COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Gummow(1), Hill(2) and Cooper(3) JJ

CWDS
  Fish and Fisheries - export of prescribed goods - licensing system - abalone
- export permit - whether permit properly suspended and then revoked -
construction and validity of delegated legislation.
  Statutes - delegated legislation - validity - criteria - reasonableness -
proportionality.
  Export Control Act 1982
  Export Control (Orders) Regulations
  Prescribed Goods (General) Orders
  Export Control (Processed Food) Orders

HRNG
ADELAIDE, 11, 12 May, 1993
#DATE 4:8:1993
  Counsel for the Appellant:           Mr. Jessup QC and Ms. Singh
  Solicitors for the Appellant:        Australian Government Solicitor
  Counsel for the Respondent:          Mr. Morcombe QC and Mr. Crotti
  Solicitors for the Respondent:       Clelands

ORDER
In Matter No. SG26 of 1993
THE COURT ORDERS THAT:
  (1) The appeal be dismissed.
  (2) The appellants pay the costs of the respondent.
In Matter No. SG34 of 1993
THE COURT ORDERS THAT:
  (1) The appeal be dismissed.
  (2) The appellants pay the costs of the respondent.
Note: Settlement and entry of Orders is dealt with by Order 36 of the Federal
Court Rules.

JUDGE1
GUMMOW J  These two appeals, each by leave, were heard together.  In the first
matter (No. 26 of 1993) the primary Judge (O'Loughlin J) on 17 March 1993,
ordered the removal of the suspension of export permit No. 2290902 ("the
Permit"), which had been granted to the respondent ("Dover").  The Permit had
been granted on 10 March 1993 and the decision to suspend had been made on 14
March by the second appellant, Mr Martin.  He had acted in reliance upon O. 79
of the Prescribed Goods (General) Orders ("the General Orders") made under the
Export Control (Orders) Regulations (S.R. 355 of 1982) ("the Regulations").
The Regulations themselves were made under s. 25 of the Export Control Act
1982 ("the Act").  There was some discussion before us as to the nature of the
above order of the primary Judge.  It was not stated as made "until further
order", but an undertaking as to damages was given by Dover and liberty to
apply was granted.  In my view, the order in substance was interlocutory in
character, and founded upon s. 15 of the Administrative Decisions (Judicial
Review) Act 1977 ("the ADJR Act").  I shortly will return to the ADJR Act.
2.  In the second matter, No. 34 of 1993, the primary Judge on 23 March 1993,
ordered the suspension, until further order, of decisions of the second
appellant, Mr Cox, to revoke the Permit, and to reject for export by Dover 100
cartons of canned abalone, the subject of the Permit.  These decisions were
made by Mr Cox on 22 March 1993 in reliance upon O. 80 of the General Orders.
On 22 March, the order of this Court, made 17 March, which had removed the
suspension of the permit under O. 79, was still in force.  On 19 March, the
Full Court of this Court (Sheppard, Einfeld, Beazley JJ ) had dismissed an
application for leave to appeal against the dismissal on 18 March by
O'Loughlin J of an application by the present first appellant for a stay of
his order of 17 March.
3.  Both applications for interlocutory relief had been brought on urgently in
the light of the imminent export of the canned abalone, and were dealt with by
the primary Judge in ex tempore judgments.
4.  Dover is the world's largest producer of canned abalone, and 95% of its
product is exported.  Its total gross sales to the year ended 30 June 1993
will be about $A40m.  Some of the abalone which had gone into the consignment
of 100 cartons of canned product, the subject of the Permit, had been received
by Dover as either fresh or frozen abalone from Auslive Seafood Pty Ltd
("Auslive") whose premises are situated at Braeside in Victoria.  Dover has
its seat of business in South Australia.  Other abalone had been received by
Dover from other sources as fresh or frozen supplies.  All the abalone had
then been processed and canned by Dover.  The 100 cartons were sold by Dover
to a purchaser in Japan, for shipment from Melbourne.
5.  Abalone is a valuable and limited commodity and overfishing is controlled
by State legislation which establishes a quota and licence system.  The first
appellant, the Minister, has a general concern with the "laundering" of
illegally obtained abalone through the export chain. Prices on the domestic
market are about 50% less than on the export market.
6.  The action taken under O. 79 and O. 80 against Dover was the result not of
apprehended conscious wrong-doing by Dover, but of concern by the
decision-makers at the activities of Auslive.  The practical difficulty in
which Dover found itself was acute.  This was because it was not possible to
identify which, if any, of the cans in the shipment did not contain any
Auslive abalone.  At most, 22% of the total contents of the shipment was
Auslive abalone.  The Auslive abalone was small and useful in making up
weights in cans.
7.  In each proceeding, there was before the primary Judge an application for
an order of review under the ADJR Act.  The General Orders were treated as
instruments made under the Act, and therefore as decisions to which the ADJR
Act applied; see sub-s. 3 (1) of the ADJR Act.  The proceedings were not
instituted under s. 39B of the Judiciary Act 1903.  The applications were not
in the form required by O. 54A of the Federal Court Rules.
8.  The authority for the orders made by the primary Judge in each case was to
be found in s. 15 of the ADJR Act.  This provides:
      "15.  (1) The making of an application to the Court under
            section 5 in relation to a decision does not
            affect the operation of the decision or prevent
            the taking of action to implement the decision
            but:
            (a) the Court or a Judge may, by order, on
            such conditions (if any) as it or he
            thinks fit, suspend the operation of the
            decision; and
            (b) the Court or a Judge may order, on such
            conditions (if any) as it or he thinks
            fit, a stay of all or any proceedings
            under the decision.
     (2)    The Court or a Judge may make an order under
            subsection (1) of its or his own motion or on
            the application of the person who made the
            application under section 5."
Orders made under s. 15 are interlocutory in character, in the sense that they
precede the making of final orders under s. 16 to dispose of the application
in question.  Here, there has been no final hearing and no steps taken towards
readiness for a final hearing.  The 100 cartons in contention have been
exported from Australia.
9.  Orders which are interlocutory in nature may also be made under the more
general powers in ss. 19 and 23 of the Federal Court of Australia Act 1976.
The relationship between the specific provisions of s. 15 and these provisions
in the statute providing generally for the powers of this Court has yet fully
to be worked out; see Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119
at 129 and Minister for Immigration, Local Government and Ethnic Affairs v
Msilanga (1992) 34 FCR 169 at 181-2, 185.
10.  In dealing with s. 15 of the ADJR Act, the view has been expressed in
this Court that the principles which have evolved to govern the grant of
interlocutory injunctions under the general law are not always necessarily
appropriate in the application of that section; see the authorities collected
and discussed by French J in Snow v Deputy Commissioner of Taxation supra at
129, and see also Manoher v Minister for Immigration, Local Government and
Ethnic Affairs (1991) 24 ALD 405 at 408 per Lee J.
11.  The parties conducted the dispute before the primary Judge (and the
appeals) on the footing that the principles applicable to the grant of
interlocutory injunctive relief applied by analogy to s. 15 of the ADJR Act.
12.  There was before us considerable debate as to the nature and scope of the
principles governing the administration of the remedy of interlocutory
injunctive relief.  However, in view of the conclusions I have reached as to
the issues of construction and validity of O. 79 and O. 80 of the General
Orders, it is unnecessary to deal with those threshold issues.
