Tyler v Minister for Agriculture, Food and Fisheries
[2014] SADC 13
•7 February 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
TYLER v MINISTER FOR AGRICULTURE, FOOD AND FISHERIES
[2014] SADC 13
Judgment of His Honour Judge Tilmouth
7 February 2014
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS
Consideration of the meaning and effect of giving 'due weight to the decision appealed against ... and not departing from the decision except for cogent reasons' in s 42E(3) of the District Court Act 1991 (SA).
District Court Act 1991 (SA) s 42(E)(3), s 42F, s 42F(c), s 42(G); Klement v Commissioner for Consumer Affairs [2011] SADC 111; Sellars v South Australian Police [2012] SADC 9, referred to.
Registrar of the Veterinary Surgeons Board of SA v Mooney [2009] SADC 62, applied.
McInerney v South Australian Metropolitan Fire Services (No 2) [2011] SADC 85, not followed.
HEALTH LAW - ADMINISTRATION OF PUBLIC HEALTH SYSTEM - APPLICATION OF LEGISLATION
The appellants run a dairy farming business on which they produce milk for human consumption. A determination was made, upheld on review by a Delegate of the Minister, that this involved the production and sale of milk without the required accreditation pursuant to s 12 of the Primary Production (Food Safety Schemes) Act 2004 (SA). The Delegate found the process of filtering and bottling milk amounted to 'the production of milk ... for further processing for human consumption' within the meaning of Standard 4.2.4 of the Food Standards Code.
Held:
1. The Delegate erred in considering the process of filtering and bottling milk amounted to 'further processing for human consumption ' within the meanding of the Code.
2. As s 8(1)(c) of the Primary Production (Food Safety Schemes) Act 2004 (SA) includes 'refrigeration' in the definition of production of primary produce', the Delegate erred in failing to take that attribute into account.
3. The appeal should therefore be allowed and remitted for further consideration.
Primary Produce (Food Safety Schemes) Act 2004 (SA) s 3, s 7, s 8(1), s 9, s 11, 12, s 31(1), s 31(2), s 31(3), s 33(1)(3), s 34(1), s 36, s 46; Dairy Industry Act 1992 (SA); Meat Hygiene Act 1994 (SA); Food Safety Standards Regulations reg 3(1), reg 15; Food Standards Code standard 4.2.4; Food Act 2001 (SA) s 4, s 6, s 7(1), s 21, referred to.
TYLER v MINISTER FOR AGRICULTURE, FOOD AND FISHERIES
[2014] SADC 13The issues
The appellants Mr and Mrs Tyler operate a dairy farm on Victor Harbour Road at Willunga Hill, near the McLaren Vale. They produce milk which remains unprocessed, in the sense that it is not pasteurised or homogenised. It was this circumstance which led to a determination by a delegate of the Minister for Agriculture, Food and Fisheries, that they were operating a dairy primary production business which required accreditation, pursuant to s 12 of the Primary Produce (Food Safety Schemes) Act 2004 (SA) (‘FSS Act’). It is common ground that they are not so accredited. As a consequence a notice dated 24 June 2013 was served requiring them to ‘cease production, sale, distribution or disposal of milk to any other person for human consumption’, until they obtain such accreditation.[1] It is from this decision that they appeal to this court.[2]
[1] AB 1-2.
[2] AB 13.
Procedure
The power to require compliance with such a notice derives from s 31 of the FSS Act. Sections 31(1) and (2) of the FSS Act provide:
31—Power to require compliance with legislative requirements
(1)If an authorised person reasonably suspects that, in the course of an activity to which a food safety scheme applies, a producer has contravened or is contravening legislative requirements, the authorised person may, by written notice to the producer—
(a)require specified action to be taken within a specified time to rectify the contravention; or
(b)require specified action to be taken within a specified time to ensure compliance with the legislative requirements; or
(c)prohibit the use of specified premises, vehicles, plant or equipment for or in connection with the production of primary produce until the legislative requirements are complied with.
