NSW CCA’s respect for SA Court of Appeal is “unfeigned”

Fresh developments in the 30 years long abalone wars which kicked off in 1994 with the decision of a strong NSW CA bench (Smiler Gleeson, St Michael of Kirby and Bill Priestley) in Mason v Tritton: blackfellas must abide by the fisheries regulations that apply in the State.  

There was to be no exception for post-Mabo claims as to customary taking of abalone. The arrival of the Native Title Act in 1993 (too late to cover the facts in Mason) merely added the complexity of s.211 which provided (an illusory) get out of gaol card for native title claimants if they engaged in customary activities (including fishing) for domestic or cultural, non-commercial purposes.  

Mason and subsequent reported cases pointed to the standard scenario of State fisheries inspectors apprehending indigenous fishers and charging them with breaches of State fishing laws. 

The resulting 100% conviction rate most often related to the lucrative harvest of abalone, destined by the powers that be for big commercial fishing operations, in turn aimed at the Chinese market. 

The illusion in the Native Title Act s.211 defence arose from whether the onus of establishing customary taking fell on the defendant to such charges on an evidentiary basis, or as a full legal burden (i.e. to be proved at the civil standard as a defence to a charge).

Abalone are only found in the cooler waters of the south eastern shores of the nation, and accordingly NSW, SA and The Map provide the reported cases on fisheries inspectors prosecuting blackfellas for taking more than the handful of abalone allowed per day under various State legislation.  

Curiously Victoria appears to avoid this institutional bullying, which in the other States is justified on the grounds of the impact that poaching has on the commercial take. 

The disparity between these numbers (over 90% of the take to commercial operators, less than 2% to the unlicensed [mostly blackfellas], and the rest to licensed amateurs) belies the impact on commerce playing footsies with the State governments.

But the indigenous have refused to take the hint and continue to harvest abalone, resulting in ever more precedents against them, until in early July this year the NSW CCA in Moriarty v Nye (Jeremy Kirk JA with Helen Wilson and Dina Yehia JJ) at least put a stop to the assumption that a defendant Blackfella had the “legal burden” (as opposed to merely raising the defence on an evidentiary basis) of proving his or her s.211 status in an abalone prosecution. 

In doing so the Court had to confront the barely one year old decision of the SA CA (Mark Livesey P, Sam Doyle and Chris Bleby JJA, los tres amigos) in Dietman v Karpany which had settled uncertainty on the point by pronouncing the defendant indigenous would have to carry the legal burden of proving their native title qualifications, not just raise them to see if the prosecution could prove to the contrary.

Dietman (the eponym for the Director of Fisheries in SA) was a curious case that attracted some electronic commentary at the time as to its ripeness for special leave, but nobody blinked, least of all at SA’s Aboriginal Legal Right Movement.  

The message from them (last year) was that the matter had been referred to a silk. The anonymous silk need contemplate the issue no longer, as the NSW CCA has taken to the SA CA decision with the sort of brickbat that is not required by the High in settling the infelicities of lesser breeds without the law. 

The point being that comity is required between State Courts of equal rank, and a court may only depart from the clear ruling of another State’s appellate court if it has determined that the decision is “plainly wrong”.  

None of the finesse that the Last Chancers can indulge in when deflecting dud reasoning below. If NSW is not to follow a SA decision, the faulty reasoning must be put on the rack, and then hung, drawn and quartered.  

And so it was in Moriarty (he also eponymous as the senior NSW fisheries enforcer).

The NSW CCA set out its wares as to why the burden on the indigenous in fisheries prosecutions ought only to be an evidentiary one. 

In the absence of anything said in s.211 itself as to onus, the tools of statutory interpretation would have to supply the inference. Guidance was sought from context and purpose. 

The heading of s.211, “Preservation of Certain Native Title Rights and Interests” matched statements made in Hansard by the proponent of s.211: the section was intended to facilitate the exercise of fishing (and other customary rights) for the indigenous, and to preserve the continued existence of native title rights and interests. 

That general point was supported by the Preamble to the Native Title Act and other general expressions in the Act. The critical reasoning lay in distinguishing the process for native title land claims (where the legal burden lay on claimants) from that in claims to fish and hunt in customary fashion. Of that category the NSW CCA said:

“In such cases, to impose a legal burden to make out the relevant existence and content of native title would commonly be to make the task so difficult for a defendant as to render the benefit of s.211 illusory. That practical effect defeats not only the intended practical benefit of the immunity created by s.211 but also undermines the Parliament’s clear intent to preserve native title rights by facilitating their exercise.” 

And then:

“Proving or disproving the existence and content of native title is difficult, whichever side bears the onus. But it is clearly proponents [in this case, the prosecution] who, in general, will be better placed to bear that burden  …” 

In short, governments have the resources to deal with the complexities of these issues:

“The fact that a defendant claims to be a native title holder does not say much about their ability to call evidence to prove in a court, even on the balance of probabilities, the existence and content of their claimed native title.” 

The CCA, clear that only an evidentiary burden fell on claimants to customary fishing rights, turned to whether it should bow to the contrary reasoning of the SA CA.  

The answer was “yes”, unless the CCA thought its sister court “plainly wrong”, which was the answer it arrived at between paras 155 and 176 of its reasons.

In listing the errors found in the Dietman decision, the CCA three times intones its dissent “respectfully”, until finally it concluded:

“Our respect for the eminent members of the South Australian Court of Appeal who determined Dietman is unfeigned. However, in our respectful view, the Court’s decision manifests error in important ways.” 

Law students learn the hierarchy of respect, and greatest respect, but unfeigned respect takes the middle finger to a new altitude. The CCA said that it might have accepted that the SA CA had merely different views on the interpretative path to allocating the onus on a claimant, but “our difference of view goes deeper than that”, and that depth of difference lay in the two paras of the Dietman decision set out by the CCA asserting that the preponderance of knowledge lay with a customary claimant who in turn should then wear the legal burden of proof. 

The CCA was having none of it.

In the meantime we are left with conflicting authorities, and judicial attitudes that live on different planets. Sam Doyle and Chris Bleby in SA, both privately educated sons of judges and with Oxford and Cambridge degrees respectively, while in NSW Helen Wilson and Dina Yehia were both High School educated. Wilson worked both sides of the criminal Bar table. 

Yehia, of a Greek mother and an Egyptian general father, arrived in this country age seven without a word of English and spent seven years working for the Western Aboriginal Legal Service out of Dubbo before returning to Sydney as a Public Defender.  

We await the High’s choice: will it be the more patrician Crow-Eating approach, or the earthier criminal practitioners’ practicality?