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Lacky Pty Ltd and Department of Agriculture, Fisheries and Forestry [2009] AATA 24 (15 January 2009)

Last Updated: 19 January 2009

Administrative Appeals Tribunal

REASONS FOR DECISION [2009] AATA 24

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/5389

GENERAL ADMINISTRATIVE DIVISION
)

Re
LACKY PTY LTD

Applicant
And
DEPARTMENT OF AGRICULTURE, FISHERIES AND FORESTRY

Respondent

DECISION

Tribunal
Mr Egon Fice, Member

Date 15 January 2009

Place Melbourne

Decision
The Tribunal does not have jurisdiction to review this application.


(sgd) Egon Fice
Member
PRACTICE AND PROCEDURE – jurisdiction – objection to refusal of export permit – decision reviewed by Australian Quarantine and Inspection Service – whether decision reviewable by the Administrative Appeals Tribunal – application dismissed


Administrative Appeals Tribunal Act 1975 ss 3, 25

Administrative Decisions (Judicial Review) Act 1977

Export Control Act 1982 S 25

Export Control (Fish and Fish Products) Orders 2005 Orders 3, 5, 32, 38, 40, 51, 86, 88, 91, 93, 96, 97, Part 8, Sched 9

Export Control (Prescribed Goods – General) Order 2005 Part 16


REASONS FOR DECISION


15 January 2009
Mr Egon Fice, Member

  1. Lacky Pty Ltd (Lacky) was registered with the Australian Quarantine and Inspection Service (AQIS), which is part of the Department of Agriculture, Fisheries and Forestry (DAFF). AQIS revoked Lacky’s registration to process fish and fish products on food safety grounds on 14 December 2007. Although no longer registered as a fish processor, Lacky is able to operate as an exporter.
  2. On 16 October 2007 Lacky applied to AQIS for an export permit to export 140 cartons of canned abalone. The destination of that export product was the United States of America. The canned abalone was sourced from Tasmanian Seafoods Pty Ltd (Tasmanian Seafoods), an establishment registered to process fish and fish products. The cans were not labelled.
  3. The canned abalone was transferred from Tasmanian Seafoods in Smithton, Tasmania to its premises in Dandenong South, Victoria. Tasmanian Seafoods’ premises in Dandenong South are registered to produce, process and store fish products. Lacky took possession of the canned abalone on 12 October 2007 and transferred all cartons, less three cans which had been opened to check for quality of the abalone, to a warehouse situated at 8 Thompson Street, Kensington, Victoria. The warehouse was owned by the son-in-law of Mr Truong, a principal of Lacky. The warehouse was not registered with AQIS for the preparation or storing of fish and fish products for export as food.
  4. While the cans were at Kensington, they were labelled indicating that they had been packed by EX3883 for K and F Trading Inc. Establishment 3883 is registered with AQIS to Orient Seafood Processors Pty Ltd (Orient Seafood), and is not an entity associated with Mr Truong. Orient Seafood did not process the abalone.
  5. On 15 October 2007 all 140 cartons (now complete) were transported to Hellman Worldwide Logistics Pty Ltd (Hellman Worldwide) at Tullamarine, Victoria. The warehouse at Tullamarine is a registered establishment (freight forwarder) for export. It was registered to produce, inspect, load, hold and store a range of prescribed goods. It is not known where the additional three cans to makeup the full cartons were sourced.
  6. On 16 October 2007 AQIS refused to issue an export permit to enable Lacky to export the abalone to the United States of America. An AQIS officer informed Mr Truong by telephone that the product in the 140 cartons was not eligible for export and that an export permit would not be issued. AQIS advised Mr Truong that his cartons of abalone would be held under security at the Hellman Worldwide warehouse and that there would be a follow-up investigation by AQIS.
  7. On 14 December 2007 Mr Tony Fishley, a Senior Export Fish Inspector with AQIS, wrote to Mr Truong explaining that 138 cartons of his abalone which were being held at Hellman Worldwide would be released on the following conditions:

Mr Fishley also stated that the remaining two cartons would continue to be held by AQIS until it had finalised its investigation.

