Sekhon v The Director of Quarantine
[2013] FCCA 863
•25 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEKHON v THE DIRECTOR OF QUARANTINE | [2013] FCCA 863 |
| Catchwords: ADMINISTRATIVE LAW – Administrative Decisions (Judicial Review) Act 1989 – Dalmatian dog in Singapore tested negative for Canine Ehrlichiosis (CME) – dog imported to Australia and released from quarantine – dog again tested for CME and tested positive – decisions on behalf of Director of Quarantine to order dog into quarantine, to require applicant to export dog from Australia and that dog be held at applicant’s home with quarantine surveillance – review of quarantine officer’s decision – application dismissed. |
| Legislation: Administrative Decisions (Judicial Review) Act 1989, ss.5(1) and 5(2) |
| Sekhon v Director of Quarantine [2013] FCCA 331 Minister for Urban Affairs and Planning v Rosemont Estates Pty Ltd (1996) 91 LGERA 31 Brown v West and Another (1990) 169 CLR 195 Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 M22C2 v Minister for Immigration & Citizenship [2013] FCCA 413 Pacific Century Production Pty Ltd v Watson [2001] FCA 1139 Klein v Domus Pty Ltd (1963) 109 CLR 467 Director of Animal and Plant Quarantine v Australian Pork Ltd (2005) 146 FCR 368 SBEG v Secretary, Department of Immigration and Citizenship (No 2) (2012) 292 ALR 29 |
| Applicant: | TEJINDER SINGH SEKHON |
| Respondent: | THE DIRECTOR OF QUARANTINE |
| File Number: | ADG 266 of 2012 |
| Judgment of: | Judge Simpson |
| Hearing date: | 21 June 2013 |
| Date of Last Submission: | 2 July 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 25 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Fuller |
| Solicitors for the Applicant: | Sekhon Lawyers |
| Counsel for the Respondent: | Mr McDonald |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
The amended application for review filed 25 June 2013 is dismissed.
The applicant shall forthwith pay the respondent its costs to be agreed or taxed.
All extant applications are dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 266 of 2012
| TEJINDER SINGH SEKHON |
Applicant
And
| THE DIRECTOR OF QUARANTINE |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant, Mr Tejinder Singh Sekhon (“the Applicant”), commenced these proceedings on 1 November 2012 by filing an Originating Application for review pursuant to the Administrative Decisions (Judicial Review) Act1989 (“the ADJR Act”). An amended Application was filed on 25 June 2013.
The Applicant seeks review of the decision of the Director of Quarantine (“the Respondent”) that a Dalmatian dog by the name of Pepper Sekhon (“Pepper”) be exported from Australia and that the Applicant advise the Respondent of the arrangements made for that to occur.
The Respondent correctly states that there are, in reality, three decisions made on 23 and 25 October 2012 concerning Pepper: a decision to order the dog into quarantine; a decision pursuant to s.48(i)(a) of the Quarantine Act 1908 (“the Act”) that the dog be detained at the Applicant’s home; and, a decision pursuant to s.48(1)(c) of the Act, directing that the dog be exported from Australia.
Sections 5(1) and (2) of the ADJR Act relevantly state as follows:
“5 Applications for review of decisions
(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:
…
(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
…
(2)The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
…
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
…”
Background
Pepper was born on 13 April 2007 in Queensland. The Applicant purchased Pepper from his breeder and in or about July 2007 sent Pepper, who was then 3 months old, to Singapore to live with the Applicant and his family.
In early 2012, the Applicant and his family relocated to Australia. Later in 2012 the Applicant caused Pepper to be imported back into Australia.
On 14 June 2012, a blood test that was conducted in Singapore returned a negative result for Canine Monocytic Ehrlichiosis (“CME”), sometimes called Canine Ehrlichiosis.
On 9 July 2012, Pepper was flown from Singapore to Byford Quarantine Centre in Western Australia.
Whilst held at Byford, it was discovered that Pepper had a number of health issues. This resulted in him seeing veterinarians whilst being detained.
Unknown to the Department of Agriculture, Fisheries and Forestry (“DAFF”) on 6 August 2012 Pepper tested positive for CME.
On 8 August 2012, whilst still ignorant of the dog’s positive test for CME, an officer within DAFF made a decision releasing Pepper from quarantine. The dog was placed in the custody of the Applicant’s father in Western Australia who sent the dog to the Applicant in Adelaide.
On 24 August 2012, DAFF was notified that Pepper had tested positive for CME. On the same day Mr Patrick Cass, a Quarantine Officer, immediately ordered Pepper into quarantine. He also ordered that Pepper be released under quarantine surveillance.
On 23 October 2012, Mr Andrew McDonald (“Mr McDonald”), Assistant Secretary in the Department and a Quarantine Officer, decided to order Pepper into quarantine at the Applicant’s house and directed that Pepper should be exported. On the same day Mr McDonald signed and sent a letter to the Applicant informing him of the reasons for his decision.
