SONG v. CODDINGTON [2003] NSWSC 1196

Supreme Court of NSW|2003-09-24|Before: Greg James J

The application of Commonwealth law 4 Since the offences were said to have occurred at the Sydney International Airport, a Commonwealth place, the Act and the Regulation were applicable, if at all, by reason of s.4(1)) of the Commonwealth Places (Application of Laws) Act 1970 to the extent that they were valid or consistent with other Commonwealth law (see s.52 of the Constitution) (See Regina v. Porter (2001) 53 NSWLR 354). If the Act and the Regulation would have been, had this case been concerned with a State lace, inconsistent and invalid under s.109 of the Constitution or if they would not otherwise be applicable by reason of some such doctrine as that referred to below as involves an immunity from State law of a Commonwealth instrumentality, they would not be construed to apply to that place and those circumstances under which it is said the offence was committed. 5 It will be convenient hereafter, however, to refer to the asserted inconsistency between Commonwealth and State law in the way in which it was referred to in argument as attracting the operation of s.109 and the asserted immunity as arising by reason of the Constitution, rather than by way of construction of different bodies of Commonwealth law. Similarly, although the offences alleged are strictly to be considered as offences against Commonwealth law, in that sense they will simply be referred to by reference to the State provisions as will the procedural provisions of State law picked up and applied by the Judiciary Act 1903 (Cth).

The appeal 7 These are proceedings brought pursuant to s.104 of the Justices Act 1902 asserting that the magistrate erred in law in a number of respects. Section 104 provides:- "(1) Appeals by defendants A person against whom any conviction or order was made, or sentence was imposed, by a Magistrate in summary proceedings may appeal under this Division to the Supreme Court on any of the following grounds:- (a) a ground that involves a question of law alone, (b) a ground that involves a question of mixed law and fact, but only with the leave of the Supreme Court, (c) the ground that the conviction, order or sentence cannot be supported having regard to the evidence."

Grounds of appeal 8 Annexed to the summons is a statement of the grounds upon which this court's intervention is sought. The first of those grounds asserts that the Local Court magistrate erred in holding the plaintiff was "a person in charge of a large stock animal" for the purposes of the Regulation. The second, that he erred in holding the plaintiff " did authorise the carriage or conveyance" of the animals for the purposes of the Regulation. It is asserted "further or in the alternative" that the magistrate erred in holding that the Regulation was not inconsistent with the Export Control Act 1982 (Cth), the Export Control (Orders) Regulations 1982 (Cth) and the Export Control (Animals) Orders 1987 (Cth) within the meaning of s.109 of the Constitution and/or failing to hold that the Regulation was beyond the legislative power of the State of New South Wales as purporting to bind an officer of the Commonwealth as to the performance of his official duties. 9 As to those "further or alternative" grounds, I note that notices under s.78B of the Judiciary Act had been given and consequently, the Attorneys-General of the Commonwealth of Australia and of New South Wales have intervened. 10 As to those grounds which assert that the magistrate erred as to whether the plaintiff was a "person in charge" or "did authorise the carriage or conveyance of the animals, questions of the proper construction of the Act and Regulation arise.

Statutory context 11 Regulation 5 of the Prevention of Cruelty to Animals (General) Regulation 1996 provides as follows:- "1. A person must not:- … (b) being a person in charge of a large stock animal, authorise the carriage or conveyance of the animal in a cage or vehicle, unless the cage or vehicle is of a height that allows the animal to stand unless upright without any part of the animal coming into contact with the roof, ceiling or cover of the cage or vehicle. Maximum penalty: 10 penalty units. 2. In this clause, a reference to a large stock animal is a reference to an animal that belongs to the class of animals comprising cattle, horses, sheep, goats, swine and deer." 12 Section 3 of the Prevention of Cruelty to Animals Act 1979 provides as follows:- "3. The objects of this Act are:- (a) to prevent cruelty to animals, and (b) to promote the welfare of animals by requiring a person in charge of an animal:- (i) to provide care for the animal, and (ii) to treat the animal in a humane manner, and (iii) to ensure the welfare of the animal." 13 Section 4 provides "authorise" includes "direct" and "permit". It further provides that "person in charge" in relation to an animal relevantly includes:- "(a) the owner of the animal; (b) a person who has the animal in the person's possession or custody, or under the person's care, control or supervision; (c) where a person referred to in paragraph (b) is bound to comply with the directions, in respect of the animal, of any servant or agent of the owner of the animal, that servant or agent, as the case may be, and (d) where the animal, being a stock animal, is confined in a sale-yard:- (i) the owner of the sale-yard, or (ii) where the sale-yard is the subject of a lease, the lessee of the sale-yard." 14 Section 7 of the Act provides:- "(1) A person shall not:- (a) carry or convey an animal, or (b) where the person is a person in charge of an animal - authorise the carriage or conveyance of the animal, in a manner which unreasonably, unnecessarily or unjustifiably inflicts pain upon the animal. Maximum penalty: 250 penalty units in the case of a corporation and 50 penalty units or imprisonment for six months, or both, in the case of an individual."

