Port Phillip Scallops Pty Ltd v Minister for Agriculture

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 01807

PORT PHILLIP SCALLOPS PTY LTD (ACN 196 513 393)	Plaintiff
v
THE MINISTER FOR AGRICULTURE FOR THE STATE OF VICTORIA	First Defendant
THE STATE OF VICTORIA	Second Defendant

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JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2017, 1, 4, 5 September 2017 (timetable for filing of post-trial written submissions expired 31 October 2017), 22 August 2018 (hearing of non-party application for joinder, determined separately)
DATE OF JUDGMENT:	5 October 2018
CASE MAY BE CITED AS:	Port Phillip Scallops Pty Ltd v Minister for Agriculture
MEDIUM NEUTRAL CITATION:	[2018] VSC 589 First Revision: 19 October 2018

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INTERPRETATION OF STATUTES – Whether Minister has power to revoke order under s 64(1) of the Fisheries Act 1995 (Vic) where declaration has been made under s 64(1)(d)(i) of that Act – Minister has such power – Challenge fails – Fisheries Act 1995 (Vic) ss 3, 3A, 4(1) (various definitions), 4(2), 7, 28, 36, 38, 50B, 51, 52, 54, 55, 56, 57, 58, 59, 60, 61, 63, 64, 64A, 64AB, 64C, 65A, 65B, 66A, 66C, 66D, 66E, 67, 88, 89, 128, 129, 148(9), 152, 153 – Interpretation of Legislation Act 1984 (Vic) s 35(a) – Fisheries Regulations 2009 (Vic) regs 7, 21, 404A, 405, 413A to 413ZA, Schedule 4 (item 20A), Schedule 5 (item 18A), Schedule 14 (designated licence conditions relating to scallop).

INTERPRETATION OF STATUTES – Whether power to make regulations setting a ‘catch limit’ as a condition on a licence giving access to a fishery where there is an order in place under s 64(1) of the Fisheries Act 1995 (Vic) in respect of that fishery – There is such power – Challenge fails – Fisheries Act 1995 (Vic) ss 3, 3A, 4(1) (various definitions), 4(2), 7, 28, 36, 38, 50B, 51, 52, 54, 55, 56, 57, 58, 59, 60, 61, 63, 64, 64A, 64AB, 64C, 65A, 65B, 66A, 66C, 66D, 66E, 67, 88, 89, 128, 129, 148(9), 152, 153 – Interpretation of Legislation Act 1984 (Vic) s 35(a) – Fisheries Regulations 2009 (Vic) regs 7, 21, 404A, 405, 413A to 413ZA, Schedule 4 (item 20A), Schedule 5 (item 18A), Schedule 14 (designated licence conditions relating to scallop).

ADMINISTRATIVE LAW – Judicial review – Decision of Minister to revoke order made under s 64(1) of the Fisheries Act 1995 (Vic) – Whether made for an impermissible purpose – Whether irrelevant considerations taken into account – Whether failure to take into account mandatory relevant considerations – Whether legally unreasonable – Whether failure to afford procedural fairness – No ground made out – Decision not invalid – Fisheries Act 1995 (Vic) ss 3, 3A, 64 – Administrative Law Act 1978 (Vic) s 8 – Subordinate Legislation Act 1994 (Vic).

ADMINISTRATIVE LAW – Judicial review – Making of Fisheries Amendment (Catch Limit for Scallop Dive (Port Phillip Bay) Fishery) Regulations 2017 (Vic) – Whether made for an impermissible purpose – Whether failure to afford procedural fairness – No ground made out – Regulation not invalid – Fisheries Act 1995 (Vic) ss 3, 55, 153, Schedule 3 (items 1.4 and 3.13) – Subordinate Legislation Act 1994 (Vic).

ADMINISTRATIVE LAW – Judicial review – Decision of delegate of Minister to make order under s 64A(1) of the Fisheries Act 1995 (Vic) – Decision effectively lapsed – Futile to consider challenge to process of making order – Fisheries Act 1995 (Vic) ss 64, 64A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K L Walker QC with Mr M P Costello	Fitzpatrick Legal
For the Defendants	Mr C J Horan QC with Ms L De Ferrari	Department of Economic Development, Jobs, Transport and Resources (up until 20 August 2018) Minter Ellison (from 20 August 2018 onwards)

HIS HONOUR:

Overview

The plaintiff is a company that was set up in or about 2014 by a Mr Bruce Collis to fish for scallops commercially in Port Phillip Bay. The first defendant is the Minister for Agriculture for the State of Victoria. The second defendant is the State of Victoria itself. The Minister is responsible for the administration of the Fisheries Act 1995 (Vic) (‘the Act’), which governs all relevant fishing in Victoria.

By an amended originating motion for judicial review, the plaintiff seeks relief in relation to three things that occurred in March 2017 which affected its scallop fishing operations in Port Phillip Bay.

Most of the relevant facts are not in dispute.

From the 1960s to the mid-1990s there was a commercial dredge fishery for scallops in Port Phillip Bay under the legislation then in force. Concern emerged that the scallop dredge fishery was doing significant damage to the ecology of the Bay, to other commercial fishing and to recreational fishing opportunities. In about 1997, by legislative and other governmental action, commercial fishing for scallops in Port Phillip Bay was, in effect, banned and the dredge fishery came to an end.

In 2013, under the then Liberal government, steps were taken to allow for the commencement of a new commercial fishery for scallops in Port Phillip Bay, but restricted to the taking of scallops by hand by human divers. It was determined that there would be a Scallop Dive (Port Phillip Bay) Fishery (‘the Fishery’), established by regulations made under the Act, with a single licensee, and that the Fishery would be managed by the allocation of quota under ss 64 and 64A of the Act. Those sections provide for the making, amendment and revocation, by the Minister (or a delegate of the Minister), of statutory instruments known as initial quota orders (‘IQOs’) and further quota orders (‘FQOs’) respectively. In due course the plaintiff became the holder of the single licence for the Fishery, and quota was allocated to that licence. Accordingly, the plaintiff commenced and continued fishing for scallop in Port Philip Bay, although it encountered a range of vicissitudes along the way.[1]
[1]For an account of some of the relevant events up until May 2015, see Port Phillip Scallops Pty Ltd v Minister for Agriculture for Victoria [2015] VSC 179 (Rush J).

In early 2017, under the present Labor Government, measures were taken to render the Fishery no longer a quota-managed fishery. The Minister purported to revoke the IQO; and regulations were purportedly made under the Act imposing, on every licence in the class of licence which the plaintiff held, a condition that no more than 60 tonnes of (unshucked) scallop may be taken each year under the licence.

The plaintiff wishes to be legally free to take more than 60 tonnes of scallop per year. It desires that the Fishery remain, or be reinstated as, a quota-managed fishery. It considers, apparently, that under quota management of the kind which was in place until at least 1 April 2017, it would be likely to be permitted to take considerably greater quantities of scallop than 60 tonnes, at least in most years.

In very short summary, the plaintiff says that, as a matter of construction of the Act and the relevant statutory instruments, there was no power to revoke the IQO in the circumstances which obtained at the relevant time.

Further or alternatively, the plaintiff says that the purported revocation of the IQO was an invalid exercise of power on various other administrative law grounds.

Next, the plaintiff says that if, in law, the IQO remained in force, then there was no statutory power to make the regulations imposing the 60 tonne cap. Again, that claim turns on the proper construction of the relevant legislation.

Further or alternatively, the plaintiff claims that the regulations imposing the cap, themselves, were and are invalid on various other administrative law grounds.

Finally, the plaintiff challenges a certain FQO for the Fishery that was made by a delegate of the Minister pursuant to an order in the nature of mandamus issued by this Court (constituted by me) on 17 March 2017. That FQO set a quota of 60 tonnes.

For the reasons set out below, I consider that the plaintiff’s various challenges must fail and that the proceeding should be dismissed.

The evidence

All of the evidence in this case is documentary. Almost all of it is in the form of affidavits and exhibits to those affidavits. There was no request by either side that any of the deponents to the affidavits be available for cross-examination. Nearly all of the evidentiary material is contained in the court book.

In addition to the material in the court book, I received without objection an affidavit of the sole director of the plaintiff, Mr Collis, dated 8 March 2017 which had been filed in the proceeding in this Court in which I made the order against the Minister in the nature of mandamus mentioned above. Together with the affidavit, I received as part of the same tender certain email correspondence which indicated that the affidavit had been served on the legal representatives of the Minister on 9 March 2017 in the course of the then current mandamus proceeding. That affidavit was relied upon by the plaintiff to support a claim, to which I will come in due course, that the economic or commercial information in Mr Collis’ affidavit had not been duly dealt with by the defendants in relation to the actions now complained of in this proceeding.

Subject to two matters about to be mentioned, the parties agreed that the Court was to treat as evidence in this case all of the affidavits (except certain specified paragraphs of certain affidavits[2]) and all of the exhibits and every other document contained in the court book, except pleadings and submissions.
[2]The exceptions are paragraph 25 of the affidavit of Mr Hamley of 15 May 2017 and paragraphs 7 and 8 of Mr Hamley’s affidavit of 18 July 2017.

The first of the two qualifications to the parties’ agreement about the material in the court book was as follows. On the first day of the hearing the defendants objected to the reliance by the plaintiff on certain public statements made by the Minister after the events complained of. The statements were deposed to by a representative of the plaintiff. There was no dispute about authenticity. In my view those statements were of relevance to the plaintiff’s claims as to what the actual reasons of the Minister were for the steps which she took and were admissible accordingly.[3] I so ruled.
[3]Transcript of proceedings, Port Phillip Scallops Pty Ltd v The Minister for Agriculture & Anor (Supreme Court of Victoria, S CI 2017 01807, Cavanough J, 31 August 2017, 1, 4, 5 September 2017) (‘Transcript of proceedings’), 9. See, further, my judgment in Love v State of Victoria [2009] VSC 215, [46].

The second matter in issue arose from an objection by the defendants to the affidavit of Dr David Gwyther of 14 July 2017. The defendants objected to the whole of Dr Gwyther’s affidavit and to some, but not all, of the exhibits to that affidavit. The exhibits to which no objection was taken (exhibits DG1, DG2 and parts of exhibit DG3) were already otherwise in evidence before the Court. During the hearing, with the agreement of the parties, I decided to treat Dr Gwyther’s affidavit as provisionally received and to reserve my ultimate ruling on the objections until final judgment. I now turn to that ruling.

Dr Gwyther is an acknowledged scientific expert on fisheries, and scallop fisheries in particular. He deposes to factual matters relating to the history of scallop fishing, especially in Port Phillip Bay, and he expresses certain opinions, mainly to the effect that fishing for scallops in Port Phillip Bay in the manner and to the extent proposed by the plaintiff would be unlikely to affect the sustainability of the resource.[4] He also expresses criticism, from a fisheries management point of view, of the measures taken by the defendants in 2017, and disputes some of the justifications advanced by the defendants for those measures. There is no challenge to the nature or the level of his expertise in these respects.
[4]Paragraph [46] (CB 765).