On 25 October 2012, Mr McDonald decided to re-issue the decision made on 23 October 2012 directing that Pepper be exported and that until that occurred he be held in quarantine at the Applicant’s property. The directions made on 25 October 2012 were said by Mr McDonald to supersede the directions of the 23 October 2012.
An updated letter headed, “Statement of Reasons in Relation to the Decision of 25 October 2012” was signed by the decision maker, Mr McDonald, and was provided to the Applicant on or about 10 December 2012.
History of the litigation
These proceedings were commenced on 1 November 2012.
The matter first came before the Court on 6 November 2012. At that hearing various interim matters were attended to and the matter was listed for trial on 1 March 2013.
On 10 January 2013, the Applicant issued a subpoena seeking production of certain documents from the Respondent. The Respondent filed a Notice of Objection to Subpoena.
On 30 January 2013, the time for compliance with the subpoena was extended to 6 February 2013. A further order was made that the Respondent notify the Court and the Applicant of the Respondent’s objections and the basis’ for these objections by 6 February 2013. The trial of 1 March 2013 was vacated and the matter was re-listed for trial on 28 March 2013.
On 8 March 2013, I heard submissions in relation to the objection to the subpoena addressed to the Respondent and reserved my decision.
On 15 March 2013, the matter was brought back for further submissions in relation to the objection to subpoena. The hearing listed for 28 March 2013 was vacated and the matter was re-listed for hearing on 15 May 2013.
On 23 April 2013, the trial date of 15 May 2013 was vacated and the matter was re-listed for hearing on 21 June 2013 at which time, there would be cross-examination of Mr McDonald, the decision-maker. Also on 23 May 2013, I delivered my reasons in relation to the hearing of the objection to subpoena[1]. The matter was then adjourned to 29 May 2013 for orders to be made consistent with the reasons delivered.
[1] See Sekhon v Director of Quarantine [2013] FCCA 331.
On 29 May 2013, orders were made in relation to the objection to subpoena. The matter was adjourned to 21 July 2013 for the commencement of the trial.
The trial commenced on 21 June 2013 on which day Mr McDonald, the decision-maker, was cross-examined on his reasons for decision. The second day of trial was on 2 July 2013 when submissions were put.
Applicant’s claim
The details of the Applicant’s claim and the grounds of the application together with the orders sought are as follows:
“Details of claim
The Applicant is aggrieved by the decision because the decision maker:-
a)Had no jurisdiction to make the decision following Pepper’s release from quarantine at Byford Quarantine Centre, Western Australia, on 9 August 2012.
In the alternative: -
b)Failed to take into consideration the treatment regime for Pepper that had been proposed by Dr David Davies.
c)Erred in concluding that the only alternative to export was an indefinite period of quarantine and erred in then concluding that an indefinite period of quarantine was not ‘in Pepper’s best interests’.
d)Failed to consider the alternative of continued home quarantine until such time as a definite opinion regarding the clearing of the CME infection could be provided.
e)Exercised a discretionary power in accordance with the policy of safeguarding Australia and the animal population from the introduction of CME without having any or any sufficient regard to the merits of the [sic] Pepper’s particular case.
f)Erred in taking into account irrelevant considerations, namely the compromise of the respondent’s reputation, the burden of regulation under cost-recovery, the fact that Singapore was an important trading partner, and the relationship considerations flowing from a perception that Singapore had transmitted an exotic disease to Australia, the perception of liability of the respondent for future treatment and reparation of infected dogs and the obligations of the respondent for procedural fairness and consistency in decision making.
Grounds of application
The decision maker:-
1.Had no jurisdiction to make the decision to export Pepper following Pepper’s release from quarantine at Byford Quarantine Centre in Western Australia into the custody of the Applicant’s father on 9 August 2012.
Particulars
(a)On 24 August 2012 the respondent ordered Pepper Sekhon into quarantine and directed his release on quarantine surveillance.
(b)The basis of that decision was the receipt of information that a blood sample was sent to the North Carolina University requesting PCR analysis for Ehrlichia which returned a positive result.
(c)As the respondent did not cause that blood test to be taken or analysed there was no ‘examination’ and thus the precondition to the operation of section 55A of the Quarantine Act 1908 was not satisfied.
(d)The order into quarantine and release on quarantine surveillance was invalid and without jurisdiction.
(e)On 25 September 2012 a blood sample was taken from Pepper Sekhon and submitted to the Murdoch University Veterinary Hospital by Dr Davies. On 4 October 2012 the respondent was advised that the result was positive for E.Canis/CME.
(f)As the respondent did not ‘cause’ that blood test to be performed the taking of that blood sample and its testing were not relevantly an ‘examination’ for the purposes of section 55A Quarantine Act 1908.
(g)The order into quarantine and the direction to export were invalid and without jurisdiction.
