Distilled Spirits Industry Council of Australia Inc v Food Standards Australia New Zealand

Relevant Legislation 35 Section 2A sets out the objectives of the Act: 'The object of this Act is to ensure a high standard of public health protection throughout Australia and New Zealand by means of the establishment and operation of a joint Food Authority to achieve the following goals: (a) a high degree of consumer confidence in the quality and safety of food produced, processed, sold or exported from Australia and New Zealand; (b) an effective, transparent and accountable regulatory framework within which the food industry can work efficiently; (c) the provision of adequate information relating to food to enable consumers to make informed choices; (d) the establishment of common rules for both countries and the promotion of consistency between domestic and international food regulatory measures without reducing the safeguards applying to public health and consumer protection.' 36 Under s 3A "food" clearly includes alcoholic beverages. The functions of FSANZ are set out in s 7. One of those functions is, "in accordance with this Act, to develop draft standards and draft variations of standards, to make recommendations to the Council in relation to those drafts where necessary and to review standards ... ". 37 The "Council", as the definition in s 3 makes clear, is a Council of Ministers of the Commonwealth, the States and the Territories. 38 Section 10 sets out the relevant objectives of FSANZ: '(1) The objectives (in descending priority order) of the Authority in developing food regulatory measures and variations of food regulatory measures are: (a) the protection of public health and safety; and (b) the provision of adequate information relating to food to enable consumers to make informed choices; and (c) the prevention of misleading or deceptive conduct. (2) In developing food regulatory measures and variations of food regulatory measures, the Authority must also have regard to the following: (a) the need for standards to be based on risk analysis using the best available scientific evidence; (b) the promotion of consistency between domestic and international food standards; (c) the desirability of an efficient and internationally competitive food industry; (d) the promotion of fair trading in food.' 39 Section 13 provides: '(1) The Authority must make a preliminary assessment of the application. ... (2) ... (b) whether the application is so similar to a previous application for the development or variation of a food regulatory measure that it ought not to be accepted.' 40 Under s 13A the Authority must accept or reject the application. If it accepts the application, s 15 provides that it must make a "full assessment" of the application. Section 13A and s 14 necessitate notification to the public of acceptance and the invitation of submissions. Section 15(3) provides: 'In making a draft assessment of the application, the Authority must have regard to: (a) any submissions made to it within the specified period in response to a notice given under section 13A or 14; and (b) the objectives and matters listed in section 10; and (c) whether costs that would arise to bodies or persons from a food regulatory measure developed or varied as a result of the application outweigh benefits that would arise to the public from the measure or variation; and (d) whether there are any alternatives (available to the Authority or not) which are more cost-effective than a food regulatory measure developed or varied as a result of the application; and any other relevant matters.' 41 Section 15A(1) provides: 'After making a draft assessment of the application, the Authority must: (a) prepare in writing a draft food regulatory measure or a draft variation of a food regulatory measure; or reject the application.' 42 Section 18 provides: '(1) ... after holding an inquiry to consider … a draft variation of a standard, the Authority must recommend to the Council: (a) that it adopt… the draft variation of the standard; or (b) that it adopt… the draft variation… subject to such amendments as the Authority considers necessary; or (c) that it reject… the draft variation…; and give the Council its reasons for making that recommendation.' 43 Section 34 empowers FSANZ effectively to require an applicant to provide such further information it considers necessary on pain of the application being taken to have been withdrawn. 44 Section 40 requires that one member of FSANZ shall be a State or Territory officer having responsibility for public health matters and that one must have a "background in consumer rights". The Chairperson must possess expertise in at least one of a number of relevant fields, but public health and consumer rights are, as indicated, given special emphasis. 45 Section 25D of the Acts Interpretation Act 1901 (Cth) provides: 'Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.'

