| — JUDGMENT No, O57) 27, CATCHWORDS STATUTES - statutory interpretation - delegated legislation and statutory instruments - scope of powers to make such instruments - invalidity - severance - Acts Interpretation Act 1901, s. 46 - charges based upon non-compliance with requirements of such instruments - whether presumption that legislation intended to operate lawfully - whether charges properly maintainable. FISH AND FISHERIES - statutory regulation of exploitation of fishery - paragraph in plan of management held void ~ whether balance of plan severable - notice and licences operating by reference to provisions of plan - whether also void - whether charges of contravention properly maintainable. Crimes Act 1914, s. 15B Fisheries Act 1952, ss. 5B, 7B, 8, 9, 13 Fisheries Legislation (Consequential Provisions) Act 1991, s.6 Fisheries Levy Act 1984 Acts Interpretation Act 1901, s. 46 Austral Fisheries Pty Ltd v Minister for Primary Industries & Energy (1992) 37 F.C.R. 463 Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 F.C.R. 381 Bank of N.S.W. v The Commonwealth (1948) 76 C.L.R. 1 Beckwith v The Queen (1976) 135 C.L.R. 569 Deming No. 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 C.L.R. 129 Kent County Council v Kingsway Investments (Kent) Ltd [1971] A.C. 72 Director of Public Prosecutions v Hutchinson [1990] 2 A.C. 783 Smiles v Commissioner of Taxation (1992) 37 F.C.R. 538 MARK ANTHONY COLEMAN & ANOR v KEVIN JAMES GRAY NG616 of 1994 MARK ANTHONY COLEMAN v FRANCESCO PIRRELLO (JNR) & ANOR NG617 of 1994 MARK ANTHONY COLEMAN v ANTONIO LA MACCHIA & ORS NG618 of 1994 BEFORE: DAVIES, BEAUMONT, GUMMOW JJ. PLACE ; SYDNEY. FEDERAL COURT OF DATE: 23 DECEMBER 1994. AUSTRALIA CIPAL REGISTRY IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG616 of 1994 GENERAL DIVISION ) On appeal from a Judge of the Federal Court of Australia. BETWEEN: MARK _ ANTHONY COLEMAN Firet Appellant DIRECTOR OF PUBLIC PROSECUTIONS Second Appellant AND: KEVIN JAMES GRAY Respondent IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG617 of 1994 ) GENERAL DIVISION On appeal from a Judge of the Federal Court of Australia. BETWEEN: MARK ANTHONY COLEMAN Appellant AND: FRANCESCO PIRRELLO (JNR) First Respondent GAVIN WICKS Second Respondent IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG618 of 1994 GENERAL DIVISION ) On appeal from a Judge of the Federal Court of Australia. BETWEEN: MARK ANTHONY COLEMAN Appellant AND: ANTONIO LA MACCHIA First Respondent RUTH LA MACCHIA Second Respondent ANDREW LA MACCHIA Third Respondent FRANCESCO LA MACCHIA Fourth Respondent BEFORE: PLACE: DATE: ELIZABETH LA MACCHIA Fifth Respondent LUCIA MUSUMECI Sixth Respondent VINCENZQ_MUSUMECI Seventh Respondent ROCCO MUSUMECI Eighth Respondent ANTONIO MUSUMECI Ninth Respondent ROCCO _MUSUMECI Tenth Respondent VINCENZO_IANNI Eleventh Respondent ANTONIO IANNI Twelfth Respondent VINCENZO_BASILE Thirteenth Respondent TONY BATTAGLIOLO Fourteenth Respondent SANTO BATTAGLIOLO Fifteenth Respondent GUISEPPE PUGLISI Sixteenth Respondent CHARISSA PTY LIMITED Seventeenth Respondent PAUL BAGNATO Eighteenth Respondent RICHARD BAGNATO Nineteenth Respondent ROSS BAGNATO Twentieth Respondent PAUL BAGNATO Twenty first Respondent GUISEPPE_ BAGNATO Twenty second Respondent VINCE BAGNATO Twenty third Respondent DAVIES, BEAUMONT, GUMMOW JJ. SYDNEY. 23 DECEMBER 1994. -3- MINUTE OF ORDERS In Appeal NG616 of 1994: THE COURT ORDERS THAT: (1) (2) The appeal be dismissed. The appellants pay the costs of the respondent of the appeal. In Appeal NG617 of 1994: THE URT ORDERS THAT: (1) (2) The appeal be dismissed. The appellant pay the costs of the respondents of the appeal. In Appeal NG618 of 1994: THE COURT ORDERS THAT: (1) (2) (3) The entry in Schedule B to the orders made 5 September 1994 in respect of the twenty-second respondent be amended by deleting "13 (1) (b)". The appeal otherwise be dismissed. The appellant pay the costs of the respondents of the appeal. Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No G 616 of 1994 GENERAL DIVISION ) On appeal from a Judge of the Federal Court of Australia. BETWEEN: BETWEEN: AND: BETWEEN: AND: MARK ANTHONY COLEMAN First Appellant DIRECTOR OF PUBLIC PROSECUTION Second Appellant KEVIN JAMES GRAY Respondent No G 617 of 1994 MARK ANTHONY COLEMAN Appellant FRANCESCO PIRRELLO (JNR) First Respondent GAVIN_ WICKS Second Respondent No G 618 of 1994 MARK ANTHONY COLEMAN Appellant ANTONIO LA MACCHIA and OTHERS Before: DAVIES, BEAUMONT, GUMMOW JJ Place: Sydney Date: 23 December 1995. -2- REASONS FOR JUDGMENT DAVIES J.: I have had an opportunity to read the reasons for judgment prepared by Gummow J. I agree with them but would add a few words of my own. In Austral Fisheries Pty Ltd v Minister tor Primary Industries and Energy, (1992) 37 FCR 463 O'Loughlin J declared that par. 11 of the South East Fishery (Individual Transferable Quota) Management Plan 1991 ("the Plan"), was void. His Honour did so as the Plan proposed quotas for the South East Fishery and the allocation of units of quota amongst fishing vessels by reference primarily to catches in prior years. The formula for the ascertainment of quota units was flawed because it adopted a faulty mathematical calculation which gave rise to capricious and arbrtrary results. Consequently, the aim of allocating units in proportion to prior catches was not achieved. In Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381, Lockhart, Beaumont & Hill JJ dismissed an appeal from the order of O'Loughlin J. At 384, Lockhart J said: "Delegated legislation may be declared to be invalid on the ground of unrcasonableness if 1 leads to manifest arbitrarmess, myustice or partiality; but the underlying rationale 1s that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws." ", clJ1 is so artificial and creates such extraordinary results that I cannot accept it as being within the scope of the statutory powers conferred by the Fishertes Act 1952 (Cth), in particular s 7B." (emphasis added) At 401, Beaumont & Hill JJ said: "In substance, the yudge held that the relevant provisions of the Plan were capricious and irrational, such that no reasonable person could ever have devised it. This was an extreme conclusion But it was justified on the expert evidence of Dr Nicholls. We are not persuaded that, in principle, his Honour was wrong in that conclusion. In the absence of evidence or a process of reasoning to propound any rational basis to warrant the adoption of a statistically flawed formula for the calculation of catch history over the five year period, rt was, we think, reasonably open to his Honour to conclude that the relevant provisions of the Plan were beyond power and thus void. No case for interfering with that conclusion has, in our view, been made out." (emphasis added) The order made by O'Loughhin J. was intended to have and had the effect of declaring par. 11 ot the Plan to be void ab mitio. That is the ordinary understanding of such an order if it is not otherwise qualified, as, eg, s. 16(1)(a) of the Admmustrative Decisions (Judicial Review) Act 1977 (Cth) permits. For the purposes of this appeal, it is not necessary to consider the difficult issues of invalidity discussed by Michael Taggart, "Rival Theories of Invalidity in Administrative Law", in Judicial Review of Administrative Action in the 1980's, M Taggart ed, 1986, 70- 102. Paragraph 11 of the Plan was void because the mathematical formula adopted was unreasonable, leading to such arbitrary and capricious results that it was outside the power of the decision-maker, the Minister, to adopt it. It necessarily follows that par. 14 of the Plan, which provided for the assignment of units by reference to the number of units determmined under par. 11, was equally unreasonable and ultra vires. -4- The Fisheries Notice No SEF1 was also void. Its object was to impose a quota and to provide for fishing in accordance with assigned units of the quota. As no reasonable means of allocating units of a quota were proposed, the notice was ultra vires. Void also were the conditions on the licences which permitted but restricted fishing by reference to the units assigned under the Plan. As it was ultra vires for the Minister to specify in the Plan units calculated on the unreasonable basis which he specified, it was also unreasonable and ultra vires tor the Licencing Officer to impose a condition on a licence giving effect to that arbitrary and capricious basis. The learned trial Judge was correct in declaring that the Fisheries Notice and the subject conditions in each of the licences were void. Save as to the prosecution brought with respect to Mr G Bagnato, the charges all refer to either the Fisheries Notice or the subject condition and they depend upon the validity thereof and proof of non-compliance therewith. As the trial Judge declared, the charges are therefore not maintainable. I agree with the orders proposed by Gummow J. I certify that this and the 3 preceding pages are a true copy of the reasons tor judgment herein of the Honourable Justice Yavies Associate: Date: 23 December 1994 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISTON ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA No. G 616 of 1994 BETWEEN: MARK ANTHONY COLEMAN First appellant DIRECTOR OF PUBLIC PROSECUTION Second Appellant AND KEVIN JAMES GRAY Respondent No. G 617 of 1994 BETWEEN: MARK ANTHONY COLEMAN Appellant AND: FRANCESCO PIRRELLO (JNR) First respondent GAVIN WICKS Second respondent No. G 618 of 1994 BETWEEN: MARK ANTHONY COLEMAN Appellant AND: ANTHONTO. LA MACCHIA AND OTHERS CORAM: DAVIES, BEAUMONT AND GUMMOW JJ. DATE: 23 DECEMBER 1994 REASONS _FOR JUDGMENT BEAUMONT J. INTRODUCTION The respondents to these appeals sought declaratory and other relief in respect of, inter alia, Fisheries Notices ("the Notices") with respect to the South East Fishery purportedly made pursuant to the provisions of Part III of the Fisheries Act 1952 ("the Act"). (This Part of the Act deals with the regulation of fishing.) A Judge of the Court (Einfeld J.) declared that the Notices, and certain conditions purportedly attached to licences issued to the respondents, were void. The primary Judge also declared that prosecutions brought against the respondents, alleging offences against the Act, were "not maintainable" in law. The appellants, who include District Fisheries officers, laid the informations on which the summonses were issued to the respondents and now appeal from the orders made by Einfeld J. THE OBJECTIVES OF THE ACT In order to understand the issues which arise on the appeals, it will be necessary to describe the scheme for the regulation of fisheries contained in Part III of the Act, but reference should first be made to the statement of objectives of the Act set out in s.5B, which is in Part II of the Act. Relevantly, s.5B provides that, in the administration of the Act, the Minister shall have regard to the objectives of - (a) ensuring, through proper conservation and management measures, that the living resources of the Australian fishing zone are not endangered by over-exploitation; and (b) achieving the optimum utilization of the living resources of the Australian fishing zone. THE SCHEME OF REGULATION OF FISHERIES IN PART IIZ_ OF THE ACT Relevantly, this scheme is found in s.7, 7B, 8, 9 and 9A in Part III of the Act. The offences were created by s.13 in Part V of the Act, dealing with "Miscellaneous" matters. Reference will be made to its terms later. (1) Proclaimed waters By s.7(1), the Governor-General may, by Proclamation, declare any marine or tidal waters to be proclaimed waters for the purposes of the Act. It is common ground that the marine waters the subject of these proceedings were so proclaimed. (2) Management plans By s.7B(1), the Minister may, by instrument in writing, determine a plan of management for a fishery in proclaimed waters. A plan shall set out its objective and the measures by which the objective is to be attained (s.7B(2)). In particular, the Minister may determine the fishing capacity of the fishery and the manner of its measurement (S.7B(3)). A plan may provide for the granting of licences under s.9(2), including conditional licences, and for their duration, transfer, renewal and variation (s.7B(4)). The plan may provide for, inter alia: (a) the division of the permitted fishing capacity into units; (b) assignment of units to boats and their holding, and cessation of holding, in relation to boats; and (c) requiring units, as determined, to be held in relation to boats (s.7B(5)). The Minister and the Secretary shall perform their functions and exercise their powers under the Act in relation to the fishery "in accordance with the plan of management, and not otherwise" (s.7B(8)). (3) Regulation of fishing By s.8(1), the Minister may, by notice published in the Gazette, inter alia, prohibit the taking of fish in a class there specified. A notice may provide for exemptions from its prohibitions (s.8(2)(d)). (4) Licences By s.9(2), the Minister or the Secretary may grant to a person a licence in respect of a boat authorizing its use for (a) taking fish in proclaimed waters or (b) for a specified managed fishery. The Minister or the Secretary may endorse a licence granted under s.9(2)(a) so as to authorise the use of a boat for activities prohibited by a notice under s.8(1) (s.9(4)). A licence under s.9 is subject to such conditions as are specified in the