(h)Further, as the order into quarantine and release on quarantine surveillance were without jurisdiction any request of Dr Davies to inform the respondent of the results of any tests performed was unenforceable and without jurisdiction.
In the alternative to ground 1
2.Erred in concluding that the quarantine period would be indefinite and thus took into account an irrelevant consideration, namely that an indefinite period of quarantine was not “in Pepper’s best interests”.
3.Failed to take into account the report of Dr David Davies that treatment of the CME was occurring and that the administration of doxycycline should be continued indefinitely until repeat testing shows that the infection of CME has cleared.
4.Erred in concluding that it was not possible to determine when, or if, Pepper would “cease to be positive” for CME.
5.Failed to consider the alternative of continued home quarantine until such time as a definitive opinion regarding the clearing of the CME infection could be provided.
6.Made the decision without a proper foundation, namely without evidence or sufficient evidence to establish that CME infection was contracted by Pepper outside of Australia.
7.Exercised a discretionary power in accordance with the policy of safeguarding Australia and the animal population from the introduction of CME without having any or any sufficient regard to the merits of the particular case involving Pepper, namely that this policy could be adhered to by continued home quarantine and repeat testing.
8.Erred in taking into account irrelevant considerations, namely the compromise of the respondent’s reputation, the burden of regulation under cost-recovery, the fact that Singapore was an important trading partner, and the relationship considerations flowing from a perception that Singapore had transmitted an exotic disease to Australia, the perception of liability of the respondent for future treatment and reparation of infected dogs and the obligations of the respondent for procedural fairness and consistency in decision making.
Orders sought
1.The Applicant seeks the following orders:-
a)The decision be set aside.
b)A treatment plan for Pepper Sekhon be put in place in accordance with Dr David Davies recommendations in his 31 August 2012 report.
c)That home quarantine continue until such time as a definitive opinion regarding the clearing (or otherwise) of the CME infection can be provided.
d)Such further or other relief as the Honourable Court deems fit.”
The applicable legislation
The Act is the “(c)entral plank of Australia’s quarantine legislation which aims to ensure that Australian quarantine laws reflect the scope and focus of quarantine into the 21st Century”[2]. For the purpose of these proceedings, some of the more relevant provisions of the Act are subs.35(1) and (1AAA), 48(1), 54(2) and 55(A)(1).
[2] Explanatory Memorandum to Quarantine Amendment Bill 1998.
Subsections 35(1) and (1AAA) relevantly provide:
“35 Order to perform quarantine
(1)A quarantine officer may, by order in writing, order into quarantine any … goods (whether subject to quarantine or not), being or likely to be, in his or her opinion, infected with a quarantinable disease or quarantinable pest or a source of infection with a quarantinable disease or quarantinable pest.
…
(1AAA)A quarantine officer may, by order in writing, order into quarantine any goods that, in his or her opinion, are or are likely to be quarantinable pests or quarantinable diseases.”
Section 48(1) relevantly provides:
“48 Goods ordered into quarantine
Power to detain goods
(1)A quarantine officer may direct that goods ordered into quarantine:
(a) are to be detained:
(i)on board the vessel or installation, or at the premises, where they are located at the time the direction is given; and
(ii)in such manner, and for such period, as a quarantine officer determines; or
(b) are to be taken to, and detained at, a quarantine station or other place in such manner, and for such period, as a quarantine officer determines; or
(c) are to be exported from Australia in such manner as a quarantine officer determines.”
Section 54(2) relevantly provides:
“54 Examination of imported animals and plants
…
(2)If, after the examination of an animal under subsection (1), a quarantine officer is of the opinion that the animal is suffering from a disease or is a source of infection of a disease, the officer may order the animal into quarantine.”
Section 55A(1) relevantly provides:
“55A Power to order goods into quarantine
(1)A quarantine officer may:
(a) examine any goods to which this section applies; and
(b) order into quarantine any of the goods that, in the officer’s opinion:
(i)are, or are likely to be, infected with a disease or pest; or
(ii)contain, or appear to contain, any disease or pest; or
(iii)have been exposed to infection from a disease or pest.
(2)This section applies to:
(a) imported animals and plants, whether subject to quarantine or otherwise;
…”
I propose to deal with each ground in turn.
Ground 1 – The decision-maker had no jurisdiction to make the decision to export Pepper following Pepper’s release from quarantine at Byford Quarantine Centre in Western Australia into the custody of the applicant’s father on 9 August 2012
The Applicant submits that the statutory process to be followed by a quarantine officer who has a concern that an imported animal that has been released from quarantine may have a condition that requires it to be put back into quarantine is to be found in s.54 of the Act. They submit that pursuant to that section, the officer must firstly, examine the animal. If as a result of the examination the officer forms the opinion that the animal is suffering from a disease, or is a source of infection of a disease, then the officer may order the animal back into quarantine.
