Alcock v Commonwealth of Australia [2013] FCAFC 36

Alcock v Commonwealth of Australia [2013] FCAFC 36

A statutory abalone fishing licence, while property for some purposes, does not confer proprietary rights unassailable by legislative modification. The changes made by the State of Victoria through the Marine Parks Act—removing access to certain areas—were valid exercises of state legislative power, did not effect an 'acquisition of property' within the meaning of s 51(xxxi) of the Constitution, and did not give rise to any inconsistency with Commonwealth law for the purposes of s 109. All rights held by the appellant derived from the licence and were always subject to variation or removal by statute. No other party acquired any property or benefit corresponding to the appellant's loss;...

Jurisdiction
Australia
Judgment Date
08 April 2013
Procedural Posture
Appeal / Full Court Judgment on Appeal From Federal Court, After Leave to Appeal Granted
Outcome
Appeal dismissed with costs; application and proceedings dismissed with costs.
Legal Topics
['acquisition of Property on Just Terms' 'inconsistency of Laws (s 109 Constitution)' 'fisheries Licensing' 'state Legislative Power' 'compensation for Licence Variation']
['constitutional Law' 'fisheries Law' 'property Law' 'administrative Law'] ['acquisition of Property on Just Terms' 'inconsistency of Laws (s 109 Constitution)' 'fisheries Licensing' 'state Legislative Power' 'compensation for Licence Variation']

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Procedural Posture

Appeal / Full Court Judgment on Appeal From Federal Court, After Leave to Appeal Granted

Legal Issues

  1. 1 ["Whether Victorian legislation curtailing rights under abalone fishing licence effected an 'acquisition of property' for purposes of s 51(xxxi) of the Constitution" 'Whether Commonwealth and Victorian legislative/regulatory framework relating to fisheries gave rise to inconsistency under s 109 of the Constitution' "Whether abalone fishing licences or associated rights constituted 'property' and whether legislative changes amounted to acquisition"]

Ratio Decidendi

A statutory abalone fishing licence, while property for some purposes, does not confer proprietary rights unassailable by legislative modification. The changes made by the State of Victoria through the Marine Parks Act—removing access to certain areas—were valid exercises of state legislative power, did not effect an 'acquisition of property' within the meaning of s 51(xxxi) of the Constitution, and did not give rise to any inconsistency with Commonwealth law for the purposes of s 109. All rights held by the appellant derived from the licence and were always subject to variation or removal by statute. No other party acquired any property or benefit corresponding to the appellant's loss;...

Court Disposition

Appeal dismissed with costs; application and proceedings dismissed with costs.

Orders

  • ['The appeal is dismissed with costs.' 'The application filed on 16 June 2008 and the whole of the proceedings instituted thereby are dismissed with costs.']