McAdam v Victorian Fisheries Authority
[2024] VSC 702
•26 November 2024
| 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 instrument of delegation pursuant to s 11 of the Conservation, Forests and Land Act 1987 (CFL Act) dated 24 August 2022, the Hon Sonya Kilkenny MP, Minister for Fishing and Boating, delegated the power to issue a fisheries notice under s 152 of the Fisheries Act (instrument of delegation) to the Chief Executive Officer of the VFA (CEO).
On 12 October 2023, the CEO made a decision to issue the Fisheries Notice. On 16 October 2023, the Fisheries Notice was published in the Victoria Government Gazette and on the Victorian Notices website.[1]
[1]Victoria, Government Gazette, No S 548, 16 October 2023.
The Fisheries Notice provided as follows:
FISHERIES (PORTLAND BAY COMMERCIAL FISHERY) NOTICE 2023
Title(1)
This Notice may be cited as the Fisheries (Portland Bay Commercial Fishery) Notice 2023.
Objectives(2)
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 Ocean Fishery Access Licence holders and Trawl (Inshore) Fishery Access Licence holders.
Authorising provisions(3)
This Notice is made under sections 68A, 114 and 152 of the Act.
Commencement(4)
This Notice comes into operation on 16 October 2023.
Definitions(5)
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 Ocean Fishery Access Licence.
Prohibition on the use of nets in specified waters of Portland Bay(6)
(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.
Use or possession of fishing lines in or on specified waters of Portland Bay(7)
(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.
Catch limit for yellowtail kingfish(8)
(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.
Application to Fisheries Reserves(9)
For the purposes of section 152(4), this notice applies to all Fisheries Reserves.
Revocation(10)
Unlesssooner revoked, this Notice will be revoked on 16 October 2024.
By an amended originating motion for judicial review, the plaintiff seeks declaratory, injunctive and other relief. Whether the plaintiff is entitled to relief, against whom, and in what form, depends on my conclusions as to the validity of the Fisheries Notice.
In short summary, the plaintiff submits that the Fisheries Notice is invalid on the basis that:
(a) it was made without authority in the decision maker;
(b) the decision-maker exceeded his jurisdiction in issuing the notice;
(c) the legislation does not authorise any such notice, which is beyond its scope; and
(d) the Parliament of Victoria had no legislative power to authorise the legislation under which the notice was made.
For the reasons set out below, I consider that the plaintiff’s challenges to the validity of the Fisheries Notice are not made out.
Evidence - Rulings
The plaintiff relied on six affidavits in this proceeding. Four were made by the plaintiff himself (on 24 May 2024, on 21 August 2024, on 23 August 2024 and on 1 October 2024) and two were made by Mr Andrew Delony (on 7 August 2024 and on 21 August 2024).
The defendants objected to parts of the plaintiff’s affidavits, primarily on the grounds of relevance. I agreed to the plaintiff’s suggestion to accept the affidavits as provisionally received and to reserve my ruling on the objections until final judgment.
Insofar as the plaintiff and Mr Delony depose to their belief about the motivation of the VFA and the effect of licence conditions and the Fisheries Notice, I rule that this evidence is inadmissible on the basis of the opinion rule and relevance. Accordingly, I uphold the objection to the following parts of the plaintiff’s affidavit evidence:
(a) affidavit of the plaintiff made on 24 May 2024 – paragraph 24, 2nd and 3rd sentence; paragraph 32, 2nd sentence; paragraph 36;
(b) affidavit of the plaintiff made on 21 August 2024 – paragraphs 14, 24, 25, 29;
(c) affidavit of Andrew Delony made on 7 August 2024 – paragraphs 10, 11, 12, 13, 15, 16-36 (inclusive).
Insofar as the plaintiff deposes to his belief about political interference, I rule that this evidence is inadmissible on the basis of the opinion rule and relevance. Accordingly, I uphold the objection to paragraphs 30, 31, 32 and 33 of the affidavit of the plaintiff made on 21 August 2024.
Insofar as the plaintiff deposes to the motivation of those engaging in or choosing not to engage in consultation about the Fisheries Notice, I rule that this evidence is inadmissible on the basis of the opinion rule and relevance. Accordingly, I uphold the objection to paragraph 10 of the affidavit of the plaintiff made on 21 August 2024.
Insofar as the plaintiff deposes to his belief as to the status of the instrument of delegation, I rule that this evidence is inadmissible on the basis of the opinion rule. Accordingly, I uphold the objection to paragraphs 37, 38, 39 and 40 of the affidavit of the plaintiff made on 21 August 2024.
Insofar as Mr Delony deposes to activity relating to his own harvesting of pippies, I rule that this evidence is irrelevant. Accordingly, I uphold the objection to paragraphs 3-9 (inclusive) of the affidavit of Andrew Delony made on 21 August 2024.
