Brennan -Kuss & Ors v Dietman [2016] HCATrans 18 (12 February 2016)

Last Updated: 15 February 2016

[2016] HCATrans 018

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A13 of 2015

B e t w e e n -

TERRENCE FREDERICK BRENNAN-KUSS

First Applicant

JOSEPHINE ROSEMARY BRENNAN-KUSS

Second Applicant

KYM STEVEN HICKS

Third Applicant

and

PETER JOHN DIETMAN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 12 FEBRUARY 2016, AT 10.57 AM

Copyright in the High Court of Australia

MS M.E. SHAW, QC: If the Court pleases, I appear with my learned friend, MR B.J. DOYLE, for the applicant. (instructed by Coates Lawyers)

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MS K.B. WYCHERLEY. (instructed by Crown Solicitor for the State of South Australia)

FRENCH CJ: Yes, Ms Shaw.

MS SHAW: If the Court pleases, the facts giving rise to the issues of statutory interpretation can be briefly stated. Mr Hicks lawfully caught a white shark in the early 1990s under a valid fishing licence and acquired title to it at common law. It was agreed as part of the facts at application book 28, paragraph 10, in the judgment of his Honour Justice Blue, that he was the owner of the white shark in question.

The question that arose on those facts was did the fact that white shark, which was later designated a protected species under regulation, namely in 1998, mean that he committed the offence under section 72(2)(b) of the Fisheries Act – the 2007 Act – because he continued to possess the shark jaw? That provision makes it an offence to possess or control an aquatic resource of a protected species.

On appeal to a single judge of the Supreme Court, namely Justice Blue, it was held that the offence of possession of a protected species should be understood as applying only to fish taken from waters to which the Act applies and in circumstances where the taking is unlawful. Those holdings are to be found first of all at application book 45 in paragraph 73 where his Honour had discussed the evolution of the Act and the regulations and concluded – which I will come back to – and in paragraph 73, line 12, that having regard to the operation of the Act in relation to, for example, rock lobsters “carrying external eggs”:

This confirms that, to determine whether a person has dealt in or had possession of fish of a protected species, the question is whether the fish fell within the definition of protected species at the time of taking.

His Honour Justice Blue’s approach to statutory construction included not only an examination of the regulations in the context of the statute, but his Honour also had regard to the second reading speech under previous legislation and his Honour concluded in this respect at paragraph 79 on page 46:

This explanation makes it clear that it was intended that it would not be unlawful to be in possession of fish which had been taken before they became a protected species. This reinforces the construction already derived from the wording, structure, context and evident purpose of section 72(2)(b).

Then his Honour considered the alternative construction and decided at paragraph 84:

These considerations suggest that, on its proper construction, section 72(2)(c) does not apply to the possession of undersize fish which were lawfully taken.

In endeavouring to ascertain the meaning of the provision in the context of the Act and in the context of the stated objects of the Act at section 7 and in the context of the stated application of the Act in section 5 and its operation in relation to the regulations gave content to the provision, his Honour set out the various ways in which the results that would occur if offending resulted from mere possession of a species that was not protected when taken and his Honour - - -

FRENCH CJ: Now, we must go first, must we not, to the text – and I am just picking up as a matter of convenience at page 88, I think, in your summary of argument. So we are looking at a person having possession under 72(2)(b) of “an aquatic resource of a protected species”. Now, there would be no dispute that if this white shark had been caught after 1998, the teeth and the jaws would be an aquatic resource of a protected species?

MS SHAW: Yes, that is so.

FRENCH CJ: Yes. So where is the textual room, if you like, for the construction that the teeth and jaws of that species, of a member of that species caught before 1998 is not an aquatic resource of a protected species?

MS SHAW: The textual context is that that particular shark was not a protected species at the time that the applicant caught the shark. So, a protected species cannot have, we submit, two separate temporal definitions. It has a single definition in the Act, namely, protected species means:

a species of aquatic resource declared by the regulations to be a protected species for the purposes of this Act -

The primary provision under which the taking of protected species is dealt with is section 71 and that provides that:

A person must not –

(a) take an aquatic mammal or aquatic resource of a protected species –

That taking, we submit, must be relative clearly as it states at the time of taking. The text, therefore, necessarily means that when an aquatic resource of a protected species is then referred to in section 72 in a different context, protected species bears the same temporal definition.

KIEFEL J: Ms Shaw, one might infer that it is the taking of the aquatic resource which is the primary focus of these provisions because that constitutes the danger to the environment and to the number of – the extent of the resource, so section 72 is a supporting provision, is it not?

