1 The appellant was charged with the following offences:

"1 On the 16th day of December, 1984 in State fishing waters in the area of Satellite Island in the D'Entrecasteaux Channel in Tasmania did unlawfully take 330 abalone at a time when he was not the holder of either a subsisting commercial abalone licence or a subsisting non-commercial diving licence, sold and issued for that purpose, CONTRARY to Regulations 17A(1)(a), (b) and 44(3) of the Sea Fisheries Regulations 1962.

2 On the 16th day of December, 1984 in State fishing waters in the area of Ninepin Point near Verona Sands in Tasmania did unlawfully have in his possession, or under his control, on a white fibreglass dinghy, 330 abalone that were detached from their shells, CONTRARY to Regulations 44(1)(S) and 44(3) of the Sea Fisheries Regulations 1962."

2 After a trial a magistrate convicted the appellant and upon Count 1 imposed a fine of $500 together with a special penalty of $3,300 and upon Count 2 imposed a fine of $200, together with a special penalty of $3,300. In each case the special penalty was imposed pursuant to reg44(5A) of the Sea Fisheries Regulations 1962 which required the Court to impose a penalty of $10 for each abalone or portion of abalone which was the subject of each charge.

3 The appellant moved this Court to review the convictions and orders. The motion to review was allowed to the extent that an order made by the magistrate allowing the appellant time to pay the fines and penalties was varied, but otherwise the appeal was dismissed and the magistrate's orders were confirmed. The appellant now appeals to the Full Court against the orders made by the Court insofar as they amounted to a dismissal of the motion to review upon the following grounds:

"4 That the learned Magistrate erred in law in refusing to consider the records of the Hobart Weather Bureau to be relevant to the case.

5 That the learned Magistrate erred in law in considering himself bound to apply the minimum penalties imposed by the regulations made pursuant to S9 of the Fisheries Amendment (Commonwealth and State) Amendments Act 1981.

6 Alternatively if the Governor by way of regulations made pursuant to S9 of the same Act, declared the penalties, the subject of S9, to be mandatory, then the regulations were ultra vires the enabling Act.

8 The learned Magistrate was wrong in law in imposing a special penalty in relation to the taking of the abalone and a further special penalty for possession of abalone detached from their shells."

4 In the course of his cross-examination of one of the prosecution witnesses about the state of the weather on the day of the offences the appellant referred to the records of the Hobart Weather Bureau and said that he would "be prepared to tender some evidence" in respect of them. The magistrate made some remarks which suggested that he had formed at least a prima facie view that such evidence would not have much weight, but he did not give a ruling as to its admissibility. In any event the appellant made no attempt to tender any such records or any evidence about them. In those circumstances it could not be said that the magistrate refused to consider the records and this ground must therefore fail.

5 The regulations which created the offences of which the appellant was convicted and which provided for the imposition of penalties were as follows:

"17A - (1) Subject to regulation 17AA, no person shall take any abalone in State fishing waters unless he is the holder of -

(a) a subsisting commercial abalone licence sold and issued for that purpose under this regulation; or

(b) a subsisting non-commercial diving licence. "

"44 (1) No person -

.............................

(s) shall have in his possession, or under his control, on any boat in State fishing waters an abalone that has been detached from its shell;

(3) A person who contravenes, or fails to comply with, a provision of these regulations that is applicable to him or with a term or condition to which a licence held by him is subject is guilty of an offence against these regulations.

44 (5A) Where a person is found guilty of an offence against these regulations with respect to any abalone or any portion of an abalone, there shall be imposed in addition to any other penalty to which he is liable in respect of that offence a special penalty of $10 (no more or no less) in respect of each of those abalone or each of those portions of abalone.

(5B) A person who is guilty of an offence against these regulations with respect to any abalone or any portion of an abalone, or an offence against regulation 17AA, regulation 17A or regulation 44(1) (dc), (s), (ta), (tb), or (tc), is liable to a penalty -

(a) for a first offence, of not less than $40 or more than $500 in respect of that offence;

(b) for a second offence, of not less than $200 or more than $1,000 in respect of that offence; or

(c) for a third or subsequent offence, of not less than $500 or more than $2,000 in respect of that offence."

