FEDERAL COURT OF AUSTRALIA

Babington v Commonwealth of Australia [2016] FCAFC 45

ORDERS

THE COURT ORDERS THAT:

1.    The case and the questions set out in the special case dated 28 August 2015 pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth) and r 38.01 of the Federal Court Rules 2011 (Cth) be determined as follows:

Q1:    Is the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) authorised by the Fisheries Management Act 1994 (NSW) (FMA)?

Ans:    Yes.

Q2:    Are cll 2.2, 2.16, 2.19, 3.2, 5.2, 5.11, 5.13, 6.3, 6.16, 6.20, 7.2, 7.6, 7.9(5), 7.12 and 7.14 of the Marine Estate (Management Rules) Regulation 1999 (NSW) authorised by the Marine Estate Management Act 2014 (NSW)?

Ans:    Yes.

Q3:    Are the FMA and/or the Marine Estate Management Act 2014 (NSW) valid exercises of the legislative power of the Parliament of NSW pursuant to:

a.    section 5 of the Constitution Act 1902 (NSW); or

Ans: Yes.

b.    section 2(1) of the Australia Act 1986 (Cth)?

Ans: Yes.

Q4.    Is the Constitutional Powers (Coastal Waters) Act 1979 (NSW) invalid because it purported to seek an alteration to the limits of the State of NSW in a manner not authorised by ss 123 or 128 of the Constitution?

Ans:    Not necessary to answer.

Q5.    Is the Coastal Waters (State Powers) Act 1980 (Cth) invalid because it exceeds the power conferred on the Commonwealth Parliament by s 51(xxxviii) of the Constitution?

Ans:    Not necessary to answer.

Q6:    Are the Coastal Waters (State Powers) Act 1980 (Cth) and/or the Coastal Waters (State Titles) Act 1980 (Cth) invalid because they purport to alter the limits of the State of NSW in a manner not authorised by ss 123 or 128 of the Constitution?

Ans:    Not necessary to answer.

Q7:    Are the FMA and/or the Marine Estate Management Act 2014 (NSW) valid exercises of the legislative power of the Parliament of NSW pursuant to the power conferred by the Coastal Waters (State Powers) Act 1980 (Cth)?

Ans:    Yes.

Q8:    Are any of the following Acts or Regulations inconsistent with s 12 or Pt 5 of the Fisheries Management Act 1991 (Cth) for the purpose of s 109 of the Constitution:

a.    the FMA, insofar as it operates in relation to abalone?

Ans: No.

b.    the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW)?

Ans: No.

c.    cll 2.2, 2.16, 2.19, 3.2, 5.2, 5.11, 5.13, 6.3, 6.16, 6.20, 7.2, 7.6, 7.9(5), 7.12 and 7.14 of the Marine Estate (Management Rules) Regulations 1999 (NSW)?

Ans: No.

Q9:    Is the fishery described in the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) authorised by the FMA a fishery within the meaning of the Constitution s 51(x)?

Ans:    Yes.

Q10:    Are the FMA, insofar as it operates in relation to abalone, or the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW), invalid by reason of s 51(x) of the Constitution?

Ans:     No.

Q11:    Should the Court issue a writ of certiorari quashing the Abalone Share Management Plan (NSW)?

Ans:    No.

Q12:    Who should pay the costs of the special case?

Ans:    The applicants should pay the respondents’ costs of the Special Case as taxed or agreed.

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

REASONS FOR JUDGMENT

The Court:

1. Introduction

1    The applicants are persons who wish to take abalone for sale from waters adjacent to the State of New South Wales. They are presently prevented from doing so by two sets of New South Wales laws that they submit are constitutionally invalid. These laws are, first, the Fisheries Management Act 1994 (NSW) (‘the NSW FMA’) and a management plan made by regulation under that Act, the Abalone Share Management Plan (‘the Plan’); and, secondly, the Marine Estate Management Act 2014 (NSW) (‘the MEMA’) and a regulation made under it, the Marine Estate Management (Management Rules) Regulation 1999 (‘the Rules’).

2    The issues come before this Court by means of a special case stated by a judge of this Court under s 25(6) of the Federal Court of Australia Act 1976 (Cth) (‘the Special Case’). For the reasons that follow, the applicants’ arguments are without merit and should be rejected.