MS SHAW: Yes, that is indeed the way in which his Honour Justice Blue having regard to the objects, and at paragraph 62 of his judgment in application book page 42, arrived at the view that this was, in effect “a ‘downstream’ offence” - that is, section 72 – “a ‘downstream’ offence” to the taking and that was part of his analysis of the scheme of the Act and its nature and its purpose.

KIEFEL J: But I think the Chief Justice saw section 72 in a somewhat different light, in this sense, that at page 69, paragraph 30, at about line 40, as acknowledging the difficulty of proving when an aquatic resource was taken and thus imposing the rather extreme, perhaps, offence under section 72 of possession or sale in order to support the object of overcoming the taking of resources in section 71.

MS SHAW: Your Honour, it is our respectful submission that his Honour’s approach in that respect is in error because the contention that the purpose of the Act is to shut down markets is an assertion or an a priori assumption in relation to the purpose of the Act. It is not one derived from either the text, the objects that are stated in the Act, the application that is stated in the Act or its operation.

KIEFEL J: Well, the reference to markets might be something of a distraction. But I think if one takes it to refer to the primary purpose in section 71, which is to prevent the taking of aquatic resources - protected resources.

MS SHAW: Yes. Even if one refers to section 71 in that respect, the statute has itself identified what its objects are in section 7 and there is no reference, as his Honour Justice Blue arrives at, to indicating that it was intended that this Act on consideration of its provisions, rather than investigating externally what might be notorious facts or what we submit are really assertions that do not derive from the Act – and, of course, this is relevant, in our respectful submission, first of all, to the proposition we put that section 6 of the Act actually vests ownership of the aquatic resources in the State and says that property passes to any other person when taken lawfully in circumstances in which no licence, permit or authority is required and obviously to someone like my client, who had an authority.

His Honour the Chief Justice does not appear to have regard to the fact that included in the structure of the Act and its theme is a recognition of the lawful rights of ownership of those to whom property has already passed. That, in our respectful submission, supports our submission that the approach of his Honour Justice Blue is preferable. So when his Honour Justice Blue, at page 44, paragraph 71, having conducted the analysis as to how the Act would operate if the alternative construction put forward or relied on by the respondent was adopted concluded that:

Confining section 72(2)(b) to fish taken from State waters is consistent with the overall approach taken by sections 5 and 7 of the Act that the concern is about protecting the aquatic resources of the State and fish taken from State Waters rather than about the aquatic resources of Australia or the world.

His Honour’s approach to consider – that is, the provisions and the context of the provisions – in order to derive what might – to ascertain Parliament’s legislative purpose – in our respectful submission, was the preferred approach than arriving at an assertion, external to the Act, which really was an assumption as to purpose.

KIEFEL J: Just returning to your point about how property rights would have vested upon the applicant having taken the resource at a time when it was lawful to do so and property rights having vested in him, that would require any subsequent legislation which sought to dispossess or affect that property right to speak in very clear terms. So the question then becomes whether section 72 does so.

MS SHAW: Your Honour, that is precisely an issue that his Honour Justice Blue addressed and he does that application book 45, in paragraph 74. He does it having considered the operation of the provisions and the regulations and concludes that:

it is an unlikely intention to attribute to the legislature that it becomes unlawful for that person to have possession of the property merely because the fish is of a species which later becomes protected. While this consideration would not stand in the way of an explicit provision or necessary intendment, it tends to support a construction of section 72(2)(b) as only applying to fish taken when they were of a protected species.

FRENCH CJ: So, on the Full Court’s construction at what point did the applicants commit the offence under 72(2)(b)? Was that immediately upon the coming into force of the 2007 Act – or the enactment, perhaps, of the regulation thereafter?

MS SHAW: The regulation occurred in 1998 and the 2007 Act replicated that, or adopted that regulation. So really immediately upon the regulation coming into force and it would not have mattered. He was the fifth owner of the shark jaws.

FRENCH CJ: The offence is an offence under the Act.

MS SHAW: Yes.

FRENCH CJ: So, what I am just trying to get from you is at what point does the applicant first commit the offence? Is it when the Act comes into effect?

MS SHAW: There was an equivalent offence under the old Act, your Honour.

FRENCH CJ: Yes.

MS SHAW: So as far as there was an equivalent offence, it occurs when the regulations come in.

FRENCH CJ: Right, okay.

MS SHAW: Under this Act it occurred in 2007 when this Act came into operation.

FRENCH CJ: So, the construction for which you contend would require us to read 72(2)(b) so far as it refers to an aquatic resource of a protected species as referring to something which is, and always has been:

an aquatic resource of a protected species –

Is that how you try to read it?