  1. On 30 June 2008 Lacky lodged with the Administrative Appeals Tribunal (the Tribunal), an application for review of a decision made by AQIS in December 2007. I understood that to be the decision of Mr Fishley made on 14 December 2007. However, DAFF contended that the Tribunal did not have jurisdiction to review the decision of 14 December 2007. Although Senior Member Friedman, who heard the jurisdiction question on 1 August 2008, only gave oral reasons, his notes in respect of that decision indicate that the next step in the process was an application for an internal review by the Secretary. He decided that the Tribunal did not have jurisdiction to review the December 2007 decision. The notes also indicate that even after that review was completed, this Tribunal would not, in any event, have jurisdiction to hear the matter. This was because Part 16 of the Export Control (Prescribed Goods – General) Order 2005 (General Order) was not enlivened.
  2. In a letter dated 6 August 2008 sent to the Secretary of DAFF (the Secretary), Mr Truong asked to have the decision made by Mr Fishley reviewed. In that letter Mr Truong also asked for an extension of time to seek review under what he described as Prescribed Goods – General, Orders, of section 16.03.
  3. In a letter dated 30 September 2008, Mr Tim Chapman, acting Executive Manager of Quarantine Operations, wrote to Mr Truong indicating that Mr Truong had sought review of Mr Fishley’s decision under Order 91 of the Export Control (Fish and Fish Products) Orders 2005 (Fish Orders). Mr Chapman referred to the decision as having been made by Mr Fishley under Order 88 of the Fish Orders. He concluded that Lacky had not complied with the conditions and restrictions set out in Order 40 of the Fish Orders because the cans of abalone were not prepared at a registered establishment or an establishment approved by the Secretary under Order 32 of the Fish Orders. For that reason, Mr Chapman concluded that the goods could not be exported from Australia as food pursuant to Order 38 of the Fish Orders.
  4. There was some further correspondence between Mr Truong and Mr Chapman regarding the decision dated 30 September 2008. That correspondence did not result in Mr Chapman resiling from the view he took in his decision.
  5. Undeterred, Lacky lodged another application for review with the Tribunal on 14 November 2008 seeking review of the decision made by Mr Chapman on 13 November 2008. That is a reference to the correspondence which I have referred to above entered into by Mr Chapman with Mr Truong after he had reviewed Mr Fishley’s decision of 14 December 2007 and set out his reasons in a letter dated 30 September 2008 which was given to Mr Truong on 1 October 2008. Mr Chapman’s letter of 13 November 2008 advised Mr Truong that he may appeal the decision to the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977. It was common ground that the application before me is based on the decision made by Mr Chapman on 30 September 2008.
  6. Once again, DAFF, through its solicitors Blake Dawson, objected to the Tribunal proceeding to hear Lacky’s application for review which was filed on 14 November 2008, on the basis that the Tribunal did not have jurisdiction to do so.
  7. The only issue before me is whether the Tribunal has jurisdiction to review the decision made by Mr Chapman on 30 September 2008.

THE LEGISLATIVE SCHEME

  1. Insofar as it is relevant, s 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides:
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
  1. The term enactment is defined in s 3:
enactment means:
(a) an Act;
(b) an Ordinance of a Territory other than the Northern Territory or the Australian Capital Territory; or
(c) an instrument (including rules, regulations or by-laws) made under an Act or under such an Ordinance;
and includes an enactment as amended by another enactment.
  1. Section 25 of the Export Control Act 1982 (Export Control Act) provides that:
(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.

Section 25(2) of the Export Control Act provides that the regulations may make provision for, amongst other things, 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 (s 25(2)(g)).

