FEDERAL COURT OF AUSTRALIA
Alcock v Commonwealth of Australia [2013] FCAFC 36
Citation: Alcock v Commonwealth of Australia [2013] FCAFC 36 Appeal from: Alcock v Commonwealth of Australia (2012) 203 FCR 114 Parties: ROBERT JAMES ALCOCK v COMMONWEALTH OF AUSTRALIA and THE STATE OF VICTORIA File number: VID 406 of 2012 Judges: RARES, BUCHANAN AND FOSTER JJ Date of judgment: 8 April 2013 Catchwords: CONSTITUTIONAL LAW – abalone fishing licence – whether variation of rights under licence was acquisition of property – whether Commonwealth legislation inconsistent with Victorian legislation – private statutory right to take abalone subject to abrogation or regulation by a competent legislature – Harper v Minister for Sea Fisheries Legislation: Coastal Waters (State Powers) Act 1980 (Cth)
Coastal Waters (State Title) Act 1980 (Cth)
Constitution of the Commonwealth of Australia
Fisheries Act 1995 (Vic)
Fisheries Management Act 1991 (Cth)
Fisheries Regulation 1998 (Vic)
Judiciary Act 1903 (Cth)
National Parks Act 1975 (Vic)
National Parks (Marine National Parks and Marine Sanctuaries) Act 2002 (Vic)
Seas and Submerged Lands Act 1973 (Cth)Cases cited: Alcock v Commonwealth of Australia [2009] FCA 820
Alcock v Commonwealth of Australia [2009] FCA 1478
Alcock v Commonwealth of Australia [2011] FCA 392
Alcock v Commonwealth of Australia (2012) 203 FCR 114
Alcock v Commonwealth of Australia [2012] FCA 870
Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242
Commissioner of Taxation v Murry (1998) 193 CLR 605
Harper v Minister for Sea Fisheries (1989) 168 CLR 314
ICM Agriculture v Commonwealth of Australia (2009) 240 CLR 140
New South Wales v Commonwealth of Australia (1975) 135 CLR 337
Northern Territory of Australia v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24
Pearce v Florenca (1976) 135 CLR 507
Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340
Robinson v Western Australian Museum (1977) 138 CLR 283
Spencer v Commonwealth of Australia (2010) 241 CLR 118Date of hearing: 11, 12 February 2013 Date of last submissions: 1 February 2013 Place: Sydney (via video link to Melbourne) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 86 Counsel for the Appellant: Mr P E King Solicitor for the Appellant: Waters Lawyers Counsel for the First Respondent: Mr P Gray SC and Mr L Brown Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr G A Hill Solicitor for the Second Respondent: Victorian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 406 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: ROBERT JAMES ALCOCK
AppellantAND: COMMONWEALTH OF AUSTRALIA
First RespondentTHE STATE OF VICTORIA
Second Respondent
JUDGES:
RARES, BUCHANAN AND FOSTER JJ
DATE OF ORDER:
8 APRIL 2013
WHERE MADE:
SYDNEY (VIA VIDEO LINK TO MELBOURNE)
THE COURT ORDERS THAT:
1.The appeal is dismissed with costs.
2.The application filed on 16 June 2008 and the whole of the proceedings instituted thereby are dismissed with costs.
Note:Entry of orders is dealt with in Rule…
Continue reading Alcock v Commonwealth
Sign in free to access the full text
Details
- AGLC
- Alcock v Commonwealth of Australia [2013] FCAFC 36
- Case
- [2013] FCAFC 36
- Decision Date
CaseChat Overview and Summary
Alcock v Commonwealth involved a dispute concerning the rights of an abalone fishing licence under Victorian law, and whether these rights could be varied by Commonwealth legislation. The case was heard in the Federal Court of Australia. The appellant, Mr Alcock, argued that changes to his abalone fishing licence constituted an acquisition of property under s 51(xxxi) of the Constitution, and that the Commonwealth legislation was inconsistent with the Victorian legislation. The legal issues before the court included whether the variation of rights under the licence amounted to an acquisition of property and whether the Commonwealth legislation was inconsistent with the Victorian legislation.
The court considered the nature of the private statutory right to take abalone, which was subject to abrogation or regulation by a competent legislature, as established in Harper v Minister for Sea Fisheries. The court held that the Commonwealth had not diminished the power of the State Parliaments to pass extra-territorial legislation, and that the Commonwealth had effectively passed title and property to Victoria under the State Title Act. The court further held that the Commonwealth had endorsed the arrangement whereby management of the fishery itself would occur under Victorian laws. The court found that the appellant had not shown any error in the primary judge's answers to the questions posed, and that the appellant had no arguable claim for relief in the proceedings commenced on 16 June 2008.
The appeal was dismissed with costs, and the application filed on 16 June 2008 and the whole of the proceedings instituted thereby were also dismissed with costs. The court's decision was based on the principle that the Commonwealth had not acted inconsistently with the Victorian legislation, and that the appellant had no arguable claim for relief. The court's orders were made pursuant to Rule 39.32 of the Federal Court Rules 2011.
The court considered the nature of the private statutory right to take abalone, which was subject to abrogation or regulation by a competent legislature, as established in Harper v Minister for Sea Fisheries. The court held that the Commonwealth had not diminished the power of the State Parliaments to pass extra-territorial legislation, and that the Commonwealth had effectively passed title and property to Victoria under the State Title Act. The court further held that the Commonwealth had endorsed the arrangement whereby management of the fishery itself would occur under Victorian laws. The court found that the appellant had not shown any error in the primary judge's answers to the questions posed, and that the appellant had no arguable claim for relief in the proceedings commenced on 16 June 2008.
The appeal was dismissed with costs, and the application filed on 16 June 2008 and the whole of the proceedings instituted thereby were also dismissed with costs. The court's decision was based on the principle that the Commonwealth had not acted inconsistently with the Victorian legislation, and that the appellant had no arguable claim for relief. The court's orders were made pursuant to Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The appeal is dismissed with costs.
2. The application filed on 16 June 2008 and the whole of the proceedings instituted thereby are dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The case based on s 109 of the Constitution can fare no better. The assertion of Commonwealth sovereignty in the SSLA has been repeatedly held by the High Court not to diminish the power of the State Parliaments to pass extra-territorial legislation (e.g. Pearce v Florenca; Robinson v Western Australian Museum (1977) 138 CLR 283, Port MacDonnell). In any event, the Commonwealth withdrew when it passed title and property to Victoria under the State Title Act, when it gave legislative authority under the Coastal Powers Act and when it endorsed the arrangement whereby management of the fishery itself would occur under Victorian laws.Conclusion It has not been shown that the primary judge made any error in answering the questions posed by Ryan J. On the contrary, in our view those answers were correct. The consequence is that the appellant has no arguable claim for relief in the proceedings commenced on 16 June 2008. The appeal should be dismissed with costs. The proceedings below should be finalised by dismissing the application filed on 16 June 2008, also with costs.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.