15 The offence created by this section appears to be alternative to that arising under the Regulation.

Appearances 16 Mr. S. Gageler, SC., with Mr. J. Kirk, appeared for the plaintiff, Mr. R. Sutherland, SC., with Mr. P. O'Donnell, appeared for the defendant, Inspector Coddington, an officer of the Royal Society for the Prevention of Cruelty to Animals (hereinafter RSPCA); Mr. H. Burmester, QC. with Ms. H. Chisholm, appeared for the Attorney General for the Commonwealth of Australia and Mr. N. Perram appeared for the New South Wales Attorney General. The Attorneys General are intervening particularly because of the possible constitutional implications of the case.

Agreed facts 17 I have been provided with a short outline of submissions filed on behalf of all parties setting out the factual background. That material was provided for the purpose of ensuring the matter would be heard by a judge of the court rather than be referred to a master. It is agreed that I might conveniently refer to the background as there set out. 18 I take the following from that document as what appears there succinctly stated, are the matters which were in evidence before the magistrate and which are relevant to the legal issues propounded before me. "3. On 25 April 2001, a consignment of 1137 live goats was due to depart Sydney International Airport on a cargo flight bound for the Middle East. 4. The goats were contained within eight wooden pallets, each of which contained three tiers. 5. An examination of the goats within each of the wooden pallets revealed that the horns and/or backs of a number of the goats were touching (or able to touch) the 'ceiling' of the tier in which they were respectively located. 6. Various persons associated with the proposed export were prosecuted for breaches of the Prevention of Cruelty to Animals (General) Regulation 1996 which had been made pursuant to the Prevention of Cruelty to Animals Act 1979 (NSW). 7. The prosecutions of the exporter and the consignor company are not relevant to the present proceedings. 8. A Commonwealth legislative and regulatory framework prohibited the export of prescribed goods from Australia, subject to permission being granted in particular circumstances. A relevant export permit could be granted by 'an authorised officer'. 9. The plaintiff, Dr. Song, was such an 'authorised officer', he being a veterinary officer employed by the Australian Quarantine Inspection Service (AQIS) and employed pursuant to the Public Service Act 1999 (Cth). 10. In prosecutions relating to goats in each of the eight pallets, the plaintiff was alleged to have contravened Clause 5(1)(b) of the Prevention of Cruelty to Animals (General) Regulation 1996. 11. The relevant facts giving rise to the prosecution were either agreed or tendered in short form during a summary hearing at Sutherland Local Court on 14 October 2002. 12. On 15 November 2002, the plaintiff was convicted in respect of each Information. 19 The agreed facts which were before the magistrate were:- "1. In about April 2001, a Victorian company, All Australia Exports & Marketing Services Pty. Limited, entered into an arrangement for the export of live goats to Abu Dhabi in the United Arab Emirates. The goats were procured by, and were to be consigned by Crispin Bennett International Horse Transport Pty. Limited ('Crispin Bennett'). 2. Prior to 25 April 2001, some 1200 goats were placed on a property at Kemps Creek outside Sydney by Crispin Bennett. 3. On about Monday 23 April 2001, the defendant attended Kemps Creek, and inspected the goats which were to be exported. 4. On 25 April 2001, 1137 of the goats were transported to Sydney International Airport where they were loaded by Crispin Bennett into eight, three-tiered wooded crates for transport by aircraft to the United Arab Emirates. 5. Prior to the crates being loaded onto Martinair aircraft, the defendant inspected the goats within the crates. 6. The defendant was an authorised officer under s.20 of the Export Control Act 198 (Cth) and he issued an Export Permit: No. NSW 08752 in respect of the consignment of live goats. He also signed a Certificate of Health to accompany the animals. The defendant was an officer of the Commonwealth employed under the Public Service Act 1999 (Cth). He was a veterinary officer within AQIS. 7. Following the issue of the Export Permit the goats were then loaded onto the aircraft which was pushed back from its docking position. 8. Officers of the RSPCA attended upon the aircraft before its departure and examined the goats within the eight crates. 9. In each of the crates, numbers of goats were observed as being unable to stand upright without either the horn or in some cases the body of the goat coming into contact with the ceiling of the relevant tier in the crate. 10. In two of the crates some 25 goats were observed actually coming into contact with the ceiling, whilst in the remaining six crates there were 23 goats in each that were coming into contact with the ceiling."

