South Australian River Fishery Association & Warrick v State of South Aust No. Scciv-02-1381

SOUTH AUSTRALIAN RIVER FISHERY ASSOCIATION & WARRICK v THE STATE OF SOUTH AUSTRALIA
[2003] SASC 38
WILLIAMS J:
SUMMARY OF REASONS FOR JUDGMENT

The plaintiff, a fisher in the River Murray commercial fishery (acting on behalf of himself and 27 other licensees in the fishery) has called in question the validity of variations to the regulations which apply to that fishery. The government proposes to restructure the fishery on 30 June 2003. The changes which are now under challenge are steps in the phasing out of the current licensing system which was introduced in 1997 as part of an agreement made between the government and the industry (via the plaintiff association) in order to provide long term stability in the fishery. Transferable licences then granted by regulation as part of the agreement represent valuable capital assets in the hands of the licensees.
The river fishery is regulated by two sets of regulations operating in tandem - Fisheries (General) Regulations and Scheme of Management (River Fishery) Regulations. The changes now in question involve significant variations to these regulations as they appeared in 1997.
The variation to the regulations have the following effect:
(a)to delete “mesh net, gill net and bait net” from the list of authorised fishing devices which may be used in the fishery from 26 September 2002. (Amending Schedule 1 cl 103 of Fisheries (General) Regulations).
(b)to delete “Murray cod and callop (golden perch)” from the schedule of fish which constitute the fishery as from 1 July 2003 (amending Schedule 1 of Scheme of Management (River Fishery) Regulations).
The changes render the fishery economically unviable and they have been introduced without reasonable notice; the changes have the effect of frustrating the common intention of the Government and the industry when the licences were granted by regulation in 1997. In the result licences are being devalued.
The Fisheries Act 1982 provides a power to make regulations but the power to vary regulations is found in the Acts Interpretation Act 1915 s 39. This section (as now relevant) provides that a power to make regulations includes a power to vary them “unless the nature of the subject matter indicates that the power of variation is intended to be exercised only subject to certain restrictions”. However, as a general principle of statutory interpretation, legislation (in the absence of a clear statement to the contrary), is presumed not to authorise the alienation or restriction of vested proprietary interests without adequate compensation; this presumption together with the terms of s 39 of the Acts Interpretation Act operates in the present circumstances to restrict the power of the Governor in Council under the Fisheries Act to vary the regulations.
The nature of the subject matter of the regulations which have been varied indicates that the vested property rights arising in 1997 from the fishing licences were intended not to be taken away except upon reasonable notice or upon payment of fair compensation. Power to vary the regulations in the manner adopted in this case is therefore (by virtue of the nature of the subject matter) subject to a restriction in terms of s 39 of the Acts Interpretation Act.
In the absence of a provision for payment of fair and reasonable compensation to licence holders the variations to the regulations are beyond power and are now declared invalid. The licensees remain entitled to “quiet enjoyment” of their respective reaches until licences are terminated by reasonable notice.
This case raises a novel question as to application of the proviso to s 39 of the Acts Interpretation Act. The form of the legislation (by its inclusion of the proviso which I have quoted) is peculiar to South Australia.
INDEX
Par Nos
PART 1     The Circumstances of the Claim  9
PART 2     The Government’s Political Compact with the
                  Member for Hammond  32
PART 3     The Reach System  46
PART 4     Industry Agreement 1997  62
PART 5     The Scientific Evidence  79
PART 6     The form of the Plaintiff’s Licence  93
PART 7     The Rights Attached to the Plaintiff’s Licence  99
                  (a)     A licence coupled with an interest
                  (b)     Termination of licence
                  (c)     Quiet enjoyment and non-derogation from the grant
PART 8     The Compensation Package  122
PART 9     Fettering the Power of Executive Government  135
PART 10   Section 39 Acts Interpretation Act  155
PART 11   “The nature of the subject matter” and repugnancy          175
PART 12   Dighton v South Australia  200
PART 13   Disposal of the Plaintiff’s Claims  203
PART 14   Orders  232
Part 1       The Circumstances of the Claim
The plaintiff Warrick is a commercial fisherman at Nildottie who holds a licence under the Fisheries Act to fish a section of the River Murray (Reach No 39) in accordance with the Scheme of Management (River Fishery) Regulations 1991. He is also the President of the plaintiff Association whose membership comprises the current commercial licence holders in the river fishery and their associates. Mr Warrick represents in the action these other 27 licence holders pursuant to an order of this Court dated 23 December 2002 for this action to proceed as a representative action for the determination of questions common to claims of all licence holders. The plaintiff Association has been treated as a necessary party by reason of its role on behalf of the industry in the making of the agreement in 1997 from which the rights claimed by the licence holders now flow.
The plaintiff challenges the validity of steps taken during 2002 by the South Australian Government (a) to ban the use of gill and bait nets in the River fishery as from 26 September 2002 and (b) to close the fishery for callop and Murray cod on 1 July 2003. The plaintiff also challenges a Government decision announced on 7 June 2002 to make a structural adjustment to the fishery on 30 June 2003 and abandon the “reach system”.
The Governor in Council has exercised regulatory power under the Fisheries Act to vary former regulations so as immediately to exclude the nets as authorised fishing devices and to delete callop and cod from the list of fish which constitute the fishery as from 1 July 2003. The plaintiff contends that the variation to the regulations is beyond power.
The Governor’s power to make regulations is expressly conferred by the Fisheries Act. However, the power to vary or revoke existing regulations is contained in Acts Interpretation Act s 39. The form of s 39 is unique to South Australia and imposes a limitation (by way of a proviso) upon the statutory power otherwise generally available to vary or revoke regulations. As now relevant by virtue of s 39 a power to make regulations includes a power to vary them “unless the nature of the subject matter indicates that [the power] is intended to be exercised only subject to certain restrictions”. My researches do not disclose any previous occasion when a court has considered the effect of the proviso to s 39. The novel question now to be determined is whether (in terms of the proviso) “the nature of the subject matter” indicates that the power to vary regulations in the manner now adopted is available to be exercised only “subject to certain restrictions” - in this case upon payment of just compensation to licence holders.
The South Australian River Fishery operates under a statutory licensing system which is peculiar to this State. The fishery covers nearly 35 per cent of the Murray River and is divided geographically into 30 sections called “reaches” to each of which is attached a continuing licence to fish commercially; this licence is renewable annually upon payment of a fee and by virtue of the regulations is transferable (subject to consent of the Director of Fisheries). This system (which operated until changes were foreshadowed in 2002) is specifically authorised by the Fisheries Act and was put in place as the result of an agreement made in 1997 between the commercial fishers and the South Australian government; this resulted in amendment to the regulations in that year to make the licences transferable and to facilitate the “buy out” of a number of licensees in a reconstituted fishery operating under revised conditions.
A special feature of this case is that in terms of cl 7 of the 1997 Scheme of Management (River Fishery) Regulations licences previously in force “continue in force as licences” in respect of the reconstituted fishery. All licences were actually granted by the terms of the regulation itself. The renewed licences have the force of statutory contracts expressly made under the delegated powers of the Governor in Council and are expressed to be subject to the regulations.
In some instances Mr Warrick represents licence holders who (by virtue of dealings with the licences) are the successors to some original licensee in 1997. For present purposes nothing turns on the fact that some of the present licensees have acquired their licences by purchase upon the faith of the 1997 regulatory system.
By virtue of this system the plaintiff (and each of the other 27 licence holders whom he represents) holds a statutory licence coupled with an interest in the reach - namely a right (analogous to that which under the general law is called a profit a prendre) to capture and take away fish for sale. Licences are subject to conditions imposed by the Director of Fisheries and the use of fishing equipment is thereby controlled. Flexibility is provided by the Director’s power to vary licence conditions but the licensee (if aggrieved) has the protection of a right of appeal to the District Court (Administrative and Disciplinary Division).
The nature of a statutory commercial fishing licensing scheme was described in Harper v Minister for Sea Fisheries (1989) 168 CLR 314 at 325 in the following terms:
“…What was formerly in the public domain is converted into the exclusive but controlled preserve of those who hold licences. The right of commercial exploitation of a public resource for personal profit has become a privilege confined to those who hold commercial licences. This privilege can be compared to a profit a prendre. In truth, however, it is an entitlement of a new kind created as part of a system for preserving a limited public natural resource in a society which is coming to recognize that, in so far as such resources are concerned, to fail to protect may destroy and to preserve the right of everyone to take what he or she will may eventually deprive that right of all content.”
(Per Mason CJ, Deane and Gaudron JJ).
And at 335:
“…A fee paid to obtain such a privilege is analogous to the price of a profit a prendre; it is a charge for the acquisition of a right akin to property. Such a fee may be distinguished from a fee exacted for a licence merely to do some act which is otherwise prohibited (for example, a fee for a licence to sell liquor) where there is no resource to which a right of access is obtained by payment of the fee.”
(Per Brennan J with Dawson, Toohey and McHugh JJ in agreement).
In Pennington v McGovern (1987) 45 SASR 27 a Full Court reviewed the nature of renewable and transferable annual licences under the Fisheries Act. The Court held that such licences constitute a valuable right of property and not merely some inalienable personal right. Despite the fact that annual licence renewal is subject to the consent of the Director of Fisheries the Court did not regard this to be a factor bearing upon the right of property which could be traded. In Kelly v Kelly (1990) 92 ALR 74 at 78 the High Court took this a step further by upholding the nature of the asset as disposable property notwithstanding that there may be certain personal requirements to be observed by the licence holder. In Lukin Enterprises v Director of Fisheries (1986) 42 SASR 463 the Court again applied principles of property law to the grant of a fisheries licence in holding that the Crown as grantor was not at liberty to derogate from its grant.
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.
By virtue of a political compact enabling the formation of government in February 2002 following the last general State election, the incoming present Government committed itself to banning the use of gill nets immediately in the Murray Riverine corridor and further obligated itself to phasing out the commercial fishery of native species in the river within 12 months. [The actual terms of the compact are set out in Part 2 of these reasons].
Following the disallowance of Regulation No 128 of 2002 made on 20 June 2002 (which banned gill and bait nets as from 30 June 2002), the Governor in Council made a regulation No 187 of 2002 dated 26 September 2002 taking effect on that day so as to remove “mesh net gill net and bait net” from the list of approved devices in the fishery. A further regulation No 193 of 2002 made on 17 October 2002 and with effect from 1 July 2003 removed “callop and Murray cod” from the list of fish which constitute the fishery. These regulations implement the political compact.
Some will argue that the changes will provide better opportunities for recreational fishers; others may justify the changes upon the basis of conservation of the resource. Evidence has been given as to how the poachers may benefit from the changes.
