Auckland Hebrew Congregational Trust Board v Minister of ,Agriculture HC Wellington CIV 2010-485-1423
[2010] NZHC 2185
•25 November 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2010-485-1423
IN THE MATTER OF Judicature Amendment Act 1972
AND
IN THE MATTER OF New Zealand Bill of Rights Act 1990
AND
IN THE MATTER OF Animal Welfare (Commercial Slaughter) Code of Welfare 2010
AND
IN THE MATTER OF Animal Welfare (Commercial Slaughter) Code of Welfare 2002
BETWEEN AUCKLAND HEBREW CONGREGATION TRUST BOARD First Plaintiff
ANDTHE WELLINGTON JEWISH COMMUNITY CENTRE Second Plaintiff
ANDMINISTER OF AGRICULTURE Defendant
Hearing: 25 November 2010
Counsel: A S Butler and P M Baker for First and Second Plaintiffs
C R Gwyn and P A McCarthy for Defendant
Judgment: 25 November 2010 at Oral
ORAL JUDGMENT OF MACKENZIE J
AUCKLAND HEBREW CONGREGATION TRUST BOARD AND ANOR V MINISTER OF AGRICULTURE HC WN CIV-2010-485-1423 25 November 2010
[1] This is an application for leave to cross-examine the defendant, the Minister of Agriculture, on an affidavit which he has sworn in opposition to this application for judicial review.
[2] The background is that the plaintiffs are representatives of the Orthodox Jewish Community in Auckland and Wellington. The defendant is the Minister of Agriculture who is responsible for the administration of the Animal Welfare Act
1999. Under s 75 of the Act he has power to issue Codes of Welfare in respect to animals. For the plaintiffs, keeping kosher is regarded as a fundamental tenet of faith and practice in Judaism. Among other things, keeping kosher requires that meat for consumption by observed Jews be slaughtered in accordance with the practice of shechita. That practice requires that any animal intended for food must be healthy and uninjured at the time of slaughter. Section 12 of the Act makes it an offence to kill an animal in such a manner that the animal suffers unreasonable or unnecessary pain or distress. It will not be an offence if the animal is killed in accordance with a Code of Welfare issued under the Act. The Code which has been in force has, in general terms, provided for the stunning of animals before slaughter. That practice does not meet the requirements of the practice of shechita and any animals which are pre-stunned will accordingly not be kosher.
[3] There has hitherto been a provision in the Animal Welfare Code for an exemption to permit the slaughter of animals in accordance with the practice of shechita. On 27 May 2010 the Minister issued a new Code under s 75 of the Act. That followed a process of preparation, notification, consultation and recommendation under ss 71 to 74 of the Act. It is relevant to refer to s 73(4) and s 75(1):
73 Matters to be considered
(4) The National Animal Welfare Advisory Committee must, in making recommendations under subsection (3), have regard to—
(a) The feasibility and practicality of effecting a transition from current practices to new practices and any adverse effects that may result from such a transition:
(b)The requirements of religious practices or cultural practices or both:
(c)The economic effects of any transition from current practices to new practices.
75 Issue of code
(1)The Minister may, after considering the recommendation made to the Minister by the National Animal Welfare Advisory Committee under section 74 and after having had regard to the matters specified in section 73, decide—
(a)To issue the code of welfare by a notice in the Gazette after making such changes (if any) to the draft code as the Minister considers appropriate; or
(b)To refer the code of welfare back to the National Animal Welfare Advisory Committee with a request that the committee reconsider 1 or more of the aspects of the code of welfare; or
(c) To decline to issue the code of welfare.
[4] The Code as issued by the Minister contained no exemption which would permit the practice of shechita.
[5] This is a change which is of enormous significance for the plaintiffs. The plaintiffs say that they will be unable to produce kosher meat in any form in New Zealand and any such meat would have to be imported. There is a prohibition on the importation of poultry which would mean that poultry in kosher form could not be obtained. Red meats could be imported from Australia but the plaintiffs say that that is prohibitively expensive. The evidence suggests that kosher lamb chops had been noted with a retail price of $110 per kilogram. Cube roll steaks have been said to cost $64 per kilogram and veal $68 per kilogram.