3    It is useful to begin, in the first instance, with the nature of the State regulation involved.

2. The Scheme of the NSW FMA

4    The NSW FMA applies by s 7(1)(a) to all waters which are within the limits of New South Wales. As explained by the High Court in New South Wales v Commonwealth (1975) 135 CLR 337 (‘the Seas and Submerged Lands Case’), New South Wales extends only to the mean low water mark. Hence, the effect of s 7(1)(a), considered in isolation, is to apply the NSW FMA only to in-land waters and tidal waters above the low water mark. However, s 7(1)(c) extends the operation of the NSW FMA to a larger body of waters where there is an arrangement with the Commonwealth relating to the management of a ‘fishery’. It provides (relevantly) that the Act applies:

‘for purposes relating to a fishery…that is managed in accordance with the law of the State pursuant to an arrangement under Division 3 of Part 5–in relation to any waters to which the legislative powers of the State extend with respect to that fishery, whether pursuant to section 5 of the Coastal Waters (State Powers) Act 1980 of the Commonwealth or otherwise’.

5    A ‘fishery’ is defined in s 6(1) to mean a ‘class of fishing activity’. By s 6(2)(a) a fishery may be identified, inter alia, by reference to ‘a species or other class of fish’. Section 5(2) defines fish to include, relevantly, ‘aquatic molluscs’. Abalone are aquatic molluscs. Section 42(1) then provides that Schedule 1 to the Act specifies share management fisheries. Clause 4 of Schedule 1 provides that ‘[t]he abalone fishery consists of abalone (Haliotis rubra) taken by any method from any waters’. Part 3 of the NSW FMA then makes provision for the management of a fishery by means of a share management plan that is made by a regulation: s 60. The Plan was a share management plan so made and is the share management plan for the abalone fishery.

6    Section 7(1)(c), in its terms, will extend the operation of the NSW FMA to any waters to which the legislative powers of New South Wales itself extend in relation to the management of the abalone fishery if, and only if, the New South Wales law providing for that management is made ‘pursuant to an arrangement under Division 3 of Part 5’. Division 3 of Part 5 of the NSW FMA provides for co-operative management of fisheries with the Commonwealth by means of ‘an arrangement’. In the case of the abalone fishery, there is such an arrangement. It is the ‘Arrangement between the Commonwealth of Australia and the State of New South Wales in relation to the Mollusc Fishery’ dated 25 July 1990, Commonwealth of Australia Gazette (No GN 2, 16 January 1991) p 225 (‘the Arrangement’).

7    In their submissions to this Court the applicants sought to deny that the Arrangement existed, submitting instead that it was invalid. For procedural reasons this course is not open to them. Further, even if it had been, the argument for the invalidity of the Arrangement was misconceived.

8    As to the procedural difficulty, apart from the challenge in their submissions to this Court, the applicants do not challenge the validity of the Arrangement in any part of their proceeding. No such allegation is to be found in their Amended Statement of Claim and none of the 12 questions posed for this Court’s consideration on the Special Case mentions the Arrangement, still less raises a question about its validity.

9    The applicants submitted that such an allegation was to be discerned from paragraph 8 of the Special Case:

‘8.    The NSW abalone fishery is managed by the NSW Department of Primary Industries, under NSW law pursuant to an arrangement between the Commonwealth and the State of NSW purporting to have been signed on 25 July 1990 in relation to the mollusc fishery, described below at [35]-[36].’

(bold emphasis added)

10    It is the word ‘purporting’ which is said to indicate that it was alleged that the Arrangement was invalid. We read ‘purporting’ as applying to the date which immediately follows it and not as concealing an unparticularised argument about the validity of the Arrangement. Only that reading is consistent with paragraph 36 of the Special Case which proceeds on the basis that the Arrangement ‘continues in effect’:

‘36.    Section 7 of the Fisheries Legislation (Consequential Provisions) Act 1992 (Cth) commenced on 3 February 1992. Clause 13 of Sch 7 to the FMA commenced on 16 January 1995. The Arrangement has not been varied and continues in effect as if it had been made under Div 3 of Pt 5 of the Fisheries Management Act 1991 (Cth), and is taken to be an arrangement made under Div 3 of Pt 5 of the FMA. Part 5 of the Fisheries Management Act 1991 (Cth) commenced on 3 February 1995.’