The defendants relied on two affidavits of Mr Luke O’Sullivan, Director of Fisheries Management at the VFA, the first made on 14 August 2024 and the second made on 13 September 2024. A number of objections were made to the affidavits of Mr O’Sullivan and I ruled on them prior to Mr O’Sullivan giving his oral evidence.
Mr O’Sullivan was cross-examined on his affidavits at the trial of this proceeding.
Evidence – Factual findings
The affidavits (together with their exhibits) and the oral evidence established the following relevant facts.
The plaintiff has conducted a commercial fishing practice over a period of 45 years. He has two fishing vessels, one focusing on sardines and anchovy and the other for beach seining and mesh netting, catching predominantly King George whiting, pike or snook, snapper and calamari. Until 2022, the plaintiff’s fishing business operated in the Port Phillip Bay Area. From 2023, he has operated the business in the Portland Bay area.
In the period that followed the plaintiff’s move to the Portland Bay area, he experienced opposition to his fishing, including via social media platforms.
Prior to 2023, there had been an informal agreement in the Portland Bay area between recreational fishers and commercial fishers, whereby the use of netting, including mesh nets, by local commercial fishers in Portland Bay was restricted.[2]
[2]The informal 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 local community continued to refer to it as the informal agreement or the gentleman’s agreement.
By mid-2023, the VFA had received complaints from local community members about the plaintiff’s fishing activities. Part of the complaints were to the effect that the plaintiff was conducting fishing activities in breach of the informal agreement, although it was accepted by the defendants that the plaintiff had not, in fact, breached the informal agreement. The VFA 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 VFA and the Minister for Outdoor Recreation.
Mr O’Sullivan testified that:
there 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 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.[3]
[3]Transcript of Proceedings, McAdam v Victorian Fisheries Authority (Supreme Court of Victoria, S ECI 2022 04427, K Judd J, 3 October 2024) 206.
In July 2023, the VFA attempted to develop a Code of Conduct to address community concerns. Seafood Industry Victoria (SIV), the peak body for the Victorian seafood industry representing the interests of commercial fishers, supported the implementation of a Code of Conduct. However, VRFish, the representative peak body for recreational fishing in Victoria, advised that it favoured an enforceable instrument.
As a result, a decision was made to proceed by way of consultation for the purposes of issuing a fisheries notice.
The consultation plan provided for:
(a) a two week consultation period;
(b) consultation with relevant representative groups including SIV, VRFish and Non-Netting Portland Group;
(c) consultation with all holders of an OFAL and all holders of a Victoria Inshore Trawl Licence;[4]
(d) the provision of information to stakeholders, including a copy of the draft fisheries notice; and
(e) publication of the results of consultation on the VFA website, unless the person making the submission requested the contrary.
[4]The consultation brief noted that only one holder of an OFAL (the plaintiff) was currently fishing in Portland Bay and only a further five had fished in the area in the last 4 years.
In accordance with the consultation plan, the proposed draft fisheries notice (draft notice) was sent to the relevant stakeholders, including the plaintiff, under cover of letter which included the following:
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 on the take of yellowtail kingfish in specified waters of Portland Bay by Ocean Fishery Access Licence 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, wrasse and pipi fishing would not be impacted by this notice.
Over 300 submissions were received as part of the consultation process. The plaintiff objected to the draft notice by way of letter from his solicitor (plaintiff’s letter). Insofar as the plaintiff’s letter addressed the content of the draft notice, the plaintiff raised a number of issues including concerns about 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.
The plaintiff’s letter was included in the consultation process, but was not included in the collated documents to be published as submissions, as the plaintiff’s solicitor did not provide confirmation that the plaintiff’s letter was intended to be a submission and therefore made public.
Ultimately, a decision brief was prepared for the CEO (decision brief), recommending that he approve and issue the Fisheries Notice. The decision brief set out the key information for the Fisheries Notice, including its purpose; a summary of the feedback received as part of the consultation process; and a summary of the recommended decision. The submissions made by stakeholders were attached to the decision brief.
The Fisheries Notice recommended in the decision brief and ultimately approved was substantially the same as the draft notice, but was not identical. In particular:
(a) the catch limit for specified commercial fishers with respect to the taking of yellowtail kingfish was 50 in the draft notice and zero in the Fisheries Notice; and
(b) the use of longlines was not permitted in the draft notice, but the Fisheries Notice permitted the use of one longline with no more than 50 hooks.
The decision brief referred to the Fisheries Notice having ‘minimal impact on the traditional commercial fishing that has been undertaken in the Portland Bay area’. The explanatory statement, included with the decision brief, stated that ‘[t]he new arrangement will help to resolve conflict between commercial netters and recreational fishers in the highly valued Portland Bay area’.
