Mudginberri Station Pty Ltd v John Charles Kerin

ADMINISTRATIVE LAW - Judlcial review

- Decisions not

t o make

available authorized officers at abattoir to Inspect slaughter

of animals and processing

of meat for export trade

- Decisions

not to appoint additional persons

as authorized officers

Authorized officers refusing to cross picket line orqanized by

an industrial union

- Whether irrelevant considerations taken

into account

- Whether relevant considerations not taken into

account - Whether declsions unreasonable.

Administrative Decisions (Judicial Review) Act

1977, s.5

Export Control Act

1982

Export Control (Orders) Regulations

Prescribed Goods (General) Orders (No.1 of 1985)

Export Meat Orders (No.2 of 1985)

MUDGINBERRI STATION PTY. LIMITED v.	J O H N CHARLES KERIN & ORS.
No. NT G 16 of 1985
Neaves J.
14 AuFust 1985
Canberra

IN THE FEDERAL COURT OF AUSTRALIA

)

NORTHERN TERRITORY DISTRICT REGISTRY	1	No.	NT G 16 of 1985
1

I	GENERAL	DIVISION
I

BETWEEN:

MUDGINBERRI

STATION

PTY.

LIMITED

Applicant

AND:

JOHN CHARLES

K RIN

First Respondent

LINDSAY PERCIVAL DUTHIE

Second Respondent

ROBERT THOROLD IRWIN

Third Respondent

PHILLIP

J O H N

CORRIGAN

Fourth Respondent

PETER HANDLEX LANGHORNE

Fifth Respondent

MINUTE OF ORDER

J ~ G E

MAKING ORDER

: Neaves J.

DATE OF ORDER

14 August 1985

WHERE MADE	: Canberra
THE COURT ORDERS THAT:

1. The application be dismissed.

The applicant

pay

the

respondents'

costs

the application.

Note:	Settlement and entry of orders is dealt with	in
Order 36 of the Federal Court Rules.

IN THE FEDEWAL COURT OF AlJSTRALIA

)

NORTHERN TERRITORY DISTRICT REGISTRY

MO. NT G 16 of 1985

GENERAL

DIVISION

BETblEEN :

MUDGINEERRI

STATION

PT'I.

L I M I m

Applicant

MJE :

JOHN

CHARLES KERIN

First Respondent

LINDSAY PFECIVAL DWCHIE

Second Respondent

ROBERT THOROLD IRWIN

Third Respondent

PHILLIP JOHN CORRIGAN

Fourth Respondent

PETER HANDLEY LANGHORNE

Fifth Respondent

CORAM: Neaves S.

I	W: 14 August 1985

REASONS FOR JIJDGMENT

This is an application by Mudginberri Station Pty.

Limited ( "the applicant") for an

order of review under the

Administrative Decisions (Judicial Review) Act

1977

("the

Judicial Review Act").

The decisions in respect

of which the

order of review

i s

sought have not been identified with

particularity but may be compendiously described

a s -

- 2 -

. ,.

. decisions by the fifth refpondent. Peter Handley

Langhorne, not, to make

available at the premises

the

applicant

the

serv,ices

authorized

officers

for

the

purpose

of inspecting

the

slaushter

cattle

and

buffaloes

and

the

preparation for the	export	market	of	meat
derived therefrom: and

. decisions bp

Mr Lanqhorne as a delegate of the

Secretary to the Department of Primary Industry

refusing to exerclse the power conferred by

section 20 of the Export Control Act 1982 to

appoint persons to be authorized officers for

the purpose mentioned.

The

first

respondent.

John

Charles

Kerin,

the

Minister of State

for Primary Industry. Lindsay Percival

Duthie, the

second

respondent,

the

Secretary

the

Department of Primary

Industry.

The

other

respondents,

Robert Thorold Irwin, Phillip

John Corrigan and Peter Handley

Langhorne, are officers

of that Department.

Dr Irwin is the

Regional Director and Chief Veterinarlan stationed

at Darwin.

Corrigan is

the Acting Assistant Director of the Meat

Operations Branch of the Export Inspection Service

the

Department and Mr

Langhorne is the Director of that Service.

Although they are named as respondents, the applicant seeks

no relief ayainst Mr

Kerin, Dr Irwin or Mr Corriqan and it is

proper that the application be dismissed	s o	far a s they are
concerned.

The issues

that arise f o r

determination

this

proceefiing must be seen aqainst

the background of the events

whlch have taken place particularly slnce early May

1985.

The applicant conducts an abattoir and meat processing works at Mudqinberri Statlon near Jabiru within the bounds of

the Kakadu National Park east

Darwin. Its operations

include the slauqhter and processinq of cattle and buffaloes.

