Department of Local Government and Regional Development (Prosecutor) and
Emanuel Exports Pty Ltd (ACN 008 676 131), Graham Richard Daws and Michael
Anthony Stanton (Accused)
Magistrates’ Court of Western Australia (Criminal Jurisdiction), 8 February 2008
MEMORANDUM (revised)
1.
We have been asked to advise whether Magistrate C.P. Crawford erred in law in
concluding that the accused are acquitted on the charges proven by reason of an
operational inconsistency with Commonwealth laws on the part of the West
Australian Animal Welfare Act 2002 (subsections 19(1) and (3)), with the consequence
that the Act or these provisions were invalid or inoperative under section 109 of the
Constitution.
2.
In particular, the Court said at paragraph 194 (p.54) of the reasons for judgment:
“The Commonwealth regime contemplated, indeed permitted export of fat sheep by sea, in
November. Emanuel complied with the requirements of the Commonwealth and secured
an export licence and permit. What was, and is, permitted under Commonwealth law,
namely the export of fat, adult sheep in November, is made unlawful under the AWA due
to the likelihood of unnecessary harm. The exercise of the right, or authority acquired by
Emanuel to export sheep, including fat adult sheep, in November would be made criminal
if the AWA is given effect, as argued by the State. This is a case of “operational
inconsistency”, see APLA Limited v Legal Services Commissioner (NSW) [2005]
HCA 44 at [201] and Victoria v Commonwealth (“the Kakariki”) (1937) 58 CLR,
618.” [emphasis added]
3.
In our view the Court erred in law because no operational inconsistency existed
under section 109. Indeed, no inconsistency of any kind existed under section 109.
4.
Our reasons are as follows.
Commonwealth instruments
5.
At the relevant times, there were two principal Commonwealth statutes, the Export
Control Act 1982 and the Australian Meat and Live-stock Industry Act 1997. Also relevant
2
was the Navigation Act 1912 by reason principally of the promulgation of Marine
Orders Part 43 Order (No. 12 of 2001) thereunder.
Export Control Act 1982
The Export Control Act 1982 is of general operation in providing for the control of
certain goods for export. “Goods” are defined to mean inter alia “an animal ... or part
of an animal”. By section 3 “preparation” in relation to prescribed goods, includes:
“...
(b)
(c)
(d)
the storage of prescribed goods;
the treatment of prescribed goods;
the handling or loading of prescribed goods.”
“Prescribed goods” mean goods, or goods included in a class of goods, that are
declared by the regulations to be prescribed goods. Sheep were so declared under
Order 3, Export Control (Animals) Orders (No. 15 of 1987).
“This Act” was defined as including the regulations.
6.
Relevantly, section 5 provides:
“This Act is not intended to exclude the operation of any other law of the Commonwealth
or any law of a State or Territory insofar as that law is capable of operating concurrently
with this Act.” [emphasis added]
Section 7(1), (2) and 3(a) and (b)(ii) provided, in summary, that regulations may
prohibit the export of prescribed goods, unless a licence to export the goods has
been granted. Section 25 provided for the promulgation of regulations, including
orders not inconsistent with the regulations.
Export Control Orders and Regulations
7.
We have been provided with the Export Control (Animals) Orders as amended (No. 2
of 1990) and Export Control (Orders) Regulations (No. 15 of 1987). The orders provide
that they apply to, inter alia “live animals”, which are declared to be prescribed goods
for the purposes of the Act: Order 3(a). A “live animal” is defined in Order 4.1.
3
Order 4.2 provides relevantly, in summary, for a reference to an export journey in
relation to a live animal to be read as a reference to the journey undertaken, or to be
undertaken, from loading on the ship until that animal is unloaded at the final
destination port or place.
8.
Order 5.1 provides:
“The export of a live animal or a consignment of live animals is prohibited unless an
export permit has been granted in accordance with order 8 in respect of the animal or the
consignment, as the case may be.” [emphasis added]
9.
Order 8 provides:
“Where, in relation to a live animal or a consignment of live animals, an authorized officer
is satisfied that:
....
(d)
a veterinary officer has determined that each animal is sufficiently fit to undertake
the proposed export journey without any significant impairment of health;
(e)
the preparation of the animal or consignment for shipping overseas and travel
arrangements of the animal or consignment are adequate for the health and welfare
of the animal or consignment;
(f)
where required by the Australian Meat and Livestock Corporation Act 1977, or
regulations or orders under that Act, the person intending to export the animal, or
consignment of animals, holds an export licence for the export of that kind of
animal;
....
an authorized officer shall, unless the Secretary has directed otherwise under order 10 or
order 10A, grant an export permit in respect of that animal or consignment.” [emphasis
added]
A “Note” to Order 8 sets out some matters to which a veterinary officer shall have
regard in making determinations under suborders (d) and (e).
These include
different “National Standards” and “Codes of Practice”.
But importantly, having regard to Order 8(f), no export permit could be issued
unless the authorised officer was satisfied the exporter held an export licence under
the Australian Meat and Live-stock Act 1997. (As to the unrevised reference to the
Australian Meat and Livestock Corporation Act 1977, the Act was repealed by the Meat
4
and Live-stock Repeal Act 1995 (No 69 of 1995), and ceased to have effect on 1 July
1995. Further, whilst the 1977 Act provided for an export licence regime (by in
particular sections 10 and 11), the only Act (and regulations and orders) providing
for an export licence regime for livestock in November 2003 was the 1997 Act).
10.
