be forfeited to the controlling authority by force of s58 as the result of things such as a member of its crew engaging in unlawful fishing or there being found on board in the possession of a passenger an abalone unlawfully taken.

37. If the diving equipment is liable to forfeiture at all, it falls into the sixth of the categories of things liable to forfeiture which I have identified. In my view, it does not. The eiusdem generis rule should be applied to the expression "other apparatus" so as to limit it to apparatus which has some connection with a boat in the sense of it being used on a boat or in conjunction with a boat. Personal diving equipment is not of this nature. Ground 4 is made out. The order of condemnation cannot stand but a fresh condemnation order, excluding therefrom the diving equipment, should be made. Before making such an order, I will hear the parties because I am uncertain as to which of the items the subject of the learned magistrate's order are part of the diving equipment.

38. It follows from my reasons that the appeal is allowed in part. The conviction and penalties on count 2 of complaint 8449/95 are quashed and that charge is dismissed. The order of condemnation made on complaint 38998/95 is set aside. I will hear the parties as to the form of order which should be made in lieu thereof.