CATCHWORDS ADMINISTRATIVE LAW - Judicial review - Decisions not to make available authorized officers at abattoir to inspect slaughter of animals and processing of meat for export trade - Decisions not to appoint additional persons as authorized officers - Authorized officers refusing to cross picket line organized by an industrial union - Whether irrelevant considerations taken into account - Whether relevant considerations not taken into account - Whether decisions unreasonable. Administrative Decisions (Judicial Review) Act 1977. s.5 Export Control Act 1982 Export Control (Orders) Requlations Prescribed Goods (General) Orders (No.1 of 1985) Export Meat Orders (No.2 of 1985) MUDGINBERRI_ STATION PTY. LIMITED v. JOHN CHARLES KERIN & ORS. No. NT G16 of 1985 Neaves J. 14 August 1985 Canberra A "SS RECEIVED \— {5 AUG 1995 IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY } No. NT G 16 of 1985 ) ) GENERAL DIVISTON BETWEEN : MUDGINBERRI STATION PTY. LIMITED Applicant AND: JOHN CHARLES KERIN First Respondent LINDSAY PERCIVAL DUTHIE Second Respondent ROBERT THOROLD IRWIN Third Respondent PHILLIP JOHN CORRIGAN Fourth Respondent PETER HANDLEY LANGHORNE Fifth Respondent MINUTE OF ORDER JUDGE MAKING ORDER : Neaves J. DATE OF ORDER : 14 August 1985 WHERE MADE : Canberra THE COURT ORDERS THAT: i. The application be dismissed. 2. The applicant pay the respondents' costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) . ) ' NORTHERN TERRITORY DISTRICT REGISTRY 3} No. NI G 16 of 1985 ) ) GENERAL DIVISTON BETWEEN : MUDGINBERRI STATION PTY. LIMITED Applicant AND: JOHN CHARLES KERIN First Respondent LINDSAY PERCIVAL DUTHTE Second Respondent ROBERT THOROLD TRWIN Third Respondent PHILLIP JOHN CORRIGAN Fourth Respondent PETER HANDLEY LANGHORNE Fifth Respondent CORAM: Neaves J. DATE: 14 August 1985 REASONS FOR JUDGMENT This is an application by Mudqinberri Station Pty. Limited ("the applicant") for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). The decisions in respect of which the order of review is sought have not been identified with particularity but may be compendiously described as - ee ere decisions by the fitth reSpondent, Peter Handley Langhorne, not to make available at the premises of the applicant the services of authorized officers for the purpose "of inspecting the slaughter of cattle and buffalnes and the preparation for the export market of meat derived therefrom; and - decisions by Mr Langhorne as a delegate of the Secretary to the Department of Primary Industry refusing to exercise the power conferred by section 20 of the Export Control Act 1982 to appoint persons to be authorized officers for the purpose mentioned. The first respondent. John Charles Kerin, is the Minister of State for Primary Industry. Lindsay Percival Duthie, the second respondent, is the Secretary to the Department of Primary Industry. The other respondents, Robert Thorold Irwin, Phillip John Corrigan and Peter Handley Langhorne, are officers of that Department. Dr Irwin is the Regional Director and Chief Veterinarian stationed at Darwin. Mr Corrigan is the Acting Assistant Director of the Meat Operations Branch of the Export Inspection Service of the Department and Mr Langhorne is the Director of that Service. Although they are named as respondents, the applicant seeks no relief against Mr Kerin. De Irwin or Mr Corrigan and it is proper that the application be dismissed so far as they are concerned. : e The issues that arise for determination in this proceeding must be seen against the background of the events which have taken place particularly since early May 1985. The applicant conducts an abattoir and meat processing works at Mudginberri Station near Jabiru within the bounds of the Kakadu National Park east of Darwin. Its operations include the slaughter and processing of cattle and buffaloes. Until the organisation on 10 May 1985 of a picket line by members of the Australasian Meat Industry Employees' Union ("A.M.I.E.U."), most of the output from the abattoir was sold to overseas markets. For this purpose the premises are registered and the necessary licences are held under the relevant legislation. As a direct result of the organisation and maintenance of the picket line (conduct which amounts to a secondary boycott), the slaughter and processing of cattle and buffaloes for the export market have ceased because of the absence from the abattoir of authorized officers to carry out the necessary inspections and other requirements. The authorized officers are absent from the abattoir because the officers directed to report for duty there, being officers employed in the Export Inspection Service of the Department é of Primary Industry, have, on the instruction of the union of which they are members, refused to cross the picket line. The officers of the Department of Primary Industry include meat inspectors and veterinary officers of various grades who perform the functions required to be carried out by the relevant legislation to which it will be necessary to refer. Where an abattoir or meat processing plant producing meat for export works on a continuous basis throughout the year, authorized officers, being meat inspectors and veterinary officers employed in the