Lavender v Director of Fisheries Compliance, Department of Industry Skills... [2018] NSWCA 174 | Case summary

Court of Appeal (NSW)|2018-03-06|Before: Bathurst CJ, Beazley P, Basten JA

Background to legislative scheme

Although there had been Commonwealth legislation on specific topics, such as fisheries and off-shore petroleum exploration, before 1973, the Seas and Submerged Lands Act was the first legislative attempt to provide a settled basis for Commonwealth regulation of coastal seas. Because one purpose of the Act was to resolve uncertainties, relevant provisions are difficult to interpret without an understanding of the areas of uncertainty. Accordingly, the following discussion commences with an overview of the common law when New South Wales was established as a British colony, and as at Federation. Secondly, it addresses pre-1973 legislation applying to coastal waters, and, thirdly, the terms of the 1973 Act.

(1) Common law principles

The earliest history, commencing in the pre-Stuart period in England, may be found in a most readable account by Geoffrey Marston, The Marginal Seabed: United Kingdom Legal Practice. [11] For present purposes it is sufficient to take note of three cases, namely (a) Attorney-General v Sir John Constable, [12] (b) the Cornish mines arbitration, and (c) R v Keyn. [13]

(a) Attorney General v Sir John Constable

The 1575 case of Attorney General v Constable involved a wreck found in the intertidal zone. Constable's counsel, Plowden, stated that "we ought to consider to what place the bounds of England extend, and then to whom the property of the sea and the land under the sea belongs, and to whom belongs the property of the land between the greensward and the low-water mark, and within what county and parish the said soil is …". [14] Further, Plowden drew a distinction between jurisdiction and property, contending: "But although the Queen has jurisdiction in the sea adjoining her realm, still she has not property in it, nor in the land under the sea, for it is common to all men, and she cannot prohibit any one from fishing there, and the water and the land under it are things of no value, and the fish are always removable from one place to another."
Constable was successful, but the questions raised by Plowden were for the most part not addressed. [15] Nevertheless, the importance of his distinction between jurisdiction (or dominion) and property has not been doubted. On the one hand, a proprietary interest is not needed to make laws regulating fisheries. [16] On the other hand, as explained by Barwick CJ in Bonser v La Macchia: [17] "The plenary nature of the legislative power granted over and with respect to described territory cannot, in my opinion, be a basis for regarding that territory as itself extended to those places in which laws made under such a power may validly have effect."

(b) Cornish mines arbitration

In the mid-nineteenth century, disputes arose in relation to the tin and copper mines in Cornwall, which, from the end of the eighteenth century, had extended under the sea. [18] There was a contest as to whether the mines and minerals under the sea, the seashores and the shores of tidal estuaries and rivers were owned by the Duchy of Cornwall, or by the Crown. These issues were originally submitted to arbitration before Sir John Patteson who ruled in 1858: [19] "My decision as to the right of the Crown to the minerals under the sea was intended to apply only to the open sea, being no part of the County of Cornwall. I am of opinion, and so decide that the right to the minerals under estuaries and navigable rivers and other places in and part of the County of Cornwall, even below low water mark, is, as between the Crown and the Duchy, in the Duchy."
There followed the Cornwall Submarine Mines Act 1858. [20] By that Act all mines and minerals lying below the low water mark under the open sea "adjacent to but not being Part of the County of Cornwall" were vested in the Queen. [21] Not to be deterred, the Duchy claimed that the "maritime territories of the Realm … extend to three geographical miles off the shores of the Kingdom generally, except in the case of bays or indentations not exceeding ten geographical miles across, when the distance of three miles would be reckoned from a line drawn, from low water mark off one headland, to low water-mark off another headland". [22] Further, the Duchy submitted that whatever was within the territorial ownership of the Crown was also within some county (in this case Cornwall) as was the rest of England. [23] An arbitration by Sir John Coleridge in October 1869 accepted that there should be closing lines across estuaries and tidal rivers, but that otherwise the land seaward from the low water mark was vested in the Crown and not the Duchy. [24]

On 17 February 1876 a German steamship collided with a British steamship off the port of Dover. A coroner's jury returned a verdict of manslaughter against Ferdinand Keyn, the master of the German ship, who was duly indicted for manslaughter. The indictment alleged that the offence was committed "upon the high seas within the jurisdiction of the Admiralty of England and within the jurisdiction of the Central Criminal Court". [25] The accused was duly convicted by a jury, but the trial judge (Pollock B) stated a case to the Court for Crown Cases Reserved on the question of jurisdiction. The case was ultimately heard by an augmented court of 14 judges, one of whom died prior to delivery of judgment. Seven judges held that the Central Criminal Court had no jurisdiction; six concluded that the sea within three miles of the coast of England was part of the territory of England and that English criminal law extended over those seas. The dissenters said that the Admiral formerly had, and the Central Criminal Court then had, jurisdiction to try offences committed there, although they occurred on board a foreign ship. [26]
As explained in the joint judgment in Commonwealth v Yarmirr: [27] "The question in Keyn was, therefore, a question about the jurisdiction of a criminal court. The word 'jurisdiction' was used as identifying whether the subject matter of the proceeding could be entertained by the particular court, not as describing the amenability of the defendant to the court's authority."
The joint reasons quoted with apparent approval the following passage from the judgment of Lush J in Keyn: [28] "They [the adjacent waters] are, therefore, in the language of diplomacy and of international law, termed by a convenient metaphor the territorial waters of Great Britain, and the same or equivalent phrases are used in some of our statutes denoting that this belt of sea is under the exclusive dominion of the State. But the dominion is the dominion of Parliament, not the dominion of the common law. That extends no further than the limits of the realm. In the reign of Richard II the realm consisted of the land within the body of the counties. All beyond low-water mark was part of the high seas. At that period the three-mile radius had not been thought of. International law, which, upon this subject at least, has grown up since that period, cannot enlarge the area of our municipal law, nor could treaties with all the nations of the world have that effect. That can only be done by Act of Parliament. As no such Act has been passed, it follows that what was out of the realm then is out of the realm now …." Legislation conferring jurisdiction followed promptly, albeit the Preamble to the Territory Waters Jurisdiction Act 1878 (UK) [29] asserted that jurisdiction "has always extended over the open seas adjacent to the coasts of the United Kingdom".

(2) Pre-1973 Australian legislation

The regulation of fisheries in New South Wales has occurred entirely by statute. The first State statute appears to have been Fisheries Act of 1865. It was replaced in due course by the Fisheries Act of 1881 and then by the Fisheries Act 1902 (NSW), which required that commercial fishermen and their boats be licensed. The Act applied to "inland waters" which were not tidal and to "tidal waters" which covered waters subject to the influence of the tide "over Crown land [and] over lands in the possession or under the control of the Crown … within the territorial jurisdiction of the Crown in New South Wales". [30] The territorial limits were not otherwise defined. Similar language was used in the Fisheries and Oyster Farms Act 1935 (NSW). That Act remained in force in New South Wales until replaced by the Fisheries Management Act 1994 (NSW), which commenced on 16 January 1995.
Prior to the repeal of the 1935 Act, the Commonwealth had entered the field, enacting the Fisheries Act 1952. In fact, the Fisheries Act was not the first legislative attempt to regulate fishing in Australian waters. The short lived Federal Council of Australasia had been given legislative authority in terms identical to s 51(x) of the Constitution. It had passed two laws regulating certain fisheries in waters adjacent to Queensland and Western Australia, the operation of which was preserved by s 7 of the Commonwealth of Australia Constitution Act. [31]
At its commencement the 1952 Act operated in Australian waters beyond territorial limits (and waters adjacent to a territory within territorial limits), in reliance upon the power conferred by s 51(x) of the Constitution, permitting legislation with respect to "fisheries in Australian waters beyond territorial limits". In Bonser v La Macchia the High Court upheld the validity of the Act so far as it regulated fishing in an area six nautical miles off the New South Wales coast. However, as recognised in a number of the judgments, there were doubts as to the operation of the Act within the three nautical mile territorial sea. Barwick CJ, who considered that the Commonwealth had no power under s 51(x) with respect to fisheries within three nautical miles of the seashore, added that "the exclusion of the first three nautical miles of coastal water from the Commonwealth legislative power with respect to fisheries as granted by s 51(x) is pregnant with practical difficulties particularly if there is at any time any diversity between Commonwealth and State laws with respect to fishing on the high seas." [32]
In 1973 the Commonwealth enacted the Seas and Submerged Lands Act, conferring sovereignty on it over the territorial seas.

(3) Seas and Submerged Lands Act 1973

The Seas and Submerged Lands Act 1973 (Cth) incorporated into domestic law the Convention on the Territorial Sea and the Contiguous Zone, and the accompanying Convention on the Continental Shelf, both done at Geneva on 29 April 1958. The Convention on the Territorial Sea is relevant for present purposes. Articles 1 and 2 provided that "[t]he sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea" and extends to "the air space over the territorial sea as well as to its bed and subsoil." Articles 3-8 provided a mechanism for determining the limits of the territorial sea by reference to a "baseline". The baseline followed the low water mark along the coast (Art 3) but, "where the coastline is deeply indented and cut into", joined appropriate points from the low water mark of the headlands on either side of the bay or indentation (Art 4). Pursuant to Art 5, "[w]aters on the landward side of the baseline of the territorial sea form part of the internal waters of the State."
The operative provisions of the Act appeared in Pt II which (as originally enacted) had three divisions, dealing with "The Territorial Sea" (Div 1), "The Continental Shelf" (Div 2), and "Savings" (Div 3). This case is not concerned with Div 2. In Div 1, s 6 declared that "the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth." Further, s 10 provided: It is by this Act declared and enacted that the sovereignty in respect of the internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of the territorial sea) so far as they extend from time to time, and in respect of the airspace over those waters and in respect of the sea-bed and subsoil beneath those waters, is vested in and exercisable by the Crown in right of the Commonwealth.
Taken in isolation, s 10 would have purported to vest sovereignty in the Commonwealth over parts of the States. However, there was a saving provision in Div 3 in relation to waters within State limits: 14. Nothing in this Part affects sovereignty or sovereign rights in respect of any waters of the sea that are waters of or within any bay, gulf, estuary, river, creek, inlet, port or harbour and - (a) were, on 1st January, 1901, within the limits of a State; and (b) remain within the limits of the State, or in respect of the airspace over, or in respect of the sea-bed or subsoil beneath, any such waters.
The explanation for the declaration (s 10) and the exclusion from the declaration (s 14) is almost certainly found in uncertainty as to the limits of the States at Federation. Certainly the Minister dealt with the two clauses of the bill together in the Second Reading Speech. [33] Many of the earlier cases which had discussed the limits of the State did so by reference to "the low-water mark", with no reference to indentations or the waters of bays, gulfs and estuaries. Keyn's case was an illustration of this approach; the point of refinement was simply not relevant to the case.
Although it is not directly in issue in the present case, because the applicants' challenge was to an amended version of s 16, it is convenient to set out s 16 as originally enacted. 16. The preceding provisions of this Part - (a) do not limit or exclude the operation of any law of the Commonwealth … in force at the date of commencement of this Act or coming into force after that date; and (b) do not limit or exclude the operation of any law of a State in force at the date of commencement of this Act or coming into force after that date, except in so far as the law is expressed to vest or make exercisable any sovereignty or sovereign rights otherwise than as provided by the preceding provisions of this Part. The reference in s 16 to "this Part" was to Pt II of the Act, which included the substantive provisions with respect to the territorial sea and the savings provision, s 14.