In current drought conditions and with very little flow in the River commercial fishers (according to the evidence) rely very heavily upon gill nets (rather than drum nets which are used when the fish are active). The number of such nets which may be set are endorsed as a condition upon the licence; Mr Warrick’s licence endorsements entitle him at any one time to use 50 “fishing devices” of which 30 may be gill nets. Murray cod and callop in terms of value are the principal species targeted in the river fishery. The Government describes its actions as “phasing out” commercial fishing in its present form on the river and replacing it with a more limited fishery. In practical terms, by prohibiting the use of gill and bait nets and then protecting the most valuable fish the Government has effectively made it uneconomic to continue to fish. Mr Warrick himself has stopped fishing.
Murray cod in particular is regarded as an icon. Both cod and callop are rarely made available in Adelaide. The fish which are very oily are prized in the Eastern States by the Asian community. I am told that one fish could be worth $5000 if sold to Hong Kong. These river fish are to China what Port Lincoln tuna has become to Japan.
On 7 June 2002 the Minister of Fisheries gave notice to the licence holders of the Government’s plan to restructure the river fishery by abolition of the reach system and introducing a new form of non-transferable licence in the fishery as from 30 June 2003. The plaintiff relies upon that inadequate notice and its aftermath as evidence of wrongful interference by the Government with the rights of quiet enjoyment to be implied in the grant of a fishery licence in respect of a reach and giving rise to a damages claim for breach of contract.
Government has offered ex gratia compensation but Mr Warrick and those whom he represents regard the offer as inadequate. In round terms the Government has provided an estimated $2.91 million as a compensation package (including disturbance) for all licence holders. Upon the figures provided by the plaintiff’s accounting expert an amount estimated at about $7.5 million (not including compensation for disturbance) might be more realistic. Having refused the Government’s offer Mr Warrick seeks to establish the invalidity of the variation of the Regulations or alternatively claims damages for breach of contract. I have discussed this last-mentioned claim in these reasons but I have decided to reserve that issue to be dealt with separately as a claim for breach of the implied covenant for quiet enjoyment which attaches to the licence.
In 1997 following an agreement between the Minister and the licence holders the river fishery was reconstituted as a fishery principally for callop (golden perch) and Murray cod. The evidence shows that these species represent about 85 per cent of value of recent catches although bream and European carp and yabbies represent about 64 per cent by weight. The Departmental records show that the annual catch of a commercial fisher using gill nets might be as high as $117,500 and with the average at $48,500. Without access to gill nets and to callop and cod it might be expected that the average annual catch in the fishery would reduce to about $2,400.
I acknowledge the supremacy of Parliament and its ability (upon whichever terms it may consider appropriate) to satisfy the political compact which the South Australian Government has accepted; that is not in question. The substantial point at issue (which I have identified) concerns the power of the Governor in Council to vary regulations so as to deprive licence holders of valuable property rights without adequate notice or without a legal right to secure fair compensation. The licences themselves remain intact but only as bare shells because the fishers are being denied their accustomed tools of trade and the fishery itself is about to be substantially dismantled. I am required to determine in the first instance whether the variations of the regulations are valid but other points have also been raised.
In terms of my abovementioned order dated 23 December 2002 the common questions to be determined as between the Government and the licence holders are:
(1)Whether the decision of the Minister communicated to the licensees on 7 June 2002 (as to the phasing out of commercial fishing by changes to the regulations) should be quashed.
(2)Whether the abovementioned regulations (No 187 and 193 of 2002) are invalid.
(3)Whether Mr Warrick and those whom he represents are entitled to a licence authorising the use of gill nets.
(4)In the alternative whether Mr Warrick and those whom he represents are entitled to damages against the defendant for breach of contract or otherwise.
It appears that the Government has been placed in an unenviable position as a result of the political compact and its implementation by the passage of the amending regulations. On the one hand the Government has a responsibility to conserve public funds but on the other hand recognises a need to provide some relief to the displaced licence holders. However, there is no legal mechanism in place to determine what is fair compensation. As the licence holders dispute the validity of the amending regulations and reject the adequacy of the ex gratia offers of compensation it is necessary for the court to determine the rights of the parties.
Whilst I have been able to reach a decision in the case based upon narrow grounds which involve the application of the principles of statutory construction to a set of facts which are not controversial, I recognise the existence of some difficult issues in the background with which I have not been required to grapple. The law of fisheries is based upon ancient sources some of which, arguably, have no application in Australia because some rights “never made the journey from England.” (see Yanner v Eaton (1999) 201 CLR par 27). I have treated the river as a non-tidal navigable river in respect of which the origin of a public fishing right (if it exists) is far from clear; nevertheless public access to the river for the purposes of fishing seems to be assumed and regulated in the Fisheries Regulations.
Part 2 The Government’s Political Compact with the Member for Hammond

Following the general State election in February 2002 Mr Rann (who subsequently was commissioned as Premier and now leads the South Australian Government) entered into a written compact with Mr Lewis (independent Member for Hammond) to secure his parliamentary support in the House of Assembly for a government which was then to be formed. Mr Lewis’ electorate includes Murray Bridge and other river towns; he formerly represented the electorate of Ridley before an electoral boundaries redistribution and it was as the Member for Ridley that on 11 April 1997 the then Minister for Primary Industries (Mr Kerin) informed Mr Lewis of arrangements which were being put in place by the Government of the day for the restructure of the commercial river fishery. (An extract from that letter is contained in Part 4 of my judgment).
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. The point of view appears to be much the same as I described in Dighton v South Australia (2000) 78 SASR 1 (see Part 12 of these reasons) with respect to the fishery in tidal waters of Upper Spencer Gulf. However, I should observe that the evidence in Dighton is not now before me and I make my present decision only on the present evidence. No question has been raised with respect to indigenous fishing. The case has been argued upon the footing that all lawful unlicensed river fishing is to be described as “recreational”. In fact this will include those who rely upon fishing to supplement their own table irrespective of the sporting or recreational aspect of the activity.
Mr Warrick represents a point of view which emphasises the economic and other benefits to the community associated with professional river fishing. I am not concerned to weigh or assess the opposing points of view of the professional and the recreational fishing lobbies nor is it for me to judge the strength of the groundswell to which I have referred.
The political compact is a six page document headed “Peter Lewis’ Compact for Good Government.” Its expressed aim:
“…is to provide for stable, open and accountable government, which works productively for the people of South Australia.”
At p 4 of the compact under the heading “Requirements by Peter Lewis for the Electorate of Hammond” it appears that Mr Rann agreed to a number of proposals which followed including an agreement:
“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).”
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 conservation 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.
It is argued for example that gill nets have a detrimental effect in terms of “by product” which is inadvertently caught and not released. So far as commercial fishing operations are concerned a memorandum dated 3 April 2002 from Acting Director of Fisheries Policy to the Minister for Agriculture Food and Fisheries regarding the use of gill nets in the River Murray notes the opposition of the Mid Murray Council concerning the use of gill nets. By way of comment the Acting Director says:
“DISCUSSION
As I have previously advised, gillnets are considered to be a highly size (and species) selective fishing method, if used by professional operators. However, as with all commercial fishing methods, there is some level (not quantified) of interaction between gillnets and wildlife species such as diving birds, water rats and tortoises. The highly publicised isolated events documenting large numbers of native water birds trapped in gillnets in the River Murray have resulted from unlicensed fishers using illegal nets.
It should be noted that the use of gillnets, and commercial fishing for native freshwater fish species in general, is inconsistent with the national approach that has been adopted for native freshwater fisheries management across the Murray-Darling Basin.
The installation of water flow control mechanisms throughout the River Murray and Lower Lakes and Coorong (the lock and barrage network), has had a far greater impact on native fish passage and migration than the use of commercial gill-nets. However, gillnets are considered to be the most effective fishing method used to catch the key species in the fishery (Murray cod, callop, bony bream and carp) - this is particularly true during periods of low river flow, as is regularly the case.
The assertion that native fish stocks and protected species may become extinct through the continued use of gill-nets is not evidence-based and is not supported by the recent SARDI stock assessment report for the key target species, Murray cod. This report classified Murray cod as being ‘fully fished’, which by definition infers that the species is being fished at close to optimum sustainable levels, and that additional fishing pressure, beyond current levels, could lead to overfishing.
The suggestion that regional economies would be enhanced by removing gillnets (because of increased tourism due to the improved recreational fishing opportunities) may be true in the long-term (potentially up to 10 years), if this action were accompanied by a native fish restocking program and a range of activities to address other key impacts on the health of native fish populations (eg flow regulation, barriers to fish passage, water extraction, pollution, agricultural run-off and salinity control). Such a program would ideally be aimed more broadly at overall riverine environmental rehabilitation and be consistent with the range of national initiatives being undertaken in this area.
Resource valuation methods must be improved before well-informed decisions can be made by Government’s in relation to determining appropriate resource allocations between the commercial and recreational sectors, and the broader community. This complicates the issue, rather than preventing Government’s from making resource allocation decisions.”
That view is supported by the scientific evidence called in the case. However, Mr Pierce (whose evidence is discussed in Part 5) questions the concept of a “national approach” to fishing in the river. He points out that this extensive river system is a series of eco-systems. The one unifying feature (emerging from his evidence and the Departmental files) is the advantage which might be gained from a common system of taxation of recreational fishers.
At the recent State election (February 2002) the present Government had no specific policy as now relevant upon the topic which gives rise to the present action. I mention this because a briefing paper prepared for the use of the present Minister of Fisheries suggested that the proposed changes were the implementation of something which the new government had adopted as policy before the State election. That assertion is incorrect and a line has been drawn through that paragraph of the briefing paper. The assertion should not be attributed to the Minister.
The political compact spells out political objects but with respect to the River Murray Fishery does not particularise the method to be adopted to carry the compact into execution. The latter is left as a matter for government decision. Moreover, the compact does not deal with the question of compensation. Nevertheless, the inevitability of payment of compensation appears to have been accepted by the Government and its committees. On 22 May 2002 the Corporate Executive Director (of Fisheries) advised his Minister on reasonableness of river fishery compensation estimates and reported that:
“NSW and Victoria have restructured a number of inland and inshore fisheries in recent years. It was demonstrated in NSW and Victoria that ‘due process’ must be followed including independent assessment of licence value to avoid judicial review in the Courts.
SA is using the experience gained in these States to develop a structural adjustment package and a reasonable offer to fishers that minimises the risk of litigation.
Victoria used a Structural Adjustment Committee comprised of recreational and commercial fishers under tight terms of reference to determine a fair and reasonable ‘offer’ based on independent economic assessments. This strategy was important in avoiding wholesale litigation and also formed the basis of argument against fishers who chose to litigate.
Not until independent economic assessments are completed will PIRSA be in a position to finally determine the cost of the restructure. PIRSA will endeavour to keep the final cost to the minimum possible, consistent with minimising litigation risk, which could be very costly.”