However, the defendants contend, first, that Dr Gwyther is not an independent expert, because his interests, including his pecuniary interests, are aligned with the interests of the plaintiff. It is common ground that the plaintiff paid Dr Gwyther’s company for certain survey reports that were done in 2015 and 2016 in relation to applications by the plaintiff for increased quota that were on foot in those years. It may be accepted that Dr Gwyther’s company has, or may have, an interest in retaining such work for the future, if the Fishery were to remain quota managed. Further, the defendants point to a submission that was put in by Dr Gwyther, personally, to a certain committee that was considering issues relating to the Fishery in 2015, which submissions were supportive of the claims then being made by the plaintiff.

The defendants also point out that Dr Gwyther’s affidavit does not contain any indication that the deponent had complied with, or was even aware of, Order 44 of the Supreme Court (General Civil Procedure) Rules 2015, which includes a code of conduct for expert witnesses. On the other hand, that deficiency was wholly or substantially rectified by statements subsequently made by Dr Gwyther, as reported in the affidavit of the plaintiff’s solicitor, David Fitzpatrick, affirmed on 30 August 2017. Mr Fitzpatrick’s affidavit and its exhibits, though not in the court book, were received in evidence without objection. The defendants now seem to acknowledge that the deficiencies relating to Order 44 have in substance been rectified or nearly so,[5] and that, in any event, Dr Gwyther’s evidence is not rendered inadmissible merely because he may not be independent, or fully independent, of the plaintiff.[6] As the defendants now virtually invite me to do,[7] I dispense with compliance with the requirements of Order 44 in relation to Dr Gwyther’s affidavit, insofar as it may be still necessary to grant such dispensation.
[5]Defendant’s written submissions dated 4 September 2017 on the Gwyther affidavit, [4].
[6]Ibid, citing Matthews v SPI Electricity Pty Ltd (Ruling No 9) [2012] VSC 340, [26], [31], [47] (J Forrest J).
[7]Ibid.

The defendants further contend that the evidence of Dr Gwyther is not relevant, either as to opinion or as to fact.

The defendants submit that it is not a fact in issue in this proceeding (i.e. it is not a matter which this Court, in its supervisory role, has jurisdiction to decide) what is the correct, or even the preferable, management arrangement for the Fishery. Further, the defendants submit that the evidence in Dr Gwyther’s affidavit, whether opinion or not, was not before the Minister when she made her decision (on 17 March 2017) to revoke the IQO. The defendants acknowledge that some of the factual material (for example, the documentary exhibits to the affidavit to which no objection is taken, being documents relating to surveys of scallop abundance in Port Phillip Bay) were before the Department when it prepared relevant briefs to the Minister. However, the defendants submit, that does not make Dr Gwyther’s affidavit or the opinions expressed in it relevant to assessment of the legality of the decision made by the Minister.

In addition, the defendants submit that, ordinarily, material not before the decision maker at the time of the making of an administrative decision is not admissible in proceedings for judicial review of the decision.[8]
[8]Citing Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, 564 [454] (Weinberg J). On the other hand, the defendants themselves adduced in evidence (as exhibit D1 – not in the court book) an affidavit of their solicitor, Priscilla Wong, affirmed 4 September 2017 exhibiting press releases which were not themselves said to have been before any relevant decision-maker but which were said to show that, both before and after the 2014 election, it was the policy of the Labor Party and the Labor Government to make Port Phillip Bay a prime destination for recreational fishers. Apparently, this evidence was adduced (see transcript of proceedings, 337-338, 343) to counteract the plaintiff’s earlier contention (see paragraph 2 of the plaintiff’s written submissions in reply dated 28 August 2017) to the effect that there was no evidence of any governmental policy in relation to the Fishery. The plaintiff did not object to receipt of the affidavit of Ms Wong and the exhibits. However, it foreshadowed (transcript of proceedings, 344) and later made (transcript of proceedings, 595-600) submissions as to the relevance or significance of the material.

The defendants submit that the evidence would not be relevant to the review ground of failing to take into account mandatory relevant considerations, because the determination of mandatory relevant considerations is to be determined as a matter of construction of the statute.[9] They submit that evidence directed to what matters should have been considered and/or how the matters that should have been considered ought to have been evaluated is plainly irrelevant.
[9]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

The defendants accept that evidence that was not before the decision maker might be relevant when the ground of review is legal unreasonableness, but submit that this is exceptional and only arises in cases where the decision maker itself is required to decide the matter (or an aspect of it) as an expert. The defendants cite in this respect Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd[10] and Australian Retailers Association v Reserve Bank of Australia.[11] In addition, the defendants say that in each of those two cases the evidence that was admitted was that of a truly independent expert.
[10](1993) 40 FCR 381.
[11](2005) 148 FCR 446.

Further, the defendants say that the Minister was considering whether to continue to have the Fishery quota-managed, or to regulate it in some other manner, and was doing so by reference to a broad range of considerations identified in the materials before the Court. They submit that the Minister was not making a decision about whether a particular management approach for the Fishery was more aligned with the biology of scallops than another; and that there was nothing which obliged her to make her decision in such a way. Accordingly, they submit, the evidence of Dr Gwyther is not relevant, and hence not admissible to prove what should have been taken into account by the Minister, nor what decision she ought to have made.

In my view, the whole of the affidavit of Dr Gwyther is admissible. It is common ground that where legal unreasonableness (amounting to claimed jurisdictional error) is alleged as a ground of review, evidence that was not before the decision maker may be admitted. I accept the plaintiff’s submission[12] that whether such evidence should be admitted will turn on the circumstances of the case.[13] I do not consider that such evidence is only admissible where the decision maker itself is required to decide a matter (or an aspect of a matter) as an expert. In my view, neither of the two cases relied upon by the defendants for that proposition establishes it.
[12]See plaintiff’s written submissions dated 1 September 2017 on Gwyther affidavit, [1].
[13]Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, 566 [458]-[460] (Weinberg J).

I accept the plaintiff’s submission that Dr Gwyther’s affidavit is admissible as going to support the plaintiff’s contention that the impugned decisions were taken in disregard of, or contrary to, fundamental scientific knowledge and principles concerning the sustainability of scallop fishing in Port Phillip Bay, and as going to the plaintiff’s case on legal unreasonableness generally. Whether, in the end, the evidence establishes any such thing is another matter. However, in my opinion, the evidence is not irrelevant. I note that the affidavit of Dr Gwyther does not travel very far beyond other material written by him and others which is already in evidence before the Court without objection. I do accept the defendants’ submission that the Court may take into account, in assessing the weight to be given to the opinions expressed by Dr Gwyther, those features of Dr Gwyther’s position which may bear on the extent of his independence. However, in my view, the entirety of the affidavit of 14 July 2017 is admissible and I so rule.

The scheme of the Act

In its initial written submissions, the plaintiff outlined – sometimes with comments – those provisions of the Act which it said were of particular relevance to the proceeding.[14] The outline is helpful and largely uncontroversial, and I will in substance reproduce it now, although, as will appear, certain other provisions of the legislation will also need to be mentioned in due course.
[14]Plaintiff’s written submissions dated 11 August 2017, [49]-[61].

Section 3 of the Act sets out the objectives of the Act. They include ‘to provide for the management, development and use of Victoria’s fisheries ... in an efficient, effective and ecologically sustainable manner’ (s 3(a)), ‘to promote sustainable commercial fishing’ (s 3(c)), ‘to facilitate access to fisheries resources for commercial, recreational, traditional and non-consumptive uses’ (s 3(d)) and ‘to promote the commercial fishing industry’ (s 3(e)).

Part 4 of the Act is entitled ‘Regulation of fisheries’. The Part begins by making it a criminal offence to undertake commercial fishing unless authorised by the Act (s 36). Section 38 provides that classes of access licence may be created by regulation allowing, among other things, the licence holder to take specified fish for sale. Section 38(2) empowers the Secretary to issue an access licence of a particular class to a particular person.

The plaintiff describes the rights conferred by the grant of a licence as ‘valuable’. It points out that some licences are transferable and says that such licences ‘thus have a proprietary nature (s 50B)’.[15] A licence held by an individual becomes an asset of the person’s estate upon death (s 38(7)). Security may be taken over a licence (s 59). A licence cancelled by a court is transferable by the licence holder within six months of the cancellation (s 60).
[15]Under s 50B, transferability depends on whether the regulations permit the transfer of licences of the particular category or class.

A licence cannot be cancelled except in accordance with ss 58,[16] 61(1)(c)[17] or 148(9)[18]. Sections 58 and 148(9) concern cancellation for cause, and no compensation for cancellation is payable under those sections. In contrast, the only ‘no fault’ power of cancellation (s 61(1)(c)) triggers a right in the licence holder to be paid compensation (s 63).
[16]Licence holder has ceased to be a fit and proper person to hold the licence, or to satisfy any relevant eligibility criteria, or to be actively, substantially and regularly engaged in the activities authorised by the licence; or has failed to make a payment.
[17]Cancellation directed by the Minister, without cause.
[18]Cancellation following proved offence of giving false or misleading information.

Division 2 of Part 4 relevantly concerns the issue, variation and conditions attached to licences. Fishery licences – which may be a sub-species of various forms of licence, including access licences[19] – may be granted by the Secretary (s 51). Where, as in the present case (see below), the licence has been publicly sold,[20] the Secretary must issue a s 51 licence to the successful party under the sale process (s 51(4A)).
[19]See the definition of ‘fishery licence’ (s 4).
[20]Pursuant to a Ministerial determination made under s 51A.

Section 52 provides that, in addition to any conditions imposed by the Act, the fishery licence is subject to any conditions that the Secretary thinks appropriate and that are expressed or referred to in the licence and any conditions set out in the regulations.

Under s 54, there are certain controls on the power of the Secretary to vary or revoke conditions attached to fishery licences. The plaintiff’s description of s 54 was corrected and supplemented in certain respects by the defendants’ submissions. As a result, the parties would accept, I believe, that the effect of s 54 may be summarised as follows. The Secretary may only vary a class of fishery licence or vary or revoke a condition imposed by the Secretary or impose a new condition on a class of fishery licence where the change is made in order to give effect to a management plan declared under s 28 of the Act, or to any change to such a plan. Further, the Secretary must not vary a fishery licence or a condition on a fishery licence or a class of fishery licence or a condition on a class of fishery licence if the variation would be inconsistent with any regulations, management plan or Ministerial direction. (The defendants contrast these express limitations with what they contend to be an absence of any corresponding express limitations on the power of the Governor-in-Council to make regulations imposing conditions on licences or varying or deleting such conditions: see s 153, read with Schedule 3 and s 55).

In the present case, the plaintiff points out, its licence is transferable (subject to s 56) and renewable (subject to s 57).

Division 3, Part 4 of the Act contains what the plaintiff describes as the key provisions that regulated the plaintiff’s commercial rights in respect of the Fishery before the revocation decision was made. At least until that time, the Fishery was managed by the allocation of quota units. Section 64 provides the statutory basis for quota managed fisheries. Sub-section 64(1) provides:

(1)The Minister may, by order published in the Government Gazette—
(a)declare that the whole, or a specified zone or zones, of a fishery is to be managed by the allocation of quotas;
(b)determine the method for setting the number of individual quota units for the quota fishery;
(c)determine the method for allocating individual quotas to each access licence issued in respect of the quota fishery;
(d)declare that individual quota units in the quota fishery may be transferred—
(i)permanently; or
(ii)for a quota period only;

(e)set the minimum and maximum number of individual quota units that may be acquired or held by each licence holder;
(f)determine the circumstances, if any, in which the individual quotas can be exceeded or carried over (other than by transfer).

