EMANUEL EXPORTS PTY LTD -v- DEPARTMENT OF PRIMARY INDUSTRIES AND REGIONAL DEVELOPMENT [2023] WASCA 36 (20 February 2023)

(a) reducing the number of sheep on the ship or the decks of the ship;
>
> (b) the ship sailing first to Al Shuwaikh Port and then to the Port of Jebel Ali before sailing to Hamad Port; and/or
>
> (c) transporting the sheep at a time other than during summer in the Northern Hemisphere.

Preliminary determination of Emanuel Exports' constitutional defence

1. Emanuel Exports contends that, to the extent that s 19 of the Animal Welfare Act supports the charges, it would alter, impair or detract from the operation of the Export Control (Animals) Order 2004 (Cth) (Animals Order), made under the Export Control Act 1982 (Cth).[3]
2. The following Commonwealth provisions, as they applied at the time of the alleged offending, may be noted.
3. Section 8(3)(a) of the Export Control Act provided that, where under the regulations the export of prescribed goods is prohibited unless specified conditions or restrictions are complied with, a person who exports the prescribed goods in contravention of the conditions or restrictions commits an offence. The reference to 'the regulations' included orders made under the Export Control Act.[4]
4. Live animals were prescribed goods under s 1.04(a) of the Animals Order. Section 1A.01(1) of the Animals Order relevantly prohibited the export of live-stock unless the conditions in s 1A.01(2) were satisfied. Those conditions included that the exporter has given the Secretary of the Department a notice of intention (NOI) for the export and that:

(i) an export permit for the export by the exporter is in force;
>
> (j) the live-stock are exported to the place, and by the means, specified in the export permit;

(l) the exporter complies with any condition of the export permit.

1. Section 1A.30(1) of the Animals Order empowered the Secretary to grant an export permit for live-stock which, among other things:[5]

(c) must state the number, kind and class of live-stock authorised to be exported; and
>
> (d) must specify the place to which the live-stock are authorised to be exported; and
>
> (e) must specify the name of the vessel, or the number of the flight, on which the live-stock are authorised to be exported[.]

2. Section 1A.30(6) provided that it was a condition of an export permit that the live-stock to which it applied leave Australia within 72 hours after it was granted, unless the Secretary approved otherwise.
3. Section 1A.24 ‑ s 1A.26 of the Animals Order required an NOI, which must set out matters including the route of the international voyage and the vessel to be used for the live-stock, to be given to the Secretary before the proposed export. The exporter was required to inform the Secretary, who could require a new or varied NOI, of any relevant change in any circumstance of an export. Failure to give an NOI was an offence against s 6(1) of the Export Control Act.
4. Emanuel Exports contends that provisions of Commonwealth laws, including those referred to above, authorised it to transport a particular number of sheep on a particular ship at a particular time via a particular route. The State Act penalising that conduct, which was authorised by Commonwealth law, is said to amount to a 'direct' inconsistency under s 109 of the Commonwealth Constitution.[6]
5. Before the trial of the charges began, Emanuel Exports applied for the Magistrates Court to determine the following question of law under s 64(1)(a) of the Criminal Procedure Act 2004 (WA):

Whether sections 19(1) and 19(3) of the [Animal Welfare Act], to the extent they purport to support the charges against [Emanuel Exports] pending in this Court, are inconsistent with a law of the Commonwealth and are thereby invalid by operation of section 109 of the Constitution.

1. On 21 June 2021, Magistrate Shackleton answered this question in the negative. In essence, his Honour held that:
   1. The Commonwealth laws did not create a right for an exporter to export, but rather prohibited a person from exporting live‑stock. That prohibition was relaxed when, among other things, an NOI had been given, an export permit had been granted and the person complied with the Animals Order. Therefore, the Commonwealth Acts did not permit something forbidden by State law or give a permission from which the State law alters, impairs or detracts.[7]
   2. In relation to the proposed route, the magistrate also noted that, while the Animals Order required an NOI to set out the route of the international voyage, nothing in the order required the Secretary to approve the route. On that basis, the State law could not be said to alter, impair or detract from the Commonwealth law in relation to the route.[8]
   3. Even if, contrary to the magistrate's view, the Commonwealth laws granted a right to export, any right is properly to be construed as being subject to the obligations imposed by the Animal Welfare Act to the extent it is possible to comply with the Commonwealth law without being cruel to an animal. An exporter could comply with both laws by exporting less sheep than permitted by the export permit and by informing the Secretary of any material change in the proposed route indicated in the NOI.[9]
   4. The Animal Welfare Act, which imposed obligations on the exporter rather than the Secretary, did not intrude on the Secretary's assessment of the various requirements under the Animals Order.[10]

