World Wide Fund for Nature Australia and Australian Pesticides and Veterinary Medicines Authority

[2013] AATA 329

[2013] AATA 329

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1284
Re	World Wide Fund for Nature Australia
APPLICANT
And	Australian Pesticides and Veterinary Medicines Authority
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	22 May 2013
Place	Brisbane

The application is dismissed for want of jurisdiction.

.........................[Sgd]...............................................

Deputy President PE Hack SC

CATCHWORDS

PRACTICE AND PROCEDURE – JURISDICTION – Tribunal’s powers on review cannot exceed powers of original decision-maker – decision not within terms of enactment – no decision constituted by refusal to do act or thing – no jurisdiction – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), ss 3(3), 43(1)
Agricultural and Veterinary Chemicals Code Act 1994 (Cth), ss 31(1), 34(5), 167(1)(e), 167(1)(f), 167(4),
Agricultural and Veterinary Chemicals Code Regulations 1995 (Cth), regs 17, 22

CASES

Attorney-General (Cth) v Queensland (1990) 25 FCR 125
Certain Lloyd’s Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 87 ALJR 131; [2012] HCA 56
Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422
Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533; [2000] FCA 240

REASONS FOR DECISION

Deputy President PE Hack SC

Introduction

1. The respondent, the Australian Pesticides and Veterinary Medicines Authority (the Authority), is charged with the evaluation, registration and control of the manufacture and supply of agricultural and veterinary chemical products.  The Authority derives its powers from the Agricultural and Veterinary Chemicals Code (Cth) (the Code), which constitutes a Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 (Cth).

2. Commencing in 2002 the Authority, in discharge of its statutory functions, undertook a review of the use in agriculture of products that have the chemical diuron as an active ingredient.  Diuron is a commonly used herbicide for weed control in a variety of agricultural settings in this country.  In November 2012 the Authority published the results of its review in a report.  The conclusions of the report were given effect to by a decision of the Chief Executive Officer of the Authority, Dr Eva Bennet-Jenkins, made on 23 November 2012. That decision was made by Dr Bennet-Jenkins noting her approval of a “decision minute” that set out various decisions recommended to her by officials in the Authority.

3. The applicant, the World Wide Fund for Nature, Australia (the Fund), has a concern about the impact of diuron products on the environment, particularly on catchment lands adjoining the Great Barrier Reef.  As I understand its position, the Fund would argue that diuron products ought not be allowed to be used on sugarcane farms in areas where rainwater run-off might affect the Reef and its ecosystem.

4. The Fund has made an application to review some aspects of the decision of Dr Bennet-Jenkins.  But the Authority contends that the aspects of the decision that the Fund wishes to have reviewed are not capable of being reviewed; it says that the Tribunal lacks jurisdiction to review decisions of that nature. For the reasons that follow, I have come to the conclusion that the Authority is correct and that the Tribunal does not have jurisdiction to review those parts of the decision complained of by the Fund.

   The legislative setting

5. Some reference to the statutory setting is necessary at the outset.  The Code is the product of an agreement between the Commonwealth, the States and the Territories to create a National Registration System for agricultural and veterinary chemical products.  Expressed broadly, the Commonwealth controls the manufacture and supply of chemical products; the States and Territories control their use. The term “agricultural chemical product” is defined in s 4 of the Code in a manner that undoubtedly includes herbicides. 

6. Part 2 of the Code is headed “Approvals and registration”. The operation of that Part is explained by s 9 in these terms:

   (1)This Part contains provisions relating to:

   (a)the approval of active constituents for proposed or existing chemical products; and

   (b)the registration of chemical products; and

   (c)the approval of labels for containers for chemical products.

   (2)Division 2 deals with the giving of approvals and the granting of registrations.

   (2A)Division 2A deals with applications to vary a relevant particular if the relevant particular is of a kind set out in a legislative instrument made by the APVMA for the purposes of section 26A.

   (3)Division 3 deals with applications to vary approvals or registrations or to vary the conditions of any approvals or registrations.

   (4)Division 4 provides for the APVMA to reconsider approvals and registrations for the purpose of deciding whether or not they should remain in force.

   (5)Division 5 sets out the circumstances in which the APVMA may suspend or cancel approvals or registrations.

   (6)Division 6 states how long approvals and registrations are to continue in force and makes provision for their renewal.

   (7)Division 7 provides for the APVMA to publish notices telling the public of actions that it has taken under this Part.

7. Division 2 of Part 2 contemplates the making of applications to the Authority,

   (a)for approval of an active constituent for a proposed or existing chemical product; or

   (b)for registration of a chemical product; or

   (c)for approval of a label for containers for a chemical product.[1]

   [1]           See s 10 of the Code.

