Dudley & Ors v Department of Primary Industries and Regions South Australia (Pirsa)

(2018) 231 LGERA 13; [2018] SASCFC 23

South Australia Full Court

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Interrogate

Catchwords

1. Aboriginal and Torres Strait Islander Peoples
2. › Native Title
3. › Proof and Evidence
4. › Evidential onus on defendant raising native title defence in criminal proceedings
5. › Whether evidence of historical engagement in fishing activity sufficient to discharge evidential onus
6. › Whether evidence must establish right as part of system of traditional rules
7. › Native Title Act 1993 (Cth), ss 211, 223
1. Aboriginal and Torres Strait Islander Peoples
2. › Native Title
3. › Preservation of native title rights
4. › Defence to fisheries offence based on s 211 of Native Title Act
5. › Whether possession of abalone for personal, domestic or non-commercial communal needs
6. › Native Title Act 1993 (Cth), s 211(2)(a)
1. Primary Industry
2. › Fish
3. › Offences
4. › Possession of aquatic resource of prescribed class
5. › Evidentiary presumption of purpose of sale
6. › Whether presumption under state fisheries legislation inconsistent with s 211 of Native Title Act
7. › Whether s 109 of Constitution suspends operation of presumption
8. › Fisheries Management Act 2007 (SA), ss 72(2), 72(3)(a)
9. › Australian Constitution, s 109
1. Criminal Law
2. › Sentencing
3. › Appeal against sentence
4. › Discretionary nature of sentencing
5. › Whether error established in sense required by House v The King
6. › Whether failure to impose prohibition order on fishing constituted error
7. › Fisheries Management Act 2007 (SA), s 100(1)(f)(i)

Quick Take

To raise a defence under s 211 of the Native Title Act 1993 (Cth) in fisheries prosecution proceedings, a defendant must adduce evidence capable of establishing not merely a history of engaging in the fishing activity, but the existence of a native title right with some basic content as part of a system of traditional rules observed by the relevant people. Evidence confined to historical engagement in fishing is insufficient. The evidentiary presumption of purpose of sale under s 72(3)(a) of the Fisheries Management Act 2007 (SA) is not inconsistent with s 211 of the Native Title Act and continues to operate even where a s 211 defence is raised.