13.  There are significant issues both as to the construction and alleged
invalidity of O. 79 and O. 80, pursuant to which Mr Martin and Mr Cox made the
decisions in question.  The primary Judge did not rule, at the interlocutory
level, upon those questions.  Given the exigencies of time which pressed upon
the Court it certainly was not his duty to attempt to do so.  In Cohen v
Peko-Wallsend Ltd (1986) 61 ALJR 57 at 59, Gibbs CJ , Mason and Wilson JJ
said:
     "It is not right to say that it is always the
     duty of the Court on an interlocutory
     application to decide a question of law upon
     which the decision of the case depends.  No
     doubt if the question is one susceptible of
     resolution without further evidence, and the
     urgency of the matter does not render it
     impracticable to give proper consideration to
     the question, the desirable course will be to
     decide it.  Ultimately, however, the course
     which the Court takes lies within its
     discretion."
14.  However, upon the appeal, both sides invited us to rule upon these issues
and addressed full argument.  They submitted that in the events that have
happened there may be no live issue remaining, save as to costs, and that
there may be no need for a final hearing at the primary level if the issues be
disposed of now.  It is not the function of the Court to deal with abstract or
hypothetical questions, the answers to which will produce no foreseeable
consequences for the parties (Ainsworth v Criminal Justice Commission (1992)
106 ALR 11 at 22), or to entertain appeals where there remains no live issue
between the parties (Sun Life Assurance Co. of Canada v Jervis (1944) AC 111
at 114).
15.  But, given the significant operation of the regulatory system in question
here upon the continuing business of Dover, in addition to the live issue of
costs, and given also the public interest in maintaining the efficient
administration of the Department of the first appellant and the discharge
according to law of duties apparently imposed upon the second respondents by
that regulatory system, it would be appropriate on these appeals to deal with
the issues of construction and validity of O. 79 and O. 80.  In so doing, the
Court should not, in my view, confine its consideration to the questions of
alleged error by the primary Judge in the application of principles said to
govern the administration of the interlocutory injunction.  Those questions
are not of primary importance, given the true focus of s. 15 of the ADJR Act,
as I have indicated above.
The Regulatory System
16.  It is necessary first to outline the regulatory system established by and
pursuant to the Act.  Section 6 obliges a person who intends to export
prescribed goods, if so required by the regulations, to give notice to an
authorized officer in accordance with the regulations of that person's
intention and of the place where the goods may be inspected.  The expression
"the regulations" is defined in s. 3 as including orders made by the Minister
under the Regulations.
17.  Sub-section 25 (1) of the Act is in the following terms:
      "25.  (1) The Governor-General may make regulations, not
            inconsistent with this Act, prescribing matters:
            (a) required or permitted by this Act to be
            prescribed; or
            (b) necessary or convenient to be prescribed
            for carrying out or giving effect to this
            Act."
Paragraph 25 (2) (g) provides that without limiting the generality of sub-s.
25 (1), the Regulations may make provision for or in relation to, subject to
sub-s. (3), the empowering of the Minister to make orders, not inconsistent
with the Regulations, with respect to any matter for or in relation to which
provision may be made by the Regulations. Sub-section 25 (3) states that an
order shall not be made prescribing any penalty for an offence.
18.  As I have indicated, the Regulations were made under s. 25. Regulation 3
thereof states:
     "3 The Minister may, by instrument in writing, make
     orders, not inconsistent with regulations made under
     the Act, with respect to any matter for or in relation
     to which provision may be made by regulations under
     the Act."
Regulation 3 thus follows the terms of para. 25 (2) (g) of the Act.
19.  The Act empowers the making of regulations or orders which prohibit the
export of "prescribed goods" from Australia, whether absolutely or to a
specified place or subject to the observance of specified conditions and
restrictions.  The term "prescribed goods" is defined in s. 3 as meaning goods
or goods included in the class of goods which are declared by the Regulations
to be prescribed goods for the purposes of the Act.  The text of sub-ss. 7
(1), (2) of the Act should be set out in full.
      "7.   (1) The regulations may prohibit the export of
            prescribed goods from Australia.
     (2)    Regulations made for the purposes of subsection
            (1) may:
            (a) prohibit the export of prescribed goods
            absolutely;
            (b) prohibit the export of prescribed goods to
            a specified place;
            (c) prohibit the export of prescribed goods
            unless specified conditions or
            restrictions are complied with; or
            (d) prohibit the export of prescribed goods to
            a specified place unless specified
            conditions or restrictions are complied
            with."
The width of sub-paras. 7 (2) (c) and (d) is further emphasised by sub-s. 7
(4).  This makes it clear that the conditions or restrictions imposed under
those provisions "may be required to be complied with in respect of matters or
things not related to the prescribed goods to which they apply".  It is
necessary also to have regard to certain provisions in sub-s. 7 (3):
      "7.   (3) Without limiting the generality of subsection
            (2), regulations made for the purposes of
            subsection (1):
            (a) may provide that the export of prescribed
            goods, or the export of prescribed goods
            to a specified place, is prohibited unless
            a licence, permission, consent or approval
            to export the goods or a class of goods in
            which the goods are included has been
            granted as prescribed by the regulations;
            and
            (b) may make provision for and in relation to:
            (i)    . . .
            (ii)   . . .
            (iii). . .
            (iv)  the revocation or suspension of a
                  licence or permission that is
                  granted subject to a condition or
                  restriction to be complied with by a
                  person for failure by the person to
                  comply with the condition or
                  restriction, whether or not the
                  person is charged with an offence
                  against section 9 in respect of the
                  failure."
Section 9 of the Act makes it an offence for a person to fail to comply with a
condition or restriction subject to which a licence or permission is granted
under the regulations.  Further offences are created by s. 8 which deals with
the export of prescribed goods otherwise than in accordance with the
regulations.  Section 10 confers wide powers of inspection upon authorized
officers, including the making of copies of any document and the searching of
any premises.
20.  Fish (so defined as to include abalone) are declared to be prescribed
goods for the purposes of s. 3 of the Act, by O. 6 of the General Orders.  For
the purposes of sub-s. 7 (1) of the Act, the export of prescribed goods is
prohibited unless the conditions or restrictions specified in the General
Orders are complied with: O. 10.  Various conditions or restrictions are
spelled out in O. 11.  Two of them, in 11.1 (j), (k) are that:
     "(j) notice of intention to export the goods shall have
     been given to an authorized officer and certified by
     an authorized officer in accordance with these Orders;
     (k) the exporter shall hold an export permit that has been
     granted in respect of the goods in accordance with
     these Orders."
The time within which notice of intention to export prescribed goods shall be
given is specified in O. 68.1.  The person giving the notice shall furnish
various information including the place where the goods can be inspected, and
the date on which they can be inspected: O. 70.1 (i), (j).  There must also be
provided a declaration signed by the person giving the notice that the orders
that apply to the goods have been complied with and that the information
contained in the notice is true and correct: O. 70.1 (t).  In the present
case, the orders that applied to the abalone included the Export Control
(Processed Food) Orders ("the Processed Food Orders").  These had been made
under the Regulations and had commenced on 18 January 1993.