Application for judicial review 46 The amended application to the Court for judicial review alleges as grounds for review that FSANZ: (i) made a jurisdictional error in that FSANZ misconceived its function and asked itself the wrong question; (ii) failed to observe procedures which were required by law to be observed in connection with the making of the Final Recommendation Decision. (iii) made an error of law in reaching findings of fact where there was no material or other evidence to justify the findings within s 5(1)(f) of the ADJR Act and within the principles relating to the "no evidence" rule at common law; (iv) failed to take into account relevant considerations which it was bound to take into account; (v) by its Final Recommendation Decision made a decision so unreasonable that no reasonable decision-maker could have made it; (vi) made an error of law with regard to an onus of proof lying on DSICA; (vii) exercised its power inflexibly in accordance with a policy without regard to the merits of DSICA's case; (viii) denied both DSICA and DIAGEO procedural fairness by: · failing to offer them a reasonable opportunity to make submissions on FSANZ's departure from the provisions of international agreements to which Australia is a party; · failing to offer them a reasonable opportunity to make submissions on FSANZ's departure from its policy relating to the procedure for processing applications for variations to the Code; and (ix) denied the DIAGEO procedural fairness by failing to offer it an extension of time to make submissions in response to the "Authority-in-Confidence" copy of the Final Recommendation Decision which it was given. 47 The Council's Rejection Decision was said to be affected by the errors infecting FSANZ's decision.

Issues 48 The respondents submitted a number of preliminary and general objections to the grounds of review pressed by the applicants. First, they submitted that the Court should not entertain any review of the Final Recommendation Decision because the ultimate decision and the decision in respect of which the applicants are aggrieved is the Rejection Decision. Second, they say that the grounds of review, in respect of the Final Recommendation Decision, misstate the reasons as provided by FSANZ; seek to construe the reasons as provided by FSANZ with "an eye keenly attuned to discerning error"; or impermissibly attempt to question the "weighting" given by FSANZ to considerations relevant to the decision-making process. The respondents also say that the applicants' grounds of review impermissibly impose a duty on FSANZ to obtain further information where no such duty exists.

(i) Jurisdictional error - FSANZ misconceived its function and asked itself the wrong question 49 The applicants submitted that there were several ways in which FSANZ asked itself a question which was not the question or test posed by s 10 of the Act: · "FSANZ regarded itself as compelled to prefer the objective of public health and safety and consumer information as a primary objective, in comparison with considerations of a consistent market and an internationally competitive food industry." · FSANZ failed to consider the objectives set out in s 10(1)(b) and (c) of the Act. · FSANZ failed to ask itself whether the promotion of consistency between domestic and international food standards (s 10(2)(b)) could be achieved without threatening the protection of public health and safety, and whether enforcement of the requirement to label spirits and liqueurs with the names and addresses of suppliers in Australia and New Zealand would render the importation of such products for sale in duty free shops a commercially unviable exercise. · FSANZ misconceived its function by giving more weight to the considerations set out in s 10(1) than those in subsection (2) and by regarding the proposed variations to the food standards as "a departure from the status quo, when in fact the status quo was that the exception was in practice in place, because AQIS [had] not [enforced] these requirements". · FSANZ treated the objective of public health and safety as a conclusive consideration without asking itself whether its decision promoted its own goals, set out in s 2A and particularly s 2A(d). 50 The respondents submit that, as an express object of the Act is "to ensure a high standard of public protection", no error is exposed by FSANZ making a recommendation that promotes public health and safety and consumer information. FSANZ had considered all of the submissions advanced upon it, and upon a "fair reading" of FSANZ's reasons it can be seen that FSANZ: '…carefully set forth all advantages and disadvantages being urged upon it; did not give pre-eminence to any one factor, be it an advantage or a disadvantage; carefully set forth all disadvantages being urged upon it - "public health" being but one of those disadvantages; and then expressly attempt to "weigh" those contentions. It concluded: "these benefits do not outweigh the fundamental public health importance of standard drink labelling".'

(ii) Failure to observe procedures 51 As to this ground, the applicants submit that FSANZ failed to perform its statutory duty to "have regard to" the matters referred to in s 10(2) of the Act. The applicant also submitted that the Statement of Reasons attached to the Final Assessment Report does not comply with FSANZ's duty to give reasons pursuant to s 18(1) of the Act, "whether or not that provision is coupled with and expanded by s 25D of the Acts Interpretation Act 1901 (Cth)" because it wholly fails to explain FSANZ's process of reasoning as required by the common law. 52 The respondents submit that FSANZ plainly did have regard to the matters set out in s 10(2) of the Act and further submit that this ground adds nothing to the applicant's claim that FSANZ failed to take into account relevant considerations (see below). The respondents also submit that this ground of review should be rejected because a statement of reasons was provided by FSANZ in accordance with s 18 of the Act, as acknowledged expressly in the applicant's application to the Court.

