New Zealand Animal Law Association v Attorney-General
[2022] NZHC 1844
•29 July 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-360
[2022] NZHC 1844
BETWEEN THE NEW ZEALAND ANIMAL LAW ASSOCIATION
First Applicant
SAVE ANIMALS FROM EXPLOITATION
Second ApplicantAND
THE ATTORNEY-GENERAL
First Respondent
THE NATIONAL ANIMAL WELFARE ADVISORY COMMITTEE
Second Respondent
THE NEW ZEALAND RODEO COWBOYS ASSOCIATION INCORPORATED
Third Respondent
Hearing: 11 and 12 July 2022 Counsel:
V L Heine QC, S M Bisley, E L Bennett, and B H Woodhouse for Applicants
K G Stephen, R A Elvin, and H L S Bergin (VMR) for First Respondent
R L Roff for Second Respondent
J V Ormsby and J A Higby for Third RespondentJudgment:
29 July 2022
JUDGMENT OF CHURCHMAN J
Introduction
[1] The issue before the Court is how the Minister for Agriculture went about making the decision to issue the Code of Welfare: Rodeos (the 2018 Code) pursuant
THE NEW ZEALAND ANIMAL LAW ASSOCIATION v THE ATTORNEY-GENERAL [2022] NZHC 1844 [29 July 2022]
to the Animal Welfare Act 1999 (the Act). The applicants have brought judicial review proceedings in respect of the decision to issue the 2018 Code on the grounds of failure to follow process, error of law and improper purpose.1 By way of an amended statement of claim dated 19 May 2022 the applicants seek declaratory relief, particularly:
(a)a declaration that the 2018 Code in its entirety or as it relates to particular rodeo practices is unlawful;
(b)an order setting aside the 2018 Code in its entirety or as it relates to particular rodeo practices; and
(c)costs.
[2] The grounds of review alleged are said to apply to the statutory powers of decision under ss 74 and 75 of the Act.
[3] It is important to note that this decision is not about the lawfulness of rodeos generally or whether rodeos should be banned. It relates to the consequences that should follow from agreed defects in procedure in issuing the 2018 Code.
Factual background
Parties
[4] The applicants are the New Zealand Animal Law Association (NZALA) and Save Animals From Exploitation.2 The respondents are:
(a)the Attorney-General on behalf of the Minister for Agriculture, being the Minister responsible for the administration of the Act, including the
1 The case brought by the applicants is substantially similar to the case of New Zealand Animal Law Association v Attorney-General [2020] NZHC 3009, (the Pigs case) in which the applicants challenged the Code of Welfare: Pigs (2018).
2 Both are incorporated societies registered pursuant to the Incorporated Societies Act 1908, with the broad purpose of combatting, preventing, and raising awareness of animal abuse, exploitation, and cruelty.
issue, revocation, amendment, and review of codes of welfare under pt 5 of the Act;
(b)the National Animal Welfare Advisory Committee (NAWAC), established under pt 4 of the Act; and
(c)the New Zealand Rodeo Cowboys Association (NZRCA), an incorporated society whose primary purpose is to administer rodeo fixtures and promote rodeo activities.
Rodeos
[5] Rodeos are a type of public event whereby various competitors compete in a number of displays and contests involving humans, cattle, and horses. Schedule 1 of the 2018 Code defines a rodeo as any public event that involves:
• bareback bronc riding
• barrel racing
• bull or steer riding
• calf riding
• rope and tie
• saddle bronc riding
• steer wrestling
• team roping
or any event which calls itself a rodeo.
[6] The primary purpose of rodeos is entertainment. There was some debate between the parties as to whether rodeos might also be described as sport or have an education component. However, nothing would seem to turn on this. Section 69 of the Act clearly provides for codes of welfare relating to types of entertainment in which animals are used. Rodeos are properly the subject of a code of welfare.
The Act
[7] The Act came into force on 1 January 2000. The purpose of pt 1 of the Act is to “ensure that owners of animals and persons in charge of animals attend properly to the welfare of those animals”.3 The Act has been described by the Court of Appeal as
3 Animal Welfare Act 1999, s 9.
“the single most important piece of legislation in New Zealand relating to the protection of all kinds of animals under human control”.4
[8] The Act adopts an animal welfare approach rather than an animal rights approach.5 An animal welfare approach permits the use of animals for food, clothing, entertainment or experimentation provided it occurs humanely. An animal rights approach would limit or ban such activities.
