Editors --- "Wilkes v Johnsen - Case Summary" [2001] AUIndigLawRpr 13; (2001) 6(2) Australian Indigenous Law Reporter 17

• Wilkes V Johnsen
• Facts:
• Held, Allowing The Appeal In Part (Kennedy And Wheeler Jj, White J Dissenting):

---

Court and Tribunal Decisions - Australia

Wilkes v Johnsen

Western Australia Court of Appeal (Kennedy, White, Wheeler JJ)

23 June 1999

(1999) 21 WAR 269; 151 FLR 89; [1999] WASCA 74

Aborigines — native title — enjoyment of native title rights and interests — right to fish — whether regulated by legislation — application of s 211 Native Title Act 1993 (Cth)

Facts:

The appellant was convicted under the Fish Resources Management Act 1994 (WA) (FRMA) of being in possession of totally protected fish (undersize marron) contrary to s 46(b) of that Act, and of failing without reasonable cause to give his name and address to a fisheries officer contrary to s 189(2) of that Act. The appellant claimed at trial that he had a native title right to fish for undersize marron which was either not affected by the FRMA or was preserved by s 211 of the Native Title Act 1993 (Cth).

The appellant appealed to the Supreme Court of Western Australia.

Held, allowing the appeal in part (Kennedy and Wheeler JJ, White J dissenting):

1. Per Wheeler J, Kennedy J concurring, White J contra: Section 46 of the FRMA applied to Aboriginal people exercising native title rights to fish. It was not necessary to discern a ‘clear and plain intent’ on the part of the legislature to affect native title where the statute in question was regulatory in nature, rather than having the effect of permanently impairing or extinguishing native title. In any event the FRMA itself expressly acknowledged Aboriginal traditional fishing for some purposes. Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 111, 195 discussed; Mason v Tritton (1994) 34 NSWLR 572 at 593 adopted. [76], [82], [83]

2. Per Wheeler and Kennedy JJ: Section 211 of the Native Title Act must be construed in its broad statutory context and with a view to achieving uniformity of practical results in differing regimes. The use of the expressions ‘licence’, ‘permit’ or ‘exemption’ assumes some prohibition or restriction that limits the activity of those who, absent the restriction, would be free to undertake the activity. The question whether the FRMA contained a restriction within s 211(b) was to be answered as a matter of substance, not by reference to technical distinctions between the elements of an offence and exceptions to liability. Therefore, an exemption could be described as an ‘other instrument’ for the purpose of the section. Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136 considered. [10], [91], [97], [98]

3. Per Wheeler J: To the extent that s 46 of the FRMA purported to prohibit possession of fish caught pursuant to s 211, it was inconsistent with s 211 and was to that extent inoperative under s 109 of the Constitution. [105]

4. Per Wheeler J: The function of a fisheries officer is to investigate possible offences, and the fact that a good defence might exist to a charge under the FRMA did not relieve a person of the obligation to comply with a requirement under s 189. [108]

5. The appellant’s appeal against conviction under s 46 of the FRMA was allowed and remitted to the Magistrate. The appeal against conviction under s 189 was dismissed.