Sub-sections (2) and (3) of s 64 are described by the plaintiff as being critical to the revocation decision. They provide:

(2)The Minister may revoke or amend an order at any time by order published in the Government Gazette.
(3)However, if the Minister makes a declaration under subsection (1)(d)(i), the Minister may only amend that declaration or anything under subsection (1)(a), (b) or (c) if the amendment is required—
(a)to give effect to the management plan for the quota fishery declared under section 28, or to any change to that plan; or
(b)to correct—
(i)a clerical mistake; or
(ii)an error arising from an accidental slip or omission; or
(iii)a miscalculation of figures.

While s 64 speaks of ‘quota periods’, that term is not defined. Instead, both the quantity of the quota and the quota period are provided for by way of FQO.[21] The power to make FQOs is contained in s 64A of the Act. It relevantly provides:
[21]It seems that it has been common in Victoria to specify quota periods by reference to periods of twelve months’ duration, although there is nothing in the Act to require this. Indeed the first quota period specified in relation to the Fishery was a period that exceeded twelve months.

(1)The Minister may, by further order published in the Government Gazette—
(a)set the total allowable catch (by number, volume, weight or value) for a specified period for a quota fishery;
(b)determine the quantity of fish (by number, volume, weight or value) comprising an individual quota unit in a quota fishery in a specified period.

(2)The Minister may revoke or amend an order at any time by an order published in the Government Gazette.
(3)Without intending to limit the generality of subsection (2), the Minister may reduce the total allowable catch, or reduce the quantity of fish comprising an individual quota unit before the end of the period to which the total allowable catch or unit applies.

Section 153 empowers the Governor in Council to make regulations for or with respect to any matter or thing required or permitted by the Act.[22]
[22]Section 153 contains additional provisions to which I will come.

Was the revocation power available?

Departing a little, it seems, from the relevant paragraphs of the amended originating motion,[23] the plaintiff, in its written and oral submissions, contended principally that the Minister had no power to revoke the IQO at all. The plaintiff’s alternative submission was that the power to revoke was not at large and was not available in circumstances where commercial fishing was to continue in the relevant fishery. That is, the alternative submission was that the revocation power is only available to close commercial fishing in a fishery.
[23]Paragraphs [26A] and [27].

Relying particularly on the provisions of the Act referred to above, the plaintiff submits that the scheme of the Act is carefully calibrated to protect valuable rights from unreasonable interference and to ensure a degree of constancy is provided to rights holders. It says that, in the case of an access licence granted in respect of a quota-managed fishery, protections are afforded both in respect of the access licence and the rights conferred by the IQO. The plaintiff develops this argument in the following terms.

The licence is transferable and must be renewed, subject to compliance with various requirements. It may be cancelled for cause without compensation. A cancellation for a reason other than those set out in ss 58 and 148(9) – that is, without cause – entitles the licence holder to compensation.

Turning to quota-managed fisheries, the plaintiff submits that in the case of an IQO that confers a valuable, saleable right (the (permanent) transfer right), the Minister’s power to interfere with the right holder’s entitlement is heavily circumscribed by s 64(3), the evident purpose of which is to ensure that the legal architecture that supports the holder’s rights is not unexpectedly altered once erected. The rationale for such a circumscription is clear, the plaintiff says: rights holders act on the faith of the legal architecture. They structure their affairs, develop their businesses, employ staff, expend money – such as undertaking biomass surveys[24] – and take on debt on the basis of a state of affairs that is not subject to radical change at the whim of the Executive without compensation.[25] (The plaintiff here acknowledges that the situation may be subject to change by reason of legislative amendment.)[26] The plaintiff points to the uncontested evidence in the present case that it has spent more than $1.2 million developing the Fishery.
[24]In this case, the plaintiff commissioned and paid for three biomass surveys of the Fishery after the issue of the relevant IQO.
[25]Noting that Executive cancellation of a licence without cause is permissible, but compensation is payable (s 61(1)(c)).
[26]Citing, in the context of Commonwealth fisheries, Seafish Tasmania Pelagic Pty Ltd v Minister for Sustainability, Environment, Water, Population and Communities (No 2) (2014) 225 FCR 97.

The plaintiff submits that, in combination, the renewable and difficult to cancel licence, coupled with the fixed architecture of the IQO, provide a firm foundation upon which a rights holder may act. Any infirmity in either component element of the legal structure necessarily operates to the disadvantage of the holder and impairs the value of the rights conferred, the plaintiff submits.

Dealing more specifically with the present matter, the plaintiff emphasises that the quota units in this Fishery may be permanently transferred, because the Minister made a declaration to that effect within the IQO, pursuant to s 64(1)(d)(i). (The full terms of the IQO are set out below.) Usually an IQO is subject to a general power to amend or revoke, under s 64(2). But, the plaintiff submits, the consequence of a s 64(1)(d)(i) declaration is that s 64(3) is engaged to limit the Minister’s powers in relation to the IQO. So, the plaintiff submits, the general power in s 64(2) is displaced, and the only power to deal with the matters set out in s 64(1)(a)-(d) is found in s 64(3).

The plaintiff further submits that, bearing in mind the features of the statutory scheme, and the place of s 64(3) within it, s 64(3) is to be understood as not only circumscribing the power to amend certain features of an IQO, but also removing any power to revoke an IQO that includes a permanent transfer right. Pursuant to s 64(3), where a declaration has been made under s 64(1)(d)(i) the only power the Minister has in relation to the matters in s 64(1)(a)-(d) is a power to amend, and even that power can only be exercised in limited circumstances. According to the plaintiff, there is no power to revoke an IQO in those circumstances. That is, in cases where a s 64(1)(d)(i) declaration had been made, an abolition of the legal architecture of a quota-managed fishery can only be achieved by legislation (noting that it remains open for the Minister to cancel a licence without cause under s 61(1)(c), but such cancellation triggers an obligation to pay compensation). According to the plaintiff, a construction that acknowledged that the lesser right of amendment was circumscribed, but that conceded an unfettered power to revoke would, necessarily, undermine the effect of the limited amendment power by allowing amendments to be achieved by a process that included an exercise of the revocation powers. Such a construction would, the plaintiff submits, undermine the scheme of the Act and void a key protection afforded to rights holders. For that reason, the plaintiff submits, it should not be preferred.

The plaintiff’s alternative argument, to the effect that the revocation power is only available to close commercial fishing in a fishery, was advanced in some detail in its written submissions,[27] but, during the course of the hearing, senior counsel for the plaintiff acknowledged that it involved ‘reading in’ words to a significant degree, and said that this was not the plaintiff’s ‘first argument’. She declined to develop it orally.[28] Nevertheless, the alternative argument was not actually abandoned, and so I will reproduce it in accordance with the plaintiff’s initial written submissions.[29]
[27]Submissions dated 11 August 2017, [70]-[78].
[28]Transcript of proceedings, 249.
[29]Submissions dated 11 August 2017, [70]-[78].

It is argued in the written submissions that, even if there is a power of revocation of an IQO that carries a transfer right, the power is not at large and must be understood in the context of the object, scope and purpose of the Act.

Referring to s 35(a) of the Interpretation of Legislation Act 1984 (Vic), the submissions continue to the effect that Victorian legislation must be construed in a manner that would promote the purpose or object underlying the Act or the statutory rule. In the present case, it is submitted, the object, scope and purpose of the Act include:

(a) the objectives of the Act referred to above (most relevantly, the promotion of sustainable commercial fishing);

(b) the various protections afforded to proprietary rights created by the Act;

(c) the detailed processes prescribed for the making of a management plan;[30] and

(d) the limitation on the Minister’s power in s 64(3).

[30]Promulgation of such a plan provides one basis for amendment of an IQO. In the present case, the company made attempts to have a management plan made by the Minister, but was unsuccessful, notwithstanding that a settled draft was submitted for approval.

In combination, those factors, and the matters concerning the need for permanency already mentioned, powerfully indicate, according to the submissions, that the revocation power is not at large. Rather, on a proper construction the power is not available in circumstances where commercial fishing is to continue in the relevant fishery. That is, the revocation power is only available to close commercial fishing in a fishery. One concomitant of such a decision would be the cancellation under s 61(1)(c) of any licences issued for the fishery. Such cancellation would result in compensation being payable to the licence holder.

In one part of these particular written submissions,[31] the plaintiff anticipated that the Minister would contend that none of the factors that the plaintiff had identified, including the constraint on amending, bore upon the power to revoke. That is, the plaintiff anticipated that the Minister would say that, while the power to amend an IQO is tightly controlled, there is no limitation on the power to revoke, even in circumstances where the prime indicator of permanence – the transfer right – is present.
[31]At [72]-[78].

So, the plaintiff anticipated, the Minister would have to contend that the revocation power was available in circumstances where:

(a) a transfer right exists; and

(b) the Fishery is to remain open; and

(c) the licence is to remain on foot; and

(d) the Fishery is to be fished subject to a permanent catch limit set by regulation.

According to the submissions, it is highly relevant that the practical effect of the Minister’s decision was to:

(a) abolish the requirement for FQOs and, in so doing, deprive the plaintiff of the prospect of a higher allowable catch if the scientific biomass surveys justified it; and

(b) impair valuable rights.

The Minister would have to contend, the submissions continued, that the power is available to serve those ends.

According to the submissions, a revocation power capable of authorising the decisions taken here would serve entirely to undermine the limitations on the amendment power. That is, it would allow what are in substance amendments to the quota regime to be dressed up as a revocation. For example, an IQO could be revoked and then a new, varied, IQO declared. Or, as here, the IQO could be revoked but arrangements that are practically similar, but legally different, put into place. Such a construction sets the protection afforded by s 64(3) at naught, the submissions asserted. There is nothing arising from the object, scope and purpose of the Act to support such a reading, it was submitted.

Moreover, the submissions continued, just as when the ‘text, context and purpose of a statute permit a choice to be made, the courts will choose that interpretation which avoids or minimises the adverse impact of the statute upon common law rights and freedoms’,[32] so should such a choice be made where one construction would impair a valuable right and the other will not.
[32]Citing Lee v New South Wales Crime Commission (2013) 251 CLR 196, 203 [3] (French CJ).

These submissions ended with a contention that, in substance, what had occurred here was an amendment to a quota regime, through the mechanism of a purported revocation and the substitution of a quota through the regulations. To put it another way, the revocation was simply a device to avoid the ‘rigours’ of the FQO process. It was submitted that a purported ‘revocation’ of that kind was beyond power and invalid.

For a time, I thought that there may be considerable force in the plaintiff’s principal argument to the effect that there was a lack of statutory power to revoke the IQO, particularly insofar as it was based on s 64(3) of the Act. However, on further reflection, I am persuaded by the defendants’ rebuttal of the plaintiff’s arguments. Much of what follows next represents an acceptance of submissions made either in writing[33] or orally on behalf of the defendants.
[33]Defendants’ principal written submissions dated 25 August 2017 2017, esp [7]-[49] and [84]-[97].