[6] Such is the significance of the requirement to maintain the observance of kosher practices that great disruption to the Orthodox Jewish community in New Zealand is feared. In one affidavit the deponent notes that any reduction in availability of kosher meat severely impacts on the ability to attract and retain religious leaders and says that in the absence of a strong core of religious leadership the Jewish community of New Zealand cannot imagine that it will be sustainable in the long term. The deponent expresses the view that the current issue is one that
goes to the very survival of New Zealand Jewry. I refer to that not to make any findings of fact in relation to that aspect, which will of course be a matter for the trial judge, but it is necessary to record the importance which this matter has for the plaintiffs.
[7] In consequence, the plaintiffs have issued these proceedings in which they seek a judicial review of the actions of the Minister in issuing the new Code. There are essentially two key aspects to the plaintiffs’ challenge. The first is whether the Animal Welfare Code, and the effective prohibition which it contains of the practice of shechita, is a justifiable limitation in terms of s 5 of the New Zealand Bill of Rights Act 1990 on the rights in ss 13, 15, 19, and 20 of the Bill of Rights Act. The second aspect is a challenge on more conventional jurisdictional review grounds. I do not particularise the grounds in full, but they include allegations that the decision is affected by mistake of fact; that there has been a failure properly to consult; and that regard has been had to irrelevant considerations and proper regard not had to relevant considerations.
[8] The Minister has sworn an affidavit in opposition to the judicial review proceedings in which he sets out the background to his actions in relation to the issuing of the new Code. He has also sworn a second affidavit in opposition to this application for leave to cross-examine. The plaintiffs seek to cross-examine the Minister on a number of aspects of his affidavit evidence. The substantive hearing of this proceeding is due to commence next Monday so that an urgent decision is required. That means that I must necessarily give this decision orally now. The issues which it raises are such that time for further reflection to enable my reasons to be expressed in a better form would have been desirable but that luxury is not available to me.
[9] The test to be applied on an application of this sort is the subject of considerable case law. I do not propose to review that in detail. The proper approach to such an application was set out in the Minister of Energy v Petrocorp Exploration Ltd.[1] Leave will not generally be allowed to cross-examine a Minister
[1] Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA).
in a judicial review proceeding, or indeed to cross-examine deponents generally. The position as to Ministers is described in the Petrocorp case in these terms:[2]
[2] At 352-353.
To ensure that both Ministers and the Courts carry out their true constitutional roles it is important that, when Ministerial decisions are challenged, the Courts should have reliable evidence of the reasons why the Minister acted as he or she did. While it is for the Minister to decide whether to make an affidavit, the value and desirability of an affidavit by the Minister personally has been stressed in this Court in a number of cases …
There is, however, a danger that although a Minister has made a candid and sufficiently full affidavit, the adversary in the proceeding may wish to cross- examine him for purposes having little or no relevance to the Court's task in deciding the case.
… it was said that cross-examination is not permitted as of right in judicial review proceedings and that the Court should not allow a Minister to be cross-examined in such proceedings unless this is clearly necessary to enable the case to be disposed of fairly. … In our opinion they also represent a desirable practice and we accept the Solicitor-General's submission that the practice should be maintained.
[10] So the question which I must address is whether cross-examination in this case is necessary and whether this is one of those rare cases, as they are described in the authorities, in which that course should be allowed.
