FEDERAL COURT OF AUSTRALIA

Alcock v Commonwealth of Australia [2013] FCAFC 36

THE COURT ORDERS THAT:

1.    The appeal is dismissed with costs.

2.    The application filed on 16 June 2008 and the whole of the proceedings instituted thereby are dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This case concerns a challenge to legislation passed by the Victorian Parliament which curtailed the rights of the appellant and others to take abalone from the coastal waters of Victoria. The case does not concern any evaluation of the merits of the legislation. Nor does it concern (except indirectly) assessment of complaints about a lack of compensation or whether such compensation should be granted. The case concerns examination of whether enactment of the legislation was within the power of the Victorian Parliament.

2    The area in which the appellant has a licence to take abalone, off the coast of Victoria and in Bass Strait (“the central zone”), is part of a fishery managed under the laws of Victoria, pursuant to an arrangement between Victoria and the Commonwealth of Australia. There are also an eastern zone and a western zone in the fishery. The fishery takes in both coastal waters (i.e. up to three nautical miles offshore) and waters further away from the coast.

3    When the fishery was established, on 1 November 1997, pursuant to the arrangement between the Commonwealth and Victoria, it did not include certain marine parks and reserves in coastal waters, from which the appellant was excluded by the terms of his licence. Further reference to that restriction will be made in due course. In 2002, the Victorian Parliament enacted legislation to create or identify other and/or more extensive marine parks, reserves and sanctuaries in the coastal waters off Victoria. At the same time it was made an offence to take abalone and other fish from any of the areas so designated. Those further steps curtailed the access which the appellant had previously enjoyed to some areas of the central zone (i.e. areas not in the existing marine parks and reserves which were legally not part of the central zone) and caused him commercial loss. Unlike for other categories of licence holders, the legislation made no provision for compensation for abalone fishermen.

Procedural history

4    On 16 June 2008, the appellant commenced proceedings in this Court on his own behalf and on behalf of other abalone fishermen in the central zone. The substance of the claim (apart from various contentions based on legal propositions) was stated as follows:

3.    The applicants claim

1.    That they have unlawfully been denied access to abalone fishing grounds and reefs within 11 areas proclaimed by the Second Respondent as marine parks and marine sanctuaries.

2.    That they have been unlawfully denied compensation for the loss of their fishing grounds and the consequent reduction in their catch and income.

...

10.    The Applicants seek compensation from the First and Second Respondents for loss of earnings, direct financial losses arising from the loss of earnings, additional costs arising from the need to travel longer distances to fishing grounds, loss of capital value of licenses and units purchased with certain fishing rights attached, additional interest accrued and other associated losses and costs.

5    The essence of the relief sought was a declaration that the new restrictions were contrary to the Constitution of the Commonwealth (“Constitution”) because the arrangements represented the acquisition of the appellant’s property contrary to s 51(xxxi) of the Constitution (i.e. otherwise than on “just terms”) or because enactment of the 2002 legislation was beyond the legislative power of the Victorian Parliament for various other reasons, which will be discussed below.

6    On 5 August 2008, the appellant filed a statement of claim to support the application. On 8 September 2008, the appellant filed an amended statement of claim and sought also to rely on an amended application. The appellant’s attempts to support the application and the relief claimed therein with a properly pleaded statement of claim, in accordance with the Federal Court Rules applying at that time, met with difficulties. The appellant seemed unable to plead his case in a way which (a) complied with the Federal Court Rules by adequately stating relevant material facts on which his claim for relief depended; and (b) identified the way in which the constitutional principles on which the claim for relief depended were engaged. The amended statement of claim was struck out in its entirety on 4 August 2009 by Ryan J, who decided that the appellant had not adequately identified material facts to support any cause of action (Alcock v Commonwealth of Australia [2009] FCA 820). Ryan J declined, however, to dismiss the proceedings and gave the appellant leave to replead his case.

7    On 11 September 2009, the appellant filed a “substituted statement of claim” together with another amended application. On 17 December 2009, Ryan J made an order, for the same reasons as earlier, that these two documents be struck out with no immediate leave to replead or amend (Alcock v Commonwealth of Australia [2009] FCA 1478). However, the strike-out order was immediately stayed because the appellant proposed to apply for an order to remove the case to the High Court under s 40 of the Judiciary Act 1903 (Cth). Any proposal to that effect has not borne fruit.

8    On 17 December 2010, the appellant filed a draft further amended statement of claim. On 4 March 2011, Ryan J directed the formulation of a number of specific questions to facilitate the process of deciding whether the appellant should be given leave to rely on his latest attempt to plead an arguable case. On 19 April 2011, Ryan J ordered that eight questions be addressed (Alcock v Commonwealth of Australia [2011] FCA 392).

9    The questions posed by Ryan J were:

1.    Does the Revised Further Amended Statement of Claim filed herein on 5 April 2011 (FASC) (paragraphs 3 and 4) identify rights of the Applicant that are “property” within the meaning of s 51(xxxi) of the Constitution?

2.    If yes to Question 1, in relation to the Applicant’s property identified in the FASC and in the circumstances alleged therein, are any of the following a law of the Parliament with respect to “the acquisition of property” within the meaning of s 51(xxxi) or executive action which impairs the constitutional guarantee:

2.1    the National Parks (Marine National Parks and Marine Sanctuaries) Act 2002 (Vic) (the Marine Parks and Sanctuaries Act)? (paragraph 5 of the FASC)

2.2    the Fisheries Management Act 1991 (Cth) (the Management Act)? (paragraph 6 of the FASC)

2.3    the arrangement dated 29 October 1997, that commenced on 1 November 1997, under Part 5 of the Fisheries Management Act 1991 (Cth) between the Commonwealth and Victoria (the October 1997 arrangement)? (paragraph 6 of the FASC)

or,

2.4    any combination of the Marine Parks and Sanctuaries Act, the Management Act and the October 1997 arrangement?

3.    If yes to any of Questions 2.1, 2.2, 2.3 or 2.4, does s 167A(1) of the Management Act entitle the Applicant to compensation?

4.    Does the FASC (paragraph 13) identify any inconsistency between the Marine Parks and Sanctuaries Act and the Seas and Submerged Lands Act 1973 (Cth) for the purposes [sic] s 109 of the Constitution?

5.    If “yes” to Question 4, what provision or provisions of the Marine Parks and Sanctuaries Act is or are invalid for that reason?

