FEDERAL COURT OF AUSTRALIA

Sekhon v Director of Quarantine [2013] FCA 1423

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 25 October 2012, a quarantine officer (Mr McDonald) ordered a Dalmatian dog known as “Pepper” into quarantine, directed that it be detained, and directed that its owner (the appellant) arrange for the dog to be exported from Australia by no later than 22 November 2012. The Department of Agriculture, Fisheries and Forestry (DAFF) was prompted to take that action because Pepper had been diagnosed with Canine Monocytic Ehrlichiosis (CME), also known as Canine Ehrlichiosis.

2    The appellant sought review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in the Federal Circuit Court (then known as the Federal Magistrates Court) (FCC) of the decision that Pepper be exported. That application was unsuccessful: Sekhon v Director of Quarantine [2013] FCCA 863. The applicant now appeals to this Court from that decision.

3    The effect of a series of orders by the FCC and this Court is that the operation of the direction to export is presently stayed until seven days after the delivery of this judgment.

Background

4    Pepper was born in Australia in April 2007 and purchased by the appellant shortly thereafter. In July 2007, he was taken to Singapore as a pet of the appellant’s family.

5    The appellant and his family relocated to Australia from Singapore in early 2012. The appellant sought permission to import Pepper. As part of that process, a test for CME was carried out on Pepper in Singapore on 14 June 2012. It returned a negative result and an import permit was issued. Pepper left Singapore on 9 July 2012 and, on arrival in Perth on 10 July, was ordered into quarantine with a direction that he be detained at the Byford Quarantine Station until 9 August 2012.

6    Subsequently, Pepper became unwell. On 3 August 2012, he was taken to the Murdoch University Veterinary Hospital where he remained until released from quarantine on 9 August and flown to Adelaide.

7    A blood sample taken from Pepper on 6 August had been sent to a laboratory in the United States for analysis. The results of that analysis, which did not become known until 23 August, indicated the presence of CME.

8    On 24 August, a quarantine officer (Dr Cass) ordered Pepper into quarantine and directed that he be detained at the appellant’s residential address in Adelaide. Subsequently, Dr Cass imposed a number of conditions directed to the treatment of Pepper and to precautions to prevent the spread of the CME. These included a requirement that Pepper be treated by a veterinary specialist, Dr Davies, and that Dr Davies provide regular reports to DAFF on Pepper’s progress, including the results of testing known as “canis PCR testing”. This testing involved analysis of blood samples taken from Pepper.

9    On 4 October 2013, a pathology report of a sample tested on 28 September indicated the presence of CME. On the same day, Dr Irwin, of the School of Veterinary and Biomedical Science at Murdoch University, confirmed the diagnosis of CME.

10    Mr McDonald then issued an order on 23 October 2012. This too ordered Pepper into quarantine and directed that he be detained at the appellant’s address. However, in addition, it required the appellant to arrange, at his own expense, for Pepper to be exported by air from Australia within 30 days. Two days later, Mr McDonald issued a further order and direction. These were in relevant respects in the same terms as those of 23 October, save that the direction required the appellant to export Pepper by no later than 22 November 2012 and to inform Mr McDonald by 6 November of the arrangements which he had made for that export. The order and direction of 23 October were not withdrawn, but the respondent relied on the order and direction of 25 October.

11    It is the direction to export Pepper issued on 25 October 2012 which is the subject of the present appeal.

12    A letter dated 23 October 2012, which accompanied the direction of that date, had informed the appellant that he could choose to have Pepper euthanased instead of being exported.

Canine Ehrlichiosis

13    CME is caused by a parasitic organism which infects the blood cells of dogs. It is a serious condition and may be life-threatening for dogs. It can be treated to some extent by antibiotics and other chemicals, but is difficult to eliminate all together.

14    Australia is free of CME. If it is introduced, it may have very serious consequences. This is because of the ease with which the disease may be spread, the vector being the common brown dog tick (Rhipicephalus sanguineus), which is endemic to Australia.

15    By virtue of s 36 and Schedule 3 of the Quarantine Proclamation 1998 (Cth) (and ss 5(1) and 13(1)(a) of the Quarantine Act 1908 (Cth) (Quarantine Act)), CME is a quarantinable disease.

The appeal

16    As noted earlier, a judge in the FCC dismissed the appellant’s application for review of the decision that Pepper be exported.

17    The notice of appeal contains five grounds of appeal but the fourth and fifth raise different aspects of the same complaint, namely, a complaint that Mr McDonald had taken into account matters which were irrelevant to the exportation of Pepper.

Authority for the direction to export

18    Mr McDonald’s order of 25 October 2012 was contained in a printed document entitled “Order into Quarantine – Specific”. It was addressed to the appellant, identified Pepper as the subject of the order and indicated that the order into quarantine was made under s 55A of the Quarantine Act. Under the heading “Reason for Order into Quarantine” it provided:

Dog infected with Ehrlichia canis being a disease of quarantine concern.

In a section headed “Quarantine Officer’s Directions”, Mr McDonald indicated that Pepper was to be detained at the appellant’s address from 25 October 2012 until further advised by DAFF. Mr McDonald attached to the order the following direction:

Direction under section 48 of the Quarantine Act 1908

I, Andrew McDonald, quarantine officer, direct you, Tejinder Sekhon, owner of Pepper, a dog imported under import permit number IP2006122 and ordered into quarantine on 25 October 2012 to arrange at your own expense for Pepper to be exported by air from Australia no later than 22 November 2012.

You are also directed to inform me in writing by 6 November 2012 of the arrangements you have made for Pepper’s export.

Signed

Andrew McDonald

Quarantine Officer

25 October 2012

19    Section 48, which was invoked by Mr McDonald in relation to this direction, vests quarantine officers with powers with respect to goods which have been ordered into quarantine. It provides (relevantly):

48    Goods ordered into quarantine

Power to detain goods

(1)    A quarantine officer may direct that goods ordered into quarantine:

(a)    are to be detained:

(i)    on board the vessel or installation, or at the premises, where they are located at the time the direction is given; and

(ii)    in such manner, and for such period, as a quarantine officer determines; or

(b)    are to be taken to, and detained at, a quarantine station or other place in such manner, and for such period, as a quarantine officer determines; or

(c)    are to be exported from Australia in such manner as a quarantine officer determines.

…

To whom direction may be given

(4)    A direction under this section may be given to:

(a)    the importer or owner of the goods; or

…

Contravention of direction to be an offence

(5)    A person is guilty of an offence if:

(a)    a direction is given to the person under this section; and

(b)    the person contravenes the directions.

Maximum penalty: Imprisonment for 2 years.

Further detention of goods

(6)    If, at the end of the period for which any goods have been detained at a vessel, installation, quarantine station or other place under subsection (1) or this subsection, a Director of Quarantine is of the opinion that the goods cannot be released without an unacceptably high level of quarantine risk, he or she may direct that the goods be detained at the vessel, installation, quarantine station or other place in such manner, and for such further period, as is stated in the direction.

…

Subsections (2) and (3) of s 48, which have not been quoted, vest a quarantine officer with powers with respect to dealing with and treating goods ordered into quarantine.

20    Section 48 does not itself vest a quarantine officer with power to order goods into quarantine but operates in relation to goods in respect of which such an order has been made. The word “goods” is defined in s 5 of the Quarantine Act in an expansive manner. Of particular relevance for present purposes is that “goods” is defined to include “an animal”.

21    Section 55A of the Quarantine Act, which Mr McDonald invoked in relation to the order into quarantine, provides (relevantly):

55A    Power to order goods into quarantine

(1)    A quarantine officer may:

(a)    examine any goods to which this section applies; and

(b)    order into quarantine any of the goods that, in the officer’s opinion:

(i)    are, or are likely to be, infected with a disease or pest; or

(ii)    contain, or appear to contain, any disease or pest; or

(iii)    have been exposed to infection from a disease or pest.

(2)    This section applies to:

(a)    imported animals and plants, whether subject to quarantine or otherwise;

(aa)    other imported goods, whether subject to quarantine or otherwise; and

(b)    any other goods that have been or are, or that an officer has reasonable cause to believe have been or are, on board any of the following:

…

As can be seen, s 55A empowers a quarantine officer, in the circumstances described, to order into quarantine an imported animal whether or not that animal is subject to quarantine.

22    The appellant’s submission that s 48 did not authorise the export direction of 25 October 2012 was put on three alternative bases. First, that the order and direction of Dr Cass on 24 August were invalid, with the effect that it had not been open to Mr McDonald to rely on the test results brought into existence in consequence of the direction of Dr Cass.

23    Secondly, that even if it had been open to Mr McDonald to rely on those test results, his consideration of them did not amount to an examination of the kind contemplated by s 55A(1), with the effect that it had not been open to him to order Pepper into quarantine. As the powers in s 48(1) are conditioned on there having been a valid order into quarantine, this meant that no valid direction to export could be issued.

24    Thirdly, that even if there was an examination of the requisite kind, it is implicit in s 55A(1) that the order into quarantine must be reasonably proximate to the date on which the examination was made. The appellant contended that that had not occurred in this case.

25    The third of these alternatives was not put to the FCC Judge but nothing turns on that presently.

26    The FCC Judge did not determine the issues raised by these submissions. Instead, he accepted the respondent’s submission that s 35(1) of the Quarantine Act provided an alternative source of authority for Mr McDonald’s order into quarantine and that it was open to the respondent to rely upon that authority on the judicial review.