21.  Order 73 of the General Orders is in the following terms:
     "73. Where notice of intention to export prescribed goods
     has been given to an authorized officer in accordance
     with order 68, an authorized officer may inspect the
     goods, and, where the officer has reasonable grounds
     to believe that orders that apply to those goods have
     been complied with, an authorized officer shall -
     (a)    certify to this effect on the notice of
            intention;
     (b)    arrange for any identification number that
            appears on a container system unit to be entered
            on the notice of intention where this number is
            not already on the notice; and
     (c)    where an official mark, the design of which is
            specified in Schedule 9 or 10, is applied to a
            container system unit, arrange for the number of
            the official mark applied to the unit to be
            entered on the notice of intention adjacent to
            the number of that unit."
Where a notice of intention has been certified in accordance with O. 73, no
person shall alter, add to or delete information contained in the notice
except in accordance with O. 74.
22.  The granting of export permits is provided for in O. 75.  This obliges an
authorized officer to grant an export permit in certain circumstances.  Order
75 states:
     "75.   Where -
     (a)    an exporter has given notice of intention to
            export prescribed goods in accordance with
            orders 68, 69 and 70;
     (b)    an authorized officer has certified the notice
            of intention in accordance with order 73;
     (c)    no unauthorized alterations had been made to the
            notice of intention; and
     (d)    an authorized officer does not have reasonable
            grounds to believe that orders that apply to the
            goods have not been complied with,
     an authorized officer shall grant an export permit in
     respect of the prescribed goods."
An export permit granted in accordance with O. 75 shall be valid for a period
of 28 days: O. 77.  In the case of the Permit, this period ran from 10 March
1993.
23.  Where an authorized officer has reasonable grounds to believe that
prescribed goods are not fit for export, the officer may inspect them and
where there are reasonable grounds to believe that the goods are not fit for
export but fit for human consumption they shall be removed from the export
system in accordance with orders that apply to the goods: O. 83.  Where, after
inspection, there are reasonable grounds to believe that prescribed goods are
not fit for human consumption, then, in certain circumstances, they may be
condemned and destroyed: O. 84.
General Orders 79, 80 and the Second Appeal
24.  It is possible now to turn to the crucial provisions of the orders, O. 79
and O. 80, and to come to the first issue of construction.
25.  The text of O. 79 and O. 80 is as follows:
     "79. Where an authorized officer has reasonable grounds to
     believe that -
     (a)    an order that applies to prescribed goods has
            not been complied with; or
     (b)    the condition of the goods has changed;
     either before or after the granting of an export
     permit in respect of the goods and before the export
     of the goods, an authorized officer shall -
     (c)    inspect the goods; and
     (d)    suspend any export permit that may have been
            issued in respect of the goods until such time
            as the inspection and any analysis of the goods
            is completed.
     80. Where (, following the inspection of prescribed goods
     in accordance with order 79,) there are reasonable
     grounds to believe that -
     (a)    an order that applies to the goods has not been
            complied with; or
     (b)    the condition of the goods has changed to such
            an extent that they would not be passed for
            export,
     the authorized officer shall -
     (c)    reject the goods for export; and
     (d)    revoke any export permit granted in respect of
            the goods."
The material within the square brackets in the text of O. 80 was removed by
amendment in 1986.  This means that on the face of O. 80 there is no longer
any direct textual link with O. 79.
26.  In the case of both orders, where specified criteria are satisfied, the
authorized officer is obliged to take certain action. Order 79 obliges the
officer to suspend any export permit and O. 80 to revoke it.  Where the same
circumstances meet the criteria in both orders for action thereunder, there
appears to be the paradoxical result that the authorized officer must both
suspend the permit and revoke it. Counsel for the appellants submitted that
the Court had to do the best it could with those provisions.  However, he
submitted, contrary to the submissions for Dover, that O. 80 was not to be
construed as sequential to O. 79.
27.  Dover's submission was that (a) where an authorized officer has
reasonable grounds to believe that an order which applied to prescribed goods
has not been complied with, the officer must suspend any export permit until
such time as inspection and analysis of the goods was completed, (b) the
officer is not as a first step, to revoke the permit, and (c) until the steps
under (a) have been completed under O. 79, the authorized officer is not to
reject the goods for export and revoke the permit, pursuant to O. 80.
28.  The point is of some significance in the present case because, it will be
recalled, the decision in respect of which the second proceeding was
instituted in this Court was made on 22 March 1993 by Mr Cox after the
suspension under O. 79 had been made on 14 March 1993.
29.  It is true that by force of the interlocutory order of the Court made 17
March the suspension under O. 79 had been removed.  But that was not a final
order, and the decision to suspend the Permit had yet to be dealt with on a
final basis under s. 16 of the ADJR Act.  Thus, the situation at the time of
the second decision of 22 March is not to be assessed on the footing that the
processes envisaged under O. 79 had been completed and the further operation
of O. 79 was spent.  Dover submits that the action under O. 80 was premature
because, in relation to the orders the subject of Mr Martin's concern, the
operation of O. 79 had not been spent, and in relation to any further
non-compliance with the same or other orders, no steps had been taken under O.
79.
30.  The decision of Mr Martin on 14 March 1993 to suspend the Permit was
expressed as made in accordance with para. (a) of O. 79.  The suspension was
stated to have effect "until you can identify and segregate abalone received
from (Auslive) since 18 January 1993".  The decision on 23 March 1993 by Mr
Cox to revoke the Permit and to reject the 100 cartons for export recited the
existence of reasonable grounds to believe that there had been non-compliance
with certain of the General Orders and the Processed Food Orders; that is to
say, reliance was placed upon para. (a) of O. 80.
31.  In neither case was reliance placed upon para. (b).  These paragraphs
deal with change in the condition of the goods, but do so in different terms.
The statement in O. 79 is that "the condition of the goods is changed, either
before or after the granting of an export permit in respect of the goods and
before the export of the goods . . ." In O. 80, the criterion is that "the
condition of the goods has changed to such an extent that they would not be
passed for export".
32.  In my view, the relationship between the two paras. (b) in O. 79 and O.
80 produces the following results:
      (i)   If, in the first instance, there are reasonable
            grounds to believe that the condition of the goods has
            changed to such an extent that they would not be
            passed for export, the authorized officer is obliged
            to act pursuant to O. 80.
      (ii)  If, in the first instance, the authorized officer has
            reasonable grounds to believe that the condition of
            the goods has changed, either before or after the
            granting of an export permit and before export of the
            goods, but the reasonable grounds do not go so far as
            to found a belief that the change is to such an extent
            that the goods would not now be passed for export, the
            authorized officer is obliged to act pursuant to O.
            79.
     (iii)  If, whilst a suspension under O. 79 is in force, there are
     reasonable grounds to believe that the condition of the
     goods now has changed to such an extent that they would not
     be passed for export, then, notwithstanding the subsistence
     of the suspension, the authorized officer is now obliged to
     revoke the permit under O. 80 and reject the goods for
     export.
In this fashion, there is no irreconcilable conflict between O. 79 and O. 80
insofar as the reasonable grounds are concerned with the condition of the
goods.  That, however, is not the present case.
