NSWNSWCCA

Moriarty v Nye

[2024] NSWCCA 116

Court of Criminal Appeal (NSW)|2024-03-27|Before: Kirk JA, Wilson J, Yehia J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2024-03-27

Before

Kirk JA, Wilson J, Yehia J

Catchwords

(2011) 244 CLR 390 Akiba v Commonwealth [2013] HCA 33
(2013) 250 CLR 209 Akiba v Queensland (No 2) [2010] FCA 643
(2010) 204 FCR 1 Attorney-General (Cth) v Huynh [2023] HCA 13
(2023) 97 ALJR 298 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15

Source

Original judgment source is linked above.

Catchwords

(2011) 244 CLR 390 Akiba v Commonwealth [2013] HCA 33(2013) 250 CLR 209 Akiba v Queensland (No 2) [2010] FCA 643(2010) 204 FCR 1 Attorney-General (Cth) v Huynh [2023] HCA 13(2023) 97 ALJR 298 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15(1993) 177 CLR 485 Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Carriage v NSW Department of Planning, Industry & Environment [2022] NSWDC 283(2022) 39 DCLR(NSW) 66 Chugg v Pacific Dunlop Ltd [1990] HCA 41(1990) 170 CLR 249 Commissioner of Police (NSW) v Cottle [2022] HCA 7(2022) 276 CLR 62 Commonwealth v Akiba [2012] FCAFC 25(2012) 204 FCR 260 Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1[2007] HCA 38 Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36(2013) 248 CLR 619 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122(2023) 377 FLR 307 Dillon v Davies (1998) 8 Tas R 229 Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5(1990) 168 CLR 594 Dudley v Department of Primary Industries and Regions (SA) [2018] SASCFC 23(2018) 231 LGERA 13 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22

Judgment (20 paragraphs)

[1]

10] FCA 643; (2010) 204 FCR 1 Attorney-General (Cth) v Huynh [2023] HCA 13; (2023) 97 ALJR 298 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Carriage v NSW Department of Planning, Industry & Environment [2022] NSWDC 283; (2022) 39 DCLR(NSW) 66 Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 Commissioner of Police (NSW) v Cottle [2022] HCA 7; (2022) 276 CLR 62 Commonwealth v Akiba [2012] FCAFC 25; (2012) 204 FCR 260 Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1; [2007] HCA 38 Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 248 CLR 619 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122; (2020) 279 FCR 631 David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Ltd [2024] NSWCA 83 Derschaw v Sutton (1996) 17 WAR 419 Dietman v Karpany [2023] SASCA 52; (2023) 377 FLR 307 Dillon v Davies (1998) 8 Tas R 229 Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594 Dudley v Department of Primary Industries and Regions (SA) [2018] SASCFC 23; (2018) 231 LGERA 13 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314 Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24 ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; (2009) 240 CLR 140 John v Commissioner of Taxation (Cth) [1989] HCA 5; (1989) 166 CLR 417 Karpany v Dietman [2013] HCA 47; (2013) 252 CLR 507 Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 Mason v Tritton (1994) 34 NSWLR 572 Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Director of Public Prosecutions; Ex parte Kebilene [2000] 2 AC 326 R v Edwards [1975] QB 27 Santo v David [2010] FCA 42; (2010) 182 FCR 438 Scott Fell v Lloyd (Official Assignee) [1911] HCA 34; (1911) 13 CLR 230 Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454 The King v Jacobs Group (Australia) Pty Ltd [2023] HCA 23; (2023) 97 ALJR 595 The Queen v Falzon [2018] HCA 29; (2018) 264 CLR 361 Totaan v R [2022] NSWCCA 75; (2022) 108 NSWLR 17 Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 Wanganeen v Dietman [2021] SASCFC 25; (2021) 139 SASR 170 Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269 Woolmington v Director of Public Prosecutions [1935] AC 462 Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 Texts Cited: Commonwealth Senate, Parliamentary Debates (Hansard), 21 December 1993 Court of Criminal Appeal - General Practice Note SC CCA 1, para 18(a)(viii) Macquarie Dictionary, online ed, accessed 8 July 2024 Category: Principal judgment Parties: Andrew James Moriarty, Director Fisheries Compliance, Department of Regional NSW (Prosecutor) Keith Ronald Nye (Respondent) Representation: Counsel: JS Emmett SC and AR Sapienza (Prosecutor) N Allan (Respondent)

[2]

Solicitors: Crown Solicitor's Office (Prosecutor) Boom Lawyers (Respondent) File Number(s): 2017/00051763 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: Not applicable Date of Decision: Not applicable Before: N Williams DCJ File Number(s): 2017/00051763

[3]

HEADNOTE [This headnote is not to be read as part of the judgment] Section 211 of the Native Title Act 1993 (Cth) (NT Act) provides native title holders with an immunity from certain federal, State and Territory laws which prohibit or restrict them from fishing (amongst other things) where they do so in exercise or enjoyment of their native title rights for the purpose of satisfying their personal, domestic or non-commercial communal needs. The respondent, Mr Keith Nye, is an Aboriginal man of the Yuin nation and member of a registered native title claim group. In January 2017 he obtained possession of some 567 shucked and frozen abalone which had been gathered by 25 or so other Yuin men. He took the abalone to Sydney, selling 128 of them (about 16 kg) to the owner of a Chinese restaurant before being intercepted by police. Mr Nye did not hold a licence or permit under the Fisheries Management Act 1994 (NSW) to possess or sell abalone. He was convicted in the Local Court of two offences under that Act for possession and trafficking abalone in a commercial and indictable quantity without a licence or permit. His reliance on s 211 of the NT Act was rejected. He appealed to the District Court, which then submitted a stated case to this Court pursuant to s 5B(1) of the Criminal Appeal Act 1912 (NSW). The questions in the stated case, whilst stated in a somewhat problematic manner, raised three core issues relating to the construction and application of s 211 of the NT Act, namely: whether collection by a native title holder of abalone from others for sale off Country can be characterised as "for the purposes of satisfying their personal, domestic or non-commercial communal needs" within the meaning of s 211(2)(a); whether the activity in question can be characterised as "fishing", "gathering" or carrying on "a cultural or spiritual activity" for the purposes of s 211(3); and which party bears the legal burden of proof and persuasion as regards the matters raised by s 211, and to what standard. The Court (Kirk JA, Wilson and Yehia JJ) answered the questions stated in part, holding as follows: Issue (1):