(4) Cases: 1973-1980

The States challenged the validity of the Seas and Submerged Lands Act, which they saw as inconsistent with a widely held view that the territorial limits of each State extended to include coastal waters within three nautical miles of the seashore. In New South Wales v The Commonwealth ("Seas and Submerged Lands Case") [34] the High Court upheld the Act as a valid exercise of the external affairs power. Because the decision led to the subsequent legislative regime which is under challenge in the present proceedings, it is necessary to identify the principles it established, a task which can be done selectively by reference to the judgments of Mason J and Jacobs J.
Mason J identified the States' case for invalidity in the following terms: [35] "Central to this case is the proposition that the littoral boundaries of the Australian Colonies did not stop at low-water mark and that the territorial sea surrounding the Colonies formed part of their territory, as did the solum of the territorial sea. The initial obstacle which this argument encounters is that the delimitation of the colonial boundaries in the historical documents, as I read them, sets the seaward boundaries at the extremities of the land territory." The case for the Commonwealth was that the territorial sea within three miles from the mean low water mark was "the subject of legislative jurisdiction which fell short of territorial dominion". [36]
In rejecting the States' case, Mason J noted another factor, which was raised in argument before this Court as demonstrating the invalidity of subsequent legislation: [37] "There is another consideration which to my mind is significant. The Colonial Boundaries Act and, more importantly, s 123 of the Constitution assume that the boundaries of the Australian colonies and subsequently of the States are fixed boundaries capable of alteration only in the manner prescribed. Yet we know that the concept of the territorial sea is a concept of international law that is evolving and developing. In the nineteenth century the three-mile limit was generally, if not universally, accepted. But by 1958 there were a number of nations that claimed a wider territorial sea, with the result that the width of the territorial sea was left unstated by the Geneva Convention in that year. Today a wider territorial sea is claimed by many nations. If, and it is a future possibility that cannot be discounted, the territorial sea asserted by the Commonwealth should extend beyond three miles, is the extension to be regarded as effecting an alteration to the limits of the States, though not effected in the manner prescribed by s 123? The question must be answered in the negative. The territorial sea is essentially a conception of international law; its extension or reduction does not affect the boundaries of the constituent elements in the Federation."
With respect to s 6, which vested "sovereignty in respect of the territorial sea" in the Crown in right of the Commonwealth, Mason J stated: [38] "The section cannot, and does not, deny to an Australian State the capacity which it has, in the exercise of its power to legislate for the peace, order and good government of the State, to apply its laws to the territorial sea, its bed and subsoil, but such laws will to the extent of any inconsistency with a valid Commonwealth law enacted under s 51 (xxix) or any other head of power, be rendered inoperative by s 109."
So far as the inland waters of a State were concerned, Mason J read ss 10 and 14 together, stating: [39] "The conjunction of s 10 and s 14 is not without its difficulty. Section 10 declares that sovereignty in respect of inland waters (that is, waters of the sea on the landward side of the baseline of the territorial sea) … is vested in, and exercisable by the Crown in right of the Commonwealth. Apart from the saving provisions of s 14 this section might be seen as an attempt to vest in the Commonwealth sovereign rights in inland waters lying within State boundaries. … The saving provisions of s 14 are designed to preserve State rights over internal waters within the territory of a State, as for example, waters of the sea within a bay which is on the landward side of the baselines of the territorial sea. Consequently, the operation of ss 10 and 14, so it seems to me, do not operate so as to attempt to vest in the Commonwealth sovereignty over waters within the territory of a State."
Jacobs J dealt somewhat differently with the intertidal zone on the landward side of the baseline, concluding that the waters in that zone were not "waters of the sea" for the purposes of s 10. [40] Jacobs J continued: [41] "There can be no doubt that if, beyond waters of or within any bay, gulf, estuary, inlet or port referred to in s 14, the sea which may be proclaimed by the Governor-General under s 7 is within the boundaries of a State, it is beyond the power of the Australian Parliament to provide that sovereignty in respect thereof is exercisable by the Commonwealth to the exclusion of that State."
Jacobs J held that the limits of the colony, as defined in the letters patent, limited New South Wales to an area of "land", but, understood in accordance with the common law, included "[t]he foreshore between high and low water and the beds of all waters intra fauces terrae over which tidal waters flowed". [42]
Jacobs J also addressed the effect of the exercise of a sovereignty over the territorial sea, asking: [43] "Can it be that when Australia expands by establishing sovereignty either by international assent or by national claim over an area adjacent to the boundaries of a State, the federal nature of our system of government likewise expands so that the area of new sovereignty becomes incorporated into the federal structure? It is a novel question but the answer cannot be that the boundaries of the various States expand. What happens in my view is that the limits within which it is proper for States to pass laws having an extra-territorial operation … expand, so that laws which would not otherwise be for the peace and welfare and good government of a State may become so by virtue of the sovereignty of Australia in the seas within the extended area."
Jacobs J did not return to the question of s 10, but it may be inferred that he was satisfied that there was no intrusion on State sovereignty because the saving provision of s 14, together with the exclusion of the intertidal zone from the description "waters of the sea" prevented such an intrusion. Neither Barwick CJ nor Murphy J made any reference to s 10; McTiernan J referred to it, but did not discuss the scope of its operation. [44] Gibbs and Stephen JJ dissented.
As both Mason J and Jacobs J noted, the letters patent identifying the extent of the colonies were imprecise as to the waters in the intertidal zone, and the final step relied upon in identifying the limits of the States required reference to common law principles regarding bays, gulfs and estuaries. When the Act was being prepared, there was a real possibility that the use of baselines would leave waters on the landward side of the territorial sea boundary which were not within the limits of the States. If, on the approach adopted by Jacobs J, there were no such waters, that conclusion would not affect the construction of the legislation. Further, the explanation is supported by reference to the Coastal Waters (State Powers) Act 1980 (Cth) discussed below.
It is not entirely clear why, in giving effect to an international Convention, pursuant to the external affairs power, the Parliament might not enact legislation which impinges on the "sovereignty" of a State, in the sense of legislating with respect to parts of its territory. While the validity of the whole Act was at stake, the reasoning focused upon the respective cases raised by the States and the Commonwealth, noted above. Nevertheless, if one took a broader view of the external affairs power than appeared to underlie the reasoning in that case, it would not assist the present applicants.
There was further exploration of the extraterritorial reach of State laws in Yarmirr, the joint reasons stating: [45] "If the contention that the common law does not 'extend', 'apply', or 'operate' beyond low‑water mark is intended to mean, or imply, that, absent statute, no rights deriving from or relating to events occurring or places lying beyond low-water mark can be enforced in Australian courts, it is altogether too large a proposition and it is wrong. The territorial sea is not and never has been a lawless province. The courts of England and Wales and the courts of Australia have long since given effect to rights and duties which derive from transactions and events which have occurred in that area. The very existence of the body of Admiralty law denies the generality of a proposition understood in the way we have identified. It suggests at least that the reference to 'common law', in the proposition about its reach, is to be understood as restricted to that part of the unwritten law which was administered in the common law courts. Reference to the history of the jurisdictional conflicts between the courts of Admiralty and the common law courts reinforces that view, especially when it is recalled that from 1536 the criminal jurisdiction of the Admiralty in relation to crimes at sea was exercised by the judges of the common law courts as commissioners of oyer and terminer."
The same idea was more colourfully expressed by the Chief Justice in the course of argument: [46] "This idea of the law having boundaries is a puzzle. The law of property does not cease to apply - when a man goes out on to an oil rig he does not cease to own his trousers."
The second important case in this period was Pearce v Florenca, [47] decided a year after the Seas and Submerged Lands Case. The Court unanimously upheld a Western Australian law prohibiting the possession of undersized fish in Western Australian waters, defined as the sea from the high water mark to three nautical miles. As explained by Barwick CJ (in terms echoed in each of the other judgments other than that of Murphy J): [48] "The Seas and Submerged Lands Act proclaimed as part of the law of Australia the sovereignty of the Commonwealth in the territorial seas and submerged lands in accordance with the Conventions which are scheduled to that Act. Apart from authorizing the Governor-General to take certain actions as in ss 7-8 and 12, the Seas and Submerged Lands Act did not purport to make any laws in pursuance of the proclaimed sovereignty. In New South Wales v The Commonwealth, I pointed out that laws made in exercise of that sovereignty would need to be tested for their validity against the external affairs power and the terms of the two Conventions scheduled to the Seas and Submerged Lands Act. … If and when any such law is made, the question whether any inconsistency exists between that law and the Act may fall for decision. It is enough for present purposes to say that no such laws, with the exceptions to which I have referred, have been made. There is, in my opinion, no inconsistency between the existence of the power to exercise the sovereignty which the Seas and Submerged Lands Act proclaimed and the Act."
The effect of the unanimous decision of the Court was that (a) the States had power to legislate extraterritorially, and in particular with respect to the territorial seas; (b) the statutory declaration of Commonwealth sovereignty over the territorial seas did not deny the power of the States to legislate with respect to the territorial seas and, therefore, (c) the power of the Commonwealth in exercise of its sovereignty was not an exclusive power.
The real significance of the Seas and Submerged Lands Act was the assertion of power to legislate to give effect to the Conventions and not merely, as s 51(x) provided, to legislate for fisheries beyond the territorial limits. State fisheries legislation was vulnerable to inconsistent Commonwealth legislation.

(a) Commonwealth legislation

The current offshore legal regime was established following the Seas and Submerged Lands Case, as explained in Yarmirr: [49] "At federation, the territorial sea off the coast of Australia, recognised by international law, extended three nautical miles from low-water mark. [50] In international law, waters on the landward side of the baseline of the territorial sea form part of Australia's internal waters. [51] For much of the 20th century it was thought that the States had some sovereign or proprietary rights in respect of the territorial sea - the area from low‑water mark to three nautical miles out to sea. In the Seas and Submerged Lands Case it was held, however, that the boundaries of the former colonies ended at low‑water mark and that the colonies had no sovereign or proprietary rights in respect of the territorial sea. Thereafter, the Commonwealth and States arrived at the offshore constitutional settlement …."
The legislation which followed, relevantly for present purposes, was the Coastal Waters (State Powers) Act 1980 (Cth) ("State Powers Act") and the Coastal Waters (State Title) Act 1980 (Cth) ("State Title Act"). The State Powers Act defines the phrase "coastal waters of the State" in the following terms: 3 Interpretation (1) In this Act: … coastal waters of the State means, in relation to each State: (a) the part or parts of the territorial sea of Australia that is or are within the adjacent area in respect of the State, other than any part referred to in subsection 4(2); and (b) any sea that is on the landward side of any part of the territorial sea of Australia and is within the adjacent area in respect of the State but is not within the limits of the State or of a Territory.
The extent of the territorial sea and coastal waters is identified in s 4 which provides as follows: 4 Extent of territorial sea and coastal waters (1) For the purposes of this Act, the limits of the territorial sea of Australia shall be the limits existing from time to time, ascertained consistently with the Seas and Submerged Lands Act 1973 and instruments under that Act and with any agreement (whether made before or after the commencement of this Act) for the time being in force between Australia and another country with respect to the outer limit of a particular part of that territorial sea. (2) If at any time the breadth of the territorial sea of Australia is determined or declared to be greater than 3 nautical miles, references in this Act to the coastal waters of the State do not include, in relation to any State, any part of the territorial sea of Australia that would not be within the limits of that territorial sea if the breadth of that territorial sea had continued to be 3 nautical miles.
The point of ss 10 and 14 of the Seas and Submerged Lands Act is reflected in the definition of "coastal waters of the State", paragraph (b) of which expressly envisages that there may be sea on the landward side of the territorial sea as defined by baselines that is not in fact within the limits of the State. That definition reflects the intention of the Seas and Submerged Lands Act to exclude any exercise of sovereignty by the Commonwealth over waters which are within the limits of a State.
The key operative provision of the State Powers Act is s 5, which relevantly 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 State, 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; … (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.
Finally, it is necessary to note the terms of s 7: 7 Savings Nothing in this Act shall be taken to: (a) extend the limits of any State; (b) derogate from any power existing, apart from this Act, to make laws of a State having extra‑territorial effect; or (c) give any force or effect to a provision of a law of a State to the extent of any inconsistency with a law of the Commonwealth or with the Constitution of the Commonwealth of Australia or the Commonwealth of Australia Constitution Act.
It is also necessary to note two features of the State Title Act. That Act adopts the same definition of "coastal waters of the State" as appears in the State Powers Act. The relevant operative provision is s 4(1) which is in the following terms: 4 Vesting of title in States (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.
There are qualifications to s 4(1) not presently relevant, but the savings in s 8 are relevant: 8 Savings Nothing in this Act shall be taken to: (a) extend the limits of any State; or (b) derogate from any right or title of a State apart from this Act.
It is necessary to retrace the chronological steps set out above to note three further matters.
First, s 5(a) of the State Powers Act conferred legislative power on the State without limitation in relation to the "coastal waters of the State". By contrast, s 5(c), dealing specifically with laws of the State with respect to fisheries, extended to (and only to) "Australian waters beyond the outer limits of the coastal waters of the State". The latter powers were qualified by the need for "an arrangement" between the Commonwealth and the State that the fisheries were to be managed in accordance with the laws of the State. The "arrangements" referred to in s 5(c) were not relevant in this case, and generally will not be relevant in relation to abalone, which are taken in coastal waters. However, the unlimited powers conferred on the State under s 5(a) did not preclude a valid law of the Commonwealth operating within coastal waters of the State in which event, pursuant to s 109 of the Constitution, the Commonwealth law would prevail to the extent of any inconsistency. By an amendment in 1980, new provisions were added to the Fisheries Act 1952 (Cth) to allow for arrangements to be made with the States with respect to the management of particular fisheries.
The Fisheries Amendment Act 1980 (Cth) introduced a new definition of coastal waters of a State, which reflected the definition in the State Powers Act. Curiously, however, for an Act which was assented to on the same day at the State Powers Act and the State Title Act, instead of referring to "any sea" on the landward side of the territorial sea, the Fisheries Amendment Act referred to "any marine or tidal waters" on the landward side of the territorial sea. (Nothing turns on this variation for present purposes, although it might have affected one aspect of the reasoning of Jacobs J in the Seas and Submerged Lands Case.)
Importantly for present purposes, the Fisheries Amendment Act 1980 introduced into the Fisheries Act 1952 a new s 12H which contained two limbs. Section 12H(1) provided for an arrangement between the Commonwealth and a State or States for a particular fishery to be managed by a "Joint Authority" established under the Act. (That provision was not engaged in the present case.) Separately, s 12H(4) read as follows: 12H Arrangements with the States … (4) The Commonwealth may make an arrangement with a State with respect to a particular fishery in waters adjacent to the State, not being a fishery to which an arrangement under sub-section (1) 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.
Secondly, on 25 July 1990, less than two months after the legislative scheme came into force, the Commonwealth and New South Wales entered into an Arrangement pursuant to s 12H(4)(b) with respect to a mollusc fishery, providing that the fishery be managed in accordance with the law of New South Wales. [52] (As explained in Harper v Minister for Sea Fisheries, [53] abalone is a mollusc.)
Thirdly, the Fisheries Act 1952 has been replaced by the Fisheries Management Act 1991. Pursuant to the Fisheries Legislation (Consequential Provisions) Act 1991 (Cth), s 7(4)(b), the 1990 Arrangement continues in force as if it had been made under Pt 5 of the Fisheries Management Act 1991. There is no challenge to the validity of the 1990 Arrangement, nor to its continued operation. Accordingly, the mollusc fishery is to be managed according to New South Wales law.