  1. The Export Control Act also provides that an Order is deemed to be an enactment for the purposes of the AAT Act (s 25(8)).
  2. It follows that a decision made under the Fish Orders is to be treated as an enactment for the purposes of s 25(1) of the AAT Act. Therefore, the Tribunal may have jurisdiction if the Fish Orders expressly confer on the Tribunal the power to review a decision made in the exercise of powers under the Fish Orders.
  3. Order 5 of the Fish Orders provides that certain provisions of the General Order are to apply to fish and fish products declared under the Fish Orders to be prescribed goods. Order 5 provides:
5.1 The following provisions of the Export Control (Prescribed Goods – General) Order 2005 apply to fish and fish products declared under these Orders to be prescribed goods:
(a) ...
(b) ...
(c) ...
(d) ...
(e) Part 16 (subject to suborder 5.2 of these Orders);
(f) ...
5.2 Part 16 of the Export Control (Prescribed Goods – General) Order 2005 applies to the extent specified in orders 96 and 97 of these Orders.
  1. The Fish Orders themselves contain no direct provision for review by the Tribunal of any decision made under those Orders. Express power to review by the Tribunal is only contained in Part 16 of the General Order. General Order 16.05 provides:
16.05 Application to Administrative Appeals Tribunal
Application may be made to the Administrative Appeals Tribunal, for review of a decision of the Secretary under section 16.03, by or on behalf of a person whose interests are affected by the decision.
  1. Order 96 and 97 of the Fish Orders provide:
Division IV Review of decision made by the Secretary
  1. Part 16 of Export Control (Prescribed Goods – General) Order 2005
Subject to order 97, Part 16 of the Export Control (Prescribed Goods – General) Order 2005 applies to an initial decision made under these Orders.
Note 1 For the meaning of initial decision see order 8 and see also section 16.01 of the Export Control (Prescribed Goods – General) Order 2005.
Note 2 Part 16 of the Export Control (Prescribed Goods – General) Order 2005 deals with reconsideration of an initial decision made by the Secretary and the availability of Administrative Appeals Tribunal Review of the Secretary’s reconsideration.
  1. When Part 16 does not apply
Part 16 of the Export Control (Prescribed Goods – General) Order 2005 does not apply to an initial decision made under the following provisions of these Orders:
(a) Division VI of Part 2;
(b) orders 84 and 85;
(c) order 93;
(d) Part 2 of Schedule 1;
(e) clauses 13, 14, 17 and 19 of Schedule 9;
(f) Part 2 of schedule 9.
Note 1 Division VI of Part 2 deals with exemptions from compliance with these Orders. Orders 84 and 85 deal with regulatory arrangements for alternative compliance. Order 93 deals with reconsideration decisions of an authorized officer’s decision to give a notice requiring action to be taken. Part 2 of Schedule 1 deals with exemptions from the need to be registered Clauses 13, 14, 17 and 19 of Schedule 9 deal with export permits and Part 2 of Schedule 9 deals with government certificates.
Note 2 Section 16.05 of the Export Control (Prescribed Goods – General) Order 2005 provides for application to the Administrative Appeals Tribunal for review of the Secretary’s reconsideration (made by the Secretary under section 16.03 of the Export Control (Prescribed Goods – General) Order 2005) of initial decisions. Accordingly reconsideration of initial decisions (other than those referred to in order 97) may (subject to the Administrative Appeals Tribunal Act 1975) be reviewable by the Administrative Appeals Tribunal.

