Australian Shark Cull To Continue

I reported yesterday, here, that Sea Shepherd and Ms. Burden (“Sea Shepherd”) had been seeking an injunction against the State of Western Australia (“WA”) in relation to the ongoing shark cull by means of a Shark Drum Line Program.

Today, the Supreme Court of Western Australia sided with WA and dismissed the application for an injunction. The full decision can be read here.

The Court identified the primary issue as follows:

– Are the Exemption Instruments which are made under s 7(2)(c) of the Fish Resources Management Act (WA) ‘subsidiary legislation’ for the purposes of s 41 of the Interpretation Act 1984 (WA) with the effect that the Exemption Instruments are invalid or inoperative?

WA had made two exemptions (the “Exemption Instruments”) pursuant to section 7(2)(c) of the FRM to allow for the shark cull to occur. Of course, without these exemptions, the taking (meaning “killing”) of various species of shark would be prohibited pursuant to the FRM.

In order to address the primary issue, the Court identified a series of five sub-issues, as follows:

33 First, what is meant by ‘instruments … having legislative effect’ in the definition of ‘subsidiary legislation’ in s 5, and applied to s 41, of the Interpretation Act 1984 (WA)?

34 Secondly, can instruments which exempt individuals or groups of individuals from the operation of an Act have ‘legislative effect’ so that they fall within the definition of ‘subsidiary legislation’ in s 5 of the Interpretation Act?

35 Thirdly, does the Fish Resources Management Act impliedly exclude the operation of s 41 of the Interpretation Act in relation to exemption instruments under s 7?

36 Fourthly, do the Exemption Instruments in this case have legislative effect?

37 Fifthly, if s 41 of the Interpretation Act applies, and if the Exemption Instruments have legislative effect, then does the failure to publish those Exemption Instruments in the Gazette mean that they are invalid or inoperative?

As a short backgrounder, section 41 of the Interpretation Act requires that a written law that confers power to make subsidiary legislation shall be published in the Gazette. The “Gazette” is reference to the Western Australian Government Gazette, and is operated by WA. It exists, essentially, as a tool to communicate legislative changes to the public.

It was argued, by Sea Shepherd, that the Exemption Instruments in this case had legislative effect and that WA failed to publish the Exemption Instruments in the Gazette.

As such, much of the focus of legal argument in this matter was based upon the second sub-issue. Sea Shepherd argued that every exemption to the FRM is legislative in effect because every exemption operates to change the law. However, the Court disagreed.

Further, the Court found that even if the Exemption Instruments made by WA were legislative in effect, section 41 of the Interpretation Act is impliedly excluded by the FRM such that publication of the Exemption Instruments in the Gazette is not required.

Sea Shepherd has not yet announced what its next move will be, simply stating that it will continue to work to save the sharks of Western Australia, exploring all options available to it.

By James Early.