6.    Is the conduct alleged against the Commonwealth in paragraph 18 of the FASC conduct of the Commonwealth “in trade or commerce” within the meaning of the Fair Trading Act 1999 (Vic) of the Trade Practices Act 1974 (Cth) (as taken to be continued in force by item 6(1) of Schedule 7 to the Trade Practices (Australian Consumer Law) Amendment Act (No 2) 2010)?

7.    Did the Marine Parks and Sanctuaries Act:

7.1.    alter the limits of the State of Victoria; or

7.2.    make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to Victoria,

so as to come within s 123 of the Constitution?

8.    Is the Fisheries Act 1995 (Vic) repugnant to the Constitution to the extent that it extended past the low water mark into the Central Zone in Bass Strait and/or impaired or interfered with the applicant’s property rights (paragraph 35 of the FASC)?”

10    The questions posed by Ryan J required consideration of a number of constitutional principles. The point of the inquiry was to establish if the appellant had any possible case to argue. Submissions about the questions posed by Ryan J were received by Tracey J, who answered them adversely to the appellant on 24 May 2012 (Alcock v Commonwealth of Australia (2012) 203 FCR 114). It is that judgment which is under challenge in the present appeal. Questions 1 to 5 were answered by Tracey J as follows:

Question 1: Yes, but only in respect of the abalone fishing licence number A41.

Question 2: (as to each part): No.

Question 3: Does not arise.

Question 4: No.

Question 5: Does not arise.

Question 6 was not the subject of appeal. Question 7 was abandoned before Tracey J. Question 8 was abandoned in the present appeal. We will explain the approach taken by Tracey J to the critical questions (i.e. Questions 1, 2 and 4) in due course.

11    On 7 June 2012, the appellant sought leave to appeal from the judgment of Tracey J. On 1 August 2012, Dodds-Streeton J granted leave to appeal, but did so on the basis of an important statement by counsel for the appellant (Alcock v Commonwealth of Australia [2012] FCA 870). The statement was recorded by Dodds-Streeton J in her order in the following terms:

1.    Counsel for the applicants informed the court that the applicants would not seek to vary or amend the revised further amended statement of claim filed on 5 April 2011, the subject of the pending application for leave, last mentioned in the order of Ryan J made on 19 April 2011, paragraph 6. On that basis, counsel for the first respondent and the second respondent in formed the court that they did not oppose grant of leave.

12    At the hearing of the present appeal, counsel for the appellant confirmed the position stated to Dodds-Streeton J.

13    In her judgment, Dodds-Streeton J also recorded the following:

70    … Counsel for the applicant frankly stated that no revised proposed pleading which assumed the correctness of and took into account the answers to the separate questions could be drafted, as the answers struck out the heart of the applicant’s case. Counsel for the applicant stated that the fundamental case outlined in the original application (which, despite some uncertainty, appeared to be the only extant application) was also untenable in light of the answers. Counsel further submitted that any uncertainty about the future outcome of the proceeding was illusory, as in practice (given that the applicant now disavowed any possibility of a pleading which differed in fundamental allegations from those rendered untenable by the answers), the respondents would oppose, and his Honour would refuse, leave to rely on the FASOC. Although the proceeding would not thereby stand dismissed, the substantive effect would be the same.

14    Those are important matters which were essential pre-conditions to the grant of leave to appeal. At the hearing of the appeal, counsel for the appellant accepted that if the appeal was dismissed it would follow that the proceedings ought be dismissed as having no prospect of success. Counsel accepted that it would be appropriate for such an order to be made on the appeal.

15    The difficulties inherent in the course ordered by Ryan J included the circumstance that no pleaded case was before the Court. Obviously, no defence had been filed and facts were neither established or agreed. Those difficulties may, however, be put to one side in the present appeal for three reasons. First, the primary judge approached the task of answering the questions posed by Ryan J by adopting the principles employed by the High Court in cases where it is considering a demurrer; that is to say that the primary judge accepted, for the purpose of responding to the questions, that the appellant might make good any relevant allegation of fact contained in the proposed pleading. Secondly, when Dodds-Streeton J gave leave to bring the present appeal she did so on the basis of acceptance by the appellant that it was not open, after the appeal, to depart from the terms of the proposed pleading and the appellant, for its part, would not do so. Thirdly, when the appeal commenced the appellant confirmed the position stated to Dodds-Streeton J. Furthermore, the appellant accepted that if the appeal was lost his application should be dismissed and it was appropriate to make such an order in disposing of the appeal.

16    In those circumstances, the matter took on sufficient certainty to justify the course taken. On the view we take, the answers given by Tracey J should be confirmed, the appeal should be dismissed and the proceedings as a whole should be dismissed. That will bring the matter to finality.

The legislative framework

17    It is necessary to understand the overall legislative framework in which the appellant’s complaints arise. That framework includes legislation by both the Commonwealth and Victorian Parliaments. It does not, however, contrary to submissions put by the appellant, disclose any inconsistency or conflict arising from the terms or operation of the legislation of those two Parliaments. On the contrary, it is clear that despite overall Commonwealth sovereignty in the seabed off the coast of Australia, property and title in the seabed of coastal waters has been given to the various States, and the management of fisheries in both coastal and further offshore waters is arranged so that either Commonwealth or State legislative authority is applied pursuant to joint arrangements. Both the Commonwealth and the States have, in any event, authority to legislate about fishing in offshore waters. As will be seen, the exercise of such power by Victoria has not produced any relevant inconsistency with exercise of Commonwealth legislative power.

Seas and Submerged Lands Act 1973 (Cth)

18    By section 6 of the Seas and Submerged Lands Act 1973 (Cth) (“SSLA”), the Commonwealth Parliament declared Commonwealth sovereignty in respect of the territorial sea of Australia. Section 11 of the SSLA declared that the sovereign rights of Australia in respect of the continental shelf of Australia are also vested in the Commonwealth. The declarations give effect to Parts II, V and VI of the United Nations Convention on the Law of the Sea (see in particular Article 2 and Article 77). The SSLA was found to be valid in New South Wales v Commonwealth of Australia (1975) 135 CLR 337.

19    In Pearce v Florenca (1976) 135 CLR 507, the High Court found that, notwithstanding the SSLA, it was within the power of a State Parliament to legislate for the management of fisheries in the waters adjacent to its own coast, and that to do so did not constitute an inconsistency with the SSLA.