(2)An authorised person may vary a requirement or prohibition imposed under this section by further written notice to the producer.
The expression ‘legislative requirements’ is defined in s 31(3) thereof, to include ‘conditions of accreditation and requirements of a food safety scheme or approved food safety arrangement’. Such a scheme was established by regulation with respect to dairy milk, as will appear.
A person whose interests are affected by a decision to require compliance with a food safety scheme, has the right to apply to the Minister to review the decision: s 33(1)(3) FSS Act. The Tylers sought such a review following the receipt of the notice requiring them to cease production and sale whilst not accredited.[3] On 21 June 2013 the Minister delegated to a senior legal practitioner, the powers and functions of the Minister under s 33, pursuant to the capacity of the Minister to so delegate conferred by s 36 of the FSS Act. The review was completed on 24 June 2013 and the resultant determination made under s 33 on the same day.
[3] AB 20-21.
The Tyler’s entitlement to appeal to the Administrative and Disciplinary Division of the District Court is furnished by s 34(1) of the FSS Act. Otherwise the FSS Act is silent as to the procedure and disposition of such appeals. As a consequence, the ‘default’ provisions relating to administrative appeals contained in the District Court Act 1991 (SA) apply. In particular s 42(E)(3) provides:
The Court must, on an appeal, give due weight to the decision being appealed against and the reason for it and not depart from the decision except for cogent reasons.
The adjective ‘cogent’ therein describes an argument or reason clearly expressed and persuasive, compelling or convincing. Of this expression I concluded in Registrar of the Veterinary Surgeons Board of SA v Mooney:[4]
Obviously then, something more than mere disagreement with the decision below is required. Likewise unconstrained merits review would not be authorised. However providing “cogent reason” exists, the power to interfere is engaged. There is no threshold requirement to detect error, or to conclude the decision below was “unreasonable or plainly unjust … or that … a substantial wrong has in fact occurred”: House v The King,[5] before intervention is justified. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[6] Brennan J suggested on example of a cogent reason was when a decision would “work an injustice in a particular case”.
[4] [2009] SADC 62, [27], refer also to Klement v Commissioner for Consumer Affairs [2011] SADC 111, [43], Sellars v South Australian Police [2012] SADC 9, [9].
[5] (1936) 55 CLR 499 at 505.
[6] (1979) 2 ALD 634.
Legislative and regulatory scheme
The FSS Act, the bulk of which came into effect on 1 August 2005,[7] effected a repeal of the Dairy Industry Act 1992 (SA) and the Meat Hygiene Act 1994 (SA). It formed part of a legislative package intended to establish food safety schemes designed to ensure the safety and suitability of food for human consumption in this State. This objective is enshrined in s 9 thereof:
Division 3—Object
9—Object
The object of this Act is to develop food safety schemes for primary industries that reduce risks to consumers and primary industry markets associated with unsafe or unsuitable primary produce.
‘Primary produce’ is defined in the FSS Act in this way:
[7] SA Government Gazette 14.7.2005 P2381.
7—Primary produce
In this Act, primary produce is—
(a)an animal, plant or other organism, or part of an animal, plant or other organism, intended for consumption by humans or pets; or
(b)food produced in the production of primary produce.
An extensive definition of the ‘production of primary produce’ is furnished by s 8(1) of the FSS Act, in relevant respects as follows:
In this Act, production of primary produce includes the following:
(a)the growing, raising, cultivation, picking, harvesting, collection or catching of primary produce;
…
(c)the freezing, packing, refrigeration, storage, treating or washing of primary produce;
(d)the pasteurisation or homogenisation of milk, or manufacturing of other dairy produce;
…
(g)the transportation, delivery or handling of primary produce;
…
(i)any other activity prescribed by regulation.
Since s 3 of the FFS Act defines ‘dairy produce’ as including ‘milk derived from a cow’, the collection, refrigeration, storage and transportation of milk from dairy cows for instance, therefore amount to the ‘production of primary produce’ within the meaning of s 8(1). On the face of it, such activities as filtering and bottling milk would not come within s 8(1). The significance of this observation will emerge later.