MS SHAW: Your Honour, no, we submit it simply means following section 71 - an aquatic resource at the time of taking, protected at the time of taking, I am sorry.

GORDON J: How does that construction sit with section 6(2) which seems to suggest that at the time - for a person to have taken something lawfully the licence, permit or other authority must be under this Act for the taking?

MS SHAW: Your Honour, previous to this Act, I am sorry, was the common law vesting in accordance as is recognised by this Court in Yanner v Eaton. So whether it is under the common law or whether it is under section 6 we submit that the presumption as to vested rights that governs this construction of this legislation applies applying Coco v The Queen and the authorities in this Court.

KIEFEL J: Ms Shaw, do you place any reliance upon your argument that section 72(2) is, I think, as Justice Blue said, a downstream offence or as others might say a follow on offence not intended to have great force of its own, a follow on from section 71 by reference to section 72(5) which appears to provide for defences only with respect to taking - the acts of taking and purchasing but not possession?

MS SHAW: We do, and we maintain that the – I agree with what your Honour has put.

KIEFEL J: That seems to be a curiosity that there is no defence in relation to possession regardless of when possession comes about and in what circumstances.

MS SHAW: It is fair to say that the construction of this Act is attended by a number of curiosities and one which, in our respectful submission - - -

KIEFEL J: It tries to do rather a lot, I suppose.

MS SHAW: Well, effectively, it leads to the construction which, in our respectful submission, is governed by the presumption that there is not an interference with vested rights and the incongruities about where fish are taken that you are in possession of - for example, the blue groper, even though it might have been taken – at the time of taking it might have been taken from waters which are entitled to take it - those kinds of anomalies or incongruities that Justice Blue identifies, in our respectful submission, support the construction that is based on what he arrives at as the evident purpose and as a downstream offence that 72 also fits with the overall structure and context that he arrives at.

In our respectful submission, that presumption of vested rights rather than being targeted in the Act as being qualified in any way, section 6 remains with.....effect reinforces the rights that were obviously a key at common law. Most importantly here, contrast, for example, a civil matter in this case at the promulgation of the 1998 regulations, the Act has.....that the applicants vested property rights he commits a criminal offence liable to, if it is a priority series, four years imprisonment.

FRENCH CJ: Thank you, Ms Shaw. Yes, Mr Solicitor.

MR HINTON: If the Court pleases, I commence by making the obvious point. This case does not raise a question of law of general public importance. For that reason, the grant of special leave is inappropriate. What it does raise is a question of statutory construction. It is a standard, ordinary, run-of-the-mill, if you like, question of statutory construction of a South Australian statute.

FRENCH CJ: You are not saying they do not matter much in the scheme of things?

MR HINTON: I am not saying that they do not matter much in the scheme of things, but in the scheme of the workload of your Honours and what you can manage in a year and the reasons - - -

FRENCH CJ: That is very considerate, thank you, Mr Solicitor.

KIEFEL J: We will remember that next time you intervene. But, Mr Solicitor, could there though be a wider question of construction which has regard to sections which are meant to be the principal section and sections which are really meant to simply follow on and be read in the context of the principal section, that is, that they derive for their offence-making provisions something from the preceding section? I mean, there is probably not a lot of law on that.

MR HINTON: What we have here in terms of derivation is a scheme, so we read section 71 and then we see that section 72 supports it, but all section 72 derives from section 71 is that supporting aspect. If we are going to protect our aquatic resources we must protect them from taking.

KIEFEL J: Well, that is the principal method by which the object of the Act is sought to be achieved in this particular part of the Act.

MR HINTON: Yes, your Honour, it really comes - - -

KIEFEL J: So in one sense section 72 might not be seen as a standalone provision as such but rather requiring to be read together with section 71, and if that is the case, there is a greater force for an argument – for Ms Shaw’s argument that the possession and perhaps the sale, I will put that to one side, of an aquatic resource of a protected species should be read down to be a reference to them having been taken when they were a protected species.

MR HINTON: Can I answer that this way? You would undertake that process in a time-honoured fashion. We would start with the text and when we look at the text of section 72(2)(b), your Honour the Chief Justice asked what is the textual hook for this reading down: there is none. In actual fact, there is the contrast to section 72(2)(a) where the words “taken in contravention” are specifically used. So there is in the text an indication to the contrary. So if we have the ordinary meaning as being one – literal meaning, if you like – that does not on its face give rise to an irrational or incongruous result, then look to the purpose, and so - - -

FRENCH CJ: Section 72 - to take up the point that Justice Kiefel was raising with you, section 72 on your construction goes beyond picking up, if you like, the sequelae of a taking which is unlawful within the meaning of section 71, that is, it goes beyond picking up the sequelae of the conduct which you seek to prohibit.