The CEO approved the decision brief on 12 October 2023 and the Fisheries Notice was published and came into effect on 16 October 2023.
Ground 1 – Validity of delegation
The plaintiff contended that the instrument of delegation was invalid for two reasons. First, the plaintiff contended that there is no power of delegation to issue a fisheries notice in the Fisheries Act itself; and insofar as there is a power of delegation in s 11 of the CFL Act, it does not extend to a power to issue a fisheries notice. The plaintiff further submitted that a reference to the Minister in s 11 of the CFL Act does not include any Minister other than the Minister administering the CFL Act and that there can only ever be one Minister referred to in s 11.
Alternatively, the plaintiff contended that at the time the Fisheries Notice was issued, there had been a change of government and the issuing of new portfolios. Relevantly, there was a new Minister responsible for administering the Fisheries Act. That Minister was Mr Dimopoulos, as Minister for Outdoor Recreation, rather than Ms Kilkenny, as Minister for Fishing and Boating. The CEO was a delegate of the Minister for Fishing and Boating as opposed to a delegate of the Minister for Outdoor Recreation. As such, the CEO held no valid or current delegation.
The defendants submitted that the delegation to the CEO was validly authorised by s 11 of the CFL Act and is taken to have been made by the (current) Minister by operation of the Administrative Arrangements Order in place at the time of the fisheries notice.[5]
[5]Victoria, Victorian Government Gazette, No S 717, 19 December 2022.
I accept the defendants’ submissions.
The express terms of s 11(1)(f) of the CFL Act permit the Minister to delegate any of the Minister’s powers, functions or duties conferred or imposed under the CFL Act ‘or any other Act as are specified in the instrument’ to the VFA or the CEO. Here, the instrument of delegation ‘specified’ the applicable powers, functions and duties under the Fisheries Act, including s 152 of the Fisheries Act. The delegation was to the CEO.
The delegation was made by the Minister for Fishing and Boating who was, amongst other things, responsible for administering the Fisheries Act, the Victorian Fisheries Authority Act 2016 and the CFL Act in so far as it relates to the exercise of power for the purposes of the Fisheries Act.[6]
[6]Premier (Vic), General Order (27 June 2022).
I do not accept the plaintiff’s submission that there can only ever be one Minister referred to in s 11 of the CFL Act. Administrative arrangements routinely provide for shared responsibility in respect of Acts of Parliament and the definition of Minister in s 38 of the Interpretation of Legislation Act 1958 makes it clear that different Ministers can administer the same provision in an Act:
Minister means the responsible Minister of the Crown for the time being administering the provision in which, or in respect of which, the expression is used or, if, for the time being, different Ministers are administering that provision in different respects, each of those Ministers to the extent that he or she is administering that provision in the relevant respect, and where a Minister of the Crown is referred to by the title of his or her Ministerial office, the reference shall be construed as including a reference to a Minister of the Crown for the time being acting for or on behalf of that Minister. [7]
[7]Interpretation of Legislation Act 1958 s 38 (definition of ‘Minister’).
At the relevant time, the administrative arrangements made it clear that the Minister for Fishing and Boating had responsibility for the CFL Act in so far as it related to the Fisheries Act and that the Minister for Environment and Climate Action had responsibility for the CFL Act, save for a number of exceptions. Relevantly:
Except in so far as it relates to the exercise of powers for the purposes of the Fisheries Act 1995 (these powers are administered by the Minister for Fishing and Boating).[8]
[8]Premier (Vic), General Order (27 June 2022).
In respect of the plaintiff’s alternate argument under this ground, a delegation is not revoked when the office of Minister passes to a new holder. Rather, a ministerial instrument of delegation continues in force after the delegating Minister has ceased to hold office.[9]
[9]Aban v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 93, 98.
The same considerations and legal principles relevant to the legislation under consideration in Kelly v Watson[10] are applicable here:
... the recipient of a delegation of powers under the subsection is not in any real sense the agent of the person who exercises the power to delegate. The effect of the delegation is to confer upon the delegate an authority which he must exercise in accordance with the requirement of the statute but independently of any direction which might be given to him whether by the person delegating the power or any other person. He must exercise the powers delegated in accordance with his own independent discretion having regard only to those considerations which the statute, expressly or by implication, obliges him to take into account. There is, therefore, nothing in the relationship between the person delegating the power and the delegate, as there would be if the relationship was one of principal and agent, which would require that the delegation should cease to have any valid operation upon the delegator ceasing to hold office.