27    A passage in the Judge’s reasons suggests that he may also have regarded s 35(1AAA) as an available source of power for the order of Pepper into quarantine. However, that provision relates to goods which are themselves quarantinable diseases or quarantinable pests, and there is no suggestion that Pepper could be so characterised. It is not necessary to address s 35(1AAA) any further.

28    Although the respondent maintained on appeal that both s 35(1) and s 55A(1) authorised the order into quarantine made by Mr McDonald, s 35(1) was at the forefront of the Director’s submissions. It is convenient to address first whether it can be invoked to justify Mr McDonald’s export directions.

Had s 35(1) been available to Mr McDonald?

29    The appellant contended that, on the proper construction of the Quarantine Act, s 35(1) had no application in Pepper’s circumstances.

30    Section 35 provides (relevantly):

(1)    A quarantine officer may, by order in writing, order into quarantine any vessel, Australian installation, resources installation that is in Australian waters for the purpose of becoming attached to the Australian seabed, sea installation that is in Australian waters for the purpose of being installed in an adjacent area or in a coastal area, person, or goods (whether subject to quarantine or not), being or likely to be, in his or her opinion, infected with a quarantinable disease or quarantinable pest or a source of infection with a quarantinable disease or quarantinable pest.

…

(1AA)    A quarantine officer may, by order in writing, order into quarantine any goods (whether subject to quarantine or not) in the Cocos Islands that, in his or her opinion, are, or are likely to be, infected with, or a source of infection with, a disease or pest.

(1AB)    A quarantine officer may, by order in writing, order into quarantine any goods (whether subject to quarantine or not) in Christmas Island that, in his or her opinion, are, or are likely to be, infected with, or a source of infection with, a disease or pest.

…

(3)    The order may:

…

(c)    in the case of any goods, be served on the importer, owner, consignee or any person having possession or custody of the goods.

(4)    When the order has been served in accordance with this section, the vessel or installation, and all persons and goods on board the vessel or installation, or the person or goods, as the case may be, shall be deemed to be ordered into quarantine.

31    Relevantly to the present case, s 35(1) authorises a quarantine officer to “order into quarantine any … goods (whether subject to quarantine or not), being or likely to be, in his or her opinion, infected with a quarantinable disease … or a source of infection with a quarantinable disease …”. When an order under subs (1) is served on the owner, the goods are deemed to be ordered into quarantine (subs (4)).

32    The principles relating to the justification of an administrative decision by reference to a source of authority not relied upon by the decision-maker are settled. The validity of an administrative decision turns on the existence of the power to make the decision at the relevant time and, subject to some qualifications, a mistaken reliance by the decision-maker on one head of power is of no consequence if another source of power is available (Brown v West (1990) 169 CLR 195 at 203; Johns v Australian Securities Commission (1993) 178 CLR 408 at 426; Australian Education Union v Department of Education and Children’s Services [2012] HCA 3 at [34]; (2012) 248 CLR 1 at 16-17).

33    In Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 412, Black CJ listed a number of circumstances in which resort may not be had to an alternative source of power: when the exercise of the alternative power depends upon a condition precedent which has not been satisfied; when there are matters to which the decision-maker is bound to have regard, or to ignore, in exercising the alternative power which are incompatible with the power first exercised; and when the rights of third parties may be affected differently by the exercise of the alternative power.

34    The appellant’s submission that s 35(1) was not available to support Mr McDonald’s order was put on a number of alternative bases.

Is s 35(1) confined to goods on vessels?

35    I will consider first the appellant’s submission that s 35(1) extended only to goods located on a vessel, an Australian installation, a resources installation in Australian waters, or a sea installation, these being the objects referred to in its opening four lines.

36    This submission overlooks that the word “or” immediately preceding the word “goods” in subs (1) indicates that it and the preceding four objects are to be construed disjunctively. On a natural and ordinary construction, each of the subjects specified in subs (1) is a matter, person or thing which, independently of the other specified matters, persons or things, may be the subject of an order into quarantine. Their presence on a vessel or other installation is not a condition of the application of s 35(1).

37    I note that an argument to similar effect was rejected by Wilcox J in Hanson v Commonwealth Director of Quarantine (1984) 57 ALR 365 at 379.

38    The appellant submitted that support for the limitation on the operation of s 35(1) for which he contended is found in s 70 of the Quarantine Act. Section 70 authorises quarantine officers to board any vessel answering a given description and, after boarding, to examine, amongst other things, any goods on the vessel. The submission, as I understood it, was that s 35(1) was to be construed as though it was subject to, and confined by, s 70.

39    I reject this submission. Section 70 forms part of Part VII of the Quarantine Act entitled “Miscellaneous”. It is in the nature of a facilitating provision. There is no reason to regard the operation of s 35, which is in Division 2 of Part IV of the Quarantine Act entitled “Performance of Quarantine”, as being qualified in a limiting way by such a facilitative provision.

Effect of unconditional release of goods from quarantine?

40    The appellant submitted that the power in s 35(1) is not available with respect to goods, in particular, animals, which have been released from quarantine unconditionally.

41    Section 52 of the Quarantine Act contains the regime governing the release of imported animals from quarantine. If a quarantine officer considers that there is no reason to suspect that an imported animal which has not been released from quarantine is suffering from any disease or is a source of infection of a disease, the officer may permit the animal to be delivered to its importer (subs (2)). That delivery may be an unconditional release from quarantine or a release under quarantine surveillance for such period as the Director of Quarantine determines (subs (3)). If the quarantine officer does not permit the imported animal to be delivered to its importer, he or she must order the animal into quarantine (subs (4)). An imported animal may be released from quarantine under quarantine surveillance unconditionally or subject to conditions notified by the quarantine officer (subs (5)). If a quarantine officer releases an animal from quarantine under quarantine surveillance, the officer may give directions about the place at which the animal is to be kept, how it is to be dealt with, the movement and treatment of the animal, and examinations and tests to be carried out on it (subs (5A)).

42    Pepper’s release from quarantine on 9 August 2012 had been unconditional. There was no condition of quarantine surveillance imposed.

43    As already seen, s 35(1) authorises an order into quarantine of “goods (whether subject to quarantine or not)” if a quarantine officer forms the requisite opinion. Accordingly, for this argument of the appellant to succeed, this apparently general expression would have to be understood as subject to the qualification that it does not include goods which had previously been released unconditionally from quarantine.

44    Section 18 identifies the goods which are subject to quarantine. These include (relevantly):

(2)    The following goods shall be subject to quarantine:

(a)    all goods which are on board an overseas vessel, or which have been on board the vessel since:

(i)    in the case of a vessel that has arrived in Australia from a place outside Australia—its arrival in Australia; or

…

(b)    all goods infected with a quarantinable disease or quarantinable pest;

(ba)    all quarantinable pests and quarantinable diseases;

(c)    all goods which have been in contact with or exposed to infection from a quarantinable disease or quarantinable pest or from any person or goods subject to quarantine;

…

(f)    any goods that are ordered into quarantine by a quarantine officer.

Subject to some qualifications which are not presently relevant, goods which become subject to quarantine continue to be so subject until their release from quarantine (s 19A(1)).

45    There is nothing in s 18(2) which indicates that its operation is confined to imported goods, let alone to those goods for a defined period only. Instead it is capable of applying to all goods, including goods which have been in Australia throughout their existence.

46    When this is understood, it is reasonable to suppose that goods which become infected with a quarantinable disease or a quarantinable pest after release from an earlier quarantine are subject to quarantine in the same way as goods which become so infected but which have never been subject to quarantine. In particular, there is no reason to conclude that goods released from quarantine acquire a form of immunity from an otherwise appropriate or necessary order into quarantine. Contrary to what appeared to be an implicit assumption in the appellant’s submissions on this topic, a release from quarantine is not a release from the operation of the Quarantine Act altogether. This submission of the appellant fails.

Sections 44C, 44D and 54 and goods released from quarantine

47    The appellant made an alternative, and more substantial, submission that s 35(1) has no application to goods which have been released from quarantine or, at least, has only a qualified operation in relation to such goods. This was to the effect that the operation of s 35(1) is qualified by reference to ss 44C and 44D.

48    Each of ss 44C and 44D authorises a quarantine officer, or an authorised person, to examine goods: in the case of s 44C, being goods that have not been released from quarantine; and in the case of s 44D, being goods that have been released from quarantine. If a quarantine officer considers that there is an unacceptably high level of quarantine risk in respect of the goods, the officer is obliged by those provisions to order the goods into quarantine. Sections 44C and 44D provide as follows:

44C Examination of goods on importation

(1)    A quarantine officer or an authorised person may examine any imported goods that have not been released from quarantine.

(2)    The quarantine officer must:

(a)    if he or she is of the opinion that there is an unacceptably high level of quarantine risk in respect of the goods—order the goods into quarantine; or

(b)    otherwise—release the goods from quarantine.

(5)    In this section, goods does not include an animal within the meaning of section 52 or a plant.

44D Examination of imported goods

(1)    A quarantine officer or an authorised person may examine any imported goods that have been released from quarantine.

(2)    If, after the examination of the goods under subsection (1), a quarantine officer is of the opinion that there is an unacceptably high level of quarantine risk in respect of the goods, the officer must order the goods into quarantine.

(3)    In this section, goods does not include an animal within the meaning of section 52 or a plant.

49    The appellant’s submission was that s 44D which, like s 35, is located in Division 2 of Part IV of the Quarantine Act, is the specific provision addressing the ordering into quarantine of goods that have been released from quarantine. It should be regarded, as I understood the argument, as being the source of a quarantine officer’s powers with respect to goods released from quarantine with the effect that s 35(1) could not also be regarded as a source of such a power. Counsel referred to Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 and Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; (2012) 248 CLR 1.