(bold emphasis added)

11    The applicants submitted that they challenged the validity of the NSW FMA and that the invalidity of the Arrangement was to be seen as but a step along the way to that conclusion. No doubt, it is true that it is indeed a step along the way in their pursuit of the argument they now wish to raise but that argument is not one advanced in their Amended Statement of Claim or in the Special Case to which they consented.

12    Nor is this to be seen as a mere procedural nicety. Because the applicants failed to make any formal allegations about the validity of the Arrangement, there is presently no issue between the parties about it. It is not to the point that it has been raised in the applicants’ written submissions because it is not those submissions which define the issues.

13    For the validity of the Arrangement to be in issue it would be necessary for the applicants to amend their Amended Statement of Claim to raise it as such. No such application was made. No doubt this was because at the time that Perram J stated the Special Case, on 28 August 2015, the applicants agreed with the respondents that there should be included a formal notation to the order that they would not seek further to amend their pleadings. That notation was in these terms:

‘The applicants agree that in the circumstances of the matter proceeding pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth):

(a)    the only remaining question after determination of the stated case would relate to compensation; and

(b)    the applicants will not seek to amend the Amended Statement of Claim.’

14    Consequently, it is not open to the applicants to seek to raise a fresh case based on the invalidity of the Arrangement.

15    In any event, the proposed argument for the invalidity of the Arrangement sufficiently lacks merit that even if it were open to the applicants to raise the point as a matter of procedure, we would not permit this to occur as a matter of discretion. The argument was that it was ultra vires the former Fisheries Act 1952 (Cth) (repealed) to make an arrangement which applied, as the Arrangement does, to all molluscs. Two reasons were advanced for this and both turned on s 12H(5) of that Act which was as follows:

‘(5)    An arrangement under this Division may define the fishery in respect of which it is to apply by reference to an organism that is a sedentary organism for the purposes of the Continental Shelf (Living Natural Resources) Act 1968 as if that organism were included in the definition of “fish” in section 4 and, where such an arrangement is in force –

(a)    that organism, to the extent that it is the subject of the fishery defined in the arrangement, shall be deemed to be included in the definition of “fish” in section 4; and

(b)    the Continental Shelf (Living Natural Resources) Act 1968 does not apply to or in relation to that organism, to the extent that that organism is the subject of that fishery.’

16    The first argument was that subs (5) would only be engaged if an arrangement specifically referred to a sedentary organism. It is not in dispute that the Arrangement does not use the words ‘sedentary organism’. However, subs (5) contains no requirement that it should. The second argument was that the Arrangement, by referring to all molluscs, failed to distinguish sedentary molluscs (such as abalone) from peripatetic ones (such as octopus). Again, there is no such requirement. The Court does not propose, therefore, to entertain any argument that the Arrangement is invalid. It is not properly raised; it is, in any event, without merit.

17    Returning then to the Arrangement itself, cl 1 defines the mollusc fishery in geographical terms and by reference to molluscs. In effect, the mollusc fishery consists of molluscs located in Australian waters adjacent to New South Wales. It will be necessary to refer to this in more detail in due course, but it will suffice for present purposes to observe that this means the waters seaward of the mean low water mark and extending out to the edge of Australia’s exclusive economic zone, that is to say, out to 200 nautical miles from baselines drawn on the coast.

18    The effect of s 7(1)(c) is, therefore, to extend the operation of the NSW FMA to the abalone fishery beyond the limits of New South Wales (i.e. the mean low water mark) to as far as the legislative competence of New South Wales permits but not beyond the 200 nautical mile limit. Before turning to what the NSW FMA and the Plan do by way of regulation of the abalone fishery, it is worth noting that the effect of s 7(1)(c) is to confine the operation of the NSW FMA to the limits of the State’s legislative competence. As will be seen, the applicants’ first argument turns on the proposition that New South Wales lacks legislative competence beyond the mean low water mark to legislate in respect of the abalone fishery. It will be apparent from s 7(1)(c) that if that were so its effect will be that the NSW FMA and the Plan can never be invalid because, ex hypothesi, it will not apply them seaward of the mean low water mark. This may result in an interpretation of the NSW FMA and Plan which achieves the result for which the applicants contend – namely, the absence of State regulation seaward of the mean low water mark – but it can never result, as they presently contend it does, in the invalidity of the NSW FMA or the Plan.