[9] In addition to the power for the Minister to make regulations, the Act provides that the Minister may, after meeting procedural obligations, issue codes of welfare.6 Codes of welfare establish minimum standards for persons caring for animals and include recommendations on best practice.7 They may relate to a particular species of animal, or animals used for specified purposes or types of specified entertainment in which animals are used.8 Codes of welfare are regulatory mechanisms for expanding on the Act’s definition of welfare. They supply a level of detail that could not feasibly be included in the Act. There are some 18 codes currently in force.
[10] The Act is prescriptive as to how a code can come into being. Before a code can be issued by the Minister, it must be publicly notified and consulted on by NAWAC.9 Certain matters must be considered by NAWAC before a code is recommended to the Minister, at which time NAWAC must be satisfied that the proposed standards are the minimum necessary to ensure that the purposes of the Act will be met.10
4 Balfour v R [2013] NZCA 429 at [12] and Erickson v Ministry for Primary Industries [2017] NZCA 271, [2017] NZAR 1015 at [31].
5 At the third reading of the Bill, the then Minister said: “The Bill focuses on punishing acts of cruelty, and adopts an animal welfare rather than an animal rights philosophy.” (Speech of Hon John Luxton, Hansard, Vol 580 at 1005, 5 October 1999).
6 Animal Welfare Act 1999, s 75(1)(a).
7 Section 68.
8 Section 69.
9 Sections 71 and 72.
10 Section 73.
NAWAC
[11] NAWAC is an advisory body made up of subject matter experts, appointed on the basis of their expertise in animal welfare and science.11 NAWAC’s functions are to advise the Minister on issues relating to the welfare of animals, develop and advise the Minister on codes of welfare, and recommend to the Minister that regulations be made under s 183A prescribing animal welfare standards or requirements.12
The Rodeo Code
[12] Codes are reviewed from time to time. The first Rodeo Code was the Animal Welfare (Rodeos) Code of Welfare 2003 dated 1 January 2004 (the first Rodeo Code). In 2012, NAWAC formed a rodeo subcommittee to undertake a review of the first Rodeo Code.13 On 12 October 2012, the draft Animal Welfare (Rodeos) Code of Welfare 2014 was publicly notified for consultation. Following the receipt of submissions, further review, and reporting to the then Minister of Agriculture by NAWAC and the Ministry for Primary Industries (MPI), the Code of Welfare: Rodeos 2014 (the 2014 Code) was issued and came into force on 31 October 2014. These proceedings do not challenge the 2014 Code.
Animal Welfare Amendment Act (No 2) 2015
[13] The Act was amended in 2015 by the Animal Welfare Amendment Act 2015. Prior to amendment, the former s 73(3) and (4) had provided for an overriding “exceptional circumstances” exemption for recommending minimum standards for practices that did not fully meet the welfare obligations in the Act. This exemption had permitted NAWAC in “exceptional circumstances” to recommend non-compliant minimum standards under the Act. These could continue indefinitely.
[14] The consequence of the repeal of this exemption was that minimum standards in a code of welfare were required to now fully comply with the obligations in the Act. Non-compliance could only be authorised by regulations made under s 183A(2),
11 Animal Welfare Act 1999, s 58.
12 Section 55(2).
13 The first Rodeo Code replaced the Code of Recommendations and Minimum Standards for the Welfare of Animals Used in Rodeos, which was made in 1992 by NAWAC’s predecessor, the Animal Welfare Advisory Committee.
which must contain specific timeframes for non-compliant practices to be transitioned or phased out. It was the 2015 Amendment Act that introduced the power to enact directly enforceable regulations which “[complement] the existing codes of welfare”.14
2018 reports
[15] In 2018, a NAWAC panel was appointed to undertake an analysis of rodeos and to evaluate the animal welfare impact of each individual event. This occurred following a meeting between NAWAC and the Associate Minister of Agriculture (Hon Meka Whaitiri) on 14 February 2018, during which the Minister requested advice on animal welfare in rodeos.