licence, or prescribed, and in the case of a licence under s.9(2)(b), as are specified in the plan of management (s.9(5)). (5) Suspension and cancellation of licences By s.9A(1), The Minister or the Secretary may suspend a licence if there are reasonable grounds to believe, inter alia, that (a) there has been a failure to comply with a condition of the licence or (b) the holder of the licence has done an act prohibited by a notice under s.8(1). By s.9A(3A), the Minister may cancel the licence if, inter alia, the holder is convicted of an offence against the Act. OFFENCES AGAINST THE ACT Relevantly, s.13(1) provides that a person shall not (i) use a boat in proclaimed waters for taking fish unless authorised by licence under s.9(2); (ii) contravene or fail to comply with a licence condition; or (iii) do an act prohibited by a s.8 notice. THE BACKGROUND FACTS The undisputed history of the matter was as follows: (a) The purported determination of the Plan of Management On 9 December 1991, the Minister purportedly determined the South East Fishery (Individual Transferable Quota) Management Plan 1991 ("the Plan") pursuant to s.7B(1) of the Act. The first season was to commence on 1 January 1992 (para.4.2). The objectives of the Plan were stated in para.5 to "(a) to achieve a level of parental biomass for each stock in the fishery consistent with optimum sustainable yields for that stock having regard to among other things scientific assessments of the status of that stock; and (b) to promote optimum utilisation of the resource in the fishery." The principal measures for attaining the objectives were stated in para.6 of the Plan to be - ""(a) determining the TAC [Total Allowable Catch] for each specified species that may be taken from the fishery; (b) at the commencement of this plan dividing the TAC for each specified species into units of fishing capacity and allocating those units to individual operators in the fishery; and (c) exercising the powers in Part III of the Act so as to prevent a person from using a boat, other than in the course of exempt fishing, to take in a season a liveweight of specified species exceeding the quota in relation to the units in respect of that species which are assigned to the boat." The TAC for each specified species of fish at the commencement of the Plan was stated in Schedule 3 of the Plan (para.7.1). The fishery is divided into units for each specified species (para.8.1). The total number of units of a specified jie species available for allocation shall be divided into a number of units available for allocation to those persons eligible for a determination under para.11 (para. 8.3). The number of units of a specified species available for assignment to a person in respect of a relevant boat shall be determined on the basis of (a) verified catch; and (b) boat units; and (c) a weighting factor given to (a) and (b) (para.11.1). The Manager shall determine, in respect of a relevant boat, the number of units of a specified species available for assignment equal to the result of two formulas (paras.11.2, 11.3). (It should be noted at this point that in 1992, a Judge of this Court, O'Loughlin J., held that para.11 was without a rational foundation and thus unreasonable and void (see Austral Fisheries Pty. Ltd. v Minister for Primary Industries and Energy (1992) 37 FCR 463). In 1993, an appeal from this decision was dismissed by a Full Court (see Minister for Primary Industries and Energy v Austral Fisheries Pty. Ltd. (1993) 40 FCR 381.)) Pursuant to para.11.8, the Manager must notify a person of, inter alia, the TAC, the number of units of each species available to that person for assignment and the quota in relation to those units. Following the receipt of such notification, the person may apply to the Manager for assignment of a number of units of that species, not greater than the number of units determined under para.11, to a nominated boat (para.14.1). Where an application under para.14.1 is received and the levy payable has been received, the Manager must (a) cause to be issued in respect of the nominated boat an SEF licence (i.e. a licence granted in respect of a boat under s.9(2)(b) of the Act); (b) assign to the boat the applicable number of units; and (c) issue a revised certificate of unit holdings (para.14.2). A person must not use a boat in the fishery to take a specified species, other than in the course of exempt fishing, except where units have been assigned to the boat and the boat has not been used to take a total liveweight of that species exceeding the quota in relation to that boat (para.14.3). (b) The purported making of Fisheries Notice No. SEF 1 on 9 December 1991 On 9 December 1991, the Minister, for the purposes of s.8 of the Act, purported to make a notice (Fisheries Notice No. SEF 1 (No. 42 of 1991)) ("the Notice") to the following effect: (1) Pursuant to s.8(1)(c) of the Act, the taking of fish (with an immaterial exception) by the method known as trawling from the area of proclaimed waters (being the South East Fishery) was prohibited with effect from 1 January 1992 (para.4). (2) Pursuant to s.8(4D) of the Act, the activities prohibited by para.4 of the Notice in the subject area are activities in respect of which an endorsement may be made under s.9(4) of the Act (para.5). (However, it will be recalled that s.9(4) permitted an endorsement only in the case of a licence under 8.9(2)(a), so that an endorsement was not possible where, as here, there is a specified managed fishery; rather, a licence under s.9(2)(b) was required.) (3) Pursuant to s.8(2)(d) of the Act, a boat which - (a) has assigned to it units under the Plan in respect of a species; and (b) has not been used to take a total weight of that species exceeding the quota in relation to those units; is exempted from the prohibition in para.4 in respect of that species (para.6). The Notice was published in the Gazette on 18 December 1991 and, pursuant to s.8(4A) of the Act, its prohibition of trawling came into force on that day. (c) The purported determination on 23 December 1991, of quota available for assignment and its notification On 23 December 1991, the Manager of the South East Fishery purported to give to the respondent Francesco Pirrello 10. (Jnr.) (to take one example) notification of unit holdings under the Plan. The instrument stated that, pursuant to para.11.8 of the Plan, Mr. Pirrello was notified that, on 23 December 1991, the determination then described in respect of several species were entered into the register in respect of quota units which he held. (d) Purported application for the assignment of quota made on 7 January 1992 On 7 January 1992, Mr. Pirrello applied for the assignment of the quota allocated. (e) The purported issue of the licence on 30 January 1992 By an instrument dated 30 January 1992, a delegate of the Secretary purportedly acting "pursuant to the Act", issued to Mr. Pirrello "a Commonwealth Fishing Boat Licence, in respect of the boat described in Schedule 1 subject to any limitations contained herein and any prohibitions in force from time to time". The licence was to commence on 30 January 1992 and expire on 31 December of that year. The licence purported to authorise the use of the boat "in proclaimed waters subject to the conditions specified in Schedule 3". 11. Schedule 2 to the licence refers to the "AREA OF PROCLAIMED WATERS/MANAGED FISHERY" as the area of the South East fishery described in the Plan. follows: Schedule 3 states the conditions of the licence as "This licence only permits the taking, by the method known as trawling, of a specified species, as defined in the South East Fishery (Individual Transferable Quota) Management Plan 1991, by the boat described in Schedule 1 of the licence when it has: assigned to it units under the South East Fishery (Individual Transferable Quota) Management Plan 1991 in respect of that species not been used to take, during the year in the area of proclaimed waters specified in Schedule 1 of the Fisheries Notice SEF1, a total weight of that species exceeding the quota in relation to those units This licence only permits the taking, by the method known as trawling, of any species other than specified species, as defined in the South East Fishery (Individual Transferable Quota) Management Plan 1991, with the exception of orange roughy, from areas other than those specified in Schedule 4 of that Plan in relation to orange roughy This licence only permits the boat described in Schedule 1 of the licence to land fish carried on board only in a port specified in the attachment to this licence" THE DECISION IN AUSTRAL FISHERIES IN JULY 1992 THAT PARA.11 OF THE PLAN WAS VOID As has been mentioned, in Austral Fisheries (supra), O'Loughlin J. held that para.11 of the Plan was void. In essence, the Plan his Honour's reasoning was that the incorporation in of a formula for the allocation of catch quotas was 12. based on a statistical fallacy which operated to produce an absurd result that was so unreasonable as to result in the invalidity of para.11. An appeal from that decision, as has been said, subsequently was dismissed. THE PROSECUTIONS For immediate purposes, it will suffice to refer, by way of illustration, to the charges in the informations and summonses in the cases of Mr. Pirrello and Mr. Wicks. They are dated 2 July 1993. Three kinds of offences against the Act are alleged as follows: (1) Zhe contraventions of s.13(1)(q) alleged It is alleged, for example, that on or about 13 July 1992, Mr. Pirrello contravened s.13(1)(g) - ",.. in that being the holder of a licence under the Act in respect of a boat he did permit a person acting on his behalf, namely Gavin Wicks, to fail to comply with a condition of the licence, in that Gavin Wicks used the boat to which the licence related to take, by the method known as trawling, a specified species ... (... gemfish), from the area of proclaimed waters specified in ... Fisheries Notice No. SEF 1... at a time when the boat had no un-used gemfish quota." The following particulars of the charge were given: PARTICULARS (1) The defendant was the holder of Commonwealth Fishing Boat Licence number 402671 in respect 13. of the boat 'Baroness'. (2) 4500 units of quota were purportedly assigned to the boat 'Baroness' on about 29 July 1992. (3) Prior to 13 July 1992 the boat 'Baroness' had been used to take a total weight of gemfish exceeding the quota purportedly assigned to it. (4) On about 13 July 1992 the boat 'Baroness' was used to take approximately 27,000 kilograms (units) of gemfish." (2) The contraventions of s.13(1)(h) alleged In this regard, it is alleged, for instance, that on 13 July 1992, Mr. Wicks contravened s.13(1)(h) of the Act in that being a person acting on behalf of the holder of a licence under the Act in respect of a boat, he failed to comply with the condition of the licence described in the contravention of s.13(1)(g) alleged. Similar particulars were also given. (3) The contraventions of s.13(1)(i) alleged It is alleged, for example, that on 13 July 1992, Mr. Wicks did, in an area of proclaimed waters, an act prohibited by a notice in force under s.8 of the Act in that "he took approximately 27,000 kilograms (units) of fish ... (... gemfish), by the method known as trawling from the area of proclaimed waters specified in ... Fisheries Notice No. SEF 1" contrary to para.4 of that notice. THE REASONING AT FIRST INSTANCE The reasoning which led Einfeld J. to decide to 14. grant the declaratory relief described was, in essence, as follows: (1) Austral held para.11 of the Plan to be invalid, and although Austral did not consider the validity of para.14, since para.14 was "inextricably interconnected" with para.11, and it could not be severed, it followed that para.14 was also invalid. (2) It followed from the invalidity of para.14 that the licence conditions were also invalid because it would be "... absurd ... to require fishing operators to obey quotas determined under an invalid method of allocation." (3) The exemption in para.6 of the Notice, being expressed to be referable to paras. 