   If the Authority is satisfied of all of the matters referred to in s 14(3) of the Code it must grant an application; if not so satisfied it must refuse the application. The matters referred to in s 14(3) of the Code are these:

   (3)The matters referred to in subsection (1) are the following:

   (a)that the applicant has complied with subsection 11(1);

   (b) that any requirement made under section 157 or 159 has been complied with;

   (c)that, if necessary, section 158 has been complied with;

   (ca)that, if necessary, paragraph 8A(2)(a) of the Agricultural and Veterinary Chemicals (Administration) Act 1992 has been complied with;

   (d)that any requirements prescribed by the regulations in relation to the constituent, product or label, as the case may be, have been complied with;

   (e)if the application is for approval of an active constituent or registration of a chemical product—that the use of the constituent or product in accordance with the instructions for its use that the APVMA has approved or approves:

   (i)would not be an undue hazard to the safety of people exposed to it during its handling or people using anything containing its residues; and

   (ii)would not be likely to have an effect that is harmful to human beings; and

   (iii)would not be likely to have an unintended effect that is harmful to animals, plants or things or to the environment; and

   (iv)would not unduly prejudice trade or commerce between Australia and places outside Australia;

   (f)if the application is for registration of a chemical product—that the use of the product in accordance with the instructions for its use that the APVMA has approved or approves would be effective according to criteria determined by the APVMA for the product;

   (g)if the application is for approval of a label for containers for a chemical product—that the label will contain adequate instructions relating to such of the following as are appropriate:

   (i)the circumstances in which the product should be used;

   (ii)how the product should be used;

   (iii)the times when the product should be used;

   (iv)the frequency of the use of the product;

   (v)the withholding period after the use of the product;

   (vi)the re‑entry period after the use of the product;

   (vii)the disposal of the product when it is no longer required;

   (viii)the disposal of containers of the product;

   (ix)the safe handling of the product and first aid in the event of an accident caused by the handling of the product;

   (x)any other matters prescribed by the regulations;

   (h)that the fee (if any) prescribed in respect of the approval or registration, and any other amount (including an amount in respect of a tax or penalty) that is payable (whether by the applicant or by any other person) to the APVMA in respect of the product under this Code or any other law in force in this or any other jurisdiction, have been paid.

   Further definition is given by s 3 to the term “adequate” where used in s 14 (3)(g) in the context of “adequate instruction” on labels. It is not necessary, in the present debate, to have regard to that further definition. 

8. The scheme of the Code is such that the Authority must not grant an application for registration of a chemical product i.e. an agricultural chemical product or a veterinary chemical product, unless it grants, or has already granted, an application for approval of each of the active constituents of the product and grants approval of a label for containers for the product[2].  The Authority may impose appropriate conditions on the approval of an active constituent or on the registration of a chemical product[3].  Where the Authority approves the use of a label that approval is, by s 23A(1)(a) of the Code, subject to the conditions prescribed by the regulations.  Additionally, the Authority may impose conditions as it considers appropriate on the approval of a label for containers for a chemical product[4].

   [2] See s 15 of the Code

   [3]           See s 23 of the Code.

   [4]           See s 23A(2) of the Code

9. A decision by the Authority to approve the use of an active constituent or a chemical product is recorded by giving the constituent or product a distinguishing number and recording “relevant particulars”[5]. Approval of a label is effected in the manner set out in s 21 in these terms:

   [5]           See ss 19 and 20 of the Code

   (1) If the APVMA decides to approve a label for containers for a chemical product, the APVMA must give a distinguishing number to, and approve, the label in accordance with subsection (2), either unconditionally or subject to conditions as mentioned in section 23A.

   (2)Approval of a label takes place by:

   (a)determining the particulars, prescribed by the regulations, that are appropriate to be contained on the label; and

   (b)giving a distinguishing number to the label; and

   (c)recording the following information in the relevant APVMA file:

   (i)the distinguishing number;

   (ii)the adequate instructions and any particulars that are to be contained on the label; and

   (d)recording any conditions imposed on the approval by the APVMA under subsection 23A(2) in the relevant APVMA file.