19    Granted then that the NSW FMA and the Plan will apply in relation to the management of the mollusc fishery to any waters to which the legislative competence of New South Wales extends, what scheme of regulation is established by them? In summary, it is unlawful to take abalone for sale from the abalone fishery without a number of preconditions being satisfied. A person seeking to do so must hold a commercial fishing licence, must hold sufficient shares in the abalone fishery (which are issued under the Plan) or be the nominee of such a shareholder, and their licence must be endorsed by the Minister to permit the taking of abalone: NSW FMA, ss 66 and 102. Even when those requirements are satisfied, the licensee is limited in the quantity of abalone that they may take by the provisions of the Plan which provide for the management of the abalone fishery in a way designed to conserve stocks. By s 65, a person commits an offence who contravenes the terms of a management plan.

20    None of the applicants holds a commercial fishing licence which has been suitably endorsed by the Minister to permit the taking of abalone. Any attempt by them to take abalone for sale from the abalone fishery regulated by the NSW FMA would, therefore, be a serious offence. Section 102 of the NSW FMA proscribes the taking of fish for sale from the waters to which the NSW FMA applies unless authorised to do so under the terms of a licence. Consequently, a person who takes abalone for sale without an appropriately endorsed commercial fishing licence commits an offence under that provision. The penalty for this offence for an individual is 1,000 penalty units for a first offence. A penalty unit is defined by s 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to be $110 so that the maximum penalty is $110,000.

3. The Scheme of the MEMA

21    Section 3 of the MEMA provides that one of its objects is the management of the ‘marine estate of New South Wales’ in a fashion consistent with a number of environmental principles. The ‘marine estate’ is defined broadly in a number of ways and includes, by s 6(a), ‘the coastal waters of the State within the meaning of Part 10 of the Interpretation Act 1987’. Section 58 of that Act is contained in Part 10 and provides (relevantly):

‘ “adjacent area in respect of the State” means the area the boundary of which was described under the heading referring to the State in Schedule 2 to the repealed Petroleum (Submerged Lands) Act 1967 of the Commonwealth, as in force immediately before the commencement of the Coastal Waters (State Powers) Act 1980 of the Commonwealth.

“coastal waters of the State” means:

(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 section 4(2) of the Coastal Waters (State Powers) Act 1980 of the Commonwealth, or

(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.

…

“territorial sea of Australia” means the territorial sea of Australia within the limits referred to in section 4(1) of the Coastal Waters (State Powers) Act 1980 of the Commonwealth.’

22    Schedule 2 of the repealed Petroleum (Submerged Lands) Act 1967 (Cth) as referred to in the first of these definitions sets out in precise terms an area which extends, in effect, to the limit of 3 nautical miles from the territorial sea baseline. Other parts of the definition of ‘marine estate’ in s 6 of the MEMA add to that area waters and coastal structures landwards of the mean low water mark.

23    Consequently, the marine estate under the MEMA includes all of the waters between the land and the 3 nautical mile limit. Since New South Wales ends at the mean low water mark it is apparent that the MEMA, in terms, purports to operate extra-territorially if only for 3 nautical miles.

24    Under s 23 of the MEMA, the Governor may declare a marine park within the marine estate. Five such marine parks have been declared: the Jervis Bay Marine Park; the Solitary Islands Marine Park; the Cape Byron Marine Park; the Port Stephens-Great Lakes Marine Park; and the Bateman Marine Park. All of the marine parks lie within the 3 nautical mile limit.

25    Under s 42, the relevant Ministers may make management rules by regulation governing the management of any such marine park. By force of the Rules such rules have been made. These closely regulate activities within the marine parks, including fishing. In some cases, fishing is prohibited. For present purposes, it is sufficient to proceed on the basis that the MEMA and the Rules operate to circumscribe the ability of the applicants to take abalone from the various marine parks set out above which are all, as we have already observed, situated inside the 3 nautical mile limit.

