The validity and effect of the Evidential Certificate
81 The central factual matter that must be determined is whether the respondents have been marketing and supplying veterinary chemical products within the meaning of the AgVet Code that are not registered under the Code. The primary evidence that identifies the existence of relevant products of that nature is the Evidential Certificate dated 6 December 2019. It is signed by Mr Harris, who is a member of the staff of the APVMA whom the APVMA has authorised to give certificates under s 149 of the AgVet Code. It identifies the 296 Identified Products as chemical products. On its face, the Evidential Certificate is evidence of that central factual matter. However two aspects of it require comment: whether all the matters stated in it are matters of a kind that s 149(3) authorises evidential certificates to cover; and the effective date of the certificate.
82 The matters stated in the Evidential Certificate are said in it to be matters covered by s 149(3)(b), s 149(3)(d) and s 149(3)(k) of the AgVet Code. Sub-paragraph (b) includes among the matters that may be stated in a certificate 'that a chemical product referred to in the certificate was, or was not, at a particular time, or during a particular period, a chemical product or a registered chemical product'. There is some circularity on the face of this, as it appears to authorise, among other things, a statement that 'a chemical product' is 'a chemical product'. It will be recalled that 'chemical product' is a defined term which includes 'veterinary chemical product', that being the category of product with which this proceeding is concerned. But the definition in s 3 of the AgVet Code is subject to the usual exception of 'unless the contrary intention appears', and in my view the contrary does appear here, because it is necessary to read the term in a way other than the defined term so as to remove the circularity and give a sensible effect to the provision. That may be done by reading the first use of the term 'chemical product' in s 149(3)(b), not to be a reference to the defined term, but to be a reference to 'a substance or mixture of substances' (a phrase used in the definitions of 'agricultural chemical product' in s 4 and 'veterinary chemical product' in s 5) that is or may be a 'chemical product' as defined, that is, or may be an agricultural chemical product (as defined) or a veterinary chemical product (as defined).
83 A further question about the scope of s 149(3)(b) of the AgVet Code could arise because the Evidential Certificate purports to state under that paragraph, not just that the Identified Products are chemical products and were not registered chemical products (both matters explicitly authorised under the sub-paragraph), but also that they are not 'listed chemical products' or 'reserved chemical products' (not explicitly authorised under the sub-paragraph). However, as I have already said, any question as to reserved chemical products can be set to one side. So too can any question as to listed chemical products; that is a concept found in the Agricultural and Veterinary Chemicals Code Regulations 1995 (Cth) which can be relevant to what is required for the APVMA to have power to register a product under the AgVet Code (s 15(2)(b)), but it does not operate to exempt the product from s 78 or s 88 and so is not presently relevant. So it is not necessary to consider whether those aspects of the Evidential Certificate were authorised by the AgVet Code.
84 Another question about the construction of s 149(3) arises because of the statement in the Evidential Certificate, purportedly made under s 149(3)(d), that the Identified Products are not subject to a permit or exemption and have never had a permit or exemption in force. The matter that s 149(3)(d) permits an evidential certificate to state is 'that a permit or exemption referred to in the certificate was in force at a particular time or during a particular period'. One difficulty is that s 149(3)(a)-(c) expressly authorise statements that a matter was not the case, where s 149(3)(d) does not expressly authorise a statement that a permit was not in force. That may indicate that the statement is not authorised.
85 The APVMA nevertheless submits that the ordinary natural meaning of s 149(3)(d) is that it refers to the status of a permit and exemption and whether it was in force at a particular time or during a particular period. The APVMA submits that this authorises a statement that 'no permit or exemption' was in force, based on a purposive interpretation and contrasting the nature of a 'permit or exemption' with the 'characterisation of a substance, product or label' in s 149(3)(a), s 149(3)(b) and s 149(3)(c). However I doubt that is so: on its face what the section authorises is a statement 'that' a specific permit or exemption is in force, not 'whether' any permit or exemption is in force. That is reinforced by the fact that what the sub-paragraph authorises is a statement in relation to 'a permit or exemption referred to in the certificate', which seems to mean a particular permit or exemption, that is a permit or exemption that exists, and not 'no permit or exemption'. And it is further reinforced by s 149(3)(e) and s 149(3)(f), which respectively appear to authorise, with similar wording, statements that a particular permit or exemption was suspended or was subject to a stated condition. These must be referring to permits or exemptions that do exist, as it would be a nonsense to say that a non-existent permit or exemption has been suspended or is subject to a condition.
