Real Milk in Australia

By Bruce Bell

Briefly, only one state in Australia (South Australia) currently has a regulatory regime permitting sale of unpasteurized milk for human consumption. In the state of Queensland, one can legally sell goats milk only, unpasteurized. It would only take a regulation change to widen that to include bovine milk and the national standards allow for a state to permit unpasteurized supply if the state wishes to, but the big processors and public assumptions about the myths of pasteurization being true create strong opposition. We can only conjecture about how much influence big money may have in the harassment my client has endured and the legal absurdities the court has laid claim to as detailed below. (I am, by the way, a long term civil libertarian and a commercial consultant completing a law degree this year, and aware of the nutritional deficits of the quasi foods the transnational corporations find it convenient to market.)

When our dairy industry was recently “de-regulated,” the big processors stopped paying farmers 59 cents a liter, instead paying 30 cents (less a levy to subsidize the impact of many going broke). My client started marketing his Jersey milk (4.8 percent butterfat when the minimum is 3.3 percent) directly to health food stores as “Pet’s Milk.” A great many nutritionally aware people started buying it in large quantities and the cash flow reached a level that would allow saving this third generation family dairy farm.

Our state “Queensland Dairy Authority” then tried to entrap the farmer for supplying unpasteurized milk for human consumption but failed. They sent a “plant,” an inspector posing as a new health shop proprietor, to the farm and he was given some milk as a sample. He secretly tape recorded my farmer client saying pasteurization was bad for food values for people as well as animals. Then, on the basis that the milk laws here define “sell” as “including giving away as a promotion,” they charged him with “selling” his clearly labeled pet milk for human consumption in an unpasteurized state.

Their cooked up “evidence” was inadmissible in court, so after they made him spend thousands on lawyers, they withdrew their action the day of the court hearing, at which time they agreed to sign a deed committing them to not harassing him any further, an agreement the Authority later refused to sign and reneged on when they thought their legislation enabled them to “condemn” any milk product as “not fit for human consumption,” including, it seems, casein-based glue. We pointed this out to the supreme court as an example of the kind of absurdity requiring a court to not interpret the law that way. A proper interpretation of the law would have it that such powers can only be used in relation to milk “intended for sale for human consumption.”

Acting as zealots in protecting the poor gullible public from inadvertently drinking “dangerous” pet food, even when it is clearly labeled and none of their (legitimate) business, inspectors are now intimidating retailers. They are calling on the health food stores selling (our) “Pet’s Organic Fresh Milk” product. Although it is labeled”not for human consumption—animal food only” and there is no control under law here of (non meat) pet food, inspectors are buying retail samples of our milk when it is close to its 12-day-old recommended “Use By Date,” getting it tested and then, on their return visit to the retailer, reporting the product fails the lawful standards, is unsafe or even “dangerous” and it is implied the retailers may get fined or worse for selling it.

The national testing standard applicable to human consumption of milk which they are using bluntly states “Retail samples may not be used.” The testing regime for unpasteurized milk (where states allow that to be sold for people) provides that only fresh milk, taken from the dairy may be used and the testing must be done on a “reasonable” basis. So, apart from the fact it is an inapplicable test, they are using prohibited methodology. Only one-day-old milk may be tested at the processors under this test but they regard testing ten-day-old unpasteurized milk for bacterial levels as “reasonable,” it seems. They do not, of course, engage in testing retail samples of processed milk (which normally has a Use-By Date of up to 20 days), to compare.

The inspectors calling on the retailers are also telling them the Pet’s Milk product caused a cryptosporidium outbreak (5 cases) in people in the local area last year which they characterize as an epidemic, and therefore dangerous to people. There is no evidence to support that claim whatever. We investigated and found it was one illogical parent (all cases were siblings exposed to pets and other vectors of infection) who assumed it was the milk despite the fact that, from a batch of over 1000 liters supplied to shops on any one day, no one else contracted the disease from the milk, meaning it clearly was not the vector of infection. That, however, did not stop the Health Department putting out a press release almost saying it was. One resultant news article opened with the words “Dangerous milk” (is responsible, etc.) which dropped sales volume by two thirds. Litigation in regard to that defamation is under consideration.

We thought the health department’s files might contain data showing no science behind the press release, so we requested the files under Freedom of Information. As a ferocious impediment to disclosure, recent FOI amendments now allow for collection of very high fees, payable in advance for disclosure. We were told we had to pay $1,100 to get the documents which would take 49 chargeable hours to locate and collate. Their legal officer admitted to me (and I later swore an affidavit verifying) that she had already collated the documents in 8 hours. They did, however, have to admit in their letter advising of the prospective charges that they held 524 pages of documents on a dairy farmer with whom they had never had dealings.

Instead of paying, we commenced an action in the state Supreme Court for Judicial Review and injunctions against the Dairy Authority and subpoenaed the Health Department documents. They tried to refuse to comply, but under pressure from us, delivered to the court 292 pages of documents which they said were (all of) “the same documents” as requested under FOI. They also claimed legal privilege over 37 of those pages. We were ready to draw to the court’s attention that 524 pages and 292 pages of “the same documents” cannot add up but our action was dismissed at a Directions hearing.

Despite clear case law showing various valid claims in our case and illegitimate testing producing a nullity as a result, the particular judge found that a written threat to condemn my client’s milk in the hands of his retailers if he was still selling it by December 4th, was not a “decision” which the court could review, because it was not a decision of a “substantial nature affecting my client’s interests.” To dismiss our application, the court also had to find that the testing methods used by the Dairy Authority (described above) were perfectly valid, so the judge did find that to be so. Interestingly, in their evidence, the Dairy Authority stated that their campaign was motivated by complaints from three named large milk processors that our product was placed alongside theirs in the shops and selling too well for their liking.

We are considering all options presently, except giving up. One thing we will do in any event is set up a farmer-consumer direct supply arrangement (cow-share) and network to create a pure food lobby. The state food standards are under review this year. The meat and dairy authorities are being combined into one and we suspect pet foods may be heavily regulated under the new standards if we don’t lobby hard.

Bruce Bell is a lawyer in Queensland, Australia who is defending a dairy farmer selling raw milk as pet food.