Export Inspection Service of the Department, are allocated on a permanent basis to that abattoir or meat processing plant which is then treated as their headquarters. In the case of an abattoir or plant operating only seasonally, as the abattoir at Mudginberri Station does, the necessary authorized officers are assigned from other locations for duty temporarily at the particular abattoir or plant while operations continue there. The meat inspectors employed in the Export Inspection Service, including Messrs. Kohler, Lyall, Gordon and Bennett, are members of The Meat Inspectors' Association ("M.I.A."). The M.I.A. has directed its members not to cross the picket line organised by the A.M.I.E.U. It is said to be the policy of the M.I.A. not to cross a picket line endorsed by the Australian Council of Trade Unions. It is further said that the picket line at Mudginberri Station has that endorsement. ———— — "4 ade 2 fe ; ot 'e. e The history of the matter must be recounted in a little more detail. Subsequent to the commencement of the 1984 killing season in June 1984 the A.M.I.E.U. began to picket Mudginberri Station. That picket was removed when agreement was reached to submit to arbitration the dispute giving rise to the picket. As a result of the arbitration process a new award, the Northern Territory Meat Processing Award 1984, became operative on 2 May 1985. There has been, and continues to be, a dispute between the A.M.I.E.U. and the Meat and Allied Trades Federation of Australia in regard Eo that award. The relevant employees at the abattorr (who are apparently not members of the A.M.I.E.U.) negotiated with the applicant terms and conditions of employment which are said to be consistent with that award and provide for "payment by results". That method of remuneration is antithetical to the A.M.I.E.U. There is, so it appears, no present industrial dispute between the applicant and its employees, none of whom is taking part in the picket line. The applicant commenced its 1985 seasonal operations on 9 May 1985. Prior to the commencement of those operations three meat inspectors employed in the Export Inspection Service, Messrs Trevor Kohler, Lyndsay Lyall and John Gordon, were directed to report for duty at the abattoir. Arrangements were also made for Dr Peter Prenzler, a veterinary officer employed in the Export Inspection Service, to be'transferred from Queensland to Mudginberri Station as a member of the inspection team. Dr Prenzler is not a member of the M.I.A. but of the Professional Officers' Association. On 10 May 1985 the picket line was formed and Messrs. Kohler, Lyall and Gordon refused to cross that line to report for work at the abattoir. Dr Prenzler, however, crossed the picket line to attend to the welfare of the animals on the applicant's premises. Mr Lyall left the area to perform other duties and his place in the inspection team was taken by another meat inspector, Mr Bennett. Subsequently, with the concurrence of the A.M.I.E.U., the inspection team attended at the abattoir to carry out the necessary inspections in respect of the slaughter of animals that had been held at the abattoir for some time. Some days later Dr Prenzler attended the abattoir to supervise the boning out of the resultant carcasses. This led toa "black ban" being placed on him by the A.M.I.E.U. On 17 May 1985 Messrs. Kohler, Gordon and Bennett were directed by Dr Irwin to report for duty at the abattoir. They again refused. On two subsequent occasions, on 24 and 29 May 1985, the officers were again directed to attend for work at the abattoir. They refused and their pay and ~~ ~] allowanere: were sropperd, The 3foppage of pay and allowances continued until 24 June 1985. On 24 May 1985 the applicant commenced proceedings in this Court for injunctive relief in respect of conduct in relation to the organisation and maintenance of the picket line as being in breach of section 45D of the Trade Practices Act 1974. On 27 May 1985 interlocutory iniunctive relief was granted against the A.M.I.E.U. and certain of its officials. Further orders in that behalf were made on 5. 7 and 12 June 1985. The injunction granted on 12 June 1985 restrained the A.M.U.E.U. and the individuals named therein until the final determination of the proceeding or further order from imposing, maintaining, giving effect to or enforcing any ban on the provision of goods and services to Che applicant at its Mudginberri abattoir or from setting up or maintaining any picket line at or in the vicinity of the abattoir. The picket line was maintained and on 21 June 1985 the Court ordered that the A.M.I.E.U. be fined the sum of $10,000 in respect of its breach of the order made on 12 June 1985 and a further sum of $2,000 per day so long as the breach continued. On 24 June 1985 the abattoir began slaughtering solely for domestic consumption, Whatever inspections were necessary in the course of such operations were carried out by officers of the Department of Primary Production of the Northern Territory. In order that the status of the abattoir as anexport establishment should not be jeopardised, Dr Prenzler was directed to ramain. and he has remained. on duty there. It is said that since about 17 May 1985 