NATURE OF THE DECISIONS MADE BY AQIS

  1. After Mr Truong had been notified by telephone that AQIS refused to issue an export permit for the canned abalone then held at the premises of Hellman Worldwide, Mr Fishley who is also a Senior Authorised Officer (SAO) for the purpose of the legislation, wrote to Mr Truong on 14 December 2007. Although it is true that Mr Fishley’s letter was addressed to Mr Truong of Lacky Seafood Processor P/L, which is plainly incorrect, there is no suggestion that Mr Truong was in any way confused or prejudiced as a consequence of that error. In fact, given the correspondence which followed from Mr Truong and his solicitors, it is clear that Mr Truong understood that letter to be directed to Lacky.
  2. Mr Fishley’s letter sought Mr Truong’s agreement to the conditions (set out in paragraph 7 above) upon which AQIS would agree to release the cartons of abalone which were in effect impounded at the premises of Hellman Worldwide. As was submitted by Lacky, it is true that Mr Fishley’s letter makes no reference to Part 8 of the Fish Orders or that its contents constitute directions under Part 8. Although that clearly is the case, it seems to me that I should examine the substance of that letter rather than its form.
  3. The conditions upon which AQIS agreed to release Lacky’s canned abalone was that they not be exported to the United States of America or to any other country as was intended, but rather, that the cans be relabelled so as to make it clear that the product was not for export. Lacky submitted that the letter did not contain a direction expressed in mandatory terms requiring a person to do certain things. While the letter is not strictly in that form, the substance of the letter most certainly can be described as a direction. Failure to comply with that direction would result in the abalone remaining impounded. The language used in the letter, such as current label (Orient Seafood) shall be removed; the cans will be labelled with a new non export label; and the cans will not be eligible for export; can properly be described as a direction couched in mandatory terms.
  4. Part 8 of the Fish Orders empowers an authorised officer, on reasonable grounds, to give an exporter a direction requiring action to be taken where a requirement of the Export Control Act or the Fish Orders is not complied with, or is not likely to be complied with. The direction that may be given is set out in Order 77 which provides that it must be a direction to take action that is necessary to ensure there is compliance with one or more of the objectives specified in Orders 3.1 and 3.2 of the Fish Orders. Orders 3.1 and 3.2 set out the objectives of the orders, including ensuring that fish and fish products for export as food have a complete and accurate trade description and their integrity is assured.
  5. Provided the direction is one which satisfies Order 77, it may require:
  6. Although DAFF submitted that Mr Fishley’s letter of 14 December 2007 constituted a direction given under Part 8 of the Fish Orders, it does not appear to me to have been the initial direction which was given to Lacky. Mr Truong’s letter of 6 August 2008 states that he was told by Hellman Worldwide that the instructions given by an AQIS inspector were that the abalone could not be exported. In my view, that was probably a direction given by the inspector under Order 77.3 of the Fish Orders as well as notification that an export permit would not be granted. My view is that the letter written by Mr Fishley, who was said to be a Senior Export Fish Inspector, is more accurately characterised as reconsideration by an SAO of a decision to make a direction under Part 8 of the Fish Orders.
  7. Order 86 of the Fish Orders expressly provides that a person, whose interests are affected by a decision to give a direction made under Part 8 of the Fish Orders, may make a written application for a reconsideration of that decision by an SAO in the state or territory where the direction is given. Mr Fishley is a Senior Export Fish Inspector with AQIS in Victoria. Although I did not have before me any correspondence which pre-dates Mr Truong’s letter of 8 August 2008, I have little doubt that Mr Truong was in contact with AQIS between 16 October 2007, when the original direction was given, and 14 December 2007 when Mr Fishley wrote his letter. Under Order 88 of the Fish Orders, an SAO must, on receiving an application for review, re-consider the decision to give the direction and may make any decision to give a direction under Part 8 (of the Fish Orders) that may have been made in the first instance. An examination of Mr Fishley’s letter, although couched in terms of conditions upon which AQIS would release Lacky’s abalone, discloses that it follows the directions set out in Order 77.3. In addition to directing that the abalone not be exported, Mr Fishley directed that the abalone be transferred from Victoria to Tasmania and that the existing labels be removed and the product relabelled with a non-export label. That is in accordance with Order 77.3(a) and (b). Quite clearly, under Order 88, Mr Fishley was authorised to give those directions.
  8. My finding that the conditions set out in Mr Fishley’s letter are directions in accordance with Part 8 of the Fish Orders is further supported by what Mr Truong said in his letter of 6 August 2008. Mr Truong asked for a review of a decision made by:
