NSW Fisheries v Payanouvong

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13357/2003 - NEW SOUTH WALES FISHERIES v THONGLITH PAYANOUVONG

JUDGMENT (Appeal decision of LCM - power of search, definition of 'premises' - Fisheries Management Act 1994 (NSW)) 1 MASTER: By summons filed 16 December 2003 the plaintiff seeks leave to set aside the orders made on 16 October 2003 by Magistrate Farnan pursuant to s 59 of the Crimes (Local Court Appeal and Review) Act 2001 (NSW) dismissing the summary proceedings commenced under the court attendance notice against the defendant pursuant to s 247(1) of the Fisheries Management Act 1994 (NSW) (the Act) for the offence of obstructing a Fisheries Officer; secondly, a declaration that the Magistrate erred in law in not finding that a rock platform fell within the definition of premises as defined in s 4 of the Act; thirdly, a declaration that the Magistrate erred in law in dismissing the proceedings; and fourthly, an order that the matter be remitted to the Magistrate to be dealt with according to law. The plaintiff relied on the affidavit of Laurie Derwent sworn 6 August 2004. 2 Mr Payanouvong elected to have the matter determined by the Local Court at Sutherland. Mr Payanouvong entered a plea of not guilty. On 16 October 2003 Mr Payanouvong appeared in the Local Court hearing unrepresented. Although an interpreter was requested to attend, no interpreter was available. 3 Section 56 of the Crimes (Local Court Appeal and Review) Act provides that the prosecutor may appeal to this Court against an order made by a Local Court dismissing a matter the subject of any summary proceedings but only on a ground that involves a question of law alone. Section 59 of the Crimes (Local Court Appeal and Review) Act provides that this Court may determine an appeal as to sentence by setting aside the sentence, by varying the sentence, or by dismissing the appeal.

Extension of time to appeal 4 On 16 October 2003 Farnan LCM gave ex-tempore reasons for her decision. On 16 December 2004 the summons was filed. The appeal was lodged about one month out of time. The main reason for the delay in lodging the appeal was the delay in receipt of the transcript from the Local Court. 5 Whether an extension of time to lodge an appeal is granted depends upon the exercise of discretion. While it has been said that there are "no rigid rules" which confine the exercise of such a discretion and that its exercise must in each case depend upon the particular circumstances of the case (Jackamarra v Krakouer (1998) 153 ALR 276 at 294 per Kirby J) there are a number of considerations or criteria which have commonly been taken into account. They are firstly, the length of the delay in seeking to appeal; secondly, the reasons for the delay; thirdly, whether there is an arguable case on the appeal, and fourthly, whether any prejudice would be caused to the successful party. The plaintiff has an arguable case. I accept the plaintiff's explanation for delay. In these circumstances it is my view that an extension of time should be granted. I do so.

The appeal 6 At the hearing of this appeal, Mr Jones of Counsel and Ms Gerace solicitor appeared for Mr Payanouvong on a pro bono basis. Their assistance was of great benefit to the Court and no doubt also to Mr Payanouvong. Mr Payanouvong also had the assistance of an interpreter. The parties agreed that should the Court uphold the appeal, the appellant would not seek an order that the matter be remitted. Rather, the Court, by consent, will be asked to make an order pursuant to s 59(2)(a) of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW). Fisheries do not seek a costs order against Mr Payanouvong. 7 Fisheries submitted that the Magistrate erred in law in dismissing the information on the basis that there is no prescribed or implied power for Fisheries officers to inspect fish in a public place such as a rock platform.

The Magistrate's reasons 8 The Magistrate referred to the factual circumstances. They are that on 29 September 2002 Mr Payanouvong was fishing from a rock platform north of Henry Head, Sydney when he was approached by Mr Chen, a Fisheries Officer in a full uniform and fully marked fisheries boat that was patrolling Botany Bay. Mr Chen saw Mr Payanouvong and another person fishing with lines from a rock platform. He allegedly shouted to him, "New South Wales Fisheries, stop don't throw that bucket". He observed Mr Payanouvong, he says, empty the contents of the bucket into the water and when that was done he says he saw shellfish and small bait crabs. 9 The Magistrate stated that the essence of the obstruction that is alleged, and she understood the prosecution's case, was that by emptying the bucket into the water Mr Payanouvong obstructed, within the meaning of s 247 of the Act, Officer Chen from carrying out his functions to inspect the contents of the bucket in order, to ascertain whether any breach of the Fisheries management legislation had been committed. Had the matter been further contested, Mr Payanouvong would have disputed whether there was an obstruction and if this were found to be so he would have submitted that there was reasonable excuse. 10 As to whether the Fisheries officer had the power to inspect the bucket depends on the statutory interpretation of ss 250 and 255 of the Act. Mr Derwent, who represented Fisheries at the Local Court, informed the Magistrate under a misapprehension that the only power for a Fisheries officer to inspect the contents of the bucket was under s 250 of the Act (t 15.30-34). The Magistrate proceeded on the basis that the power to inspect the bucket is to be found in s 250 of the Act. However, in passing, the Magistrate referred to s 252 of the Act and stated that there was no doubt that the officer had the power to be where he was and in her view s 252 of the Act clearly granted that power. 11 Section 250 of the Act reads: "Power to enter and search premises (1) A fisheries officer who has reason to believe that there is in any premises anything connected with a fisheries offence may: (a) enter the premises, and (b) search the premises for any such thing, and (c) break open and search any container in the premises that the officer has reason to believe contains any such thing. (2) A fisheries officer may enter any premises that the officer has reason to believe are commercial premises for the purpose of ascertaining whether a person has contravened or is contravening this Act or the regulations and may: (a) search the premises for fish, fishing gear or records relating to fishing activities or to the receipt, possession or disposal of fish, and