Order 11.1 provides:
“An export permit granted in accordance with order 8 or 9 may be subject to such
conditions as the Secretary thinks fit.”
Relevantly, Order 11.3 provides, in summary, that an export permit remains in force
until the time specified by an authorised officer on the permit, but not more than 72
hours from the time the consignment was inspected by an authorised officer for the
purpose of Order 8 [emphasis added].
In summary then, these Orders provide for the conditions or matters to be satisfied
before an export permit otherwise prohibited shall be granted, and then only for a
limited period, and that the permit may be subject to conditions by the Secretary.
Australian Meat and Live-stock Industry Act 1997
11.
The Australian Meat and Live-stock Industry Act 1997 provided by section 3 that “livestock” meant inter alia sheep. Section 10(1) provided as follows:
“Subject to this Part, the Secretary may grant a person a licence, in writing, to export meat
from Australia or to export live-stock from Australia.” [emphasis added]
Section 12 provided that the Secretary must not grant an export licence “unless
satisfied” of various matters including the integrity, competency and sound financial
sounding of the applicant.
12.
Importantly, section 15 provided:
“An export licence is subject to any conditions that are prescribed by the regulations, in
addition to the conditions to which an export licence is subject under this Act.”
5
13.
By section 17(1) the Secretary could make written orders or given written directions,
not inconsistent with the regulations to be complied with by the holder of an export
licence. Under subsection (2), such orders and directions could make provision for
matters including:
“...
(b)
the carriage, handling and storage of ... live-stock.”
By subsection (3) such orders and directions could “prohibit (either absolutely or unless
particular conditions are complied with) the export, or sale for export, of livestock by reference to”
matters including:
“...
(ii)
quality, standard, grade or class.”
By section 19 orders were provided to be disallowable instruments.
By section 21, an export licence remained in force for at least one year, and could be
renewed under section 22.
14.
Division 4 of Part II of the Act (sections 34 to 57) provided for enforcement by
principally an “authorised officer or authorised officers” (appointed by the Secretary under
section 49) of Part II of the Act or the regulations, including to find out whether “...
the conditions to which export licences are subject, have been complied with ...”.
15.
Importantly, subsections 54(2) and (3) provided:
“(2)
A person who is not the holder of a live-stock export licence must not export livestock from Australia. [emphasis added]
(3)
The holder of an export licence must not contravene a condition of the licence either
intentionally or being reckless as to the condition.”
Penalty: Imprisonment for 5 years.
6
Note:
Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an
appropriate fine instead of, or in addition to, a term of imprisonment. If
a body corporate is convicted of the offence, subsection 4B(3) of that Act
allows a court to impose a fine of an amount that is not greater than 5
times the maximum fine that could be imposed by the court on an
individual convicted of the same offence.”
Accordingly, the export licence is as necessary as the export permit for the lawful
export of sheep.
16.
Relevantly, section 73 provided:
“Nothing in this Act or the regulations restricts the operation of ... the Export Control
Act 1982, or the operation of any regulations made under any of those Acts.”
Plainly, Order 8(f) (see paragraph 9 above) in respect of the grant of an export
permit contemplated an operation of the Export Control Act 1982 and its regulations
which was in tandem with the provisions of the Australian Meat and Live-stock Act
1997 and its regulations and orders in respect of an export licence.
Section 74 provided for the making of regulations.
Australian Meat and Live-stock Industry Regulations
17.
The Australian Meat and Live-stock Industry (Export Licensing) Regulations 1998 defined
“standards body” to mean a body responsible for setting standards for, inter alia,
“live-stock for export”. The “Note” states that the standards body for live-stock
export is the Australian Livestock Export Corporation Ltd.
Regulation 6 stipulated the requirements for an application for an export licence,
including whether the applicant, or any person in management and control (defined
in regulation 3(1)) in a live-stock or proposed live-stock export business “has been
charged with an offence against the law of the Commonwealth or a State or Territory, for which the
maximum penalty is a period of imprisonment or a fine of at least one thousand dollars...”: see
7
regulation 6(1)(d). Similar provision was made as to whether such persons have been
convicted of such an offence: see regulation 6(1)(e).
18.
Importantly, regulation 6(6)(a) provided an application must also be accompanied by
“a copy of the accreditation certificate issued to the applicant by the relevant standards body.”
Accordingly, an accreditation certificate issued by the Australian Livestock Export
Corporation Ltd was a prerequisite to be able to apply for a licence to export
livestock.
19.
Regulation 8 provides that for subsection 12(2) of the Act (requirements for grant of
a licence), the Secretary must have regard to matters including whether the applicant,
or any person in management and control, has been charged or convicted of an
offence against the law of the Commonwealth or a State or Territory for which the
maximum penalty is a period of imprisonment or a fine of at least one thousand
dollars.
Further, the Secretary must have regard to whether the applicant or any person in
management and control of the business failed to comply with a condition of an
export licence, or with an order made or direction given under the Act: see
regulation 8(g).
20.
Importantly, regulation 9(3) provided:
“A live-stock export licence is subject to the condition that the holder must have regard to
the mandatory animal welfare requirements prescribed by the relevant standards body at all
times until exported animals are unloaded at their destination.” [emphasis added]
The Australian Livestock Export Corporation Ltd stipulated mandatory animal
welfare requirements as part of the Australian Live-Stock Export Standards published by
the Corporation in March 2001. By its Introduction (p.2) ALES provided that the
Standards comprised two elements:
8
“(a)
(b)
mandatory requirements which all exporters must comply with; and
best practice recommendations that are beyond the mandatory requirements, but
which LiveCorp considers may further enhance the performance of the live export
industry.”
