The Minister for AFF made an order declaring that noni-juice is a 'risk food' and all noni-juice entering Australia must be referred for inspection and refused entry. In accordance with regulation 8(a) of the Imported Food Control Regulations 1993 (Regulations), the Minister is empowered to declare noni-juice as a 'risk food'. Furthermore, regulation 7 allows the Minister to govern all food products that must be referred for inspection. ANFJC have the opportunity to seek review in relation to the Minister's decision.
If ANFJC has exhausted all possibilities, other avenues of review are open through the AAHFS as an intervenor. Merits review will not be attainable ss there are no sections specifically providing for it under the Import Food Control Act 1992 (IFC Act). Judicial Review The best option available for judicial review is the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The Federal Court and the Federal Magistrates Court1 have jurisdiction, as the decision is of an administrative character made under an enactment2, whilst it is 'final, operative and determinative'.
This criteria is satisfied as the decision was not listed under schedule 14 and it is in accordance with s35. Under the remote possibility that the ADJR Act is not a sufficient means of review, judicial review may be sought under s39B of the Judiciary Act 1903 or s75(v) of the Australian Constitution 1901. Although it may be inappropriate for the courts to interfere with cabinet policy6, there is no determinative evidence suggesting that this will be the case. The decision is a matter concerning health, which is in the publics best interest. Here, the decision is likely to be justiciable.
ANFJC must be a 'person aggrieved'7 by the decision at hand to have standing8. As ANFJC cannot import noni-juice, their interests as a sole importer are adversely affected. AAHFS also have standing, as potential profits from the sale of noni-juice would be lost. In order to succeed, ANFJC/AAHFS must make out at least one ground of review. Ultra Vires Simple ultra vires may be argued under s5(1)(c) of the ADJR Act, as the Minister must have jurisdiction to refuse entry. Section 16 of the IFC Act confers power upon the Minister, limited to referring foods for inspection.
It may be disputed that the Minister was unauthorised to demand that all noni-juice be refused entry prior to inspection9. Breach of Procedural Fairness The Hearing Rule As there was a breach of the hearing rule under s5(1)(a), the rules of natural justice were consequently infringed. In accordance with Mason CJ's reasoning in Kioa10, procedural fairness should have been accorded as ANFJC's individual right to import noni-juice was affected, not the general public. Furthermore, it is evident that procedural fairness has not been excluded by any clear expression of statutory intent11.
ANFJC were not advised on the Minister's orders as they were first informed that a decision had been made once the juice arrived in Australia, denying ANFJC the opportunity to present their case12. Based on the facts, it is unlikely that the Minister acted in accordance with procedural fairness. Substantial debate arises as the hearing rule is not applicable to policy decisions of general application. As ANFJC are the sole importer of noni-juice, the decision is sufficiently direct and individualised13. The Bias Rule It would be difficult to establish actual bias14, therefore apprehended bias may be easier to pursue.
A fair minded observor might reasonably apprehend that the decision maker did not bring an impartial mind to this matter15. Procedural bias may arise from strong expressions of opinion articulated by external sources16, such as the Minister's sister who was a doctor and a member of the AMA. The Minister formed a pre-judgement17, as he had already articulated personal views, and had issued government papers regarding alternative medicines. Although distinguishable, Livesey18 affirmed that a situation of apprehended bias will arise where a Minister has already expressed personal views.
A higher standard will be applicable when dealing with Ministers due to the nature of their role19, although bias cannot be automatically assumed based on the Minister being amongst public debate20. Relevant/Irrelevant Matters The Minister must take into account all relevant matters for the decision to be valid21. However, he did not consider that noni-juice was marketed by Australian shops as a fruit juice consisting of antioxidants, nor does any evidence suggest that it contains any unhealthy ingredients. Instead, irrelevant evidence22 collected in a company in the US was given strict attention to.