The definition of ‘fishery’ is contained in s 7 of the Act. Relevantly, s 7(1) provides that ‘a fishery’ means ‘a fishery as defined… in any… regulation’, and s 7(2) provides, without limitation, that ‘a fishery’ may be defined by reference to any one or more of a range of matters including a species of fish, an area of land or waters, a method of fishing, and so on.

The making of an order under s 64(1) of the Act does not define or create a fishery.

On 18 December 2013, by certain regulations made under s 153 of the Act (‘the 2013 amending regulations’), the Fishery in question was defined. Hence, the plaintiff’s submission that the Fishery has been quota-managed since its ‘establishment’ is not correct, in that the initial quota order under s 64 of the Act was made after and separate to the regulations which created the Fishery. There were also substantial regulatory mechanisms, including conditions, imposed by regulation. The Fishery, which came into existence on 18 December 2013, has continued to be in existence, with no changes to its definition since that day.[34]
[34]Further details of the amending regulations creating the Fishery are set out in paragraphs 9 and 10 of the defendants’ principal written submissions dated 25 August 2017. For the result, see Fisheries Regulations 2009 (as amended) reg 7, Schedule 4 (item 20A).

Also on 18 December 2013, by regulations made under s 153 of the Act for the purposes of s 38(1), a new class of access licence was created. It was entitled the ‘Scallop Dive (Port Phillip Bay) Fishery Access Licence’. This class of licence is to be distinguished from the specific licence held by the plaintiff.

By force of s 38(3) of the Act, any access licence issued (under s 38(2), read with s 51) in the newly created class of Scallop Dive Access Licence would continue in force for the period specified by the Secretary in that Licence as issued.

Any access licence issued in the newly created class of Scallop Dive Access Licence would be subject to any conditions imposed by the Secretary and expressed or referred to in the licence itself, and any conditions in the regulations (in addition to any conditions imposed by the Act): see s 52. With respect to conditions prescribed by regulations, s 55 of the Act provided (and still provides) that, if the regulations add or vary a licence condition with respect to an existing class of licence, the addition or variation applies to every licence of that class in existence (unless the regulations state otherwise).[35] The term ‘condition’ is defined in s 4(1) of the Act to include, in relation to a licence, ‘any restriction that applies to the licence’.
[35]The defendants point out in their written submissions that the plaintiff’s written submissions contain no reference to s 55 of the Act.

Other regulations in the 2013 amending regulations provided for various other matters in relation to an access licence in the newly created class of Scallop Dive Access Licence.[36]
[36]See paragraph 14 of the plaintiff’s principal written submissions dated 25 August 2017.

At all relevant times, including as at 18 December 2013, a ‘catch limit’ (as defined in s 4(1) of the Act) was prescribed by reg 405(1) of the Fisheries Regulations 2009 (‘the 2009 Regulations’), for the purposes of the Act, with respect to ‘the taking of scallops from Victorian waters’ (a daily limit of 100 scallop), and ‘the possession of scallop in, on or next to any Victorian waters’ (a limit of 100 scallop). Prior to 18 December 2013, reg 405(2) provided that sub-reg (1) did not apply to the holder of an Access Licence in the class ‘Scallop (Ocean) Fishery Access Licence’. Reg 14 of the 2013 amending regulations amended reg 405(2) so that the catch limit in sub-reg (1) would also not apply to the holder of an access licence in the newly created class of Scallop Dive Access Licence who takes or possesses scallop in accordance with the licence, the Act and the regulations.

Regulation 13 of the 2013 amending regulations also inserted new reg 404A into the 2009 Regulations. Reg 404A provided, specifically in respect of scallops taken under an access licence in the newly created class of Scallop Dive Access Licence, that the minimum size of a scallop (other than doughboy scallop) was 90mm. As mentioned in the note to the new regulation, ss 68A and 68B of the Act create offences relating to the taking or possession of fish less than the minimum size prescribed by regulations.

Regulation 18 of the 2013 amending regulations inserted new Item 18A in Schedule 5 of the 2009 Regulations, the effect of which, when read with reg 21, is that the maximum number of access licences that could be issued in the newly created class of Scallop Dive Access Licence was one.

A large number of regulations (numbered 413A to 413ZA), inserted by reg 15 of the 2013 amending regulations, addressed many aspects of an access licence in the newly created class of Scallop Dive Access Licence. Regulation 19 of the 2013 amending regulations amended Schedule 14 of the 2009 Regulations, with the effect that new regs 413D to 413I and 413N to 413W would be ‘designated licence conditions’ (an expression which is defined in s 4(1) of the Act).

As mentioned in the note to the new reg 413B, any access licence in the newly created class of Scallop Dive Access Licence would have to comply with:

(a) every condition in new Division 3B, namely regs 413C to 413X (see s 52(1)(b) of the Act);

(b) any condition expressed or referred to in the access licence itself (see s 52(1)(a)); and

(c) all the conditions in Division 3 of Part 2 of the 2009 Regulations, being general conditions applying to all commercial fishing licences.

Under s 53 of the Act, a failure to comply with any such conditions would be an offence with a maximum penalty of 50 penalty units and, in the case of breach of a designated licence condition, a maximum penalty of 100 penalty units or 6 months imprisonment or both.

Thus, in their principal written submissions,[37] the defendants summarise the situation as at 18 December 2013, in a fashion with which I agree, as follows:
[37]Dated 25 August 2017, [20].

a.the Scallop Dive Fishery had been defined by regulations, separately from providing for a new class of access licences;
b.any access licence to be issued in the newly created class of Scallop Dive Access Licence would be subject to many conditions, some of which were ‘designated licence conditions’;
c.there was nothing in the Act or in the 2009 Regulations that would have prevented the imposition, by regulation (empowered by s 153 of the Act), of further conditions for any access licence in the class of Scallop Dive Access Licence;
d.more specifically, there was nothing that would have prevented the imposition of a condition that, in any one year, no more than a specified quantity of scallops could be taken under an access licence;
e.the 2009 Regulations as amended provided that only one access licence would be issued in the newly created class of Scallop Dive Access Licence;
f.there was nothing in the Act that would have prevented an amendment of the 2009 Regulations, so that more than one access licence in the newly created class of Scallop Dive Access Licence could be issued;[38]
g.there was no ‘catch limit’ prescribed for the Scallop Dive Fishery – rather, there was a ‘catch limit’ defined by reference to Victorian waters and imposed with respect to taking in one day, or processing, more than a specified quantity of scallop, which did not apply to the holder of a Scallop Dive Access Licence;
h.there was nothing in the Act that would have prevented the repeal of reg 405(2), with the effect that the ‘catch limit’ in respect of the amount of scallops that could be taken in one day would apply to everyone.

[38]As mentioned above, in 2013 the then Government announced publicly that there would be only one licence issued for the Fishery, and that it would be auctioned. In fact, only one licence was issued and it was duly auctioned. It was bought for $180,000 and subsequently transferred to the plaintiff.

The Act provides for a number of ways in which a Fishery may be managed and/or regulated. These include:

(a) management plans (see Part 3 of the Act);

(b) regulating the classes and number of licences in each class that may be issued in respect of a fishery;

(c) imposing conditions on licences, either generally (by reference to the whole class or otherwise) or in respect of a particular licence (see ss 52, 54, 55 and 153);

(d) Ministerial directions (see s 61);

(e) quota-management (see ss 64 to 66R);

(f) fishing closures (see s 67);

(g) creating of particular offences in respect of certain conduct in a fishery (see eg s 68A);

(h) creating fisheries reserves (see ss 88 and 89); and

(i) fisheries notices (see s 152).

Making a fishery (including an abalone fishery), or only some specified zone or zones of such a fishery, quota-managed is only one of the ways in which the Act provides for regulation of a fishery.

Contrary to the submissions made by the plaintiff, the defendants submit, and I accept, that the ways of managing fisheries listed above are not mutually exclusive or inconsistent with one another. While s 152(3) of the Act expressly provides that a fisheries notice is intended to prevail to the extent of any inconsistency, this does not detract from the fact that a number of different regulatory mechanisms may apply at any one time, or from time to time, in respect of any particular fishery. Indeed, s 152(3) tends rather to confirm this.

The defendants point out that the plaintiff’s written submissions relating to the objectives of the Act omitted reference to a number of important statutory objectives, such as the protection and conservation of fisheries, resources, habitats and eco-systems (s 3(b)) and the promotion of quality recreational fishing opportunities as well as commercial fishing and viable aquaculture industries (s 3(c)).

The fact that there are multiple ways of regulating reflects the fact that the objectives of the Act are diverse and that, to give effect to them, different and flexible mechanisms may need to be deployed. In that regard, I note that what is listed in s 3 is a set of objectives ‘of this Act’. No doubt the list of objectives is meant to be taken into account where it may be relevant to the construction of other provisions of the Act. However, the list is not stated as a list of principles or precepts to be observed in the making of decisions (whether administrative or legislative) under the Act. Even if that had been done, decision makers would have been confronted with conflicting objectives. In such a situation, as long as the decision maker has regard to the entire list of objectives, or those that might conceivably be relevant, it would usually be open to the decision maker to put one or other of the objectives or purposes aside in order to achieve another of the objectives or purposes to which such a provision refers.[39] In the present situation, by virtue of the manner in which s 3 of the Act is drafted, the repositories of otherwise broadly expressed discretionary powers conferred by the Act are even less constrained by any such considerations.
[39]Legal Services Commission of New South Wales v Stephens [1981] 2 NSWLR 697, 699 (Street CJ), 704−705 (Hope JA). Compare AS v Minister for Immigration [2016] VSCA 206, [1], [35]. Compare also s 5(5) of the Disability Act 2006 (Vic) and s 4(2) of the Guardianship and Administration Act 1986 (Vic).

On 19 December 2013, the then Minister for Agriculture and Food Security made a determination pursuant to s 51A of the Act that an access licence in the Class Scallop Dive Access Licence would be publicly sold by way of auction.

Also on 19 December 2013, the then Minister for Agriculture and Food Security made an IQO under s 64(1) of the Act in respect of the Fishery.[40] It provided as follows:
[40]An IQO, made under s 64(1) of the Act, is a ‘quota order’ as defined in s 4(1).