(iii) Error of law and "no evidence" 53 The applicants pressed the no evidence ground with respect to three alleged factual findings, namely: (i) the absence of labels stating a supplier's name and address "would remove a critical link in the chain of supply, and could potentially jeopardise trace-back and recall operations"; (ii) to continue the name and address labelling requirement would not impose a cost which would make the supply of such products commercially unviable for importers; and (iii) unless the labelling requirement that the supplier's name and address be retained, important health and safety objectives would be compromised. 54 The applicants submitted that FSANZ had not regarded the submissions made by interest groups as amounting to evidence. However, FSANZ did not obtain any material itself with respect to these issues. It simply made factual findings which lacked any evidential basis. 55 The respondents submitted that this ground must be rejected because there was material or other evidence to justify the findings, particularly the findings of fact upon which the decisions were based - namely as to health and public safety. The respondents submitted that the 'no evidence' ground, identified in s 5(1)(h) of the AD(JR) Act and limited in operation by s 5(3), is not made out, and there is no room for any independent no evidence ground under the s 5(1)(f) rubricof "error of law".

(iv) Failure to take into account relevant considerations 56 The applicants submitted that FSANZ failed to take into account the following considerations referred to in paras (a) - (d) inclusive of s 10(2). 57 The applicants also submitted that FSANZ failed to take into account its own Guide to Applications and Proposals Processing ("FSANZ Guide"), dated November 2001, by: · not taking into account Australia's obligations under the Sanitary Phytosanitary Measures Agreement ("SPS Agreement") and the Technical Barriers to Trade Agreement ("TBT Agreement") of the World Trade Organisation ("WTO"); · making its Final Recommendation Decision in the same term as the draft Final Recommendation Decision; · by failing to compare international regulations with Australian and New Zealand regulations; and · by failing to assess the health, economic and social impacts on all sectors of the community, and not considering the type of information required to make that analysis. 58 The respondents submitted that FSANZ had met its statutory obligation, pursuant to s 10(2) of the ANZFA Act, to 'have regard to' these matters as evidenced by material in its Preliminary Assessment Report dated 14 February 2001 and in the draft Final Recommendation Decision issued to DSICA on 8 March 2002. The respondents also alleged that the FSANZ Council "had such matters [at] the forefront of its attention" when coming to its decision. The respondents say that the draft Final Recommendation Decision placed DSICA on notice that FSANZ considered there to be "a striking absence of any empirical or other evidence in the arguments advanced by both proponents and opponents of the application"; DSICA's response was not to adduce any such evidence but to assert that FSANZ should exercise its statutory power to obtain such evidence. 59 The respondents further say that there is nothing to indicate that there was any scientific evidence that FSANZ had not considered. As to FSANZ's duty to have regard to "risk analysis using the best available scientific evidence", the respondents contended that either that had been done or there was no such duty because no such evidence was available. FSANZ had taken into account differences between domestic and international food standards, efficiency and competitiveness in the food industry, and fair trading. That there were competing submissions and values to be addressed by FSANZ does not support a claim that those submissions or factors which did not prevail were not taken into account.

(v) Unreasonableness 60 The applicants submit that FSANZ's Final Recommendation Decision was so unreasonable that no reasonable authority could have reached it. The applicants pressed Wednesbury unreasonableness on the bases that: · although FSANZ thought it had no reliable evidence about the effect of enforcement of the labelling requirements upon trade disparities, cost and availability of products and consequential effects upon the commercial viability for DIAGEO and other members of DSICA to import such products to be sold in duty free shops, FSANZ failed to make its own enquiries about such matters. · FSANZ was of the view that it needed to obtain further information to complete its inquiry, but did not attempt to obtain further information despite its power it to so under s 34(1) of the Act. · DIAGEO had provided evidence of the nature of the impact on the industry and on the availability of products in duty free shops in Australia and the kind of evidence that would need to be obtained, but was told by FSANZ that no further comment would be accepted. Disregarding this attempt to furnish evidence, FSANZ proceeded to forward its report to the FSANZ Council for approval. · FSANZ's decision involves unequal treatment, without justification, of the labelling requirements of spirits and liqueurs purchased for personal use and imported into Australia and New Zealand, depending upon whether the products are purchased overseas or purchased at a duty free shop in Australia. 61 The respondents submitted that there is no reason why FSANZ should not leave it to the applicants to advance such evidence, including empirical evidence, as they sought fit to support their application. FSANZ was under no obligation to make inquiries, any such duty being confined to "exceptional circumstances": Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, which did not exist here. Further, FSANZ gave careful consideration to all available material and expressly addressed the question of "unequal treatment".