[16] The NAWAC report was entitled Rodeo events – How do they impact the sentient animal? and was completed in May 2018. The report was presented in final form to the Minister on 31 May 2018. On the same day, Dr Gwyneth Verkerk (the chairperson of NAWAC) wrote to the Associate Minister of Agriculture recommending that non-regulatory options aimed at increasing the welfare of animals in rodeo be implemented, saying that:15
[NAWAC] considers that there are animal welfare concerns with some aspects of rodeo and that the industry may not be aiming to achieve the recommended best practices as stated in the rodeos code of welfare, in particular, those outlined in Part 9 of the Code, which describe the need for development of a welfare assurance system for rodeos.
Recommendation
NAWAC considers that several non-regulatory options aimed at increasing the welfare of animals in rodeos could be pursued. Should you wish to adopt this recommended approach, the committee will discuss with the [NZRCA] and other rodeo industry bodies, supported by [MPI], to agree upon an appropriate time frame in which the following non-regulatory options can be proposed, and then implemented by industry.
[17] After detailing various non-regulatory options relative to different rodeo events, Dr Verkerk stated:16
14 Animal Law Association v Attorney- General [2020] NZHC 3009 at [22].
15 Second affidavit of Gwyneth Verkerk, 16 May 2022, exhibit GAV-M at 3.
16 At 5.
NAWAC therefore recommends that:
1. The above non-regulatory options are brought to the attention of the rodeo industry in order to address the concerns that NAWAC has around rodeos.
2. A forum that meets periodically is established where these options can be discussed. NAWAC would expect progress to be made on implementing the recommendations within 12 months and will periodically monitor progress thereafter.
[18] The NAWAC report was attached to Dr Verkerk’s letter. It was clearly developed in response to a request for advice by Minister Whaitiri.17 The report was prepared by a panel of nine experts using a Five Domains model approach to assess the impact of individual rodeo events on the welfare of the animals involved.18 It identified seven individual events along a spectrum of no concern, minor concerns, moderate concerns, and serious concerns. The report considered that six of the seven events assessed created moderate to serious animal welfare concerns and made a suite of non-regulatory recommendations for addressing those concerns. In her second affidavit, Dr Verkerk states in respect of the recommendations made in the report that:19
NAWAC was comfortable that implementation of the recommendations above would address its concerns and should also ensure improvements in reporting. NAWAC considered this important as a means to acquire more accurate data and information which would assist future reviews. This decision also had a time-bound safety net in that it was made clear to NZRCA that if the recommendations were not implemented in a timely way, regulatory action would be taken.
[19] Following consideration of Dr Verkerk’s letter and the accompanying report tendered by NAWAC, the Minister agreed to the progression of several non-regulatory options for the ongoing management of rodeos.
[20] During 2018 NZALA also commissioned its own report, released in March 2018, entitled The Legal Status of Rodeo in New Zealand (the NZALA report). The
17 Second affidavit of Gwyneth Verkerk, 16 May 2022, exhibit GAV-N at 4.
18 The Five Domains model is an analytical tool designed to facilitate the assessment and grading of animal welfare indicators developed from the principles of the Five Freedoms of the Act which are sufficient food and water, adequate shelter, opportunity to display normal behaviour, protection from injury, pain and disease and avoidance of mental suffering and opportunity to experience positive wellbeing.
19 Second affidavit of Gwyneth Verkerk, 16 May 2022, at [30].
NZALA report expressed the view that the 2014 Code was unlawful, because it authorised practices that caused harm to animals involved in rodeo.
The 2018 Code and Regulations
[21] In 2018, in a separate workstream to the NAWAC report, MPI undertook work to update the codes of welfare made under the Act. On 29 March 2018, the Animal Welfare (Care and Procedures) Regulations 2018 were introduced by Order in Council. These regulations amended all the animal codes of welfare.20 In the 2018 Code, the regulations added a prohibition against the use of fireworks at rodeos. The applicants were consulted in the development of these regulations.
[22] In a briefing paper dated 15 August 2018, MPI sought the Minister’s approval to “reissue” 17 codes of welfare that were amended by the 2018 regulations. That briefing paper recorded that NAWAC had been consulted and recommended the reissuing of the codes, but did not refer to the NAWAC or NZALA reports. It stated that:
Schedule 2 of the [2018] Regulations made consequential amendments to definitions and minimum standards in the Codes to align them with the Regulations. These amendments take effect at the same time as the Regulations (1 October 2018).