6 Those Regulations were made pursuant to the power conferred by s9(1)(y) of the Fisheries Act 1959 which reads:

"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 -

(i) providing in respect of any such offence for the imposition of a penalty not exceeding $2,000 and, where the offence is of a continuing nature, a daily penalty not exceeding $100 for each day during which the offence continues;

(ii) prescribing a minimum penalty for any such offence and, subject to subparagraph (i), prescribing different maximum penalties for successive offences;

(iii) providing in respect of any such offence for the imposition of a special penalty not exceeding $100 in relation to each 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; and

(iv) providing that any special penalty referred to in subparagraph (iii) may be imposed for an offence in addition to any other penalty that may be imposed for the offence; "

7 If regulations 44(5A) and 44(5B) are valid the magistrate did not err by imposing the penalties and special penalties which he did. The issue is whether those regulations are ultra vires. The making of reg44(5B) was clearly authorised by s9(1)(y) (i) and (ii) of the Fisheries Act 1959. The remaining issue of whether reg44(5)(1) is ultra vires involves two questions: do s(9)(y)(iii) and (iv) of the Fisheries Act empower the Governor to make a regulation which requires a court to impose a special penalty in addition to the ordinary penalty and do they empower the Governor to make a regulation which requires a court to impose a special penalty of a fixed amount.

8 There is a statutory presumption and a common law presumption that a statutory provision which empowers a court to impose a penalty of a specified amount has the effect of conferring a discretion upon the court to impose a penalty of whatever amount it thinks fit provided that it does not exceed the amount specified in the enactment notwithstanding that the legislation does not expressly provide that the penalty specified in it is a maximum - s37 Acts Interpretation Act 1931, Byrne v McLeod [1934] HCA 61; (1934) 52 CLR 1 and Sillery v R. [1981] HCA 34; (1981) 35 ALR 227. That, of course, is a fortiori the case when a statutory provision empowers a court to impose a penalty "not exceeding" a specified amount. It would be anomalous not to construe a statutory provision which empowered the Governor to empower a court to impose a penalty in the same way as one would construe a provision which empowered a court to impose a penalty and s9(1)(y)(iii) of the Fisheries Act should therefore be construed as empowering the Governor to confer a discretion upon the court. But reg.44(5A) does not confer a discretion: it imposes an obligation on the court. An obligation is fundamentally different from a discretionary power and a statutory provision which empowers the Governor to confer a discretionary power cannot be construed as a provision which empowers him to impose an obligation. It appears that the draftsman took the same view in respect of ordinary penalties otherwise s9(1)(y)(ii) would have been otiose. I am not persuaded that the characterisation of the penalty as a "special" penalty alters that conclusion. The penalty is special because its imposition is related to things or fish connected with the offence rather than to the act or acts constituting the offence, as is the case with ordinary penalties. But from the mere use of the word "special" one cannot spell out an intention that what would otherwise be regarded as a discretionary penalty should be converted into a mandatory penalty. I hold that s9(1)(y)(iii) empowered the Governor to make regulations providing for the imposition of a special penalty and empowered him to specify the maximum amount of that penalty, but that it did not empower him to make regulations requiring the court to impose a special penalty of "$10 (no more or no less)". The same considerations, reinforced by the use of the word "may" in s9(1)(y)(iv), lead me to the conclusion that the Governor was not empowered to make regulations requiring the court, as opposed to merely empowering the court in its discretion, to impose a special penalty. I hold that reg44(5A) is ultra vires and therefore invalid.

9 As drawn, this ground cannot be sustained. Regulation 44(5A) empowered the magistrate to impose the special penalty in addition to the ordinary penalty in respect of portions of abalone and no error in the way in which he exercised his discretion has been demonstrated. However, after some vacillation the appellant also submitted that reg44(5A) was ultra vires because s9(1)(y)(iii) only empowered the Governor to make regulations providing for the imposition of a special penalty in respect of whole fish, not portions of fish. In my view, a power to make regulations in respect of fish would prima facie include the power to make regulations in respect of parts of fish. However, it may be that the regulation or the section should be construed so that the court's power is confined to the imposition of a special penalty in respect of portions of different fish, not portions of the same fish. But as the magistrate in this case did not impose more than one special penalty in respect of each abalone, the question does not fall for determination in these proceedings.

10 The appeal should be allowed and the learned magistrate's orders as varied by order of Brettingham-Moore J, should be varied further by quashing each order whereby a special penalty of $3,300 was imposed.

11 The questions which arise for decision are clearly defined in the reasons for judgment of the learned Chief Justice which I have had the advantage of reading in draft. It will not serve any useful purpose to set that material out again.