It further provided:
“Exporters should be aware that the obligations imposed under these standards apply to
anyone who deals with livestock on behalf of the exporter. It is each exporter’s
responsibility to ensure that any such person complies with the mandatory requirements set
out in these Standards.”
21.
Regulation 10(2)(b) provided that an event of which a licence holder must inform the
Secretary under section 16 of the Act includes where the licence holder, or a person
in management and control of the business, is convicted of an offence against the
law of the Commonwealth, a State or a Territory, for which the maximum penalty is
a period of imprisonment or a fine of at least one thousand dollars. The time for
doing so is prescribed by regulation 10(1) to be seven days for the purposes of
section 16.
22.
The Australian Meat and Live-Stock Industry (Export of Live Sheep and Goats to the Middle
East) Amendment Order 2003 (No. 1), made by a delegate of the Secretary of the
Department of Agriculture, Fisheries and Forestry under section 17 of the Act and
dated 28 October 2003, amended the Australian Meat and Live-stock Industry (Export of
Live Sheep and Goats to the Middle East) Order 2003 dated 30 April 2003 by providing
for the floor area per head (excluding hospital pens) for inter alia live sheep exported
during several months of the year, including November. The original 2003 Order
provided in section 5 for export of live sheep from a port in Australia south of 26°
south latitude, which we are informed includes Fremantle, during months which did
not include November. Section 5(2) provided that the licensee must not, without the
written consent of the Secretary, export live sheep to a port in specified places,
9
including Oman, Kuwait, Bahrain and United Arab Emirates, the destinations of the
November 2003 shipment loaded on to the MV Al Kuwait at Fremantle.
Section 5(4) of the 2003 Order dated 30 April 2003 provided:
“When deciding whether to consent to an export of live sheep or goats under subsection (2)
the Secretary must consider:
(a)
the adequacy of the consignment management plan; and
(b)
whether the pre-export assembly premises operates under an auditable quality
assurance program; and
(c)
the welfare of the animals.” [emphasis added]
By section 6 of the 2003 Order dated 30 April 2003 the Secretary could impose
conditions on a consent to export under subsection 5(2).
Navigation Act 1912
23.
Section 425(1AA), Navigation Act 1912 provided:
“The Authority may make orders with respect to any matter in Part II, III, IIIA, IV,
V, VA, VB or XB for or in relation to which provision may be made by the regulations,
other than matters referred to in paragraph (1)(b).”
Relevantly, section 257 provided for regulations for and in relation to the loading,
stowing or carriage of cargo or the unloading of cargo from ships.
Marine Orders
Marine Orders Part 43 Cargo & Cargo Handling – Livestock Issue No. 5 came into
operation on 1 January 2002. The Marine Orders provide in respect of a range of
matters, including the welfare of livestock on board ships.
24.
It appears that a question arose in the proceeding whether the Marine Orders, to the
extent that they deal with animal welfare issues, were within the scope of section
257, Navigation Act 1912 and/or section 425(1AA), Navigation Act 1912.
The
prosecution contended that they were not. The defence contended that section 257
authorised regulations to make provision, inter alia, for stowing and carriage of cargo
10
and that “it is self evident that the welfare of the animals is a matter in relation to the stowage and
carriage of livestock.”: see paragraph 158, Court’s reasons for judgment. Although it is
not necessary to express a view on this question for the purposes of our opinion, we
nevertheless take the view that the defence contention was correct. Otherwise, see
generally paragraph 168 of the Court’s reasons for judgment.
The Court’s
conclusion is expressed at paragraph 169: in this respect we also note the provisions
of Order 1 of Part 43 of the Marine Orders.
25.
Relevantly, Order 3.4 notes that where provisions 17 [care of livestock on board], 18
[provision of humane killing device & veterinary equipment], 19 [patrols of livestock
on board] and 21 [sheep – number that may be carried] are inconsistent with an
order made under section 17, Australian Meat and Live-stock Industry Act 1997, the Act
is to prevail. Section 17 provided for the licence to be subject to compliance with
orders and directions made or given by the Secretary: see further paragraph 13
above.
26.
Order 9.5 provided that inter alia sheep “must be loaded and penned on a ship in accordance
with the Australian Live-Stock Export Standards.”
27.
Order 12.1 provided:
“A ship permanently equipped for the carriage of livestock must be fitted with systems and
equipment that ensure the maintenance of livestock services at a level necessary for the
welfare of the livestock.”
Order 12.2 in turn provided that compliance with Appendix 4 will meet this
requirement. Appendix 4 is directed to matters such as the capacity to supply power
to livestock services (defined by Order 2 to mean ventilation, fresh water supplies,
fodder supplies, lighting, and effluent removal systems); adequate and efficient
11
ventilation for the whole of each livestock space; standard and nature of lighting;
and drainage.
Further, paragraph 7.1 provided that the quantity of food and water to be provided
on a ship for sheep should meet “the minimum requirements in the Australian Livestock
Export Standards” [emphasis added]. Paragraph 7.3 is directed to the provision to
livestock of fresh drinking water at all times whilst on board. Order 16 is directed to
a ramp being suitable for loading or unloading of livestock.
Order 17 provided for the operator and master of a ship to ensure a “competent stock
attendant and such number of additional persons as are necessary to provide satisfactory tending,
feeing and watering of the livestock” is carried.
