Ralf Lavender v NSW Department of Industry; Jack Lavender v NSW Department of Industry

The 2014 allegations

1. On 20 June 2014, Fisheries Officers spoke to Ralph and Jack Lavender at the Hanging Rock Boat ramp Batemans Bay, New South Wales. Both men had been seen early that day in a boat off Little Oakley Beach, near South Durras. The area is tidal and above the low tide mark. Jack was diving for and gathering abalone. Ralf was in the boat assisting him with the catch.
2. Jack Lavender held a commercial fishing licence and an endorsement to take abalone for sale in accordance with a Fishing Business 2159. Fishing Business 2159 was owned by Ralf Lavender, who was a shareholder in the abalone fishery.
3. The boat was kept under observation by Fisheries Officers. When it arrived at the Hanging Rock boat ramp abalone crates were taken from a motor vehicle to the boat. Both men were seen to be cleaning abalone. They were not seen to weigh that abalone. The boat was towed from the water and driven away by the Lavenders. Fisheries Officers made arrangement for police to stop the vehicle. Without going into all the details, which are not in any event contested; when questioned about, the number weight and location of abalone collected and hung that day neither man cooperated fully with Fisheries Officers. Jack Lavender's log book was not complete.
4. Later that evening Fisheries officer went to back to the boat ramp and from their patrol vessel searched for and found the crates of abalone that had been hung by the Lavender's earlier. In the 18 crates were 1039 abalone, weighing 371KG. Jack Lavender had logged 987 abalone, weighing 350KG on his log sheet.
5. Fisheries officers then waited at the Boat ramp. At about 1am on 21 June Ralf Lavender returned to the area. He spoke to a fisheries officer. He told them to return the abalone seized to the water as "we wouldn't have filled in the sheet in at all if we were doin' anything wrong."
6. It is alleged that Ralph then said to Fisheries Officer Sampson Hollywood, "you watch yourself Sampson. You're bloody lucky this door is seized. If I could get you I'd grrr…'and while doing so he grabbed the door of the officer's vehicle and then held up his clenched fist at him. An offence, if proved, of threaten officer: s 247(2) FM Act 1994.
7. Two charges were laid against Jack Lavender: First, an allegation that he, contrary to his licence obligations and endorsements, had hung abalone and failed to record on his daily log sheet; the validated weight of the abalone; the number of abalone hung and the place where the abalone was hung: Clauses 30 (1) and 38 Appendix to Fisheries Management (Abalone Share Management Plan) Regulation 2000. Secondly, that he, having hung abalone and being an endorsement holder in the abalone fishery, did fail to provide his name and information as to the validated weight of the abalone and the number of abalone hung and the place where the abalone was hung: Clauses 30 (4) and 38 Appendix to Fisheries Management (Abalone Share Management Plan) Regulation 2000.
8. In the material put before the Local Court the respondent Department asserted that: 1. The commercial fishery for abalone in New South Wales is a share management fishery declared and regulated under the FM Act and the Fisheries Management (Abalone Share Management Plan) Regulation 2000. 2. Shares in the abalone fishery are allocated as a statutory right to shareholders within the fishery. 3. Abalone may only be taken for the purposes of sale from the abalone fishery by endorsement holders. 4. Endorsement holders are persons who hold a commercial fishing licence that authorises the taking of abalone in the abalone fishery. Endorsement holders may be shareholders in the abalone fishery or licenced commercial fishers nominated by the shareholder to take able in the fishery on behalf of the shareholder shareholders are allocated seasonal catch quotas. There are prescribed requirements to complete and submit accurate daily log sheets; to hang abalone and validate the number hung and where they are hung. These are said to be essential to ensure the integrity of the quota system. 5. An endorsement holder is obliged within an hour of hanging the abalone to provide the nearest Office of the Department with their name and matters required to be recorded by the Appendix. A large number of other obligations on endorsement holders are set out in the appendix. 6. "Hanging" abalone refers to the practice of storing abalone that has been taken for sale in a bin or other container that is in the water without landing the abalone.
9. On 25 November 2016 the allegations came before Magistrate Dick at Batemans Bay Local Court for hearing. Both appellants challenged, as they did later before Magistrate Douglass, the validly of the legislation under which they were charged, the authority of the officers to prosecute them and the standing of the prosecuting authority.
10. As to the substantive charges both appellants stood mute. His Honour considered the evidence tendered and oral evidence from Fisheries' officer Hollywood. Ralf Lavender, when given the opportunity, did ask Officer Hollywood some questions: TT 11.-14. His Honour found each offence proved.
11. On sentence Ralf Lavender explained to his Honour that what he said was in the heat of the moment when he believed the officer had interfered with $10,000 worth of fish. He was fined $4,000 and costs orders of $940 and $2,000.
12. Jack Lavender was fined $2,000 on each count, with professional costs of $940 and $2,000. A moiety of 50% was allowed the Department.
13. Ralf and Jack Lavender appealed on all grounds to this court.