11 and 14 of the Plan, was likewise invalid. (4) Because the conditions attached to the licence were void, it must follow that the licences themselves were invalid: "AS a matter of severability, an unconditional licence would be a very different creature from what was purported to be issued and quite contrary to the objects of the plan and the Act." (5) Moreover, para.4 of the Notice could not be severed from para.6 of the Notice so that para.4 was also void. (6) Since administrative action which is beyond power is 15. treated as void ab initio, para.11 of the Plan and the other interdependent provisions must be regarded as always invalid and the declaratory relief sought should be granted. CONCLUSIONS ON THE APPEAL Although civil courts are usually reluctant to intervene collaterally with the initiation of criminal proceedings (see Jarrett v Seymour (1993) 46 FCR 557 at 565- 8), an exception to the rule exists where, as here, a declaration is sought that the information discloses no offence known to the law (see Sankey v Whitlam (1978) 142 CLR 1 at 24-5). At all events, no challenge is made to his Honour's orders on this account. The first matter for determination then is the effect on the operation of the Plan of the holding in Austral that para.11 was void. In my opinion, as matter of form as well as substance, para.14, to take one other important provision of the Plan, could not operate in the absence of para.1l. For one thing, as a matter of form, para.14.1 provides that a person may apply for the assignment of units "following the receipt of a notification under subparagraph 11.8". Para.14.1 further provides that the application is for "not greater than the number of units determined under paragraph 11... ." Asa 16. matter of substance, it is plain that a central feature of the Plan is the capacity of persons to apply for the assignment of units and that, without that capacity, the operation of the Plan was not feasible. It is a presumed legislative intention that the required acts are performed in a lawful manner; in other words, that a construction in bonam partem should be adopted. Francis Bennion, Statutory Interpretation, (1984), says (at 298): "In pursuance of the principle that law should serve the public interest, the courts have evolved the technique of construction in bonam partem. If a statutory benefit is given on a specified condition being satisfied, it is presumed that Parliament intended the benefit to operate only where the required act is performed in a Jawful manner. Thus where an Act gave efficacy to a fine levied on land, it was held to refer only to a fine Jlawfully levied." Adopting that approach here, regard should be had only to the lawful activities of those concerned. It follows that compliance with para.14 by a person proposing to fish in the South East Fishery was rendered impossible by reason of the failure of the Executive to propound a statistically valid, and thus lawful, formula for the purposes of para.11. In his discussion of construction in bona partem, Bennion went on (at 298) to note that the rule of interpretation is related to three specific well known legal principles. Two of them are, in my view, relevant here. The 17. first is that a person should not benefit from his own wrong. Then there is the principle that if a person has to prove an unlawful act in order to claim a statutory benefit, the maxim will preclude the person from succeeding. In my opinion, the present matter should be viewed in the light of these principles, each of which is pertinent in the present extraordinary circumstances. That is to say, as a matter of statutory interpretation, in the special situation where a Government department has been unable to discharge properly its statutory function to bring forward a valid plan of management, it should not lie in the mouth of the Government department to complain that a citizen has failed to comply with the apparent (but in truth unlawful and ineffective) requirements of the Plan. The case is a fortiori where the Executive's complaint takes the form of a criminal prosecution. It is true that the prosecutions are for offences against the Act rather than against the Plan itself but, in my view, nothing ultimately turns on this. As a matter of substance as well as form, the offences should be regarded as offences against a single legislative scheme comprising the Act itself (in particular the provisions of Parts II, III and V to which specific reference has been made), the statutory instrument in the form of the Plan, the statutory Notice and the licenses with their attached conditions. It is not only 18. legitimate but in my opinion appropriate for present purposes to look beyond the Act to the other instruments mentioned. As Mason J. said in Brayson Motors Proprietary Limited (in Liq.) v Federal Commissioner of Taxation (1984) 156 CLR 651 at 652: "One looks at regulations, not to construe an overall scheme or to throw light on ambiguity in a statutory provision, but to ascertain what the scheme is." This conclusion is reinforced in the present context by several considerations. In particular, it is clear from the language of the statute that management of the present resource is a prime objective of the legislation (see 5s.5B) and that plans of management, as a primary means of achieving that objective, are designed to govern in this area (see.7B(8)). Likewise, the Notice is part of this legislative scheme. By the terms of para.6 of the Notice, conditional exemption from the prohibition on fishing in para.4 is granted, one of the conditions being that the boat has assigned to it units under the Plan. Clearly, the Notice was intended to be read as a whole; in particular, the prohibition in para.4 and the exemption in para.6 were intended to be read, and must be read, in conjunction. By virtue of the reference to the Plan in para.6(a), it follows that the prohibition on fishing is subject to the relevant provisions of the Plan, specifically paras.11 and 14 dealing with the assignment of units. In a similar fashion, the conditions imposed upon the grant of the licences are also 19. picked up as part of the relevant legislative scheme. It will be recalled that the conditions in Schedule 3 of the licence specifically mentioned the assignment of units. On behalf of the appellants, it is submitted that the circumstance that the Plan, the Notice and the licences are sourced in different provisions of the Act (ss.7B, 8 and 9 respectively) indicates that they operate independently with the consequence, the argument runs, that the invalidity of the Plan does not result in the invalidity of the Notice and the licences. I cannot accept this analysis. On the contrary, it is clear, I think, that there was intended to be put in place a single legislative scheme in the form of the Plan. The mechanics of putting this regime in place necessarily included the making of a Notice containing a prohibition conditional upon the absence of an assignment of units and the grant of a licence upon ae similar condition. Each of the four instruments previously noted (the Act, the Plan, the Notice and the licence) plainly were designed to be interdependent in their operation. It follows, in my view, that once it be accepted that the Plan was, in substantial respects, not valid, the result must be that the Notice and the licences, as interdependent instruments, are likewise invalid. It may be accepted that, in some circumstances, it may be possible to 20. sever an invalid condition purportedly attached to the grant of a licence (see Kent County Council v Kingsway Investments (Kent) Ltd. [1971] AC 72 at 90), but this is not possible where, as here, the condition attempts to address a fundamental aspect of the legislative scheme. It is then said on behalf of the appellants that for present purposes it is sufficient to consider the factual position, rather than the strictly legal situation which was not actually known until the Court declared void part of the Plan. In other words, the argument runs, for the purposes of the prosecution, one should have regard only to the facts that happened to occur, whatever the strictly legal situation; so that, for instance, one looks at the licence that actually was issued without inquiring whether it or its conditions were lawfully made. Again, I cannot accept the argument. On the contrary, in my view, a construction in bonam partem should be adopted so that, as a matter of statutory interpretation, the legislative scheme should be construed as referring only to lawful facts. Even if I were wrong in this approach, the best position from the prosecution's standpoint would be that the meaning of the legislation is equivocal or ambiguous in that it is not clear whether it applies to de facto or to de jure situations. As Gibbs J. has observed, in the case of a penal 21. provision, "the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences" (Beckwith v The Queen (1976) 135 CLR 569 at 576; see also Deming No. 456 Proprietary Limited v Brisbane Unit Development Corporation Proprietary Limited (1984) 155 CLR 129 at 145; Chew v The Queen (1992) 173 CLR 626 at 632). In my opinion, Einfeld J. correctly held that the Plan, the Notices and the licences were, 1n material respects, void and that prosecutions for alleged contraventions of what was, in substance, a single legislative regime could not, in law, be maintained. For the sake of completeness, it should be noted that although I have considered the matter from the standpoint of statutory interpretation, it also may have been open to the respondents to contend that, in any event, a permanent stay of the prosecution should have been ordered on the discretionary ground that there was an abuse of process (see, generally, as to the right not to be tried unfairly, Jago v The District Court _ of New South Wales (1989) 168 CLR 23 at 56-7). This is so especially given the circumstance that it was sought to continue to prosecute even after the dismissal of the appeal in Austral. I would dismiss the appeals. 22. ORDERS I have had the benefit of reading the reasons of Davies and Gummow JJ. I agree with the orders proposed. I certify that this and the preceding twenty-one (21) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Beaumont. Associate bE Diflyee Dated: 23 December 1994 fe Ps UP ee He fe -7 "eft IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION ) ) ) No. NG616 of 1994 On appeal from a Judge of the Federal Court of Australia. BETWEEN: IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION MARK ANTHONY COLEMAN First Appellant DIRECTOR OF PUBLIC PROSECUTIONS Second Appellant KEVIN JAMES GRAY ) ) ) Respondent No. NG617 of 1994 On appeal from a Judge of the Federal Court of Australia. BETWEEN: AND: IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION MARK ANTHONY COLEMAN Appellant FRANCESCO PIRRELLO (JNR) First Respondent GAVIN WICKS Second Respondent ) ) No. NG618 of 1994 ) On appeal from a Judge of the Federal Court of Australia. BETWEEN: AND: MARK ANTHONY COLEMAN Appellant ANTONIO LA _MACCHIA First Respondent RUTH LA MACCHIA Second Respondent ANDREW LA MACCHIA Third Respondent FRANCESCO LA MACCHIA Fourth Respondent BEFORE: PLACE : DATE: ELIZABETH LA MACCHIA Fifth Respondent LUCIA MUSUMECT Sixth Respondent VINCENZO_MUSUMEC Seventh Respondent ROCCO MUSUMECI Eighth Respondent ANTONIO MUSUMECI Ninth Respondent ROCCO _MUSUMECI Tenth Respondent VINCENZO_ITANNI Eleventh Respondent ANTONIO TANNI Twelfth Respondent VINCENZO_ BASILE Thirteenth Respondent TONY BATTAGLIOLO Fourteenth Respondent SANTO BATTAGLIOLO Fifteenth Respondent GUISEPPE PUGLISI Sixteenth Respondent CHARISSA PTY LIMITED Seventeenth Respondent PAUL BAGNATO Eighteenth Respondent RICHARD BAGNATO Nineteenth Respondent ROSS _BAGNATO Twentieth Respondent PAUL BAGNATO Twenty first Respondent GUISEPPE BAGNATO Twenty second Respondent VINCE BAGNATO Twenty third Respondent DAVIES, BEAUMONT, GUMMOW JJ. SYDNEY. 23 DECEMBER 1994. REASONS FOR JUDGMENT GUMMOW J.: The Nature of the Case Pursuant to an order of the Court made by consent on 4 November 1994, these appeals have been heard together. The appeals are from declarations and orders made on 5 September 1994 by a Judge of the Court (Einfeld J.). These gave effect to reasons for judgment delivered by his Honour on 31 May 1994. The reasons for judgment dealt with three proceedings, Nos. NG128, 129 and 130 of 1994. The declarations and orders made in these proceedings are respectively the subject of the appeals Nos. NG616, 617 and 618 of 1994. In the last appeal, there are 23 respondents. The eighth and tenth, and likewise the eighteenth and twenty-first, have the same name, but are not the one individual. The second appellant in appeal No. NG616 is the Director of Public Prosecutions, holding office pursuant to the Director of Public Prosecutions Act 1983. The first appellant in each matter is a District Fisheries officer who is the informant in respect of informations laid and summonses issued under the Justices Act 1902 (N.S.W.) ("the Justices Act") on 2 July, 5 July, 13 August 1993 and 2 September 1993. Each summons is in respect of offences under sub-s. 13 (1) of the Fisheries Act 1952 ("the Act") and was issued against a respondent in one of the present appeals. In each case, the - 4 - summons required the respondent to appear before a magistrate in a Local Court of the State of New South Wales. The relief granted by the primary Judge included declarations that the charges were "not maintainable", as a result of para. 4 of what is described later herein as the notice SEF 1, and of certain conditions attaching to fishing licences, being void. The penalties for contraventions of sub-s. 13 (1) of the Act are set out in the balance of the section, commencing with sub-s. 13 (2). The penalties provide for fines in respect of natural persons and bodies corporate. The Minister may cancel a licence granted in respect of a boat if the holder is convicted of an offence against the Act (sub-s. 9A (3A)). In some circumstances, s. 13C operates to authorise the court to order the forfeiture of the boat and equipment in relation to which the offence was committed. Section 15B of the Crimes Act 1914 ("the Crimes Act") prescribes the time for the commencement of prosecutions of individuals and bodies corporate for offences against laws of the Commonwealth. In the present case, the offences in question allegedly were committed within one year of the commencement of the prosecutions, in compliance with s. 15B. With an exception not presently relevant, the Act had been repealed before the summonses were issued. The repeal, -~ 5 - bys. 3 of the Fisheries Legislation Consequential Provisions) Act 1991, was effective on 3 February 1992. However, the repeal has had a limited effect. This is because 6. 