(vi) Error of law as to onus of proof 62 The applicants submitted, pursuant to s 5(1)(f) of the AD(JR) Act, that FSANZ placed an onus of proof on DSICA which was not required by the Act or by any other law, by requiring "convincing justification for disturbing…the important public health initiative of standard drink labelling" (and by imposing the same onus of proof with respect to the application to exempt labelling of the local name and address of the supplier). 63 The respondents submitted that no onus of proof was imposed upon the applicants. It was a matter for the applicants to set forth the bases upon which they wished to advance their application. No duty existed whereby FSANZ was required to make out the applicants' case.

(vii) Power exercised inflexibly in accordance with a policy 64 In contravention of the requirements of s 5(1)(e) and s 5(2)(f) of the AD(JR) Act and the asserted common law requirement to give proper, genuine and realistic consideration to the decision, the applicants submitted that FSANZ had maintained a policy since 1993 enforcing standard drink labelling requirements and required the applicants to provide compelling reasons as to why it should make a decision to diminish that policy even to a small extent. The relevant alleged statement of policy is contained in the Statement of Reasons (Attachment 3) of the Final Recommendation Decision: 'The reasons for the position adopted by the Authority in 1993 regarding the standard drink application are of considerable relevance to the present application (Application A418). Notably, the two principal objectives underpinning the 1993 regulatory measure remain the Authority's priority objectives in dealing with Application A418. The Authority's position with respect to standard drink requirements has not changed since 1993. Therefore, it would require compelling reasons to introduce measures which would diminish the regulatory measure, regardless of the extent of that diminution.' The applicants submitted that this amounted to a refusal to listen to what DSICA had to say as to why an exception should be made to that policy. 65 The applicants allege that FSANZ exercised its power inflexibly in accordance with that policy without regard to the merits of DSICA's case, because FSANZ failed to make any findings of fact necessary for FSANZ to take into account the considerations enumerated in s 10(2) of the Act. 66 The respondents submitted that such a statement, contained within a statement of reasons, does not constitute a statement of policy and, in any event, it is an approach which was not inflexibly applied by FSANZ.

• International Agreements 67 Applying the reasoning of Minister for Immigration and Ethnic affairs v Teoh (1995) 183 CLR 273 the applicants submitted that Australia's entry into the SPS Agreement and the TBT Agreement of the WTO generated a legitimate expectation that FSANZ would not depart from the provisions of those agreements in determining applications for variations of food standards, without first giving them a hearing. In making the Final Recommendation Decision FSANZ departed from the SPS and TBT Agreements without first giving DSICA and DIAGEO an opportunity for a hearing on that issue, which amounted to a denial of procedural fairness. 68 The applicants also submitted that they were denied procedural fairness because FSANZ departed from a policy in the FSANZ Guide that they claim generated a legitimate expectation that FSANZ would only assess an application for variation of the ANZ Food Standards Code and proceed to make a decision, taking into account Australia's obligations under the SPS and TBT agreements of the WTO.

• Failure to offer reasonable opportunity to make submissions 69 The applicants submitted that the FSANZ Guide stated that FSANZ would base its Final Recommendation Decision on the "draft Final Recommendation Decision" and the only changes to the text would be based on comments to the "draft Final Recommendation Decision" and changes to the regulatory decision or discussion that might flow from those comments. The Guide continued: 'It may in some rare cases be necessary to conduct public meetings and further consultation where there are significant changes to the draft standard proposed following the second round of public consultation at the end of the Draft Assessment stage. In all cases the applicant will be apprised of developments and any new information which [FSANZ] may rely upon to make a decision. The applicant, in these circumstances, will be given the opportunity to comment on any new information.' 70 The FSANZ Guide also stated that FSANZ would identify relevant international regulations in order to compare them with Australian and New Zealand regulations; consider the likely regulatory impact on all sectors of the community, including consumers and the food industry; think about and ask for the type of information that would be used in that analysis, including the possible costs and benefits of the regulation, and its health, economic and social impacts; and consider the type of information that would help with the analysis at the early stage of the initial assessment, so that questions could be included in the report made under s 13 of the Act or to allow an applicant time to gather the necessary information. 71 The applicants submitted that FSANZ, in making its Final Recommendation Decision in the same terms as its draft Final Recommendation Decision, departed from the guidelines in the FSANZ Guide. DSICA and DIAGEO were denied procedural fairness once FSANZ failed to offer DSICA a reasonable opportunity for a hearing on its proposed departures from the statements in the FSANZ Guide.

