Wren Fishing Pty Ltd v State of Queensland
[2022] QCA 13
•11 February 2022
SUPREME COURT OF QUEENSLAND
CITATION:
Wren Fishing Pty Ltd v State of Queensland & Anor [2022] QCA 13
PARTIES:
WREN FISHING PTY LTD
ACN 128 977 015
(appellant)
v
STATE OF QUEENSLAND
(first respondent)
THE MINISTER FOR THE DEPARTMENT OF AGRICULTURE AND FISHERIES, QUEENSLAND
(second respondent)FILE NO/S:
Appeal No 13601 of 2020
SC No 510 of 2020DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Cairns – [2020] QSC 363 (Henry J)DELIVERED ON:
11 February 2022
DELIVERED AT:
Brisbane
HEARING DATE:
27 August 2021
JUDGES:
Holmes CJ and Bond JA and North J
ORDER:
Appeal dismissed with costs.
CATCHWORDS:
STATUTES – SUBORDINATE LEGISLATION – VALIDITY – ULTRA VIRES GENERALLY – where s 136 of sch 4 of the Fisheries (Commercial Fisheries) Regulation 2019 (Qld) prohibited the use of a net in the “N12” area during a specified period – where the appellant is licenced to fish by the use of a set mesh net in the “N12” area – where s 136 of sch 4 of the Fisheries (Commercial Fisheries) Regulation 2019 (Qld) prevents the appellant from conducting the form of commercial fishing in the “N12” area for which it is licensed – whether s 136 of sch 4 of the Fisheries (Commercial Fisheries) Regulation 2019 (Qld) was wholly beyond power for the State to regulate
STATUTES – SUBORDINATE LEGISLATION – VALIDITY – UNREASONABLENESS – OTHER PARTICULAR CASES – where s 136 of sch 4 of the Fisheries (Commercial Fisheries) Regulation 2019 (Qld) prohibited the use of a net in the “N12” area during a specified period – where the appellant is licenced to fish by the use of a set mesh net in the “N12” area – where s 136 of sch 4 of the Fisheries (Commercial Fisheries) Regulation 2019 (Qld) prevents the appellant from conducting the form of commercial fishing in the “N12” area for which it is licensed – whether s 136 of sch 4 of the Fisheries (Commercial Fisheries) Regulation 2019 (Qld) is invalid as an unreasonable and disproportionate exercise of power
CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – INCONSISTENCY OF LAWS (CONSTITUTION, S 109) – GENERALLY – where s 136 of sch 4 of the Fisheries (Commercial Fisheries) Regulation 2019 (Qld) prohibited the use of a net in the “N12” area during a specified period – where the appellant is licenced to fish by the use of a set mesh net in the “N12” area – where s 136 of sch 4 of the Fisheries (Commercial Fisheries) Regulation 2019 (Qld) prevents the appellant from conducting the form of commercial fishing in the “N12” area for which it is licensed – whether s 136 of sch 4 of the Fisheries (Commercial Fisheries) Regulation 2019 (Qld) is invalid based on an inconsistency between s 136 and Commonwealth fishing laws
Coastal Waters (State Powers) Act 1980 (Cth), s 5
Coastal Waters (State Title) Act 1980 (Cth)
Fisheries (Commercial Fisheries) Regulation 2019 (Qld), sch 4 s 136
Fisheries Act 1952 (Cth)
Fisheries Act 1994 (Qld), s 11, s 82, s 139, s 223
Fisheries Declaration 2019 (Qld)
Fisheries Management Act 1991 (Cth), s 10
Fisheries Management Regulations 2019 (Cth)
Petroleum (Submerged Lands) Act 1967 (Cth)
Seas and Submerged Lands Act 1973 (Cth)Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340; [1989] HCA 49, applied
COUNSEL:
D J Campbell QC, with B A Hall, for the appellant
J M Horton QC, with B McMillan, for the respondentSOLICITORS:
Atherton Tablelands Law for the appellant
Crown Solicitor for the respondent
HOLMES CJ: I agree with the reasons of Bond JA and with the order his Honour proposes.
BOND JA:
Introduction
The appellant carries on a commercial fishing business in Queensland pursuant to a licence issued under the Fisheries (Commercial Fisheries) Regulation 2019 (Qld) (the Commercial Fisheries Regulation).
Amongst other things, the licence authorises the appellant to fish by the use of a set mesh net in an area in the Gulf of Carpentaria referred to as the “Net fishery (Gulf of Carpentaria no. 3)”, the fishery symbol for which is “N12”. It is convenient to refer to that area as the “the N12 area”.
The appellant challenges the validity of s 136 of Schedule 4 Part 8 the Commercial Fisheries Regulation, the effect of which is to state a restriction on a licence holder’s authorisation to take fish in the fishery, namely that the licence holder may not fish in the N12 area during the period from 7 October to 31 January each year. The result is that during that period, s 136 prevents the appellant from conducting the form of commercial fishing in the N12 area for which it is licensed.
The appellant submitted that s 136 was wholly beyond the power for the State to regulate or, alternatively, s 136 was beyond power because s 136 was an unreasonable and disproportionate exercise of power. The appellant also argued s 136 was invalid based on an alleged inconsistency between s 136 and Commonwealth fishing laws.[1]
[1]The Court was informed that the appellant had given the requisite notices pursuant to s 78B of the Judiciary Act 1903 (Cth) and that none of the Attorneys-General had expressed an intention to intervene or to seek removal of the cause to the High Court.