(b) State legislation

The State legislative response to the off-shore constitutional settlement was essentially three-fold. First, New South Wales enacted the Application of Laws (Coastal Sea) Act 1980 (NSW) ("Coastal Sea Act"), which came into force on 23 February 1981. It defined the term "coastal sea" to mean the territorial sea adjacent to the State and the sea on the landward side of the territorial sea that is not within the limits of the State. [54] Its principal operative provision, s 4, stated that "the laws in force in the State … other than criminal laws and laws of the Commonwealth, apply to and in relation to the coastal sea, and so apply as if the coastal sea were part of the State." The generality of the provision did not apply to other laws which expressly indicated a contrary operation. [55] The language of deeming ("as if") was inconsistent with any suggestion that the limits of the State were affected.
Secondly, New South Wales later included Pt 10 in the Interpretation Act 1987 (NSW). The principal operative provision, s 59 provides: 59 Application of laws of the State to coastal waters The laws of the State apply in and in relation to: (a) the coastal waters of the State, and (b) the sea-bed and subsoil beneath, and the airspace above, the coastal waters of the State, as if the coastal waters of the State, as extending from time to time, were within the limits of the State. The same deeming formula was adopted as in the Coastal Sea Act.
Thirdly, in 1982 s 4H was inserted in the Fisheries and Oyster Farms Act, authorising the State to make arrangements with the Commonwealth for the management of a particular fishery, as provided for in s 12H of the Commonwealth Fisheries Act. [56]
The applicants' challenge in this case concerned the operation of the State Fisheries Management Act 1994 and the State Regulation giving effect to the Plan. The 1994 Act defines the scope of its operation in s 7, which relevantly provides: 7 Waters to which Act applies (1) This Act applies: (a) in relation to all waters that are within the limits of the State, and … (c) for purposes relating to a fishery, or a part of 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, and … Note. In many cases the legislative powers of the State will extend beyond three nautical miles, particularly in relation to recreational fishing. (2) This section is subject to any express limitations in this Act. (3) This Act is intended to have extraterritorial application in so far as the legislative powers of the State permit. Note. Section 7 and Part 5 implement Commonwealth/State arrangements with respect to fisheries and are in the same form as the fisheries legislation of other States and Territories.
The Fisheries Management Act 1994, s 42, provides for the creation of "share management fisheries" by the proclamation of amendments to Sch 1 to the Act. The Governor's proclamation of 15 February 1995 [57] identified an abalone fishery contained as Item 4 in Sch 1, in the following terms, as in force at the time of the relevant offences: 4 Abalone fishery Description of fishery The abalone fishery consists of abalone (Haliotis rubra) taken by any method from any waters.
The Act, s 60, provides for the making of a management plan for a fishery by regulation, and thus, relevantly, the Plan.
Pursuant to s 102 of the Act, a person is not entitled to take fish for sale from waters to which the Act applies unless authorised to do so by a commercial fishing licence. Further, s 112 provides that a commercial fishing licence does not authorise a person to take fish for sale in a restricted fishery unless the holder is authorised by an endorsement on the licence. In the case of a fishery subject to a share management plan, the commercial fishing licence holder must hold shares in the fishery or be nominated by a person who holds such shares. [58] The applicant Ralph Lavender was an endorsement holder in the abalone fishery and hence entitled to take abalone; Jack Lavender was a nominated person.

(6) Post-1980 case law

In 1989 the High Court considered a challenge to a South Australian law with respect to a rock lobster fishery in an area extending 200 nautical miles seaward from the coast of South Australia. The law in question in Port MacDonnell Professional Fishermen's Association Inc v State of South Australia [59] was made pursuant to an arrangement with the Commonwealth under s 12H(4) of the Fisheries Act 1952.
Port MacDonnell resolved an issue of no materiality for present purposes. The areas of the territorial sea "adjacent to" each State were identified by reference to boundaries established under the Petroleum (Submerged Lands) Act 1967 (Cth). As between South Australia and Victoria, the fishery included a wedge-shaped area of some 2000 square kilometres lying on the Victorian side of the line of equidistance drawn perpendicular to the coastline at the South Australian-Victorian border. The Court held that the area did not form part of the waters "adjacent" to South Australia.
Relevantly for present purposes, the Court addressed the validity of the State Fisheries Act more generally. With respect to the operation of the law outside the State's coastal waters, the Court noted that validity rested upon two bases, namely, "first, that the legislative power of the State of South Australia, unaided by any power conferred by the Coastal Waters (State Powers) Act, is sufficient to give to the State Act extra-territorial operation within the arrangement area; and, second, that s 5(c) of the Coastal Waters (State Powers) Act confers power on the Parliament of South Australia to give that extra-territorial operation to the State Act." [60] Expanding the holding in Pearce v Florenca, the Court accepted that there was a sufficient nexus between South Australia and the waters to the 200 nautical mile line to allow for valid extraterritorial State fisheries legislation throughout the Australian fishing zone. [61] The State law would not have been valid if there had been an inconsistency with a Commonwealth law, potentially the Fisheries Act 1952. However, it was the arrangement under s 12H(4) which withdrew the operation of that Act from the particular fishery and therefore removed any possible inconsistency. [62]
The last conclusion rendered it unnecessary to determine the validity of s 5(c) of the State Powers Act. Nonetheless, the Court stated that, having "heard full argument on the question of the validity of s 5(c) … it is appropriate that we express the views which we have formed in relation to it." The Court upheld the validity of s 5(c) by reference to the State request power, s 51(xxxviii) of the Constitution. Section 5(c) relates to laws of the State with respect to fisheries "beyond the outer limits of the coastal waters of the State"; no issue as to the operation of s 5(c) arises in the present case. However, the Court expressly upheld the operation of s 51(xxxviii), resolving differing views as to its scope. [63]
On the same day that the judgment was delivered in Port MacDonnell, the High Court handed down judgment in Harper v Minister of Sea Fisheries. [64] Although Harper dealt with an abalone fishery in Tasmanian waters, the critical issue was whether the licence fees paid by those entitled to take abalone were a form of excise and therefore invalid under s 90 of the Constitution. That argument was rejected. So far as the case considered the nature of an abalone fishery, the relevant passages are extracted below in dealing with an assumed ground of challenge raised by the applicants.
Finally, some at least of the points of challenge in this case had been raised in separate proceedings in the Federal Court and determined adversely to the applicants in those proceedings by the Full Court in Babington v Commonwealth. [65] One of the present applicants was a party to those proceedings. There is no reason to doubt the correctness of the conclusions or the reasoning in that decision, nor repeat them here, merely to determine the extent to which the applicants were able to distinguish Babington, as they sought to do.

Extraterritorial legislation

Before identifying certain specific challenges raised by the applicants, it is convenient to address an underlying theme, namely the authority of the State to legislate with extraterritorial effect, which in turn renders it necessary to identify the limits of the states.

(1) The limits of the states

The coastal boundaries of the States were given consideration in both Bonser v La Macchia and the Seas and Submerged Lands Case. In Port MacDonnell the joint judgment of the whole Court said that the Seas and Submerged Lands Case had "decided that the boundaries of the States ended at the low water mark and at the closing lines of bays and gulfs". [66] There is no dispute that this principle applied when the colony was established and defined in the second commission issued to Governor Phillip on 2 April 1787. [67]
From this it would appear that s 14 of the Seas and Submerged Lands Act effectively removed the whole of the operation of s 10.
It follows that the waters of Lake Illawarra and Batemans Bay, on the landward side of the closing lines from the mean low water mark on opposite headlands, are within the limits of the State. The State Fisheries Management Act will apply to them pursuant to s 7(1)(a), unless there is a Commonwealth law which is inconsistent with the State Act.

(2) Power to legislate with extraterritorial effect

Just as a claim of "sovereignty" over a land mass involved a claim to be entitled to legislate with respect to the land, so a claim of sovereignty over a territorial sea involved a claim as of right to legislate with respect to the seas and the seabed. As further explained in the joint reasons in Yarmirr: [68] "The decision in Keyn, that the sea within three nautical miles of the coast, although internationally recognised as territorial sea subject to British sovereignty, is not within the territory of England, denies that the sovereignty claimed amounted to a claim that the area was 'owned' by the Crown. As a matter of municipal law, there is no doubt that the Imperial authorities claimed the right to legislate in respect of the area of the territorial sea of both Britain and its colonies. The Territorial Waters Jurisdiction Act 1878 (Imp) exemplifies that claim. It may be accepted, therefore, that the claimed authority over the area extended, if thought appropriate, to a power to legislate for the grant of ownership or lesser rights in respect of the area, but no such legislation was enacted and no grants of ownership were made."
In Meyer Heine Pty Ltd v China Navigation Co Ltd [69] Windeyer J described the effect of Macleod v Attorney General for New South Wales [70] as having "cast an uncertain shadow upon the competence of the Australian Parliament to pass an Act having extra-territorial operation." That shadow has long since been lifted, not least by the express acknowledgement of the power in s 2(1) of the Australia Act 1986, both (UK) and (Cth). [71] However, it may be assumed that, absent a clear expression of legislative intent, it will be assumed not to do so; a presumption as to local operation now found in s 12(1)(b) of the Interpretation Act. Taylor J in Meyer Heine referred to the principle of statutory interpretation that "the persons, property, and events in respect of which Parliament has legislated are presumed to be limited to those in the territory over which it has jurisdiction", [72] continuing "it is always to be understood and implied that the legislature of a country is not intending to deal with persons or matters over which, according the comity of nations, the jurisdiction properly belongs to some other sovereign or state". [73]
Any constraint on the power of a State to legislate with extraterritorial effect appears to derive, somewhat curiously, from the conferral in the State Constitution of powers "to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever". [74] While the power to legislate extraterritorially has long been accepted, there remains an intangible condition based on a "connection" or "nexus" with the State. Satisfaction of the condition is a matter for the court to determine, not the parliament. That remains true after the enactment of the Australia Acts. Thus, in Union Steamship Co of Australia Pty Ltd v King [75] the full High Court stated: "Accordingly, the nineteenth century decisions do not deny that the words 'peace, order and good government' may be a source of territorial limitation, however slight that limitation may be. And, as each State Parliament in the Australian federation has power to enact laws for its State, it is appropriate to maintain the need for some territorial limitation in conformity with the terms of the grant, notwithstanding the recent recognition in the constitutional rearrangements for Australia made in 1986 that State Parliaments have power to enact laws having an extraterritorial operation: see Australia Act 1986 (Cth), s.2(1); Australia Act 1986 (U.K.), s.2(1). That new dispensation is, of course, subject to the provisions of the Constitution (see s.5(a) of each Act) and cannot affect territorial limitations of State legislative powers inter se which are expressed or implied in the Constitution. That being so, the new dispensation may do no more than recognize what has already been achieved in the course of judicial decisions. Be this as it may, it is sufficient for present purposes to express our agreement with the comments of Gibbs J in Pearce [at 518] where his Honour stated that the requirement for a relevant connexion between the circumstances on which the legislation operates and the State should be liberally applied and that even a remote and general connexion between the subject-matter of the legislation and the State will suffice." [76]
The State legislative response to the offshore constitutional settlement expressly stated that State laws generally did apply to the coastal seas; the Fisheries Management Act validly stated in express terms the circumstances in which it so applied in s 7(1)(c). No further nexus or connection is required.
In Babington, the Full Court of the Federal Court upheld the State Fisheries Management Act as a valid exercise of legislative power, but found it unnecessary to answer questions as to the validity of the State Powers Act (and the State Title Act). Consistently with the reasoning in Pearce v Florenca and Port MacDonnell, the Full Court held that the State law was valid State legislation with extraterritorial effect and there was no need to rely upon s 5 of the State Powers Act. The same reasoning must apply in the present case.

Grounds of challenge to validity

The grounds in the amended summons did not clearly particularise the matters of challenge raised in the written and oral submissions. Nor, indeed, did the submissions do so with any great clarity. Further, the applicants read three affidavits, much of the contents being relied on as submissions. Where specific challenges can be identified they will be addressed.

