South Australian River Fishery Assoc & Warrick v State of South Australia No. Scciv-02-1381

SOUTH AUSTRALIAN RIVER FISHERY ASSOCIATION INC & WARRICK v STATE OF SOUTH AUSTRALIA
[2003] SASC 174
Full Court: Doyle CJ, Gray and Besanko JJ

DOYLE CJ: Mr Warrick holds a licence granted to him under s 36 of the Fisheries Act 1982 (SA) (“the Act”).
The licence is in respect of “the River Fishery” (“the fishery”) constituted by reg 5 of the Scheme of Management (River Fishery) Regulations 1991 (“the River Fishery Regulations”), which regulations are made under the Act. The fishery consists of the taking of specified fish in the waters of the River Murray.
The River Fishery Regulations provide for the management of the fishery, but important provisions that affect the activities of a licence holder in respect of the fishery are also to be found in the Act. As well, the Fisheries (General) Regulations 2000 (“the General Regulations”) contain regulations some of which are relevant to the management of the fishery and some of which affect the activities of the holder of a licence in respect of the fishery.
Mr Warrick challenged the validity of amendments made in 2002 to the River Fishery Regulations and to the General Regulations. The South Australian River Fishery Association Inc (“the Association”) was also a plaintiff. The members of the Association are the other persons who hold a licence in respect of the fishery.
Regulation 187 of 2002, taking effect on 26 September 2002, amended clause 103 of Schedule 1 to the General Regulations. Schedule 1 is a long list of fishing activities, each of which is constituted by reg 5 of the General Regulations as “a fishing activity of a prescribed class” and, accordingly, prohibited under s 41 of the Act. As it previously stood, clause 103 provided that the use of certain devices in the waters of the river was not “a fishing activity of a prescribed class” and, therefore, was permissible. The devices that therefore could be used included “mesh net, gill net, bait net”. The amending regulation removed the reference to those devices from clause 103. The result is that the use of those devices thereafter became “a fishing activity of a prescribed class” and so their use was prohibited.
Regulation 193 of 2002, made on 17 October 2002 to come into operation on 1 July 2003, amended Schedule 1 to the River Fishery Regulations. It removed from the list of fish, which are part of the fishery, callop or golden perch and Murray cod. Once that regulation came into effect, those fish could not be taken by a licensed person.
It is common ground that these changes made it uneconomical for Mr Warrick to continue his business of fishing the fishery, or at least made his business and licence significantly less valuable than before. As I understand it, it was common ground that Murray cod and callop are the mainstay of the fishery. It is also common ground that the three devices referred to are the primary means used by a licensed person to catch these fish.
Mr Warrick challenged the validity of the amending regulations. A judge of this court upheld the challenge: [2003] SASC 38.
The judge upheld a submission that the power to amend regulations, conferred by s 39 of the Acts Interpretation Act 1915 (SA) does not support the amending regulations. The judge appears to have reasoned that the power should be read as not authorising regulations which interfered “with vested rights of property but without fair compensation”: [197]. The amending regulations did not provide for the payment of any compensation to the plaintiff, meaning compensation for loss that he would suffer because of the diminution in value of his fishing business and of the rights attaching to his licence. The judge adjourned for further consideration the question of whether Mr Warrick was entitled to damages for breach of rights arising under or to be implied in his licence.
The judge rejected a submission that the amending regulations were beyond power because they were not made for a purpose authorised by the Act, or because they were not made for the purposes of the Act. The judge also rejected a submission that the amending regulations were beyond power because they were unreasonable, the unreasonableness lying in the fact that they did not provide for the payment of compensation to Mr Warrick. The judge regarded this submission as arguable, but said that Mr Warrick’s complaints could be “better accommodated” by his approach to the power conferred by s 39 of the Acts Interpretation Act: [231].
The State has appealed against the judge’s decision. By a Notice of Alternative Contention, Mr Warrick and the Association contend that the judge should have upheld the submissions that he rejected.
The Act and the Regulations
The River Fishery Regulations are made primarily under s 46 of the Act. That section gives the Governor power to make regulations “for the conservation, enhancement and management of the living resources of the waters to which this Act applies”. A number of specific powers are conferred by subparagraphs of s 46. They include the power in subparagraph (b) to “prescribe a scheme of management for a fishery”, which power itself includes a number of specific powers in addition to that general power.
There is no doubt that the River Fishery Regulations are supported by s 46.
Part 4 of the Act is headed “Regulation of Fishing, Etc”. It contains a number of provisions which affect fishing activity in a fishery; which provide for and regulate the grant of licences and the transfer of licences and which prohibit or enable the prohibition of activities by making them offences. A number of provisions which are relevant to fishing activity in the fishery are to be found in particular in Division 1, “Fisheries and Fishing”.
It is relevant to mention some provisions briefly. Section 34 requires that a person who engages in a fishing activity, of a class that constitutes a fishery, “for the purpose of trade or business”, must hold an appropriate licence. It is not necessary for present purposes to consider to what extent a recreational fisher can fish in the river, beyond noting that fishing in the river is not restricted to licence holders. Sections 35 – 38 govern applications for licences, the grant of licences, the imposition of conditions on licences and the transfer of licences. In particular, s 38 provides that a licence is transferable only if the relevant scheme of management so provides.
Section 41, which is also in Division 1, is of some significance in the present case. It provides:
“A person must not engage in a fishing activity of a prescribed class.”
Regulation 5 of the General Regulations, and Schedule 1 to those regulations, the relevant effect of which I have summarised above, are made in exercise of the power conferred by s 41 to prescribe a class of fishing activity. Again, there is no doubt that s 41 supports reg 5 of the General Regulations.
Section 46, to which I have already referred, is also in Division 1.
Division 6 of Part 4 of the Act contains provisions relating to the suspension or cancellation of an “authority” which includes a licence. Section 56 enables a court to suspend or cancel a licence if it convicts a person of an offence against the Act. Section 57 enables the Minister, after calling upon the holder of a licence to show cause, to suspend or cancel a licence in certain specified circumstances.
Division 7, by s 58, gives a right of appeal to the District Court against a decision of the Director “refusing an application for an authority or the transfer of an authority or imposing or varying a condition of an authority”.
The River Fishery Regulations are not lengthy.
The fishery is constituted by reg 5(1). The fishery consists of “the taking of fish specified in schedule 1 in the River Murray ”: reg 5(2)(a). From at least 1991 the fish specified included callop. From 1994, until the amending regulations, the fish specified included Murray cod as well: see Regulation 9 of 1994.
Since at least 1991 (I have not found it necessary to go any further) reg 7 has provided that licences already in force in respect of the fishery continue in force and that no other licence may be granted in respect of the fishery. In other words, since at least 1991, the fishery was closed to new entrants. Since at least 1991, licences have had a duration of 12 months, and have been renewable: reg 8 and reg 9. Since at least 1991, the Director has had power to impose a condition on a licence limiting the licensee to “specified reaches of the River Murray”: reg 6. I mention here that, according to the judge’s findings, the “reach system” (as he described it) is of long standing and was used to provide “to an individual an exclusive right of professional fishing in a particular place in respect of which no other person has any corresponding right”: [46]. The judge identifies the advantages of this system as being that commercial fishers are not competing with each other in the same water, and as giving the relevant licence holder an inducement to conserve the reach: [48].
In 1997 the River Fishery Regulations were amended. I will come back to the circumstances of the amendment in due course. The significant change made was the addition of reg 10A. This regulation provided that a “licence in respect of the fishery may be transferred with the consent of the Director if the total number of licences in force in respect of the fishery does not exceed 30”. Previously, a licence in respect of the fishery was not transferable. It suffices to mention at this stage that this amendment reflected an arrangement made between the Minister for Primary Industries and the persons holding licences in respect of the fishery, under which the number of licence holders was to be reduced to 30 and, if that were achieved, transferability of licences would be introduced.
I have already referred to the General Regulations. The relevant provision in them is reg 5, to which I have already referred, which, through Schedule 1, identifies “a fishing activity of a prescribed class”. As I have explained, until the amending regulations were made, Schedule 1 was so expressed as to permit the use of a mesh net, gill net and bait net. Regulation 187 of 2002 removed the reference to those devices, having the effect that the use of them was thereafter prohibited and an offence.
Regulation 193 of 2002 amended the River Fishery Regulations. It did so by amending Schedule 1 of those regulations to remove the reference to Murray cod and to callop.
In brief, the significant features of the management of the fishery are as follows. First, the prohibition against new entrants to the fishery, and the continuation of existing licences as renewable licences, this aspect of the management existing since 1991. Second, the fact that the taking of callop and Murray cod was part of the fishery prior to 1997. Third, the introduction in 1997 of a provision making a licence transferable, subject to the number of licence holders being reduced to 30. Fourth, the amendment of the River Fishery Regulations and the General Regulations in 2002 in such a way as to prevent (from July 2003) the taking of Murray cod and callop and to prevent forthwith the use of devices usually used by licence holders to take those fish.
The arrangement in 1997
In 1997, after negotiations between the Minister for Primary Industries and the Association, an arrangement was reached under which the fishery was to be restructured.
The essential elements of the arrangement are recorded by the judge in his reasons: [62] – [63].
Relevantly, they are as follows. First, the number of licence holders (and reaches) would be reduced from 39 to between 25 and 30. This would be achieved through a buy back scheme financed by the continuing or remaining licence holders. The River Fishery Regulations would then be altered to make the remaining licences transferable. Transferability was said by the Minister, in a contemporaneous statement, to give licence holders “financial security” and, in another statement, “an asset with a commercial value”, and to provide a solid business base for the licence holders to “adequately invest in upgrading their operation”. There was to be some relocation and restructuring of reaches to make them all viable commercially. There were some other incidental changes to the management of the fishery.
The arrangement was made public by the Minister in April 1997. The buy back was effected by the relevant licence holders. In an affidavit, Mr Warrick says that the remaining licence holders spent about $450,000 on the buy back. The number of licences was reduced to 30, and reg 10A, making licences transferable, was added to the River Fishery Regulations. There were other minor changes made to the River Fishery Regulations.
Each licence holder was thereafter restricted to a designated reach, and controls were exercised over the number of fishing devices that could be used. In my view, nothing in particular turns on the details of this aspect of the matter, and I say no more about it.
In other material respects, the statutory provisions and regulations affecting the fishery remained unchanged, as did the schedule of fish, the taking of which constituted the fishery.
