This matter concerns an appeal by the Applicant, Mr Craig Sheather, against an individual biosecurity direction (IBD) issued by the Respondent, Dr Mark Corrigan in his capacity as an authorised officer appointed under the Biosecurity Act 2015 (Biosecurity Act), on 16 November 2021.
The appeal was made pursuant to s 140 of the Act, the relevant provisions being:
140 Appeal to Land and Environment Court
(1) A person aggrieved by a decision of an authorised officer to give a biosecurity direction, or to amend a biosecurity direction, may appeal to the Land and Environment Court against the decision.
(2) An appeal is to be made in accordance with the rules of court, but may not be made more than 28 days after the day on which written notice of the decision is served on the person
The parties agreed that the Applicant is a "person aggrieved" by being given the IBD. The IBD was issued on 16 November 2021 and the appeal was commenced on 14 December 2021, which was within the time period specified by s 140(2) as modified by application of s 36(1) of the Interpretation Act 1987.
Pursuant to s 18(i) of the Land and Environment Court Act 1979 (LEC Act), appeals under s 140 of the Biosecurity Act are assigned to Class 2 of the Court's jurisdiction. Pursuant to s 39(2) of the LEC Act, the Court has 'all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.'
An authorised officer, such as the Respondent, or the Court on appeal, may give an IBD pursuant to s 128 of the Biosecurity Act.
128 Individual biosecurity direction
(1) An authorised officer may give an individual biosecurity direction that prohibits, regulates or controls (absolutely or conditionally) the doing of anything by the person to whom the biosecurity direction is given if the authorised officer reasonably believes the direction is necessary for any of the following purposes -
(a) to prevent the person from contravening or continuing to contravene a requirement imposed by or under this Act,
(b) to prevent, eliminate or minimise a biosecurity risk,
(c) to prevent, manage or control a biosecurity impact that has occurred, is occurring or is likely to occur,
(d) to enforce, administer or execute this Act (including an instrument made under this Act).
(2) An authorised officer may also give an individual biosecurity direction that requires a person to do anything if the authorised officer reasonably believes the direction is necessary for any of the following purposes -
(a) to ensure the person discharges a biosecurity duty of the person under this Act,
(b) to ensure that the person remedies a contravention, suspected contravention or likely contravention by the person of a requirement imposed by or under this Act,
(c) to prevent, eliminate, minimise or manage a biosecurity risk posed by a dealing of the person, or suspected dealing of the person, with biosecurity matter, a carrier or a potential carrier,
(d) to enforce, administer or execute this Act (including an instrument made under this Act).
Craig Sheather v Dr Mark Corrigan in his capacity as an authorised officer... [2022] NSWLEC 1331 | Case summary | Zoe
In this matter, the IBD was given by the Respondent because he reasonably believed it was necessary under s 128(1)(b) and s 128(2)(c). The range of circumstances which might be addressed through the giving of an IBD is large. Section 130 illustrates possible provisions which may be included in an IBD.
130 Examples of individual biosecurity directions
(1) Without limiting the generality of this Division, an individual biosecurity direction may include provisions that prohibit, regulate or control, or that require, any of the following -
(a) the isolation, confinement or detention of any biosecurity matter or other thing,
(b) the erection or repair of fencing, gates or any other method of enclosure, or other specified security or containment measures in relation to any premises, biosecurity matter or other thing,
(c) the erection of signs,
(d) the movement of any biosecurity matter, carrier, potential carrier or other thing,
(e) treatment measures in relation to any biosecurity matter, carrier, potential carrier, premises or other thing,
(f) the provision of samples of any biosecurity matter or other thing,
(g) the testing of any biosecurity matter or other thing,
(h) the obtaining of a biosecurity certificate in relation to any biosecurity matter or any other thing,
(i) the installation or use of a device for the purpose of detecting or monitoring the presence of any biosecurity matter or other thing or capturing any biosecurity matter or other thing,
(j) the destruction, disposal or eradication of any thing,
(k) any other matters expressly authorised by the regulations.
(2) A power to require a person to do something includes a power to require a person to arrange for that thing to be done.
An IBD provides a means of implementing the objects of the Act. The objects of the Biosecurity Act are at s 3:
3 Objects of Act
(1) The primary object of this Act is to provide a framework for the prevention, elimination and minimisation of biosecurity risks posed by biosecurity matter, dealing with biosecurity matter, carriers and potential carriers, and other activities that involve biosecurity matter, carriers or potential carriers.
