Alcock v Commonwealth of Australia [2013] FCAFC 36

Yesterday, the Federal Court handed down the decision of Alcock v Commonwealth of Australia [2013] FCAFC 36, a constitutional law case which affirmed the legislative validity of new fishing restrictions in Victoria’s coastal waters, holding that the enactment of the legislation was within the Victorian Parliament’s power.

The case concerned a challenge to the National Parks (Marine National Parks and Marine Sanctuaries Act) 2002 passed by the Victorian Parliament which truncated the appellant’s rights to take abalone from the coastal waters of Victoria.

The appellants alleged the new laws were contrary to the Commonwealth Constitution because the measures represented the acquisition of the appellant’s property contrary to s 51(xxxi) of the Constitution (i.e. otherwise than on “just terms”) or because enactment of the 2002 legislation was, for a number of reasons, beyond the Victorian Parliament’s legislative powers.

The Facts

The appellant had a licence to take abalone off the coast of Victoria and in Bass Strait in an area known as the central zone. The area is part of a fishery administered under the laws of Victoria, pursuant to an agreement between Victoria and the Commonwealth of Australia.

The legislation in dispute created more extensive marine parks, reserves and sanctuaries in the coastal waters off Victoria and made it an offence to fish abalone from any of the designated areas. This affected the appellant’s access to some areas of the central zone, causing him commercial loss.  The legislation's compensation scheme did not include abalone fishermen.

The Decision

The court analysed the legislative framework including the following Acts and arrangements:

• Seas and Submerged Lands Act 1973 (Cth)

• Coastal Waters (State Title) Act 1980 (Cth)

• Coastal Waters (State Powers) Act 1980 (Cth)

• Fisheries Management Act 1991 (Cth)

• Arrangement for management of the fishery between the Commonwealth and Victoria

The examination revealed that, together with title and property in the seabed in the coastal waters containing part of the fishery, Victoria had full and effective legislative control of the fishery's administration. That authority was derived “from its own extra-territorial legislative powers (subject to avoiding inconsistency with Commonwealth law) independently of, as well as from, any power it may have been given by the Commonwealth Parliament.”

Additionally, relevant provisions of the Fisheries Act 1995 (Vic) showed clearly that the appellant’s licences were subject to an express condition that they could be varied.

The appellant's constitutional argument sought to prove that Victoria had no power to legislate in this area and the provisions of the Marine Parks Act which excluded him from some fishing areas were invalid. The court examined s 51(xxxi) and s 109 and determined the following propositions:

• A licence holder has no property in abalone until it is taken. 

• A licence confers private statutory rights to take abalone in limited quantities from identified areas. 

• The private statutory rights, like any public rights which came before them, are open to abrogation or regulation by a competent legislature.

Their honours held there was no arguable case for the infringement of the constitutional guarantee in s 51(xxxi) pointing out that no person had acquired the proposed interest which the appellant lost, rather that access to marine parks and sanctuaries had been denied and the ability to fish abalone in those areas had been taken away.  Although the appellant’s ability to meet his quota was affected or curtailed, that did not correspond with the acquisition of property as no other entity had gained a benefit.

The case based on s 109 of the Constitution was similarly dismissed:
“The assertion of Commonwealth sovereignty in the [Seas and Submerged Lands Act 1973] has been repeatedly held by the High Court not to diminish the power of the State Parliaments to pass extra-territorial legislation...  In any event, the Commonwealth withdrew when it passed title and property to Victoria under the State Title Act, when it gave legislative authority under the Coastal Powers Act and when it endorsed the arrangement whereby management of the fishery itself would occur under Victorian laws.”

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