Additional materials 20 As the short outline and the agreed facts make clear, it was common ground at the hearing of the informations that Dr. Song is and was on 25 April 2001 an officer of the Commonwealth of Australia employed under the Public Service Act 1999 (Cth); a veterinary officer within Australian Quarantine Inspection Service; and an authorised officer under s.20 of the Export Control Act 1982 (Cth) for the exercise of powers under the Export Control (Animals) Orders 1987 (Cth) made under the Export Control (Orders) Regulations 1982 (Cth) which were themselves made under the Commonwealth Act. 21 By consent, the plaintiffs have provided me with an agreed bundle of documents including the information and summons at the Local Court, the agreed facts, the statement of the informant and others, photographs and a video showing the goats and the crates, a copy of the export certificate, a copy of the judgment of the magistrate, extracts from the Export Control Act, Export Control (Orders) Regulations, Export Control (Animals) Orders, as amended by amendment No. 2 of 1990 and No. 13 of 1988, a copy of the Export Control (Animals) Orders 1987 (Cth), a copy of the relevant provisions of the Prevention of Cruelty to Animals Act 1979, and the Prevention of Cruelty to Animals General Regulation 1996, together with a copy of the Act's Interpretation Act, ss.13, 15AB and 46, the model Code of Practice for the Welfare of Animals - (5) Air Transport of Livestock, the International Air Transport Association, Live Animal Regulations (27 edition) extract. 22 In addition to the agreed facts before the magistrate and provided to me were the two statements of the defendant and Chief Inspector Coleman. A video tape recording, photographs of the goats within the crates, a permit to export animals signed by the defendant dated 25 April 2001, and a certificate of health to accompany animals to be exported dated 25 April 2001. 23 The permit to export animals refers to an Australian exporter and a consignee in Abu Dhabi It refers to a health certificate No. NSW08752. The permit itself is numbered permit No. NSW08752. It is headed, "Department of Agriculture, Fisheries and Forestry Export Control Act 1982" and bears the official crest of Australia. It refers to the country of destination as being The United Arab Emirates and the country of origin as being Australia. It refers to a date of departure, 25 April 2001, there is reference made to aircraft, the port of loading as being Mascot, the port of discharge been Abu Dhabi and the final destination as being The United Arab Emirates. It refers to some 1137 live male boer cross and feral goats, it refers to a documentary credit number, it bears an official stamp numbered Q527 of the Department of Agriculture, Fisheries and Forestry and the signature of an authorised officer shown as FY Hee Song BVSc dated 25.04.2001 issued at 2 Hayes Road, Rosebery, New South Wales. The signature appears underneath the following words:- "In pursuance of the Export Control Act 1982, I the undersigned authorised officer, grant this permit in respect of the prescribed goods described above that have been inspected and passed for export. The goods have complied with the requirements included in the attached certificate of health." 24 There is attached a two page certificate with the number to which I have referred, a similar crest and heading. It is headed "Certificate of Health to accompany animals Exported from Australia". It refers to the goats. The description of the goats bears the same quarantine authority departmental stamp to which I have referred. It contains a declaration on behalf of the exporter referring to the details of the exporter and the consignee, the country of final destination, the embarkation details and means of transport. The declaration concludes "Declaration":- "The animals are healthy and have not been in contact with any diseased animals for the previous six months. The animals have been in Australia since birth." 25 The form provides for the giving of the declaration by three categories of persons - the owner, the owner's agent or the person in charge of the animals described above and requires that that person declare that the details to which I have referred are true and correct to the best of that person's knowledge. In this case, the box referring to the owner's agent only is ticked. The declaration is accompanied by a veterinary certificate signed by the authorised officer, again FY Hee Song, BVSc, accompanied by the official stamp, certifying:- "I have no reason to doubt the correctness of the declaration and hereby certify that the animal(s) referred to in the declaration have undergone a veterinary inspection and I am satisfied that the animal(s) do not show evidence of infectious of contagious diseases." 26 In bold print the certification continues:- "See p.2 of this certificate for details." 27 Page 2 is headed "Certificate of Health to accompany slaughter goats exported from Australia to the United Arab Emirates". The certificate number corresponds with that of the permit and the first page of the certificate of health. It refers to the goats as being free from various goat diseases, coming from a property of origin which has been free from anthrax for the past 12 months. It is also signed by Dr. Song and again bears the same official stamp.