33.  Here, the reasonable grounds were concerned with non-compliance with
orders which applied to the goods the subject of the Permit.  In those
circumstances, on the face of the orders, the authorized officer was subjected
to concurrent conflicting obligations, to suspend and revoke.  It could well
be pointless in providing, in such circumstances, for suspension until
inspection and analysis, if the authorized officer was obliged forthwith to
reject the goods for export and revoke the permit.  In dealing with an
apparent conundrum such as that presented by paras. (a) in O. 79 and O. 80,
the Court should strive to avoid a capricious or irrational result and seek to
give each provision a field of operation.  In A.M.P. Inc. v Utilux Pty Ltd
(1972) RPC 103 at 109, Lord Reid said that, it being improbable that the
framers of legislation could have intended to insert a provision which has
virtually no practical effect, one should look to see whether any other
meaning produces a more reasonable result.  See also Cooper Brookes
(Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at
321, per Mason and Wilson JJ, and Occidental Life Insurance Company of
Australia Limited v Life Style Planners Pty Ltd (1992) 38 FCR 444 at 449-450,
per Lockhart J.
34.  In the present case, this is done by treating O. 79 and O. 80, where the
reasonable grounds relate to non-compliance with orders that apply to
prescribed goods, as operating sequentially in the manner urged by counsel for
Dover.  It follows that the decision the subject of the second appeal was not,
within the meaning of para. 5 (1) (d) of the ADJR Act, authorized by the
enactment in pursuance of which it was purported to be made.  That conclusion
as to the construction of the orders provides added, and more than sufficient,
support for the interlocutory order made by the primary Judge on 23 March 1993
to suspend the decisions of Mr Cox to revoke the Permit and reject the abalone
for export.
35.  It is unnecessary further to consider the discretionary matters to which
the primary Judge had regard in making that order.  It will be necessary to
consider later in these reasons further points as to the construction of O.
79.
Ultra Vires
36.  Dover also submits that O. 79 and O. 80 are beyond the regulation making
power conferred by the Act.  As I have indicated, the General Orders were made
by the Minister pursuant to reg. 3, which in turn was made by the
Governor-General under s. 25 of the Act and, in terms, followed para. 25 (2)
(g) of the Act.  The regulation making power extended to empowering the
Minister to make orders not inconsistent with the Regulations "with respect to
any matter for or in relation to which provision may be made by regulations".
This in turn refers the reader to s. 7 of the Act, which I have described
earlier in these reasons.
37.  As counsel for the appellants points out, s. 7 speaks of regulations
which prohibit the export of prescribed goods absolutely. Provision also is
made, in sub-s. 7 (3), for the erection of a licence system with provision for
the revocation or suspension of licences.
38.  Counsel for Dover submitted that the subordinate legislation under
consideration here was such a direct and substantial invasion of "substantive
rights" that the Court should hold that it was not "reasonably proportionate"
to the enabling purpose.  He referred to various decisions including that of
the High Court in State of South Australia v Tanner (1989) 166 CLR 161 at 165,
and those of this Court in Minister for Primary Industries and Energy v
Austral Fisheries Pty Ltd (1993) 112 ALR 211 at 214-5, 230, and the Full Court
of the Supreme Court of South Australia in Taylor v Guttilla (1992) 168 LSJS
133.
39.  The present is not a case where the orders are so capricious and
irrational that no reasonable person could have devised them, in the sense
discussed in the Austral Fisheries case.  Rather, as counsel for the
appellants points out, where the Act specifically contemplates an absolute
prohibition upon prescribed goods, it is difficult to see how O. 79 and O. 80,
which affect the operation of the licence system which qualifies what
otherwise might be the total prohibition, are to be characterized as
disproportionate to the enabling purpose.  The relevant criterion of validity
in such a case cannot be the fairness of the delegated legislation: Coulter v
The Queen (1988) 164 CLR 350 at 357, per Mason CJ, Wilson, Brennan JJ.
40.  The concept of "reasonable proportionality" as a criterion for assessment
of validity in constitutional and administrative law appears to have entered
the stream of the common law from Europe and, in particular, from the
jurisprudence of the Court of Justice of the European Communities and the
European Court of Human Rights.  If a state is to justify interference by its
executive, legislature or courts with the freedom of expression guaranteed by
Article 10 of the European Convention For The Protection Of Human Rights And
Fundamental Freedoms, the interference must correspond to "pressing social
need" and be "proportionate" to the "legitimate aim" pursued by the state: The
Sunday Times v United Kingdom (1979) 2 EHRR 245 at 277-8, 280.  The validity
of national legislation restricting trade and working hours on Sundays, in the
light of Article 30 of the EEC Treaty (which prohibits between member States
"quantitative restrictions on imports and all measures having equivalent
effect") is assessed by application of standards of "necessity" and
"proportionality": see the litigious saga of the British Sunday trading
legislation disclosed in Kirklees Metropolitan Borough Council v Wickes
Building Supplies Ltd (1993) AC 227 at 277-8, and Stoke-on-Trent Council v B
and Q Plc (1993) 2 All ER 297.  Here, "proportionality" has been said to mean
that, "in short, a reasonable relationship must exist between aims and means":
Koopmans, "European Public Law: Reality and Prospects" (1991) PL 53 at 58.
41.  In English administrative law, it seemed that the concept of
proportionality might be adopted as a ground of review of alleged abuse of
statutory discretion, perhaps as an adjunct to Wednesbury unreasonableness:
see the discussion in Beatson and Matthews, "Administrative Law: Cases and
Materials", 2nd Ed., 1989; Cane, "An Introduction to Administrative Law", 2nd
Ed., 1992, p 211-2.  However, in Regina v Secretary of State for the Home
Department; Ex parte Brind (1991) 1 AC 696 at 762, Lord Ackner said:
     "Clearly a decision by a minister which suffers
     from a total lack of proportion-ality will
     qualify for the Wednesbury unreasonable epithet.
     It is, ex hypothesi, a decision which no
     reasonable minister could make.  This is,
     however, a different and severer test.
     Mr Lester is asking your Lordships to adopt a
     different principle - the principle of
     'proportionality' which is recognised in the
     administrative law of several members of the
     European Economic Community.  What is urged is a
     further development in English administrative
     law, which Lord Diplock viewed as a possibility
     in Council of Civil Service Unions v Minister
     for the Civil Service (1985) AC 374, 410.
     In his written submissions, Mr Lester was at
     pains to record . . . that 'There is a clear
     distinction between an appeal on the merits and
     a review based on whether the principle of
     proportionality has been satisfied.'  He was
     prepared to accept that to stray into the realms
     of appellate jurisdiction involves the courts in
     a wrongful usurpation of power.  Yet in order to
     invest the proportionality test with a higher
     status than the Wednesbury test, an inquiry into
     and a decision upon the merits cannot be
     avoided.   . . .  The European test of 'whether
     the "inter-ference" complained of corresponds to
     a "pressing social need"' (The Sunday Times v
     United Kingdom (1979) 2 EHRR 245, 277) must
     ultimately result in the question 'Is the
     particular decision acceptable?' and this must
     involve a review of the merits of the decision.
     Unless and until Parliament incorporates the
     Convention into domestic law, . . . there
     appears to me to be at present no basis upon
     which the proportionality doctrine applied by
     the European Court can be followed by the courts
     of this country."