• Failure to offer extension of time to make submissions 72 The applicants submitted that when FSANZ reversed its decision in the draft Final Recommendation Decision, DSICA was not afforded a reasonable opportunity to present a case and prepare evidence before FSANZ released the Final Recommendation Decision. Although FSANZ invited further submissions within 21 days, the applicant claims that FSANZ's failure to respond to DIAGEO's letter dated 13 March 2002, which sought further time to make submissions and prepare empirical evidence, and its refusal to allow DIAGEO to respond except through DSICA, constituted a denial of procedural fairness. 73 The respondents' submissions dealt with each of the three aspects of procedural fairness together; each of these grounds should be rejected because the applicants had been given extensive procedural fairness; having obtained a preliminary assessment which the applicants viewed as favourable, they thereafter sought to preclude subsequent reconsideration of the matter; the applicants were made fully aware of the issues being considered by the Authority; and procedural fairness provides the opportunity to be heard, but not an assurance that it will be properly utilised by the party wanting to be heard. 74 As to the failure to offer an extension of time, the respondents further submitted that FSANZ was under no obligation to put any review "on hold" for an unspecified time so that DIAGEO could "re-canvass arguments previously put". The respondents submitted that no obligation to do so is prescribed by the Act. Alternatively, the purpose of affording an opportunity to be heard arises so that those whose interests may be affected by a decision may advance such submissions to protect those interests. In the present case, DSICA was the body created for the purpose of protecting the interests of its members, including those of DIAGEO and it was reasonable in the circumstances to require DIAGEO to make its final response through DSICA.

(ix) The Council's Rejection Decision affected by errors infecting FSANZ's decision 75 The applicants submitted that the FSANZ Council's decision was infected by the same errors which, in its submission, vitiated FSANZ's decision. In addition, the Council took the view that to vary the Code would create an "undesirable precedent of compromise in food regulation". This view, the applicants alleged, reinforced the error made by FSANZ of failing to consider the merits of DSICA's application.

Non-prejudicial error 76 The respondents submitted finally, that even if one of the grounds of review could be made out, any error in the FSANZ's Final Recommendation Decision was a non-prejudicial error and/or relief should be refused as a matter of discretion. The Council decision, in particular, being a decision by ministers of state, is within that "band of decisions" with which a court should not interfere: Re W (an infant) [1971] AC 682 at 700; cited with approval in Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132.

Preliminary 77 It is useful to begin with an appreciation of the presently relevant legislative policy expressed by s 10 in its context. Read as a whole, the Act, including s 2A and s 10, is primarily aimed at public health protection. Its next most important aim appears to be to foster consumer confidence, by, among other things, requiring that adequate information on food consumed or prepared in Australia and New Zealand is available to consumers. Section 40 shows that. 78 The s 10(1) "objectives" are not merely graded aspirations, aimed to inform decision-making in a vague, background way, they are to be the subject of active consideration in all instances of developing food regulatory measures and variations of such measures. That is shown by the requirements that the Authority must "also" have regard to the subs (2) considerations: FSANZ is to have regard to their additional subs (1) objectives additionally to those in subs (2).

79 In relation to the s 10(2) considerations, it seems to me that special emphasis has been placed by Parliament on standards for food regulatory measures being based on the use of scientific evidence to analyse relevant risks. The Act speaks in s 10(2)(a) of a "need" for standards to be so based, indeed based on the "best available" scientific evidence. A "need' for something is a stronger concept than its "desirability" or its "promotion", both the latter concepts being employed in the following paragraphs of subs (2).