They submit that in the present case, the officer did not ‘examine’ Pepper within the meaning of ‘examine’ defined in s.5 of the Act[3], prior to ordering the dog back into quarantine and that this taints the quarantine officer’s decision. They submit that the test that disclosed the dog’s infection pre-dated its release from quarantine and that there was therefore no examination as required by s.54. As a result, there was no proper opinion formed for the purpose of s.54.
[3] Section 5 relevantly defines ‘examine’ to include: (a) in relation to an animal – carry out tests on, take samples from, or carry out a veterinary procedure on, the animal; (b) …
The Applicant submits that s.55A permits an examination of imported animals, whether or not they are in quarantine. They submit that the examination referred to in 55A is, again, an essential precursor to a quarantine officer exercising the powers allowed by the section. Again, they submit that the quarantine officer purported to order Pepper into quarantine but could not lawfully do so pursuant to s.55A without first undertaking an examination of the animal. They say that the only relevant examination was conducted by MUVH and that this pre-dated the dog’s release from quarantine. They submit further that the preconditions provided for in s.55A(1)(b)(i), (ii) or (iii) could not have been met as there had not been an examination.
The Applicant submits that as a result of these matters, the order into quarantine of 25 October 2012 had no lawful basis, and that it follows from this that the release of the dog under quarantine surveillance was also made without power to do so.
In relation to the Applicant’s ground 1, the Respondent submits that the orders into quarantine made on each of 23 October and 25 October 2012 were valid and were each authorised by s.55A, 54(2) and/or s.35(1).
The Respondent submits that, notwithstanding the intention of the decision maker to act pursuant to s.55A, it is open to the Respondent to rely on any available source of power to support the impugned decision. This submission is clearly correct. In Minister for Urban Affairs and Planning v Rosemont Estates Pty Ltd (1996) 91 LGERA 31 at [85] Cole JA said:
“It is clear law that “a mistake in the source of the power works no invalidity. Validity depends simply on whether a relevant power existed.” “In Brown v West and Another (1990) 169 CLR 195 at 203, Mason CJ, Brennan J, Dean J, Dawson J and Toohey J said:
“…(T)he validity of the Tribunal’s determination is unaffected by mistaking the source of the power to make them.””
The question whether the respondent acted pursuant to ss.55A or 54(2) lawfully in ordering the dog into quarantine on 23 and 25 October 2012, depends on the proper construction to be given to the word “examine” in each of these sections. The Applicant clearly submits that there was no examination. The Respondent submits that the word “examine” should be given a very broad interpretation to include: “(considering) a scientific report prepared by an accredited scientific laboratory which confirmed that samples taken from the dog had been tested according to the Department – approved IFAT test and had been found to be positive for Elrillchia Canis.” If ‘examine’ can be interpreted in this way clearly, this aspect of ss.55A and 54(2) is satisfied.
I do not consider it necessary in this case to determine or identify the outer limits of the concept of “examining” an animal. Subsections 35(1) and/or (1AAA) provide a source of power to order quarantine of the dog and neither subsection require an examination of the dog prior to the determination being made.
I do not agree with the submission put on behalf of the Applicant that the power given to a quarantine office by s.35 should be confined by reference to the restrictions in ss.52, 53, 54 and 55A of the Act. Although these sections each give power to quarantine officers to impose an order for quarantine, in my view, they are all independent sources of power to order quarantine according to the conditions imposed by each of these sections. Pursuant to s.35 no examination of Pepper was required prior to the quarantine officer ordering him into quarantine, and it is with this legislative background, that the decision of Mr McDonald is to be examined.
It follows from the foregoing that on each of 23 and 25 October 2012 prima facie, a valid order into quarantine of the dog was made. It further follows that, at least by 25 October 2012, the precondition for the exercise of the power contained in s.48(1) to direct the export of the dog from Australia existed, and that the direction was not invalid on the basis asserted by the applicant in Ground 1 of the application for judicial review.
Ground 2 - The decision-maker erred in concluding that the quarantine period would be indefinite and thus took into account an irrelevant consideration, namely that an indefinite period of quarantine was not “in Pepper’s best interest”
It was clearly open to the decision-maker to find that Pepper’s quarantine would be indefinite. The applicant has not submitted otherwise. The applicant simply says that any compromise of the dog’s welfare was not a purpose of the Act and should not have been considered in making the decision. For reasons that follow, I do not accept the applicant’s submissions.
The following portion of the respondent’s written submissions correctly describes the approach to this consideration that Mr McDonald should have, and did, adopt:
“…the decision-maker was in a position where it was reasonable to conclude that some action had to be taken to protect Australia from the risks associated with a dog infected with Ehrlichia Canis. The decision-maker thus had to choose between alternative options: export or indefinite detention. The welfare of the dog was as much a relevant consideration in making that choice as the preference of the dog’s owner.
