McAdam v Victorian Fisheries Authority

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2025 0003

PHILLIP MCADAM	Applicant
v
VICTORIAN FISHERIES AUTHORITY (AND OTHERS ACCORDING TO THE SCHEDULE)	Respondents

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JUDGES:	McLEISH, LYONS and KENNY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2025
DATE OF JUDGMENT:	19 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 186
JUDGMENT APPEALED FROM:	McAdam v Victorian Fisheries Authority [2024] VSC 702 (K Judd J)

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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.

Fisheries Act 1995, ss 3, 3A, 11(4), 36, 38, 52, 54, 68A, 114, 152; Fisheries Regulations 2019, regs 144, 234–240; Coastal Waters (State Powers) Act 1980 (Cth) ss 5, 7; Seas and Submerged Lands Act 1973 (Cth) ss 6, 11.

R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170; [1981] HCA 74; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565; [1993] FCA 522; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; RandwickCity Council v Minister for the Environment (1998) 54 ALD 682; Babington v Commonwealth (2016) 240 FCR 495; [2016] FCAFC 45; Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development (2018) 336 FLR 37; [2018] NSWCA 174; Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340; [1989] HCA 49.

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Counsel
Applicant:		Mr PE King
Respondents:		Ms S Gory
Solicitors
Applicant:	Colin Biggers & Paisley
Respondents:	Victorian Government Solicitor

TABLE OF CONTENTS

The parties

Background

The 2023 Notice

The statutory context

The judicial review proceeding

The judge’s decision

Application for leave to appeal

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 submissions

Respondents’ submissions

Consideration — ground 3 (inadequacy of consultation)

Ground 4 — whether the judge erred in finding that the 2023 Notice did not impermissibly create an ‘area of exclusion’ outside the limits of Victoria

Applicant’s submissions

Respondents’ submissions

Consideration — ground 4 (impermissible exercise of State power)

Grounds 5, 6, 7, 8 and 9 — whether judge’s reasons adequate (including as to findings as to sufficiency of evidence and availability of inferences); whether proper consideration

Conclusion

SCHEDULE OF PARTIES

MCLEISH JA
LYONS JA
KENNY JA:

The parties

The applicant, Mr McAdam, is a commercial fisher of more than 45 years’ standing in the Victorian fishing industry. He holds an Ocean Fishery Access Licence (‘OFAL’) — a class of access licence created pursuant to s 38 of the Fisheries Act 1995 (the ‘Fisheries Act’) and issued under s 51. An OFAL licence holder is also subject to the conditions imposed pursuant to divs 20 and 21 of the Fisheries Regulations 2019 (the ‘Fisheries Regulations’).0F[1] Prior to the issue of the Fisheries (Portland Bay Commercial Fishery) Notice 2023 (the ‘2023 Notice’) challenged in this case, the OFAL permitted Mr McAdam to undertake commercial net fishing in specified Victorian waters, without any relevant restriction. The permission granted by the OFAL was limited by the 2023 Notice.
[1]McAdam v Victoria Fisheries Authority [2024] VSC 702, [2] (K Judd J) (‘Reasons’).
Mr McAdam seeks leave to appeal from orders of a judge in the Trial Division dismissing the judicial review proceeding instituted by him, in which he sought to impugn the validity of the 2023 Notice. For the reasons set out below, we would grant him leave to appeal and uphold the appeal on the ground that the 2023 Notice is not capable of being reasonably considered appropriate and adapted to achieve its statutory purpose, which was to provide for the management, development and use of Victoria’s fisheries. As explained hereafter, the 2023 Notice is not reasonably proportionate to the statutory purpose it was supposed to serve, being that set out in s 3(a) of the Fisheries Act.
In 2023, Mr McAdam transferred his fishing operations from the Port Phillip Bay area to the Portland Bay area after the State Government decided to phase out commercial netting in Port Phillip Bay in 2022.1F[2] Prior to the issue of the 2023 Notice, he used mesh nets, seine nets and longlines in his commercial fishing operation in Portland Bay.
[2]Ibid [22].
The first respondent, the Victorian Fisheries Authority (the ‘Authority’) is established under s 6 of the Victorian Fisheries Authority Act 2016 (the ‘VFA Act’). Under the VFA Act, the objectives of the Authority include promoting sustainability and responsibility in fishing in Victoria, supporting the development of recreational and commercial fishing and aquaculture, and optimising the social, cultural and economic benefits of the fisheries sectors.2F[3] Besides administering schemes for issuing licences and permits, and allocating quotas under the Fisheries Act, the Authority’s statutory functions include informing and educating the fisheries sectors and the public about rights and obligations in relation to fishing, and supporting the development of sustainability and responsibility in relation to recreational and commercial fishing activities.3F[4]
[3]Victorian Fisheries Authority Act 2016, s 7 (‘VFA Act’). The ‘fisheries sectors’ are the recreational, commercial and Aboriginal fishing sectors and the aquaculture sectors (which are not further defined): s 3.
[4]Ibid s 8.
The State of Victoria and the Minister for Outdoor Recreation (the ‘Minister’) are the second and third respondents. The Minister is responsible for the administration of the Fisheries Act.

Background

Before 2023, there was an informal agreement between recreational and commercial fishers in the Portland Bay area, which restricted the use of netting, including mesh nets, by local commercial fishers in Portland Bay (the ‘informal agreement’).4F[5] By mid-2023, however, this had ceased to be an effective means of accommodating the interests of commercial and recreational fishers. The primary judge found that:
By mid-2023, the [Authority] had received complaints from local community members about [Mr McAdam’s] fishing activities. Part of the complaints were to the effect that [Mr McAdam] was conducting fishing activities in breach of the informal agreement, although it was accepted by the defendants that [he] had not, in fact, breached the informal agreement. The [Authority] also received information that the issue had been escalating with reports of conflict at the wharf and growing social media interest as well as letters to the [Authority] and the Minister ...5F[6]
[5]Reasons, [24]. The judge noted that this agreement ‘became embedded in a Code of Practice for Commercial and Recreational Fishing in Portland Bay and was subsequently supported by reg 144 of the Fisheries Regulations 2019’. The parties and the local community referred to the agreement as ‘the informal agreement or the gentleman’s agreement’: see Reasons, n 2.
[6]Reasons, [25].
With reference to community discontent, the judge specifically noted the evidence of the Authority’s Director of Fisheries Management, Mr Luke O’Sullivan, that:
... there is a social licence element in relation to netting which, I guess in recent times the general public has not always looked favourably upon and Mr McAdam’s activities in Portland Bay were quite visible from shoreline. Now, a lot of that would possibly be in relation to perception rather than actual activities, I acknowledge that, but Mr McAdam’s activity in that area in relation to netting was highly emotive to the local community.6F[7]
[7]Ibid [26].
In July 2023, the Authority unsuccessfully attempted to develop a Code of Conduct ‘to address community concerns’. Her Honour explained that Seafood Industry Victoria (‘SIV’), the peak body representing the interests of commercial fishers, favoured a Code of Conduct, while VRFish, the peak body representing recreational fishers, favoured an enforceable instrument.7F[8] Her Honour found that, absent agreement between the peak bodies, the Authority determined ‘to proceed by way of consultation for the purposes of issuing a fisheries notice’.8F[9] In this Court, the parties accepted that the Authority’s Chief Executive Officer (the ‘CEO’) had the power to issue a fisheries notice under s 152 of the Fisheries Act pursuant to an instrument of delegation dated 24 August 2022.9F[10]
[8]Ibid [27].
[9]Ibid [28].
[10]This delegation was made pursuant to s 11 of the Conservation, Forests and Lands Act 1987. The judge rejected a challenge to the validity of the delegation: Reasons, [37]–[49]. The applicant did not dispute this part of the judge’s decision in this Court.
The consultation plan prepared by the Authority provided for a two-week consultation period, which was to include the provision of information to, and consultation with, representative groups10F[11] and any holder of an OFAL or Victoria Inshore Trawl Licence. The results of the consultation were to be published on the Authority’s website, unless the submission’s author requested the contrary.11F[12]
[11]For example, SIV, VRFish and the Non-Netting Portland Group: Reasons, [29(b)].
[12]Reasons, [29].
In conformity with the consultation plan, the Authority sent the proposed fisheries notice (the ‘draft notice’) to stakeholders, including Mr McAdam. A letter accompanying the draft notice stated that:
The proposed controls seek to resolve recent concerns raised by the community regarding changed commercial fishing practices in Portland Bay. The notice seeks to ensure that we continue to see all sectors sharing in this precious resource.
The proposed notice has been drafted to:
·prohibit the use of mesh nets, trawl nets, seine nets and long lines, in specified waters of Portland Bay at all times.
·set a catch limit [of 50 kg] on the take of yellowtail kingfish in specified waters of Portland Bay by [OFAL] and Victorian Inshore Trawl licence holders, to prevent targeting of this species.
Hook and line methods, excluding long lines, would continue to be permitted in this area. This notice would apply to all commercial fishers who are authorised to use mesh nets, trawl nets, seine nets and long lines in the specified area. Other non-net commercial fishing, including abalone, rocklobster [sic], wrasse and pipi fishing would not be impacted by this notice.12F[13]
[13]Ibid [30].
The Authority received more than 300 submissions in response.13F[14] The applicant objected to the proposed draft notice under cover of a letter from his solicitor, referring to the impact on his own fishing operations, limitations on the commercial supply of seafood to the Victorian public, and the absence of a proper basis to make a fisheries notice.14F[15]
[14]Ibid [31].
[15]Ibid.
At the conclusion of consultation, a decision brief (the ‘decision brief’) was prepared for the CEO of the Authority, Mr Travis Dowling (as the Minister’s delegate and therefore the proposed decision-maker).15F[16] It recommended a fisheries notice to the effect of the 2023 Notice. The decision brief stated that:
a.The purpose of the [2023 Notice] is to prohibit the use of mesh nets, trawl nets and seine nets in specified waters of Portland Bay at all times and prohibit the take of yellowtail kingfish. It also reduces the number of hooks authorised for use of a longline from 200 to 50 hooks.
b.It is consistent with the draft released for consultation with the exception of the allowance of short longlines (50 hooks only) and the prohibition on the take of kingfish.
c. If approved, it will commence on 16 October 2023 and will be revoked unless remade on 16 October 2024.
d.It has no impact on the recreational or cultural fishing rules in the Bay. It has a minor impact on historical non-net commercial fishing in the bay, with the reduced number of hooks on a longline.
[16]See n 10 above.
The decision brief was accompanied by the submissions received in the course of the consultation.16F[17]
[17]Reasons, [30].
The brief informed Mr Dowling that 255 of the submissions received by the Authority ‘provided unequivocal support’ for the draft notice. Under the heading ‘Support for the proposed notice’, the decision brief stated:
Some submissions expanded on their support, highlighting:
·the unique nature of Portland Bay, including the importance of the area for whale migration and calving and risks of whale entanglement in nets;
·the tourism value of recreational fishing to the area, and alternative commercial fishing opportunities across Victoria;
·the longstanding arrangements in Portland Bay that [have] allowed recreational and commercial fishing to operate without conflict following the voluntary removal of netting and restricted commercial fishing periods;
·concerns for the sustainability of the fisheries resource if commercial netting were to increase in the bay area;
·the importance of retaining the value of Portland Bay as a source for supporting a wide range of endemic fish species;
·personal connections to the site, either as residents, tourists or as commercial fishers; and
·request for a larger exclusion zone (to include Lawrence rocks).
The decision brief stated that the 52 submissions in opposition largely represented the views of commercial fishers ‘who felt impacted by the change, regardless of whether they had fished the area previously or not’. The decision brief stated that ‘their key concerns related to’:
·the size of the exclusion zone and the removal of long line fishing
·the further limitations on the supply of Victorian seafood for non-fishing consumers
·impact of the ban on the reputation of Victoria’s wild-catch sector.
·the lack of scientific evidence to support the ban.
Under the heading ‘Summary of final decision’ the brief noted:
·The Portland Bay area is important to the Victorian community, providing significant socioeconomic and health benefits to both the local community and to visitors to the region.
·Both commercial and recreational fishing contribute to this value and have been operating in harmony for many years. Commercially caught rock lobster, abalone and line caught fish such as wrasse and snapper have been providing economic benefits to the region for decades, alongside the high value provided by local and visiting recreational fishers.
·Commercial catch in the Portland area has historically been quite small, with an average of 400kg of fin fish being caught each year by the [OFAL] holders. This has been increasing in the last 12 months due to increased netting activity.
·In 2023, catch by nets of a variety of fin fish species has been increasing because of the movement of a commercial fisher into the area. Whilst the activity is not in breach of any law, it is not consistent with the long-standing arrangement between the commercial and recreational sectors in the Portland area. Because of the large number of licences that can fish along the Victorian coast, there is concern that netting operations may continue to expand in this area.
·The final Fisheries Notice will remove the net activity from the area but allow the continuation of a small non-net fishery in the region, to continue to allow the supply of fish into the local community. This notice will have minimal impact on the traditional commercial fishing that has been undertaken in the Portland bay area.
·Once approved, the Notice along with an Explanatory Statement ... will be provided to key stakeholders and will be publicly available on [the Authority’s] website.
The decision brief recommended that Mr Dowling, as the decision-maker, issue a fisheries notice for Portland Bay prohibiting the use of mesh nets, trawl nets and seine nets, setting a zero catch limit for yellowtail kingfish for commercial fishers, and limiting the use of more than one longline at any one time as well as the number of hooks on a longline to 50. These terms differed from the draft notice circulated during the consultation. The significance of these differences is discussed below.
The explanatory statement accompanying the decision brief referred to the consultation and summarised the effect of the 2023 Notice. It concluded:
[t]he new arrangement will help to resolve conflict between commercial netters and recreational fishers in the highly valued Portland Bay area.
On 12 October 2023, Mr Dowling made the decision to issue the draft notice and, in consequence, the 2023 Notice came into effect on 16 October 2023.