Order 18 is directed to provision of a humane killing device and veterinary
equipment onboard the ship. Order 19 provides that the master of ship must
operate a patrol system to ensure the safety of the ship and welfare of the livestock
throughout the period the livestock is on board.
28.
Order 21 provided that the maximum number of sheep that may be carried, and the
minimum amount of pen area per head were those contained in the Australian Livestock Export Standards.
29.
By Appendix 7 relevant paragraphs of the Australian Live-stock Export Standards are
reproduced.
Australian Live-stock Export Standards
30.
The Australian Live-stock Export Standards are expressed in the Introduction to be
“minimum standards” [emphasis added]. For the export of sheep from Australia it is
said that the Standards are intended to ensure that:
12
“(a)
only healthy animals that meet all animal health and welfare requirements and
export specifications are presented for export; and
(b)
there is considerate management with a minimum of stress and injury at all stages
of the export process.” [emphasis added]
Paragraph 1 of the Standards provided that the veterinarian and or AQIS certifying
officer in determining whether export preparation is adequate and an animal is fit to
travel must consider whether the consignment has been prepared “in accordance with
the Australian Live-stock Export Standards and with relevant National and State legislation”
[emphasis added].
31.
Importantly, paragraph 1.3 provided:
“The animal welfare legislation in each State and Territory specifies the mandatory animal
welfare requirements that must be met in that State or Territory. Export preparation
must also be in accordance with relevant Codes of Practice.
The Australian Livestock Export Standards is the national Code of Practice for the
livestock export industry. Appendix 1 lists other relevant codes of practice.” [emphasis
added]
32.
Paragraph 1.4 provided that the Standards complement and should be read in
association with, inter alia, the Marine Orders Part 43, “which set standards for the
carriage of livestock at sea”.
33.
Paragraph 5 of the Standards provided that each exporter must ensure that if a
notifiable incident occurred, LiveCorp was advised as soon as possible, including in
respect of various identified incidents that would have a serious adverse effect on
animal welfare.
13
34.
Paragraph 7 dealt with specifically sheep and goat exports. Paragraph 7.1.2 provided
in respect of sheep that each exporter must ensure that sheep are not selected for
export if they:
“(a)
(b)
are in body condition score one (or less) on scale 0-5; or
show any signs of physical weakness.”
As a matter of best practice annotated to paragraph 7.1.8, it is noted that sheep in
body condition score 5 on scale (0-5) should not be selected for export because very
fat sheep “are more susceptible to inanition than sheep in a lower body condition score.” The
MV Al Kuwait shipment carried fat, adult wethers with a body condition score of 4.
Various other matters are dealt with in paragraph 7 directed to the welfare of the
sheep both in preparation for export and whilst on board including by paragraph
7.1.10 the type of feed to be provided on board.
Notice of Intention to Export
35.
Section 6(1), Export Control Act 1982, provided:
“A person who intends to export prescribed goods shall, if required to do so by the
regulations, give notice to the Secretary or an authorised officer, in accordance with the
regulations, of the person’s intention to export the goods and of the place where the goods
may be inspected.
Penalty: Imprisonment for 12 months.”
Order 6.1 of the Export Control (Orders) Regulations (No. 15 of 1987) provided, inter
alia:
“For the purposes of section 6 of the Act, notice of intention to export a live animal ...
shall be given to an authorised officer by the person who intends to export the live animal or
live animals ... –
(a)
where isolation is not required, not less than seven clear working days prior to the
date on which it is intended to export ...”
By Order 6.2 however, the Secretary may permit less than seven clear working days
notice, having regard to matters stipulated.
14
By Order 6.5, the Secretary may require the exporter to furnish further information
than that required by suborder 6.4, including a declaration signed by the person
giving notice that orders that apply to the live animal or animals have been complied
with: see suborder 6.5(k)(i).
Paragraph 4 of the Australian Live-stock Export Standards provides further in respect of
notice of intention to export.
36.
Such notice of intention to export is a precursor to any grant by an authorised officer
of an export permit.
State Act
37.
Section 19, Animal Welfare Act 2002 (WA) provides by subsection (1) that a person
must not be cruel to an animal. Subsection (3)(a) provided:
“Without limiting subsection (1), a person in charge of an animal is cruel to an animal if
the animal:
(a)
is transported in a way that causes, or is likely to cause, it unnecessary harm.”
38.
Section 3(1)(b) provided:
“This Act provides for the protection of animals by:
...
(b)
prohibiting cruelty to, and other inhumane or improper treatment of, animals.”
Subsection 3(2) provided:
“This Act intends to:
(a)
promote and protect the welfare, safety and health of the animals;
(b)
ensure the proper and humane care and management of all animals in accordance
with generally accepted standards; and
(c)
reflect the community’s expectation of people who are in charge of animals to
ensure that they are properly treated and cared for.”
39.
By section 5(1) “harm” is defined to include:
“(a)
(b)
(c)
injury;
pain; and
distress;
15
evidenced by severe, abnormal physiological or behavioural reactions.”
A “person in charge” in relation to an animal is also defined.
Analysis
40.
In summary, the Court first found that during the MV Al Kuwait’s journey with a
shipment of 13,163 fat, adult sheep (classed as A class wethers and Muscat wethers),
ex-Fremantle through Australian territorial waters (24 hours from 1800 hours on 11
November 2003) to ports in North Africa, the risk of them suffering inanition and
salmonellosis was such that it constituted cruelty to those animals because they were
transported in a way that was likely to cause them unnecessary harm contrary to
subsections 19(1) and (3), Animal Welfare Act 2002 (WA).
41.