Lord Lowry (at 766-7) said that to introduce the proportionality doctrine
would lead to abuse of the supervisory jurisdiction of the courts.  Lord
Templeman (at 756) seemed to treat proportionality as an aspect of the
Wednesbury doctrine.  Lords Bridge (at 749) and Roskill (at 750) were
non-committal.
42.  However, in Australia the proportionality doctrine has taken root and,
indeed, extended its reach into the heartland of federal constitutional law.
First, the rather special and "purposive" nature of the legislative power with
respect to external affairs in its application to existing and reasonably
apprehended international obligations, led to its confinement to what may
reasonably be regarded as appropriate means for implementation of the
obligation: The Tasmanian Dam Case (1983) 158 CLR 1 at 172, 232-3, 259-61,
Richardson v Forestry Commission (1988) 164 CLR 261 at 295-6, 303, 311-12,
326, 336.  Secondly, the doctrine has been applied to the operation of
constitutional prohibitions or restraints upon the scope of legislative power,
whether these prohibitions or restraints arise expressly, as with s. 92 of the
Constitution, (Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at
473-4) or impliedly (Nationwide News Pty Ltd v Wills (1992) 108 ALR 681 at
706, 726-7, 740-41).  Thirdly, the doctrine has been applied generally as a
criterion of validity of provisions which fall outside the "core" of the
subject matters of certain of those legislative powers in s. 51 which are not
"purposive" powers; see, as to the trade marks and corporations powers, Davis
v The Commonwealth (1988) 166 CLR 79 at 99-100, and as to the conciliation and
arbitration power, Nationwide News Pty Ltd v Wills supra at 689-91 per Mason
CJ, Dawson J contra at 736.
43.  In Nationwide News at 690, Mason CJ said:
     "Davis establishes two propositions.  First,
     that, even if the purpose of a law is to achieve
     an end within power, it will not fall within the
     scope of what is incidental to the substantive
     power unless it is reasonably and appropriately
     adapted to the pursuit of an end within power,
     i.e., unless it is capable of being considered
     to be reasonably proportionate to the pursuit of
     that end.  Secondly, in determining whether that
     requirement of reasonable proportionality is
     satisfied, it is material to ascertain whether,
     and to what extent, the law goes beyond what is
     reasonably necessary or conceivably desirable
     for the achievement of the legitimate object
     sought to be attained and, in so doing, causes
     adverse consequences unrelated to the
     achievement of that object.  In particular, it
     is material to ascertain whether those adverse
     consequences result in any infringement of
     fundamental values traditionally protected by
     the common law, such as freedom of expression."
44.  These propositions are important, but as yet scarcely explored by the
Courts when dealing with the immediately significant operation of the concept
for these appeals.  This is as a test of validity of delegated legislation.
In that context, one ordinarily would not characterize the steps taken by the
delegate of the Parliament by use of criteria, such as Wednesbury
unreasonableness, which are concerned with the exercise of statutory
discretion and administrative decision-making. The issue in the present
context is whether the law made by the process of delegation is valid, not
whether an administrative decision is reviewable for error.
45.  In Tanner supra at 165, Wilson, Dawson, Toohey and Gaudron JJ said:
     "In the course of argument, the parties accepted
     the reasonable proportionality test of validity
     (cf. Deane J in The Commonwealth of Australia v
     Tasmania (the Tasmanian Dam Case) (1983) 158
     CLR 1 at 260), namely, whether the regulation
     is capable of being considered to be reasonably
     proportionate to the pursuit of the enabling
     purpose.  However, they differed in the answers
     to which their application of the test led.  The
     same test, in relation to a power limited to
     regulation, was expressed by Dixon J in
     Williams (v Melbourne Corporation) (1933) 49
     CLR 142 at 156, as being, in substance,
     whether the regulation goes beyond any restraint
     which could be reasonably adapted for the
     prescribed purpose."
Earlier, in Coulter v The Queen, supra, Mason CJ, Wilson and Brennan JJ had
also treated Williams as authoritative, asking whether the Rules of Court in
question were "a reasonable means of attaining the ends of the rule-making
power".  See also Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR
298 at 309-311, 327-9.
46.  These observations in the High Court indicate that whatever may be the
sweep of the proportionality principle in federal constitutional law, when the
question of validity is concerned with delegated legislation made pursuant to
a law of the Parliament whose validity itself is not impugned, the
proportionality principle is differently focussed.  The observations by their
Honours further suggest that here at least there has been no significant shift
in doctrine and, indeed, that the subject still is controlled by what was said
by Sir Owen Dixon over 50 years ago; see the discussion by Mr Peter Bayne in
his note "Reasonableness, Proportionality and Delegated Legislation", (1993)
67 ALJ 448 esp at 449-450.  The fundamental question is whether the delegated
legislation is within the scope of what the Parliament intended when enacting
the statute which empowers the subordinate authority to make certain laws: see
Austral Fisheries, supra at 214, per Lockhart J.
47.  The treatment by 4 members the High Court in Tanner of the remarks of
Dixon J in Williams as identifying what they understood by the proportionality
criterion as applied to the validity of delegated legislation, brought with
it, in my view, the subsequent elaboration by Dixon J of his views.  In the
joint judgment, to which Dixon CJ was a party, in Shanahan v Scott (1957) 96
CLR 245 at 250, the following was propounded.  A power such as that in sub-s.
25 (1) of the Act does not authorize the making of regulations which vary or
depart from the positive provisions of the Act, or which go outside the field
of operation which the Act marks out; such a power does not support attempts
to widen the purposes of the Act, to add new and different means of carrying
them into effect, or to depart from or vary the plan which the legislature has
adopted to obtain its ends.  These are indicia which assist in deciding the
general question of whether the regulations in question are a reasonable means
of attaining the ends of the legislative delegation of power.
48.  Looked at in this way, I conclude that O. 79 and O. 80 do not fall
outside power.  The licensing system of which they are a part cannot be
described as going beyond any restraint which could reasonably be adopted for
the prescribed purpose.
49.  It is true that sub-para. 7 (3) (b) (iv) of the Act speaks of regulations
which make provision for and in relation to the revocation or suspension of a
licence or permission that is granted "subject to a condition or restriction
to be complied with".  Counsel for Dover points out that the export permits in
question here were relevantly unconditional.  He contends that therefore in
its application to the Permit, O. 79 and O. 80 travel beyond this
sub-paragraph in sub-s. 7 (3) of the Act.  However, sub-s. 7 (3) is introduced
by the words "Without limiting the generality of subsection (2)".  Sub-section
7 (2) states that the regulations may, inter alia, "prohibit the export or
prescribed goods unless specified conditions or restrictions are complied
with". The specified conditions in the General Orders include the condition
that the exporter shall hold an export permit: O. 11.1 (k).
50.  The attack on validity fails.  I turn to consider the remaining issues as
they affect the first appeal.
The First Appeal
51.  Mr David Cox is Manager, Processed Food Inspection Operations, of the
Australian Quarantine and Inspection Service ("AQIS") of the Department
administered by the first appellant.  On 10 March 1993, he was notified by a
subordinate that Dover had submitted a notice of intention to export the 100
cartons of abalone, the subject of this litigation.  Mr Cox was in receipt of
information concerning what he believed to be potential breaches of the Act
and associated orders by Auslive.  He also was then of the view that it
appeared that abalone transferred to Dover from Auslive might not be eligible
for export because it may not have been processed in accordance with the
orders. However, on 10 March, he instructed that the permit should issue.  He
did this because he was not then fully satisfied that the abalone was
ineligible.
