CATCHWBWOARODS ADMINISTRATIVE LAW - Judicial review - decision on assumption that discretion existed - on appeal, duty held ta exist - matter vreferred back to decision makers. STATUTES - dutv or discretion - provision silent as to disposition of application for meat inspectors - what implication made: "may" or "shall" - relevance of context in interpretation. Administrative Decisions (Judicial Review) Act 1977, 5.5 Export Control Act 1982 Export Control (Orders) Requiations Prescribed Goods (General) Orders (No. 1 of 1985) Export Meat Orders (No. 2 of 1985) Bradlev v. Commonwealth of Australia (1973) 128 C.L.R. 557 Esmonds Motors Ptv. Ltd. v. Commonwealth of Australia (1970) 120 C.L.R. 463 Mahoney v. Johnson (1931) 46 C.L.R. 131 Zachariassen v. Commonwealth (1917) 24 C.L.R. 166 BETWEEN : MUDGINBERRI STATION PTY. LID. Appellant AND: PETER HANDLEY LANGHORNE First Respondent AND: LINDSAY PERCIVAL DUTHIE Second Respondent No. N.S.W. G246 of 1985 BOWEN C.J., EVATT AND PINCUS JJ. SYDNEY 19 DECEMBER 1985 me ne nt ee eee erate en we pene i ee IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) NO. G246 of 1985 GENERAL DIVISION ) BETWEEN : MUDGINBERRI_ STATION PTY. LTD. Appellant AND: PETER HANDLEY LANGHORNE First Respondent AND: LINDSAY PERCIVAL DUTHIE Second Respondent JUDGES MAKING ORDER: Bowen C©.J.. Evatt and Pincus JJ. DATE OF ORDER: 19 December 1985 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. The appeal be allowed. nite ete wt 2. The orders made by Neaves J. be set aside. 3. The matter be referred to the respondents for reconsideration according to law. 4. The respondents pay to the appellants their costs of and incidental to this appeal and to the proceedings before Neaves J. NOTE: Settlement and entrv of orders is dealt with in Order 36 of the Federal Court Rules. Tee the - outline ert a ott eee ce Eat te oe, eM a t as " . ' pwceericen tte eibie ate en eat Ngee dg peal anteaters Miinente ner tanks hadleeteaeetdmmibe A and Mgt mmnninaee fem ne mn mm Me IN THE FEDERAL COURT OF ANSTRALTA ) WEW SOUTH WALES DISTRICT REGISTRY ) NO. G246 of 1985 GENERAL DIVISTON ) BETWEEN : MUDGINBERRI STATION PTY. LTD. Appellant AND: PETER HANDLEY LANGHORNE Fiest Respondent AND : LINDSAY PEPCIVAL DUTHIE Second Respondent fs) FH Bowen C.J., Evatt and Pincus JJ. DATED: 19 December 1985 REASONS FOR JUDGMENT THE COURT: The appellant, Mudqinberri Station Ptv. Limited (Mudqinberri), conducts an abattoir and meat processina works near Jabiru. approximately 250 kilometres east of Darwin. The first respondent. Feter Handley Langhorne (Mr. Langhorne). is the Director of Fhe Export Inspection Service ("EIS") of the Commonwealth Department ef Primarv Industrv. The second respondent, Lindsay Percival Duthie (Mr. Duthie). aus the secretary to the Commonwealth Department of Primary Industry. Mudqginberri appeals from a decision of a judge of this Court dismissing its application for an Order of review under s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") in respect of a decision of Mr. Langhorne refusing to make available authorized meat inspectors for attendance at its abattoir. The fate of the' appeal appears to us to depend upon a question of statutory construction. namelv whether the relevant provisions, to which detailed reference is made below. created a dutv or gave a discretion. Before coming to those provisions, it is desirable to explain in some detail the settina in which the question of construction arises. Although Mudainberri's application for an order of review, in its amended form, claimed relief aqainst respondents other than Messrs Langhorne and Duthie, those claims were not pursued and Muddinberri confined itself before the learned primary judge to attacks upon decisions alleaedlv made by Messrs Langhorne and Duthie in dune 1985, Those decisions were. putting it simply. not ta provide officers to inspect the processing of stock for the export market at Muddainberri's abattoir. That abattoir has a license permitting it to process and export meat from Australia and, until 10 Mav 1985, sold most of its output overseas. On that date the Australasian Meat Industry Emplovees' Union (A.M.I.E.U.), an organisation of employees registered under rr et oe ~ wel doe ada ote an iets Meme re a " eg we wos te A EL eR eas Sg eS remnant Ee ee ENS tl emcee rental Tae ee ee a me ee ee te -< the Conciliation and Arbitration Act 1904 established a picket lane on the road leading to the abattoir. That was done in protest against an agreement for retention of a system of payment by results negotiated by Mudginberri with its employees pursuant to the Northern Territory Meat Workers' Award. The establishment of the picket line led to the institution of proceedings in this court under s.45D of the Trade Practices Act 1974 but it is not necessary to qo into their rather complex historv, for the questions involved in this appeal are unrelated to those in the s.45D litigation. Thev are unrelated, also, to the merits of the award we have referred to and the agreement made under it. The question whether the system of payment by results instituted at the abattoir is a desirable one has. of course. nothing to do with this appeal. Ik is concerned with the leqal question whether, despite the presence of the picket line we have mentioned, the respondents were obliged to supply to Mudqinberri the inspection services requisite under the relevant provisions to enable it to process meat for export. Mr. Langhorne, as Director of the E.I.S., had anticipated the possibility