12 It is a fact of history that island peoples have found it necessary to resort to condemnatory and confiscatory legislative provisions in an endeavour to protect their sea fisheries. It is trite observation that the need for provisions of this kind flows from the fact that the resources involved are extremely vulnerable in a number of ways. Valuable fisheries can be wiped out by over fishing and inappropriate fishing. There is a sad history proving the truth of that observation. And offences are extremely difficult to detect. A few examples of legislation of this kind should be given. Under the Sea Fisheries (Conservation) Act 1967 (UK) the court which convicts an offender has power to order the forfeiture of any fish, net or gear or, in lieu of the forfeiture of fish, may impose an additional fine not exceeding the value of the fish in respect of which the offence was committed. (See Halsbury: Laws of England, 4th edn, vol 18, para799). The Fisheries Act 1971-1975 (South Australia) provided for the forfeiture in certain circumstances of fish illegally taken, licences and illegal devices. That Act also had the following provision which has characteristics similar to the provisions in question here:-

"(2) When a person is convicted of any offence mentioned in subsection (3) of this section and in the course of committing the offence the offender took, sold or had in his possession or under his control fish of a proclaimed species declared pursuant to subsection (1) of this section, the Court shall, in addition to imposing a penalty as provided in the relevant section of this Act, impose an additional fine of not less than one dollar and not more than two dollars for every fish of a proclaimed species so taken, sold, or had in possession or under control.

13 A further interesting provision of that kind is to be found in the Fisheries Act 1905-1971 (WA) s24A(3):-

"(3) The Court by which a person is convicted of an offence under subsection (1) of this section shall, in addition to any penalty inflicted under that sub-section, impose on that person a further penalty of not less than two dollars nor more than ten dollars in respect of every rock lobster tail of a weight less than the weight prescribed seized pursuant to subsection (2) of this section."

14 That Act also contains a number of forfeiture provisions of which the following is a stark example:-

"48(1) All engines, lines, nets, rock lobster pots and other articles, but not including any boat, used by or in the possession of any person, and all fish taken, sold, offered, consigned or exposed for sale by or in the possession of any person, contrary to the provisions of this Act, shall be forfeited to the use of Her Majesty.

(2) Where the commission of any offence against this Act involves a forfeiture of any articles, the conviction of any person for such offence shall have effect as a condemnation of such articles, without the necessity of any complaint being laid for such condemnation."

15 A remarkable example of that kind of legislation is to be found in the case of Cheatley v The Queen [1972] HCA 63; (1973) 47 ALJR 57. The legislation in question there was s13AA of the Fisheries Act 1952-1970 (Clth) which read as follows:-

"13AA(1) A person shall not, in an area of proclaimed waters comprised in the declared fishing zone -

(a) use a foreign boat for fishing; or

(b) have a foreign boat for fishing in his possession or in his charge, unless that boat is licensed under this Act, in his name or in the name of a person on whose behalf he is acting, for use in fishing in that area.

(2) A reference in paragraph (b) of the last preceding sub-section to a foreign boat shall be read as not including a reference to a foreign boat if -

(a) the nets, traps and other equipment for the taking of fish belonging to the boat are stowed and secured; and

(b) the work of cutting up, dismembering, cleaning, sorting or packing fish is not being carried out on the boat.

(3) A person who contravenes sub-section (1) of this section is guilty of an offence punishable -

(a) upon summary conviction - by a fine of not more than One thousand dollars or imprisonment for a period of not more than six months, or both; or

(b) upon conviction on indictment - by a fine of not less than One thousand dollars and not more than Ten thousand dollars or imprisonment for a period of not more than twelve months, or both,

and if the court so orders, by the forfeiture of any boat used in the commission of the offence and its equipment and contents (other than the personal effects of members of the crew) and any fish found on the boat or the proceeds of the sale of any such fish. ......... "

16 The Court held that sub-section (3) authorised the court to order forfeiture of a boat which was not the property of the offender and such an order could be made without the owner of the boat having any opportunity to be heard. Mason J made the following relevant observation at p65:-

"The circumstance that the power may be exercised so as to deprive an owner of his property in a foreign boat in proceedings to which he is not a party is not in my opinion a ground for accepting the restricted interpretation suggested by the respondents. Section 13AA is the central provision of a licensing scheme regulating fishing by foreign boats in proclaimed waters in the declared fishing zone extending twelve miles seawards from territorial limits. The legislature plainly viewed a contravention of its provisions as a very serious matter. The difficulty of enforcing compliance along the length of the Australian coastline called for a stern deterrent if observance of the provisions was to take place. There were obvious difficulties in laying obligations upon foreign owners and taking proceedings against them. Such considerations in my opinion make it inappropriate to arrive at a conclusion as to legislative intention based on the consideration that the power, if exercised, will result in a deprivation of property of an owner who is not a party to the proceedings."