86 But it is not necessary to come to a firm view about the proper construction of s 149(3)(d) because I accept the APVMA's alternative submission that it was not incumbent on it to prove the absence of a permit or exemption anyway. However I reach that conclusion by a different route to that submitted by the APVMA. It relies on s 13.1(2) of the Criminal Code as scheduled to the Criminal Code Act 1995 (Cth), which provides that the prosecution bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant. The reference to an evidential burden of proof is a reference to 'a burden of proof that a law imposes on a defendant' which is said to be an 'evidential burden only': Criminal Code s 13.3(1). The APVMA says that there is such an evidential burden under s 13.3(3) of the Criminal Code for a defendant who wishes to rely on 'any exception, exemption, excuse, qualification or justification provided by the law creating an offence'. But I cannot see how that provision applies outside a prosecution for an offence. While there are notes to s 78 of the AgVet Code that refer to s 13.3(3) of the Criminal Code, they do so only in relation to s 78(2A), which creates an offence, and such an offence is not being prosecuted in this proceeding.
87 Note 2 to s 78(3A) of the AgVet Code, which provides that s 78(1) is a civil penalty provision, says 'For the evidential burden in civil penalty proceedings in relation to the matters in paragraphs (1)(a) and (b), see section 145CD'. That section in turn provides:
In proceedings for a civil penalty order, a person who wishes to rely on any exception, excuse, qualification or justification in relation to a civil penalty provision bears an evidential burden in relation to that matter.
So it, too, cannot apply to this proceeding, as the APVMA is not seeking any civil penalty order, which is an order requiring a person to pay a pecuniary penalty: s 145A(4). Similarly to s 78, there are notes to s 88 that refer to the burden of proof, but they only concern the subsection that creates a criminal offence and civil penalty proceedings.
88 It is necessary, then, to refer to the general principles of statutory interpretation that guide the determination of where the burden of proof of a matter relies. That must be determined as a matter of substance: Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 at 119 (McHugh J). It depends on whether the matter in question is part of the total statement of the obligation, or whether it is in the nature of an excuse or justification: Avel at 119; Vines v Djordjevitch (1955) 91 CLR 512 at 519-520. If the purpose of the legislation is to lay down a principle of liability which is intended to apply generally, and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts, the onus of proving those facts will lie on the party seeking to rely on them: Vines at 519-520.
89 Those principles lead to the conclusion that, here, the onus of proving that the respondents have a permit or exemption saving them from any breach of s 78(1) of the AgVet Code lies on the respondents. That is inherent in the very notion that, under other provisions of the AgVet Code, a person may obtain a permit or exemption that the person would not otherwise have, and so be authorised to do something that would otherwise be a breach of s 78(1). A permit or exemption is thus in the nature of an excuse or justification. That is confirmed by the structure of s 78, which makes a general statement of the obligation - an obligation not to 'supply, or cause or permit to be supplied, a chemical product that is not a registered chemical product or a reserved chemical product' - and then provides by the word 'unless' that the obligation does not apply if one of two specific conditions is satisfied, that (a) the supply is authorised by a permit, or (b) the product is exempted by the APVMA from the operation of the section.
90 I do not consider that the existence of the specific provisions about evidential burdens in s 13.1 and s 13.3 of the Criminal Code or of s 145CD of the AgVet Code in relation to civil penalty orders implies that, in the absence of those specific provisions, the burden lies on the APVMA. Those sections are better understood as providing, by way of clarification, for a limited burden - an evidential burden - on the defendant or respondent where the criminal or otherwise penal nature of the proceeding might give rise to doubt that such a burden applies.
