CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT –
THE LEGISLATURE – LEGISLATION AND LEGISLATIVE POWERS
– EXAMINATION
OF VALIDITY OF LEGISLATION BY COURTS – GENERALLY – where s 136 in
Source
Original judgment source is linked above.
Catchwords
CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT –THE LEGISLATURE – LEGISLATION AND LEGISLATIVE POWERS– EXAMINATIONOF VALIDITY OF LEGISLATION BY COURTS – GENERALLY – where s 136 insch 4 of the Fisheries (Commercial Fisheries) Regulation 2019 prohibitsthe use of a net in a particular fishery in the Gulf of Carpentaria during aperiod described as the “barramundi (Gulf)regulated period” –where “barramundi (Gulf) regulated period” is elsewhere defined as aperiod of approximatelyfour months which coincides with peak barramundispawning season – where under an agreement with the Commonwealth, theQueenslandParliament has power to legislate in the fishery with respect tocertain species of fish excluding barramundi – whether theuse of the term“barramundi (Gulf) regulated period” in s 136 in sch 4 of theFisheries (Commercial Fisheries) Regulation 2019 involved the ultravires regulation of barramundi
STATUTES – SUBORDINATE LEGISLATION – VALIDITY –
UNREASONABLENESS – OTHER PARTICULAR CASES – where s
136 in sch 4 of
the Fisheries (Commercial Fisheries) Regulation 2019 prohibited the use
of a net in a particular fishery in the Gulf of Carpentaria during a period
described as the “barramundi
(Gulf) regulated period” – where
the applicant is a holder of three commercial fishing licences authorising it to
fish
for certain finfish species within the fishery area – where the
applicant is aggrieved by the inability to undertake net fishing
during the
“barramundi (Gulf) regulated period” – where the
un-contradicted expert evidence is that there are no
barramundi in that
particular fishery – whether the expression “barramundi (Gulf)
regulated period” involves the
regulation of barramundi or is a mere
description of a period of time – whether the prohibition on net fishing
during the “barramundi
(Gulf) regulated period” is unreasonable or
disproportionate
Fisheries Act 1994 (Qld) s 3, s 3A, s
223
Fisheries (Commercial Fisheries) Regulation 2019 sch 4 s
136
Williams v Melbourne Corporation [1933] HCA 56
(1933) 49 CLR 142,
considered
South Australia v Tanner [1989] HCA 3
(1989) 166 CLR 161,
cited
A-G (SA) v Adelaide City Corporation [2013] HCA 3
(2013) 249 CLR 1,
cited
Brett Cattle Company Pty Ltd v Minister for Agriculture (2020)
274 FCR 337
[2020] FCA 732, considered
Judgment (77 paragraphs)
[1]
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - LEGISLATION AND LEGISLATIVE POWERS - EXAMINATION OF VALIDITY OF LEGISLATION BY COURTS - GENERALLY - where s 136 in sch 4 of the Fisheries (Commercial Fisheries) Regulation 2019 prohibits the use of a net in a particular fishery in the Gulf of Carpentaria during a period described as the "barramundi (Gulf) regulated period" - where "barramundi (Gulf) regulated period" is elsewhere defined as a period of approximately four months which coincides with peak barramundi spawning season - where under an agreement with the Commonwealth, the Queensland Parliament has power to legislate in the fishery with respect to certain species of fish excluding barramundi - whether the use of the term "barramundi (Gulf) regulated period" in s 136 in sch 4 of the Fisheries (Commercial Fisheries) Regulation 2019 involved the ultra vires regulation of barramundi
[2]
STATUTES - SUBORDINATE LEGISLATION - VALIDITY - UNREASONABLENESS - OTHER PARTICULAR CASES - where s 136 in sch 4 of the Fisheries (Commercial Fisheries) Regulation 2019 prohibited the use of a net in a particular fishery in the Gulf of Carpentaria during a period described as the "barramundi (Gulf) regulated period" - where the applicant is a holder of three commercial fishing licences authorising it to fish for certain finfish species within the fishery area - where the applicant is aggrieved by the inability to undertake net fishing during the "barramundi (Gulf) regulated period" - where the un-contradicted expert evidence is that there are no barramundi in that particular fishery - whether the expression "barramundi (Gulf) regulated period" involves the regulation of barramundi or is a mere description of a period of time - whether the prohibition on net fishing during the "barramundi (Gulf) regulated period" is unreasonable or disproportionate
A net must not be used in a barramundi (Gulf) regulated period."
