Re Thomas Borthwick & Sons (Pacific) Limited v John Charles Kerin (Minister of Primary Industries & Energy); Peter Fran Cook (Minister of Resources); Geoffrey Miller (Secretary of the Department of Primary Industries & Energy); Arthur Darcy Mcguarr [1988] FCA 465 (23 December 1988)

FEDERAL COURT OF AUSTRALIA

Re: THOMAS BORTHWICK & SONS (PACIFIC) LIMITED
And: JOHN CHARLES KERIN (Minister for Primary Industries & Energy); PETER FRAN
COOK (Minister for Resources); GEOFFREY MILLER (Secretary for the Department
of Primary Industries & Energy); ARTHUR DARCY McGUARR (delegate of the
Secretary of the Department of Primary Industries & Energy)
No. VG 456 of 1988
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.(1)

CATCHWORDS

Adminstrative Law - judicial law - application for interlocurory injunction - Minister making decision pursuant to statutory order - whether order had been validly disallowed by Senate - whether Senate can disallow particular regulations or orders which form part of a group of such regulations or orders made by a single paragraph in the relevant instrument - likelihood of application for review succeeding - balance of convenience.

Export Control Act 1982 s 25

Prescribed Goods (General) Orders 100C, 100D and 111A

Acts Interpretation Act 1901 s 48

HEARING

MELBOURNE
23:12:1988

Counsel for the Applicant: Mr P. Dalton QC with Mr N. Lucarelli & Mr B. Mueller

Solicitors for the Applicant: Madden Butler Elder & Graham

Counsel for the Respondents: Mr R.A. Brett

Solicitors for the Respondents: Australian Government Solicitor

ORDER

Until the hearing of the application herein or further order -

(a) the first and second respondents be restrained
from:
(i) making any determination or decision or
giving any direction to the Secretary of the
Department of Primary Industries and Energy
in reliance upon Order 111A of the Prescribed
Goods (General) Order as amended;
(ii) engaging in any conduct which relies upon any
determination, decision, or direction made or
given which relies upon the said Order 111A.
(b) the third and fourth respondents be restrained
from:
(i) making any determination or decision which is
based upon a direction made or given by the
first or second respondent in reliance upon
the said Order 111A;
(ii) making any determination or decision which
relies upon Order 100D of the said Orders;
(iii) engaging in any conduct which is based upon a
direction under the said Order 111A or which
relies upon any determination or decision
made in reliance upon Order 100D of the said
Orders.

The directions hearing be adjourned to 7 February 1989.

Costs of this interlocutory application be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Because of time constraints, these reasons for judgment will be shorter than would be usual in a matter raising such important questions.

2. The basic facts are not in dispute. The applicant is the owner and operator of a meatworks at Portland, which is registered as an export establishment. It wishes to commence slaughtering for export but has been prevented from doing so, firstly by industrial action and, since 16 December, by the refusal of the respondents to provide the meat inspectors who are essential to the conduct of an export establishment.

3. The applicant seeks an order to review the several decisions or determinations of the respondents not to provide inspectors, and in particular seeks interlocutory injunctions restraining the respondents from making any fresh decisions along the same lines.

4. In Mudginberri Station Pty Ltd v Langhorne [1985] FCA 478; (1985) 7 FCR 482, a Full Court of this Court held that in such general circumstances there was a duty on the relevant ministers and departmental officers to provide inspectors; there was no discretion to refuse.

5. Since that judgment was delivered, a set of orders has been made by the relevant minister, pursuant to a regulation-making power in s 25 of the Export Control Act 1982, purporting at least to modify the effect of that decision. The relevant orders are Orders 100C, 100D and 111A of the Prescribed Goods (General) Orders. They are in the following terms:

"Protection of officers from violence
100C. The Secretary may determine whether
to make the services of an authorized officer
available, being services referred to in an
application made by the occupier of a
registered establishment under orders, and
may, in making that determination, have regard
to the desirability of protecting each
authorized officer and members of his or her
family from the risk of physical assault or
intimidation as may result from that officer
complying with any direction to attend an
establishment for duty, or to perform duties
at an establishment, provided the Secretary
has sought the advice of a police officer of
the State or Territory within which the
establishment is located, or of an officer of
the Australian Federal Police on the nature of
risk.
Temporary determinations
100D.1 The Secretary may make a temporary
determination not to make the services of an
authorized officer available, being services
referred to in an application made by the
occupier of a registered establishment under
orders, if the Secretary believes that such a
course will lead to the early resolution of an
industrial dispute in or in relation to that
establishment.
100D.2 A temporary determination made under
this order shall expire on the date and at the
time specified in the determination, or when
the Secretary is ootified (sic) that the
dispute is resolved, whichever comes first."