The magistrate's decision 28 The magistrate made certain findings which appear at pp.25 - 26 in the agreed bundle of documents behind tag 16 and which it is convenient to record here. There was no dispute about those findings. They were as follows:- "Further to the agreed facts, the documentary evidence tendered allowed me to find that Inspector Coddington was a prescribed authority under the Prevention of Cruelty to Animals Act 1979 and was employed by the RSPCA as an inspector in the investigations department (she is also a special constable). I find that on 25 April 2001, she received a telephone call from Inspector Hanson and as a result met with him and travelled to Sydney Kingsford Smith Airport, Mascot. I find that at the airport, security officers escorted her and Officers Hanson and Donnelly to a Martinair Holland NV 474 aircraft 'Prins Van Oranje' where they boarded the aircraft. After inspecting the goats in the eight crates and after speaking to the cargo manager, she saw an air weighbill indicating the aircraft flight number MP9471 and goats were destined for Abu Dhabi, United Arab Emirates, via Hong Kong. (The goats were to be slaughtered for a wedding feast.) I find that at the airport, she spoke with the defendant who said he had 'examined the goats' and that the 'goats were loaded to IATA standards' and that the 'goats on each tier were allowed a fifth of floor space to allow them to lie down'. I find that later, the goats and crates were taken off the aircraft and at 4.30 pm that day transported to a property Mt. Vernon. I find that photographs were taken of the goats while in the crates and that Officer Donnelly took video recording of the incident. I find that Officer Coddington found many goats coughing and many goats crowding over and standing over other goats sitting down." 29 The magistrate further held that there was evidence that the crates in which the animals were to be carried or conveyed were "not of a height that allowed the animals to stand upright without any part of the animals coming into contact with the roof, ceiling or cover of the cages". 30 The magistrate apparently without demurrer, treated the word "crate" as appearing in the agreed facts and in Inspector Coddington's statement as a variant of the word "cage" and applied the provisions of s.65 of the Justices Act. Cage, he noted, was defined by an inclusive definition under s.4 of the State Act in a way which would make that term applicable to crates. Nothing turns on the variance of moment for this appeal. 31 The magistrate also held there was evidence (and in due course held sufficient evidence for him to be satisfied of the defendant's guilt) that the certificates and permits granted by the defendant and the performance by him of his functions in granting them, were such that he authorised the carriage of the goats and acted as a person in charge of them. It is with those two matters that this appeal is concerned. 32 At the close of the evidence in the prosecution case, a "no case" submission by the plaintiff was made. In support of that submission, it was argued that the agreed conduct of the plaintiff, on a proper construction of the New South Wales Act and Regulation, could not have been, in law, such as to fall within the legal parameters of the conduct proscribed by those provisions so as to constitute the offences charged. Those arguments were rejected by the magistrate in a detailed written judgment handed down on 15 November 2002. The plaintiff called no evidence and was thereafter convicted on all eight charges. In each case, he was fined $400 and ordered to pay $56 court costs. He was further ordered to pay legal costs of $25,000 together with a further sum of $2,775 for transportation and related costs incurred by the RSPCA in relation to the goats. 33 In his judgment, in construing the Act and Regulation, the learned magistrate had regard "to the language, the apparent policy and purpose of the Commonwealth and State legislation". In his view, the apparent policy and purpose looked to "apart from the control of animals in relation to quarantine requirements, the welfare of animals and the State legislation". 34 For that reason, the magistrate considered a wide construction of the provisions of the Act and the Regulations was necessary to reflect the purposes he detected. He found support for that construction in the wide powers provided to quarantine officers to ensure the welfare of animals and the avoidance of contamination or disease. In particular, he found that the defendant's authority was not confined only to the issue of permits under the Export Act but that Orders 8(d) and (e) mandatorily required the defendant as being a veterinarian employed by the Commonwealth Public Service, to issue a permit (subject to the powers of the Secretary under order 10) provided, he was satisfied that "each animal is sufficiently fit to undertake the proposed export journey and without any significant impairment of health" and "the preparation of the animal or consignment for shipment overseas and travel arrangements of the animal or consignment is adequate for the health and welfare of the animal or consignment". The magistrate concluded that the power to grant included a power to refuse, particularly where he found there was also a power to grant, subject to conditions. By granting the certificate and relevant permits, he held the defendant did more than merely exercise a duty or function to simply issue the permit, but acted as "a person in charge". Further, by granting the permit, he acted so as to enable the export of the animals in the conditions which he described and thereby permitted the export and authorised it. The magistrate referred to the definition in the Act of the word "authorise" as including "direct" or "permit" and the definition of "person in charge" which includes, "a person who has the animal in a person's possession or custody or under the person's care, control or supervision". 35 He noted that both definitions were inclusive definitions and construing those words in the context of the objectives and policy of the Act and regulations as he saw them, concluded that because without the permit the goats could not be exported and because the plaintiff physically inspected the goats as a veterinarian, the defendant had the goats under his supervision and was therefore a person in charge of them. He concluded that there was no s.109 inconsistency between the State and Commonwealth legislation so as to limit the ambit of the State legislation or to protect the defendant from the effect of it since, in his view, had the plaintiff exercised his functions under the Commonwealth law in accordance with that law, he would have complied with the requirements of the State legislation. He held that the offences were made out for those reasons.