[11] The plaintiffs’ focus on this application is on three aspects of the Minister’s evidence. The first is the extent to which the Minister had regard to trade related considerations when reaching his decision on the question of an exemption for shechita. The plaintiff alleges that that is not a consideration which the Minister was entitled to take into account. That is not a question for me and I proceed on the basis that it may indeed be a relevant question whether the Minister did have regard to trade related considerations in reaching his decision. Mr Butler in his very cogent and helpful submissions, focused directly on that issue. He submits that there is a need to cross-examine the Minister on what he has said on that topic; that the true issues to be balanced by the Minister were those of animal welfare on the one hand and religious freedom on the other; and that the Minister has taken into account the possible effect which an exemption would have on trade. The possible effect on trade related to two matters:
a) The consequences of what might be seen as a distinction between the permitted practices for shechita and the permitted practices for the production of halal meat for the Muslim communities;
b)The potential implications more widely than that with New Zealand’s trading partners.
[12] The second aspect to which Mr Butler refers is the issue of the Minister’s understanding of the spiritual importance of the practice of shechita and of maintaining a kosher life. He submits that the Minister’s evidence is inadequate as to his consideration of the spiritual importance of this and that cross-examination to establish the position as a matter of fact is necessary. He submits that that is not a question of inquiry into the weight attributed by the Minister to that factor, but to his understanding of the spiritual significance for Jews of these matters.
[13] The third aspect on which cross-examination is said to be necessary is as to what the Minister knew about that cost of imported kosher meat and the availability of kosher meat and the impact, if any, of that factor on the balancing exercise that he undertook.
[14] In deciding whether cross-examination is necessary I need to bear in mind several points about the basis on which judicial review is sought. The first aspect, the balancing of the Bill of Rights considerations, that is whether the provisions of the Code are a justified limitation on the rights to which I have referred, will involve the Court in an exercise of the type described by the Supreme Court in R v Hansen.[3]
That is, generally speaking, an objective evaluation which the Court must undertake
for itself. In that exercise, the weighting given to particular factors by the Minister would not necessarily have significant weight. Mr Butler however submits that the Minister’s evidence in more detail on the matters which would need to be considered in the balancing exercise may be relevant to the degree of deference which is to be accorded to the Minister’s decision.
[3] R v Hansen [2007] 3 NZLR 1.
[15] The second aspect of the judicial review which I need to bear in mind is in relation to the question of whether the Minister has had regard to irrelevant considerations or has not had sufficient regard to relevant considerations. I need to bear in mind that the decision in this case is in the nature of the approval of a form of subordinate legislation. The matters to which the Minister is to have regard are specified in s 75 and the decision is within the area of the exercise of an executive power to make generally binding Codes. It is not a decision which relates directly to the rights of particular individuals. I say that not to underestimate the significance of the decision for the plaintiffs, but to categorise the nature of the decision in administrative law terms.
[16] So with those comments I come to deal with the matters on which Mr Butler submits that cross-examination is required. The first is the extent to which the Minister has had regard to trade related issues in his consideration of the matter. The Minister’s affidavit says that at an earlier stage in his consideration he had been involved in discussions with other Ministers concerning the possible trade implications of the Code. He says that he subsequently accepted legal advice that his decision should not take into account matters relating to trade, and that he should leave those matters to the Prime Minister and Minister Groser, the Minister of Overseas Trade. He says that the legal advice was in very clear terms. He should not be concerned with trade issues when deciding whether to allow an exemption for shechita and thereafter he focused on animal welfare values and freedom of religion and how to resolve the tension between them in the context of commercial slaughter.
[17] The plaintiffs, in their application, take issue with that and they say that the Minister had initially been minded to grant an exemption but that he later changed his mind and approved the Code without an exemption. The plaintiffs submit that the only material put before the Minister in the period between the initial occasion when the Minister was minded to grant an exemption (but delayed a decision) and the final decision, related to trade considerations. The plaintiffs accordingly submit that he must have taken those matters into account.