Until the organisation on

10 May 1985

of a picket line by

members of the Australasian Meat Industry Employees' Union

("A.M.I.E.U."), most of the output from the abattoir was sold

to overseas markets. For this purpose the premises are

registered and the necessary licences are held under the

relevant legislation. As a direct result of the organisation

and maintenance of

the picket line (conduct which amounts

a secondary boycott). the slaughter and processing

of cattle

and buffaloes

fo r the export market have ceased because of

the absence from the abattoir of authorized officers to carry

out the necessary inspections and other requirements.

The

authorized officers are absent from the abattoir because the

officers directed

to report for duty there, being officers

employed in

the Export Inspection Service of the Department

l .

i ..

- 4 -

of Primary Industry.

have, on the instruction of the union of

which they are members. refused to cro3s the picket line.

The

officers of the Department

Primary Industry

include meat inspectors

and

veterinary officers of various

qrades who perform the functions required to be carried out by the relevant legislation to which it will be necessary to

refer. Where

an abattoir or meat processing plant producing

meat for export works

a continuous basis throughout the

year,

authorized

officers.

being

meat

inspectors

and

veterinary officers employed in the Export Inspection Service

of the Department, are allocated on

a permanent basis to that

abattpir or meat processing plant which is then treated as their headquarters. In the case of an abattoir or plant

operatin9 only seasonally,

as the abattoir at Mudqinberri

Station does, the necessary authorized officers are assigned from other locations for duty temporarily at the particular abattoir or plant while operations continue there.

The	meat inspectors employed in the Export Inspection

Service, including Messrs. Kohler. Lyall, Gordon and Bennett,

are members of The Meat Inspectors' Association

("M.I.A.").

The M.I.A.

has directed its members not to cross the picket

line organised by the A.M.I.E.U.

It is said to be the policy

the M.I.A. not to cross

a picket line endorsed by the

Australian Council of Trade Unions.

It is further said that

the picket line

at Mudqinberri Station

has that endorsement.

- 5 -

The history of the matter must be recounted in

a little

more detail. Subsequent to the commencement

the 1984

killing season in June 1984 the A.M.I.E.U. began

to picket

Mudginberri Statlon. That pickek was removed when agreement

was reached to submit to arbitration the dispute giving rise

to the picket. As

a result of the arbitration process a new

award, the Northern Territory Meat Processing Award 1984,

became

operative

May

1985.

There

has

been,

and

continues to

be,

a dispute beheen

the A.M.I.E.U. and the

Meat and Allied Trades Federation	of	Australia in regard to
that award.

The relevant employees

abattolr

(who

are

apparently not members

of the A.M.I.E.U.) negotiated with the

applicant terms and conditions of employment

which are said

to be consistent with that award and provide for "payment by

results". That method of remuneration is antithetical to the

A.M.I.E.U. There is, so it appears, no present industrial dispute between the applicant and its employees, none	of whom
is taking part in the picket line.

The applicant commenced its 1985 seasonal operations on 9 May 1985. Prior to the commencement

those operations

three meat inspectors employed in the Export Inspection

Service, Messrs Trevor Kohler, Lyndsay Lyall and John Gordon,

were

directed

report.

for

duty

at the

abattoir.

- 6 -

Arrangements

were

also

made

for

Dr Peter

Prenzler, a

veterinary officer employed

m the Export Inspection Service,

td be'transferred from Queensland to Mudginberri Station

as a

member of

the Inspection team.

Dr Prenzler is no% a member

of the M . I . A . but of the Professional Officers' Association.

On 10

May 1985 the picket line was formed and Messrs.

Kohler, Lyall and Gordon refused to cross that line to report for work at the abattoir. Dr Prenzler, however, crossed the

picket line to attend to the welfare

of the animals on the

applicant's premises.

Lyall left the area to perform

other duties and his place in the inspection team was taken

by another meat inspector, Mr Bennett. Subsequently, with

the

concurrence

the

A.M.I.E.U., the

inspection

team

attended

at he

abattoir

carry

out he

necessary

inspections in respect of the slaughter of animals that had

been held at the abattoir for some time. Some days later

Prenzler attended the abattoir to supervise the boning out of

the resultant carcasses. This led to	a "black ban" being
placed on him by the A.M.I.E.U.

On 17 May 1985 Messrs. Kohler, Gordon and Bennett were

directed by

Irwin to report

for

duty at the abattoir.

They again refused. On

two subsequent occasions, on 24 and

29 May

1985, the officers were again directed

to attend for

work at the abattoir. They

refused

and

their

pay

and

On 24

May 19E5

the applicant commenced proceedings in

this Court

for injunctive relief in respect of conduct in

relation to

the organisation and maintenance of

tine picket

line as being in breach of sectlon 45D of

the Trade Fractices

1974.

On 27 May 1985 interlocutory iniunctive relief was

granted against the A.M.I.E.U. and certain of its officials.