Further minor and technical amendments are required to the Codes to ensure they are consistent with the Regulations. These amendments will ensure recommended best practice and wider information sections in the Codes are consistent with the intent of the Regulations.
The risk of not reissuing the Codes is that stakeholders could refer to outdated publications, resulting in unclear expectations around their obligations and potentially undermining MPI’s enforcement action under the standards.
MPI is satisfied the minor and technical amendments proposed to the Codes will not materially affect the purposes of the Codes and that therefore fall within the scope of an amendment under section 76 of the Act. Section 76 allows you to make amendments of a minor nature.
NAWAC has been consulted and recommends you reissue the above Codes. NAWAC has written to you confirming this.
[23] On 1 October 2018, the Minister (then Hon Damien O’Connor) revoked the 2014 Code and issued the 2018 Code. It is this decision that the applicants allege was
20 It was variously asserted that 17 or 18 codes were amended. The precise number is unimportant.
unlawful on the basis that it did not comply with the procedural requirements of the Act. They also allege that it authorised activities contrary to the purpose of the Act. The Gazette notice that was published in respect of the issue of the 2018 Code stated:21
I hereby give notice that, under section 76 of the Animal Welfare Act 1999, minor amendments have been made to a number of codes of welfare and consequently the following codes of welfare have been reissued.
[24]The 2018 Code states:22
ISSUING AUTHORITY
This Code of Welfare is issued by the Minister of Agriculture, by a notice published in the Gazette, under section 75 and 76 of the Animal Welfare Act 1999, after having complied with the matters specified in section 75(1) and 76(2).
[25] The 2018 Code was not publicly notified or subject to public submissions. It is common ground that it is materially identical to the 2014 Code.
Positions of the parties
Failure to follow process
[26] The applicants submit the Minister and/or NAWAC did not comply with the procedural requirements for the promulgation of new codes. They allege that in making recommendations to the Minister, NAWAC acted unlawfully by failing to publicly notify the 2018 Code as a draft code, failing to consider whether to consult, and failing to provide the report required by s 74 of the Act. This is required when the Minister “issues” new codes.
[27] Mr Stephen for the Attorney-General concedes that an error was made with respect to identifying the power being exercised by the Minister in “issuing” the 2018 Code. Counsel for NAWAC also made this concession, based on the conclusion of Cull J in New Zealand Animal Law Association v Attorney-General (the Pigs case).23
21 Gazette Notice No MPI 895; affidavit of Gwyneth Verkerk in support of application for adjournment, 23 September 2021, exhibit GAV-4.
22 Code of Welfare: Rodeos 2018 at 1.
23 The Pigs case, above n 14, at [168]–[173].
In that case, Cull J held in respect of the Code of Welfare: Pigs 2018, which was issued on the same day and in same fashion as the 2018 Code, that:24
…my finding that the 2018 Code was a new code and that its “issue” did not comply with the procedural requirements of the Act does not warrant a declaration that the entire Code is invalid. Ms Roff for NAWAC submitted that if there were any errors relating to the way in which the 2018 Code was reissued, it was a minor defect or technical irregularity only, not a reviewable error that would warrant granting relief on its own and revoke the whole Code. I accept that position.
[28] Given the findings of Cull J, the parties are agreed on the nature of the requirements applying to the issue of codes, and that there was a defect in respect of the issue of the 2018 Code. While the parties placed a great deal of other material before the Court, the real issue for determination in this case is whether the acknowledged defect in procedure should have the effect of invalidating the Code and what relief the applicants might be entitled to.
[29] Mr Stephen submits that the error was one of procedural irregularity only. The power being exercised should have been identified as an amendment pursuant to s 76(1)(b). As there is no obligation to consult on minor changes to a code under s 76, Mr Stephen submits that the issuing of the 2018 Code, while procedurally deficient, was substantively lawful.
[30] Ms Roff for NAWAC submits that the minor amendments made to the 2014 Code were necessary to align it with the new Animal Welfare (Care and Procedures) Regulations 2018. She submits that amendments made to codes of welfare by regulation are possible not only via s 76(1)(b) but also through s 183A(1)(b). Amendments to codes of welfare pursuant to s 183(1)(b) do not have to be publicly notified or consulted on, by virtue of s 183A(10).25
[31] The applicants submit that the present case may be distinguished from the Pigs case in that the procedural irregularity is more than minor. They submit that the
24 The Pigs case, above n 14, at [173].
25 Section 183A(10) provides “The Minister must consult [NAWAC] before recommending the making of any regulations under this section (other than regulations already proposed by the Committee), but nothing in sections 71 to 75 applies to the making of regulations under subsection (1)(b).”