INITIAL QUOTA ORDER UNDER SECTION 64 – SCALLOP DIVE (PORT PHILLIP BAY) FISHERY
I, Peter Walsh, Minister for Agriculture and Food Security, having undertaken consultation in accordance with section 3A of the Fisheries Act 1995 (the Act), make the following Initial Quota Order under section 64 for the Scallop Dive (Port Phillip Bay Fishery).
1.The Scallop Dive (Port Phillip Bay) Fishery will be managed by the allocation of quota to a Scallop Dive (Port Phillip Bay) Fishery Access Licence.
2.The total number of individual scallop quota units (excluding doughboy scallops) allocated per access licence will be 1 quota unit per scallop commercial fishing management zone. These quota units will attach to the Scallop Dive (Port Phillip Bay) Fishery Access Licence, which will be sold via auction.
3.The total number of individual doughboy scallop quota units allocated to the access licence will be 1 quota unit per scallop commercial fishing management zone. These quota units will attach to the Scallop Dive (Port Phillip Bay) Fishery Access Licence, which will be sold via auction.
4.The individual quota units for the Scallop Dive (Port Phillip Bay) Fishery may be transferred permanently if the Scallop Dive (Port Phillip Bay) Fishery Access Licence is transferred to another individual, corporation or co-operative.
5.Individual quota units that are not taken during a quota period cannot be carried over in the next quota period.
6.If the holder of a Scallop (Dive) Fishery Access Licence has caught or landed in excess of his or her quota allocation by 20 kilograms or less at the end of a quota period, the amount by which the access holder is in excess will be deducted from his or her quota allocation for the next quota period. At no time can an access licence holder catch or land more than 20 kilograms in excess of his or her quota allocation.

Notes:
1.One Scallop Dive (Port Phillip Bay) Fishery Access Licence only has been issued.
2.There are six scallop commercial fishing management zones in the Scallop Dive (Port Phillip Bay) Fishery.

This order commences on the day on which it was published in the Government Gazette.[41]
Dated: 19 December 2013

[41]The Order was published on 19 December 2013.

Upon the making of the IQO, the Fishery satisfied the definition of ‘quota fishery’ in s 4(1) of the Act.

So, relevantly, the IQO provided that:

(a) the Fishery would be managed by the allocation of quota (plural), separately with regards to doughboy dcallop and with regards to other scallop;

(b) with regards to each of the two kinds of scallop, there would be one individual quota unit for each scallop commercial fishing management zone, meaning that (as the Fishery had been defined with six such zones) there would be a total of six individual quota units for each kind of scallop (hence 12 units in total);

(c) individual quota units (not necessarily all 12) could be transferred permanently (and, by reason of s 64(4) of the Act, could also be transferred for a quota period only) if the Scallop Dive Access Licence were transferred to another individual, corporation or co-operative.[42]

[42]As the defendants point out, s 64(1)(d)(i) does not expressly envisage a conditional declaration that individual quota units may be transferred only if an access licence is transferred; and that it is somewhat difficult to apply such a condition to s 64(4), which permits transfer of individual quota units for a quota period only.

The transfer of individual quota units, whether permanently or not, is regulated by s 65A of the Act. It is clear from that provision that there can be a transfer to another holder of an access licence in the particular quota fishery of just some individual quota units, with no requirement that there be a transfer of the actual access licence. The fact that in this case there is only one access licence, so that any transfer of individual quota units would require another person to acquire the access licence itself, ought not distort the proper construction of relevant provisions of the Act.

As at 19 December 2013, no access licence in the class Scallop Dive Access Licence had been issued. The issuing of the licence did not occur until 5 November 2014.[43]
[43]Subsequently, on 14 November 2014, the licence was transferred to the plaintiff.

The making of the IQO did not have the effect of invalidating, or rendering inoperative, any conditions imposed by the Act or the 2009 Regulations (as amended with effect from 18 December 2013) on an access licence in the class Scallop Dive Access Licence.

Contrary to the plaintiff’s submissions, I accept that, if the 2013 amending regulations had, with effect from 18 December 2013, imposed a condition in respect of any access licence in the class Scallop Dive Access Licence that, in any one year, no more than a specified quantity of scallop could be taken, that condition would not have been invalidated or rendered inoperative by the subsequent making of the IQO on 19 December 2013. Correspondingly, I do not accept the plaintiff’s submission that it would have been necessary to repeal any regulation imposing any such condition before any IQO could validly have been made in respect of the Fishery.

Also on 19 December 2013, the then Minister for Agriculture and Food Security made a FQO under s 64A(1) of the Act in respect of the Fishery, for the period from that date until 31 March 2015 (the first FQO).[44] It provided as follows:
[44]A FQO, made under s 64A(1) of the Act is also a ‘quota order’ as defined in s 4(1).

FURTHER QUOTA ORDER UNDER SECTION 64A – SCALLOP DIVE (PORT PHILLIP BAY) FISHERY
I, Peter Walsh, Minister for Agriculture and Food Security, having undertaken consultation in accordance with s 3A of the Fisheries Act 1995 (the Act), make the following Further Quota Order under section 64A for the Scallop Dive (Port Phillip Bay) Fishery.
1.The total allowable catch for scallop (excluding doughboy scallop) for each scallop commercial fishing management zone is 2000 kilograms of unshucked scallop.
2.The total allowable catch for doughboy scallop for each scallop commercial fishing management zone is 100 kilograms of unshucked doughboy scallop.
3.The quantity of scallop (excluding doughboy scallop) comprising a quota unit for the quota period in each scallop commercial fishing management zone of the Scallop Dive (Port Phillip Bay) Fishery is 2000 kilograms.
4.The quantity of doughboy scallop comprising a quota unit for the quota period in each scallop commercial fishing management zone of the Scallop Dive (Port Phillip Bay) Fishery is 100 kilograms.
Notes:
1.There are six scallop commercial fishing management zones in the Scallop Dive (Port Phillip Bay) Fishery.
2.There is one quota unit for scallop (excluding doughboy scallop) in each scallop commercial fishing management zone in the Scallop Dive (Port Phillip Bay) Fishery.
3.There is one quota unit for doughboy scallop in each scallop commercial fishing management zone in the Scallop Dive (Port Phillip Bay) Fishery.

This Order commences on the day on which it is published in the Government Gazette[45] and remains in force until 31 March 2015.
Dated: 19 December 2013.

[45]The Order was published on 19 December 2013.

Given that no access licence had been issued (and as it turned out would not be issued for another 11 months), there was no duty to make the first FQO by the date on which it was made.[46]
[46]However, compare Port Phillip Scallops Pty Ltd v Minister for Agriculture [2015] VSC 179.

The making of the first FQO did not have the effect of invalidating, or rendering inoperative, any conditions imposed by the Act or the 2009 Regulations (as amended with effect from 18 December 2013) on an access licence in the class Scallop Dive Access Licence.

More specifically, and, once again, contrary to the plaintiff’s case, I accept the defendants’ submission that if the 2013 amending regulations had, with effect from 18 December 2013, imposed a condition in respect of any access licence in the class Scallop Dive Access Licence that no more than a specified quantity of scallops could be taken in any one year, that condition would not have been invalidated or rendered inoperative by the making of the first FQO on 19 December 2013. Similarly, the presence of such a condition would not have prevented the making of the first FQO on 19 December 2013 or at all.

While the IQO was in force, further FQOs were made as follows:

(a) on 25 May 2015, for the period ending 31 March 2016;

(b) on 16 February 2016, for the period ending 31 March 2017;

(c) on 30 March 2017, for the period ending 31 March 2018.

As indicated above, the plaintiff challenges the validity of the decision of the Executive Director (Mr Dowling), as a delegate of the Minister, to make the last of the above-identified FQOs (the challenged FQOs). I will come to that challenge in due course, but, as will appear, in the events which have happened, the challenge really goes nowhere.

As already mentioned, the Scallop Dive Access Licence was auctioned. The auction was held on 20 February 2014. A company controlled by Mr Collis was the winning bidder. On 5 November 2014, pursuant to s 38(2) of the Act (read with s 51(1) and (4A)), an access licence in the class Scallop Dive Access Licence was issued to another company controlled by Mr Collis. It was issued with an expiry date of 31 March 2015, and it was subject to the provisions of the Act, to the conditions specified in it, and to any conditions that may be prescribed by regulation (see s 55) or added to the licence in accordance with ss 52 and 54 of the Act. Hence, I accept the defendants’ submission that the licence was taken subject to an express condition that it may be varied, whether by an exercise of statutory power under the Act or by subsequent regulation.[47] On 14 November 2014, pursuant to s 56 of the Act, the licence was transferred to the plaintiff, being a third company controlled by Mr Collis.
[47]Compare Alcock v Commonwealth (2013) 210 FCR 454, 465 [37], 466 [39] (Rares, Buchanan and Foster JJ) in relation to access licences to take abalone in a quota fishery under the Act.

Pursuant to s 57 of the Act, the licence has been renewed yearly, on the application of the plaintiff. On 1 April 2017, it was renewed for the period ending 31 March 2018.

The defendants accept, as do I, that when an access licence in a particular class is issued to a person, the Act confers private statutory rights that are ‘a species of property’.[48]
[48]See ICM Agriculture v Commonwealth (2009) 240 CLR 140, 201 [147] (Hayne, Kiefel and Bell JJ), in respect of statutory bore licences.

However, as the above analysis shows, the creation of a new class of access licence and the issuing of any licence in that class are matters entirely independent of whether the fishery is quota managed. 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.’[49] 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.[50] 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.[51]
[49]Alcock v Commonwealth (2013) 210 FCR 454, 469 [47].
[50]Ibid, 468 [46].
[51]Ibid, 474 [75]-[76].

It is true that the Act provides for a compensatory scheme when an access licence is cancelled as a result of a Ministerial direction under s 61(1)(c) of the Act, but there has been no cancellation of the relevant licence in this case.

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.’[52] As they submit, statutory rights to fish are inherently defeasible.[53] Parliament may choose to, but need not, provide for some form of compensation when any of the statutory rights conferred under the Act are affected.
[52]Ibid, 468 [46]. See also Harper v Minister for Sea Fisheries (1989) 168 CLR 314, 330 (Brennan J).
[53]Harper v Minister for Sea Fisheries (1989) 168 CLR 314.

As the defendants submit, the Parliament of Victoria, within its constitutional powers, has provided:

(a) for defeasibility (in the sense of possible detrimental effect on the value of an access licence in a fishery that had been, up to that point, quota managed), among other things by giving a power to revoke an IQO ‘at any time’ – see s 64(2); and

(b) that any diminution in the value of an access licence, as may be caused by a decision to revoke an IQO, is not compensable – see s 64C.

I agree with the defendants that there is nothing that puts the plaintiff’s licence in any special position under the Act. The fact that only one Access Licence has been issued in the relevant class of Scallop Dive Access Licence cannot affect the proper construction of the relevant statutory provisions under which the rights conferred by a licence arise.

I turn now to the proper construction of s 64 of the Act, which is at the heart of the plaintiff’s contention that there was no power to revoke the IQO.

I accept that general statements to the effect that statutory rights to fish are ‘inherently defeasible’ do not, of themselves, supply a complete and universal answer to problems of the present kind.[54] I accept that the true question here is whether there was an express or implied statutory prohibition on the exercise of the power to revoke an IQO in the circumstances.
[54]Compare the plaintiff’s written submissions in reply dated 28 August 2017, [3]-[5].

However, it is relevant, as the defendants submit, that the character of an access licence is quite independent of the fact that the relevant fishery is quota managed. Further, I agree with the defendants that s 64C, as to which the plaintiff has said very little, is an important guide to the proper construction of s 64 itself. Section 64C is as follows:

64C No compensation payable for losses resulting from quota orders
No compensation is payable by the Crown to any person for any loss or damage that results from an order made by the Minister under section 64, 64A, 64AB, 66C, 66D or 66E.