For reasons which follow, the arguments must fail and the appeal should be dismissed, with costs.
The sources of the State’s legislative power
Broadly speaking, the N12 area is an area encompassing all tidal waters in the Gulf of Carpentaria between the line which is seven nautical miles from the low water mark of the Queensland coastline and a particularised line which extends 25 nautical miles seaward into the Gulf.[2] It covers waters which are beyond the outer limits of what are regarded as the coastal waters of the State.
[2]Section 132 of Part 8 of Schedule 4 of the Regulations specifies the limits of the N12 area with greater precision by reference to particular points of longitude and latitude.
The approximate location of the N12 area is depicted in the map below.
There are two possible sources of legislative power for the State regulation of fishing in such waters: first, the fundamental power “to make laws for the peace welfare and good government” of the State (see s 2 of the Constitution Act 1867 (Qld)), and, second, the power conferred on the State by the 1980 offshore constitutional settlement and legislation enacted consequent upon that settlement.
As to the former source of power, a State legislature may give valid extra-territorial operation to a State law, so long as there is a sufficient connection with the peace, order and good government of the State: see Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340 at 369 – 373. It was common ground before this Court that, save for the suggested inconsistency with valid Commonwealth legislation, the catching of fish within the N12 area would be regarded as an activity which is so connected with Queensland that appropriate extra-territorial laws could validly be made.
As to the latter source of power, the High Court explained in Port MacDonnell Professional Fishermen's Association Inc v South Australia:
(a)State legislation with respect to fisheries had traditionally controlled fisheries within three nautical miles of the coast. Beyond that territorial sea, the Commonwealth had undoubted power under the express grant by s.51(x) of the Constitution of legislative power with respect to fisheries in Australian waters beyond territorial limits and that power was paramount.
(b)In New South Wales v The Commonwealth (1975) 135 CLR 337, the High Court upheld the validity of the provision of the Seas and Submerged Lands Act 1973 (Cth) declaring and enacting that "the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth" and decided that the boundaries of the States ended at the low-water mark and at the closing lines of bays and gulfs and that these boundaries did not, as had widely been believed, encompass the territorial sea.
(c)After that case was decided, negotiations took place between the Commonwealth and the States which resulted in an offshore constitutional settlement, designed largely to return to the States the jurisdiction and proprietary rights and title which they had previously believed themselves to have over and in the territorial sea and underlying seabed. This was done by the Coastal Waters (State Powers) Act 1980 (Cth) and the Coastal Waters (State Title) Act 1980 (Cth).
The preamble to the Coastal Waters (State Powers) Act 1980 recorded that it was enacted at the request of the States. The operative provision was contained in s 5, which was in these terms:
“5 Legislative powers of States
The legislative powers exercisable from time to time under the constitution of each State extend to the making of:
(a)all such laws of the State as could be made by virtue of those powers if the coastal waters of the State, as extending from time to time, were within the limits of the State, …;
(b)laws of the State having effect in or in relation to waters within the adjacent area in respect of the State but beyond the outer limits of the coastal waters of the State, …; and
(c)laws of the State with respect to fisheries in Australian waters beyond the outer limits of the coastal waters of the State, being laws applying to or in relation to those fisheries only to the extent to which those fisheries are, under an arrangement to which the Commonwealth and the State are parties, to be managed in accordance with the laws of the State.”
Relevant terms in s 5 were defined in ss 3(1) and 4:
“3 Interpretation
(1)In this Act:
adjacent area in respect of the State means, in relation to each State, the area the boundary of which was described under the heading referring to that State in Schedule 2 to the repealed Petroleum (Submerged Lands) Act 1967 as in force immediately before the commencement of this Act.
coastal waters of the State means, in relation to each State:
(a) the part or parts of the territorial sea of Australia that is or are within the adjacent area in respect of the State, other than any part referred to in subsection 4(2); and
(b) any sea that is on the landward side of any part of the territorial sea of Australia and is within the adjacent area in respect of the State but is not within the limits of the State or of a Territory.
…
4Extent of territorial sea and coastal waters
(1)For the purposes of this Act, the limits of the territorial sea of Australia shall be the limits existing from time to time, ascertained consistently with the Seas and Submerged Lands Act 1973 and instruments under that Act and with any agreement (whether made before or after the commencement of this Act) for the time being in force between Australia and another country with respect to the outer limit of a particular part of that territorial sea.
(2)If at any time the breadth of the territorial sea of Australia is determined or declared to be greater than 3 nautical miles, references in this Act to the coastal waters of the State do not include, in relation to any State, any part of the territorial sea of Australia that would not be within the limits of that territorial sea if the breadth of that territorial sea had continued to be 3 nautical miles.”
The Act also expressed a saving provision in these terms:
“7 Savings
Nothing in this Act shall be taken to:
(a)extend the limits of any State;
(b)derogate from any power existing, apart from this Act, to make laws of a State having extra-territorial effect; or
(c)give any force or effect to a provision of a law of a State to the extent of any inconsistency with a law of the Commonwealth or with the Constitution of the Commonwealth of Australia or the Commonwealth of Australia Constitution Act.”
In Port MacDonnell Professional Fishermen's Association Inc. v South Australia, the High Court determined that s 5(c) of the Coastal Waters (State Powers) Act 1980 was a valid law of the Commonwealth within s. 51 (xxxviii) of the Constitution.