Submissions 36 All parties have filed detailed written submissions before me. It was submitted on behalf of the plaintiff that the definition of "person in charge of a large stock animal" on a proper construction of the Act and Regulation did not extend so far as to be capable in law of referring to the circumstances of the plaintiff. It was additionally submitted that neither could, on an appropriate construction the words "authorise the carriage or conveyance of the animals" extend in law to the actions of the plaintiff, as a matter of statutory construction. 37 On the s.109 aspect and the suggested constitutional point, I drew counsels' attention to the presumption that statutes, including State statutes, will be properly construed so as not to produce a s.109 inconsistency or a constitutional difficulty unless the language. The only submission I received on that question was that of counsel for the Attorney-General for New South Wales who, in his written submissions, contended that even if the State Act and Regulations might otherwise apply, they should be read down to avoid any inconsistency with the Commonwealth legislation. My attention was drawn, as to the effect of s.109 on interpretation, to the Acts Interpretation Act and the New South Wales Interpretation Act. Alternatively, it was submitted that, so far as there was an inconsistency, the State legislation and Regulation would be invalid by reason of s.109 of the Constitution, meaning thereby, I take it, that the State law would be to the extent of any inconsistency or unconstitutionality inapplicable in the circumstances of this case. 38 It was additionally initially indicated that there was a submission that, so far as an inconsistency with other Commonwealth legislation did not operate, nonetheless the State legislation and regulatory framework would not apply to the extent that they purported to bind an officer of the Commonwealth in the performance of his statutory duties, that is, it was argued that, the provisions would be interpreted so as to render Dr. Song acting as a Commonwealth instrumentality immune from the criminal and regulatory legislation of the State. However, it was conceded by counsel for the Attorney General for the Commonwealth of Australia and the Attorney General for New South Wales that if either of the plaintiff's statutory construction points were to succeed, no question would still remain to be decided as to any inconsistency or as to the suggested immunity. 39 Indeed it was conceded and in my view rightly by counsel for the Attorneys General that the question of the immunity only arose if the statute said to be inconsistent with the State statues conferred no more than a bare power and that was not this case. 40 I was also informed by Mr. Burmester, QC. for the Attorney-General for the Commonwealth that as it was common ground that Dr. Song was carrying out his statutory function whether for good or ill in what he was doing that "if s.109 does not get one there it is difficult to see that immunity fills the gap". 41 Mr. Perram, for the Attorney General of New South Wales agreed it was not necessary to consider the immunity doctrine. 42 For the defendant, it was submitted that the Commonwealth and State statutory regimes were consistent and complementary so that, if Dr. Song were held to be "a person in charge" who had "authorised the carriage or conveyance" in cages or crates which did not comply with the State requirements, he had not properly complied with the Commonwealth statutory and regulatory regime, so that no inconsistency to s.109 question or immunity arose. 43 It was contended on behalf of the defendant that no inconsistency could arise; that if the plaintiff was performing his duties properly as a Commonwealth officer, and not negligently, if he did what he was supposed to do under the Commonwealth Acts and orders, there would be no conflict between the Commonwealth and State legislation. 44 It was contended that by giving the certificate of health and the export permit, the quarantine officer and veterinarian here acted within the meaning of the terms as used in the New South Wales Act and Regulation as a person in charge of the goats, who authorised their carriage or conveyance in the prohibited circumstance as the cages or crates did not comply with either State or Commonwealth standards.