At trial, the plaintiffs argued that the arrangement made in 1997 was legally binding on the Minister and, accordingly, on the State. It is not clear to what extent the judge accepted this submission. To the extent that it was a submission that the Minister was contractually obliged to have the River Fishery Regulations amended to provide for the transferability of licences, the judge pointed out that this had been done: [71] and [153]. The judge does not appear to have accepted that there was a contractual obligation on the Minister to ensure that the fishery continued to be managed in accordance with the arrangement made in 1997, or in accordance with the scheme of management as it was from late 1997. In that respect, the judge was clearly right. I do not accept that the evidence before the judge established the existence of any such contract. It would require very strong evidence to do so. In particular, a court would be slow to infer an intention on the part of a Government Minister, in circumstances like this, to enter into a legally binding arrangement and, whatever the evidence might be, it is doubtful whether the Minister of Primary Industries had the capacity to bind himself or the State to any such contract. Although this matter raises some important issues, I am content to leave it at that, because the judge’s conclusions in this respect were not challenged by the plaintiffs on appeal.
However, although this is to anticipate later issues to some extent, the judge appears to have accepted a modified form of the submission just referred to. Referring to the arrangement in 1997, the judge said:
“⁶⁹The plaintiff seeks to enforce this agreement and alleges that it is implicit in the arrangement that the Government thereafter would administer the Fisheries Act upon a footing which is consistent with the agreement. In particular the plaintiff alleges that his licence should be treated as transferable and renewable indefinitely in respect of the river fishery as reconstituted on 7 August 1997.
…
⁷¹In my opinion the Minister has fulfilled his obligations in terms of that agreement. It is unnecessary to determine whether or not the agreement has legal effect as alleged because it has been overtaken by the formal contract represented by the licence renewals from year to year. In my opinion the terms which will be implied in the individual licences will correspond to the terms of the preliminary agreement which is alleged by the plaintiff to have been made between the Minister and the plaintiff association on behalf of the licence holders.
⁷²This case may therefore be reduced to a consideration of the extent to which the plaintiff is entitled to protection under his licence.
⁷³ In view of the history which I have outlined and upon a consideration of the rights which adhere to a contractual licence and upon a consideration of the 1997 regulations I conclude that it is implicit in the scheme of the regulations (including the general fishing regulations) that the exercise of power to make regulations on 7 August 1997 proceeded upon the basis that exercise of power on that occasion was “one off” so as to provide long term security based on the licences then in force and gear endorsements which (based on the general fishing regulations) are the subject of the licence conditions. The river fishery referred to in the Scheme of Management (River Fishery) Regulations and Fisheries (General)Regulations is that which was thus reconstituted on 7 August 1997 to the intent that the rights of the licence holders in the fishery would become “permanent” when the number of licence holders was reduced to 30. It will be necessary to examine how this concept of permanent licences should be interpreted and applied. It was implicit in the arrangements that the longstanding “reach system” operating in the river fishery would remain as a cornerstone of the deal.”
In other words, the 1997 arrangement and the introduction of reg 10A had the effect of giving licence holders a right to the continuation of their licences and rights in respect of the fishery on a long term basis. Putting it negatively, the Governor in Council could no longer change those rights, or certain of the rights held by licensed persons, adversely to the interests of the licence holder, even though previously the Governor in Council had power to do so. This approach seems to treat the buy back scheme, and the Minister’s statements, as securing for licensed persons both transferability of licences and, to an uncertain extent, immunity against changes to the scheme of management.
Later, the judge held that the circumstances of the implementation of the arrangement had the effect of reducing the power, that otherwise existed, to amend the relevant regulations. He said:
“¹⁵³All the evidence points in the one direction. The plan was developed jointly between the interested parties (according to the press release of 27 April 1997). I consider that the legally enforceable agreement between the fishers in terms of their “buy out” agreement is matched by the Minister’s undertakings which are necessary to give efficacy to the overall arrangement. I consider that upon this evidence that undertakings were intended to have legal effect at least at the point where the number of licensees were reduced to 30 so as to bring into force transferability of fishing licences in terms of cl 10A of the amending regulations of 7 August 1997. However, at that point the rights under any such agreement merged with those which arose under the terms of the licence itself which operates under specific statutory authority.
¹⁵⁴It seems to me that by exercising power to put in place the regulatory regime of August 1997 with its intended grant of long term rights in the fishery the Governor in Council was acting under the express authority of the Fisheries Act so as pro tanto to reduce power available to a later government. That does not constitute a fetter.”
He went on to hold that, in the circumstances, s 39 of the Acts Interpretation Act could not support the amending regulations. He held:
“²⁰³In my opinion the plaintiff should succeed upon his claims in the following respects:
(a) that by reason of the limitation of power contained in s39 of the Acts Interpretation Act the regulations in question are ultra vires in the absence of proper provision for compensation.
(b) that by reason of the Minister’s contractual undertakings which have been subsumed into the terms of the fishing licence the plaintiff is entitled to quiet enjoyment of his licence until terminated by reasonable notice; a declaration to that effect will facilitate the plaintiff in pursuing a claim for damages if so advised. Reasonable notice is related to the whole of the circumstances.”
I will return to this topic in due course.
The amending regulations made in 2002

After a general election of Members of the House of Assembly, conducted in February 2002, the Hon. Mr Rann was commissioned as Premier. This occurred after he secured the support of Mr Lewis, an Independent Member of the House, for a government led by Mr Rann. Once he had that support, Mr Rann was able to assure Her Excellency the Governor that he had the support of a majority of the Members of the House of Assembly, and on that basis no doubt Her Excellency commissioned Mr Rann to form a government.
Mr Lewis gave that support once Mr Rann had entered into a compact with him. The terms of the compact were proved before the Judge. The compact deals with a number of matters that Mr Lewis required of the government, if it were to have his continuing support. These matters were widely publicised at the time. His Honour set out in his reasons at [36] the following relevant provision of the compact: “to immediately ban the use of gillnets (sic) in the Riverine corridor of the Murray and phase out the commercial fishing of native species within 12 months; but allow the unconditional harvest of exotic species (carp, red fin etc).”
The Minister for Agriculture, Food and Fisheries (“the Minister”) made public statements indicating that this requirement of the compact would be implemented. The Minister attended a meeting with the licence holders on 7 June 2002. At this meeting he outlined the proposed changes to the management of the fishery. An offer of financial assistance was made to licence holders. The effect of the proposed change was that the fishery in its existing form would come to an end on 30 June 2003.
Not surprisingly, the licence holders resisted the proposals. They complained about lack of consultation generally, and in particular the lack of consultation prior to the meeting on 7 June 2002. They argued that there was no sound basis for the proposal. They claimed that the financial assistance offered to them was not adequate compensation for the loss they would suffer.
The Minister and the licence holders did not reach agreement on the proposals or on the amount of compensation to be paid. The amending regulations were made in September and October 2002. The plaintiffs issued their proceedings in September 2002.
The judge did not attempt to assess the loss that Mr Warrick would suffer.
I add that the amending regulations made no provision for the payment of compensation to licence holders who might suffer a loss as a result of the amendments.
The connection between the amending regulations and the power to make them
The power to make the amending regulations is found in s 39 of the Acts Interpretation Act. I will return to that provision. But that s 39 does no more than confer a power to make regulations that amend or revoke existing regulations. The scope of that power is to be found in s 46 of the Act. Bearing in mind that that provision confers power to make regulations “for the conservation, enhancement and management of the living resources of the waters to which this Act applies”, the ultimate issue is whether the amending regulations can be supported by reference to that power, and to the more specific powers conferred by s 46.
The plaintiffs submitted to the judge, and submit on appeal, that the amending regulations are invalid because they were made for an improper purpose. They also argue that the amending regulations are unreasonable. As to the former point, the plaintiffs submit that the court should find that the regulations were not made for the statutory purpose, but to carry out the compact on the basis of which Mr Rann was able to claim the support of a majority of the Members of the House of Assembly.
At the hearing of the case, the material put before Cabinet, in support of the recommendation that Cabinet place the amending regulations before the Governor in Council, with a view to the Executive Council advising Her Excellency to make the regulations, was not placed before the Judge. Nor did the Minister give evidence.
In light of the evidence as to the compact, the timing of the amending regulations, and absent any other material bearing on the point, it was open to the Judge to find, as he did, that:
“the only reason for the Government’s action was to honour its commitment in terms of the political compact with Mr Lewis.”
This finding was made at [211] and a similar finding was made at [219]. But the judge nevertheless rejected the plaintiffs’ submission. The basis upon which he did so is not completely clear. The judge seems to have concluded that on the evidence before him there were considerations capable of supporting the amending regulations. That is, the judge appears to have accepted that there were matters falling within the scope of s 46 of the Act that would support the course of action taken by the Government. This conclusion is challenged by the plaintiffs on appeal.
It will be necessary for me to return to the question of the purpose for which the amending regulations were made. At this stage I deal briefly with the connection between the amending regulations and the head of power.
A limited amount of material was put before the judge relating to the reasons why the taking of Murray cod and callop by commercial fishers might be prohibited, relying on the power conferred by s 46 of the Act.
The material indicates that the stock of Murray cod was sustainable at the level at which it was being fished, but contained expressions of opinion that the longer term prospects of maintaining an adequate stock were uncertain. This was because in recent years conditions for breeding had not been favourable. A report of November 2000 referred to the vulnerability of the fishery because of the needs for floods to produce good breeding conditions, and because of the well known problems in maintaining an adequate flow of water in the River Murray. It appears that there was no reliable current information on the stock of callop.
The material also shows that there has been significant opposition over a number of years to commercial fishing in the River Murray, and in particular to the taking of native fish species by commercial fishers. To some extent this opposition is linked to concern about the adequacy of the stock of native fish. To some extent the concern originated in a desire to promote and to prefer the interests of recreational fishers and those who use the waters of the river for tourism. There were also indications of opposition to the use of gill nets on the further ground that they were harmful to other forms of native wildlife. In some other states commercial fishing of native freshwater scale fish has been ended. In 1999 a committee of the Parliament had recommended that commercial fishing for native species in the River Murray be phased out over a ten year period. It is not for the court to say which view is right or wrong, merely, as the judge himself appears to have accepted, that there is an acceptable point of view supporting closure of the fishery in relation to Murray cod and callop.
The Solicitor-General submits that, on their face, the amending regulations have an obvious connection with the available head of power. He submits further that the evidence before the judge adequately disclosed matters relevant to the head of power that could support the amending regulations.
I accept the first submission. The amending regulations effect a change of approach to the management of the fishery. They are clearly directed towards management of the fishery. They are likely to increase the stocks of callop and Murray cod. On their face, they appear to be within the ambit of the relevant power: see South Australia v Tanner and Others (1989) 166 CLR 161 at 164-165 Wilson, Dawson, Toohey and Gaudron JJ, at 173-174 and at 178-179 Brennan J (diss).