10. Regulation 17 of the Agricultural and Veterinary Chemicals Code Regulations 1995 (Cth) prescribes the following particulars for the purposes of s 21(2)(a) of the Code:

    (a)the appropriate signal words required by the current Poisons Standard;

    (b)the name of the chemical product;

    (c)the name of each active constituent of the product;

    (d)the proportion of each active constituent of the product;

    (e)the name of each constituent for the product that is:

    (i)not an active constituent; and

    (ii)classified as a poison in the current Poisons Standard;

    (f)the proportion of each constituent referred to in paragraph (e);

    (g)the name and address of the person who is primarily responsible for marketing the product;

    (h)the net contents of the product;

    (i)the distinguishing number of the label for the product (including a distinguishing number given to the label under paragraph 178 (2) (a) of the Code);

    (j)particulars determined by the APVMA under subregulation (2).

11. Division 4 of Part 2 of the Code permits the Authority to reconsider an existing approval or registration.  By virtue of s 31 of the Code, it may reconsider,

    (a)the approval of an active constituent for a proposed or existing chemical product; or

    (b)the registration of a chemical product; or

    (c)the approval of a label for containers for a chemical product.

    The report of November 2012 and the decision of 23 November 2012 are the end product of the Authority’s reconsideration power.

12. Section 34 of the Code describes the available outcomes of reconsideration by the Authority. The Authority may, if satisfied of the matters set out in s 34(1) of the Code, affirm the approval or registration. If it is not so satisfied, the Authority must consider its  power to vary, contained in s 34(5) of the Code in these terms:

    (5)If the APVMA is satisfied that the relevant particulars or the conditions of the approval or registration can be varied in such a way that the requirements prescribed by the regulations for continued approval or registration will be complied with:

    (a)the APVMA must vary the relevant particulars or conditions:

    (i)if the variation relates to the relevant particulars or the conditions of the approval of a constituent or the registration of a product—by entering in the relevant Record or Register particulars of the variation and the date on which the entry is made; or

    (ii)if the variation relates to the relevant particulars of the approval of a label—by recording in the relevant APVMA file the relevant particulars as varied and the date on which the record is made; or

    (iii)if the variation relates to the conditions of the approval of a label—by recording in the relevant APVMA file particulars of the variation and the date on which the record is made; and

    (b)the APVMA must:

    (i)state in the notice referred to in subsection (4) that, although it is not satisfied as mentioned in subsection (1), it is satisfied that the relevant particulars or the conditions can be so varied and has varied them accordingly; and

    (ii)set out in the notice details of the variation.

    The requirements for continued approval of a label are prescribed in regulation 22 of the Agricultural and Veterinary Chemicals Code Regulations as follows:

    For paragraph 32 (1) (aa) and subsection 34 (5) of the Code, the requirements for the continued approval of a label are:

    (a) that the instructions contained on the label, for the matters set out in paragraph 14 (3) (g) of the Code that the APVMA thinks are appropriate for reconsideration, are adequate; and

    (b) that the particulars contained on the label for regulation 17 are adequate; and

    (c) that the label is subject to appropriate conditions.

13. Section 34(8) of the Code, read with s 40, has the effect that approval or registration must be suspended or cancelled if the Authority is not satisfied that the conditions of the approval or registration can be varied.

14. Part 10 of the Code deals with, amongst other things, the mechanism for review of decisions of the Authority.  There is provision in certain circumstances to request reconsideration but the parties agree that it has no present application, the decision having been made by the Authority’s Chief Executive Officer.  Review of decisions by the Tribunal is dealt with in s 167 of the Code.  Given the arguments raised by the Fund it is necessary to have regard only to the following paragraphs,

    (1) An application may be made to the Administrative Appeals Tribunal for review of the following decisions of the [Authority]:

    …

    (c) a decision under Division 3 of Part 2 to refuse an application to vary the relevant particulars of the approval of an active constituent for a proposed or existing chemical product, the relevant particulars of the registration of a chemical product or the relevant particulars of the approval of a label for containers for a chemical product;

    (d) a decision under Division 3 of Part 2 to refuse an application to vary the conditions of the approval of an active constituent for a proposed or existing chemical product, the registration of a chemical product, or the approval of a label for containers for a chemical product;

    (e) a decision under Division 4 of Part 2 to vary the conditions of the approval of an active constituent for a proposed or existing chemical product, the registration of a chemical product, or the approval of a label for containers for a chemical product;

    …

    (f) a decision under Division 5 of Part 2 to suspend or cancel the approval of an active constituent for a proposed or existing chemical product, the registration of a chemical product or the approval of a label for containers for a chemical product;

    …

    The decision

15. The decision minute of 23 November 2012 had many aspects.  First, it was decided to cancel the product registration and associated label approvals for three registered products.  That part of the decision which is in issue relates to some 60 product registrations and associated labels. In relation to those products and labels, and in so far as is presently relevant, the decision minute recommended to Dr Bennet-Jenkins that she decide,

