The Secretary to the Prime Minister's Department has forwarded a copy of Regulations dated 4 November 1922, made by the Administrator of New Guinea under the Fisheries Ordinance 1922 of the Territory, and has requested advice as to-

1. whether regulation ll⁽¹⁾, in whole or in part, is intra vires the Ordinance;
2. whether regulation 12⁽²⁾ is intra vires the Ordinance; and
3. any other matters in the Regulations to which you think fit to draw attention. Section 13 (1) of the Fisheries Ordinance 1922 provides that the Administrator

may make regulations not inconsistent with the Ordinance prescribing all matters which are necessary or convenient to be prescribed for carrying out or giving effect to the Ordinance and in particular for providing for-

5. fixing the minimum dimensions of beche-de-mer, live pearl-shell, trochus-shell, or any other prescribed fish or shell or marine product which may be fished;
6. prohibiting fishing on certain banks or in certain districts.

Apart from paragraph (e) there is nothing in the Ordinance restricting the fishing, sale, purchase, etc. of pearl shells, etc. The power given by paragraph (e) is, I think, a limited power to fix the dimensions of shells and fish which may be fished, and I do not think that the general words at the commencement of the section can be taken to extend the power so as to include the fixing of the dimensions of shells, etc. which may be sold or purchased.

In my opinion, therefore, regulation 11 is invalid.

Regulation 12, in my opinion, makes proper provision in accordance with paragraph (f), for prohibiting fishing on certain banks or in certain districts, and is, I think, to that extent valid. In so far as it purports to provide for prohibiting fishing on reefs it is, I think, invalid.

Attention is also drawn to the provision in regulation 9⁽³⁾ and regulation 13⁽⁴⁾ for imprisonment in default of payment of a pecuniary penalty. In view of paragraph (i) of sub-section (1) of section 13 of the Ordinance, which gives power to provide pecuniary penalties only for breaches of the Regulations, I am of opinion that the provision for imprisonment is ultra vires.

[Vol. 19, p. 198]

(1) Regulation 11 read:

'Any person who takes or removes, sells or exposes for sale, or attempts to export from the Territory, and any dealer in shells who purchases-

(a) Any trochus shell which exteriorly across the base has a measurement less than 2 1 /2 inches or any other measurement which may from time to time be fixed by proclamation in the Gazette; or

(b) Any pearl oyster shell of the kind scientifically known as meleagrina margaritifera, and of either of the varieties commonly known as "Goldenedge", "Gold Lip" or "Silver Lip" of which the nacre or mother-of-pearl measures less than 5 inches from the butt or hinge to the opposite edge or lip, or which measures less than 6 1/2 inches exteriorly from the butt or hinge to the opposite edge shall be liable to a penalty not exceeding Five pounds (£5) for every such shell found in his possession and every bag and other receptacle containing shells in which any such shell is found and every heap or other collection of shells in which any such shell is found shall be forfeited.

Any person in whose possession any shell is found shall be bound to disclose to an inspector or other authorized person from whom he acquired the same.

Any inspector may examine any shell taken, collected, carried away, or exposed for sale and may seize any shells contained in a bag or other receptacle in which there is any such shell of less measurement than that prescribed or any heap or other collection of shells in which is any such shell'.

(2)Regulation 12 read:

'The Administrator may prohibit either for a specified term or until further notice fishing on certain banks, reefs, or in certain districts. Such prohibition shall be notified in the New Guinea Gazette and take effect from the date of publication'.

(3) Regulation 9 read:

'If any licensed boat or ship is found engaged in fishery within the waters of the Territory without the name or the port letter, the letters "No.", the number of the licence of such boat or ship, and the letters "T.N.G." painted thereon as prescribed, the master or the owner thereof shall be liable to a penalty not exceeding Five pounds, and in default of payment to imprisonment for a period not exceeding one month'.

(4) 1 Regulation 13 read:

D 'All persons failing to do any act required to be done or doing any act forbidden to be done by any Regulations made or to be made under the Fisheries Ordinance 1922, in which no penalty is expressly laid down in such Ordinance or in these Regulations shall be liable for any such offence to a penalty not exceeding Ten pounds (£10), and in default imprisonment not exceeding six months'.