Minister for the Environment and Heritage v Wilson [2004] FCA 6

FEDERAL COURT OF AUSTRALIA

Minister for the Environment and Heritage v Wilson [2004] FCA 6 MINISTER FOR THE ENVIRONMENT AND HERITAGE v ROBERT JOHN WILSON S 295 of 2002 SELWAY J 16 JANUARY 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 295 OF 2002

BETWEEN: MINISTER FOR THE ENVIRONMENT AND HERITAGE

APPLICANT

AND: ROBERT JOHN WILSON

RESPONDENT

JUDGE: SELWAY J

DATE OF ORDER: 16 JANUARY 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The respondent pay to the Commonwealth by way of pecuniary penalty the sum of $12,500. 2. By agreement, no order for costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 295 OF 2002

BETWEEN: MINISTER FOR THE ENVIRONMENT AND HERITAGE

APPLICANT

AND: ROBERT JOHN WILSON

RESPONDENT

JUDGE: SELWAY J

DATE: 16 JANUARY 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant ('the Minister') has applied to the Court for an order that the respondent pay a pecuniary penalty pursuant to s 354(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('the Act'). The Minister alleges that on 30 October 2001, the respondent set a net in the Great Australian Bight Marine Park ('the Park') and caught fish, namely shark, in the Park contrary to the Act. The respondent admits those allegations. The Minister and the respondent both submit that the appropriate pecuniary penalty to be imposed is $12,500. However, the parties have left the question of what penalty should be imposed to be determined by the Court. For the reasons given below I determine that a pecuniary penalty of $12,500 is appropriate. 2 The Park was proclaimed on 17 April 1998, pursuant to s 7(2) of the National Parks and Wildlife Conservation Act 1975 (Cth) (now repealed). The Park is to be treated as if it were a 'reserve' created under the Act: see cl 3 of Sch 4 of the Environmental Reform (Consequential Provisions) Act 1999 (Cth). Although I have not been informed when notice was given in the Gazette of the commencement of the management plan, the parties are agreed that I can take judicial notice of that plan and that it was properly made in accordance with the National Parks and Wildlife Conservation Act 1975 (Cth). That management plan is also to be treated as if it were a management plan created under the Act: see cl 4 of Sch 4 of the Environmental Reform (Consequential Provisions) Act 1999 (Cth). 3 Section 354(1) of the Act relevantly provides: 'A person must not do one of the following acts in a Commonwealth reserve except in accordance with a management plan in operation for the reserve: (a) kill, injure, take, trade, keep or move a member of a native species; or … Civil penalty: (a) for an individual—500 penalty units …' I note that a 'penalty unit' is $110 with the effect that 500 penalty units are $55,000. 4 Section 481 of the Act relevantly provides: '(1) Within 6 years of a person (the wrongdoer) contravening a civil penalty provision, the Minister may apply on behalf of the Commonwealth to the Federal Court for an order that the wrongdoer pay the Commonwealth a pecuniary penalty. (2) If the Court is satisfied that the wrongdoer has contravened a civil penalty provision, the Court may order the wrongdoer to pay to the Commonwealth for each contravention the pecuniary penalty that the Court determines is appropriate (but not more than the relevant amount specified for the provision). (3) In determining the pecuniary penalty, the Court must have regard to all relevant matters, including: (a) the nature and extent of the contravention; and (b) the nature and extent of any loss or damage suffered as a result of the contravention; and (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct. …' 5 The procedure adopted by the parties at the hearing was for the applicant to explain that the parties were agreed that the respondent was liable to a civil penalty, the respondent confirmed that agreement and then made submissions as to various facts in mitigation and the applicant then noted that whilst it was not in a position to agree those facts (most of them being within the knowledge of the respondent) it did not dispute them. In addition the parties made various submissions as to the relevant principles applicable to the determination of an appropriate civil penalty in the relevant circumstances, including the facts put by the respondent in mitigation. This procedure is consistent with what I understand to be the procedure adopted in this State in a Magistrate's Court following a guilty plea. In such a case there is often no sworn evidence before the Magistrate either from the prosecution or the defence. In these circumstances the Magistrate is required to act on the version of the facts put forward by the defence in submissions so long as those facts are consistent with the relevant plea and are within the bounds of reasonable possibility. If the prosecution wish to dispute those facts as alleged the onus is on it to call sworn evidence: see Law v Deed [1970] SASR 374. As Bray CJ makes clear in that case, the relevant procedure turns on the onus of proof in criminal proceedings (see at 377-378). That onus does not apply in relation to proceedings for a civil penalty and I am not certain that the procedure is necessarily appropriate in this case: cf s 4(2) and s 191 of the Evidence Act 1995 (Cth). It may be that it would have been more appropriate to treat the various submissions as being, in effect, pleadings so as to limit the issues between the parties rather than as matters of fact. In any event, given that the parties are agreeable to proceeding in this way it is my view that the Court has jurisdiction to do so at least pursuant to O 32 r 4 of the Federal Court Rules. 6 The facts put to me by the respondent and not disputed by the applicant include the following: (a) The respondent is an experienced shark fisherman with over 25 years fishing in this area. He has no previous convictions. He has co-operated with the applicant both in relation to this alleged breach of the Act and more generally in relation to the administration of the Park. (b) In the period 29 - 31 October 2001, the respondent was fishing in an area close to the Marine Park boundary. Over this period the respondent set his net on seven separate occasions. The overall length of the net in the water is some four kilometres with both ends supported by a buoy. The net remains in place for some 3-4 hours and is then raised. When the net is set the fisherman cannot look at the GPS system on the boat. (c) On one of the occasions when the respondent set his net on 30 October 2001, his vessel drifted into the Park, although most of the net was outside of the Park. The respondent knew that he was close to the boundary of the Park. He knew there was a risk that his vessel might enter the Park. However, he did not know that he had done so. It is likely that the reason for the vessel entering the Park was that there had been a minor wind change combined with the fact that he could not look at the GPS system whilst setting the net. (d) The total value of fish caught by the respondent in the period from 29-31 October 2001 was $11,500. In light of the submissions made by the respondent at least some of these fish were taken from inside the Park on the one occasion referred to above. The respondent suggested that maybe $200 worth of fish were taken from inside the Park. 7 This was a first offence. It was not deliberate. However, given the problems the respondent had in looking at his GPS system whilst setting his net and in the vessel being affected by drift and by wind, the respondent plainly took a risk in setting his line very close to the boundary of the Park. His breach of the Act was the result at least of negligence and maybe of recklessness. The applicant put to me that in determining an appropriate civil penalty I should give considerable weight to the need to deter others particularly in circumstances where there are obvious problems in detection given the very large area of the Park. It seems to me that these are 'relevant matters' for the purpose of imposing a civil penalty and I do take them into account. 8 Taking into account these and the other matters put to me by both parties including their joint submission as to an appropriate penalty I determine that a civil penalty of $12,500 is appropriate. The parties are agreed that there should be no order for costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.