The 2023 Notice

In summary, the effect of the 2023 Notice (which stated that it was made under ss 152, 68A and 114 of the Fisheries Act) was to prevent certain commercial fishing activities that had previously been permitted by holders of an OFAL, including Mr McAdam. Amongst other things, pursuant to s 114 of the Fisheries Act, cls 6 and 7 of the 2023 Notice prohibited the use in Portland Bay of mesh, trawl and seine nets and longlines with more than 50 hooks. For specified commercial fishers, which included OFAL holders, the 2023 Notice also fixed the daily catch limit in respect of yellowtail kingfish, for the purpose of s 68A, at zero.17F[18]
[18]2023 Notice, cl 8.
The 2023 Notice differed from the draft notice circulated in the consultation process in several ways. The 2023 Notice stipulated a zero catch limit for yellowtail kingfish, as opposed to a 50 kg limit contemplated in the draft notice. The 2023 Notice also allowed the use of a longline with up to 50 hooks, as opposed to prohibiting longline use altogether, as proposed in the draft notice. As already indicated, the effect of the 2023 Notice was to prevent certain commercial fishing activities previously permitted by an OFAL holder.18F[19]
[19]Pursuant to s 152(3) of the Fisheries Act, a fisheries notice prevails over a licence such as an OFAL to the extent of any inconsistency.
The 2023 Notice was made in the following form:
FISHERIES (PORTLAND BAY COMMERCIAL FISHERY) NOTICE 2023
(1)Title
This Notice may be cited as the Fisheries (Portland Bay Commercial Fishery) Notice 2023.
(2)Objectives
The objectives of this Notice are to:
i.prohibit the use of mesh nets, trawl nets and seine nets in specified waters of Portland Bay;
ii.restrict the use of longlines in specified waters of Portland Bay;
iii.prohibit the take of yellowtail kingfish in specified waters of Portland Bay by [OFAL] holders and Trawl (Inshore) Fishery Access Licence holders.
(3)Authorising provisions
This Notice is made under sections 68A, 114 and 152 of the Act.
(4)Commencement
This Notice comes into operation on 16 October 2023.
(5)Definitions
In this Fisheries Notice –
‘specified commercial fishers’ means holders of a Trawl (Inshore) Fishery Access Licence, or any person acting or purporting to act under a Trawl (Inshore) Fishery Access Licence, or holders of an [OFAL].
(6)Prohibition on the use of nets in specified waters of Portland Bay
(1)For the purposes of section 114 of the Act, the use of a mesh net, trawl net or seine net in the area shown hatched in Schedule 1 is prohibited.
(7)Use or possession of fishing lines in or on specified waters of Portland Bay
(1)For the purposes of section 114 of the Act—
a)the use of more than one longline at any one time; or
b)use of a longline with more than 50 hooks attached; or
c)possession of a longline with more than 50 hooks attached
in the area shown hatched in Schedule 1 is prohibited.
(8)Catch limit for yellowtail kingfish
(1)For the purposes of section 68A of the Act, the daily catch limit for specified commercial fishers with respect to the taking of yellowtail kingfish (Seriola grandis) in the area shown hatched in Schedule 1, is 0 fish.
(9)Application to Fisheries Reserves
For the purposes of section 152(4), this notice applies to all Fisheries Reserves.
(10)Revocation
Unless sooner revoked, this Notice will be revoked on 16 October 2024.
...

The specified area was defined in sch 1 of the 2023 Notice by reference to a map of Portland Bay with a ‘hatched area’ designating the specified waters, set out as follows:
When the 2023 Notice ceased to be effective on 16 October 2024, Mr Dowling issued a further notice (the ‘2024 Notice’) in substantially the same terms, save that:
(a)clause 3 of the 2024 Notice referred only to having been authorised under s 152 of the Fisheries Act, while cl 3 of the 2023 Notice also referred to ss 68A and 114; and
(b)the 2024 Notice was expressed to come into effect on 17 October 2024 and to end on 17 October 2025, unless revoked sooner.19F[20]
[20]Ibid.
The proceeding below focussed on the 2023 Notice, even though it ceased to be effective prior to the delivery of judgment. As already stated, the 2024 Notice, which replaced the 2023 Notice, was in substantially identical terms, so that there continues to be a live controversy between the parties to this proceeding. Broadly speaking, Mr McAdam’s case was that the 2023 Notice was beyond power. If this Court were to find this was so, it would follow that the relevantly identical 2024 Notice is also beyond power, there being no suggestion that there has been any relevant change in the attendant circumstances. The issue in dispute remains whether a fisheries notice to the effect of the 2023 Notice was and remains a valid exercise of the power conferred by the Fisheries Act. There is evident utility in settling the controversy, by determining whether leave to appeal should be granted and, if so, the outcome of the appeal. Further, if Mr McAdam were to show that the judge erred in rejecting his challenge to the validity of the 2023 Notice, this may have a consequential effect on the order for costs made below.

The statutory context

Since Mr McAdam’s challenge to the validity of the 2023 Notice mostly turns on the Fisheries Act, it may be helpful to refer to some of its provisions at this point.
The purpose of the Fisheries Act includes providing ‘a modern legislative framework for the regulation, management and conservation of Victorian fisheries …’.20F[21] The Act’s objectives include providing for ‘the management, development and use of Victoria’s fisheries ... in an efficient, effective and ecologically sustainable manner’; protecting and conserving ‘fisheries resources, habitats and ecosystems’; and promoting ‘sustainable commercial fishing ... and quality recreational fishing opportunities’.21F[22] Other objectives include: ‘to facilitate access to fisheries resources for commercial, recreational [and other] uses’; ‘to promote the commercial fishing industry and to facilitate the rationalisation and restructuring of the industry’; and ‘to encourage the participation of resource users and the community in fisheries management’.22F[23]
[21]Fisheries Act, s 1(a).
[22]Ibid ss 3(a)–(c).
[23]Ibid ss 3(d)–(f).
Under the Fisheries Act, commercial fishing is prohibited unless specifically authorised.23F[24] The Fisheries Act provides for the creation and issue of ‘access licences’ to permit the holder to undertake commercial fishing activities, which would otherwise be prohibited, subject to specified conditions.24F[25] One class of access licence created by the regulations is an OFAL, as held by Mr McAdam. Subject to certain limitations and qualifications,25F[26] an OFAL authorises the use of longlines, seine and mesh nets, and other specified equipment to take fish for sale from Victorian waters.26F[27]
[24]Ibid s 36.
[25]Ibid ss 38, 52, 54.
[26]For example, a limitation imposed by a fisheries notice.
[27]Fisheries Regulations 2019, regs 234–40.
Apart from via classes of licences permitting various fishing activities,27F[28] there are other ways in which a fishery may be managed under the Fisheries Act, including by the making of a fisheries notice under s 152. Section 152 provides:
[28]For example, Fisheries Act, pt 4, div 2, including ss 52, 54–5. See also pt 8, s 153.
(1) The Minister may by a fisheries notice in relation to any fishery—
(a)fix and enforce catch limits for any species of fish specified in the notice;
...
(f)specify measures for the protection of any fishery, species, ecosystem or habitat;
...
(h)provide for any other matter or thing which this Act requires or permits to be done by a fisheries notice.
(3)If a provision of a fisheries notice is inconsistent with any regulations, management plan, Ministerial direction, licence or permit, the fisheries notice prevails to the extent of the inconsistency.
...
(5) A fisheries notice—
(a)must be published in the Government Gazette;
(c)must be published on the Victorian Fisheries Authority's Internet site;
(d)comes into operation on the date it is published or on such later date as is specified in the fisheries notice;
(e)unless sooner revoked, is revoked by virtue of this section on the day which is 12 months after the date on which it came into operation.
...
(5A)Despite subsection (5)(e), unless sooner revoked, a fisheries notice made under subsection (1)(c) is revoked on the date specified in the notice, which must be a date that is not more than 3 years after the date the notice comes into operation.
(6)A fisheries notice is a subordinate instrument for the purposes of the Interpretation of Legislation Act 1984.
(7)A fisheries notice—
(a)may be of general or limited application; and
(b)may make different provision according to differences in times, places, localities, circumstances, boats, persons, classes of persons or fish, whether or not any times, places, circumstances, boats, persons or fish are determined or ascertainable before, at or after the making of the notice; and
(c)may impose penalties not exceeding 50 penalty units for a contravention of or an offence under the notice; and
(d)may apply, adopt or incorporate (with or without modification)—
(i)the provisions of any document, code, standard, rule, specification or method whether as formulated, issued, prescribed or published at the time the notice is made, or at any time before then; or
(ii)the provisions of any Act of the Commonwealth or of another State or of a Territory or the provisions of any subordinate instrument under that Act; and
(e)may confer powers or impose duties in connection with the notice on any person or body; and
(f)may provide for the exemption of persons or things or a class of persons or things from any of the provisions of the fisheries notice, whether unconditionally or on specified conditions and either wholly or to such an extent as is specified.
As already indicated, where there is inconsistency between a licence and a fisheries notice, s 152(3) provides that the fisheries notice prevails ‘to the extent of the inconsistency’. Thus, in Mr McAdam’s case, the 2023 Notice prevailed over his OFAL to the extent the fisheries notice was inconsistent with it.
The only other provision of the Fisheries Act that should be noted at this point is s 3A, which provides that certain ‘consultation principles’ apply ‘[t]o the extent that is practicable’ to decisions made by the Authority affecting ‘the use and conservation of Victoria’s fisheries resources’.28F[29] The decision to make the 2023 Notice was a decision of this kind.29F[30] Among other things, the principles required that the consultation process should, to the extent practicable, be ‘clear, open, timely and transparent’, ‘flexible’, ‘adequately resourced’, and ‘reflect the likely impact of decisions on persons and fisheries resources’.30F[31] The principles also provided that the consultation process should be designed to take account ‘the number and type of persons to be consulted’, and should involve consideration of expert and representative advice.31F[32]
[29]Fisheries Act, s 3A(1).
[30]Ibid s 3A(2)(k).
[31]Ibid ss 3A(1)(a)–(d).
[32]Ibid ss 3A(1)(d)–(g).