1. The Criminal Appeals Act 2004 (WA) does not provide for any appeal from the magistrate's determination of the question of law under s 64(1)(a) of the Criminal Procedure Act. However, the proceedings on that determination are taken to be part of Emanuel Exports' trial.[11] If Emanuel Exports is convicted of any of the charged offences, it may appeal against the conviction(s) under s 7(1) of the Criminal Appeals Act on the ground that the Magistrates Court made an error of law in making the determination or there has been a miscarriage of justice.[12] However, at this stage of the proceedings in the Magistrates Court there is no right of appeal against the magistrate's determination of the question of law.
2. Emanuel Exports now seeks to engage the judicial review jurisdiction conferred on this court by s 36 of the Magistrates Court Act 2004 (WA). Section 35 of that Act provides that writs of mandamus, prohibition or certiorari may not be issued in respect of or directed to a court officer such as a magistrate. Section 36 replaces, and provides a statutory alternative to, this court's judicial review power in respect of the Magistrates Court.[13]
3. Section 36(1) of the Magistrates Court Act provides for a person aggrieved by certain matters specified in s 36(1)(a) ‑ s 36(1)(c) to apply to the Supreme Court for a review order. Section 36(1)(b) and s 36(1)(c) are of potential relevance in the present case, and allow a person aggrieved by the following matters to apply for a review order:

(b) an act, order or direction that a Court officer proposes to do or make - > > > (i) on the ground that it would be without jurisdiction or power or would be an abuse of process; or
> >
> > (ii) on any ground that might have justified an order of prohibition; > >
>
> (c) an act, order or direction done or made by a Court officer - > > > (i) on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
> >
> > (ii) on any ground that might have justified an order of certiorari[.]

4. Under s 36(1) of the Magistrates Court Act, a review order is an order:

that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.

1. Under s 36(4) of the Magistrates Court Act:

If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -

(a) order that the act, order or direction be or not be done or made or set aside, as the case requires;

(b) grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;

(c) make any necessary consequential orders.

1. The power in s 36(4) to grant relief is only enlivened if one or more of the grounds listed in s 36(1)(a), s 36(1)(b) or s 36(1)(c) has been established.[14]
2. Section 36(8) of the Magistrates Court Act requires that a court officer, on being served with an order under s 36(4), must obey the order.
3. By an amended application filed on 3 August 2021, Emanuel Exports sought a review order that the magistrate and the respondent satisfy the Supreme Court that the continued hearing and determination of the criminal prosecution against it should be done. The review order was sought under s 36(1)(b)(i) and s 36(1)(b)(ii) on the grounds that the continued hearing and determination of the criminal prosecution would be without jurisdiction or might have justified an order of prohibition. This was on the asserted basis that, in determining that s 19(1) and s 19(3) of the Animal Welfare Act were not invalid by operation of s 109 of the Constitution, the magistrate 'determined that the [Magistrates] Court has jurisdiction where none exists and has thereby made a jurisdictional error'. It was asserted that, as the charges against Emanuel Exports are based on provisions of a State law that are invalid by operation of s 109 of the Constitution, the Magistrates Court does not have jurisdiction to hear and determine those 'purported charges'.
4. On 17 August 2021, Allanson J made a review order by consent, requiring the magistrate and the respondent to satisfy the Supreme Court that the magistrate should continue to hear and determine the criminal prosecution of the charges. His Honour also made an order, under O 56A r 3(2)(b) of the Rules of the Supreme Court 1971 (WA), that the review order be heard by the Court of Appeal.