[11]
[2] The applicant contends the creation of this provision was not a valid exercise of the regulatory power conferred by s 223 Fisheries Act 1994 (Qld) or alternatively was invalid as a disproportionate exercise of that power.
[3] The purported power to make the Regulation, including s 136 in sch 4, was conferred by s 223Fisheries Act, which relevantly provides:
[12]
(1) The Governor in Council may make regulations under this Act.
[13]
(a) prescribe matters for the management of any of the following -
[14]
[4] In apparent conformity with s 223, the Regulation prescribes matters for the management of a fishery.[1]Section 136 is contained within "Part 8 Net fishery (Gulf of Carpentaria No. 3)" in "Division 2 Authorisation" in sch 4 of the Regulation. The so-called "net fishery" is, pursuant to s 130, the activity of fishing for fish mentioned in s 133 of the Act in the fishery area provided under Part 8. The fishery area, identified by the symbol "N12" per s 131 and defined in s 132 by various latitude and longitude measurements, effectively extends across that half of the Gulf of Carpentaria which is closer to Queensland than the Northern Territory, excluding the area within seven nautical miles of the shore of the mainland or an island.
[5] The applicant is the holder of three N12 commercial fishing licences, authorising it to fish for certain finfish species within the N12 fishery area. Section 134(1) of Division 2 Part 8 of the Regulation provides that fish may be taken only by using a set mesh net. precludes net fishing in the N12 fishery area during a "barramundi (Gulf) regulated period". It follows that during that period precludes the applicant from carrying on a form of commercial fishing in N12 for which it is licensed.
[15]
The following fish may be taken under the licence -
[16]
(h) shark, other than white shark, sand tiger shark or speartooth shark;
[17]
(i) other fin fish, excluding barramundi and regulated coral reef fin fish, if the fish are taken while taking fish mentioned in paragraphs (a) to (h)." (emphasis added)
[18]
[7] It will be recalled the language of s 136 prohibits the use of a net during a timeframe described as "a barramundi (Gulf) regulated period". It is, at first blush, curious that the prohibition in s 136 relates to a barramundi (Gulf) regulated period when barramundi are excluded pursuant to s 133(i) from being taken under the relevant fishing licence. This seems all the more curious when it is realised, on the undisputed evidence of the applicant's expert witness, aquatic ecologist Mr Stirling Peverell, that barramundi do not inhabit Gulf of Carpentaria waters beyond three nautical miles from shore. This means barramundi do not inhabit the N12 fishery area.
[8] To these first blush oddities a jurisdictional limit may be added. While the N12 fishery area is within the territorial limits of the Commonwealth of Australia[2] it is not within Queensland's territorial limits, which end at the low water mark (the lowest astronomical tide).[3] The Queensland State Government's power to manage the fishery area in question derives from the "Arrangement between the Commonwealth of Australia and the State of Queensland in relation to the fishery for northern demersal and pelagic fin fish in the Gulf of Carpentaria" ("the arrangement").[4] The arrangement was entered into between the Commonwealth of Australia and the State of Queensland by the respective Federal and State Ministers and approved by the Governor-General and Governor and published in the Commonwealth of Australia Gazette on 8 February 1995.[5]
[9] Clause 4 of the arrangement stipulates a location of a fishery which is consistent with the location of fishery area N12. Clause 3 stipulates the species in the fishery to which the arrangement applies, namely "all species of fish of the Class Osteichthyes and Class Chondrichthyes, except for" certain fish listed thereafter. The ensuing list of fish, to which the arrangement does not apply, includes " (barramundi)".
