The Secretary, Home and Territories Department, forwards the following memorandum for advice:

The following telegram, received from the Administrator of the Northern Territory, is forwarded for favour of advice:

Please see Fisheries Regulations dated 15 July 1912 and August 1917. Have these Regulations the force of law? They provide penalties which Fisheries Ordinance of 1911 does not give power to prescribe. Please advise on this point as question of further regulations under consideration. Urgent. I forward herewith copy of the Regulations referred to, also copy of the Fisheries Ordinance No. 13 of 1911.

The power to make regulations is contained in section 27 of the Ordinance, which reads as follows:

1. The Administrator may make regulations, not inconsistent with this Ordinance, prescribing all matters and things required or permitted to be prescribed by this Ordinance or which are necessary or convenient to be prescribed for carrying out this Ordinance, and in particular for prescribing-
   1. the fees to be paid for licences;
   2. the regulations of the sale of fish; and
   3. any matters for the encouragement of the fishing industry in the Territory.
   4. All regulations made by the Administrator under this Ordinance shall be notified in the Gazette and copies thereof shall forthwith be forwarded to the Minister.
   5. The Minister may, by notice in the Gazette, disallow any regulation and the regulation shall thereupon cease to have effect.

Regulations may be made in regard to certain matters under section 7, which reads as follows:

1. Licences may be granted as prescribed and under and subject to the prescribed conditions as follows:

   1. fishing licences to persons;
   2. fishing licences for vessels or boats;
   3. pearl fishing licences to persons;
   4. pearl fishing licences to vessels or boats;
   5. trepang licences to persons;
   6. trepang licences for vessels or boats.
   7. Licences shall be for such periods as are prescribed, and the fees payable in respect thereof shall be as prescribed.

'Prescribed' is defined in section 3 as 'prescribed by this Ordinance or by regulations made thereunder'.

Most of the regulations which have been made under the Ordinance deal with the conditions upon which licences may be issued, the fees to be paid, and the form and mode of issue of such licences. These regulations do not prescribe penalties and there can be no doubt, I think, as to their validity.

Regulations 13 and 14, which impose penalties, are apparently the regulations the validity of which is questioned. Regulation 13 reads as follows:

1. (a) No licensed vessel or boat other than a vessel or boat having a pearl fishing licence shall have on board any diving dress or diving gear capable of being used for pearl fishing.

Penalty : Fifty pounds.

(b) Any such diving dress or gear found on any such vessel or boat shall be forfeited to the King.

The Ordinance contains no express authority for the making of regulations prescribing penalties and, where it is proposed to fix by regulation penalties for breaches of the regulations, it is highly desirable that power to fix such penalties should be provided in the Ordinance.

The validity of regulation 13 is a matter of some doubt, but seeing that it relates to the effectiveness of the licence system established by and under the Ordinance, I incline to the view that the regulation is valid.

The Ordinance creates a number of offences of a similar character to that specified in the regulation, and it is suggested that an early opportunity be taken to embody the substance of the regulation in the Ordinance.

Regulation 14 reads as follows:

14. (a) It shall be unlawful for any person to take or obtain from the waters of the Northern Territory any mother-of-pearl shell of less size than shell which will pass through a circular metal ring with internal diameter of 5 inches or the nacre of which will pass through a circular metal ring having an internal diameter of 4 1/2 inches.

    (b) The pecuniary penalty for any breach of this regulation shall be Twenty pounds (£20).

Regulation 14 is, I think, objectionable in form. The Ordinance makes it an offence for any person to take fish (which includes oysters, see definition) of less than the minimum size. To specify such size would be a matter convenient to be prescribed and it is suggested that regulation 14 should be amended so that it merely effects this object without creating an offence.

I would point out that the size specified in regulation 14 is somewhat vague, viz. 'of less size than shell which will pass through a circular metal ring with internal diameter of 5 inches' etc.

It will be seen that the standard mentioned may vary in diameter between five inches and zero.

[Vol. 19, p. 56]