In any decision concerning an animal, the potential or perceived effect of decisions on the welfare on the animal cannot be said to be logically irrelevant to the decision whether or not to require the export of an animal. Except where the statutory context indicates otherwise, a matter that can be seen as rationally bearing on an administrative decision, should not be held to be an “irrelevant consideration”.
The interests of an animal, as perceived by a quarantine officer, cannot be said to be a consideration which is wholly extraneous to the exercise of the powers conferred by ss.48(1), 55A(1), 54(2) and/or 35(1) of the Quarantine Act (nor, on the other hand, is it a matter to which the decision-maker was bound to have regard. It belongs to the intermediate category of considerations that the decision-maker was neither bound to take into account nor prohibited from taking into account).”
This approach by the respondent finds support in the decision of Dean J (as he then was) in Sean Investments Pty Ltd v Mackellar[4], His Honour observed that:
“… it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration, will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.”
[4] (1981) 38 ALR 363 at 375.
The respondent submits that it is a serious error to assume that, in relation to any particular decision, every possible consideration which could be taken into account, is either a “relevant” consideration or an “irrelevant” consideration in the relevant sense. The vast majority of possible considerations will be neither “relevant” nor “irrelevant”. In relation to those matters, it is for the decision-maker to decide whether to take them into account at all and, if so, the importance or weight to be attached to them.
For the above reasons, this ground fails.
Ground 3 – The decision-maker failed to take into account the report of Dr David Davies that treatment of the CME was occurring and that the administration of Doxycycline should be continued indefinitely until repeat testing shows that the infection of CME has cleared
Dr Davies is a veterinarian specialising in canine medicine. He starting seeing Pepper in August 2012 after Pepper was placed on home quarantine under conditions imposed by the Department. In a report from Dr Davies dated 31 August 2012, Dr Davies said that management of Pepper should include the continuation of Doxycycline indefinitely until repeat testing shows that the troublesome injection has cleared. He said also that tick prevention and home quarantine should continue as directed by the Department.
When the decision-maker made the decision of 25 October 2012, he was aware of the statements made by Dr Davies outlined above. The decision-maker’s answer to questions put by counsel for the applicant lead me to the conclusion that Mr McDonald did take Dr Davies’ statements into account. I interpret the following exchange between Mr McDonald and counsel for the applicant to be that Mr McDonald attached no weight to Dr Davies opinion because he accepted that even with the treatment, the infection would not necessarily clear and that treatments were not definitive and reliably effective.
“Ms Fuller:In arriving at your decision that the dog should be exported did you take into account the opinion that Doxycycline should continue indefinitely until repeat testing has shown that infection has cleared, and before you answer that, I don’t mean the fact that there was a treatment strategy in place involving Doxycycline but the opinion of which you were aware that that treatment strategy should continue indefinitely until repeat testing has shown that infection is clear?
Mr McDonald: As an explicit taking into account in terms of the decisions I exercised under the order and the direction, I would say that I did not take it into account.
Ms Fuller:Can you say why you didn’t take that into account, being aware of that opinion?
Mr McDonald: Yes. I didn’t take it into account because of the other advice made available to me which was that the literature, the research literature, suggests that this is a very difficult disease to clear under treatment, and treatments are not definitive in their reliability to be effective.”
A decision-maker is entitled, having considered a matter, to give it no weight at all[5]. Mr McDonald took into account the consideration and gave it no weight.
[5] M22C2 v Minister for Immigration & Citizenship [2013] FCCA 413 at [19] per Whelan J.
For the above reasons, ground 3 fails.
Ground 4 – The decision-maker erred in concluding that it was not possible to determine when, or if, Pepper would “cease to be positive” for CME
This ground of review suggests that the decision-maker made an incorrect finding of fact. On the evidence, a finding that it was not possible to determine when, or if, Pepper would cease to be positive for CME was clearly open to the decision-maker.
This ground is without substance and fails.
Ground 5 – The decision-maker failed to consider the alternative of continued home quarantine until such time as a definitive opinion regarding the clearing of the CME infection could be provided
The evidence before the decision-maker indicated that it was not possible to determine a timeframe within which a “definitive opinion regarding the clearing of the CME infection” could be obtained. In those circumstances, the decision-maker could not be expected to consider the question of continued home quarantine until such time as a definitive opinion was obtained.
It cannot be argued on behalf of the applicant that the decision-maker failed to consider home quarantine. The dog is presently under home quarantine pursuant to a decision of the decision-maker.
This ground fails.
Ground 6 – The decision-maker made the decision without a proper foundation, namely without evidence or sufficient evidence to establish that CME infection was contracted by Pepper outside of Australia
This ground of review depends upon an assumption by the Applicant that the decision to order the dog into quarantine, or the decision to direct that the dog be exported, could only be made if the infection that the dog carried was contracted outside of Australia. There is no basis in either s.48 or s.55A for the implication of a requirement that the infection, or likely infection, of the dog with a disease or pest must have occurred outside Australia. The imposition of such a requirement would be inconsistent with, and would seriously undermine, the purpose of quarantine, and thus the Act.