On 7 June 2002 the Minister held a meeting with the licence holders in the Fishery and explained that the compact with Mr Lewis had altered the timeframe (10 years) previously recommended by the Parliamentary ERD Committee for the removal of commercial fishing.
The Minister provided each licence holder with a memorandum which now forms the basis of the plaintiff’s application to the Court for relief by way of certiorari. The memorandum made the following points:
“1 Proposed Restructure Plan
1.1The use of gill nets in the river fishery to be prohibited by regulation from 1 July 2002.
1.2The fishery to continue to be managed pursuant to the Scheme of Management (River Fishery) Regulations 1991 until 30 June 2003.
1.3An application for licence renewal for 2002/03 will be offered to existing licence holders. A licence fee will be applicable for 2002/03.
1.4The selling and transfer of these licences will not be approved.
1.5The Scheme of Management (River Fishery) Regulations 1991 to be revoked on 30 June 2003.
1.6A new scheme of management and licences will be introduced principally for the taking of European carp, redfin, and other non-native species, and may include bony bream and yabbies.
2Proposed new Scheme of Management for 2003/04
2.1A new scheme of management for commercial fishing in the River Murray will be introduced on 1 July 2003. Proposed management arrangements will be developed through consultation with the Inland Fisheries Management Committee, and need to be consistent with the national management strategies for the River Murray.
2.2Permitted devices may include rod and line, hand line, yabbie pot, shrimp trap, hoop/drop net and fyke net. The use of hauling nets may be considered.
2.3The reach system of management will not apply, and commercial fishing may be permitted throughout the River system, excluding sanctuaries, protected waters and other specified areas.
2.4A limited number of licences will be offered prior to 1 July 2003 initially to those persons who are holders of a river fishery licence under the existing scheme of management at the date of offer.
2.5These licences will not be transferable.
3Adjustment Assistance
3.1The Government is prepared to make a fair and reasonable ex gratia financial offer to licence holders who elect to exit the fishery.”
….”
The parties are at difference as to what (in practical terms) constitutes “fair and reasonable” compensation. I am not concerned to assess compensation or to determine the principles but only to determine whether the plaintiff has rights at law or whether he is dependent upon government grace and favour (if indeed the steps taken by the government are within power).
The evidence before me does not disclose what may have been discussed between Mr Rann and Mr Lewis in terms of compensation to the licensed fishers. There is some indirect evidence in terms of correspondence from the plaintiff’s solicitor to suggest that Mr Lewis may have been supportive of the need for compensation. I do not know one way or the other. It does not matter in terms of the issues which I have to decide. However, it should not be inferred that Mr Lewis was insensitive to the plight of the plaintiff and the other commercial fishers in the river fishery.
Part 3 The Reach System
Since the early days of settlement commercial fishing in the inland waters of the Murray River in South Australia has been based on the “reach” system whereby a licensed fisher exercises a right in gross to catch and carry away for trade all fish belonging to that fishery. The reach system (which was formalised in 1923) provides to an individual an exclusive right of professional fishing in a particular place in respect of which no other person has any corresponding right. This right is based upon a grant of a statutory licence as discussed in Parts 6 and 7 of these reasons. Currently the reaches vary in length from 2 km to 10 km.
Although the Fisheries Act makes no specific provision authorising recreational angling, the regulations are drawn upon the assumption that the public will resort to the River for the purpose of unlicensed non-commercial fishing. The fishing regulations are expressed as a series of prohibitions or negative stipulations giving rise to offences and with some provision for registration or licensing of gear. The unlicensed fishers (as the regulations refer to them) are restricted in terms of daily bag and boat limits and in their lawful fishing gear and practices as compared with their commercial counterparts. The right of the public to fish at common law depends upon the water being tidal. The right of the public is co-extensive with and depends upon the limit of the prima facie right of the Crown to the soil covered by the tidal water. This does not apply to the river fishing reaches as I have discussed below.
The advantages of the reach system (which I am told does not apply in other parts of Australia) are (i) that the commercial fishers are not competing with each other in the same water and (ii) the licence holder has an inducement to conserve his reach.
The scientific evidence before me shows that if a commercial fisher were to over fish his reach he would damage his own future catches because the fish despite their migratory habits tend to stay in the same area in sufficient numbers for there to be a direct link between the returns available from a reach and its management history. The compulsory fishing records returned by the commercial fishers to SARDI provide accurate scientific evidence which is particularly useful to river management. However, to value a reach by reference solely to its recent catch record would be inappropriate and have the potential to lead to a skewed outcome. If value of recent catch were the sole criterion for valuation, a reach which recently had been fully exploited in terms of fishing effort would be worth more than a reach in which the fisher had taken a more conservative approach in terms of fishing effort in order to build upon the fish stocks. Logically the reach which has been managed so as to produce a lower catch return in the immediate past might arguably have the greater value (assuming all other factors to be equal).
There is no evidence before me of over fishing and I am not now required to assess values. However, the scientific evidence (along with a number of other criticisms) serves to demonstrate that the ex gratia offers of compensation made to Mr Warrick (based on the results of recent fishing effort) do not appear to be based on a principled approach.
Owing to the unique system of reach operation in South Australia caution must be exercised in any process of comparison with fishery management in other States; the valuation of licences in the river fishery will bring to account the peculiarity of the system and the particular advantages enjoyed by the 28 licence holders. There is some evidence before me as to the substantial sums of money which have changed hands upon sale of licences but the evidence of Mr Pierce suggests that there is a potential for commercial exploitation in the licences which as yet is largely untapped. Mr Pierce explained how an entrepreneur might harness a commercial fishing licence with a profitable business which caters for fishing tourists within a particular reach.
I have expressed the opinion that the reach system provides an exclusive right to the commercial licence holders. In testing this proposition it is useful to compare the position of the licence holders with the recreational or unlicensed fishers as members of the public in the non-tidal navigable Murray River.
The position of the general public is not well known. SA & HS Moore in The History and Law of Fisheries (1903) at 97-98 say:
“…In non-tidal waters, viz, in rivers and lakes, ponds, canals, and artificial watercourses, the public have not, and cannot acquire by any means, a right to fish as members of the public. The right of the public depends wholly upon the existence of tidal influence at the spot in question. Notwithstanding that the river or water may have been navigable and navigated from time immemorial, if it is not also tidal there can be no right in the public to fish, not even when it is proved that they have so fished from a period beyond the time of living memory.
There was formerly an erroneous impression that where a river was a public navigable river, although not tidal, the public had a prima facie right to fish. It was, in fact, contended that the navigability of the river imparted the public right, and that it was not necessary that the river should be also tidal. In one case, the claim of the public to fish was made as to the river Itchen, a non-tidal river made navigable by means of a canal system. The point has been definitely decided, and is summed up by Grove B, and Huddleston B, thus: “The distinction is clear upon the whole current of authorities in this country and in Ireland that when a river is navigable and tidal the public have a right to fish there as well as to navigate it; but that when it is navigable but not tidal, no such right exists.”
It is therefore now settled law that the right of the public to fish depends upon the water being tidal and not comprised within the limits of any several fishery…..”
(In South Australia it is not possible to presume long user - see per Debelle J in Golding v Tanner (1991) 56 SASR 482).
In Attorney General for British Columbia v Attorney General for Canada [1914] AC 153 at 173 the Privy Council held that according to English law fishing in navigable non-tidal waters is the subject of property and must have an owner and cannot be vested in the public generally; the owner of the soil (or solum) has the title to the fishery.
The Fisheries Act provides for the establishment of fisheries and the licensing of persons for the purpose of trade or business to engage in a relevant fishing activity. The Act then provides for the prescription of classes of fishing activity which constitute an offence. In this way the Fishing Regulations list all the things which an unlicensed person may not do. Therefore Schedule 1 to the Fisheries (General) Regulations 2000 includes cl 118 “the taking of fish by an unlicensed person by using a device other than a rod and line, hand line, shrimp net, shrimp trap, yabbie pot or shrimp net in a fishing reach.”

The exclusion of rod and line from the prescribed activity in Schedule 1 does not provide any legal right such as is conferred by a commercial licence in respect of a particular reach. All that one can say is that the use of rod and line by unlicensed persons is not prohibited in a fishing reach of the mainstream Murray River. The commercial fishers on the other hand each can point to a legal right based on a grant of licence to fish a nominated stretch of river.
(For the purposes of these reasons I have relied upon the Regulations as published at 7 November 2002).
The Crown Solicitor has drawn to my attention a collection of essays- “Who owns the Murray” (edited by Davis and Moore-1985); an article by Mr MG Butler Deputy Surveyor General Department of Lands, Adelaide deserves particular mention as the author draws together a collection of historical facts which are not otherwise easily accessible. A policy can be traced back to Colonel Light’s instructions from the Colonisation Commissioners that a road reserve should be maintained along the river bank. There have been some significant departures from this policy but it seems implicit in the Commissioners’ instructions that the navigable river should not be alienated and this policy has been maintained. There has been only limited scope for the operation of the rule that the riparian owner is presumed to have the fishery to midstream where it is adjacent to his or her abutting land (Coulson and Forbes on Waters and Land Drainage 6^th ed at 438). However, the common law position has been overtaken by statute.
The Harbors and Navigation Act 1993 (see s 15(a) and s 4(1)) vests in the Minister all “subjacent land” ie “land underlying navigable waters within the jurisdiction”. By a proclamation under the Harbors Act 1913 the bed and river banks to normal water level of the Murray are declared to be a harbour. By proclamations under the Control of Waters Act 1919 the Murray River waters upstream from the Goolwa barrages are subject to that Act (which was replaced in 1976 by the Water Resources Act).
In Tuna Boat Owners v Development Assessment Commission (2000) 77 SASR 369 at 372 Doyle CJ applied the provisions of the Harbors and Navigation Act to identify property in the Minister but it is unnecessary to discuss the nature of the title which thus “vested” (cf Commonwealth v Yarmirr (2001) 75 ALJR 1582 par 70 but dealing with the sea bed).
In my opinion unlicensed persons’ access to the river for fishing appears to be justified only by historical acquiescence by the Crown (in whom the river is vested) supported by the implications arising from the Fisheries Regulations. Licensed persons on the other hand are able to rely upon a specific grant of rights in respect of a nominated reach by virtue of the terms of the statutory licence.