[19]
"barramundi (Gulf) regulated period means a regulated period mentioned in the Fisheries Declaration 2019, section 21(2)."
[20]
[13] Pursuant to s 21 Fisheries Declaration 2019 that regulated period is just under four months long. It appears the period covers peak barramundi spawning periods.[6] Section 21 relevantly provides:
[21]
**"21 Taking or possessing barramundi in regulated periods - **
[22]
(1) A person must not in the Gulf of Carpentaria waters -
[23]
(a) take barramundi in the regulated taking period; or
[24]
(b) possess barramundi taken in contravention of paragraph (a).
[25]
(2) For subsection (1)(a), the regulated taking period is from 7 October to 31 January..."
[26]
[14] Schedule 1 of the Declaration in summary describes the Gulf of Carpentaria waters as being tidal waters and waterways. Such areas are within the territorial limits of Queensland.
[15] Why the definition for a period during which barramundi cannot be taken in tidal waters and waterways has been adopted as the period during which certain other fish cannot be taken in a fishery area beyond those tidal waters and waterways is not apparent from the filed materials. However, it is a reasonable inference, which I draw, that the period or "off-season" during which barramundi are spared from being taken has been identified as an appropriate period during which fish, which may by licence be taken in fishery area N12, are spared from being taken by net. This at once explains why the term "barramundi (Gulf) regulated period" is used as the temporal reckoner of the duration of the off-season to which s 136 relates and confirms the term's use is as a mere drafting device of convenience.
[16] These conclusions do not bode well for the applicant.
[17] The first form of relief sought was:
[27]
"1. A declaration that Regulation 136 [of sch 4] of the Fisheries [(Commercial Fisheries)] Regulation 2019 (Qld) (the Regulations) was an invalid exercise of the power conferred by s 223 of the Fisheries Act 1994 (Qld) and accordingly that Regulation 136 [of sch 4] of the Regulations was void ab initio."
[28]
[18] It was submitted in support of this limb of the application that s 136 went beyond power, in that it purports to regulate the taking of barramundi within the N12 fishery area. If that is what it did then the provision would clearly be beyond power. But, as explained above, that is not what it does. It precludes a type of licensed fishing in the N12 fishery area during an off-season of the same duration as the barramundi off-season in another fishery area.
[19] An additional argument, advanced in oral submissions, was s 136's provision that a net must not be used during the relevant period "is universal in application", in the sense that it bars a fishing method so as to in effect prevent the catching of sea creatures which the State has no power to manage in the N12 fishery area. It was thus said to be beyond power. The argument misconceives the application of s 136, seemingly assuming it purports to apply to everyone. It does not. It applies only to licensees and to their licensed entitlement to take specified types of fish. As much is plain from the broader context of the content of "Part 8 Net fishery (Gulf of Carpentaria No. 3)" within "Division 2 Authorisation" within sch 4. It is also confirmed by s 4(2) of the Regulation, which provides that Schedules 1 to 8 state the fishery area and "matters about what is authorised under a licence". Examples of such matters are given in s 4(2), namely the fish that may be taken in the fishery, the way they may be taken in the fishery and "any other restrictions on a person's authorisation to take fish in the fishery". In short only has application to restrict a licensee's existing authorisation to take specific types of fish in the N12 fishery area.
[29]
"2. Alternatively, a Declaration that Regulation 136 [of sch 4] of the Fisheries Regulations is ultra vires and invalid on the basis that it was not a reasonably proportionate exercise of power of the Respondent with reference to the enabling purpose of the Fisheries Act 1994 (Qld)."