6 of the 1991 statute continues in force licences granted under s. 9 of the Act until their expiry, surrender or cancellation as if the Act had not been repealed. Further, the Act and instruments made or determined thereunder, including plans of management and notices which were in force immediately before 3 February 1992, continue to apply in relation to a licence and the holder of a licence to the extent to which they are capable of so applying. The transitional provisions have been treated as having the effect of retaining in force after 3 February 1992 and at the dates later in 1992 of the commission of the alleged offences, the provisions of the Act dealing with the requirements for licences and the observance of notices, coupled with enforcement thereof by the offences specified in sub-s. 13 (1) of the Act. The Regulatory Scheme The alleged offences were those in paras. (b), (f), (g), (h) and (i) of sub-s. 13 (1). The text of sub-s. 13 (1), so far as relevant, is as follows: "13> (1) <A person shall not - (a) «ee (b) in an area of proclaimed waters - (9) (h) (i) It will be apparent that the offences turn upon what is authorised by, or a condition of, which is prohibited by a notice in force under s. Act. This reflects the structure of the regulatory scheme -6- (i) use a boat for taking fish; (ii) ... (iii) ...7 or (iv) ... unless: (v) the person is, or is acting on behalf of, the holder of a licence under subsection 9 (2) authorising the use of the boat in that area for taking fish; or (vi) ... eee being the holder of a licence under this Act, contravene or fail to comply with a condition of the licence; being the holder of a licence under this Act in respect of a boat, cause or permit a person acting on his behalf to contravene or fail to comply with a condition of the licence; being a person acting on behalf of the holder of a licence under this Act in respect of a boat, contravene or fail to comply with a condition of the licence; or do an act prohibited by a notice for the time being in force under section 8." established by the legislation. a licence and upon that 8 of the -7J- There are two species of licence. First, the Minister or Secretary may grant to a person a licence in respect of a boat authorising the use thereof by that person, or a person acting on behalf of that person, for taking fish in proclaimed waters (para. 9 (2) (a)) and the licence is subject to such conditions as are specified therein (para. 9 (5) (a) (i)). Secondly, the Minister or the Secretary may grant to a person a licence in respect of a boat authorising the use of the boat by that person, or a person acting on that person's behalf, for a "specified managed fishery" (para. 9 (2) (b)) and that licence is subject to such conditions as are specified in the plan of management for the managed fishery in relation to which the licence has been granted (para. 9 (5) (a) (iii)). A "managed fishery" means a class of activities by way of fishing which is identified in a plan of management as a fishery to which the plan applies (sub-s. 4 (1)). A licence granted under s. 9 comes into force on the day specified for that purpose in the licence or if none be specified, on the day on which it is granted (para. 9 (5) (b)). The licence remains in force, in general, for 12 months (para. 9 (5) (c)), and may be renewed upon application (sub-s. 9 (6B)). The licence system operates in conjunction with the Fisheries Levy Act 1984 ("the Levy Act"). The Act itself provides that where a levy is payable under the Levy Act the amount thereof must be tendered before a licence under s. 9 is - 8 - granted, endorsed, renewed or varied: sub-ss. 9 (8AA), (8AB), (SABA), (8AD). In this way, the levy has the character of a fee for the privilege conferred by the licence. I turn now to the that branch of the regulatory system which is rooted in s. 8 of the Act. This provides that by notice published in the Gazette, the Minister may prohibit the taking of fish by a method, equipment or boat of a kind specified in the notice (para. 8 (1) (c))- However, the notice may also provide for exemptions from the prohibitions contained in the notice (para. 8 (2) (d)). Finally, the notice may provide that the activities to which the prohibition contained in the notice relates are activities in respect of which an endorsement may be made under sub-s. 9 (4) (sub-s. 8 (4D)). Section 9 (4) authorises the Minister or the Secretary to endorse a licence granted under para. 9 (2) (a) in respect of a boat so as to extend the licence to authorise the use of the boat for activities by way of fishing which are prohibited by a prohibition contained in a notice in force under sub-s. 8 (1). It will be noted that sub-s. 9 (4) is directed only to endorsement of licences granted under para. 9 (2) (a) rather than para. 9 (2) (b). I will return to the significance of this for the present case later in these reasons. The observance of prohibitions contained in notices issued under s. 8 and of conditions specified in licences = 9 - issued under s. 9 is enforced by the medium of the offences created by s. 13. It should also be noted that the Minister or the Secretary may suspend a licence if there are reasonable grounds to believe that there has been contravention of or failure to comply with licence conditions, or that there has been contravention of a prohibition in a s. 8 notice (sub-s. 9A (1)). The powers conferred upon the Minister, by instrument in writing to determine plans of management (s. 7B), and by notice to prohibit certain activities (sub-s. 8 (1)), are legislative rather than administrative in character. The plans and notices operate not as policy statements or guidelines, but with the effect of laws of general application: Secretary, Department of Primary Industries and Energy v Collins (1992) 34 F.C.R. 340 at 345-346, Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 F.C.R. 284 at 288-290, Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 F.C.R. 381 at 398. The notice under s. 8 with which this case is concerned is Fisheries Notice No. 42 of 1991, published in the Gazette on 18 December 1991. The notice is headed "South East Fishery Prohibition of Trawling" and is identified as "SEF 1". It is dated 9 December 1991. In Schedule 1, there is identified the area of the South East Fishery. Paragraph 2 revoked with effect from 1 January 1992 notices SET 1, SET 2 and SET 3, ~ 10 - dated 20 February 1991. I set out the text of the other crucial provisions, paras. 4, 5 and 6, later in these reasons. It is sufficient for immediate purposes to note that the prohibition imposed by para. 4 is subject to an exemption in para. 6 in respect of boats operating, to put it broadly, under the South East Fishery (Individual Transferable Quota) Management Plan 1991 ("the Plan"). Further, the licences under s. 9 with which this case is concerned were expressed to be subject to conditions again referrable to compliance with the Plan. It is in this way, by the conferring of an exemption to the prohibition imposed by the notice SEF 1, and the subjection of the licences to conditions, that the terms of the Plan are drawn into the regulatory scheme which in turn is backed by the offences created by s. 13. The Plan of Management It is therefore necessary to turn to the provisions of the Act under which the Plan was made, the terms of the Plan and its litigious history. As to the last, in Austral Fisheries Pty Ltd v Minister for Primary Industries & Energy (1992) 37 F.C.R. 463, the Court declared that para. 11 of the Plan was void. An appeal was dismissed on 19 February 1993: Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 F.C.R. 381. This was more than four months before the laying of the informations and issue of the summonses with which this appeal is concerned. - il - The declaration operated not prospectively, but "retroactively" in the sense explained by Lord Diplock in F. Hoffmann-La Roche and Co. A.G. v Secretary of State for Trade and Industry [1975] A.C. 295 at 365, and adverted to by Hutley J.A. in his paper "The Cult of Nullification In English Law" (1978) 52 A.L.J. 8 at 11. The present is not a case where there had been a conviction, or even a proceeding commenced, before the decision of the Full Court; cf. Posner v Collector for Inter~State Destitute Persons (Victoria) (1946) 74 C.L.R. 461 at 483. In the present litigation, the primary Judge also held, though the finding was not implemented by any specific declaration, that para. 14 of the Plan also was void because it was ""inseverable" from para. 11. It followed, his Honour held, that para. 4 of the SEF 1 and the principal condition attaching to the licences were void. The result was that the charges laid against the present respondents were "not maintainable". This was because the charges alleged contraventions of para. 4 of SEF i and of the principal condition attaching to the licences. (There was one instance, concerning the twenty-second respondent in what is now appeal NG618, where this was not the case, but this may be put to one side at this stage.) To appreciate the submissions on the appeal, it is necessary first to look more closely at the provisions of the - 12 - legislation pursuant to which the Plan was made, then to the text of the Plan. Section 5B of the Act is an important provision, indicating the objectives to be pursued by the Minister in his administration of the statute. It states: "SB In the administration of this Act, the Minister shall have regard to the objectives of - (a) ensuring, through proper conservation and management measures, that the living resources of the Australian fishing zone are not endangered by over-exploitation; and (b) achieving the optimum utilisation of the living resources of the Australian fishing zone, but shall ensure, so far as practicable, that measures adopted in pursuit of those objectives shall not be inconsistent with the preservation, conservation and protection of all species of whales." Sub-sections 7B (1), (2) and (3) of the Act state: "7B (1) The Minister may, by instrument in writing, determine a plan of management for a fishery in proclaimed waters. (2) A plan of management for a fishery shall set out —- (a) the objective of the plan of Management; and (b) measures by which the objective is to be attained, (3) Without limiting the generality of sub- section (2), the Minister may, in a plan of management for a fishery - - 13 - (a) determine the manner in which the fishing capacity of the fishery is to be measured; and (b) determine the fishing capacity, measured in that manner, permitted for the fishery." The "proclaimed waters" referred to in sub-s. 7B (1) are those marine or tidal waters declared as such under s. 7. Sub- section 7B (5) lists a number of matters for and in relation to which a plan of management may make provision if the plan determines the fishing capacity permitted for the relevant fishery. These include the division of the fishing capacity into units and the allocation of those units, the determination of the number of units to be held in relation to boats, and the recording of dealings in those units. Whilst a plan of management is in force for a fishery, the Minister and the Secretary shall perform their functions and exercise their powers under the Act in relation to the fishery "in accordance with the plan of management, and not otherwise" (sub-s. 7B (8)). It also should be noted, as appears from the terms of sub-s. 7B (2), that in order to answer the statutory description of a "plan of management", and thus to be the product of a valid exercise of his statutory power, the instrument determined in writing by the Minister under sub-s. 7B (1) is required to show ("shall set out") both the objective of the plan of management and the measures by which the objective is to be obtained. - 14- The Plan was determined by the Minister, who was expressed as acting pursuant to sub-s. 7B (1), on 9 December 1991. This is the same date as that borne by the Notice. Paragraphs 5 and 6 of the Plan are designed to meet the requirements of sub-s. 7B (2). They are headed respectively "Objectives" and "Measures for attaining objectives" and are in the following terms: "5, For the purposes of subsection 7B (2) of the Act, the objectives of this plan are - (a) to achieve a level of parental biomass for each stock in the fishery consistent with optimum sustainable yields for that stock having regard to among other' things scientific assessments of the status of that stock; and (b) to promote optimum utilisation of the resource in the fishery; 6. The principal measures for attaining the objectives specified in paragraph 5 are - (a) determining the TAC [the total allowable catch] for each specified species that may be taken from the fishery; (b) at the commencement of this plan dividing the TAC for each specified species into units of fishing capacity and allocating those units to individual operators in the fishery; and (c) exercising the powers in Part III of the Act so as to prevent a person from using a boat, other than in the course of exempt fishing, to take in a season a liveweight of specified species exceeding the quota in relation to the units in respect of that species which are assigned to the boat." - 15 - Part III of the Act comprises ss. 7 - 10A. Severance of the Plan Section 