Whether grounds provide a basis for making an order under s 36(4)

1. The common position of the parties in written submissions was that, if the relevant provisions of State law were inconsistent with a law of the Commonwealth to the extent that they purport to support the charges against Emanuel Exports, it would follow that the magistrate lacks jurisdiction to hear the prosecution.[15] In oral submissions, counsel explained that the magistrate would lack jurisdiction if s 109 of the Constitution rendered s 19(1) and s 19(3) of the Animal Welfare Act inoperative in the present circumstances, as there would be no operative State law supporting the charges against Emanuel Exports.[16]
2. At the hearing of the review order, it was not clear to us that this common position of the parties was correct. On one view, the prosecution notice raises the justiciable controversy of whether the appellant has committed an offence against s 19(1) of the Animal Welfare Act. The constitutional defence raised means that this justiciable controversy is a matter arising under the Constitution or involving its interpretation. Federal jurisdiction, in the sense of authority to decide, whether the appellant has committed an offence against s 19(1) of the Animal Welfare Act is conferred on the Magistrates Court by s 39(2) of the Judiciary Act 1903 (Cth).
3. It was not clear to us that the Magistrates Court lacks jurisdiction to decide whether the charges have been proven (including whether s 19(1) is operative in the circumstances). This is particularly so where it is not suggested that the Western Australian Parliament lacked power to enact s 19(1) of the Animal Welfare Act or that s 19(1) is rendered wholly inoperative by s 109 of the Constitution. It may also be noted that the particularised measures referred to at [5](a) ‑ (c) above are expressed in inclusive rather than exhaustive terms.
4. However, it is not necessary for us to decide the question of jurisdiction or whether, as was principally contended by counsel in oral submissions, prohibition would lie where there was no valid State law to support the charges as laid.[17] Nor is it necessary to determine whether any difficulty could be cured by an amendment to add a ground under s 36(1)(c)(ii) of the Magistrates Court Act to the effect that the magistrate's determination of the preliminary question was infected by an error of law appearing on the face of the record. It is not necessary to decide these issues because the grant of relief under s 36(4) of the Magistrates Court Act is clearly discretionary and, on the assumption that the matters raised by Emanuel Exports fall within s 36(1) of that Act, we would exercise the discretion against granting relief for the reasons explained below.

