DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant was charged with, and on 9 August 2001 convicted of, the offence of processing meat other than under an accreditation, contrary to s 74(1) of the Meat Industry Act 1993 (“the Act”).  He was fined $800 and ordered to pay $58 costs of court and professional costs totalling $2,050.  A conviction was not recorded.  He appeals against conviction and sentence.

2. [2]
   There is no dispute that on 9 March 2000, the date of the alleged complaint, he processed meat as that term is understood in the Act. He is inter alia a professional shooter by occupation. The relevant “processing” consisted of supplying 40 kangaroo carcasses to two businesses at Longreach which then dealt with them further, apparently for use as pet food. The principal issue at the trial, and the matter relied on in support of the appeal, was whether he had an accreditation under which he was operating at the relevant time.

The legislative scheme

3. [3]
   The Act provided^[1] in Division 2 of Part 4 for the accreditation system, the purpose of which was to ensure that the wholesomeness and integrity of meat were maintained while giving meat producers the opportunity to devise programs of production best suited to particular circumstances, and to reduce the need for the day to day oversight by the authority:^[2]  s 53.  A person who wished to obtain an accreditation had to apply on the approved form and pay the prescribed fee:  s 55(4).  The application had to set out the applicant’s proposed program of production, in sufficient detail to allow the authority to decide whether compliance with it would ensure the wholesomeness and integrity of meat so processed, and the applicant might be required to provide further information or to allow meat safety officers to inspect premises, vehicle, plant or equipment proposed to be used:  s 55.  The authority could grant or refuse the application (s 56) and if it decided to refuse the authority had promptly to give to the applicant written notice stating the decision, with reasons, and advising the existence of a right of appeal to the Meat Industry Tribunal established under Part 6 of the Act:  s 59.  The authority could grant an accreditation only if satisfied that the premises, vehicles and other aspects of the proposed program of production were appropriate for the program, and met the applicable standards.  The effect of granting the accreditation was to approve the proposed program of production:  s 58(3).

4. [4]
   Section 61 imposed as a condition of an accreditation that the holder of the accreditation allow the authority to perform periodical audits of the program of production, without notice to the holder, and s 62 imposed other conditions including that the meat processing authorised by the accreditation must be carried out in accordance with the approved program of production, that the authority must be told of any disease which appeared in the animal or meat processed, that the holder may make changes to premises, vehicle, plant and equipment only with the authority’s approval, and that the holder must comply with the standards. In particular s 62(1)(a) made it a condition of any accreditation that “the holder of the accreditation must pay to the authority, in accordance with the standards, the annual and other fees payable under the standards.” The authority could impose other reasonable and relevant conditions on an accreditation which it granted, which conditions had to be stated in the accreditation:  s 60.

5. [5]
   By s 70 the authority could make standards for the purposes of the Act on a number of subjects including “(f) the accreditation of meat processing”, and “(s) fees payable to the authority or refundable by the authority.”

6. [6]
   The Act said nothing about the duration of accreditation once it had been granted. By way of contrast, s 57 provided for a temporary accreditation which might be granted to an applicant by the authority pending a final decision on an application: s 56(2).  By s 57(2) temporary accreditation remained in force until the earliest of the following happened – “(a) the period, of not longer than two months, stated in the accreditation ends;  (b) the application is finally decided by the authority and the applicant is notified of the authority’s decision;  (c) the accreditation is revoked at the authority’s discretion by notice given to the applicant.”  There was however provision in s 67 for the authority to suspend or cancel an accreditation if satisfied that various things existed, including by subsection (1)(b), that “the holder has not paid fees or other amounts payable to the authority.”  The authority must first give the holder of the accreditation a show cause notice, and consider any representations made within the specified time, and must inform the holder of the decision by written notice, and if it decided to suspend or cancel the accreditation, state the reasons for the decision and advise the holder of a right of appeal:  s 67.  The decision took effect on the day specified in the notice or the day on which the notice was given to the holder, whichever was the latter:  s 67(6).  An accreditation could also be surrendered by the holder under s 69.  There was also provision in s 65 for amendment to the accreditation, subject to protection by way of a show cause notice, and with the right of appeal against an adverse decision.

7. [7]
   The relevant standard was the Meat Industry Standard 1994. Section 9 of the Standard provided: “An accreditation is issued for 12 months, but the authority may renew it.” Section 10 provided “(1) The schedule sets out the fees payable to the authority. (2) A renewal fee for an accreditation is payable yearly in advance.” There was then a schedule setting out various fees payable in certain circumstances specified; in each ease there was a separate amount specified for “application for accreditation” and “renewal”. I have not examined all of the fees in detail but my impression on a quick look is that generally, but not inevitably, the renewal fees were higher than the equivalent application for accreditation fees, sometimes dramatically higher, although occasionally they were lower: see item 3(b) and (d).