The Court held that the Commonwealth legislation and associated legislative
instruments constituted a regime for regulating the transport of sheep by sea for the
purpose of export. The Court further held that the regime did not, and was not
intended, to “cover the field” (see ex parte McLean (1930) 43 CLR 472 at 483) but
that nevertheless there was an “operational inconsistency” between Commonwealth
law and the AWA: see paragraph 192, reasons for judgment. This is because, and
only because, of the Court’s conclusion that the Commonwealth regime permitted
the export of fat sheep by sea in the month of November. The company had
obtained a Commonwealth permit which authorised these exports and, the Court
held that it followed that any attempt by the State of Western Australia to make such
exports under the Commonwealth export permit a criminal offence on welfare
grounds produced an “operational inconsistency”. This had the result, it was held,
that the State law was inconsistent with section 109 of the Constitution.
paragraphs 189 to 203, reasons for judgment.
See
16
In particular, we note paragraph 194 (see paragraph 2 above) and the following from
paragraph 193 of the Court’s reasons:
“193
42.
... Certainly the AWA does not in terms prohibit the export of fat sheep in
November to the Middle East. Emanuel obtained an export licence and permit
from the Commonwealth to do just that. Thus while the State maintains the
likelihood of unnecessary harm to fat sheep shipped in November, made the
exercise cruel, the relevant Commonwealth Officer was satisfied, inter alia, of the
adequacy of the consignment management plan and the welfare of the animals. A
veterinarian accredited by a Commonwealth Agency, AQIS for the purpose,
certified all classes of sheep to be healthy and fit to undertake the export journey.
Arguably that certification is not inconsistent with the State’s construction of the
AWA.” [emphasis added]
It appears that the central plank of the Court’s reasoning is that, once the company
secured an export licence and permit from the Commonwealth, the company had an
absolute legal right to export the sheep in question; a legal right that could not be
modified, restricted, or made criminal if exercised, by virtue of the State animal
welfare act. See paragraphs 173, 174, 191, 194-6 and 199.
43.
But the Commonwealth export licence and permit did not confer an absolute legal
right to export the sheep in question.
There are two key points: first, the
Commonwealth export licence and permit, taken together, were conditional, not
absolute. The operation of the export licence conditions did not cease upon grant of
the export permit, and went to an obligation to comply with mandatory animal
welfare requirements of the State legislation.
This was noted by the Court at
paragraph 156 of the reasons for judgment. Put another way, whether or not the
export permit by its terms was untrammelled1, the exporter remained subject to the
relevant export licence conditions “until exported animals are unloaded at their
destination”: see Regulation 9, Australian Meat and Live-Stock Industry (Export Licensing)
Regulations 1998, in paragraph 45 below. In this respect we note that by Order 8(f) of
1
Not having sighted a copy, we do not know.
17
the Export Control Orders, no export permit could be issued unless the authorised
officer was satisfied the exporter held an export licence under the Australian Meat and
Live-stock Industry Act 1997.
Second, there is the seeming clash between the veterinarian’s certification that all
classes of sheep are healthy and fit to undertake the export journey (as a prelude to
grant of an export permit), on the one hand, and the exposure of the licence holder
to the State legislation under the export licence, on the other. This was dealt with by
the Court at paragraph 193 of the reasons for judgment (see paragraph 41 above),
the Court concluding that “arguably that certification is not inconsistent with the State’s
construction of the AWA.”
In turning to the first point, in our view the Court erred in holding that the AWA
impaired the right or authority to export. The right or authority was not unfettered,
but instead conditional.
44.
Section 10, Australian Meat and Live-stock Industry Act 1997 conferred power upon the
Secretary to grant a licence to export livestock from Australia. Livestock are defined
in section 3 to include “sheep”.
Section 15 provided:
“An export licence is subject to any conditions that are prescribed by the regulations, in
addition to the conditions to which the export licence is subject under this Act.”
45.
Regulation 9 of the Australian Meat and Live-stock Industry (Export Licensing) Regulations
1998 by sub regulation (3) provided:
“The live-stock export licence is subject to the condition that the holder must have regard to
the mandatory animal welfare requirements prescribed by the relevant standards body at all
times until exported animals are unloaded at their destination.”
18
As stated above, the “Standards Body” is the Australian Livestock Export
Corporation Ltd. It is this corporation which published in March 2001 the Australian
Live-stock Export Standards.
46.
The introduction of paragraph 1 of the Standards provided as follows:
“RELATED LEGISLATION AND STANDARDS
In determining whether export preparation is adequate and an animal is fit to travel the
accredited veterinarian and/or AQIS certifying officer must consider whether the
consignment has been prepared in accordance with the Australian Live-stock Exports
Standards, and with relevant National and State legislation.”
Paragraph 1.3 of the Standards provided:
“Animal Welfare Legislation and Codes of Practice
The animal welfare legislation in each State and Territory specifies the mandatory animal
welfare requirements that must be met in that State or Territory. Export preparation must
also be in accordance with relevant Codes of Practice.
The Australian Live-stock Export Standards is the national Code of Practice for the livestock export industry. Appendix 1 lists other relevant Codes of Practice.”
The Code referred to in Appendix 1 appears to have no relevance to this case.
47.
Further, although it was not perhaps argued in the case, the expression “must have
regard to” in regulation 9(3) does not mean something less than compliance. The
expression must be taken to mean compliance where it appears in a context of
having regard to “the mandatory animal welfare requirements prescribed”. The Standards
themselves confirm that the mandatory animal welfare requirements must be
complied with: see the Introduction.