An appeal to the District Court

1. The Crimes (Appeal and Review) Act 2001 relevantly provides: s 18 Appeals against conviction to be by way of rehearing on the evidence (1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, ….
2. Fresh evidence may be given but only by leave: s 18(2) and s19. S20 Determination of appeals (1) The District Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by dismissing the appeal, or …
3. There was no application here to present fresh evidence. The appeals proceeded on points of law alone. It was accepted by both appellants that were these points to fail the evidence tendered in the Local Court would prove each offence and that if that was the case the subsequent orders and penalties should stand.
4. Neither the Crimes (Appeal and Review) Act 2001 nor the District Court Act 1973 specifically provide for the procedure to be adopted on appeal. However it has long been recognised that the District Court on appeal exercises a power analogous to that considered in Fox v Percy (2003) 214 CLR 118. There the High Court considered the nature of a 'rehearing" in civil proceedings. Gleeson CJ, Gummow and Kirby JJ, said, at 125-126: "The appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance."
5. A question, still undetermined, is whether a Judge must find error in the decision of the Magistrate before setting aside the conviction?
6. The accepted view in relation to the predecessor to s 18 was that the rehearing and the powers of the District Court on an appeal under s 18 of the Appeal and Review Act are "not dependent upon finding of error at the original trial:" Gianoutis v Glykis (2006) 65 NSWLR 539 at [39]. However, in Dyason v Butterworth [2015] NSWCA 52 at [27], McColl JA expressed an opinion to the contrary: "The powers of the District Court on a s 18(1) rehearing are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Allesch v Maunz (2000) 203 CLR 172 at [23]."
7. That statement is still controversial. While unresolved it adds a level of uncertainty to how a District Court judge approaches a s18 conviction appeal. This uncertainty was not assisted by the difference of opinion expressed by Basten JA and Simpson JA in AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218. Justice Basten said Gianoutsos v Glykis at [39] is not consistent with recent authorities. He held that an appellant must demonstrate some legal, factual or discretionary error for the appeal to succeed: [9], [12]. He went on to say that the term "error" has no precise meaning; it requires the appellate judge to be satisfied that the judgement under appeal is wrong and should be corrected. How that satisfaction is achieved will depend on a range of factors relevant to specific cases: [34]. Justice Simpson's review and discussion of the authorities led her to conclude that the appeal under s 18 of the Appeal and Review Act does not depend on a finding of any error by the Magistrate.
8. Here each appellant asserts an error of law was made by both Magistrate Douglass and Magistrate Dick. In order to reinforce that contention they ask that I consider submissions additional to those made in the Courts below.
9. In the circumstance's it is incumbent on me to make my own assessment of the legal issues and the otherwise uncontested evidence to determine whether those legal submissions require either that the convictions be set aside or the appeals be dismissed. Making that assessment will involve a conclusion about whether or not Magistrate Douglass and Magistrate Dick erred in law.

The District Court Hearing - Friday, 18 August 2017.