(2) The other objects of this Act are as follows -
(a) to promote biosecurity as a shared responsibility between government, industry and communities,
(b) to provide a framework for the timely and effective management of the following -
(i) pests, diseases, contaminants and other biosecurity matter that are economically significant for primary production industries,
(ii) threats to terrestrial and aquatic environments arising from pests, diseases, contaminants and other biosecurity matter,
(iii) public health and safety risks arising from contaminants, non-indigenous animals, bees, weeds and other biosecurity matter known to contribute to human health problems,
(iv) pests, diseases, contaminants and other biosecurity matter that may have an adverse effect on community activities and infrastructure,
(c) to provide a framework for risk-based decision-making in relation to biosecurity,
(d) to give effect to intergovernmental biosecurity agreements to which the State is a party,
(e) to provide the means by which biosecurity requirements in other jurisdictions can be met, so as to maintain market access for industry.
The scope of the Biosecurity Act is broad. The giving of biosecurity directions is an essential part of the framework required by s 3(1), and s 3(2)(b) and (c). The application of the Biosecurity Act in NSW must be compatible with the requirements of national intergovernmental biosecurity agreements (s 3(2)(c)) and with the requirements of trading partners to maintain access to export markets (s 3(2)(e)).
The Biosecurity Act in Pt 2 provides definitions an explanatory material relevant to many of the terms use in the Act.
Biosecurity matter is defined as:
10 Biosecurity matter
Biosecurity matter means -
(a) any living thing, other than a human, or
(b) any part of an animal, plant or living thing, other than a human, or
(c) a product of a living thing, other than a human, or
(d) a disease, or
(e) a prion, or
(f) a contaminant, or
(g) a disease agent that can cause disease in a living thing (other than a human) or that can cause disease in a human via transmission from a non-human host to a human, or
(h) any thing declared by the regulations to be biosecurity matter.
Prions (s 10(e)) are a central consideration in these proceedings, but the Act does not separately define the term. Prions are misfolded proteins that can transmit their misfolded shape to normal forms of the same protein. Prions are associated with the family of progressive neurodegenerative diseases referred to as transmissable spongiform encephalopathies (TSEs) affecting humans and other animals. Prions differ from all other known pathogenic agents in lacking nucleic acids. They also differ from other infectious agents by not being destroyed by routine cleaning and sterilisation treatments. In this matter the TSE which the IBD seeks to address is bovine spongiform encephalopathy (BSE), because of the economic consequences if BSE were ever to occur in Australia.
Carrier is defined in s 11 as:
11 Carriers
A carrier means any thing (whether alive, dead or inanimate, and including a human) that has, or is capable of having, any biosecurity matter on it, attached to it or contained in it.
It would therefore include cattle.
Biosecurity impact is defined as:
13 Biosecurity impact
(1) A biosecurity impact means an adverse effect on the economy, the environment or the community that arises, or has the potential to arise, from biosecurity matter, a carrier or dealing with biosecurity matter or a carrier, being an adverse effect that is related to -
(a) the introduction, presence, spread or increase of a disease or disease agent into or within the State or any part of the State, or
(b) the introduction, presence, spread or increase of a pest into or within the State or any part of the State, or
(c) stock food or fertilisers, or
(d) animals, plants or animal products becoming chemically affected, or
(e) public nuisance caused by bees, or
(f) a risk to public safety caused by bees or non-indigenous animals, or
(g) any thing declared by the regulations to be a biosecurity impact.
(2) An animal or plant, or a product of an animal or plant, is chemically affected if it contains a contaminant and, as a result -
(a) it is or is likely to become unfit for sale or export for human consumption, or
(b) it is or is likely to pose a danger to human health or to the environment, or
(c) it is or is likely to be detrimental to export or other trade.
and biosecurity risk is defined in s 14 as "the risk of a biosecurity impact occurring."
"Deal with a biosecurity matter" is a broad concept:
12 Dealings
(1) Deal with biosecurity matter or a carrier, or engage in a dealing with biosecurity matter or a carrier, includes any of the following -
(a) keep biosecurity matter or a carrier,
(b) have possession, care, custody or control of biosecurity matter or a carrier,
(c) produce, manufacture or supply biosecurity matter or a carrier,
(d) import biosecurity matter or a carrier into the State,
(e) acquire biosecurity matter or a carrier,
(f) buy, sell or dispose of biosecurity matter or a carrier,
(g) move biosecurity matter or a carrier,
(h) release biosecurity matter or a carrier from captivity,
(i) use or treat biosecurity matter or a carrier for any purpose,
(j) breed, propagate, grow, raise, feed or culture biosecurity matter or a carrier,
(k) experiment with biosecurity matter or a carrier,
(l) display biosecurity matter or a carrier,
(m) enter into an agreement or other arrangement under which another person deals with biosecurity matter or a carrier,
(n) agree to deal with biosecurity matter or a carrier,
(o) cause or permit a dealing in biosecurity matter or a carrier to occur,
(p) anything prescribed by the regulations as a dealing with, or engaging in a dealing with, biosecurity matter or a carrier.