(b) break open and search any container in the premises that the officer has reason to believe contains fish, fishing gear or any such record. (3) Entry into premises under this section may only be made at a reasonable time in the daytime or at any hour when work is carried on or is usually carried on in the premises.

(4) The Director-General or a fisheries officer is to give the occupier of premises reasonable notice of an intention to enter the premises under this section unless: (a) the entry is made with the consent of the occupier, or

(b) the entry is made to a part of the premises open to the public, or

(d) the giving of notice would defeat the purpose for which it is intended to exercise the power of entry. (5) Reasonable force may be used for the purpose of gaining entry to premises under this section but only if authorised by the Director-General or in cases of emergency. The authority of the Director-General must be in writing and given in respect of the particular entry concerned.

(6) The Director-General is to give written notice of the use of force to enter those premises to such persons as appear to the Director-General to be appropriate in the circumstances.

(7) In this section, commercial premises means any premises occupied by the holder of a fishing authority, or by a person who should be the holder of an appropriate fishing authority, or any market or premises in which fish are sold or any other premises in which any commercial activity is conducted relating to fish." 12 Section 4 of the Act defines "premises" as "including any structure, building or place, whether built on or not". The definition of "premises" does not distinguish between public or private premises. The definition of premises is an inclusive one. It includes any structure, any building or any place. It would include premises that are either private or public or part private and part public. It is a very wide definition and includes "any place". The word "place" is not defined in s 4 of the Act. It would include a rock platform. 13 Section 252 of the Act provides that a Fisheries officer may, at any time, enter into and pass along (with a boat or otherwise) any waters or the banks or borders of any waters or within a reasonable distance of high water mark on land adjoining any waters. Section 255 of the Act gives a Fisheries officer the power to examine any fishing gear or other equipment that the officer finds anywhere if the officer has reason to believe that the gear or equipment is being, has been or will be used for fishing in waters to which the Act applies. Thus, s 255 of the Act gives Fisheries the power to inspect gear or equipment such as a bucket anywhere. Clearly this power applies to public places. 14 The Magistrate stated: "Section 250 granted to such an officer the power to enter and search premises. Subsection 1 provides that a Fisheries Officer who has reason to believe that there is in any premises anything connected with a Fisheries offence may enter the premises, search the premises for any such thing and break open and search any contained in the premises that the officer has reason to believe contains any such thing. If this rock platform comes within the term premises under that section then the offence maybe made out. To determine whether a rock platform can constitute premises I have been directed to the definition section of this Act, s 4, which defines premises to include any structure, building or place whether built on or not. That is not a definition in the sense of being an exclusive definition but simply extends the definition of premises to include areas which might otherwise not be thought to be premises, that is places which are not built upon. In my view that does not assist greatly in the meaning of the term premises within s 250. It is proper in my view to consider the context in the legislation in which that section appears in order to determine whether it covers the circumstances in this case. The section appears in division 3 which is headed, "Powers of Entry, Search et cetera of Fisheries Officers". The section includes powers to board and search boats, to require gear to be removed from the waters, to detain and search vehicles, to enter waters and banks, examine farms and specifically excludes the power to enter residential premises except under the authority of a search warrant or by consent. In my view had s 250 been intended to apply to public domain places such as in the circumstances of this case it would have been very easy for it to say so. The power under s 252 to enter this place is in my view the power which the officer was exercising on this occasion, that particular power does not provide any additional power to look in any particular container. It may be that one could say there is an implied power to do that which is not implied if all but s 250 had provided was a power to enter the premises … . In my view s 250 simply does not apply to these circumstances. Premises under s 250 are clearly places to which a Fisheries Officer would not otherwise have appropriate right of access, they are places which other persons would otherwise have a right to exclude such an officer from. This is made clear in my view by the general terms of those, the subsections, particularly for example subs 3 which provides that entry may be only made at a reasonable time in the day time or when work is carried on or usually carried on in the premises, that clearly could not properly apply to a public place. It requires notice to an occupier, that also could not apply to a public place. It allows for reasonable force, again that could not apply to a public place and it makes a specific provision in relation to a commercial premises. Whether there is an implied power to look into things which one comes across in the course of exercising ones power under s 252, as I say, has not been fully argued but in the circumstances of this matter I do not consider such a power should be implied and accordingly THE INFORMATION IS DISMISSED." 15 The parties placed different interpretations on sections 250, 252 and 255 of the Act and their interplay. Both the parties referred to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 where the High Court stated that the primary objection of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. 