17 The people of Tasmania have used provisions of that kind extensively and over a long period. Early examples will be found in the Fisheries Act 1889 and I have not sought to trace it back any further. Sections 11 and 27 of the 1889 Act are interesting examples. Section 27 is also interesting in that it contains an early example of what we would now term a "special penalty" provision. It read:-

"(2) He shall incur a penalty not exceeding five pounds in respect of each fish taken, sold or exposed for sale or in his possession."

That was obviously a very stern deterrent in 1889. That Act applied to fisheries generally and not merely sea fisheries.

18 I find it impossible to read s80(1)(xv) of the Fisheries Act 1925 without concluding that it is a progenitor of the provisions of s9(1)(y) of the Fisheries Act 1959.

19 Division 3 of the Fisheries Act 1959 also deals with, inter alia, the forfeiture and condemnation of property. It also contains an interesting provision, which has a long history, giving the Governor power to restore articles seized and "grant relief from the whole or any part of any penalty imposed under this Act". There is an implied recognition in that that some of the penalties may prove in practice to be harsh.

20 In the light of that history, it is not surprising to find Neasey J saying in Cole v Dick & Parker, No 77/1979 ([1979] Tas R 256), the following (he was speaking of this legislation and regulation 44(5A) when both were in an earlier form):-

"In my opinion it is a principal legislative purpose of s9(1)(y)(ii) to give regulation making power to achieve precisely the object which reg44(5A) achieves; namely to provide in respect of certain offences consisting in the taking, trading in or possession of certain fish, where such offences are thought to be particularly grave or harmful within the fisheries context, for penalties which are heavier than usual, and which are to be particular, specified and exact, so that potential offenders may know in advance and with a measure of certainty the sort of heavy penalties to which they will be subject if convicted. Consequently, in my view reg44(5A) is intra vires."

21 The critical point is whether reg44(5A) is authorised by the words of s9(1)(y) of the Act. That is a question of construction. We should approach that question as Gibbs CJ approached the question before the court in Sillery v The Queen [1981] HCA 34; (1981) 35 ALR 227. That judgment provides us with the closest and, in my view, the most appropriate guide. There is no doubt at all that by a properly framed provision Parliament could authorise the Governor to make a regulation directing that, upon conviction, a fixed special penalty of $10 per abalone shall be imposed. The question is whether by s9(1)(y) it has done so.

22 I do not think that s9(1)(y) should be taken as authorising a regulation to be made providing for the imposition by the court of a fixed penalty of $10 per abalone. The critical part of s9(1)(y) for present purposes is (iii). Clearly (iii) authorises a regulation whereby the court is given power upon conviction to impose a special penalty in the exercise of a judicial discretion up to a limit of $100 per fish etc. The facts of this case show that a fixed penalty of $10 per abalone can produce a result which is unjust, crushing and containing an element of virtually arbitrary duplication. The court should not find such a regulation authorised because it is not plainly authorised. A regulation capable of producing the result achieved in this case ought not to be regarded as authorised by the relevant Act unless it is clearly so authorised. It is a draconian provision which can only be created by regulation when the power to create it is granted in unambiguous terms. The words used here are consistent with the legislative intention stopping short of a fixed penalty and at a point where all that is authorised is a penalty of so much per fish etc. determined after the exercise of a judicial discretion along orthodox lines. We should not say that the unorthodox is authorised when the orthodox may well have been all that was intended.

23 Notwithstanding that section 9(1)(y) is part of an Act dealing with the control, protection and management of fisheries, an area where historically there has been much emphasis on deterrence for obvious reasons and, with great respect, notwithstanding the strong reasons stated by the learned judge in Cole v Dick & Parker (supra). I am not prepared to find that reg44(5A) is authorised. In saying that, I am much influenced by the unjust result which, if it were valid, it would have achieved in this case. And it is not difficult to infer from the way it would have operated in this case, if valid, that it would have been capable of producing even more gross results in other cases.