4. The Arguments of the Applicants

26    The applicants advance three arguments. First, they submit that New South Wales lacks legislative competence beyond the mean low water mark. If this contention be correct it will result in the MEMA being invalid to the extent that it regulates the waters seaward of the mean low water mark. In relation to the NSW FMA and the Plan, as we have already noted, no invalidity will result because s 7(1)(c) will not apply the Act’s provisions beyond the State’s legislative competence.

27    Secondly, the applicants submit that the NSW FMA, the Plan, the MEMA and the Rules are each inconsistent with a federal statute, the Fisheries Management Act 1991 (Cth) (‘the Commonwealth FMA’), and are invalid by reason of s 109 of the Constitution.

28    Thirdly, they submit that the NSW FMA, the Plan, the MEMA and the Rules are each beyond the legislative competence of New South Wales because of the alleged invalidity of the Coastal Waters (State Powers) Act 1980 (Cth).

29    The first two of these arguments are without merit and the third does not arise. It is convenient to consider them in turn.

5. The Applicants’ First Argument: Do the States lack legislative competence with respect to their adjacent coastal waters?

30    The applicants submitted that the legislative power of the Commonwealth to make laws with respect to fisheries was an exclusive power with the consequence that the States had no power to legislate with respect to fishing outside their territorial limits. The relevant provision of the Constitution is s 51(x) which confers on the Commonwealth Parliament power to make laws with respect to:

‘(x)    fisheries in Australian waters beyond territorial limits’.

31    The legislative powers set out in s 51 are generally not exclusive of the legislative powers of the States but rather concurrent. One exception, by virtue of s 90, is that part of the taxation power in s 51(ii) which relates to duties of customs and excise; see also ss 90 and 51(iii). It is s 52 of the Constitution which contains the legislative powers of the Commonwealth which are in terms exclusive. It provides:

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

(i)     the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes;

(ii)     matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth;

(iii)     other matters declared by this Constitution to be within the exclusive power of the Parliament.’

32    Nevertheless, the subject matters of some of the powers set out in s 51 are, of their nature, exclusive for practical reasons. For example, the power to make laws with respect to ‘borrowing money on the public credit of the Commonwealth’, conferred by s 51(iv), is a topic of legislative endeavour which makes little sense in the context of State legislative power. But it is not correct to say that legislative power over that topic is withdrawn from the States, rather only that it is difficult to envisage any circumstances in which it might be meaningfully exercised. Of powers of this kind, Quick and Garran observed in their leading text, The Annotated Constitution of the Australian Commonwealth, Legal Books 1976 reprint (at p 934) that:

‘CONCURRENT POWERS. – Of the 39 classes of subjects enumerated in sec 51, with respect to which the Federal Parliament has power to make laws, 13 are quite new, and are applicable only to the Commonwealth, having been created by the Constitution, and are of such a character that they could only be vested in and effectually exercised by the Federal Parliament; such as: The power to borrow money on the credit of the Commonwealth, fisheries in Australian waters beyond territorial limits…’

33    It is this passage that provides the basis for the applicants’ argument that the fisheries power in s 51(x) is exclusive to the Commonwealth Parliament and that the States have no such power themselves.

34    It is important to be clear that Quick and Garran were not speaking of the kind of exclusive power with which s 52 is directly concerned, eg, the seat of government. It is rather to be seen as an observation about practical considerations, an observation well supported by their use of the word ‘effectually’. At the time that this was published in 1901 there were a number of assumptions about fisheries and the States that subsequent history has rendered inaccurate. To begin with, the power in s 51(x) is a Commonwealth power to be exercised beyond territorial limits but not within them. Insofar as the waters outside territorial limits were concerned, it is clear that Quick and Garran assumed that the States would have no legislative competence. At the time that they were writing, there was authority for the proposition that colonial legislatures lacked jurisdiction to make laws having extra-territorial effect: see, for example, the decision of the Privy Council in Macleod v Attorney-General (NSW) [1891] AC 455 where it was said, at 458, that the jurisdiction of colonial legislatures was ‘confined within their own territories’. It was natural to think, therefore, that States’ legislative jurisdiction did not extend beyond their own territorial limits. There were also good reasons to think that the States included the adjacent territorial sea. For example, Lord Macnaghten observed only in 1901 that the territorial waters of the independent state of Muscat were ‘as much a part of the Sultan’s dominions as the land over which he exercises absolute and unquestioned sway’: Carr v Fracis Times & Co [1902] AC 176 at 183.