Specific power to make the arrangements referred to in s 5(c) of the Coastal Waters (State Powers) Act 1980 was conferred as part of the offshore constitutional settlement, on the Commonwealth, by s 12H(4) of the Fisheries Act 1952 (Cth), inserted as part of Pt IVA in 1980 and, on the States, by their respective Fisheries Acts. The power is presently expressed in the Fisheries Management Act 1991 (Cth) and the Fisheries Act 1994 (Qld).
The relevant provisions of the Commonwealth Act are:
“4 Interpretation
(1)In this Act, unless the contrary intention appears:
…
fishery means a class of activities by way of fishing, including activities identified by reference to all or any of the following:
(a) a species or type of fish;
(b) a description of fish by reference to sex or any other characteristic;
(c) an area of waters or of seabed;
(d) a method of fishing;
(e) a class of boats;
(f) a class of persons;
(g) a purpose of activities.
…
10Operation of certain State and Territory laws
(1)Except as provided by subsections (2) and (3), this Act is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2)Subject to subsection (3), the Parliament intends that this Act is to apply to the exclusion of any law of a State or Territory relating to fish or fishing so far as that law would, but for this Act, apply to:
(a) activities in the [Australian Fishing Zone]; or
…
(3)This Act does not apply to:
…
(c) activities in the [Australian Fishing Zone] to which, because of section 77, this Act does not apply.
71Arrangements with States—Joint Authority to manage
(1)The Commonwealth may make an arrangement with the State or States represented on a Joint Authority that the Joint Authority is to have the management of a particular fishery in waters relevant to that State or to any of those States.
(2)An arrangement with only one State must provide that:
(a) the fishery is to be managed in accordance with the law of the Commonwealth; or
(b) the fishery is to be managed in accordance with the law of the State; or
(c) the fishery is to be managed in accordance with the law of the Commonwealth and the law of the State.
…
72Other arrangements with States
(1)The Commonwealth may make an arrangement with a State with respect to a particular fishery in waters relevant to the State, not being a fishery to which an arrangement under section 71 applies:
(a) that the fishery (being a fishery wholly or partly in the coastal waters of the State) is to be managed in accordance with the law of the Commonwealth; or
(b) that the fishery (being a fishery wholly or partly in waters on the seaward side of the coastal waters of the State) is to be managed in accordance with the law of the State.
…
77Exclusion of this Act (except this Division)
If an arrangement under this Division provides that:
(a)a particular fishery is to be managed in accordance with the law of a State; or
(b)a part of a particular fishery is to be managed in accordance with the law of a State;
this Act, other than this Division, does not apply in relation to that fishery, or that part of the fishery, except in relation to:
(c)foreign boats; and
(d)operations on and from foreign boats; and
(e)persons on foreign boats; and
(ea)e-monitoring by AFMA of fishing-related activity; and
(f)matters that occurred before the arrangement took effect.”
The relevant provisions of the State Act are:
“7Meaning of fishery
Fishery includes activities by way of fishing, including, for example, activities specified by reference to all or any of the following—
(a)a species of fish;
(b)a type of fish by reference to sex, size or age or another characteristic;
(c)an area;
(d)a way of fishing;
(e)a type of boat;
(f)a class of person;
(g)the purpose of an activity;
(h)the effect of the activity on a fish habitat, whether or not the activity involves fishing;
(i)anything else prescribed by regulation.
…
11General application of Act
(1)This Act applies to persons, things, acts and omissions on or in—
(a) land within the limits of the State; and
(b) Queensland waters.
(2)However, this Act does not apply to—
(a) activities to which a Commonwealth law cooperative fishery applies; or
(b) the taking of fish, within the meaning of the Torres Strait Fisheries Act 1984 (Cwlth), for the purposes of a Commonwealth law Torres Strait cooperative fishery; or
(c) the landing in Queensland of fish taken under a Commonwealth fishing concession as mentioned in section 10(2)(c) of the Commonwealth Fisheries Act; or
(d) exclusive Commonwealth matters for a State law cooperative fishery; or
(e) the taking and keeping of fish under a collection authority issued under the Biodiscovery Act 2004.
(3)This Act also applies to—
(a) recreational fishing carried on in the part of the Australian fishing zone that is the adjacent area for Queensland by the use of an Australian boat; and
(b) activities in the Australian fishing zone to which a State law cooperative fishery applies.
(4)Subsection (3)(a) does not apply to recreational fishing regulated by a Commonwealth plan of management.
(5)Subsection (3)(b) does not apply to exclusive Commonwealth matters for the State law cooperative fishery.
(6)In this section—
adjacent area for Queensland has the meaning given by the Petroleum (Submerged Lands) Act 1967 (Cwlth).
Australian fishing zone has the meaning given by the Commonwealth Fisheries Act.
Commonwealth fishing concession means a fishing concession within the meaning of the Commonwealth Fisheries Act.
Commonwealth law cooperative fishery means a Commonwealth–State fishery managed under Commonwealth law.
Commonwealth law Torres Strait cooperative fishery means a fishery managed under Commonwealth law under an arrangement under the Torres Strait Fisheries Act 1984, part 3.