Coastal Waters (State Title) Act 1980 (Cth)

20    The declarations made by the SSLA embrace the whole of the geographical area of the fishery relevant to the present proceedings, including the central zone. However, s 4(1) of the Coastal Waters (State Title) Act 1980 (Cth) (“State Title Act”) provides:

4    Vesting of title in States

4(1)    By force of this Act, but subject to this Act, there are vested in each State, upon the date of commencement of this Act, the same right and title to the property in the sea-bed beneath the coastal waters of the State, as extending on that date, and the same rights in respect of the space (including space occupied by water) above that sea-bed, as would belong to the State if that sea-bed were the sea-bed beneath waters of the sea within the limits of the State.

(The exceptions to, and qualifications upon, this general statement are not relevant to the present proceedings.)

Coastal Waters (State Powers) Act 1980 (Cth)

21    Correspondingly, s 5 of the Coastal Waters (State Powers) Act 1980 (Cth) (“Coastal Powers Act”) provides:

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 States, as extending from time to time, were within the limits of the State, including laws applying in or in relation to the sea-bed and subsoil beneath, and the airspace above, the coastal waters 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, including laws applying in or in relation to the sea-bed and subsoil beneath, and the airspace above, the first-mentioned waters, being laws with respect to:

(i)    subterranean mining from land within the limits of the State; or

(ii)    ports, harbours and other shipping facilities, including installations, and dredging and other works, relating thereto, and other coastal works; 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.

22    The effect of s 5(a) and (c) of the Coastal Powers Act, so far as is relevant to the present case, is to give Victoria general legislative power (as well as property and title pursuant to the State Title Act) with respect to coastal waters adjacent to Victoria and a contingent legislative power with respect to fisheries in Australian waters beyond such coastal waters. As mentioned earlier, while the fishery in which the appellant held his licence in the central zone extends beyond coastal waters, the prohibitions upon access to marine park areas imposed in 2002 (i.e. in addition to those already in place) applied in coastal waters. In those waters, Victoria had title and property to the seabed by virtue of the State Title Act and general legislative power by virtue of the Coastal Powers Act.

Fisheries Management Act 1991 (Cth)

23    The Fisheries Management Act 1991 (Cth) (“Management Act”) puts in place arrangements concerning division of responsibility amongst the Commonwealth and the States for the management of fisheries. It establishes an Australian fishing zone (“AFZ”) as follows:

Australian fishing zone means:

(a)    the waters adjacent to Australia within the outer limits of the exclusive economic zone adjacent to the coast of Australia; and

(b)    the waters adjacent to each external territory within the outer limits of the exclusive economic zone adjacent to the coast of the external Territory;

but does not include:

(c)    coastal waters of, or waters within the limits of, a State or internal Territory; or

(d)    waters that are excepted waters.

24    The coastal waters of a State are identified by s 5 of the Management Act as follows:

5    Coastal waters

5(1)    For the purposes of this Act, the coastal waters of a State or internal Territory are:

(a)    the part or parts of the territorial sea of Australia that are:

(i)    within 3 nautical miles of the baseline by reference to which the territorial limits of Australia are defined for the purposes of international law; and

(ii)    adjacent to that State or Territory; and

(b)    any marine or tidal waters that are on the landward side of the baseline and are adjacent to that State or Territory but are not within the limits of a State or Territory.

(2)    Any part of the territorial sea of Australia that is adjacent to the Jervis Bay Territory is, for the purposes of subsection (1), taken to be adjacent to New South Wales.

25    Section 72 of the Management Act provides:

72    Other arrangements with States

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.

26    Section 77 of the Management Act provides:

77    Exclusion of this Act

Where an arrangement under this Division provides that 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 except in relation to:

(a)    foreign boats; and

(b)    operations on and from foreign boats; and

(c)    persons on foreign boats; and

(d)    matters that occurred before the arrangement took effect.

Arrangement for management of the fishery between the Commonwealth and Victoria

27    On 31 October 1997 (effective from 1 November 1997), the Commonwealth and Victoria made an arrangement for the management of the fishery in respect of which the appellant holds his licence in the central zone. Under the arrangement, the fishery was to be managed in accordance with the laws of Victoria. Accordingly, under s 77 of the Management Act, the general provisions of that Act no longer applied to the fishery. The fishery consisted of the taking of abalone by various specified methods. The arrangement for the management of the fishery described an area in which it applied. That area included both coastal waters and territorial waters further seaward. The area described, however, did not include nominated marine protected areas described in the National Parks Act 1975 (Vic) (“National Parks Act”) as at 1 November 1997.

28    The legislative position with respect to the fishery was therefore as follows. So far as coastal waters were concerned, s 5(a) of the Coastal Powers Act provided a general grant of legislative power. The Victorian Parliament also had abundant legislative authority over coastal waters adjacent to Victoria, both with respect to fisheries and generally, under the State Title Act. To the extent that the fishery was in an area beyond coastal waters, Victoria had ample legislative authority from the Commonwealth to manage the fishery. The Management Act authorised the arrangement. Section 5(c) of the Coastal Powers Act also provided a specific grant of legislative power to the same extent.

29    Moreover, Victoria had ample extra-territorial legislative authority over the fishery in any event, unless (or to the extent that) its extra-territorial authority was reduced by the terms or operation of an inconsistent law of the Commonwealth. In Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340 (“Port MacDonnell”), the High Court decided that the States had independent power (subject to avoiding inconsistency with a law of the Commonwealth) to legislate with respect to the management of a fishery in waters adjacent to the State, including but not confined to coastal waters.

30    In Harper v Minister for Sea Fisheries (1989) 168 CLR 314 (“Harper”), which was decided on the same day as Port MacDonnell by the High Court constituted by the same Justices, Brennan J (with whom the other Justices relevantly agreed) said (at 331):

The Tasmanian abalone fishery falls within s. 3A(c). An arrangement was entered into on 6 March 1987 by the Commonwealth and Tasmania under s. 12H(4) of the Fisheries Act 1952 (Cth) (“the Commonwealth Act”) and under s. 24H of the Act for the management in accordance with the laws of Tasmania of the abalone fishery in the area of waters adjacent to the State described in the arrangement. Those waters include the coastal waters of the State (as defined in s. 4A of the Commonwealth Act) and waters within the Australian fishing zone (as defined in s. 4(1) of the Commonwealth Act): s. 12A(2) of the Commonwealth Act. For reasons stated by the Court in Port MacDonnell Professional Fishermen's Association Inc. v. South Australia the legislative powers of Tasmania extend to the enactment of laws for the management of the abalone fishery in the waters described in that arrangement. The validity and effect of the Regulations do not depend upon the title of the Crown in right of Tasmania to the bed of the adjacent sea.

