Legal Attempts to End the WA Shark Cull Fail

Friday 7 March 2014 @ 9.44 a.m. | Judiciary, Legal Profession & Procedure | Legal Research

In an "in chambers" decision (Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 (5 March 20914)) his Honour Justice Edelman of the Supreme Court Western Australian (WA) has rejected an application by activist anti-whaling group Sea Shepherd for an injunction to halt the controversial WA Government shark cull policy.

Background

As we have previously posted, after a growing number of fatal shark attacks in recent years the WA government released a controversial shark culling plan that it is reported will see large sharks removed and destroyed from what the WA Government has designated as “safe zones”. The plan is controversial because it plans to use drum lines (baited hooks attached to drums) monitored daily by commercial fisherman to hunt sharks larger than three metres. The plan is also controversial because nationally threatened and legally protected species like the Great White Shark are targeted and conservation groups have vowed to have it revoked.

The Case

Sea Shepherd Australia and Ms Burden (the applicants) sought judicial review of the WA government's decisions relating to it policy known as the "Shark Hazard Mitigation Strategy" (the policy). A strategy which involved setting baited drum lines in the Metropolitan Coastal Area and the South West Coastal Area to target three species of shark all "totally protected fish" under the Fish Resources Management Act 1994 (WA) (the FRM Act).

The State of Western Australia, the Premier of WA, and the Minister for Fisheries (the respondents) made decisions in relation to the policy by relying upon two "Exemption Instruments, numbered 2375 and 2376" purporting to exempt various persons from the operation of the FRM Act. The exemptions covered the period from 21 January 2014 until 30 April 2014 and were not published in the WA Government Gazette.

The applicants argued that the Exemption Instruments were "instrument[s], made under any written law and having legislative effect" and as such were required to be published in the WA Government Gazette. The respondents denied the contention that the Exemption Instruments had "legislative effect" and asserted that without legislative effect, their publication in the WA Government Gazette was not required.

The Issues

In all, three matters arose for the court's consideration. Two issues of them related to statutory interpretation as follows:

  1. A question as to whether exemption instruments made by the Minister under the FRM Act must be published in the WA Government Gazette which required consideration of the meaning of the term "instrument ... having legislative effect" in the Interpretation Act 1984 (WA); and
  2. A second question relating to inconsistency as in, whether a requirement by s 41 of the Interpretation Act 1984 (WA) for publication in the WA Government Gazette of exemption instruments made under s 7 of the FRM Act was inconsistent with the terms and operation of the FRM Act.

The third matter was an issue with respect to the constitution and the separation of powers, the distinction between legislative power and executive power.

The Result

In respect of the first issue, His Honour found that the exemption instruments did not have legislative effect. His Honour considered the meaning of "subsidiary legislation" in section 5 of the Interpretation Act 1984 and at paragraph [81] of his decision stated:

". . . At the end of the day, the question of whether an instrument has legislative effect is to be answered by considering whether the instrument bears sufficient resemblance to legislation, having regard to those qualities usually present in legislation. The more legislative qualities that are present in the instrument the more it is likely to have a legislative effect."

As to whether the exemption instruments made under the FRM Act now under consideration had legislative effect at paragraph [82] His Honour said:

". . . exemptions under the Fish Resources Management Act do not have legislative effect. This is because there is an incongruity which arises if exemptions are instruments of legislative effect. Section 47 of the Interpretation Act provides that 'any act done under subsidiary legislation shall be deemed to be done under the written law under which the subsidiary legislation was made'. The incongruity which arises is between (i) acts done under an exemption from the operation of the Fish Resources Management Act, and (ii) those same acts being deemed to be done under the Fish Resources Management Act."

In respect of the second issue, as to whether the FRM Act impliedly exclude a requirement for publication in Gazette, His Honour found it "not strictly necessary to consider this sub issue" (paragraph [99]) but proceeded to do so because:

(i) a number of the matters relied upon by senior counsel for the respondents for the previous sub issue are matters which are better understood as concerned with this sub issue; and

(ii) those matters were fully argued and I should express my conclusion in relation to them.

His Honour expressed the view at paragraph [129] that:

". . . Each of these matters shows a careful consideration of matters, whether subsidiary legislation or not, which required Gazettal and provision for those matters to be published in the Gazette. Again, the absence of such a provision in relation to exemptions is yet another indication of inconsistency with s 41 of the Interpretation Act if s 7 exemptions were held to have legislative effect (requiring publication in the Gazette)."

In respect of the third issue, His Honour returned to the proposition that the question of whether an instrument has legislative effect is to be answered by considering whether the instrument bears sufficient resemblance to legislation, saying also at paragraph [51]:

"In the absence of any clear guidance within the Interpretation Act concerning the meaning of 'instrument, made under any written law and having legislative effect' it is of assistance to turn to other contexts and general law approaches relevant to 'legislative effect'. The notion of a dividing line between instruments which have legislative effect and those which have administrative effect was not a new concept when the Interpretation Act was enacted. The concept of separation of powers has a long history. That concept informed decisions involving antecedent Commonwealth legislation many years before the Interpretation Act. And it also informed decisions concerning the availability of judicial review which have, in turn, been relied upon by the Full Court in the interpretation of s 5 of the Interpretation Act in this State. Although this development of the concept of 'legislative effect' has the nature of the common law case by case decision making, as French CJ has observed, it 'is also a characteristic of the application by courts of broadly stated statutory provisions, the interpretation, fleshing out, and application of which the legislature has left to the courts'."

Following from the above, His Honour ruled that there was no reasonable grounds for a full hearing, and denied the request for an interim injunction to suspend 60 drum lines in place around the WA state coastline.

Reaction

The West Australian reports Sea Shepherd Australia managing director Jeff Hansen as saying:

"From an ecological and public safety perspective, Sea Shepherd Australia is very concerned about these drum lines remaining off the Perth metropolitan and southwest beaches, . . . Sea Shepherd Australia will continue our work to save the sharks of Western Australia, exploring all options available to us. We will not cease in our efforts until these cruel, barbaric, unsafe and environmentally unsustainable drum lines are removed permanently."

If Sea Shepherd proves to be as committed to this cause as it has been to its other causes then it is likely there is more to come and that even more legal actions will follow.

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