Commonwealth plan of management means a plan of management within the meaning of the Commonwealth Fisheries Act.
exclusive Commonwealth matter, for a State law cooperative fishery, means any of the following matters—
(a) foreign boats;
(b) operations on and from foreign boats;
(c) persons on foreign boats;
(d) for activities in the Australian fishing zone—matters that happened before the Commonwealth–State arrangement for the fishery took effect if Commonwealth law applies to the matters.
recreational fishing has the same meaning as in the Commonwealth Fisheries Act.
State law cooperative fishery means a Commonwealth–State fishery managed in accordance with State law.
132Making of Joint Authority and other Commonwealth–State arrangements
(1)The State may make an arrangement under part 5 of the Commonwealth Fisheries Act for the management of a particular fishery, whether or not a Joint Authority is to have the management of a fishery under the arrangement.”
I pause to interpolate that the application provisions in the two Acts (namely s 10 of the Fisheries Management Act 1991 (Cth) and s 11 of the Fisheries Act 1994 (Qld)) reveal (amongst other things) the general statutory intention of both legislatures:
(a)to empower the making of arrangements between the Commonwealth and the State that particular fisheries may be managed in accordance with State law;
(b)that the Commonwealth Act would not apply in relation to such fisheries (except in relation to the matters mentioned in s 77); and
(c)that the State Act would not extend beyond Queensland waters except to the extent empowered so to do by such an arrangement.[3]
[3]Although the definition of “Queensland Waters” was removed from the Fisheries Act in 2006, s 47A(a) of the Acts Interpretation Act 1954 (Qld) provides that the laws of the State apply in and in relation to the “coastal waters of the State” defining that term in the same way as provided in the Coastal Waters (State Powers) Act 1980 (Cth).
The parties identified the following three relevant arrangements made between the Commonwealth and Queensland:[4]
(a)An arrangement dated 3 February 1995 “in relation to the fishery for northern demersal and pelagic fin fish in the Gulf of Carpentaria” (the first arrangement).
(b)An arrangement dated 3 February 1995 “in relation to the fishery for inshore fin fish in the Gulf of Carpentaria” (the second arrangement).
(c)An arrangement dated 25 June 2003 “in relation to the Gulf of Carpentaria grey mackerel fishery” (the third arrangement).
[4]It seems that the second and third arrangements had not been placed before the primary judge. That explains his Honour’s suggestion at [18] of his reasons that it would have been beyond power for the State to regulate the taking of barramundi in the N12 area.
Relevant detail concerning the arrangements is set out in the annexure to these reasons. The following observations may be made about those arrangements:
(a)There was no challenge to the validity of any of the arrangements.
(b)Each arrangement provided that the fishery to which it applied was to be managed in accordance with the law of Queensland.
(c)As the relevant underlying statutes permitted,[5] each arrangement defined the fishery to which it applied by reference to a particular area and a particular species or species of fish.
[5]See the definitions of “fishery” earlier identified.
(d)Insofar as the relevant fisheries were defined by reference to area, the area was relevantly the same, namely “in the waters relevant to the State, being coastal waters and waters of the Australian fishing zone that lies within the area described in Schedule 2 to the Petroleum (Submerged Lands) Act 1967 under the heading ‘Area that includes the Adjacent Area in respect of Queensland’, west of Longitude 142°31 '49" East”.[6] It was common ground that the N12 area was encompassed within the geographical area so described.
[6]The area covered by the third arrangement is specified in a more abbreviated way, but to similar effect.
(e)It was suggested in argument by the appellant that the second arrangement should be regarded as encompassing a different area because of the use of the word “inshore” in its title. However, the wording used to define the fishery by reference to an area which appears in the body of the arrangement is explicit and cannot be regarded as confined by the mere presence of the adjective “inshore” in the title. The argument must be rejected.
(f)The fishery which was the subject of the first arrangement was the fishery in the defined area for all species of fish of the Class Osteichthyes and Class Chondrichthyes, except, amongst other exceptions, those species dealt with by the second and third arrangements.
(g)The fishery dealt with by the second arrangement was the fishery in the defined area for:
(i)Barramundi;
(ii)King salmon;
(iii)Blue salmon;
(iv)Jewfish;
(v)Spotted grunter-bream; and
(vi)Queenfish.
(h)The fishery dealt with by the third arrangement was the fishery in the defined area for grey mackerel.
(i)We will shortly see that the fish which may be taken in the N12 area are limited to certain species specified in s 133 of Schedule 4 Part 8 of the Commercial Fisheries Regulation. Save for the fallacious argument referred to in subparagraph (e) above that the second arrangement should not be regarded as covering the area which by its terms it stated that it covered, it was accepted in argument before this Court that the three arrangements together covered all the species mentioned in s 133.
The Queensland regulatory framework
Section 134 of the Fisheries Act provides that if under a Commonwealth-State arrangement, a fishery is to be managed under Queensland Law, Queensland Law applies to the fishery.
Section 139 of the Fisheries Act provides that:
“139 Instruments for Commonwealth–State fisheries under Queensland law
(1)If, under a Commonwealth–State arrangement, a Commonwealth–State fishery is to be managed under Queensland law, a regulation may be made about any matter—
(a) required or permitted by this Act to be prescribed for a fishery or its management; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to, or enabling the carrying out or giving effect to, decisions made under the arrangement; or
(c) if the fishery is a Joint Authority fishery—necessary or convenient to be prescribed for carrying out or giving effect to, or enabling the carrying out or giving effect to, decisions of the fishery’s Joint Authority about the fishery or its management.”
Section 223 of the Fisheries Act provides:
“223 Regulation-making power
(1)The Governor in Council may make regulations under this Act.