(1) Exclusive Commonwealth power

The applicants pursued a global challenge to the validity of the State legislation, including the purported conferral on the State of Commonwealth power, pursuant to the State Powers Act. The basis of the challenge was that control of the territorial sea lay within the exclusive power of the Commonwealth.
That argument was fundamentally misconceived. The applicants pointed to no head of Commonwealth legislative power beyond s 51 of the Constitution; no reliance was placed on the exclusive powers under s 52. To the extent that the argument denied the existence of a State extraterritorial legislative power, it was untenable as a matter of principle and authority. To the extent that the argument was based on the declaration of sovereignty over the territorial sea in the Seas and Submerged Lands Act, the High Court in 1975, 1976 and 1989 rejected the proposition that that Act had created some form of dominion over the territorial sea inconsistent with any exercise of State legislative power.
The applicants relied on statements from two sources, neither precisely identified. First, there was said to be a statement by the Right Hon Joseph Chamberlain, Colonial Secretary, describing the effect of the Commonwealth of Australia Constitution Bill 1900 (Imp), in the course of which he was said to have described the power with respect to offshore fisheries as an exclusive power of the Commonwealth. Secondly, the applicants asserted there was a comment to similar effect by Quick and Garran in their Annotated Constitution, [77] but no reference was provided and none is apparent.
In short, neither source supports any such submission; the Colonial Secretary's only reference to fisheries was in the following terms: [78] "Now, to this new Parliament so constituted thirty-nine distinct subjects have been expressly referred. Amongst them are the tariff, post office, and telegraph services, defence, currency, bankruptcy, marriage and divorce, and old-age pensions, and also the following matters - to which I call special attention because they involve interest outside Australia as well as locally - first, the fisheries in Australian waters, beyond the territorial limits of Australia…".
No person familiar with the scheme of the Constitution could have overlooked the fact that the legislative power with respect to "fisheries in Australian waters beyond territorial limits" was to be found in s 51 of the Constitution, not s 52 dealing with the exclusive powers of the Parliament. Any opinion that the fisheries power was an exclusive power must be based on practical effect and on two assumptions, namely that the Australian colonies, prior to Federation, (a) did not extend beyond the low water mark of their respective coastlines and (b) had no power to legislate with extraterritorial effect.
The first of these assumptions was upheld in the Seas and Submerged Lands Case, but the second has been rejected more than once by the High Court, a position which is now reflected in the Australia Act 1986 (UK), s 2(1). The legislative power of the Commonwealth with respect to fisheries is not an exclusive power.
It is possible that a somewhat different submission was intended, to the effect that the Commonwealth did not have legislative power to confer legislative power on the States over the territorial sea beyond the limits of the States, if the States did not otherwise have such power. However, such a submission is untenable in light of the holdings in Port MacDonnell.

(2) Validity of Management Plan

There was a separate challenge to the validity of the Plan. Abalone generally live (and are hung) below the mean low water mark. They will frequently be taken from coastal waters beyond the limits of the State. However, especially where there are indentations of the coast which involving closing lines, they may also be taken (and hung) in internal waters of the State. Those waters will be within the limits of the State and therefore not part of the territorial sea of Australia.
As a practical matter, the regulation of the abalone fishery required the application of one set of laws and, as they almost certainly live within the limits of the State, it was clearly practical that the fishery be governed by State law. That was the consequence of the 1990 Arrangement. Nevertheless, that Arrangement did not confer on the State a power which it did not otherwise have to legislate for the abalone fishery.
In its terms the State Fisheries Management Act does not operate beyond State limits unless there is an arrangement of the kind referred to in ss 135 and 136, which includes one deemed to have been entered into by the Commonwealth pursuant to s 74 of the Fisheries Management Act 1991. Although s 7(1)(c) of the State Act recognises that the State may legislate pursuant to s 5 of the State Powers Act, it conditions the application of the State Act on a State-Commonwealth arrangement. It therefore depended on the 1990 Arrangement.
While the 1990 Arrangement was not a source of legislative power, by withdrawing the operation of the Commonwealth fisheries legislation in respect of the particular fishery, it identified an area within which State regulation could operate without inconsistency with a Commonwealth law. The mollusc fishery was defined by reference to the three nautical mile territorial sea measured from the baseline along the coast of New South Wales. At its northern and southern extremities it was defined (subject to the need for the waters to be "adjacent to" New South Wales) by the boundaries identified in the Petroleum (Submerged Lands) Act. In other words, the Arrangement related to a precisely defined area of waters. By contrast, the applicants submitted, the definition of the fishery in Sch 1, item 4 of the State Fisheries Management Act spoke of abalone taken by any method "from any waters." There was, they submitted, a lack of conformity between the fishery so defined and the fishery the subject of the Arrangement.
As a matter of principle, that submission failed to address basic principles of statutory interpretation. First, the phrase "from any waters" should not be read in isolation. It should be read in the context of the Fisheries Management Act as a whole, and in particular s 7 which identifies the waters to which the Act applies. Those waters include all waters that are within the limits of the State (with respect to which no Commonwealth authority is required) and, in relation to a fishery managed in accordance with the law of the State pursuant to the 1990 Arrangement, extend to waters to which the Arrangement applies.
This reasoning is consistent with that adopted by Mason J in Pearce v Florenca. The Western Australian Act in that case had defined the expression "Western Australian waters" to include the sea from the high water mark to three nautical miles offshore from low water mark and included what may be described as internal waters of the State. The prohibition, however, applied to undersized fish "whether taken within Western Australian waters or elsewhere". Mason J noted that this language departed from the legislative policy of protecting fisheries in Western Australian waters, if the section were given a literal application. Noting the "evident difficulty of relating the possession of undersized fish to their place of capture", Mason J saw the section as "so designed that the place of capture of the fish is not an element in the offence." He continued: [79] "So as to avoid the section having an extravagant operation it is necessary to read it as applying to possession or control within the State or within Western Australian waters…."
In the present case, the limitation need not be implied; it is expressly stated in s 7. The purpose of s 7 is to avoid the need to restate the scope of a variable geographical application in relation to each provision.
The same result is achieved by having regard to the Interpretation Act 1987. Section 12(1)(b) provides that in any Act or instrument "a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales." Thus, the phrase "any waters" is to be read as a reference to "any waters in and of New South Wales." That language is elucidated by s 59 of the Interpretation Act [80] requiring that State laws apply with respect to the coastal waters of the State "as if the coastal waters of the State… were within the limits of the State."
The definition of "coastal waters of the State", as set out in s 58 of the Interpretation Act, mirrors the definition of the same phrase in the State Powers Act. Section 58 also expressly picks up the boundaries of the "adjacent area" in the same terms as the State Powers Act, by reference to a schedule to the Petroleum (Submerged Lands) Act. [81] So far as the evidence went in this case, that is precisely the same area as appears in the schedule to the Arrangement with respect to the mollusc fishery. Accordingly, there is no disconformity between the area covered by the fishery the subject of the arrangement and the abalone fishery identified in Sch 1 to the State Fisheries Management Act.

(3) Seas and Submerged Lands Act, s 16(2)(b)

Because the applicants sought to challenge the validity of s 16(2)(b) of the Seas and Submerged Lands Act, it is necessary to refer to amendments which took effect on 1 January 1982, with the State Powers Act. (The State Title Act did not commence until 14 February 1983.)
Section 16 as originally enacted, set out at [106] above, is now subs 16(1). One purpose of s 16(a) was to preserve the operation of legislation such as the Fisheries Act 1952 which regulated fishing activity in Australian waters. The apparent purpose of par (b) was to maintain the operation of a State law which might otherwise be affected by the declaration of sovereignty over the territorial sea (and indeed Australian waters generally), which would include State laws which were not inconsistent with the operation of the Fisheries Act 1952. There was an exception, namely with respect to any law "expressed to vest or make exercisable any sovereignty or sovereign rights otherwise than as provided by the preceding provisions of this Part." The purpose of that provision was, no doubt, to avoid any potential derogation from the operation of the Seas and Submerged Lands Act, which might, itself, not engage the operation of s 109 of the Constitution so as to enjoy paramountcy. However, its operation as an exception to the savings provision was somewhat obscure. An Act regulating fisheries would clearly give effect to a sovereign right to legislate with respect to fisheries; would it be expressed to "make exercisable" such a sovereign right?
Section 16(2) was, in part, designed to clarify that uncertainty, but also to give effect to the offshore constitutional settlement. The provision states: "16 Saving of other laws … (2) A law of a State or of the Northern Territory shall not be taken to be within the words of exception in paragraph (b) of subsection (1): (a) by reason that the law makes provision with respect to, or touching or concerning, any sea‑bed or subsoil that is declared by Division 1 to be within the sovereign[ty] of the Crown in right of the Commonwealth, or the living or non‑living resources of any such sea‑bed or subsoil, if proprietary rights in respect of that sea‑bed or subsoil have become vested in the Crown in right of the State or of the Northern Territory, as the case may be, by or under a law of the Commonwealth; or (b) by reason that the law makes provision with respect to, or touching or concerning, any sea‑bed or subsoil referred to in Division 1 or Division 2 but in respect of which paragraph (a) does not apply, or the living or non‑living resources of any such sea‑bed or subsoil, if the law is otherwise within powers with respect to particular matters that are conferred on the legislature of the State or of the Northern Territory, as the case may be, by the Coastal Waters (State Powers) Act 1980 ….
Subsection (2) appears to assume that a law with respect to the seabed or subsoil could be a law within the exception in (1)(b). Paragraph (a) states that subsection (1)(b) does not apply to such laws, but only if proprietary rights have been vested in the State by a law of the Commonwealth; that would not touch the exercise of the power of the State to legislate extraterritorially. However, the exception is extended by par (b) to cover laws not covered by (a) if the law is otherwise "within powers with respect to particular matters that are conferred on the legislature of the State" by the State Powers Act.
The applicants sought to challenge the operation of s 16(2)(b) on the assumption that the operation of the State Fisheries Management Act in the territorial sea beyond the limits of the State depended on powers conferred by the State Powers Act. As that was not the case, s 16(2)(b) has no relevant operation for present purposes.
It is appropriate, however, to consider how the provision would operate if it were necessary to maintain the validity of the Fisheries Management Act by reference to the State Powers Act. The statement in s 5(a) of the State Powers Act that the legislative powers of the State extend to making such laws as could be made if the coastal waters were within the limits of the State is unqualified in its operation. The result is that the effect of s 16, saving the operation of laws of the State, is not subject to any relevant exception, so far as those laws apply with respect to coastal waters.
As noted above, the High Court held in Port MacDonnell that s 5(c) of the State Powers Act was a valid exercise of Commonwealth power. The applicants sought to distinguish Port MacDonnell on the basis that there was, in that case, an arrangement to which the Commonwealth and the State were parties that the fishery be managed in accordance with the laws of the State. The respondent noted that there was a similar Arrangement in place in the present case, so that there was no point of distinction. However, there is a point of distinction, in that s 5(c) requires that there be such an arrangement; the conferral of legislative power under s 5(a) contains no such precondition. It follows that the conclusion in Port MacDonnell (albeit unnecessary to the result in that case) affirms the validity of s 5(a) of the State Powers Act. It is not open to the applicants to submit in this Court that the provision is invalid. However, if the relevant parts of s 5 of the State Powers Act are valid, there is no basis upon which to contend that the purely ancillary provision in s 16(2)(b) of the Seas and Submerged Lands Act is invalid. The applicants' submissions in this respect must be rejected.