52.  As I have indicated, the decision to suspend was made by Mr Martin,
another officer of AQIS, on 14 March 1993.  The decision was communicated to
Dover by letter, the concluding paragraph of which read:
     "In accordance with Order 79 (1) and (d) of the
     Prescribed Goods (General) Orders, Export permit
     No. 2290902 is suspended until you can identify
     and segregate abalone received from EST 9242,
     since 18 January 1993.  Following segregation to
     AQIS satisfaction, the remaining abalone which
     does comply with orders under the Export Control
     Act will be permitted to be exported."
In the interval between 10 and 14 March, Mr Cox had told Mr Martin that export
should not be permitted.
53.  In his oral reasons for judgment, delivered ex tempore on 17 March 1993,
the primary Judge referred in particular to two matters.  The first concerned
a matter of fact and the second points of construction of Order 79.  It is
necessary to deal with these two points in turn.
54.  As to the first, his Honour said:
     "My first observation is that Mr Cox saw fit to
     acknowledge that on 10 March, he was of opinion
     that the relevant export permit should issue
     because, as he said, he was not then fully
     satisfied that the abalone was ineligible.
     I found it difficult, in the short time that has
     been available to me, to comprehend from the
     quick reading of his affidavit that he
     thereafter gained additional and sufficient
     information to justify the drastic change in
     attitude that was manifested by his later
     decision on 12 March to direct that the permit
     be suspended.
     I want it clearly understood, in fairness to Mr
     Cox, that it may well be that he did have those
     reasonable grounds and it may well be that in
     the urgency of this matter and in the limited
     time available, he did not have the opportunity
     to spell it out in sufficient detail for me to
     comprehend their existence.
     At this stage, therefore, on the limited
     information that is before me, I am not
     satisfied of the existence of those reasonable
     grounds."
55.  Counsel for the appellants pointed to paras. 27 and 28 of Mr Cox's
affidavit, sworn and read in the first proceeding, and submitted that they
showed the receipt by Mr Cox in the interval in question of important
information which more than adequately explained his shift in position.  It
followed, counsel submitted, that, his Honour having mistaken in an important
respect the uncontested facts, there had been a miscarriage in the exercise of
his Honour's discretion in granting interlocutory relief: House v The King
(1936) 55 CLR 499 at 505.  On the afternoon of 11 March 1993, Mr Cox received
a written report by Mr G.R. Jackson, a Senior Compliance Officer with AQIS.
This related some background history, including the detection of Mr S.P.
Llewellyn, a son of a director of Auslive, some 5 weeks earlier in the company
of a convicted abalone poacher, one Cam Straun.  They were in a motor vehicle
with a load of abalone apparently without appropriate documentation as
required under Victorian legislation.  The report went on to deal with the
raid on 5 March 1993 of an unlicensed abalone establishment at Springvale in
Victoria where, amongst others, Mr S.P. Llewellyn was present.  His father, Mr
M. Llewellyn, had been interviewed on 9 and 10 March 1993 and asked to produce
certain records dealing with abalone purchases, sales, opening and closing
invoices and the like.  At the second interview, on 10 March 1993, Mr
Llewellyn had stated that he had been advised by his solicitor not to make any
comments.
56.  One of the recommendations made in the report by Mr Jackson was that
consideration be given to the export eligibility of Auslive abalone delivered
to Dover since 18 January 1993, in the light of the circumstance that Auslive
did not hold the appropriate Victorian endorsed abalone licence as required by
O. 7.2 of the Processed Food Orders.  The lack of the Victorian licence was
confirmed by the receipt on 11 March 1993 by Mr Cox of a report by the
Victorian Department of Conservation and Natural Resources.  This confirmed
that neither Auslive nor either of the Messrs Llewellyn held a Victorian
commercial processors licence as required by the Victorian Fisheries Act.
57.  Counsel for the appellants also point out that there is no requirement of
law that the authorized officer act only on material which would be admissible
in evidence before a court: Mahon v Air New Zealand Ltd (1984) AC 808 at 821.
Further, Mr Cox had sworn as to the grounds known to him at the time of the
decision in question, and in those circumstances, as counsel for the appellant
submit, it was for Dover to put a case at the interlocutory level that such
grounds did not exist or that they were not reasonable: W.A. Pines Pty Ltd v
Bannerman (1980) 41 FLR 175 at 181.
58.  In my view, those submissions should be accepted.  But that does not mean
that the first appeal should succeed.
59.  The second matter stressed by the primary Judge as a ground which led to
him making the orders on 17 March which are now under appeal concerned what he
described as "more of a technicality".  To an extent, the point turned upon
the concluding paragraph of the letter of 14 March.  I have set this out
earlier in these reasons.
60.  The primary Judge said:
     "Let us assume that there were reasonable
     grounds that an order which applies to the
     abalone had not been complied with.  In those
     circumstances, the relevant authorized officer
     was entitled to:
            suspend the export permit until such time
            as the inspection and any analysis of the
            goods is completed.
     I take the words that I have just quoted (from
     O. 79) as meaning activities on the part of the
     authorities whereby they inspect and analyse the
     goods in respect of which the reasonable grounds
     for relief exist.
     It seems to me that the letter of 14 March has
     misconceived the responsibilities of the
     authorities.  They have just given a blanket
     suspension with the invitation to the intending
     exporter to proceed to identify and segregate
     abalone on the premise, so it would seem, that
     the actions of the exporter will determine when,
     if any, can consequently be exported.
     That's not the perception of order 79 as I see
     it . . .  Insofar as (counsel for the Minister)
     says that Mr Cox's affidavit does throw up the
     true purpose in terms of order 79, that may be
     the case.  The point is that it should be
     contained in the letter of 14 March."
61.  Counsel for Dover developed this point by submitting to us that the
statement in the letter of 14 March that the Permit was suspended until Dover
could identify and segregate abalone received from Auslive since 18 January
1993 reflected a fatal misconstruction by Mr Martin of O. 79.  It was
submitted that O. 79 only contemplates a suspension, pending inspection and
analysis of "the goods", that the steps under O. 79 are inappropriate and
inapplicable to a case where "the state of the goods is not challenged", and
that O. 79 does not permit a suspension "based on failure to keep appropriate
paperwork".
62.  To evaluate these submissions, which depend essentially upon the
construction of O. 79, it is necessary to refer further to the nature of the
regulatory scheme and, in particular, to refer further to the Processed Food
Orders.
63.  These require the maintenance of accurate records concerning the receipt,
processing and dispatch of all raw materials and foodstuffs, including
abalone, at registered establishments, and regarding the processing and
production of all processed food, including abalone, at registered
establishments.  Order 7 of the Processed Food Orders is as follows:
     "7.1 These Orders do not exclude the operation of a
     provision of a law of a State or Territory with
     respect to fisheries that relates to the enforcement
     of a provision of that law concerning the taking of
     fish.
     7.2  Processed food must not be prepared from materials
     which have been received, taken or processed, in
     contravention of any law of the Commonwealth, a State
     or Territory."
Schedule 12 sets up a complex system dealing with the transport of processed
food within Australia, and the use of what are called transfer certificates.