(2)A regulation may—
(a) prescribe matters for the management of any of the following—
(i)a fishery;
(ii)a fish habitat;
(iii)a declared fish habitat area;
(iv)a fish way;
(v)fisheries resources;
(vi)aquaculture.”
The relevant provisions for the management of commercial fisheries are set out in Chapter 2 of the Commercial Fisheries Regulation and in the schedules to which they refer.
Chapter 2 Part 1 s 4(1) provides that each of the fisheries named and described in schedules 2 to 8 is a commercial fishery. Chapter 2 Part 1 s 4(2) then provides:
“Schedules 2 to 8 state the following for each commercial fishery—
(a)the fishery symbol;
(b)the fishery area;
(c)matters about what is authorised under a primary commercial fishing licence[7] on which the fishery symbol for the fishery is written, including, for example—
(i)fish that may be taken in the fishery; and
(ii)the way in which fish may be taken in the fishery; and
(iii)persons who may take fish in the fishery; and
(iv)any other restrictions on a person’s authorisation to take fish in the fishery;
(d)conditions about carrying out activities in the fishery applying to a licence on which the fishery symbol for the fishery is written.”
[7]Chapter 3 of the Regulations contains the detailed provisions governing the relevant types of fishing licences.
Each of schedules 2 to 8 then deals with a particular type of commercial fishery as follows:
(a)Schedule 2: East coast trawl fishery;
(b)Schedule 3: Commercial line fishery;
(c)Schedule 4: Commercial net fisheries;
(d)Schedule 5: Spanish mackerel commercial fishery;
(e)Schedule 6: Reef line commercial fishery;
(f)Schedule 7: Commercial crab fisheries;
(g)Schedule 7A: Commercial hand-harvest fisheries;
(h)Schedule 8: Other commercial fisheries.
Chapter 2 Part 1 s 5 provides:
“5 Management and operation of commercial fisheries
(1)This section states, for information purposes only, some general matters about the management and operation of commercial fisheries.
(2)A person may take fish for trade or commerce in the fishery area of a commercial fishery only if the person—
(a) is acting under a primary commercial fishing licence on which the fishery symbol for the fishery is written; and
(b) is a commercial fisher or assistant fisher authorised to take the fish in the fishery under a commercial fisher licence.
(3)The Fisheries (General) Regulation2019 together with this regulation provide for—
(a) restrictions on the issue of primary commercial fishing licences and commercial fisher licences; and
(b) restrictions on writing fishery symbols on primary commercial fishing licences; and
(c) what is authorised under a primary commercial fishing licence on which a fishery symbol is written, including the persons who are authorised to take fish in the fishery under a commercial fisher licence; and
(d) conditions applying to a primary commercial fishing licence, or commercial fisher licence, about the taking of fish in a commercial fishery.”
It is notable that s 5 is “for information purposes only”. Thus, s 5(2) is not the operative provision which prohibits commercial fishing in a commercial fishery unless licenced. Rather that outcome is achieved by the combined operation of the following provisions:
(a)Section 82 of the Fisheries Act, which provides:
“82 Offence to do prescribed act
A person must not unlawfully do an act prescribed by regulation or declared by a declaration as an act that must only be done by the holder of an authority.
Maximum penalty—1,000 penalty units.”
(b)Section 20 of the Fisheries (General) Regulation which provides:
“20 Prescribed acts—Act, s 82
For section 82 of the Act, schedule 1 prescribes—
(a)each act that must only be done by the holder of an authority; and
(b)persons who have authority under the Act to do the act.”
(c)Schedule 1 to the Fisheries (General) Regulation which, amongst other things, provides:
“Taking fish for trade or commerce
Prescribed act
taking fish for trade or commerce
Who has authority to do prescribed act
a person who holds, or is acting under, an authority authorising the person to take the fish for trade or commerce”.
I interpolate that the extent of operation of the provisions just mentioned would be construed by reference to the application provisions referred to at [19] above.
Chapter 2 Part 2 Division 1 sets out certain restrictions applicable to the authorisation to fish conferred by a person acting under the authority conferred by a relevant licence. Consistently with the structure of Chapter 2 Part 1 s 4(2), the Division sets out generally worded restrictions which will then take their detailed meaning and operation from what is set out in the schedules as referable to each particular type of commercial fishery. Thus:
(a)Section 7 defines “authorised person” by reference to a person acting under a primary commercial fishing licence on which a fishery symbol for a commercial fishery is written.
(b)Section 8 provides that the authorised person may fish only in a fishery area of the commercial fishery and consistently with what is stated in a “fishery provision” about the commercial fishery. Importantly, “fishery provision” is defined in the dictionary in Schedule 11 as “… a provision of schedules 2 to 8 about the commercial fishery”.
(c)Section 9 provides that the authorised person may take only fish that a fishery provision about the commercial fishery states may be taken by the person in the fishery.
(d)Section 10 provides that the authorised person may only take fish in ways stated in any fishery provision which states a particular way in which fish may be taken. Sections 10A and B similarly impose restrictions by reference to fishery provisions which impose restrictions concerning possessing, selling or processing fish, or possessing particular commercial fishing apparatus.
(e)Section 11 requires the authorised person to comply with any of the following types of stated restrictions in a fishery provision:
(i)fish may be taken in the fishery only if there is an unused quota entitlement under a quota authority for the fish;
(ii)a maximum amount of fish that may be taken in the fishery;
(iii)a period during which fish may be taken in the fishery;
(iv)a stated activity must not be carried out in a stated area of the fishery.