48.
We would also note that the Australian Live-stock Export Standards sought only to
prescribe “minimum” standards, thereby expressly contemplating and permitting
“additional and more onerous” State legislative minimum standards to apply (as they
were characterised by the Magistrate at paragraph 147).
19
49.
To borrow substantially from the language employed in passim by the High Court
majority in its reasons in Commercial Radio Coffs Harbour v Fuller [1986] 161 CLR 47 at
56-82, our construction of the Commonwealth laws leads us to conclude that they do
not purport to state exclusively or exhaustively the law with which the export of live
sheep must comply. Indeed, the laws plainly depend upon compliance with State
animal welfare legislation. The relevant statutes and regulations prohibit export of
live sheep without a licence and a permit. The prohibition is removed upon a grant
of a licence and a permit, subject to certain conditions. In the case of an export
licence, failure to comply with these conditions may result in a failure to renew the
licence and an offence under section 52(3), Australian Meat and Live-stock Industry Act
1997 where a condition was contravened “either intentionally or being reckless as to the
condition”. A licence conferred on the grantee a conditional only permission to export
animals. There is nothing in the Commonwealth laws which suggests that the export
permit conferred an absolute right or positive authority to export live sheep so that
the grantee, because it has a permit, is immune or exempt from the obligation to
comply with State laws imposed by the conditions of the export licence granted
under another and complementary Commonwealth law. Indeed, not only does
Export Control Act 1982 by section 5 (see paragraph 6 above) leave room for the
operation of laws, both State and Commonwealth3, Order 8(f) of the Export Control
Orders specifically required an authorised officer to be satisfied that an export
licence was held before he could issue an expert permit (see paragraph 9 above).
The export licence required the holder to observe the Standards (and thus State and
Territory laws) “...at all times until exported animals are unloaded at their destination”, and
This case was referred to at p.2 of the Court’s reasons for judgment as a case referred to in the judgment.
However, upon our inspection of the reasons it does not appear to have been referred to.
2
3
See further footnote 8 below.
20
thus at least also subsequent to the grant of the export permit [emphasis added]. The
Australian Meat and Live-stock Industry Act 1997 provided for a detailed monitoring and
enforcement regime to establish compliance with export licence conditions: see
paragraph 14 above. The Commonwealth laws then were intended to operate within
the setting of other laws of which the grantee of a permit was required to comply.
50.
Accordingly, subsections 19(1) and (3), Animal Welfare Act 2002 (WA) pass both of
the tests enunciated by Mason J in New South Wales v Commonwealth and Carlton (1983)
151 CLR 302 at 330, 45 ALR 579 at 598:
“[The ‘alter, impair or detract from’] test may be applied so as to produce inconsistency in
two ways. It may appear that the legal operation of the two laws is such that the State law
alters, impairs or detracts from rights and obligations created by the Commonwealth law.
Or it may appear that the State law alters, impairs or detracts from the object or purpose
sought to be achieved by the Commonwealth law. In each situation there is a case for
saying that the intention underlying the Commonwealth law was that it should operate to
the exclusion of any State law having that effect.”
51.
Turning to the second point (referred to in paragraph 43 above), we first note that a
Notice of Intention to Export was required to be given to the Secretary or an
authorised officer not less than seven clear working days prior to the date on which
it is intended to export, although this period could be shortened by the Secretary
under order 6.5: see paragraph 32 above. Further, we again refer to order 8 of the
Export Control Orders Regulations (Export Control Orders) (No. 15 of 1987): see
paragraph 9 above. Order 8 provides that the authorised officer shall grant an
export permit (unless the Secretary directs otherwise) where, inter alia, a veterinary
officer has determined that each animal is sufficiently fit to undertake the proposed
export journey without any significant impairment of health; and the preparation and
travel arrangements of the consignment of animals are adequate for their health and
welfare.
21
In paragraph 186 of her reasons for judgment, the Magistrate referred to Emanuel
having caused an AQIS accredited veterinarian to inspect the sheep before loading,
who completed a declaration on 11 November 2003 that he had “inspected/directly
supervised the inspection of the animals on 11/11/03 at Fremantle, dockside” and “[was]
satisfied that the animals are healthy and are fit to undertake the export journey.” At paragraph
187 the Magistrate noted that in evidence, Robinson, while not recalling the relevant
shipment, said that the inspection team would stand on each of the individual races
from the industrial truck to observe the sheep as they passed single file down the
race. The Court noted that “over 103,000 sheep were loaded over 10 and 11 November 2003
before departure ...” and that she inferred that “Grandison [the AQIS accredited veterinarian]
observed the sheep momentarily, as they passed in the race, dockside, on their way on board.” Selfevidently, the export permit then can only have been granted shortly before
departure of the MV Al Kuwait on 11 November 2003 as the veterinary officer’s
determination under order 8 was not made until 11 November 2003.
52.
Further, the Australian Live-stock Export Standards provided by paragraph 7.8.1 under
the subheading ‘Inspection for fitness to travel’, relevantly:
“Each Exporter must ensure that:
(a)
sheep ... which ... show clinical signs of disease, external parasites or injury; or are
unsuitable for export for any other reason, are not delivered to the wharf or
airport; and
(b)
sheep and goats that are unsuitable for export are promptly dealt with in a
manner apprpriate to their problem.”