MR HINTON: Yes, your Honour.

FRENCH CJ: The overreach is justified by reference to the difficulties of enforcement that might otherwise arise. Is that not right?

MR HINTON: Absolutely, your Honour.

GORDON J: Is not the extension to that argument that, in order to make good the objects of protecting the resource, there is little point in protecting the taking without - in effect, to adopt the words of Justice Blue, the downstream activities?

MR HINTON: Yes, your Honour. But Justice Blue’s construction and the Chief Justice’s construction are both amenable to the description of “downstream” except, as your Honour the Chief Justice pointed out, the breadth of the offence in section 72 is broader because it is capable of capturing fish, aquatic resources, not taken in the waters of South Australia. It does that for the reasons identified by the Chief Justice, at application book page 69, paragraphs 28, 29 and 30.

There my learned friend takes issue with the Chief Justice referring to the methodology. She says there is nothing, with respect to her, in the statute that he can hang his hat on as to that being the purpose. What the Chief Justice refers to is notorious facts, notorious facts in the sense that they are the sorts of facts of which judicial notice can be taken. He uses that word “notorious” twice in paragraph 28 and, indeed, in paragraph 30. It is the notorious facts that informed the breadth of the provision.

So in answer to your Honour Justice Kiefel’s question, when we come to the interrelationship between sections 71 and 72, 72 does support 71. It is part of the scheme that ultimately seeks to protect the aquatic resource, but it is necessarily broader because of those notorious facts.

KIEFEL J: Perhaps if we could just refer to section 72 itself for the moment. I discussed with Ms Shaw the fact that section 72(5) does not provide any defence in relation to possession but only sale. Sorry, subsection (6) does not appear – I am looking at page 89.

FRENCH CJ: Page 67.

MR HINTON: Section 72(5) speaks directly to the various paragraphs of section 72(2) but the immediate defence to possess for sale under section 72(2)(b) would be that contained in section 72(5)(b)(iii). But, as Justice Gordon pointed out, the defence for possession is in subsection (6).

KIEFEL J: I see. The defence is limited to the circumstance where there was an authorisation or where there is a prescribed quantity?

MR HINTON: That is right.

KIEFEL J: The kind of circumstance that we have here is not contemplated.

FRENCH CJ: One construction of the argument would be that the unstated premise is that 72(2)(b) does not apply to that kind of case.

MR HINTON: Yes, your Honour. The high point for my learned friends is, with respect, their enlistment of the principle of legality. May I say two things about that. Firstly, in a highly regulated area such as this where your right to take, your right to possess fish is now all covered by statute and has, for some time, been long covered by statute, the principle of legality does not require – I must be careful about this – the strict scrutiny that it would where we were concerned with a common law right. I am attempting there to replicate words – probably inaccurately – of Justice Crennan in Daly v Thiering. My second point is that the - - -

FRENCH CJ: It criminalises possession of something obtained lawfully, of course, so there is an element of the penal burden created by the statute that may engage the principle, is there not?

MR HINTON: There is, your Honour, and that leads in to my second point, nicely. It was considered by the Chief Justice and I take you to page 69 of the application book and I invite your Honours to read the last six lines:

even though it entails –

and so on.

KIEFEL J: What that does is identify the two major actions which need to be addressed if the purposes of the Act are to be met. One is the taking of a protected species and another is the sale of it. In the context in which his Honour was speaking, which is to deny a market for these things, to assist in the protection of the species – but in section 72(2), what one sees is not only a reference to a sale or purchase which is explicable in the context we have discussed, but the neutral action of possession or control which cannot really be seen in the same context as taking or sale.

Normally, one would see in legislation of this kind a reference – sorry, in legislation such as subsection (2), the possession or control as being connected to sale or purchase. So, normally the section would read something like “subject to this section if a person sells or purchases or has possession or control of the aquatic resource for the purposes of the sale or purchase” – for the purpose of sale, more particularly, but the way in which this is drafted really leaves possession or control out there on a limb, unconnected with the two main methods by which the purpose is to be obtained. That somewhat denies the clarity of expression in relation to vested property rights, does it not?

MR HINTON: With respect, my answer would be, no, for this reason. It does not leave possession out there on a limb. It specifically targets it in the same way as criminal statutes target, for example, possession of a controlled drug. It is equally a downstream offence, trying to deny the existence, or trying to undermine the existence of the market. So it equally supports section 71, despite the fact that it is not linked to the act of taking or any – sorry, just the act of taking. It has a very important role in that regard to play. It is not out on a limb.