The particular fishery provisions of concern to this appeal are those set out in Schedule 4 “Commercial Net Fisheries”. Schedule 4 itself is divided up into 10 parts, each of which provides for a particular fishery area or management region. Part 8 deals with “Net fishery (Gulf of Carpentaria No. 3)”.
The matters referred to in ss 4(1) and 4(2)(a) and (b) of Chapter 2 of the Commercial Fisheries Regulation (quoted at [27] above) are dealt with in Schedule 4 Part 8 Division 1:
(a)Section 130 provides that “The net fishery (Gulf of Carpentaria No. 3) is the activity of fishing for the fish mentioned in section 133 in the fishery area, provided under the part”.
(b)Section 131 provides that the fishery symbol for the fishery is “N12”.
(c)Section 132 specifies the limits of the N12 area by reference to particular points of longitude and latitude.
The matters referred to in s 4(2)(c) of Chapter 2 of the Commercial Fisheries Regulation (quoted at [27] above) are dealt with in the fishery provisions stated in Schedule 4 Part 8 Division 2:
“133 What fish may be taken
The following fish may be taken under the licence—
(a)barred javelin;
(b)black jewfish;
(c)blue threadfin;
(d)grey mackerel;
(e)king threadfin;
(f)queenfish;
(g)scaly jewfish;
(h)shark, other than white shark, sandtiger shark or speartooth shark;
(i)other fin fish, excluding barramundi and regulated coral reef fin fish, if the fish are taken while taking fish mentioned in paragraphs (a) to (h).
134Way fish may be taken
(1)Fish may be taken only by using a set mesh net.
(2)A power assisted device may be used with a set mesh net only if—
(a) the net is no longer than 1,800m; and
(b) all other nets on board the boat from which the net is being used are stowed and secured.
135Use of nets
(1)A net may be used only if—
(a) the net is no longer than 1,800m; and
(b) the net has a mesh size of at least 160mm but no more than 165mm; and
(c) the net’s drop is no more than 85 meshes; and
(d) one end of the net is anchored or fixed to a place; and
(e) the other end of the net is fixed to a boat; and
(f) the net is not used as a bottom set net; and
(g) the line thickness of the net is at least 0.9mm.
(2)A person using a net must be within 100m of it.
136When fish may be taken
A net must not be used in the period from 7 October to 31 January.”
If s 136 is within power, its effect is plain. It states a restriction on a licence holder’s authorisation to take fish in the fishery, namely that a licence holder must not use a net in the N12 area during the period specified in s 136. Given that licence holders are also subject to the restriction stated in s 134 that they may only take fish using a net, the effect of s 136 is to state a restriction on a licence holder’s authorisation to take fish in the fishery, namely that the licence holder who is otherwise licensed to fish in the N12 area may not fish in that area during the period from 7 October to 31 January each year. During that period, s 136 prevents the appellant from conducting the form of commercial fishing in the N12 area for which it is licensed.
Prior to the amendment of s 136 which took place in 2021 after the decision of the primary judge, the same outcome was achieved in a more convoluted way, namely:
(a)Section 136 had provided that “A net must not be used in a barramundi (Gulf) regulated period.”
(b)The phrase “barramundi (Gulf) regulated period” was defined in the dictionary in Schedule 11 as “a regulated period mentioned in the Fisheries Declaration 2019, section 21(2)”.
(c)Section 21 of the Fisheries Declaration 2019 provided:
“Taking or possessing barramundi in regulated periods -
Gulf of Carpentaria waters
(1)A person must not in the Gulf of Carpentaria waters-
(a)take barramundi in the regulated taking period; or
(b)possess barramundi taken in contravention of paragraph (a).
(2)For subsection (1)(a), the regulated taking period is from 7 October to 31 January ...”
(d)Accordingly, the effect of the Schedule 11 definition was that a “barramundi (Gulf) regulated period” was the period from 7 October to 31 January each year.
(e)The effect of s 136 when it was in that form was the same as that articulated in [36] above.
It is a curiosity that the previous version of s 136 achieved the specification of restricting the ability of licence holders to fish in the N12 fishery (which, it may be noted, by virtue of s 133 did not permit the taking of barramundi) by reference to a declaration which specifically dealt with barramundi. As to this drafting device, the primary judge observed correctly (reasons at [15]):
“Why the definition for a period during which barramundi cannot be taken in tidal waters and waterways has been adopted as the period during which certain other fish cannot be taken in a fishery area beyond those tidal waters and waterways is not apparent from the filed materials. However, it is a reasonable inference, which I draw, that the period or "off-season" during which barramundi are spared from being taken has been identified as an appropriate period during which fish, which may by licence be taken in fishery area N12, are spared from being taken by net. This at once explains why the term "barramundi (Gulf) regulated period" is used as the temporal reckoner of the duration of the off-season to which s 136 relates and confirms the term's use is as a mere drafting device of convenience.”.
The appellant’s argument for invalidity of s 136
The appellant argued, first, that s 136 dealt with a topic which was wholly beyond the power to regulate conferred by ss 139 and 223 of the Fisheries Act. This argument noted that the arrangements made between the Commonwealth and the State only provided that the fishery for particular identified species were to be managed in accordance with the law of Queensland. Section 136, the appellant contended, did not draw a distinction concerning species but rather created a blanket ban on all net fishing for all species of fish within the N12 area during the relevant period. To the extent that the State was purporting to regulate during that period the taking of species of fish other than those species which were the subject of an arrangement, the State was not empowered so to do.
