Big Fish: Karpany v Dietman [2013] HCA 47

The High Court has unanimously allowed an appeal in the case of Karpany v Dietman [2013] HCA 47, from a decision of the Full Court of the Supreme Court of South Australia, which had overturned a decision of the Magistrates Court of South Australia finding the applicants not guilty of possessing undersize abalone. 

The Facts

The applicants members of the Narrunga People. They had taken undersize Greenlip abalone in accordance with their traditional laws and customs. This is contrary to s 72(2)(c) of the Fisheries Management Act 2007 (SA), and they were charged accordingly.

The Lower Court Decision

In the Magistrates Court, the respondent conceded that the applicants' native title right to take fish from the relevant waters subsisted. The applicants said that, due to the operation of s 211 of the Native Title Act 1993 (Cth), the prohibition in s 72(2)(c) of the Fisheries Management Act did not apply to their activities in taking abalone.

The Native Title Act provides that, if a law prohibits a person from carrying on certain activities other than in accordance with a "licence, permit or other instrument" granted under that law, that law does not prohibit a native title holder from carrying on those activities for the purpose of satisfying their personal, domestic or non-commercial communal needs.

Section 115 of the Fisheries Management Act allowed the Minister to exempt a person from provisions of that Act.

The Magistrate found that that an exemption under s 115 amounted to a "licence, permit or other instrument." Therefore, s 72(2)(c) did not prohibit the applicants' conduct. 

The Full Court Appeal

The respondent appealed to the Full Court, arguing that the applicants' native title right had been extinguished by the Fisheries Act 1971 (SA) and that the magistrate was in error by characterising an exemption under s 115 of the Fisheries Management Act as a "licence, permit or other instrument". 

The Full Court held by majority that the applicants' native title right had been extinguished.  Unanimously, they found that s 211 of the Native Title Act did not apply. It remitted the matter for re-sentencing. 

The High Court

The High Court held unanimously that the applicants' native title right had not been extinguished. This was because, for the reasons given in Akiba v The Commonwealth [2013] HCA 33, the Fisheries Act regulated but was not inconsistent with the continued enjoyment of native title rights. The Court further determined that an exemption under s 115 of the Fisheries Management Act was a "licence, permit or other instrument". The consequence, provided by s 211 of the Native Title Act, was that s 72(2)(c) of the Fisheries Management Act did not prohibit the applicants from gathering or fishing for undersize abalone as native title holders, where they did so to satisfy their non-commercial communal needs and in exercise of their native title rights and interests.

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