50    Sections 44C and 44D each contain a stipulation that the expression “goods” does not include an animal or a plant within the meaning of s 52. They cannot, therefore, have application in the present case. However, the appellant’s submission was that their presence serves to indicate that the operation of s 35(1) with respect to goods once released from quarantine is impliedly excluded.

51    The appellant could have advanced a like submission by reference to ss 52, 53 and 54 of the Quarantine Act which are similar to, although not identical with, ss 44C and 44D. Sections 52, 53 and 54 relate to plants and animals. They provide:

52    Examination of animals on importation

(1)    A person authorised by a Director of Quarantine may examine an imported animal that has not been released from quarantine.

(2)    Subject to the regulations, where a quarantine officer is of the opinion that there is no reason to suspect that an animal:

(a)    imported into Australia; or

…

that has not been released from quarantine is suffering from any disease or is a source of infection of a disease, the quarantine officer may permit the animal to be delivered to the importer of the animal.

…

(4)    Where a quarantine officer does not permit an imported animal to be delivered to the importer of the animal under subsection (2), the officer shall order the animal into quarantine.

…

53    Examination of plants on importation

(1)    A quarantine officer or an authorised person may examine any imported plant that has not been released from quarantine.

(2)    A quarantine officer must:

(a)    if he or she is of the opinion that there is an unacceptably high level of quarantine risk in respect of the plant—order the plant into quarantine; or

(b)    otherwise—release the plant from quarantine.

54    Examination of imported animals and plants

(1)    A quarantine officer or an authorised person may examine an imported animal or plant that has been released from quarantine.

(2)    If, after the examination of an animal under subsection (1), a quarantine officer is of the opinion that the animal is suffering from a disease or is a source of infection of a disease, the officer may order the animal into quarantine.

(3)    Where, after the examination of a plant under subsection (1), a quarantine officer is of the opinion that there is danger of the plant spreading a disease, the officer may order the plant into quarantine.

(4)    In this section, animal has the same meaning as in section 52.

Section 52(1) and (2) relate to imported animals which have not been released from quarantine; s 53 to imported plants which have not been released from quarantine; and s 54 to imported animals or plants which have been released from quarantine.

52    In any event, the appellant sought to demonstrate that, by reason of the implied qualification on the operation of s 35(1) arising from other provisions in the Quarantine Act, it could not be invoked in this case.

53    There may be cases in which an enactment intends to grant one power, and one power only, for the taking of the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 at [54]-[59]; (2006) 228 CLR 566 at 586-9. Whether that is so in a given case depends on the construction of the statute as a whole, its text, subject, scope and purpose. Relevant matters include the existence of any incompatibility between the two provisions, such that resort to one provision may undermine the operation of another more specific provision; that one provision is directed with particularity to the case of an applicant, and the other is not (Nystrom at [2] 571-2 per Gleeson CJ); and whether the two powers are the same power or are powers with respect to the same subject matter (Nystrom at [59] 589 per Gummow and Hayne JJ).

54    The subject matter of s 35 is (relevantly) goods generally, whether subject to quarantine or not. The section is capable of applying to goods which have been released from quarantine as well as to goods which have never been subject to quarantine. In that sense it is a general provision.

55    Sections 44C and 44D, on the other hand, are more specific. The subject matter of those provisions is imported goods. The former concerns imported goods which have not been released from quarantine and the latter those which have. In that sense they can be regarded as special provisions.

56    There are some indications that s 35(1) and ss 44C and 44D have a different effect and sphere of operation. I will refer shortly to authority indicating that, under s 35(1), it is the mere presence of a quarantinable disease or quarantinable pest, rather than a quarantine officer’s opinion about those matters, which is sufficient to enliven the discretion in the quarantine officer to make the order into quarantine.

57    In the case of ss 44C and 44D, the concepts of quarantinable disease and quarantinable pests have no role. Instead, those provisions require the quarantine officer to make an evaluation of the quarantine risk presented by the goods. If the quarantine officer concludes that there is “an unacceptably high level of quarantine risk in respect of the goods”, the officer must order the goods into quarantine. The expression “level of quarantine risk” is elaborated in s 5D of the Act to mean the probability of a disease or pest being introduced, established or spread in (relevantly) Australia and the disease or pest causing harm to human beings, animals, plants, other aspects of the environment, or economic activities and the probable extent of the harm.

58    The counterpart provisions in ss 52, 53 and 54 are in similar terms although, somewhat curiously, s 54 does not use the mandatory word “must” in relation to the ordering of the animal or plant into quarantine.

59    Despite (or perhaps because of) the differences between ss 44C, 44D and 54, on the one hand, and s 35(1) on the other, the argument that the former are specific provisions concerning the retention in, or return to, quarantine of imported goods is plausible. Prima facie, they could be said to evince a legislative intention that, although an unconditional release from quarantine does not convey a permanent immunity from return to quarantine, such a return should occur only if a quarantine officer forms a particular opinion (unacceptable quarantine risk) and that that opinion be formed only after an examination of the goods in question by the quarantine officer.

60    The argument is particularly plausible if s 44D and perhaps more particularly, s 54, are considered in isolation. However, in my opinion their proper effect should be determined having regard to the context of the Quarantine Act as a whole.

61    Sections 35, 44C, 44D and 48 form part of Part IV of the Quarantine Act which is headed “Quarantine of vessels, persons and goods”. Part V of the Act, which comprises ss 52 to 55A, has the heading “Quarantine of plants and animals”. That division of subject matters could be taken to suggest that, despite the inclusion of animals in the definition of goods, it is Part V which contains the particular provisions concerning their quarantine, to the implied exclusion or qualification of the more general provisions in Part IV.

62    However, an inference to that effect is not appropriate. Section 16A, with which Part IV commences, provides expressly that, “[n]otwithstanding Part V, this Part applies in relation to animals and plants as well as in relation to other goods”. Section 16A was inserted into the Quarantine Act by the Quarantine Amendment Act 1981 (Cth) (the 1981 Amendment). It is an express legislative negation of the inference which might otherwise be thought to arise from Part V dealing discretely with animals and plants, and an express indication that the powers in Part IV are to be understood as available in respect of animals and plants. The Explanatory Memorandum relating to the 1981 Amendment when introduced into the House of Representatives said that the new s 16A was “to put beyond doubt the fact that Part IV of the Act … applies to animals and plants as well as other goods”. Accordingly, s 16A counts against the view that the powers vested in quarantine officers by Part IV are qualified by those vested by Part V.

63    To my mind, it is improbable that Parliament, having gone to the trouble of stating expressly that Part IV (which includes s 35) applies to animals and plants should be understood to have intended by implication that s 35 should operate in only a qualified way in relation to one category of animals and plants, namely, those that have been released unconditionally from quarantine.

64    It is also to be noted that subpars (2)(aa) and (b) of s 55A make it plain that that provision, although within Part V, is not concerned only with plants and animals.

65    The Quarantine Act contains numerous provisions authorising or requiring the ordering of goods into quarantine. Some have a specific subject matter, but several appear capable of application to the same sets of circumstances. This militates against regarding the Quarantine Act as being a scheme of carefully marked out powers, each with its own exclusive field of operation. In particular, it militates against regarding ss 44D and 54, as conferring the powers, and the only powers, to order goods or animals previously released from quarantine into quarantine.

66    The provisions in the Quarantine Act containing an express power to order persons, objects or goods into quarantine include s 35(1) (persons, objects and goods infected with, or a source of infection with, a quarantinable disease or a quarantinable pest), s 35(1AAA) (goods which are, or which are likely to be, quarantinable diseases or pests), s 35(1AA) (goods in the Cocos Islands infected with or a source of infection with a disease or pest), s 35(1AB) (goods in Christmas Island infected with a disease or pest), s 35(1A) (persons who have not been vaccinated against prescribed diseases), s 35(2) (vessels arriving from declared places), s 35(2A) (overseas installations arriving from declared places), s 35AA(3) (persons who do not undergo required medical examinations), s 35AA(4) (non-citizens suffering from active pulmonary tuberculosis), s 35A(3) (persons on vessels or installations who suffer from, or who have been exposed to, a communicable disease), s 44D (imported goods released from quarantine with an unacceptably high level of quarantine risk), s 52(4) (imported animals not released from quarantine), s 52A (animals or plants on board an installation), s 53 (imported plants not released from quarantine), s 54 (imported animals or plants which have been released from quarantine), s 55A (imported animals and plants, other imported goods and goods in defined locations), and s 66AA(1)(g) (infected goods found on premises). In relation to animals in Australia, each of ss 35(1), 52(4), 54, 55A and 66AA(1)(g) contain provisions permitting or requiring an order into quarantine.

67    None of these provisions contains an express indication that its operation is made subject to other provisions by, for example, by a statement to that effect, or a statement that they apply only when other provisions are inapplicable.

68    Perhaps the clearest indication that s 54 should not be regarded as the single source of power for the ordering into quarantine of an animal which has previously been released from quarantine is its juxtaposition with s 55A. The two provisions have several similarities. In the case of the former however, the quarantine officer must form the opinion that the animal is suffering from a disease or is a source of infection of a disease, whereas s 55 permits an order into quarantine of an imported animal, whether subject to quarantine or otherwise, if it is or is likely to be infected with a disease or pest, contains or appears to contain any disease or pest, or has been exposed to infection from a disease or pest. It is self-evident that these provisions at least may have an overlapping application.

69    To my mind, this feature indicates a legislative intention that two or more provisions in the Quarantine Act may be applicable to the same circumstance. Once that be accepted, one can more readily draw the inference that other provisions too are intended to have an overlapping operation. In particular, it then becomes less appropriate to construe s 35 as being subject to some implied qualification arising from other provisions in the Quarantine Act, including those to which the applicant drew attention.