Section 4 of the Act deals with the measures that can be taken to ensure that quarantine arrangements are effective and indicates that these measures have as their object, “the prevention or control of the introduction, establishment or spread of disease or pests that will or could cause significant damage to human beings, animals, plants, other aspects of the environment or economic activity.”
Ground 6 fails.
Ground 7 – The decision maker exercised a discretionary power in accordance with the policy of safeguarding Australia and the animal population from the introduction of CME without having any or any sufficient regard to the merits of the particular case involving Pepper, namely that this policy could be adhered to by continued home quarantine and repeat testing
There is nothing in the decision-maker’s reasons to suggest that the decision-maker gave insufficient regard to the merits of Pepper continuing on in quarantine and repeat testing and instead to slavishly follow the policy of safeguarding Australia and the animal population from the introduction of CME to the exclusion of all else. The Minute for Decision signed by the decision-maker on 23 October 2013 indicates a thorough examination and analysis of the risk assessment and management options in relation to Pepper. The Minute states:
“For completeness, alternative risk treatment strategies were considered by the department, quarantine and/or quarantine surveillance was identified as the major alternative to export from Australia.”
No criticism can be made of the decision-maker’s consideration of the option of Pepper remaining on continued home quarantine with repeat testing.
Ground 7 fails.
Ground 8 – The decision-maker erred in taking into account irrelevant considerations, namely: (1) the compromise of the respondent’s reputation; (2) the burden of regulation under cost-recovery; (3) the fact that Singapore was an important trading partner, and the relationship considerations flowing from a perception that Singapore had transmitted an exotic disease to Australia; (4) the perception of liability of the respondent for future treatment and reparation of infected dogs; …
This ground of review primarily asserts that the decision-maker erred in taking into account a number of considerations said to be “irrelevant”. The mention by the decision-maker of each of the four topics identified in the ground is explicable on the basis that, although there is no express requirement in ss.35(1), 54(2), 55A(1) or 48(1) of the Act that these matters be considered (ie they were not mandatory considerations) there was no prohibition to those topics being considered by the decision-maker when exercising the discretion.
The Respondent’s written submissions in relation to items 1, 2, 3 and 4 of this ground, provides a helpful and accurate analysis of each of the four topics. I adopt these paragraphs of the Respondent’s submissions as part of my reasons:
“73. An object of quarantine measures under the Act is[6]:
[6] Quarantine Act, s.4(1)(b); Pacific Century Production Pty Ltd v Watson [2001] FCA 1139 at [25] per Kiefel J.
“the prevention or control of the introduction, establishment or spread of diseases or pests that will or could cause significant damage to human beings, animals, plants, other aspects of the environment or economic activities.”
74.It is plain that, in deciding to direct the export of the Dog from Australia, “the dominating, actuating purpose” of the decision-maker was in accordance with the statutory objects of the Quarantine Act.[7] The direction to export was plainly directed to removing or reducing the risks associated with a dog which was infected with an exotic infectious disease being present in Australia. The focus of the Applicant’s attack on the decision is not really directed to the purpose for which the power was exercised, but to the reasons of the decision-maker for favouring a direction to export the Dog rather than a direction to detain the Dog indefinitely.
[7] Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473 per Dixon CJ (McTiernan and Windeyer JJ agreeing).
75.… ss 35(1), 54(2) and 55A(1), and s 48(1) grant discretionary powers in general terms. Certain specific statutory preconditions to the exercise of those powers are specified. However, once the relevant preconditions are met, each of the provisions confers a general discretion to order goods into quarantine (in the case of ss 35(1), 54(2) and 55A(1)) or to direct that goods be exported from Australia (in the case of s 48(1)).
76.These provisions may be contrasted with s 70 of the Quarantine Proclamation which was considered in Director of Animal and Plant Quarantine v Australian Pork Ltd,[8] upon which the Applicant relies. Section 70 expressly required that the Director, when deciding whether to grant an import permit, consider “the level of quarantine risk”, and what conditions would be necessary to limit the level of that risk to one that was “acceptably low”.[9] That express requirement picked up the terms of s 5D of the Quarantine Act. An argument advanced by Australian Pork Ltd was that the decision maker had failed to take into account the mandatory considerations denoted by the incorporation in s 70 of the expression “quarantine risk”.[10] In that context, the Full Federal Court held that “the Director was entitled, and required, to bring together the elements referred to in s 5D in an overall assessment of risk”, and that “this in fact happened”.[11] No argument was advanced to the effect that the Director in that case had taken into account considerations that were irrelevant. It does not follow that, because an assessment of quarantine risk was mandated, other matters could not also lawfully be considered.
[8] (2005) 146 FCR 368.
[9] (2005) 146 FCR 368 at 370 [1].