that the operations of the service might be obstructed bv picketing, by issuing a notice dated 24 April 1984. That document, which was distributed to all veqistered export establishments, said. among other things. that: "Each case would be iudaed on its merits. however generally speaking inspection staff will not be directed to cross a picket line unless that action has been aareed to by the union which formed the picket." fe oth aati Ge tf jaar, a ty : Oot, Se OO ad, 9 ne ae oe ee en et rt ete ethene tr ott t ' Shortly before the picket line in question was established, Mr. J. R. Smith. the Assistant Secretary of the Management Services Branch of the Commonwealth Department of Primary Industrv, issued to the Regional Directors in all States a notice dated 30 April 1985 which referred to the 1984 notice from which we have quoted. It embodied a draft advice to industrv which was to be discussed. The draft was, so far as the evidence shows, never adopted and it is therefore unnecessary to set aut anv of its terms: it 1S enough to sav that 1t proposed a policy rather more tavourable to the crossing of picket lines than that of 24 April 1984. However, it is important to notice that during the period when requests for inspection service made bv Muddinberri were being dealt with in 1985. the last promulgated policy of the E.1.S. with respect to picket lines was that set out in the document of 24 April 1984; it was not surprising that the Meat Inspectors' Association responded to attempts to have its members cross the picket line to work by asserting, as it did in a letter of 23 May 1985, that "the department would be in breach of its own policy on picket lines if it did direct inspectors to work at Mudainberri under current circumstances..." To return to the events of 10 Mav 1985. the three inspectors who had been assiqned to Mudqinberri declined to cross the picket line. the A.M.I.E.U. not having consented. and Mr, J. R. Smith, who has just been mentioned. visited the Northern Territory for some davs to look into the problem. On 17 Mav 1985, having returned to his office in Canberra, he requested a Mr. Thomson, an official of the Meat Inspectors' Association. "to advise the inspectors to carry out duty at Muddinberri". Mr. Thomson did not do so. On the same dav, Mr. R. T. Irwin, the Regional Director of the Commonwealth Department of Primarv Industrv in the Northern Territorv, in response to a message from Mr, Smith, advised the three men to report for duty and thev declined. Although there was then some discussion about the relevant inspectors' pay and allowances being withdrawn. it seems plain that they continued to be paid for the time being. Mr. Smith, in a message dated 17 May 1985 to ather officials. stated the department's position to be, among other things, that the inspectors were to supervise the boning of 29 carcases in the chiller at the abattoir but that the department was "not/not seeking any supervision of processina of additional stock which may be brought in at this stage". The department's efforts were Apparentlv directed towards providing inspection for a limited purpose and not on a continuing basis. The next event of some sianificance with respect to provision of inspectors was that on 23 May Mr. Langhorne sent a telex to Mr. J. OD. FPendarvis, the managing director of Mudqinberri, explaining the department's attitude towards the latter's request for provision of inspectors and saying, among other things, that "we are making every effort to provide vou with inspectors..." That should not be taken too literally for. so far as the evidence shows, since 10 May when the problem arose, the only positive step taken towards that end had been the activity of 17 May just mentioned. The next dav, 24 Mav. the Minister, the Honourable J.C. Kerin, sent a telex to the Honourable S. P. Hatton, the Minister for Primary Production in the Northern Territory, saying, among other things: "The inspection service has endeavoured to do its job and is now proceeding through the proper arbitration processes to enable it to get inspectors on site at Mudqinberri without escalating the dispute fo other meatworks throughout Australia. I believe it is necessarv for the inspection service to follow the arbitration process throuch with its emplovee oraganisations before actionina other alternatives". It is a reasonable inference from these remarks that by 24 Mav, the day after Mr. Langhorne assured Mr. Pendarvis that every effort was being made, the department's view was that nothing could be done until the matter went to arbitration. Mr. Smith aave evidence that on 24 Mav 1985 Mr. Irwin attempted to get inspectors to do the work in question in response to advice from Mr. Lanahorne. Mr. Irwin. however, says nothina of that in his affidavit and it appears that the next concrete step Faken was, in truth, that Mr. Smith, on behalf of the Minister for Primary Industry, asked the Australian Conciliation and Arbitration Commission on 24 Mav 1985 to direct members of the Meat Inspectors' Association to carry out the relevant duties: that request was refused. On 29 Mav 1985, Mr. R. TT. Irwin. mentioned above, tay a a Bp we LL Re Sede An abe ete eT eg ews iio ere tS Fen nt ae a ne tagm Tit A panera tut a We ee a a - directed the meat inspectors to report for duty. Thev again refused to do so, and on 30 Mav their pay and allowances were suspended, remaining so until 24 June 1985. On that day. owing to its inability to obtain inspectors to supervise production for