Harper v Minister for Sea Fisheries [1989] HCA 47

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Harper v Minister for Sea Fisheries [1989] HCA 47

ORDER Answer the question in the stated case as follows:Is Regulation 17A of the Sea Fisheries Regulations 1962 Tas. as amended from time to time or any part thereof invalid in its application for the years—

(a) 1987;

(b) 1988; or

(c) 1989

in respect of commercial abalone licences held by the plaintiff?Answer: No. The plaintiff to pay the defendants' costs of the stated case.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 26 Mason C.J., Deane and Gaudron JJ.

The relevant facts and statutory provisions are set out in the judgment of Brennan J. We agree with his Honour's conclusions and, subject to what is said hereunder, we are in general agreement with his reasons for them.

The licensing system which the Fisheries Act 1959 Tas. and the Sea Fisheries Regulations 1962 (Tas.) establish in relation to abalone fisheries in Tasmanian waters is not a mere device for tax collecting. 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. Under that licensing system, the general public is deprived of the right of unfettered exploitation of the Tasmanian abalone fisheries. What was formerly in the public domain is converted into the exclusive but controlled preserve of those who hold licences. The right of commercial exploitation of a public resource for personal profit has become a privilege confined to those who hold commercial licences. This privilege can be compared to a profit à prendre. In truth, however, it is an entitlement of a new kind created as part of a system for preserving a limited public natural resource in a society which is coming to recognize that, in so far as such resources are concerned, to fail to protect may destroy and to preserve the right of everyone to take what he or she will may eventually deprive that right of all content.