Emanuel Exports Pty Ltd; EMS Rural Exports Pty Ltd and Secretary, Department of Agriculture, Water and the Environment

This matter concerned appeals by Emanuel Exports Pty Ltd and EMS Rural Exports Pty Ltd against decisions by the Secretary of the Department of Agriculture, Water and the Environment to cancel their livestock export licences. The dispute arose from alleged serious breaches of the Australian Standards for the Export of Livestock (ASEL) during multiple sea voyages of the vessel MV Awassi Express, which resulted in high sheep mortality rates and other welfare concerns. The Secretary's decisions were based on findings that Emanuel Exports had contravened licence conditions, ceased to be a body corporate of integrity, and that persons involved in its management had also ceased to be persons of integrity. EMS Rural Exports' licence was cancelled due to its close association with Emanuel Exports. The appeals were heard by the Administrative Appeals Tribunal.

The Tribunal was required to determine several key legal issues. These included the nature and scope of its review, specifically whether the review should be restricted to the content of the show cause notices or if it could consider broader issues. The Tribunal also had to consider which version of the applicable legislation should be applied, given legislative changes during the proceedings. Furthermore, the Tribunal needed to determine the implications of the managing director of Emanuel Exports not being called as a witness, including the potential application of the rule in *Jones v Dunkel* and the privilege against self-incrimination. Finally, the Tribunal had to interpret the meaning of "integrity" and "competence" within the relevant legislative framework and consider how the actions of individuals should be attributed to a corporation.

In its reasoning, the Tribunal held that its review was not restricted to the specific grounds raised in the show cause notices and that the legislation in force at the time of the licence cancellations should apply. The Tribunal considered the rule in *Jones v Dunkel*, noting that the failure of a party to give evidence could lead to an adverse inference that the evidence would not have assisted their case, particularly where that evidence might have contradicted the opposing party's case. The Tribunal also addressed the privilege against self-incrimination, stating that it is exercised by refusing to answer specific questions in the witness box. The Tribunal found that Emanuel Exports had contravened licence conditions and that its managing director, Nicholas Daws, knew or ought to have known about breaches of ASEL, leading to findings that Emanuel Exports and its directors had ceased to be persons of integrity.

The Tribunal set aside the First Reviewable Decision and substituted it with a new decision that Emanuel Exports' licence should be suspended from 22 June 2018 to 3 December 2021. The Tribunal also set aside the Second Reviewable Decision concerning EMS Rural Exports and substituted it with a new decision that its licence should be suspended from 11 July 2018 to 3 December 2021, finding that the degree of association with Emanuel Exports warranted this outcome.