(The differences in the Tasmanian legislative provisions from the present are immaterial.)

31    The result of the above is that, in addition to title and property in the seabed in the coastal waters in which part of the fishery was located (including the areas where various marine protected areas were located) where it had general legislative authority, Victoria had full and effective legislative control of the management of the fishery in which the appellant held his licence in the central zone. That authority was derived from its own extra-territorial legislative powers (subject to avoiding inconsistency with Commonwealth law) independently of, as well as from, any power it may have been given by the Commonwealth Parliament.

Fisheries Act 1995 (Vic)

32    The Fisheries Act 1995 (Vic) (“Fisheries Act”) provides for the management of Victorian fisheries, including those managed by arrangement with the Commonwealth. The Fisheries Act relevantly provides: that regulations made under the Act may create classes of access licences (a particular form of fishery licence) (s 38(1)); for the payment of fees and royalties (s 51(1)(b)); that conditions of a fishery licence may be imposed or varied (s 54); that fishery licences may be varied (s 55); and for quota limits on catches (see Pt 4 Div 3). In addition, the Fisheries Act permits “fishing closures”, either absolutely or conditionally (s 67), for specified periods including periods for more than a year, which is the period for which an access licence may be issued (s 38(3), (4)). On the other hand, access licence holders may generally expect renewal of their licences (s 57(3)) and such licences are deemed to be assets (s 38(7)(a)). It was accepted in the proceedings that an access licence is “property”.

33    Importantly, under the Fisheries Act the Minister could by order published in the Victorian Government Gazette declare that the whole or part of a fishery zone was to be managed by the allocation of quotas and determine the method of allocating quotas (s 64(1)(a), (b)). In the same way, the Minister could set both the total allowable catch and the quantity of fish comprising an individual quota unit by number, volume, weight or value for a specified period for a fishery managed by allocated quotas (s 64A(1)). The Minister also could reduce the total allowable catch or the quantity of fish comprising an individual quota unit before the end of the period to which the existing measure applied (s 64A(3)). Any such determinations could be revoked or amended at any time by an order of the Minister published in the Gazette (ss 64(2), 64A(2)). Before exercising the powers to make, revoke or amend under ss 64 and 64A, the Minister had to consult, and consider the comments, of the relevant commercial peak body and any other relevant consultative bodies concerning the proposed course of action (s 64B), but the exercise of the Minister’s discretion was otherwise unfettered.

34    In addition, Pt 4 Div 4 of the Fisheries Act created a regulation making power in s 67 that allowed regulations or a fisheries notice to be made that prohibited the taking, landing, processing, selling or possession of fish of any specified species, absolutely or conditionally, for any period or periods specified and in any waters or in respect of specified classes of fisheries licences (s 67(1), (2)). A prohibition under Pt 4 Div 4 prevailed over any provision in the Act to the contrary by force of s 68. Moreover, a person who contravened such a prohibition committed a criminal offence that attracted penalties of a fine and or imprisonment (ss 67(3), (4), 68A).

35    Regulation 201 of the Fisheries Regulation 1998 (Vic) (“Regulations”) created a class of access licence for the “Abalone Fishery Central Zone”. The central zone was defined under r 105 as all “Victorian waters” between two longitudes. “Victorian waters” are defined by the Fisheries Act to exclude waters to which the legislative powers of Victoria do not extend with respect to a fishery which is the subject of an arrangement between the Commonwealth and Victoria. Accordingly, although Victoria has both an independent extra-territorial legislative power (subject to avoiding inconsistency with Commonwealth laws) and also legislative powers given by the Coastal Powers Act, neither the Management Act nor the Fisheries Act authorise management of the fishery except in accordance with the arrangement. The arrangement defines the fishery by excluding nominated marine protection areas. Those areas (as they existed at 1 November 1997) are not part of the fishery. They are excluded from the central zone. The appellant therefore had no right to take abalone from them.

36    However, it ultimately does not matter for the disposition of the present matter whether the appellant was excluded from marine protected areas before 2002 or not. The result in the present case would be the same in any event.

37    The access licences issued to the appellant from time to time were expressed to be subject to the provisions of the Fisheries Act. Later versions of the licence were expressed to be subject to “any conditions that may be prescribed by regulation or added in accordance with section 52 or 54 of the Fisheries Act”.

38    Sections 52 and 54 of the Fisheries Act provide:

52    Conditions of fishery licences and permits

In addition to any conditions that are imposed by this Act, a fishery licence or a permit is subject to -

(a)    any conditions that the Secretary thinks appropriate and that are expressed or referred to in the licence or permit; and

(b)    any conditions that are set out in the regulations.

…

54    Changes to licence or permit conditions

(1)    Subject to sub-section (1B), the Secretary may at any time –

(a)    vary a fishery licence or a permit; or

(b)    vary or revoke a condition imposed by her or him or impose a new condition on a fishery licence or a permit; or

(c)    vary a class of fishery licence; or

(d)    vary or revoke a condition imposed by the Secretary or impose a new condition on a class of fishery licence.

(1A)    The Secretary may only exercise a power conferred by sub-section (1)(c) or (d) to give effect to a management plan declared under section 28, or to any change to such a plan.

(1B)    The Secretary must not vary –

(a)    a fishery licence or a permit; or

(b)    a condition on a fishery licence or permit; or

(c)    a class of fishery licence; or

(d)    a condition on a class of fishery licence –

if the variation would be inconsistent with any regulations, management plan or Ministerial direction.

(2)    The Secretary may act under sub-section (1) –

(a)    on her or his own initiative; or

(b)    on the written application of the person who holds the licence or permit.

(3)    Before acting on the Secretary’s own initiative in respect of sub-section (1)(a) or (b), the Secretary must give the person who holds the licence or permit written notice of the action that the Secretary proposes to take and must allow the person to make written representations about the intended action within 14 days.

(3A)    Before taking action under sub-section (1)(c) or (d), the Secretary must –

(a)    give the consultative body and the relevant recognised peak body written notice of the action that the Secretary proposes to take and must consider any written submissions made by the consultative body or the relevant recognised peak body about the intended action within 28 days after the giving of the notice; and

(b)    publish notice of the action that the Secretary proposes to take in a newspaper circulating generally in Victoria within 5 days after giving the consultative body and the relevant recognised peak body written notice under paragraph (a).

(4)    Sub-sections (3) and (3A) do not apply if the Secretary imposes, varies or revokes a condition for the purpose of removing any inconsistency between the licence or permit and any regulation, Order in Council, fisheries notice, management plan, order, Ministerial direction or intergovernmental agreement or arrangement.