I turn to the second submission. It is appropriate to consider this submission on the basis that the amending regulations effect a significant change of approach to the management of the fishery. They remove from the fishery two important species of native fish. It is established by the evidence that the taking of those species is a significant part of the business of fishers licensed to take fish in the fishery for commercial purposes, and that the commercial exploitation of the fishery may be unprofitable if those species cannot be taken. The effect of the amending regulations is to leave it open to recreational fishers to take these species of the fish. The amending regulations can be seen to reflect two broad policies. First, a policy that the stocks of callop and Murray cod should be protected from commercial exploitation. Second, a policy that the interests of recreational fishers should be preferred by permitting them to continue to take Murray cod and callop. On the material before the Judge it is not possible to say whether or not the preservation of an adequate stock of these two species can be assured if they are allowed to be taken for commercial purposes and for recreational purposes.
I accept the second submission, subject to later consideration of the significance of the judge’s finding that reasonable or adequate compensation was not offered to licence holders.
The second submission raises issues of fact on which the court must be guided by appropriate evidence. The evidence before the judge was rather brief, but that is not the fault of the plaintiffs. Having considered the evidence, it is for the court to decide if there is a sufficient connection between the amending regulations and the head of power in s 46 of the Act. That is, the court must decide whether the regulations are reasonably capable of being regarded as for the “conservation, enhancement and management of the living resources” of the waters of the river. Another way of putting it is that the court must decide whether the amending regulations go beyond what could be reasonably adopted for that purpose: Williams v Melbourne Corporation (1933) 49 CLR 142 at 152 Dixon J; Tanner at 165 and at 175-176.
In this respect the court takes a broad approach. The court does not impose its view of the solution to an issue. The court does not substitute its decision as to how a matter should be dealt with. The question for the court is whether what is done by the amending regulations is reasonably capable of being regarded as made or adopted for the permitted purpose: Tanner at 165 and at 175. This formulation reflects the appropriate place of the exercise of judicial power in this respect. The role of the court is to consider whether the amending regulations have a sufficient relationship to the head of power, not whether the amending regulations embody what the court regards as the appropriate response to the circumstances in question.
The evidence before the judge indicated that there is a substantial body of competent opinion that native fish in the River Murray should be protected from commercial exploitation, but that the taking of such fish for recreational purposes and in association with tourism should be permitted. I consider that this evidence provides a direct and sufficient connection to the head of power, although the latter matter reflects the fact that under the Act a licence is required in respect of a fishery only for those who fish it “for the purposes of trade or business”: s 34 (1) of the Act.
The plaintiffs argued that it had not been established that it was necessary to stop the taking of callop and Murray cod to protect or to preserve those species. That may be conceded. It suffices for validity that there is a respectable body of opinion to that effect, and that one could reasonably or rationally take the view that preventing the commercial exploitation of these species was desirable. Moreover, the Minister was entitled to take the view that the interests of recreational fishers and the tourist industry should be preferred: see s 20(b) of the Act.
The plaintiffs also argue that the amending regulations would defeat “the optimum utilisation of the resource” and would result “in an inequitable distribution of the resource.” It is not for the court to decide whether the plaintiffs are right in contending that the commercial taking of Murray cod and callop can safely continue, or whether the Minister is right. The words just quoted are drawn from s 20(b) of the Act, which requires the Minister to have as a principal objective in the administration of the Act “achieving the optimum utilisation and equitable distribution of” the living resources of the relevant waters. That provision does not entitle the court to make the validity of regulations turn on the court’s assessment of the correctness of the Minister’s decision.
Accordingly, the amending regulations are valid unless invalid on the basis of the judge’s finding that the compact with Mr Lewis was a reason for promoting the amending regulations, or because of the failure to provide adequate compensation to Mr Warrick for the loss likely to be suffered by him.
I consider that these latter points are the only way in which the other complaints made by the plaintiffs can be addressed. The other complaints are, in brief, that the Minister adopted the change of policy hastily and without adequate consultation, and that the new policy would cause significant loss to licence holders. The court’s function does not extend to enforcing its view of what is an appropriate process for the making of regulations, and in particular its view as to the consultation that should occur before regulations are made.
It follows that unless the plaintiffs’ challenge on the grounds of purpose or failure to provide fair compensation succeeds, the amending regulations have a sufficient connection with the head of power for them to be valid.
The judge’s reasons
The judge provided detailed reasons in support of his decision.
The judge examined in detail the arrangement reached between the Minister for Primary Industries and the Association in 1997. He put particular emphasis on the buy back arrangement implemented by the existing licence holders when they reduced the number of licence holders to 30. He also examined in detail the scheme of management of the fishery as it was, once the changes were made in 1997. He referred to the financial obligations undertaken by the continuing licence holders, and to the fact that those people and other entrants to the industry had incurred financial obligations relying on assurances that the arrangements were to be longstanding, or a belief to that effect. He put considerable emphasis on the fact that reg 7 of the River Fishery Regulations continued existing licenses in force, on the ability to renew licences and on the addition of reg 10A making licences transferable.
The first major step in the judge’s reasoning was to the effect that the Act and the Regulations created a statutory licence coupled with an interest in the relevant reach, the right being one to capture and take away fish for sale: [16]. He appears to have treated the licence and rights pursuant to the licence as analogous to property rights under the general law. After referring to some decided cases the judge said at [19]:
“ In the light of these cases (and having regard to the special rights created by the reach system) it is arguably only a small step to identify on the part of Mr Warrick the following rights:
(1)a right to quiet enjoyment of his reach; this arises as a covenant implied by law from the licensor in favour of the fisher until the licence has been lawfully determined and whilst the fisher continues to observe the terms of the licence.
(2)a right to reasonable notice before termination of the licence.
(3)a right to challenge in the District Court any variation by the Director of Fisheries of the licence conditions endorsed on the licence with respect to fishing devices.”
As will appear, he went on to hold that the first and second of these rights did exist, and the third of them was conferred by the Act in any event.
The next major step was the acceptance of what I described earlier in these reasons as a modified form of the plaintiffs’ submission. That is, as the passages set out earlier indicate, that it was implicit in the amendment of August 1997 that added reg 10A, that that exercise of power on that occasion
“was ‘one off’ so as to provide long term security based on the licences then in force and gear endorsements which (based on the general fishing regulations) are the subject of the licence conditions”: at [73].
The judge then considered the rights attaching to Mr Warrick’s licence. He said that he had a licence coupled with an interest: [at 101]. He found that the licence was terminable only on reasonable notice: [at 107]. He said it was implicit in the licence, as against the grantor of the licence, that the grantor would not derogate from the grant and would permit the licensee to have quiet enjoyment: [at 110].
Along the way the judge held that the notice given to the licence holders that the fishery would be terminated was not reasonable notice that could cause a licence to be terminated: [108]. He said that some years’ notice would be required: [109]. The judge held also that the offers of compensation made by the Minister did not provide for “fair compensation”: [133]- [134].
The result of this part of his reasons appears in the following passage: at [150]:
“Applying these principles to the present case it seems to me that in 1997 the government put in place a licensing regime and lawfully issued (by a deeming clause contained in the regulation itself) licences of indefinite duration which gave rise to private rights which the present government is bound to respect. (The annual licences are routinely renewable). It is implicit in this regime that the usual gear and targeted species of fish as mentioned in the regulations (in force in 1997) would remain as the basis of the licensed fishing arrangements.”
The judge then turned to s 39 of the Acts Interpretation Act. That section provides as follows:
“A power given by any Act to make regulations, rules or by-laws includes power from time to time -
(a)to revoke them, in whole or in part; or
(b)to revoke them, in whole or in part, and substitute other regulations, rules or by-laws respectively for those which have been so revoked; or
(c)to vary them, or any of them,
unless the terms used in conferring the power, or the nature of the subject matter or the objects of the power, indicate that it is intended to be exercised either finally in the first instance or only subject to certain restrictions. ”
The judge held that the reference to “the nature of the subject matter” in s 39 enabled the judge to consider the scheme embodied in the regulations before they were amended, that is, the scheme as it was after the 1997 arrangement.
That took the judge back to the matters outlined above, and to the “long term” arrangements and the “associated property rights”:[180]. This led to the conclusion that the power conferred by s 39 was to be exercised “subject to certain restrictions” flowing from the nature of the rights and interests that had been created in 1997. Those powers were only to be used “subject to appropriate restriction”:[190]. The appropriate restriction was one that required provision “for proper compensation” if property rights were to be taken away:[198]. Thus, the events of 1997 had the effect of putting a restriction on the power to amend and repeal the regulations governing the management of the fishery.
Accordingly, the amending regulations were invalid as an exercise of the power conferred by s 39 of the Acts Interpretation Act: [203] (set out above at [70]). In brief, the judge treated the licence granted, under the Act and the regulations, to Mr Warrick, (once the Minister said what he said in 1997, the buy back was effected, and the regulations were amended to provide for the transfer of licences) as creating rights akin to property rights which were terminable only on reasonable notice. All of these matters were relevant to the application of s 39, and were an indication in terms of s 39 that the power conferred by s 39 could be exercised only subject to a restriction, namely, the payment of fair compensation. The offer made by the Minister did not provide for fair compensation, and accordingly the amending regulations were invalid.
The nature of Mr Warrick’s rights

From time to time the judge referred to the licences granted to licensed persons as “statutory contracts”: see, for example [14], [16], [71] and [73]. The judge also described the rights of licence holders as if they were property rights under general law, or very similar to such rights: see, for example, [18], [19], [150] – [152].
I would not, with all respect to the judge, analyse the situation in this manner. My view is that Mr Warrick’s rights are to be found in the Act and in the Regulations. Nothing is gained for present purposes by describing these rights as contractual (which I consider they are not) or as property rights or as analogous to property rights. The fact is that Mr Warrick held a licence that was renewable, that he could expect to be renewed indefinitely in the ordinary course, that was transferable, that gave him the exclusive right to exploit his reach or reaches for commercial purposes, and which entitled him to use certain fishing devices and to take Murray cod and callop and other fish. In all respects his rights were subject to certain powers conferred on the Director of Fisheries by the Act, and subject to other statutory provisions. I see no need to go beyond that.
I do not dispute that the licence and associated rights may be regarded as a valuable form of property: see Kelly v Kelly (1990) 64 ALJR 234 and (1990) 92 ALR 74; Pennington v McGovern (1987) 45 SASR 27. But the resolution of the present case does not turn on the correct characterisation of the licence and the rights.
It is not necessary to consider this point further. The judge’s conclusions do not appear to depend upon this aspect of his reasons.
What is the significance of the 1997 arrangement?
An important step in the judge’s reasons was the conclusion he reached relating to the arrangement between the then Minister and the Association in 1997. The judge attributed particular importance to the assurances by the Minister of long term stability, to the encouragement that he gave to licence holders to invest in the industry, and to the prospect of licences becoming transferable once the licence holders completed the licence buy back.