Minister’s failure to follow the statutory procedure deprived them of the opportunity to ensure that decisions made by NAWAC/the Minister were lawful. This is essentially the same argument as the second ground of review. They submit that the presence of the NAWAC and NZALA reports relating to rodeos created a situation where compliance with the public notification and consultation requirements was essential.
[32] Mr Stephen contests this submission, saying that the applicants have suffered no prejudice, because, if the correct process had been followed, the Minister would have amended the 2014 Code pursuant to s 76(1)(b), which would have been lawful. He submits that the Minister is not required to comply with ss 71 to 75 when making such amendments. The applicants were not deprived of the opportunity to ensure decisions were made lawfully, because the power existed to amend the 2018 Code without their input. Ms Roff submits that as consultation did occur in respect of the 2018 regulations, in reality the applicants were not deprived of an opportunity to ensure that decisions made by NAWAC and the Minister were lawful, if in the event their participation was required.
[33] Ms Heine QC for the applicants challenged the contention that when exercising a power conferred by s 76, the Minister was not bound by the procedural obligations in relation to the creation of codes set out in ss 71 to 75. She submitted that whether the Minister was exercising a power under s 76(1)(as) or s 76(1)(b), the procedural obligation was the same.
[34] In response, Mr Stephen pointed out the practical difficulties such an approach would cause and submitted that these consequences supported the interpretation that, when exercising a s 76 power, the various procedural steps for the creation of codes did not need to be complied with.
[35] In relation to s 76(1)(a), which relates to the revocation of a code or part of a code, Mr Stephen submitted that the main reason a code is revoked is to replace it with a new code that will have been created in accordance with the procedural requirements. Therefore, requiring the revocation of the old code to go through the same process is unnecessary.
[36] In relation to s 76(1)(b), Mr Stephen submitted that if the applicants’ submission was correct, all 18 codes would have needed to go through the same detailed procedure. He submitted that the time and cost involved in doing this would have entirely negated the benefit of the streamlined process authorised by s 76 for amendments of a minor nature. I accept those submissions.
Error of law
[37] The applicants submit that the Minister and NAWAC misunderstood and misapplied the legal test for issuing a code of welfare. They submit that NAWAC can only be satisfied that the proposed standards are the minimum necessary to ensure that the purposes of the Act are met, if it considers whether any pain or distress suffered by animals subject to a code is necessary or reasonable. The applicants submit that there was no evidence before NAWAC or the Minister when the 2018 Code was recommended or issued that established that the pain or distress suffered by rodeo animals was reasonable or necessary for any purpose. They submit that there is no evidence that NAWAC or the Minister turned their minds to that required assessment or as to whether the standards contained in the 2018 Code met the purposes of the Act.
[38] The Attorney-General and NAWAC submit that the applicants’ submissions under this ground of review are predicated on the assumption that the Minister was issuing a new code, rather than merely amending it pursuant to s 76(1)(b). They submit that the Minister was intending to make minor amendments, and while the Minister incorrectly identified what was occurring, the obligations contended by the applicants do not apply to the making of minor amendments. As such, they contend that the NAWAC and NZALA reports were irrelevant. In any case, in the provision of the NAWAC report, NAWAC was not exercising any statutory powers under ss 71 to 75 of the Act; it was merely responding to a request for advice from the Minister. I accept this submission.
[39] They submit further that NAWAC did consider and was satisfied, in the course of formulating and providing its advice to the Minister in 2018, that despite welfare concerns around aspects of rodeo, there were sufficient safeguards to ensure the
welfare of rodeo animals was protected.26 The respondents submit that the reissuing of the 2014 Code in 2018 was not directed to the regulation of rodeos, but rather the unification of all codes of welfare under the Act with the regulations promulgated in March 2018.
Improper purpose
[40] The applicants submit that in exercising their statutory powers, the respondents failed to promote and/or frustrated the purpose of the Act. They submit that the purpose of the 2018 Code is at odds with the purpose and the scheme of the Act. They submit that the practice of rodeo results in animals experiencing unnecessary or unreasonable pain or distress and/or wilful or reckless ill-treatment.