(5)    If the Secretary imposes, varies or revokes a condition of a licence or permit, the change has no effect until the Secretary notifies the holder of the licence or permit in writing of the change.

(6)    The holder of a licence or permit must return the licence or permit to the Secretary within 10 days of being given notice that the Secretary has decided to change the licence or permit, unless he or she has a reasonable excuse for not doing so.

39    It is plain, therefore, that the appellant’s licences were taken subject to an express condition that they might be varied, and were subject to a statutory power of the Secretary to effect variations as well as to the Ministerial discretions referred to earlier.

National Parks (Marine National Parks and Marine Sanctuaries Act) 2002 (Vic)

40    In 2002, the Victorian Parliament enacted the National Parks (Marine National Parks and Marine Sanctuaries Act) 2002 (Vic) (“Marine Parks Act”). The Marine Parks Act made amendments to the National Parks Act and to the Fisheries Act. The National Parks Act was amended so that newly described marine parks and marine sanctuaries (more extensive than the marine protected areas referred to in the arrangement) were identified in the coastal waters of Victoria (s 17D and Schedule 7 of the National Parks Act) and by introduction of a statutory prohibition on taking fish (including abalone, under s 3 of the National Parks Act and s 5(1)(c) of the Fisheries Act) from a marine park or marine sanctuary (s 45A of the National Parks Act). Section 45A(7) expressly provided:

45A    Fishing offences in marine national parks and marine sanctuaries

…

(7)    A licence, permit or other authority (however described) issued under the Fisheries Act 1995 does not authorise the holder to act in a manner that is prohibited by this section.

41    At the same time, the Fisheries Act was also amended to provide for compensation to nominated classes of access licence holders and a regime for the assessment of such compensation arising from loss of access to the new marine parks and marine sanctuaries (see Part 10 of the Fisheries Act). These entitlements and arrangements did not apply to abalone fishermen or to access licence holders in the central zone in particular.

42    It is the appellant’s complaint about the operation of the Marine Parks Act which has generated, and is at the heart of, the present proceedings. In order for the appellant to identify a reasonably arguable case that the provisions of the Marine Parks Act which excluded him from some areas were invalid, he had to show why Victoria had no power to legislate about those matters. Any such argument depends on the provisions of the Constitution.

The constitutional provisions

43    The provisions of the Constitution which require attention on the appeal are s 51(xxxi) and s 109. They provide:

51    The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

…

(xxxi)    the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;

and:

109    When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Section 51(xxxi) of the Constitution

44    Section 51(xxxi) is a constitutional guarantee which limits the power of the Commonwealth. In order to understand how s 51(xxxi) might have any possible application to the facts of the present case, it is necessary to identify what property the appellant might be said to have lost and who might be said to have acquired it. In Harper, Brennan J dealt in detail with an arrangement of the kind applying in the present case. Brennan J said (at 326):

Abalone inhabit the waters adjacent to Tasmania. In the mature state, abalone remain in contact with the seabed, normally attached by suction to rock surfaces. They are able to move in snail-like fashion by means of their single muscular foot. In the larval stage, abalone drift supporting themselves in the water column for some days before settling on the seabed. When young, abalone have a high mortality rate.

and (at 330):

… the right of fishing in the sea and in tidal navigable rivers, being a public not a proprietary right, is freely amenable to abrogation or regulation by a competent legislature: see Attorney-General (British Columbia) v. Attorney-General (Canada) [1914] AC at pp. 170, 172; Attorney-General (Canada) v. Attorney-General (Quebec) [1921] AC 413, at pp. 421-422, 427. Although there is authority for the view that the public right of fishing is sustained by the Crown's title to the sub-soil (Mayor, &c. of Carlisle v. Graham (1869) LR 4 Exch 361, at pp. 367-368) the competence of a State legislature to make laws regulating a right of fishing in such waters is not dependent upon the State's possession of a proprietary right in the bed of the seas or rivers over which such waters flow. Lord Herschell pointed out that “there is a broad distinction between proprietary rights and legislative jurisdiction”: Attorney-General (Canada) v. Attorney-Generals (Ontario, Quebec, and Nova Scotia) [1898] AC 700 at p. 709.

and (at 332):

… The public right of fishing for abalone in State fishing waters is thus abrogated and private statutory rights to take abalone in limited quantities are conferred on the holders of commercial and non-commercial abalone licences. The Regulations thus control the exploitation of a finite resource in order to preserve its existence. They seek to achieve this end by imposing a general prohibition on exploitation followed by the grant of licences for the taking of limited quantities of abalone. The only compensation, if compensation it be, derived by the public for loss of the right of fishing for abalone consists in the amounts required to be paid by holders to obtain abalone licences under the Regulations.

and (at 335):

… When a natural resource is limited so that it is liable to damage, exhaustion or destruction by uncontrolled exploitation by the public, a statute which prohibits the public from exercising a common law right to exploit the resource and confers statutory rights on licensees to exploit the resource to a limited extent confers on those licensees a privilege analogous to a profit À prendre in or over the property of another. …

…

If the right to fish for abalone were created in diminution of proprietary rights of the owner of the seabed and without the owner's consent, some question as to the validity of the law might have arisen, for the legislature of a State may not be competent to create proprietary rights out of property beyond the boundaries of the State and to which the State has no title: cf. Attorney-General (Canada) v. Attorney-Generals (Ontario, Quebec, and Nova Scotia) [1898] AC, at p 713. That problem does not arise in this case, however, for the management of the fishery in accordance with Tasmanian law is arranged between the Commonwealth and Tasmania. If title be needed to support the fishing rights conferred on the abalone licence holders, the arrangement made under the Act and the Commonwealth Act testifies to the consent of the Crown in right of the Commonwealth and of Tasmania to the creation of those rights.

45    Mason CJ, Deane and Gaudron JJ in one joint judgment, and Dawson, Toohey and McHugh JJ in another, agreed with these aspects of Brennan J’s judgment. Mason CJ, Deane and Gaudron JJ added the following (at 325):

… What was formerly in the public domain is converted into the exclusive but controlled preserve of those who hold licences. The right of commercial exploitation of a public resource for personal profit has become a privilege confined to those who hold commercial licences. This privilege can be compared to a profit À prendre. In truth, however, it is an entitlement of a new kind created as part of a system for preserving a limited public natural resource in a society which is coming to recognize that, in so far as such resources are concerned, to fail to protect may destroy and to preserve the right of everyone to take what he or she will may eventually deprive that right of all content.