The facts

8. [8]
   In the present case there was evidence that the appellant had had accreditation, and had paid in October 1998 the appropriate fees in respect of the period ending 31 July 1999.  On 23 April 1999 the appellant was sent an invoice in respect of the accreditation fees for the period 31 July 1999 to 30 June 2000, but that invoice has not been paid nor had any other annual fees been paid after 14 October 1998 prior to 9 March 2000.

9. [9]
   The magistrate accepted a submission of the prosecution that the effect of s 9 of the Standard was that an accreditation expired after 12 months unless renewed, and that the appellant’s accreditation had not been renewed since some time in 1998, so that by the date alleged in the complaint it had expired. The magistrate did not make any finding as to the date on which the accreditation was issued or last renewed, but he described it as uncontested that, if an accreditation or renewal of an accreditation did not last more than 12 months, it had expired by the relevant date, and I will proceed on that basis.

10. [10]
    The appellant’s case was that the Act on its true construction did not provide for a specified term for an accreditation, and an accreditation continued unless and until surrendered, suspended or cancelled. That argument was rejected by the magistrate, who concluded that an accreditation only had a lifespan of 12 months before it needed to be renewed, and if it had not been renewed at the end of the 12 months then of course it had expired.

The appellant’s submissions

11. [11]
    The appellant argued that there was nothing in the Act to impose any particular term on an accreditation, and that s 67 provided for suspension or cancellation, as a deliberate act and subject to notice, as the remedy for non payment of the fee. It was submitted that this section, and indeed the legislation as a whole, was consistent with a scheme where once an accreditation was issued it continued in effect indefinitely, subject to surrender, cancellation or suspension. It was submitted that the Act on its true construction provided not for annual accreditation but for an accreditation which continued indefinitely, and that therefore the provisions in the standard by which the accreditation was made annual was invalid, being contrary to the Act.

12. [12]
    It was submitted that the Act which created the notion of accreditation set out the parameters of that notion, and therefore it was a matter of looking to the Act and such indications as appear within it to identify the true nature of the accreditation, and in particular whether it was something of indefinite duration or something which expired after a particular period of time. The appellant submitted, and I accept, that, consistent with ordinary principles of statutory construction, it is not permissible to construe the Act by reference to subordinate legislation, in this case the standard: The Great Fingall Consolidated Ltd v Sheehan (1905) 3 CLR 176 at 184;  Webster v McIntosh (1980) 32 ALR 603 at 606.  The standard cannot modify the operation of the scheme established by the Act, and it was appropriate to ignore the standard and focus only on the Act when determining the true construction of the relevant provisions and the true nature of the accreditation.

Analysis

13. [13]
    In my opinion there were a number of features in the Act which indicated that the accreditation scheme established by the Act provided for an accreditation which was of indefinite duration rather than one which had a particular term. These were:

1. (a)
   The contrast between the express imposition of a particular term for a temporary accreditation (s 57) and the absence of any express imposition of a particular term in respect of an accreditation other than a temporary accreditation.

2. (b)
   The absence of any reference in the Act to expiry of an accreditation.

3. (c)
   The absence of any reference in the Act to renewal of an accreditation.  There was no mechanism for anything to be done in connection with any periodic renewal.  In view of the complexity of the procedure for the initial application, if the legislature contemplated a periodic renewal it is odd that nothing was specified as to what steps should be undertaken to obtain a renewal.

4. (d)
   The legislation expressly provides for periodic auditing without notice to the holder (s 61) which suggests a scheme of continuing operation.

5. (e)
   The Act provided that any suspension, cancellation or amendment of an accreditation could only occur by a procedure which had been carefully framed to ensure that the holder of the accreditation had a proper opportunity to be heard prior to the taking of any step adverse to the holder, and if any adverse step was taken there was a mechanism for appeal, showing that the termination or adverse modification of an accreditation was regarded by the legislation as a serious and substantial step.  That in my opinion is inconsistent with the notion that accreditation is a “wasting asset” only lasting one year, but it is consistent with the notion that an accreditation once granted was a valuable asset which a person could be deprived of only after due process.^[3]  That suggested to me that it was something otherwise of indefinite duration.

6. (f)
   Section 62(1)(a) contemplated that there would be annual fees payable by the holder of accreditation.  Strictly speaking there could not be an annual fee for an accreditation unless the accreditation was of more than 12 months duration;  if the accreditation was to be subject to annual renewal s 61(1)(a) ought to have spoken of renewal and other fees payable under the standards.

7. (g)
   Sections 68 and 69 provided that an accreditation which had been suspended, cancelled or surrendered would be returned to the authority, but there was no mechanism for the return of an accreditation which had expired.

Overall, there was nothing in the Act inconsistent with there being a continuing authority, and several features which did not sit readily with the existence of a term for an authority.

Respondent’s arguments

14. [14]
    It was argued on behalf of the respondent that the purpose of the accreditation system, to ensure the wholesomeness and integrity of meat, was inconsistent with the notion that an accreditation was something that continued indefinitely. However, the mechanism for ensuring that was really the system of auditing without notice to the holder under s 61, a system which it seems to me is much more suited to that objective than mere annual renewal. It was also submitted that it was significant that there was a difference in wording between s 62(1)(a) which referred to “annual or other fees”, and s 67(1)(b), which permitted suspension or cancellation if the holder had not paid “fees or other amounts payable to the authority”. The inference was that it was unnecessary to refer to annual fees under s 67(1) because it would be unnecessary to suspend or cancel the accreditation for non payment of annual fees, because it would have expired anyway.