These matters appear to have provided the foundation for vital steps in his reasoning. First, for the conclusion that after 1997 the “rights of the licence holders in the fishery would become “permanent” when the number of licence holders was reduced to 30”: [73]. Second, for the conclusion that the rights or entitlements of licence holders were “private rights which the present government is bound to respect:”[150].
I cannot accept this analysis of the situation immediately after the amendments to the regulations in 1997.
Prior to 1997 each licence holder held a licence that was continued in force by reg 7 of the River Fishery Regulations. No new licences could be granted. Prior to 1997 the licences were annual licences, renewable indefinitely on application and on payment of a fee. Murray cod and callop were already part of the fishery. The use of gill nets and bait nets was already permitted.
The significant change in the management of the fishery in 1997 was the introduction of reg 10A which made licences transferable. The other changes were relatively minor. The judge attributed no particular importance to them.
Viewed in isolation, the introduction of reg 10A was a benefit for licence holders. No doubt it gave value to their licences, because it made them transferable (for value) for the first time. No doubt that encouraged existing licence holders, and persons who later acquired a licence by transfer, to invest in the industry. But I can find no basis in this for a conclusion that thereafter the licences were to be “of indefinite duration” or that the rights of licence holders would be “permanent”: see [150] and [73].
If attention is confined to the River Fishery Regulations, I can find nothing in the change made in 1997 to support an implication that, thereafter the power to revoke or to amend the regulations was subject to a new restriction.
Before 1997 licence holders had a licence that they could use to generate an income, but which they could not sell. After 1997 they could sell their licences, and this is likely to have made it sensible for them to increase their investment in the industry.
I am unable to find in the introduction of reg 10A any basis for an implication that thereafter the Minister’s power to amend the scheme of management should be fettered. In 1997 the Minister did not create licences of potentially indefinite duration (they already existed). The Minister did not confer rights in relation to reaches – those rights were there already. The Minister did not give access to a new resource – Murray cod and callop could already be fished. The Minister did not change the devices that could be used. The Minister merely promoted a change that made licences transferable, thus improving the position of licence holders and making their licences transferable and therefore increasing their value.
To my mind there is nothing in that to support the judge’s conclusion that it is “implicit in the scheme of the regulations” from 1997 that the rights of the licence holders were permanent: [73]. If the judge is right, it is difficult to see why the same reasoning would not apply to a licence in any scheme in which licences are renewable and transferable, and in which the licence gives the right to carry on a business for profit. The licence holder in any such scheme, or a person who purchases a licence in such a scheme, is in the same position as the licence holders in respect of the fishery. Any such licensee holds a licence which has a value that reflects the ability to earn income with the licence, and the ability to sell the licence. I cannot see why the introduction of transferability gives rise to an implication of permanence, or why someone who enters a scheme in which licences are transferable should be able to argue that such an implication should be drawn.
After 1997 the scheme of management contained a provision that made Mr Warrick’s licence more valuable than it was before. The provision was one common in licensing schemes, and no doubt one that is found in many other schemes of management. To my mind there is no basis in the introduction of reg 10A, or in its presence, for an implication of the kind drawn by the judge
Does it make a difference that reg 10A was added only after the continuing licence holders had expended a substantial some of money, and after the Minister made the statements referred to earlier? It was after they spent that money that the Minister promoted the introduction of reg 10A. The prospect of the introduction of reg 10A encouraged the continuing licence holders to embark on the buy back. The presence of reg 10A undoubtedly encouraged existing licence holders and new entrants to the industry to invest additional money in their fishery businesses. Is this something that supports His Honour’s reasoning?
The first difficulty in relying upon these matters is one already alluded to. In any licensing scheme in which licences are or become transferable, and the licence gives the right to pursue a business for gain, the fact of transferability will add value to the licence and is likely to cause licence holders to invest added money in the relevant business, and would be the basis upon which a new entrant is willing to pay money for a licence and to invest in the licensed business. Relying on the expenditure by licensees, before or after the introduction of reg 10A, has the same potential general application that would make many licensing schemes unalterable to the detriment or disadvantage of licence holders, or alterable only after a substantial period of notice has elapsed.
The second difficulty is this. What happened in 1997 was not a transaction between individuals under the law of contract and the law of property. There was an arrangement with a Minister of the Government involving the Minister making a decision in relation to the exercise of available statutory powers, and involving the Minister promoting a particular amendment to the regulations. It is implicit in such a situation that the policies of the government may change, and that the relevant statutory powers remain available to be exercised. The idea that the arrangement made then became unchangeable, or could be changed only by the giving of lengthy notice, does not sit with the context in which the 1997 arrangement was made.
It seems to me that the buy back arrangement made by the continuing licence holders might be said to have secured for them the benefit of transferability of their licences. That was secured and remains. No doubt the arrangements in relation to the fishery, and in particular transferability, amounted to an inducement to invest money in the fishery, as the Minister acknowledged. But I cannot attribute to this fact, and to that acknowledgement, an intention or implication that the power to change the management of the fishery thereafter restricted. Statements by the Minister do no more than reflect the reality of the situation. What he said is true of any similar licensing scheme.
Ministers exercising statutory powers are subject to scrutiny by the courts to ensure that their conduct is lawful. They are subject to scrutiny publicly and in parliament with reference to the soundness and appropriateness and general fairness of decisions they make. But it is of the essence of our system of government that, usually, the statutory powers can be exercised to the disadvantage of individuals affected, and even though the exercise of power represents a distinct change of policy.
In all the circumstances I am not satisfied that a reasonable person (if that is the test) would conclude from the events of 1997 that the intent of the Minister and of the Association was that the licensing system thereafter was to be permanent, or could be changed only on the giving of some years’ notice of a proposed change, assuming the change was to the substantial disadvantage of licence holders.
I recognise that this will seem unfair to the members of the Association who contributed to the buy back. I accept that they did so to secure the introduction of reg 10A. But my point is that any person who purchases a licence granted pursuant to statute and delegated legislation is likely to do so in the hope and expectation that the licensing scheme will not be altered to that person’s disadvantage. But the fact that the person spent money on that basis cannot limit the power to alter the statutory scheme. Nor can the fact that a Minister, expounding policy, encourages expenditure on the faith of the statutory scheme.
In short, I consider that the judge’s approach to the significance of the 1997 arrangement was wrong. It was not implicit in these events that the rights of licence holders became permanent, or subject to disadvantageous change only on the giving of lengthy notice. The 1997 arrangement provides no basis to restrict the power of the Minister to make the amending regulations.
Does s 39 of the Acts Interpretation Act support the amending regulations?
It follows from what I have just said that the 1997 arrangements provide no basis for restricting the scope of the power conferred by s 39 of the Acts Interpretation Act in conjunction with s 46 of the Act.
The judge’s conclusion that the power conferred by s 39 did not support the amending regulations rested on the implication that he drew from events in 1997. If that implication is not drawn, the basis for the judge’s conclusion is gone.
That makes it unnecessary to consider the judge’s approach to the meaning of s 39. However, the matter may go further, and for that reason I consider it desirable to deal briefly with the point.
The focus of s 39 is the scope of a power to make regulations. (For simplicity I will not refer to a rule or by-law). Section 39 provides that power to make regulations carries with it the power to revoke or to vary the regulations. (For simplicity I will refer only to power to revoke). Section 39 states that the power to revoke a regulation might not be conferred, or might be subject to a restriction, and identifies the source of such potential restriction.
The reference to “the terms used in conferring the power” directs attention to the provision that confers the power to make the regulation, in this case s 46 of the Act. So does the reference to “the objects of the power”, although it invites consideration of the purpose for which the power (s 46) was conferred. There is nothing in s 46 that supports the conclusion that the power to revoke the River Fishery Regulations is restricted, and in particular can be restricted by the contents of the regulations themselves.
The judge held that the reference to “the nature of the subject matter” was a reference to something else. He said it authorised the court to consider how the power to make regulations had been exercised, and whether the manner of exercise gave rise to a restriction on the scope of the power to revoke the regulations. The judge relied on the history of the provision, in particular on a now removed reference in s 39 to s 37.
Section 37 provides as follows:
“A power given by any Act to do any act or thing (including the making of an appointment), or to submit to any act or thing, is capable of being exercised from time to time, as occasion requires, unless the context, or the nature of the act or thing, indicates a contrary intention.”
The judge said that the reference to “the nature of the act or thing” in s 37 equated with the reference to “the nature of the subject matter” in s 39. He saw the now removed cross reference from s 39 to s 37 as supporting that link.
I respectfully differ. In my opinion s 37 itself, in its reference to “power given by any Act to do any act or thing” and then to the “nature of the act or thing” is a reference to the power in question, not to the thing done in exercise of the power. That is, if s 37 is relevant, it refers to the power to make regulations, not to the regulations made. Unlike the judge, I do not consider that the previous link to s 37 indicates an intention that the manner in which the power to make regulations is exercised can limit the scope of the power that is exercised.
In my view the natural reading of the phrase “the nature of the subject matter or the object of the power” in s 39 is as a reference to the subject matter to be dealt with (in the present case prescribing the scheme of management for a fishery) and to the purpose for which the power is conferred. It would be surprising if the manner in which the power to make regulations was exercised in a given case should, of itself, create a restriction on the power to revoke that did not previously exist. I do not suggest that that cannot be done, but it is not easy to see why Parliament would have intended that an unrestricted power to revoke regulations should become subject to restrictions that find their origin in the manner in which the power has been exercised on a particular occasion. If that had been intended, I would have expected Parliament to refer directly to the terms of the regulations made in exercise of the power.
In my view s 39 does not support the judge’s conclusion that the content of regulations made under s 46 of the Act can limit the scope of the power under s 46 of the Act and s 39 of the Acts Interpretation Act to revoke or to amend those regulations.
Are the amending regulations invalid because made for an improper purpose?
I return to the finding made by the judge that the amending regulations were made to implement the compact with Mr Lewis: [211].
It is established by High Court authority that delegated legislation made by the Governor in Council will be invalid if made for an improper purpose. An improper purpose is one that is not within the scope of the empowering legislation. In the present case the empowering legislation is found is s 46 of the Act and in s 41, which supports the change made to the general regulations. It suffices on these points to refer to the decision in R v Toohey ex parte Northern Land Council (1981) 151 CLR 170 at 193 Gibbs CJ, at 199 and 215 Stephen J, at 225-226 Mason J, at 258 Aickin J and at 283 – 284 Wilson J.
Delegated legislation made for an improper purpose will be invalid even though, as I have already decided in this case, the delegated legislation appears valid on its face.
Delegated legislation made for an improper purpose might also be invalid even though the evidence before the court establishes, as I have found in this case, that there are matters of fact that support the connection between the delegated legislation and the head of power. In the present case I have found that the evidence before the judge identified a reasonable view that the amending regulations were appropriate to achieve an end within power, or that they had a purpose that is within power. Obviously enough, in such a case a court would be slow to conclude that the delegated legislation is nevertheless invalid.