[10] (2005) 146 FCR 368 at 379 [48] and 384 [71].
[11] (2005) 146 FCR 368 at 386 [78] per Heerey and Lander JJ.
77.Plainly, a quarantine officer who proposes to order goods into quarantine and/or direct the export of goods from Australia may have regard to the considerations referred to in s 5D of the Act, even though there is no express requirement in ss 35(1), 54(2), 55A(1) or 48(1) to make an assessment of “quarantine risk”. In a general sense, the considerations referred to in s 5D are considerations that the decision-maker was bound to consider, because they reflect the purposes of quarantine and of the Quarantine Act. However, the concept of “quarantine risk” itself is not directly imported into any of ss 35(1), 54(2), 55A(1) or 48(1), and there was no requirement that the decision-maker make an assessment of the Dog’s situation by reference to the statutory concept of “quarantine risk”. A fortiori, there was no requirement that such an assessment be the only factor taken into account. The general discretions conferred by ss 35(1), 54(2), 55A(1) and 48(1) are not confined to an assessment of “quarantine risk”.
78.It is clear that the decision-maker was conscious of the considerations identified in s 5D. They were referred to in the Minute for Decision. The risk assessment that was undertaken, and which informed the decision, took into account considerations of that kind,[12] even though, as the decision-maker said in evidence, he “did not assess … the level of quarantine risk as it’s represented … in section 5D”.[13] Unlike in the case of a decision under s 70 of the Quarantine Proclamation, the content of s 5D was not a legislative standard that was required to be applied in making the decisions under consideration.
[12] See Minute for Decision, p 3 {CB152}.
[13] Transcript, p 22, lines 15-16.
79.The Respondent accepts that the risk assessment undertaken in this case, and the decision, did take into account a broader range of factors than those identified in s 5D of the Quarantine Act.
80.In the Respondent’s submission, there was nothing in any of ss 35(1), 54(2), 55A(1) or 48(1) that prohibited the decision-maker taking into account factors beyond those expressly identified in s 5D of the Act.
81.It may be accepted, that, having regard to the objects of the Quarantine Act, the decision-maker was bound to take into account, as “relevant considerations”, the probable harm and probable extent of the harm to human beings, animals, plants, other aspects of the environment or economic activities. However, it does not follow, as the Applicant asserts, that those were the only matters which could lawfully be taken into account in making the decision.[14] The existence of a general statutory object and the conferral of powers in generally pursuit of that object does not dictate that administrative decision-making must be one-dimensional. The conferral of a general discretion (rather than, for example, a duty to direct export if a quarantine officer formed the opinion that the “quarantine risk” was “unacceptably low”) permits of multi-dimensional decision-making, taking into account wider considerations.
[14] See Applicant’s Written Submissions at [47].
82.… The Applicant’s submission that “[f]actors that did not affect the level of quarantine risk but had other consequences (such as cost, welfare or reputational) should not have been taken into account” should be rejected.
83.The difficulty with the Applicant’s submission is particularly stark in relation to the allegedly irrelevant consideration, “cost”. It is submitted that it would be extremely surprising if the cost implications for the Department of administering, or monitoring compliance with, a particular quarantine measure was something which quarantine officers were forbidden by law to take into account in deciding whether to direct the export of an animal. The Federal Court has accepted that “cost considerations” can be regarded as relevant to the exercise of discretionary administrative powers.[15] Likewise, where a consequence flowing from the decision is that the burden of administrative costs is to be borne by another person (here, the Applicant), consideration of that costs burden cannot be said to be extraneous to the exercise of the power. (In any case, there is nothing to suggest that particular weight was given to “the burden of cost recovery”. It was so insignificant that it could materially have affected the decision.)
[15] SBEG v Secretary, Department of Immigration and Citizenship (No 2) (2012) 292 ALR 29 at 57 [113] per Besanko J.
84.A further, significant, difficulty with the Applicant’s position is this. There was, in the present case, no doubt that some action by a quarantine officer was necessary and appropriate for the purposes of controlling the risk posed by the presence in Australia of an animal infected with Ehrlichia canis. The central issue in the decision-making process was whether a direction should be given requiring the export of the Dog from Australia or the detention of the Dog. The decision-maker had to choose between those two alternatives. Assuming that the quarantine risk following export was identical to the quarantine risk flowing from detention (an assumption that is unduly generous to the Applicant’s position), an assessment of the factors affecting quarantine risk itself could never resolve the choice between two alternatives. Some further consideration must necessarily be taken into account to resolve that deadlock. It is implicit in the Applicant’s position that the choice is to be resolved solely by reference to the preference of the owner of the Dog for detention rather than export.
85.In fact, the quarantine risk posed by export is plainly not equal to the quarantine risk posed by detention: the risk associated with export is lower. Therefore, it might well be said that a decision to export the animal would better promote the objects of the Quarantine Act. That is so, even if the policy of the Act can be seen to embrace an “acceptable” level of quarantine risk.