Further orders in that behalf were made on 5. 7 and 12 June

1985. The injunction ?ranted on 12 June 1985 restrained the

A.M.I.E.U. and the

mdlviduals named therein until the final

determination of the

proceedinu

further

order

from

imposiny, maintaining, giviny effect to or enforclnq any ban

on the provision

of goods

and services to the applicant at

its Mudqinberri abattoir or from setting up

or maintaining

any picket line at

or in the vicinity of the abattoir.

The picket line was maintained and on

21 June 1985 the

Court ordered that the A.M.I.E.U.

be fined the sum

of $10,000

in respect of its breach of the order made on

1 2 June 1985

and a

further sum of

$2,000 per day

so lonq as the breach

continued.

On 24

June 1985 the abattoir began slaughtering solely

for

domestic

consumption.

Whatever

inspections

were

necessary in the course of such operations were carried out

- 3 -

by officers

of the Department

of Prlmarg Production of the

Morthrrn Territory. in order that the status of the abattoir

as an export establishment should not

be jeopardised.

Prenzler was directed to remain. and

he has remained. on duty

there.

is sald that sinc3 about l?

Play 1985 Dr Prenzler

and his fam1l:y have Seen lLvinq in accommodation provided for

them at Muduinberrl Station.

On 1 2 .July 148.5 the Court granted

a permanent injunction

in slmilar terms to	that granted on an Interlocutory basis on
12 June 1935.

It i a cotwenienr, ,a% this stage t o refer

to some of the

provisions of the relevant legislation.

The Export Control Act 1982 ("the Act") is described in its long title as "An Act to provide for the control of the

export

certain

goods

and

for

purposes".

provides,

sub-section

7(1). that

the

regulations

may

prohibit the export of pre5cribed

qoods from Australia either

absolutely or unless specified conditions or restrictions are

complied

with.

"Prescribed

goods"

means

goods,

qoods

included in

a class of goods, that are declared by the

regulations (an expression

which

includes

orders)

prescribed goods

f o r

the purposes of

the Act (section

31.

Meat derived from cattle or buffaloes that are slaughtered

a registered establishment has been so declared: see Export

lL.X?CrOi l ~<?I??L-.:tl I

Hcgt.llAriotls, r?julat;on

the Prescribed

Goods (General) Orders. order	A. and the Esport Meat Orders.
order 5.1.

I.. ;

I .

A person who intends to exporr- prescribed uoods is, if

required to do so by regulations. to qlve notice to

the

Secretary to the Cepartment of Pr-lmary Industry or to an authorized officer, m accordance with the regulations, of

his intention to export

the

goods and of the place where the

goods may be

inspected

(sub-section

6(1)).

"Authorized

officer" 1 s

deflned in section

3 to mean an

officer of the

Department of

Primary Industry or

a person appointed under

section 20 of the Act to be

an authorized officer.

Sub-section lO(1) provides that the

function of an

authorized officer under section 10 is

to ascertain whether

the

provisions

the

Act

and

the

regulations,

and

condicions

restrictions

applicable

t o

the

export

prescribed goods

to licences or permissions to export

prescribed

goods,

have

been

complied

with.

For those

purposes authorlzed officers are given wide powers	(see
sections 10 and 11).

Section 20 of the Act provides -

"20.	The Secretary may, by instrument signed by

him, appoint a person or persons included in

class of

persons, to be an authorized officer or

authorized officers. as the case may

be,

for the

purpose of the exercise by that person or those

persons of the powers

of an authorized officer

- 10 -

under $his

Act or of such of those powers a5

a r e

zpeclfled in the instrument."

Sub-section 19(1) authorises the Secretary, that

1 s .

the

Secretary 'to the Department of Prlmary Industry, to delegate

to an

authorizeu officer all or any

his powers under the

Act. other

than

the

pcwer

of deleqatlon. A power so

deleqated.

when

exercised

the delegate, is, for

the

purposes of

thP Act, to he deemed to have been exercised by

the Secretary (sub-section

19(2)). Pursuant to that power,

the Secretary has cieleqated t.0 Mr LancThorne (who, by reason of his bemg an officer of the Department of Primary

Industry,

is an "authorlzed

officer")

his

powers

under

section 20.

That power has also been delegated to a number

of other officers

of the Department of Primary Industry.

The Act confers on the Minister a wide regulation making

power (section

25).

It is a l s o

expressly provided that the

regulations may. subject to

an immaterial exception, make

provision for or in relation to empowering the Minister to make orders, not inconslstent with the regulations, with respect to any matter for or in relation to which provision

may be made by the requlatlons (paraqraph 25(2)(g)). It may

also be noted, in passin?, that sub-section

25(8) provides

that an

order is

to be deemed to be

an enactment for the

purposes of the Administrative Appeals

Tribunal Act 1975.

is curious that this provision does not also deem

an order to

be an enactment for

the purposes of the Judicial Review

Act.

\ .