70    Sections 44A to 44D were also introduced into the Quarantine Act by the 1981 Amendment. Their introduction, and in particular the introduction of ss 44C and 44D, amounted to the vesting of additional powers in quarantine officers. However, this does not mean that quarantine officers were then granted powers which they had not had previously. On the contrary, it seems probable that ss 35 and 55 before the amendment would have authorised the order into quarantine of goods which had previously been released from quarantine.

71    In the short digest of the Quarantine Amendment Bill 1981 (Cth) presented by the Minister when introducing the Bill on 9 April 1981, he said:

Clause 24 inserts new sections 44A, 44B, 44C and 44D which provides quarantine officers with additional powers to control the movement of and make inspections of goods in quarantine or of goods that have been released from quarantine in either Australia or the Cocos Islands. Under proposed s 44D(2) a quarantine officer may re-order goods into quarantine if the officer is of the opinion that those goods may spread a disease affecting persons, animals or plants.

(Emphasis added.)

On one view, this passage may reflect a view that the new provisions would vest quarantine officers with powers which they had not had previously. Another view is that the new powers were intended to supplement the existing powers and, in particular, were not to be understood to confine by implication the existing powers. That is the view which I consider appropriate as I am unable to discern anything in the text of the Quarantine Act, or in its legislative history, which would warrant a reading down of the existing s 35 by reason of the provisions inserted in 1981. In my opinion, the evident intention of the 1981 amendment was to vest quarantine officers with powers additional to those which they already had with respect to the re-ordering into quarantine of goods and animals previously released from quarantine.

72    In summary, I consider that the legislative history, together with the presence in the Act of multiple powers with an overlapping operation, contra-indicates the view that one provision (s 35(1)) is qualified by a limitation in another. Instead, it should be construed as a free-standing provision which is capable of operating independently according to its own terms. As Gleeson CJ observed in Nystrom at [2]:

[The two provisions] create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available.

73    For these reasons, I conclude that none of ss 44C, 44D or 54 indicate that the operation of s 35(1) is impliedly excluded with respect to goods or animals which have been released unconditionally from quarantine. Nor do they indicate that s 35(1) should be construed, in relation to such goods or animals, as being subject to the same limitations as are contained in those provisions.

Were the conditions for the application of s 35 established?

74    The appellant contended that, even if, on the proper construction of the Quarantine Act, s 35 was available as a source of authority to Mr McDonald, the conditions for its exercise had not been established.

Did Mr McDonald have to form an opinion?

75    The appellant contended, first, that s 35(1) requires a quarantine officer to form the opinion that the goods in question are, or are likely to be, infected with a quarantinable disease or a quarantinable pest, or a source of infection with a quarantinable disease or a quarantinable pest. The appellant contended that, in the present case, Mr McDonald had not held any of these opinions.

76    The appellant referred in this respect to Mr McDonald’s statement of reasons for his decision:

[16]    After taking the blood test results and the covering email confirming a disease diagnosis into consideration, I formed the opinion that the dog either was, or was likely to be, infected with a disease and had also been exposed to infection from a disease.

…

[18]    After forming this opinion I ordered the dog into quarantine under s 55A of the Act.

[19]    Once ordered into quarantine, I reviewed the list of quarantinable animal diseases provided in Schedule 3 of the Proclamation and confirmed that canine ehrlichiosis was listed. Therefore, I considered that this was a disease of significance under the Act.

As can be seen, it was only after Mr McDonald had ordered Pepper into quarantine that he formed the view that the disease with which he considered Pepper to be infected was a quarantinable disease. Hence, the appellant submitted that Mr McDonald had not, at the relevant time, formed the opinion that Pepper was, or was likely to be, infected with a quarantinable disease or a source of infection with a quarantinable disease.

77    Unassisted by authority, I may well have construed the phrase “in his or her opinion” in s 35(1) as having a distributive operation, that is, as requiring that the quarantine officer form at least one of four opinions in respect of the goods in question, namely, an opinion that the goods are (relevantly for present purposes):

(a)    infected with a quarantinable disease; or

(b)    likely to be infected with a quarantinable disease; or

(c)    a source of infection with a quarantinable disease; or

(d)    likely to be a source of infection with a quarantinable disease.

This is the construction for which the appellant contended. It seems a natural construction of the text in s 35(1) and also to be consistent with its object and purpose. On that construction, the appellant’s submission would succeed, as Mr McDonald did not form the requisite opinion until after he had made the order into quarantine.

78    However, there is authority, to which counsel for the Director drew attention, for a contrary construction. In Hanson v Commonwealth Director of Quarantine (1984) 57 ALR 365, Wilcox J considered s 35(1). That subsection has since been amended, but not in a way which is material for present purposes. Wilcox J held at 379:

It seems to me the section is applicable to any goods – however long they may have been in Australia – which answer any one of the descriptions of:

(a)    being infected with a quarantinable disease;

(b)    likely to be, in the opinion of the quarantine officer who issues the order, infected with a quarantinable disease;

(c)    being a source of infection with a quarantinable disease; or

(d)    likely to be, in the opinion of the quarantine officer who issues the order, a source of infection with a quarantinable disease.

Thus, Wilcox J considered that s 35(1) authorised an order into quarantine if the goods were, in fact, infected with a quarantinable disease or were, in fact, a source of infection with a quarantinable disease and that the quarantine officer’s opinion related only to the second and fourth of the above alternatives.

79    In accordance with well-established principle, I should follow the construction of Wilcox J in relation to s 35(1) unless satisfied that his approach is plainly wrong: BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157 at [83]; (2007) 162 FCR 234 at 253. I am not so satisfied. The construction of s 35(1) adopted by Wilcox J in Hanson is clearly open. As French J, when a member of this Court, observed in Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263 at [52]; (2003) 133 FCR 190 at 206:

When questions of law and in particular statutory construction are concerned, the view that a judge who has taken one view of the law or a statute is “clearly wrong” is not likely to be adopted having regard to the choices that so often confront the courts particularly in the area of statutory construction.

80    Accordingly, I conclude that the application of s 35(1) did not require Mr McDonald to form an opinion that Pepper was likely to be infected with a quarantinable disease. The order into quarantine could be made under subs (1) if Pepper was in fact so infected.

81    The evidence before Mr McDonald and before the FCC Judge indicated that Pepper was in fact infected with CME and that CME is a quarantinable disease. It was accordingly immaterial that Mr McDonald had not adverted to that latter fact. This condition for an order into quarantine under s 35(1) was therefore established.

82    I add, in case this matter goes further, that had I been required to consider whether Mr McDonald was of the opinion that Pepper was infected with a “quarantinable disease”, I doubt that I would have accepted one submission of the respondent on that topic. That was the submission to the effect that it was sufficient for Mr McDonald to be of the opinion that Pepper suffered from a disease which was in fact, although unbeknown to Mr McDonald, a quarantinable disease. A construction to that effect does not give full effect to the word “quarantinable” in s 35(1). Instead, it tends to equate subs (1) with the opinion required by subss (1AA) and (1AB) which require only that the quarantine officer form an opinion that the goods in question are likely to be “infected with, or a source of infection with, a disease or pest”.

83    The respondent sought to support the submission on this topic by reference to Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53. That decision concerned the knowledge necessary to establish accessorial liability under s 75B(1) of the Trace Practices Act 1974 (Cth). Gummow, Hayne and Heydon JJ said, at [48], that “[i]n order to know the essential facts, and thus satisfy s 75B(1) of the Act and like provisions, it is not necessary to know that those facts are capable of characterisation in the language of the statute”. The respondent submitted that similar reasoning should be applied in relation to the expression “quarantinable disease” with the effect that it was necessary only for a quarantine officer to form the opinion that the goods were infected with a disease and not, in addition, the characterisation of that disease given by a relevant law.

84    Section 75B, and like provisions, are concerned with a quite different subject matter from s 35(1). That is the question of whether the alleged accessory has participated intentionally in the contravention of the primary defendant. Such intentional participation exists only if the alleged accessory had knowledge of the essential elements making up the contravention.

85    Section 35(1) on the other hand, is concerned with the opinion to be formed by a quarantine officer before taking action which involves, albeit for the public benefit, an intrusion into private rights. In that context, subs (1) appears to require an opinion not only that the goods are infected with a disease, but the opinion that that disease is of a particular character. This seems to be confirmed by the comparison of subs (1) with subs (1AA) and (1AB) to which I referred earlier.

86    However, it is not necessary to express a concluded view about this submission. The appellant’s submission on this issue fails for the reasons stated earlier.

Does s 35 require that goods be examined?

87    The appellant submitted that the power in s 35(1) may not be exercised without a quarantine officer having conducted an examination of the goods and that the FCC Judge had been wrong to hold otherwise. The submission was that a quarantine officer could not form the opinion to which s 35(1) refers without such an examination. As Mr McDonald had not conducted any examination in the requisite sense, this too meant that his export direction could not be justified by reference to s 35(1).

88    I reject this submission. Section 35(1) does not itself make an examination of the object in question a pre-condition for the exercise of the powers which it vests in quarantine officers. In this respect s 35(1) contrasts with a number of other provisions (ss 44D, 54) which do expressly condition the exercise of powers on a quarantine officer’s opinion after performing an examination, and provisions (ss 44C, 52, 52A, 53, 55A) which impliedly do so. Given that the Parliament has directed attention to this topic, one would not readily construe s 35(1) as being subject to a similar limitation.