KIEFEL J: Do you mean possession is necessary in relation to the offence because it is often difficult to identify the source of the sale or purchase connected with the particular subject matter, the substance, or whatever?

MR HINTON: Point one – point two being you cannot take this unless you have a lawful authority to do so. You cannot have it.

KIEFEL J: You cannot maintain possession of it.

MR HINTON: Correct, your Honour.

GORDON J: There is a third element too, and that is that the possession offence breaks the connection between the taking and the sale.

MR HINTON: I would embrace that as well, yes, your Honour. That is my point about looking at this as a scheme and the way in which the scheme seeks to support the protection of the aquatic resource. To that extent, the approach of the Chief Justice is, in my respectful submission, a standard orthodox question of statutory interpretation whereby the elements of a South Australian offence are identified. My learned friends would have - - -

FRENCH CJ: Just as a matter of interest were people given an opportunity to, as it were, hand in their teeth and their jaws?

MR HINTON: I cannot answer that. The Chief Justice does refer to the fact that there would have been a delay between the passing of the Act and the time at which the regulations came on board but, of course, we now go back - - -

GORDON J: The Chief Justice is asking you whether there is an amnesty period?

FRENCH CJ: Yes.

MR HINTON: I cannot answer that question, I do not know.

FRENCH CJ: It is just that when one sees a draconian effect one asks is that the only construction available?

MR HINTON: I cannot deny that, your Honour, but if we insert the words that my learned friends would insert and what we do is we have a limited downstream offence and an offence that protects the aquatic resource in only a limited fashion and there now is this gaping hole in the scheme that is intended to protect the resource, the notorious facts then become a hole in our scheme that would require quick filling, if I can put it that way. If your Honours please, those are my submissions.

FRENCH CJ: Thank you, Mr Solicitor. Yes, Ms Shaw.

MS SHAW: If the Court pleases, first of all, the premise of his Honour the Chief Justice’s analysis that this Act is intended to apply.....broadly, we submit, is correctly addressed by his Honour Justice Blue having regard to

section 5 of the Act which limits its operation to the waters of the State. Section 5 is set out in the – subsection (a):

Subject to any limitations expressly prescribed in this Act, this Act applies –

(a) in relation to all waters that are within the limits of the State –

though his Honour Justice Blue at application book 42, paragraph 61 therefore that contributed to his finding that this was not intended as an offence to address waters outside Australia. He reinforces that by having regard - - -

FRENCH CJ: Does this mean that if you had the jaws and teeth of a white shark caught outside the waters of South Australia, you would not be caught by 72(b)? Is that how the reasoning goes?

MS SHAW: That is so because the Act only applies to fish – protective species caught in South Australian waters. There is an exception and that is provided for in section 72(4) and it is addressed by his Honour at application book 43, paragraph 66 because section 72(4) does provide an exceptional situation in which fish can be prescribed and fall within the provision if they are taken elsewhere than in State waters. That is limited to prescribed classes of fish and it demonstrates and supports Justice Blue’s reasoning that that is another indicator that this section was intended to be limited, as section (5) says, to waters in South Australia apart from where it is specifically exempted within the Act itself.

In our reply at page 111 of the application book, we refer to the Convention on International Trade in Endangered Species of Wild Flora and Fauna as essentially being the policeman or the means by which that trade is addressed. So, in our respectful submission, the analysis by Justice Blue is supported by the text, whereas the analysis of his Honour is based on a premise external to the Act.

Your Honours, in relation to the question of possession of a drug, in our respectful submission, his Honour Justice Blue correctly addressed that in paragraph 62, compared it with the use of chemicals and demonstrated that the possession is the downstream offence and the more serious offending of, say, for example, manufacturing in heroin is actually the upstream offence. If the Court pleases.

FRENCH CJ: Thank you, Ms Shaw. The Court will adjourn briefly to consider what course it should take.

AT 11.36 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.40 AM:

FRENCH CJ: The Court is of the view, by majority, that the case does not raise a question of principle and that the interests of justice do not otherwise warrant the grant of special leave, so special leave will be refused. You seek costs, I think, Mr Solicitor?

MR HINTON: I do, your Honour.

FRENCH CJ: Do you have anything to say about that, Ms Shaw?

MS SHAW: Only, your Honours, that this is a case where what your Honour has said - and I do not want to read too much into it – it does not suggest that - certainly the majority view – that it might be a case where the Court does see it as an appropriate matter not to order costs against the applicant.

FRENCH CJ: There was a costs order below, was there not? Yes. The applicant pay the respondent’s costs of the application. The Court will now adjourn to reconstitute.

AT 11.40 AM THE MATTER WAS CONCLUDED