As the defendants comment, in that section Parliament has provided in unequivocal terms that no compensation is payable for any loss or damage (eg, any alleged diminution in the potential value of an access licence in a transfer under s 56 of the Act) in respect of any order made by the Minister under, among other sections, s 64.

Turning to s 64 itself, I agree with the defendants that the evident purpose of providing for the possibility of declaring that individual quota units may be transferred, either permanently or for a quota period only, is to facilitate a form of market in the entitlement associated with an access licence whilst there is in effect a form of regulation of the fishery by way of quota order (i.e. while the fishery is a quota fishery). As the defendants point out, that market is still constrained by the requirement of approval by the Secretary in respect of any proposed transfer – see s 65A. Further, in the case of a quota fishery which has more than one access licence, an intended transaction between two licence holders for the transfer of a number of individual quota units (whether permanently or for a quota period only) may be prevented by the values set under s 64(1)(e). The potential value of any initially allocated quota units – noting the realisation of any value is subject to the Secretary’s approval – is also able to be detrimentally affected by a determination by the Minister to sell new quota units: see s 65B.

I agree with the defendants that, against that statutory background, s 64(2) means what it says: ‘The Minister may revoke… at any time’ an order made under s 64(1). As the defendants say, such an order would not bring to an end any existing access licences in respect of the relevant fishery. Such an order would not entitle any person (which extends to any person holding a security interest) to compensation.

Again, I agree with the defendants that the plaintiff’s construction entails the proposition that, once there is a quota order for fishery A (and, as well, other quota orders for fisheries B, C, D etc.) and, for that fishery, there has been a declaration under s 64(1)(d)(i), the only mechanism for removing what is only a management arrangement in respect of fishery A is ‘abolition… by legislation’. As the defendants submit, it is not clear what form of legislation the plaintiff was contemplating, whether directed explicitly to fishery A or whether involving wholesale repeal of ss 64 to 66A (or, on one view, of ss 64 to 66R). I further agree with the defendants that the case cited by the plaintiff in support of its submissions in this regard, namely Seafish Tasmania Pelagic Pty Ltd v Minister for Sustainability, Environment, Water, Population and Communities (No 2),[55] does not help it. Indeed, if anything, that case assists only the defendants on the present point. In any event, I agree with the defendants that there is no reason why the Act should be construed to mean that, after a declaration under s 64(1)(d)(i), quota management can only be removed by primary legislation, when Parliament has provided in s 64(2) for a power which, at least so far as that sub-section goes, is unconditional, ‘to revoke… at any time’ an IQO. It is also noteworthy that s 64A(2) confers an unconditional power to revoke an FQO at any time. That is accompanied by the power conferred by s 64A(3) to reduce the total allowable catch, or reduce the quantity of fish comprising an individual quota unit, before the end of the period to which the total allowable catch or unit applies.
[55](2014) 225 FCR 97.

I agree with the defendants that sub-section 64(2) confers two distinct powers, to revoke and to amend. As the defendants observe, necessarily the power to amend extends to amending only some aspect of an order made under s 64(1). In those circumstances, I agree that sub-section 64(3) also means what it says – the restriction on the power to ‘amend… at any time’ any part of an order made under sub-section (1) only applies to:

(a) a declaration made under sub-section (1)(d)(i); or

(b) anything under sub-section (1)(a) (eg which specified zones of a fishery, but not the whole, are to be managed by the allocation of quotas);

(c) anything under sub-section (1)(b) (any part of the method for setting the number of individual quota units); or

(d) anything under sub-section (1)(c) (any part of the method for allocating individual quotas to each access licence),

when the amendment is required for either one of the reasons set out in paragraph (a), or one of the reasons set in paragraph (b). Notably, as the defendants comment, there is no restriction on the power to amend with respect to anything under sub-section (1)(e) or sub-section (1)(f).

I would add that this reading of s 64(3) is supported by the explanatory memorandum to the Fisheries (Amendment) Bill which led to the substitution of s 64 by s 9 of Act no. 80 of 2000. In the explanatory memorandum, the following was said:

Clause 9 amends the Fisheries Act 1995 to enable the Minister to allow quota units to be permanently transferred. Proposed new section 64 allows the Minister, by order, to declare a zone or zones of a fishery to be managed by quota, to determine the method for setting and allocating individual quota units and to declare if quota units can be transferred permanently or only during a quota period (temporary). If permanent transfer or quota is allowed, the Minister cannot vary the zones or method of setting or allocating quota unless the variation gives effect to a management plan or to a change to management plan or if there is an error in the order.

As the defendants say, s 64(2) confers a power to revoke an order and a power to amend an order. Sub-section 64(3) imposes restrictions on the exercise of the power to amend certain aspects of an order. Sub-section 64(3) does not in terms address or restrict the power to revoke an order.

I further agree that, in those circumstances, and having regard to the fact that Parliament has used two very different terms in sub-section (2) of s 64 (‘revoke’ and ‘amend’), and to the fact that it also used those same two terms in a consistent manner in sub-section 64A(2), it is an impermissible construction to read the general power in section 64(2) as displaced, as the plaintiff would have it.

Again, I agree with the defendants that the plaintiff is wrong in its contention that ‘amendments [are] achieved’ by an exercise of the power to revoke. As the defendants submit, in the ordinary English meaning of ‘to amend’, the thing in question remains in existence.[56] By contrast, in their ordinary English meanings, the noun ‘revocation’ relevantly means annulling something, the cancellation of a decree or similar matter, and the transitive verb ‘to revoke’ means to annul, repeal or cancel.[57]
[56]Shorter Oxford English Dictionary (6^th ed). The noun ‘amendment’ means removal of a fault or error, and the transitive verb ‘to amend’ means to free a thing from faults, to correct what is faulty, to rectify something.
[57]Shorter Oxford English Dictionary (6^th ed).

During the oral argument on this issue, senior counsel for the plaintiff acknowledged that for her argument to succeed the word ‘only’ in s 64(3) had to be given ‘double work’. It had to be accorded an operation such that s 64(3) was to be read as if it provided:

However, if the Minister makes a declaration under sub-section (1)(d)(i), the Minister may only amend that declaration or anything under sub-section (1)(a), (b) or (c), and may only do so if the amendment is required –
(a) to give effect to the management plan etc;
(b) to correct etc.

This would involve notionally inserting words into section 64(3). In my view, it would be to make an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.[58]

[58]Western Bank v Schindler [1977] Ch 1, 18 per Scarman LJ, cited by Lord Nichols of Birkenhead in Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586, 592, and adopted by French CJ, Crennan and Bell JJ in Taylor v Owners – Strata PlanNo 11564 (2014) 253 CLR 531, 548 [38]. The acknowledgement by senior counsel for the plaintiff that, on her argument, ‘double work’ would be involved for the word ‘only’ is at transcript of proceedings, 246-247.

That last observation applies all the more strongly to the plaintiff’s alternative submission to the effect that the power to revoke an IQO is only available to close commercial fishing in a fishery. As mentioned above, senior counsel for the plaintiff declined to develop this submission orally. It is a submission which, as the defendants say, flies in the face of the clear words used by Parliament – ‘at any time’.

As the defendants further submit, in circumstances where the Act provides a specific power to close a fishery to all fishing, including commercial fishing, whilst leaving in place all existing licences (see ss 67 and 152), it is impossible to construe the power in s 64(2) as limited in the way in which the plaintiff contends.

Further, again, the defendant is correct to note that, as part of the plaintiff’s (written) submission to the effect that what has been done amounts ‘in substance [to] amendments to the quota regime,’ the plaintiff has moved to consideration of ‘decisions’ (plural). However, as the defendants submit, the fact that a new regulation was made under an entirely separate power (and, for the purposes of this part of the plaintiff’s argument, validly) can have no bearing on the issue of the proper construction of the power in s 64(2) of the Act, and/or whether s 64(3) in its ‘amendment’ limb affords any protection. In passing from this point, I would also indicate my agreement with the defendants’ submission that the observations made by French CJ in Lee v NSW Crime Commission,[59] to which the plaintiff’s written submissions refer, are inapposite because, instead of the rights in question being ‘common law rights’, an access licence is a creature of statute.
[59](2013) 251 CLR 196, 203 [3].

In my view, the Minister did have power to revoke the IQO. Accordingly, I do not uphold the plaintiff’s contentions in respect of grounds 26A and 27 of the amended originating motion.

Is there statutory power to impose by regulations, on an access licence for a fishery that is quota-managed, a condition limiting the quantity of fish that may be taken under the licence?

The issues dealt with under the previous heading were pure issues of law. Another, related pure issue of law is involved in the plaintiff’s submissions. It is the question of statutory power set out in the heading immediately above. It turns on the proper construction of the Act and the Regulations. Because I have just been dealing with most of the relevant provisions, it is convenient to turn to this question now, even though, if I be correct in certain of my other conclusions in this case, the present question would not, strictly speaking, need to be decided.

The present point is the subject of the plaintiff’s contentions in paragraphs [36] and [37] of the amended originating motion, which are as follows (explanations of defined terms added in square brackets):

By reason of the matters set out in paragraphs 27 to 33 above, the Revocation Decision [defined to mean the Minister’s decision to revoke the IQO] was void, invalid and of no legal effect, and as a result the Initial Quota Order:
(a)was valid at the time the Regulation [defined to mean the Fisheries Amendment (Catch Limit for Scallop Dive (Port Phillip Bay) Fishery) Regulations 2017, which inserted Regulation 413BA, being the regulation principally in question] was made; and
(b)remains valid.

On a proper construction of the Act, in circumstances where the Fishery was subject to the Initial Quota Order, a regulation in the nature of the Regulation was ultra vires.

This point was the subject of only relatively brief mention in the plaintiff’s original written submissions.[60] Indeed, only four paragraphs were devoted to it, as follows:
[60]Dated 11 August 2017, [139]-[142].

Invalid in limine
If, as submitted by the [plaintiff], the Revocation Decision was invalid and the IQO remains on foot, it necessarily follows that the Regulation was invalid at the time that it was made. That is so because the IQO set the “individual quota unit” for the licence holder, as permitted by s 64(1)(e), and the circumstances in which the individual quota could be exceeded or carried over as permitted by s 64(1)(f).
Where an IQO has so provided, the “total allowable catch” or “quantity of fish (by number, volume, weight or value) comprising an individual quota unit” is to be set by FQO: s 64(1)(a) [sic, scil s 64A(1)].

Concerns of the recreational fishery sector
In late 2015, Fisheries Victoria commenced stakeholder consultation in relation to a draft Management Plan for the Fishery, proposed to be declared under section 28 of the Act. The draft Management Plan released for public consultation set out (amongst other things):
(1)a conservative approach for commercial harvesting (i.e. 10 to 20 percent of estimated biomass per annum) or 750 tonnes, whichever is lower during the development of the Fishery;
(2)the rationale for the approach being:
(i)to ensure that harvest remains sustainable in the event of high mortality and/or slow growth;
(ii)to ensure that, in combination with size limits, sufficient reproductive potential is retained; and
(iii)to account for the vulnerability of scallops to fishing because they are sedentary and aggregated in beds;

(3)the single Licence Holder would be able to catch an increasingly greater proportion of the biomass, subject to the Licence Holder taking at least 75 percent of the total allowable catch in the previous fishing year and a ceiling of 750 tonnes; and
(4)a maximum TACC for the 2016/2017 fishing year of 250 tonnes.