(4) Extension of State territory

The applicants submitted that the effect of the State Title Act and the State Powers Act, operating in tandem, was to extend the territory of the State. This, the submission continued, rendered them invalid absent compliance with s 123 of the Constitution. That section provides: 123 Alteration of limits of States The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected.
It may be accepted that the only means of altering the limits of a State is in accordance with the terms of s 123. It may also be accepted that the requirement for the approval of the majority of the electors of the State was not sought or obtained. Nevertheless, the submission fails because that was not the effect of the State Title Act, whether taken alone or in combination with the State Powers Act. The key provision is s 4(1) of the State Title Act: 4 Vesting of title in States (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.
There are a number of reasons why s 4(1) does not extend the limits of the State. First, it does not purport to do so; rather it expressly abjures any such effect. The vesting achieved by s 4(1) is expressly stated to be "subject to this Act"; that must include the savings provisions in s 8 which is in the following terms: 8 Savings Nothing in this Act shall be taken to: (a) extend the limits of any State; or (b) derogate from any right or title of a State apart from this Act. There is a similar saving provision in s 7(a) of the State Powers Act. These express statutory denials cannot be disregarded.
Secondly, there is no inconsistency between these provisions: the language of s 4(1) of the State Title Act does not contradict s 8(a). Far from purporting to extend the limits of the State, s 4(1) vests "the same right and title to the property in the sea-bed … as would belong to the State if that sea-bed were … within the limits of the State." A description of the effect of the vesting in the form of a deeming provision ("as … if") would be entirely inappropriate if the limits of the State were being extended to include the seabed.
Thirdly, the concept of "right and title to property" is subject to the qualifications expressed in the joint reasons of four members of the Court in Yanner v Eaton: [82] "[17] The word 'property' is often used to refer to something that belongs to another. But in the [Fauna Conservation Act 1974 (Qld)], as elsewhere in the law, 'property' does not refer to a thing; it is a description of a legal relationship with a thing. [83] It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of 'property' may be elusive. Usually it is treated as a 'bundle of rights'. [84] But even this may have its limits as an analytical tool or accurate description, and it may be, as Professor Gray has said, [85] that 'the ultimate fact about property is that it does not really exist: it is mere illusion'. Considering whether, or to what extent, there can be property in knowledge or information or property in human tissue may illustrate some of the difficulties in deciding what is meant by 'property' in a subject matter. [86] So too, identifying the apparent circularity of reasoning from the availability of specific performance in protection of property rights in a chattel to the conclusion that the rights protected are proprietary may illustrate some of the limits to the use of 'property' as an analytical tool. [87] No doubt the examples could be multiplied. [18] Nevertheless, as Professor Gray also says, [88] 'An extensive frame of reference is created by the notion that "property" consists primarily in control over access. Much of our false thinking about property stems from the residual perception that "property" is itself a thing or resource rather than a legally endorsed concentration of power over things and resources.' [89] "
Further, as stated by Gummow J in the same case: [90] "Hohfeld identified the term 'property' as a striking example of the inherent ambiguity and looseness in legal terminology. The risk of confusion is increased when, without further definition, statutory or constitutional rights and liabilities are so expressed as to turn upon the existence of 'property'. The content of the term then becomes a question of statutory or constitutional interpretation."
In Commonwealth v WMC Resources Ltd [91] the High Court considered the effect of the cancellation of petroleum exploration rights which had been granted to the respondent under the Petroleum (Submerged Lands) Act over a number of areas on the continental shelf. Brennan CJ referred to the observations of Stephen J in the Seas and Submerged Lands Case to the following effect: [92] "It may well be that sovereignty over its territorial waters is an attribute of an internationally recognized nation state. If so the Commonwealth possesses that attribute, it has sovereignty in the relevant international law sense, just as, in that same sense, it has sovereignty over the land mass of the Australian continent. In neither case does its lack of full legislative competence or its lack of radical title affect its status as a nation state."
Brennan CJ reasoned in WMC Recources: [93] "It is erroneous to regard the [Petroleum (Submerged Lands) Act] as the off-shore equivalent of those provisions which, in Australia, authorise the Crown to alienate interests in the waste lands of the Crown (provisions which I shall call 'Land Acts'). If it were the equivalent of Land Acts, it would be arguable that the extinguishing of a permittee's proprietary rights relieves the Commonwealth of a reciprocal burden on its title to land within the permit area and thus constitutes an acquisition of property. The Land Acts assume the existence of the Crown's radical title to land lying above the low water mark, a title which is sufficient to support the alienation of interests in that land and to found the Crown's full beneficial title to that land when there are no other interests or when other interests have been extinguished or are exhausted. In Mabo v Queensland [No 2] [94] I examined the nature of that radical title and it is unnecessary now to repeat it. It is sufficient to note that the extinguishing of an interest in land above the low water mark necessarily results in the enhancement of the title which was subject to the interest extinguished. The position in relation to interests in or over the continental shelf is quite different."
It is true, as this reasoning acknowledged, that there was distinction to be drawn between the territorial sea and the continental shelf. The Seas and Submerged Land Act itself drew such a distinction in that s 6 "declared and enacted that the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth." The equivalent declaration in respect of the continental shelf (in s 11) merely "declared and enacted that the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth." Nevertheless, the Act did not purport to vest "title" in respect of the territorial sea in the Commonwealth. It appears that the sovereign rights vested in the Commonwealth with respect to the territorial sea were seen to be sufficient to vest title to the seabed in the States. Although it is no doubt true that the radical title of the State in the seabed provides a conceptual basis for the grant of leases and other titles over the seabed, it does not follow that the seabed beyond the limits of the State has become part of the State any more than a place owned by the Commonwealth within a State is excised from the State, or the site of an embassy in another country becomes part of the Commonwealth.
Indeed, it is clear that the right and title vested in the State was not full title, in the sense of a beneficial fee simple estate. Dealing with similar legislation in the Northern Territory, the joint judgment in Yarmirr stated: "[70] It is unnecessary to decide what was the right and title that was vested in the Territory. If it is appropriate to speak of that right and title in the language of the real property lawyer, the right and title thus vested in the Territory was no more than a radical title; it was not full ownership of the sea bed or space above it. (We need not and do not decide whether it is appropriate to adopt such terms as radical title in this context.) There are several reasons why the right and title that was vested does not amount to full ownership. First, the right and title was vested by an Act of the Parliament which was itself an exercise of the sovereignty which had been asserted by the Seas and Submerged Lands Act and earlier by Acts of the Imperial and later the federal executive. It would be inconsistent with the public rights to fish and to navigate that were recognised as qualifying those sovereign rights, for purposes of municipal law, to treat the right and title vested as absolute and unqualified ownership. Further, it would be inconsistent with the international obligations which Australia had undertaken in the Convention on the Territorial Sea and the Contiguous Zone [95] to afford innocent passage to ships of all States through the territorial sea to vest absolute and unqualified ownership in the area in the Territory. [71] Secondly, as the NT Title Act makes plain, the right and title which was vested in the Territory was identified as the same right and title the Territory had over the sea bed beneath waters of the sea within the limits of the Territory. It was not submitted that the right and title to areas of the latter kind was any greater than radical title to land. It is unnecessary to stay to consider whether it is less than a radical title. If the title thus vested is not larger than a radical title, that title is not inconsistent with the continued existence of native title rights and interests."
It follows that neither the State Title Act nor the State Powers Act (taken alone or in combination) expand the limits of New South Wales. However, it may be accepted that there are arguments to the contrary. For example, the savings provision in s 8 of the State Title Act (and s 7 of the State Powers Act) may not be effective if the title conferred on the State has the legal effect of expanding the limits of the State. Conceding, in other words, that the State Title Act in particular may extend the limits of the State, what follows? The answer must be that the Act is, at least to that extent, invalid. But that is of no present consequence; as already explained the State fisheries legislation was a valid exercise of State power to legislate with extraterritorial effect, so long as there was no inconsistent Commonwealth legislation in existence. That power did not depend upon the State having any proprietary interest in the seabed. As explained by Brennan CJ in WMC Resources, addressing a permit granted by the Commonwealth to drill for oil on the continental shelf north-west of Australia: [96] "The [Petroleum (Submerged Lands) Act] is a law passed in exercise of the legislative powers of the Commonwealth and a person who seeks and obtains the grant of a permit or licence under that Act cannot deny the authority of the Commonwealth to make the grant, but that is not to say that the Commonwealth has any proprietary interest in the continental shelf or the seas above it. The principle expressed by Mason J with respect to the Crown's grant of off-shore interests is applicable to describe the relationship between the grantee of a permit or licence under the [Petroleum (Submerged Lands) Act] and the Commonwealth."
In other words, the applicants arguments as to invalidity based on a failure to comply with s 123 of the Constitution must be rejected, but it would not matter if they had been upheld.

(5) Abalone - a sedentary organism

The applicants submitted that, because abalone was a sedentary organism, "it is treated as if it was a mineral" and was therefore "part of the seabed". [97] The submission continued, "that such a fishery involves the exercise of possession or sovereignty with respect to the seabed and requires title and couldn't otherwise be done except by a change in the limits to the State approved by the people". [98]
Whether this submission constituted another basis for invalidity of the Plan, arising from an invalid extension to the limits of the State, or whether it constituted some separate basis for claiming that the Plan was invalid, is unclear. The submission is, in any event, founded upon an erroneous premise.
Whatever the degree of attachment to the seabed, abalone is not a mineral and is not treated as such by the law. The 1882 case of Goodman v Mayor of Saltash [99] concerned a claimed public right to dredge for oysters, even if the exercise of the public right were to exhaust the fishery. In upholding the right, Lord Selborne LC stated: [100] "Fish (whether floating or shell-fish) are not part of the soil or freehold. Their capture is merely the ordinary mode of the perception of those fruits and profits which a fishery produces." The public right to fish in the sea is not a proprietary right and does not depend upon ownership of the seabed. As explained in Harper v Minister for Sea Fisheries, a case involving abalone: [101] "For reasons stated by the Court in [Port MacDonnell] the legislative powers of Tasmania extend to the enactment of laws for the management of the abalone fishery in the waters described in [the Commonwealth-State] arrangement. The validity and effect of the [Sea Fisheries Regulations 1962 (Tas)] do not depend upon the title of the Crown in right of Tasmania to the bed of the adjacent sea."
The issue in Harper was whether the licence fees paid by those entitled to exploit the fishery were duties of excise. As Brennan J further explained: [102] "The [defendants'] principal argument starts with the proposition that abalone have such a degree of attachment to and dependence on the seabed that they should be regarded as part of it .... Then it was said that the [State Title Act] had vested in Tasmania the same right and title to the property in the seabed beneath the coastal waters of that State as would belong to Tasmania if that seabed were beneath waters of the sea within the limits of Tasmania: see s 4(1) of that Act. Arguing that under that Act Tasmania became the owner of the abalone attached to the seabed beneath coastal waters and that Tasmania already was the owner of the abalone attached to the seabed beneath waters within the limits of the State, the defendants submit that the amount required to be paid to obtain a licence to take the abalone is a royalty. … Finally, the defendants embrace an argument which depends not on proprietary rights in the seabed but upon the exercise of legislative power over the abalone fishery in State fishing waters. In my opinion, that argument should be upheld. Accordingly, it becomes unnecessary to consider Tasmania's proprietary rights in the seabed …."
Brennan J concluded, relevantly for present purposes: [103] "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 …. 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."
It follows that, on any view of the applicants' submissions, they must fail.

Conclusion

For these reasons, the applicants' challenge to the validity of the State legislation under which they were prosecuted must be rejected. The amended summons seeking to set aside the judgment in the District Court rejecting their appeal from their convictions in the Local Court must be dismissed. The applicants should pay the respondent's costs of the proceedings in this Court.

Endnotes

Published on Caselaw as Ralf Lavender v NSW Department of Industry; Jack Lavender v NSW Department of Industry [2017] NSWDC 236 ("Lavender").
The Plan is an appendix to, and is given effect by, the Regulation.
From 15 December 2017 cl 30 has been restructured.
Lavender at [6] and [19].
Amended Summons filed 19 February 2018.
(2009) 240 CLR 140; [2009] HCA 51 at [141] (Hayne, Kiefel and Bell JJ) (citations omitted).
Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW [2006] NSWCA 129 at [40]; Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [71] (Leeming JA).
The Plan, cl 30(1).
The Plan, cl 30(4).
See definition of "fishery" in cl 2 of the Plan.
Clarendon Press Oxford, 1981 ("Marston").
(1575) 1 And 86; Marston, p 4.
(1876) 2 Ex D 63.
Marston, p 5.
Marston, p 5.
Harper v Minister for Sea Fisheries (1989) 168 CLR 314, 330 (Brennan J); [1989] HCA 47.
(1969) 122 CLR 177 at 185; [1969] HCA 31.
Marston, p 75.
Marston, p 91.
21 & 22 Vict, c 109.
Section 2 (as enacted).
Marston, p 97.
Marston, p 99.
Marston, p 110.
Marston, p 115.
Commonwealth v Yarmirr (2001) 208 CLR 1; [2001] HCA 56 at [25] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
Yarmirr at [26].
Keyn at 239; Yarmirr at [28].
41 & 42 Vict, c 73.
Fisheries Act 1902, s 3, "Tidal Waters".
See Bonser v La Macchia at 191-192 (Barwick CJ).
Bonser v La Macchia at 192-193.
House of Representatives, Parliamentary Debates (Hansard), 10 May 1973, p 2007, col 1.
(1975) 135 CLR 337; [1975] HCA 58.
Seas and Submerged Lands Case at 459.
Seas and Submerged Lands Case at 462.
Seas and Submerged Lands Case at 467-468.
Seas and Submerged Lands Case at 475.
Seas and Submerged Lands Case at 476.
Seas and Submerged Lands Case at 479.
Seas and Submerged Lands Case at 480.
Seas and Submerged Lands Case at 486 and 491.
Seas and Submerged Lands Case at 496.
Seas and Submerged Lands Case at 382.
Yarmirr at [34] (footnotes omitted).
Commonwealth of Australia v Yarmirr [2001] HCA Trans 9, p 24 (line 890).
(1976) 135 CLR 507; [1976] HCA 26.
Pearce at 512.
Yarmirr at [63].
Bonser v La Macchia (1969) 122 CLR 177 at 190‑192 (Barwick CJ), 201‑202 (Kitto J), 209 (Menzies J), 213 (Windeyer J).
Convention on the Territorial Sea and the Contiguous Zone, Art 8.
Arrangement between the Commonwealth of Australia and the State of New South Wales in relation to the Mollusc Fishery, dated 25 July 1990 ("1990 Arrangement").
Harper (fn 16 above) at 325-326 (Brennan J).
Coastal Sea Act, s 3(1).
Coastal Sea Act, s 5(1).
Fisheries and Oyster Farms (Commonwealth-State Arrangements) Amendment Act 1982 (NSW), Sch 1(2).
Published in Gazette No 18 of 24 February 1995.
Fisheries Management Act, ss 66 and 68.
(1989) 168 CLR 340; [1989] HCA 49.
Port MacDonnell at 369.
Port MacDonnell at 373.
Port MacDonnell at 374.
Port MacDonnell at 376-379; A Twomey, The Australia Acts 1986 - Australia's Statutes of Independence (The Federation Press, 2010) at 386-388.
See fn 16 above.
(2016) 240 FCR 495; [2016] FCAFC 45 (Kenny, Perram, Robertson, Griffiths and Perry JJ).
Port MacDonnell at 358.
Seas and Submerged Lands Case at 459 (Mason J).
Yarmirr at [55].
(1966) 115 CLR 10 at 43; [1966] HCA 11.
[1891] AC 455.
See Twomey, fn 63 above, at 210ff.
Meyer Heine at 30-31, quoting Isaacs J in Morgan v White (1912) 15 CLR 1 at 13; [1912] HCA 50.
Meyer Heine at 31, quoting Dixon J in Barcelo v Electrolytic Zinc Company of Australasia Ltd (1932) 48 CLR 391 at 424; [1932] HCA 52.
Constitution Act 1902 (NSW), s 5.
(1988) 166 CLR 1 at 13-14; [1988] HCA 55.
For subsequent affirmation of that approach, see A Twomey, p 214.
J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1901).
House of Commons, Parliamentary Debates (Hansard), 14 May 1900, vol 83, col 54.
Pearce at 524.
Set out at [138] above
See also Coastal Sea Act, ss 4 and 5.
(1999) 201 CLR 351; [1999] HCA 53; 69.
Bentham, An Introduction to the Principles of Morals and Legislation, ed W Harrison (1948), p 337, n 1; K Gray and S F Gray, "The Idea of Property in Land", in Bright and Dewar (eds), Land Law: Themes and Perspectives (1998) 15 at 15 .
See, eg, Minister for the Army v Dalziel (1944) 68 CLR 261 at 285, per Rich J.
Gray, "Property in Thin Air" (1991) 50 Camb L J, 252 at 252.
See, eg, Kohler and Palmer, "Information as Property" and Magnusson, "Proprietary Rights in Human Tissue", in Palmer and McKendrick (eds), Interests in Goods, (2nd ed, 1998), pp 3 and 25 respectively.
See, eg, Colbeam Palmer Ltd v Stock Affiliates Pty Ltd (1968) 122 CLR 25 at 34, per Windeyer J.
Gray, "Property in Thin Air", Cambridge Law Journal, vol 50 (1991) 252, at p 299 .
Jeremy Bentham recognised this long ago. Bentham pointed out that "in common speech in the phrase 'the object of a man's property', the words 'the object of' are commonly left out; and by an ellipsis, which, violent as it is, is now become more familiar than the phrase at length, they have made that part of it which consists of the words 'a man's property' perform the office of the whole". See An Introduction to the Principles of Morals and Legislation, W Harrison (ed) (1948), p 337, n 1.
Yanner at [85] (footnotes omitted).
(1998) 194 CLR 1; [1998] HCA 8.
WMC Resources at [21], quoting (with emphasis added) Seas and Submerged Lands Case at 445.
WMC Resources at [20].
(1992) 175 CLR 1 at 43-54.
Section III (Arts 14-17).
WMC Resources at [22].
Tcpt, 06/03/18, p 53(20)-(25).
Ibid, lines (26)-(30).
(1882) 7 App Cas 633.
Goodman at 646.
Harper at 331-332 (Brennan J, all other members of the Court agreeing).
Harper at 333-334.
Harper at 335.