Omission to refer to s 35(1) in the quarantine order

89    The appellant’s final submission concerning s 35(1) was that Mr McDonald’s omission to specify in the quarantine order his reliance on s 35 precluded the Director now from justifying his decision by reference to it. The appellant did not refer to any authority to support this submission, contending only that the recipient of such an order was entitled to know the statutory basis on which it was made and that this requirement was implicit in the need for the order to be in writing.

90    Some of the relevant authorities were reviewed by Kiefel J, when a member of this Court, in Harris v Great Barrier Reef Marine Park Authority [1999] FCA 437; (1999) 162 ALR 651. Her Honour noted (at [17] 656) that it is a question of statutory construction as to whether the statute in question requires the decision-maker to specify the authority relied upon. Kiefel J observed (at [18] 656):

One would think such requirements would be rare. Even cases which hold that notices are required to express the limitations which a statutory provision places upon a power, require the content of the notice to address the statutory criteria but not to identify the actual source of authority …

91    No doubt it is good practice for administrative decision-makers to indicate the source of the authority pursuant to which they are proceeding. However, good practice is one thing, the requirement of the statute another. The appellant did not establish that any feature of the Quarantine Act indicated that it required the source of the power being invoked for an order into quarantine to be specified in the order itself. The mere fact that it would be relatively simple for a quarantine officer to specify the provision relied upon is insufficient.

92    I reject this submission.

Conclusion on s 35

93    The appellant has not made good his challenge to the decision of the FCC Judge that the order into quarantine of 25 October 2012 could be justified by reference to s 35.

94    That conclusion makes it unnecessary, strictly speaking, to consider whether the order into quarantine was authorised by s 55A. However, in case this matter goes further, I will state my views on that issue.

Was there a valid order into quarantine under s 55A?

95    The submissions of both parties proceeded on the basis that there were three conditions for the exercise of the power in s 55A(1) to order Pepper into quarantine: that the quarantine officer had examined the dog (subs (1)(a)); that Pepper was an imported animal, whether subject to quarantine or otherwise (subs (2)(a)); and that the quarantine officer had formed the opinion that Pepper was, or was likely to be, infected with a disease, or had been exposed to infection from a disease (subs (1)(a)). There was no dispute about the second and third of these conditions. The only question was therefore whether either Dr Cass or Mr McDonald had, in the manner contemplated by subsection (1)(a), “examined” Pepper.

96    The parties’ submissions accepted that s 55A(1) does not bestow powers which may be exercised independently, i.e. a power to examine goods and, separately, a power to order into quarantine goods which, in the quarantine officer’s opinion, satisfy the prescribed criteria. I consider the interpretation accepted by the parties to be appropriate. It fits aptly with the language used in the provision, involves a construction of s 55A which is consistent with the analogous provisions in ss 52-54, and is consistent with its legislative history.

97    Dr Cass did not conduct a physical examination of Pepper before ordering Pepper into quarantine on 24 August 2012. Instead, Dr Cass relied on a notification dated 23 August 2012 from Dr Irwin from Murdoch University that the testing in the United States had returned a positive result for CME, as well as departmental information about CME. In addition, Dr Cass spoke by telephone to Dr Irwin.

98    Mr McDonald did not conduct a physical examination of Pepper. In fact, he had never set eyes on Pepper. Nor did he request any other quarantine officer to examine Pepper or to cause tests to be carried out on Pepper.

99    In his statement of reasons, Mr McDonald identified the materials and information to which he had referred. These included (relevantly) Australia’s import requirements for dogs imported from Singapore as published on the DAFF website, which specified:

Ehrlichiosis: Dogs must be tested for Ehrlichia canis infection by the indirect fluorescent antibody test (IFAT). The test must produce a negative result at a dilution of 1:40.

In addition, Mr McDonald said that he had regard to a pathology report of 4 October 2012 which confirmed a positive test result and a covering email, also dated 4 October 2012, from Dr Irwin attaching the laboratory test result and confirming the diagnosis of CME. Mr McDonald’s reasons included the following paragraphs:

[13]    In considering, pursuant to s 55A of the Act, whether to order goods into quarantine, I am first required to examine the goods and order into quarantine any goods that … in my opinion are, or are likely to be, infected with a disease or pest. Section 5 of the Act defines “examine” in relation to an animal as including the carrying out of tests, the taking of samples or to carry out a veterinary procedure on the animal. As set out at paragraph 14 below, tests were carried out on the animal, and accordingly, I find that the goods have been examined and were ordered into quarantine.

[14]    In considering, pursuant to s 48 of the Act, whether … goods (goods include animals) which have been ordered into quarantine are to be exported, I am required to consider the purposes of the Act. I have done so in relation to this matter.

[15]    The dog’s blood test results were received by the Department on 4 October 2012. The results showed a positive test result for Ehrlichia canis (antibody titre of 1:10240). I received this result with a covering email from a specialist veterinarian in canine medicine confirming a diagnosis of canine ehrlichiosis.

[16]    After taking the blood test results and the covering email confirming a disease diagnosis into consideration, I formed the opinion that the dog either was, or was likely to be, infected with a disease and had also been exposed to infection from a disease.

The reference in [13] to “paragraph 14” should be understood as a reference to [15].

100    As can be seen, Mr McDonald relied on the test report received on 4 October 2012. It is apparent that the sample to which the report related was taken pursuant to the regime put in place by the order of Dr Cass in August 2012.

101    The appellant submitted that neither Dr Cass nor Mr McDonald had examined Pepper as required, and that their omission to do so invalidated their respective quarantine orders. He submitted further that it had not been open to Mr McDonald to rely on the test result of 4 October 2012, as that result was a consequence of the regime put in place by the invalid order of Dr Cass of 24 August.

102    The appellant’s submission raises first the meaning of the word “examine” in s 55A and in its cognate provisions.

To examine?

103    The word “examine” is defined in s 5(1) of the Quarantine Act:

Examine includes:

(a)    in relation to an animal—carry out tests on, take samples from, or carry out a veterinary procedure on, the animal;

(b)    in relation to a plant—carry out tests on, take samples from, establish, cultivate, or undertake procedures for the diagnosis of a disease of, the plant; and

(c)    in relation to any other goods—carry out tests on, or take samples from, the goods; and

(d)    in relation to a vessel, installation or premises—carry out tests on, or take samples from, the vessel, installation or premises.

As can be seen, this is a non-exhaustive definition, the apparent purpose of which is to make plain that certain activities which may not otherwise have been regarded as within the scope of an examination are included. Each of the extended meanings in the definition connotes some physical activity involving the object being examined which may otherwise have been regarded as an unlawful interference with an owner’s property rights. The definition serves to indicate that activities of the defined kind are therefore authorised as part of an examination contemplated by the Act. The ordinary meaning of the word “examine” is not, however, confined to activities of this kind.

104    The Macquarie Dictionary indicates that the word “examine” has a variety of meanings:

1.    to inspect or scrutinise carefully; inquire into or investigate.

2.    to test the knowledge, reactions, or qualifications of (a pupil, candidate, etc.), as by questions or assigned tasks.

3.    to subject to legal inquisition; to put to question in regard to conduct or to knowledge of facts; interrogate: to examine a witness; to examine a suspect. …

(Emphasis added.)

It is the first of these meanings which is apposite presently. It indicates that the word “examine” has a wide meaning. An examination may take the form of an inspection or scrutiny of the goods in question. Alternatively, it may comprise an inquiry into, or an investigation of, those goods. In either case, by reason of the statutory definition, the examination may involve testing or sampling and, in relation to plants and animals, other procedures as well.

105    An examination, in the sense of an inspection of goods, is apt to connote an activity involving the goods themselves in a physical sense. There may be exceptions, for example, inspections by means of video or photos but, in general, an activity involving a form of physical contact with the goods seems to be connoted. On the other hand, to examine goods in the sense of to scrutinise, inquire into or investigate goods need not in the ordinary sense of those words require a physical inspection of the physical object itself. The appellant accepted that that was so.

106    In my opinion, that acceptance was appropriate. This is particularly so having regard to the objects of the Quarantine Act, the apparent purpose of the examinations it requires, the range of circumstances in which an examination may have to occur, the size (largeness or minuteness) of the object to be examined, the location and availability of the object for examination, the urgency with which an examination may have to be conducted, the time and resources available for an appropriate physical examination, the likely varying skills of quarantine officers, and the differing resources available to each quarantine officer.

107    The appellant submitted that, even though a physical examination of the animal or goods may not be necessary, a quarantine officer must nevertheless engage in an activity which amounts to an examination of the goods in question. This connoted, it was submitted, some purposeful activity by a quarantine officer directed to an examination in the form of an assessment of the goods in question. He submitted that that had not occurred in this case.

108    The appellant’s contention that the taking of the blood sample from Pepper on 6 August 2012 and the analysis of that sample in the United States was not an examination of the kind contemplated by s 55A(1) rested on the following. First, the taking of the sample and its later testing was neither conducted by, nor caused to be conducted by, a quarantine officer or an authorised officer. Both had occurred without the knowledge of a quarantine officer. Further, in sending the blood sample to an American laboratory for testing, Murdoch University Veterinary Service had acted in contravention of its agreement with DAFF in relation to the treatment of animals in quarantine.

109    Secondly, the analysis carried out in the United States (described as PCR analysis) was, in any event, a different form of testing from that contemplated by DAFF’s own policy guidelines. Those guidelines indicated that DAFF did not accept PCR results for the detection of CME.

110    In essence, the appellant contended that a form of examination which was neither commissioned nor authorised by a quarantine officer, and which was contrary to DAFF’s own policy guidelines, could not be an examination of the kind contemplated by s 55A(1).