De Prencler and his family have been Living in accommodation provided for them at Mudwinberri Station. On 12 July 1985 the Court granted a permanent injunction in similar terms to thal granted on an interlocutory basis on 12 June 1985. It ig convenient at this stage to refer to some of the provisions of the relevant legislation. The Export Control Act 1982 ("the Act") is described in its long title as "An Act to provide for the control of the export of certain gocds and for related purposes". Tt provides, in sub-section 7(1). that the requlations may prohibit the export of prescribed goods from Australia either absolutely or unless specified conditions or restrictions are complied with. "Prescribed goods" means goods, or goods included in aclass of goods, that are declared by the regulations (an expression which includes orders) to be prescribed goods for the purposes of cEhe Act (section 3). Meat derived from cattle or buffaloes that are slaughtered at a registered establishment has been so declared: see Export Tanteat (General) Regulations. regulation 4. the Prescribed Goods (General) Orders. order 6, and the Export Meat Orders. order 5.1. A person who intends to export prescribed qoods is. if required todo so by regulations, to give notice to the Secretary to the Department of Primary Industry or fo an authorized officer, 1n accordance with the regulations, of his intention to export the goods and of the place where the goods may be inspected (sub-section 6(1)). "Authorized officer" 1s defined in section 3 to mean an officer of the Department of Primary Industry or a person appointed under section 20 of the Act to be an authorized officer. Sub-section 10(1) provides that the function of an authorized officer under section 10 is to ascertain whether the provisions of the Act and the regulations, and conditions or restrictions applicable to the export of prescribed goods or to licences or permissions to export prescribed goods, have been complied with. For those purposes authorized officers are given wide powers (see sections 10 and 11). section 20 of the Act provides - "20. The Secretary may, by instrument signed by him, appoint a person or persons included in a class of persons, ta be an authorized officer or authorized officers, as the case may be, for the purpose of the exercise by that person or those persons of the powers of an authorized officer - 10 - under this Act or of such of those powers as are specified in the instrument." Sub-section 19(1) authorises the Secretary, that 1s, the Secretary 'to the Department of Primary Industry, to delegate to an authorized officer all or any of his powers under the Act, other than the pewer of delegation. A power so delegated. when exercised by the delegate, is, for the purposes of the Act, to be deemed to have been exercised by the Secretary (sub-section 19(2)). Pursuant to that power, the Secretary has delegated to Mr Langhorne (who, by reason of his being an officer of the Department of Primary Industcy, is an "authorized officer") his powers under section 20. That power has also been delegated to a number of other officers of the Department of Primary Industry. The Act confers on the Minister a wide regulation making power (section 25). It is also expressly provided that the regulations may. subject to an immaterial exception, make provision for or in relation to empowering the Minister to make orders, not inconsistent with the regulations, with respect to any matter for or in relation to which provision may be made by the regulations (paragraph 25(2)(q)). It may also be noted, in passing, that sub-section 25(8) provides that an order is to be deemed to be an enactment for the purposes of the Administrative Appeals Tribunal Act 1975. It is curious that this provision does not also deem an order to be an enactment for the purposes of the Judicial Review Act. - li - However, it was not arqued that the orders so made are not enactments for the purposes of the Judicial Review Act and I propose, correctly as I think. to, reaard them as answering . that description. The Export Control (Orders: Regulations {Statutory Rules 1982 No 355) provide, in section 3, that the Minister may, by instrument in writing, make orders, not inconsistent with regulations made under the Act, with respect to any matter for or in relation to which provision may be made by regulations made under the Act. Pursuant to that power the Minister has made the Prescribed Goods (General) Orders (No. 1 of 1985) and the Export Meat Orders (No. 2 of 1985). The former declares, in order 6, what are to be prescribed goods and, by order 10, provides that, for the purposes of sub-section 7(1) of the Act, the export of prescribed goods is prohibited unless the conditions or restrictions specified in the orders are complied with. Order 11.1 prescribes the conditions or restrictions that apply to, or in relation to, inter alia prescribed goods being meat though it does so by reference to other orders that set out the requirements that apply to the particular qoods. The Prescribed Gocds (General) Orders also contain detailed provisions relating to the registration of establishments, packaging, trade descriptions, notice of intention to export