16 The Magistrate held that there was no doubt that the officer had the power to examine fishing gear or other equipment pursuant to s 255 of the Act. Section 4 of the Act defines "fishing gear" to mean any equipment (other than a boat or aircraft) used for fishing activities. However it was her view that the term "gear or equipment" could not properly be interpreted to include the contents of a bucket that was being used, she presumed, for the storage of bait. The Magistrate held that s 250 of the Act does not apply to a public place. If the Magistrate is correct in her interpretation of ss 250 and 255 of the Act then the Fisheries officers have no power to break open any container which is located in a public place. 17 Section 250 appears in Part 9 Division 3 of the Act. Part 9 is headed "Enforcement" and Division 3 is headed "Powers of entry, search etc of Fisheries officers" and includes ss 248 and 263. Section 248 of the Act gives Fisheries officers power to enter, search and inspect containers on boats. Section 249 of the Act gives power to Fisheries officers to require gear to be removed from water. Section 251 of the Act gives Fisheries officers power to detain and search vehicles. Section 254 of the Act limits the right of entry to residential property. Residential premises can only be entered if the occupier consents or under the authority of a search warrant. Division 4 of the Act is headed "Seizure". Without going into detail, Division 4 refers to seizure. Section 264 of the Act allows a Fisheries officer to seize anything that is found by an officer in a search conducted under Part 9 and that the officer has reason to believe is connected with a Fisheries offence. 18 Interpreting the statutory provisions as enunciated in ss 250, 252 and 255 of the Act as a whole and in the context of the objects of the statute, the Act gives a fisheries officer the authority pursuant to s 252 of the Act to "at any time, enter into and pass along (with a boat or otherwise) any waters or the banks or borders of any waters or within a reasonable distance of high water mark on land adjoining any waters". Consistent with this power is fisheries officer's authority pursuant to s 255 of the Act to "examine any fishing gear or other equipment that the officer finds anywhere if the officer has reason to believe that the gear or equipment is being, has been or will be used for fishing in waters to which the Act applies". 19 Critically, the Magistrate held that had s 250 of the Act been intended to apply to public places it would have been very easy for it to say so. I take a different view. I accept that ordinarily a Fisheries officer would not usually require statutory permission to enter a public place. However the definition of premises is expressed to be an inclusive one and adopting the Magistrate's reasoning there is no need to stipulate in s 250 of the Act that the definition of premises includes public places. Section 250(1) of the Act applies to all premises generally, i.e. both public and private places. Then when one reads s 250(2) to s 250(7) of the Act those subsections are directed to commercial premises. Commercial premises are defined in s 250(7) of the Act and as they are not public premises, the Fisheries officers' rights of access are restricted. Section 264 of the Act limits the rights of Fisheries officers to enter residential properties. 20 Under s 250(1) of the Act if the Fisheries officer believes there is anything connected with a fisheries offence they can enter, search the premises and search any container. If the premises are public, there is no need to give notice to the occupier. However, if the premises are commercial ones where it is believed that a person is in contravention of the Act or regulations, the Fisheries officer has to give reasonable notice of the intention to enter the premises. Section 250(4)(b) of the Act dispenses with the notice to occupier where entry is made to that part of the premises open to the public. This interpretation of s 250(4) is consistent with s 250(1) of the Act. Section 250(1) is expressed in relation to "anything connected with a fisheries offence" whereas s 250(2) speaks of entering commercial premises to ascertain whether a person has contravened or is contravening this Act or regulations. 21 The objects of the Act are set out in s 3 and are as follows: "Objects of Act

(1) The objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of present and future generations.

(2) In particular, the objects of this Act include: (a) to conserve fish stocks and key fish habitats, and (b) to conserve threatened species, populations and ecological communities of fish and marine vegetation, and (c) to promote ecologically sustainable development, including the conservation of biological diversity, and, consistently with those objects: (d) to promote viable commercial fishing and aquaculture industries, and (e) to promote quality recreational fishing opportunities, and (f) to appropriately share fisheries resources between the users of those resources, and (g) to provide social and economic benefits for the wider community of New South Wales." 22 In the second reading speech of the Fisheries Management Bill on 21 April 1994, the Honourable Mr Causley, the Minister for Agriculture and Fisheries and the Minister for Mines spoke of the rolling over of the majority of existing powers with some enhancements to the powers and enhancements being given to the powers of Fisheries officers. The Magistrate's interpretation of s 250 of the Act not being applicable to public places makes s 250 inconsistent with the objects expressed in the Act of conversation of fish stocks and threatened species. 23 It is my view that there is an error of law. Section 250(1) of the Act applies to public places. The appeal is upheld. The plaintiff's summons filed 16 December 2003 is dismissed. It is appropriate that because the charge was dismissed in the Local Court the parties agree that this matter should not be sent back to the Local Court. The matter is not remitted to the Local Court. I make no order as to costs. 24 The Court orders:

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