111    It is not clear that the taking of the sample from Pepper on 6 August 2012 did occur without the authority of a quarantine officer. Pepper was in the Byford Quarantine Station in Perth when he became unwell on 3 August. It was a quarantine officer who directed Pepper’s transfer to Murdoch University Veterinary Hospital for treatment. An authorisation to the Veterinary Hospital to carry out such testing on Pepper as was reasonably necessary for the diagnosis and treatment of the condition causing his illness may well have been implicit in that direction.

112    However, the evidence did indicate that the despatch of the sample to the United States for analysis was in contravention of the agreed management protocol between DAFF and Murdoch University. That being so, it can be concluded that the commissioning of this particular testing was not authorised by the quarantine officer.

113    The circumstance that the PCR test carried out in the United States is not an approved form of testing in DAFF’s own guidelines is, in my opinion, a matter of no consequence. The stated rationale for DAFF’s policy is that PCR testing may return false negative results. The guidelines may therefore be understood as indicating only that DAFF does not accept a negative PCR result as indicating an absence of CME. In any event, the DAFF guidelines are just that: guidelines, and it was not suggested that they had any legislative or regulatory status.

114    In support of the submission that quarantine officers had to commission the relevant testing, or to cause it to be commissioned, the appellant emphasised the important role of quarantine officers and authorised officers in the performance of quarantine.

115    “[Q]uarantine officer” is defined in s 5(1) of the Quarantine Act to mean (relevantly) “a person appointed under subsection 9(2), 9AA(3) or 9A(1)”. The expression “authorised person” is defined in s 5(1) to mean “a person authorised by this Act or the regulations, or by the Minister or a quarantine officer, to do the act in relation to which the expression is used”. Section 8B of the Quarantine Act provides (relevantly):

(6)    Each quarantine officer (animals) or quarantine officer (plants) is to perform functions and may exercise powers, for a divison of quarantine for which he or she is appointed, under, and subject to the directions of:

(a)    the Chief Quarantine Officer for the division; or

(b)    if there is no such Chief Quarantine Officer—the Director of Animal and Plant Quarantine.

116    Quarantine officers are vested with powers, functions and responsibilities by several of the provisions in the Quarantine Act. They have important roles in the administration of the Act and the exercise of the powers which it confers. An authorised person is responsible for administering the Act to the extent authorised by the Act, the Minister or a quarantine officer. It can be concluded that the Act’s requirement that it be a quarantine officer or, in some cases, an authorised person, who carries out an examination is an important safeguard, ensuring that the powers under the Act are exercised in an appropriate way. This is particularly so bearing in mind the intrusive effect which the exercise of the powers may have in many circumstances. However, to recognise this does not, in my opinion, say anything about the nature of the examination, for the purposes of provisions such as ss 54 and 55A, which a quarantine officer or an authorised officer is to carry out.

117    The respondent relied on the actions of Mr McDonald as constituting the relevant examination. The Director submitted that Mr McDonald’s consideration of Pepper’s history, the test results for October 2012, and Dr Irwin’s confirmation of the diagnosis of CME on the same date amounted to an examination of the requisite kind. That consideration, the Director submitted, amounted to purposeful conduct constituting an inquiry into, or an investigation of, Pepper of the requisite kind. It was immaterial, the Director submitted, that Mr McDonald had not himself commissioned the tests upon which he relied: the examination lay in his consideration of the material made available to him.

118    The Director’s submission treats the expression “examine any goods” as having a meaning equivalent to “consider available and apparently reliable information regarding the goods” or “consider the known circumstances regarding the goods”.

119    The expression “a quarantine officer may examine any goods to which this section applies” in s 55A(1) should be construed in a composite way. Quarantine officers are vested with a discretionary power of a particular kind, which may be exercised or not as they choose, consistently with the proper discharge of their functions under the Quarantine Act. The exercise of that power may result in the quarantine officer forming an opinion leading to the imposition of restrictive and protective orders of varying kinds. This suggests that s 55A(1) is to be understood first, as conveying a form of authority to engage in an activity and, secondly, an authority to engage in an activity which may result in a state of satisfaction that restrictive and protective orders are appropriate. This suggests in turn that “examine” has the meaning of “investigate and determine”.

120    On this understanding, I consider it inappropriate to construe the expression “examine any goods” in the manner for which the Director contended. That is because it is doubtful that quarantine officers would need a legislative authority such as that contained in s 55A(1)(a) in order that they may consider available or apparently reliable information concerning the goods in question which is already in their possession.

121    I also consider that the Director’s submission does not differentiate sufficiently between the activity of examining as required by s 55A(1) and its counterparts, on the one hand, and the formation of the kind of opinion contemplated by s 35(1), on the other.

122    These considerations suggest that an examination for the purposes of s 55A(1)(a) and its counterparts has an active investigative component involving, in particular, some purposeful activity by the quarantine officer in considering observations, information or material concerning the goods in question. Ordinarily, quarantine officers will themselves have made at least some of the observations, or caused at least some of the information or material to have come into existence. However, it is not necessary for the disposition of this case to determine the minimum activity which may amount to an examination of the requisite kind. It is sufficient to proceed on the basis that, as a minimum, an examination involves some active investigative conduct by the quarantine officer in relation to the goods in question.

123    Although the FCC Judge made no findings about it, I consider that the evidence would justify a conclusion that the assessment made by Mr McDonald amounted to an examination of the requisite kind. That is because it was a quarantine officer (albeit not Mr McDonald) who had caused the taking and the testing of the samples from Pepper which resulted in the analysis of 4 October ultimately relied upon by Mr McDonald. As already noted, in August 2012, DAFF had imposed, as a condition of the quarantine surveillance of Pepper, that his treating veterinarian (Dr Davies) provide regular reports to it on his progress, including the results of CME PCR testing. It is reasonable to infer that this condition was imposed in order to facilitate future examinations of Pepper for the purposes of the Quarantine Act.

124    Dr Davies complied with this direction by providing to DAFF, and in particular to Dr Cass, copies of his reports to the appellant’s local veterinarian (Dr Buttery) dated 31 August, 6 September, 25 September and 10 October 2012. Dr Davies’ report of 25 September indicated that he had submitted a sample of blood from Pepper to Dr Irwin at Murdoch University for follow-up testing for CME. I infer that the test result of 4 October 2012 related to that sample.

125    Accordingly, if it be necessary that a quarantine officer have instigated at least some of the investigative steps in order that there be an examination of the requisite kind, that condition is satisfied. In the circumstances of this case, it would appear to be a matter of no consequence that it was one quarantine officer (Dr Cass) who caused the testing to be carried out, and another who made the order into quarantine under s 55A.

126    The appellant submitted that the test reported on 4 October was a re-testing of the original sample taken from Pepper on 6 August 2012. There is no evidential support for that submission and it must be rejected. This means also that the appellant’s argument that there was insufficient contemporaneity between the taking of the sample, on the one hand, and the examination by Mr McDonald, on the other, should fail.

127    Finally, even if the order into quarantine by Dr Cass on 24 August with the associated requirement for tests and reports was invalid, I would not have concluded that its effect was to preclude the later reliance by Mr McDonald on the test results. Such a conclusion would be appropriate only if there could be discerned in the Quarantine Act a legislative intention that evidence coming into existence only by reason of an invalid order into quarantine could not be relied upon in relation to subsequent decisions: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [94]-[98]; (1998) 194 CLR 355 at 391-2. Given the objects and purpose of the Quarantine Act and, more particularly, of an order into quarantine, such a legislative intention would be surprising. The appellant did not point to any matter warranting an inference to that effect.

Conclusion as to reliance on s 55A

128    For these reasons, I consider that the appellant has not made good his challenge to Mr McDonald’s reliance on s 55A, and in turn to his reliance on s 48.

Ground 2: Failure to consider a relevant consideration?

129    In his letter dated 31 August addressed to Dr Buttery which was copied to a number of officers within DAFF), Dr Davies informed her of the positive test result of CME and outlined the results of his physical examination of Pepper and of laboratory tests which he had organised. Under the heading “Management”, Dr Davies included the following:

Doxycycline should continue indefinitely, until repeat testing has shown that infection is cleared.

Doxycycline is a form of antibiotic.

130    The appellant contended that, when making the decision to direct that Pepper be exported, Mr McDonald had not taken account of this aspect of Dr Davies’ recommended management plan. This had the consequence, it was submitted, that Mr McDonald’s decision was an improper exercise of the power in s 48(1) because he had failed to take a relevant consideration into account (ADJR Act s 5(2)(b)).

131    In his evidence before the FCC judge, Mr McDonald said that he was aware of a recommendation that the administration of Doxycycline should continue indefinitely, but was not certain that he had been aware that it was Dr Davies who had made that recommendation. He then gave the following evidence in answer to questions from the appellant’s counsel:

Q    In arriving at your decision that the dog should be exported did you take into account the opinion that Doxycycline should continue indefinitely until repeat testing has shown that infection has cleared, and before you answer that I don’t mean the fact that there was a treatment strategy in place involving Doxycycline but the opinion of which you were aware that that treatment strategy should continue indefinitely until repeat testing has shown that infection is clear?

A    As an explicit taking into account in terms of the decisions I exercised under the order and the direction, I would say that I did not take it into account.

Q    Can you say why you didn’t take that into account, being aware of that opinion?

A    Yes. I didn’t take it into account because of the other advice made available to me which was that the literature, the research literature suggests that this is a very difficult disease to clear under treatment, and treatments are not definitive in their reliability to be effective.

