Western Australia’s recently announced fishing bans and restrictions, particularly those affecting demersal and nearshore fisheries, have generated significant concern across the commercial fishing sector and regional communities. Beyond the immediate economic and social impacts, the bans raise important questions of administrative and public law. For affected operators and investors, a key issue is whether these measures are legally vulnerable to challenge.
The short answer is yes: legal challenges are possible, and in fact are already underway. Understanding how such challenges work, and their realistic prospects, is critical for businesses assessing their position.
The Legal Framework Behind the Bans
Fishing in Western Australia is regulated primarily under the Fish Resources Management Act 1994 (WA) (FRMA). The Act gives the Minister and the Department of Primary Industries and Regional Development (DPIRD) broad powers to regulate fishing activities in the interests of sustainability, conservation and stock recovery.
Those powers include the ability to impose closures, restrictions on gear and effort, and limits on the species that may be taken. Importantly, however, these powers are not unlimited. They must be exercised within the scope of the Act, for a proper purpose, and in accordance with principles of administrative law.
This is where potential legal challenges arise.
Grounds for Legal Challenge
Legal challenges to fishing bans are not arguments about whether the policy is “good” or “bad”. Courts do not review the merits of government policy. Instead, challenges focus on whether the decision was made lawfully.
Common grounds include:
- Exceeding statutory power
A decision may be invalid if it goes beyond what the enabling legislation allows. While the FRMA provides wide discretion, it must still be exercised in accordance with the Act’s objects and framework. If restrictions are imposed in a way not authorised by the legislation, or for a purpose not contemplated by Parliament, a court may intervene. - Procedural fairness and consultation
Although legislation does not always require consultation, the absence of meaningful engagement can be legally relevant. In some cases, affected licence holders may argue that the government failed to follow its own stated processes, ignored relevant considerations, or denied procedural fairness, particularly where decisions have severe and immediate economic consequences. - Unreasonableness or disproportionality
Under established administrative law principles, a decision may be challenged if it is so unreasonable that no reasonable decision-maker could have made it. While this is a high threshold, arguments may be made where a blanket ban is imposed despite alternative regulatory measures being available, or where the scientific evidence does not clearly support the extent of the restriction. - Failure to consider relevant evidence
If decision-makers relied on incomplete, outdated or selective data, or failed to consider material evidence put forward by industry participants, this may constitute a failure to properly exercise discretion.
Current Legal Proceedings
Commercial fishing operators have already commenced proceedings in the Supreme Court of Western Australia challenging aspects of the new bans. While the outcomes remain uncertain, the existence of litigation underscores that these measures are not immune from scrutiny.
It is important to note that success in such cases is never guaranteed. Courts are generally reluctant to interfere with regulatory decisions involving environmental protection and scientific judgment. However, where procedural flaws or legal overreach are established, courts do have the power to invalidate regulations or require decisions to be remade.
Compensation and Economic Impact
One common misconception is that a successful legal challenge will automatically lead to compensation for affected businesses. In reality, compensation is rare unless expressly provided for by statute.
Fishing licences in Australia are typically characterised as statutory privileges rather than proprietary rights. This means that even substantial losses caused by regulatory change may not give rise to compensation unless the legislation specifically allows it.
That said, the financial impact of regulatory decisions can be relevant in assessing whether a decision was unreasonable or whether proper consideration was given to economic consequences.
Practical Considerations for Affected Businesses
For businesses affected by the bans, early legal advice is essential. Key steps include:
- Reviewing licence conditions and statutory entitlements
- Assessing whether proper processes were followed
- Identifying any inconsistencies between scientific advice and regulatory outcomes
- Considering participation in collective legal action where appropriate
Equally important is understanding the limits of legal remedies. In some cases, commercial outcomes may be better achieved through negotiation, transitional arrangements or political advocacy rather than litigation alone.
Conclusion
Western Australia’s new fishing bans highlight the tension between environmental regulation and commercial certainty. While governments have wide powers to regulate natural resources, those powers must still be exercised lawfully.
Legal challenges are not about resisting sustainability; they are about ensuring that decisions affecting livelihoods, investments and regional economies are made within the bounds of the law. As current proceedings progress, they will provide important guidance on how far regulatory discretion extends, and where legal accountability begins.
For fishing operators and related businesses, the message is clear: understand your legal position early and seek advice before assuming that regulatory decisions are beyond challenge.
About the Author: This article has been authored by Steven Brown. Steven Brown’s legal career covers working with multinational corporations and Australian listed companies to family-owned businesses. This range of experience has equipped Steven with the unique ability to offer tailored legal services that make a significant difference to businesses of all sizes.