Discretion to grant relief under s 36(4) of the Magistrates Court Act

1. There are four factors which combined to lead us to the view that the court should not exercise its discretion under s 36(4) of the Magistrates Court Act in this case. We so concluded assuming (without deciding) that the alleged partial invalidity of s 19(1) of the Animal Welfare Act under s 109 of the Constitution could establish one or more grounds for seeking judicial review under s 36 of the Magistrates Court Act.
2. First, the preliminary question determined by the magistrate was whether s 19(1) and s 19(3) of the Animal Welfare Act are inconsistent with a law of the Commonwealth 'to the extent they purport to support the charges against' Emanuel Exports. That formulation of the question disguises the extent of the inconsistency asserted by the appellant. Answering the posed question would not necessarily define the circumstances in which, and the extent to which, s 109 of the Constitution renders s 19(1) and s 19(3) of the Animal Welfare Act inoperative.[18]
3. In oral submissions, Senior Counsel for the appellant disclaimed an argument that s 19 of the Animal Welfare Act is inoperative to the extent that it purports to apply to animals that are live-stock being exported from Australia under an export permit.[19] Counsel also disclaimed an argument that s 19(1) of the Animal Welfare Act is inoperative in circumstances where compliance with the conditions of an export permit required the exporter to be cruel to an animal within the meaning of s 19 of the Animal Welfare Act.[20]
4. Rather, counsel in effect appeared to contend that s 19 of the Animal Welfare Act would not operate to prohibit Emanuel Exports from transporting the number of sheep specified in its export permit to the location specified in the export permit via the route specified in an NOI at the time required by the conditions of the export permit.[21] However, that is not the terms in which the question of law left for the determination of the magistrate was posed. Further, while framing the question in the alternative terms just noted may address the first issue of concern, it highlights the second issue of concern to which we now turn.
5. Secondly, the argument put forward by the parties assumes that s 19 of the Animal Welfare Act has a legal operation in circumstances where whether it has that operation and, if so, the constitutional validity of that operation are to be contested at trial. The argument assumes that, apart from s 109 of the Constitution, s 19(1) and s 19(3) would, on their proper construction, validly prohibit Emanuel Exports from exporting the number of sheep at the time and via the route which it did. At the hearing of the review order, Senior Counsel for both parties confirmed that whether s 19 did in fact prohibit that conduct in the circumstances of this case will be a matter in dispute at trial.[22] Further, the argument assumes that s 19 has at least some valid extraterritorial operation so as to create an offence where harm is suffered, or likely to be suffered, by animals in a location outside Western Australia. Again, this aspect of the operation of s 19 of the Animal Welfare Act is in dispute.[23]
6. The analysis on which the parties invite this court to embark has a significant hypothetical element to it. The court is not asked to construe the State law to determine whether, on its proper construction, the law is inconsistent with a Commonwealth law properly construed. Rather the court is asked to assume that the State law validly has a certain operation (which operation will be in dispute at trial) and to find that, if it did have that operation, then the State law would be inconsistent with a Commonwealth law. Based on that conclusion, Emanuel Exports asks the court to declare that the charges are based on provisions of a State law which are invalid by operation of s 109 of the Constitution and order the magistrate not to hear and determine the criminal prosecution.[24] That declaration and order would be in error if, on its proper construction, the State law did not prohibit the charged conduct in the relevant location on its own terms so that s 109 of the Constitution was never engaged.
7. Thirdly, the parties invite the court to proceed without any clear statement of the factual basis for the determination which the court is asked to make. The only evidence before the Magistrates Court was an 'agreed documents bundle', which was signed by the solicitors for the appellant and respondent. However, the status of the documents, what is agreed about them and the facts that they prove is not stated in the signed document bundle or elsewhere in the material before the court. Senior Counsel for Emanuel Exports was unable to identify a statement of all of the facts on which the parties invited the court to base its determination.[25]
8. Further, it appears that the parties are in dispute about at least one fact on which Emanuel Exports places significant reliance, namely whether the Secretary considered and approved the NOI submitted by Emanuel Exports when granting the export permit. The significance of this fact concerns the particular as to the route followed on transporting the sheep, which was only said to be specified in the NOI. Emanuel Exports invites this court to draw an inference from the agreed documents that the Secretary did consider and approve the NOI.[26] The respondent disputes that this inference can be drawn.[27] The fact is one which is capable of being proven by direct evidence of the Secretary or a delegate or from departmental records.
9. As the High Court emphasised in Bass v Permanent Trustee Co Ltd,[28] it is important that any determination by this court be based on facts which are at least clearly identified and, in many cases, agreed or proved. A factor counting against the exercise of this court's discretion to grant relief by way of judicial review is that there is no clear statement of the facts which the parties have agreed or assumed and some significant facts are in dispute.
10. Fourthly, and most significantly, the manner in which, in the circumstances of this case, the exercise of judicial review jurisdiction would involve the fragmentation of pending criminal proceedings counts strongly against the exercise of discretion to grant relief.
11. As the High Court recognised in Gedeon v Commissioner of the New South Wales Crime Commission,[29] in relation to the grant of declaratory relief in judicial review proceedings:

[P]ower to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings. The fragmentation of the criminal process is to be actively discouraged. In any event, a declaration may be of limited utility where founded, as would be the case here, on facts admitted only for the purposes of the satellite litigation.

In Sankey v Whitlam [(1978) [1978] HCA 43; 142 CLR 1 at 26] Gibbs A-CJ remarked:

'I would respectfully endorse the observations ... that a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.'