However, the argument was founded on a misconstruction of s 136. As the primary judge recognised (at [19] of his reasons) the section is not to be construed as imposing a blanket ban on the use of nets in the N12 area by anyone in the world and for every known fish species. It is to be construed in the manner identified at [36] above. Schedule 4 Part 8 Division 2 is headed “Authorisation”. The purpose of the Division is plainly to fulfil the function foreshadowed by Chapter 2 s 4(2)(c), namely to state “matters about what is authorised under a primary commercial fishing licence on which the fishery symbol for the fishery is written”. So when s 136 states that nets may not be used in the N12 area during a particular period, it is making a statement about a restriction on what is authorised under a primary commercial fishing licence on which the N12 fishery symbol is written. It is not purporting to regulate during the specified period the taking of species of fish other than those species which were the subject of an arrangement.
For the reasons set out at [22] above, the fish species the subject of the three arrangements were by the arrangements authorised to be managed in accordance with the law of Queensland. As I there recorded, save for an argument about the area covered by the second arrangement which I have rejected, it was accepted in argument before this Court that the three arrangements together covered all the species mentioned in s 133. The imposition of a restriction on the authority of persons licenced to fish for the species identified in s 133 for the period of time specified in s 136 was an unremarkable exercise of power to manage the fisheries concerned. The argument that s 136 was wholly beyond the power to regulate conferred by s 223 of the Fisheries Act must fail.
An alternative argument advanced by the appellant in its written submissions was that the general ban imposed by s 136 was an unreasonable and disproportionate exercise of power. That argument had been raised before the primary judge (at which time s 136 was in the previous form) and, after a consideration of the evidence, rejected by him.[8] During oral argument, Senior Counsel for the appellant accepted that the appellant could not sensibly advance the argument that s 136 was an unreasonable and disproportionate exercise of power if s 136 was to be construed in the way which I have in these reasons identified that it must be construed.[9] Accordingly it is unnecessary to consider the appellant’s alternative argument further.
[8]See reasons at [22] to [35].
[9]Transcript 1-31.
The argument for invalidity of s 136 based on inconsistency with valid Commonwealth law
The appellant’s constitutional argument was encapsulated in these terms in its written submissions (footnotes in original):
“17.However, if Queensland does have power to legislate [Schedule 4 Part 8 of the Commercial Fisheries Regulation], then it is submitted that the law is inconsistent with Commonwealth laws.
18.By entering into [the first arrangement], the Commonwealth law has been withdrawn from the N12 for the management of some species of fish, but not for the management of most of the species of fish the subject of s. 133 of Part 8, nor the activity of fishing for tuna and tuna like fish within the northern tuna fishery or for fishing for prawns within the northern prawn fishery. As such the Commonwealth has retained its power to regulate the species of fish excluded from the Agreement and the marine environment in general.
19.The Commonwealth, in fact, regulates the activity of fishing for the fish the subject of the N12 fishery as:
(a)Commonwealth catch limits apply to the northern water tuna fishery[10];
(b)catch limits (including in respect of finfish) are in place in respect of northern prawn fishery waters[11];
(c)the marine environment found within the fisheries is regulated by the Commonwealth, including in relation to protecting organisms[12];
(d)the Commonwealth reserves itself the power to close fisheries, including where action is required for purposes related to the management of the fishery, for the maintenance of straddling fish stocks, or ecologically related fish stocks[13];
20.Further, the Commonwealth has enacted legislation for the protection of the environment which appears to cover the field[14]. Although the management of a fishery could include matters of ecology and the environment, where the management is restricted to certain species of fish only, that cannot be the case.
21.In any event, it should be inferred from the fact that the Commonwealth specifically excluded some species of fish from the delegation of power to the State under the Arrangement that the Commonwealth intended to retain the right to regulate these fish. The State's purported regulation of these fish is inconsistent with the Commonwealth's retention of these rights.”
[10]See s. 44 and Schedule 3 Fisheries Management Regulations (Cth).
[11]See Division 11 and Schedule 5 Fisheries Management Regulations (Cth).
[12]See Division 13 Fisheries Management Regulations 2019 (Cth).
[13]See Division 10, ss 41(a) and 43 Fisheries Management Act (Cth).
[14][The footnote set out a numerical cross-reference to that part of the appellant’s argument concerning Commonwealth environmental regulation.]
Once one appreciates that the State was not by s 136 purporting to regulate the taking of species of fish other than those species which it was empowered by one or other of the three arrangements to manage under State law, the constitutional argument challenge to s 136 - based as it was on a covering the field proposition - falls away in its entirety. As the respondent submitted, the Fisheries Management Act 1991 (Cth) expressly provides by s 10(3)(c) that the Fisheries Management Act does not apply to activities in the Australian Fishing Zone to which, because of s 77, the Act does not apply. In the present case the N12 area is located in the Australian Fishing Zone and s 10(3)(c) and s 77 would be taken to reveal the Commonwealth legislative intention that the fisheries the subject of the three arrangements be managed in accordance with State law. No inconsistency would arise. And, as for the suggested inconsistency with Commonwealth environmental protection law: the appellant’s own argument correctly conceded that no inconsistency would arise if the State management of matters of ecology and the environment was limited to particular species of fish the subject of a valid arrangement.