prescribed goods, export permits, official marks and marking devices and the payment of fees for the services of authorized officers. = we - The Export Meat Orders (No. 2 of 1985), which by virtue of order 4 are to be read as one with the Prescribed Goods (General) Orders, are equally. if not more, detailed and provide for the registration of establishments and the practices and procedures to be followed in relation to ante-mortem inspections, the slaughter and dressind, port-mortem inspections, the handling of prescribed goods (including meat?) £0 Which che orders apply, trade descriptions and the application of official marks. "Meat" is defined to mean tissue (other than edible offal) derived from cattle, buffaloes. solipeds, calves, sheep, lambs, pigs, goats or deer that are slaughtered at a registered establishment and intended for human consumption (order 6). The orders identify the persons who are to carry out the particular operation in the inspection procedures prescribed. Some orders refer to an "authorised officer", others toa "meat inspector" and yet others toa "veterinary officer". The latter two expressions are themselves defined but ina somewhat curious fashion. "Meat inspector" is defined to mean "an authorized officer who is a meat inspector" and "veterinary officer" means "an authorized officer who is a veterinary officer". One may assume that those definitions respectively refer to persons who, by reason of having satisfactorily completed a course at a tertiary educational institution, have acquired the appropriate qualifications to be described as meat inspectors or veterinary- officers and i] ra us) ( who are eifher officers of the Department of Primary Industry or persons appointed as authorized officers pursuant to section 20 of the Act. Part 29 of the Export Meat Orders is headed "Services of Authorized Officers" and contains orders 448-450 inclusive. Those orders are in the following terms - "448, Where the services of an authorized officer are required, the occupier of an establishment registered to prepare pre- scribed goods shall make application in writing to a regional office for the services of an authorized officer to be made available during the preparation of the prescribed goods. 449. The application specified in order 448 shall be received by a regional office - (a) in the case of a registered establishment that is operating - not later than the working day preceding the first working day on which the services are required; or (b} in the case of a registered establishment that has been closed or new premises - not later than 5 clear working days before the services are required, 450. Where the presence of an authorized officer is required, the production of prescribed goods shall not commence until an authorized officer is present." The applicant has, ona large number of occasions since 15 May 1985, by telex messages sent to the Minister or to officers of the Department of Primary Industry, requested ee ee ee ee - 14 - that the Export Inspection Service make available [Eo Mudqginberr1i Station authorized officers to carry out the necessary functions s0 that: the slaughter of cattle and buffaloes .and the processing of meat derived " therefrom for the export trade may continue. Requests have also been made that the power conferred by section 20 of the Act be exercised to appoint as authorized officers persons who are not members of the M.I.A. and that persons so appointed be made available to Mudginberri Station. In particular, requests have been made that officers of the Department of Primary Production of the Northern Territory be so appointed and made available. Those officers have qualifications in veterinary science and are not members of the M.I.A. but of another union. The requests have been considered by Mr Langhorne and, save in so far as directions to report for duty at Mudginberri Station have been given to Messrs Kohler, Lyall, Gordon and Bennett on the occasions already referred to, have not been acceded to for reasons which Mr Langhorne has explained in the affidavit affirmed by him and filed in this proceeding and in his oral evidence. It will be necessary to refer to other parts of his affidavit but it is sufficient for present purposes to refer to paragraphs 16 and 17. Those paragraphs read - "16. My prime consideration has been to weigh the consequences of providing services to the abattoir against the ability of the EIS to continue to - 15 - provide inspection services to the Australian meat industry and the <« substantial consequences for the industry should these services be disrupted. Also I have taken into account the adverse MIA reaction to the use of non MIA members particularly veterinary officers to carry out duties clearly desiaqnated as meat inspector duties, the fact that neither the Department nor its unions were a party to the uniutial dispute, the likely effect on EIS employees, the ability to be able to continue to provide the range of services necessary to actually export product produced, and problems with overseas markets that may arise if the integrity of the meat is put at risk. 17. I have concluded that adoption of any of the options for Mudginberri under the existing circumstances