The amending regulations were made by the Governor in Council: see s 23 of the Acts Interpretation Act. The function of members of Executive Council in this respect is a formal one. In South Australia the invariable practice is that Executive Council provides advice to the Governor in accordance with a preceding decision by the Cabinet: see The State of South Australia v O’Shea (1987) 163 CLR 378, 386-387; Selway, “The Constitution of South Australia” (The Federation Press, 1997) para 6.1.11. Accordingly, an enquiry into the purpose for which the amending regulations were made involves an enquiry into the purpose for which Cabinet made its decision that the amending regulations be forwarded to the Governor for consideration in Executive Council, and that the Governor be advised to make the amending regulations.
There are some obvious difficulties in reaching a conclusion about the purpose of a group of persons who make a collective decision. There are additional difficulties in obtaining information about the deliberations of Cabinet. On these matters see Toohey at 226 Mason J, and at 256 Aickin J.
In the present case those difficulties can be put to one side. I am satisfied that the judge’s finding on the matter of purpose is soundly based.
The difficulty that the plaintiffs’ argument confronts is that underlying the relevant provision of the compact with Mr Lewis are the policies already identified by me as relevant and appropriate to an exercise of power under s 46 and under s 41 of the Act. Those policies are the protection of native fish in the waters of the River Murray, the preservation of the stock of native fish, and preferring the interests of recreational fishers and fishers associated with the tourist industry. To implement the compact was to implement a policy founded on considerations appropriate to the power conferred by s 46 and s 41 of the Act.
Like the judge, I am prepared to accept that the Minister would not have brought the amending regulations to Cabinet but for the compact. But to say that is only to say that political considerations played a part in the making of a decision that is apparently within power.
That conclusion is not an indicator of invalidity. The exercise by the Governor in Council of a statutory power will often have a political aspect. To put it bluntly, if two quite different but acceptable courses of action are open in a given case involving the exercise of a statutory power for a specified purpose, the government of the day is entitled to adopt the course which will secure a political advantage. That is, if a statutory power to make delegated legislation can validly be exercised to achieve either one of two quite different ends, the government of the day may make the choice according to political considerations.

It follows that the attack of the validity of the amending regulations by reference to their purpose fails. In that respect I agree with the judge.
Are the amending regulations unreasonable or lacking in proportionality?
In considering whether delegated legislation is unreasonable, a court does not decide whether the court is satisfied that delegated legislation is in fact reasonable. The court considers whether the circumstances show that, although the delegated legislation might appear to have a sufficient connection with the available head of power, its operation is such that “it could not reasonably have been adopted as a means of attaining the ends of the power”: Melbourne Corporation at 155 Dixon J. The court is once again concerned with the question of validity, not with its own assessment of the appropriateness of the delegated legislation.
In the present case the plaintiffs point to the financial impact of the amending regulations on Mr Warrick, and to the failure of the government to provide adequate compensation as found by the judge.
In the course of his submissions, Mr Heywood-Smith QC, Counsel for the plaintiffs, acknowledged that implicit in his submission was the proposition that even if the amending regulations were otherwise wholly within power, they would be invalid if their effect was to inflict financial loss on Mr Warrick for which adequate compensation was not provided.
The unreasonableness in the amending regulations that is identified is the failure to provide fair or adequate compensation for the loss caused to a licence holder by the making of the amending regulations.
I do not accept this submission. I am aware of no authority holding that delegated legislation, made in exercise of a power conferred by state legislation, may be invalid if it terminates rights or privileges previously available pursuant to a statutory licensing scheme, and does so without providing adequate compensation for any loss that might result to a licence holder. To impose such a requirement would, in effect, be to impose a requirement akin to that imposed on the Commonwealth government by s 51 (xxxi) of the Commonwealth of Australian Constitution Act namely, that just terms be provided for the acquisition of property.
There is no constitutional obligation on the State government to provide just terms for the acquisition of property. I am not aware of any principle which conditions the power to make delegated legislation upon the provision of adequate compensation for loss caused by the exercise of that power.
Accordingly, this submission must fail.
The argument based on a lack of proportionality raised similar considerations, and must fail for the same reasons.
Was fair compensation offered?
The matter of compensation was not argued in any detail. It is not necessary to decide it.
I wish to make one or two brief points. Mr Warrick’s claim appears to rest heavily on implications drawn from the arrangement made in 1997 and from the addition of reg 10A.
It seems to me that the most Mr Warrick can claim is that in 1997 he participated in the buy back on the basis of the arrangement made that year, that after reg 10A was added he continued to hold a licence that had become more valuable than before, and that on the basis of the arrangement in 1997 he has invested more in his business than he otherwise would have.
However, the claim for compensation appears to be premised on the basis that there is an entitlement to compensation not just for further investments or commitments made on the basis of the 1997 arrangements, but for the full value of the licence as a means of earning income. The claim does not seem to address the point that Mr Warrick held the licence before 1997, and that its value as a means of producing income is either unrelated to, or only partly affected by, the events of 1997. The claim for compensation as made appears to assume that compensation would be payable for loss of the ability to use the licence to earn an income, whatever the circumstances under which that ability came to an end. This issue was not addressed by the judge and I say no more about it.
Conclusions
For those reasons I would allow the appeal, set aside the order of the judge and substitute an order dismissing the plaintiffs’ action.
GRAY J
Introduction
The Proceedings
This is an appeal by the State of South Australia challenging declarations and orders made by a judge of this court following a hearing for judicial review.
Shane Warrick, a commercial fisher was the president of the South Australian River Fishery Association. The association represented a group of fishers who held commercial fishing licences to fish reaches of the River Murray. The licences were granted under the Fisheries Act 1982 (SA) and were regulated by the Scheme of Management (River Fishery) Regulations 1991 (SA) and the Fisheries (General) Regulations 2000.
Mr Warrick and the association issued proceedings against the State of South Australia seeking judicial review. They asserted that regulations made in 2002 were invalid. They sought the following orders:
The decision of the Defendant by the Minister for Agriculture, Food and Fisheries made on or about 7 June 2002 and communicated to the Plaintiffs on 7 June 2002 to vary the conditions of the authorities whereby the Second Plaintiff and the members of the First Plaintiff fished the River Murray Fishery be removed into this Court and that such decision be quashed.
A declaration that Regulation no. 187 of 2002 gazetted in the South Australian Government Gazette on 26 September 2002 is invalid.
A declaration that the Second Plaintiff and all licence holders in the River Fishery are entitled to a licence authorising the use of gill nets.
An injunction restraining the Defendant from continuing to offer or from concluding ex gratia offers to the members of the First Plaintiff for the surrender by the said members of licences in the River Murray Fishery.
The action proceeded on affidavits. No pleadings were filed. At trial evidence was led to supplement the affidavit evidence.
The trial judge declared regulations 187 and 193 invalid. The court’s formal declarations and orders included:
Regulation no. 187 of 2002 gazetted in the South Australian Government Gazette on 26 September 2002 is invalid.
Regulation no.193 of 2002 gazetted in the South Australian Government Gazette on 17 October 2002 is invalid.
Subject to due renewal of licences the second plaintiff and the other licence holders in the River Fishery remain entitled to quiet enjoyment of their respective reaches unless the licences are terminated for any lawful reasons.
...
The question whether the second plaintiff and other licence holders are entitled to recover damages for breach of the covenant of quiet enjoyment (and if so the assessment of such damages) be tried as a separate issue.
Issues at Trial
The Plaintiffs’ Case
The plaintiffs argued that the association had reached an agreement with the State of South Australia in 1997 with respect to the restructure of the River Murray Fishery (the 1997 restructure). Following the restructure the rights of the fishers were then overtaken by formal contracts represented by renewed fishing licences. The fishers acquired inalienable property rights. Regulations 187 and 193 of 2002 varied existing regulations and abrogated those rights. Regulations 187 and 193 effectively put an end to fishing on the River Murray as a viable commercial enterprise. The fishing licences were substantially if not totally devalued.
The plaintiffs sought to have the State honour the terms of the 1997 agreement and the formal contracts represented by the renewed licences. It was said to be implicit that the State would administer the Fisheries Act consistently with that agreement. The licences were granted in perpetuity. The right to transfer the licences continued indefinitely.
The plaintiffs contended that the 1997 agreement fettered, restricted or reduced the powers of the Governor in Council to vary the existing regulations. It was further contended that section 39 of the Acts Interpretation Act 1915 (SA) did not empower the Governor in Council to vary the existing regulations.
The plaintiffs also argued that regulations 187 and 193 were ultra vires. The regulations were made for an improper purpose. That evident purpose was to comply with a compact made between the Leader of the Labor party and the member for Hammond before the Labor Party formed government following the 2002 State Government election. It was finally contended that regulations 187 and 193 were unreasonable and lacked proportionality.
The State’s Case
The State’s case was that a contract had not been entered into in 1997 although the relevant minister had made public announcements about the proposed restructure of the River Murray Fishery. However there was no intention to enter into contractual relations. It was contended that the fishers were the holders of statutory licences and their rights and obligations were governed by the terms of the legislative scheme. No inalienable property rights had been created. The power to vary the existing regulations had not been reduced or fettered in any way. Issue was joined as to the proper interpretation of section 39 of the Acts Interpretation Act. The allegations of improper purpose, unreasonableness and lack of proportionality were denied.
Findings of the Trial Judge[1]
[1] [2003] SASC 38
The trial judge concluded that a preliminary agreement had been reached in 1997 between the association and the State:
… The plan was developed jointly between the interested parties (according to the press release of 27 April 1997). I consider that the legally enforceable agreement between the fishers in terms of their "buy out" agreement is matched by the Minister's undertakings which are necessary to give efficacy to the overall arrangement. I consider that upon this evidence that undertakings were intended to have legal effect at least at the point where the number of licensees were reduced to 30 so as to bring into force transferability of fishing licences in terms of cl 10A of the amending regulations of 7 August 1997. However, at that point the rights under any such agreement merged with those which arose under the terms of the licence itself which operates under specific statutory authority.
However the judge then qualified this conclusion. He considered that there was no need to determine whether the 1997 agreement had legal effect as it had been overtaken by formal contracts represented by the renewed fishing licences. The judge considered that the individual fishing licences contained implied terms corresponding to the terms of the preliminary agreement:
In my opinion the Minister has fulfilled his obligations in terms of that agreement. It is unnecessary to determine whether or not the agreement has legal effect as alleged because it has been overtaken by the formal contract represented by the licence renewals from year to year. In my opinion the terms which will be implied in the individual licences will correspond to the terms of the preliminary agreement which is alleged by the plaintiff to have been made between the Minister and the plaintiff association on behalf of the licence holders.