91 I therefore accept, albeit for different reasons, the APVMA's submission that it was not obliged to prove that the respondents did not have a permit or exemption of the kind referred to in s 78(1). That being so, there is no need to consider whether the Evidential Certificate had effect in relation to the absence of a permit or exemption.
92 The second aspect of the Evidential Certificate that requires comment is its date and date range. It was made over one and a half years before the proceeding was commenced and nearly two and a half years before the hearing. It only makes the relevant statements in relation to the period 1 October 2018 to 6 December 2019, so it does not have direct operative force in relation to the considerable period that has elapsed after that date. Its age gives rise to concern about the weight that should be put on it as at the date of the hearing.
93 Counsel for the APVMA submitted that since the Evidential Certificate stands as prima facie evidence of the matters stated in it, in the absence of evidence to the contrary the Court could infer that the state of affairs existing as at that time has continued. He referred to Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 at [395]-[398] (Austin J) in that regard. That passage does not deal specifically with the question of lapse of time; it considered, rather, the question of the probative force to be given to the documents that were there taken as prima facie evidence under s 1305(1) of the Corporations Act 2001 (Cth), namely company books. Nevertheless, the passage is helpful. At [396]-[397] Austin J held (citations omitted):
… The statement in s 1305(1) that the company's books are prima facie evidence of a matter stated or recorded in them does more than merely to convey that they are the starting point to proof or a 'first view'. All other things being equal, the fact that a matter is stated in a book kept by a company is sufficient to prove that matter in civil proceedings. That does not reverse the onus of proof in the proceedings in any general way, but it means that the tendering of the book is evidence of the matter recorded in it, and that matter will be thereby proven unless other evidence convinces the tribunal of fact to the contrary, on the balance of probabilities.
Section 1305(1) does not make the company's books conclusive evidence of the matters they contain, in the sense of requiring the tribunal of fact to make a finding in terms of the content of the books in the absence of proof to the contrary by the opposing party. The books are prima facie evidence of the matters stated in them, but the weight of that evidence is to be measured in accordance with the common sense of the tribunal of fact.
94 The same common sense approach should be taken here. The Court has to determine whether, on the balance of probabilities, the matters stated in the Evidential Certificate as at 6 December 2019 were still true as at the time of the hearing, 29 April 2022. Applying a common sense approach, there is no rule that the earlier state of affairs must be taken to have continued in the absence of proof to the contrary; whether it will be taken to have done so depends on the evidence (if any) and the inherent probabilities.
95 Here I am satisfied on the balance of probabilities that if the matters stated in the Evidential Certificate were prima facie true as at 6 December 2019, they were still true as at the date of the hearing. That follows from the nature of the matters stated, the inherent probabilities, and the evidence that has been led. The nature of the principal matter stated, that the Identified Products are 'chemical products' regulated by the AgVet Code, depends on the nature of the claims that are made for the products, including on the Website. The evidence additional to the Evidential Certificate described above indicates continuity over time, up until November 2021, as to the offering of products on the Website. To cease to offer products which are claimed to offer therapeutic benefits of the kind that makes them 'veterinary chemical products' would be a considerable change in the business of the respondents. The evidence indicates that far from changing their business model since the APVMA's investigation, the respondents have chosen to conduct it in the same way that they did beforehand, so as to ignore both the investigation and the Recall Notices.
96 The other main matter that is the subject of the Evidential Certificate is that the Identified Products are not registered products. As the authority that maintains the Register, the APVMA may be taken to know whether a person has applied for or obtained registration of a chemical product. It is inherently improbable that the respondents would have applied for or obtained registration and that the APVMA would have continued its investigation and would not have mentioned that fact in its evidence. To the contrary, the respondents seem to have chosen to ignore the lack of registration, save to the extent that Ms Hayes has proposed a petition to change the law, which itself suggests that there has been no attempt to have any product registered.
97 While the long lapse of time since the date of the Evidential Certificate is less than ideal, and has not been explained, a common sense view of the position leads to the conclusion that, on the balance of probabilities, the fact that the Court must take the certificate as prima facie evidence of the things stated in it as at 6 December 2019 means that the prima facie and uncontradicted position was the same as at the date of the hearing.