would widen the dispute to the substantial detriment of the Australian Meat Industry." The references to "MIA" and "EIS" are respectively to The Meat Inspectors' Association and the Export Inspection Service. The options referred to are tne options to which Mr Langhorne gave consideration, namely - the provision of meat inspectors from within the Export Inspection Service of the Department of Primary Industry; - the provision of what was called "departmental management labour"; and - the use of other persons. - 16 - It is also convenient to state at this point that there was no attack on Mr Langhorne's credit and I accept the whole of his evidence. Tt is common ground that the decisions of which the applicant complains were taken under order 448 of the Export Meat Orders and section 20 of the Export Control Act 1982. In seeking an order of review in respect of the decisions made by Mr Langhorne, the applicant submits that the making of each of the decisions was an improper exercise of the power conferred by the enactment in pursuance of which the decision was purported to be made (paragraph 5(1)(e) of the Judicial Review Act) in that - . irrelevant considerations were taken into account in the exercise of the power (paragraph 5(2)(a)); . there was a failure to take relevant considerations into account in the exercise of the power (paragraph 5(2)(b)); and . the exercise of the power was sO unreasonable that no reasonable person - 17 - could have 30 exercised the power (paragraph 5(2){q)). For the applicant it was said that the legislatdve provisions under which the decisions were made were procedural in nature - provisions designed on the one hand to ensure that the legislative requirements set out elsewhere in the Act, the requlations and the orders were carried into effect and on the other to facilitate compliance by the occupier of an abattoir or meat processing plant with those requirements by having available at his establishment authorized officers possessing the appropriate qualifications. It followed, so the argument ran, that the decision-maker, in exercising the power conferred on him, was obliged to have regard only to matters pertinent to the object and purpose of the provisions as so understood. The following statements taken from the evidence of Mr Langhorne encapsulate matters which he took into account but which the applicant submits constitute irrelevant considerations. First, there is the statement (paragraph 7 of his affidavit) that he considered that to accede to the applicant's requests "would be contrary to the overall welfare of the export meat industry". Next, is the statement (paragraph 8(a)(iv) of his affidavit as amplified in his oral evidence) that "to direct individual inspectors in the EIS to attend for duty would, on the basis of state- - 18 - ments made by the MIA, cause the dispute to spread nationally". Thirdly, there are the statements (paragraph 8(b)(i) of the affidavit) that he believed that there existed "threats from the union movement to extend the dispute should non-MIA members be used to carry out export inspection duties at Mudginberri" and that under those circumstances he considered "the threat of a national dispute or, at the least, widespread industrial action was, in fact, real", The applicant also referred to the statement in paragraph 15 of Mr Langhorne's affidavit that action such as authorizing non-M.I.A. labour to carry out export inspections "would lead to an undesirable widening of the dispute with costs to the industry far in excess of those now being borne in the localised dispute situation". In this connection it is to be remembered that the use of veterinary officers employed in the Department of Primary Production of the Northern Territory would involve the use of non-M.I.A. labour. Also relied upon were the statements in paragraphs 16 and 17 of Mr Langhorne's affidavit the text of which has already been set out. In essence, it was the applicant's submission that, in considering the requests which had been made, it was irrelevant for the decision-maker to take into account matters other than those which could be seen to be associated in the most direct way with the satisfaction by the applicant of the legislative requirements relating to the export of -~ 19 - prescribed goods, The applicant's primary submission was that the relevant considerations were confined to matters pertaining to the meat export operations of the particular establishment in relation toa which the request for 'fhe provision of authorized officers was made and did not extend to matters relating to the export trade in meat considered as a whole. But whether or not that peimary submission was accepted, the applicant's further submission was that it was outside any possible view of the ambit of the discretion conferred by the relevant provisions to have regard to matters concerned with industrial relations especially where those industrial considerations related to the meat export industry as a whole. In particular, it was said to be an irrelevant matter to take into account possible industrial action on the part of a third party and, even more so, where that industrial action was illegal and was being engaged in in defiance