export, the management of the abattoir resumed production for domestic consumption onlv. It does not appear that thereafter any step was taken by the department to provide inspectors for export production, although Mudginberri still desired such provision. On 6 June 1985, Mr. Langhorne issued a special newsletter to all its staff explaining his attitude: "We have and will continue to make every effort to keep the dispute as_ it affects us localised and to this time have not taken other action to provide inspection that could be provocative and prejudice the work of the Arbitrator". On 21 June 1985 the Deputy Secretary of the Department of Primary Production. Northern Territorv, sent a telex to Mr. Lanaghorne askina whether he was willing to appoint qualified Northern Territory officers as export inspection aftficers. or alternativelv provide Department of Primarv Industrv inspection officers. After a reply from Mr. Irwin askina for further details, the same official wrote to Mr. Irwin on 24 June 1985 supplying details of veterinary officers who. it was suqqested, might have adequate qualifications and, in addition. one stock and meat inspector said to hold certificates identical or equivalent to those held by Commonwealth Department of Primarv Industry inspectors. That matter was never pursued further by the Commonwealth Department. "se % h " ' 3 BY ~ an 2% a, ae 2 AML we gle ocean Tike Bede at Tags ky Fee eg Peta ef A TM tee a ce Ry a ine i a et Ramen Aten om efi A ae Me nt Renee oe ne eet eee ae ne ane arena ees Ae Sey On 1 Julv 1985 the Honourable J. C. Kerin sent a telex to a solicitor acting for Mudainberri which it is desirable to quote, at least in part: "Reference vour telex 26 June concerning Mudginberri dispute and provision of Commonwealth inspection staff. Leqal advice I have received indicates there is no duty imposed of the nature vou have suggested. -eetn view of Association/A.C.T.U. attitude inspection staff will not attend for duty at Mudainberri while present situation remains. The dispute is between M.A.T.F.A./A.M.I.E.U. and Department and M.I.A. have been drawn into it due to A.C.T.U. endorsement of picket. Government is taking steps to assist where it can but it is up to parties to dispute to use every avenue possible to seek a settlement." It seems clear that bv that time all efforts by the department to provide inspection services had ceased. A similar telex was sent by Mr. Smith to Mr. Pendarvis on 3 July reading, in part, as follows: "Leaqal advice to the Department indicates there is no duty imposed on the Minister or Secretarv or Department to provide export inspection staff to any reqistered exporter. In wiew of the Association/A.C.T.U. attitude inspection staff will not attend for duty at Mudaginberri while present situations (sic) remain." There was tendered on behalf of the respondents a Minister's brief of 4 dJulv, which referred ta a possible meeting of appropriate parties and went on: "TE aqreement is not reached at the meeting the Cabinet agree that it direct emplovees of the Export Inspection Service to perform their duties." Consistently with the stance announced in the telexes from the wees ee ee a ee ne oe ee ee ee we ee yee oe ae ee none ew mere = ' I! -, * ~*~ "ag. en Re a tc eds Tak an SC er Re . eee re = anand aetna het nmi Even thet ane Lene nelle Def A pte tetrad meta er ne Sam fitet OR RrRAANT JANI eer mead tne hae Honourable the Minister and from Mr. Smith, which have been quoted in part. no such direction appears to have been issued. It was common ground that. apart from the attempts in Mav. other possibilities of providing inspection services [to Mudaginberri were open and it is desirable brieflv to mention two of them: thev were referred to in Mr. Lanahorne's evidence as aptions 1 and 3. The former was the provision of inspectors in the E.1I.S. other than the three who had refused to cross the picket line. As to the practicalities of that, it is necessarv to notice that Mr. Langhorne said that "because Mudainberri is staffed ona temporary transfer basis" such a proposal "could have been frustrated bv employees appealing against the temporary transfer under 5.33A of the Public Service Act 1922". Reference fo the section mentioned shows that it does not itself qive any right of appeal: presumably Mr. Lanaghorne intended to convey that he apprehended the possibility of an appeal under some other statutorv provision. Two of the three officers who were requested oar directed to perform inspection duties at the abattoir gave evidence. but did not suggest that they had anv intention of appealing. One of them. Mr. T. C. Kohler, explained his position as follows: "Under the terms of my employment I am desiaqnated headquarters which is outside metropolitan areas related to the establishment in which I would normally perform mv duties. However there are eccasions when mv headquarters establishment may not be operating and in such circumstances I could be directed to perform mv duties at another establishment." er -+.4~ ene eee ee ee eee net tee n+ SEN ary Meee He ks tegen Me . 