[41] The applicants submit that the 2018 Code effectively permits conduct which does not fully meet the obligations contained in ss 10 or 28, and provides a defence to conduct which, but for the 2018 Code, would be an offence under the Act. They submit that the issuing of the Code was accordingly for an improper purpose and/or ultra vires because it exists for the purpose of preventing the prosecution of rodeo organisers.
[42] Mr Stephen contests these submissions, calling them “a Wednesbury unreasonableness challenge in disguise” which he submitted Cull J declined to consider in the Pigs case.27 He submits that the proper means of addressing the concerns of the applicants is by way of a review of the 2018 Code in accordance with the Act.
[43] Mr Stephen submits that the assessment required to assess relevant considerations of good practice and scientific knowledge is for NAWAC, relevant experts and policy makers, rather than the courts. Ms Roff made substantially the same submission. They both submit that the role of the Court is to identify the legal limits of the power, rather than assessing the merits of its exercise. They further submit that the claim that the 2018 Code is unlawful because it is inconsistent with the overall
26 See second affidavit of Gwyneth Verkerk, 16 May 2022, at [58].
27 The Pigs case, above n 14, at [149].
purpose of the Act depends on an assessment of whether each rodeo event is consistent with the Act. They submit that the Court is not equipped to undertake that assessment and that Parliament established NAWAC in recognition of the need for a dedicated body of experts. The Attorney-General and NAWAC submit that the Court should abide by case law in which the courts have expressed reluctance to delve into scientific disputes where the Court is not in a position to definitively adjudicate on scientific opinions.28 This is especially so in the context of judicial review proceedings.29
[44] The third respondent, NZRCA, adopted the position that the practice of rodeo, and the 2018 Code are not contrary to the purpose of the Act.30 They submit that unlike the Pigs case, where the use of farrowing crates and dry sow stalls was unable to be undertaken in a manner that met the purposes of the Act, neither NAWAC nor the Minister have ever considered rodeo activities to be non-compliant with the Act.31 NZRCA submit that the 2018 report did not conclude that rodeo practises were non- compliant with the Act. NZRCA submits that judicial review proceedings are not the proper forum for the resolution of factual disputes. NZRCA also contests the evidence offered by the applicants upon a factual basis. In response to the evidence of Professor Laven that, “…it is clear that all of those rodeo events, with the exception of barrel racing, cause significant pain and distress to the animals involved”, counsel notes the contents of the MPI briefing paper to the Associate Minister in June 2018 which commented on the NZALA report and said:
MPI has reviewed the [NZALA] report and considers that if the minimum standards in the Code of Welfare: Rodeos (Code) 2014 are met there are sufficient protections in place to prevent unreasonable and unnecessary pain or distress … in terms of the existing minimum standards set out in the Code, rodeos are a largely compliant activity in New Zealand. There are relatively
28 See New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd [2012] NZHC 2297, [2013] 1 NZLR 75 at [47] and Hawkins v Davidson [1991] 2 NZLR 530 (CA) at 540.
29 See R (Law Society) v Lord Chancellor [2018] EWHC 2094, [2019] 1 WLR 1649 at [36] and
GF v Minister of COVID-19 Response [2021] NZHC 2526, [2022] 2 NZLR 1.
30 NZRCA only provided direct submissions on the third ground of review.
31 See New Zealand Animal Law Association v Attorney-General [2020] NZHC 3009. Central to Cull J’s reasoning was that NAWAC had changed its views on the use of farrowing crates and dry sow stalls in a manner that was contrary to the intention of Parliament in passing the 2015 Amendment Act. In the present case, while expressing concerns as to particular practises, NAWAC has never adopted the position that rodeo activities in their entirety are contrary to the purposes or obligations inherent in the Act. Particularly, in respect of their 2018 report, they remained of the opinion that the standards in the relevant code were the minimum necessary to respect the purposes of the Act. This is set out in Dr Verkerk’s second affidavit.
few substantive complaints established against rodeos each year, with education or a written warning identified as the proportionate response …
[45] Counsel submits that the factual differences between the parties are not appropriate for resolution in judicial review proceedings.