15. [15]
    I can see that there is some force in that argument, but in my opinion the first problem with it is that it assumes a degree of precision in the drafting of statutes which is not commonly met with these days, and which was not otherwise displayed by this legislation. For example, s 62(1)(f) provided that it was a condition of an accreditation that the holder had to comply with the standards, and s 73 made the contravention of a condition of an accreditation an offence.  It follows that it was an offence not to comply with the standards.  But s 70(3) provided that a standard may provide that contravention of a standard was an offence.  That seems to me to have been inconsistent, an inconsistency emphasised by the circumstance that the penalty for the offence created by s 73 is five times larger than the penalty contemplated by s 70(3).

16. [16]
    In any case, the expression “fees” must include annual fees, as it ordinarily would, otherwise there could have been no annual fees under a standard. Section 70(2)(s) referred to “fees payable to the authority”, and did not expressly mention annual fees. If the word “fees” included annual fees there, it is likely that the same word in s 67(1)(b) also included annual fees.  As well there was no obvious reason for the express reference to “annual” fees in s 62(1)(a), unless it was thought desirable to emphasise that non payment of the annual fee was a breach of a condition.  That of course was the case, and it had two consequences provided for expressly by the Act:  it was an offence under s 73, and it exposed the holder to suspension or cancellation under s 67 (redundantly under both (b) and (c) of subsection (1)).  There was therefore ample mechanism in the Act to cope with the possibility that the holder might not pay an annual fee, although the mechanism in the Act provided that, if someone was to be deprived of the accreditation because of this, the show cause procedure had first to be followed, and there was a right of appeal.  I find it difficult to accept that it was consistent with the legislative intention as expressed in the Act for all of that to be sidestepped by a provision in a standard which purported to make the accreditation expire after one year.

17. [17]
    It was submitted by the respondent that the provision in s 9 of the standard also took effect as a condition of the accreditation, and that therefore it was a valid limitation on the duration of the accreditation. It is true that under s 62 it was a condition of the accreditation that the appellant pay in accordance with the standards the annual and other fees payable under the standards, but that does not in itself make payment of those fees a condition of the continued existence of the accreditation. It simply means that if the fees provided for in the standard are not paid in the way (that is at the time) specified in the standard, there will be a breach of the condition of the accreditation which exposes the appellant to action under s 67 and under s 73. There is nothing in the Act which provides that non payment of a fee required to be paid under a standard has the effect that the accreditation terminates; indeed the Act provides to the contrary, by making non payment of fees one of the grounds upon which the accreditation can be suspended or cancelled by the authority, something that would be unnecessary if non payment of the fee meant that the accreditation expired.

Conclusion

18. [18]
    In my opinion therefore on the true construction of the Act the accreditation did not expire as a result of non payment of an annual fee, or failure to renew, but could be suspended or cancelled pursuant to s 67. I disagree with the interpretation adopted by the magistrate. In my opinion the accreditation of the appellant had not expired in the present case. It was not suggested that the accreditation had been effectively suspended or cancelled prior to the date referred to in the complaint. It follows that at the date in the complaint the appellant had an accreditation, and he ought not to have been convicted of the offence charged.

19. [19]
    As to the appellant’s submission that s 9 of the standard was invalid as being contrary to the Act, if that section purported to provide that an accreditation expired after 12 months unless renewed, it was in my opinion invalid. However, s 9 did not actually say that an accreditation expired, and in my opinion it was really concerned with the computation of the fees provided for in s 10 in the Schedule. Although the Act did not provide for an accreditation to expire, it certainly contemplated that fees in respect of the accreditation would be payable, including annually, and the preferable reading of the standard was to give effect to that intention. In other words s 9 was not concerned with the duration of the standard, but the duration of a particular fee. When read together with s 10 in this way, what they meant was that the fee paid on an application for an accreditation covered the accreditation for a period of 12 months after it was issued, but then a renewal fee became payable yearly in advance. Failure to pay the annual fee meant that there had been a failure to comply with the standard, and therefore a failure to comply with a condition of the accreditation, (and therefore the appellant apparently committed an offence under s 73 of the Act), and left it open to the authority to suspend or cancel his accreditation, subject to compliance with the procedural requirements of s 67. But it did not in my opinion have the effect that the accreditation simply expired.

20. [20]
    It follows that it is unnecessary for me to consider the separate appeal against sentence, although my impression from the comparable decisions provided to me by counsel for the appellant was that the penalty imposed in the present case was definitely high.

21. [21]
    The appeal is allowed, the conviction is quashed and the complaint is dismissed. I will circulate these reasons and invite submissions in relation to the consequential orders as to costs, a matter not the subject of argument during the hearing.