46 of the Acts Interpretation Act 1901 ("the Interpretation Act") like s. 15A thereof deals with severance in federal law. Section 46 applies to an instrument identified as a plan of management determined by the Minister under the Act: Minister for Primary Industry and Energy v Davey (1993) 47 F.C.R. 151 at 166. Paragraph 46 (1) (b) of the Interpretation Act states: "46 (1) Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then: (a) «ae. (b) any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, granted or issued, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power." This provision also applies to notices published by the Minister under s. 8 of the Act, such as SEF l. The effect of a severance provision such as this was described as follows by Dixon J. in Bank of N.S.W. v The Commonwealth (1948) 76 C.L.R. 1 at 371: nae - 16 - "[T]he courts have insisted that a provision +». must share the fate of so much of the statute, regulation or order as is found to be invalid, once it appears that the rejection of the invalid part would mean that the otherwise unobjectionable provision would operate differently upon the persons, matters or things falling under it or in some other way would produce a different result. This consideration supplies a strong logical ground for holding provisions to be inseverable, whether' the prima-facie presumption be in favour or against severability. It is important where there is no statutory clause like s. 15A and it is important in using s. 15A. For the inference in such a case is strong that provisions so associated form an entire law and that no legislative intention existed that anything less should operate as a law. Further, where severance would produce a result upon the persons and matters affected different from that which the entire enactment would have produced upon them, had it been valid, it might be said with justice that unless the legislature had specifically assented to that result, contingently on the failure of its primary intent, it could not amount to a law." See also the further application of this reasoning in Strickland v Rocla Concrete Pipes Pty Limited (1971) 124 C.L.R. 468 at 494, 503-504, 520-527. We were referred to the recent decision of the House of Lords in Director of Public Prosecutions v Hutchinson [1990] 2 A.C. 783. But as their Lordships noted, with reference to ss. 15A and 46 of the Australian statute (at 808-809, 815), they were dealing with the common law in a jurisdiction where there was no equivalent of ss. 15A and 46 to mitigate difficulties with common law doctrine. The reasoning of Dixon J. in that passage from the Bank Case must apply with particular force where, as here, the - 17 - delegated legislation in question operates as part of a regulatory scheme with penal provisions which operate by reference to, and which assume the efficacy of, that delegated legislation. In considering the effect upon the Plan as a whole of the declaration that para. 11 is void, it is important to bear in mind also two other provisions of the Act. The first is sub-s. 7B (8) which, as I have indicated, obliges the Minister and the Secretary to perform their functions and exercise their powers under the Act in accordance with the Plan "and not otherwise". The second is sub-s. 7B (2) which requires that the Plan "set out" the objective of the Plan and the measures by which the objective is to be attained. It is appropriate now to seek to apply the reasoning of Dixon J. to the present case. Once it appears that by reason of the rejection of para. 11 as void the balance of the Plan would operate differently upon the persons, matters or things falling under it, or in some other way would produce a different result, there is strong logical ground for holding inseverable the balance of the provisions of the Plan. Furthermore, if the consequence of the excision of para. 11 is that the Plan no longer sets out measures by which the objective of the Plan is to be obtained, the instrument does not satisfy the statutory requirement of s. 7B (2). That which remains would not be a plan of management in the statutory sense. - 18 - Sub-paragraph 6 (b) of the Plan has been set out, with para. 5. It identifies as a principal measure for attaining the objectives specified in para. 5 the dividing of the total allowable catch for each specified species into units of fishing capacity and the allocation of those units to individual operators in the fishery. Paragraph 11 specifies the means by which there shall be determined the number of units of a specified species available for assignment to a person in respect of a relevant boat. Without that provision, the Plan no longer sets out the measure for attaining the objective specified in para. 5 of the Plan. In particular, there is no provision for the division of the total allowable catch for each specified species into units of fishing capacity which may then be allocated to individual operators in respect of a relevant boat. For example, this means, as the primary Judge held, that the provisions of Part 3 of the Plan, dealing with assignment of units, cannot operate or produce a different result. So much is apparent from a perusal of the first provision in Part 3, sub-para. 14.1. This reads: "14.1 Following the receipt of a notification under. subparagraph 11.8, a person may apply to the Manager in a form approved by the Manager for assignment of a number of units of a specified species, not greater than the number of units determined under aragraph 11, to a boat nominated in the application." - 19 - [Emphasis supplied] The result is that this cannot operate, there being no para. 11 which is operative. A further example is provided by sub- para. 14.3. This states: "14.3 A person must not use a boat in the fishery to take a specified species during a season, other than in the course of exempt fishing [under para. 23], except where units in respect of that species have been assigned to the boat and the boat has not been used during the season to take a total liveweight of that specifies exceeding the quota in relation to that boat." [Emphasis supplied] If the reference to assigned units were removed or read out of the text, sub-para. 14.3 would produce aie significantly different result. This is because if there were no basis under para. 11 for the determination of the number of units, so that units could not be assigned to a boat, the exception for which sub-para. 14.3 provides could not operate. This would leave the absolute prohibition in force, save for "exempt fishing". The consequence of the rejection of the void para. 11 is that otherwise unobjectionable but crucial provisions to the Plan, for example para. 14, operate differently, or indeed cannot operate, upon the persons, matters or things falling within them. That indicates that the balance of the Plan cannot be saved by severance of para. 11. - 20 - Accordingly, I conclude that the instrument in writing dated 9 December 1991 by which the Minister purported to determine the Plan, did not comply with the requirements of s. 7B. The instrument was not a valid exercise by the Minister of the power given by s. 7B of the Act. The Notice SEF 1 It is appropriate now to turn to the notice SEF 1, also dated 9 December 1991, and to set out the text of paras. 4, 5 and 6 thereof. The questions which now arise concern the extent to which SEF 1 is effective having regard to its operation by reference to the Plan. Paragraphs 4, 5 and 6 of SEF 1 are as follows: "PROHIBITION OF TRAWLING 4. Pursuant to paragraph 8 (1) (c) of the Act, the taking of fish (other than prawns of the family Penaeidae) by the method known as trawling from the area of proclaimed waters specified in Schedule 1 of this Notice is prohibited with effect from 1 January 1992. ENDORSEMENT OF LICENCES 5. Pursuant to subsection 8 (4D) of the Act, the activities prohibited by paragraph 4 of this Notice in the area of proclaimed waters specified in schedule 1 are activities in respect of which an endorsement may be made under subsection 9 (4) of the Act. EXEMPTIONS 6. Pursuant to paragraph 8 (2) (d) of the Act, a boat which: (a) has assigned to it units under the South East Fishery (Individual Transferable - 21 - Quota) Management Plan 1991 in respect of a species; and (b) has not been used to take, during that year in the area of proclaimed waters specified in schedule 1, a total weight of that species exceeding the quota iin relation to those units, is exempted from the prohibition in paragraph 4 in respect of that species." Counsel for the appellants made two submissions. First, he pointed out that (i) an activity might contravene' the prohibition in para. 4 without falling within the exemption in para. 6, and (ii) an activity might fall outside the exemption in para. 6 but be an activity in respect of which a licence endorsement had been made as described in para. 5. It was then submitted to follow that the continued efficacy of para. 4 need not depend upon, and in truth did not depend upon, the valid operation of the exemption in para. 6. However, in my view, the acceptance of the first submission does not lead to the second. It will be recalled that the Act makes it an offence for a person to do an act prohibited by a notice for the time being in force under s. 8. The notice SEF 1 is expressed so as to answer this description, and para. 4 thereof prohibits, with effect from 1 January 1992, an act of a certain description. The severance of para. 6 would produce a result upon the persons affected different from that which SEF 1 in its entirety would produce upon them if wholly valid. That is obvious. Furthermore, that effect involves the commission or otherwise of an - 22 - offence. The question then, to adapt the reasoning of Dixon J. in the Bank Case, supra at 371, is whether the Minister is to be taken as having exercised his powers under s. 8 so as to render the citizen subject to the criminal law by reason of the existence of the notice in a form significantly different from that in which it was made by the Minister. The matter may be approached somewhat differently by asking whether, on its true construction, having regard to the scope, nature and purpose of the Act, the power conferred by sub-s. 8 (1) of the Act extended so far as to empower the issue of a notice which, whilst imposing a prohibition, as described in para. 8 (1) (a) of the Act, and providing for an exemption, as described in para. 8 (2) (d), nevertheless might operate so as to impose the prohibition but without the stated exemption. In my view, the answer to these questions should be in the negative and paras. 4 and 6 of SEF 1 should not be treated as severable so as to preserve a valid operation of para. 4 if para. 6 fails. In aid of the construction which I have rejected, the appellants pointed to what, in practice, might be a lack of temporally synchronous operation between the prohibition in para. 4 and the exemption in para. 6. For example, the prohibition would operate in advance of the actual assignment of units to a particular boat. That may be so in a given - 23- case. But it does not meet the point as to whether the prohibition in para. 4 operates where, as a matter of law, para. 6 cannot operate at all in its purported terms so as to confer an exemption. It was then pointed out that para. 6 of SEF 1 specifies as criteria for the operation of the exemption that the boat be one which "has assigned to it" units under the Plan in respect ef a species, and that the boat has not been used to take a total weight of that species exceeding the quota in relation to those units. The submission was that it is sufficient to satisfy those criteria that the units under the Plan have been assigned to the boat "as a matter of fact". Therefore, it was contended, it was enough if units have been assigned to the boat in purported application of the steps laid down in the Plan, including those specified in paras. 11 and 14; it is not to the point that, in law, these provisions of the Plan and, indeed, the Plan itself, are void. One difficulty with these submissions is that they appear to subscribe to the curious view that the law lacks factual existence; see the observations of Deane J. in Foran v Wight (1989) 168 C.L.R. 385 at 435-436, and cf. David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 C.L.R. 353 at 374-375. Another is the inherent improbability, even allowing for the importance attached by the Act to the proper conservation and management of living resources in the Australian fishing zone (s. 5B), of the legislature having Tae - 24 - conferred upon the Minister a power of delegated law making which permits a result whereby the offence provision in para. 13 (1) (i) of the Act operates upon and by reference to a legal nullity. This must be more inherently improbable where the legal nullity is the result of a miscarriage of another power of delegated law making, the power given the Minister by s. 7B to determine plans of management. In my view, paras. 