80 A statutory requirement that a decision-maker "have regard to" a consideration is an injunction to treat it as, at least potentially, a basically important matter. In R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, 329 Mason J (Gibbs CJ agreeing) said of such a requirement that it requires the decision-maker "to take [it] into account and to give weight to [it] as a fundamental element in making his [or her] determination". That is not to say that, in every case, a particular consideration will be of much or even any weight, once weighed, but regard must be had to it. Nor need attention be confined to matters to which regard is expressly required to be had, if there are other relevant matters properly able to be taken into account.

81 As part of the emphasis on evidence-based standards, s 10 also aims (among other things) at not putting unjustified restrictions on domestic and international commerce in food, as defined.

82 The importance of the process whereby FSANZ arrives at the recommendation it is required by s 18 to make to the Council, lies not only in the general requirement that any statutory body should proceed lawfully. The Council, comprised of ministers of state, may itself only validly and/or lawfully make decisions under s 20 on a validly and/or lawfully made recommendation by FSANZ. I use the clumsy expression "validly and/or lawfully made" to accommodate the prospect sanctioned in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 353 at 393 that, although an act done in breach of a statutory procedural requirement might not, after inquiry as to the statutory purpose, be held to be invalid, nevertheless its unlawfulness might ground declaratory or injunctive relief. On that basis, there would be no discretionary ground to withhold relief, if the applicants can otherwise show remediable breach of the relevant procedural law in relation to FSANZ's Final Recommendation Decision.

83 It is also trite that an administrative decision-maker's reasons are not to be read in a 'pernickety' fashion nor with an eye excessively "attuned to the discernment of error" but, in that sense, beneficially. Misconception of function? 84 It seems to me that FSANZ did not misconceive its function or ask itself any wrong question. 85 FSANZ was obliged to have as its uppermost objective the protection of public health and safety. Alcoholic drinks, including spirits, notoriously can prejudice public health and safety and there was some scientific opinion evidence before FSANZ to that effect. 86 FSANZ was entitled to give some evidentiary weight to the existing relevant food standard as a factor in the protection of public health and safety and/or permissibly perceive that the submissions on both sides and the argument were long on assertion and short on hard evidence. Short of such evidence, the weight FSANZ should give to the existing standard, bearing in mind FSANZ's proper, uppermost statutory objective was a matter for FSANZ. The materials pointed to in detail in the respondents' submissions bear out the proposition that the relevant objectives and/or considerations to FSANZ were not ignored. There were competing considerations put forward by way of assertions. The judgment that the primary objective, and the existing standard's probable contribution to it, were not outweighed by other relevant considerations betokens no misconception of FSANZ's, or the Council's, function. Nor does it indicate that either FSANZ or the Council asked itself any wrong question.

Wider significance of that conclusion 87 This conclusion really also disposes of much of the balance of the applicants' submissions. The applicants, through understandable caution, framed their legal criticisms of the decisions sought to be impugned in every reasonably possible way, having regard to s 5 of the AD(JR) Act, that they could be framed. Thus, on analysis, the supposed failures to observe procedures are, in substance, but another way of expressing conceptual criticisms of FSANZ's processes which, in my opinion, as I have just indicated, have no substance.

Error of law and "no evidence" 88 Section 5(1)(h) of the AD(JR) Act must be read subject to s 5(3). These provisions are in the following terms: 'The ground specified in paragraph (1)(h) shall not be taken to be made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.' 89 Section 5(3)(a) would appear to require more than the common law notion of making out a no-evidence argument, and, in any case, "severely limits" the operation of s 5(1)(h): Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 357 - 358 per Mason CJ. However the applicants rely on the ground in s 5(1)(f), "that the decision involved an error of law". It appears difficult to me, despite the seeming anomaly, in the light of the existence in s 5(1)(j) of the catch-all ground "that the decision was otherwise contrary to law", to deny that s 5(1)(f) might be wide enough to add the common law no-evidence ground of invalidity to those available. Each ground in a section such as s 5, in the field of administrative law should be given its full and independent weight: see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, 349 - 352. I assume therefore that the ground asserted, if made out, could be justiciable under the AJDR Act. In any case the Court's other sources of jurisdiction would appear ample for the task. 90 The difficulty is that the substance of the asserted ground is not shown to be an operative error. Let it be assumed that there was in law insufficient material to warrant the criticised findings about the local name and address labelling requirements. The alternative argument employed and adopted by FSANZ appears either irrefutable or well open to it. FSANZ said: '... even if the Authority was to accept the Applicant's argument on [the identification labelling] issue, because of the Authority's conclusions regarding standard drink labelling, the product would require "over-labelling" anyway. The Authority's conclusion about standard drink labelling thus renders negatory the Applicant's contentions about name and address requirements.' 91 Thus, the applicants must show that both of the two kinds of labelling requirements have unlawfully been perpetuated by the respondents. Thus the ground asserted would not, in the Court's discretion, warrant relief, assuming its validity.