- 11 -

HOWeVFc. it

W33 ngt -1rqued that the orders so

made are not

enactment2 for the purposes of the Judicial Review

Act and I

propose, correctly as	I think. to, regard them	as answering
that descrlption.

The Export Control i0rdzrsJ Regulations {Statutory Rules

1982 No 355) provlde. in section

3 , that the Minister may, by

instrument in writing. make orders, not inconsistent with

regulations made under the Act, with respect to any matter

for

in relation to which provision may be made by

regulations made under the Act. Pursuant to that power the Minister has made the Prescribed Goods (General) Orders

(No. 1 of

1985) and the Ecport Meat Orders (No. 2 of 1985).

The former declares, in order

6 , what are to be prescribed

goods and, by order 10, provides that, for the purposes of sub-section 7(1) of the Act, the export of prescribed goods is prohibited unless the conditions or restrictions specified

in the

orders are complied with. Order

11.1 prescribes the

conditions or restrictions that apply to, or in relation

to,

inter alia prescribed goods belng meat though it does

so by

reference to other orders that set out the requirements

that

apply

the

particular

goods.

The

Prescribed

Goods

(General) Orders also contain detailed provisions relating to

the

r gistration

establishments,

packaging,

trade

descriptions, notice of intention to export prescribed

goo s,

export permits, official marks and marking devices and the

payment of fees for the services of authorized officers.

- 12 -

The Export Meat Orders (No. 2 of 1985), which by virtue

of order

4 are to be read

as one with the Prescribed Goods

(General) Orders, are equally.

if not

more, detailed and

provide

for

the

registration

establishments

and

the

practices and procedures to be followed in relation to

ante-mortem

inspections,

the

slaughter

and

dresslnq,

port-mortem inspections, the handling of prescribed goods

(including

meat)

which

the

orders

apply,

trade

descriptions and %he applicacion of official marks.

"Meat"

is defined to mean tissue

(other than edlble offal) derived

from cattle, buffaloes. solipeds, calves, sheep, lambs, piqs,

goats

deer

that

are

slaughtered

a reglstered

establishment and intended for human consumption (order

6).

The	orders Identify the persons who are to carry out the

particular operation in

the inspection procedures prescribed.

Some orders refer to

an "authorised officer", others to

"meat inspector" and yet others to

"veterinary officer".

The latter two expressions are themselves defined but in	a
somewhat curious fashion. "Meat inspector" is defined to

mean "an authorized officer who is

a meat inspector" and

"veterinary officer" means

"an authorized officer who is

veterinary officer"

One may assume that those definitions

respectively refer to persons who, by reason of having satisfactorily completed a course at a tertiary educational institution, have acquired the appropriate qualifications to

be described as meat inspectors or veterinary- officers and

who are either

off icers of the Department of Primary Industry

persons

appointed

authorized officers pursuant to

s e c t l o n 20 of

the 9ct.

p a r t 29 of the Expljrt Meat, rJrdprs is headed "Services of

authorized Officers" and contains orders

448-450

inClUSlVe.

Those orders are in che

I*3ll~winn

terms -

"448.

Where the services of an authorized

officer are required, the occupier of

establishment registered to prepare pre- scrlbed goods shall make appllcation in

wrlting

a regional office for the

services of

an authorized officer to be

made available durlng the preparation	of
the prescribed goods.

449. The application specified in order

448 shall	be	received	by	a regional
office -

(a) In

the

case

a registered

establishment that is operating

not later than the working day

preceding the first working day

which

t e

s rvices

are

required;

(b)

in the case of a registered

establishment

that

has

been

closed or new premises - not

later than

5 clear working days

before

the

services

required.

450. Where the presence of an authorized

officer is required,

the production of

prescribed goods shall not commence until

an authorized officer is present."

The applicant has, on a large number of occasions since

15 May

1985, by telex messages sent

t o the Minister

or to

officers of the Department

Primary Industry, requested

S ’

- 14 -

that the Export

Inspc.ctlm

Servlce

make

available

Mudginberrl Station authorized officers to carry out the

necessary func5lons

that: the slaughter

cattle and

buffaloes and the processing of meat derived therefrom for the export trade may continue. Requests have also been made that the power conferred by section 20 of the Act be exercised to appoint as authorlzed officers persons who are

not members of the M.I.A. and that persons

so appointed be

made

available

to Mudginberri

Station.

In particular,

requests have been made that officers

of the Department of

Primary Production of the Northern Territory be

so appointed

and made available. Those offlcers have qualificatlons in

veterinary sclence and are not members of the M . I . A .	but of
another union.

The requests have been considered by

Mr Langhorne and,

save

so far as directions

report

for

duty

Mudginberri Station have been given to Messrs Kohler, Lyall,

Gordon and Bennett

on the occasions already referred

to, have

not been acceded to

for reasons which

Mr Langhorne has

explained in the affldavit affirmed

by him and filed in this

proceeding and in his oral evidence.