64.  It is submitted for the appellants that when O. 79 is read in this
context and with respect to goods consisting of sealed containers of food, the
notion of "inspection" in O. 79 must embrace checking the documentation which
would throw light on the condition and other relevant characteristics of the
goods.  There is, in my view, a real difficulty with that submission as to the
construction of O. 79.  Where the authorized officer has the reasonable
grounds spoken of in this order, the officer is obliged to inspect the goods
and suspend any export permit, the suspension to operate "until such time as
the inspection and any analysis of the goods is completed".  The notion of
"inspection" is thus closely linked to that of "analysis of the goods".
65.  A similar point may be made concerning O. 82.  This speaks of retaining
the goods for the purpose of inspecting them, there being reasonable grounds
to believe that they are not fit for export. Likewise, O. 83 speaks of the
inspection of prescribed goods, clearly in a context where the issue is
whether the goods, whilst not fit for export, are fit for human consumption.
All of these provisions may be compared with O. 80.  If, under O. 80, there
are reasonable grounds to believe that an order that applies to the
documentation for the goods has not been complied with, the authorized officer
shall reject the goods for export and revoke any export permit.  In aid of the
formation of that reasonable belief, the Act provides for the making of
searches, as discussed above when dealing with s. 10.
66.  I would reject the particular construction sought to be put by the
appellants upon O. 79.
67.  However, as I read what was said by the primary Judge, the second point
to which he referred was not concerned with this question of construction.
Rather, his Honour was concerned that the terms of the letter of 14 March
identified the nature and period of the suspension in a manner contrary to O.
79.  The suspension was described as having effect not until such time as
inspection of the goods had been completed by AQIS and any analysis of the
goods had been completed. Rather, the suspension was to cease with the
identification and segregation by Dover of the abalone received from Auslive
since 18 January 1993.  The point was made clearer by the concluding sentence
in the letter of 14 March:
     "Following segregation to AQIS satisfaction the
     remaining abalone which does comply with orders
     under the Export Control Act will be permitted
     to be exported."
68.  Counsel for the appellants submitted that the decision was one to suspend
the Permit until Dover "rendered the goods into a condition in which they
could be inspected and/or analysed for compliance with the orders".  As to
that, two things may be said.  The first is that there must be a real doubt as
to whether a suspension, even in those terms, is one which complies with O.
79.  And the second is that it is by no means clear that this was the meaning
of the letter of 14 March.  The essential point is that O. 79, where the
relevant reasonable grounds of belief exist, obliges the authorized officer to
take 2 steps.  One is the inspection of the goods.  The second is the
suspension of any export permit for a time which is defined in O. 79 as "such
time as the inspection and any analysis of the goods is completed".
69.  Had it been necessary for the primary Judge to decide the point on a
final basis, then in my view it would have been properly decided adversely to
the appellants.  As it is, there undoubtedly was a serious question to be
tried as to the validity of the decision taken under O. 79.
70.  It then became a question for the primary Judge to consider the balance
of convenience.
71.  We were taken carefully through the evidence which bore upon both sides
of this question.  In the end, even if the matter were now thrown open for a
fresh assessment, I would be persuaded that the balance of convenience
favoured Dover.  The decision the subject of the first appeal should not be
upset.
72.  The result is that each of these appeals should be dismissed with costs.

JUDGE2
HILL J  I have read the judgment of Gummow J in this matter and agree with his
Honour's reasons and the conclusions which he has reached.
2.  In the course of that judgment his Honour discusses the application of the
"reasonably proportionate" test in administrative law, a matter which must be
regarded at the moment as still fluid in Australian jurisprudence.
3.  The adoption of what Dixon J had said in Williams v Melbourne Corporation
(1933) 49 CLR 142 at 156 by Wilson, Dawson, Toohey and Gaudron JJ in State of
South Australia v Tanner (1989) 166 CLR 161 at 165, appears to require a Court
in considering delegated legislation to determine whether the operation of
that delegated legislation was reasonably adopted as a means of attaining the
ends of the rule-making power.  No doubt the matters referred to by the High
Court in Shanahan v Scott (1957) 96 CLR 245 at 250 will be relevant in this
inquiry, albeit they may not necessarily be the sole matters for
consideration.
4.  In the present case it is unnecessary to decide the precise scope and
operation of the reasonably proportionate test.  For however broad an
application that test may be given, O.79 and O.80 do not go beyond any
restraint which could be reasonably adopted for the prescribed purpose nor are
they so lacking in reasonable proportionality as not to be a real exercise of
power.
5.  I agree that each of the appeals should be dismissed with costs.

JUDGE3
COOPER J  I have read the reasons for judgment of Gummow J.  I agree with the
orders he proposes for the reasons he has given.  I wish only to add my own
observations as to the operation of the test of proportionality when the
question of the validity of delegated legislation arises.
2.  The issue of the validity of delegated legislation poses the ultimate
question whether the delegated legislation is within the regulation or rule
making power conferred by the enabling statute.  This question is answered by
determining :-
     (a) as a matter of statutory construction the ambit and
     statutory object of the regulation or rule making power;
     (b) whether the delegated legislation as an exercise in
     characterisation by reference to its substantive operation
     falls within the power.
3.  The first of these matters requires a consideration of section 25 of the
Export Control Act 1982 which contains the regulation making power.  The
statutory scheme is set out in the reasons of Gummow J and I will not repeat
it.  Sufficient for present purposes is to restate so much of section 25 as is
presently relevant.  The section states:-
     "(1) The Governor-General may make
     regulations, not inconsistent with this Act,
     prescribing matters:
     (a)   required or permitted by this Act to
           be prescribed;  or
     (b)   necessary or convenient to be
           prescribed for carrying out or
           giving effect to this Act.
     (2)   In particular, but without limiting
     the generality of subsection (1), the
     regulations may make provision for or in
     relation to:
     ....
     (g)   subject to subsection (3),
           empowering the Minister to make
           orders, not inconsistent with the
           regulations, with respect to any
           matter for or in relation to which
           provision may be made by the
           regulations".
Regulation 3 of the Export Control (Orders) Regulations (SR 355 of 1982)
provides:-
     "3.  The Minister may, by instrument in
     writing, make orders, not inconsistent with the
     Regulations made under the Act, with respect to
     any matter for or in relation to which provision
     may be made by Regulations under the Act".
4.  The orders in issue in these proceedings were made by the Minister in
exercise of the power contained in Regulation 3 which regulation was enacted
under the power contained in section 25, and in particular section 25(2)(g),
of the Export Control Act 1982.
5.  A general regulation making power substantially in terms, and to the
effect, of section 25(1) was considered in Shanahan v. Scott (1957) 96 CLR 245
where the majority (Dixon CJ , Williams, Webb and Fullagar JJ) said at 250 :-
     "Powers of this kind have been discussed in more
     than one case in this Court:  see Carbines v.
     Powell (1925) 36 CLR 88;  Gibson v. Mitchell
     (1928) 41 CLR 275;  Broadcasting Co. of
     Australia Pty. Ltd. v. The Commonwealth (1935)
     52 CLR 52;  Grech v. Bird (1936) 56 CLR
     228;  Morton v. Union Steamship Co. of New
     Zealand Ltd. (1951) 83 CLR 502, at p 409,
     410.