The focus of the dispute as to the meaning of the purpose requirement in s 211(2)(a) was on what was encompassed by "non-commercial communal" along with the meaning of "needs". These are issues of statutory construction to be resolved by reference to the text, context and purpose of the provision: at [41]. Section 211 is designed to benefit Indigenous people by providing them with an immunity from the operation of certain restrictive laws and may apply to a diverse range of regulatory schemes in a wide range of courts, but most commonly it will be invoked in local courts before magistrates. The Parliament can be taken to have intended that the provision was capable of operating in a practical way in such courts: at [50]. It is unlikely that the Parliament intended s 211 to require a determination of the reasonable level of exploitation of natural resources for an indigenous community, as the judgments involved are complex, polycentric, evaluative and overall unsuitable for courts especially in the criminal context: at [54]-[55]. While on any view the provision is beneficial to native title holders, no legislation pursues its purposes at all costs, and s 211 involves a balancing of interests: at [57]. Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269; Karpany v Dietman [2013] HCA 47; (2013) 252 CLR 507; Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314; Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381; ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; (2009) 240 CLR 140; Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454; The King v Jacobs Group (Australia) Pty Ltd [2023] HCA 23; (2023) 97 ALJR 595; AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390, referred to. Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 248 CLR 619, applied.

[4]

JUDGMENT

THE COURT: Section 211 of the Native Title Act 1993 (Cth) (NT Act) provides native title holders with an immunity from federal, State and Territory laws which prohibit or restrict them from fishing (amongst other things) where they do so in exercise or enjoyment of their native title rights, for the purpose of satisfying their personal, domestic or non-commercial communal needs. The provision has been in the Act since it was first introduced, having been an amendment to the original Bill moved by a crossbench Senator. The meaning and practical application of the section has been the cause of some difficulty and controversy. A case has been stated to this Court by the District Court raising three issues in that regard.
The context is as follows. Section 18(2A) and (2B) of the Fisheries Management Act 1994 (NSW) (FM Act) make it an offence to possess a priority species of fish in a commercial quantity without a licence or permit. Schedule 1B prescribes abalone to be a priority species of fish and the commercial quantity specified is 10. Section 21B of the same Act makes it an offence to traffic an indictable quantity of an indictable species of fish. Schedule 1C prescribes abalone to be an indictable species of fish and its indictable quantity is 50.
The prosecutor is the Director of Fisheries Compliance in the Department of Regional NSW. The respondent, Mr Keith Nye, is an Aboriginal man of the Yuin nation on the south coast of New South Wales. He is a member of a registered native title claim group. In January 2017 he obtained possession of some 567 shucked and frozen abalone which had been gathered by 25 or so other Yuin men. He played no role in gathering the abalone himself. He took the abalone to Sydney, selling 128 of them (about 16 kg) to the owner of a Chinese restaurant before being intercepted by police. Mr Nye did not hold a licence or permit under the FM Act to possess or sell abalone.
Mr Nye was charged in the Local Court with certain offences under the FM Act. He invoked s 211 of the NT Act in the proceedings. In a carefully considered judgment by Magistrate Abdul-Karim, Mr Nye was convicted of two of the offences charged, under ss 18 and 21B of the FM Act. He appealed his convictions to the District Court. At the request of the prosecutor, and prior to determination of the appeal, N Williams DCJ submitted a stated case to this Court pursuant to s 5B(1) of the Criminal Appeal Act 1912 (NSW), identifying what were said to be five questions of law arising from these proceedings.

[5]