It will be necessary to

1 refer to other parts of his affidavit but it is sufficient

for present purposes to refer to paragraphs

16 and 17. Those

paragraphs read -

“16.	My prime consideration has been to

weigh the consequences

providing

services to the abattoir against

the

ability

the

EIS

continue

- 15 -

provide

inspection

services

the

Australlan

meat

Industry

and

the

c substantial

consequences

the

for

industry

should

these

rvices

disrupted.

Also I have

taken

into

account the adverse MIA reaction to the

use of non

MIB members

particularly

veterinary officers to carry out duties

clearly

desiunated as meat

inspector

duties,

the

fact

hat

neith2r

the

Departmenr. nor its unions were a party

the

1nltm.l

dispute,

the

likely

effect on EIS

employees, the ability to

be able to contlnue to provlde the range

of services necessary to actually export

product

produced,

and

problems

with

overseas markets that may arise if the

Integrity of the meat is put

at rlsk.

17. I have concluded that adoption of

any of the options for Mudginberri under

the exlsting circumstances would widen

the dispute to the substantial detriment

of the Australian Meat Industry."

The

references to

"MIA" and "EIS" are respectively

to The

Meat

Inspectors'

Association

and

the

Exporc

Inspection

Service. The options referred to are

tine options to which Mr

Langhorne gave consideration, namely

. the provision

of meat inspectors from

within the Export Inspection Service	of
the Department of Primary Industry;

. the

provision

what

was

called

"departmental manacrement labour"

; and

. the use of other persons.

- 16 -

It is a l s o convenient to state at this point that there was no attack on

Mr Langhorne's credit and

I accept the whole

of his evidence.

It	is common grounb. that the declsions of ilhich the

applicant complains were taken under order 448

of the Export

Meat Orders and section

20 of the Export Control Act 1982.

In seeking

order

of review

respect

the

decisions made by Mr Langhorne. the applicant submits that

the making of each of

the decisions was an improper exercise

of the power conferred by the enactment in pursuance of which the decision was purported to be made (paragraph 5(l)(e) of

the Judicial Review Act) in that

irrelevant considerations were taken into

account

the

exercise

the

power

(paragraph 5(2)(a));

. there

was a

failure

take

relevant

considerations

into

account

the

exercise of the power	(paragraph 5(2)(b));
and

. the

xercise

the

power

was

unreasonable

that

reasonable

person

. .

- 17 -

Could have 5 0 exercised	the	power
(paraqraph 5 ( 2 ) ( g ) ) .

'r'

F >

For the applicant

it was said thst

the 1eglslat.t'ire

&?.--

provisions

under

which

the decislons

were

made

were

procedural in nature

- provislons deslgned on

the one hand to

ensure that the legislative requlrements set out elsewhere in

the	Act, the regulations and the orders were carried into

effect and on the other to facilitate compliance by the

occupier of

an abattoir or meat processing plant with those

requirements

having

available

at his establishment

authorized

officers

possessing

appropriate

the

qualifications.

It followed, so the argument ran, that the

decision-maker, in exercising the power conferred on

him, was

obliged to

have regard only to matters pertinent to the

object and purpose of the provisions as

so understood.

The following statements taken from the evidence

of Mr

Langhorne encapsulate matters which

he took into account but

which the applicant

submits

constitute

irrelevant

considerations.

First, there is the statement (paragraph

of his affidavit)

that he

consldered that to accede to the

applicant's

requests

"would

contrary

the

overall

welfare of the

xport

meat

industry".

Next.

the

statement (paragraph 8(a) (iv) of his affidavit as amplified in his oral evidence) that "to direct individual inspectors

in the EIS to attend for duty would, on the basis

of state-

- 1s -

ments

made

the MIA, cause the dispute

spread

natlondly".

Thirdly, there are the statements (paragraph

S(b)(i) of the affidavit) that

he believed that there existed

"threats from the union movement to extend the dispute should

non-MIA members be used to carry out export inspection duties

at Mudglnberri"

and

that

under

those

circumstances

considered "the threat of

a national dispute

or, at the

least, widespread industrial action was, in

fact, real".

The applicant also

referred to the statement in paragraph

of Mr Langhorne's affidavit that action such as authorizing non-M.I.A. labour to carry out export inspections "would lead

to an undesirable wideninq of the dispute with costs to the industry far in excess of those now being borne in the

localised dispute situation". In this connection it is to

be remembered that the use of veterinary officers employed

the

Department

Primary

Production

the

Northern

Territory would involve the use of

non-M.I.A. labour.

Also

relied upon were the statements in paragraphs

16 and 17 of Mr

Langhorne's affidavit the text of which has already been set out.

In essence, It was the applicant's submission that, in

considering

the

requests

which

had

been

made,

was

irrelevant

for

the

decision-maker

take

into

account

matters other than those which could be seen to be associated

in the most direct way with the satisfaction by the applicant

of	the legislative requirements relating to the export of

. .