... a Senior Authorised Officer in the Fish Exports branch of AQIS, in regard to a referred Direction relating to me, not to export canned Abalone that I had purchased for export to USA, from Tasmanian Seafood’s, a fully licensed export processor.
  1. Mr Truong said in his letter that he was seeking to appeal the decision of the Senior Authorised Officer directly to the Secretary, not having been previously aware that he could do so. Mr Truong also said that he had obtained legal advice regarding the Direction made on 14 December. It is apparent that Mr Truong regarded Mr Fishley’s additional requirements set out in his letter of 14 December 2007 to constitute directions given to him under Part 8 of the Fish Orders. In my view, that is correct.
  2. Order 91 of the Fish Orders provides that a person, whose interests are affected by a decision made by an SAO under Order 88, may make a written application to the Secretary for review of that decision. It should be abundantly clear that Mr Truong’s letter of 6 August 2008 is an application made under Order 91. Although Mr Truong sought an extension of time to lodge an application for review, as he said, under Order 16.03 of the General Order, that is plainly incorrect. First, if Mr Truong was seeking reconsideration under Part 16 of the General Order, an extension of time to lodge an application for reconsideration could be given under Order 16.02 and not 16.03. Secondly, Part 16 of the General Order does not apply to an initial decision made under Order 93 and Clauses 13 and 14 of Schedule 9 of the Fish Orders.
  3. Following Mr Truong’s letter to the Secretary of 6 August 2008, the Secretary wrote to Mr Truong on 5 September 2008 referring to his letter and stating that he had authority under Order 92(b) of the Fish Orders to grant an extension of time for application for reconsideration of the decision made by the SAO of AQIS. The Secretary granted the extension of time and delegated the power to reconsider the decision of Mr Fishley to Mr Chapman. In the letter, the Secretary referred to the decision under consideration as not to issue an export permit for your goods. This appears to have resulted in some confusion as the provision to extend time for review under Order 92(b) relates only to an application for review of a decision of an SAO regarding a direction made under Part 8 of the Fish Orders. A decision not to issue an export permit is not a direction made under Part 8 even though a direction may be made that fish products not be exported. A decision not to issue an export permit would be made in accordance with clause 14 of Schedule 9.
  4. Under Order 93 of the Fish Orders, upon reconsideration of the SAO’s decision to make directions under Part 8, the Secretary may make any decision to give a direction under Part 8 that may have been made by an SAO in the first instance.
  5. Mr Chapman noted that Mr Truong had applied for a permit to export 140 cartons of canned abalone on 16 October 2007. Fish and fish products for export as food can only be exported where an export permit has been issued (Order 51). AQIS refused to issue an export permit to Mr Truong on 16 October 2007.
  6. Mr Chapman in fact appears to have reviewed the decision to refuse to issue Lacky with an export permit because it failed to meet the conditions set out in Clause 14.2 of Schedule 9 of the Fish Orders. Although Mr Chapman referred to the giving of directions under Part 8 of the Fish Orders, he decided not to make directions. He said that this was because an export permit could not be issued to Lacky in any event because of its failure to comply with Order 40 of the Fish Orders. Order 40 requires fish and fish products for export as food to be prepared at an establishment that is registered.
  7. With respect to Mr Chapman, although he correctly identified the decision he was reviewing as the decision of the AQIS SAO pursuant to Order 93 of the Fish Orders, his findings were made in respect of the decision to refuse to grant an export permit because of Lacky’s failure to comply with, in particular, Order 40 of the Fish Orders. In his letter of 14 December 2007, Mr Fishley did not deal with the refusal to grant an export permit. Although stating that the abalone in question would not be eligible for export, that may not be the same thing as dealing with an export permit. It may have the same effect, but it certainly is not a review of directions made under Part 8. Having decided that an export permit should not be granted to Lacky because of a failure to satisfy Clause 14.2 of Schedule 9, Mr Chapman decided not to make any further directions under Part 8 as he was entitled to do.
  8. Accordingly, I find that Mr Chapman’s decision set out in his letter of 30 September 2008 does not constitute a decision made by the Secretary under Order 93 of the Fish Orders. However, I am satisfied that it is a decision made by the Secretary to refuse to grant an export permit.
  9. The subsequent correspondence between Mr Chapman and Mr Truong adds nothing to Mr Chapman’s decision of 30 September 2008. If anything, it serves to re-emphasise the fact that Mr Chapman reviewed AQIS’s decision to refuse an export permit to Lacky. As Mr Chapman said in his letter of 13 November 2008:
While I appreciate that my decision not to reverse AQIS’s earlier decision to refuse to grant an export permit for the abalone causes you some difficulties, the legislation in this area is quite clear.