Part 4 Industry Agreement 1997
The plaintiff relies upon an agreement made during 1997 between the Minister for Primary Industries and the plaintiff association on behalf of its members. The terms of the agreement appear from a Minute of a Cabinet decision dated 7 April 1997 which is in evidence. By letter dated 11 April 1997 the Minister informed Mr Peter Lewis MP (then the Member for Ridley) of the plan for restructuring of the commercial river fishery; the letter describes the plan in the following terms:
“1an arrangement that will reduce the number of reaches from 39 to between 25 and 30 through a buy-back scheme financed by licence holders in the river fishery;
2.an opportunity for licence holders who remain in the fishery to relocate and restructure their reaches to achieve an improvement in the location and viability of commercial river reaches, while ensuring that the aggregate length of commercial reaches is maintained at approximately 200 km (35%) of the main river and that individual reaches can be no more than 12 km;
3.the adoption of a code of practice developed by the Riverland Fishermen’s Association;
4.subject to the achievement of the above, the transferability of river fishery licences;
5.an allocation of fishing gear to licence holders that, while reducing the total amount of commercial fishing gear endorsements, provides flexibility and greater effectiveness for both commercial fishing operations and for the management of fishing effort;
6.an opportunity for commercial licence holders to harvest native fish in backwaters where, currently, they are restricted to taking non-native species only, and to use more efficient gear to take non-native species in the backwaters;
7.additional fish species (including small native fish for aquarium trade) to be taken by licence holders for commercial purposes; and
8.the protection of seven native fish species.”
(Points numbered 1, 4, 5 and 7 are those to which I direct particular attention).
The proposal to restructure the river fishery had been developed by an industry committee which included representatives of Government and professional fishers and others. The Government approval was conveyed by Mr Jon Presser to a meeting of representatives of government and the industry on 22 April 1997 at the Grenfell Centre and the meeting was informed of a media release which was to be issued on Sunday 27 April 1997 to the Sunday Mail. That release entitled “Major revamp of the River Murray Fishery” accurately summarises the arrangements. An extract from that release as now relevant reads:
“The plan has been developed over the past two years in conjunction with the 39 commercial fishing licence holders who operate on the River Murray between Wellington at the mouth of the River and the NSW border. It has been developed jointly with Primary Industries SA Fisheries, the South Australian Research and Development Institute, the Riverland Fisheries Association and the South Australian Recreational Fishing Advisory Council.
Commercial fishing covers about 207 kilometres of the river or about a third of the total length of the River Murray in South Australia. The main commercial fish are: callop, Murray cod, European carp, redfin perch, bony bream and yabbies.
Mr Kerin said the plan would have spin offs for sustainable long-term management of the fishery and better research information on fish populations along the length of the River in South Australia.
Key features of the plan are to:
—      Reduce the number of licence holders on the River
—      Allow the transfer of individual licences following a satisfactory reduction in the number of licence holders. This is the last fishery in SA to obtain transferability.
—      Provide a more even distribution of commercial activity along the river
—      Provide an opportunity for improved commercial viability.
—      Protect a further seven classes of fish to safeguard broodstock while research and management allow the fish stocks to increase.
—      Introduce a yabby bag limit of 200 yabbies per person per day for recreational fishers. This will ensure that everyone has access to a resource that is sustainable in the long term.
It is proposed to initially reduce the number of commercial licences in the fishery through a buyout, or “voluntary separation” scheme; relocating at least two licences and providing an opportunity for remaining licence holders to restructure their reach holdings.
“Transfer for individual licences will enable the industry to have an asset with a commercial value that can be bought and sold at a price to be determined by market conditions.”
“It will allow holders of the fishing reaches a solid business base with a secure future so they can adequately invest in upgrading their operations,” Mr Kerin said.
“On behalf of the State Government I want co commend the industry which has taken a comprehensive look at the River Murray commercial fishery and come up with long-term solutions to ensure a sustained future.”
“Certain reaches of the river are allocated to individual licences. Most of these are concentrated in the Riverland area between Morgan and the New South Wales border. The reduction in licences will enable some relocation of reaches, with some expected to be below Morgan.
“We see some real benefits for the environmental management of the fishery and the River itself - commercial operators on the River will report data on catch size and by-catch which will have a valuable role in providing additional information for scientific research.”
“This new management framework will in particular be able to provide additional information on fish populations in the lower reaches of the Murray,” Mr Kerin said.
“Under the proposed changes greater flexibility over the type of gear that may be used will be introduced. This will enable fishers to set the most appropriate gear to suit river conditions. This is expected to result in a reduction of commercial fishing gear on the river.”
(Emphasis added).
The mention by the Minister of the Riverland Fisheries Association and Riverland Fishermen’s Association are references to the plaintiff association.
In accordance with this proposal the existing 39 licence holders completed an agreement between themselves whereby 30 licence holders “bought out” the licences of the remaining 9 licence holders who for a monetary consideration relinquished their licences. The funds for the “buy out” were provided by the 30 licence holders who as a result secured for themselves a valuable asset as represented by the licence. It appears that the arrangements between the commercial fishers were settled during August 1997. The South Australian Government completed its part of the bargain when the Governor in Council on 7 August 1997 promulgated Regulation No 181 of 1997 made and taking effect that day as an amendment to the Scheme of Management (River Fishery) Regulations 1991 published in the Gazette of 27 June 1991 p 2197 as varied.
The amended regulations reflect the requirements of the industry agreement. Regulation 10A(1) provides:
“10A (1)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.”
Schedule 1 prescribes the fish for the fishery - including Murray cod and golden perch (callop) in accordance with the terms of the Cabinet minute.
The terms of the Fisheries Act provide for annual licence renewals and provide for the imposition of conditions on licences - subject to District Court review upon application by the licensee. By virtue of cl 7 of the Regulation 181 of 1997 existing licences (as at 7 August 1997) were continued as licences deemed to have been issued in the reconstituted fishery. The terms endorsed on the licences as to unitisation of fishing gear completed the essentials of the scheme. The system of unitisation is discussed in Part 6 of these reasons. A Code of Practice which had been developed by the fishers was also introduced.
The 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.
(The plaintiff’s contention that his licence should be treated as “permanent” is dealt with in Part 7(b) of these reasons).
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.
This case may therefore be reduced to a consideration of the extent to which the plaintiff is entitled to protection under his licence.
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.
Section 41 of the Fisheries Act provides that a person must not engage in a fishing activity of a prescribed class. At all relevant times the Fisheries (General) Regulations has contained a provision (cl 5) that:
“For the purposes of section 41 of the Act, each class of fishing activity described in Schedule 1 is a fishing activity of a prescribed class.”
Although this structure has not changed the terms of Schedule 1 have been altered. As at July 1996 Schedule 1 included the following prohibition:
“92The taking of fish by a licensed person in the waters of the River Murray proper by using any device other than a rod and line, hand line, yabbie pot, shrimp trap, hoop net, drum net, set line, mesh net, gill net, bait net or drop net.
As at March 2001 cl 92 had become cl 103; for present purposes nothing turns upon this revision of the regulations. However, it is cl 103 which the Governor in Council has purported to vary by Regulation No 187 of 2002 as abovementioned. In my opinion gill nets and bait nets as authorised fishing devices were an essential part of the 1997 deal (subject to the power of the District Court to deal with complaints as to the exercise of the Director’s powers in varying licence conditions). The system thereby had built into it a degree of flexibility.
I note the following definitions in the Fisheries (General)Regulations of 2000 (which have not changed over the years):
““set net” means any static mesh net
“River Murray proper” means all the waters of the River Murray and its anabranches, tributaries, lagoons and lakes situated upstream of the punt which services the main road joining the township of Wellington to the township of Wellington East;
“mesh net” means a net designed and constructed to enmesh fish
“gill net” means a length of mesh net supported along its length by a rope attached to the top and bottom of the mesh and designed and constructed to be used as a static device to enmesh fish.”
Bait net is not defined but the parties agree that conventionally a bait net is a small mesh net. References in the General Regulations to a “fishing reach” are references to the river fishery reaches.
Part 5 The scientific evidence
Extensive written scientific reports and surveys were supplemented by affidavit and oral evidence given by Mr Brian Pierce (formerly of SARDI and SA Fisheries Dept) and Dr Peter Gehrke of CSIRO. Both scientists have impressive qualifications and are highly experienced. Differing use of terminology by the two witnesses needed explanation but when explored there was no essential difference between their evidence as relevant to this case.
Mr Pierce has an intimate knowledge of the South Australian river fishery. He has been responsible as senior scientist for inland fisheries research and management for about 12 years as from 1989. He is now practising as a private consultant to the industry. Mr Pierce has been responsible for overseeing the collection and assessment of the scientific data from the fishery. His evidence demonstrates the danger in attempting to apply or interpret the data without a scientific background coupled with an historical knowledge of the management practices. Mr Pierce seems to be specially qualified to deal with the issues in the case and I accept his evidence.
Dr Gehrke of CSIRO is able to speak of the whole Murray-Darling system but he does not have the same intimate knowledge of the South Australian Fishery which Mr Pierce possesses. It has been a valuable exercise to test Mr Pierce’s evidence and his scientific propositions against Dr Gehrke’s opinions.
I conclude that the management of the Murray Darling system is a complex exercise. For example, the release of a large volume of cold water from the Hume Weir (whatever its other perceived benefits) had a disastrous effect on some of the fish population. However, I am satisfied that this case is not immediately concerned with issues affecting the sustainability of the fishery. Nevertheless, the evidence of Mr Pierce is crucial in establishing how gill nets, drum nets and other fishing devices are used and the scientific reason which underlies the various fishing regulations. I find that in current conditions of “non flow” in the river, commercial fishing would be uneconomical without gill nets.
Mr Pierce gave evidence:
“QWhat is the impact on a commercial fisherman’s business of being deprived of the use of gill nets only.
ASome people would think they’ll just rely on drum nets, but since I pointed out that drought cycles are a longer term cycle as we’re seeing now in South Australia and elsewhere, the reality is it means your business becomes effectively unviable for years at a time.”
Mr Pierce was also able to give evidence as to the differences between the South Australian reach system and the New South Wales commercial river fishing system before it was abandoned. His evidence would suggest that the fair value attaching to some South Australian licences could fairly be viewed as worth a great deal more than the government is currently prepared to pay by way of compensation. Mr Pierce is not a valuer and I do not regard him as qualified to express an opinion on value (although he was allowed to do so). He is well qualified to explain elements which might reasonably affect value in terms of the state of the river, the way in which a reach is maintained and the value of fish in the various markets in the eastern states and overseas. He gave some interesting evidence as to the exploitation of a fishing licence in terms of tourist potential and evidence as to the highest and best use of a licence. The usefulness of his evidence is to confirm what is otherwise apparent namely that the overall amount of the Government’s offer of “ex gratia compensation” is not realistic and looked at from the point of view of the industry as a whole is obviously grossly inadequate. The offer has been accepted by two fishers but their individual personal circumstances are not before me.
Mr Pierce mentioned the activities of a number of people who actively worked through the media (as is their right) to promote opposition to commercial fishing. There appears to be a lobby working towards the advancement of the recreational interests. Mr Pierce described the closure of the New South Wales commercial fishery as a political decision to justify the implementation of a taxation regime on recreational fisheries.