The findings of the trial judge of the existence of the 1997 agreement and the formal contracts represented by the renewed licences materially underpinned his later reasoning. The findings influenced his conclusions about the nature of the licensees’ rights and of the restricted power of the State to vary the existing regulations.
The trial judge reasoned that the nature of the regulatory changes resulting from the 1997 restructure indicated that the both the government and the licensees intended the licences to be “permanent”:
Applying these principles to the present case it seems to me that in 1997 the government put in place a licensing regime and lawfully issued (by a deeming clause contained in the regulation itself) licences of indefinite duration which gave rise to private rights which the present government is bound to respect. (The annual licences are routinely renewable). It is implicit in this regime that the usual gear and targeted species of fish as mentioned in the regulations (in force in 1997) would remain as the basis of the licensed fishing arrangements. These arrangements include the code of practice and a management plan which had biological, economic, environmental and social objectives. Some of the arrangements to implement this regime involved the exercise of specific regulatory powers as contained in the Fisheries Act. In some respects the arrangements involved the exercise of prerogative or executive powers of the Minister properly associated with his portfolio in the course of development by the government "in conjunction with" the plaintiff association of an industry funded structural adjustment and buy back programme. (see press release of 27 April 1997).
I consider that the exercise of regulatory power in 1997 (so as to reconstitute the fishery with transferable licences in respect of individual reaches) provided by reason of the "nature of the subject matter" some indication that the rights thereupon arising were intended by government and licensees to be of a "permanent" nature and to provide security to licensees in the operation of their businesses. The introduction of such a regulatory regime was specifically authorised by the Fisheries Act.
The obligation of the Government in my opinion arises out of the general rule that a party to a contract made on the footing of the continuance of a state of things may not by any act within its power or control do anything to destroy or relevantly to diminish that situation (see Ansett at 61).
The judge considered that the 1997 restructure restricted the regulation making power:
It seems to me that by exercising power to put in place the regulatory regime of August 1997 with its intended grant of long term rights in the fishery the Governor in Council was acting under the express authority of the Fisheries Act so as pro tanto to reduce power available to a later government. That does not constitute a fetter.
...
In view of the history which I have outlined and upon a consideration of the rights which adhere to a contractual licence and upon a consideration of the 1997 regulations I conclude that it is implicit in the scheme of the regulations (including the general fishing regulations) that the exercise of power to make regulations on 7 August 1997 proceeded upon the basis that exercise of power on that occasion was "one off" so as to provide long term security based on the licences then in force and gear endorsements which (based on the general fishing regulations) are the subject of the licence conditions. The river fishery referred to in the Scheme of Management (River Fishery) Regulations and Fisheries (General) Regulations is that which was thus reconstituted on 7 August 1997 to the intent that the rights of the licence holders in the fishery would become "permanent" when the number of licence holders was reduced to 30. It will be necessary to examine how this concept of permanent licences should be interpreted and applied. It was implicit in the arrangements that the longstanding "reach system" operating in the river fishery would remain as a cornerstone of the deal.
The judge concluded that regulations 187 and 193 of 2002 were invalid in the absence of provision for fair and reasonable compensation for the licence holders. He also concluded that continuing licensees in the river fishery were entitled to quiet enjoyment of their reaches until the licences were terminated by reasonable notice.
The trial judge found that there existed a groundswell of community opposition to commercial fishing on the River Murray:
The evidence before me (including material in the Government files) shows a groundswell of community opposition to commercial fishing on the Murray River. An affidavit provided by Ms Karlene Maywald (the Member for Chaffey in the House of Assembly) confirms that this community unrest is not confined to the electorate which Mr Lewis represents. There is a point of view that the river should be reserved for the benefit of recreational and tourist interests to the exclusion of commercial fishing…
Apart from this compact (and the groundswell of opinion to which I have referred) there is no other evidence which might provide a basis (if it should be relevant) for the recent exercise of regulatory power. There is no scientific reason for the restrictions in terms of a need to protect the resource. There are arguments advanced by those seeking to advance consercation and recreational interests but the propositions are debating points. However, they are entitled to be treated with respect as expressions of genuine opinion. Social values are relevant to the administration of the Fisheries Act.
...
The regulation making powers are extremely wide and it is not for the court to pass judgment upon a decision to prefer one section of the community to another in the course of framing the regulations and policy.
...
Likewise in the present case the political controversy as to differences of view between the conservationists and recreational anglers on the one hand and the professional fishers on the other is not a matter for the court.
...
I consider that it was the intention of Parliament that the powers under the Fisheries Act should be available in these circumstances to achieve a social purpose in the course of management of the resource.
The trial judge rejected the plaintiffs’ claim that regulations 187 and 193 were made for an improper purpose:
The plaintiff contends that the defendant has enacted the variation of the regulations for an improper purpose. I disagree although I am satisfied that the only reason for the Government’s action was to honour its commitment in terms of the political compact with Mr Lewis. The plaintiff relies upon statements in R v Toohey ex parte Northern Lands Council (1980-81) 151 CLR 170 where Aickin J in particular draws the distinction between an exercise of power which is (a) corrupt (b) exercised for an improper purpose and (c) merely ultra vires without the presence of any element of any impropriety. In the present case there is no suggestion of corruption. However, the plaintiff contends that the powers of government have been exercised for a purpose which is not within the purposes envisaged by Parliament when it enacted the Fisheries Act. The plaintiff contends that the sole or substantial purpose of the variation of regulations is to satisfy the recreational fishing lobby as represented by Mr Lewis. In my opinion the Fisheries Act is not to be administered solely or necessarily by reference to scientific considerations. Social factors may be brought to account in the course of conserving the resource.
Subject to observance of its contractual obligations arising under the “permanent” statutory licences granted in 1997 (which give rise to a different issue) the government was entitled to preserve the River for the benefit of the general public. Section 20 of the Fisheries Act sets out a statement of principal objectives (see Dighton par 67) but the Governor in Council is not bound thereby.
The regulation making powers are extremely wide and it is not for the court to pass judgment upon a decision to prefer one section of the community to another in the course of framing the regulations and policy.
...
In the present case I am prepared for the sake of the argument to assume that the majority of members of the Executive Council were acting to give effect to a political compact. Mr Lewis required the advancement by a number of years a course of action which an ERD Committee of Parliament would have postponed. The time frame upon which Mr Lewis insisted apparently reflected a point of view expressed in the electorate of Chaffey and Hammond (and perhaps elsewhere). I can see nothing improper if the Government chose to yield to this point of view although it may not have been action which the Government would have embraced in the absence of the political compact.
The judge found it unnecessary to reach a conclusion with respect to the complaints about unreasonableness and lack of proportionality.
Issues on Appeal

The words the terms used in conferring the power, or the nature of the subject matter or the objects of the power are a reference to the enabling statute and do not authorise the court to look beyond the content of the enabling Act. It follows from this analysis that the trial judge misconstrued section 39.
The Effect of the 1997 Restructure
As earlier observed the trial judge reasoned that the 1997 restructure reduced the statutory power to make regulations. The conclusion that the judge erred in finding there were formal contracts necessarily undermine his reasoning on this issue. However the trial judge’s findings about contracts were correct, it does not follow that any contract reduced the regulation making power.
The regulation making power conferred by the Fisheries Act must be exercised consistently with the objects, purposes and terms of the Act. Having regard to the objects and purposes of the Act and its terms it would be inconsistent with the public interest to limit the power to regulate Fisheries. Commercial fishing licences granted in perpetuity would appear to be inconsistent with the purposes of the legislation.
In Ansett Transport Industries v The Commonwealth[21] Mason J held that any terms in a contract preventing the Governor in Council from exercising his regulation making power would be invalid because such terms constituted an attempt to fetter the future exercise of a power to make regulations in the public interest. In Attorney General (NSW) v Quin[22] Mason CJ in addressing a similar question observed:
The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power...
...
No doubt the principle gains some of its force from the circumstance that the discretion has a legislative foundation and it is not readily to be supposed that the legislature intended that a proper exercise of the discretion in the public interest was to be frustrated, hindered or circumvented by executive action. Nonetheless there is no reason why the same principle should not apply to common law powers and functions of the Crown or the Executive when they involve the making of decisions in the public interest.
What I have just said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion: see the observations of Lord Denning MR in Laker Airways v Depatment of Trade; but see also the criticism of this approach by Gummow J in Kurtovic.
Mason CJ specifically approved the following passage from the judgment of Gummow J in Minister for Immigration v Kurtovic[23]
in a case of discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised (any more than a contract might be relied upon) to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by he statute, and that the repository of the discretion is not to be held to a decision which mistakes or forecloses that understanding.
[21] (1977) 139 CLR 54 at 71
[22] (1990) 170 CLR 1 at [17-18]
[23] (1990) 92 ALR 93 at p 111
In Haoucher v Minister for Immigration and Ethnic Affairs[24] McHugh observed:
In cases which do not involve the exercise of statutory discretions or duties, a Minister of the Crown may be estopped from denying a fact or promise. But just as a Minister cannot bind himself or herself by contract to exercise a discretion in a particular way (Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth so a Minister invested with a statutory discretion cannot impair the exercise of the discretion by a representation tht he or she will or will not exercise the discretion in a particular way or at a particular time: Southend-on-Sea Corporation v Hodgson (Wickford) Ltd; Brickworks Ltd v Warringah Corporation; Rootkin v Kent County Council.
[24] (1989-1990) 169 CLR 648 at 678
For these reasons even if a contractual arrangement had been reached, that arrangement would not fetter or reduce the statutory power to make regulations for the purposes of the statute.
Improper Purpose
At trial it was submitted by the plaintiffs that regulations 187 and 193 were made for an improper purpose. As a result they were beyond the scope of the regulatory making power, were ultra vires and void. The trial judge rejected this submission:
The plaintiff contends that the defendant has enacted the variation of the regulations for an improper purpose. I disagree although I am satisfied that the only reason for the Government's action was to honour its commitment in terms of the political compact with Mr Lewis. The plaintiff relies upon statements in R v Toohey ex parte Northern Lands Council (1980-81) 151 CLR 170 where Aickin J in particular draws the distinction between an exercise of power which is (a) corrupt (b) exercised for an improper purpose and (c) merely ultra vires without the presence of any element of any impropriety. In the present case there is no suggestion of corruption. However, the plaintiff contends that the powers of government have been exercised for a purposes which is not within the purposes envisaged by Parliament when it enacted the Fisheries Act. The plaintiff contends that the sole or substantial purpose of the variation of regulations is to satisfy the recreational fishing lobby as represented by Mr Lewis. In my opinion the Fisheries Act is not to be administered solely or necessarily by reference to scientific considerations. Social factors may be brought to account in the course of conserving the resource.