Further, there is nothing in the language of the statute which requires the conclusion that a delegation should cease to operate in such an event. And convenience of administration suggests that a statutory power to delegate should not be construed so as to produce such an inconvenient result unless that construction is compelled by clear and unambiguous language, language which is nowhere to be found in the provisions now under consideration.
[10](1985) 10 FCR 305, 318 (Neaves J).
Accordingly, ‘[t]he relevant question is whether the grantor of the authority was at the time of its grant empowered so to act and not whether at the time of the exercise of the authority by the grantee the grantor is still in office’.[11]
[11]Benwell v Gottwald [1978] VR 253, 255.
Here, the instrument of delegation was made by the Minister for Fishing and Boating, who at the relevant time had the power to make the delegation.
Ground 1 is not made out.
Ground 2 – Judicial review grounds
Under this ground, the plaintiff submitted that:
(a) the decision to issue the Fisheries Notice ‘is such a direct and substantial invasion of “substantive rights” that the Court should hold that it was not “reasonably proportionate” to the enabling statutory purpose’;
(b) the Fisheries Notice constitutes an impermissible acquisition of property which amounts in effect to a taking of property in a fishery licence and the right to work, or the resumption or sterilisation of commercial fishing altogether (the plaintiff submits that another way of putting this point is that the Minister or his delegate failed to take into account mandatory relevant considerations, namely the impact of the Fisheries Notice on his fishing business);
(c) the decision maker was unduly influenced by ulterior or political considerations, as demonstrated by the consultation process being contrary to s 3A of the Fisheries Act; and
(d) compliance with s 3A of the Fisheries Act is a mandatory precondition to the validity of the making of the Fisheries Notice.
The defendants submitted that:
(a) the making of a fisheries notice is properly characterised as delegated legislation, rather than as an administrative decision, and therefore any challenge to its validity must meet a much sterner onus than that applicable to review of an administrative decision;
(b) a fishing licence confers a statutory right or privilege which is freely amenable to modification or abrogation by the legislature;
(c) the Fisheries Notice does not resume or sterilise commercial fishing rights but rather restricts certain fishing activities within a limited area;
(d) the making of the Fisheries Notice was ‘an unremarkable exercise of power’ under s 152(1) of the Fisheries Act; and
(e) the consultation process appropriately implemented the relevant consultation principles and, in any event, compliance with s 3A of the Fisheries Act is not a precondition to a valid making of the Fisheries Notice.
It is convenient to address this ground in three parts:
(a) characterisation of plaintiff’s rights;
(b) characterisation of the Fisheries Notice; and
(c) consultation process.
Characterisation of plaintiff’s rights
I accept the defendants’ submission that the plaintiff holds a statutory permission to fish on specified conditions, which is freely amendable to abrogation or regulation by legislation from time to time.
This issue was considered by the High Court in Harper v Minister for Sea Fisheries.[12] Mason CJ, Deane and Gaudron JJ concluded:
[12](1989) 168 CLR 314.
What was formerly in the public domain is converted into the exclusive but controlled preserve of those who hold licences. The right of commercial exploitation of a public resource for personal profit has become a privilege confined to those who hold commercial licences. This privilege can be compared to a profit à prendre. In truth, however, it is an entitlement of a new kind created as part of a system for preserving a limited public natural resource in a society which is coming to recognize that, in so far as such resources are concerned, to fail to protect may destroy and to preserve the right of everyone to take what he or she will may eventually deprive that right of all content.[13]
Brennan J reached a similar conclusion:
The public right of fishing for abalone in State fishing waters is thus abrogated and private statutory rights to take abalone in limited quantities are conferred on the holders of commercial and non-commercial abalone licences. The Regulations thus control the exploitation of a finite resource in order to preserve its existence. They seek to achieve this end by imposing a general prohibition on exploitation followed by the grant of licences for the taking of limited quantities of abalone. The only compensation, if compensation it be, derived by the public for loss of the right of fishing for abalone consists in the amounts required to be paid by holders to obtain abalone licences under the Regulations.[14]
[13]Ibid 325 (Mason CJ, Deane and Gaudron JJ).
[14]Ibid 332 (Brennan J).
This issue has also been considered and determined in the Victorian context. In Alcock v Commonwealth,[15] the Full Federal Court held that:
The appellant had no property in untaken abalone and no right of access to any particular area independent of his access licence, which was always subject to any statutory restrictions which might apply to modify or displace those rights. The appellant’s argument proceeded from a false premise. When the premise is corrected, the argument fails;[16]
… the Minister had extensive powers to revoke or amend the conditions of the appellant’s licence and to prohibit how much abalone he could take, as well as the taking of any abalone, from any particular waters … His licence was therefore always susceptible to the making of a regulation of a fisheries notice that prohibited him from taking abalone in a specified area.[17]
[15](2013) 210 FCR 454 (‘Alcock’).