He rejected the need for a “national strategy” as relevant to fishing although he observed that more generally the significant problems of the Murray-Darling system could not be solved without the support of the upstream states. He singled out the significant over-usage of the water resource in New South Wales. Mr Pierce explained that the Murray system is really a series of small eco-systems which need their own management. There is of course a need to improve the quality of water which reaches South Australia but the national approach which is required in this behalf does not (in Mr Pierce’s opinion) extend to commercial fishing in South Australia.

The thrust of Mr Pierce’s evidence is that there is no evidence (apart from the effect of some public opinion) to support the closure of the commercial fishery; he considers that the Government has made virtue out of a necessity in the sense that the Government is bound to uphold its compact with Mr Lewis. I do not understand the Crown really to be disputing that the Government’s decision is a political decision based upon the need to secure Mr Lewis’ support. According to Mr Pierce it may be the poachers and not the recreational fishers who will be the beneficiaries of the change in policy. Mr Pierce referred to “the unfortunate number of members of the poaching community who found it difficult to undertake their activities on the 35 per cent of the river which had commercial presence”. (However, there is some evidence in the papers of increased Departmental efforts in terms of enforcement of Fisheries Act compliance).
Mr Pierce also mentioned the scientific value of the compulsory fishing returns and also voluntary assistance provided by licensed fishers. The scientific value of what he has been able to develop in this regard is considerable.
Mr Pierce gave extensive evidence as to his studies of the various species of fish in the Fishery and the relationship between the gill net specifications and the management aims. The evidence given by Mr Pierce and Dr Gehrke deserves study by anyone interested in management of the river fishery. However, I have found it unnecessary to further discuss the scientific evidence.
I note that bait hooks may be effective under conditions of good water quality and clarity. These conditions do not currently exist.
The river is currently suffering from lack of environmental flows, impediments to natural fish passage, cold water pollution, siltation, salinity and agricultural pollution all of which are contributing factors to the reduced productivity of freshwater fish stocks.
The only reason (upon the evidence) which I can discern for the banning of gill and bait netting and commercial exploration of cod and callop is that these prohibitions are steps towards the closure of the fishery which may be justified by reference to social values which some people associate with recreational pursuits.
Part 6 The Form of the Plaintiff’s licence
The licence is an annual licence valid from the date of payment of the licence fee until the following 30 June. In terms of the Scheme of Management (River Fishery) Regulations it is renewable and transferable subject to the consent of the Director of Fisheries. Mr Warrick has not yet renewed his licence for the current year but he is entitled to do so. Some other licensees have renewed. The parties are in agreement that nothing turns on this point.
It appears from a schedule and accompanying diagram attached to the form of licence provided to me that parts of the River Murray have been divided into 30 geographical sections or numbered reaches and that each licence holder is restricted in his fishing activities to one designated reach together with access with other licence holders to certain common backwaters.
It is apparent from the form of the licence and having regard to the history of South Australian river fishery that the licence is intended to provide the licence holder with exclusive rights in respect of the commercial fishery limited to the designated reach to the exclusion of all other licence holders. The Crown Solicitor contends that the form of the licence does nothing more than restrict the plaintiff to his nominated reach but I consider that this is too narrow a view of the effect of the schedule which defines the reaches of each of the 30 licence holders.
For the current year the licence records on its face the description and number of each of the licence holder’s registered fishing devices. Until 1 July 2002 the Department was not concerned to make this endorsement. A memorandum dated 27 March 2002 from Acting Director Fisheries Policy to the Minister explains what has happened:
“Unitisation of devices in River fishery Licences
The system of “unitisation” of device use, which has been achieved solely through the modification of licence conditions since 1997, means that the fishers have a choice of which devices they can use at any one time to comprise a “scalefish fishing unit”.
The only further restriction on this choice is provided by Licence Condition 233, which states that “no more than 30 set nets may be used at any one time”.
The Fisheries (General) Regulations 2000 also provide in Schedule 1 Clause 22, that it is an offence for a licence holder in any fishery to use a device (other than a rod and line or handline) that is not registered under Regulation 9.
Regulation 9 is critical to the management of devices as an input control, as it contains the powers of the Director of Fisheries (nb not the Minister) to register or refuse to register devices.
PIRSA Fisheries has had recent Crown advice regarding the interpretation of Regulation 9, in connection with other actions to remove registered devices from licence holders in other fisheries, in line with policy decisions.
The list of devices that are registered with respect to a licence is administratively done by listing the devices on the front of the fishing licence, as renewals of device registrations and licences occur simultaneously on 1 July each year.
One difficulty with the River Fishery is that since unitisation there has been no record of registration of particular devices, contrary to the intention of the Regulations.
In effect, there has been an acceptance by PIRSA Fisheries that whatever devices that are being used are deemed to be registered, as opposed to the usual practice of the fisher effectively applying for registration of certain devices which are listed on his renewal application form (which is generated every year by the Licensing Section).
Therefore, in order to properly regulate the use of devices in the River Fishery including the power to refuse to register gill nets, the registration of devices will need to be re-instated strictly in accordance with Regulation 9.
For the coming licence year, renewal application forms will need to ask the fishers to identify which devices they wish to be registered for commercial use for the 2002/3 licence period.”
The plaintiff’s licence for the year ended 30 June 2002 (as now relevant) sets out the following licence conditions:
“231Except as otherwise provided by condition 232, the licence holder may not use more than 50 scalefish fishing gear units and/or 40 crustacean fishing gear units, at any one time.
For the purposes of this condition, a “scalefish fishing unit” is either a drum net; bait net; set net or 10 set line hooks and a “crustacean fishing unit” is either a yabbie pot; shrimp trap’ hoop net or drop net.
232When using a hauling net, the licence holder may use no more than 49 scalefish fishing gear units.
233No more than 30 set nets may be used at any one time.
234The Licence Holder;
A     may only conduct fishing activities pursuant to this licence in the reaches of the River Murray designated as follows:
(i)the waters of the River Murray referred to as reach number R39 bounded by [a series of map references or coordinates here follows].
(ii)all other waters of the River Murray (collectively referred to as “Common Backwaters” excluding the following areas:
those waters included in the Reach areas bounded by the coordinates specified in Part 1 of the Schedule to this licence; and
the closed waters of the mainstream of the River Murray specified in Part 3 of the Schedule to this licence.
B.     in the waters of the Common Backwaters:
(i)must check gill nets every 24 hours; and
(ii)must prior to undertaking a fishing activity in these waters, notify PIRSA Fisheries and Aquaculture on (1800 065 522) and provide the following information: the name of the person making the call and the licence number; and
the date on which the fishing takes place.
C.     must not use gill nets with a mesh size of less than 100 millimetres and a length of more than 50 metres.”
(There is some loose wording in licence conditions 231 and 233 which refer to “set nets” whereas condition 234 refers to gill nets; these references are intended to be synonymous according to a departmental memorandum. No point has been taken with respect to this clerical discrepancy).
Part 7 The Rights attached to the Plaintiff’s Licence
(a) A licence coupled with an interest
The common law draws a distinction between a mere licence (whether gratuitous or contractual) and a licence coupled with an interest. In the absence of a proprietary interest in the property to which the licence extends no relief by way of injunction is usually available for premature licence termination. A special protection is provided to those with a proprietary interest. A licence to enter, capture and take away fish or fowl or produce is called a profit a prendre and provides a sufficient interest to enable the licence holder to protection against premature termination.
Dawson and Pearce on Licences Relating to the Occupation or Use of Land at 68 deal with the creation of licences coupled with an interest and at 103 the authors deal with the termination of that type of licence. At 90 Dawson and Pearce discuss the revocation of a licence in breach of contract. This last-mentioned topic is developed by Meagher Gummow and Lehane on Equity (4th ed) at par 21-240 in a discussion of the remedies available to a licensee for wrongful termination of a licence. It is sufficient now to note the special protection afforded to licence holders who can demonstrate a proprietary interest. Megarry and Wade on Real Property (4^th ed) explains this at 779 as:
“A licence may be coupled with some proprietary interest in other property. Thus the right to enter another man’s land to hunt and take away the deer killed, or to enter and cut down a tree and take it away, involves two things, namely, a licence to enter the land and the grant of an interest (a profit a prendre) in the deer or tree.”
And: (at 822)
“A profit a prendre has been described as “a right to take something off another person’s land”. This it is, but not all such rights are profits. If the right is to be a profit, the thing taken must be either part of the land, eg, minerals or crops, or the wild animals existing on it; and the thing taken must at the time of taking be susceptible of ownership. A right to “hawk, hunt, fish and fowl may thus exist as a profit, for this gives the right to take creatures living on the soil which, when killed, are capable of being owned.”
The relevance of this discussion is to assist me in identifying the “nature of the subject matter” [see Part 11 of these reasons] and the reason why it may be presumed that a special recognition and protection will be intended for the rights arising under a licensing scheme which establishes this sort of property.
(b) Termination of licence
The licences issued in this fishery are renewable and transferable and are coupled with an interest (as above discussed). Accordingly the plaintiff contends that his licence is of a permanent nature. I reject this contention. In my opinion having regard to the fact that the licence is coupled with an interest (of a nature as described in Harper v The Minister (supra)) the proper conclusion is that the licence is terminable upon reasonable notice. I am not now required to decide what notice is reasonable; however, I observe that a Parliamentary ERD Committee had in mind a period of 10 years (or less) in its recommendation but I do not know the reasons which led to the nomination of that period.
In contracts of continuing duration there is a preparedness for the Court to find a right of termination upon reasonable notice (see Crediton Gas v Crediton Urban District Council [1928] Ch 447 and Martin Baker Aircraft v Canadian Flight Equipment [1955] 2 QB 556) The cases are conveniently collected in The Power Co v Gore District Council [1997] 1 NZLR 537 at 550-552.
Even if the agreement expressly provides that it is to operate “in perpetuity” the Court may still be prepared to read this down to being terminable upon reasonable notice; in Stafford Area Health Authority v South Staffordshire Waterworks Co [1978] 1 WLR 1387 where by reason of a change in economic factors between 1929 and 1975 an agreement providing a fixed price for water “at all times hereafter” could be brought to an end. However, it remains a question to be decided upon a case by case basis as to the meaning of the agreement and the intention of the parties. There are undoubtedly cases such as Llanelly Railway and Dock Co v London and North Western Railway Co (1875) LR7HL 550 where an agreement which was indefinite and unlimited in its terms was held to be perpetual. In this last-mentioned case I note the statement of Lord Selborne at 567:
“ an agreement de futuro, extending over a tract of time which, on the face of the instrument, is indefinite and unlimited, must (in general) throw upon any one alleging that it is not perpetual, the burden of proving that allegation, either from the nature of the subject, or from some rule of law applicable thereto.…”
I note that Lord Selborne was prepared to refer to “the whole circumstances under which the agreement was made and its particular terms” to support his prima facie conclusion.