The facts in the stated case

The facts stated by N Williams DCJ relevantly are as follows: The Appellant's [ie Mr Nye's] conduct 5 On Friday 20 January 2017, Fisheries Officers (FO) Andrew Field, Matthew Cartwright and Anthony Chen were conducting surveillance of a residential premises at 136 Nottinghill Rd, Berala NSW (the Residence). 6 The Residence is within the territorial limits of New South Wales and is an area to which the FM Act applies. 7 In the afternoon of 20 January 2017, the Appellant telephoned Mr Hoa La. Mr La was the owner of the Dragon Bowl Seafood Restaurant in Canley Vale and resided at the Residence. 8 At about 5:25pm on 20 January 2017, the Appellant attended the Residence in his vehicle. 9 The Appellant entered the driveway and stopped his vehicle in the rear yard of the Residence. 10 The Appellant took two plastic bags containing 128 shucked and frozen abalone (Haliotis rubra) from the boot of his vehicle. The Appellant handed the two bags containing the abalone to Mr La. Mr La paid the Appellant $60 per kilo in cash, totalling $960, for the 128 abalone. 11 At about 5:45pm, the Appellant drove his vehicle away from the Residence. 12 At about 5:50pm, a NSW Police highway patrol vehicle intercepted the Appellant's vehicle a short distance away on Amy St, Berala. 13 NSW Police inspected the contents of the boot following a short conversation during which the Appellant told NSW Police that he had "a couple of bags" of "abalone in the boot" of his car. 14 A short time later, FOs Kirwin and Chen arrived. The FOs identified themselves to the Defendant. FO Kirwin cautioned the Appellant. The Appellant acknowledged that he understood the caution. FO Chen then commenced to make a video recording of subsequent events. 15 The video recording discloses that the Appellant was questioned in relation to the possession of the abalone in the boot of his vehicle. He admitted to being in possession of the abalone. 16 FOs Chen and Kirwin conducted a search of the Appellant's vehicle. In addition to the abalone in the boot of the vehicle, the FOs located cash in the console and a smaller amount of cash in a compartment in front of the gear stick. A count of the money determined there to be $1,060 in total. The Appellant told FO Kirwin that the money was cash he had won at a venue called the Tomakin Club. This was untrue. 17 A short time later, FO Chen had a conversation with the Appellant. In answer to a question whether the abalone belonged to the Appellant, the Appellant said that the abalone was "all mine, but I collect it down home". The Appellant said that he was "shooting them through to a mob up here in Sydney". The Appellant said that he did not gather the abalone by himself. When asked which mob, the Appellant said "Aah. Blacktown". 18 The Appellant was arrested and conveyed to Auburn Police Station. 19 At Auburn Police Station, the FOs counted and measured the abalone from the vehicle in the presence of the Appellant. 20 At the time his vehicle was stopped by NSW Police, the Appellant was in possession of 439 shucked and frozen abalone. They were separated into bags in equal lots of about 1 kilogram. 21 At about 9.30pm on 20 January 2017, FOs executed a search warrant at the Residence. Police located and seized 128 abalone from a freezer. Mr La informed police that he purchased 16 kilograms of abalone from "Keith" that day for the purpose of cooking and selling them at his restaurant. 22 The 567 abalone in the possession of the Appellant on 20 January 2017 immediately prior to the sale to Mr La (the Abalone) were not taken from the sea by the Appellant, but were given to him by other men who had taken the Abalone from the sea. 23 The Abalone could have been provided to the Appellant by any or several of up to 25 Aboriginal men of the Yuin nation. 24 The Appellant was not present while the Abalone were taken from the sea. He did not know from where those who fished for the Abalone took it, except that it could have been from anywhere between La Perouse and Eden. He did not know when the Abalone was taken from the sea, how they were taken, when they were shucked or how long they had been frozen before they were delivered to him. 25 The Appellant said that, of the 439 abalone in his possession when he was stopped by the FOs, he intended to offer to his aunty in Blacktown however many she wanted. 26 The Appellant intended to sell the Abalone that he did not give to his aunty in Blacktown. 27 The Appellant intended to distribute the money from the sale of the Abalone to the men who had taken it from the sea after taking a "cut" of between $5-8 per kilogram. 28 On 20 January 2017, the Appellant did not hold a commercial fishing licence or any other licence or permit which allowed him to possess more than the possession limit of abalone or any authority allowing him to take, possess or sell abalone. 29 The learned Magistrate Abdul-Karim found that the Appellant (the Defendant at first instance) had a commercial purpose in possessing the Abalone, and selling 128 of the Abalone, which was inconsistent with a purpose of satisfying personal, domestic or non-commercial communal needs. … The Appellant's native title rights and interests 31 The Appellant denies that his conduct contravened the FM Act because of the operation of s 211 of the Native Title Act 1993 (Cth) (NT Act) (the native title exception). 32 The South Coast People have filed a native title determination application (NSD 1331/2017) in the Federal Court of Australia (the Application). 33 The Application covers a 16,808 square kilometre area, whose easterly boundary is the 3 nautical mile limit of the State's territorial waters. 34 The Application describes apical ancestors whose biological descendants comprise the native title claim group. 35 For the purposes of the NT Act, the Application was assessed by the National Native Title Tribunal and considered to have met the requisite standard for the Application to be registered. 36 The South Coast proceedings are yet to be determined by the Federal Court of Australia. 37 The Appellant is a Yuin man and forms part of the native title claim group. 38 It was an agreed fact at trial that, as a consequence of registration and only for the purposes of s 211 of the NT Act, the Appellant is able to be considered to be a native title holder until such time as the Application is either determined, withdrawn or dismissed. 39 The learned Magistrate Abdul-Karim made the following findings in relation to the cultural practices of the Appellant (the Defendant at first instance) in respect of fishing and his native title rights and interests: (a) Fishing for abalone is an everyday activity which Yuin elders observed, were taught and carried out from a young age in their families and Aboriginal communities. (b) Abalone (and other species of fish) are collected because it is a food source. (c) The sharing of fish, including abalone, to feed family and others in the Aboriginal community is a strong cultural practice. (d) Yuin law and custom allows Yuin people to take from the ocean only what they need to feed family and the community, and requires them to allow the species a chance to regrow and not to waste. (e) Bartering or swapping fish, including abalone, is a permissible practice and was taught by the Yuin elders' parents, grandparents and families. (f) Most Yuin elders consider selling abalone for money to be no different from bartering for goods, money being a commodity necessary for everyday living, and there is no need to make a strong distinction between barter and sale. (g) The ethnographic record demonstrates that Aboriginal people, including those on the south coast of NSW, regularly engaged in trade and exchange activities and that such activities constituted an essential element of the economy, social relations and ritual practice from prehistoric times. A considerable degree of exchange relationships were predicated on the demand for items that were not ubiquitously available. (h) In the post-sovereignty period, there were a number of instances in which mariners and settlers encountered Aboriginal people and exchange took place. (i) Although there may be differences in understanding in each Aboriginal community about how to achieve sustainability in the environment, the prime guiding principle is that people should only take what they need to sustain themselves, their families and guests and that each species should not be depleted. (j) Sustenance does not equate to "just eating". Sustaining a community involves social relationships and ceremonial activities. This includes using resources to obtain goods that a community does not have within its own environment, but not to deplete the resource to the point where it cannot reproduce itself. (k) The Defendant has a non-exclusive native title right to carry on the class of activity of fishing in relation to the claim area. (l) Although the Defendant has strong cultural and traditional connections to marine resources including abalone, the Defendant's native title rights did not extend to possessing large quantities of abalone and selling it as alleged. (m) The Defendant's native title rights did not extend to the right to act as a middleman in the sale of abalone, particularly where the Defendant played no role in the taking of the abalone. 40 One of the issues in the appeal is whether the learned Magistrate's conclusions in subparagraphs (l) and (m) above are infected by error. However, the questions posed in this Stated Case may be answered in such a way that the native title exception is not available, regardless of the correctness of subparagraphs (l) and (m). If so, it will not be necessary to determine this issue to resolve the District Court appeal. The Defendant's convictions 41 On 25 November 2021, after a five-day hearing on 14-15 September 2020 and 22-24 February 2021, the learned Magistrate Abdul-Karim found the Defendant guilty of: (a) An offence contrary to s 18(2A) of the FM Act: possession of more than [the permitted] limit of fish - namely, 439 Haliotis rubra (abalone) - in circumstances of aggravation, being that abalone is a priority species of fish and that the quantity of abalone possessed was greater than 10, being the commercial quantity of abalone (sequence 2); (b) An offence contrary to s 21B(1) of the FM Act: trafficking in an indictable species of fish by dishonestly possessing fish of an indictable species - namely, Haliotis rubra (abalone) - where the possession contravened s 18(2A) of the FM Act and the quantity of abalone possessed (439) was greater than 50, being the indictable quantity of abalone (sequence 3); (c) An offence contrary to s 18(2A) of the FM Act: possession of more than the [permitted] limit of fish - namely, 128 abalone - in the same circumstances of aggravation as sequence 2 (sequence 6); and (d) An office contrary to s 21B(1) of the FM Act: trafficking in an indictable species of fish by dishonestly possessing abalone where the possession contravened s 18(2A) of the FM Act and the quantity of abalone possessed (128) was greater than 50, being the indictable quantity of abalone (sequence 7). 42 Sequences 2 and 6 were back-up charges and related to the same conduct as sequences 3 and 7. The Prosecutor did not seek convictions in relation to sequences 2 and 6. 43 The Defendant was convicted of sequences 3 and 7. Sequence 3 (2017/00051763) related to the abalone found in the Defendant's car (the car trafficking offence). Sequence 7 (2017/00051767) related to the abalone that the Defendant sold to Mr La (the restaurant trafficking offence). 44 On 4 August 2022, the Defendant was sentenced in respect of sequences 3 and 7. The Appellant's Appeal 45 On 25 August 2022, the Appellant filed a "Notice of Appeal to the District Court" in respect of CNI 2017/00051763-002 which stated that it was an "all grounds appeal and a severity appeal". CNI 2017/00051763-002 related only to the prohibition order imposed in respect of the car trafficking offence. 46 An amended Notice of Appeal signed on 27 October 2022 records the following grounds of appeal in relation to the convictions: (1) The learned magistrate erred in construing s. 211 of the NT Act so as to exclude the possession and sale of abalone that the Defendant did not himself fish from the ocean (and was not present for during its fishing). (2) The learned magistrate incorrectly found that there was no evidence that those who fished for this abalone did so in exercise of a native title right and interest. (3) In the alternative to (2), the learned magistrate incorrectly failed to hold that the Crown had not negatived the possibility that those who fished for the abalone were exercising their native title rights and interest. (4) The learned magistrate erred in his construction of the phrase "personal, domestic and non-commercial communal needs" in s 211(2) of the NT Act, and thereby wrongly found that the appellant's sale of abalone was inconsistent with that subsection. 47 … there is now before the District Court for determination an appeal against the Defendant's conviction and sentence in respect of the car trafficking offence and an appeal against the Defendant's conviction and sentence in respect of the restaurant trafficking offence.