So, whereas the veterinarian’s certificate arises from an inspection conducted
dockside for the purposes of a possible grant of an export permit, the requirements
upon the exporter under its export licence are to not deliver to the wharf sheep
unsuitable for export. Accordingly, if the exporter has complied with paragraph
7.8.1 of the Standards (expressly incorporated as conditions of the export licence),
22
there should in the ordinary course, one assumes, not be many sheep liable to be
rejected by the veterinary officer dockside. According to paragraph 186 of the
reasons for judgment, the veterinarian rejected 359 sheep for reasons including
scabby mouth infection and blindness.
53.
Whether or not the export licence requirement upon an exporter (under the
Standards) to inspect the fitness of sheep for travel is directed to a different point in
the chain of export from that required by the veterinary officer under order 8 for the
purposes of the grant of a Commonwealth export permit, the question still arises as
to whether the practical effect or operation of the Animal Welfare Act 2002 (WA)
created a direct operational inconsistency. This requires regard also be had to the
Australian Meat and Live-stock Industry (Export of Live Sheep and Goats to the Middle East)
Orders of 2003, as noted in paragraph 22 above. In particular, we note section 5(4) of
the 2003 Order dated 30 April 2003 obliged the Secretary, in deciding whether to
consent to an export of live sheep under subsection 5(2), to consider “the welfare of the
animals”.
Under subsection 5(2) such consent was required for nominated
destinations, which included those of the MV Al Kuwait in November 20034. No
doubt in so deciding the Secretary would consider, inter alia, the adequacy of the
consignment management plan as a matter stipulated under section 5(4) of the 2003
Order dated 30 April 2003.
54.
Whether it is a question of the authorised officer being satisfied as to the various
matters under Order 8 of the Export Control (Animals) Orders or the Secretary in
deciding under the Australian Meat and Live-stock Industry (Export of Live Sheep and Goats
to the Middle East) Orders 2003 to consent to an export of live sheep to the
Otherwise the floor area per head (excluding hospital pens) were prescribed for sheep exported (as a result of
the amending order) during specified months of the year, including November, the month of the MV Al
Kuwait shipment.
4
23
destinations specified in subsection 5(2) by having regard to, inter alia, the welfare of
the animals, or otherwise, we fail to see how any operational inconsistency with the
Commonwealth regime stood to be created by subsections 19(1) and (3), Animal
Welfare Act 2002 (WA). For whatever else may have been provided under the
Commonwealth instruments, the Commonwealth regime unequivocally required
observance by the licence holder of the mandatory animal welfare requirements
prescribed by the Australian Livestock Export Corporation Limited’s Standards as a
condition of the export licence, and established a framework for their enforcement:
see regulation 9(3), Australian Meat and Live-stock Industry (Export Licensing) Regulations
1998; section 15; and Division 4, Part II, Australian Meat and Live-stock Industry Act
1997.
In turn, the Australian Live-stock Export Standards stated they were intended to ensure
that only healthy animals that meet all animal health and welfare requirements were
presented for export and, further, that there was considerate management with a
minimum of stress and injury at all stages of the export process [emphasis added].
To achieve this object the Standards by paragraph 1.3 required compliance with
mandatory animal welfare requirements “that must be met in that State or Territory”. This
is no more than imposing upon the exporter the continuing and ultimate
responsibility to ensure the objects and provisions of the Standards and thus the
conditions of the export licence were, or had been, in fact, addressed and satisfied,
notwithstanding the grant of an export permit.
Otherwise, why should
Commonwealth laws provide in an unqualified manner for the holding of an export
licence to be a pre-condition to the grant of an export permit?
24
55.
As it is, under the then current practices in November 2003, it was the exporters
who engaged (AQIS accredited) veterinarians to undertake the inspection of
livestock before they were loaded onto the vessel for the export journey5: see House
of Representatives Hansard, No. 9, 2004, Wednesday, 2 June 2004 per Minister for
Agriculture, Fisheries and Forestry, Mr Truss. Accordingly, it may be one thing for
the Commonwealth or, perhaps more accurately the AQIS authorised officer
dockside in Fremantle, to take steps to be satisfied in the broad as to matters
requiring the grant of an export permit, including whether the consignment as been
prepared “in accordance with the Australian Live-stock Export Standards and with
relevant National and State legislation”: paragraph 1 of the Standards (see further
paragraph 30, and in particular paragraph 51 above). But we take the view it is quite
another for the exporter as a licence holder to be obliged to bear the continuing and
ultimate responsibility for ensuring that mandatory animal welfare requirements of
the State Animal Welfare Act 2002 (WA) are at all times observed. Again, if it were
otherwise, why did the Commonwealth by its legislative instruments enable the
imposition of licence conditions requiring observance of such mandatory animal
welfare requirements “at all times until exported animals are unloaded at their destination”,
and provide for a detailed monitoring and enforcement regime to establish
compliance with export licence conditions? Further, an export permit endured for
no more than 72 hours in respect of a particular consignment on a specified export
journey, whereas an export licence endured for at least one year, and was capable of
renewal: see paragraphs 10 and 13 above. The conditions of an export licence thus
remained in force in respect of all steps in the chain of export over an enduring
period, including beyond the time of grant of the export permit. Despite the short
The Keniry Review recommended that the responsibilities of accredited veterinarians should be referenced in
legislation with suitable penalties for breach.
5
25
duration of the export permit, its reach was in effect extended by making an export
licence a pre-condition to the grant of the export permit.
Though different
legislative creatures, they were thus entirely complimentary and intended to be so.
Plainly, the Commonwealth intended that the State legislation should be
complimentary or cumulative upon the steps it took6.
The State laws did not defeat the Commonwealth laws.
