The High Court has refused a group of draft-net fishermen’s challenge to a 2008 bye-law prohibiting salmon and sea-trout fishing by draft net and rod and line in specified waters, including Castlemaine Harbour.
The applicants sought judicial review of the bye-law made by the Minister for Communications, Energy and Natural Resources on 1 August 2008. They argued that the Minister lacked power to impose a blanket prohibition in an area where fishing licences were administered by the South-Western Regional Fisheries Board, and that the consultation process was unfair. They also claimed the measure treated them unequally compared with fishermen operating on tributary rivers.
Mr Justice Hedigan held that section 9 of the Fisheries (Consolidation) Act 1959 gave the Minister broad authority to make bye-laws for the management and protection of fisheries. The court found that the challenged measure fell within that power. It also rejected the argument that the Minister had usurped the Board’s role: fishing licences issued by the Board were subject to the 1959 Act and instruments made under it.
The judge considered whether the process leading to the second bye-law provided fair procedures. The original bye-law had been annulled by the High Court in June 2008 because it breached the applicants’ right to fair procedures. The Minister then consulted interested parties from July, extending the applicants’ deadline for submissions and sharing most submissions and scientific advice with them.
The applicants did not receive one submission from Cromane Community Council or three supplementary submissions received on 30 July. The judge found that the omitted community council submission contained no scientific data and was generally supportive of the applicants’ position. He also found that nothing new arose from the three later submissions, so the failure to share them did not cause unfairness. The consultation process, which ran between 3 and 30 July, was adequate in the circumstances.
The court also rejected the equality argument. It accepted that the Minister had relied on scientific advice that fishing in the harbour threatened salmon conservation limits and that the prohibition was justified by the State’s obligations under the Habitats Directive. The court refused all relief sought. The judgment did not make a separate order beyond refusing that relief.