The judicial review proceeding

The applicant challenged the validity of the 2023 Notice in a judicial review proceeding. His amended originating motion for judicial review (seeking declaratory and other relief) was supported by affidavits made by himself and Mr Delony, a retired commercial fisher. Mr McAdam and Mr Delony were not subjected to cross-examination. In response, the Authority relied on two affidavits of Mr O’Sullivan,32F[33] who was subjected to cross-examination.
[33]As already stated, Mr O’Sullivan was the Authority’s Director of Fisheries Management.
In considering the applicant’s grounds hereafter, reference will be made to the evidence relied on in support of the case presented by the applicant, as well as to the evidence relied on by the Authority.

The judge’s decision

The judge rejected Mr McAdam’s challenge to the validity of the 2023 Notice. Her Honour held that the ‘purpose and operation of the [2023 Notice] was clearly within the scope of the enabling power’,33F[34] and that s 152 of the Fisheries Act, when read with s 114, empowered the making of a fisheries notice to restrict commercial fishing activities, including in respect of the use of specified equipment and the imposition of catch limits, within a specified area.34F[35]
[34]Reasons, [66(a)].
[35]Ibid [66(a)], [85]–[89].
The judge also rejected Mr McAdam’s contention that the 2023 Notice constituted an invasion of his ‘substantive rights’ and an impermissible acquisition of property (including ‘a taking of property in a fishery licence and the right to work’).35F[36] Her Honour found that he held a statutory permission to fish subject to specified conditions, which was ‘freely amenable to abrogation or regulation by legislation from time to time’.36F[37] Consequently, her Honour held that Mr McAdam’s arguments based on the Charter of Human Rights and Responsibilities Act 2006 (the ‘Charter’) fell away.37F[38]
[36]Ibid [50(b)].
[37]Ibid [53]–[56], citing Harper v Minister for Sea Fisheries (1989) 168 CLR 314, 325 (Mason CJ, Deane and Gaudron JJ, Brennan J agreeing at 332); [1989] HCA 47; Alcock v Commonwealth (2013) 210 FCR 454, [76] (Rares, Buchanan and Foster JJ); [2013] FCAFC 36; Port Phillip Scallops v Minister for Agriculture (2018) 238 LGERA 344, [96], [98] (Cavanough J); [2018] VSC 589 (‘Port Phillip Scallops’).
[38]Reasons, [57].
Furthermore, these conclusions led her Honour to reject Mr McAdam’s submission that the decision to issue the 2023 Notice was not reasonably proportionate to the enabling statutory purpose.38F[39] Her Honour held that this argument ‘proceed[ed] on the incorrect assumption as to the nature of the rights conferred by his OFAL’ and went ‘no further than complaints about the impact of the [2023 Notice] on his personal circumstances …’.39F[40]
[39]See Reasons, [50(a)], [66(b)].
[40]Ibid [66(b)].
The judge rejected Mr McAdam’s contention that, in deciding to issue the 2023 Notice, the decision-maker failed to consider a mandatory relevant consideration, on the basis that this contention depended on ‘the incorrect assumption as to the nature of the rights conferred by his OFAL’ and failed to have regard to the legislative character of the 2023 Notice.40F[41]
[41]Ibid [66(c)]. In reaching this conclusion, her Honour referred to Vanstone v Clark (2005) 147 FCR 299, 331–2 [104]–[106] (Weinberg J); [2005] FCAFC 189, citing Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (Butterworths, 2^nd ed, 1999). See also Donohue v Australian Fisheries Management Authority (2000) 60 ALD 137, [18] (Heerey J); [2000] FCA 901; Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 37 FCR 463, 477 (O’Loughlin J); South Australia v Tanner (1989) 166 CLR 161, 168 (Wilson, Brennan, Dawson, Toohey and Gaudron JJ); [1989] HCA 3.
The judge did not accept Mr McAdam’s submissions concerning the consultation process, and rejected his submission that ‘the decision maker was unduly influenced by ulterior or political considerations’.41F[42] Her Honour stated that she was not persuaded that the consultation was contrary to s 3A of the Fisheries Act, and further, there was nothing in the admissible evidence which demonstrated that the decision was made for an ‘ulterior’ or improper purpose.42F[43] Her Honour noted that ‘[t]he principles in s 3A are not prescriptive’; and that there was nothing to indicate that ‘the consultation principles ... were applied other than sensibly, reasonably and pragmatically and in a way that afforded a genuine and meaningful opportunity for persons affected by the notice to have their views considered’.43F[44] There was, in her Honour’s opinion, ‘no substance to the complaints about the consultation process’.44F[45]
[42]Reasons, [66(d)].
[43]Ibid.
[44]Ibid [69].
[45]Ibid [78].
The judge rejected Mr McAdam’s submissions concerning the principle of legality and the applicability of the Charter on the basis that:
[t]here is no ambiguity in the legislation under consideration and, for the reasons given ... in respect of the characterisation of [Mr McAdam’s] rights, there is no infringement of or incompatibility with, a fundamental or human right ...45F[46]
[46]Ibid [90].
Finally, the judge rejected Mr McAdam’s submission that the 2023 Notice was invalid by reason of an implied constitutional restriction derived from s 51(x) of the Constitution of the Commonwealth of Australia (the ‘Commonwealth Constitution’). Her Honour explained that:
[Mr McAdam] submitted that the Fisheries Notice was, in effect, an exercise of sovereignty by the State which impairs the Commonwealth sovereignty in relation to Australian waters.
[Mr McAdam] accepted that the State had extraterritorial power, but submitted that what was different about the current case is that the State had created a ‘no-go zone’ or an area of exclusion.46F[47]
[47]Ibid [93]–[94].
Her Honour rejected Mr McAdam’s submission that the 2023 Notice created a so-called area of exclusion because, on her Honour’s analysis, the 2023 Notice ‘does no more than restrict certain fishing activities within a limited area’; and in this circumstance, there was no basis to distinguish this case from other cases in which arguments to the same or similar effect had been rejected.47F[48]
[48]Ibid [95]. See also Babington v Commonwealth (2016) 240 FCR 495; [2016] FCAFC 45 (‘Babington’); Alcock v Commonwealth (2013) 210 FCR 454; [2013] FCAFC 36; Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development (2018) 336 FLR 37; [2018] NSWCA 174 (‘Lavender’).
Mr McAdam’s judicial review grounds having failed, the judge dismissed the proceeding, with costs.

Application for leave to appeal

Mr McAdam applied for leave to appeal on the following proposed grounds:
(1)The judge erred in identifying, construing and applying the test for determining the validity of delegated legislation, including by failing to properly consider whether the power to make the relevant Fisheries Notice was exercised for a proper purpose set out in the empowering Act; namely section 3 of the Fisheries Act 1995.48F[49]
[49]Ground 1 was amended by leave granted at the hearing.
(2)The judge erred in identifying, construing and applying the test for determining the validity of the relevant Fisheries Notice, including by failing to properly consider whether the relevant Fisheries Notice was capable of being considered reasonably proportionate to the objectives in section 3 of the Fisheries Act 1995.
(3)The judge erred in holding that the consultation principles in section 3A of Fisheries Act 1995 do not provide for a condition of validity and in holding that no breach of the consultation principles had occurred on the evidence.
(4)The judge erred ‘in failing to find that the Fisheries Notices [sic] by their terms [sic] operation and effect formed and created an area of exclusion by the laws of Victoria outside the limits of Victoria and in not concluding that such laws authorising the Fisheries Notices [sic] to that extent were not a permissible exercise of legislative power.49F[50]
(5)The judge erred in failing to make findings based on the undisputed evidence of the Plaintiff including but not limited to paragraphs 31, 32 [first sentence], 33 and 34 of his affidavit sworn 24 May 2024 or in making erroneous findings.
(6)The judge erred in failing to give adequate reasons to support the findings of fact and rulings made.
(7)The judge erred in her findings in that there was no or insufficient evidence to support the findings.
(8)The judge erred because an inference was drawn that was not supportable by the facts or an available inference was not drawn including but not limited to inferences available in favour of the Appellant pursuant to Browne v Dunn [1893] 6 R 67 and Jones v Dunkel [1959] 101 CLR 298.
(9)The judge failed to properly consider the applicant’s case.

Consideration — the legislative character of a fisheries notice

[50]The Court was satisfied that a notice of a constitutional issue had been served on the Attorneys-General of the Commonwealth, States and Territories under s 78B of the Judiciary Act 1903 (Cth). No notice was required to be given under the Charter as the State was a party to the proceeding: see Charter of Human Rights and Responsibilities Act 2006, s 35(2)(a).

In considering the applicant’s challenge to the validity of the 2023 Notice, it is important to bear in mind that, as the judge held and the applicant accepted, the decision to make a fisheries notice is a legislative, not an administrative, decision.50F[51] This has consequences for the way the Court approaches the applicant’s proposed review grounds.
[51]Reasons, [59].
For this reason, it is also worth noting at this point the matters that bear on this characterisation. First, the 2023 Notice created binding rules of general application for the future, applicable to anyone who was a commercial fisher who sought to fish in the specified waters of Portland Bay. Generality of application is a well-accepted indicium of a legislative decision.51F[52] Having regard to the commercial use of the equipment with which the 2023 Notice was concerned, it affected the commercial fishing activities of any commercial fisher, such as Mr McAdam, who sought to fish in Portland Bay. No commercial fisher could use the prohibited equipment in the Bay. Likewise, pursuant to the 2023 Notice, no ‘specified commercial fisher’52F[53] could lawfully take any yellowtail kingfish from those waters.
[52]See, eg, Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381, 397 (Beaumont and Hill JJ, Lockhart J agreeing at 381); Queensland Medical Laboratory v Blewett (1988) 84 ALR 615, 633–6 (Gummow J); [1988] FCA 423; RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185, 194–6 [40]–[50] (Wilcox, Branson and Lindgren JJ); [2001] FCA 855 (‘RG Capital Radio’).
[53]That is, no OFAL holder or a Trawl (Inshore) Fishery Access Licence: see the definition of ‘specified commercial fishers’: 2023 Notice, cl 5.
Consistently with authority,53F[54] a decision may be of a legislative nature where complex policy considerations are involved. The fact that, under s 152, the matters which may be the subject of a fisheries notice may involve such considerations is consistent with the legislative character of a decision to issue a fisheries notice.54F[55] The potential complexity of relevant policy considerations is also consistent with the broadly-stated objectives of the Fisheries Act.55F[56]
[54]See, eg, RG Capital Radio (2001) 113 FCR 185, 199–200 [62]–[66] (Wilcox, Branson and Lindgren JJ); [2001] FCA 855.
[55]For example, fixing and enforcing catch limits for a species: Fisheries Act, s 152(1)(a); fixing periods in which a fishing activity is prohibited or allowed: Fisheries Act, s 152(1)(b); and specifying measures for the protection of any fishery, species, ecosystem or habitat: Fisheries Act, s 152(1)(f).
[56]See Fisheries Act, s 3.

Another indication that the making of a fisheries notice is a legislative decision is the provision made by the Fisheries Act for public consultation ‘to the extent ... practicable’ before a notice is made,56F[57] and once made, for the notice to be published to the community at large, via the Authority’s Internet site, the Government Gazette57F[58] and the local newspaper.58F[59]
[57]Ibid ss 3A(1), 3(2)(k). See also RG Capital Radio (2001) 113 FCR 185, 198 [58] (Wilcox, Branson and Lindgren JJ); [2001] FCA 885. This provision is relevant to one of the applicant’s review grounds, and is discussed further below.
[58]Fisheries Act, ss 152(5)(a), (c).
[59]Ibid s 152(5AA).
Finally, a fisheries notice is a ‘subordinate instrument’ for the purpose of the Interpretation of Legislation Act1984;59F[60] and is also a ‘legislative instrument’ for the purposes of the Subordinate Legislation Act1994. As such, it is reviewable by Parliament.60F[61]
[60]See Fisheries Act, s 152(6). Section 38 of the Interpretation of Legislation Act 1984 defines a subordinate instrument as an instrument made under an Act, that is a statutory rule or is not a statutory rule but contains regulations, rules, by-laws, proclamations, Orders in Council, or is of a legislative character.
[61]Parliament has the power to disallow a fisheries notice if the relevant Parliamentary Committee (ie the Scrutiny Committee) provides such a recommendation. A recommendation may be made on a number of grounds, including that the fisheries notice ‘does not appear to be within the powers conferred by the authorising Act’: Subordinate Legislation Act 1994, ss 25A and 25C(1)(b).
As the discussion of the applicant’s first two grounds discloses, the legislative character of the 2023 Notice affects the outcome of his challenge to its validity.

