ADMINISTRATIVE LAW – Judicial review – Validity of fisheries notice issued under Fisheries Act 1995 – Whether power to issue notice exercised for improper purpose – Whether exercise of power reasonably proportionate to relevant statutory objective – Whether compliance with statutory consultation principles a condition of validity – Whether notice an impermissible exercise of State’s power – Notice lawfully issued to address concerns regarding management and use of fisheries – Lawful exercise of State legislative power with extra-territorial effect – Compliance with consultation principles not a condition of validity – Notice not reasonably proportionate to relevant statutory objective – Application for leave to appeal allowed – Appeal allowed.
Consideration — the legislative character of a fisheries notice
Proposed ground 1 — whether the 2023 Notice was made for an improper purpose
Applicant’s submissions
Respondents’ submissions
Consideration — ground 1 (improper purpose)
Ground 2 — whether the judge erred by failing to consider properly whether the 2023 Notice was capable of being considered reasonably proportionate to the objectives in s 3 of the Fisheries Act
Applicant’s submissions
Respondents’ submissions
Consideration — ground 2 (not reasonably proportionate to statutory objective)
Ground 3 — whether the judge erred in holding that a breach of the consultation principles in s 3A of the Fisheries Act is unenforceable and in not holding that it was a failure of consultation such that the decision was invalid
Applicant’s…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
McAdam v Victorian Fisheries Authority [2025] VSCA 186
Case
[2025] VSCA 186
Decision Date
CaseChat Overview and Summary
The case of McAdam v Victorian Fisheries Authority involved a challenge to the validity of a fisheries notice issued by the Victorian Fisheries Authority under the Fisheries Act 1995. The applicant, McAdam, sought judicial review of the notice, arguing it was issued for an improper purpose, was not reasonably proportionate to the statutory objectives, and that compliance with statutory consultation principles was a condition of its validity. The case was heard by the Supreme Court of Victoria, which had to determine the validity of the notice and the extent to which the statutory consultation principles applied.
The court had to decide whether the Fisheries Authority's power to issue the notice was exercised for an improper purpose, whether the exercise of that power was reasonably proportionate to the relevant statutory objectives, and whether compliance with statutory consultation principles was a condition of the notice's validity. Additionally, the court examined whether the notice represented an impermissible exercise of the State's power, given its extra-territorial effect. The court's analysis involved interpreting the Fisheries Act 1995, examining the legislative intent, and assessing the proportionality and reasonableness of the notice in light of the statutory objectives.
The Supreme Court held that the notice was a lawful exercise of the State's legislative power, despite its extra-territorial effect. The court found that compliance with statutory consultation principles was not a condition of the notice's validity and that the notice was issued to address concerns regarding the management and use of fisheries. However, the court determined that the notice was not reasonably proportionate to the relevant statutory objective. Consequently, the court allowed the application for leave to appeal and granted the appeal, setting aside the notice issued by the Victorian Fisheries Authority.
The final orders of the court included setting aside the fisheries notice issued by the Victorian Fisheries Authority, allowing the application for leave to appeal, and granting the appeal on the grounds that the notice was not reasonably proportionate to the relevant statutory objective. The court's decision highlighted the importance of proportionality in administrative actions and the need for careful consideration of legislative intent and statutory objectives in the issuance of regulatory notices.