24 The conclusion is that the making of reg44(5A) was not authorised by Parliament and, hence, it is void. It follows that the special penalties amounting in total to $6,600 were imposed without any valid legal warrant for doing so.

25 For these reasons I agree with the orders proposed by the Chief Justice.

26 The appellant was convicted in the Court of Petty Sessions for the following offences:-

(1) Unlawfully taking 330 abalone when he was not the holder of any appropriate licence.

(2) Unlawfully having in his possession on a boat the same 330 abalone detached from their shells.

27 In respect of the first offence he was fined $500.00 and ordered to pay costs of $30.10. A further special penalty of $3,300.00 ($10.00 per fish) was imposed.

28 In respect of the second offence he was fined $200.00 and a further special penalty of $3,300.00 ($10.00 per fish) was imposed.

29 He asked this court to review the orders, contending that the conviction was unlawful and that the magistrate erred in law in imposing the special penalty in respect of both offences and in failing to allow a sufficient time to pay the fines, penalties and costs.

30 Brettingham-Moore J allowed the appeal on the last ground only and nominated an extended period for the payment of the monetary penalties. In all other respects, he confirmed the magistrate's orders.

31 Thereupon the appellant moved the Full Court to set aside Brettingham-Moore J's order, and, by implication, to quash the convictions and sentence.

32 By this time, only one ground of appeal against conviction had survived. That ground alleged an erroneous refusal to admit evidence of the records of the Hobart Weather Bureau. In my opinion, there is no substance in this ground for, although the evidence may well have been relevant, it is clear that the learned magistrate did not refuse to accept it. He did no more than strongly query its weight. In my opinion, therefore, the appeal against the upholding of the convictions fails.

33 On the question of penalty, the appellant submitted that his Honour should have found merit in the following grounds set out in his notice to review:-

"5 That the learned Magistrate erred in law in considering himself bound to apply the minimum penalties imposed by the regulations made pursuant to S9 of the Fisheries Amendment (Commonwealth and State) Amendments Act 1981.

6 Alternatively if the Governor by way of regulations made pursuant to S9 of the same Act, declared the penalties, the subject of S9, to be mandatory, then the regulations were ultra vires the enabling Act.

8 The learned Magistrate was wrong in law in imposing a special penalty in relation to the taking of the abalone and a further special penalty for possession of abalone detached from their shells."

34 The regulation relevant to these grounds is reg44, and in particular paragraphs 5A and 5B of sub-regulation 3AA. Those paragraphs read as follows:-

"(5A) Where a person is found guilty of an offence against these regulations with respect to any abalone or any portion of an abalone, there shall be imposed in addition to any other penalty to which he is liable in respect of that offence a special penalty of $10 (no more or no less) in respect of each of those abalone or each of those portions of abalone.

(5B) A person who is guilty of an offence against these regulations with respect to any abalone or any portion of an abalone, or an offence against regulation 17AA, regulation 17A or regulation 44(1) (dc), (s), (ta), (tb), or (tc), is liable to a penalty -

(a) for a first offence, of not less than $40 or more than $500 in respect of that offence;

(b) for a second offence, of not less than $200 or more than $1,000 in respect of that offence; or

(c) for a third or subsequent offence, of not less than $500 or more than $2,000 in respect of that offence."

35 Paragraph 5A has been in that form, except for an increase in the amount of the penalty, at least since 1978. (See Statutory Rule No 149 of 1978). But in order to effect the increase sub-regulation 3AA was repealed and replaced in 1983 (Statutory Rule No 18/1983).

36 The relevant passage of the learned magistrate's decision is:-

"In respect of each of these offences then I am bound by law to impose upon you, and I so impose, a statutory penalty of three thousand, three hundred dollars, related as to ten dollars per fish, and, in addition. in respect of the offence of taking abalone without a licence, I am told and you accepted that it is at least your third offence now, you will be fined the minimum fine of five hundred dollars with Court costs ($30.10). On the second charge, which related to the removal of abalone from their shell in a boat, you will be fined the sum of two hundred dollars, and again there will be a statutory penalty of three thousand, three hundred dollars. That is a total of seven thousand, three hundred and thirty dollars and ten cents." (My emphasis)

37 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. But, wise or unwise, that is the effect of the regulations and the real question in this appeal is whether the regulations are a valid exercise of the power given to the Governor by the Parliament, ie, whether the regulations are intra or ultra vires.