14, As to the possibility designated by Mr. Langhorne as option no. 3, that would have involved use of persons such as officers of the Northern Territory Department of Primary Production. The evidence showed that a number of veterinary officers emploved by that department were available and that the European Economic Community was prepared to accept them as suitable, provided the E.I.S. was satisfied. However. it is not necessary to pursue that aspect further, since it was no part of the case for the respondents before the learned primary juddae of before us that inspection services were not provided because it was impossible to provide them. The respondents' contention. in accordance with the documents of 1 and 3 Julv 1985 referred to above, was that there was no leqal duty to provide inspectors but merely a discretion to do so. which discretion had been properly exercised. The learned primary judge determined that issue in favour of the respondents, but before us a rather different contention was advanced by Mudqginberri (in addition to arqument on the basis that a discretion existed). This was that on the proper construction of the relevant provisions. the respondents had not a discretion but an obligation to provide inspectors. If correct, that contention makes irrelevant consideration of discretionary factors; the question then merelv is whether the limits (if anv) to which the obligation is subject are such as to justify the respondents' failure to provide inspectors. Te 1s necessary to turn to the relevant statutory provisions in some detail. but it may be convenient to state, at ee re ee ene ee --- ° ll. the outset, the conclusion at which we have arrived. There is a qap in the relevant provisions in that. while they contemplate making an application to have inspectors provided. they do not expresslv say how the application is dealt with: whether it may be granted or shall be granted. The view on which the learned primary judge decided the matter appears to have been that the qap should be filled by treating the relevant authorities as having a discretion, not subject to any express qualification. to arant or refuse such an application. It is our view that on the proper construction of the provisions, there is no such discretion and that there is a dutv to provide inspectors. The foundation of the relevant system of administration is the Export Control Act 1982. Section 25 aives a wide requlation-making power, and under s.7 the requlations may prohibit the export of "prescribed goods" either absolutely or unless specified conditions or restrictions are complied with. "Prescribed goods" become so by being declared by regulations to be prescribed qoods; see the definition in 5.3. Paragraph 25(2)(a) of the Act permits the makina of requlations "subject to sub-section (3) empowering the Minister to make orders, not inconsistent with the requlations, with respect to anv matter for or in relation to which provision may be made bv the requlations". (The limitation contained in sub-s.(3) is not relevant to these proceedings.) This power given to the Minister to make Orders. has been exercised in such a way that in substance the whole administrative scheme 1s set out in such ee ne eee ee NM ee me BC me eee wee we eee en ee . — nee ee aoe en ————— me pe ee ee ee ere —— ee eee ewe a éFs z e "3 + . Se é * = * q fe t , fa '33 ¥ fa 12. Orders. made pursuant to power granted by r.3 of the Export Control (Orders) PRequlations. There is no reason to doubt the validity of this scheme. although it involves a process of sub-delegation of the kind discussed by Kitto J. in Esmonds Motors Ptv. Ltd. v. Commonwealth of Australia (1970) 120 C.U.R. 463 at 471-472. It should be noted. also, that by sub-s.25(8) of the Act an Order is 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. However. it was not argued that Orders so made are not enactments for that purpose and 1t appears to us that the Judicial Review Act applies to such Orders. Although. as we have said, there is no reason to doubt the validitv of this mode of exercise of the Commonwealth power, by a process of sub-delegation. the court should not too readily attribute to the Minister an intention. by mere implication. to prohibit or obstruct the processing of aoods for export. The interpretation of the Orders the Minister has made should not be approached with a predilection to hold that prospective exporters have no rights unless the Orders expressly say so ~ rather the contrarv. Order 10 of the Prescribed Goods (General) Orders, No. 1 of 1985, (which we shall call the General Orders) prohibits the export of prescribed qdoods unless the conditions or restrictions rae 13. specified in the Orders are complied with. Some of those conditions and restrictions are set out in 0.11.1: others being, of course, those especially applicable to meat, are contained in the Export Meat Orders, No. 2 of 1985. One of the requirements of 0.11.1 is that "where required by orders that apply to the goods" there must be inspections. Under 0.163 of the Export Meat Orders, animals are not to be slaughtered at a "registered establishment" until thev have been subjected to an ante-mortem inspection on the day of slaughter. Under 0.216.1 of the Export Meat Orders a post-mortem inspection must also be undertaken. These inspections must be carried out by authorised officers. The term "authorised officer" is not defined in the Orders but is defined in s.3 of the Export Control Act 1982 as meaning "an officer of the department" or "a person appointed under s.20 to be an authorised officer". Section 20 qives the Secretary of the Department the power of appointment. Unless authorised officers are available to carry out the inspections required, the conditions and restrictions referred to in 0.10 of the General Orders cannot be complied with: the result is that export of the uninspected goods is prohibited. In the end one arrives at the result that, without