[30]
[22] In support of that declaration it was submitted the apparent aim of s 136's net ban was to preserve barramundi during the spawning season. It was acknowledged there was some rationality in such a ban being in place in the tidal waters and waterways inhabited and used by barramundi. However, because s 136's ban on net fishing prevented all net fishing within the N12 fishery area, it was submitted this was a disproportionate result and unreasonable, particularly because barramundi are not found in the N12 fishery area. It was further submitted:
[31]
"If the purpose of the ban is to prevent barramundi to spawn, preventing net fishing in N12 it would have no effect or impact on that."[7]
[32]
[23] However, as the above analysis earlier showed, the purpose of s 136's ban cannot sensibly be said to relate to the protection of barramundi. Rather it is calculated at the protection of fish which are found in the N12 fishery area during a period which coincides with the timeframe designated as the barramundi off-season in a different fishery area.
[24] In Williams v Melbourne Corporation[8] Dixon J, articulating a test to determine the validity of delegated legislation, observed:
[33]
"To determine whether a bylaw is an exercise of power, it is not always enough to ascertain the subject matter or the power and consider whether the bylaw appears on its face to relate to that subject. The true nature and purpose of the power must be determined and it must often be necessary to examine the operation of the bylaw in the local circumstances to which it is intended to apply. Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the bylaw, the true character of the bylaw may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the bylaw will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of power."[9] (emphasis added)
[34]
[25] Dixon J's test has been endorsed by the High Court in South Australia v Tanner[10] and Attorney-General (SA) v Corporation of the City of Adelaide.[11]
[26] In Attorney-General (SA) v Corporation of the City of Adelaide, where a constitutional implied freedom was under consideration, Crennan and Kiefel JJ observed:
[35]
"Dixon J's statement of a test of reasonableness bears an obvious affinity with a test of proportionality. So much has been recognised in later cases. In South Australia v Tanner, Wilson, Dawson, Toohey and Gaudron JJ equated the test with that of a reasonable proportionality applied by Deane J in Tasmanian Dam Case. In Coulter v The Queen, the relevant criterion of validity was said to be whether the impugned rules "are a reasonable means of attaining the ends of the rule-making power", by reference to Williams v Melbourne Corporation."[12]
[36]
Moving more specifically to the context of the implied freedom of political communication, their Honours continued:
[37]
"The means must be proportionate to that object. If the means employed go further than is reasonably necessary to achieve the legislative object, that would be disproportionate and invalid for that reason."[13]
[38]
[27] It is arguable whether that later observation is apposite beyond its context of testing restrictions on freedoms to testing the validity of delegated legislation. I note support for that view was expressed by Rares J in Brett Cattle Company Pty Ltd v Minister for Agriculture[14] applying structured proportionality testing as deployed by the High Court in McCloy v New South Wales[15] and other cases concerning the constitutional implied freedom of political communication_._ On the other hand the present concern relates to commercial fishing licence entitlements, which would not ordinarily be regarded as rights or freedoms. In any event I need not resolve the point because, as will become apparent, the applicant could not succeed even if it were sufficient to demonstrate the means adopted were disproportionate to that which was reasonably necessary to attain the legislative object.
[28] In the present case there were, of course, other ways of describing the period to which s 136 applies. However, the fixing of such a period was plainly calculated at prescribing matters for the management of a fishery, consistently with s 223(2) of the Fisheries Act.
[29] As to whether it was a means of attaining the legislative object of the Fisheries Act, s 3(1) thereof relevantly provides:
[39]
(1) The main purpose of this Act is to provide for the use, conservation and enhancement of the community's fisheries resources and fish habitats in a way that seeks to -
[40]
(a) apply and balance the principles of ecologically sustainable development; and
[41]
(2) In balancing the principles, each principle is to be given the relative emphasis appropriate in the circumstances, having regard to ensuring access to the fisheries resources is allocated in a way that maximises the potential economic, social and cultural benefits to the community.
[42]
ecologically sustainable development means using, conserving and enhancing the community's fisheries resources and fish habitats so that -
[43]
(a) the ecological processes on which life depends are maintained; and
[44]
(b) the total quality of life, both now and in the future, can be improved.