132    The FCC Judge held that this evidence indicated that Mr McDonald had taken account of the recommendation that Doxycycline should continue, but had not attached any weight to it because of the literature indicating the difficulty in treating CME successfully.

133    In the proceeding before the Judge, the appellant did not challenge Mr McDonald’s view of the literature concerning the efficacy of treatment.

134    In my opinion, the appellant does not make good this ground of appeal. Dr Davies’ recommendation was not a “relevant consideration” within the meaning of s 5(2)(b) of the ADJR Act. That is because a treatment or management plan of an infected animal is not a matter which a quarantine officer is obliged to take into account when considering the exercise of the powers under s 48(1).

135    In Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375, Deane J said:

[Section 5(2)(b)] does not … mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account. …

In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.

(Emphasis added.)

Similarly, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, Mason J said:

The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision …

(Emphasis in the original.)

136    The factors which a decision-maker is bound to consider in making a decision are to be determined by a construction of the statute conferring the discretion. The appellant’s submissions did not point to any feature of the Quarantine Act or the Regulations made under it suggesting that a treating veterinarian’s management recommendation is a matter which a quarantine officer is bound to take into account when considering whether to issue a direction that an animal be exported. Given the variety of circumstances in which the power may have to be exercised, it would be surprising if the legislation singled out this matter as one which the quarantine officer was bound to take into account.

137    In my opinion, the appellant’s submission tended to attach greater significance to the passage in Dr Davies’ letter than it warranted. It was really no more than a recommendation as to the form and duration of a manner of treatment. It was not, as the appellant’s submission seemed to suppose, a prediction that the manner of treatment would eliminate the CME from Pepper, let alone a prediction as to the timeframe in which such elimination may occur.

138    Further, I agree with the respondent’s submission that Mr McDonald’s evidence that he “did not take it into account” is not conclusive of the question as to whether he “took into account” the recommendation of Dr Davies in the sense contemplated by s 5(2)(b). The second answer from Mr McDonald in the passage quoted above indicates that he had adverted to the management recommendation, but did not regard it as significant bearing in mind the other material indicating the difficulties in treating CME successfully. Taking account of an item of evidence is not the same as accepting and acting on that item. No error in the conclusion of the Judge on this topic has been shown.

139    This ground of appeal fails.

Ground 3: Application of a fixed policy without regard to the merits?

140    Subject to some qualifications which are not presently relevant, the importation into Australia of a live animal by a person is prohibited unless a Director of Quarantine has granted the person a permit to import it (s 37(1) of the Quarantine Proclamation 1998 (Cth). A permit may be granted subject to compliance with conditions (s 13(2B) of the Quarantine Act). The standard conditions forming part of a permit to import a dog from a country such as Singapore include a requirement for a minimum of 30 days’ quarantine. In addition, the standard conditions include:

[13.1]    The dog must be tested for Ehrlicia canis infection by the indirect fluorescent antibody test, on a sample collected within forty five (45) days prior to export, with negative results.

Other material of the respondent indicates that the IFAT test must produce a negative result at a dilution of 1:40. The effect seems to be that a dog which returns a positive IFAT test for CME at a dilution of 1:40 prior to importation will not be permitted into Australia.

141    The respondent has also prepared a Work Instruction entitled “Managing exotic disease non-compliances at Australian quarantine stations [cats and dogs]”. It applies to dogs in quarantine immediately following importation. In relation to CME, the Work Instruction specifies that dogs which record a positive result on the pre-export health certification will not be re-tested in Australia, regardless of the antibody titre level. It goes on to specify that all dogs “positive on re-test in Australia must be exported or euthanased, as they represent an unacceptable quarantine risk to other dogs at the [quarantine] station”.

142    These conditions ceased to be applicable to Pepper following his release from quarantine on 9 August 2012.

143    The appellant contended that Mr McDonald had, nevertheless, applied the policy implicit in the conditions and in the Work Instruction when issuing the direction to export Pepper, and that he had done so without consideration of the particular merits of Pepper’s case. This meant, he submitted, that the decision was an improper exercise of the power conferred by s 48(1), having regard to s 5(2)(f) of the ADJR Act.

144    The FCC Judge rejected this contention. He held that there was nothing in Mr McDonald’s reasons to suggest that he had not paid appropriate regard to the merits of Pepper continuing in quarantine while subject to further testing or that he had slavishly followed departmental policy. On the contrary, the Judge was satisfied that the decision first made on 23 October had been made after a thorough examination and analysis of the risk assessment and management options available in relation to Pepper.

145    The submissions of the appellant did not point to any error in the Judge’s reasoning. They amounted merely to a repetition of the submissions made at first instance.

146    Having reviewed the material before the Judge, it is plain, in my view, that Mr McDonald did have regard to the individual circumstances of Pepper’s case and that his decision did not reflect a slavish adoption of the respondent’s policy position.

147    Mr McDonald’s decision was preceded by a detailed risk assessment to which various officers of the respondent had contributed. The recommendation of the officers was that Mr McDonald agree that the most effective method to manage the risk of CME was either to export or to euthanase Pepper. Mr McDonald adopted that recommendation.

148    The departmental officers considered a number of factors bearing upon the level of quarantine risk presented by Pepper and the magnitude of the consequences for Australia in the event that the risk was realised. Using a pro forma risk assessment matrix, the departmental officers considered it “possible” that Pepper could be the cause of adverse consequences and assessed the consequences, if the risk was realised, as “major”. The officers noted that Pepper did not meet the prescribed import conditions for CME and that the Work Instruction would have required his export from Australia had the CME been detected before his release from quarantine on 9 August. They concluded that exporting Pepper would reduce the risk of adverse consequences to “remote” and the magnitude of potential consequences to “minor” in the risk assessment matrix.

149    The officers also considered alternative strategies, noting that detention of Pepper in quarantine, or the maintenance of quarantine surveillance, were the major alternatives to his being exported. They noted in this respect the requirement for serial re-testing, the likelihood that Pepper may remain infected with CME for a long period of time, the welfare implications for Pepper if detained in quarantine for the long term and if subjected to repeated blood sampling, and the potential burden of DAFF’s costs in maintaining and enforcing compliance with a monitoring regime.

150    In my opinion, the very fact that these matters and an alternative management option were considered warranted the Judge’s conclusion that Mr McDonald did not regard the respondent’s policy as conclusive of the issue as to whether exportation should be ordered.

151    It is true that the risk assessment on which Mr McDonald acted recorded that Pepper did not meet the prescribed import conditions for CME and that, under the Work Instruction, if applicable, his export from Australia would be required. In my opinion, it is entirely natural that it should do so. Pepper had only recently arrived in Australia and had been released from quarantine only shortly before the presence of CME had been detected. Had the disease been detected at that stage, it is improbable that he would have been released from quarantine and probable that his export from Australia would have been required. These were relevant considerations to which it was appropriate for Mr McDonald to have regard.

152    Counsel for the appellant drew attention to a number of further enquiries about Pepper’s individual circumstances which could have been made by Mr McDonald, but which were not made. In my opinion, this is of no consequence. The circumstance that Mr McDonald did not consider or refer to all of the personal circumstances affecting Pepper which could have been addressed is not an indication that Pepper’s individual circumstances were not considered or that Mr McDonald exercised the power under s 48 by slavishly following the respondent’s policy.

153    This ground of appeal fails.

Grounds 4 and 5: Taking into account irrelevant matters?

154    The risk assessment prepared by the respondent’s officers, dated 22 October 2012, identified six matters which indicated that the consequences for Australia should be classified as “major” in DAFF’s risk assessment matrix if the risk of CME being spread was realised. These were:

1.    CME is a life-threatening disease of dogs.

2.    Australia is currently free of this disease.

3.    The Department’s mission is to safeguard Australia’s animal health status and protect animals and the environment from exotic disease incursion. Any such introduction would have significant reputational damage.

4.    Singapore, where the dog originated from, is an important trading partner. There are significant relationship considerations if it were perceived that Singapore transmitted an exotic disease to Australia.

5.    The Department may be perceived as liable for future treatment and reparation of infected dogs if the disease were to spread.

6.    The Department has obligations for procedural fairness and consistency in decision making. Other dogs that have tested positive to this disease are not permitted to be imported to Australia. Other dogs that test positive during post entry animal quarantine have been directed for export.

155    In addition, the respondent’s officers identified the potential for under-recovery of the costs incurred by DAFF if all risk avoidance strategies were implemented as a factor militating against the adoption of such strategies (under-recovery of costs).

156    The appellant contended that, on a proper construction of the Quarantine Act, the exercise of the power to order the export of Pepper “could only be informed by considerations relevant to the level of quarantine risk as defined in the Act”. Factors which did not bear on the level of quarantine risk were, he submitted, extraneous to the objects of the Act and Mr McDonald should have disregarded them.

157    Accordingly, the appellant contended that the last three of the listed matters, and the under-recovery of costs, were matters which were extraneous to Mr McDonald’s decision and matters to which he should not have had regard.

158    The FCC Judge rejected these submissions. His reasons on this topic comprised, substantially, an adoption of the respondent’s submissions. The appellant’s submissions, on appeal, did not attempt to identify any error in the Judge’s approach. Again, the submissions on his behalf were simply a repetition of the submissions apparently made in the FCC.

