Elliott v Minister administering Fisheries Management Act 1994

The appellant, Mr Elliott, challenged the validity of several legislative instruments made under the *Fisheries Management Act 1994* (NSW), including the Fisheries Management Legislation Amendment (Quota Shares) Regulation 2017 and the Fisheries Management Legislation Amendment (Quota Management) Regulation 2017, as well as the Fisheries Management (Allocation Formula for Issuing Quota Shares) Notice 2017 and the Fisheries Management (Issue of Quota Shares) Instrument 2017. The dispute concerned the lawfulness of a Government-run Subsidised Share Trading Market established by these instruments, which Mr Elliott contended curtailed his previously enjoyed privileges and was unauthorised. The matter came before the Court of Appeal of New South Wales.

The primary legal issues before the Court were whether the impugned regulations and instruments were validly made under the powers conferred by the *Fisheries Management Act 1994* (NSW) and its associated regulations. Specifically, the Court had to determine if the regulation-making power was broad enough to authorise the creation of the Subsidised Share Trading Market, and whether the instruments themselves were authorised by the parent Act and the regulations. The Court also considered whether the instruments were arbitrary or capricious, and whether the principle of legality, particularly the "clear statement principle," required a narrower interpretation of the regulation-making power. Furthermore, the Court examined the effect of regulations promulgated prior to the commencement of a relevant provision in the parent Act, in light of section 26 of the *Interpretation Act 1987* (NSW).

The Court of Appeal applied principles of statutory interpretation, including the principle of legality, to assess the validity of the delegated legislation. It considered the meaning of phrases such as "criteria provided for by the management plan" and "of a kind authorised by the plan" within the context of the *Fisheries Management Act 1994* (NSW). The Court found that the regulation-making power was sufficiently broad to encompass the establishment of the Subsidised Share Trading Market. It also determined that the instruments were authorised by the parent Act and the regulations, and that their effect was not arbitrary or capricious. The Court concluded that section 26 of the *Interpretation Act 1987* (NSW) did not render the regulations invalid.

The Court of Appeal granted the appellant leave to appeal but ultimately dismissed the appeal, ordering that the appellant pay the respondents' costs.