[45]
precautionary principle means the principle that, if there is a threat of serious or irreversible environmental damage, lack of scientific certainty should not be used as a reason to postpone measures to prevent environment degradation, or possible environmental degradation, because of the threat.
[46]
principles of ecologically sustainable development means the following principles -
[47]
(a) enhancing individual and community wellbeing through economic development that safeguards the wellbeing of future generations; ...
[48]
(c) protecting biological diversity, ecological processes and life-support systems;
[49]
(d) in making decisions, effectively integrating fairness and short and long-term economic, environmental and social considerations; ...
[50]
(g) considering the need to develop a strong, growing and diversified economy that can enhance the capacity for environmental protection; ...
"3A How particular purposes are to be primarily achieved
[53]
(1) The main purpose of this Act is to be primarily achieved by providing for -
[54]
(a) the management and protection of fish habitats; and
[55]
(b) the management of commercial, charter, recreational and indigenous fishing; and
[56]
[31] In summary, the Act's object, to be achieved inter alia through managing fish habitats and commercial fishing, includes providing "for the use, conservation and enhancement of the community's fisheries resources and fish habitats" by seeking to "apply and balance the principles of ecologically sustainable development". It is clear the pursuit of this object will necessarily involve the weighing of competing interests, including economic interests and environmental interests.
[32] Having an off-season during which the fish specified in s 133 cannot be taken by net in the N12 fishery area appears to be consistent with one of the main purposes of the Fisheries Act, namely the conservation of fisheries resources in a way that seeks to apply and balance the principles of ecologically sustainable development. I readily infer that such an off-season would at least tend to conserve fisheries resources. I am fortified in reaching that commonsense conclusion by evidence from Mr Peverell to the effect that a "temporal net closure would benefit the ecological sustainability of those species known to be caught in the N12 fishery".[17] It is commonsense because, as Mr Peverell observed:
[57]
"Any policy that directly reduces fishing effort such as a net closure ... has the positive effect of reducing the amount of interaction time a species has with fishing gear, hence lowering fishing mortality on all species."[18]
[58]
[33] As to whether s 136 involves means disproportionate to means reasonably necessary to attain the legislative object, if s136's purpose was to protect barramundi during their spawning season, it would not only have exceeded what was necessary, it would have been entirely irrational. That is because barramundi did not inhabit the fishery area to which s 136 relates. However, once it is appreciated that s 136 simply happens to adopt the period for the barramundi off-season as the period during which there should be a cessation of net fishing in the N12 fishery area, the above-identified purpose of s 136 emerges. The off-season it establishes appears to be a means of seeking to attain the legislative object of conservation in a way which seeks to apply and balance the principles of ecologically sustainable development.
[34] This is not a case in which the applicant's argument flagged an intention to establish that the means went beyond what was reasonably necessary other than by its unsuccessful submission that s 136 unnecessarily purports to protect barramundi.[19] For instance, it was not contended that the duration of the s 136 off-season exceeded that which was reasonably necessary in seeking to "apply and balance the principles of ecologically sustainable development" as purposively contemplated by s 3(1) . That is unsurprising, for reasonable minds may differ widely as to where the appropriate balance of economic and environmental interests lies in fixing an off-season.
[59]
(a) as to costs, if costs have not been agreed in the meantime;
[60]
(b) as to the future conduct of that component of the application which is to continue as if started by claim.
[61]
[1] This conformity makes it unnecessary to consider ss 21 and 22Statutory Instruments Act 1992 (Qld) and the need to interpret statutory instruments within the grant of power of their authorising law.
[62]
[2] Australia has been expanding its claims to surrounding seas since Federation, most recently by its declaration of an Exclusive Economic Zone on 1 August 1994, which extended beyond the Commonwealth's 12 nautical mile boundary to 200 nautical miles. See Proclamation of 26 July 1994 under the Seas and Submerged Lands Act 1973, Commonwealth of Australia Gazette, No S 290, 29 July 1994.