Proposed ground 1 — whether the 2023 Notice was made for an improper purpose

Applicant’s submissions

Counsel for the applicant relied on the terms of the 2023 Notice and certain other evidence to identify the allegedly improper purpose for its making. He noted that cl 8 of the 2023 Notice set a zero daily catch limit on yellowtail kingfish and that, by virtue of cl 5, this limit affected only commercial fishers. He noted (and it was not disputed) that the limitation on equipment was only applicable to commercial fishers because recreational fishers did not use longlines or mesh nets. He contended that the 2023 Notice effectively prohibited all commercial fishing because a commercial fisher could not eliminate the possibility that the licence holder would catch at least one yellowtail kingfish in the course of fishing. In his words, this was because:
[B]ycatch in respect of commercial fishing is a fact of life, setting the catch limit to zero meant that no commercial fisher could operate in the water specified. Thus the terms of the notice excluded the applicant and all other access-holders from the ocean fisheries in the whole region, even though recreational fishers fished only a small part of it.
That .... was a draconian outcome, particularly because yellowtail kingfish was not the targeted fish for Mr McAdam. He only very occasionally caught it, on his evidence, only a few times in the previous 12 months. But yet once is enough to invoke the criminal sanctions underpinning the fisheries notice.61F[62]
[62]Citing Fisheries Act, ss 68A, 105–6, 110.
Further in support of this ground, counsel for the applicant relied on the evidence of the applicant and Mr Delony, a retired commercial fisher who had been party to the informal agreement previously applicable to fishing in Portland Bay. In particular, counsel referred to the applicant’s unchallenged evidence in his supplementary affidavit of 20 August 2024 that:
Although the standard recreational fishing practice for catching yellowtail kingfish is by trolling using lures, there is no knowledge of any bait which yellowtail kingfish will not take.
The effect is to guarantee that any commercial fishermen using the 50 permitted [h]ooks online in Portland Bay will inevitably commit an offence in breach of the notice ... placing their entire livelihood at risk because of the penalties, even criminal penalties, attached.
Counsel also relied on Mr Delony’s unchallenged evidence in his affidavit of 21 August 2024 that:
None of us were consulted at any time and the conditions imposed on us by the [2023 Notice] made fishing in Portland Bay not only uneconomic but legally hazardous because it would be almost impossible to totally avoid catching any yellowtail kingfish by the methods prescribed in the [2023 Notice] thereby breaching the notice provision that the catch limit for yellowtail kingfish is zero.
Further, the applicant’s counsel noted that Mr O’Sullivan was asked in cross-examination whether, in respect of the snook or pike fishery in Portland Bay, Mr McAdam was ‘prohibited, in effect, from fishing in there ... for the period of the notice’. Counsel relied on Mr O’Sullivan’s response that ‘[i]n terms of inside the perimeter of that shown, he’s not permitted to fish’.62F[63]
[63]That is, the ‘specified area’ as defined in the 2023 Notice.
Relatedly, the applicant submitted that the 2023 Notice was made to resolve a disagreement between the applicant as a commercial fisher and the recreational fishers in Portland Bay ‘on the pretext of protecting yellowtail kingfish by cl 8 [of the 2023 Notice]’. Counsel for the applicant relied on evidence that Mr McAdam targeted only pike, not yellowtail kingfish, and that Mr O’Sullivan knew that recreational fishers in Portland Bay targeted yellowtail kingfish, not pike.63F[64]
[64]However, Mr O’Sullivan added that ‘the fisheries notice is applicable to all licence holders within the [relevant] licence class, not just Mr McAdam, so the fisheries notice itself is obviously being applied to a broader sector rather than Mr McAdam’: see [56]
Counsel also relied on Mr McAdam’s unchallenged evidence that Mr Dowling decided to make a fisheries notice after forming the view that Mr McAdam had disregarded Mr O’Sullivan’s request that he reach a deal with the recreational fishers. In his supplementary affidavit of 23 August 2024, Mr McAdam deposed that:
At no stage did the [Authority] approach me to discuss any concerns which it or the community held about my alleged breaches of the Code.64F[65] However, I recall a telephone conversation with Mr O’Sullivan in mid-2023 before I had seen any draft of the fisheries notice that was ultimately issued in October 2023. I recall that Mr O’Sullivan informed me that recreational fisherm[e]n were not content with a draft code of conduct that was developed by the [Authority] in consultation with VRFish, SIV and Ocean Access Fisheries Access Licence holders and circulated in July 2023 … He said to me words to the effect:
‘Go and make a deal with the recreational fishing groups or I will do it for you.’
[65]Also known as the ‘Code of Practice for Commercial and Recreational Fishing in Portland Bay’.
The applicant’s counsel noted that when Mr O’Sullivan was asked whether he recalled speaking these words, he replied, ‘I genuinely can’t recall if I used words to that effect’. Further, counsel noted that Mr O’Sullivan agreed in cross-examination that the 2023 Notice would probably not have been made ‘but for’ Mr McAdam’s fishing activities in Portland Bay. We would interpolate here that Mr O’Sullivan also gave evidence that ‘the fisheries notice is applicable to all licence holders within [the relevant] licence class, not just Mr McAdam, so the fisheries notice itself is obviously being applied to a broader sector rather than just Mr McAdam’.
In the applicant’s submission, the 2023 Notice was made to impose a solution to a disagreement between Mr McAdam and recreational fishers in Portland Bay, ‘by an imposed resolution which prohibited [Mr McAdam] and other commercial fishers from the whole region of Portland Bay on the pretext of protecting yellowtail kingfish by clause 8 [of the 2023 Notice]’.
The applicant’s counsel also sought to support Mr McAdam’s case by reference to a letter sent by the Authority to SIV dated 12 October 2023, which advised that the 2023 Notice:
... is now published in the Government Gazette ... and will come into effect on 16 October 2023. It is expected that these controls will resolve recent concerns raised by the community regarding changed commercial fishing practices in Portland Bay, and will ensure that we continue to see all sectors sharing in this precious resource.
In the applicant’s submission, this letter was misleading as far as it stated that the 2023 Notice would ensure that the resource would ‘continue’ to be shared by ‘all sectors’. Counsel relied on the fact that a zero limit on catch of yellowtail kingfish went well beyond what VRFish and the recreational fishers had sought.65F[66] In his submission, the Authority adopted the zero catch limit ‘without explanation’ at the time or at the hearing before the judge. Therefore, in the applicant’s submission, the Court should infer that the zero limit:
... was used not to reduce the catch of yellow-tailed kingfish, but as a pretext to stop [Mr McAdam] and all commercial fishers catching any fish.
[66]In a letter dated 25 September 2023, VRFish expressed support for the 50 kg daily catch limit proposed in the draft notice circulated in the consultation process.
Counsel for the applicant submitted that the evidence disclosed that the 2023 Notice was issued for the improper purpose of preventing all commercial fishing in Portland Bay. In his submission, there was no power to resolve a conflict over the use of local fishing resources in this way. He submitted that the making of a fisheries notice effectively prohibiting the applicant and other commercial fishers from fishing in ‘the whole region of Portland Bay on the pretext of protecting yellowtail kingfish by cl 8 [of the 2023 Notice]’ disclosed an improper purpose akin to the improper purpose in R v Toohey; ex parte Northern Land Council (‘R v Toohey’),66F[67] ‘where the regulation ... with a semblance of propriety was made for a purpose which fell outside the authorising provisions’. He submitted that the judge had adopted the wrong approach by failing to make the two-stage inquiry referred to in Vanstone v Clark.67F[68] This was because her Honour had not reviewed the evidence to identify ‘what was the motive or purpose of the decision-maker in making the [2023 Notice]’; and, having done so, considered ‘whether compared to the empowering provisions that purpose was an improper or ulterior purpose’. Counsel submitted that her Honour had considered ‘only one aspect of the test, namely the purpose set out in the empowering Act, by examining the proper construction of the empowering provisions without comparing that purpose to the purpose of the [Authority] in making the fisheries notice decision’. Referring to R v Toohey,68F[69] he submitted that this was the wrong approach.
[67](1981) 151 CLR 170; [1981] HCA 74.
[68](2005) 147 FCR 299, 332 [105] (Weinberg J); [2005] FCAFC 189.
[69](1981) 151 CLR 170, 192–3 (Gibbs CJ); [1981] HCA 74.
Counsel for the applicant also submitted that it was not open to the respondents to argue that, by seeking to resolve the conflict between commercial and recreational fishers in the way it did, the Authority was attempting to fulfil the objective in s 3(a) of the Fisheries Act. This was because the respondents had not raised that argument at trial and had not filed a notice of contention. Counsel submitted that the applicant would be prejudiced if the Court permitted this argument to be raised because Mr McAdam had lost the opportunity to require disclosure of the Authority’s records and his counsel was unable to cross-examine Mr O’Sullivan. Counsel also contended that, in any event, Swan Hill Corporation v Bradbury, which decided that a regulation made for the purpose of ‘regulation or management’ did not authorise regulations which prohibited the very thing that was authorised, ‘forestalled’ this argument. That is, in his submission, it was not open to the Authority to prohibit Mr McAdam from fishing for pike, pursuant to his OFAL, in the whole of Portland Bay.
The applicant’s written submissions were to much the same effect as the oral submissions to which we have just referred. The applicant submitted in writing that ‘[d]ispute resolution by fisheries notices is not an object or purpose of the Fisheries Act’; and that the 2023 Notice was issued with the ‘motive of resolving the complaint adversely to [him], by simply forcing him from the zone altogether’. He submitted that his evidence about his conversation with Mr O’Sullivan69F[70] disclosed an improper purpose that vitiated the exercise of the power to make the 2023 Notice.70F[71] He contended that, in rejecting his improper purpose ground, the judge had erred in failing to consider particular provisions of the Fisheries Act71F[72] and the ‘purpose and objects of the enabling statute providing for the power of delegation ... and the evidence as to motive and purpose’.

Respondents’ submissions

[70]See [55] above.

[71]Citing Brownells Ltd v Ironmongers’ Wages Board (1950) 81 CLR 108; [1950] HCA 3; R v Toohey (1981) 151 CLR 170, 192 (Gibbs CJ); [1981] HCA 74; Libertyworks Inc v Commonwealth (2021) 274 CLR 1, 85–6 [221] (Edelman J); [2021] HCA 18.

[72]Namely, ss 1, 3, 68A, 114 and 152.