inspection by authorised officers, there can be no export. ep es Pace a ne ae tee ee ee eS eR SP LAPT Heal ee ne oe ae ee aera s Pf. 4 Pos eet goes le rot By wat ' ros ee . * FAAS by SP weg poser ae Cette eh Me ee eet ou wry tats a sec ake mentees Pinner Aa aneehhed MM dalitene bie eee caer AYES EAL sine linet wAN ED needs mel A RIT nan nar Aine et ue ~ 14. Must authorised officers be provided? That is the core of this case. It is a curiosity of the drafting of the Orders that, perhaps by a simple mistake, the critical provisions of the Export Meat Orders, namely Orders 448 - 450, do not say how an application for inspectors is to be dealt with. The relevant provisions are as follows: "448, Where the services of an authorised officer are required, the occupier of an establishment registered to prepare prescribed goods shall make application in writina toa 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 reqional office - Ca) in the case of a registered establishment that is operating - not later than the working day preceding the first working dav 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 cequired, the production of prescribed goods shall not commence until an authorized officer is present." Tt will be noted that Order 448 requires the occupier to apply for the requisite services, Order 449 makes provision for the time of receipt of applications, and Order 450 prohibits the commencement of production of prescribed goods where the presence of an authorised officer 1s required until such officer is present. There is nothing to say whether an application must, or may, be granted, or even who is to deal with it. Tt 1s evident enough that some implication must he made, TE Ree mea, Ee ee te etme me it ee Se eee Ped - <r eee oy . 15. at least to provide that, in response to the application, authorised officers may be provided. Otherwise. the whole scheme is a futility. The question is, however, whether the proper implication to make is that which appears to have been made by the learned primary judge, namely that there is a discretion to arant or refuse inspectors, when their presence is requested. on the basis of such considerations as seem proper to the person considering the application. Our first reason for disaqreeing. as we do, with the view that such a discretion should be implied is that one should not approach these Orders on the assumption that all riqhts of processors for export and exporters to deal with their own qoods are taken away except in so far as the Orders expressly say otherwise. Not only are the Orders so framed that the relevant aoods cannot be exported without inspection: the inspectors are not, under the Orders, chosen by the processor or exporter, nor are thev persons whose qualifications are objectively defined in the Orders. Thev must be "authorised officers" in accordance with the definition referred to above. If there is a richt to decline to provide inspectors "in the interests of the industrv as a whole" a means of export control is provided such thata would-be exporter. who has complied precisely with every other requirement of the Orders. mav nevertheless be effectively prevented from processing qoods for export. and consequentiv exporting them, by a discretionary decision rejecting an + application for provision of inspectors. a ye eee be et tee a ose wee nee ~ . - OE oe a ne oe TT age Wt 2 of a ed Me a nome Sats stew nett ne -- Aint ene sn Ae hen lt CTI Ma met et eee 16. In Bradley v. Commonwealth of Australia (1973) 128 C.L.R. 557, a majority of the High Court read the Eost and Telegraph Act 1901 - 1971 as not entitling the Postmaster-General to deprive citizens of postal services, except in the cases in which 'the statute or requlations made under it expressly so provided. The Courێ was unwilling to make such an implication in favour of the Postmaster-General as was made here in favour of what might looselv be called the relevant department. The statutory provisions considered in Bradlev's case have no similaritv to those with which we aré concerned. However, the Court's approach to the matter provides some quidance of a general kind. In the Judament of Barwick C.J. and Gibbs J., their Honours referred, at p.566, to the importance of postal and telephone services as amenities available to the people of the Commonwealth and described them as: " essential to the conduct of trade and commerce as well as to the enioyment of any real freedom in the dissemination of information and opinion." lnder the Orders, provision of inspectors is made essential to the carrving on of the relevant trade and commerce. After the words ust quoted, their Honours said: "It is legitimate to have regard to these considerations in interpreting the Act. although thev would not justify a departure from the ordinarv meaning of words that were clear and unambiquous in themselves and not inconsistent with other provisions of the statute. When. however, it becomes necessary to resolve an ambiaquity or obscuritv, 1t 1s right to start from the assumption that if the Parliament intended to confer on the Postmaster-General an arbitrarv power. subject to no conditions and to no review. to deprive any person of the libertv to use the postal and telephone services, with all the grave consequences that might fe te mmemne at en erm 68 meemynen ere en amas renee a wm a tere ee one <- eee eee ee ensue, it would use clear words for that purpose." The assumption mentioned cannot directlv applv to the Orders. for decisions made under