[16]Ibid [75].
[17]Ibid [76].
Cavanough J made similar findings in Port Phillip Scallops Pty Ltd v Minister for Agriculture:[18]
As the defendants submit, the property “is represented by the rights given by the licence from year to year and from time to time” – “[n]o property comes into existence which is independent of the licence or is free of any conditions or restrictions which apply to the licence”. The private statutory rights conferred by the licence may be described as rights to take a limited public natural resource (here, scallops) in limited quantities from identified areas. Those rights were from their inception “always subject to any statutory restrictions which might apply to modify or displace those rights”, including power to revoke or amend the conditions of the licence and to prohibit how much scallop could be taken. [19]
I accept the defendants’ submission that the rights conferred on the plaintiff by the licence are “freely amenable to abrogation or regulation by a competent legislature”. As they submit, statutory rights to fish are inherently defeasible.[20]
[18]Port Phillip Scallops Pty Ltd v Minister for Agriculture (2018) 238 LGERA 344; [2018] VSC 589 (‘Port Phillip Scallops’).
[19]Ibid [96] (citations omitted).
[20]Ibid [98] (citations omitted).
As a result, the plaintiff’s charter points fall away,[21] as do his arguments:
(a) that there has been an invasion of his substantive rights; and
(b) that the Fisheries Notice constitutes an impermissible acquisition of property.
[21]Based on the Charter of Human Rights and Responsibilities Act2006 (‘Charter’).
Given these conclusions, it is not necessary to consider the defendants’ further argument that an OFAL does not constitute a property right at all, on the basis that it is not transferable.[22]
[22]Unlike other types of licenses, such as the licences under consideration in Alcock and Port Phillip Scallops.
Characterisation of the Fisheries Notice
I accept the defendants’ submissions that the making of the Fisheries Notice is properly characterised as delegated legislation rather than an administrative decision.
There is no simple rule for determining whether a decision is of an administrative or legislative character, but
[t]he distinction is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases. [23]
[23]Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee (2007) 163 FCR 451 (‘Roche Products’), [27] citing RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185 (‘RG Capital’), [40] citing Minister for Industry and Commerce v Tooheys Ltd (1982) 60 FLR 325, 331.
As stated by Latham CJ in Commonwealth v Grunseit:
The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases. [24]
[24](1943) 67 CLR 58, 82.
In the current matter, the Fisheries Notice is clearly a notice of general application. It also has many of the other features of a law including public notification and public consultation; involvement of broad policy considerations; binding effect; and the creation of criminal penalties.[25]
[25]Roche Products [29]; Visa International Service Association v Reserve Bank of Australia (2003) 131 FCR 300, [592]; RG Capital; Donohue v Australian Fisheries Management Authority [2000] FCA 901 (‘Donohue’), [18].
The consequence is that any challenge must meet a much sterner onus than judicial review of an administrative decision.[26]
[26]Donohue [18]; Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 37 FCR 463, 477.
In Vanstone v Clark,[27] Weinberg J, referring to Pearce, D, and Argument, S, Delegated Legislation in Australia (2nd ed, 1999) (Pearce), elaborated as follows:
[104] Pearce goes on to say that delegated legislation may be invalid for any one of a number of reasons. Relevantly, it may be invalid because it purports to deal with a subject not within the scope of the power provided in the empowering Act. Alternatively, it may deal with such a subject, but in a manner that exceeds the prescribed limits within which the legislation must fall. As a general proposition, delegated legislation that falls foul of an empowering Act on these grounds is described as ultra vires.
[105] Pearce adds that delegated legislation may be invalid because it is inconsistent with, or repugnant to, the empowering Act, or some other Act. It may be invalid because the power to make the delegated legislation has been exercised not for the purpose set out in the empowering Act, but for some other impermissible purpose. Finally, it may be invalid because its effect is so unreasonable that it cannot be regarded as falling within the contemplation of the legislature in enacting the empowering Act, or is not reasonably proportionate to the empowering provisions of that Act.
[106] A number of these grounds of review plainly overlap. Some of them also provide a basis for reviewing administrative decisions. To that extent, cases concerned with broader issues of judicial review may be of some assistance. However, the full range of grounds of review of administrative decisions is usually not available to challenge delegated legislation. For example, such legislation cannot be impugned solely on the basis that the body responsible for its promulgation has taken into account irrelevant considerations.
[27](2005) 147 FCR 299 (‘Vanstone’).
As to proportionality, ‘[i]t is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power’.[28]
[28]South Australia v Tanner (1989) 166 CLR 161, 168.