4 and 6 of SEF 1 are void and of no effect. It is umnecessary to consider whether para. 5 survives the fall of para. 4 though this appears unlikely. It is also unnecessary to determine whether the final effect is that para. 2 of SEF 1 does not operate to revoke the previous fisheries notices. The relevant informations specified conduct contrary to para. 4 of SEF 1 as the cause of the contravention of sub-s. 13 (1) (i) of the Act. The declaratory relief directed to para. 4 which was granted by the primary Judge is sufficient protection for the interests of the respondents. In any case, no wider relief was sought by cross-appeal. The Licence Conditions It is necessary first to consider more closely the relevant provisions in the Act dealing with the imposition of conditions on licences. Sub-section 9 (8AA) deals with the payment of levies under Levy Act. Sub-sections 9 (1), (2) and (3) are as follows: - 25 - "9 (1) Subject to sub-section (8AA), the Minister or the 'Secretary may grant to a person a master fisherman's licence authorizing the person to be in charge of a boat that is being used for fishing in proclaimed waters or in a specified area of proclaimed waters. (2) Subject to sub-section (8AA), the Minister of the Secretary may grant to a person a licence in respect of a boat authorizing the use of the boat by that person, or a person acting on that person's behalf, for (a) taking fish in proclaimed waters or a specified area of the proclaimed waters; or (b) a specified managed fishery, and for processing and carrying fish that have been taken as a result of that use of the boat. (3) Subject to sub-section (8AA), the Minister or the Secretary may grant to a person a licence in respect of a boat authorizing the use of the boat by that person, or a person acting on that person's behalf, for (a) carrying, or processing and carrying, in proclaimed waters, or a specified area of proclaimed waters, fish that have been taken with the use of another boat; or (b) carrying, or processing and carrying, in proclaimed waters, or a specified area of proclaimed waters, fish that have been taken with the use of another boat for a specified managed fishery." As I have indicated, a "managed fishery" is identified by reference to a plan of management under s. 7B. The charges with which this aspect of the case are concerned deal with the alleged offences of contravening a - 26 - condition of what in each case is identified as a numbered "Commonwealth Fishing Boat Licence". The Court was told that the licences were in like form, each being headed "Commonwealth Fishing Boat Licence", and authorising the use of a particular boat for the taking of certain species by the method known as trawling. It followed that the licences were granted pursuant to sub-s. 9 (2) of the Act, rather than sub- ss. (1) or (3). There was, however, some debate as to whether the licences fell within para. (a) or (b) of sub-s. 9 (2). This distinction is of some importance when dealing with the effect of the conditions. This arises from the terms of sub-s. 9 (5), dealing with the imposition of conditions. The sub-section states: "9 (5) A licence granted under this section - (a) is subject to such conditions as are - (i) specified in the licence; (ii) prescribed in relation to - (A) all licences granted under this section; (B) a class of licences granted under this section in which the licence is included; and (iii) in the case of a _ licence granted by virtue of Paragraph (2) (b) or (3) (b) - specified in the plan of management for the managed fishery in relation to which the licence has been granted ..." - 27 - I have set out earlier in these reasons the terms of para. 14.3 of the Plan. This was suggested in argument to be a provision amounting to a condition specified in a plan of management within the meaning of sub-para. 9 (5) (a) (iii). However, in my view, the licences with which this case is concerned are subjected to conditions specified therein within the meaning of sub-para. 9 (5) (a) (i). The licence is not granted by virtue of para. (b) of sub-s. 9 (2), so as to attract sub-para. (a) (iii) of sub-s. 9 (5). It is granted pursuant to para. (a) of sub-s. 9 (2). I turn now to the terms of the licences. Each states: "This licence authorises the use of the boat specified in Schedule 1 by the licensee, or a person acting on behalf of the licensee, in: proclaimed waters subject to the | conditions specified in Schedule 3; or the area of proclaimed waters [»| specified in Schedule 2 in Schedule 2" A the managed fishery specified N Schedule 2 is headed "Area of Proclaimed Waters/Managed Fishery" and Schedule 3 is headed "Conditions". Under each appears "SEE OVER". However, "N" appears in the second and third boxes set out above. This, it was accepted, is an abbreviation for "NO". Yet Schedule 2, thus suggested to be - 28 - inapplicable, has been completed. I refer below to the issues of construction which thus arise. Above the signature of the licensing officer under the heading "Declaration" on the front of the licence there appears: "Pursuant to the Fisheries Act 1952, I, a delegate of the Secretary to the Department of Primary Industries and Energy, hereby issue to the licensee described above a Commonwealth Fishing Boat Licence, in respect of the boat described in Schedule 1 subject to = any limitations contained herein and any prohibitions in force from time to time." On the reverse of the licence there appears' the following: "SCHEDULE 2 - AREA OF PROCLAIMED WATERS/MANAGED FISHERY Area of the South East Fishery as described in Schedule 2 of the South East Fishery (Individual Transferable Quota) Management Plan 1991 SCHEDULE 3 - CONDITIONS This licence only permits the taking, by the method known as trawling, of a specified species, as defined in the South East Fishery (Individual Transferable Quota) Management Plan 1991, by the boat described in Schedule 1 of the licence when it has: - assigned to it units under the South East Fishery (Individual Transferable Quota) Management Plan 1991 in respect of that species - not been used to take, during the year in the area of proclaimed waters specified in Schedule 1 of the Fisheries Notice SEF1, a total weight of that species exceeding the quota in relation to those units This licence only permits the taking, by the method known as trawling, of any species other than - 29 - specified species, as defined in the South East Fishery (Individual Transferable Quota) Management Plan 1991, with the exception of orange roughy, from areas other than those specified in Schedule 4 of that Plan in relation to orange roughy This licence only permits the boat described in Schedule 1 of the licence to land fish carried on board only in a port specified in the attachment to this licence." The licence suggests on its face that it is not granted under para. 9 (2) (b) in respect of a specified managed fishery. This is because the letter "N" appears beside the expression "the managed fishery specified in Schedule 2". The conditions set out in Schedule 3 are, in my view, strongly indicative of the specification in the licence of conditions to which it is subject, within the meaning of para. 9 (5) (a) {i) of the Act, the licence being of the type described in para. 9 (2) (a), rather than para. (b). However, para. 9 (2) (a) speaks of a licence for "taking fish in proclaimed waters or a_specified area of the proclaimed waters". The present licence falls within the second limb of para (a), being in respect of a specified area of proclaimed waters. The difficulty then arises with the structure of the printed form. The first of the three boxes contemplates the subjection of the licence to conditions specified in Schedule 3, but it also speaks of the licence being one in respect of "proclaimed waters". That suggests a licence under the first branch of para. (a) of sub-s. 9 (2). Where what is intended is a licence in respect of an area of - 30 - proclaimed waters, then the second box is applicable. This provides for the specification of the area in Schedule 2. The difficulty is that the printed form does not in terms directly deal with the situation where the licence is for an area only of proclaimed waters but is also subject to conditions specified in Schedule 3. That was the obvious intent in this case. Hence the awkward insertion of "N" in the second box, and the placing of "Y¥" in the first. In my view, the intent of the licensing officer, to be perceived from the perusal of the licence as a whole, is that what was granted was a permission in respect of an area of proclaimed waters, as specified in Schedule 2, and set out on the back of the licence, but subject to the conditions specified in Schedule 3. The conditions are threefold. The first limits the licence to the taking of a specified species only when the boat has assigned to it units under the Plan in respect of that species, and the boat has not been used to take a total weight of that species exceeding the quota in relation to those units. The charges were directed to contravention of this condition and the primary Judge framed the declaratory relief accordingly. The second condition limits the taking of species other than specified species as defined in the Plan and makes particular provision in relation to orange roughy. The third condition limits the landing of fish carried on board to ports specified in the attachment to the notice. - 31 - It is apparent that the first (and perhaps, though it is unnecessary to decide the point, the second) of these conditions operates on the footing that the boat will have had assigned to it units under the Plan and that the Plan will be effective in its terms. In my view, reference in the first condition to assignment of units is not to be read merely as referring to an assignment of units "in fact". Rather, what is assumed in both conditions is the legally effective operation of the Plan. This involves the efficacy of the Plan as a whole including definitions and the provisions dealing with the assignment of units, particularly para. 14. This in turn assumes the operation of the curially declared void para. 11. In general, a licence operates to make lawful an act which without it would be unlawful: Banks v 'Transport Regu ion Board (Victoria (1968) 119 C.L.R. 222 at 230. Without a licence held under sub-s. 9 (2) of the Act, which authorises such conduct, it is unlawful to use a boat for taking fish in an area of proclaimed waters. Moreover, it is "unlawful" in the sense of contravening the federal criminal law. Paragraph 13 (1) (b) of the Act when read with the balance of s. 13 so provides. The licence granted by the Minister or the Secretary pursuant to the power given in sub- s. 9 (2) thus makes the act of using the boat for taking fish in an area of proclaimed waters a lawful act, whereas, without the licence, it would have been an unlawful act. The power to grant the licence is supplemented by authority under sub-s. 9 - 32 - (5) to make the licence subject to such conditions as are specified in it. Thus, the effect of non-observance of the condition is to remove or withdraw what otherwise is the consent making lawful that which otherwise contravenes para. 13 (1) (b), and is an offence under the federal criminal law. Two points of present importance arise from this analysis. The first concerns the nature of the authority conferred by the legislature upon the executive to create an immunity from what otherwise would be the operation of a provision creating a criminal offence, by the grant of a licence coupled with the power to qualify that immunity by the attachment of conditions to the licence. This power should not be construed as extending to the specification of conditions which operate upon and by reference to other acts taken by the executive which are void in law. The second is that as a matter both of the construction of the licence instrument itself and of the power pursuant to which the licence was issued, the existence of an inoperative condition cannot be severed so as to leave in force a licence which is unfettered. This is important for the submissions made on behalf of the respondents. Their contentions were (a) at least the first condition of the licences was inoperative or void because it operated upon or with the assumption of the valid effect of the Plan including the provisions dealing with assignment of units, and (b) the result was that the licence itself was effective, shorn of the conditions. - 33 - It follows, as I have indicated, that in my view the first of these submissions should be accepted but the second should be rejected. The consequence is that those charges which related to contravention of or failure to comply with the first condition on the licences, and which were founded on paras. (f£), (g) and (h) of sub-s. 13 (1) of the Act, were bad. It follows also that the declaratory relief was correctly given in respect of these charges. Counsel for the respondents pointed to the consequences of holding that the licences were other than effective, albeit shorn of the conditions. It was submitted that the result may have been the commission of offences under para. 13 (1) (b). This paragraph, as I have indicated, is concerned purely with the conduct of the relevant activities without the existence of a licence; the paragraph is not concerned with contravention of conditions attached to licences. Any fresh charges in relation to the events giving rise to the existing charges would be in the face of s. 15B of the Crimes Act. Further, and as a separate consideration, the Local Court would have jurisdiction to deal with an application for a stay on the footing that having regard to the whole history of the matter there was an abuse of process: Smiles v Commissioner of Taxation (1992) 37 F.C.R. 538 at 552. This