In their written submissions, the respondents first noted that s 152 was not itself a purposive power, but they accepted that this ground would be made out if it were shown that the 2023 Notice was made for a purpose extraneous to the Fisheries Act.72F[73] In the respondents’ submission, however, the 2023 Notice was plainly authorised by s 152 of the Fisheries Act, because it was directed to the management and regulation of the fishery in Portland Bay. This was, so the respondents argued, ‘well within the scope of the broadly expressed purpose and objectives in ss 1 and 3’.73F[74] More particularly, so the respondents submitted, the 2023 Notice ‘sought to balance the interests of recreational and commercial fishers and to resolve a conflict that had emerged in relation to local fishing activities’.
[73]Citing River Fishery Association Inc (SA) v South Australia (2003) 85 SASR 373, 391–2 [108] (Doyle CJ), citing R v Toohey (1981) 151 CLR 170, 226 (Mason J); [1981] HCA 74, 420 [239] (Besanko J); [2003] SASC 174 (‘River Fishery Association’); Vanstone v Clark (2005) 147 FCR 299, 332 [105] (Weinberg J); [2005] FCAFC 189.
[74]Citing Port Phillip Scallops (2018) 238 LGERA 344, 361–2 [78] (Cavanough J); [2018] VSC 589.
The respondents submitted that the claim that the applicant was required to ‘resolve [the complaint] himself or be subjected to a deal reached by the [Mr O’Sullivan]’ was ‘nothing more than a (colourful) description of the context of the notice’, bearing in mind that the Authority had sought to manage the fishery by having the fishers agree on a Code of Conduct and only after this approach failed did Mr Dowling decide to issue a fisheries notice.
At the hearing, counsel for the respondents accepted that, in substance, the 2023 Notice was issued in response to community opposition to Mr McAdam’s commercial fishing activities in Portland Bay. She submitted that this opposition was expressed by ‘people at the actual wharf, protesting or interacting with the applicant in relation to his actual activities’, via social media, by calls on the Authority’s hotline, and in letters to the Authority, the Minister and the local Member of Parliament.
Relying on the objectives set out in s 3 of the Fisheries Act, specifically ss 3(a), (d) and (e), counsel for the respondents submitted that;
The purpose of the Authority is to regulate the balance between the recreational fishing sector and the commercial fishing sector and to manage fisheries which would include responding to concerns raised in relation to how the fisheries are being managed.
Counsel amplified this in argument, submitting that the Authority’s statutory powers included managing different interests in conformity with governmental policy, which might, for example, prefer ‘recreational fishing interests over commercial fishing interests’, ‘based on the importance of recreational fishing to tourism and to local business’. In this context, counsel submitted that it was open to the Authority to make decisions ‘responding to community perception’. In this connection, counsel referred to evidence at trial that there was a State ‘government policy to encourage recreational fishing and to consolidate or restructure or reduce commercial fishing’. Counsel submitted that ‘in that context the [Fishery Act’s] powers and objectives allow for the making of decisions which prefer recreational or commercial fishing interests based on policy decisions that include responding to community concern’.
Counsel for the respondents submitted that:
The nature of the concerns of the recreational fishing interests here ... were to the effect that the netting activities in the bay [were] impacting recreational fishing opportunities and recreational fishing activities.
She added that these were not just general concerns, but were:
... concerns relating to fishing activities and the proper balance between fishing interests. It also wasn’t simply a response to concerns in the ether; there were on-the-ground facts that were affecting the actual management or activities in the fishery and affecting fishers.
She submitted that these community concerns were ‘about sustainability and resource allocation’.
By way of explanation, counsel referred to the decision brief and, in particular, to the matters which, according to the decision brief, were referred to in support of the proposed notice.74F[75] She submitted that the court should ‘view the briefing materials as evidence of the purpose of the notice and what considerations were taken into account’. She submitted that it was ‘enough’ that the delegate took these matters into account and that they fell ‘within the purpose and objects and proper considerations of the delegate making a decision under s 152’. In her submission, these materials showed that the decision-maker was responding to the community’s concerns about the proper balance between fishing interests. As a result, it was open to the decision-maker to issue a notice under s 152 of the Fisheries Act in order to respond to community concerns of this kind, and in so doing to prefer recreational over commercial fishing interests.75F[76]

Consideration — ground 1 (improper purpose)

[75]See [14] above.

[76]Counsel relied on River Fishery Association (2003) 85 SASR 373; [2003] SASC 174; Port Phillip Scallops (2018) 238 LGERA 344 (Cavanough J); [2018] VSC 589.

While a notice under s 152 of the Fisheries Act has a legislative, not an administrative character, the decision to issue a notice is nonetheless reviewable on the ground that it was made for an improper purpose.76F[77] Section 152, which provides for the making of a fisheries notice, is not, however, relevantly limited by reference to purpose. Nor are ss 68A and 114. In this circumstance, can it be shown that the 2023 Notice was made for a purpose extraneous to the Fisheries Act, as the applicant contended?77F[78]
[77]See, eg, R v Toohey (1981) 151 CLR 170, 233 (Aickin J); [1981] HCA 74.
[78]See R v Toohey (1981)151 CLR 170, 187–8, 192 (Gibbs CJ), 199 (Stephen J), 225–6 (Mason J), 284 (Wilson J); [1981] HCA 74; River Fishery Association (2003) 85 SASR 373, 391–2 [108] (Doyle CJ), 420–1 [239]–[243] (Besanko J); [2003] SASC 174; Vanstone v Clark (2005) 147 FCR 299, 332 [105] (Weinberg J); [2005] FCAFC 189.
As we have seen, the respondents relied on paragraphs 3(a), (d) and (e) of the Fisheries Act in support of their contention that the 2023 Notice did not give effect to a purpose foreign to the Fisheries Act. Rather, the issue of the 2023 Notice was in conformity with certain statutory objectives in s 3 of that Act.

Section 3 of the Fisheries Act relevantly provides:
3 Objectives of Act
The objectives of this Act are —
(a)to provide for the management, development and use of Victoria’s fisheries, aquaculture industries and associated aquatic biological resources in an efficient, effective and ecologically sustainable manner.
...
(d)to facilitate access to fisheries resources for commercial, recreational, traditional and non-consumptive uses;
(e)to promote the commercial fishing industry and to facilitate the rationalisation and restructuring of the industry;
...
Although the applicant’s case was put in more than one way, his case was in substance that the 2023 Notice was made in order to ‘impose a solution to a disagreement between the applicant and the recreational fishers in Portland Bay’; and that the Authority sought to achieve this outcome by excluding him and other commercial fishers from the Bay by imposing a zero catch limit on yellowtail kingfish under the pretext of protecting the species. As already noted, the applicant adduced unchallenged evidence at trial that, practically speaking, a commercial fisher would be unable to adhere to this catch limit, breach of which would attract criminal liability. As will be seen, we do not consider that this last-mentioned matter is relevant to the outcome of the improper purpose ground, although we do consider it is relevant to a subsequent ground.
The respondents did not dispute that the 2023 Notice was issued to resolve the disagreement that had arisen between the applicant and recreational fishers, which had led to opposition to the applicant’s fishing activities in the Portland community more generally. This was consistent with the evidence adduced at trial as to the conversation between Mr O’Sullivan and the applicant, in which Mr O’Sullivan enjoined the applicant to ‘resolve’ the matter himself, failing which he would be ‘subjected to a deal’ that would be imposed on him.
Apart from this, the explanatory statement accompanying the 2023 Notice indicated that an important purpose of the 2023 Notice was to bring the dissension to an end. In its fourth and final paragraph, the explanatory statement recorded that ‘[t]he new arrangement will help to resolve conflict between commercial netters and recreational fishers in the highly valued Portland Bay area’.78F[79]
[79]In a letter from Mr Dowling to Inshore Trawl Fisheries Licence holders dated 12 October 2023, Mr Dowling stated that it was ‘expected that [the] controls introduced [by the 2023 Notice] will resolve recent concerns raised by the community regarding changed commercial fishing practices in Portland Bay, and will ensure that we continue to see all sectors sharing in this precious resource’.
Furthermore, although the decision brief did not refer expressly to dissension within the community or disagreement between fisher interests, the earlier consultation brief prepared by Mr O’Sullivan and given to Mr Dowling in order that he might approve the consultation process, gave a clear description of the growing concern and opposition in the Portland community to the applicant’s fishing activities in Portland Bay. The consultation brief stated that, while the applicant’s fishing activity was ‘legal’, it did not ‘align to the Gentleman’s Agreement’79F[80] and had raised ‘significant concerns within the Portland community’. The consultation brief also referred to the escalation in calls to the Authority’s hotline and ‘reports of conflict at the wharf’ together with ‘growing social media interest’, and letters to the Authority and the Minister. This document noted that ‘many in the community ... want an enforceable instrument to manage the activity’.
[80]The informal agreement was also referred to as the ‘gentleman’s agreement’.
The decision brief provided by Mr O’Sullivan to Mr Dowling following the consultation process did not refer expressly to community opposition to the applicant’s activities. Rather, the decision brief provided Mr Dowling with a description of the number and nature of the submissions received in support of, and in opposition to, the draft notice. As the respondents effectively submitted, this description informed the decision-maker of the nature and extent of the disagreement that the proposed notice was intended to address. It also provided Mr Dowling with the opportunity to read these submissions, which were attached to the decision brief. The decision-maker was therefore given information about the nature of the matters that concerned the supporters of the proposed notice and the matters on which its opponents relied. It may be inferred that, as a responsible decision-maker, Mr Dowling would have had some regard to these competing considerations before deciding to issue the 2023 Notice.
There was no direct evidence as to Mr Dowling’s reasons for approving the issue of the notice in the form accompanying the decision brief. Mr Dowling did not give evidence at trial, and he did not publish a statement about his reasons for the decision. There was no more than the explanatory statement that accompanied the decision brief, which was subsequently made public. As a consequence, there is no evidence about which, if any, of the various matters identified in the decision brief as matters relied on by supporters of the proposed notice were also relied on by Mr Dowling in making his decision. At best, it may be inferred that Mr Dowling concluded that the matters relied on by the 52 opponents of the proposed notice, most of whom were commercial fishers, were outweighed by a matter or matters relied on in the 255 supporting submissions.
As already noted, however, Mr O’Sullivan, who was responsible for Mr Dowling’s briefing, did give evidence at trial. Mr O’Sullivan accepted in cross-examination that the applicant had not acted unlawfully in his fishing activities in Portland Bay. He accepted that the applicant had complied with the terms of the informal agreement. He also agreed that, but for the applicant’s fishing activities in Portland, ‘the fisheries notice wouldn’t have happened’.
Mr O’Sullivan’s evidence was to the effect that the 2023 Notice was made in order to resolve the conflict between recreational fishers and Mr McAdam’s commercial fishing activities in Portland Bay. His evidence in cross-examination was that he formed the impression:
... as a result of the complaints ... received from the recreational fishers at Portland Bay, that there was conflict between the interests or pursuits of the Portland Bay recreational fishers and those of Mr McAdam as a commercial fisher ...
As the judge noted, Mr O’Sullivan also gave evidence in cross-examination about what he referred to as ‘a social licence element in relation to netting’. In this connection, he said:
[T]here is a social licence element in relation to netting of which, I guess in recent times the general public has not always looked favourably upon and Mr McAdam’s activities in Portland Bay were quite visible from the shoreline. Now, a lot of that would possibly be in relation to perception rather than actual activities, I acknowledge that, but Mr McAdam’s activity in that area in relation to netting was highly emotive to the local community.
In this context, Mr O’Sullivan added:
We have a responsibility to balance the interests of recreational fishing and also commercial fishing, so in terms of the harmony between those two elements a social licence is valid on both parties to ensure that we can get harmony amongst the two different groups.
In cross-examination, Mr O’Sullivan went on to say:
[T]he scenario ... in front of us was a substantial number of complaints that had come into the [Authority] requesting action be taken. We also had letters — many letters go into the Minister’s office, there [were] speeches in Parliament ... the local council passed a resolution requesting action in this regard. ... [T]here is no doubt there has been impacts on Mr McAdam and his family ... but I am obligated to make decisions that are in balance between, in this case, the commercial sector and the rec [sic] sector.80F[81]
[81]In order to avoid confusion, we note that Mr Dowling, not Mr O’Sullivan had the delegated authority to make the decision and in fact made the decision at issue to issue the 2023 Notice, although it is clear that, in doing so, Mr Dowling acted on the information provided to him by Mr O’Sullivan.
His evidence was that he explored ‘all options’ to facilitate an outcome that would be in the best interests of Mr McAdam and the recreational fishers in the area; and that the representative body for recreational fishers had opposed a Code of Conduct and had sought a legally binding solution. In re-examination, Mr O’Sullivan maintained that the ‘exclusion zone’ created by the 2023 Notice was the outcome of a compromise with the demands of the recreational fishing sector. He said:
The exclusion zone that we put in place for the fisheries notice was significantly smaller than what was requested by the recreational sector but also bigger than what was in the original gentlemen’s agreement. So in terms of trying to find some middle ground or compromise, that was the reason the exclusion zone was put in place where it was ...
Broadly speaking, Mr O’Sullivan’s evidence was consistent with the explanatory statement that had accompanied the decision brief given to the decision-maker, Mr Dowling. It was also broadly consistent with much of the applicant’s own evidence about community opposition to his fishing activities in Portland Bay.
In substance, therefore, the evidence showed that Mr Dowling decided to issue the 2023 Notice to resolve the conflict between recreational fishers and the broader Portland community, and the applicant in his capacity as a commercial fisher using commercial fishing equipment to fish in Portland Bay. The 2023 Notice sought to do this by limiting the use of commercial fishing equipment in a significant part of Portland Bay and prohibiting the catch of yellowtail kingfish, a preferred species for recreational fishing.
Having regard to the evidence at trial, did the applicant make out his case that the 2023 Notice was issued for an improper purpose? The answer depends on whether the Fisheries Act permitted the decision-maker to issue a fisheries notice in these circumstances. As already stated, the respondents relied on ss 3(a), (d) and (e) of the Fisheries Act in response to the applicant’s contention that the 2023 Notice was made for a purpose extraneous to the Act. There was, however, no evidence to support the proposition that Mr Dowling decided to make the 2023 Notice ‘to facilitate access to fisheries resources for commercial, recreational, traditional and non-consumptive uses’ within the meaning of s 3(d) of the Fisheries Act; or ‘to promote the commercial fishing industry and to facilitate the rationalisation and restructuring of the industry’ within the meaning of s 3(e). The respondents’ reliance on these provisions must fail.
The evidence does, however, support the conclusion that Mr Dowling approved the making of the 2023 Notice to provide for the management and use of fisheries within Portland Bay in ‘an efficient, effective and ecologically sustainable manner’. This purpose was not a purpose extraneous to the Fisheries Act. Rather, this purpose fell within the statutory objective set down in s 3(a) of the Fisheries Act.
It was clear that, for whatever reason, recreational fishers no longer saw the informal agreement as protective of their interests; and that there was insufficient support for a Code of Conduct to govern the activities of fishers in Portland Bay. In these circumstances, if the Authority were to manage the fisheries and provide for their use effectively and efficiently, it had to employ its regulatory powers under the Fisheries Act. Mr Dowling did so by deciding to issue a fisheries notice.
In limiting the use of certain commercial fishing equipment (mesh, trawl and seine nets, as well as longlines) and prohibiting the catch of yellowtail kingfish (a species preferred by recreational fishers), the decision-maker made provision for the management and use of fisheries in Portland Bay, including for their use by commercial fishers. We would add that there has been no suggestion in this case that the 2023 Notice made provision for the use and management of the Portland Bay in a manner other than an ‘ecologically sustainable’ manner. Indeed, Mr O’Sullivan’s evidence in cross-examination was that the Authority (with Mr Dowling as its CEO) had ‘some very experienced staff’, whom he ‘class[ed] as experts in fisheries management’.
Furthermore, it can reasonably be inferred from the decision brief given to Mr Dowling that, in making his decision to issue the 2023 Notice, he had regard to the fact that the supporters of the proposed notice were concerned about issues of ecological sustainability. These concerns were not only summarised in the decision brief itself, but were set out in full in many of the submissions attached to the brief.
The catalyst for the 2023 Notice was undoubtedly community and recreational fishers’ concern about, or opposition to, the applicant’s commercial fishing activities in Portland Bay. It does not follow from this, however, that the 2023 Notice was made for an improper purpose. The subject of concern was the applicant’s commercial fishing activities in Portland Bay; and from the decision-maker’s perspective, this concern gave rise to issues about the management and use of the fisheries in Portland Bay. The 2023 Notice addressed those issues.
The present case is not comparable to R v Toohey.81F[82] In that case it was said that regulations that declared an area of land in the Northern Territory to fall within the boundaries of a town for town-planning purposes were actually made for the purpose of preventing an Indigenous land claim. Since the regulations were made by the Administrator of the Northern Territory, it was said that the motive for the regulations could not be challenged, because a decision made by a representative of the Crown was not judicially reviewable. The High Court rejected this argument. It is in this context that Gibbs CJ made the statement on which counsel for the applicant relied, namely:
... if the Crown in Council makes a regulation which appears on its face to be made for a purpose that was not authorized by the statute under which it purports to be made, the regulation will be invalid. It would be anomalous if a regulation which bore the semblance of propriety would remain valid even though it should be shown in fact to be made for an unauthorized purpose; that would mean that a clandestine abuse of power would succeed when an open excess would fail.82F[83]
The present is not, however, a case in which a decision, bearing the ‘semblance of propriety’, has been made for an unauthorised purpose. Nor do we accept the applicant’s submission that it was not open to the respondents to rely on s 3(a) of the Fisheries Act in answer to this ground. In substance, the relevant facts were not in dispute and this issue is essentially one of applying the relevant provision of the Fisheries Act to those facts.
[82](1981) 151 CLR 170; [1981] HCA 74.
[83]Ibid 192 (Gibbs CJ, Stephen J agreeing at 215, Mason J agreeing at 225 and Wilson J agreeing at 283).
For the reasons we have stated, the applicant’s contention that the decision to issue the 2023 Notice was made for an improper purpose has no real prospect of success.