In the present case the concession granted to the plaintiff fetters the availability of the resource as a public asset. Upon public interest grounds there should be implied some reasonable opportunity to terminate; that approach would be consistent with the general law as to a profit a prendre that a licence granted on terms of payment under a contract is prima facie revocable on such notice as the nature of the case requires (see Gale on Easements 15^th ed at 61).
The licences in the present case are renewable annually but the term is otherwise indefinite. The licence does not say that it is “permanent” although long term security was envisaged in the Minister’s press release in 1997. The parties can hardly have intended that the licensees’ rights would be potentially confined to the short term after they had laid out capital for the buyout scheme. On the other hand I do not accept that the licences were granted in perpetuity.
In my opinion the plaintiff’s licence may be terminated by the Crown upon reasonable notice and the extent of such notice will be referable to the nature of the transaction and the subject matter.
On 7 June 2002 at Loxton the Minister advised the plaintiff (and other licence holders) of the Government’s intentions to phase out the fishery in two stages and to discontinue the reach system. Later, ex gratia compensation was offered. In my opinion in the case of Mr Warrick and others in like position the notice was insufficient and the licence will not come to an end on 30 June 2003.
It may be a matter for another day to decide what notice is reasonable. Upon the limited information available in the affidavits I consider that the circumstances must require notice of some years. I would need to hear argument and allow further evidence to be called if I were called upon to decide the precise period of notice. I have sufficient evidence to determine that the period of notice given is far less than enough. However although his licence is capable of termination, Mr Warrick’s interest should be recognised as a valuable property right of which he will be effectively deprived (although leaving the “shell” of the licence intact) if the variations to the regulations are valid.
(c) Quiet Enjoyment and Non-Derogation from the Grant
It is implicit in a contractual licence coupled with an interest that the licensor will not derogate from the grant and will permit the licensee to have quiet enjoyment. There is a mutuality in the relationship between these two rights. The point is succinctly made by Dawson and Pearce - Licences relating to the occupation or use of land at 60:
“If in the contractual licence both the implied or express provision for quiet enjoyment (and title) and also the principle of non-derogation apply it is necessary to consider their mutual relationship. Since the arguments in favour both of making such an implication and of submitting that the principle of non-derogation does apply in the case of licences were squarely based (inter alia) on what was submitted to be the analogous situation in regard to leases it follows that the distinction between the two areas as it has been worked out in regard to leases ought to apply in the case of licences. That distinction has been stated thus by the learned authors of Woodfall.
‘The distinction between them would seem to be that the obligation not to derogate from grant is concerned with use of the retained part which makes the demised premises less fit for the purposes for which they were let whereas the covenant for quiet enjoyment is concerned with the enjoyment of the premises.’”
The principle of non-derogation in relation to a fishing licence was discussed by a Full Court in Lukin Enterprises v Director of Fisheries (supra). (It was there suggested that the difficulties facing the Executive in terms of derogation might be overcome by a change to the regulations; however, the court did not address the problem created by s 39 of the Acts Interpretation Act).
It may be debatable whether a particular situation should be treated as giving rise to a derogation from the grant or a breach of the implied covenant for quiet enjoyment.
In the present case the two impugned regulations do not stand alone. The Government has also made statements of policy which generally speaking do not give rise to any legal liability. It seems that the principles regarding an implied covenant for quiet enjoyment are applicable to both leases and licences (subject, of course, to a recognition as to the essential differences between those legal relationships); a bare licence obtains no relevant protection because in such case the licensor merely disables himself from suing in trespass until a reasonable time after revoking the licence. Dawson and Pearce at 57-58 provides a useful summary:
“Detailed consideration as to what constitutes a breach in a lease of the covenant for quiet enjoyment and title, is given in the standard textbooks on landlord and tenant to which the reader is referred. It is submitted that what amounts to a breach of such a covenant in a lease, in the context of licences, amounts to a breach of the similar provision (either express or implied) in the licence.
In outline the position is therefore that the licensor will be liable for his acts and the acts of those persons claiming under him which fall within the ambit of the particular provision, in accordance with the proposition laid down by Fry LJ, delivering the judgment of the Court of Appeal in Sanderson v Berwick-on-Tweed Corpn (1884) 13 QBD 547 at 551:
‘…it appears to us to be in every case a question of fact whether the quiet enjoyment of land has or has not been interrupted; and where the ordinary and lawful enjoyment of the demised land is substantially interfered with by the acts of the lessor, or those lawfully claiming under him, the covenant appears to us to be broken, although neither the title to the land nor the possession of the land may be otherwise affected’.”
Megarry and Wade on Real Property (4^th ed) at 678 point out that the covenant for quiet enjoyment will extend to many of the acts which might be construed as a derogation from the grant; acts not amounting to a breach of the covenant for quiet enjoyment (and not amounting to a tort) may be restrained as being in derogation of the grant.
The covenant for quiet enjoyment is to be implied from the mere relationship of the parties (see Budd-Scott v Daniell [1902] 2 KB 351 at 358 per Lord Alverstone CJ.

It seems to me that the pith and substance of the original regulations must be examined in the light of the enabling Act in order to identify the features of those regulations which provide some indication as to the extent of the intended exercise of power in light of the nature of the subject matter. It may then be possible to say that the further exercise of power (to revoke or vary the regulatory arrangements) is “inappropriate”. This somewhat vague test is drawn from an English Parliamentary discussion paper as mentioned below although “repugnancy” may provide a test which is better known (cf Pearce and Argument on Delegated Legislation in Australia 2^nd ed Ch 19).
An English White Paper is reproduced by Bennion on Statutory Interpretation (4^th ed) in an appendix at 1189; the Paper discusses the operation of the Interpretation Act (Imp) s 32(3) (quoted above) and comments that:
“…there are certain instruments made under statutory powers for which a power to revoke or amend is unnecessary, and others for which such a power would be inappropriate. Two of the enactments mentioned above (1975 c 71 s 123(4) and c 77 s 53(4)) exclude particular orders from the power to revoke or amend. There are other instances, for example compulsory purchase orders, where power to revoke or amend is never conferred.”
This quotation provides examples (as abovementioned) drawn from the 1975 English Statutes where Parliament has expressly seen fit to exclude a power of revocation or variation from a delegation of statutory power. In one case it was considered inappropriate that the timetable associated with the successive procedural steps for compulsory acquisition should be altered after the various dates had been once set by statutory instrument. In another case Parliament withheld any power to dissolve an industrial tribunal when once it had been established by statutory instrument. The reasons for withholding of power are self evident in each of those examples but in the absence of an express denial of power it might have been expected that the condition contained in English Interpretation Act s 32(3) arguably would operate. The White Paper regards a power to revoke or amend as being “inappropriate” in certain situations. Although that may not be particularly helpful as a test it may be that the test for the application of the proviso cannot be better expressed. “Repugnancy” is a concept well known to the law and the application of that concept may provide a useful test. The ability provided for a court to read down the further exercise of power “subject to certain restrictions” may alleviate the draconian result of treating the power as fully exhausted if once exercised “finally in the first instance”.
Evatt on the Royal Prerogative (at 236) suggests that the power to appoint Queen’s Counsel is probably exercised as a prerogative incidental to the administration of justice. If therefore that office were abolished by regulation made under the Legal Practitioners Act 1981 or the Supreme Court Act 1935 (assuming such a power in one of those Acts) it seems to me that the proviso to s 39 of the Acts Interpretation Act would operate to prevent the subsequent revocation of the regulation and the reinstatement of the prerogative power. In such instance the prerogative having been subsumed in the regulation with the acquiescence of the Governor that power (at least upon one view) is forever cancelled and surrendered (see Evatt at 43-44 and 135). In my opinion this is an example where “the nature of the subject matter” will dictate that the regulatory power should be exercised exhaustively or “finally” on only one occasion.
In my opinion the terms of s 37 and s 39 of the South Australian Acts Interpretation Act are intended to complement each other. Indeed, until 1986 they were formally linked in the drafting. “The nature of the act or thing” referred to in s 37 equates (mutatis mutandis) with the nature of the subject matter dealt with in s 39.
In each of the examples to which I have referred (whether in the White Paper or my own hypothetical example) the reason for excluding a power of variation or revocation is different although in each case the exclusion will operate in circumstances where some repugnancy can be identified. Ultimately the question will arise as to the indicated “intention” as mentioned in the proviso to s 39. Each case will turn on its own facts. It will be relevant in this respect to examine the earlier regulation (which is to be revoked or varied) in the light of the enabling statute. The ultimate question may become an enquiry as to whether the earlier exercise of regulatory power operates to exhaust or pro tanto to reduce the availability of the power for the future. It seems to me that this application of s 39 fits in with the principles of executive necessity and the principle in Camberwell City Council (supra) which I have already discussed.
Earlier in this part I have traced the legislative history of Acts Interpretation Act s 39. For the sake of completeness I also draw attention to s 16(1)(c) of the Acts Interpretation Act (South Australia) which operates as a saving clause to protect accrued rights upon the repeal or amendment of statutory instruments; however in South Australia this clause operates “unless the contrary intention appears”. This section does not assist the present plaintiff because the variations to the impugned regulations in 2002 were clearly intended to affect the accrued rights of the licence holders. The situation would be different in some other places where legislation corresponding to s 16 (abovementioned) does not contain the phrase “unless the contrary intention appears”. Examples are provided by the New South Wales Interpretation Act s 30 and the Queensland Acts Interpretation Act s 20. Thus at least in those two states accrued rights are protected but by a different statutory route from that which is available in South Australia. These differences (together with the peculiar form of the South Australian Act s 39) deserve to be brought to account in any comparison between South Australian legislation and the Interpretation Acts which apply in other jurisdictions.
Part 11 “The Nature of the Subject Matter” and Repugnancy
In a commentary upon the English Interpretation Act 1978 s 14, Bennion says at 226:
“An amending instrument made under a statutory power may produce an alteration which is opposite to, or otherwise different from, the purpose for which the power is conferred. The test is not what alteration is made, but whether the result of the amendment would constitute a lawful exercise of the power if the instrument amended had not existed in its previous form.”
Bennion cites as an example R v Secretary of State for Transport ex parte Richmond-upon-Thames London Borough Council [1994] 1 WLR 74 where, under delegated powers aircraft noise was limited by flight restrictions. It was held that through change in circumstances an amending instrument could be issued to allow an increase in noise levels (ie lesser restrictions) notwithstanding that the purpose of the power was to reduce noise levels. At 88 Laws J said:
“… The Secretary of State must look at all the circumstances which he reasonably perceives as relevant at the time he contemplates exercising the power. Given that there is in place an existing regime created under a previous decision, he may conclude that tighter, or looser, restrictions are required; indeed, he may conclude, though it is no doubt improbable in practice, at least in present conditions, that no restrictions are required at all, and in that case he will discharge the previous order. The point is that a decision imposing lighter restrictions than those previously in force may be made to give effect to the statutory purpose just as surely as one which imposes more stringent measures: the content of any decision will depend upon the Secretary of State’s perception of what is appropriate in the circumstances.”