Applying those principles to the submissions made by the plaintiff, I conclude as follows:
(a) in respect of the plaintiff’s contentions that the Fisheries Notice is beyond power, for the reasons set out in respect of ground 3, I conclude that the purpose and operation of the Fisheries Notice was clearly within the scope of the enabling power;
(b) in respect of the plaintiff’s contentions that the Fisheries Notice was not reasonably proportionate to the empowering provisions, his complaints proceed on the incorrect assumption as to the nature of the rights conferred by his OFAL and go no further than complaints about the impact of the Fisheries Notice on his personal circumstances, and as such fall well short of establishing disproportionality in the legal sense;
(c) in respect of the plaintiff’s contentions that there was a failure to take into account mandatory relevant considerations, again this submission proceeds on the incorrect assumption as to the nature of the rights conferred by his OFAL, and in any event ‘[delegated] legislation cannot be impugned solely on the basis that the body responsible for its promulgation has taken into account irrelevant considerations’;[29]
(d) in respect of the plaintiff’s contentions that the decision maker was unduly influenced by ulterior or political considerations, as demonstrated by the consultation process being contrary to s 3A of the Fisheries Act, for the reasons set out below, I am not persuaded that the consultation was contrary to s 3A, and further, there is nothing in any of the admissible evidence that demonstrates that the decision was made for an ‘ulterior’ or improper purpose.
[29]Vanstone [106].
Consultation process
Section 3A of the Fisheries Act, relevantly provides as follows:
3A Consultation principles
(1) To the extent that 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 during the consultation process should be made available to persons participating in the consultation process.
(2)… the following decisions are taken to affect the use and conservation of Victoria’s fisheries resources –
(k)a decision by the Minister to make a fisheries notice under section 152(1).
The plaintiff submitted that the consultation process was not open, timely or transparent and was contrary to the requirements of s 3A. In particular, the plaintiff submitted that:
(a) the VFA did not hold any meetings with the plaintiff or other commercial fishers;
(b) the public consultation ceased before the VFA had provided any response to the plaintiff’s letter;
(c) the VFA did not obtain expert evidence;
(d) the VFA did not obtain objective evidence to identify the bases for the Fisheries Notice, in particular the true nature of the asserted conflict between commercial netters and recreational fishers;
(e) there was no consultation about reducing the catch limit for yellowtail kingfish to nil, as opposed to the 50 kilogram limit proposed in the draft notice;
(f) the decision brief incorrectly identified that the Fisheries Notice would have a minimal impact on the traditional commercial fishing in the Portland Bay area.
The principles in s 3A are not prescriptive. They are to be applied ‘to the extent that is practicable’.[30] Nothing raised by the plaintiff suggests that the consultation principles set out in s 3A 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.
[30]Fisheries Act 1995 s 3A(1).
As submitted by the defendants:
(a) the consultation was undertaken with the appropriate persons, being the relevant representative bodies, as well as the licence holders affected, or potentially affected, by the notice;
(b) the purpose and impact of the notice was clearly explained in the material provided;
(c) the invitation to consult included appropriate information, including a summary of the object and operation of the proposed notice, together with a copy of the proposed notice itself; and
(d) the invitation included details of how the consultation process would operate including how to make a submission and in what timeframe.
The decision brief itself as well as the oral evidence of Mr O’Sullivan makes it clear that the feedback received was considered.
There is nothing of concern in respect of the plaintiff’s specific complaints about the consultation process.
There was no obligation to hold meetings with plaintiff personally or with individual commercial fishers. Regular meetings were held with the representative body of commercial fishers, SIV; and the written responses of the plaintiff, other commercial fishers and SIV were provided to the decision maker and considered.
There was no obligation to engage in written communication with the solicitors for the plaintiff on the topics that the plaintiff’s solicitors requested, particularly as much of the content of the correspondence was not directly relevant to the making of the Fisheries Notice. The plaintiff was given an opportunity to provide feedback and his correspondence formed part of the material considered by the CEO.
Section 3A(1)(g) does not oblige the VFA to obtain expert evidence. If expert evidence is obtained it should be obtained from the most appropriate provider and it should be considered, but it is not an obligatory part of the consultation process. Here, expert evidence would not have assisted because the Fisheries Notice was introduced to help resolve conflict between commercial netters and recreational fishers and in that regard it did not matter whether the perceptions held by the recreational fishers were scientifically correct or not.[31] For similar reasons, there is nothing in the point that no objective evidence was obtained to identify the bases for the Fisheries Notice.
[31]Port Phillip Scallops [192] (and including footnote 152 referred to therein).
There was no obligation for there to be further consultation about changes that were ultimately adopted as a result of taking on board feedback from stakeholders, especially when the stakeholders had received an opportunity to give feedback about the broad issue.[32] Accordingly, it was not necessary for there to be further specific consultation about reducing the catch limit for yellowtail kingfish to nil, as opposed to the 50 kilogram limit proposed in the draft notice.
