The Public Right to Fish: Dead in the Water?

This thesis investigates the Australian public right to fish. This includes an analysis of historical sources of the right in English law. This thesis describes evolution in the Australian right from those English sources. Key influences on that evolution have been the emergence of Indigenous rights and the adoption of fisheries management policies promoting sustainability and economic efficiency. Recent legal cases have increased uncertainty about the strength and effect of the Australian public right. Specific areas of uncertainty reviewed in this thesis include; the attitude of Australian courts to the utility of the right, the degree to which Australian law requires a clear intention to abrogate the right by legislative implication, the degree to which the right is derived from prerogative rights of the Crown, and how wholly abrogating (or extinguishing) the right affects the balance between competing interests in the marine domain. This thesis recommends against an overly abstract concern with the strength of the Australian common law right. It recommends that emphasis should be placed on contextual factors underlying the relationship between the public right and the legislative schemes involved. In providing a guide to the appropriate stance to take on the impact of those contextual factors, this thesis applies a natural-resource management perspective. This perspective emphasises the importance of management to maximise the benefits from vulnerable, but renewable, natural resources.