Similar observations as to the need to exercise the discretion to grant declaratory relief sparingly in relation to criminal proceedings were made by Ipp J (Malcolm CJ and Owen J agreeing) in Connell v Reynolds.[30] In our view, the same considerations apply to the exercise of the court's discretion to grant relief under s 36(4) of the Magistrates Court Act in relation to pending criminal proceedings. It has been so held in many cases in the General Division of this court.[31]

1. In the present case, the alleged offences occurred between 30 July 2017 and dates in August 2017 (about 5.5 years ago). The prosecution notice was signed on 30 July 2019.[32] Almost two years later, on 21 June 2021, the magistrate determined the s 109 issue as a preliminary question. The process adopted by the parties has already caused considerable delay in bringing the charges to trial.
2. A determination of the constitutional question by this court is likely to create further delay in the trial of the charges. We were informed that the trial of the charges against Emanuel Exports is currently listed in the Magistrates Court for four weeks in November and December 2023.[33] If we proceeded to determine the constitutional issue, then it would have been necessary for the court to reserve its decision. It appeared to us that, however this court determined the contestable question of the interaction of State and Commonwealth law, there would be a real prospect that the dissatisfied party would seek special leave to appeal against that determination to the High Court. If that occurred, it seemed unlikely that the special leave application, and certainly any appeal to the High Court if special leave were granted, would be resolved before the end of the year. A final determination of the constitutional issue by this court would therefore imperil the trial dates listed for the end of the year. Given the heavy demands imposed on the Magistrates Court, there would likely be a significant further delay in obtaining new trial dates over a four‑week period.
3. It seemed to us that the interests of justice distinctly favoured allowing the trial to proceed on its ordinary course and leaving the constitutional question to be resolved on any appeal against a decision to convict or acquit Emanuel Exports to the extent necessary to determine that appeal. In an appeal against conviction or acquittal, the constitutional issue can proceed based on the actual (as opposed to assumed) construction and operation of s 19 of the Animal Welfare Act in the circumstances of this case as established by the evidence led at trial.
4. After the above issues of concern to the court were raised with the parties, the court adjourned to enable the parties to consider their position. The respondent then sought an order that the review order be discharged without this court determining the substantive issues raised by the applicant for the review order. Senior Counsel for Emanuel Exports, who had previously acknowledged that there was a 'major difficulty with fragmentation',[34] said that he did not wish to be heard in opposition to an order in those terms.[35] In all the circumstances, it appeared to us to be appropriate to make that order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] See s 19(1) of the Animal Welfare Act read with s 72 of the Interpretation Act 1984 (WA).

[2] Under par (c) of the definition of 'person in charge' in s 5(1) of the Animal Welfare Act.

[4] See the definition of 'regulations' in s 3 of the Export Control Act. The power to make orders in relation to matters that may be the subject of regulations under the Export Control Act was conferred by reg 3 of the Export Control (Orders) Regulations 1982 (Cth).

[6] Appellant's submissions, pars 29, 45.

[7] Magistrate's reasons for decision, pars 30 - 31.

[8] Magistrate's reasons for decision, par 32.

[9] Magistrate's reasons for decision, pars 36 - 39.

[10] Magistrate's reasons for decision, par 40.

[11] Section 64(3) of the Criminal Procedure Act.

[12] See par (c) of the definition of 'decision' in s 6 of the Criminal Appeals Act and s 7(1), s 8(1)(a)(i) and s 8(1)(b) of that Act.

[13] Rayney v AW [2009] WASCA 203 [27].

[15] Appellant's submissions, par 5; respondent's submissions, par 6.

[18] It is settled that s 109 of the Constitution renders an inconsistent State law inoperative to the extent of the inconsistency rather than beyond the power of the State Parliament to enact: Carter v Egg and Egg Pulp Marketing Board (Vic) [1942] HCA 30; (1942) 66 CLR 557, 573, 582, 599.

[23] Footnote 91 of the appellant's submissions; review order ts 37.

[24] Par (c) of 'orders sought' in the review order application (White AB 2).

[28] Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 [45] - [56].

[29] Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 [23] ‑ [24].

[30] Connell v Reynolds (1993) 9 WAR 27, 35 (Malcolm CJ), 53 - 54 (Ipp J), 54 (Owen J).

[31] See for example Director of Public Prosecutions (WA) v Peters [2010] WASC 139; (2010) 55 MVR 443 [10]; Re Magistrates Court of Western Australia; Ex parte Mansell [2013] WASC 120 [12]; Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357 [58].

[32] The day before the expiry of the two-year limitation period provided for in s 82(2) of the Animal Welfare Act.