38 The principal Act is the Fisheries Act 1959 as amended by the Fisheries Amendment (Commonwealth-State Arrangements) Act 1981. The relevant section is s9, which after amendment and omitting unnecessary parts reads as follows:-

"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 -

(i) providing in respect of any such offence for the imposition of a penalty not exceeding $2,000 and, where the offence is of a continuing nature, a daily penalty not exceeding $100 for each day during which the offence continues;

(ii) prescribing a minimum penalty for any such offence and, subject to subparagraph (i), prescribing different maximum penalties for successive offences;

(iii) providing in respect of any such offence for the imposition of a special penalty not exceeding $100 in relation to each 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; and

(iv) providing that any special penalty referred to in subparagraph (iii) may be imposed for an offence in addition to any other penalty that may be imposed for the offence."

39 The question for decision is whether paragraph (y) authorises the making of a regulation requiring the imposition of a set special penalty in respect of each offence. To put that another way, is the Governor (ie, the executive arm of government) empowered by the legislative arm to give directions to the judicial arm, or has the legislature done no more than empower the executive to authorise the judicial arm to impose the penalty, if it sees fit? To state the question yet another way, was the executive empowered to direct judicial officers, or was it empowered only to vest a discretion in them?

40 The general rule of law is that the powers of the court are discretionary. This rule has its origin in the independence of the judiciary and is, so far as the interpretation of statutes is concerned, embodied in s37 of the Acts Interpretation Act. If these penalties were provided by statute, they would be construed as discretionary penalties, "unless the contrary [were] expressly provided".

41 In Byrne v McLeod [1934] HCA 61; (1934) 52 CLR 1 at 8, Dixon J said "The principles of interpretation require that, in case of doubt, that meaning shall be adopted which will avoid harshness and will give the Courts authority to do what appears just in each particular case", and, "..... certainty and not surmise is required before adopting an interpretation which not only excludes the Acts interpretation Act, but, in doing so, operates to impose a rigid and possibly harsh penalty". It is true that Dixon and Starke JJ were a minority in that case, but that, I believe, was because they differed from their brethren in the application of the relevant principles, not in the understanding of them. If those principles apply to the exercise of legislative power, then it must follow that they apply to the delegation of it.

42 The draftsman of paragraph (y) seems to have been very conscious of s37 of the Acts Interpretation Act, because he followed sub-paragraph (i) which enabled regulations to be made "providing for the imposition of a penalty not exceeding $2,000" and "a daily penalty not exceeding $100" with sub-paragraph (ii) which enabled minimum penalties and graduated penalties "to be prescribed". Clearly he did not regard sub-paragraph (i) as sufficient authority for the prescription of minimum penalties, let alone fixed penalties. It would seem to follow that "imposition" in sub-paragraph (i) means "imposition by the court" not prescription by regulation (cf. the use of the word "imposed" in the regulations). This is a significant departure from the repealed paragraph (y) whereby the Governor was empowered "to make regulations imposing penalties". This appeal is therefore distinguishable from Cole v Dick and Parker, 77/79 ([1979] Tas R 256), where Neasey J considered the repealed paragraph. The construction of the word "imposition" in the amendment points towards an authority to provide penalties which are discretionary rather than mandatory.

43 Sub-paragraph (iii) authorises the making of regulations "providing for the imposition of a special penalty not exceeding $100 in relation to each fish", etc. It is thus in the same terms as sub-paragraph (i).

44 Sub-paragraph (iv) goes on to permit the making of regulations providing that this special penalty "may be imposed ...... in addition to any other penalty that may be imposed" etc. The second "may" could be taken to mean "may have been" or "has been", but in the context it seems to be more likely that it is referring to the other penalties, and acknowledging their discretionary nature. The first "may" is in my opinion a direct limitation of the regulation-making power to a delegation of a discretion. This can be tested by drawing a skeletal regulation. "A special penalty not exceeding $100 may be imposed" is within power. "A special penalty shall be imposed" exceeds power. (Cf Windeyer J in Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 134). Regulation 44(3AA)(5A) purports to direct the court. and to deprive it of any discretion. It is, in my opinion, ultra vires in that respect. Moreover, for the reasons which I have given, I regard it as ultra vires insofar as it purports to fix the special penalty at $10.00 (no more or no less).

45 Insofar as the regulation is ultra vires, it is incapable of authorising any judicial act. It follows that there was no lawful authority for the order of the learned magistrate imposing the special penalty. That order must be quashed.

46 I concur in the orders proposed by the Chief Justice for the disposition of this appeal.