(2) An occupier of land is taken to have possession of any biosecurity matter or carrier on that land unless the occupier establishes that the biosecurity matter or carrier was in the possession, care, custody or control of another person.
(3) The regulations may specify circumstances in which a person is taken not to be dealing with or engaging in a dealing with biosecurity matter or a carrier for the purposes of this Act or any provision of this Act.
which includes in s 12(j) feed a biosecurity matter or carrier.
The Biodiversity Regulation 2017 (the Regulation) contains a number of relevant provisions.
Clause 36 includes definitions relevant to 'feed'.
36 Definitions
In this Division -
feed, a particular material to an animal, includes -
(a) allowing or directing another person to feed the material to the animal, or
(b) if the material may be ingested by the animal - allowing the animal to have access to the material.
National Standard for Recycling of Used Cooking Fats and Oils Intended for Animal Feeds means the document of that name approved by the Primary Industries Ministerial Council and published on the website of the Australian Renderers Association.
restricted animal material means any material derived from a vertebrate.
Note -
Restricted animal material includes rendered products - for example, blood meal, meat meal, meat and bone meal, fish meal, poultry meal, feather meal, and compounded feeds made from these products.
Restricted animal material is referred to by the acronym RAM, and as well as rendered products, includes meat for human consumption from fish, birds and mammals.
There are restrictions on what may be fed to cattle in cl 38 of the Regulation:
38 Feeding restricted animal material to ruminants
(1) A person must not feed restricted animal material to a ruminant unless the feeding of the restricted animal material to the ruminant is otherwise authorised by this clause.
(2) A person may feed the following restricted animal material to a ruminant -
(a) gelatin,
(b) tallow,
(c) milk of Australian origin,
(d) milk, a milk product or a milk by-product legally imported into Australia for the purpose of feeding a particular animal,
(e) a milk product made in Australia and derived from the following -
(i) milk of Australian origin,
(ii) milk, a milk product or a milk by-product legally imported into Australia for the purpose of feeding a particular animal,
(f) used cooking oil,
(g) mineralised sea bird guano.
(3) A person may feed restricted animal material to a ruminant by allowing the ruminant access to the material if it would not be reasonable in the circumstances for the person to prevent the ruminant from having access to the material, including in, but not limited to, the following circumstances -
(a) a ruminant having access to a placenta,
(b) a ruminant licking another ruminant,
(c) a ruminant finding the bones of wildlife or herd mates,
(d) a ruminant having access to the naturally deposited faeces of wildlife or herd mates.
(4) In this clause -
tallow means a product that -
(a) contains rendered fats and oils from an animal, and
(b) has been rendered in accordance with AS 5008 - 2007, Hygienic rendering of animal products (or any standard that replaces that standard), and
(c) complies with a specification of a maximum of 2% M+I (moisture plus insoluble impurities) as measured by the American Oil Chemists' Society (AOCS).
Note -
This includes products known as acid oil and yellow grease.
used cooking oil means oil that -
(a) was previously used, in Australia, for the purposes of cooking, and
(b) has been collected, processed and packaged in accordance with the National Standard for Recycling of Used Cooking Fats and Oils Intended for Animal Feeds.
A ruminant is a mammal with a rumen, a category which includes cattle.
The prohibition on feeding RAM to ruminants in subcl 38(1) is subject to the exemptions provided by subcll 38(2) and (3). "Used cooking oil" may be fed to ruminants but only if it satisfies the requirements specified in s 38(4).
The matter was assigned to a conciliation conference pursuant to s 34 of the LEC Act. I presided over the conciliation conference. The conciliation conference commenced on 28 April 2022, when the parties and their relevant experts were present. Following discussion, the conciliation conference was adjourned and resumed on 16 May 2022 when the parties presented joint submissions and a proposed agreement to resolve the appeal. The parties agreed that matters referred to in their joint submissions could be referred to in this judgment.
[2]
Agreed facts
The parties submitted the following agreed facts (taken from Joint Submissions on Proposed Section 34 Decision dated 16 May 2022 pars 19-22):
"19. The Applicant fed RAM to the affected ruminants in an inadvertent breach of cl. 38 of the Regulation. In particular:
a. during the period from around November 2020 to May 2021, the Applicant caused recycled vegetable oil to be added to crushed grain cattle feed at the Property;
b. the oil added to the cattle feed had previously been used to cook chicken, fish and vegetables;
c. chicken and fish are vertebrates; and
d. the oil was not collected, processed or packaged in accordance with the National Standard.