Amendments 13 August 2018 - Typographical and formatting amendments only. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 August 2018

Fisheries Act 1865(NSW)

Fisheries Act 1881(NSW)

Fisheries Act 1902(NSW)

Fisheries Act 1905(WA)

Fisheries Act 1982(SA)

Fisheries Amendment Act 1980(Cth)

Fisheries and Oyster Farms (Commonwealth-State Arrangements) Amendment Act 1982(NSW)

Fisheries and Oyster Farms Act 1935(NSW)

Sea Fisheries Regulations 1962(Tas)

Whether the Fisheries Management Act 1994(NSW)

Whether the Coastal Waters (State Powers) Act 1980(Cth)

Whether the Fisheries Management (Abalone Share Management Plan) Regulation 2000(NSW)

Conservation Act 1974(Qld)

Fisheries Regulations 1962(Tas)

Commonwealth v WMC Resources Ltd (1998) 194 CLR 1; [1998] HCA 8 Commonwealth v Yarmirr (2001) 208 CLR 1; [2001] HCA 56 Ex parte Emerson (1898) 15 WN (NSW) 101 Goodman v Mayor of Saltash (1882) 7 App Cas 633 Harper v Minister for Sea Fisheries (1989) 168 CLR 314; [1989] HCA 47 ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140; [2009] HCA 51 Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 Lord Provost and Magistrates of Glasgow v Farie (1888) 13 App Cas 657 Macleod v Attorney General for New South Wales [1891] AC 455 Meyer Heine Pty Ltd v China Navigation Co Ltd (1966) 115 CLR 10; [1966] HCA 11 Minister for the Army v Dalziel (1944) 68 CLR 261; [1944] HCA 4 Morgan v White (1912) 15 CLR 1; [1912] HCA 50 New South Wales v Commonwealth (1975) 135 CLR 337; [1975] HCA 58 Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW [2006] NSWCA 129 Pearce v Florenca (1976) 135 CLR 507; [1976] HCA 26 Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340; [1989] HCA 49 R v Keyn (1876) 2 Ex D 63 Robinson v Western Australian Museum (1977) 138 CLR 283; [1977] HCA 46 Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1; [1988] HCA 55 Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53 Texts Cited: Geoffrey Marston, The Marginal Seabed: United Kingdom Legal Practice, Clarendon Press Oxford, 1981 J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1901) A Twomey, The Australia Acts 1986 - Australia's Statutes of Independence (The Federation Press, 2010) Category: Principal judgment Parties: Ralph Lavender (first applicant) Jack Lavender (second applicant) Director of Fisheries Compliance, Department of Industry Skills and Regional Development (first respondent) District Court of New South Wales (second respondent) Local Court of New South Wales (third respondent) Minister administering Fisheries Management Act 1994 (NSW) (fourth respondent) State of New South Wales (fifth respondent) Representation: Counsel: P E King (applicants) J S Emmett (first, fourth and fifth respondents)

[This headnote is not to be read as part of the judgment] Ralph and Jack Lavender were convicted of various fisheries offences by the Local Court of New South Wales in 2016 and 2017. They appealed against their convictions to the District Court of New South Wales, which dismissed their appeals. They then brought an application in the Supreme Court of New South Wales to set aside their convictions in the Local Court and the orders made by the District Court dismissing their appeals. Ralph Lavender had been convicted of two offences of threatening a fisheries officer under s 247(2) of the Fisheries Management Act 1994 (NSW). Jack Lavender had been convicted of two offences of contravening provisions of the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) relating to the taking of abalone. The primary ground of challenge to their convictions was that the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) was invalid. The main issues on appeal were: 1 Whether the Fisheries Management Act 1994 (NSW) supported the operation of the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) outside the limits of New South Wales; 2 Whether the Coastal Waters (State Powers) Act 1980 (Cth) and the Coastal Waters (State Title) Act 1980 (Cth) were valid and supported the operation of the Fisheries Management Act 1994 (NSW) and the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) outside the limits of New South Wales; 3 Whether s 16(2)(b) of the Seas and Submerged Lands Act 1973 (Cth) was valid and supported the operation of the Fisheries Management Act 1994 (NSW) and the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) outside the limits of New South Wales; and 4 Whether the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) contravened s 123 of the Constitution by altering the limits of New South Wales. The Court, dismissing the summons, held: In relation to issue (1): (i) The Fisheries Management Act 1994 (NSW) is valid and capable of supporting the operation of the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) outside the limits of New South Wales. The Commonwealth does not have exclusive legislative power over the territorial sea: [53] (Bathurst CJ); [68] (Beazley P); [161]-[166] (Basten JA). Pearce v Florenca (1976) 135 CLR 507; [1976] HCA 26; Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1; [1988] HCA 55; Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340; [1989] HCA 49, applied. (ii) To the extent that the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) operated within the limits of New South Wales or within the "coastal waters" of New South Wales, its operation was supported by s 7 of the Fisheries Management Act 1994 (NSW). No Commonwealth legislation was identified which gave rise to any relevant inconsistency under s 109 of the Constitution: [54]-[61] (Bathurst CJ); [68] (Beazley P); [170]-[175] (Basten JA). (iii) To the extent that the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) operated outside the limits of New South Wales and the "coastal waters" of New South Wales, its operation was supported by s 7 of the Fisheries Management Act 1994 (NSW). No Commonwealth legislation was identified which gave rise to any relevant inconsistency under s 109 of the Constitution: [54]-[61] (Bathurst CJ); [68] (Beazley P); [170]-[175] (Basten JA). In relation to issue (2): (iv) Since the operation of the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) outside the limits of New South Wales was supported by the Fisheries Management Act 1994 (NSW), it was unnecessary to rely upon the Coastal Waters (State Powers) Act 1980 (Cth) or the Coastal Waters (State Title) Act 1980 (Cth) to support its operation: [63] (Bathurst CJ); [68] (Beazley P); [180]-[194] (Basten JA). (v) If it were necessary to rely upon the Coastal Waters (State Powers) Act 1980 (Cth) to support the operation of the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) outside the limits of New South Wales, then s 5(a) of the Coastal Waters (State Powers) Act 1980 (Cth) was valid and capable of doing so: [63] (Bathurst CJ); [68] (Beazley P); [181]-[182] (Basten JA). Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340; [1989] HCA 49, applied. (vi) The Coastal Waters (State Powers) Act 1980 (Cth) and the Coastal Waters (State Title) Act 1980 (Cth) are not invalid by reason of s 123 of the Constitution because they do not "alter" the limits of New South Wales within the meaning of s 123 of the Constitution: [63] (Bathurst CJ); [68] (Beazley P); [184]-[194] (Basten JA). Commonwealth v WMC Resources Ltd (1998) 194 CLR 1; [1998] HCA 8; Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53; Commonwealth v Yarmirr (2001) 208 CLR 1; [2001] HCA 56, considered. In relation to issue (3): (vii) If it were necessary to rely upon the Coastal Waters (State Powers) Act 1980 (Cth) to support the operation of the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) outside the limits of New South Wales, and s 5(a) of Coastal Waters (State Powers) Act 1980 (Cth) was valid, then there would be no basis upon which to contend that s 16(2)(b) of Seas and Submerged Lands Act 1973 (Cth) was invalid: [63] (Bathurst CJ); [68] (Beazley P); [182] (Basten JA). In relation to issue (4): (viii) The Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) does not "alter" the limits of New South Wales within the meaning of s 123 of the Constitution. To the extent that it is relevant to whether an "alteration" has occurred, abalone are not to be treated as "minerals" on the sea floor: [64]-[65] (Bathurst CJ); [68] (Beazley P); [195]-[200] (Basten JA). Goodman v Mayor of Saltash (1882) 7 App Cas 633; Lord Provost and Magistrates of Glasgow v Farie (1888) 13 App Cas 657; Ex parte Emerson (1898) 15 WN (NSW) 101; Harper v Minister for Sea Fisheries (1989) 168 CLR 314; [1989] HCA 47, referred to.