of a court order. Authorized officers will be available at a particular establishment only if the necessary steps to ensure their presence are taken by some officer of the Department of Primary Industry having authority to do so. It thus falls to that officer to determine whether authorized officers being officers of the department with the necessary qualifications can be made available to perform the prescribed tasks. If, for some reason, such officers cannot be made available, or cannot be made available at the particular location, the ~ 20 - situation will arise whether the power conferred by section 20 of the Act should be exercised to approve other persons as authorized officers who can be made available at the particular establishment. It is only in this secondary sense that any question arises in this proceeding under section 20 of the Act. Order 448 of the Export Meat Orders is expressed in terms of enabling the occupiers of a registered establishment to request that the services of authorized officers be made available. There is, however, nothing in the Act, the regulations or the orders which, in terms, provides that such a request is to be acceded to or how such a request is to be dealt with. Neither the manner in which, nor the time within which, 1t is to be considered are prescribed. Nevertheless, the context in which order 448 appears is such that there must be implied a duty upon those responsible for the administration of the legislation to have each request properly and promptly considered. It was conceded on behalf of the respondents that the legislation gave rise toa duty of a general kind on the Department of Primary Industry to make available the services of authorized officers when requested to do so pursuant to order 448, It was said, however, that that general duty was owed to the occupiers of all registered establishments considered as a class. This was contested by the applicant, it being contended on ats behalf that the duty impliedly arising from the terms of order 448 is one ,owed to the individual applicant who makes a request pursuant to its provisions. I have not found it necessary to form a concluded view on the issue so disclosed. In a sense, each submission is correct. The Minister for Primary Industry and his department clearly have administrative responsibility for Many aspects of Australia's overseas trade and in that sense must clearly be concerned with the effects upon that trade Which action taken in a particular case may, or will be likely to, have. But to recognise that wider role does not necessarily exciude, in a particular case, a duty owed to the occupier of an individual registered establishment. The question is what is the nature of that duty and what considerations are relevant to be taken into account in exercising the discretionary powers which the relevant provisions confer. The applicant did not contend that the duty which was to be implied required that it be exercised so as to ensure that authorized officers were made available at each registered establishment either on demand or whenever the decision-maker was satisfied that their presence was necessary in order that export meat operations might continue. I agree that there is nothing in the legislation to suggest that it was the - 22 - intention of the legislature to impose a duty of that kind. The most that can, I think, properly be' implied into order 448 are words which are permissive ér facultative - "n other words order 448 is to be read so as to confer on the occupier ,of a registered establishment a right to call upon the appropriate officer to exercise his discretion according to law and so as to impose upon that officer a correlative duty. It may be accepted that any request for the exercise of the power must be considered bona fide and not with a view to achieving ends or objects outside the purpose for which the power is conferred. That purpose must, in the absence of any express statement in that regard, be discerned from a consideration of the scope and object of the legislation considered as a whole. The applicant's submissions, in my opinion, tended to take too narrow a view by concentrating attention on the scope and object of order 448 itself and failed to give due weight to the purpose to be discerned from a consideration of the scope and object of the Act, the regulations thereunder and the Prescribed Goods (General) Orders and the Export Meat Orders considered as a scheme of control and regulation of the export meat industry. The Minister for Primary Industry and his department are responsible for the ""control" of the export of prescribed goods - in this case "meat - in accordance with the legislative provisions to which reference has been made, we ¢ ~ 23 - That responsibility includes not only enforcing the restrictions and conditions that have been prescribed but also, consistently with those restrictions and conditions. facilitating and promoting Australia's export trade in those commodities. That this is so is clearly demonstrated once it is recognised that many of the restrictions and conditions prescribed have as:their undoubted object the safeguarding of the export trade by eliminating, as far as possible, practices