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

In written submissions, the applicant accepted that the judge had identified the correct principles with respect to this ground.83F[84] His submission was that the judge had misapplied these principles and, if properly applied, it was clear that the 2023 Notice was not ‘capable of being considered reasonably proportionate to’ the pursuit of the objectives in s 3 of the Fisheries Act. He contended that the judge had erred by failing to consider these objectives.
[84]See Reasons, [64]–[65].
The applicant also contended that the judge erred in concluding that his submissions under this ground proceeded ‘on the incorrect assumption as to the nature of the rights conferred by his OFAL’.84F[85] He contended that her Honour’s statement in her reasons that his ‘contentions go no further than complaints about the impact of the [2023] Notice on his personal circumstances’85F[86] was ‘not to the point’. In his submission, ‘[s]ignificant detriment to a commercial fisher’ was a relevant consideration, having regard to the subject matter, scope and purpose of the Fisheries Act.86F[87]
[85]Reasons, [66(b)].
[86]Ibid.
[87]Citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, [15]–[17] (Mason J); [1986] HCA 40.
Citing South Australia v Tanner,87F[88] the applicant contended that there was no real exercise of power. This was because:
It was not reasonably necessary to eject [him] from the Portland Bay fishery for snook in order to resolve the conflict between him and recreational fishers and particularly in circumstances where the Fisheries Notice expanded the no-netting zones beyond what was the subject of the conflict the notice sought to address. All they had to do was to impartially administer the existing law. Further to contend that the CEO had no duty to consult on the nil fin fishing version because ‘it was not incumbent on the decision-maker to engage further’ when information was being sought was also unreasonable in the legal sense.
[88](1989) 166 CLR 161, 167–8 (Wilson, Dawson, Toohey and Gaudron JJ); [1989] HCA 3.
The applicant contended that the 2023 Notice ‘was issued ad hominem to remove him from the zone so that the complaints of the recreational fishers could be resolved’. The applicant submitted that ‘on the evidence the Fisheries Notice ... [was] invalid on the ground that the exercise of power’ was invalid, being ‘disproportionate and unreasonable in the legal sense’.
In oral argument, counsel for the applicant characterised the width of operation of the 2023 Notice as ‘extraordinary’, given that it applied to virtually ‘the whole of the Portland Bay region’ and outside of the area previously addressed by the ‘gentleman’s agreement’ and regulation 144; and that it applied to ‘every species of fish conceivably caught by the applicant or any other commercial fisher, whether as a targeted species or as bycatch’. Counsel for the applicant supported this contention by reference to cl 8 of the 2023 Notice, which set the catch limit for yellowtail kingfish at zero. Counsel submitted that this fish ‘would be inevitably caught by commercial fishers as bycatch to the knowledge of Mr O’Sullivan’; and that this exposed commercial fishers to criminal penalties, even though the catch was unavoidable and inadvertent. He submitted that the result was effectively to prohibit commercial fishers from fishing in the waters of Portland Bay. In his submission this was so even though the recreational fishers had not sought this limit, and it made ‘no difference whatsoever to the opportunity they have of catching yellowtail kingfish’. Counsel for the applicant submitted that ‘the risk of accidental bycatch of a species not targeted by the applicant ... trigger[ed] a ban on all ocean species ... across the region’.
Counsel for the applicant submitted that the earlier proposed notice considered in the consultation process would not have had this effect, and that VRFish had supported this proposal. He submitted that ‘Parliament could not have intended that the risk of taking one fish species as bycatch would deny all access to all species to the whole of Portland Bay for 12 months’; and that ‘[s]uch an outcome [was] irrational and arbitrary and capricious’, and was not authorised by the Fisheries Act. Counsel submitted that there was no evidence at trial as to why the earlier bycatch limit of 50 kg was abandoned in favour of a zero catch limit. Counsel submitted that, although the total ban on longline use contemplated by the earlier notice was abandoned, with the 2023 Notice permitting longlines with up to 50 hooks, this did not improve the situation for commercial fishers. In his submission, the zero bycatch limit on yellowtail kingfish made fishing with a 50-hook longline virtually impossible.

We were not directed to any evidence explaining what led the draft notice distributed as part of the consultation process to be replaced with the 2023 Notice. We were taken to documents in evidence that indicated that the zero catch limit for yellowtail kingfish was introduced when the earlier draft notice was amended to allow the use of longlines with up to 50 hooks. Noting that the decision-maker, Mr Dowling, not only held the delegation to make the fisheries notice decision, but was also the CEO of the Authority, we were not directed to any evidence of any assessment made by the staff of the Authority and considered by the decision-maker about the respective effects of the 50 kg and zero catch limits for yellowtail kingfish and the consequences for the management and use of the fishery. Further, although the respondents’ counsel referred to the possibility that Mr McAdam might have conducted other commercial fishing activities in Portland Bay, we were not directed to any evidence as to the commercial fishing activities that he might, practically speaking, have conducted in the Bay once the 2023 Notice came into effect.
We conclude that, for a commercial fisher such as the applicant, the effect of the 2023 Notice was, as Mr O’Sullivan acknowledged, to deny him access to most of Portland Bay and to end his commercial fishing there for snook and pike, at least for the 12-month duration of the 2023 Notice and any other fisheries notice made in the same terms.106F[107] The evidence to which we were referred did not indicate that there was any reason relating to management or use of fisheries in Portland Bay in an efficient, effective and ecologically sustainable manner that supported such a particularly disadvantageous outcome for Mr McAdam. Bearing in mind also that the draft notice in circulation as part of the consultation process would not have had such an effect, and the sparsity of the evidence about the reasons for replacing a 50 kg catch limit with a zero catch limit for yellowtail kingfish, we conclude that the 2023 Notice was not capable of being considered reasonably appropriate and adapted to the purpose of providing for the management and use of fisheries in Portland Bay as contemplated by s 3(a) of the Fisheries Act.
[107]See [57] above.
Put another way, the respondents’ case was in large part that, in making the 2023 Notice, the decision-maker sought to balance the interests of recreational and commercial fishers. The respondents did not assert that Mr McAdam’s commercial fishing activities were inimical to provision for the management and use of the fisheries in the Bay, and there was no evidence to support such a case. If the decision-maker sought, as it was said, to provide for the management and use of the fisheries in the Bay by ‘balancing’ the interests of the two fishing sectors, then the decision failed to achieve this end. In light of the effect of the terms of the 2023 Notice set out in paragraph [121] above, there was no ‘balance’ struck between the interests of recreational and commercial fishers in Portland Bay. This was because, as Mr O’Sullivan acknowledged, the 2023 Notice, in practice, prevented the applicant, who was at the time the only commercial fisher in Portland Bay, from conducting his fishing activities in the area specified by the 2023 Notice, and this was most of Portland Bay.
In all the circumstances, we conclude that the 2023 Notice is not capable of being considered reasonably appropriate and adapted to the management and use of Victoria’s fisheries in Portland bay and is therefore not reasonably proportionate to the statutory purpose it was to serve, being that set out in s 3(a) of the Fisheries Act.
We would, accordingly, grant the applicant leave to appeal and uphold the appeal on this ground.

