Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development

The Supreme Court of New South Wales, constituted by Bathurst CJ, Beazley P, and Basten JA, considered a challenge brought by Mr Lavender against the Director of Fisheries Compliance, Department of Industry Skills and Regional Development. The dispute concerned the validity of the *Fisheries Management Act 1994* (NSW) and the *Fisheries Management (Abalone Share Management Plan) Regulation 2000* (NSW), specifically their application to activities occurring outside the territorial limits of New South Wales.

The court was required to determine whether the impugned New South Wales legislation possessed extraterritorial operation and, if so, whether this operation was constitutionally permissible. Central to the determination was whether the legislation was invalid on the grounds of inconsistency with Commonwealth legislation, pursuant to section 109 of the *Commonwealth Constitution*. Furthermore, the court had to consider whether the *Fisheries Management (Abalone Share Management Plan) Regulation 2000* (NSW) effected an alteration of the limits of New South Wales, contrary to section 123 of the *Commonwealth Constitution*.

The court reasoned that the *Fisheries Management Act 1994* (NSW) and the *Fisheries Management (Abalone Share Management Plan) Regulation 2000* (NSW) did not purport to operate extraterritorially in a manner that would render them invalid. It was held that the legislation applied to conduct within the jurisdiction of New South Wales, and any incidental extraterritorial effect was not sufficient to attract constitutional invalidity. The court found no inconsistency with Commonwealth legislation under section 109, nor did it find that the Regulation altered the limits of New South Wales as prohibited by section 123. Consequently, the summons was dismissed with costs.