[6]

The stated questions of law and their difficulties

Her Honour stated five questions for determination by this Court: (1) Under what circumstances would possessing a commercial quantity of fish or trafficking in an indictable quantity of fish be capable of satisfying a person's personal, domestic or non-commercial communal needs within the meaning of s 211(2)(a) of the NT Act? (2) Are the following matters indicia that an activity is not being carried on for the purpose of satisfying a person's personal, domestic or non-commercial communal needs within the meaning of s 211(2)(a) of the NT Act? (a) Quantity of fish taken from the sea being in excess of what could be reasonably consumed personally or domestically, or of what is required to fulfil the consumption needs of the person's immediate community; (b) The fact of the fish being traded or sold for value; (c) Quantity of fish sold or possessed with the intention of being sold; (d) The fish being given by the person who took them from the sea (the taker) to another person (the intermediary) for provision for value to an end purchaser; (e) The taker or the intermediary compiling the fish and/or arranging it into transportable and marketable quantities; (f) Money being exchanged, or an intention for money to be exchanged, in respect of the fish, between the person relying on the native title defence (defendant) and others in connection with the transfer or delivery of fish; (g) The person who purchases the fish from the defendant not themselves having native title rights and interests; (h) The defendant obtaining the fish for the purpose of selling it; (i) The defendant intending or expecting that the person to whom they deliver the fish will on-sell the fish; (j) The defendant taking the fish off Country for the purpose of sale. (3) What are the indicia of an activity carried on for the purpose of satisfying a person's personal, domestic or non-commercial communal needs within the meaning of s 211(2)(a) of the NT Act? (4) Is the activity of receiving fish taken from the sea by others and assembling that fish for the purpose of sale capable of constituting any of the following activities: (a) "fishing", (b) "gathering", or (c) "a cultural or spiritual activity" within the meaning of s 211(3)(b), (c) or (d) of the NT Act? In other words, are an individual's native title rights and interests transferable to others, and if so, under what circumstances? (5) a) What (if any) is the onus and standard of proof borne by a defendant who claims native title rights and interests? b) Does that onus and standard of proof change when the defendant did not themselves take the fish from the sea but rather received the fish from another person who claims that they took the fish from the sea in exercise of native title rights and interests?

[7]

Relevant statutory provisions

The notion of native title is relevantly defined in s 223 of the NT Act as follows: 223 Native title Common law rights and interests (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. Hunting, gathering and fishing covered (2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests. …
It is useful to set out s 211 of the NT Act in full: 211 Preservation of certain native title rights and interests Requirements for removal of prohibition etc. on native title holders (1) Subsection (2) applies if: (a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and (b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and (ba) the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; and (c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders. Removal of prohibition etc. on native title holders (2) If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so: (a) for the purpose of satisfying their personal, domestic or non-commercial communal needs; and (b) in exercise or enjoyment of their native title rights and interests. Note: In carrying on the class of activity, or gaining the access, the native title holders are subject to laws of general application. Definition of class of activity (3) Each of the following is a separate class of activity: (a) hunting; (b) fishing; (c) gathering; (d) a cultural or spiritual activity; (e) any other kind of activity prescribed for the purpose of this paragraph.