is so even though there may be no power to order a stay, - 34 - as an abuse of process, of committal proceedings upon an indictment: Grassby v The Queen (1989) 168 C.L.R. 1. The Twenty-second Respondent Counsel pointed to the twenty-second respondent in appeal No. NG618 as a person charged with three contraventions of sub-para. 13 (1) (b) (i). The charges are in like form, differing only in the date of the alleged commission of the offence. The first is an example: "On or about 14 July 1992, [you] did contravene section 13 (1) (b) (i) of the Fisheries Act 1952 ("the Act"), in that in an area of proclaimed waters [you] did use a boat to take approximately 3,388 kilograms (units) of fish, namely, Rexea Solandri, commonly known as gem fish see contrary to section 13 (2) (contravention of section 13 (1) (b) (i) of the Fisheries Act 1952." [sic] The relief granted by the primary Judge had the effect of declaring that this charge was "not maintainable". It appears from what we were told from the bar table that these charges may have been laid in circumstances where there had been a failure by the twenty-second respondent to renew a licence. Hence, the charges were not based upon contravention of any condition of a current licence. The utility of declaratory relief in the present case flows from the working out in this Court of the effects of its previous decision as to the validity of para. 11 of the Plan. - 35 - These three charges in respect of the twenty-second respondent in matter No. NG618 of 1994 stand in a different class. Before us there was some brief reference by counsel to the absence from the charges of any averment that' the respondent was not, and was not acting on behalf of, the holder of a licence which authorised the use of the boat in the area in question for taking fish, in terms of the formulation of the offence in para. 13 (1) (b). It may be that there was no need for the charge to negative the application of that exception or proviso or that, in any event, s. 145A of the Justices Act would be a _ sufficient answer. It may also be the case, as I have observed, that in any event the Local Court might favourably entertain an application for a stay by the twenty-second respondent on the ground of abuse of process. I say nothing upon these matters, save that it would be inappropriate upon this proceeding for judicial review to embark upon them. Conclusions The declaratory orders, insofar as they encompass these charges against the twenty-second respondent in appeal NG618 of 1994, should be modified accordingly. In other respects, the appeals should be dismissed. The costs of each appeal should be paid by the appellant or appellants respectively. - 36 - I certify that this and the preceding thirty five (35) pages are a true copy of the reasons for judgment of the Honourable Mr Justice Gummow. Associate: Len, cat ane ee on eal a ee Date: 23 December 1994. Counsel and solicitors for the appellants in the three appeals: Counsel and solicitors for the respondent in appeal No. NG616 of 1994: Counsel and solicitors for the respondents in appeal No. NG617 of 1994: Counsel and solicitors for the respondents in appeal No. NG618 of 1994: Date of hearing: Date of judgment: Mr B.J. Shaw Q.C. and Mr J. Millar instructed by the Director of Public Prosecutions. Mr C.A. Porter Q.C. and Mr J.E. Robson instructed by A.P. Sparke & Broad. Mr C.A. Porter Q.C. and Mr M.B. Smith instructed by Kennedy & Cooke. Mr R.V. Giles Q.C. and Mr G.A. Flick S.C. instructed by Bush Burke & Company. 2 December 1994, 23 December 1994. JUDGMENT No. 06/25, Zonnl CATCHWORDS BANKRUPTCY - administration - applications by trustee concerning directions to the bankrupt to particularise certain telephone calls and to consent to him inspecting bankrupt's documents taken as a consequence of the execution of a search warrant - whether, in the circumstances, s.77 of the Bankruptcy Act 1966 deprives the bankrupt of the privilege against self-incrimination and of legal professional privilege - whether trustee entitled to require bankrupt to consent to inspection - consideration of a bankrupt's general obligation to co-operate with his trustee. Bankruptcy Act 1966 (Cth), s.77, s.77(g). Sorby v The Commonwealth (1983) 152 CLR 281 Pynehoard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328. Re Clyne; ex parte Deputy Commissioner of Taxation (1986) 15 FCR 128. The Queen v Cox and Railton (1884) 14 QBD 153. Re: ALAN BOND; Ex parte ROBERT EASTAUGH RAMSAY (The Trustee of the Property of Alan Bond, a Bankrupt) No. NB 1071 of 1992 CORAM: SHEPPARD J RECEIVED DATE : 22 DECEMBER 1994 163AN 1999 FEDERAL COURT OF PLACE: SYDNEY AUSTRALIA PRINCIPAL REGISTAY 94. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NB 1071 of 1992 ENERAL DIVISION ) : ALAN BOND EX PARTE: ROBERT EASTAUGH RAMSAY (The Trustee of the Property of Alan Bond, a Bankrupt) Applicant CORAM: Sheppard J PLACE: Sydney DATE: 22 December 1994 REASONS FOR JUDGMENT HIS HONOUR: These two applications made respectively on 30 November and 7 December last concern the construction and application to the circumstances of the case of the provisions of s.77 of the Bankruptcy Act 1966 ("the Act"). The respondent to the application is Mr Alan Bond who is an undischarged bankrupt. The applicant is his trustee in bankruptcy. Section 77 is in the following terms: "77. A bankrupt shall, unless excused by the trustee or prevented by illness or other sufficient cause: (a) forthwith after becoming a bankrupt, give to the trustee: (i) all books (including books of an associated entity of the bankrupt) that are in the possession of the bankrupt and relate to any of his or her examinable affairs; and (ii) the bankrupt's passport, if any; (b) attend the trustee whenever the trustee reasonably requires; (ba) give such information about any of the bankrupt's conduct and examinable affairs as the trustee requires; (c) attend a meeting of creditors whenever the trustee requires; (d) at each meeting of creditors at which the bankrupt is present, give such information about any of the bankrupt's conduct and examinable affairs as the meeting requires; (e) execute such instruments and generally do all such acts and things in relation to his property and its realization as are required by this Act or by the trustee or as are ordered by the Court upon the application of the trustee; (£) disclose to the trustee, as soon as practicable, property that is acquired by him, or devolves on him, before his discharge, being property divisible amongst the creditors; and (g) aid to the utmost of his power in the administration of his estate." The particular paragraphs of the section upon which the Trustee relies are paras (e) and (g) but, as will be seen, it is para (g) upon which the Trustee needs to rely, at least in my opinion, if the applications are to succeed. . The first of the applications concerns a direction given by the Trustee to Mr Bond to provide detailed particulars of a number of telephone calls made by him from the Sheraton Wentworth Hotel in Sydney where he was staying during the course of his examination under s.81 of the Act. The second application concerns a direction requiring Mr Bond to consent to the Trustee inspecting a number of documents which have been taken from Mr Bond by members of the Australian Federal Police as a consequence of the execution of a search warrant. The police will not make the documents available for the Trustee's inspection without Mr Bond's consent. The principal question which the applications raise for determination is whether the provisions of s.77 reveal a legislative intention to deprive a person affected by the section of the privilege against self-incrimination and of legal professional privilege. I should decide that question first. If it is answered favourably to Mr Bond, the consequence will require the substantial amendment of the applications or perhaps their dismissal. The principles which guide me are not in doubt. It is their application to the circumstances of a given case which occasion difficulty. In the view I take of the matter it does not necessarily follow that the result must be the same in the case of both privileges; it may be that the section takes away one but not the other. I propose to deal first of all with the privilege against self-incrimination. Section 77 is the opening section of Part V of the Act which is entitled, "Control Over Person and Property of Debtors and Bankrupts"". The section is in Division 1 of Part V which is entitled, "General". Other sections in the Part are s.77AA dealing with access by the Official Receiver to premises, s.77A dealing with access by the Trustee or the Official Receiver to books of what is described as an "associated entity", s.77B providing for obligations on the part of bankrupts to assist the Official Receiver, s.77C dealing with the power of the Official Receiver to obtain information and evidence, s.77D dealing with allowances and expenses in respect of attendances, s.77E dealing with advances on account of allowances and expenses, s.77F making further provisions about allowances and expenses, s.78 dealing with the arrest of debtors or bankrupts, ss.79 and 80 to the detail of which I need not refer, and s.81 dealing with the discovery of the bankrupt's property and which provides, of course, for the examination of bankrupts and others before a Registrar of this Court. I shovld also mention Divisions 2 and 3 of Part V which are headed respectively, "Offshore information notices" and "Failure to comply with certain notices". The detail of these provisions is not of relevance to the question of construction to be decided and I do not refer further to them. The two most helpful authorities on the question are Sorby v The Commonwealth (1983) 152 CLR 281 and Pyneboard Pty Limited v Trade Practices Commission (1983) 152 CLR 328. In Sorby, Gibbs CJ said (at 288-290) "However, the provisions of the statute have to be interpreted against the background provided by the common law. It has been a firmly established rule of the common law, since the seventeenth century, that no person can be compelled to incriminate himself. A person may refuse to answer any question, or to produce any document or thing, if to do so 'may tend to bring him into the peril and possibility of being convicted as a criminal': Lamb v. Munster (1882) 10 Q.B.D. 110, at p.111. The mere fact that the witness swears that he believes that the answer will incriminate him is not sufficient; 'to entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness fo his being compelled to answer': Reg. v. Boyes (1861) 1 B. & S. 311, at pp.329-330 [121 E.R. 730, at p.738]. That statement of the law has frequently been approved; see Ex parte Reynolds; In re Reynolds (1882) 20 Ch.D.294; Triplex Safety Glass Co. v. Lancegaye Safety Glass (1934) Ltd [1939] 2 K.B. 395, at pp.403-404; In re Westinghouse Uranium Contract [1978] A.C. 547, at pp.612, 627, 647. It as clear that in England the Parliament may take away the privilege and enact that a party may be bound to accuse himself: Reg. v. Scott (1856) Dears. & B. 47 at p.59 [169 E.R. 909, at p.914]. Whether the powers of the Commonwealth Parliament under the Constitution are more restricted in this respect is a matter to which I shall later refer. Although the legislature may abrogate the privilege, there is a presumption that it does not intend to alter so important a principle of the common law. In Kempley v. The King [1944] A.L.R. 249, at p.253, Starke J. went so far as to say that 'where authority is given to compel the examination of persons, the ordinary rule of the common law which protects a person from answering questions which tend to criminate him applies unless expressly excluded'. However, he went on to say that 'whether the rule is excluded must depend upon the provisions of the legislative act or the nature of the subject', and this appears to recognize that an intention to exclude the privilege may appear although there are no express words of exclusion. Although there are not wanting other statements to the effect that the privilege will not be taken away without express words (see, for instance, Crafter v. Kelly [1941] S.A.S.R. 237, at pp.241-242 it is not correct to say that if the legislature wishes to render the privilege unavailable ti must in every case do so expressly. The character and purpose of the statute may indicate that it should not be construed so as to preserve the privilege: see, e.g. Mortimer v. Brown (1970) 122 C.L.R. 493 and Rees v. Kratzmann (1965) 114 C.L.R. 63, esp. At p-80, but cf. Mitcham v. O'Toole (1977) 137 C.L.R. 150. However, a statute will not be construed as excluding so valuable a privilege unless an intention to do so clearly appears; see R. v. Associated Northern Collieries (1910) 11 C.L.R. 738, at p.748, and Ex parte Grinham; Re Sneddon [1961] S.R. (N.S.W.) 862, at pp.870-871, 874-875." In their joint judgement in Sorby, Mason, Wilson and Dawson JJ said (at 309): "The privilege against self-incrimination is deeply ingrained in the common law. The principle is that a statute will not be construed to take away a common law right, including the privilege against self-incrimination, unless a legislative intent to do so clearly emerges, whether by express words or necessary implication: Pearce, Statutory Interpretation in Australia, 2nd ed. (1981), pars 113-116; Pyneboard; Crafter v. Kelly [1941] S.A.S.R. 237, at p.242." They then referred to Mortimer v Brown (1970) 122 CLR 493 which they said provided a compelling illustration of a statute which abrogated the privilege by necessary implication. In Pyneboard, Mason ACJ, and Wilson and Dawson JJ referred (at 337) to the question whether the privilege against self incrimination was confined in its application to testimonial disclosures in judicial proceedings so that it was inherently incapable of application in non-judicial proceedings. After referring to a number of authorities, their Honours said (at 341): "In the light of these competing considerations we are not prepared to hold that the privilege is inherently incapable of application in non-judicial proceedings. The issue of its availability in these proceedings therefore falls to be decided by reference to the statute itself. In the consideration of that question it is necessary to bear in mind the general principle that a statute will not be construed to take away a common law right unless the legislative intent to do so clearly emerges, whether by express words or by necessary implication: Pearce, Statutory Interpretation in Australia, 2nd ed. (1981) pars. 113-116; cf. Mitcham v. O'Toole (1977) 137 C.L.R. 150. In deciding whether a statute impliedly excludes the privilege much depends on the language and character of the provision and the purpose which it is designed to achieve. The privilege will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification. This is so when the object of imposing the obligation is to ensure the full investigation in the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation. In such cases it will be so, notwithstanding that the answers given may be used in subsequent legal proceedings." Their Honours went on (at 342) to discuss a number of authorities. I do not find it necessary to refer to what they there said. I am clearly of the opinion that s.77 in the setting in which it appears in the Act evinces an intention on the part of the legislature that the privilege against self- incrimination is not to be available to bankrupts required to do any of the things specified in the section. The existence of the privilege would tend to stultify the operation of the section and thus seriously affect the due course of the administration of a bankrupt's estate. The provision is of a type plainly contemplated in the dictum I have quoted from Pyneboard. Counsel for Mr Bond referred specifically to s.77AA and s.77C and to sub-sec.81(11AA). He claimed that the privilege against self-incrimination was available in cases to which 8.77AA and s.77C applied. I have not understood why this is necessarily so. I do not decide the question in relation to these sections because it is unnecessary to do so, but I point out that the sections differ from s.77 in that they are capable of applying to persons other than the bankrupt; s.77 is not. Counsel said that, if the privilege were available in relation to some sections in Part V, that in itself, for reasons of consistency of interpretation, was a reason why each of the sections should be construed in the same way. I reject this argument. Even if the premise upon which it is based be right - and that itself is open to serious question - each subject matter dealt with has to be considered from the point of view of its own place in the overall framework of Part V. Subsection 81(11AA) provides: "Subject to any contrary direction by the Court, the Registrar or the magistrate, the relevant person is not excused from answering a question merely because to do so might tend to incriminate the relevant person." Counsel relied on this provision as an indication that the legislature had given an express indication of its intention. It followed, so he submitted, that in the absence of any such indication in other parts of the same Part of the Act the privilege was intended to be available. I think that this proposition is demonstrated to be erroneous in the judgment of Jackson J in Re Clyne; ex parte Deputy Commissioner of Taxation, (1986) 15 FCR 128 where his Honour said at (135-6): "It is clear, of course, that as Mason, Wilson and Dawson JJ (repeating their observations in Pyneboard Pty Ltd v frade Practices Commission (1983) 152 CLR + 328 at 341) said in Sorby v Commonwealth (1983) 152 CLR 281 at 309: '... a statute will not be construed to take away a common law right, including the privilege against self-incrimination, unless a legislative intent to do so clearly emerges, whether by express words or necessary implication...' Further as their Honours said in both those cases, in determining whether the privilege against self- incrimination is impliedly excluded, much depends on the language and character of the relevant legislative provision and on the purpose which it is designed to achieve: Pyneboard Pty Ltd v Trade Practices Commission (supra, at 341) and Sorby v Commonwealth (supra, at 309). Putting to one side for a moment the provisions of s 306A of the Act, it is clear that the public examination of bankrupts under the enactments in - 10 - bankruptcy has long been an instance where, without there being any reference to the exclusion of the privilege against self-incrimination, a statutory duty of the bankrupt to answer 'all such questions as the Court may put or allow to be put to him' has been held to carry with it an exclusion of the privilege against self-incrimination." His Honour then referred to what had been said by Phillimore J (as he then was) in Re Atherton [1912] 2 KB 251. Phillimore J said (at 254): "This is a question which has arisen out of the public examination of a debtor under s 17 of the Bankruptcy Act 1883 (UK), which provides in subs 1 that the debtor 'shall be examined as to his conduct, dealings and property,' and in subs 8 that 'it shall be his duty to answer all such questions as the Court may put or allow to be put to him'. Those words are in themselves wide enough for the purpose of the matter now before me, but I have also the authority of the cases of Re a Solicitor (1890) 25 QBD 17, R v Erdheim [1896] 2 QB 260, and R v Scott (1856) 25 LJ MC 128, which decide that those words mean what they say, that a debtor is bound to answer all such questions as the Court may put or allow to be put to him, whether they tend to criminate him or not --- even such a question as 'Have you committed a crime?'" Jackson J continued: "That statement of principle was approved by the Court of Appeal in England in Re Paget; Ex parte Official Receiver (supra, at 88-89) and it has been treated as correct on many occasions both in England (see for example Re Jawett (supra) and R v Harris [1970] 1 WLR 1252) and in Australia (see for example Re Wagner [1958] QWN 49, Rees v Kratzmann (1965) 114 CLR 63, Mortimer v Brown (supra) and Re Clyne; Ex Parte O'Brien (supra)). On that view the terms of s 69(12) should be treated as providing, in favour of the bankrupt, for an - lil - exception to the general principle that the privilege does not apply." Subsection 69(12) was a precursor of subsec 81(11AA). I respectfully agree with what Jackson J _ said. Accordingly, I conclude that the privilege against self- inerimination is not available. I turn to the question of the availability of legal professional privilege. In Re Steele; ex parte Official Trustee in Bankruptcy v Clayton Utz (1994) 48 FCR 236, Ryan J held that s.77AA was not to be read as denying the common law right to claim legal professional privilege. Counsel for the Trustee did not dispute the correctness of that decision nor did he seek to argue that legal professional privilege was not available to Mr Bond in relation to s.77; but his concession was qualified by reference to The Queen v Cox and Railton (1884) 14 QBD 153 and cases in which it has since been applied. Cox and Railton is authority for the proposition that only those communications passing between solicitors and their clients in professional confidence and in the legitimate course of professional employment of their solicitor are privileged. Thus communications made to a solicitor by his client before the commission of a crime for the purpose of being guided or helped in the commission of it are not privileged from disclosure. See also: The Queen v Bell; ex parte Lees (1980) 146 CLR 141 and The Attorney General for the Northern Territory of Australia v Kearney (1985) 158 CLR 500. - 12 - It follows that, if the telephone calls made by Mr Bond from the hotel were calls in which he sought or received advice concerning, for instance his bankruptcy, or if documents seized by the police include letters or other documents relating to advice sought by him or given to him, those documents will be privileged from inspection. If there is any dispute about any such claim, assuming it is made, the matter can be resolved on an application to the Court. It remains to deal with an argument relied upon by counsel for Mr Bond in relation to the requirement that he consent to the production to the Trustee of documents seized from him by the police when a search warrant was executed. Counsel for Mr Bond contended that a consent did not fall within either para (e) or (g) of s.77. In relation to para (e) I should say that I have reservations whether it is applicable to the circumstances of this case. It provides that a bankrupt shall, unless excused by the trustee or prevented by illness or other sufficient cause, execute such instruments and generally do all such acts and things in relation to his property and its realization as are required by this Act or by the trustee or as are ordered by the Court upon the application of the trustee. The question in my mind is whether the consent here sought May properly be said to be an instrument or the doing - 13 - of an act or thing in relation to Mr Bond's property and its realisation. I bear in mind the submission made by counsel for the Trustee that the documents themselves should, for the purposes of the argument, be assumed to be the bankrupt's property. Nevertheless, I have reservations whether the provision is applicable. My reservations are of no relevance to the outcome of the matter because, plainly enough, para (g) of the section applies. It is expressed in quite general terms requiring a bankrupt to aid to the utmost of his power in the administration of his estate. The point made by counsel for Mr Bond was that a consent given under compulsion, that is a forced consent, was no consent at all. The provisions of s.77 and the other provisions of Part V of the Act are designed to enable the Trustee to make the fullest investigation into a bankrupt's property, dealings and affairs. At least so far as bankrupts are concerned, the essence is a requirement that they co- operate. Co-operation can and will be compelled in appropriate cases. If this were not the case, bankrupts could make a laughing stock of their obligations. Thus unwilling and uncooperative bankrupts must produce documents and answer questions against their will. That is their obligation. If they fail in that obligation they expose themselves to the risk of being found in contempt of court or in breach of the criminal law. To require Mr Bond to sign the consent here in question is, in my opinion, an ordinary and commonplace - 14 - incident of his overall obligation to co-operate with his Trustee. He is required to do many things that he is probably unwilling to do. This is but one of them. Accordingly, I reject the submission made on his behalf on what may be called the forced consent point. The documents seized by the police from Mr Bond are only some of a large number of documents seized from numbers of persons as the consequence of the issue of search warrants. The Trustee wishes access to all these documents, not just those seized from Mr Bond. There are proceedings pending in the Victorian Registry of this Court (No. VG 427/94) in which this question is raised. In those proceedings the Trustee will rely on the decision of the English Court of Appeal in Marcel v Commissioner of Police [1992] Ch. 225; see also Morris v The Director of the Serious Fraud Office [1993] Ch. 372 and Johns v Australian Securities Commission (1993) 178 CLR 408 (at 423-4 and 429). The issues for determination in the Victorian matter do not in my opinion arise for determination here. The question in the present case is a much more limited one. It concerns documents which the evidence establishes were in Mr Bond's possession and are now in the possession of the Australian Federal Police. The Trustee wants to inspect them. He requires Mr Bond's consent for this purpose. In my opinion - 15 - the provisions of para 77(g) of the Act empower him to require it. It follows that, subject to what I have said about legal professional privilege, if a claim for it be made in proper form, the Trustee is entitled to the relief which he seeks. I now propose to discuss with counsel the form of the relief which is to be granted. I certify that this and the 14 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Sheppard. Associate Yb,-00, Dated 22 December 1994 APPEARANCES Counsel for the Trustee: Solicitors for the Trustee: Counsel for the Bankrupt: Solicitors for the Bankrupt: Date of Hearing: Date of Judgment: Place of Hearing: F M Douglas QC. Mallesons Stephen Jaques. J W K Burnside QC with M Barnett. Galbally Fraser & Rolfe. 21 Decmber 1994. 22 December 1994. Sydney.