which have the potential to harm that trade and thus affect other exporters trading in that or similar classes of goods. One needs to look no further than the events which preceded the enactment of the Export Control Act 1982, events which concerned the export trade in this very commodity, to appreciate the relationship between the activities of particular exporters and the overall welfare of the export trade in the same commodity. I refer to that history not for the purpose of making any comment adverse to the applicant as to the manner in which its business is conducted. Indeed, there is nothing in the evidence which would warrant any criticism of its activities. I do so only for the purpose of indicating that it is unrealistic, in considering the scope and object of the provisions here in question, to confine one's attention to the circumstances relevant to the particular establishment and treat as extraneous and irrelevant wider considerations concerning the industry generally. - 24 - But, looking at the matter in this light, it may well be that the considerations which will justify the refusal of a request pursuant to order 448 are limited - limited particularly by the circumstance that, unless authorized officers with appropriate qualifications are made available, an establishment cannot carry on the export operations in relation to which registration under the legislation was qranted. Thus, a refusal to make available the necessary authorized officers for the purpose and as a means of excluding a particular establishment from engaging in the export trade would to my mind be outside the power. But, I am unable to conclude, in point of law, that the considerations which Mr Langhorne admittedly took into account concerning the possible or likely effects on the overall welfare of the meat export industry, and the possible or likely industrial relations consequences for that industry, of acceding to the applicant''s requests are irrelevant to any purpose falling within the scope and object of the discretion that was vested in him. In the light of what I have already said it is unnecessary to consider separately the decisions not to make appointments of authorized officers under section 20 of the Act. However, in deference to the argument put by counsel for the applicant, I should say that I do not regard the fact that section 19 places no restriction upon the persons to ~ 25 - whom the Seeretary to the Department cf Primary Industry may delegate his power under section 20 to appoint authorized officers as indicating a leqislative intention to limit the matters which may relevantly be taken into account when considering whether to exercise that power. In my opinion the applicant's submissions on this aspect of the matter, therefore, fail. I turn now to the matters which, according to the applicant's submission, were relevant to the decision-making process but which Mr Langhorne failed to take into account. One of those Matters was the availability within the Department of Primary Production of the Northern Territory of suitably qualified persons to be appointed and made available to carry out at Mudginberri Station the functions of authorized officers under the relevant legislation. It is clear on the evidence that this was a question to which Mr Langhorne had addressed his mind and he in fact requested that inquiries be made of an officer of the Department of Primary Production of the Northern Territory concerning the names, qualifications and experience of the personnel that might be provided for export inspections at Mudginberri Station. A list of officers who had tertiary qualifications in veterinary science was provided to Mr Langhorne under cover of a letter dated 24 June 1985 addressed by the Deputy Secretary of the Department of Primary Production, Mr P. - 26 - Jones, to Dr Irwin. No details were given as to. the experience of these officers in meat inspection and," as I understood the argument put on behalf of the applicant, it was gaid that Mr Langhorne's decisions were vitiated because he failed to make further enquiries concerning the experience of those officers, that being a relevant consideration which Mr Langhorne should have taken into account. I am unable to accept the argument. Mr Langhorne reached his decision not to appoint and make available officers of the Department of Primary Production of the Northern Territory on grounds which made irrelevant the question whether those officers had the necessary experience to enable them to carry out the functions of authorized officers as laid down in the relevant legislation. Had he reached a different conclusion on that aspect of the matter the experience of the officers in question and their willingness to cross the picket line would, no doubt, have become relevant. However, I am unable to conclude that Mr Langhorne was bound to take the experience of such officers into account for there to be a valid exercise of the power to decide what action should be taken upon the applicant's requests. Another relevant matter said not to have been taken into account was the illegality of the conduct being engaged in by the A.M.I.E.U. and its officials. This submission was made - 27 - ' on the