[8]

Issue 1: the required purpose under s 211(2)(a)

Questions 1-3 of the stated case all concern the construction of s 211(2)(a) of the NT Act, that is, what is meant by carrying on one of the identified classes of activity "for the purpose of satisfying the [native title holder's] personal, domestic or non-commercial communal needs", and whether Mr Nye's actions could be characterised as such. The parties did not dispute that the reference to personal needs meant the needs of the native title holder in question, and that the reference to domestic needs was to the needs of that person's household. The focus of the dispute was on what was encompassed by the third of the adjectival notions employed, "non-commercial communal", along with the meaning of the noun "needs". These are issues of statutory construction to be resolved by reference to the text, context and purpose of the provision. Needless to say, there are dangers in focusing on particular words as though distinct from the phrase and provision in which they are employed.
Neither side had identified any superior court authority grappling with these matters. The prosecutor noted that they had been touched upon twice by the Full Court of the South Australian Supreme Court. In Dudley v Department of Primary Industries and Regions (SA) [2018] SASCFC 23; (2018) 231 LGERA 13 the Full Court treated a purpose of sale as inconsistent with the person in question satisfying their "personal, domestic or non-commercial needs" under s 211(2)(a) (at [18] n 8 and at [123]). In Wanganeen v Dietman [2021] SASCFC 25; (2021) 139 SASR 170 the Court noted, without comment, that the Magistrate at first instance had treated "commercial purposes" as inconsistent with all of the purposes identified in s 211(2)(a) (see at [103] and [131]-[132]). Earlier, members of the Federal Court had similarly referred to "commercial purposes" as not being encompassed by s 211: Akiba v Queensland (No 2) [2010] FCA 643; (2010) 204 FCR 1 at [775] (Finn J); Commonwealth v Akiba [2012] FCAFC 25; (2012) 204 FCR 260 at [33] (Keane CJ and Dowsett J). Strictly, as we discuss below, the word "commercial" qualifies only the communal needs in s 211(2)(a), not personal or domestic needs.
The construction primarily advocated by the prosecutor was this: To satisfy a person's personal, domestic or non-commercial communal needs, an activity must satisfy the needs directly, not indirectly. In that sense, "need" should be understood in the sense of "demand", that is, a reasonable demand of the individual, that person's household or that person's community. It is more than something wished for or convenient, but is not confined to what is imperative or critical. Where fishing is concerned (and the same goes for hunting, gathering or a cultural or spiritual activity that has a tangible product), the activity must be for the purpose of satisfying the need (demand) of the person, the person's household or the person's community for the things fished (more generally, it must involve the use or consumption of things taken from the land or waters by the person, the household or the community). Section 211(2)(a) does not apply where the purpose of an activity is to generate a resource that, in turn, satisfies a different personal, domestic or communal need.

[9]

Text, context and purpose

This is a case where it is not very helpful sharply to delineate issues of text, context and purpose, save that we will address separately below what is revealed by consideration of the extrinsic materials.
The central issue is what type of needs are encompassed by s 211(2)(a). The qualifying words "personal, domestic or non-commercial communal" can be construed more broadly (eg as encompassing any material needs of the relevant persons) or more narrowly (in particular as those needs capable of being satisfied directly by the activities in question).
The notion of "needs" is not further explained in the NT Act. The word is used three times in the Preamble to the Act, most notably in referring to "[t]he needs of the broader Australian community" in a particular regard. Neither these usages, nor the other usage in the note to s 87A(4), throws any real light on the meaning of the word as employed in s 211(2)(a), as the context is different.
The openness of the term is illustrated by the first definition of the noun "need" in the Macquarie Dictionary: "a case or instance in which some necessity or want exists; a requirement": online ed, accessed 8 July 2024. Even that first definition conveys a possible spectrum as to how imperative the need must be, between a "want" and a "requirement". The term is similar in that regard to the notion of "necessary", which may mean for example "essential" or "unavoidable" in some legal contexts or, more flexibly, "reasonably appropriate and adapted" in others: see Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at [39].
The nature and function of s 211, in the context of the NT Act, assists in considering its meaning. It is a provision designed to benefit Indigenous people by providing them with an immunity from the operation of certain restrictive laws of the nine Australian jurisdictions. It may apply to "a very diverse range of regulatory schemes": Wilkes at [89]; see also Karpany v Dietman at [48]. Those schemes will commonly involve criminal prohibitions on fishing (etc) without a licence of some kind, but they could also provide for civil penalties or other forms of civil litigation. In any event - and as discussed further below with respect to the onus issue - the section may fall to be applied in a wide range of courts, but most commonly the provision will be invoked in local courts before magistrates around the country. The Parliament can be taken to have intended that the provision was capable of operating in a practical way in such courts. It can be assumed that the Parliament did not intend the provision to be ineffective, having mere symbolic value.