    …

    b.in accordance with s.34(3) of the Agvet Code that the [Authority] is NOT SATISFIED that labels for selected products (Table 2, Attachment 1) contain adequate instructions in relation to the criteria set out in s. 14(3)(g) of the Agvet Codes. 

    c.in accordance with s.34(5) of the Agvet Codes that the [Authority] is SATISFIED the relevant particulars of label approval (column D of Table 2, Attachment 1) can be VARIED.

    d.to VARY the relevant particulars of label approval for labels in column D, Table 2 Attachment 1.

    e.in accordance with s. 34(1)(c) of the Agvet Codes, that the [Authority] is SATISFIED that labels (column E of Table 2, Attachment 1) contain adequate instructions in relation to the criteria set out in s.14(3)(g) of the Agvet Codes.

    f.in accordance with s.34(1)(a) of the Agvet Codes, that the [Authority] is SATISFIED that continued registration of the products in Table 2, Attachment 1 in accordance with their instructions for use:

    i.would not be likely to have an effect that is harmful to human beings; and

    ii.would not be likely to have an unintended effect that is harmful to animals, plants or things or to the environment.

    g.to AFFIRM the registration of the products in column B of Table 2 Attachment 1.

    …

    As I have said, those recommendations were approved by Dr Bennet-Jenkins. Finally, the decision minute records a decision to cancel the approval of certain labels listed in Table 2, Attachment 1 and to approve new labels in their place.

    The arguments

16. The Fund contends that the decision minute evidences three decisions that are reviewable by the Tribunal,

    (a)a decision under Division 4 of Part 2 to vary the approval of labels for containers for chemical products, that being a decision made reviewable by paragraph (e) of s 167(1) of the Code;

    (b)further, or alternatively, a decision, reviewable under paragraph (e) of s 167(1) of the Code, to refuse to impose conditions on the approval of labels that would prohibit the use of diuron on sugarcane, whether irrigated or not, grown in the catchment of the Great Barrier Reef;

    (c)further, or alternatively, a decision, reviewable under paragraph (f) of s 167(1) of the Code, to refuse to suspend or cancel the approval of active constituents, the registration of chemical products or approval of labels concerning the use of diuron on sugarcane, whether irrigated or not, grown in the catchment of the Great Barrier Reef.

17. So far as the first of these arguments is concerned Dr McGrath, counsel for the Fund, contended that paragraph (e) of s 167(1) of the Code was to be read in a way that the words “to vary” operated on each of the three following objects, the conditions of the approval of an active constituent, the registration of a chemical product, or the approval of a label.  He submitted that the paragraph ought to be read as if it were written in this form,

    (e)a decision under Division 4 of Part 2 to vary,

    (i)the conditions of the approval of an active constituent for a proposed or existing chemical product,

    (ii)the registration of a chemical product, or

    (iii)the approval of a label for containers for a chemical product.

    Mr Davidson, for the Authority, submitted that the proper construction required the phrase “to vary the conditions of” to qualify each of the three succeeding objects.  Thus, he submitted, the paragraph ought to be read as if written in this way,

    (e)a decision under Division 4 of Part 2 to vary the conditions of,

    (i)the approval of an active constituent for a proposed or existing chemical product,

    (ii)the registration of a chemical product, or

    (iii)the approval of a label for containers for a chemical product;

1. The second and third arguments relied on the definition of “decision” in the Code. By virtue of s 167(4), it has the same meaning as in the Administrative Appeals Tribunal Act 1975 (Cth). Section 3(3) of that Act provides,

   Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:

   (a)making, suspending, revoking or refusing to make an order or determination;

   (b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

   (c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

   (d)imposing a condition or restriction;

   (e)making a declaration, demand or requirement;

   (f)retaining, or refusing to deliver up, an article; or

   (g) doing or refusing to do any other act or thing.

   Dr McGrath submitted that the decision was capable of being viewed as a refusal to do an act or thing, i.e. to impose conditions of the type contended for by the Fund or to suspend or cancel the approvals or registrations. The Authority contended that there had been no refusal; refusal, it said, involved a refusal to exercise a particular power, rather than a refusal to exercise it in a particular way.

   Consideration

2. The issue is one of statutory construction.  That task, as the High Court has said frequently and again quite recently[6], must begin with a consideration of the statutory text.  That context and purpose are important is demonstrated by this passage from Certain Lloyd’s Underwriters Subscribing to Contract No IHOOAAQS v Cross[7]

   The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority[8],

   ‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’ …

   That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’[9],and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’[10]. [emphasis of French CJ and Hayne J]

   [6]           Commissioner of Taxation v Unit Trend Services Pty Ltd  [2013] HCA 16 at [47].