The legislative background

To understand the issues in contention between the parties, it is necessary to have regard to the background and legislative history of fisheries regulation in Australia. It is only necessary for me to mention the major features since they have been set out at length by Basten JA.
In 1973, the Commonwealth Parliament enacted the Seas and Submerged Lands Act 1973 (Cth). Section 6 of that Act stated that "sovereignty in respect of the territorial sea" was "vested in and exercisable by the Crown in right of the Commonwealth". The phrase "territorial sea" was undefined in the Act as enacted, but is currently defined to have the same meaning as it does in Articles 3 and 4 of the United Nations Convention on the Law of the Sea.
Article 3 of the Convention empowers a State to "establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention". At the relevant times for these proceedings, the outer limit of the territorial sea of Australia was defined as 12 nautical miles from the relevant baselines by a proclamation made by the Governor-General on 9 November 1990 pursuant to s 7(1) of the Act.
Section 10 of the Act provided as follows: "10 Sovereignty in respect of internal waters It is by this Act declared and enacted that the sovereignty in respect of the internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of the territorial sea) so far as they extend from time to time, and in respect of the airspace over those waters and in respect of the sea-bed and subsoil beneath those waters, is vested in and exercisable by the Crown in right of the Commonwealth.
Section 14 of the Act contained a savings provision to the following effect: "14 Part III does not affect waters etc. within State limits Nothing in this Part affects sovereignty or sovereign rights in respect of any waters of the sea that are waters of or within any bay, gulf, estuary, river, creek, inlet, port or harbour and: (a) were, on 1st January, 1901, within the limits of a State; and (b) remain within the limits of the State; or in respect of the airspace over, or in respect of the sea-bed or subsoil beneath, any such waters."
As it presently appears in the Act, s 16 is in the following terms: "16 Saving of other laws (1) The preceding provisions of this Part: (a) do not limit or exclude the operation of any law of the Commonwealth or of a Territory, other than the Northern Territory, in force at the date of commencement of this Act or coming into force after that date; and (b) do not limit or exclude the operation of any law of a State or of the Northern Territory in force at the date of commencement of this Act or coming into force after that date, except in so far as the law is expressed to vest or make exercisable any sovereignty or sovereign rights otherwise than as provided by the preceding provisions of this Part. (2) A law of a State or of the Northern Territory shall not be taken to be within the words of exception in paragraph (b) of subsection (1): (a) by reason that the law makes provision with respect to, or touching or concerning, any sea‑bed or subsoil that is declared by Division 1 to be within the sovereign[ty] of the Crown in right of the Commonwealth, or the living or non‑living resources of any such sea‑bed or subsoil, if proprietary rights in respect of that sea‑bed or subsoil have become vested in the Crown in right of the State or of the Northern Territory, as the case may be, by or under a law of the Commonwealth; or (b) by reason that the law makes provision with respect to, or touching or concerning, any sea‑bed or subsoil referred to in Division 1 or Division 2 but in respect of which paragraph (a) does not apply, or the living or non‑living resources of any such sea‑bed or subsoil, if the law is otherwise within powers with respect to particular matters that are conferred on the legislature of the State or of the Northern Territory, as the case may be, by the Coastal Waters (State Powers) Act 1980 or the Coastal Waters (Northern Territory Powers) Act 1980."
The constitutional validity of the Seas and Submerged Lands Act 1973 (Cth) was upheld by a majority of the High Court in New South Wales v Commonwealth (1975) 135 CLR 337; [1975] HCA 58 (Seas and Submerged Lands Case). In that case, Mason J (as his Honour then was) described the operation of s 10 and s 14 as "not without its difficulty" at 476. He stated that, apart from the operation of s 14, s 10 "might be seen as an attempt to vest in the Commonwealth sovereign rights in inland waters lying within State boundaries", where the phrase "inland waters" was to be understood as confined to "waters of the sea". Even then, he explained that there would be "waters below the low-water mark which are on the landward side of the baselines of the territorial sea". He stated that these waters stood "outside State boundaries" and would fall within s 10. However, he said that s 14 was designed to preserve "State rights over internal waters within the territory of a State, as for example, waters of the sea within a bay which is on the landward side of the baselines of the territorial sea". Jacobs J reached a similar conclusion at 479.
In subsequent cases involving the Seas and Submerged Lands Act 1973 (Cth), the High Court made it clear that the vesting of "sovereignty in respect of the territorial sea" in the Crown in right of the Commonwealth did not operate to deprive the State of its power to pass extra-territorial legislation, although it might give rise to inconsistency within the meaning of s 109 of the Constitution.
In Pearce v Florenca (1976) 135 CLR 507; [1976] HCA 26 (Pearce v Florenca), the defendant was charged with a contravention of a provision of the Fisheries Act 1905 (WA) which the High Court found made it an offence for a person to have undersized fish of a specified kind on a boat at sea at a distance between one and a half and two miles from the coast of Western Australia. Gibbs J stated at 518-519 that, on the assumption that the Fisheries Act 1905 (WA) was correctly described as "extra-territorial", he accepted "the views expressed by Mason J in the Seas and Submerged Lands Case, that the power [of a colony] to make laws for the peace, order and good government of the colony was large enough to enable the colonial legislatures to enact legislation which applied to the off-shore waters", and that the "same is true now of State legislatures". He also stated that the "very fact that the waters are the off-shore waters of the State" provided the "necessary nexus" to render such a law valid. Similar comments were made by Mason J at 522 and Jacobs J at 526. See also Bonser v La Macchia (1969) 122 CLR 177; [1969] HCA 31.
In Robinson v Western Australian Museum (1977) 138 CLR 283; [1977] HCA 46, the power of a State to enact legislation having an extra-territorial operation was again affirmed by three members of the High Court: see Barwick CJ at 294-295; Gibbs J at 304; Mason J at 331. A majority, however, found the Western Australian legislation in that case to be invalid or inoperative. Barwick CJ found that it was invalid on the ground that there was no sufficient connection with the State for the legislation to be for the "peace, order and good government" of the State and Jacobs J found that the legislation was inoperative by reason of inconsistency with Part VII of the Navigation Act 1912 (Cth). Murphy J found that the legislation would have been invalid or inoperative on either ground.
These cases establish that, notwithstanding the passage of the Seas and Submerged Lands Act 1973 (Cth), a State has the power to enact legislation having an extra-territorial operation, including over the territorial sea of Australia, despite vesting of the "sovereignty" over the territorial sea in the Commonwealth. This is provided that the legislation had a sufficient connection with the "peace, order and good government" of the State and is not inconsistent with any Commonwealth legislation, including the Seas and Submerged Lands Act 1973 (Cth) itself.
In 1980, as part of the "Offshore Constitutional Settlement" to remove any remaining doubts about the validity of State legislation, the Commonwealth passed the Coastal Waters (State Powers) Act 1980 (Cth) (the State Powers Act) and the Coastal Waters (State Title) Act 1980 (Cth) (the State Title Act). It is unnecessary to deal with the provisions of the State Title Act for the purpose of this judgment, although it is necessary to briefly refer to the provisions of the State Powers Act.
The State Powers Act conferred express legislative power on the States in respect of its "coastal waters", which include "the part or parts of the territorial sea of Australia that is or are within the adjacent area in respect of the State", subject to the limitations referred to in s 4(2), which limited the "coastal waters" to a breadth of 3 nautical miles if the territorial sea of Australia was greater than 3 nautical miles. Section 5(c) extended the operation of laws of a State with respect to fisheries in respect of which an arrangement had been made with the Commonwealth for the fishery to be managed in accordance with the laws of the State. It was in the following terms: "5 Legislative powers of States The legislative powers exercisable from time to time under the constitution of each State extend to the making of: … (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."
There was a savings provision in s 7(b) of the State Powers Act expressly providing that the Act should not be taken to "derogate from any power existing, apart from this Act, to make laws of a State having extra-territorial effect". It should also be noted that s 7(a) provided that the Act should not be taken to "extend the limits of any State".
At the same time that the State Powers Act was enacted, the Fisheries Amendment Act 1980 (Cth) inserted Part IVA into the Fisheries Act 1952 (Cth). Section 12H(4), so far as is presently relevant, was in the following terms at the time that it was introduced: "12H Arrangements with the States … (4) The Commonwealth may make an arrangement with a State with respect to a particular fishery in waters adjacent to the State, not being a fishery to which an arrangement under sub-section (1) 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."
In Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340; [1989] HCA 49 (Port MacDonnell), the High Court held that a "wedge-shaped" area of sea did not form part of "waters adjacent to" South Australia for the purpose of s 12H(4) of the Fisheries Act 1952 (Cth). The "wedge-shaped" area formed part of a rock lobster fishery defined in an arrangement between the Commonwealth and South Australia for the purpose of s 12H(4). Section 14 of the Fisheries Act 1982 (SA) made the provisions of that Act applicable to a fishery which was the subject of an arrangement with the Commonwealth that stated that it was to be managed in accordance with the laws of the State. The Fisheries Act 1982 (SA) provided for the licensing of rock lobster fishermen.
The Court held at 367-368 that the arrangement between the Commonwealth and South Australia was valid, although its operation was confined by reference to the fixed boundary line separating the waters adjacent to South Australia from those adjacent to Victoria defined in schedule 2 of the Petroleum (Submerged Lands) Act 1967 (Cth), and therefore did not include the "wedge-shaped" area which was on the side of the boundary line adjacent to Victoria.
The Court also held that the South Australian legislature had power to pass s 14 of the Fisheries Act 1982 (SA) without relying on s 5(c) of the State Powers Act. Referring to Bonser v La Macchia (1969) 122 CLR 177; [1969] HCA 31 and Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1 at 14; [1988] HCA 55, the Court concluded at 369-373 that s 14 had a sufficient connection with the "peace, order and good government" of the State. The Court made the following remarks at 373 which are of relevance in the present case: "The circumstances of this case set out earlier demonstrate a real and substantial connexion. The fishery described in the arrangement is a finite resource available for exploitation and exploited by South Australian residents; it is a significant source of South Australian trade and employment. Since the area of water referred to in the second arrangement is to be construed as confined to waters on the South Australian side of the lines of equidistance, the land territory of South Australia is the closest land territory to the fishery. A law for the management of the fishery is a law for the peace, welfare and good government of South Australia. But it does not necessarily follow from that conclusion that s 14 of the State Fisheries Act is effective to prescribe the extra-territorial operation of the Act. Section 14 fails in its intended effect if it is inconsistent with a valid law of the Commonwealth or if the extra-territorial operation claimed by it for the Act exceeds what might properly be claimed having regard to the legislative powers which adjoining States might exercise over the same fishery."
In Harper v Minister for Sea Fisheries (1989) 168 CLR 314; [1989] HCA 47 (Harper), the High Court considered whether a fee payable for a licence to fish for abalone imposed pursuant to regulation 17A of the Sea Fisheries Regulations 1962 (Tas) was a "duty of excise" for the purpose of s 90 of the Constitution. The Court held that it was not. Mason CJ, Deane and Gaudron JJ dealt with the basis of the fee at 325 in the following terms: "Its basis lies in environmental and conservational considerations which require that exploitation, particularly commercial exploitation, of limited public natural resources be carefully monitored and legislatively curtailed if their existence is to be preserved."
In 1983, the Fisheries and Oyster Farms Act 1935 (NSW) was amended by the insertion of Part 1A, which provided for the "Commonwealth-State Management of Fisheries". Section 4H(1) stated that "the State may, in accordance with s 12J of the [Fisheries Act 1952 (Cth)], make an arrangement referred to in s 12H of that Act for the management of a particular fishery". As is apparent, this is the State legislative provision which corresponds to s 12H of the Fisheries Act 1952 (Cth).
On 25 July 1990, the Commonwealth and New South Wales entered into an arrangement in respect to what was described as a "mollusc fishery" (the 1990 Arrangement). Clause 3 of the 1990 Arrangement provided that the fishery was to be managed in accordance with the laws of New South Wales. Clause 1 of the 1990 Arrangement defined the fishery in the following manner: 1 The fishery to which this Arrangement applies is - (a) in the area of waters described in the Schedule to this Arrangement that are north of Latitude 33°35' South, the fishery for all molluscs except Cephalopoda of the orders Teuthoidea and Sephioidea taken by any method other than trawling; and (b) in the area of waters described in the Schedule to this Arrangement that are south of Latitude 33°35' South, the fishery for all molluscs except (i) Cephalopoda of the orders Teuthoidea and Sephioidea; and (ii) molluscs taken by trawling or Danish seining.
It was not in contest in these proceedings that abalone were "molluscs": see also Harper at 325-326. The Schedule to the 1990 Arrangement described the following area of waters: The area of waters adjacent to the State bounded by a line - (a) commencing at the intersection of the eastern shore of Australia with the parallel of Latitude 28°10' South; (b) running thence north-easterly along the geodesic to the point of Latitude 27°58' South, Longitude 154° East; (c) thence north-easterly along the geodesic to the point of Latitude 27°48' South, Longitude 154°22' East; (d) thence north-easterly along the geodesic to the point of Latitude 27°47'25.29'' South, Longitude 154°40' East; (e) thence south along the meridian of Longitude 154°40' East to its intersection with the parallel of Latitude 30° South; (f) thence south-westerly along the geodesic to the point of Latitude 37°35' South, Longitude 151°35' East; (g) thence east along the parallel of Latitude 37°35' South to its intersection with the eastern shore of Australia; and (h) thence northerly along the eastern shore of Australia to the point of commencement.
The area described by the Schedule extends beyond the "coastal waters" of New South Wales as defined by the State Powers Act but is within the "exclusive economic zone adjacent to the coast of Australia" defined under s 10B of the Seas and Submerged Lands Act 1973 (Cth).
In 1991, the Fisheries Management Act 1991 (Cth) (the Cth Fisheries Act) was enacted, and remained in force at the times relevant for these proceedings. Section 7(2) of the Act states that it applies "in relation to the AFZ and to fishing for sedentary organisms outside the AFZ" to "all persons, including foreign persons, and to all boats, including foreign boats". Section 4(1) of the Act defines "AFZ" to mean the "Australian Fishing Zone", which is itself defined by reference to the "waters adjacent to Australia" within the "outer limits of the exclusive economic zone adjacent to the coast of Australia", excluding "coastal waters of, or waters within the limits of, a State".
The "outer limits of the exclusive economic zone adjacent to the coast of Australia" are generally 200 nautical miles from the baselines of the territorial sea. The "coastal waters of a State" are defined in s 5 of the Act as "the part or parts of the territorial sea of Australia that are … 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 that are "adjacent to the State". This definition is substantially similar to that in the State Powers Act. Therefore, the effect of s 7(2) is that the Cth Fisheries Act does not apply in the "coastal waters of a State" subject to an exception in s 10.
Section 10 of the Cth Fisheries Act deals with the interaction between the Act and State and Territory laws. It provides as follows: "10 Operation of certain State and Territory laws (1) Except as provided by subsections (2) and (3), this Act is not intended to exclude or limit the concurrent operation of any law of a State or Territory. (2) Subject to subsection (3), the Parliament intends that this Act is to apply to the exclusion of any law of a State or Territory relating to fish or fishing so far as that law would, but for this Act, apply to: (a) activities in the AFZ; or (b) activities in the coastal waters of a State or Territory in respect of which a fishery to which an arrangement mentioned in section 12K of the Fisheries Act 1952, or section 76 of this Act, relates; or (c) the landing in the State or Territory of fish taken under a statutory fishing right or fishing permit by prohibiting such landing or by requiring such landing to be done under a licence, permit or similar instrument or upon payment of a fee or charge. (3) This Act does not apply to: (a) recreational fishing (whether from a charter boat or otherwise) that is carried on in the AFZ or outside the AFZ by the use of an Australian boat, other than recreational fishing that is prohibited or regulated by a plan of management or temporary order; or (b) recreational fishing (whether from a charter boat or otherwise) that is carried on by the use of an Australian boat in the coastal waters of a State or Territory, being coastal waters in respect of which an arrangement mentioned in section 12K of the Fisheries Act 1952, or section 76 of this Act, relates, other than recreational fishing that is prohibited or regulated by a plan of management or temporary order; or (c) activities in the AFZ to which, because of section 77, this Act does not apply. (4) The reference in paragraph 10(2)(c) to prohibiting the landing in a State or Territory of fish taken under a statutory fishing right or fishing permit includes a reference to: (a) directly prohibiting the landing of such fish in the State or Territory; or (b) directly prohibiting or regulating the possession or processing of, or other dealing with, such fish in the State or Territory in any respect that would be likely to substantially discourage the landing of such fish in the State or Territory. (5) For the avoidance of doubt, the reference in subsection (2) to a law of a State or Territory relating to fish or fishing does not include such a law that is for the protection of public health, for ensuring safety or for any similar objective."
Before explaining the operation of the relevant part of s 10, it is necessary to note Part 5 of the Cth Fisheries Act, which deals with "Co-operation with the States and Northern Territory in management of fisheries". It is in substantially similar terms to Part IVA which was inserted into the Fisheries Act 1952 (Cth) in 1980. Section 71 of the Cth Fisheries Act provides for arrangements to be made for fisheries to be managed in accordance with the law of the Commonwealth, the law of the State or both in terms similar to s 12H. Section 74 sets out how such arrangements are to be made. Section 76 of the Cth Fisheries Act and its predecessor, s 12K of the Fisheries Act 1952 (Cth), relate to arrangements in which a fishery is to be managed in accordance with Commonwealth law.
Returning to s 10, the relevant provision for present purposes is s 10(2)(b). I have referred to the definition of "AFZ" and "coastal waters" at [30]-[31] above. Therefore, s 10(2)(b) extends the operation of the Cth Fisheries Act beyond the scope of s 7(2) to the "coastal waters of a State" where a fishery in respect of such waters is to be managed in accordance with Commonwealth law pursuant to an arrangement with that State.
Finally, s 77 of the Cth Fisheries Act provides as follows: "77 Exclusion of this Act (except this Division) If an arrangement under this Division provides that: (a) a particular fishery is to be managed in accordance with the law of a State; or (b) a part of a particular fishery is to be managed in accordance with the law of a State; this Act, other than this Division, does not apply in relation to that fishery, or that part of the fishery, except in relation to: (c) foreign boats; and (d) operations on and from foreign boats; and (e) persons on foreign boats; and (ea) e-monitoring by AFMA of fishing-related activity; and (f) matters that occurred before the arrangement took effect."
At the same time as the Cth Fisheries Act was enacted, the Fisheries Legislation (Consequential Provisions) Act 1991 (Cth) was enacted. Section 3(2) of this Act repealed the Fisheries Act 1952 (Cth), except for Part IVA, which included s 12H, with effect from 3 February 1992. Part IVA was repealed on 3 February 1995 by s 7(3). Section 7(4)(b) of the Act provided that "any arrangement made with a State or Territory under subsection 12H(1) or (4) of the Fisheries Act 1952 that was in force immediately before [the repeal of Part IVA] continues in force as if it had been made under Part 5 of the [Cth Fisheries Act]". The 1990 Arrangement was thus continued in force under Part 5 of the Cth Fisheries Act after the repeal of Part IVA of the Fisheries Act 1952 (Cth).
In 1994, the NSW Fisheries Act was enacted. The objects of the NSW Fisheries Act are set out in s 3. So far as it is relevant, that section provides as follows: "3 Objects of Act (1) The objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of present and future generations. (2) In particular, the objects of this Act include: (a) to conserve fish stocks and key fish habitats, and (b) to conserve threatened species, populations and ecological communities of fish and marine vegetation, and (c) to promote ecologically sustainable development, including the conservation of biological diversity."
Section 6 defines "fishery". It is in the following terms: "6 Definition of 'fishery' (1) In this Act, fishery means a class of fishing activity. (2) For the purposes of this Act, a fishery may be identified by reference to any one or more of the following: (a) a species or other class of fish, (b) an area of waters or seabed, (c) a method of fishing, (d) a class of boat, (e) a class of persons, (f) a purpose of activities."
Section 7 is of particular relevance to the present case. It provides as follows: "7 Waters to which Act applies (1) This Act applies: (a) in relation to all waters that are within the limits of the State, and (b) except for purposes relating to a fishery, or a part of a fishery, that is to be managed in accordance with the law of the Commonwealth pursuant to an arrangement under Division 3 of Part 5 and except for purposes prescribed by paragraph (d) - in relation to any waters of the sea not within the limits of the State that are on the landward side of waters adjacent to the State that are within the Australian fishing zone, and (c) for purposes relating to a fishery, or a part of 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, and (d) for purposes relating to recreational fishing activities engaged in otherwise than by use of a foreign boat (other than recreational activities prohibited or regulated under a plan of management determined under section 17 of the Commonwealth Act) - in relation to any waters to which the legislative powers of the State extend with respect to such activities. (2) This section is subject to any express limitations in this Act. (3) This Act is intended to have extraterritorial application in so far as the legislative powers of the State permit.
Before discussing s 7 in more detail, it is necessary to note that Part 5 of the NSW Fisheries Act is substantially equivalent to Part 5 of the Cth Fisheries Act. Section 135 empowers the State, in accordance with s 74 of the Cth Fisheries Act, to make an arrangement with respect to fisheries in the nature of that referred to in s 71 of the Cth Fisheries Act, while s 136 provides that, if a particular fishery is "to be managed in accordance with the law of the State", the provisions of the NSW Fisheries Act apply to that fishery, subject to immaterial exceptions.
Section 7(1)(a) deals with waters "within the limits of the State". Sections 7(1)(b) and 7(1)(c) deal with waters outside the "limits of the State". Section 7(1)(b) applies the Act to "any waters of the sea not within the limits of the State that are on the landward side of waters adjacent to the State that are within the Australian fishing zone", except for "purposes relating to" fisheries managed in accordance with the law of the Commonwealth pursuant to an arrangement under Division 3 of Part 5 of the NSW Fisheries Act and except for the purposes prescribed in s 7(1)(d).
Section 7(1)(c), by contrast, deals specifically with fisheries managed in accordance with the law of the State under an arrangement under Division 3 of Part 5 of the NSW Fisheries Act. It extends the application of the Act beyond the "coastal waters" of New South Wales to "any waters to which the legislative powers of the State extend with respect to that fishery".
Section 42 provides for the declaration of "share management fisheries". It is in the following terms: "42 Declaration of share management fisheries (1) Schedule 1 specifies share management fisheries for the purposes of this Act. (2) The Governor may, by proclamation published on the NSW legislation website on the recommendation of the Minister, amend Schedule 1 by inserting or omitting the description of any fishery. (3) The Minister is required to recommend to the Governor that the description of a fishery be omitted from Schedule 1 if the management plan for the fishery has not commenced within 5 years after the description was inserted in Schedule 1."
On 15 February 1995, the Governor of New South Wales made a proclamation pursuant to s 42(2) which added the description of an "abalone fishery" to Schedule 1 of the Act. Clause 4 of Schedule 1 now defines the "abalone fishery" as consisting of abalone of the species Haliotis rubra "taken by any method from any waters".
In 2000, the NSW Abalone Regulation was made. The Appendix to that Regulation contained the "Abalone Share Management Plan", which was made in relation to the "abalone fishery" described in Schedule 1 of the NSW Fisheries Act. The power to make the NSW Abalone Regulation is to be found in s 60 of the NSW Fisheries Act which provides for the making of such a management plan by regulation.
Clause 3 of the Plan set out its objectives. The objectives included promoting "commercial fishing practices for abalone that do not adversely impact on the broader ecosystem", maintaining or increasing "the biomass of mature and legal size abalone", and ensuring that "the fishery remains economically viable". I have set out the relevant portions of cl 30 and cl 38 of the NSW Abalone Regulation at [4] above.