1. Ralph Lavender appeared for himself. He spoke for his son Jack with his son's permission and my leave.
2. I am told and accept that s 78 B Judiciary Act 1903 notices were issued. No Attorney General sought to intervene.
3. In each matter the Respondent provided a tender bundle (Exhibit A) setting out the material before the Local Court and a transcript of proceedings. The Respondent's submissions on the Constitutional issue were marked MFI 1. The Appellant's submissions on this issue were marked MFI 2. As an annexure to his submissions, MFI 2, Mr Lavender provided a House of Commons' Hansard record, Volume 83, 9 February 1900, of the speech to the on The Australian Commonwealth Bill, of Mr Chamberlain, Secretary of State for Colonies. Specific reference was made to these passages: "Everything which has to do with the exterior relations of the six states will be a matter for the Commonwealth and not for the individual governments… (p8)…To this new parliament…thirty nine distinct subjects have been expressly referred…the fisheries in Australian waters beyond the territorial limits of Australia (p17)… This Constitution is to be an Imperial Act, and it is, in substance, the delegation of powers to an authority which is created by the Imperial parliament (p3)…" Reference was also made by Mr Lavender to passages noting the powers of the Privy Council and the High Court of Australia (p31).
4. Ralf Lavender also sought to draw a distinction between Fisheries Arrangements made between the Commonwealth and other States such as Western Australia and those purporting to be between the Commonwealth and New South Wales.
5. A further submission contending that any arrangement between the Commonwealth and the State of New South Wales in relation to the mollusc fishery (Arrangement between the Commonwealth of Australia and the State of New South Wales in relation to the Mollusc Fishery 1990) (the Mollusc Arrangement) did not apply to abalone, as an abalone is a gastropod not a mollusc, was marked MF1 3.
6. The Appellants submit that Babington and Others was plainly wrong and should not be followed. The submission proceeded on the basis that the Full Court in Babington had, all be it wrongly, addressed all the relevant issues except those noted below. I note that Ralf Lavender was the fourth Applicant in Babington.
7. This first submission was accompanied by an assertion that the Australia Act 1986 (C'th) "does not exist" and the text of The Commonwealth of Australia Constitution Act (the Constitution) in common use in this country has been "doctored."
8. By reference to the Hansard of the House of Commons the Appellants submit, in brief summary, that: 1. The Imperial Parliament at Westminster in 1900 by enacting the Australian Constitution created the State of New South Wales. 2. That s.107 of the Constitution continued the pre-Constitution powers of New South Wales but vested certain powers exclusively with new Parliament of the Commonwealth, powers exclusivity exercisable pursuant to s52. Powers, referred to specifically by Mr Chamberlain, were maritime and fisheries matters. 3. Accordingly, as this was an exclusive power of the Commonwealth, the State of New South Wales could not legislate or exercise powers beyond the low tide mark.
9. Ralf Lavender reiterated, the submissions made in Babington that regardless of what arrangements had purportedly been entered into between the Commonwealth Government and New South Wales none extended the territorial jurisdiction of New South Wales or gave any power to the Parliament of that State (should it exist) to pass the FM Act and the Marine Estate Management Act 2014 (NSW) or any associated Regulations or other related instrument.
10. Mr Emmett for the Respondent submitted that all the impugned Acts, Regulations and arrangements were valid exercise of legislative power, for the reasons set out in Babington. He said that the Full Court, and the High Court before it, has authoritively held that the legislative power of the Commonwealth and the States supports New South Wales having and exercising extra territorial fishing regulation powers. He submitted that nothing in Mr Chamberlain's speech allows for the eliciting of any purpose or intention that could assist a court or let alone restrict or confine the legislative capacity of the States or Commonwealth.