(See also Northern Territory of Australia v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 per Gleeson CJ, Gummow, Hayne and Crennan JJ at [19]-[28]; per Kirby J at [63] and per Kiefel J at [138].)

46    The consequence, for the present case, is that the following propositions must be accepted. First, a licence holder such as the appellant has no property in abalone until it is taken. Secondly, a licence of the kind with which the present case is concerned confers private statutory rights to take abalone in limited quantities from identified areas. Thirdly, the private statutory rights, like any public rights which preceded them, are freely amenable to abrogation or regulation by a competent legislature.

47    In the legal context set by Harper, any property which the appellant may have depends exclusively and entirely on the creation of rights by the Victorian Parliament, in this case by or under the Fisheries Act. It is not disputed that the appellant has property in his licence. However, that property is represented by the rights given by the licence from year to year and from time to time. No property comes into existence which is independent of the licence or is free of any conditions or restrictions which apply to the licence. Nor does any immediately apparent fetter exist upon the power of the Victorian Parliament to extinguish or modify the licence, or vary the conditions on which it is held. Those are important matters for the argument which the appellant put to the primary judge and on the appeal.

48    In ICM Agriculture v Commonwealth of Australia (2009) 240 CLR 140 (“ICM”), French CJ, Gummow and Crennan JJ said, of bore licences issued by New South Wales (at [84]):

    However, in the present case, and contrary to the plaintiffs' submissions, the groundwater in the Lower Lachlan Groundwater System was not the subject of private rights enjoyed by them. Rather, and as these reasons have sought to demonstrate, it was a natural resource, and the State always had the power to limit the volume of water to be taken from that resource. The State exercised that power from time to time by legislation imposing a prohibition upon access to and use of that natural resource, which might be lifted or qualified by compliance with a licensing system. The changes of which the plaintiffs complain implemented the policy of the State respecting the use of a limited natural resource, but that did not constitute an "acquisition" by the State in the sense of s 51(xxxi): see Chapman v Luminis Pty Ltd [No 4] (2001) 123 FCR 62 at 264-274; Walden v Administration of Norfolk Island (2007) 212 FLR 345 at 352. …

49    If that principle applies in the present case, the appellant cannot invoke the constitutional guarantee in s 51(xxxi). Similarly, Hayne, Kiefel and Bell JJ said (at [144]):

    The second point to bear in mind is that bore licences and aquifer access licences are each creatures of statute. And each form of licence is, or was, a statutory dispensation from a general prohibition against the taking of groundwater. Because all sub-surface water was vested in the State in 1966, none of the licences was a regulation of some common law right to extract groundwater. That right had disappeared altogether in 1966 with the vesting of sub-surface water in the State, if, that is, it had not been extinguished previously by the earlier legislation regulating bores. And because the rights given by the licences were statutory rights, they were inherently susceptible (Health Insurance Commission v Peverill (1994) 179 CLR 226; Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; Attorney-General (NT) v Chaffey (2007) 231 CLR 651) to change or termination. (As the description of legislative history set out earlier shows, those rights have often been changed.) Since at least 1966, the rights to extract specified volumes of water in accordance with the bore licences could be restricted or controlled. And from 1984, the terms and conditions of the licences included a condition permitting variation of the water allocation.

and also [at [147]):

    It may readily be accepted that the bore licences that were cancelled were a species of property. That the entitlements attaching to the licences could be traded or used as security amply demonstrates that to be so. It must also be accepted, as the fundamental premise for consideration of whether there has been an acquisition of property, that, until the cancellation of their bore licences, the plaintiffs had “entitlements” to a certain volume of water and that after cancellation their “entitlements” were less. Those “entitlements” were themselves fragile. They could be reduced at any time, and in the past had been. But there can be no acquisition of property unless some identifiable and measurable advantage is derived by another from, or in consequence of, the replacement of the plaintiffs’ licences or reduction of entitlements (Newcrest (1997) 190 CLR 513 at 560 per Toohey J; at 561 per Gaudron J; at 634 per Gummow J). That is, another must acquire “an interest in property, however slight or insubstantial it may be” (Tasmanian Dam Case (1983) 158 CLR 1 at 145 per Mason J; Tap Manufacturers (1993) 175 CLR 480 at 500 per Mason CJ, Brennan, Deane and Gaudron JJ; at 528 per Dawson and Toohey JJ).

50    This last point represents a further point of difficulty for the appellant. No person has acquired the suggested interest which the appellant has lost, even on the appellant’s approach to the matter. Access to marine parks and sanctuaries has been denied. The ability to take abalone in those areas has been removed. It may be accepted for present purposes that the appellant’s ability to meet his quota was to some extent affected or curtailed. Nevertheless, none of those matters corresponds to any identifiable degree with the acquisition by another of any of the privileges concerned.

51    Furthermore, none of the consequences for the appellant occur as the result of a law of the Commonwealth as contemplated by s 51(xxxi). Those consequences are the result of the exercise of legislative power by Victoria in an area where it has title, property and full legislative authority independently of the arrangement for management of the fishery by Victoria.

Section 109 of the Constitution

52    In order to make an assessment of an argument based on s 109 of the Constitution, it is necessary not only to identify the law of the State which is impugned, but also to identify the law of the Commonwealth or constitutional provision with which it is alleged to be inconsistent. In the present case, there is no immediately apparent inconsistency between either the Marine Parks Act, or the Fisheries Act, with any law of the Commonwealth or with the Constitution.

53    Victoria has an independent power to regulate abalone fishing in its adjacent waters. The Commonwealth has, in any event, withdrawn from the field so far as management of the fishery is concerned, leaving it to be managed under Victorian law. Victoria has title and property in the seabed where the marine parks and marine sanctuaries are situated and the Commonwealth does not, even though it retains sovereignty. There is, therefore, no apparent fetter on the legislative power of Victoria, whether with regard to access to the marine parks and marine sanctuaries or with regard to access to the fishery.

The findings of the primary judge

54    It is clear from the judgment under appeal that the primary judge had some misgivings about the procedure which he had inherited. Nevertheless, his Honour determined to proceed. The matters which explained his Honour’s misgivings appear to have been resolved by the fact that it is now accepted by the appellant that the answers to the questions posed will be decisive.

55    The proceedings were approached as though they involved a demurrer. That is to say, it was accepted that the primary judge should assume that the appellant would be able to establish any relevant factual assertion in his proposed pleading. It is evident from the discussion of a number of matters that this was the approach adopted, and that the appellant had the benefit of this assumption at a number of points in the discussion.