From here it becomes necessary to refer to the more complex Primary Produce (Food Safety Schemes) (Dairy Industry) Regulations 2005 (SA) (‘FSS Regulations’). Section 11 of the FSS Act authorises the Governor to make regulations establishing a food safety scheme for a class of activities involved in the production of primary produce, and s 46 thereof further authorises the Governor to make regulations ‘as are contemplated by, or as are necessary or expedient for the purposes of this Act’, including incorporation of a ‘code or standard’ under s 46(b). Regulation 6 thereof establishes a ‘food safety scheme’ with respect to the following classes of activities relevant to this case, namely:
(a) carrying on a dairy primary production business;
(b) carrying on a dairy processing business;
(c) carrying on a dairy transport business.
Immediately thereafter the definition of ‘dairy primary production business’ is defined as ‘a business, enterprise or activity that involves dairy primary production’. ‘Dairy processing’ is then defined to include ‘the manufacture of dairy products’.
Regulation 3(1) of the FSS Regulations proceeds to give a ‘dairy primary production business’ and a ‘dairy processing business’ the same meaning as in Standard 4.2.4 of the Food Standards Code (‘FS Code’). Hence the FSS Regulations serve to incorporate by reference the FS Code as the applicable food safety scheme with respect to dairy milk production, as contemplated by s 11 and s 46(6) of the FFS Act.
The FS Code gains further recognition under s 4 of the Food Act 2001 (SA):
Food Standards Code means the Australian New Zealand Food Standard Code as defined in the Australian New Zealand Food Authority Act 1991 of the Commonwealth, as adopted or incorporated by the regulations.
Clause 1(2) in Division 1 of Standard 4.2.4 of the FS Code defines ‘dairy primary production’ to mean:
the production of milk or colostrum for further processing for human consumption and includes the keeping, grazing, feeding and milking of animals and the storage of milk on the premises at which the animals were milked.
Clause 1 in Standard 2.5.1 earlier defines ‘milk’ as meaning ‘the mammary secretion of milking animals’, and then proceeds to define a ‘dairy production business’ as meaning ‘a business, enterprise or activity that involves dairy primary production’. On the basis of the above definitions the Tylers are clearly engaged in conducting a primary production business.
Regulation 15 of the FSS Regulations provides that ‘a person must not engage in a class of activities to which the dairy industry food safety scheme applies without an accreditation’. Furthermore it is an offence punishable by heavy fines under s 21 of the Food Act to infringe:
… any requirement imposed … by a provision of the Food Standards Code in relation to the conduct of a food business or to food intended for sale or food for sale.
It might be further noted, that a ‘food business’ is defined in s 6 of the Food Act in this way:
In this Act—
food business means a business, enterprise or activity (other than a business, enterprise or activity that is primary food production) that involves—
(a)the handling of food intended for sale; or
(b)the sale of food …
Section 7(1) of the Food Act, proceeds to define ‘primary food production’ for the purposes of that Act as ‘the growing, raising, cultivation, picking, harvesting, collection or catching of food,’ including the transportation or delivery of food, packing, treating (for example washing) and the storage of food amongst other things. It can be seen that although the FSS Regulations incorporate the FS Code into the food safety scheme, the definitions of ‘food business’ and ‘primary food, production’ are confined to the Food Act itself.
Returning to the FS Code, the requirements for processing milk are provided for quite separately in Division 4 of Standard 4.2.4 entitled ‘dairy processing’. Clause 15 therein relates to ‘processing of milk and dairy products’. It requires that milk must be pasteurized in the manner referred to therein. To summarise, this process entails heating the raw dairy milk so as to have a ‘lethal effect on any pathogenic micro-organisms in the milk’, and then immediately ‘cooling in a way that ensures that the growth of microbiological hazards in the milk is prevented or reduced’.