[32]Randwick City Council v Minister for the Environment [1998] FCA 1376.
Insofar as the decision brief referred to the Fisheries Notice having ‘minimal impact on the traditional commercial fishing that has been undertaken in the Portland Bay area’, it is clear from a reading of the entirety of the decision brief, that this is a statement about commercial fishing activities prior to the plaintiff moving into the area rather than the CEO being given incorrect information.
The plaintiff’s submissions in respect of the consultation process were based on an assertion that compliance with s 3A of the Fisheries Act was a mandatory precondition to the validity of the making of the Fisheries Notice. I have considerable doubt that ‘there can be discerned a legislative purpose to invalidate’ the Fisheries Notice for failing to comply with the specific consultation concerns raised by the plaintiff.[33] However, given my conclusions that there is no substance to the complaints about the consultation process, it is not necessary for me to determine this point.
[33]Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, [91].
Ground 2 is not made out.
Ground 3 – Scope of power to authorise the Fisheries Notice
The Fisheries Notice stated that it was made under sections 68A, 114 and 152 of the Fisheries Act. Those provisions are as follows:
68A Offences in relation to size and catch limits
(1) A person must not use commercial fishing equipment—
(a)to take fish that are less than the minimum size, or that are more than the maximum size, for that species of fish; or
(b)to take more fish than the catch limit for that species of fish.
Penalty: 100 penalty units or imprisonment for 6 months or both.
(2)A person must not possess fish that are less than the minimum size, or that are more than the maximum size, for that species of fish if—
(a)the fish were taken by the use of commercial fishing equipment; or
(b) the fish have been sold or are possessed for sale.
Penalty: 100 penalty units or imprisonment for 6 months or both.
(3) A person must not take or have in his or her possession—
(a)fish that are less than the minimum size, or that are more than the maximum size, for that species of fish; or
(b) more fish than the catch limit for that species of fish.
Penalty: 20 penalty units.
(4) Subsections (1), (2)(a) and (3)(b) do not apply to abalone.
(4A) A person who takes or possesses—
(a) more than the catch limit for abalone; but
(b) not more than twice that catch limit—
is guilty of an offence.
Penalty: 20 penalty units.
(4B)A person who takes or possesses more than twice the catch limit for abalone is guilty of an offence.
Penalty: 100 penalty units or imprisonment for 6 months or both.
(5)A person must not use commercial abalone equipment to take abalone that is less than the minimum size, or that is more than the maximum size, for abalone.
Penalty: 100 penalty units or imprisonment for 6 months or both.
(6)Subsections (3)(b), (4A) and (4B) do not apply to a person in the business of processing or selling fish if he or she can prove that any fish in his or her possession that are in excess of the catch limit were taken in accordance with this Act.
(7)In addition to any other penalty specified by this section, a person who is guilty of an offence under this section (other than an offence in respect of which an infringement notice has been issued) in relation to a priority species is liable to a penalty of up to one penalty unit for each fish of the priority species that is—
(a)less than the minimum size, or that is more than the maximum size, for that species of fish; or
(b)in excess of the catch limit allowed by the regulations or by a fisheries notice for that species of fish.
(8) An authorised officer or a police officer may seize—
(a) any undersized fish; and
(b)all fish in any basket, bag, box or receptacle (and the basket, bag, box or receptacle), if more than 5% of those fish are undersized.
(9)This section does not apply to a person who is authorised under this Act to do anything that would otherwise be a contravention of this section.
114 Prohibition on possession, sale or use of boats and equipment
(1)A regulation or fisheries notice may prohibit the possession, sale or use of any specified boats or equipment.
(2) A prohibition under subsection (1)—
(a) may be absolute or conditional;
(b) may apply in respect of any specified species of fish or fishing bait;
(c) may apply to any waters or to specified waters or areas;
(d) may apply for such period as is specified including—
(i) specified times of the day;
(ii) specified periods of a week, month or year;
(iii) specified periods of more than a year;
(e)may apply in respect of specified classes of fishery licences;
(f)may apply either generally or in specified circumstances or to specified people or classes of people.
(3)A person must not contravene a prohibition under subsection (1).
Penalty: 100 penalty units or imprisonment for 6 months or both.
152 Fisheries notices
(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;
(aa)fix and enforce minimum or maximum size limits for any species of fish specified in the notice;
(b)fix periods during which any specified fishing activity in relation to fish is prohibited or allowed;
(c)provide for the management of a specified area of inland waters;
(d)close to harvesting for the period of time specified in the notice any shellfish beds or shellfish farms, where necessary in response to adverse environmental conditions;
…
(f)specify measures for the protection of any fishery, species, ecosystem or habitat;
(g)provide for any matter or thing relating to protected aquatic biota and noxious aquatic species in accordance with this Act;
(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.