   [7] (2012) 87 ALJR 131 at 138 [24]; [2012] HCA 56.

   [8] (1998) 194 CLR 355 at 381[69]; [1998] HCA 28.

   [9]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69].

   [10]Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 per Dixon CJ; [1955] HCA 27; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69].

3. In that regard it is, I think, important to bear in mind that the Tribunal's powers on review are not greater than the powers of the original decision-maker. By virtue of s 43(1) of the Administrative Appeals Tribunal Act the Tribunal may exercise all the powers and discretions that are conferred by the relevant enactment on the person making the decision.  Thus the question of the Tribunal's jurisdiction must be determined by reference to the extent of the powers that the original decision-maker was empowered to exercise.  The critical parts of the decision, those in paragraphs b., c. and d.,  were made in reliance on the s 34(5) power, that is, the power to vary, and were made in relation to the approval of labels for containers.  But s 34(5) of the Code did not empower the Authority to vary the registration of a chemical product or to vary the approval of a label; it allowed the Authority to “vary the relevant particulars or conditions” of the approval of an active constituent, of the registration of a chemical product or the approval of a label. The words of s 34(5) of the Code must be read in the context of the power conferred on the Authority by s 31(1) of the Code.

4. If, as I conclude, the Authority lacked power to vary the approval of the label, it must follow that s 167(1)(e) could not be read in a way that would confer on the Tribunal power to review a decision not capable of being made by the Authority.  It must be construed in a manner that permits only the review of powers actually conferred on the Authority.  It follows that I do not accept that paragraph (e) of s 167(1) of the Code ought be construed in the manner that the Fund submits. Whilst I accept that its preferred construction is open as a matter of grammatical sense that construction is at odds with the balance of the Code. The paragraph ought be read as the Authority contends.

5. The decision of the Authority, as recorded in the decision minute, was the decision to vary the relevant particulars of label approvals for the label as specified in the schedule, the Authority having been satisfied, in the terms required by the Code, that the relevant particulars of the label approvals could be varied. That decision does not come within the terms of s 167(1)(e) of the Code. Accordingly I reject the Fund’s first basis of jurisdiction.

6. The second and third arguments advanced by the Fund may be considered together.  They each fail for the same reason – there was no decision.  Even where a decision involves the refusal to do an act there must be a decision, that is, the mind of the decision-maker must have been engaged in considering the issue.  In the absence of a statutory provision deeming a refusal to have occurred at the expiry of a specified period of time, there can be no decision unless there has been some mental process of consideration by a decision-maker.  In the context of the similar definition of “decision” in the Administrative Decisions (Judicial Review) Act 1977 (Cth) in Semunigus v Minister for Immigration and Multicultural Affairs[11] Finn J said,

   … the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion – as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.

   On appeal[12], each member of the Full Court[13] adopted the formulation of Finn J. Additionally, Higgins J referred to this statement of French J (as his Honour then was) in Attorney-General (Cth) v Queensland[14]

   But a decision is more than thought, consideration or conclusion.  It must be manifested in some way which emanates from an authoritative or responsible source.

   [11][1999] FCA 422 at [19].

   [12] (2000) 96 FCR 533; [2000] FCA 240.

   [13]         See per Spender J at [11], Higgins J at [55] and Madgwick J at [101].

   [14] (1990) 25 FCR 125 at 142.

7. In the present case both consideration and manifestation of that consideration are absent.  There being no suggestion that the decision-maker was ever asked to make a decision in the terms now advanced by the Fund, the case is not one where it might be concluded that there was an implicit decision[15].  In my view there was no decision constituted by a refusal to do an act or thing.  Before a decision-maker could be said to refuse to do an act or thing, either expressly or implicitly, the decision-maker must be requested to do that act or thing.

   [15]         Cf. Telstra Corporation Ltd v Kotevski [2013] FCA 27; (2013) 59 AAR 143.

8. It follows that I reject the second and third bases upon which the Fund contends that the Tribunal has jurisdiction.

9. In the result the application will be dismissed for want of jurisdiction.

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC

....................[Sgd]....................................................

Associate

Dated  22 May 2013

Date(s) of hearing	3 May 2013
Counsel for the Applicant	Dr CJ McGrath
Solicitors for the Applicant	Environmental Defenders Office of New South Wales
Solicitors for the Respondent	Australian Government Solicitor