Whether a question of construction is a question of law 45 The first question then squarely raised is whether his doing what he did was such that Dr. Song, on a proper construction of the Act and Regulation might in law be held to be in charge of and authorise(ing) the carriage of the goats. 46 Although it was contended by the defendant that whether the defendant was "a person in charge" or did "authorise the carriage" was always a question of fact, in my view, the finding of those matters necessarily raised a question of law. 47 Although at the outset, senior counsel for the defendant contended that the two matters raised concerning the construction of the Regulation and the application of the Regulation to the facts found by the learned magistrate, involved only questions of fact, it was conceded in oral argument that if the Regulation on its proper construction could not apply to the facts found, this involved a true error of law. 48 The question of law may be stated this way. If, on the facts as agreed or found, the magistrate could not have found the plaintiff's conduct to have fallen within the proper construction of the offence as expressed in the Regulation, then the magistrate, by finding that the Regulation did apply, will have erred in law. This is a question of law (Australian Gas Light Co. v. Valuer General (1940) 40 SR(NSW) 126; Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321) to which s.104(1)(a) and (c) of the Justices Act 1902 applies. 49 Unless I am of the view that it was open in law for the magistrate to construe the Act and Regulation so widely as to apply to the conduct of Dr. Song the terms in which the offence was created it will not be necessary to consider the further questions as to the asserted inconsistency of the New South Wales Act and Commonwealth law. Nor will it be necessary to consider the ambit of the phrase "did authorise the carriage or conveyance" unless it could be properly found that the plaintiff was a "person in charge" of the goats. This is because the Regulation requires of a person who might be liable for the offence that they be both a person in charge and a person who authorised the carriage.

The ambit of "person in charge" 50 Much of the submissions made to me both in writing and orally treated the concepts of "in charge" and "authorise the carriage or conveyance" as though the finding of one might overlap with or supply the full content of the other. The Regulation is not, in my view, to be so construed. If that were the position it would make liable any person who authorised the carriage or conveyance of the goats in such a way, and there would be no need to refer to "person in charge". Even having regard to what the magistrate referred to as the purpose of the legislation, it is apparent to me that the legislature restricted the ambit of the Regulation to those persons to whom the concept of person in charge was applicable, having regard, in particular, to the definition being an inclusive definition which specifically amplified the ordinary meaning of the term "person in charge" by including within that concept "(b) a person who has the animal in the person's possession or custody, or under the person's care, control or supervision;". The magistrate rightly, in my view, concluded that both elements needed to be satisfied and therefore turned to consider what functions Dr. Song had performed in order to see whether the statutory definition applied to him.

The function of the Commonwealth officer 51 It was argued on behalf of the defendant that the nature of the grant of an export certificate and of the duties and role required of an officer in the circumstances of Dr. Song, including the making of inspections necessarily amounted to his being in charge of and authorising the carriage of the goats and that the magistrate had not erred in so concluding. 52 On behalf of the plaintiff and the Attorneys General it was argued that the grant of the certificate permitted the carriage of the goats which would not have otherwise been able to be lawfully exported but submitted that did not make the giver of the certificate or export permit a "person in charge" or a person who "authorised the carriage or conveyance of the goats". This submission was supported by counsel for the plaintiff and counsel for the Attorney-General of New South Wales. 53 For the defendants it was submitted that, because without the certificate and export permit neither export nor the mode of export would have been lawful, the plaintiff in giving the certificate and permit was relevantly "in charge" and "authorised".