     The result is to show that such a power does not
     enable the authority by regulations to extend
     the scope or general operation of the enactment
     but is strictly ancillary.  It will authorise
     the provision of subsidiary means of carrying
     into effect what is enacted in the statute
     itself and will cover what is incidental to the
     execution of its specific provisions.  But such
     a power will not support attempts to widen the
     purposes of the Act, to add new and different
     means of carrying them out or to depart from or
     vary the plan which the legislature has adopted
     to attain its ends".
6.  Accordingly the statutory scope, operation and purpose of the Export
Control Act 1982 must be ascertained to set the proper limits of the powers
granted by section 25 and what is properly incidental in carrying the
statutory purpose or scheme into effect.
7.  The second matter for determination is the characterisation of the
delegated legislation by reference to its substantive operation. As Deane J
observed in Richardson v. Forestry Commission (1988) 164 CLR 261 at 308 :-
     "Ordinarily, that process of characterization
     will involve no more than consideration of the
     law's objective legal operation without regard
     to any ulterior legislative purpose or object.
     There are, however, circumstances in which
     characterization of a law requires that regard
     be paid to any such purpose or object.  The
     obvious example of such circumstances is the
     case where the direct legal operation of a law
     does not of itself suffice to characterize it as
     a law with respect to a subject-matter of
     Commonwealth legislative power but some ulterior
     purpose or object which the law was enacted to
     serve may suffice to warrant characterization of
     it as a law with respect to such a subject-matter".
8.  Characterisation may be approached in a number of ways, the choice of
which will be determined by the nature of the statute in which the regulation
or rule making power is sourced and the terms in which that power is expressed
itself.  For example, where the regulation or rule making power is expressed
in general terms as in the present case, the court will be concerned to see
that the delegated legislation objectively does not have, or attempt to
effect, any of the prescribed results identified in the passage from Shanahan
v. Scott cited above.
9.  If the regulation or rule making power is purposive then one approach is
to ask whether the delegated legislation is a reasonable means of attaining
the ends of the regulation or rule making power (Coulter v. The Queen (1988)
164 CLR 350 at 357) or, to put it in another way, whether the regulation goes
beyond any restraint which could be reasonably adopted for the prescribed
purpose (Williams v. Melbourne Corporation (1933) 49 CLR 142 at 155;  South
Australia v. Tanner (1989) 166 CLR 161 at 165, 175 - 179;  Castlemaine Tooheys
Ltd. v. South Australia (1990) 169 CLR 436 at 473).
10.  The test of proportionality operates in this area as a measure of the
limit beyond which the means adopted to achieve the prescribed purpose cannot
go without rendering the delegated legislation, at least to that extent,
invalid.  The substantive operation of delegated legislation must be capable
of being reasonably considered to be appropriate and adapted to achieve the
prescribed purpose.  This requires that there is reasonable proportionality
between the object or purpose and the means adopted to achieve or procure it.
(The Commonwealth v. Tasmania (1983) 158 CLR 1 at 260;  Richardson v. Forestry
Commission at 311- 312, 346;  Nationwide News Pty. Ltd. v. Wills (1992) 66
ALJR 658 at 661, 689, 692.
11.  If the regulation or rule making power is found in a statute the subject
matter of which cannot be described as purposive then the question is whether
there is a real and substantial connection between the delegated legislation
and the subject matter of the grant of power (Burton v. Honan (1952) 86 CLR
169 at 179;  Murphyores Inc. Pty. Ltd. v. The Commonwealth (1976) 136 CLR 1 at
11 - 12);  Nationwide News Pty. Ltd. v Wills at 661). It is not sufficient
that there be merely some connection between the delegated legislation and the
subject matter of the regulation or rule making power.  The connection must be
"so direct and substantive that the regulation is seen really to satisfy one
of the descriptions by reference to which the regulation-making power is
conferred" (per Williams ACJ and Kitto J in Clements v. Bull (1953) 88 CLR 572
at 577).  Where no reasonable mind could justify the delegated legislation by
reference to the purposes of the power, or the subject matter of the power,
the conclusion is that there is no real connection between delegated
legislation and the power (Clements v. Bull at 577, 581).  To formulate the
test in the terms used in Clements v. Bull, is no different to the test:
     "...the Court will not hold the regulation
     invalid unless, having regard to its operation
     in the circumstances to which it applies and to
     the statutory object to which it is directed,
     the regulation could not reasonably have been
     adopted to achieve the object".
(Per Brennan J in South Australia v. Tanner at 176;  see also per Gaudron J in
Nationwide News Pty. Ltd. v. Mills at 689 and the cases cited there).  In the
context of the validity of delegated legislation "reasonableness" does not
connote "fairness".  It is a question whether as a matter of objective reason
and logic the regulation could have been adopted to achieve the object.
12.  Where the likely substantive operation of the delegated legislation in
its impact upon matters beyond the subject matter of the power or matters
incidental thereto is grossly disproportionate to its operation on matters
properly the subject matter of the power, there will be no real or sufficient
connection to sustain the validity of the delegated legislation.  That is, no
reasonable mind could justify the delegated legislation by reference to the
object of the power.  It is the disproportionate operation of the delegation
which denies to it a place in the range of alternative modes of implementation
available to an objective reasonable mind.
13.  The test of proportionality reflects an underlying assumption that the
legislature did not intend that the power to enact delegated legislation would
be exercised beyond what was reasonably proportionate to achieve the relevant
statutory object or purpose;  the test of reasonableness assumes that the
legislature did not intend to confer a power to enact delegated legislation
which enactment no reasonable mind could justify as appropriate and adapted to
the purpose in issue and the subject matter of the grant.   Whether one
describes the test as one of "reasonable proportionality" or
"unreasonableness", the object is to find the limit set by the legislature for
the proper exercise of the regulation or rule making power and then to measure
the substantive operation of the delegated legislation by reference to that
limit.  In my view there is no substantive difference between the tests as
stated.  Support for such a conclusion comes from the majority joint judgment
(Wilson, Dawson, Toohey and Gaudron JJ) in South Australia v. Tanner (1989)
166 CLR 161 at 165:-
     "In the course of argument, the parties accepted
     the reasonable proportionality test of validity
     (cf. Deane J in The Commonwealth v. Tasmania
     (the Tasmanian Dam Case) (1983) 158 CLR 1, at
     p 260), namely, whether the regulation is
     capable of being considered to be reasonably
     proportionate to the pursuit of the enabling
     purpose.  However, they differed in the answers
     to which their application of the test led.  The
     same test, in relation to a power limited to
     regulation, was expressed by Dixon J in
     Williams (1933) 49 CLR, at p 156, as being,
     in substance, whether the regulation goes beyond
     any restraint which could be reasonably adopted
     for the prescribed purpose".
(See also Brennan J at 178 - 179).
14.  Once it is determined that the means adopted by the delegated legislation
is within the ascertained limits of the power of delegation, the choice
adopted to achieve the statutory ends, is a matter entirely for the person
exercising the power and the Court will not intervene by declaring the chosen
method invalid simply because other minds might reasonably have adopted a
different means.
15.  Whether one applies a test of reasonable proportionality, or
unreasonableness, the result is the same in the present case.  I agree with
Gummow J that the Orders in issue were within a proper exercise of the rule
making power conferred by section 25 of the Export Control Act 1982.