them are subject to review. Nevertheless, the dictum provides encouragement to be slow, in determining the effect of the Orders, to read in a power - for which the Minister has not thought fit expressly to provide - by the exercise of which unspecified officials mav effectively suspend or halt the processing of meat for export. The Commonwealth mav, without doubt, achieve these results, but courts should not lightiv hold them to be achieved by mere implication. Before parting with Bradlev's case, we note that there the court was influenced by the fact that the statute conferred a monopoly in respect of the services in question (p.565): that has an analogue here, for the necessary service may not be provided privately. A question of a similar kind arose in Zachariassen v. Commonwealth (1917) 24 C.L.R. 166. There the High Court had to determine whether the Customs Act 1901-1910 gave a ship owner a right to a clearance subject to compliance with positive cequirements of the law. In the reasons of Barton, Isaacs and Rich JJ. at p.180, their Honours said: "The Act nowhere savs in affirmative words that uf all the requirements of the law are satisfied, the collector 'shall' arant a clearance. Tt does not even sav that he 'may' qrant it," The gap is of a precisely similar kind to that with which we are i i ee ee ee ee twee -- * * 3 z se drt ys . . . se Ae vn yeVegten se WAM qt, oy " e u y +4 wif - ath betta TES RI RN sate A ane Te ate phate te ne are nee ee we we An oe - 18. concerned. Their Honours went on: "Tf it did, the principle of Julius v. Bishop of Oxford 5 App.Cas. 214 would in the circumstances apply and give such provision compulsory force. The affirmative dutv is found. we think. in other considerations." The reasons then went on to refer to the common law riaght of merchants, confirmed by Magna Charta to have "safe and sure conduct to depart out of England. and tao come into England, and fo tarry in and qo through England, as well by land as bv water -a buy or sell...except in time of war". Thev also relied upon the practice of international commerce and arrived at the conclusion that there was adutv "to avant the clearance if satisfied that the law has been complied with", We think that. in the absence of any statutory prohibition, citizens of this country have a common law right to prepare qoods for sale and to sell them here or overseas. Considerations analogous to those which moved the Court in the Zachariassen case support the view at which we have arrived, namely that one should fill the aap by implving a dutv rather than a discretion. A somewhat similar approach may be discerned in the High Court's decision in Mahonev v. Johnson (1931) 46 C.L.R. 131 where the question arose whether a waterside worker, Mr. Johnson, was entitled to have a renewal of his statutorv licence. The court unanimously held that he was. for various reasons. Rich and Dixon JJ. relied. inter alia. upon the view that: ",..where a statutory provision is fairly open to two meanings an interpretation should be rejected which would allow the subiect to be restrained from the exercise of his vocation." (p.138) Sonal decal eatiatlienete ene retention merrimmadiacaen tmeatmemianiemaantometadenarmemamtenenentaaled heead eahatetetaatettice ete ee --- c n s.% ~ ' e, "et weg NEw Og Fee at tag Nt eg Fe weak © + Fecaey ste 6 8 ay we wo owt ete d en EE FL Seen fetta tandem Feats Ba ene mee Ne ee ti mS a ee mt et ede rd . 2 A similar view. leaning in favour of preservation of the right to "work when. where and for whom" one pleases, was expressed by Starke J. at pp.140 and 141. The reasons of Evatt J., however, contain remarks of particular relevance to the present case: "If instances of misbehaviour do occur, a licence may be cancelled and ineligibility for a period limited by Parliament itself may result. Even that is subject to important qualifications. and an independent tribunal may revise and reverse the decision of the departmental officer. It is difficult to suppose that Parliament, which so hedged round the authority of the licensing officer in cases of proved or admitted misbehaviour bv a licensee, aave the same officer the right to refuse the arant of a licence altogether. A more difficult position might have arisen had the power of issue or renewal been vested ina Minister of the Crown, who would have to assume responsibility to Parliament for his actions. The fact that the statutory power was intended to be exercised bv a mere local executive official. stronaly supports the view that Parliament intended that the licences and their renewals should be issued bv him asa matter of course," (p.148) It will be noted that Evatt J. derived assistance from the statutorv context and, in particular. from the fact that the authority toa cancel was "hedged around", a theme returned to below. Evatt J. also relied upon the fact that the statutorv power was "intended to be exercised bv a mere local executive official" as supporting the view that the action in question was to be taken "as a matter of course". So here: 0.448 does not even trouble to specify to whom the application is to be made but merely said it is to be made "to a reqional office" there to be dealt with, presumably. by anyone whose task it happens to be to allocate officers to their duties. The natural readina of 0,448-450 is that the expressed desire to have as Lert tena ntti pect tem Sn et hy eA ns Me ei eK MIR Fare "Aen MA reine Neve battD RAY Yr cemtuim Hi bee Mn ne nem -— a eee det , . re 2 cS ne i i ed