86.There is nothing in the relevant provisions of the Act which dictates that “quarantine risk” was the only consideration that could be taken into account, or that, in the event that the quarantine risk associated with detention was “acceptably low”, the discretion of the decision-maker was expended and he became bound to direct detention rather than export. There is nothing in the Act to suggest that a quarantine officer is obliged to prefer the continued presence of infected animals in Australia to their exclusion from Australia.
87.In the Respondent’s submission, the objects of quarantine and of the Act necessarily informed, but did not wholly dictate, the outcome of the decision-making process. … (I)t was open to the decision-maker to consider other matters that he was not prohibited by law from considering. Those included factors which might weigh in favour of detention (such as the preference of the owner of the Dog), as well as factors that might weigh in favour of export.
88.In the Respondent’s submission, none of the considerations which the Applicant impugns can be said to have been logically irrelevant or wholly extraneous to the decision to be made …
Importance of Singapore as a trading partner and potential effect on Australia’s relationship with Singapore if it were perceived that a disease had been spread to Australia from Singapore
89.This is, in fact, a consideration that can be seen as directly pursuing one of the primary objects of the Act. An object of quarantine measures under the Act is “the prevention or control of the introduction, establishment or spread of diseases or pests that will or could cause significant damage to … economic activities”.[16] A potential negative impact on Australia’s relations with Singapore is a matter that could reasonably be expected to flow from the realisation of the risk of CME becoming established or spreading within Australia. It was not an extraneous consideration which the decision-maker was forbidden by law to take into account.
Reputation of the Department
90.The capacity of the Department effectively to administer the Quarantine Act depends, in no small measure, on the reputation of the Department in the eyes of the community. The maintenance of that reputation plainly conduces to the achievement of the objects of the Quarantine Act.
91.Correspondingly, the administration of the Quarantine Act in such a way as to achieve the statutory object of preventing the establishment or spread of harmful exotic diseases in Australia, serves to enhance and protect the reputation of Australia’s quarantine service. The reputation of the Department is, therefore, intimately and symbiotically connected to the administration of the Quarantine Act, and the exercise of discretions conferred by the Act, in accordance with the public interest.
92.Moreover, the Quarantine Act, like all Commonwealth legislation, is enacted against certain fundamental precepts of government, including the principle of responsible government and Ministerial responsibility. Officers of the Department are accountable to their Minister for decisions that are made: see Public Service Act 1999 (Cth), s 10(1)(e). The realities of responsible government must be recognised as an element that it is not improper for a decision-maker to take into account. Furthermore, s 13(11) of the Public Service Act requires Australian Public Service employees (which includes quarantine officers) at all times to behave in a way that upholds the integrity and good reputation of the Australian Public Service.
93.The potential adverse effect on the reputation of the Department should CME spread was not a consideration that the decision-maker was legally prohibited from taking into account.
[16] Quarantine Act, s 4(1)(b); Pacific Century Production Pty Ltd v Watson [2001] FCA 1139 at [25] per Kiefel J.
Perception of liability of the respondent for future treatment and reparation of infected dogs
94.This consideration is closely related to each of (firstly) the considerations of the cost of administration … (second) “the prevention or control of the introduction, establishment or spread of diseases or pests that will or could cause significant damage to … economic activities”[17] and (lastly) the reputation of the Department and the governmental framework in which the Department is responsible to its Minister The perception of potential liability was a factor which the decision-maker was not prohibited from taking into account as a matter of law.”
[17] Quarantine Act, s 4(1)(b); Pacific Century Production Pty Ltd v Watson [2001] FCA 1139 at [25] per Kiefel J.
For the above reasons, none of these four matters referred to in this ground 8 have merit.
Also in ground 8, the Applicant says that Mr McDonald took into account an irrelevant consideration, namely, the obligations of the Respondent to provide “procedural fairness and consistency in decision-making”.
In the Respondent’s Minute For Decision approved on 22 October 2012, an event identified as one that might result in an adverse outcome is “Inconsistent application of import health requirements, or facilitating exotic disease management on shore”. The Minute also says:
“The department has obligations for procedural fairness and consistency in decision making. Other dogs that have tested positive to this disease are not permitted to be imported to Australia. Other dogs that test positive during post entry animal quarantine have been directed for export.”
It is entirely appropriate that Mr McDonald have proper regard to departmental policies as relevant to the question of whether Pepper should be exported. There is no doubt Mr McDonald understood that these departmental policies were not directly applicable to a dog such as Pepper who had been released from quarantine and was later discovered to be positive to CME.
In my opinion, all of ground 8 fails.
As all grounds of review relied upon by the applicant are without merit, the application for review should be dismissed with costs.
I make the orders to be found at the beginning of the reasons.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Simpson
Associate:
Date: 25 July 2013
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