In R v Toohey; ex parte Northern Land Council[25] the High Court addressed an assertion that regulations made by the administrator of the Northern Territory declaring the area of land to fall within the boundaries of a town for town planning purposes were in fact made to prevent a land rights claim being made in respect of the land. It was argued that the motive underlying the making of the regulations could not be questioned by a court on the basis that decisions of the administrator as Crown representative were unreviewable. The court rejected this argument. Gibbs CJ observed:
[I]f the Crown in Council makes a regulation which appears on its face to be made for a purpose that was not authorized by the statute under which it purports to be made, the regulation will be invalid. It would be anomalous if a regulation which bore the semblance of propriety would remain valid even though it should be shown in fact to have been made for an unauthorized purpose; that would mean that a clandestine abuse of power would succeed when an open excess would fail.
Mason J reasoned:
It is incontestable that the courts will not examine the motives which inspire members of Parliament to enact laws. No doubt the courts will continue to adopt a similar approach to the exercise by a subordinate law-making body of legislative powers which are not purposive and are not conditioned on the opinion of the body as to the existence of a state of facts. But when the legislative power is purposive or conditioned on such an opinion the objection to an examination of the motives of the members of the legislative body lies not so much in the character of the function as in the relationship or lack of relationship between the motives of the individual members on the one hand and the extraneous purpose or the want of a bona fide opinion on the other hand. The problem is partly a practical problem of proof. In one case there is the difficulty of translating individual motives into objective purpose. In the other case there is the difficulty of deducing from individual motives the conclusion that a collective opinion was not a bona fide held opinion. It would be unwise in the absence of some knowledge of the facts to explore these questions further.
[25] (1981) 151 CLR 170
Wilson J commented:
In other words, the courts will not review the proper exercise of discretionary power. Furthermore, in the case of a statutory power the construction of the relevant statute will be of primary importance in determining the nature and extent of any such power and the consequent scope for any judicial review. In the case of prerogative powers, the subject matter of the power will be of primary importance in determining whether the manner of exercise of the power is justiciable.
These observations of the High Court permitted an enquiry by the trial judge about the motives or purposes for the making of regulations 187 and 193.
On appeal counsel for the plaintiffs again submitted that regulations 187 and 193 were made for an improper purpose. It was said that the government made the regulations for the sole purpose of giving effect to the compact with the Member for Hammond. It was said that this was not a proper use of the power to make regulations under the Fisheries Act.
The government has the power under the Fisheries Act to take steps to protect and preserve the river and its resources in the general public interest. The power to make regulations is wide. The court is not the forum to determine whether the interests of one group should be preferred over those of another in the making of regulations.
There were legitimate reasons for the variations to the regulations. As earlier observed, the trial judge found that there was a “groundswell of community opposition” to commercial fishery. The evidence included an affidavit of Ms Karlene Maywald the Member for Chaffey who deposed:
I became aware of the community attitudes to the commercial fishing of native fish, and the use of gill nets when I started campaigning for the seat of Chaffey …There was strong opposition within the community to commercial fishing, and the use of gill nets. In addition, in the course of my campaigning I became aware of widespread opposition to the restructure of the commercial fishery propsed in Paper No 17, A Draft Plan for Structural Adjustment in the South Australian River Fishery and in the potential increased allocation of gill nets.
One of my campaign platforms was to hold an inquiry in to commercial fishing in the River Murray as there had been no environmental impact assessment to support the restructure of the fishery.
A public meeting was organised in Renmark…The meeting was attended by about 150 people. Those present at the meeting supported the banning of the use of gill nets in the River Murray…The two most common issues raised with me by members of the community are the state of the River Murray and opposition to the use of gill nets and commercial fishing…
The petition organised by the Murray Pioneer was launched on 21 December, 2001, and in three weeks attracted 2,534 replies which supported the banning of the use of gill nets in the River Murray by commercial fisherman.
Evidence of Peter Charles Gehrke, a researcher with the CSIRO included the following observations:
On the basis of all of the available information I consider that while it may not be necessary to close the river fishery for native fish, the fishery and its resources are at a low level, and accordingly at risk of over exploitation. In my opinion, the closure of the fishery is a responsible measure for the Government to take as part of a package of remedial measures having the objective of bringing about a recovery of the fish resource and health of the river.
Evidence before the trial judge disclosed a process of consultation and discussion prior to the making of regulations 187 and 193. This suggests that the compact was not the sole consideration. The enactment of the regulations was not established to be a ‘rubber stamp’ to achieve the end of forming government.
Earlier in these reasons reference has been made to the community views opposing commercial fishing. There was evidence of a consideration of the matter before the making of the regulations. Documents tendered at trial disclosed that a Ministerial brief in June 2002 contained the following information:
This policy follows from the recommendations of the ERD Committee in 1999 that commercial fishing should be phased out in the River fishery.
The compact with the Hon Peter Lewis has altered the time frame recommended by the ERD committee for the removal of commercial fishing.
A consideration of policy issues is also demonstrated by a memorandum of March 2002 from the Minister for Agriculture, Food and Fisheries to the Minister for Environment and Conservation:
The River Murray has been heavily modified since European settlement, particularly over the past 60 years since the construction of the barrages at Goolwa and the locks and weirs along the river. A lack of environmental flows, impediments to natural fish passage due to the construction of locks, weirs, levee banks and culverts, cold water pollution, siltation, salinity and agricultural pollution issues are generally recognised as the major contributing factors to the reduced productivity of freshwater fish stocks…
The principle arguments against the use of gill nets and commercial fishing for native species include:
- The negative interaction of the gill nets with other wildlife in the River that results in the occasional entanglement and drowning of water birds, tortoises, reptiles and other animals. This includes the capture and drowning of undersize (<33cm) callop, and undersize (<50cm) and large (>100cm) Murray cod…
Expected higher social and economic values derived from causing a shift in the allocation of fishing opportunities in the River Murray from commercial fishing to recreational pursuits.
On their face the regulations 187 and 193 were made for a purpose fairly and squarely within regulation making power.
There was ample evidence to support the trial judge’s rejection of the submissions that there had been an improper purpose for the making of regulations 187 and 193. No error has been shown in the trial judge’s approach to this issue. To the contrary his findings and conclusions were appropriate.
Unreasonableness And Lack Of Proportionality
Counsel for the plaintiff’s submitted that the regulations were unreasonable. It was said that the unreasonableness stemmed from the government failure to provide compensation to those upon whom regulations 187 and 193 had a detrimental effect.
The relevant consideration in an assessment of unreasonableness is not how appropriate the court considers the regulations to be, but the validity or otherwise of the regulations. The High Court considered this issue in Williams v Melbourne Corporation[26] where Dixon J observed:
To determine whether a by-law is an exercise of a power, it is not always enough to ascertain the subject matter of the power and consider whether the by-law appears on its face to relate to that subject. The true nature and purpose of the power must be determined, and it must often be necessary to examine the operation of the by-law in the local circumstances to which it is intended to apply. Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the by-law, the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power…
[26] (1933) 49 CLR 142 at 154-155.
There is no merit in the plaintiffs’ submission. There is no basis to support a claim that the power to make regulations is conditional upon the provision of compensation for consequential loss.
Counsel further submitted that the regulations should be invalidated as lacking in proportionality. The relevant test is whether a regulation is so lacking in reasonable proportionality as not to be a real exercise of the power.[27]
[27] South Australia v Tanner (1989) 166 CLR 161
The regulations were made pursuant to sections 46 of the Fisheries Act. On their face the regulations come within the purposes of the section - for the conservation, enhancement and management of the living resources of the waters of the River Murray and for ‘the regulation of fishing and the protection of certain fish. The regulations are within the true nature and purpose of the regulation making power and are reasonably proportionate to those purposes. There is no merit to this submission.
Conclusion
These reasons lead to the conclusion that the declarations and orders of the trial judge should be set aside. In lieu an order should be made dismissing the plaintiffs claims.
BESANKO J: I agree with the Chief Justice that the appeal should be allowed, the order of the Judge should be set aside and an order made dismissing the plaintiffs’ (respondents on appeal) action. Subject to one matter, I agree with the reasons for judgment of the Chief Justice.
The respondents argued that the amendments to the River Fishery Regulations and the General Regulations in 2002 (“the amending regulations”) were made for an improper purpose. The respondents relied on the Judge’s finding that the only reason for the Government’s action was to honour its commitment in terms of the political compact with the Honourable Mr Lewis. I agree with the Chief Justice’s conclusion that this argument fails. However, in view of the importance of the argument, I think that it is appropriate for me to express my own reasons for reaching that conclusion.
The amending regulations were made by the Governor. The Governor acts with the advice and consent of the Executive Council (“Council”) (s 23 of the Acts Interpretation Act 1915). Recommendations to the Governor in Council are based on a Cabinet Decision (South Australia v O’Shea (1987) 163 CLR 378 per Mason CJ at 387). It is Cabinet’s purpose in forwarding the amending regulations to the Governor in Council and recommending that they be made which is relevant. I am content to describe the decision-maker in the same way as the Judge, namely, the Government. The fact that the regulations are made by the Governor in Council does not preclude an attack on the validity of the regulations on the ground that they were made for an improper purpose (The Queen v Toohey; ex parteNorthern Land Council (1981) 151 CLR 170 per Gibbs CJ 192 – 193, Stephen J at 215 – 216, Mason J at 225, Aickin J at 264 – 265, Wilson J at 283).
Section 20 of the Fisheries Act 1982 provides that in the administration of the Act the Minister, the Director and management committees have as their principal objectives:
(a) ensuring, through proper conservation, preservation and fisheries management measures, that the living resources of the waters to which this Act applies are not endangered or overexploited; and
(b) achieving the optimum utilisation and equitable distribution of those resources.”
I have no doubt that these objects are relevant to the exercise of all the powers and discretions under the Act including the power to make regulations.
Section 41 provides that a person must not engage in a fishing activity of a prescribed class. Section 46 provides that the Governor may make regulations, “for the conservation, enhancement and management of the living resources of the waters to which this Act applies, the regulation of fishing and the protection of certain fish”. The section goes on to empower the Governor to make regulations dealing with a number of particular matters. Section 72 confers a general power on the Governor to make such regulations as are contemplated by the Act or as are necessary or expedient for the purposes of the Act.

The amending regulations remove mesh nets, gill nets and bait nets from the list of authorised fishing devices from 26 September 2002, and they delete “Murray cod and callop (Golden Perch)” from the fish which constitute the fishery from 1 July 2003. The Judge found, and it is not disputed, that these changes render the fishery economically unviable.
The political compact between the Government and Mr Lewis included the following:
“To immediately ban the use of gillnets in the Riverine corridor of the Murray and phase out the commercial fishing of native species within 12 months; but allow the unconditional harvest of exotic species (carp, redfin etc).”