The underlying facts
The Tylers run some 30 cows on their dairy. They have established a scheme designed to enable them to supply unpasteurised milk to those who want it. A brochure distributed by them (later amended), explains their point of view that pasteurisation destroys enzymes and kills bacteria in milk.[8] No doubt many people in the community share those views. Manifestly Government does not, because of the compulsory requirement for the pasteurisation of milk under the food safety scheme, outlined above. The pamphlet suggests ‘the only legal way that you can consume Real milk is to drink milk from your own cow’.
[8] AB 22-23.
With this purpose in mind, the Tylers established what is described as their ‘shared house cow program’ in order, as they have expressed it, to furnish the opportunity to ‘legally consume real milk’. They have divided ownership of each cow into 100 shares, entitling each share owner to one per cent of the milk that cow produces. This averages at approximately 1.5 litres per share, per week. Each share initially cost $27.50, but there was an additional boarding fee of $7.50 per month to cover the costs and maintenance of the cow, including ‘feeding, health treatments, milking costs, dairy shed and milking machine maintenance, electricity, refrigeration, water supply and effluent disposal’.
The decision of the delegate
With this unavoidably convoluted examination of the food safety scheme relating to dairy milk, it is now possible to direct attention to the determination under appeal. There is no dispute that milk produced by the appellants is ultimately destined for human consumption,[9] or that the production of that milk amounts to the production of ‘primary produce’ for human consumption as so defined.
[9] AB 22-23, 27, 29.
As the arguments developed during the appeal, the focus became whether by engaging in the processes of filtering, bottling and possibly refrigerating milk, the Tylers fell within the proscription requiring accreditation. As we have seen, the various definitions quoted earlier in the Food Act do not assist as they are not incorporated into the food safety scheme by the FFS Act. That drives the inquiry back to a consideration of the requirements of the food safety scheme itself.
The delegate made the following specific findings of fact, not challenged by the Tylers on appeal:[10]
17. It appears from the information which I have been provided that the activities undertaken by the Tylers entail:
·the keeping, grazing and feeding of cows;
·the milking of cows;
·the collection of milk from the number of cows and storage of that milk on the premises;
·the filtering of the milk for the removal of foreign matters;
·the placing of the milk in bottles for subsequent collection by consumers;
·the refrigeration of the milk.
[10] AB 5.
Based on these considerations, the delegate reached this conclusion:[11]
19.In my view the collective treatment of the milk as set out in paragraph 17 above involves the “further processing for human consumption” of that milk. Whilst these processes do not change the nature of the milk itself, it is still subjected to a process or processes, being a process of filtration and a process of bottling, with the ultimate end and intention of it being made available for human consumption.
The passage italicised by the delegate clearly comes from the definition of ‘dairy primary production’ contained in standard 4.2.4 of the FS Code.
[11] AB 5 emphasis supplied by the Delegate.
The appeal
The case centres upon the proper construction of the food safety scheme established with respect to the primary production of milk by a dairy primary production business. There is no doubt that dairy production for human consumption was carried out, and there is no doubt that a dairy primary production business was involved, since the Tylers were conducting such a ‘business’ within the meaning of Clause 1(2) of Standard 4.2.4 of the FS Code. Their position was that the food safety scheme did not require the milk produced by them to be pasteurised. The submission of Mr Tyler on their joint behalf (they were self-represented) was that they did not produce the milk ‘for further processing’ and therefore fell outside the obligation to pasteurise. Hence they did not require accreditation. Whereas the submission for the Minister was that activities such as filtering, bottling, and for that matter refrigerating milk, amount to production of primary produce for human consumption, thus requiring accreditation. It was the processes of filtration and bottling that the delegate clearly considered amounted to ‘further processing for human consumption’ of the milk for this purpose, within the meaning of Standard 4.2.4 of the FS Code.[12]
[12] Reasons paras 13, 16-19, AB 4-5.