Consideration

The NSW Abalone Regulation was made pursuant to the power in s 60 of the NSW Fisheries Act to which I have referred above. It related to the "abalone fishery" referred to in Schedule 1 of the Act.
The applicants' submission, stripped to its essentials, was that the NSW Abalone Regulation was invalid because it related to an abalone fishery which was defined by reference to "any waters", and second, by reference to "taking by any method". It was submitted that it was contrary to the 1990 Arrangement to make a regulation in relation to a fishery referred to in that Arrangement which was defined by reference to these two criteria. There are a number of insurmountable difficulties with this submission.
First, it is well-established that a State's legislative power extends to the passage of extra-territorial legislation, including legislation relating to fisheries and fishing: Pearce v Florenca at 518-519; Port MacDonnell at 373; Babington v Commonwealth (2016) 240 FCR 495; [2016] FCAFC 45 at [35], [39]. As was pointed out by the Full Court of the Federal Court in the latter case, whatever debate there was concerning that issue was settled by s 2(1) of the Australia Act 1986 (Cth).
Second, the phrase "any waters" in Schedule 1 to the NSW Fisheries Act is to be read down by s 7(3) of the Act to apply extra-territorially only insofar as the legislative powers of the State permit. Further, it would be operative only to the extent that it is not inconsistent with any law of the Commonwealth under s 109 of the Constitution.
Third, and subject always to those limitations, to the extent that the NSW Abalone Regulation related to fishing activities which were included in a fishery or part of a fishery that was to be "managed in accordance with the law of the State pursuant to an arrangement under Division 3 of Part 5" of the NSW Fisheries Act, the Regulation would apply to "any waters to which the legislative powers of the State extend with respect to that fishery" by virtue of s 7(1)(c).
In that regard, it must be remembered that s 77 of the Cth Fisheries Act precludes that Act from operating where there is an arrangement in respect of a fishery or part of a fishery to be "managed in accordance with the laws of the State", subject to irrelevant exceptions. This means that, to the extent that the NSW Abalone Regulation is supported by s 7(1)(c), there is no possibility of inconsistency with the Cth Fisheries Act for the purpose of s 109 of the Constitution.
Fourth, to the extent that the NSW Abalone Regulation related to fishing activities which were not included in a fishery or part of a fishery for which such an arrangement was in place, s 7(1)(b) would limit the application of the Regulation to "any waters of the sea … that are on the landward side of waters adjacent to the State that are within the Australian fishing zone".
In the present case, the result is that, to the extent that the fishing activities covered by the NSW Abalone Regulation are included in the "mollusc fishery" which is the subject of the 1990 Arrangement, the waters to which the Regulation would apply would be those referred to in s 7(1)(c) of the NSW Fisheries Act. Regulating the taking of abalone in that area in pursuance of the objects referred to in cl 3 of the Plan, in my opinion, is legislation which has a sufficient connection with the "peace, order and good government" of New South Wales. This conclusion is consistent with the passages in Port MacDonnell and Harper which I have set out at [24]-[25] above.
However, as may be seen from the extract from the 1990 Arrangement at [27] above, the definition of the "mollusc fishery" in the 1990 Arrangement excludes, in one area of the fishery, molluscs taken by "trawling", and in the balance, molluscs taken by "trawling or Danish seining". The former area could broadly be described as the "northern portion" of the fishery and the latter area as the "southern portion". To the extent that the NSW Abalone Regulation does cover these fishing activities excluded from the "mollusc fishery" defined in the 1990 Arrangement, it covers fishing activities which are not included in the "mollusc fishery" defined in the 1990 Arrangement.
Even if it could be said that, in those circumstances, the NSW Abalone Regulation covered the capture of abalone by certain methods in particular areas which were not included in the "mollusc fishery" defined in the 1990 Arrangement, s 7(3) of the NSW Fisheries Act would apply and the State would be entitled to legislate in respect of such activities to the extent necessary for the "peace, order and good government" of New South Wales in the area defined by s 7(1)(b). The fact that an arrangement has not been made with the Commonwealth in respect of such activities is immaterial provided that there is no inconsistent Commonwealth legislation which would render the NSW Abalone Regulation inoperative to the extent of the inconsistency. Apart from the Seas and Submerged Lands Act 1973 (Cth), which is dealt with in relation to the applicants' second proposition and which I consider has not been made out, no such legislation was identified by the applicants.
Finally, whatever else might be the case, the Cth Fisheries Act only applies in the "coastal waters" of New South Wales where an arrangement has been entered into with the State for a fishery or part of a fishery in those waters to be "managed in accordance with the law of the Commonwealth". In the present case, the activities complained of took place within coastal waters (if not internal or inland waters) and the Cth Fisheries Act has no application so as to give rise to any potential inconsistency for the purpose of s 109 of the Constitution.
It follows that the first proposition has not been made out.

Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development

At a glance

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