Resolution

1. An issue of the validly of an Act of Parliament and the Australian Constitution does not arise merely because a party to litigation asserts it does. I must apply Australian law to Australian legislation. In doing so I note that the effective administration of impartial and independent justice depends upon the maintenance of public respect for the courts as an institution. The hierarchical structure of courts is posited upon the need for an appellate system to correct error in courts lower in the hierarchy: Points made in a different context by Basten JA in R v XY [2013] NSWCCA 121 at [34].
2. There must be mutual acceptance of decisions concerning the construction of statutory provisions. As a consequence when construing or considering the validity of a statute, I must respect a decision of an intermediate appellate court of another jurisdiction concerning the same legislation. If it is contended that the decision of that court is wrong it is for an intermediate courts of appeal of this State to say so; it not for a court of lower in the hierarchy to refuse to follow it.
3. For the reasons advance by the Respondent Babington provides an answer to the Appellant's constitutional argument. As the Full Court said at [39]: "There is therefore no question that New South Wales has the power to make laws concerning fisheries out to the 200 nautical mile limit. Of course, for extra-territorial legislation to be valid there must be a proper nexus between the legislation and the State (see Union Steamship Co of Australia v King (1988) 166 CLR 1, but it is clear that such a nexus exists between a State and its offshore fisheries. They are integrally connected with the local economy."
4. The Full Court explained at [4]-[7]: "The FM Act applies by s 7 (1) (a) to all waters which are within the limits of New South Wales. As explained by the High Court in New South Wales v Commonwealth (1975) 135 CLR 337 ('the Seas and Submerged Lands Case'), New South Wales extends only to the mean low water mark. Hence, the effect of s 7(1)(a), considered in isolation, is to apply the NSW FM Act only to in-land waters and tidal waters above the low water mark. However, s7(1)(c) extends the operation of the NSW FM Act to a larger body of waters where there is an arrangement with the Commonwealth relating to the management of a 'fishery'. … Part 3 of the NSW FM Act then makes provision for the management of a fishery by means of a share management plan that is made by a regulation: s 60. The Plan was a share management plan so made and is the share management plan for the abalone fishery. Section 7(1)(c), in its terms, will extend the operation of the NSW FM Act to any waters to which the legislative powers of New South Wales itself extend in relation to the management of the abalone fishery if, and only if, the New South Wales law providing for that management is made 'pursuant to an arrangement under Division 3 of Part 5'. Division 3 of Part 5 of the NSW FM Act provides for co-operative management of fisheries with the Commonwealth by means of 'an arrangement'. In the case of the abalone fishery, there is such an arrangement. It is the 'Arrangement between the Commonwealth of Australia and the State of New South Wales in relation to the Mollusc Fishery' dated 25 July 1990, Commonwealth of Australia Gazette (No GN 2, 16 January 1991) p 225. In their submissions to this Court the Applicants sought to deny that the Arrangement existed, submitting instead that it was invalid. For procedural reasons this course is not open to them. Further, even if it had been, the argument for the invalidity of the Arrangement was misconceived."
5. On 14 October the High Court refused an extension of time noting; "the application discloses no reason to doubt the correctness of the decision of the Full Court of the Federal Court of Australia." Babington and Others v Commonwealth of Australia and Another [2016] HCSLA 260.
6. The references to the House of Commons debates do not assist the Appellants. That could not invalidate the Australian Constitution. They could not aid in the construction of the provisions of the Constitution or any law of the Commonwealth or State. As Bathurst CJ succinctly noted in Bignill v DPP [2016] NSWCA 13: "The task of statutory construction begins and ends with the text considered in context including the general purpose and policy of the provisions. Context includes legislative history and extrinsic material so far as it assists in ascertaining the meaning of the statutory text, but such material cannot displace the meaning of the text. Further, objective discernment of the statutory purpose is integral to contextual construction. Such purpose resides in the text and context of the statute. It neither permits nor requires a search for what those who pass the legislation had in mind when they enacted it (citations omitted- my emphasis)."
7. Further, I can find no basis in law or the evidence or even submissions put before me to find that any Fisheries Arrangement made between New South Wales and the Commonwealth was invalid. I agree with the Full Court, for the reasons given by them, that; "the argument for the invalidity of the Arrangement was misconceived:" Babington at [7]
8. As to the other matters raised about applicability of the Mollusc Arrangement, MFI 3, my basic research indicates that; Molluscs are marine organisms, the largest marine phylum. Gastropods, which include abalone, are by far the most numerous molluscs in terms of classified species. In simple terms an abalone is both a gastropod and a mollusc. The argument based on an asserted distinction between these classifications has no merit. As the Full Court held in Babington, at [5]: "Abalone are aquatic molluscs."
9. Accordingly, I must conclude that the FM Act and the Marine Estate Management Act 2014 (NSW) are valid exercises of the legislative power of the Parliament of NSW and the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) is authorised by the FM Act.
10. The existing legislative and regulatory arrangements provide a flexible and functional approach to the management of fisheries in off shore waters. On both 5 June 2013 and 20 June 2014 Fisheries Officers were carrying out their proper duties pursuant to those legislative and regulatory arrangements. Their actions were lawful and authorised by valid and operating legislation.
11. The uncontested evidence tendered proves each offence beyond reasonable doubt. On both occasions Ralf Lavender threatened a Fisheries Officer. He was properly found guilty, convicted and fined. On the 2014 Jack Lavender was in breach of his obligations in relation to the legislation and Regulations lawfully governing the Abalone Fishery; obligations he well knew. He was properly found guilty, convicted and fined.
12. Having considered the evidence and the legal arguments raised on appeal and in The Local Court I can find no error in the decisions of Magistrate Dick and Douglass and exercising my own independent judgment conclude each appeal must be dismissed.
13. The appeals are each dismissed In relation to each matter I confirm the orders made in the Local Court as to convictions fines, costs and moiety.

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