Analysis of processing issue
The ultimate question then is whether any of the attributes of the business identified by the delegate in paragraph 17 of his reasons, fall within the meaning of ‘dairy primary production … for further processing for human consumption’ so as to complete the liability for accreditation. It was put by counsel for the Minister that the decision of the delegate stood to be upheld if his conclusion was ‘reasonably open’. With due respect to counsel and the authority to which he referred in support,[13] that submission cannot be accepted for two reasons. First, the statutory remit to trigger appellate departure arises upon the establishment of ‘cogent reasons’, as the cases cited above demonstrate. The second is that a question of construction of the food safety scheme is involved here. That is a question of law, namely whether a proven state of affairs amounts to proscribed conduct or otherwise.
[13] McInerney v South Australian Metropolitan Fire Services (No 2) [2011] SADC 85.
This returns us inevitably to Standard 4.2.4 of the FS Code. The various definitions quoted earlier are somewhat tautologous. Dairy primary production bears the primary meaning of ‘the production of milk or colostrum for further processing for human consumption’. It includes ‘keeping, grazing, feeding and milking of animals and the storage of milk on the premises at which the animals were milked’. The expression ‘for further processing’ is not, in contrast, defined or further elaborated. Since the inclusions relate to the milk production, ‘further processing’ must be referrable to something other than ‘the keeping, grazing, feeding, milking and storage’. Moreover processing milk is dealt with quite separately from producing milk by the FS Code. No doubt the Tylers are engaged in dairy primary production because they kept, grazed and fed dairy cows and they stored the milk on the dairy. The milk was clearly intended for human consumption.
The delegate considered that because the Tylers filtered and bottled the milk they were engaged in dairy primary production. The processes of filtration and bottling are not referred to in the regulatory scheme for this purpose. Counsel for the Minister adds that they also refrigerated milk as a further attribute of ‘further processing’. The process of ‘refrigeration’ is on the other hand, one attribute of the ‘production of primary produce’, referred to in s 8(1)(c) of the FSS Act.
The FS Code defines ‘dairy processing’ as including ‘the manufacture of dairy products’. It defers the reader to the Macquarie Dictionary in cases of ambiguity. That Dictionary contains a number of definitions of ‘process’ capable of supporting both constructions.[14] These include:
[14] At p.1, 323, 2011 edition.
1. a systematic series of actions directed at some end,
2. a continuous action operational series of changes taking place in a definite manner;
…
11. to treat or prepare by some particular process as in manufacturing;
12.to convert (an agricultural commodity) into marketable form by some special process.
…
16.prepared or modified by an artificial process.
As a matter of ordinary English language, the Tylers would not have engaged in any relevant sense in processing milk, because no conversion or change in the milk takes place, as there would be if pasteurisation or homogenisation had occurred.
In essence the submission for the Tylers was that processing requires something more than the mere filtration or bottling, or for that matter refrigeration. They contend a change in the milk such as by pasteurisation or homogenisation is necessary, so that activities as those just mentioned which do not change or modify milk, do not amount to ‘further processing’ in any relevant sense.
Mr Tyler referred to a number of extrinsic materials to support that submission. One was ‘A Guide to Standard 4.2.4 Primary Production and Processing Standards for Dairy Products’ issued in January 2008 by Food Standards Australia New Zealand, self-evidently merely a guide to ‘enforcement officers seeking further clarification of definitions or requirements in the Code’.[15] Mr Tyler pointed in particular to page 15 which contains the following commentary, after quoting in full the definition of ‘dairy primary production’ contained in Standard 4.2.4 of the FS Code:
This clarifies the nature of a dairy primary production business and the activities covered by the operation of that business. The intent is that all activities involved in dairy primary production operations are covered by the standard. This covers farm management practices in relation to animal husbandry (keeping), pasture management (grazing) and stock feed supply (feeding), as well as all activities undertaken during the milk or colostrums collection and storage operations.
