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Balancing Competing Interests in the Criminal Justice System: Aboriginal Fishing Rights in Coastal New South Wales


The Hon Justice Nicola Pain and Georgia Pick

Australian state and territory fisheries laws create offences to protect native fish stocks and biodiversity. These laws also, to varying extents, recognise the importance of cultural fishing to Aboriginal people. Aboriginal people who believe they are practising cultural fishing may nevertheless be prosecuted for breaching these laws. This article explores the adequacy of legal protection of cultural fishing under the Fisheries Management Act 1994 (NSW) (‘FM Act (NSW)’). The authors examine the limits of the defence of native title for Aboriginal defendants charged with offences under the FM Act (NSW) and legislation in other jurisdictions. They conclude that the FM Act (NSW) should be amended to include a defence of cultural fishing. The exercise of discretion by the Department of Primary Fisheries (‘DPI’) in charging Aboriginal fishers is also considered.

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(2020) 43(4) UNSWLJ 1383: