Citation: Ralf Lavender v NSW Department of Industry; Jack Lavender v NSW Department of Industry [2017] NSWDC 236
Court: District Court of New South Wales
Date: 1 September 2017
Judge(s): Haesler SC DCJ
Background
Two men, a father and son, were prosecuted following separate incidents in 2013 and 2014 in which Fisheries Officers observed them harvesting cockles and abalone in coastal New South Wales waters. The father faced charges of threatening a Fisheries Officer on both occasions, arising from statements made to officers at a boat ramp. The son faced charges relating to failures to comply with logging and weighing obligations under the abalone fishery regulations; his logbook recorded fewer and lighter abalone than officers subsequently located and weighed.
Both men declined to contest the factual basis of the charges in the Local Court. Instead, they challenged the constitutional validity of the legislative framework under which they were prosecuted, arguing that New South Wales had no power to enact the relevant fisheries legislation or to authorise Fisheries Officers to act beyond the low tide mark. The Magistrates in both proceedings rejected those arguments and convicted both men. The father was fined $1,000 in the first matter and $4,000 in the second; the son was fined $2,000 on each of two counts.
Both men appealed to the District Court on all grounds, again pressing the constitutional arguments. The father, who appeared for himself and for his son with the court's leave, advanced detailed submissions including materials from an 1900 House of Commons debate and an argument that the Australian Constitution had been "doctored."
Legal Issues
- Whether the Fisheries Management Act 1994 (NSW) and associated regulations and arrangements are a valid exercise of legislative power by the Parliament of New South Wales, including in respect of waters beyond the low tide mark
- Whether the Arrangement between the Commonwealth and New South Wales in relation to the Mollusc Fishery 1990 was validly made and applies to abalone
- Whether abalone, as a gastropod, falls within the category of "mollusc" for the purposes of the Mollusc Arrangement
- Whether debates in the House of Commons in 1900 concerning the Australian Commonwealth Bill could affect the validity or construction of the Australian Constitution or State and Commonwealth legislation
- Whether the Local Court Magistrates erred in law in rejecting the constitutional challenges and convicting the appellants
- Whether, on appeal under the Crimes (Appeal and Review) Act 2001, a finding of error by the Magistrate is a prerequisite before the District Court can set aside a conviction
Decision
Issue 1: Standard of review on appeal
The court noted an unresolved tension in New South Wales appellate authority about whether an appellant must demonstrate error before a District Court can set aside a Local Court conviction on appeal under the Crimes (Appeal and Review) Act 2001. Differing views were expressed in Gianoutis v Glykis and in the Court of Appeal decisions of Dyason v Butterworth and AG v DPP (NSW). The court found it unnecessary to resolve the controversy, proceeding instead to make its own independent assessment of the legal issues and the uncontested evidence.
Issue 2: Constitutional validity of the NSW fisheries legislation
The court held that the Full Court of the Federal Court in Babbington and Others v Commonwealth of Australia [2016] FCAFC 45 had authoritatively resolved the constitutional arguments advanced by the appellants, and that the High Court had subsequently refused an extension of time to challenge that decision, observing it disclosed no reason to doubt the Full Court's correctness (at [43]). As a court lower in the hierarchy, the District Court was required to follow that intermediate appellate decision rather than decline to apply it (at [40]). The Fisheries Management Act 1994 (NSW) and associated legislation were valid exercises of NSW legislative power (at [47]).
Issue 3: House of Commons debates and the alleged "doctoring" of the Constitution
The court rejected the submission that 1900 House of Commons Hansard debates could invalidate the Australian Constitution or assist in its construction. Following remarks of Bathurst CJ in Bignill v DPP, the court found those materials of no legal utility (at [44]). The assertion that the Australia Act 1986 "does not exist" and that the Constitution in common use has been "doctored" was not accepted.
Issue 4: Whether abalone falls within the Mollusc Arrangement
The appellants argued that abalone, being a gastropod, is not a mollusc and therefore falls outside the Arrangement between the Commonwealth and New South Wales in relation to the Mollusc Fishery 1990. The court found that gastropods, including abalone, are a subset of molluscs, and that abalone are both gastropods and molluscs. The argument that the Arrangement did not cover abalone had no merit (at [46]). This finding was consistent with the Full Court's statement in Babbington that "abalone are aquatic molluscs."
Issue 5: The convictions
The court found that the Fisheries Officers were lawfully exercising their duties under valid legislation on both occasions (at [48]). The uncontested evidence proved each offence beyond reasonable doubt (at [49]). The father was properly convicted of threatening a Fisheries Officer on both the 2013 and 2014 occasions. The son was properly convicted of breaching his regulatory obligations under the abalone fishery framework (at [49]). No error was identified in the reasoning of either Magistrate, and the court's own independent assessment reached the same conclusions (at [50]).
Orders Made
- Both appeals dismissed
- Orders of the Local Court confirmed as to convictions, fines, costs and moiety arrangements
Key Takeaways
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A lower court must respect and follow decisions of intermediate appellate courts from other jurisdictions concerning the same legislation; it is not open to a court lower in the hierarchy to decline to apply such a decision simply because a party contends it is wrong (at [40]).
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In dismissing the appeals, the District Court confirmed that the constitutional validity of the Fisheries Management Act 1994 (NSW) and associated legislation had been authoritatively determined by the Full Court of the Federal Court in Babbington, a conclusion the High Court declined to disturb (at [41]-[43]).
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Abalone are both gastropods and molluscs; an argument that abalone fall outside the scope of the Commonwealth-NSW Mollusc Arrangement on the basis that they are gastropods rather than molluscs was rejected as without merit (at [46]).
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Parliamentary debates from the House of Commons in 1900 concerning the Australian Commonwealth Bill cannot invalidate the Australian Constitution or assist in its construction or in the construction of Australian legislation (at [44]).
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Where appellants accept on appeal that the uncontested evidence would prove each offence if their legal arguments fail, and those legal arguments are rejected, the convictions, penalties and costs orders made at first instance will stand (at [22], [49]-[51]).
Legislation and Cases Referenced
Legislation
- Arrangement between the Commonwealth of Australia and the State of New South Wales in relation to the Mollusc Fishery 1990
- Australia Act 1986
- Crimes (Appeal and Review) Act 2001
- District Court Act 1973
- Evidence Act 1995
- Fisheries Management Act 1994 (NSW)
- Fisheries Management (Abalone Share Management Plan) Regulation 2000
- Judiciary Act 1903
- Marine Estate Management Act 2014 (NSW)
- The Commonwealth of Australia Constitution Act
Cases
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
- Babbington & others v Commonwealth of Australia [2016] FCAFC 45
- Bignill v DPP [2016] NSWCA 13
- Dyason v Butterworth [2015] NSWCA 52 at [27]
- Fox v Percy (2003) 214 CLR 118
- Gianoutis v Glykis (2006) 65 NSWLR 539 at [39]
- R v XY [2013] NSWCCA 121 at [34]