159    The appellant contended that the scope of the matters to which a quarantine officer could have regard, when considering the exercise of s 48(1), was informed by the subject matter, scope and purpose of the Quarantine Act. He referred in this respect to s 4(1) of the Act, which provides:

(1)    In this Act, quarantine includes, but is not limited to, measures:

(a)    for, or in relation to:

(i)    the examination, exclusion, detention, observation, segregation, isolation, protection, treatment and regulation of vessels, installations, human beings, animals, plants or other goods or things; or

(ii)    the seizure and destruction of animals, plants, or other goods or things; or

(iii)    the destruction of premises comprising buildings or other structures when treatment of these premises is not practicable; and

(b)    having as their object the prevention or control of the introduction, establishment or spread of diseases or pests that will or could cause significant damage to human beings, animals, plants, other aspects of the environment or economic activities.

The appellant emphasised the statement in subs (1)(b) that measures undertaken by way of quarantine were to have as their object the prevention or control of the introduction, establishment or spread of diseases or pests that will or could cause significant damage to human beings, animals, plants, other aspects of the environment or economic activities. That indicated, he submitted, that factors bearing on the exercise of a power such as s 48 were those affecting, or capable of affecting, the “level of quarantine risk”. For that concept, the appellant referred to s 5D of the Act (referred to earlier), which provides:

A reference in this Act to a level of quarantine risk is a reference to:

(a)    the probability of:

(i)    a disease or pest being introduced, established or spread in Australia, the Cocos Islands or Christmas Island; and

(ii)    the disease or pest causing harm to human beings, animals, plants, other aspects of the environment, or economic activities; and

(b)    the probable extent of the harm.

It can be seen that the assessment of the level of quarantine risk requires consideration of both the probability of harm and of the probable extent of the harm if it eventuates.

160    Section 5D was introduced into the Quarantine Act by the Quarantine Amendment Act 1999 (Cth). The appellant referred to the Explanatory Memorandum provided as part of the Second Reading Speech in which the Minister said:

Australia’s quarantine policy is based on the concept of the management of risk to an acceptably low level. The natural and economic movement of people, animals, plants and goods results in an inevitable quarantine risk to Australia. Australia’s approach is to manage the risk in a manner that provides the appropriate protection for Australia, is based on scientific reasoning and is consistent with international rules and standards. This Bill contains some minor adjustments to sections such as sections 44C and 44D of the Act to better reflect this approach. It also introduces a definition in relation to the “level of quarantine risk” which is used in the provisions that relate to the managed risk approach.

161    The appellant acknowledged that the expression “level of quarantine risk” does not appear in s 48(1) or s 55A of the Quarantine Act. Nevertheless, he contended that the concept did, in some way, govern the exercise of the powers vested in a quarantine officer by those provisions. The appellant’s submissions tendered to treat the concept of level of quarantine risk as a kind of overarching theme or principle by which the exercise of all powers in the Quarantine Act were to be assessed. This meant, the appellant contended, that relevant matters to be considered in relation to the exercise of powers such as those in s 48(1) and s 55A(1) were those factors which affected, or were capable of affecting, the level of risk.

162    The appellant’s submission then went further, contending that not only were these the relevant matters, they were the only relevant matters. This meant, in relation to s 48, that a quarantine officer should, when considering the exercise of the powers, consider only the probable harm and probable extent of harm to human beings, animals, plants, other aspects of the environment and economic activities. Any other factors were extraneous.

163    The appellant submitted that as Pepper had already been imported into Australia, Mr McDonald was to consider only the possibility of the disease being introduced, established and spread, the probability of the disease causing harm to other animals, and the probable extent of that harm, on the one hand, and the efficacy of the measures available under the Quarantine Act to limit the level of those risks to one which was acceptably low, on the other. He submitted that the last three of the six matters listed above were not of this kind. It followed, therefore, in the appellant’s submission, that Mr McDonald had taken into account matters which were extraneous to his consideration.

164    One may accept that a principal object of the Quarantine Act is the prevention or control of the introduction, establishment or spread of diseases or pests that will or could cause significant damage to human beings, animals, plants, other aspects of the environment or economic activities. One may also accept, at a general level, that the exercise of powers such as those bestowed by s 48(1) and s 55A(1) requires decision-makers to consider these objects and to assess the level of risk to the Australian community involved, and the various courses of action available.

165    However, there are a number of difficulties with the appellant’s submission.

166    The powers of quarantine officers in issue on this appeal, being those contained in ss 35(1), 48(1), 54(2) and 55A(1), are expressed in relatively general terms. There are some preconditions for their exercise, but none includes a requirement that the decision-maker have regard to a level of risk or to an acceptable level of risk.

167    The respondent drew attention to s 70 of the Quarantine Proclamation 1998 (Cth). That section provides explicitly that, when deciding whether to grant a permit to import a thing into Australia, the Director of Quarantine must consider the level of quarantine risk if the permit is granted and must consider whether, if the permit is granted, the imposition of conditions on it would be necessary to limit the level of quarantine risk to one that is acceptably low. Section 70 then makes reference to the terms of s 5D of the Quarantine Act. The absence of such a requirement in s 48(1) or in s 55A(1) stands in stark contrast to this provision.

168    Several provisions in the Quarantine Act do use the expression “level of quarantine risk”. These include ss 44C(2), 44D(2), 52A(2) and 53(2). Each of these provisions authorises a quarantine officer or an authorised person to examine goods or plants in defined circumstances and requires a quarantine officer who forms the opinion that there is “an unacceptably high level of quarantine risk” in respect of the goods or plant, to order the item into quarantine and otherwise to release the item from quarantine. None of ss 35(1), 48(1), 54 and 55A contains a counterpart provision. This is a strong indication that consideration of the level of quarantine risk is not a matter which a quarantine officer is bound to address when considering exercising the powers granted by those provisions, let alone the only matter which a quarantine officer may take into account.

169    Section 48 contains internally an indication that an assessment of the acceptability of quarantine risk is not a matter which a quarantine officer is bound to address when exercising the powers under subs (1). First, as previously noted, the powers under subs (1) may be exercised only in relation to goods which have already been ordered into quarantine. Secondly, subs (6) provides for the further detention of goods detained under an order made under subs (1)(a). If, at the end of the period for which goods have been detailed under that provision, a Director of Quarantine is of the opinion that the goods cannot be released “without an unacceptably high level of quarantine risk”, he or she may direct the continued detention of the goods at the place, in the manner, and for such further period as is stated in the direction. That is to say, the power under subs (6) is made conditional upon an assessment of the level of quarantine risk, whereas the powers under subs (1) are not made so subject.

170    I add that, even if the level of quarantine risk was a matter which a quarantine officer was bound to consider, it would not follow that it was the only matter to be considered by that officer.

171    For these reasons, I reject the appellant’s submission that a quarantine officer considering the exercise of the powers in ss 35(1), 48(1) and 55A(1) is bound to consider only matters affecting the level of quarantine risk.

172    It remains to consider the particular matters which the appellant contended were extraneous to a proper exercise of the power under s 48(1). Some of these can be addressed quite briefly.

173    The potential for recovery of the costs which DAFF itself may incur in maintaining and enforcing a protection regime which may continue indefinitely if Pepper was permitted to remain in Australia was plainly a relevant matter. Amongst other things, DAFF will incur costs which it may or may not recover by reason of the condition that whenever Pepper needs to leave the appellant’s home to go to a veterinary hospital or clinic, he must be accompanied by an officer from DAFF. The cost of the measures implemented for quarantine purposes under s 4 of the Act cannot reasonably be said to be a wholly irrelevant consideration.

174    In relation to DAFF’s potential liability in the event that CME were to spread within Australia from Pepper, DAFF would seem to have the benefit of a reasonably comprehensive immunity provision (s 82). However, the public perception of DAFF’s liability, which is the matter to which the risk matrix referred, is a different consideration. DAFF’s credibility and the respect for the restrictions which it will, in the ordinary discharge of its duties, impose could be weakened by the perception that its actions or omissions had allowed the spread of CME within Australia. It is not an extraneous consideration.

175    For similar reasons, the sixth matter, described as “procedural fairness and consistency in decision-making” which is to be understood as a reference to the desirability of equality of treatment of all people wishing to bring animals into Australia, was not an irrelevant matter for DAFF to take into account.

176    However, the fourth matter, being the effect on Australia’s trading relationship with Singapore if it were perceived to be the source of CME spreading in Australia appears more problematic. The risk matrix does not indicate the nature of the “relationship considerations” to which reference is made. Nor does the risk matrix identify the basis upon which relationship considerations may arise from a perception within Australia that Singapore was the source of the infection.

177    To my mind, one indication that Australia’s relationship with Singapore was not a relevant consideration is that it is not obvious that a quarantine officer will have any particular knowledge or expertise on that topic. Unless the quarantine officer does have particular knowledge or expertise, then any view which he or she may hold on that topic may amount to no more than uninformed speculation.

178    However, it is not necessary to express a concluded view about this. Even if the possible effect on Australia’s trading relationship with Singapore was an irrelevant consideration, it would not follow that Mr McDonald’s decision was thereby vitiated. This consideration was only one of several matters upon which Mr McDonald relied and, in context, a minor factor.

179    An irrelevant consideration can be so insignificant in the context of a case, that taking it into account does not materially affect the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111 at [121]; Lansen v Minister for Environment and Heritage [2008] FCAFC 189 at [121]-[125]; (2008) 174 FCR 14 at 40-41.

180    In the present case, the first three factors, which the appellant did not impugn, pointed, on any reasonable view, strongly in favour of the making of the export order. That being so, it could not reasonably be concluded that Mr McDonald’s reliance in addition on one minor and irrelevant matter had a material effect on his decision.

181    In my opinion, this ground of appeal fails.

Conclusion

182    For the reasons given above, I dismiss the appeal. I will hear from counsel as to any consequential orders.

Associate:

Dated:    23 December 2013