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 submissions

The applicant submitted that s 3A of the Fisheries Act required the Authority to apply the consultation principles when it was practicable to do so. He contended that there was evidence that it was practicable in this case to consult with him directly; to consult with experts and to make that material available to the parties; and to consult with respect to the final notice in so far as it differed from the draft notice, which ‘by its terms, operation and effect eliminated [his] right to fish in the enlarged Portland Bay fishing zone’.
More specifically, the applicant contended that, in breach of the consultation principles:
(a)there was a lack of ‘meaningful opportunity’ to consult in respect of the ‘radically different’ final notice, including with respect to allowing the applicant to remain an active fisher in the Portland Bay;
(b)there were substantial differences between the consultation brief and related correspondence with industry oversight bodies and the final decision brief; and, in consequence, the consultation that took place was deficient and misleading because it was on the incorrect basis that the existing fisheries would continue to be fished by both parties to the dispute;
(c)there was no consultation in relation to the 2023 Notice that ultimately issued regarding the proposed reduction of the catch limit for yellowtail kingfish from 50 kg to zero. In oral argument, counsel for the applicant submitted that the ‘threshold issue of practicability’ in the preamble to s 3A was clearly met, because there had already been a consultation process, including online, in respect of the draft notice. Counsel submitted that, as a practical matter, an online process could have been employed to consult on the final 2023 Notice. Such subsequent consultation was necessary because the previous consultation was conducted on the basis that the proposed catch limit of yellowtail kingfish would be 50 kg a day — not zero as in the 2023 Notice. Counsel noted that the 50 kg limit was not opposed by VRFish or by any other consultation response from recreational fishers;. and
(d)there was no consultation with experts concerning the fisheries or natural resources before the decision was made, and no direct consultation with the applicant — as the sole adversely affected party.
The applicant contended that, properly construed, the Parliament, ‘by the terms, operation and effect of s 3A’, showed an intention to make the consultation principles enforceable, as a condition of the validity of a decision made under the Fisheries Act. As the consultation principles were not observed, then, in his submission, citing Project Blue Sky Inc v Australian Broadcasting Authority (‘Project Blue Sky’),107F[108] the 2023 Notice was invalid. Noting that the 2023 Notice had expired, counsel submitted at the hearing that the alleged defects in the 2023 Notice, including the lack of consultation, also affected the current notice.
[108]Citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 389–90 [91] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28 (‘Project Blue Sky’).
The applicant submitted that the text, context and purpose of the Fisheries Act, as well as the second reading speech, supported his construction. He submitted that s 3A(1) of the Fisheries Act is expressed in mandatory terms, so that the words in s 3A(1) ‘the following consultation principles apply’ signified that the principles do or must apply. The applicant submitted that the use of the word ‘should’ and ‘should be’ in paragraphs (a)–(h) of s 3A(1) was indicative of a mandatory requirement. At the hearing, counsel for the applicant also argued that the word ‘apply’ does not operate in a discretionary manner, but rather the word directs that, where practicable, decisions are subject to the consultation principles.
The applicant further contended that the fact that the decision to issue the notice had a significant adverse effect on his business was indicative of the mandatory nature of the consultation principles. Counsel submitted that s 3A(1)(b) of the Fisheries Act expressed a legislative intention analogous to that referred to by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend.108F[109] In particular, he referred to Mason J’s statement in that case that ‘consideration of the subject matter, scope and purpose’ of the statute indicated that the Minister was obliged to consider the detriment that a grant of land to a land trust may cause to the interests of others.109F[110] The applicant submitted that an analogous legislative intention was manifest in s 3A(1)(b) of the Fisheries Act, which provided that ‘the level of consultation should reflect the likely impact of decisions on persons and fishery resources’. The applicant further submitted that the legislative purpose of the Fisheries Act was to invalidate an act done in breach of s 3A(1)(b), having regard to the text, scope and object of the statute.110F[111]

Respondents’ submissions

[109](1986) 162 CLR 24, 44; [1986] HCA 40.

[110]Citing Project Blue Sky (1998) 194 CLR 355, 389–90 [91] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28.

[111]Ibid [91]–[100]. The applicant also contended that, even if the decision to issue the 2023 Notice was not invalidated by the breach of the consultation principles in s 3A, it was nonetheless unlawful. Therefore, consistent with Project Blue Sky at [100], an interested party might apply for an injunction to prevent further action being taken in reliance on an unlawful decision. As will be seen, it is unnecessary to address this submission.

The respondents submitted that the judge correctly found that the consultation process was undertaken ‘sensibly, reasonably and pragmatically and in a way that afforded a genuine and meaningful opportunity for persons affected by the notice to have their views considered’.111F[112]
[112]Reasons, [69].
The respondents submitted that, on the proper construction of the Fisheries Act, compliance with s 3A was not a condition of the making of a valid decision under the Fisheries Act, including a decision to make a fisheries notice.112F[113] They submitted that the provision was not expressed in mandatory terms, and the principles applied only ‘so far as reasonably practicable’. They further submitted that the word ‘should’ was to be read in context in a directory, rather than a mandatory sense.113F[114] Further, the principles contained in s 3A do not have a ‘rule-like’ quality, but were ‘more in the nature of “indeterminate guidelines”’.114F[115]
[113]Citing Project Blue Sky (1998) 194 CLR 355, 389–90 [91] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28.
[114]Citing Environment Victoria Inc v AGL Loy Yang (2022) 71 VR 1, 19 [38]–[39] (Gorton J); [2022] VSC 814 citing Randren House Pty Ltd v Water Administration Ministerial Corporation (2020) 246 LGERA 1, 23 [67] (Leeming JA, Basten JA agreeing at [1]); [2020] NSWCA 14; Khabbaz v State Planning Commission [2022] SASC 11, [445] (Parker J).
[115]Citing Project Blue Sky (1998) 194 CLR 355, 391–2 [95]–[96] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28.
Further, the respondents contended that significant ‘public inconvenience’115F[116] would result if the applicant’s construction were accepted, as a failure to comply with the principles in s 3A would result in the ‘total failure’ of the decision, regardless of whether the failure was ‘major or minor, deliberate or inadvertent, fundamental or marginal’.116F[117] They submitted that their construction was supported by the legislative history.117F[118] Counsel for the respondents observed that the second reading speech emphasised the need to institute more flexible and less rigid consultation arrangements. The respondents also submitted that injunctive relief was unavailable, given that the 2023 Notice has expired and the current notice was the subject of a different consultation process.
[116]Ibid 392 [97].
[117]Citing Smith v Wyong Shire Council (2003) 132 LGERA 148, 156–7 [40]–[43] (Spigelman CJ); [2003] NSWCA 322.
[118]Citing Primary Industries Legislation Amendment Act 2009, s 27; Victoria, Parliamentary Debates, Legislative Assembly, 9 October 2008, 4062 (Minister for Agriculture); Fisheries Act 1995, ss 4, 32, 54, 62, 64B, 152, as at 2 March 2009.
Regarding the applicant’s specific contentions of breach of the consultation principles contained in s 3A of the Fisheries Act, the respondents noted that the applicant had availed himself of the opportunity that had been given him to provide feedback on the draft notice, and that this had been considered by the decision-maker.118F[119] They submitted that the decision-maker was not obliged to engage in further or alternative consultation with the applicant, nor was the decision-maker obliged to obtain expert evidence.
[119]Reasons, [74].
In respect of the applicant’s contention that there was a failure of consultation on the final notice insofar as it differed from the draft notice which was the subject of the public consultation, the respondents submitted that the 2023 Notice was not ‘radically different’ from the draft notice. Counsel submitted that, in fact, the final notice had largely the same effect as the draft notice distributed for consultation, so those affected were given an opportunity to provide their feedback, including in relation to their own fishing activities.119F[120] They submitted that this was demonstrated by the applicant’s response to the draft notice in the consultation process, which had also asserted that ‘in the event that the [proposed] fisheries notice is imposed, it will make [the applicant’s] fishing operations unviable. He will have to cease fishing’, this being, in the respondents’ submission, the same complaint he maintains against the 2023 Notice. In this context, the respondents submitted that there was no requirement to undertake additional consultation following a change made in response to the feedback received in a consultation process. They submitted that, in such circumstances, a requirement for further consultation would be ‘inimical to the orderly and effective public administration’.120F[121]

Consideration — ground 3 (inadequacy of consultation)

[120]Citing Randwick City Council v Minister for the Environment (1998) 54 ALD 682, 726 (Finn J).

[121]Ibid.

This ground turns on s 3A of the Fisheries Act, which provides as follows:
3A Consultation principles
(1)To the extent that it is practicable, the following consultation principles apply to decisions made by the Minister, Secretary or Victorian Fisheries Authority under this Act, which affect the use and conservation of Victoria’s fisheries resources –
(a)the purpose of consultation and any consultation process should be clear, open, timely and transparent;
(b)the level of consultation should reflect the likely impact of decisions on persons and fisheries resources;
(c)the consultation process should be adequately resourced;
(d)the consultation process should be flexible and designed to take into account the number and type of persons to be consulted and their ability to contribute to the process;
(e)the consultation process should involve consideration of representative advice which represents the views and values of the persons represented;
(f)representative advice in relation to the following persons or groups should be considered during any consultation process—
(i)recreational fishers;
(ii)commercial fishers;
(iii)aquaculture operators;
(iv)conservation groups;
(v)indigenous groups;
(g)the consultation process should consider expert advice, which should be obtained from the most appropriate provider;
(h)any expert advice obtained should be made available to persons participating in the consultation process.
...
Under the Fisheries Act, the decisions that may be taken ‘to affect the use and conservation of Victoria’s fisheries resources’ are diverse and include, as we have seen, ‘a decision by the Minister to make a fisheries notice under section 152(1)’. Section 3A is therefore applicable to the decision by the delegate of the Minister to make the 2023 Notice.
We accept that, as the respondents submitted, there is nothing in the terms of s 3A or elsewhere in the Fisheries Act to support the conclusion that an act done (or not done) in breach of these provisions renders a decision invalid.
First, the consultation principles are broadly stated. The extent to which they will apply in any particular case will depend on what is ‘practicable’. This itself is an imprecise criterion, and its application is left to the decision-maker to determine. The matters that are likely to affect a decision-maker’s assessment of ‘practicability’ may vary, depending on the decision to be made and the circumstances surrounding it. They will presumably include the nature of the decision in contemplation, and the range of interests potentially affected by it. Amongst other things, they may also include timing and resourcing issues, the likely extent of community engagement, and the likely significance of expert contributions.
Second, the language of s 3A is not indicative of a mandatory requirement. As already noted, the consultation principles apply ‘[t]o the extent ... practicable’. That is, the legislature did not contemplate a uniform application of the consultation principles. Rather the legislature provided for a more flexible, context-dependent criterion of application.
Thirdly, the use of the words ‘should’ and ‘should be’ are not synonymous with ‘must’ and ‘must be’ in the present context. Rather, consistently with evaluations inherent in the consultation principles, ‘should’ and ‘should be’ are indicative of a desirable or recommended state of affairs.121F[122] These provisions do not indicate rules as to consultation, which if not applied in a particular way, result in the invalidity of the ultimate decision.
[122]See also Randren House Pty Ltd v Water Administration Ministerial Corporation (2020) 246 LGERA 1, 23 [67]–[69] (Leeming JA, Basten JA agreeing at [1]); [2020] NSWCA 14; Khabbaz v State Planning Commission [2022] SASC 11, [445] (Parker J).
In consequence, the application of the consultation principles is essentially a matter for the decision-maker. That is, it is for the decision-maker to determine what will be ‘adequate’ resourcing; the appropriate relationship between the level of consultation and the likely impact of the decisions; how the process should be designed to take into account ‘the number and type of persons to be consulted and their ability to contribute to the process’; how the process can be made ‘clear, open, timely and transparent’; or who is ‘the most appropriate provider’ of expert advice. In substance, this is akin to a policy decision. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky:
When a legislative provision directs that a power or function be carried out in accordance with matters of policy, ordinarily the better conclusion is that the direction goes to the administration of a power or function rather than to its validity.122F[123]
[123]Project Blue Sky (1998) 194 CLR 355, 391 [95] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28.
Having regard to the text, purpose and context of the Fisheries Act, we accept that, as the respondents submitted, compliance with s 3A is not a condition of the making of a valid decision under the Fisheries Act, including a decision to make a fisheries notice. This is, as the respondents submitted, consistent with the legislative history of the provision.123F[124]
[124]See Victoria, Parliamentary Debates, Legislative Assembly, 9 October 2008, 4062 (Minister for Agriculture).