Fisheries Victoria received a large number of submissions in response to the draft Management Plan. A number of submissions from the commercial sector supported the draft Management Plan. On the other hand, key recreational fishing bodies did not support the draft Management Plan. Some of the key concerns which were expressed regarding the draft Management Plan were as follows:
(1)the draft Management Plan contemplated that the Fishery could increase to a total allowable catch of 750 tonnes, which exceeded the recreational fishing bodies’ understanding of the size of the Fishery based on consultation during the introduction of the Fishery;
(2)when the Fishery was established in 2013, government did not communicate that the Fishery would be permitted to grow substantially beyond the initial total allowable catch of 12 tonnes; and
(3)the rate of development of the Fishery since establishment was not consistent with the risk-based, precautionary development of the Fishery.

Scallop biology and biomass studies
Scallop fisheries are characterised by naturally sporadic and fluctuating abundance and irregular, episodic recruitment, which is heavily influenced by environmental conditions (such as predation).
Scallop aggregate in sub-populations (scallop beds), which vary temporally in size and location. As a result, the amount of scallops that can be taken sustainably may vary considerably from year to year.
Existing knowledge of the scallop resource (including the impact of the dredge fishery) in Port Phillip Bay is limited. Data on scallop biomass (i.e. stock status) in Port Phillip Bay since the closure of the Port Phillip Bay dredge fishery in 1997 is limited to the following stock surveys commissioned by the Licence Holder, following the establishment of the Fishery:
(1)a dive survey report prepared by Fisheries Victoria (dated October 2014) showing available biomass of 3,629 tonnes;
(2)a dive survey report prepared by Dr David Gwyther of Picton Group Pty Ltd (dated October 2015) showing available biomass of 11,065 tonnes; and
(3)a dive survey report prepared by Dr David Gwyther of Picton Group Pty Ltd (dated October 2016) showing available biomass of 5,510 tonnes.

Past catch in the Fishery by the Licence Holder
Historically, the TACC for the Fishery has increased in each fishing year since establishment in 2013. However, in each fishing year, the TACC has not been fully utilised.

Quota Year TACC Reported Catch

2014/15 12 tonnes 178.59 kgs

2015/16 146 tonnes 10,343.63 kgs

2016/17 250 tonnes 58.735 tonne
Economic analysis for the Fishery
An economic analysis undertaken by Fisheries Victoria indicated that a TACC of 60 tonnes for the Fishery would provide an estimated gross landed value of between $900,000 - $1,200,000, based on a beach price of $15 - $20 per kilogram (as reported in the most recent annual report submitted by the Licence Holder).
Conclusion
After consideration of all of the matters set out above, I concluded that the Further Quota Order for the 2017/18 fishing year should be in the following terms:
(1)the total allowable catch of unshucked commercial scallops for the Fishery should be set at 60 tonnes accross the six quota management zones;
(2)the total allowable catch for doughboy scallops (Chlamys asperrimus) for each scallop commercial fishing management zone is 100 kilograms of unshucked doughboy scallops;
(3)the quantity of doughboy scallops comprising a quota unit for the quota period in each scallop commercial fishing management zone of the Fishery is 100 kilograms.

I considered a TACC of 60 tonnes to be consistent with the concept of a small-scale, niche commercial fishery, which underpinned the establishment of the Fishery in 2013. I considered a TACC of 60 tonnes to be consistent with general expectations of the recreational fishing sector in relation to the size and scope of the Fishery, in circumstances where a consideration in establishing the Fishery was the impact of any commercial fishery on recreational fishing.
A TACC of 60 tonnes reflects a precautionary, conservative approach. I considered such an approach to be appropriate and reasonable, having regard to scallop biology and limited existing knowledge of the scallop resource in Port Phillip Bay. This approach and the knowledge constraints in relation to stock have been consistent themes since before establishment of the Fishery.
I had regard to the stock surveys undertaken since the Fishery was established. In exercising the power under section 64A(1) of the Act, I am not limited to considering stock surveys and estimated abundance. The stock surveys suggested that the available biomass of scallops is fluctuating and variable. It remains appropriate to adopt a precautionary, conservative approach in setting the TACC, having regard to the statutory objectives (including the efficient, effective and ecologically sustainable management, development and use of the fishery, and the protection and conservation of fisheries resources). Further, taking into account the submissions received from the recreational fishing sector in response to the Draft Management Plan, a TACC of 60 tonnes would promote quality recreational fishing opportunities in addition to commercial fishing for the benefit of present and future generations, and would facilitate access to fisheries resources for recreational uses together with commercial uses.
I note that the draft Management Plan has not been declared. Even if it had been declared, its contents, while relevant, could not fetter my discretion under section 64A(1) of the Act.
Although past catch is not determinative, it is generally a relevant consideration in determining a total allowable catch for any quota managed fishery. In the current circumstances, it is relevant that in the most recent fishing year the Licence Holder (who holds the only licence for the Fishery) reported catch of 23.2 percent of TACC. In taking into account this matter, I have accepted that the development of the new business would have contributed to under utilisation of the TACC.
I was not persuaded by the submission of the Licence Holder that a TACC of 60 tonnes would be commercially disastrous, in the light of the economic analysis undertaken by Fisheries Victoria.
Finally, a TACC of 60 tonnes is consistent with the Government’s policy, conveyed to the Licence Holder in February 2017, of changing the Fishery from a quota managed fishery to one where the annual catch limit would be set by regulation at 60 tonnes per year. Although this policy cannot fetter my discretion under section 64A of the Act, I considered that it was a relevant matter to be taken into account in the exercise of my discretion.
I decided that the TACC for each commercial fishing management zone should be set in the same proportions as allocated for the 2016/2017 fishing year. I was of the view that this allocation would allow the Licence Holder to maximise the yield from the more productive and food safety approved areas.

On 18 July 2018 the plaintiff filed an amended originating motion removing the claim for an order under s 8(4) of the ALA and making other amendments. The amended originating motion seeks:

1.An order in the nature of certiorari quashing the First Defendant’s decision made on 17 March 2017 to revoke the Initial Quota Order made on 19 December 2013 in respect of the Scallop Dive (Port Phillip Bay) Fishery.
2.A declaration that the First Defendant’s decision made on 17 March 2017 to revoke the Initial Quota Order made on 19 December 2013 in respect of the Scallop Dive (Port Phillip Bay) Fishery is void, invalid and of no effect.
3.An order in the nature of certiorari quashing the decision of the Executive Director, Fisheries as delegate of the First Defendant on 27 March 2017 to make the Further Quota Order in respect of the Scallop Dive (Port Phillip Bay) Fishery.
4.A declaration that the Further Quota Order made on 27 March 2017 in respect of the Scallop Dive (Port Phillip Bay) Fishery by the Executive Director, Fisheries as delegate of the First Defendant is void, invalid and of no legal effect.
5.A declaration that the Fisheries Amendment (Catch Limit for Scallop Dive (Port Phillip Bay) Fishery) Regulation 2017 (Vic) is void, invalid and of no effect.
6.An order in the nature of mandamus compelling the First Defendant to make and publish in the Government Gazette a further quota order pursuant to s 64A(1) of the Fisheries Act 1995 (Vic) for the Scallop Dive (Port Phillip Bay) Fishery for the period 1 April 2017 to 31 March 2018.

In the amended originating motion, the grounds relied upon by the plaintiff for the contention that the revocation of the IQO represented an invalid exercise of power and involved a breach of procedural fairness were expressed as follows:

In making the Revocation Decision, the Minister -
(a)exercised the power under s 64(2) of the Act for an impermissible purpose;
(b)took into account irrelevant considerations;
(c)failed to take into account mandatory relevant considerations to the exercise of the statutory power;
(d)acted irrationally and/or decided so unreasonably that no decision maker acting reasonably could have so decided.

PARTICULARS
As to (a), the Minister, in circumstances where she was also intending to procure the promulgation of the Regulation as a concomitant of and as soon as possible after the Revocation decision, exercised the power for the purpose of:
(a)procuring that the Fishery not grow beyond a 'very small scale', 'boutique' or 'niche' fishery;
(b)acceding to 'disquiet behind the scenes about the size of the quota currently and the fact that there is a single licence'.

As to (b) the Minister took into account the following irrelevant considerations:
(a)the potential for the Fishery, if permitted to do so, to grow beyond a 'very small scale', 'boutique' or 'niche' fishery;
(b)‘disquiet behind the scenes about the size of the quota currently and the fact that there is a single licence';
(c)her intention to procure the promulgation of the Regulation as a concomitant of and as soon as possible after the Revocation Decision;
(d)the tonnage that, in fact, the plaintiff had taken in the 2016-2017 year, namely approximately 58 tonnes, as compared to the TACC that it had been authorised to take in that year.

As to (c) the Minister failed to take into account:
1.the objectives of the Act set in s 3, including 'to provide for the management, development and use of Victoria's fisheries', to 'promote commercial fishing and… for the benefit of future generations' and to 'promote the commercial fishing industry';
2.the Baseline Management Arrangements;
3.the TACC Setting Process;
4.the results of the annual scallop biomass survey provided by the Plaintiff to the department on 7 December 2016, and previously; and
5.the matters set out in the Plaintiff's letter to the Director dated 20 December 2016 requesting a TACC for the fishing year ending 31 March 2018.

As to (d), the plaintiff refers to and repeats the matters set out above in these particulars in respect of (a), (b) and (c), and in paragraph 14 and 15 above.
Procedural Unfairness
As the holder of the Licence the Plaintiff was the person most directly interested in and affected by the subject matter of the Regulation.
The Minister was under a duty to afford procedural fairness to the Plaintiff as the holder of the Licence.
Further, pursuant to ss 3A(1) and 3A(2)(e) of the Act, the Minister was required to engage to the extent practicable in consultation with the Plaintiff in respect of the Revocation Decision.
In respect of the Revocation Decision, the Minister failed to engage to the extent practicable in consultation with the Plaintiff and to afford the Plaintiff procedural fairness.
PARTICULARS
The plaintiff was not given any, or any proper, opportunity to present its case or to be heard as to whether the Revocation Decision should be made.

In my view, the plaintiff has not made out any of these grounds of review.

As the defendants submit, the power in s 64(2) of the Act is not a purposive power. It follows that the plaintiff must establish, first, that the allegedly vitiating 'purpose' upon which it relies was in fact the purpose (or the true or dominant purpose, among a number of purposes), and, secondly, that that allegedly vitiating purpose is forbidden. Further, improper purpose must be assessed subjectively.

Although all relevant evidence is to be considered, the primary source of information as to the Minister's purpose is her statement of reasons given pursuant to her statutory obligations under s 8 of the ALA.[151] As already mentioned, I am satisfied that regard can also be had to the public statements, made by the Minister after the decision was taken, on which the plaintiff relies. Those statement were as follows. On 1 April 2017, the Minister was reported in a newspaper as saying that the Fishery 'will continue to be a boutique operation as was always intended… ensuring the bay remains a mecca for recreational fishers.' The other statement was made by the Minister on a television program called 'Talking Fishing'. The Minister said:

The fishery was, at the time it was described as a niche fishery, as a boutique fishery, those kinds of words to describe it. It's taken in the last fishing year 58 tonnes, so we're not proposing to shrink it or to make it any smaller as I think [is] being claimed here. But we've said that's probably it - 60 tonnes that'll be the new cap, so that's what's in place from the 1st of April.