(4)A fisheries notice does not apply to a fisheries reserve unless the fisheries notice expressly provides that it does apply.
(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.
(5AA)The Minister must cause the following to be published in a newspaper circulating in the area affected by a fisheries notice—
(a)a notice of the making of the fisheries notice; and
(b)a reference to the Victorian Fisheries Authority's Internet site on which the fisheries notice is published.
(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.
The plaintiff submitted that none of those three provisions authorised the Fisheries Notice, particularly when the provisions are interpreted in a way so as not to impair rights recognised in the Charter or the principle of legality.[34]
[34]Relying on Coco v The Queen (1994) 179 CLR 427, 437.
The plaintiff also submitted that, as a matter of statutory construction and the presumption that ‘a statute in general terms is always construed as prima facie affecting things and persons within the territory of the country which enacts it, and as not affecting things elsewhere’,[35] s 152 refers to internal waters of the State and not external or offshore waters.
[35]R v Foster; Ex Parte Eastern and Australian Steamship Co Ltd [1959] 103 CLR 256, 305-308 (Windeyer J).
The defendants submitted that the Fisheries Act plainly authorises the making of the notice. Section 152, read with s 114 is in broad terms. It is well within the scope of the provision to make a notice that prohibits commercial fishing activities, including the use of specified equipment and the imposition of catch limits, within a particular area.
The defendants further submitted that:
(a) the relevant provisions should not be read down by reason of either the Charter or the principle of legality; and
(b) that the power of the State to legislate extra-territorially is well established and that, as a matter of construction, the waters to which the notice would apply clearly include the offshore waters that are the subject of the notice.
I am satisfied that the Fisheries Act authorises the making of the notice.
Pursuant to s 152(1)(a) of the Fisheries Act, the Minister by a fisheries notice is authorised to fix catch limits for any species of fish. Accordingly, s 152(1)(a) clearly authorised the imposition of a catch limit of zero fish for commercial fishers in respect of yellowtail kingfish.
Section 68A(1)(b) of the Fisheries Act is not the source of the power to fix a catch limit, but it complements the power in s 152(1)(a) by creating a criminal offence in respect of using commercial fishing equipment to take more fish than the catch limit.
Pursuant to s 152(1)(h) of the Fisheries Act, the Minister by a fisheries notice is authorised to provide for any other matter or thing which this Act requires or permits to be done by a fisheries notice. Section 114 of the Fisheries Act provides a fisheries notice may prohibit the possession, sale or use of any specified boats or equipment, either absolutely or conditionally and in any waters or specified waters.
Accordingly, the use of a fisheries notice to prohibit equipment in the nature of nets, in specified waters, was clearly authorised, as was the use of a fisheries notice to govern the use of longlines in specified waters.
I reject the plaintiff’s submissions about the applicability of the Charter and the principle of legality. There is no ambiguity in the legislation under consideration and, for the reasons given above in respect of the characterisation of the plaintiff’s rights, there is no infringement of or incompatibility with, a fundamental or human right of the plaintiff.
I also reject the plaintiff’s submissions to extra-territoriality. Section 8 of the FisheriesAct provides that the Fisheries Act applies to Victorian waters, which includes waters adjacent to Victoria up to the outer 200 mile nautical limit.[36]
[36]Fisheries Act s 8(b); Babington v Commonwealth (2016) 240 FCR 295 (‘Babington’), [35] & [39].
Ground 3 is not made out.
Ground 4 – Validity under the Commonwealth Constitution
The plaintiff submitted that the Fisheries Notice is invalid by reason of an implied constitutional restriction derived from s 51(x) of the Commonwealth Constitution. In this regard, the plaintiff 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.
The plaintiff 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.
I do not accept that the Fisheries Notice has created an area of exclusion. The Fisheries Notice does no more than restrict certain fishing activities within a limited area.
Accordingly, I do not accept that there is any basis for distinguishing this case from the cases of Babington, Alcock and Lavender v Director of Fisheries Compliance,[37] which make it clear that:
(a) s 51(x) of the Commonwealth Constitution, which confers legislative power on the Commonwealth in respect of ‘fisheries in Australian waters beyond territorial limits’, deals with concurrent powers rather than exclusive powers; and
(b) there is ‘no question that [the State] has the power to make laws concerning fisheries out to the 200 nautical mile limit’.[38]
[37][2018] NSWCA 174.
[38]Babington [39].
Ground 4 is not made out.
Conclusion
For these reasons, the proceeding will be dismissed.
I will hear the parties on the question of costs.
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