ANFJC/AAHFS may argue improper purpose under s5(2)(c)23, which can be inferred from the Minister's words. However, there will be no discussion on the matter as the above grounds of review present stronger arguments. If ANFJC/AAHFS were to be successful on one of these grounds of review, an order may be sought requiring further consideration24, or to quash the Minister's decision25. Decision 2: Food Control Certificate is issued requiring that the juice be destroyed or re-exported from Australia. A food control certificate must be issued by an 'authorised officer' under s12 of the IFC Act.
Furthermore, under section 14(2)(b), an officer is authorised to destroy or re-export failing food. ANFJC/AAHFS may seek judicial review of Peter's decision. Peter's decision regarding noni-juice as a failing food, needing to be exported or destroyed, was then affirmed and internally reviewed by the secretary of DAFF, from the power given by s42(4) of a 'reviewable decision'26. Under s42(5)(a)27, the secretary held the power to confirm Peter's initial decision. Merits Review Section 42(4) of the IFC Act provides an inbuilt review for the secretary to reconsider Peter's initial decision.
This has already been exhausted by the secretary. Section 42(11) gives the AAT jurisdiction to review the 'reviewable' decision made by the secretary. The AAT provides full merits review in order to give a correct and preferable decision, as it 'reviews decision made in the exercise of powers conferred by an enactment'. 28 The secretary satisfies this requirement as she was allegedly acting within her power conferred from the IFC Act. Under Commonwealth jurisdiction, s27(2) of the Administrative Appeals Tribunal Act (1975) (AAT Act) allows anyone to bring an action to the tribunal who's interests are affected.
As stated earlier, it is clear that ANFJC/AAHFS have standing. The AAT holds the power of an original decision maker to constitute a fresh decision. If ANFJC were to be successful, they could argue that the secretary's decision be substituted under s43(1)(c)(i)29. This would be in the parties best interests, as noni-juice would no longer be destroyed/re-exported. Judicial Review In regards to the secretary's decision, if the expected outcome was not acquired under merits review, judicial review may be sought.
Peter also has the right to seek judicial review under the ADJR Act. As previously discussed, ANFJC/AAHFS have standing to seek judicial review and the following grounds may be argued. Unauthorised Delegation In accordance with s5(1)(c) of the ADJR Act, a decision will be invalidated where a person did not have the jurisdiction to make a decision. Sections 40(1) and 4130 provide an express statutory power, where the secretary may delegate an officer of AQIS her powers, through a signed instrument. No facts suggest that this instrument has been accorded.
Furthermore, it is questionable as to whether Peter is an 'officer' of AQIS31, due to his early arrival and lack of compliance with procedural formalities. Although there is inadequate evidence to determine this conclusively, if Peter did not have jurisdiction to make the decision, it will be deemed invalid. Procedural Ultra Vires ANFJC may argue that procedural ultra vires has arisen under s4(1)(b)32. There appears to be an abuse of discretion due to an improper purpose under s5(1)(e)33. Inflexible policy fetters the decision maker's discretion.
As the policy here displays that noni-juice poses a high risk to public health, this will significantly influence the decision maker. Counter arguments could be made for 'multiple purposes', suggesting that the policy is directed towards public health. Claims made for complementary medicines constitute an unauthorised purpose, therefore it must be substantial that but-for the existence of this purpose, it is likely that a different decision would have been made34. Inflexible Policy Inflexible application of policy should also be examined, however more information would be necessary to provide any conclusive statements.
Section 5(2)(f) of the ADJR Act communicates that an exercise of discretionary power in accordance with policy without regard to the merits of the case, will form an improper exercise of power. Although policy may aid consistency, it cannot be justified to be ultra vires the statute or where it is inflexibly applied35. Due to the exceptionally harsh government policies in place, it is fettering both Peter and the secretary's discretion to make an impartial decision. This is evident when we apply the 'but for' test. A decision will be invalid if Peter/the secretary's reasons for making their decision were purely policy related.