[18] The Minister in his affidavit in opposition sets out some of the material which was produced in the meantime and comments on that. The plaintiffs submit that
there are other relevant materials on which the Minister’s evidence does not cover. In particular the plaintiffs place reliance on briefing papers to the Prime Minister and Minister Groser which did refer to possible trade concerns arising from an exemption for shechita. I refer in particular to an aide memoire for the Prime Minister in which trade implications are discussed. The Minister addresses that when he says of that aide memoire which was prepared on 21 January 2010 that he did not approve that particular document. He says that it was provided to the Prime Minister’s office but he did not sight it. That aide memoire had apparently, on the Minister’s evidence, post dated the advice which he had that he should not be involved in trade related considerations. The next document was a briefing to Minister Groser dated
10 February which again made reference to trade considerations and to possible trade risks arising from the draft Code. Again the Minister said that that was prepared by the Ministry of Foreign Affairs and Trade, with input from his Ministry, but he was not involved in its preparation.
[19] I have given careful and anxious consideration to whether the Minister should be made available to be cross-examined on this aspect of his evidence. The Minister’s evidence is that he did not take into account trade related matters after he had received the advice to that effect. He has given evidence as to the briefing papers in which trade considerations are mentioned. The Minister’s evidence and the papers themselves will be available to the trial judge. Submissions will be able to be made on what inferences should properly be drawn from them.
[20] Where there is a statement of reasons, and a statement of actions taken, before the Court in the form of an affidavit, the Court will not generally permit cross-examination going beyond that material. Here there is evidence on the issue so that this is not a case where there is no evidence on the point. The affidavit can be read with the background documents and an assessment made by the Court based both on the Minister’s evidence, untested by cross-examination, and the background documents. I am not satisfied that this case is one where cross-examination is clearly necessary so as to make this one of those rare cases where cross-examination is allowed. On my assessment, to allow cross-examination would intrude unduly on the delicate balance between the proper scrutiny by the Court of ministerial actions and the recognition by the Court of the proper scope of the ministerial function.
[21] There is another aspect of the issue of the extent to which regard was had to trade related considerations raised by the plaintiff and that is the possibility that the Minister may have had a pecuniary interest in companies involved in the export of meat, which companies may have had a position on the trade implication of the Code. There is evidence of representations from one of those companies in the material. On this point I am not persuaded that cross-examination is necessary. The extent of the Minister’s shareholdings are apparent both from the Registrar of Pecuniary Interests of Ministers and from the affidavits. There is evidence on which the Court will be able to assess the role which the companies in which the Minister has an interest have taken in this matter. The fact of the Minister’s shareholdings is put forward by the plaintiffs not as suggesting that there is a conflict of interest in the usual sense in the Minister’s position, but it is submitted that it supports the proposition that the Minister must have had regard to trade considerations. That is a submission which can be made on the evidence before the Court and I see no need for cross-examination to pursue that aspect any further.
[22] As to the significance of the exemption to the Jewish community and the cost of obtaining kosher meat if the exemption is withdrawn, the Minister has, in his second affidavit, set out his understanding. He says that he understood that the Orthodox Jewish community could import kosher meat and considered that that would be sufficient to satisfy their needs. His understanding was wrong in respect of kosher chicken meat so he will reconsider that part of his decision. He adds that he assumed that imported meat would be more expensive than meat produced in New Zealand but did not have any specific information about prices of imported kosher meat.
[23] That sets out the Minister’s position in a way that I do not consider requires to be clarified or amplified by cross-examination. Whether his understanding of the importance of the significance of this matter for the Jewish community was appropriate or not will be able to be judged on the basis of that statement in his evidence. As to the question of the cost of kosher meat and the extent to which it would be more expensive, there is the evidence to which I have referred on the extent of the difference. I do not see that cross-examination of the Minister on his
assumption that the imported meat would be more expensive would assist the trial judge to make a finding on that issue.
[24] Those are the main and key provisions on which cross-examination was sought. For the reasons I have given I do not consider that the significant hurdle which must be overcome to demonstrate a need for cross-examination has been overcome. For those reasons the application for leave to cross-examine is refused.
[25] As to costs the parties are agreed that despite the normal desirability of fixing costs on interlocutory matters separately, this is a case where they would be better reserved for consideration by trial judge.
“A D MacKenzie J”
Solicitors: Crown Law, Wellington for Defendant
Russell McVeagh, Auckland for First and Second Plaintiffs
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