- 19 -

pjiescr1bed ?l:ll3dz.

The

applicant’s primary submission was

that the relevant considerations were confined to matters

pertalnlng to

the meat export operations of

the partlcular

establishment in relation to

whlch

the request for

Lhe

provision of authorized offlcers was made and dld not extend to matters relatinu to the export trade in meat considered as

a	whole. But whether or not that pcimary submission was

accepted, the applicant’s further submission was that it Was

outside any possible view of the ambit of

the discretion

conferred by the relevant provisions to have reuard to

matters concerned with industrial relations especially where

those industrial considerations related to the meat export

industry as

a whole.

In particular, it was said to be

irrelevant matter to take into account possible industrial

action on the part of

third party and, even more SO, where

that industrial action was illegal and was being engaged in

in defiance of

a court order.

Authorized officers will be available at

a particular

establishment only if the necessary steps

to ensure their

presence are taken by some officer

the Department of

Primary Industry having authorlty to

do so.

It thus falls to

that officer to determine whether authorized officers being

officers of the department with the necessary qualifications

can be made available to perform the prescribed tasks. If,

for some reason, such officers cannot be made available, or

cannot be made available

at the

particular location, the

- 20 -

situcltion wlll arise whether the power conferred by section 20 of the Akt should be exercised tb approve other persons

authorized

offlcers

who

can

be made

avallable

the

partlcular rstablishmenc. It is only in this secondary sense

that any question arises In this proceedinu under section	20
of the Act.

Order

448 of the Export Meat Orders is expressed in

terms of enabllnu the occupiers of a registered establlshment to request that the services of authorized officers be made

available.

There

is,

however,

nothing

the

Act,

the

regulations or the orders which, in terms, provides that such

a request is to be acceded to or

how such a request is to be

dealt with. Neither the manner in which,

nor the time within

which, It is to be considered are prescribed. Nevertheless, the context in which order 448 appears is such that there

must be implied

duty upon those responsible for the

administration of the

legislation to have

each

request

properly and promptly considered.

It was conceded on behalf of the respondents that the

legislation gave rise

to a duty of a general kind on the

Department of Primary Industry to make available the services

of authorized officers when requested to

do so

pursuant to

order 448.

It was said, however, that that general duty was

owed

the

occupiers

of all

registered

establishments

considered as a class. This was contested by the applicant,

- 21 -

I t bein? contended

on 1.t~ behalf that

the

duty impliedly

arlslnq from the terms

of order

468

is one .owed to the

Individual applicant who makes	a request purcuant to its
provisions.

I have

not found it necessary to form a concluded view

on the issue

so disclosed.

In a sense.

each submission is

correct.

The

Minister

for

Prlmary

Industry

and

his

department clearlzr have

admmlstrative responsibility for

many aspects of

Australia's overseas trade and in that sense

must clearly

be concerned wlth the effects upon that trade

which accion taken in

a particular case may, or will be

likely CO,

have. Eut to recounise that wider role does not

necessarily exclude, in

a particular case, a duty owed to the

occupier

an individual

registered

establishment.

The

question is what is

the

nature

of that duty and what

considerations are relevant to be taken into account in

exercising

the

discretionary

powers

which

the

relevant

provisions confer.

The applicant did not contend that the duty which was

be implied required that it be exercised

o as to ensure that

authorized officers were made available at each reqlstered

establishment either on demand or whenever the decision-maker

was satisfied that their presence was necessary in order

that

export meat operations miuht continue. I agree that there 1 s

nothing

the

legislation

suggest

that

was

the

- 22 -

intention of the legislature to Impose a

duty of that kind.

The most that

can, I

think, properly be' Implied into order

... .

448 are words which are permissive

or facultative - 9n other

words order 448 is to be read

so as to confer on the occupier

.of a registered establishment a riTht to call upon the

..-

=. .. '

approprlate officer to exercise hls discretion according to

law and

so as to impose upon that officer

CI correlative duty.

It may be accepted that any request for the exercise of

the power must be consldered bona fide and not with

a view to

achieving ends

or objects outslde the purpose for which the

power is conferred. That purpose must, in the absence of any

express

statement

that

regard.

be discerned

from a

consideration of the scope and object of the legislation

considered as a whole.

The applicant's

submissions,

opinion, tended to take too narrow	a view by concentrating
attention on the scope and object	of order 448 itself and

failed to give due weight to the purpose to

be discerned from

consideration of

the scope and object of the Act, the

regulatlons thereunder and the Prescribed

Goods

(General)

Orders and the Export Meat Orders considered

as a scheme of

control and regulation

of the export meat industry.

The Minister for Primary Industry and

his department are

responsible for the "control" of the export of prescribed

goods - in

this

case

'meat

- in

accordance

with

the

legislative provisions to whlch reference

has been

made.