6. On 1 May 1986 the Senate voted to disallow Orders 100C, 100D and 111A.

7. With regard to this disallowance, the Attorney-General's Department gave the following advice on 5 August 1987, the conclusions of which were concurred in by the Commonwealth Solicitor-General on 15 December 1988. I reproduce the opinion in full because it conveniently sets out relevant legislation,

"Acts Interpretation Act 1901, s.48:
Disallowance of Orders Made Under the
Export Control Act 1982
I refer to your memorandum of 8 December 1986
concerning the effectiveness of notices of
motion by the Senate that orders 100C, 100D
and 111A of the Prescribed Goods (General)
Orders as amended be disallowed.
2. Your questions together with my short
answers are as follows:
Q(a) Are the notices of motion
disallowing Orders 100C, 100D and
111A of the Orders effective?
A No. See paragraphs 3-9.
Q(b) If the answer to (a) is no, do
Orders 100C, 100D and 111A remain in
effect?
A Yes. See paragraph 10.
Q(c) If the answer to (a) is no, would
the disallowance of the whole Order
2 of the Amendment be the only
method by which Orders 100C, 100D
and 111A could have been disallowed?
A This would be one of two possible
methods. See paragraph 9.
Q(d) Does an ineffective notice of motion
of disallowance allow disallowance
of the order after the expiration of
15 sitting days?
A No. See paragraph 11.
My reasons follow.
The relevant legislation
3. The relevant parts of section 25 of the
Export Control Act 1982 provide as follows:
'(1) The Governor-General may make
regulations, not inconsistent with this
Act, prescribing matters -
(a) required or permitted by this Act to
be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or
giving effect to this Act.
(2) In particular, but without limiting
the generality of sub-section (1), the
regulations may make provision for or in
relation to -
...
(g) subject to sub-section (3),
empowering the Minister to make
orders, not inconsistent with the
regulations, with respect to any
matter for or in relation to which
provision may be made by the
regulations.
(3) An order shall not be made
prescribing any penalty.
(4) Sections 48, 49 and 50 of the Acts
Interpretation Act 1901 apply to orders
as if in those sections references to
regulations were references to orders and
references to an Act included references
to regulations ...'
Regulation 3 of the Export Control (Orders)
Regulations provides as follows:
'The Minister may, by instrument in
writing, make orders, not inconsistent
with regulations made under the Act, with
respect to any matter for or in relation
to which provision may be made by
regulations made under the Act'.
4. Sub-section 48(4) of the Acts
Interpretation Act 1901 (the Interpretation
Act) provides as follows:
'If either House of the Parliament, in
pursuance of a motion of which notice has
been given within 15 sitting days after
any regulations have been laid before
that House, passes a resolution
disallowing any of those regulations, any
regulation so disallowed shall thereupon
cease to have effect'.
The effect of sub-section 48(4) is, in my
view, clear. A House of Parliament may pass a
resolution disallowing the whole of any set of
regulations, and a House of Parliament may
pass a resolution disallowing a single
particular regulation which is part of a set
of regulations. A single regulation, or a set
of regulations, so disallowed thereupon ceases
to have effect. However, sub-section 48(4)
does not permit a House of Parliament to pass
a resolution disallowing only part of a single
regulation.
5. Taking sub-section 25(4) of the Export
Control Act with sub-section 48(4) of the
Interpretation Act, a House of Parliament may
disallow a whole set of Orders or a single
particular Order. However, these provisions
do not allow a notice of motion, or motion,
for disallowance of part of an Order.
Prescribed Goods (General) Orders
6. The Prescribed Goods (General) Orders
were made in 1985 pursuant to section 25 of
the Export Control Act and regulation 3 of the
Export Control (Orders) Regulations and have
subsequently been amended several times by
Export Control Orders, including Export
Control Orders No. 7 of 1986.
7. Export Control Orders No 7 of 1986
(entitled 'Prescribed Goods (General) Orders
as amended (Amendment)') are drafted in Order
1 which repeals Orders 100A and 111A of the
Prescribed Goods (General) Orders as amended,
and Order 2 which amends the Prescribed Goods
(General) Orders as amended by removing pages
37, 38, 40.1 and 40.2 and substituting new
pages 37, 38, 38.1, 40.1 and 40.2. In effect,
Order 2, interalia, substituted a new order
100A; inserted new Orders 100B, 100C, 100D;
and substituted a new Order 111A.
8. On 30 April 1986, the following notices
of motion were given in the Senate:
PRESCRIBED GOODS (GENERAL) ORDERS:
100C and 100D
Notice of Motion
Senator COLLARD (Queensland - Leader of
the National Party of Australia) - I give
notice that, on the next day of sitting,
I shall move:
That Orders 100C and 100D of the
Prescribed Goods (General) Orders, as
contained in Prescribed Goods (General)
Orders as amended (Amendment), (being
Export Control Orders No. 7 of 1986) and
made under the Export Control Act 1982,
be disallowed.
PRESCRIBED GOODS (GENERAL) ORDERS 111A
Senator COLLARD (Queensland - Leader of the
National Party of Australia) - I give notice
that, on the next day of sitting, I shall
move:
That Orders 111A of the Prescribed Goods
(General) Orders, as contained in Prescribed
Goods (General) Orders as amended
(Amendment), (being Export Control Orders
No. 7 of 1986) and made under the Export
Control Act 1982, be disallowed.
These notices of motion were successfully
carried on 1 May 1986. In my opinion, these
motions were for the disallowance of only
part of Order 2 of the Export Control Orders
No. 7 of 1986, and not the whole of Order 2.
9. It follows then that, in my view, the
above notices of motion were not valid as they
purported to give notice of disallowance of
only part of Order 2 of Export Control Orders
No. 7 of 1986. The notices of motion, to be
in accordance with the provisions of
sub-section 48(4) of the Interpretation Act,
should have related to the whole of Export
Control Orders No. 7 of 1986 or alternatively
to the whole of Order 2 of the Amendment
Export Control Orders No. 7 of 1986.
10. As no valid notice of motion was given
within 15 sitting days after the Orders were
laid before the Senate, the resolutions
purporting to disallow Orders 100C, 100D and
111A of the Orders are also ineffective.
Sub-section 48(5) of the Interpretation Act
therefore has no application and Orders 100C,
100D and 111A remain in effect.
11. Section 48 of the Interpretation Act does
not enable the Senate to give a notice of
motion in respect of the amendment after the
expiration of the 15 sitting days period.
That period in this case has now clearly
expired."

