Australian Pork Ltd v Director of Animal and Plant Quarantine & Ors

Australian Pork Ltd (APL) sought judicial review of a decision by the Director of Animal and Plant Quarantine (the Director) to refuse to grant APL a permit to import live pigs into Australia. The Director's refusal was based on the grounds that the proposed import posed an unacceptable risk of introducing Foot and Mouth Disease (FMD) into Australia, and that APL had not demonstrated that the proposed import would be free from such risk. APL contended that the Director's decision was vitiated by error of law, specifically that the Director had failed to consider relevant considerations and had taken into account irrelevant considerations. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Director, in making the decision to refuse the import permit, had acted unlawfully by failing to consider relevant factors and by considering irrelevant factors. This involved an examination of the scope of the Director's statutory duty and the principles of administrative law governing the exercise of discretionary powers, particularly concerning the assessment of risk in biosecurity matters.

McHugh J found that the Director had erred in law. His Honour held that the Director had failed to consider the specific risk mitigation measures proposed by APL, which were designed to minimise the risk of FMD transmission. Instead, the Director had focused on the general risk of FMD introduction, without adequately assessing the effectiveness of APL's proposed safeguards. The Director had also taken into account the potential economic impact of an FMD outbreak, which, while a relevant consideration in a broader policy sense, was not a factor that the Director was empowered to consider when determining whether to grant a permit under the relevant legislation. The Director's duty was to assess the biosecurity risk based on scientific evidence and the proposed import conditions, not to make a broader economic policy judgment.

The High Court ordered that the Director's decision be quashed and remitted to the Director for reconsideration according to law.