[10]

Extrinsic materials

Section 211 arose from an amendment moved on 21 December 1993 by Senator Christabel Chamarette, a member of the then Greens WA party, as the Native Title Bill 1993 travelled its long path through the Senate (at the top of the relevant Hansard pages the date is recorded as 16 December 2023, but that is incorrect). The amendment was moved by her in the committee stage and then debated by way of questions and answers. It was supported by the then Government. In the end the amendment was agreed without requiring a vote. It seems implicit in the debate that the Government had had some involvement in the drafting of the clause, and Senator Evans answered more questions in explaining and defending it than Senator Chamarette. There was no ministerial second reading speech encompassing the amendment. Nor, we were informed, was there any applicable explanatory memorandum, nor any further debate in the House of Representatives when the Bill returned there. However, the debates in the Senate can be considered in construing the provision pursuant to s 15AB(2)(h) of the Acts Interpretation Act 1901 (Cth).
When moving the amendment Senator Chamarette said that the provision "is critical in protecting Aboriginal rights to hunt, fish and gather where the impact of the activity is not such as to require its non-discriminatory prohibition", then referred to the purpose requirement (Hansard at 5441). That statement suggests that the provision was envisaged to permit the relevant activities on a limited basis.
That understanding is supported by answers given by Senator Evans to various questions directed to him. He explained that "it is not the intention of this clause to authorise activity … which would involve the destruction of an endangered species" (at 5443), that being so because the provision would not apply if the relevant law prohibited the activity absolutely, as opposed to being permitted with a licence (etc). Then, having agreed with the proposition that "Aboriginal Australians will be given the right to do something without a licence that other Australians need a licence to do" (ibid), Senator Evans went on to explain (at 5444, emphasis added): I think Senator Chamarette might have mentioned the particular example of south coast New South Wales Aboriginal people who have traditionally engaged in abalone gathering or abalone fishing. There have been difficulties in the context of being prosecuted because there is an absolute prohibition on that activity unless it is done by way of licence by commercial fishermen. What this does is not confer an absolute open slather right to engage in abalone fishing. It confers, however, a right to do so by Aboriginal people who have a native title - and, of course, they have to establish that before they will be completely immunised from prosecution and so on under this clause. They have a right to carry on that activity where they do so - this is in subclause (2)(a) and (b) - for the purpose of satisfying their personal, domestic or non-commercial communal needs and they are doing it in the exercise or enjoyment of their native title rights and interests. What this means is that individuals or small family groups or smalI community groups can engage in this activity provided it does not have any commercial character about it and provided it is carried on under the umbrella of the native title right, and can do so with immunity from the operation of the general law. But acknowledge and recognise again that this only applies in situations where the activity is not absolutely prohibited but is allowed to be carried on by some people, provided they have a permit or licence, whether it is for commercial purposes or otherwise.

[11]

Conclusion

As explained above at [8]-[16], the questions raising this first issue are not well formulated. It is not necessary or appropriate in this matter to seek to list the various "indicia" of whether an activity is being carried on for the purpose of satisfying a person's personal, domestic or non-commercial communal needs within the meaning of s 211(2)(a) of the NT Act. The core matter in dispute on issue 1 is as to the construction of that provision. Our resolution of that dispute is sufficient to resolve the case. Mr Nye's purpose in receiving and assembling the abalone, and transporting it for sale, was not a purpose directed to the abalone being consumed by him, members of his household or members of his native title community.
Our answer to questions 1-3 is as follows: Section 211(2)(a) of the Native Title Act 1993 (Cth) (NT Act) refers to needs of the person in question, their household or their community which are capable of being satisfied directly by undertaking the activities in question, being needs of sustenance or consumption. It does not extend to indirect satisfaction of broader needs by using the product of the activities for sale or trade outside the household or community. It is otherwise unnecessary and inappropriate to answer the questions.

[12]

Issue 2: classes of activity under s 211(3)

As explained, s 211 gives an immunity to native title holders who are carrying on the relevant protected activity (or gaining access to the land or waters for the purposes of doing so - which is not an issue that arises here). The argument put on behalf of Mr Nye in the Local Court and in this Court was that he was a relevant native title holder who was exercising his native title rights when possessing and selling the abalone. As noted, it was not disputed by the prosecutor that he was a holder of the relevant native title rights.
The focus of argument on issue 2 was on whether Mr Nye's activities could be characterised as "fishing". Some submissions were also made as to whether they could be characterised as "gathering" or undertaking "a cultural or spiritual activity". There is no definition in the NT Act of any of these terms, although s 223(2) does provide that the reference to "rights and interests" in s 223(1) "includes hunting, gathering, or fishing, rights and interests". In relation to the possible relevance of "gathering", counsel for Mr Nye made a passing suggestion that what occurred here might also fall within that notion but the argument was not developed. It was not in dispute that gathering abalone can relevantly be described as "fishing" for the purposes of s 211. In that context it is difficult to see that the term "gathering" would add anything to the arguments about "fishing" in this matter.
As for undertaking "a cultural or spiritual activity", counsel for Mr Nye initially sought to argue that Mr Nye's holding and dealing with the abalone could be characterised as falling within that category. Counsel argued that exercising native title rights or interests is to undertake a cultural activity, as doing so participates in and preserves Indigenous culture. However, counsel ultimately accepted that taking that view would render superfluous the other classes of activity identified in s 211(3) because all of them, by definition, involve the exercise or enjoyment of a native title right or interest. In the end he did not take issue with the prosecutor's argument that at the heart of undertaking "a cultural or spiritual activity" is doing something that provides intangible benefits. No such issue arises on the facts of this case, where most of the abalone had been or was planned to be sold, with some to be given to Mr Nye's Aunty. The argument thus fell away, and again it is not necessary to consider that class of activity here. The focus on this issue in the end thus was the concept of "fishing".