8. Counsel for the respondents argued only faintly that there was no serious issue to be tried in this case. I have no doubt that the application does raise such an issue.

9. It is, in my view, at least strongly arguable that the Senate is entitled, in circumstances such as these, to disallow some but not all of the orders made in a single paragraph (or order) of an instrument which makes such orders. I think the introductory words of the instrument,

"I, THE MINISTER OF STATE FOR PRIMARY
INDUSTRY, hereby make the following Orders
under the Export Control (Orders)
Regulation,"

are just as apt to refer to the detailed orders (in this case Orders 100C, 100D, 111A and others) as to the two paragraphs which respectively repeal two orders and then make a number of fresh orders by reference to attached pages.

10. I believe that the power given to each House of the Parliament to disallow subordinate legislation should not be interpreted narrowly, or in such a way as could seriously inhibit the Parliament in its supervisory role, if such an interpretation can be avoided. Counsel for the respondents submitted, as I think he was compelled to do, that if a minister chose to make orders in a 'package' form, and the package could be referred to as a regulation (or order), then even if they were unrelated, the respective Houses had no choice but to accept or reject the whole package. I would be most reluctant to accept that this was the limited effect of sub-s.48(4) of the Acts Interpretation Act 1901.

11. The reference in that sub-section to the disallowance of "any regulation" (or, in this case, any order) clearly envisages that the House may be selective in determining which regulation (or order) of a batch is to be disallowed. I do not think this intention can be defeated merely by the way in which the regulatory instrument is itself arranged into paragraphs (or regulations or orders).

12. The power of a House of the Parliament to disallow what are, in reality, separate and discrete regulations or orders, should not be restricted by either the fortuitous or the deliberate choice of paragraphs, sub-paragraphs or a schedule in the instrument which makes the subordinate legislation.

13. The end result of the process, in the present case, was a loose-leaf version of the Prescribed Goods (General) Orders which contained several quite new orders, three of which were then disallowed by the Senate. In my view this disallowance was almost certainly valid. The only reason I refrain from expressing a concluded opinion is that counsel for the respondents came into this matter without notice and had no time to mount a full argument.

14. So far as the balance of convenience is concerned, I put aside any question as to whether the Court's orders are likely to be effective in causing meat inspectors to take up their duties. I think I must assume that the law as laid down in Mudginberri v Langhorne (above) will be obeyed.

15. If work were to commence, the applicant would be able to put to use a valuable meatworks; a work-force which has been gathered would not be scattered over the holiday period; and 2,500 sheep which are said to be deteriorating in holding yards would be slaughtered. I do not accept the submission of counsel for the respondents that the material discloses no particular urgency.

16. Nor do I accept that the Court should not act because the respective industrial disputes (between the applicant and the relevant union, or a section of its members, and between the meat inspectors and their employer) are presently before the Conciliation and Arbitration Commission - though currently adjourned in the first case to 11 January and in the second to a date to be fixed.

17. The decisions of the respondents have been a factor in the working out of the disputes. If they are found to have been based on an erroneous understanding of the legal position, I believe that should be corrected. Whether the result will assist or hinder the solution of the industrial dispute is a matter for speculation and, no doubt, differences of opinion. It should not, in my view, affect the Court's decision.

18. Having considered together the strength of the applicant's case and the balance of convenience, I am left with no doubt that I should issue the interlocutory injunctions sought. I note in passing that no undertakings were sought or offered, and none would seem appropriate.

19. I believe the particular orders sought are appropriate because

(a) the fourth respondent, as the delegate of the third

respondent, has already purported to act in pursuance of Order 100D,

(b) the second respondent, representing the first

respondent, has used the language of Order 111A in a media release of 20 December explaining why he has directed his department not to make the services of meat inspectors available to the applicant,

(c) the second respondent has said in a further media

release of 22 December that, subject to any contrary recommendation by the Conciliation and Arbitration Commission "the existing directions under Order 111 (sic) would be extended ...", and

(d) a commissioner of the Conciliation and Arbitration

Commission, on 23 December, actually recommended such an extension "beyond the December 28 cut off point by way of the section 111A direction ...".