[63]
[3] See Fisheries Acts 11 (the Act applies to the "coastal waters of the State"); Acts Interpretation Act 1954 (Qld) s 47A(a) (the laws of the State apply in the coastal waters of the State), Sch 1 (definitions of "coastal waters of the State", "adjacent area in respect of the State").
[64]
[4] The legitimacy of the arrangement and its conferral of power was not in issue. It flows inter alia from Acts Interpretation Act 1954 (Qld) s 47D (extension of constitutional basis by Commonwealth legislation) and Coastal Waters (State Powers) Act 1980 (Cth) s 5 (extension of State legislative power with respect to fisheries in Australian waters "under an arrangement to which the Commonwealth and State are parties").
[65]
[5]Commonwealth of Australia Gazette, No S 44, 8 February 1995, 13.
[66]
[6] Affidavit of Neil Anthony Ham, court doc 8, ex p 18.
[16] Section 3A(2) provides the main purpose of the Act is to be achieved "so far as is practicable" in consultation inter alia with all persons involved in commercial fishing and using a transparent and responsive approach to the management of access to fisheries resources. The materials and submissions advanced in the present application suggest the applicant does not consider there was such consultation or transparency but that is not an issue with which the present judgment is concerned.
[76]
[17] Affidavit of Stirling Peverell, court doc 5, ex p 35.
[77]
[19] See Written Submissions of the Applicant, [43].
[6] As to the type of fish which may potentially be taken in the N12 fishery area, s 133 of Division 2 of Part 8 of sch 4 of the Regulation provides:
Lates calcarifer
[10] It follows that s 136's prevention of the use of a net in a "barramundi (Gulf) regulated period" applies to a location which is not inhabited by barramundi and over which the Queensland legislature has no power in respect of barramundi.
[11] As odd as this sounds at a superficial level, the respondents correctly point out that s 136 does not in terms purport to regulate fishing for barramundi. The reference to barramundi in s 136 has nothing to do with the type of fish s 136 temporarily prevents fishing for. Rather it happens to be part of the nomenclature by which a regulated period is described in the statutory framework, that is, it is part of a drafting device to describe a time frame.
[12] So, where does this name for a time frame, "barramundi (Gulf) regulated period", come from? The Regulation's dictionary at sch 11 provides:
[35] While an off-season of just under one third of the year is lengthy from a commercial perspective, in the absence of pertinent evidence it does not appear to be a manifestly unreasonable period in the context of balancing the principles of ecologically sustainable development. Mr Peverell's expert report, the only expert report before me, went to the issue (ultimately a non-issue) of the protection of barramundi being unnecessary in the N12 fishery area. To the extent his report touched upon the broader utility of an off-season in the N12 fishery area it was to highlight the absence of evidence as to the need for it. The respondent does not carry the onus. It was under no obligation to produce evidence or to establish the means deployed by s 136 were a reasonable means of attaining the legislative object. It was for the applicant to establish those means could not reasonably have been adopted as a means of attaining the legislative object and that was not established by such evidence as was advanced.
[36] It follows the second limb of the application must also fail. I add two connected points for completeness. First, when it is recalled the correct construction of s 136 was a complete answer to the application as advanced, the respondent's choice not to adduce evidence was scarcely surprising and was incapable of raising an inference in favour of the applicant. Second, because of the way the application was advanced, its outcome does not stand as a positive affirmation that the imposition of the off-season by s 136 is impregnable to challenge.
[37] It will be necessary to hear the parties as to costs (if they are not agreed) and to make directions in respect of the future disposition of the remaining components of the originating application which, on 16 September 2020, I ordered to continue as if started by claim.
[38] My orders are:
Paragraphs 1 and 2 of the originating application filed 11 September 2020 are dismissed.
I will hear the parties at 9.00 am on 9 December 2020 (out of town parties having leave to appear by telephone or video-link):