[151]See and compare Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162, esp 179 (French J); East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, 675-678 [308]-[315].

As it happens, in my view, these statements add little or nothing to the statement of reasons and do not really assist the plaintiff further.

During oral argument in particular, the plaintiff characterised the Minister's purpose as being to placate the recreational fishing lobby. I am prepared to accept that that was a substantial part of what the Minister had in mind. However, I agree with the defendants that this was not a consideration foreign to the Act. It did not constitute an improper purpose.[152] As to the objectives of the Act, I refer to and repeat what I have already said about them.[153]
[152]On the contrary, arguably it would have been legally inappropriate for the Minister to disregard the perceptions and strongly felt concerns of the ‘recreational fishing lobby’ as to the likely future of recreational fishing opportunities in Port Phillip Bay (cf s 3(c) of the Act) should the plaintiff’s operations in the Bay be permitted to expand as the plaintiff was seeking to do; and this regardless of whether those perceptions and concerns (as to the future) were considered to be misconceived. In Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (2008) 19 VR 422, 434-444 [40]-[74], where a statutory power to approve permission for gaming was exercisable only where ‘... the net economic and social impact of approval will not be detrimental to the well-being of the community of the municipal district in which the premises are located’, the Court of Appeal held that community opposition was a mandatory relevant consideration. See also Harburg Investments Pty Ltd v Mackenroth [2005] 2 Qd R 433; Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6^th ed, 2017) 284 [5.50]. An order revoking an IQO is quasi-legislative. It is a ‘legislative instrument’ within the meaning of the Subordinate Legislation Act 1994. In the present case, the revocation was part of a package of measures which included the making of the Regulations imposing the 60 tonne cap. The situation is thus, to a considerable extent, comparable with the restructure, by amending regulations, of the River Murray fishery that was the subject of South Australian River Fishery Association Inc v South Australia (2003) 85 SASR 373. In that case it was held that the taking into account of political considerations did not render the amending regulations invalid for improper purpose: (2003) 85 SASR 373, 391-393 [107]-[117] (esp [115]-[116]) (Doyle CJ), 413-416 [204]-[213] (esp [209]) (Gray J), 417-421 [220]-[243] (esp [236], [242]) (Besanko J).
[153]See paragraphs 77 and 78 above.

I agree with the defendants that the relevant power, being conferred on a Minister, is a power that the Minister is entitled to exercise in accordance with government policy (including a change from previous policy).[154]
[154]See paragraph 192 and footnote 152 above and see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 539 [102] (Gleeson CJ and Gummow J), 563-565 [181]-[187] (Hayne J); Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, 455 [50] (Gaudron, Gummow and Hayne JJ); Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231, 242 [18]; Aronson, Groves and Weeks, above n 152, 284 [5.50], 701-702 [9.270].

None of the matters identified by the plaintiff are matters that the Minister was prohibited from considering.

Nor was there any failure on the part of the Minister to take into account mandatory relevant considerations.

As already mentioned, the objectives of the Act are broadly expressed and may point in different directions. The Minister was not obliged to refer to them expressly in her reasons for decision.

Neither was the Minister obliged to take into account, to any greater extent than she did, the BMA or the TACC Setting Process. The very point of the measures being taken was to depart from the prior management arrangements. Neither the BMA nor the TACC Setting Process was a statutory instrument. Both were simply Departmental documents.

The same reasoning applies in relation to the results of the annual scallop biomass survey provided on 7 December 2016 and the related matters set out in the plaintiff's letter to the Director dated 20 December 2016. The government was taking a new direction.

During oral submissions at the hearing, senior counsel for the plaintiff submitted that the Minister had failed to take into account the detriment to the plaintiff that would be involved in the measures to be taken. No such ground is expressly included in the amended originating motion. In any event, even assuming that this was a mandatory relevant consideration,[155] I am not satisfied that the Minister failed to take into account detriment to the plaintiff. Certainly, the Minister might have given more weight to this factor, but she was not obliged to do so.
[155]See Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24.

Another matter that was raised and emphasised at the hearing, although not explicitly pleaded, was the omission in the briefing note to the Minister of any reference to the conclusions that had been reached in December 2015 by the relevant committee (the Port Phillip Bay Scallop Fishery Management Plan Steering Committee) and by Department itself (Fisheries Victoria) to the effect that the expansion of the Fishery was not contrary to the original 'niche' intent, and to the effect that the concerns of the recreational fishing lobby were misconceived and misplaced.[156] It would certainly have been a better piece of public administration if those conclusions had been expressly drawn to the Minister's attention as part of the 2017 exercise, but, once again, it is plain that the Department and the Minister had moved beyond the thinking of 2015. I do not accept the plaintiff's contention that the Minister was bound to act in accordance with the approach taken in the BMA. The Minister was entitled to do what she did even if, scientifically, there was little or no basis for the concerns expressed by the recreational fishing lobby, in relation to sustainability of the resource or in relation to any threats to snapper fishing in the bay (the latter being a matter which had been the subject of an expert report to the committee in 2015).
[156]Exhibit DGH1 to affidavit of Donald Grant Hamley affirmed 15 May 2017, 106-121 (CB 586-601).

It follows that I am likewise unpersuaded that the decision of the Minister was legally unreasonable.[157]
[157]See Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408, 423-424 [57]-[59] (Gageler J) and 436-438 [131]-[135] (Edelman J); Seafish Tasmania Pelagic Pty Ltd v Minister for Sustainability, Environment, Water, Population and Communities (No 2) (2014) 225 FCR 97, especially at 116 [63], 117-118 [67] and 124-125 [95]-[98]; South Australian River Fishery Association Inc v South Australia (2003) 85 SASR 373, 393 [118]-[124] (Doyle CJ), 416 [214]-[216] (Gray J), 417 [220] (Besanko J); Cf Mirboo Ridge v Minister for Resouces [2018] VSC 557, [125].

Nor in my opinion, was the revocation decision vitiated by any failure to accord procedural fairness to the plaintiff. The Departmental briefings set out above show that the plaintiff was given an explicit opportunity to comment on what was proposed on at least two occasions, namely at the meeting on 10 February 2017 and by the letter from Mr Dowling dated 13 February 2017. The plaintiff took advantage of those opportunities to a certain extent. It was a matter for it as to what it put forward on those occasions. As I have said elsewhere:[158]

[W]hile the principles of procedural fairness (or natural justice) generally require a decision-maker to ensure that a party is given a reasonable opportunity to present the party’s case, they do not impose ‘the impossible task of ensuring that a party takes the best advantage of the opportunity to which [the party] is entitled’.[159]

[158]Humphries v Allianz Australia Workers Compensation (Vic) Ltd [2016] VSC 761, [43].

[159]Sullivan v Department of Transport (1978) 20 ALR 323, 343 (Deane J, with whom Fisher J agreed); SZTXE v Minister for Immigration and Border Protection (2015) 232 FCR 433, 437 [18] (Flick J) and cases there cited; Alcoa of Australia Ltd v Edwards [2016] VSC 630 (McDonald J), [31]-[32].

It is no answer to say, as the plaintiff seeks to do, that the Government had already made up its mind as of 18 January 2017. The Government was entitled to formulate a clear and definite proposal for consultation.[160] In my view, there was no breach of the consultation principles in s 3A of the Act. Further, both in relation to the proposed revocation of the IQO and in relation to the proposed regulation, the Minister and the Department proceeded in accordance with the requirements of the Subordinate Legislation Act 1994 (Vic) (‘the SLA’). The plaintiff does not suggest the contrary.[161]
[160]New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544, 552, 559.
[161]On the last day of the oral hearing (transcript of proceedings 585-586) senior counsel for the defendants mentioned that he had just discovered that the order revoking the IQO (as distinct from the Regulations) may not have been tabled in Parliament as required by Part 3A of the SLA. However, this did not affect the validity or the operation of the order for revocation: see SLA s 16C. Nor is it said to have inhibited the ability of the plaintiff to approach the Scrutiny of Acts and Regulations Committee of the Parliament with a view to advancing its cause.

The attack on the manner of exercise of the Minister’s power to revoke the IQO fails.

Were the Regulations invalidly made?

Having regard to the conclusions which I have just expressed in relation to the making of the IQO, it is all the clearer that the plaintiff cannot succeed in its attack on the process by which the Regulations were made. The plaintiff does not rely on any additional grounds in relation to the Regulations. Indeed, it relies on only a selection of the grounds that were advanced against the IQO. Legal unreasonableness is not argued in relation to the Regulations. Improper purpose is argued, but (even assuming that the Minister’s purpose is to be attributed to the Governor-in-Council as the maker of the Regulations), for the reasons already stated, I am not satisfied that the Regulations were made for any improper purpose.[162]
[162]See paragraphs 188-201 above, esp paragraphs 190-193. See also Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (LexisNexis, 4^th ed, 2012), 321 [20.11], citing South Australian River Fishery Association Inc v South Australia (2003) 85 SASR 373. Cf Attorney General for the Northern Territory of Australia v Olney (Unreported, Federal Court of Australia, Full Court (Morling, Wilcox and von Doussa JJ), 28 June 1989) (the Kenbi Land Claim Case); R v Toohey, Ex parte Northern Land Council (1981) 151 CLR 170.

The plaintiff raises a procedural fairness complaint about the making of the Regulations. It is unnecessary to decide whether breach of natural justice or procedural fairness can ever be a ground for attacking a Victorian Regulation.[163] The plaintiff was duly consulted about the proposed revocation of the IQO and the proposed Regulations, at the same time, as mentioned above. I repeat that, in my view, there was no breach of the consultation principles in s 3A of the Act. Further, as the plaintiff concedes, there was compliance with the SLA in each case.[164] Indeed, as the defendants point out, the plaintiff went on to make submissions to the Scrutiny of Acts and Regulations Committee with a view to having that Committee make a recommendation for disallowance of the revocation of the IQO and/or the Regulations. However, neither instrument has been disallowed by the Parliament.
[163]Cf Lyster v Camberwell City Council (1989) 69 LGRA 250 (Cummins J).
[164]Subject to the matter referred to in footnote 161 above.

If follows that the plaintiff’s attack on the Regulations must fail.

The FQO made on 27 March 2017.

Because the IQO was validly revoked, the FQO made on 27 March 2017 by the Executive Director must be taken to have lapsed. Further, the Regulations imposing the 60 tonne cap were validly made and continue to apply. Accordingly, there would be no point in giving any further consideration to the process by which the FQO of 27 March 2017 was made.

Conclusion

For these reasons, the proceeding will be dismissed.

I will hear the parties on the question of costs.

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Quota Year	TACC	Reported Catch
2014/15	12 tonnes	178.59 kgs
2015/16	146 tonnes	10,343.63 kgs
2016/17	250 tonnes	58.735 tonne

[2018] VSC 589

5 October 2018