Failure to take into account the considerations set out in s 10(2) 92 What I have said disposes of the argument based on s 10(2)(a) as to the need for standards based on scientific evidence-based risk analysis. The truth is that FSANZ placed a high emphasis on this consideration. In the circumstances, the considerations referred to in s 10 (2)(b), (c) and (d) all fell to be weighed in the light of the applicants' assertions about commercial difficulties, anomalies, costs and likely loss of and trade in Australian and New Zealand duty free shops. FSANZ had regard to these matters but those considerations simply did not prevail. The ground asserted is not made out.

"Wednesbury" unreasonableness 93 Three of the alleged instances of unreasonableness relate to FSANZ's failure itself to obtain, or foreclosing DIAGEO from providing, hard evidence which FSANZ asserted was lacking. 94 Decision-making, it has been observed, is a "real world" activity: Enichem ANIC v Anti-Dumping Authority (1992) 39 FCR 458, 469 The real world was such that DSICA was a manifestly experienced, well-advised industry body in the field of food regulation concerning distilled spirits. DIAGEO was a large, equally experienced and well-advised corporate player on the same field. DSICA's and DIAGEO's interests exactly coincided in this matter. DIAGEO had confidence in DSICA and every opportunity to influence its submissions. All this would have been well-known to FSANZ by its senior employees such as Mr Fladun. 95 DIAGEO and DSICA complain that the hard evidence concerned would be difficult to obtain or assemble. Knowledge of and access to it, however, either exclusively resided in them or were at least as easily available to them (because of the commonality of their position with that of the Australian and New Zealand duty free shops) as to FSANZ. DIAGEO and DSICA contented themselves with making assertions and asking for an indefinite adjournment of further proceedings on the application they had pursued, without any real explanation of why there were difficulties. 96 To suggest that, in not further requiring further evidence from either of the applicants or from anyone else, or in not acceding to DIAGEO's proposal to put the whole project "on hold", FSANZ behaved as no reasonable public authority could have, is an heroic submission, or would be if it had any substance at all. In my opinion, it does not. 97 The remaining suggestion of unjustified unequal treatment of vendors of spirits purchased and imported into Australia and New Zealand, depending on where they were purchased, simply begs the question: how should the competing considerations, of which that was one, be assessed? There was nothing unreasonable, to the high legal standard required in order to warrant judicial intervention, in taking the view that no compromise, even marginally in the matter of standard drinks labelling, to the extent that it could be policed by Australia and New Zealand authorities, was more important than such an anomaly.

Error of law as to onus of proof 98 By saying that, absent "convincing justification" for disturbing what they regarded as "the important public health initiative" of standard drink labelling, they would not do so, the respondents were imposing no onus of proof on the applicants. In using that language, FSANZ was describing an intellectual test that the language of the Act permitted. For FSANZ to find that such a test was not surmounted by the material to hand does not suggest that the respondents imposed any evidentiary burden on anyone.

Inflexible adherence to a policy 99 Reasons were given by FSANZ as to why even a marginal departure from standard drinks labelling was thought to be a retrograde step in the interests of public health and safety. Those reasons cannot be regarded as so far fetched as to amount to a sort of bias, namely refusing to look at the particular case at hand or at some new consideration. Moreover, as the respondents point out, for some little time the applicants' assertions were carrying the day. That FSANZ, having initially favoured the applicants submissions, reconsidered the matter in favour of preserving the existing regulatory standard is some evidence of a genuine willingness to think and to eschew unwonted rigidity.