ar at gly ast ome ec se < the services of inspectors is to be enough, in the ordinary way, to produce their attendance. No doubt it was necessary that some notification be given to the appropriate office so that those responsible could become aware of the inspectorate requirements before the commencement of slaughtering, but the whole mode of expression is inconsistent with the notion that there was intended to be superadded to the detailed requirements presently to be discussed an untrammelled discretion to withhold inspection. The statutory contex tends aqainst implvina a discretion in 0.448, because it evinces a tendency to prescribe the rights and obligations of would-be exporters with some precision. rather than leaving all subiect to administrative discretion. Under 0.15, the occupier of such an establishment as Mudainberri has to apply in writing for its registration. 0.16 of the General Orders sets out the details which the application must contain and 0.17 savs that, where required bv Orders, that application must be accompanied by detailed plans and specifications. The Export Meat Orders do require the submission of plans and specifications. and other information, when an application is beina made for reqistration of premises intended to be used for the preparation of. inter alia. meat. Orders 14-30 of the same Orders contain elaborate provisions as to the content of the information to be submitted with the application. Orders 35-88 prescribe matters relating to the way in which the premises are to be constructed and equipped; for example, ee ie er ere nn ern een eine art tyes tee ee ee tee ee et - a 2. te 4 ato et a ~ ae re a 1 . a FAY ed 21. 0.65.1l(a) requires that there be a dining room for authorised officers, which must have an area of 15 square metres of unencumbered floor space for 2 to 15 authorised officers. Where the elaborate requirements for registration are met, 0.24 of the General Orders applies and its effect is that in those circumstances, and subject to compliance with certain other matters, "the Secretary shall" (our emphasis) "register the establishment in accordance with Order 19 and issue a certificate in accordance with Order 21." Then there is provision for renewal of registration, framed. again, in such a way as to give a riaght to renewal, dependent not upon the exercise of a discretion, but upon compliance with certain objective criteria. Order 27 of the General Orders concludes:- ",,.. the Secretary shall. where paragraphs (a) to (h) (inclusive) have been complied with. renew the reqistration of the establishment in accordance with Order 19 and issue a certificate in accordance with Order 21," Speaking qenerallv, but not universalLllv, those provisions of the General Orders which qive express power to the Secretary, or someone acting under him, to affect the rights of processors or exporters are so framed as to require the existence of "reasonable grounds to believe" in the existence of certain facts, If 0.448, in accordance with its true intention. gives power to withhold inspection services on unstated criteria. it harmonises poorly with the provisions to which reference is about fo be made. There is power in the Secretary to revoke Cr en co er an, ot oS er * ton Foes ka ate lee anes tt ne teen nitty waBnalan = vie Asa Beal ent nee ote met mie aieeerineeeinetes He me te OR ee ee anh Ae te ee ee eer ern ot tne noe ee meen eee ener tn See i pete erent ete Beene eee Sune ene nee oe registration on chanae of management or control. in Division V. but that is dependent upon the existence of the facts set out in 0.33. As aqainst that. 0.33(b) makes one of those facts the existence of a determination by the Secretary that a particular person is "not deemed to be a fit and proper person in accordance with 0.47". However, even there the Secretarv's power receives some definition, in the statement in 0.47 of the matters to which he "may have regard". A similar analysis applies to assianment of registration under 0.35. Under 0.41 the Secretarv has power fo varv the reaistration of the establishment by reducing the number of export operations that mav be carried on at it, but only where there are "reasonable grounds to believe" that certain conditions prevail. Revocation of registration. under 0.43 and suspension under 0.48 are dependent upon the existence of "reasonable arounds to believe". That is the usual pattern: other examples are 0.51 of the General Orders, to which further reference is made below, and 0.79, 80, 82, 83 and 84. Numerous like examples are to be found in the Export Meat Orders, among them 0.138.1, 139.1, 140.1, 156.1. 164, 167.2, 172 and 176. Tt should he noted, also. that the inspection requirements to which reference is made above do not permit vetection of aqoods at discretion in the ante-mortem inspection. In 9.158. there is provision for reiection if there are "reasonable «rounds to believe" that certain conditions exist, fae ay SS etee et 4 = eur 4 ro oe TG en TS So Baad a ' SATE AL Ma et LR tet ee NN mete tee AH A EE nL et me he nes nn en en meet ee 23. However. those conditions must be identified in accordance with the Export Meat Manual and by a card provided and completed by the relevant authorised officer. Similarly, on post-mortem inspection, there is no absolute power to condemn a carcase: see 0,227. To adapt the lanquage of Evatt J. quoted above. it is difficult to suppose that the Minister who has so hedaed around practically every other official power given by the Orders intended