In charge, control and supervision 54 Detailed submissions were provided on behalf of the defendant. They directed my attention to a number of authorities in may fields dealing with the concepts of control and by dint of asserting analogies with the functions of local councils under the Local Government Act in relation to public reserves. It was asserted that if there was a statutory responsibility to perform a function in relation to some thing, it could be properly described as within the control of the person having that function. This submission was made, notwithstanding the Shorter Oxford Dictionary definition to which the submission referred of the concept of the word control which included "the fact of controlling, or of checking and directing action; domination, commanding, swaying. Restraint, check. A method of restraint; a check;". This definition was referred to as set out in the decision of the Federal Court in Boland v. Monroe (1980) 37 ALR 263 at 275. That was a case which was concerned with particular trade union rules and the question of control of the organisation by its members. 55 I was referred similarly to McKenzie v. Administrative and Clerical Officers Association, Commonwealth Public Service (1962) 5 FLR 342 and to the views of Dixon, J. in Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1 at 385 as to the ambiguous nature of the word. I found limited assistance in what was put to me concerning the question of control over documents as referred to by Gibbs, ACJ. in Federal Commissioner of Taxation v. ANZ Banking Group Limited & Ors (1979) 23 ALR 480. 56 I was referred, as was the magistrate, to the Shorter Oxford English definition of "supervise" which it was submitted included "to oversee, have the oversight of, superintend the execution of performance of (a thing), the movements or work of (a person)". On its face, when the whole of it is considered, that definition clearly enough indicates the necessity for the ability to do something by way of control over what was occurring at the time, well exceeding what Dr. Song was doing in the performance of his functions. 57 Counsel's researches found no authority on point I found no assistance in the various cases involving custody of infants or persons in charge of motor vehicles to which my attention and the attention of the magistrate was drawn.

Was the plaintiff a person in charge? 58 Dr. Song was both an authorised officer of the AQIS and a veterinarian. He gave the certificate of health and issued the export permit. It is common ground that it is on those acts he did in those capacities that the prosecutor relied for the contention that he could be held to be a "person in charge" of the goats and a person who "authorise(d) the carriage or conveyance" of the goats. 59 It is apparent that all categories of persons included in the statutory definition even as extended are persons who had a general authority or command over the immediate disposition of the animals in question. 60 It was not suggested that Dr. Song owned the goats. It could not be said that he was in possession of the goats or had them under his direct physical control (see DPP v. Brooks [1974] AC 862; Regina v. He Kaw Teh (1985) 157 CLR 523; Regina v. Dib (1991) 52 A. Crim. R. 64; Moors v. Burke (1919) 26 CLR 265). But the magistrate held that by reason of those functions Dr. Song performed, the goats were under his supervision and thus his actions brought him within the definition. 61 As to the functions that Dr. Song performed it was common ground that the export of the consignment of goats was prohibited without an export permit granted in accordance with order eight (see Commonwealth order 5.1). Order eight provided that an authorised officer was required, unless the secretary had directed otherwise under order 10, to grant an export permit in the event that a veterinary officer had determined that each animal was sufficiently fit to undertake the proposed export journey without any significant impairment of health and that the consignment for shipment overseas and travel arrangements of the animal or consignment of animals was adequate for the health and welfare of the animal or consignment. In the notes to the Commonwealth orders are references to matters to be taken into account by the veterinary officer who is required to have regard to a number of matters including the model code of practice for the welfare of the animal, relevant current national standards and codes of practice. 62 It was found by the magistrate that Dr. Song did inspect and was required to inspect the goats and did perform all the functions necessary to perform his role in deciding to grant certificates and permits. On my reading of his judgment, the magistrate equated the concept of supervision as referred to in the Act with a dictionary reference to the word "oversight" and equated the concept referred to by that word with the inspections performed by the plaintiff. 63 The magistrate said:- "The finding of facts at prima facie level, provide evidence that the defendant was on 25 April 2001 at the airport - that he inspected the goats in cages and issues (sic) his permit before the loading of the cages onto the aircraft - that the defendant had inspected the goats on 23 April 2001 at Kemps Creek by his presence at the airport; the inspection he carried out there are the purpose of his presence in terms of his function under the Export Act and his decision to grant a certificate before the crates were loaded on to the aircraft provide evidence that the defendant was a person who at that time had the goats under his supervision." 64 I accept the plaintiff's submission that the magistrate had found that the goats were under Dr. Song's supervision in that he had concluded that Dr. Song had inspected them and had exercised a degree of oversight over them notwithstanding that these were only effected to the extent necessary for his functions under the Commonwealth law and that the only connection the plaintiff had to the goats was that he was empowered to exercise a limited particular Governmental function in relation to what was being done with the goats by others, namely, their export. His function was merely to review, inspect and grant certificates. It was not to the point that the certificates might have enabled another to undertake a course of action with which the plaintiff was not otherwise involved. The granting of the certificates might have avoided such action as those owning the goats might have been minded to undertake being unlawful, but it had no greater role than that. In that sense, Dr. Song's relationship with the goats involved no such notion of general responsibility or authority over the goats as is reflected in such language as the Regulation employed when defining a person in charge. Shortly, I consider it was not open to the magistrate to conclude that the goats were under Dr. Song's supervision by dint of his mere exercise of the limited Governmental function with which he was entrusted.