Question 1

56    This question asked whether the proposed pleading identified rights which were “property”. The primary judge recorded (at [23]):

    The respondents accept that a licence, issued under the Fisheries Act may (subject to the question of defeasibility to which I will return) properly be characterised as property within the meaning of s 51(xxxi). They deny that the other items fall within the concept of property for the purposes of the placitum.

and (at [26] to [27]):

    The licence … confers a valuable right. It is granted for a fixed term. It is assignable. It is only liable to cancellation upon cause being shown. In the event of the death of the licence holder the licence is deemed to be an asset of his or her estate.

    The other four asserted rights appear to be inextricably linked to the licence. Certainly the expectation of future harvests and the applicant’s commercial interests and good will [sic] exist only because of the applicant having held the licence.

and (at [29]):

    There is no suggestion in the FASC that the applicant enjoyed any rights, as a member of the public, to fish for abalone in the Central Zone (or anywhere else) prior to the enactment of the licensing scheme under the Fisheries Act. Even had the applicant enjoyed such rights they would have been abrogated upon the commencement of the licensing scheme: see Harper v Minister for Sea Fisheries (1989) 168 CLR 314 at 334-5.

57    The primary judge answered the first question as follows (at [32]):

    Question 1 should be answered: Yes, but only in respect of the abalone fishing licence number A41.

58    Some complaint was made on the present appeal that the primary judge failed to refer to the quota available in conjunction with the licence, but the complaint is without any merit. The primary judge quite clearly acknowledged that the rights which accompanied the licence constituted “property” in the relevant sense. The primary judge was correct to draw attention to the fact that the appellant did not enjoy any rights which were independent of the licence (whether described as goodwill, “commercial interests”, expectation of future harvests or in any other way) and to draw attention to the fact that the source of all the rights, and the consequent property, was statutory.

Question 2

59    The primary judge introduced his discussion of this question, and its various facets, in the following way (at [33] to [34]):

    Given the answer to question 1 the only property of the applicant which might be subject to question 2 is the statutory licence.

    Question 2 asks whether any of or a combination of the NP Act, the FM Act or an arrangement made between the Commonwealth and the State of Victoria in October 1997 constituted a law of the Commonwealth Parliament with respect to “the acquisition of property” within the meaning of s 51(xxxi) of the Constitution.

60    The first difficulty for the appellant identified by the primary judge was that the (Commonwealth) Management Act was in force before the (Victorian) Fisheries Act and the issue of any licence to the appellant under the Fisheries Act. It could therefore not be argued that by enacting the Management Act the Commonwealth Parliament had acquired the property of the appellant created under the Fisheries Act by the grant of a licence.

61    Then the primary judge identified two further difficulties for the appellant, saying (at [40] to [41]):

    The applicant’s argument confronts two further difficulties. The first is that, under the Fisheries Act, his licence, during the entire period during which he held it, was defeasible. The legislative scheme provided for the imposition of conditions on the licence during its currency. It was open to the regulator at any time to limit the areas within the Central Zone from which abalone could be harvested under the licence. The NP Act effected such a change. The provisions of the Fisheries Act which authorised the variations so qualified the applicant’s rights under the licence that it did not constitute property which could be acquired within the meaning of s 51(xxxi) of the Constitution. Furthermore, such a variation to the entitlements did not constitute an acquisition of property. This is because what occurred was the modification of a right, granted by the permit, which had no existence apart from statute. Any proprietary rights which attached to the permit were liable to defeasance. Upon their defeasance, there could be no acquisition of property for the purposes of s 51(xxxi): see Bienke at 584-7; Commonwealth v WMC Resources Limited (1998) 194 CLR 1 at 38, 51-5, 73-5.

    The second problem is that it cannot be said that s 45A of the NP Act brought about an acquisition of the applicant’s property. What it did was to vary the entitlements he enjoyed under the licence. This did not involve the transfer of any relevant benefit to any third party. In the absence of any such transfer no acquisition was effected: see Commonwealth v WMC Resources Limited at 16-7, 35-6, 48, 51-2 and 71-2.

62    Then the primary judge went on to discuss the appellant’s reliance on ICM, Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242 and Spencer v Commonwealth of Australia (2010) 241 CLR 118. The primary judge accepted that he should assume that the appellant could make good the factual contentions advanced to justify reliance on these three cases saying (at [54] to [55]):

    In his FASC the applicant alleges that his property was acquired pursuant to the NP Act and that this Act was “made in furtherance of an agreement” between the Commonwealth and the State of Victoria. Alternatively, it was pleaded that the property was acquired under the NP Act “pursuant to or in furtherance of an informal agreement or arrangement or joint venture not part of the formal arrangement” between the Commonwealth and the State of Victoria made under the FM Act and the Fisheries Act.

    It must be assumed, for present purposes, that these allegations can be established and that the question left open by three of the members of the majority in ICM might, at trial, be resolved favourably to the applicant.

63    However, the argument was rejected for two reasons, stated thus (at [56] to [59]):

    Even if it were to be determined that the Commonwealth could not, consistently with the requirements of s 51(xxxi), enter into an informal arrangement of this kind, it would not follow that legislation passed by the State pursuant to such arrangements would be invalidated even if it were found to be furthering a Commonwealth purpose of acquisition on less than just terms.

    It is not necessary to explore this issue further because, as I have already found, the applicant would fail, in any event, because, on the pleaded facts, no acquisition of property has occurred within the meaning of s 51(xxxi) of the Constitution whether under legislation, a formal or informal agreement or otherwise.

    The authorities relied on by the applicant do not, therefore, assist his arguments. On the contrary, they establish that no relevant acquisition of property has occurred.

    Each part of question 2 should, therefore, be answered: No.

Question 3

64    It was unnecessary to answer this question in light of the answers to Questions 1 and 2.

Question 4

65    The primary judge identified the ways in which an inconsistency within the meaning of s 109 of the Constitution might arise, saying (at [63]-[65]):

A relevant conflict may arise in one of two broad ways: when there is a direct conflict between a Commonwealth and a State law or where it is not possible to point to a textual conflict between the laws but the Commonwealth legislation manifests an intention to “cover the field” to the exclusion of the States: see Jemena Asset Management (3) Pty Ltd v Coinvest Limited (2011) 280 ALR 206 at 214-217.

The applicant’s submissions do not point to any provisions of the two Acts which might be said to give rise to a direct inconsistency. I can discern none.