35    Until the Seas and Submerged Lands Case, it had been thought that the States extended to the 3 mile limit and on that basis State legislation regulating fishing had been seen as valid. Once, however, the High Court concluded in the Seas and Submerged Lands Case that this was incorrect and that the States were coterminous with the mean low water mark, it became necessary to reconsider how the States could regulate fishing beyond that limit. It was rapidly concluded that a State had the power to legislate extra-territorially within the 3 mile limit: Pearce v Florenca (1976) 135 CLR 507. In that case, a Western Australian law which made criminal the taking of an undersized lobster within the 3 mile limit was held to be a valid law notwithstanding that it operated outside the territorial limits of that State as established in the Seas and Submerged Lands Case. In Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340 (‘Port MacDonnell’) that conclusion was extended, again in relation to lobster, to the 200 nautical mile limit. These two cases establish that the legislative power of the States under their own constitutions supports extra-territorial fishing regulation within both the 3 and 200 nautical mile limits: see also Alcock v Commonwealth (2013) 210 FCR 454 at [84]; Commonwealth v Yarmirr (2001) 208 CLR 1 at 59. In any event, this debate has been largely of only historical interest since 3 March 1986 when s 2(1) of the Australia Act 1986 (Cth) came into force. It provides:

‘It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation.’

36    These matters present an insurmountable hurdle to the applicants. Nevertheless, they advance two arguments why this Court should disregard them. These were:

(1)    in Pearce v Florenca and Port MacDonnell the lobster fishery had been managed pursuant to an arrangement which was said to be lacking in this case; and

(2)    s 2 of the Australia Act had to be read subject to s 5 which provided that s 2 (and another section):

‘(a)    are subject to the Commonwealth of Australia Constitution Act and to the Constitution of the Commonwealth; and

(b)     do not operate so as to give any force or effect to a provision of an Act of the Parliament of a State that would repeal, amend or be repugnant to this Act, the Commonwealth of Australia Constitution Act, the Constitution of the Commonwealth or the Statute of Westminster 1931 as amended and in force from time to time.’

37    As to (1), there is an arrangement in this case. But even if there were not, the presence or absence of an arrangement has nothing to do with the conclusion in those cases that the States have extra-territorial legislative competence. The only effect an arrangement conceivably has in the present case relates to the operation of s 109 of the Constitution. The High Court’s discussion of extra-territorial legislative competence in these two cases had nothing to do with that topic. The distinction is therefore one without a difference.

38    As to (2), there is nothing in the Constitution which is, in any way, inconsistent with the extra-territorial legislative competence of the States.

39    There is therefore no question that New South Wales has the power to make laws concerning fisheries out to the 200 nautical mile limit. Of course, for extra-territorial legislation to be valid there must be a proper nexus between the legislation and the State (see Union Steamship Co of Australia v King (1988) 166 CLR 1) but it is clear that such a nexus exists between a State and its offshore fisheries. They are integrally connected with the local economy. Abalone, according to the Special Case, dwell from within the intertidal zone to a depth of 40m. The gross estimated nominal value of the catch from the NSW abalone fishery in 2013/2104 was $3.76 million and there are currently 47 shareholders in the fishery. The regulation of that industry has a sufficient nexus with New South Wales to justify its regulation just as the regulation of the lobster fishery to the 200 nautical mile limit in Port MacDonnell had a sufficient connexion to South Australia.

40    It follows that the assumption made by Quick and Garran that the States could not legislate in the area referred to in s 51(x) is no longer correct. Accordingly, it is erroneous to reason that the power in s 51(x) must be exclusive due to the absence of corresponding State legislative power. The course of authority in this nation as to the ability of the States to legislate with respect to offshore fisheries has not once embraced the idea that the States lack such a power. To the contrary, the existence of the power has been universally endorsed. In that circumstance, the observations of Quick and Garran are to be seen as an historical anomaly. They are also, for completeness, contrary to some remarks in Port MacDonnell where the High Court unanimously observed that State and Federal legislative powers in this area were concurrent. At p 358 the Court said:

‘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.’