20. The ban on feeding RAM to ruminants contained in the Regulation is part of a national uniform ban on the feeding of all meals derived from vertebrates, including fish and birds.
21. Feeding RAM to ruminants in breach of the Regulation (RAM Feeding) has the potential to cause an adverse effect on the economy, environment or community that is related to the disease known as bovine spongiform encephalopathy (BSE). In particular:
a. BSE is a serious disease affecting cattle that may be spread by RAM Feeding; and
b. if ruminants that have been exposed to RAM in breach of the Regulation, even where this was inadvertent, were allowed to enter the export supply chain, this could be detrimental to the maintenance of Australia's favourable animal health and BSE-risk status, which is essential to the preservation of access to valuable export markets.
22. The risk of these effects occurring is a "biosecurity risk" for the purposes of the Act."
The decision reached by the parties is that the original IBD should be varied for the reasons given in pars 23 and 24 of the Joint Submissions.
"23. In order to prevent, eliminate, minimise or manage these risks, including of ruminants that have been exposed to RAM entering the export supply chain, it is necessary for those ruminants to be identifiable and their movements to be traceable. The Amended IBD contains reasonable measures to achieve this in respect of the affected ruminants and is consistent with the relevant guidelines issued by Animal Health Australia for the management of ruminants that have been feed RAM.
24. The parties submit that, by reason of the matters referred to above, there is a sufficient basis for the Court to reasonably believe that the Amended IBD is necessary:
a. for the purposes of s. 128(1)(b), to prevent, eliminate or minimise a biosecurity risk; and/or
b. for the purposes of s. 128(2)(c), to prevent, eliminate, minimise or manage a biosecurity risk."
The power to vary an IBD by an authorised officer, or on appeal by the Court, is provided by s 125 of the Biosecurity Act:
125 Revocation or variation of biosecurity direction
(1) A biosecurity direction may be revoked or varied by a subsequent biosecurity direction or directions.
(2) Without limiting the above, a biosecurity direction may be varied by extending the time for complying with the direction.
(3) A biosecurity direction may be revoked or varied by the Secretary or by any authorised officer.
In a communication dated 8 June 2022 the parties explained the changes proposed in the amended IBD:
"Following the conciliation conference, the parties agreed on minor amendments to the Original IBD to:
1. provide an exception to the general requirement in order 9 that the applicant obtain a permit to move the affected ruminants off the property, so that no permit is required where the affected ruminants are moved for the purpose of transporting them to a licensed abattoir or other slaughter facility;
2. remove the spent part of order 1 requiring the applicant to provide to an authorised officer a list of permanent identifiers (National Livestock Identification System (NLIS) tags) for all affected ruminants, which had been complied with by the date of the conciliation conference; and
3. make minor consequential amendments.
The amendment to the permit requirement in order 9 was agreed on the basis that information about the affected ruminants' RAM status, and their movements, would be available from other sources in the absence of a permit. In particular, the permanent identifiers for all affected ruminants had, by the date of the conciliation conference, been assigned an "F3" RAM status in the NLIS register (following the applicant's earlier compliance with the spent part of order 1 of the Original IBD), and there is a continuing requirement in order 5 of the Amended IBD for the applicant to record the affected ruminants' RAM status on any national vendor declaration."
If the parties reach a decision which is acceptable to them and is one which the Court could make in the proper exercise of its functions, I must dispose of the proceedings in accordance with the decision reached by the parties - s 34(3) of the LEC Act. To dispose of the proceedings the orders must finalise the appeal and give effect to the agreement reached between the parties. The finalisation of the appeal requires that it be upheld so that Order 2 can be granted, as explained by Preston CJ in Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd (No 2) [2008] NSWLEC 254 at [5]-[6] and applied in Newcastle & Hunter Valley Speleological Society Inc. v Upper Hunter Shire Council and Stoneco Pty Limited (No 2) [2010] NSWLEC 104. The need to uphold the appeal applies to the present matter even though the appeal was brought under the Biosecurity Act and not the Environmental Planning and Assessment Act 1979. The changes to the Individual Biosecurity Direction are material, even if relatively minor.
I am satisfied that the decision reached by the parties is one that the Court could make and that there are no jurisdictional impediments to making the decision, for the reasons explained by the parties in their Joint Submissions.
[4]
Orders
The Court orders that:
1. The appeal is upheld.
2. An individual biosecurity direction under s 128 of the Biosecurity Act 2015 is given on the terms set out in the Annexure.
[5]
Acting Commissioner of the Court
(Annexure IBD) (211875, pdf)
[6]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 24 June 2022
Parties
Applicant/Plaintiff:
Craig Sheather
Respondent/Defendant:
Dr Mark Corrigan in his capacity as an authorised officer under the Biosecurity Act 2015