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McAdam v Victorian Fisheries Authority

McAdam v Victorian Fisheries Authority

Case [2024] VSC 702 26 November 2024

Judicial Review

Constitutional Validity

Statutory Interpretation

Administrative Law

Constitutional Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 02603

PHILIP McADAM	Plaintiff
v
VICTORIAN FISHERIES AUTHORITY	First Defendant
- and -
STATE OF VICTORIA	Second Defendant
- and -
THE MINISTER FOR OUTDOOR RECREATION	Third Defendant

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JUDGE:	K Judd J
WHERE HELD:	Melbourne
DATE OF HEARING:	1-3 October 2024
DATE OF JUDGMENT:	26 November 2024
CASE MAY BE CITED AS:	McAdam v Victorian Fisheries Authority
MEDIUM NEUTRAL CITATION:	[2024] VSC 702

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ADMINISTRATIVE LAW – Judicial Review – Validity of delegation to issue a fisheries notice – Scope of power to authorise a fisheries notice – Whether making of fisheries notice is delegated legislation or an administrative decision – Rights given by Ocean Fisheries Access Licence – Consultation process – Whether failure to consider mandatory relevant considerations – Fisheries Act 1995 ss 3A, 38, 68A, 114, 152 – Conservation, Forests and Land Act 1987 s 11 – Interpretation of Legislation Act 1958 s 38 – Kelly v Watson (1995) 10 FCR 305 – Benwell v Gottwald [1978] VR 253 – Harper v Minister for Sea Fisheries (1989) 168 CLR 314 – Port Phillip Scallops Pty Ltd v Minister for Agriculture (2018) 238 LGERA 344 – Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee (2007) 163 FCR 451 – Vanstone v Clark (2005) 147 FCR 299.

CONSTITUTIONAL LAW – Whether fisheries notice was invalid by reason of an implied constitutional restriction – Commonwealth Constitution s 51(x) – Babington v Commonwealth (2016) 240 FCR 295.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	P King	Colin Biggers and Paisley
For the Defendants	S Gory	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Overview.............................................................................................................................................. 1

Evidence - Rulings............................................................................................................................. 3

Evidence – Factual findings............................................................................................................. 5

Ground 1 – Validity of delegation.................................................................................................. 8

Ground 2 – Judicial review grounds............................................................................................ 11

Characterisation of plaintiff’s rights............................................................................................ 12

Characterisation of the Fisheries Notice...................................................................................... 14

Consultation process....................................................................................................................... 16

Ground 3 – Scope of power to authorise the Fisheries Notice................................................ 20

Ground 4 – Validity under the Commonwealth Constitution................................................ 26

Conclusion......................................................................................................................................... 27

HER HONOUR:

Overview

This proceeding concerns a challenge to the validity of the Fisheries (Portland Bay Commercial Fishery) Notice 2023 (Fisheries Notice).

The plaintiff is a commercial fisher of over 45 years standing. He holds an Ocean Fishery Access Licence (OFAL) granted under s 38 of the Fisheries Act 1995 and reg 234 of the Fisheries Regulations 2019.

The first defendant is the Victorian Fisheries Authority (VFA) which is the statutory authority established under the Victorian Fisheries Authority Act 2016. The VFA is responsible for managing and developing Victoria’s fisheries resources in a coordinated and strategic way to ensure their ongoing sustainability, as well as the promotion of responsible boating, fishing and fishing-related activities.

The second defendant is the State of Victoria.

The third defendant is the Minister for Outdoor Recreation, the Minister responsible for the administration of the Fisheries Act.

By…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McAdam v Victorian Fisheries Authority

Details

AGLC: McAdam v Victorian Fisheries Authority [2024] VSC 702
Case: [2024] VSC 702
Decision Date: 26 November 2024

CaseChat Overview and Summary

McAdam v Victorian Fisheries Authority was a case before the Court where the plaintiff, McAdam, challenged the validity of a fisheries notice issued by the Victorian Fisheries Authority (VFA). The dispute centred on the authority's power to delegate the issuance of a fisheries notice and whether the notice was a form of delegated legislation or an administrative decision. McAdam further argued that the VFA failed to consider mandatory relevant considerations when issuing the notice, and that the notice was invalid by reason of an implied constitutional restriction.

The court was required to determine several legal issues, including the scope of the VFA's power to delegate the issuance of a fisheries notice, whether the making of the notice constituted delegated legislation or an administrative decision, and whether the VFA failed to consider mandatory relevant considerations in the consultation process. Additionally, the court had to examine whether the fisheries notice was invalid by reason of an implied constitutional restriction.

The court found that the Fisheries Act 1995 permitted the VFA to delegate the issuance of a fisheries notice, but that the making of the notice was an administrative decision rather than delegated legislation. The court held that the VFA had not failed to consider mandatory relevant considerations, and that the notice was not invalid by reason of an implied constitutional restriction. The court rejected McAdam's arguments and dismissed the application for judicial review.

The court's final orders were that McAdam pay the VFA's costs of the proceeding, and that the VFA's decision to issue the fisheries notice was upheld. The court found that the VFA had acted within its statutory powers, and that the notice was a valid administrative decision. The court held that the VFA had considered all relevant considerations in the consultation process, and that the notice did not contravene any implied constitutional restrictions.

Orders