There was evidence in this case which supported the conclusion that the amending regulations are capable of being considered to be reasonably proportionate to the pursuit of purposes identified expressly or impliedly in the Fisheries Act. In other words, the amending regulations did not go beyond restraints which could be reasonably adopted for purposes identified in the Fisheries Act (South Australia v Tanner (1989) 166 CLR 161 per Wilson, Dawson, Toohey and Gaudron JJ at 165) (“Tanner”).
A paper in early 2002 from the Minister for Agriculture, Food and Fisheries to the Minister for Environment and Conservation and the Minister for the River Murray contains the following statements:
“The principal arguments against the use of gill nets in commercial fishing for native species include:
·The negative interaction of gill nets with other wildlife in the river that results in the occasional entanglement and drowning of water birds, tortoises, reptiles and other animals. This includes the capture and drowning of undersize (<33 cms) callop and undersize (<50 cms) and large (>100 cms) Murray cod.
·The capture of native fish such as cod and callop by an effective method like gill nets is contrary to strategies identified to address a suite of threatening procedures that are causing the deterioration of fish habitat and native fish populations. Such strategies and initiatives are identified in the ‘River Murray Environmental Flow and Water Quality Plan’, the ‘Native Fish Management Strategy’, the ‘Sustainable Rivers Audit’ and the ‘National Management Strategy for Carp Control’.
·The expected higher social and economic values derived from causing a shift in the allocation of fishing opportunities in the River Murray from commercial fishing to recreational pursuits.”
In addition, the paper noted that there had been a long and strong campaign of opposition to commercial fishing in the River Murray, with a particular focus on removing the gill nets. Furthermore, as the Judge noted, in 1999 a Parliamentary Committee (the Environment, Resources and Development Committee) established to consider the fish stocks in inland waters had recommended (among other things) that commercial fishing for native species be phased out over a ten year period.
The evidence clearly established that there are contrary arguments to the first two arguments identified in the paper. As to the third argument, there are clearly arguments either way as to whose interests (commercial fishers as against recreational fishers) should be preferred. However, it is not the role of this Court, on an application which attacks the validity of the amending regulations to make a decision based on the merits of the opposing arguments. In Tanner, the High Court considered whether certain measures designed to prevent pollution or deterioration of water were capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose. Wilson, Dawson, Toohey and Gaudron JJ said (at 165):
“The problem with pollution or deterioration of the water may range from slight to grave, and there may be a whole range of measures that might work to reduce or prevent the problem and for which a choice must be made. In many cases, it would be impossible to demonstrate that the measures which are adopted will actually be effective. The prudent choice of measures will often depend on administrative practicalities and the availability of expert advice of a scientific nature. In this context, there must be conceded a broad, rather than a narrow, approach in determining the nexus between the exercise of the power and the achievement of the purpose for which it is conferred.
In considering the present challenge to the validity of reg. 37.2.1, it is necessary for the Court to form a view as to the existence and dimensions of the actual or threatened pollution or deterioration of the water in the watershed. Those are matters of fact upon which the Court must be instructed by appropriate evidence. They are not questions of which the Court may take judicial notice. Once armed with knowledge of the facts, the Court is in a position to properly determine whether the regulation under attack is reasonably capable of being considered a measure ‘to reduce or prevent the deterioration or pollution of any water within a watershed or watershed zone’.”
On the evidence put before the Judge, it cannot be said that the amending regulations are not reasonably capable of being considered as within the objects and purposes of the Fisheries Act.
Indeed, leaving aside the submission that the amending regulations were invalid because they contained no provision for compensation for the commercial fisher (a submission I would reject for the reasons given by the Chief Justice), I did not understand the plaintiffs to argue that the amending regulations were invalid on the face of the regulations.
There is also evidence that the question of commercial fishing in the River Murray including the use of gill nets, was the subject of considerable public discussion and debate for some considerable time before the compact between the Government and Mr Lewis. This is clear from the documents put before the Judge including the affidavit of Ms Karlene Ann Maywald. Ms Maywald has been a member of the House of Assembly in the Parliament of South Australia representing the district of Chaffey since 11 October 1997. The district of Chaffey adjoins the district of Hammond. Mr Lewis is the Member representing the district of Hammond. During Ms Maywald’s first campaign for the seat of Chaffey, she became aware of strong opposition within the community to commercial fishing and the use of gill nets. One of her campaign “platforms” was to hold an inquiry into commercial fishing in the River Murray because, according to her affidavit, there had been no environmental impact assessment to support a restructure of the fishery. At a public meeting held on 3 August 1997 approximately 150 people attended and a motion was passed that the meeting recommend that gill nets be banned in the River Murray. Ms Maywald said that the two most common issues raised with her by members of the community were the state of the River Murray and opposition to the use of gill nets and commercial fishing.
In April 2001 Ms Maywald established a committee known as the Riverland Recreational Fishing Advisory Group. Members of the committee include local recreational fishers and people involved in the local tourism industry. The group undertook a survey the results of which led Ms Maywald to the conclusion that there was widespread community opposition to the use of gill nets and commercial fishing.
At one stage a number of councils prepared a seven point plan concerning fishing in the River Murray. One feature of the plan was the total exclusion of gill nets. Four local councils organised a petition. The Murray Pioneer Newspaper organised a petition on 21 December 2001 which supported the banning of the use of gill nets in the River Murray by commercial fishers. Two thousand five hundred and thirty four signatures were collected within a period of three weeks.
I refer to this material not because I have formed the view that the views expressed are right. It is not the function of this Court to make a decision on that issue. I refer to this material because it shows that the policy implemented by the amending regulations was a matter of public debate and discussion well before the compact with Mr Lewis and was a policy supported by a section of the community. That conclusion is supported by the fact that in 1999 the Environment Resources and Development Committee conducted the inquiry and made the recommendations to which I have already referred.
On their face the amending regulations are valid. They implement a regime which had been the subject of public discussion and debate over a reasonably substantial period of time and which had the support of a section of the community.
It is true that the Judge found that the only reason for the Government’s action was to honour its commitment in terms of the political compact with Mr Lewis. However, it is important that that finding be understood in its proper context and, in particular, in light of a later finding of the Judge which ultimately led to his conclusion that the respondents had failed to establish an improper purpose. The Judge said, after referring to the point of view expressed in the electorates of Chaffey and Hammond and perhaps elsewhere:
“I can see nothing improper if the Government chose to yield to this point of view although it may not have been action which the Government would have embraced in the absence of the political compact.”
The purposes for which regulations may be made may be expressly stated in the empowering provision or they may be inferred from a close examination of the terms, scope and objects of the Act which contains the empowering provision. The purposes may be broadly expressed or they might be quite specific. As I have said, on their face the amending regulations are within power. The question is whether the respondents have shown that they were made for a purpose extraneous to the purposes for which the regulation-making power may be exercised. In other words, were the amending regulations made in order to effect an object outside the scope of the empowering provision? Often in cases involving an allegation of improper purpose the legislative or administrative act itself has a direct effect in a particular factual context. That effect (in a successful challenge) is outside the scope of the empowering provision and it leads to the conclusion that it was the purpose or reason for the legislative or administrative act.
I think one needs to be careful in using terms such as a “political decision” or “political considerations”. It is common for legislation to confer powers which involve a choice between different schemes or regimes and sometimes the alternatives are very different. The fact that political considerations influence the choice of one legislative regime over another does not render the exercise of power ultra vires because of improper purpose. Furthermore, the fact that political considerations were the catalyst for a particular legislative regime is not fatal, even if one can go so far as to say the legislative regime would not have been put in place but for the political considerations.
None of this is to deny the obvious point that political considerations may be relevant in a case where improper purpose is alleged. Political considerations may be the reason why the decision-maker seeks to achieve a collateral purpose. However, it is difficult to envisage a situation in which political considerations of themselves could constitute an improper purpose in circumstances where the exercise of power is otherwise valid.
In this case the Government adopted and implemented a policy which was permissible (in the sense of being within the objects of the Act) and which had been the subject of public discussion and debate. It was a policy which had the support of a section of the community. It may be assumed that the Government acted for political reasons. However, that does not mean that the power was exercised for an improper purpose. In choosing to accede to a particular point of view for political reasons, the Government did not act for an improper purpose in circumstances where the regulations are otherwise valid.
For these reasons I would reject the respondent’s argument that the amending regulations are ultra vires because they were made for an improper purpose.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT OF THE HON JUSTICE GRAY
1 [2003] SASC 38
2 Section 20 Fisheries Act, 1983
3See Pennington v McGovern (1987) 45 SASR 27 per King CJ at 30 for a discussion of the comparable Central Zone Abalone Fishery
4      section 34
5 section 36
6 section 37 – one such example is the maximum number of nets that can be used on a reach at any time.
7      section 38
8 Environment, Resources and Development Committee, 31^st Report of the Committee ‘Fish of Inland Waters’
9 (1954) 92 CLR 424 (HC); (1955) 93 CLR 546 (PC);
10 (1956) 95 CLR 460
11 (1960) QdR 191
12 (1961) 105 CLR 6
13 (1984-1985) 158 CLR 327
14 (1986) 42 SASR 463
15 (1987) 45 SASR 27
16 (1989-1990) 168 CLR 314
17 Section 36. (1) Subject to this Act, an application—
(a)for a licence shall be determined by the Director subject to and in accordance with the provisions of the scheme of management prescribed for the fishery;
…
(3) A licence or registration must not be granted by the Director except upon payment of the licence or registration fee, or, upon payment, in accordance with the regulations, of an instalment of the licence or registration fee, prescribed under this Act.
(4) The Director must, upon granting an application for registration, effect the registration by an endorsement of the licence in relation to which the registration was granted.
(5) The Director may, upon application in the prescribed manner and form by the holder of the licence on which any registration is endorsed, revoke the registration.
18 Section 36(1)
19 Section 36(5)
20     Section 38(1)
21 (1977) 139 CLR 54 at 71
22 (1990) 170 CLR 1 at [17-18]
23 (1990) 92 ALR 93 at p 111
24 (1989-1990) 169 CLR 648 at 678
25 (1981) 151 CLR 170
26 (1933) 49 CLR 142 at 154-155.
27 South Australia v Tanner (1989) 166 CLR 161

(a)for a licence shall be determined by the Director subject to and in accordance with the provisions of the scheme of management prescribed for the fishery;

…

(3) A licence or registration must not be granted by the Director except upon payment of the licence or registration fee, or, upon payment, in accordance with the regulations, of an instalment of the licence or registration fee, prescribed under this Act.

(4) The Director must, upon granting an application for registration, effect the registration by an endorsement of the licence in relation to which the registration was granted.
(5) The Director may, upon application in the prescribed manner and form by the holder of the licence on which any registration is endorsed, revoke the registration.

[2003] SASC 174

6 June 2003