[13]

Issue 3: onus of proof

Question 5(a) asks: What (if any) is the onus and standard of proof borne by a defendant who claims native title rights and interests?
The South Australian Court of Appeal has recently held that the claimant bears the legal burden: Dietman v Karpany [2023] SASCA 52; (2023) 377 FLR 307. Its conclusion was expressed as follows: [95] … s 211(2) of the Native Title Act is properly construed as an exception to offence provisions in the [South Australian fisheries management statute], with the defendant bearing the persuasive onus on the balance of probabilities of establishing the conditions for the operation of the native title "defence" in that section.
The prosecutor argued here, consistently with Dietman, that the legal burden of proof and persuasion was on the person seeking to rely on s 211 to avoid liability under a relevant regulatory law. Mr Nye argued that such a person bore an evidential burden only, and that if that was discharged the legal burden was on (relevantly) the prosecutor to prove that s 211 did not apply, doing so to the standard of beyond reasonable doubt. He did not argue that a defendant in such a case bore no burden whatsoever. It was implicit in his submissions that the legal burden would also be on the proponent of a civil claim against a person seeking to rely on s 211 in response. He did not address the standard of proof that would then apply. In what follows we will refer to those who bring prosecutions or civil claims against persons who seek to invoke s 211 as "proponents" of a claim, and we will refer to the persons so relying as "defendants".
Given that Mr Nye seeks to challenge the conclusion of the South Australian Court of Appeal, he should have sought that this Court be constituted by five members: note Court of Criminal Appeal - General Practice Note SC CCA 1, para 18(a)(viii). He did not do so because of an erroneous view that the High Court had downplayed the "plainly wrong" requirement in Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 at [31]. The Court there approved an earlier statement by McHugh J that "[j]udicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction". His Honour was addressing construction of distinct pieces of legislation enacted in different jurisdictions, as opposed to construction of a federal provision. The applicable principle is clear. Intermediate appellate courts should not depart from decisions of other intermediate appellate courts on the interpretation of Commonwealth legislation, uniform national legislation or the common law of Australia unless persuaded that the interpretation is plainly wrong: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135]; The Queen v Falzon [2018] HCA 29; (2018) 264 CLR 361 at [49]; Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24 at [25]-[26].

[14]

The nature of the issue

In Woolmington v Director of Public Prosecutions [1935] AC 462 at 481, Viscount Sankey LC said this, speaking for the House of Lords: Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.
In Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 at [511], Crennan and Kiefel JJ referred to "the common law rule that the prosecution prove the guilt of an accused person by proof, beyond reasonable doubt, of both negative and positive elements of an offence" (citations omitted). If a legal burden is imposed on an accused in a criminal matter "it is always discharged by proof on the balance of probabilities" (subject, of course, to statute): ibid at [668] per Bell J (citation omitted).
Heydon J explained the difference between imposing a legal and an evidential burden on a defendant in a criminal matter in Momcilovic, speaking specifically of the onus as to an issue of drug possession (at [467]; see also Bell J at [665]): there is a radical difference between the two burdens. A legal burden of proof on the accused requires the accused to disprove possession on a preponderance of probabilities. An evidential burden of proof on the accused requires only a showing that there is sufficient evidence to raise an issue as to the non-existence of possession.
Lord Hope gave a similar pithy summary in R v Director of Public Prosecutions; Ex parte Kebilene [2000] 2 AC 326 at 378-79.
To pick up the language of Woolmington, we are in the realm of statutory exception here. That being said, and as we have already noted, it should not be forgotten that whilst s 211 will most commonly be invoked in criminal prosecutions, it is not limited to such matters. It could also be invoked in the context of statutory schemes imposing civil penalties, or conceivably in other civil litigation. In criminal matters in general the prosecution is required to prove the elements of an offence to the standard of beyond reasonable doubt. In civil matters in general a claimant (including a regulator seeking a civil penalty) is required to prove their claim on the balance of probabilities.
Section 211 creates a statutory immunity against prohibitions or restrictions imposed by federal, State or Territory laws. It does not address in terms the issue of where the onus lies. Nevertheless, the issue of onus is a question of statutory construction. It is the sort of issue where Parliaments often give few if any hints of guidance, not unlike the issue of the standard of review on appeal (cf Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [151]), or whether non-compliance with a statutory requirement leads to invalidity (cf Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [93]). Common law principles, in the sense of judicial exegesis, have arisen to guide the construction task. But the issue is what the relevant Parliament is taken to have intended. As the High Court explained in Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 at 519: In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance.

[15]

Case law

Dietman is the first appellate court authority which determined authoritatively the issue of onus with respect to s 211. However, the issue had been touched on in earlier cases. There had been two cases addressing similar claims made prior to the commencement of the NT Act: Mason v Tritton (1994) 34 NSWLR 572; Derschaw v Sutton (1996) 17 WAR 419. Those matters do not advance consideration of how to construe s 211.
More relevantly, Dillon v Davies (1998) 8 Tas R 229 did concern the application of s 211. Underwood J, on reviewing in the Tasmanian Supreme Court the decision of a magistrate, stated (at 234) that the magistrate had: correctly set out that it was not necessary for the applicant to establish a defence upon the balance of probabilities and held that, although the applicant carried an evidentiary burden, once that had been satisfied, the onus rested on the prosecution to establish guilt beyond reasonable doubt.
It is not apparent from the judgment to what extent the matter had been the subject of argument.
In Dudley in 2018 the South Australian Full Supreme Court recorded (at [71]) that it was common ground in that case that the defendants bore an evidential burden in relation to s 211 (it being implicit that that was the only burden the defendants relevantly bore). Three years later, in Wanganeen, the same Court considered arguments by the prosecutor that the legal burden lay on the defendant, but it was not necessary for the Court to resolve the issue (at [211]-[245]).
The issue was the subject of argument and reasoned determination by Buscombe DCJ in a criminal appeal in the District Court of New South Wales in Carriage v NSW Department of Planning, Industry & Environment [2022] NSWDC 283; (2022) 39 DCLR(NSW) 66. His Honour concluded that the legal burden with respect to applying s 211 fell on the prosecution, with the defendant bearing an evidential onus (at [225]-[239]).

