Abstract:
This paper discusses the legal concepts of property and property rights and examines how the Australian courts
perceive fishing entitlements (licences, ITQs and Individual Effort Units). On the basis of case law concerning the nature of
other fishing entitlements, such as fishing licences, the courts are likely to find that ITQs are proprietary in nature. However
the Australian courts have found that fishing entitlements, although similar in terms of the privileges conferred, are not the
common law property right of profit á prendre. They are a statutory entitlement. Compensation for modification and
extinguishment of these rights depends on whether there is compensation payable under applicable legislation or on whether
the plaintiffs can rely on constitutional guarantees of acquisition of property on just terms. The courts have clearly indicated
that fishing entitlements are rights created by government as means of regulating the fishing industry and are thus governed
by the legislation that created them. By annulling that legislation, the entitlement no longer exists. By modifying the
legislation, the entitlement is redefined. However, until there is a relevant Australian case on ITQs, it remains to be seen
whether the courts will view them any differently to other fishing entitlements