- 23 -

That responsibility

includes

not

nly

enforcinq

the

restrictlons and conditlons that have been prescribed but

also, consiscentljr 31th those restrlctions and conditions.

facilitatlnq and promotinq Australia’s export trade

In those

commodities. That this is so is clearly demonstrated once it

is recognised that many of the restrictions and conditlons

prescribed have as.their undoubted object the safeguarding of

the

export

trade

eliminating,

far

possible,

practices which have the potential to harm that trade and

thus

affect

other

exporters

trading

that

or similar

classes of goods. One needs to

look no further than

the

events which preceded the enactment of the Export Control Act

1982, events which concerned the export trade in this very

commodity, to appreciate

the

relationship

between

the

activities of particular exporters and the overall welfare	of
the export trade in the same commodity.

I refer to that history not

for the purpose

of making

any comment adverse to the applicant as to the manner in

which its business is conducted. Indeed, there is nothing in

the

evidence

which

would

warrant

any

criticism

of its

activities.

I do so

only for the purpose of indicating that

it is unrealistic, in considering the scope and object of the

provlsions here in question, to confine

one‘s

attention to

the	circumstances relevant to the particular establishment

and treat as extraneous and irrelevant wider considerations

concerning the industry generally.

- 24 -

But, looking at the matter in this light.

it may well be

that the considerations which will ~ustify the refusal of a request pursuant o rder 448 are limited - limited

particularly

the

circumstance

that,

unless

authorized

officers with appropriate qualifications are made available,

an establishment cannot carry on

the export operations in

relation to which registratlon under the legislatlon was

granted. Thus, a refusal to make available

the necessary

authorized officers for the purpose and

as a

means

excluding

a particular establishment from engaginq in the

export trade would to my mind be outside the power.

But, I

unable

conclude,

point

law,

that

considerations

which

Langhorne

admittedly

took

into

account concerning

the possible or likely effects on the

overall welfare of the meat export industry, and the possible

or likely

industrial

relations

consequences

for

that

industry,

acceding

the

applicant’s

requests

are

irrelevant to any purpose falling within the scope and object

of the discretion that was vested in

him.

the

light

what

I have

already

said

unnecessary to consider separately the decisions not to make

appointments of authorized officers under section

20 of the

Act.	However, in deference to the argument put by counsel

for the applicant,

I should say that I do not regard the fact

that sectlon

places no restriction upon the persons to

- 25 -

W h 1 3 [ \ the 3ecret;lt.y

t o the Department of Primary Industry may

deleqate

hls power under section

2 0 to appoint authorFzed

officers as

indlcatlng a leqlslatlve intention to limit the

matters which may relevantly be taken into account when

considering whether to exercise that power.

In my opinion the

applicant’s submissions on this aspect

of the matter, therefore, fail.

I turn now to the matters

which, according to the

applicant’s submission, were relevant to the decision-making

process but which Mr Lanqhorne failed to take into account.

One

those

matters

was

the

availability

within

the

Department of Primary Production of the Northern Territory of

suitably qualified persons to

be appointed and made available

at authorized officers under the relevant legislation.

Mudginberri

Station

the

functions

carry

out

It is

clear on the evidence that this was a question to which Mr Langhorne had addressed his mind and he in fact requested

that inquiries be made

of an

officer of the Department

Primary Production of the Northern Territory concerning the names. qualifications and experience of the personnel that

might be provided

for export inspections

at Mudginberri

list of officers who had tertiary qualifications

in veterinary science was provided to Mr Langhorne under

cover of a letter dated 24 June 1985 addressed by the Deputy

Station.

Secretary of the Department

of Primary Production, Mr

- 26 -

Jones,

to Dr Irwln. No details

were

given

.the

*. I

experience of these offlcers in meat inspection

and,'6

as I

understood the argument put on behalf

of the applicant, it

was said that Mr Langhorne's decisions were vitiated because

I	he failed to make further enquiries concerning the experience
of those officers. that being a relevant consideration which
Mr Lanqhorne should have taken into account.

I am

unable

the

argument.

Mr Langhorne

reached hls decision not to appoint and make available

officers of the Department of Primary Production of the

Northern Territory on grounds which made irrelevant the

question whether those officers had the necessary experience

to enable them to carry out the functions of iruthorized

officers as laid

down in the relevant legislation. Had

reached a

different conclusion on that aspect of the matter

the

experience of the

officers

question

and

their

willingness to cross the picket line would, no doubt, have

become relevant.

However, I

am unable to conclude that Mr

Langhorne was bound to take the experience of such officers

into account for there to be

a valid exercise of the power to

decide what actlon should be taken upon the applicant's

requests.

Another relevant matter said not to have been taken into

account was the illegality

of the conduct being engaged in by

the A.M.I.E.U. and its officials.