If this approach were applied to the present situation, it would have the consequence that in amending the regulations the existence of the licence previously issued could be ignored because clearly, licences issued in 1997 could have originally excluded any right to use gill nets or to catch cod or callop.
This raises the essential point of difference between the South Australian Acts Interpretation Act s 39 and the corresponding provisions which apply elsewhere. In South Australia, an additional element has been introduced in that regard is to be had to the “nature of the subject matter”. What does this encompass?
In my opinion (and the present case may turn on this point) the proviso to s 39 enables the nature of the subject matter to be gleaned from sources beyond the context of the enabling act (in this case the Fisheries Act). Applying s 39 of the Acts Interpretation Act it becomes relevant to consider the effect of the regulations which themselves are to be varied insofar as those regulations contain any element which affects the characterisation of the subject matter. In the present case, the “nature of the subject matter” as relevant is an accrued property right arising under the 1997 licence. It seems to me that in determining relevance one must examine the ambit of the intended new regulation and then in relation thereto, to identify all material which might impinge upon the application of s 39 of the Acts Interpretation Act. The provisions of the Fisheries Act will be included in this material but it is not exclusive. The position would be otherwise if in terms of s 39 one were called upon only to have regard to “the terms used in conferring the power” or “the objects of the power” which will be found upon an examination of the enabling Act.
Against the background of these observations, it is now necessary to examine more closely the nature of the subject matter which in the present case is to be affected by the impugned regulations. This will require the Court to bring to account the previous actions of the Executive Government in putting in place a system apparently designed to operate in the long term and with associated property rights. The regulations as in force in August 1997 when considered as a whole package have the hallmark of a scheme whose basic elements were intended to continue to operate indefinitely. The Fisheries Act itself has procedures within itself for dealing with special circumstances. Section 43 empowers the Minister to deal with unforeseen exigencies. Section 37 empowers the Director to vary licence conditions to deal with the vicissitudes (subject to a right of appeal under Fisheries Act s 57). The arrangements do not disable Government but the arrangements give rise to rights of property which under the Fisheries Act are protected by the right of appeal to the District Court. It would be curious if by variation to the regulations the Government could avoid scrutiny by the District Court of the removal of gill nets as available devices. It may be assumed that if a change had been made to the licence conditions an appeal to the District Court would have been likely to succeed; the Departmental advice acknowledges this fact.
I treat the steps taken during 2002 (to prohibit gill netting and the targeting of the principal fish species) as being tantamount to the dismantling of the fishery or steps to this end - as no doubt was intended. The question therefore arises whether the Executive Government is at liberty to impede the fishing operations under the licences in the face of its obligations arising under the licensing scheme until the licences are terminated by proper notice.
I have no doubt that the Executive Government in enacting the impugned regulations has acted in a way so as to frustrate the original purpose for which in the contemplation of both parties - the defendant and the plaintiff - the licence to take fish was granted (see Lyttleton Times Company (supra) per Lord Loreburn). It remains to be seen what are the consequences of these actions.
The “nature of the subject matter” of regulations No 187 of 2002 and No 193 of 2002 must be separately examined although they have some general common characteristics.
No 187 of 2002 bans immediately the use of the recognised and principal fishing device (for current river conditions) namely the gill net and also bans the bait net.
No 193 of 2002 prohibits as from 1 July 2003 the taking of the most valuable fish which constitute the fishery.
Each set of regulations deal with a topic which in practical terms is fundamental to the operation of the fishery. The nature of the subject matter in each case is something which will impinge in a dramatic fashion upon the licences of indefinite duration which were granted by cl 7 of the 1997 Scheme of Management (River Fishery) Regulations. The variations will severely prejudice the normal enjoyment of that which must have been implied by the grant of licences in 1997.
The subject matter of the 1997 arrangements arise out of Paper No 17 dated April 1996 published by Primary Industries South Australia under the authority of Mr Jon Presser of PIRSA on behalf of the River Fishery Working Group. The recommendations in that paper were carried forward into a Management plan of the South Australian river fishery produced as a draft by PIRSA Fisheries in April 1997. The whole scheme including a code of practice and the arrangements for unitisation of gear (including set nets) is clearly set out in these documents. The proposed gear unit system is there described as “a one off adjustment concurrent with the gazetting of the amended Scheme of Management (River Fishery) Regulations”.
(The “one off nature” of the arrangements is important; however, one needs to view the regulatory package as a whole to appreciate the importance of each element of the scheme. By administrative oversight particulars of the gear to be used was not endorsed on the face of the licences until the current year. Nevertheless the conditions of the licence and the reference to “gill nets” makes clear what was always intended).
The present situation is analogous to that which would arise under a mining tenement if the use of picks and shovels were banned and the taking of precious stones later prohibited. In such a case the tenement itself would be left intact but rendered useless.
In my opinion it is incompatible with the fair operation of this system even as it appears on the face of the regulations in force in 1997 that the Governor in Council should be at liberty thereafter to disturb accrued rights by reducing the licences to a mere worthless shell in the exercise of a power to vary the regulations upon which the system is based. To allow this (or to allow officers of government to assert the closure of the fishery) would be to permit disturbance of the quiet enjoyment of business in much the same way as if a landlord had disconnected the normal services or threatened eviction. In my opinion there are therefore indications in the nature of the subject matter of the regulations as in force in 1997 (some of which were re-issued in 2000) that the powers which were in fact exercised during 2002 by the Governor in Council were intended only to be used subject to appropriate restriction. Consideration of “the terms used in conferring the power” and “the objects of the power” do not lead me to a different result.
Arguably it might be contended that the original exercise of power in 1997 was intended to be final but that in my opinion would impose a limitation which goes beyond the approach which commended itself for example to Mason J in Ansett. The Acts Interpretation Act s 39 should be applied so that the government is at liberty to depart from the position in 1997 but only subject to the payment of compensation. Such an outcome strikes a fair balance between the principles discussed by Zelling J in West Lakes Limited v South Australia (supra).
There is a principle of construction that legislation (including delegated legislation) should not be treated as empowering the removal or impairment of a vested property right without compensation unless the legislation contains a clear statement of this intended authority. (This statement is a corollary to the statements of principle by Pearce and Bennion respectively as set out below). In the present case s 39 of the Acts Interpretation Act (by enlivening an implied power in the Fisheries Act) is the source of power for variations to regulations which will take away or restrict the property rights of licensees enjoyed by virtue of earlier legislation. Expressed with a degree of abstraction, the “nature of the subject matter” as now relevant is the accrued vested property right of licence holders and the question is whether there is power to alienate such rights.
Pearce on Statutory Interpretation in Australia (2^nd ed) says at par 111:
“Legislation is presumed not to alienate vested proprietary interests without adequate compensation.
… more interesting because it concerned the validity of delegated legislation was CJ Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400. There Kitto and Owen JJ expressly relied on the presumption to uphold an attack on the validity of a regulation that allowed the Board to retain part of the carcase of an animal slaughtered without payment to the owner of the animal.
….
It thus seems that the courts will be most reluctant to hold that a person is to have a vested proprietary right taken away without compensation. It will probably require a clear statement in the Act to that effect: certainly it will not be implied by the court. It seems clear too that, notwithstanding changes in attitude to public acquisition and ownership of land and other property, the courts are remaining steadfast in their approach..”
Bennion on Statutory Interpretation (4^th ed 2002) in dealing with general principles of interpretation of legislation says at 707:
“Deprivation without compensation An obvious detriment is to take away rights without commensurate compensation. It follows that although the intention to interfere with property or other rights is plain, there may still be a doubt as to whether adequate compensation is intended. A denial of this must be clearly stated.
The common law has always frowned on deprivation without compensation. ‘It is a proper rule of construction not to construe an Act of Parliament as interfering with or injuring persons’ rights without compensation unless one is obliged so to construe it.’ Lord Atkinson said it was a well-recognised canon of construction that ‘an intention to take away the property of a subject without giving him a legal right to compensation for the loss of it is not to be imputed to the legislature unless that intention is expressed in unequivocal terms’. Where a statutory procedure exists for taking away rights with compensation, the court will resist the argument that some other procedure is available for doing the same thing without compensation.
The principle applies both to the rights of an individual and those possessed by the public at large. However it was held that it does not apply to a scheme of rearrangement of public functions whereby property used for those functions is transferred ‘from one defunct public authority to another public authority to be used for the same function.’
The principle applies where rights, even though not taken away, are restricted.”
(London and North-Western Railway Co v Evans [1893] 1 Ch 16 at 27; Yarmouth Corporation v Simmons (1878) 10 Ch D 518 at 527 are cited in support of this last-mentioned proposition).
Greville v Williams (1906) 4 CLR 694 is an example of a case where the Court applied the presumption against alienation of property rights to protect the plaintiff’s public service statutory superannuation entitlements. The principle is not restricted to the protection of vested common law rights. At 703 Griffith CJ said:
“But, before referring to the question of fact, it is important to remember that there is a presumption in all legislation that it is not intended to interfere with vested interests. The legislature of course have plenary power to do so, and can destroy such rights if they please, but it is always taken that they have not done so unless their intention to do so is shown by express words. Now, as I have shown, the rights given by the Act of 1884 to contributors to the Superannuation Account, of whom the plaintiff is one, to receive a pension on the abolition of their office is not interfered with by the later legislation. That provision remains, therefore, as part of the law.”

In Durham Holdings Pty Ltd v State of New South Wales (2001) 75 ALJR 501 at 506 Kirby J said:
“…within the Australian legal system, courts will presume that legislation (federal, State or Territory), or subordinate laws made under such legislation, do not amend the common law to derogate from important rights enjoyed under that law, except by provisions expressed in clear language. This principle is sometimes described as a “presumption” or as a “[rule] of construction” or as an “intention” which is attributed to the lawmaker. It rests on the imputed aspiration of the law to attain, and not to deny, basic precepts of justice. The presumption, rule of construction or imputed intention certainly applies to the taking of property without compensation. This has been acknowledged by this Court in respect both of legislation and delegated lawmaking. Indeed, it has been suggested that “the general rule has added force in its application to common law principles respecting property rights.””
If there is a presumption which militates against the taking of property without compensation, it must follow that this presumption will flow to the interpretation of the enabling legislation which authorises the taking of the property. In the present case that authority is derived from s 39 of the Acts Interpretation Act. I would be slow to conclude that s 39 is intended to provide regulatory power where its exercise will involve the interference with vested rights of property but without fair compensation.