Had s 136 purported to regulate the taking of species of fish in the N12 area other than species which it was empowered to manage under State law by one or other of the three arrangements, a constitutional argument may well have arisen. The respondent might then have been forced to support the validity of the impugned regulation as an exercise of extra-territorial power of Queensland. Much of the appellant’s oral argument before this Court sought to advance the proposition that the impugned regulation could not be so supported.
Given the construction of s 136 which I have reached, it is not necessary to consider whether extra-territoriality could have been relied on by the State. I do observe, however, that in my view, the principal argument advanced by the appellant was misconceived, given applicable High Court authority:
(a)The appellant argued that the validity of the impugned regulation could not be supported as an exercise of extra-territorial power of Queensland because the Commonwealth had, by virtue of s 5(c) of the Coastal Waters (State Powers) Act 1980, evinced the intention to cover the field for regulation of the waters concerned, at least so far as fisheries were concerned.
(b)That argument had no merit. Section 7 of that Act provided that nothing in the Act should be taken to derogate from any power existing, apart from this Act, to make laws of a State having extra-territorial effect. And, in Port MacDonnell Professional Fishermen's Association Inc v South Australia, the High Court observed (at 375) of that section:
“Plainly, the provisions of s.7 are effective to prevent s.5(c) being construed as confining the pre-existing State legislative power with respect to fisheries in waters adjacent to it.”
(c)Where in that passage the High Court referred to “the pre-existing State legislative power with respect to fisheries in waters adjacent to it”, the High Court was referring to the independent legislative power of the States deriving from the grant of power to State legislatures over “peace, welfare and good government” or “peace, order and good government” which the Court had discussed at 369 – 373, reaching the conclusion about extra-territoriality recorded at [11] above.
Conclusion
The challenges to the invalidity of s 136 having failed, the appeal must be dismissed with costs.
NORTH J: I agree with the reasons of Bond JA and the order proposed by his Honour.
Annexure
| Title of arrangement | Arrangement | Fishery to which the Arrangement applies | The area by reference to which the fishery was defined | The species by reference to which the fishery was defined | Species excluded |
| Arrangement in relation to the fishery for northern demersal and pelagic fin fish in the Gulf of Carpentaria. | Section 2 provided that the Commonwealth and the State hereby arrange for the establishment of the Queensland Fisheries Joint Authority … to manage the fishery to which this Arrangement applies in accordance with the law of the State. | Section 3 identified the fishery to which this Arrangement applies as the fishery in the particular waters specified for “all species of fish of the Class Osteichthyes and Class Chondrichthyes”, except for species mentioned in section 3(a) to (e). | Section 3 described the area as “the waters relevant to the State, being coastal waters and waters of the Australian fishing zone that lies within the area described in Schedule 2 to the Petroleum (Submerged Lands) Act 1967 under the heading "Area that includes the Adjacent Area in respect of Queensland", west of Longitude 142°31 '49" East”. | All species of fish of the Class Osteichthyes and Class Chondrichthyes except for species mentioned in section 3(a) to (e). | Species mentioned in section 3(a) to (e), which relevantly included:[15] · Fish taken in the fishery for tuna and tuna like species; · Species covered by the inshore fin fish arrangement; · Grey mackerel. |
| Arrangement in relation to the fishery for inshore fin fish in the Gulf of Carpentaria. | Section 1 provided that the Commonwealth and the State hereby arrange that the fishery … is to be managed in accordance with the law of Queensland. | Section 1 identified the fishery as the Fishery in the particular waters specified for the particular species specified. | Section 1 described the area as “the Waters relevant to the State, being coastal waters and waters of the Australian fishing zone that lies within the area described in Schedule 2 to the Petroleum (Submerged Lands) Act 1967 under the heading "Area that includes the Adjacent Area in respect of Queensland", west of Longitude 142°31 '49" East”. | · Barramundi; · King salmon; · Blue salmon; · Jewfish; · Spotted grunter-bream; · Queenfish; · Lawful bycatch.[16] | Nil. |
| Arrangement in relation to the Gulf of Carpentaria grey mackerel fishery. | Section 3(2) provided that the fishery specified in section 4 is to be managed by the Queensland Fisheries Joint Authority in accordance with the law of Queensland. | Section 4 specified that the fishery was “commercial fishing for grey mackerel” (including lawful bycatch)[17] in a particular area. | Section 4 described the area as “that part of the area described in ‘The adjacent area in respect of Queensland’ in Schedule 2 to the Petroleum (Submerged Lands) Act 1967 that is west of 142°31 '49". | Grey mackerel. | Nil. |
[15]Some complexity is introduced by the way in which the exclusions specify that various types of bycatch are either included or excluded from the exclusions: see s 3(a)(iv) and (v) and s 3(c), (d) and (e). It was not suggested that this complexity was relevant to the assessment of the arguments before this Court.
[16]I use “lawful bycatch” as a shorthand reference to the phrase in s 1(viii) “all fish taken in the exercise of a right conferred by a licence or other authority granted by the State which allows the taking of the fish to which this Arrangement applies”.
[17]I use “lawful bycatch” as a shorthand reference to the phrase in s 4(b) “includes the taking of incidental catch of finfish by a person fishing for grey mackerel under an authority granted under Queensland law”.
0
3
5