Denial(s) of Procedural Fairness 100 You can lead a horse to water ... . 101 Both the applicants had months of opportunity to assemble and present the material which Mr Marr's affidavit shows could have been got together. If what the applicants were saying about commercial and organizational difficulties was correct, even more material could fairly obviously have been turned up - in the course of the hearing I made some particular suggestions, but any specialist legal practitioner or lobbyist with some experience (and the applicants had both readily available) would have been able to advise more and, it may well be, better practical lines of enquiry than those thus suggested. 102 Both applicants, as it were, boxed in the heavyweight division of advocacy, formal and informal, in relation to regulatory bodies and interests. They made choices as to what would suffice and be most effective as advocacy in relation to this matter. Their judgments for a time looked to be right. When FSANZ changed its preliminary view, it kept the applicants fully apprised of the new thinking and made them fully aware of the areas where their earlier submissions were thought to be lacking. FSANZ required that DIAGEO, the largest of the spirit importers represented by DSICA, should further respond, if it wished, through DSICA which, after all had made the application that FSANZ was considering. 103 It is true that detailed factual material would need to have come from Europe. However, the edifice of food and drink regulation in Europe is, notoriously, not renowned for "touching the ground lightly". If DIAGEO's Australian operation has representatives of the high calibre that I saw and heard in evidence, I doubt that its European parent is less well served. In many and varied cases, judges of this court are accustomed to seeing weighty and detailed evidence in recondite fields produced with great speed and efficiency, and persuasively presented. I see no reason why FSANZ, a trans-national regulator of such commercially and otherwise sensitive matters as food and drink standards, might not reasonably have had similar expectations of the achievable from DIAGEO and DSICA. Given the speed of electronic communication now available, there is nothing about the twenty-one day time limit which, on its face, appears unreasonable as a final opportunity for such parties who had already had more than ample opportunity, to add anything they wished. Nor has it been satisfactorily explained to me why, in the actual circumstances, twenty-one days were not enough. It is no fault of FSANZ's that the opportunity given to the applicants was not as forensically well-used as it might have been. 104 It was discourteous for FSANZ not to have replied to the DIAGEO letter of 13 March 2002. On the other hand, so far as I have been made aware, there was nothing to prevent DIAGEO from following the matter up much more urgently than it actually did - nine days later - if it really did want to put more material before FSANZ. As I have indicated, it is far from certain that DIAGEO actually did want to do that. Administrative law, to some extent, confines its help, in the case of those who can help themselves, to those of them that do so. 105 The test is whether, in all the circumstances, each applicant has had a fair opportunity to be heard. In my opinion, each has. 106 As to other particular ways in which a procedural fairness arguments were put: · Alleged departure from international agreements - no actual failure to accord a right to be heard has been shown. No emphasis was ever placed on these agreements by either applicant. No additional prejudice was pointed to. FSANZ gave the applicants (DIAGEO via DSICA, and reasonably so, I think) its complete draft re-think. There was no denial of a fair opportunity to be heard. · FSANZ "Guide" - FSANZ told the applicants (in the case of DIAGEO via DSICA) its current thinking. There was in the circumstances no lack of procedural fairness.

Conclusion 107 For these reasons, the application will be dismissed with costs. 108 As I foreshadowed during the hearing and despite my legal conclusions, I nevertheless feel some degree of unease for the interests of Australian and New Zealand duty free retailers and their employees, and of Australian and New Zealand workers "up stream" from them, that is to say, in an aspect of the Australian and New Zealand public interest. My concern is that, although it is the legal responsibility of the applicants alone, FSANZ may not have had before it either: · the hard evidence that the appellants say can be produced to indicate substantial commercial difficulties of compliance with standard drinks labelling, or: · rigorous scientific scrutiny of the actual value of such labelling, even as part of a "standard drinks information" scheme for the Australian and New Zealand public.

109 If any further application to like effect as the instant (failed) one should be made to FSANZ by either present applicant or by any other appropriately interested person or group, I note that, to say no more, s 13(2)(b) does not necessitate foreclosure of a reconsideration of the matter. I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate: Dated: 17 October 2003 Counsel for the Applicants: Professor M Allars

Counsel for the Respondents: Dr G Flick SC Mr T Thawley

Solicitor for the Respondents: Office of Legal Counsel of FSANZ

Date of Hearing: 5 - 6 December 2002