(bold emphasis added)

41    Accordingly, the power of the States to legislate extra-territorially with respect to their fisheries is established by Pearce v Florenca, Port MacDonnell and s 2 of the Australia Act. Each of these binds this Court to the conclusion that New South Wales has the legislative competence to enact both the NSW FMA and the MEMA under s 5 of the Constitution Act 1902 (NSW).

6. The Applicants’ Second Argument: Are the NSW FMA and the MEMA inconsistent with the Commonwealth FMA?

42    The Commonwealth FMA operates by reference to the Australian Fishing Zone (‘AFZ’) which, by s 4, consists of the waters adjacent to Australia within the exclusive economic zone but does not include the coastal waters of a State. Australia’s exclusive economic zone presently extends to a limit of 200 nautical miles from the baseline for the territorial sea. By s 5, the coastal waters of a State means those parts of the territorial sea within 3 nautical miles of the coast adjacent to the State. Hence, the AFZ extends from the 3 nautical mile limit to the 200 nautical mile limit. By s 10, State laws do not apply in the AFZ unless ‘because of section 77, this Act does not apply’. It will immediately follow from this that there can be no inconsistency inside the 3 nautical mile limit where the federal statute does not purport to apply. Consequently, since the MEMA only operates in that area the argument in relation to it never arises. So too, the questions about the validity of the NSW FMA can only arise between the 3 nautical mile and 200 nautical mile limits.

43    Section 77 of the Commonwealth FMA provides that the Act does not apply if ‘an arrangement under this Division provides that a particular fishery is to be managed in accordance with the law of a State’. As already noted above, there is such an arrangement in the case of the mollusc fishery. The Arrangement provides by clause 3 that ‘[t]he fishery is to be managed in accordance with the law of New South Wales’. The legal effect of clause 3 is supplied by s 77 of the Commonwealth FMA. It provides:

‘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.’

44    The effect of clause 3 is, therefore, that the regulation of the mollusc fishery is to take place under the law of New South Wales. To the extent that the NSW FMA, the Plan, the MEMA and the Rules regulate the taking of abalone, they operate in a legislative field from which s 77 has absented Commonwealth legislation, and in the case of the waters within the 3 nautical mile limit, which it has never purported to occupy. Consequently, no question of inconsistency with the Commonwealth FMA can arise under s 109 of the Constitution.

45    This conclusion was inevitable on the terms of the legislation and means that the applicants’ s 109 argument is without any prospects of success. During the course of the hearing in this Court and in the applicants’ written submissions which preceded it, the difficulty which the Arrangement presented for the applicants’ case came to be recognized. In their written submissions, as we have noted, the applicants sought in the heel of the hunt to contest the validity of the Arrangement.

46    For the reasons already given, this should not be permitted.

7. The Applicants’ Third Argument: Is the Coastal Waters (State Powers) Act 1980 (Cth) valid?

47    Section 5 of the Coastal Waters (State Powers) Act 1980 (Cth) extends the legislative powers of the States, in effect, to the 3 nautical mile limit. The applicants wish to argue that it is invalid. In circumstances where the Court has concluded that the State laws in question are amply supported by the provisions of s 5 of the Constitution Act 1902 (NSW) and s 2 of the Australia Act 1986 (Cth) it is irrelevant whether they are also supported by s 5 of the Coastal Waters (State Powers) Act 1980 (Cth). In that circumstance, there is no need to consider this question and, indeed, established authority requires this Court not to consider it: Re Patterson; ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at [248]-[252] per Gummow and Hayne JJ; Attorney-General (NSW) v Brewery Employees Union (NSW) [1908] HCA 94; (1908) 6 CLR 469 at 590. As Higgins J explained there:

‘Nothing would tend to detract from the influence and the usefulness of this Court more than the appearance of an eagerness to sit in judgment on Acts of Parliament, and to stamp the Constitution with the impress which we wish it to bear. It is only when we cannot do justice, in an action properly brought, without deciding as to the validity of the Act, that we are entitled to take out this last weapon from our armoury.’