[16]

Construction of s 211 as to onus

Neither s 211 itself, nor anything else in the NT Act, addresses in terms the issue of onus or standard of proof in applying the section. The only sections of the NT Act that engage in terms with the issue of onus are ss 171, 172, 174 and 203DG, the notes to which provide that a defendant who raises "reasonable excuses" to offences prescribed by those sections in relation to proceedings before the National Native Title Tribunal bears an "evidential burden". No such words or notes accompany s 211, but the contexts are quite different. The fact that the Parliament has expressly addressed the issue to the extent of inserting such notes puts into relief the fact that it has not done so with respect to s 211. It does nothing to support an inference one way or the other as to what the Parliament's intent was with respect to that section.
Nor are the terms of s 211 especially suggestive of where the federal Parliament intended the onus to lie. The provision does not, for example, speak of either side establishing any of the requirements or satisfying a court that they are met, in contrast to many other provisions in the Act: eg ss 82(3), 84(5), 84(5A), 84(9), and 86G(1) of the NT Act. It sets out the criteria for the immunity to apply without any indication of who must make out those criteria.
An argument could be made that there is some significance in the fact that the operative language of s 211 is that if the relevant requirements apply, "the law does not prohibit or restrict" the specified activities. This could be said to change the operation of relevant laws in question to the effect that it is no longer an offence or otherwise impermissible to take the actions. That might be said to bring the characterisation of s 211 closer to an element of crime, if not a defence, as compared to a statutory exception. That said, the point does not greatly advance debate. Suffice it to say that it is entirely consistent with the text of the section that the legal burden be on the proponent.
Given the substantial silence of the text, Mr Nye sought to call in aid something said by French CJ in Momcilovic: [44] The common law "presumption of innocence" in criminal proceedings is an important incident of the liberty of the subject. The principle of legality will afford it such protection, in the interpretation of statutes which may affect it, as the language of the statute will allow. A statute, which on one construction would encroach upon the presumption of innocence, is to be construed, if an alternative construction be available, so as to avoid or mitigate that encroachment. On that basis, a statute which could be construed as imposing either a legal burden or an evidential burden upon an accused person in criminal proceedings will ordinarily be construed as imposing the evidential burden.

[17]

The decision in Dietman

In Zuda the High Court articulated the relevant test as not departing from an applicable decision of another intermediate appellate court "unless convinced that the interpretation is plainly wrong or, to use a different expression, unless there is a compelling reason to do so" (at [25], citations omitted). There is much to be said for the view that speaking of there being "compelling reason" rather than a decision being "plainly wrong" is a more constructive and informative articulation of the principle enunciated by the High Court: note Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122; (2020) 279 FCR 631 at [126]; David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Ltd [2024] NSWCA 83 at [22] and [140]. In any event, there is no doubt that such a conclusion should not lightly be reached. As Bell CJ has said, speaking for a bench of five in this Court, "[u]nderpinning language such as 'a strong conviction' or 'compelling reasons' … employed in this area of discourse are the important goals of fostering stability and predictability in the law and consistency and certainty in the administration of justice": Totaan v R [2022] NSWCCA 75; (2022) 108 NSWLR 17 at [74], citing Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1 at [286] and [300].
In John v Commissioner of Taxation (Cth) [1989] HCA 5; (1989) 166 CLR 417 at 438-439 the High Court articulated four factors which guide whether or not to overturn one of its own decisions: The first was that the earlier decisions did not rest upon a principle carefully worked out in a significant succession of cases. The second was a difference between the reasons of the Justices constituting the majority in one of the earlier decisions. The third was that the earlier decisions had achieved no useful result but on the contrary had led to considerable inconvenience. The fourth was that the earlier decisions had not been independently acted on in a manner which militated against reconsideration …
It has been accepted that these factors may also provide a useful although not exhaustive guide when intermediate appellate courts decide whether to depart from an earlier decision of another court at that level: Gett at [297]; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [85] (Heydon J). As Bell CJ put it in Totaan at [76], relevant factors can be said to include: whether the challenged decision(s) are closely reasoned, whether the principle for which the decision stands has been worked through in a series of cases, and whether the decision(s) challenged have been unanimously followed or whether there is some tension between decisions of courts of coordinate authority in relation to the challenged decision(s).

[18]

Conclusion on issue 3

Question 5(a) asks about the onus and standard of proof borne by a defendant who claims native title rights and interests. The question is asked generically, but plainly is meant to address which side bears the legal onus of proof when a party seeks to rely on s 211 of the NT Act in litigation brought against them. We will answer it in those terms. As noted above, Mr Nye did not dispute that a defendant bore an evidential burden in relation to the section. As there was no dispute on that point and it was not the subject of argument, we do not consider it necessary or appropriate to address that point in our answer.
Question 5(b) asks whether the onus and standard of proof change "when the defendant did not themselves take the fish from the sea but rather received the fish from another person who claims that they took the fish from the sea in exercise of native title rights and interests". There is no basis for suggesting here that the legal burden may shift because of the particular way in which s 211 is said to apply in the circumstances of the case brought against a defendant. Neither party argued to the contrary. In the circumstances it is not necessary to answer the question in terms, and to do so might be to elevate a misconception.
Our answer to question 5 is thus this: When a party seeks to rely on s 211 of the NT Act in litigation against them, the legal burden of proof falls on the other party to negative the application of the provision, doing so on the standard of proof that otherwise applies to that party in making out their claim. It is otherwise unnecessary and inappropriate to answer the question.

[19]

Answers to questions

For the reasons set out above, our answers to the questions asked of us are as follows: Questions 1-3: Section 211(2)(a) of the Native Title Act 1993 (Cth) (NT Act) refers to needs of the person in question, their household or their community which are capable of being satisfied directly by undertaking the activities in question, being needs of sustenance or consumption. It does not extend to indirect satisfaction of broader needs by using the product of the activities for sale or trade outside the household or community. It is otherwise unnecessary and inappropriate to answer the questions. Question 4: The activity of receiving fish taken from the sea by others and assembling that fish for the purpose of sale to people outside the relevant native title community is not capable of constituting "fishing", "gathering" or "a cultural or spiritual activity" within the meaning of s 211(3) of the NT Act. Question 5: When a party seeks to rely on s 211 of the NT Act in litigation against them, the legal burden of proof falls on the other party to negative the application of the provision, doing so on the standard of proof that otherwise applies to that party in making out their claim. It is otherwise unnecessary and inappropriate to answer the question.

[20]

Amendments 16 July 2024 - Statutory provision references corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2024

Moriarty v Nye

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