These guidelines rather tend to compound rather than resolve the ambiguity in Standard 4.2.4. In any case they are not the kinds of extrinsic materials the court is entitled to resort to when considering the proper interpretation of the food safety scheme.
[15] Appellant’s additional documents, Tab 4.
As noted already, the quote from paragraph 19 of the Delegate’s reasons ‘further processing for human consumption’, comes directly from the definition of ‘dairy primary production’ contained in standard 4.2.4 of the FS Code. The Tylers had no intention of processing the milk by pasteurisation or by any other means and the recipients of the milk had no desire that it be pasteurised either. The expression ‘further processing’ can only sensibly be referrable to pasteurisation described in clause 15 of Standard 4.2.4 of the FS Code, or some other like process that invokes a systematic or continuous treatment of the milk so as to convert it into marketable form.
The delegate considered the processes of ‘filtering’ and ‘bottling’ necessarily meant the appellants were ‘further processing milk’. However those physical activities of dairy primary production fall outside the ambit of ‘further processing’ and they are otherwise not defined in the FS Code. Those processes also fall outside the definition of ‘production of primary produce’ contained in s 8(1) of the FSS Act. The Delegate therefore fell into error by regarding filtration and bottling as amounting to ‘further processing’ within the meaning of Standard 4.2.4 of the FS Code.
On the other hand, the process of refrigerating milk, which the Tylers do as the Delegate found, does fall within s 8(1)(c) of the FSS Act, so they are caught to that extent by the statutory definition of ‘production of primary produce’. Accordingly he failed to have regard to the process of refrigeration to the extent that it came within the definition of s 8(1)(c) of the FSS Act and as that may impinge upon that application of standard 4.2.4, and hence whether that did, or did not, entail ‘the production of milk…for further processing’. As a question of law, there is necessarily ‘cogent reason’ to depart from the decision of the Delegate on account of both errors.
Disposition
The question then becomes what is the appropriate course for disposition of the appeal? Pursuant to s 42F of the District Court Act, the court may ‘affirm the decision, rescind and substitute a decision that the court considers appropriate’, or remit with appropriate directions or recommendations. The core function of the Delegate under s 3(1) of the FSS Act was to review whether or not the Tylers required accreditation of their dairy production business on account of the reasonable suspicion that they acted ‘in the course of an activity to which a food safety scheme applies’ and thereby contravened the ‘legislative requirements’ of the FSS Act. As has been demonstrated, the Tylers are not in breach of the food safety scheme, because they are not engaged in the production of milk for ‘further processing’ for human consumption on account of filtering and bottling milk. Nevertheless they fall within the definition of undertaking the ‘production of primary produce’ as defined in s 8(1)(c) of the FSS Act, because they refrigerate milk. Since the Delegate failed to consider that issue and because the consequence thereof was not argued on appeal, it is appropriate to remit the matter for further consideration.
Pursuant to s 42F(c) of the District Court Act, the court is directed to remit the matter to the ‘original decision-maker’. That was the Minister in this instance. Accordingly I propose the matter be remitted to the Minister for further consideration. However as the parties have not addressed that issue, they should have the opportunity to speak the merits of that course before a final order is made.
It should be explained that the within conclusions bespeak no view, one way or the other, of the merits of pasteurisation of milk, or of the Government’s resolve to mandate it. These are political issues to be resolved in the political area. They are not issues justiciable in the courts. Nor has the court found the need to peruse the sealed confidential minutes of the Dairy Authority of South Australia produced by counsel for the respondent under subpoena. The administration of the FSS Act is one thing, the proper interpretation of the food safety scheme as a matter of law, is quite another.
Conclusion and orders
For the above reasons the Delegate erred in considering the process of filtering and bottling milk amounted to ‘further processing’ for human consumption within the meaning of Standard 4.2.4 of the Food Standards Code and in failing to consider the implications of the finding that the appellants refrigerated milk. The decision of the Delegate is rescinded. The question of remission stands for further submissions. There will be no order as to costs pursuant to s 42G of the District Court Act.
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