JURISDICTION

  1. As I have already said, there are no direct provisions in the Fish Orders for a review of any decision made under those Orders by this Tribunal. Order 96 and 97 provide that Part 16 of the General Order applies to decisions made under the Fish Orders except for the provisions set out in Order 97.
  2. Order 16.02 of the General Order provides that a person whose interests are affected by an initial decision may apply to the Secretary to reconsider the decision. The Secretary is required to reconsider the decision and to make a decision that he or she might have made in the first instance (Order 16.03). An application may be made to the Tribunal for review of a decision made by the Secretary under Order 16.03.
  3. Order 16.01 of the General Order defines the terms decision and initial decision. A decision has the same meaning as in the AAT Act. An initial decision:
... means a decision made under an Export Control Order by the Secretary or a delegate of the Secretary, but does not include:
(a) a decision to grant an export permit or a government certificate; or
(b) a decision under section 16.03.
  1. I have already explained, for the purposes of the AAT Act, orders made under the Export Control Act are deemed to be an enactment for the purposes of the AAT Act. Therefore, Order 16.05 must be treated as an enactment for the purposes of s 25 of the AAT Act. However, the Tribunal can only review an initial decision, as that term is defined in Order 16.01, after reconsideration of that initial decision by the Secretary.
  2. The first point to make is that an initial decision, even if falling within the definition set out in Order 16.01 of the General Order, does not include a decision made under Order 93 or Clauses 13 and 14 of Schedule 9 of the Fish Orders. Therefore, if Mr Chapman’s decision was a decision made under Order 93 of the Fish Orders (contrary to my finding), it would nevertheless not be reviewable by this Tribunal because Part 16 of the General Order does not apply. Alternatively, if the decision made by Mr Chapman is a decision made under Clause 14.2 of Schedule 9 of the Fish Orders (which is what I have found it to be), it is not reviewable by this Tribunal because Part 16 of the General Order does not apply. Further, the definition of the term initial decision in General Order 16.01 excludes a decision to grant an export permit. While that exclusion is couched in positive terms, it seems to me to be highly unlikely that it was intended to apply only to a decision to grant an export permit. If that were the case it would serve no purpose because if a decision were made to grant an export permit, the applicant most certainly would not be seeking reconsideration or review of such a decision. I do recognise that the Secretary may issue a permit with conditions and may also vary an export permit. Any such decisions would seem to fall within the exclusionary provision. Therefore, if it be necessary, I am satisfied that the refusal to grant an export permit to Lacky, falls within the exclusion set out in the definition of the term initial decision. It follows that such a decision is not one which can be reconsidered by the Secretary and, in turn, reviewed by the Tribunal.

CONCLUSION

  1. Lacky applied to the Tribunal for a review of the decision made by Mr Chapman on 13 November 2008. However, as I have indicated above, that letter simply reaffirmed Mr Chapman’s decision made on 30 September 2008 not to reverse AQIS’s decision to refuse an export permit. Mr Chapman refers to his decision which he said was communicated to Mr Truong on 1 October 2008 and which is clearly his decision of 30 September 2008. Lacky did not attempt to argue otherwise.
  2. I agree with Lacky that the decision made by Mr Chapman on 30 September 2008 is not a decision made by the Secretary on reconsideration of Mr Fishley’s decision of 14 December 2007. It is a decision made affirming AQIS’s decision to refuse to grant Lacky an export permit. In my view, Mr Chapman’s decision affirmed the decision of AQIS made under Clause 14.2 of Schedule 9 of the Fish Orders. If it is not a decision affirming AQIS’s original decision refusing to grant Lacky an export permit, it is an original decision made by the Secretary to refuse to grant Lacky an export permit because it did not meet the requirement set out in Clause 14.2 of Schedule 9 of the Fish Orders. In the end result, it matters not how Mr Chapman’s decision is categorised. It is not a decision reviewable by this Tribunal because Part 16 of the General Order does not apply by reason of Order 97 of the Fish Orders. It follows that this Tribunal does not have jurisdiction to review Mr Chapman’s decision.

I certify that the forty-six [46] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Member


Signed: ........Dianne Eva

Clerk


Date of Telephone Hearing 18 December 2008

Date of Decision 15 January 2009

Counsel for the Applicant Mr T Wodak

Solicitor for the Applicant Mr A McMonnies

Solicitor for the Respondent Sarah Arthur, Blake Dawson


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