Indirect inconsistency could only arise if it could be demonstrated that the Seas and Submerged Lands Act was intended by the Commonwealth Parliament to cover the field occupied by the [Marine Parks Act]. An examination of the two Acts discloses no such intention.

66    The primary judge then went on to examine in more detail whether the assertion of Commonwealth sovereignty by the SSLA might give rise to indirect inconsistency with the Marine Parks Act and dismissed that contention, saying (at [71]-[72]):

No provision of the [Marine Parks Act] seeks to derogate in any way from the Commonwealth’s assertion of sovereignty over its territorial sea and exclusive economic zone.

For these reasons, question 4 will be answered: No.

Question 5

67    It was unnecessary to answer this question in light of the answer to Question 4.

Question 6

68    As earlier indicated, this question was not the subject of the appeal.

Question 7

69    As earlier indicated, this question was abandoned before the primary judge.

Question 8

70    As earlier indicated, this question was abandoned in the appeal.

The appeal

71    Many of the matters argued before the trial judge were re-agitated on the appeal, but the attempts made to identify any relevant error in the analysis by the trial judge were unsuccessful.

72    The written and oral submissions for the appellant on the appeal spent some time arguing for matters which the primary judge accepted – e.g. that the licence held by the appellant from time to time should be regarded as a form of property. The submissions also spent some time arguing against propositions that formed no part of the reasoning of the primary judge – e.g. that it was erroneous to say the appellant’s property could not be acquired. The written submissions argued that the appellant held property at common law in the form of a public right to take abalone attached to the seabed. The submission is untenable. The right to take abalone was conferred by, and limited by the conditions of, the licence as varied from time to time. The written submission argued that the appellant held property in the form of goodwill, independent of any statutory rights. The goodwill was said to be “an independent right of property recognised by the common law”. This contention was correctly rejected by the primary judge. The appellant’s written submissions referred in support of it to Commissioner of Taxation v Murry (1998) 193 CLR 605. This authority does not support the submission, and is destructive of it. Gaudron, McHugh, Gummow and Hayne JJ pointed out (at [12]) that:

…goodwill is really a quality or attribute derived from other assets of the business. ...

73    That is a major difficulty for this part of the appellant’s argument. All the appellant’s property derived from the licence and the rights which accompanied it.

74    The appellant’s submissions about how the appellant’s property was acquired included the following about the effect of the Marine Parks Act:

The 2002 law leached economic value from the Appellant’s interests by prohibiting the reasonable user [sic] of and access to his property. The fishing prohibition effected the acquisition…

75    The appellant had no property in untaken abalone and no right of access to any particular area independent of his access licence, which was always subject to any statutory restrictions which might apply to modify or displace those rights. The appellant’s argument proceeded from a false premise. When the premise is corrected, the argument fails.

76    Moreover, as earlier indicated, the Minister had extensive powers to revoke or amend the conditions of the appellant’s licence and to prohibit how much abalone he could take, as well as the taking of any abalone, from any particular waters under Pt 4 Div 4 of the Fisheries Act despite any other provision of that Act to the contrary (see s 68). The Minister’s ability to exercise those powers existed prior to the conduct complained of by the appellant. His licence was therefore always susceptible to the making of a regulation or a fisheries notice that prohibited him from taking abalone in a specified area including an area subsequently declared as, or made, a marine park.

77    The written argument that there was an inconsistency between a State law and a Commonwealth law commenced thus:

It is submitted that it is an anomalous and unjust result that the 2002 State law may validly achieve what a Commonwealth law in similar terms could not in an area of legislative power exclusively that of the Commonwealth but conferred on the State by it…

78    It was also submitted:

… fisheries laws outside State limits is one of 13 exclusive Commonwealth powers over which States have no reserved powers. …

79    These submissions misstate important constitutional principles. It is quite clear from the authorities referred to earlier that the States have authority to legislate with extra-territorial effect (so long as not inconsistent with federal law) apart from any grant of power from the Commonwealth.

80    It would be unproductive to dwell further on the errors and misstatements in the submissions for the appellant, whether written or oral. They did not identify a relevant error in the reasons of the trial judge or afford a reason to provide a different answer to any of the questions posed for his attention.

81    Harper is a sufficient authority to resolve any debate about the character of the rights held by the appellant. They were created by the Victorian Parliament in the exercise of its own legislative power and they could be modified by the exercise of the same power. It is undeniably correct to say that all of the appellant’s rights arose from the provisions of the Fisheries Act. They had no independent existence. The rights pursuant to which, from year to year, the appellant could take abalone were subject to such restrictions as to area and permissible catch as the Victorian Parliament might impose or authorise. Thus alteration in that way, whether by the enactment of the Marine Parks Act or otherwise, did not come within the operation of s 51(xxxi) of the Constitution.

82    The postulation of an arrangement of some sort between the Commonwealth and Victoria did not supply any factor which might engage the operation of s 51(xxxi) in a way which would affect the authority of the Victorian Parliament or the validity of the Marine Parks Act. Even if there was some arrangement (formal or informal) between the Commonwealth and Victoria which was reflected in the Marine Parks Act, that would not signify that Victorian legislation, dealing with areas where Victoria had title, property and full legislative capacity, was invalid, as s 51(xxxi) of the Constitution is not addressed directly to the power of a State Parliament.

83    In any event, there was no acquisition of property on any view as no other entity gained a benefit thereby. There was, in all these circumstances, no arguable case for the infringement of the constitutional guarantee in s 51(xxxi) of the Constitution and the primary judge was correct to so find.

84    The case based on s 109 of the Constitution can fare no better. The assertion of Commonwealth sovereignty in the SSLA has been repeatedly held by the High Court not to diminish the power of the State Parliaments to pass extra-territorial legislation (e.g. Pearce v Florenca; Robinson v Western Australian Museum (1977) 138 CLR 283, Port MacDonnell). In any event, the Commonwealth withdrew when it passed title and property to Victoria under the State Title Act, when it gave legislative authority under the Coastal Powers Act and when it endorsed the arrangement whereby management of the fishery itself would occur under Victorian laws.

Conclusion

85    It has not been shown that the primary judge made any error in answering the questions posed by Ryan J. On the contrary, in our view those answers were correct. The consequence is that the appellant has no arguable claim for relief in the proceedings commenced on 16 June 2008.

86    The appeal should be dismissed with costs. The proceedings below should be finalised by dismissing the application filed on 16 June 2008, also with costs.

Associate: 

Dated:    8 April 2013