8. Result

48    Questions 1 and 2 raise what appear to be administrative law challenges to various parts of the Plan. No argument was advanced in support of them. There is no reason to think any has substance. Questions 3 to 11 will be answered in accordance with the reasons set out above except for Question 4 which the parties agreed should not be answered.

49    In relation to Question 12, which concerns costs, the applicants should pay the respondents’ costs as taxed or agreed.

50    During the course of the hearing the applicants sought to amend the Special Case to add an additional fact about the nature and taxonomy of molluscs. This was not opposed by the respondents with the reservation that by agreeing to the fact they ought not to be taken as having agreed to the applicants raising any argument outside the Special Case. Subsequent to the hearing the Court was provided with an Amended Stated Case containing the proposed additional paragraph 15A. The Court granted leave for the Special Case so to be amended in that form. The amended Special Case was filed on 25 February 2016.

51    The questions should be answered as follows:

Q1:    Is the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) authorised by the Fisheries Management Act 1994 (NSW) (FMA)?

Ans:    Yes.

Q2:    Are cll 2.2, 2.16, 2.19, 3.2, 5.2, 5.11, 5.13, 6.3, 6.16, 6.20, 7.2, 7.6, 7.9(5), 7.12 and 7.14 of the Marine Estate (Management Rules) Regulation 1999 (NSW) authorised by the Marine Estate Management Act 2014 (NSW)?

Ans:    Yes.

Q3:    Are the FMA and/or the Marine Estate Management Act 2014 (NSW) valid exercises of the legislative power of the Parliament of NSW pursuant to:

a.    section 5 of the Constitution Act 1902 (NSW); or

Ans: Yes.

b.    section 2(1) of the Australia Act 1986 (Cth)?

Ans: Yes.

Q4.    Is the Constitutional Powers (Coastal Waters) Act 1979 (NSW) invalid because it purported to seek an alteration to the limits of the State of NSW in a manner not authorised by ss 123 or 128 of the Constitution?

Ans:    Not necessary to answer.

Q5.    Is the Coastal Waters (State Powers) Act 1980 (Cth) invalid because it exceeds the power conferred on the Commonwealth Parliament by s 51(xxxviii) of the Constitution?

Ans:    Not necessary to answer.

Q6:    Are the Coastal Waters (State Powers) Act 1980 (Cth) and/or the Coastal Waters (State Titles) Act 1980 (Cth) invalid because they purport to alter the limits of the State of NSW in a manner not authorised by ss 123 or 128 of the Constitution?

Ans:    Not necessary to answer.

Q7:    Are the FMA and/or the Marine Estate Management Act 2014 (NSW) valid exercises of the legislative power of the Parliament of NSW pursuant to the power conferred by the Coastal Waters (State Powers) Act 1980 (Cth)?

Ans:    Yes.

Q8:    Are any of the following Acts or Regulations inconsistent with s 12 or Pt 5 of the Fisheries Management Act 1991 (Cth) for the purpose of s 109 of the Constitution:

a.    the FMA, insofar as it operates in relation to abalone?

Ans: No.

b.    the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW)?

Ans: No.

c.    cll 2.2, 2.16, 2.19, 3.2, 5.2, 5.11, 5.13, 6.3, 6.16, 6.320, 7.2, 7.6, 7.9(5), 7.12 and 7.14 of the Marine Estate (Management Rules) Regulations 1999 (NSW)?

Ans: No.

Q9:    Is the fishery described in the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) authorised by the NSW FMA a fishery within the meaning of the Constitution s 51(x)?

Ans:    Yes.

Q10:    Are the FMA, insofar as it operates in relation to abalone, or the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW), invalid by reason of s 510(x) of the Constitution?

Ans:     No.

Q11:    Should the Court issue a writ of certiorari quashing the Abalone Share Management Plan (NSW)?

Ans:    No.

Q12:    Who should pay the costs of the special case?

Ans:    The applicants should pay the respondents’ costs of the Special Case as taxed or agreed.

Associate:

Dated:    21 March 2016

SCHEDULE OF PARTIES