Rather, they helped
effectuate them. The Commonwealth instruments plainly included animal welfare as
an object. They were certainly not simply directed to navigational or cargo matters
as perhaps ordinarily understood. It is difficult then to appreciate how the contested
provisions presented obstacles to the operation of Commonwealth law or its
“regime”7.
In short, the Commonwealth licensing regime provided for and contemplated
reliance on State animal welfare legislation as part of that regime.8
56.
Further, the mere co-existence in the Executive governments of Commonwealth and
State of a power to address animal welfare (arising in the Commonwealth from both
interstate and overseas trade and commerce) can seldom be regarded as evidencing
or establishing inconsistency between the Commonwealth and State Acts conferring
Ex parte McLean (supra, para. 41 above) Dixon J expressed this conversely stating that the Act in question was
intended to be “supplementary to or cumulative upon State law”; referred to by the majority judgment in Commercial
Radio Coffs Harbour v Fuller (supra) at [58]
6
Another example is how the Secretary must have regard to whether the applicant or person in management
control has been charged or convicted of an offence against the law of a State or Territory which the maximum
penalty is a period of imprisonment or a fine of at least one thousand dollars. The penalty prescribed under
section 19(1), Animal Welfare Act 2002 (WA) provides for a five year period of imprisonment and a maximum
fine of $50,000. It is difficult to see how a charge or conviction for a section 19(1) offence would not be
relevant to an export licensee application under subsection 12(2) of the Australian Meat and Live-stock Act 1997.
7
Certainly, Section 5, Export Control Act 1982 (see paragraph 6 above) posed no difficulty with its proviso that
other laws are not intended to be excluded “insofar as that law is capable of operating concurrently with this Act”.
8
26
such powers upon their respective Executive governments: see Victoria v
Commonwealth (the Kakariki) [1937] 58 CLR 618 at 635-9 per Evatt J. Afterall, section
109 is directed to laws which conflict, and does not resolve all questions of
administration overlapping: see further Evatt J (supra) at 636.
57.
Finally, on this point, we note that in paragraph 199 of its reasons for judgment, the
Court said:
“The legislative assumption underpinning the Commonwealth regime is that a person who
has complied with the Commonwealth export requirements, and has been granted a licence
and permit may ship fat adult sheep to the Middle East in November. The AWA
directly collides with that right or authority. To that extent, pursuant to section 109 it is
invalid, that is inoperative.”
In our opinion there was no such legislative assumption: we refer to our reasons set
out above, including paragraph 50.
We note too that in an Explanatory Memorandum circulated by authority of the then
Federal Minister for Agriculture, Fisheries and Forestry, the Hon. Warren Truss MP
for the Agriculture, Fisheries and Forestry Legislation Amendment (Export Control) Bill 20049,
to provide for increased government regulation of the live animal export trade, it was
noted in paragraph 5:
“5.
By attending to the basic welfare requirements relating to live-stock, exporters can
minimise disease such as salmonellosis (a major cause of death on live-stock export
voyages). The ALES incorporates relevant sections of the MCP [model code of
practice] to ensure exporters address basic welfare requirements when preparing
and transporting live-stock not only to meet State and Territory POCTA
legislation [prevention of cruelty to animals legislation], but to reduce stress on
live-stock to minimise disease outbreaks during export. Under the Animal
Orders, authorised officers must have regard to relevant MCP when certifying
consignments as fit to travel.”
This was a Bill to give effect to the government’s response to The Keniry Report into livestock exports
(announced by the Minister on 30 March 2004) by amending the Australian Meat and Live-stock Industry Act 1997
and the Export Control Act 1982,
9
27
Although this Explanatory Memorandum came into being after the relevant event in
the proceeding, it is a plain indication of the Commonwealth’s intent under its
legislative regime as it existed in November 2003.
58.
In conclusion, we suggest that three closely inter-related points may provide a legal
basis for a challenge to the Magistrate’s decision.
(a)
As a matter of the proper construction of the Commonwealth laws (and in
particular section 15, Australian Meat and Live-stock Act 1997 and regulation
9(3), Australian Meat and Live-stock Industry (Export Licensing) Regulations 1998),
did the grant of the Commonwealth export licence and permit in respect of
these sheep confer an absolute legal right on the company to export the
sheep during and prior to the 24 hour period in question?
(b)
What is the legal consequence of the express incorporation into the
Commonwealth regime of the State animal welfare legislation effected by
paragraph 1.3 of ALES?
(c)
If, as the Magistrate found, the Commonwealth did not intend by its regime
to cover the field, then what is the basis for the Magistrate’s findings referred
to in paragraph 42 above?
59.
For completeness, we would note that by paragraph 194 of her reasons, the
Magistrate found that what was permitted under Commonwealth law was made
unlawful under the AWA due to the likelihood of unnecessary harm and the right or
authority to export sheep in November would be made criminal if the AWA was
given effect. Expressed this way, the ground of inconsistency could be characterised
as one where it is impossible to obey both the State and the Commonwealth law: see
R.V. Licensing Court of Brisbane; ex parte Daniell (1920) 28 CLR 23; referred to by
28
French J in De Pardo v Legal Practitioners Complaints Committee (2000) 170 ALR 709, at
722 (Full Fed. Ct.). For the reasons given above, we do not believe such an
inconsistency arose in this proceeding.
60.
If we can be of further assistance, please let us know.
CLIFFORD PANNAM
GRAEME McEWEN
Wednesday 26 March 2008
Owen Dixon Chambers West
Melbourne