Essential features of a "person in charge" 65 In my view, before a person might be held to be in charge for the purpose of the Act and the Regulation it is necessary for that person to have some responsibility or authority of an immediate kind for the physical control of an animal rather than merely having some legal responsibility to undertake a limited function in connection with the animal even if that function involves a visual looking over of the animal. 66 The concept of person in charge, in my view, in the Regulation particularly refers to a person's ability and authority take positive steps to effect the immediate physical circumstances of the animal so that persons' authority might be employed to ensure care, treatment in a humane manner and the welfare of the animal. The s.4 definition particularly refers to a physical relationship in which the person is able to exercise some degree of ultimate responsibility or authority over an animal in its physical environment. I do not understand that the definition, by reference to the concept of supervision or by the use of the word "has" includes some concept of passive permitting or detached observation as seems to have been included in the concept of interested oversight as amounting to supervision as referred to by the magistrate. In my view, in order for the person to be able to be held to be a person in charge of the goats, it is not enough that the person perform since ancillary legal function in relation to the goats but it is necessary that the person, whether on their own or in combination with others, have that degree of authority and responsibility as would enable the person to engage in the physical disposition of the goats. The functions Dr. Song performed were simply not within that concept.

Conclusion 67 I have therefore come to the view that the learned magistrate erred in law in holding that it was open in law to him to find on the facts that Dr. Song was a person in charge of the goats. Having come to this view, it is not necessary for me to consider further whether in performing the function that he did under Commonwealth law Dr. Song might have properly been held liable on the basis that he authorised the carriage or conveyance of the goats. Further it is not necessary for me to consider further any question of whether the Act and Regulation are incompatible with other Commonwealth law, either by reason of an inconsistency or by reason of the immunity doctrine to which I have referred. 68 I have therefore concluded that I should make the orders as sought in the summons that the convictions of the plaintiff in each of the matters there set out be quashed and that in each case the information be dismissed. **********

Last Modified: 12/18/2003 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.

Export Contorl (Orders) Regulations 1982(Cth)

Prevention of Cruelty to Animals (General) Regulation 1996(NSW)

(Cth), the Export Control (Orders) Regulations 1982(Cth)

CITATION : SONG v. CODDINGTON [2003] NSWSC 1196 revised - 17/12/2003 HEARING DATE(S) : Wednesday 24 September 2003 JUDGMENT DATE : 17 December 2003 JURISDICTION: Civil JUDGMENT OF : Greg James J at 1 DECISION : All convictions quashed and each information dismissed.

CATCHWORDS : Criminal law - appeal on law from magistrate's decision - elements of offences under Regulation made under Prevention of Cruelty to Animals Act 1979 - consideration of definition of person in charge - whether applicable to Australian Quarantine and Inspection Service veterinarian performing functions under Commonwealth law. Prevention of Cruelty to Animals (General) Regulation 1996 Prevention of Cruelty to Animals Act 1979 Commonwealth Places (Application of Laws) Act 1970 Justices Act 1902 LEGISLATION CITED : Export Control Act 1982 (Cth) Export Contorl (Orders) Regulations 1982 (Cth) Export Controls (Animals) Orders 1987 (Cth) Judiciary Act 1903 (Cth) Public Service Act 1999 (Cth) Porter (2001) 53 NSWLR 354 Australian Gas Light Co. v. Valuer General (1940) 40 SR(NSW) 126 Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 DPP v. Brooks [1974] AC 862 CASES CITED : He Kaw Teh (1985) 157 CLR 523 Dib (1991) 52 A. Crim. R. 64 Moors v. Burke (1919) 26 CLR 265 McKenzie v. Administrative & Clerical Officers Association, Commonwealth Public Service (1962) FLR 342 Bank of NSW v. The Commonwealth (1948) 76 CLR 1 Federal Commissioner of Taxation v. ANZ Banking Group Limited & ORs (1979) 23 ALR 480 PARTIES : SONG, Fook Yan Hee v. CODDINGTON, Christine, THE ATTORNEY-GENERAL FOR THE COMMONWEALTH INTERVENING FILE NUMBER(S) : SC No. 13355 of 2002 Plaintiff: S. Gagler, SC./J, Kirk COUNSEL : Defendant: R. Sutherland/P. O'Donnell Cth AG: H. Bermeister, QC./Ms. H. Chisolm NSW AG: N. Perran Plaintiff: Minter Ellison SOLICITORS : Defendant: Smyth Mallam Cth AG: Australian Government Solicitor NSW AG: Crown Solicitors Office

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