Further, in this case, the applicant was given an opportunity to make a submission to the decision-maker and in fact did so. His submission accompanied the decision-brief on which the decision-maker acted; and it stated, amongst other things, that ‘[i]n the event that the fisheries notice is imposed, it will make Mr McAdam’s fishing operations unviable’. The fact that he would have made the same point had there been further consultation tends to indicate that there may in fact have been little to be gained by further consultation before deciding to issue the 2023 Notice. In any event, as Finn J indicated in RandwickCity Council v Minister for the Environment, it is generally not in the interests of effective administration to give participants in a consultation process a further opportunity to address the conclusion arrived at by the decision-maker (and, therefore, in the absence of express provision to the contrary, not readily required of an administrator).124F[125] We conclude that, in this case, the decision-maker was not obliged to engage in further consultation before deciding that the 2023 Notice should be made and there was no disclosed breach of s 3A of the Fisheries Act. In sum, this ground has no real prospect of success.

Ground 4 — whether the judge erred in finding that the 2023 Notice did not impermissibly create an ‘area of exclusion’ outside the limits of Victoria

Applicant’s submissions

[125](1998) 54 ALD 682, 726.

By this ground, the applicant seeks to impugn the validity of the 2023 Notice as an impermissible exercise of State power on two bases. First, he submitted that, pursuant to the Coastal Waters (State Powers) Act 1980 (Cth) (‘Coastal Waters Act’), the State of Victoria does not have the power to legislate extra-territorially in respect of its coastal waters. Second, he submitted that s 51(x) of the Constitution125F[126] impliedly excluded an exercise of State legislative power in the form effected by the 2023 Notice, which the applicant characterised as an impermissible ‘assertion of sovereignty’.
[126]Section 51(x) provides that the Commonwealth Parliament has power to make laws ‘for the peace, order and good government of the Commonwealth with respect to: ... (x) fisheries in Australian waters beyond territorial limits’.
On the first basis, the applicant submitted that the State is not competent to legislate in respect of its coastal waters, being those waters beyond and within three nautical miles of the mean low water-mark. In the applicant’s submission, this incompetence arose from the operation of s 5 of the Coastal Waters Act, which, in his submission, provided for the relevant legislative powers of the States. The applicant submitted that s 5(c) of that Act cannot reasonably be said to confer legislative power on the State in respect to the making of the 2023 Notice, as the subject fishery is not the subject of any arrangement between the State and the Commonwealth and falls entirely within three nautical miles of the mean low water-mark. The applicant further submitted that s 5(a) cannot confer legislative power on the State to make the 2023 Notice, as s 7 of the Coastal Waters Act prohibits the extension of the limits of a State.
On the second basis, the applicant submitted that s 51(x) of the Commonwealth Constitution impliedly excluded the States from exercising legislative power through the creation of a ‘no-go zone’ in Australian waters. This ‘no-go zone’, so the applicant submitted, is distinct from the exercise of extra-territorial legislative power, in that the effect of the 2023 Notice was to ban commercial fishers from Australian waters. The applicant submitted that this is appropriately characterised as an ‘assertion of sovereignty’ beyond the power of the State. He submitted that the exclusivity of the waters and control of the fisheries within them, except through mutual arrangements between the State and the Commonwealth, is a distinct issue; and does not depend on whether the State has concurrent power with the Commonwealth to legislate extra-territorially with respect to such waters.

Respondents’ submissions

The respondents submitted that the High Court has upheld the power of the States to legislate extraterritorially with respect to offshore fisheries, both within their coastal waters and up to the outer 200 nautical mile limit.126F[127] The respondents argued that Babington127F[128] and Lavender128F[129] accepted that such legislation constituted an orthodox exercise of extraterritorial power. The respondents submitted that the Commonwealth’s assertion of sovereignty under the Seas and Submerged Lands Act 1973 (Cth) (the ‘SSL Act’) did not affect the State’s extraterritorial legislative power in respect of its offshore waters.129F[130] Further, no implied exclusion of State power in this respect is available on a proper construction of s 51(x) of the Constitution.

Consideration — ground 4 (impermissible exercise of State power)

[127]Citing Babington (2016) 240 FCR 495; [2016] FCAFC 45; Lavender (2018) 336 FLR 37; [2018] NSWCA 174.

[128](2016) 240 FCR 495; [2016] FCAFC 45.

[129](2018) 359 ALR 96; [2018] NSWCA 174.

[130]Citing Lavender (2018) 336 FLR 37, [17] (Bathurst CJ); [2018] NSWCA 174.

Section 6 of the SSL Act declares that ‘sovereignty in respect of the territorial sea’ is vested in the Commonwealth. Section 11 of the SSL Act further declares that the ‘sovereign rights of Australia ... in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources’ are also vested in the Commonwealth. The territorial sea refers to those waters extending up to 12 nautical miles from the territorial sea baseline (commonly described as the coastal low water-mark).
Following the decision in New South Wales v The Commonwealth130F[131] in which the High Court upheld the validity of the SSL Act, the Commonwealth and the States entered into the ‘Offshore Constitutional Settlement’, to address matters arising with respect to Commonwealth and State jurisdiction over coastal waters, being the waters up to three nautical miles from the territorial sea baseline. The Coastal Waters Act was part of this arrangement.
[131](1975) 135 CLR 337; [1975] HCA 58.
Sections 5 and 7 of the Coastal Waters Act relevantly provide as follows:
5Legislative powers of States
The legislative powers exercisable from time to time under the constitution of each State extend to the making of:
(a)all such laws of the State as could be made by virtue of those powers if the coastal waters of the State, as extending from time to time, were within the limits of the State, including laws applying in or in relation to the sea‑bed and subsoil beneath, and the airspace above, the coastal waters of the State;
...
(c)laws of the State with respect to fisheries in Australian waters beyond the outer limits of the coastal waters of the State, being laws applying to or in relation to those fisheries only to the extent to which those fisheries are, under an arrangement to which the Commonwealth and the State are parties, to be managed in accordance with the laws of the State.
...
7 Savings
Nothing in this Act shall be taken to:
(a) extend the limits of any State;
(b)derogate from any power existing, apart from this Act, to make laws having extraterritorial effect;
(c)give any force or effect to a provision of a law of a State to the extent of any inconsistency with a law of the Commonwealth or with the Constitution of the Commonwealth of Australia or the Commonwealth of Australia Constitution Act.
So far as the Australian States are concerned, the general position is that the territory of a State ends at the low water-mark, and includes waters within any bay, gulf, estuary, river, creek, inlet, port or harbour that on 1 January 1901 was within the limits of the State and remains within those limits.131F[132]
[132]New South Wales v The Commonwealth (1975) 135 CLR 337, 371 (Barwick CJ), 378 (McTiernan J), 461, 468, 470 (Mason J), 491 (Jacobs J); [1975] HCA 58.
Notwithstanding this, under their respective constitutions, the States have the power to make laws with extraterritorial effect provided these laws are sufficiently related to the peace, order and good government of the State.132F[133] Once this is recognised, it is clear that the applicant’s argument must fail. It cannot be denied that provision for the management and use of fisheries in Portland Bay do not have a sufficient connection with the peace, order and good government of the State of Victoria. In Port MacDonnell, the High Court accepted the sufficiency of the connection between a South Australian law for the management of a fishery, which, as in this case, was ‘a finite resource available for exploitation and exploited by [the State’s] residents’ with the peace, order and good government of a State.133F[134] Nothing in the Coastal Waters Act affects this conclusion, which, as Bathurst CJ noted in Lavender, was in fact enacted so ‘to remove any remaining doubts about the validity of State legislation’ of that kind.134F[135] The Full Court of the Federal Court reached the same conclusion in Babington.135F[136] After referring to Pearce v Florenca136F[137] and Port MacDonnell,137F[138] the Court affirmed:
These two cases establish that the legislative power of the States under their own constitutions supports extraterritorial fishing regulations within both the 3 and 200 nautical mile limits: see also Alcock v Commonwealth (2013) 210 FCR 454 at [84]; Commonwealth v Yarmirr (2001) 208 CLR 1 at 59.138F[139]
[133]Pearce v Florenca (1976) 135 CLR 507, 514, 518–9 (Gibbs J); [1976] HCA 26; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 14 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ); [1988] HCA 55; Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340, 372 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1989] HCA 49 (‘Port MacDonnell’). See also the discussion in Babington (2016) 240 FCR 495, 503 (Kenny, Perram, Robertson, Griffiths and Perry JJ); [2016] FCAFC 45; Commonwealth vYarmirr (2001) 208 CLR 1, 87 [63] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); [2001] HCA 56; Lavender (2018) 336 FLR 37, 65 [120]–[121] (Bathurst CJ, Beazley P agreeing at 53 [68]), 71 [146], 73–4 [154]–[158] (Basten JA); [2018] NSWCA 174. Section 3 of the Statute of Westminster (UK), adopted by the Statute of Westminster Adoption Act 1942 (Cth), provided for the power of a Dominion Parliament to legislate extraterritorially. Section 2 of the Australia Act 1986 (Cth) also provided for the State Parliaments to make laws having extraterritorial effect.
[134]Port MacDonnell (1989) 168 CLR 340, 373 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1989] HCA 49.
[135]Lavender (2018) 336 FLR 37, 43 [18] (Bathurst CJ); [2018] NSWCA 174.
[136](2016) 240 FCR 495, 503–4 (Kenny, Perram, Robertson, Griffiths and Perry JJ); [2016] FCAFC 45.
[137](1976) 135 CLR 507; [1976] HCA 26.
[138](1989) 168 CLR 340, 372; [1989] HCA 49.
[139]Babington (2016) 240 FCR 495, 503 [35] (Kenny, Perram, Robertson, Griffiths and Perry JJ); [2016] FCAFC 45.
The Court went on to say that its conclusion would have been the same, whether or not there was an arrangement (as in that case) between the Commonwealth and the State for the management of the fishery.139F[140] Furthermore, the Court in Babington rejected the contention that s 51(x) of the Constitution impliedly excluded an exercise of State legislative power of the kind in question in this case.140F[141] It suffices to refer to the Court’s reasons in that case,141F[142] with which we agree.
[140]Ibid 503 [37]. See also Lavender (2018) 336 FLR 37, 42–3 [14]–[17] (Bathurst CJ); [2018] NSWCA 174.
[141]See also Lavender (2018) 336 FLR 37, 74–5 [160]–[165] (Basten JA, Beazley P agreeing at 53 [67]–[68]); [2018] NSWCA 174.
[142]Babington (2016) 240 FCR 495, 501 [30], 503 [35] (Kenny, Perram, Robertson, Griffiths and Perry JJ); [2016] FCAFC 45.
For these reasons, this proposed ground has no real prospect of success.

Grounds 5, 6, 7, 8 and 9 — whether judge’s reasons adequate (including as to findings as to sufficiency of evidence and availability of inferences); whether proper consideration

As already noted, the applicant advanced further grounds challenging the judge’s failure to make findings as to the applicant’s inability to fish in the area subject to the 2023 Notice, the adequacy of the judge’s reasons generally, the sufficiency of evidence to support findings made by the judge, and the judge’s failure to draw inferences, as well as asserting that the judge failed to properly consider the applicant’s case. In view of the foregoing conclusions, there is nothing to be gained by considering these grounds and we do not propose to do so.

Conclusion

For the reasons we have stated, we are of the view that leave to appeal should be refused, save with respect to the applicant’s proposed ground 2. We would grant leave to appeal with respect to ground 2 and, for the reasons set out above, allow the appeal.
The orders of the primary judge should be set aside and in their place it should be declared that the Fisheries (Portland Bay Commercial Fisher) Notice 2023 No S 548 dated 12 October 2023 was not validly made under the Fisheries Act 1995 and was wholly void at all times. It is not necessary to order any of the further substantive relief sought in the amended originating motion, in order to give effect to the conclusions we have reached.
Our provisional view is that the respondents should pay the applicant’s costs of the appeal, including the application for leave to appeal, and his costs of the proceeding in the Trial Division.
We will, in any event, hear the parties as to the final form of the orders to be made.
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SCHEDULE OF PARTIES

PHILLIP McADAM	First applicant
and
VICTORIAN FISHERIES AUTHORITY	First respondent
STATE OF VICTORIA	Second respondent
THE MINISTER FOR OUTDOOR RECREATION	Third respondent

[2025] VSCA 186

19 August 2025