assumption that, contrary to the earlier submission made on behalf of the applicant (a submission which I have > rejected), the industrial relations, matters to which r7 f ~ '\ the ? ¥ reference has been made were- not. irrelevant .t6 r " v7 a lasy " isye decision-making process under order 48 of the Expowt Meat ces < Orders and section 20 of the Export Control Act 1982. On the same assumption it was also submitted that Mr Langhorne had failed to take into account that none of the following matters had caused the industrial dispute to escalate or spread nationally, namely - that Messrs Kohler, Gordon and Bennett had been directed on more than one occasion to report for duty at Mudginberri Station; . that their pay and allowances had been stopped consequent upon their refusal to cross the picket line; . that Dr Prenzler had crossed the picket line; . the continued presence of Dr Prenzler at Mudginberri Station; . the continuing operations at the abattoir for the domestic market and the performance - 28 - of duties in connection therewith of unspectors employed in the Department of Primary Production of the Northern Territory; and _ the making of orders by this Court in the proceedings commenced by the applicant against the A.M.I.E.U0. and others under section 45D of the Trade Practices Act 1974. I am satisfied on the evidence that Mr Langhorne was made aware of all of those matters at or about the time they occurred and that they were present to his mind when giving consideration to what course should be followed. It is true that he did not specifically state in his affidavit what, if any, weight he gave to the circumstance that the occurrence of those events does not appear to have resulted in any widening of the industrial dispute between the A.M.I.E.U. and the Meat and Allied Trades Federation of Australia concerning the Northern Territory Meat Processing Award 1984. On the other hand it must be said that those matters were not specifically put to Mr Langhorne in cross-examination as matters to which he gave no consideration in the decision making process. I am not satisfied on the evidence that he failed to take those matters into account. ae ote ae - 29 - Tn wy opinion, no sufficient basis has been shown by the applicant to warrant the conclusion that the decisions Mr ' Langhorne made were vitiated by a failure to take into account relevant considerations. Finally, it was submitted that Mr Landhorne's decisions were sO unreasonable that no reasonable person could have so exercised the power reposed in him. The applicant relied on all of the matters already adverted to and in particular upon the availability of officers of the Department of Primary Production of the Northern Territory to carry out' the necessary functions and the fact that authorized officers carrying out the necessary functions could be accommodated at Mudginberri Station so as to avoid the need to cross and re-cross the picket line. In my opinion this submission should also be rejected. Io am unable to conclude that, viewed objectively, the decisions were so devoid of any plausible justification that no reasonable person could have reached them: see Bromley London Borough Council v. Greater London Council £1983] 1 A.C. 768 at p.B21. The circumstance that authorized officers are not at present available at the abattoir is, no doubt, a matter of grave concern to the applicant and one would think also to those employed there. Their unavailability during a period -~ 30 - when the abattoir is otherwise able-'to carry on its export operations is likely to have the most serious consequences for the business being carried on by the applicant as well as having consequences for Australia's reputation as a reliable source of supply to overseas markets. The eattitude of the applicant that those charged with the responsibility of administering the relevant legislation should be taking all possible steps to ensure that authorized officers are made available is, therefore, understandable. The applicant clearly doubts the soundness of the decisions that have been made and the validity of the reasoning on which they are based. Others may share the applicant's views. But those are not matters which are before the Court. The Court's role is the much more limited one whether, in making the decisions which are the subject of the application, there has been any departure from the requirements of the law. That more limited question must, in my opinion, be answered by saying that there has been no such departure. The application also seeks relief by way of damages but no evidence was led on that issue which was deferred pending the determination of the question whether the applicant was entitled to an order of review. In the view to which I have come there is no foundation for a claim in damages. In the result, the application should be dismissed with costs. It was suggested that a special order should be made - 31 - in respect of the application made on 24 July 1985 for an adjournment of the proceedings. However, I do not' propose to make any special order in that regard. a I certify that this and the preceding 30 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. bh LZ obi Dated: 14 August 1985