This submission was made

- 27 -

un the

assumprion that. contrary

to the earlier submission

made on behalf

of the appllcant

(a subpission which L have

rejected),

the

industrlal

relations.

matters

which

. i	,	.	..
?	1 .

reference has been made were- not

, lrrelevant

L&:

the

..	..	.	)L !L.;-
,'C :-,

decislon-making process under order

4'28 of the Expo& Meat

4.-

**L:

Orders and section 20 of the ExDort Control Act 1 9 8 y On the same assumption it was also submitted that Mr Langhorne had failed to take into account that none of the following

matters had caused the industrial dispute to escalate or

spread nationally, namely

that Messrs Kohler, Gordon and Bennett had been directed on more than one occasion to report for duty at Mudqinberri Station:

that

their

pay

and

allowances

had

been

stopped consequent upon their refusal to

cross the picket line;

that Dr Prenzler had crossed the picket

line;

the continued presence

of Dr Prenzler at

I	Mudginberri Station;
the continuing operations at the abattoir
i
for the domestic market and the performance

I .

- 28 -

of duties

connection

therewith

mspectors

employed in the Department of

I .

Primary

Froduction

Northern

the

Territory; and

the making of orders by this Court in the

proceedings

commenced

the

applicant

against

the

A.M.I.E.U.

and

others

under

section 45D

of the Trade Practices Act 1974.

I	am satisfied on the evidence that Mr Langhorne was

made aware of all of those matters

at or about the

time they

occurred and that they were present to his mind when giving

consideration to what course should be followed.

It is true

that he did not specifically state in his affidavit what, if any, weight he gave to the circumstance that the occurrence

of those events does not appear

to have resulted in any

widening of the industrial dispute between the A.M.I.E.U. and

the Meat and Allied Trades Federation of Australia concerning

the Northern Territory Meat Processing Award 1984. On the

other hand

it must be

sald that those matters were not

specifically put to

Mr Lanqhorne in cross-examination

matters to which he save no consideration in the decision

making process.

I am not satisfied on the evidence that he

failed to take those matters into account.

- 29 -

It1 Inp

Opiriiotl, no su i f i c l en t basis has

been shown by the

applicant t o warrant the conclusion that the decisions	Mr
Langhorne made were vitlated by a failure to take into account relevant consideratlons.

Finally, it was submitted

that Mr Lan5horne's decisions

were 50 unreasonable that no reasonable person could have so exercised the power reposed in him. The applicant relied on

all of the matters already adverted

t o and in particular upon

the availabllity of

officers of

the Department of Primary

Production

the

Northern

Territory

carry

out

the

necessary functions and the fact that authorized officers

carrying out the necessary functions could

be accommodated at

Mudginberri Station

a s to avoid the need to cross and

re-cross the plcket line.

In my

opinion this submission should also be rejected.

I: am unable t o conclude

that,

viewed

objectively,

the

decisions were

devoid of any plausible justification that

no reasonable person could have reached them: see Bromlev

London Borouqh Council v. Greater London Council	L198311	1
A.C. 768 at p.821.

The	circumstance that authorized officers are not at

preseht available

at the abattoir is, no doat, a matter of

grave concern to the applicant and one would think also to

those employed there. Their unavailability during

a period

- 30 -

when the abattoir is otherwise able'to

carry

on its export

operations is likely to have the most serious consequences

for the business being carrled on by the applicant as well

- :

having consequences for Australia'

S reputation as a rellable

source of supply to overseas markets.

The kbt'itude of the

applicant that those charged with the responsibility of

administering the relevant legislation should be taking all

possible steps to ensure that authorized officers are made

available

1 s .

therefore.

understandable.

The applicant

clearly doubts the soundness of the decisions that have been

made and the validity of the reasoning

on which

they are

based, Others may share the applicant's views. But those

are not matters which are before the Court.

The Court's role

is the much more limited one

whether, in making the decisions

which are the subject

of the application, there has been any

departure

from

the

requirements

the

law.

That

limited question must, in my opinion, be answered by saying

that there has been no such departure.

The application also seeks relief by way of damages but

no evidence was led on that issue which was deferred pending

the determination of the question whether the applicant was

entitled to an order of review.

In the view to which I have

come there is no foundation for a claim in damages.

In the result, the application should be dismissed with

costs.

It was suggested that a special order should be made

- 31 -

1H resperlt oi the application made on 24 July 1985 for an

adjournment of the proceedings. However. I do notopropose to

. ..

_ I	.
G .

make any special order

in chat regard.

. .

' L.',

-4; -3 I ,

;

:.:l

&,.'

i-.

"G. ., >

I certify that this and the preceding 30 pages are a true copy of the Reasons for Judqment herein of the

Honourable	Mr Justice
Neaves .

Associate

Dated: 14 August 1985

[1985] FCA 394

14 Aug 1985