to qive an official, whom he did not bother to desiaqnate, the right to refuse inspection on unstated qrounds. In so far as anv assistance is to be derived from the context, it must surely be in the direction of holding that the application for provision of authorised officers is a purely mechanical matter, not intended to be of any other than routine administrative sianificance. Another useful contrast is provided bv 0.51 of the General Orders which permits an authorised officer to suspend export operations "where there are reasonable grounds to believe that...the proper inspection of prescribed aoods at an establishment is not possible". The words quoted may well applv to instances in which there are, for example, not enoucgh inspectors available. Whether or not that is so the Order falls into the pattern mentioned above. namely requiring the existence of abjective facts before the power can be exercised: in addition, 0.51 requires that written notice be aqiven if the ~ BA ee He Kw - " veers - ey te mB germ Re we cat Rae er ete . Ann eb mefeedia ACN geet nenmnmtnlinnnintnten Attn Sm iI meee y tem Yd bee Mad md ame me a tt 24. suspension is to be for longer than two hours. If there be such an implication in 0.448 of the Export Meat Orders as that for which the respondents contend that does not sit well with 0.51.1. By use of the implied power, the relevant authorities may achieve the result which 0.51.1 contemplates, namely the suspension of operations, without giving any notice, oral or written, and even if the condition mentioned in 0.51.1 has not arisen. namely that "the proper inspection of prescribed goods...1s not possible". In our view. the traditional and proper reluctance of courts to hold that, by mere implication. what would otherwise have been personal or property rights of citizens have been abrogated or trenched upon is sufficient reason to resolve the question of construction in favour of Mudainberri. Tts expectation of heing able to carrv on its trade without qovernment interruption and to perform 1ts contractual obligations to purchasers, should not be defeated. in our view, by such an implication as has been made. Mr. Lanahorne, whose evidence was accepted, qave various reasons for not having taken further steps to provide inspection services. Most aqenerally, he considered "the overall welfare of the export meat industrv". the prime consideration being "ta weigh the consequences of providing services to the abattoir against the ability of the E.I.S. to continue to provide inspection services to the Australian meat industrv and the substantial consequences for the industry should these services ee re a ee eee eeetee yap peeeomeee any: wenn cree ee een ee a ne Sree . mw OT a Bae Ut YE re AE ast Mae . e ry g . BAe elt TaN a 8 tnt tee ate te bl wn be disrupted." Particular matters he regarded as material were the future careers of the E.1I.S. staff, expected difficulty in having inspected meat exported, the desirability of leaving the problem "to the future when emotions were not running so hich" and the possibilitv of adverse reaction. on the part of the Meat Inspectors' Association, to the use of non-members for inspection. It does not appear to us necessary to determine whether, on the hypothesis that the Orders should be construed as giving a discretion to refuse inspection. these considerations and others mentioned by Mr. Lanahorne., or elsewhere in the evidence, were proper to be taken anto acenint. Harring interpreted the Orders as set out above, we have come to the conclusion that the application should have succeeded before the learned primary judge, for it seems clear fhat the department, at the material time, reqarded itself as having such a discretion as was contended for and held to exist. We are of opinion that there was no discretion. but a dutv to provide inspectors, and that the applications for inspectors made on behalf of Mudainberri should have been considered on that basis. The only matter remaining for consideration 1s whether the dutv we have held to exist should be reaqarded as qualified in anv relevant wav. It was. we think. conceded, and riqghtly so, Ehat the dutv does not extend to doing what is impossible. but we are not prepared to hold that there is anv other relevant limitation. In particular. the duty to provide inspectors is not Fo be rvreaqarded as subiect toa consideration of "the overall pen deh eR Nn IN a NR Me tts Raman me mm ate wc ae 26. welfare of the meat industry". It may very well"be - we express no opinion on this aspect - that for practical reasons it would be desirable that the duty be so qualified: if so. it would seem to be a simple matter for the Minister to make an appropriate Order. That, however, is a question of policy and not a matter for us. It was common ground that, although the situation at the abattoir had changed in important ways since the decision under appeal, the question whether inspectors should have been provided is still of practical significance. It will therefore be ordered that the appeal be allowed with costs here and below. that the Orders of the learned primarv judge be set aside, and that the decisions under review be remitted to the respondents for reconsideration in the licaht of these reasons. I certify that this and the 2D preceding pages are a true copy of the reasons for judgment herein of the Court : €. Gaus fH sociate Dated /9 December (98S on re meee me ee eo re eR et en net ees Ee Se ree pein me etme mace won mare Fe ate tet renee HR Se