In the present case there is no entitlement to compensation and there is no constitutional principle which prevents the cancellation of accrued rights without compensation. The question at issue is to determine what was achieved by the previous exercise of delegated regulation making power and what authority is provided by s 39 of the Acts Interpretation Act to change that situation so as to take away or restrict vested rights without compensation. I consider that the earlier regulations as in force in 1997 were intended to provide indefinitely for the future and that the licences granted in the reconstituted fishery by the regulations themselves were intended to continue to have the support of the scheme which was introduced as a package in 1997. I consider that it is a fair balance to conclude that if power is now to be exercised on the authority of the Fisheries Act in conjunction with s 39 of the Acts Interpretation Act to take away accrued property rights, that power should be subject to a restriction providing for proper compensation. Clause 7 of the Scheme of Management (River Fishery) Regulations 1991 as amended in 1997 to replace entirely those previously in force expressly provided that existing licences would continue to be in force as licences in the reconstituted fishery. The regulations of their own force operated as a grant of a licence coupled with an interest; a vested property right is thus identified which attracts the abovementioned presumption when construing cl 7 of the 1997 regulations; that vested right arises out of a statutory licence which does not operate as a fetter upon the power of executive government (see Part 9 of this judgment). The exercise of power in 1997 reduces the power thereafter available to a successor in government.
I conclude that the attempted exercise of power in this case is invalid because appropriate compensation has not been provided. Repugnancy as previously discussed has been established as between the 1997 regulations (including the general regulations republished in 2000) and the regulations of the year 2002 which are now under challenge.
Part 12 Dighton v South Australia
The facts of the present case bear some similarities to those in Dighton v State of South Australia [2000] 78 SASR 1. Counsel for Mr Warrick now relies upon a number of arguments which I rejected in Dighton. In that case the plaintiff, a commercial fisherman operating from Port Augusta was unsuccessful in his claim that the Fisheries Act was being administered in a way which had undue regard to sectional interests. Following the closure of Northern Spencer Gulf to commercial netting Mr Dighton contended that the regulatory scheme of fishing had been varied by the government for the purpose of advancing tourism and to enhance recreational fishing opportunities in northern Spencer Gulf in a way which discriminated against his legitimate interests as a commercial licence holder. Mr Dighton complained that the Minister was influenced mainly by the strong position taken by the City Council of Port Augusta and had acquiesced in the wishes being promoted in an electorate neighbouring that which the Minister had been elected to represent. The crucial difference between the present case and Dighton is that Mr Warrick holds a fishing licence in accordance with the exclusive river fishery reach system in a non-tidal navigable river and Mr Warrick is able to claim the benefit of an agreement with the government as to the future management of the fishery which is reflected in the terms of the 1997 amendments to the Scheme of Management (River Fishery) Regulations providing long term security of tenure as licensee of a river reach. However, some arguments now put forward on behalf of Mr Warrick mirror (mutatis mutandis) the unsuccessful arguments relied upon by Mr Dighton. I have not been persuaded to change the views which I expressed in Dighton and which I now adopt. To this extent the arguments of Mr Warrick fail. I have recorded in this judgment my rejection of such arguments but I have not considered it necessary to repeat the detailed analysis which I undertook in Dighton.
The strength of Mr Warrick’s case lies in features which are not to be found in Dighton. Mr Warrick is able to point to variation to the regulations which have the effect of phasing out commercial fishing in the fishery as presently constituted. Although the Fisheries (General) Regulations were varied in Dighton, the “nature of the subject” was different from the present for the purposes of the application of the proviso to s 39 of the Acts Interpretation Act. In any event neither in Dighton nor in Lukin was the limitation provided by s 39 considered.
It is often assumed that the implied power to revoke and vary regulations is as wide as the original regulation making power. In South Australia this is clearly not the case.
Part 13 Disposal of the Plaintiff’s claims
In my opinion the plaintiff should succeed upon his claims in the following respects:
(a)that by reason of the limitation of power contained in s 39 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.
In all other respects it is my view that the plaintiff’s arguments and claims fail. As I have already observed these further arguments were generally the subject of my detailed analysis in Dighton. However, it is necessary that I should briefly dispose of each of such claims set out hereunder.
(1) Certiorari
The plaintiff seeks an order in the nature of certiorari based on a supposed decision made by the Minister for Fisheries and communicated to the plaintiff on 7 June 2002 at a meeting at Loxton (identified in Part 2 of these reasons). On this occasion the Minister supplied each licence holder with a document entitled “a proposal for the restructure of the Commercial River Fishery”. It does not mention the political compact with Mr Lewis (which was already well known) but it explained in detail the government’s “decision” to implement its proposal by variation of regulations and to dismantle the fishery in its present form as at 1 July 2003.
The document supplied on 7 June 2002 and the decision leading to its issue does not represent a decision which is susceptible to judicial review. It is a mere announcement of policy. If it were implemented, it would require amendments to regulations and other exercise of statutory powers, the validity of which could be tested before a court. The mere expression of policy in terms of the oral and written announcement on 7 June 2002 does not of its own force affect the plaintiff’s rights.
The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580). The proposal of the Minister has of itself no legal effect and carries no legal consequences.
There is no requirement that the Governor in Council take the proposal into account. It is mere policy (Hot Holding Pty Ltd v Creasy (1996) 185 CLR 149 at 164-165). Accordingly, certiorari will not lie.
The Crown Solicitor made a submission in these terms and I consider that he has accurately summarised the position.
(Nevertheless the events of 7 June 2002 and the subsequent publication of invalid regulations will be relevant to a decision as to whether the right of quiet enjoyment under the licences has been breached).
(2) 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.
Motive in this context is concerned with the political reasons (which are not necessarily “party-political”) which historically led to the legislative action.
In Bromley London Borough Council v Greater London Council & Anor [1983] 1 AC 768 at 828 Lord Diplock said: (see Bennion on Statutory Interpretation 4^th ed at 419:)
“The extent to which public passenger transport ought to be treated as a social service to persons in the area in which it operated, rather than as a quasi-business enterprise which ought to do its best to pay its own way out of the fares it charged to passengers, was then, as it still is, a matter of political controversy. Into the merits of that controversy your Lordships, in your judicial capacity, must scrupulously refrain from entering; but recognition that it existed is, in my view, of considerable relevance to a proper understanding of the language of the Act.”
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.
The effect of the decision of the High Court in Toohey is to enable the court to enquire into the motives of the Crown involving the clandestine abuse of power to put in place regulations which on their face appeared to be regular. In such a case the court may be able to discern a purpose which is alien to the power. It seems to me that this is an example of the court being willing to admit extrinsic evidence as an aid to construction in determining the real purpose. However, the onus of proof of unauthorised purpose lies on those who made the assertion (see Toohey at 193); one should not underestimate the difficult task confronting someone who alleges that a majority or all of the Members of Executive Council acted for a purpose other than that for which the power was granted (see Toohey per Aickin J at 253). I note that in Jones v Metropolitan Meat Industry Board (1925) 37 CLR 252 Isaacs J drew a distinction between delegated legislation made to achieve an express purpose and delegated legislation made under a more general legislation making power. In the latter case it may be more difficult to prove absence of proper purpose (see at 263).
In some cases absence of proper purpose will be patent upon the face of the impugned instrument; in Brownells v Ironmongers Board (1950) 81 CLR 108 it was evident upon the face of the determination that the Wages Board was attempting to go beyond its assigned power by imposing burdensome overtime rates of pay in order to regulate shopping hours (an unauthorised purpose). On the other hand in Toohey no-one who examined the town planning declaration standing alone would be able to discern that the real purpose of the Executive act was to defeat a native title claim with which the Town Planning legislation was not concerned.
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.
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.
(3) Unreasonableness
The plaintiff complains that the variation of the regulations is unreasonable. He has been deprived of the use of his principal and usual fishing equipment and he is about to be prevented from harvesting the principal species in the fishery.
Section 72 of the Fisheries Act provides for the Governor to make regulations as are contemplated by the Act.
Section 41 contemplates that regulations will be made prescribing classes of fishing activities. “Prescribed” means by a statutory instrument made under the Act. (Acts Interpretation Act, s 4).
Section 46 provides for the Governor to 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 task of the Court is to determine whether the variation of the Regulations lies within the powers which I have recited.
The making of the Regulation does not give rise to issues of natural justice. The validity of the Regulation does not depend on prior consultation. (see Dighton at 17; Comptroller-General of Customs v Kawasaki Motors (1991) 103 ALR 661 at 682).
Where the relevant power is a purposive power to make delegated legislation and the power is exercised by the Governor in Executive Council, the relevant test is whether the exercise of the power is reasonably proportionate or reasonably adapted to the statutory purpose.
Williams v City of Melbourne Corporation (1933) 49 CLR 142, 155
Coulter v The Queen (1988) 164 CLR 350, 357
South Australia v Tanner & Ors (1989) 166 CLR 161, 164-165, 168, 178-179, 181
Sievers v South Australia (1985) 39 SASR 241, 246-247, 251-253
Minister for Primary Industries and Ors v Lawrie (1995) 64 SASR 359, 376-377
Minister For Resources & Anor v Dover Fisheries (1993) 116 ALR 54, 63-67, 71-75
While the Regulations are made pursuant to sections 41 and 72 of the Act, the purpose of the Regulations are as contemplated by section 46 of the Act. The Regulations are for the conservation, enhancement and management of the living resources of the waters of the River Murray and for the regulation of fishing. On its face the regulation comes within the purpose. The regulation banning the use of gill nets limits the devices which holders of licences may use in taking fish in the River Murray. The regulations which ban the taking of Murray cod and callop limit the species of fish which may be taken by licence holders. It is within the “true nature and purposes of the [regulation making] power” and is reasonably proportionate to those purposes. (Williams v City of Melbourne (supra) at 155; South Australia v Tanner (supra) 164, 167).
The test is not whether the court thinks the regulation to be inexpedient or misguided, or unfair; the test is whether the regulation is so lacking in reasonable proportionality as not to be a real exercise of the power (South Australia v Tanner (supra) at 168 and 176; Minister for Primary Industries v Lawrie (supra) at 359).If the effect of the regulation were so capricious and irrational that no reasonable person could have devised them, then they would not be reasonable, proportionate and valid (Minister for Resources v Dover Fisheries (1993) ALR 54 at 64, Minister for Primary Industries and Energy v Austral Fisheries (1993) 112 ALR 211 at 229.
These are the defendant’s submissions and I uphold them.
Contrary to my opinion, it may be arguable that the regulations are unreasonable, but it seems to me that the plaintiff’s complaint can be better accommodated by the restriction upon power contained in s 39 of the Acts Interpretation Act.
Part 14 Orders
There will be declarations:
(1)that in the absence of provision for fair and reasonable compensation for the licence holders the regulations No 187 of 2002 and 193 of 2002 are invalid.
(2)that continuing licensees in the river fishery remain entitled to quiet enjoyment of their respective fishing reaches until licences are terminated by reasonable notice.
I will hear the parties as to further orders which may be required.

[2003] SASC 38

14 February 2003