Opinion Number. 406



Key Legislation

CONSTITUTION, s. 51 (x), (xxxix) : FISHERIES ACT 1902 (N.S.W.), ss. 23, 26: FRESHWATER FISHERIES ACT 1878 (IMP.), s. 11

The Comptroller-General of Customs

I have read the case referred to by Mr Dannsvig. It is the case of Olsen v. Paxino, reported in 22 W.N. page 199. It was heard before the Chief Justice sitting alone and does not appear to have been argued at any great length, as no authorities were cited or considered in connection with the main question.

The Chief Justice came to the conclusion that the Act(1) generally was intended to promote and regulate fisheries within New South Wales and did not therefore apply to oysters imported from Queensland. Inferior courts in New South Wales would of course be bound by the decision; but I think that if the question came before the Full Court of New South Wales, it is very probable that it would be reconsidered. The case does not decide that the Act could not deal with fish taken outside New South Wales, but simply that it does not.

If the decision is good, it follows that the Act does not apply to fish taken off the coast of New South Wales outside the three miles limit. In that case the prohibition of the sale of undersized fish would be of little or no value, as it would be easy to sell undersized fish under the pretence that they had been taken outside the State limits, which pretence it would be difficult, if not impossible, to refute.

Section 26 of the Act, to my mind, contains clear evidence that that section was intended to apply to salmon wherever taken, as it contains an exception in the case of salmon cured, pickled or dried.

If it is admitted that section 26 does not apply to salmon taken outside New South Wales, the arguments on which the Chief Justice's decision was based are much weakened.

Section 23 of the Act, referred to in my opinion(2) as undoubtedly applying to fish caught beyond the limits of the State as well as to those caught within such limits, does not contain any words to limit its application to fish caught within the State and, notwithstanding the decision quoted, I am unable to gather from the Act anything which would justify a court in reading it as if it contained such limitation.

I have consulted several English authorities and the balance of authority is in favour of the view expressed in my opinion. Thus in Price v. Bradley 16 Q.B.D. 148, it was held that the fourth sub-section of the eleventh section of the Freshwater Fisheries Act 1878, which forbids the sale or exposure for sale of freshwater fish during the close season, applies to fish caught outside that part of the United Kingdom to which the Act applies.

There is a fairly recent case, viz. that of Guyer v. The Queen 23 Q.B.D. 100, which is somewhat against my view, but that case was decided on the particular wording of the Act in question. Also the Court was divided in opinion and the dissenting judgment is strongly in favour of the view expressed in my opinion.

I see no reason, therefore, to modify my opinion.

I might add that the power to legislate with respect to fisheries in Australian waters outside territorial limits carries with it the incidental power to regulate the disposal of the fish taken, and legislation could be passed which would enable undersized fish taken outside such territorial limits, to be disposed of in any manner Parliament thought fit to sanction.

[Vol. 8, p. 323]

(1) Fisheries Act 1902(N.S.W).

(2) Opinion No.399.