Relief
[46] In the Pigs case, Cull J declined to make a declaration that the entirety of the Pigs Code was invalid, despite findings that the regulations and minimum standards in question were unlawful and invalid. Her Honour instead ordered that the relevant provisions should be severed from the remainder of the Code.32
[47] The applicants submit that the present case can be distinguished because their allegations apply to the 2018 Code in its entirety, rather than to specific elements of it. They submit that the central purpose of the 2018 Code is inconsistent with the purpose of the Act, in that it exists to enable rodeos to continue despite animal welfare concerns. They submit that the fact that the Minister is presently consulting on a new code is irrelevant to the question of relief.
[48] Mr Stephen submits that there are a number of factors that support a refusal to grant relief. These include the minor and procedural nature of the error, the fact that NAWAC is currently undertaking a review of the 2018 Code, that the practical effect of invalidating the 2018 Code would mean that there is no code, and that there was no challenge to the 2014 Code, which the 2018 Code is materially identical to. Mr Stephen submits that the Court should either, validate the “reissue” of the 2018 Code, exercise its discretion and decline relief; or, if it considers relief is necessary, direct the reconsideration of the Minister’s decision to revoke the 2014 Code and reissue the 2018 Code.
Analysis
[49]The issues for determination are:
32 The Pigs case, above n 14, at [198]–[199].
(a)Should the acknowledged procedural defects in the issuing of the 2018 Code result in a declaration of invalidity?
(b)Have the applicants, as interested parties, sustained prejudice in not being heard on the decision to issue the 2018 Code?
(c)Is this an appropriate case for the application of s 19 of the Judicial Review Procedure Act 2016?
[50] On the first issue, Cull J’s reasoning at [168]–[173] of the Pigs case is determinative. For the reasons articulated by Cull J, the Act does not provide for the revocation and reissue of a code. The process followed was therefore unlawful. But that finding does not determine the issue of whether there was a substantive irregularity warranting quashing the code.
[51] The applicants contend that this case is different from the Pigs case and that justifies me coming to a different conclusion as to relief. However, the material facts appear to me to be the same.
[52] The 2018 Code was amended as a direct result of the passing of the Animal Welfare (Care and Procedures) Regulations 2018. Those regulations were of general application and their only connection with rodeos was reg 46 which prohibited fireworks at rodeos.
[53] Regulation 63 and Schedule 2 made minor amendments to minimum standards 4 and 5 of the 2014 Code. The purpose of the revocation and “reissue” of the 2014 Code was to align it with the regulations. It was common ground that there was no material difference between the 2014 and 2018 Codes. It is untenable to suggest that the purpose of the revocation and “reissue” of the 2018 Code (and all the other codes) was to prevent the prosecution of rodeo organisers.
[54] Amendments made to codes of welfare by regulation through s 183A(1)(b) do not have to be publicly notified or consulted on by virtue of s 183A(1).
[55] There had been extensive notification and consultation in the making of the regulations, including on the proposed amendments to minimum standards in the 2014 Code contained in Schedule 2 of the regulations. NAWAC was consulted on the regulations as was required by s 183A(10), as were the applicants.33
[56] Section 76(1)(b) allows the Minister to make amendments of a minor nature to codes without having to comply with the procedural requirements of ss 71 to 75. What is required in respect of such amendments is that the Minister consult NAWAC in accordance with s 76(2), which was done, and that the amendments be made by notice in the Gazette, which was also done.
[57] Given my acceptance that the 2018 Code introduced only minor amendments to the 2014 Code, the applicants have not sustained any prejudice in not being consulted. Any failure to consult does not justify the relief sought.
[58] NAWAC has undertaken a review of the Rodeo Code in the past and has complied with the relevant procedural requirements. It is undertaking such a review at the moment. That review is a comprehensive and time-consuming exercise and involves extensive consultation, including with the applicants. It will also involve NAWAC, as a panel of experts, considering and forming a view on the contentious scientific and ethical evidence relating to rodeos and animal welfare. This Court is simply not equipped to analyse that scientific and ethical evidence in a meaningful way in these judicial review proceedings.
[59] Counsel for the applicants submitted that because the new code would take a considerable time to prepare, “relief should not be postponed indefinitely”. Allowing the procedure for the formation of a new code to run its normal course does not postpone relief indefinitely. It simply allows for the process of extensive consultation and consideration of complex issues to be undertaken in a way that permits full consultation with all stakeholders including the applicants.
33 Cull J in the Pigs case expressly found, at [172], that there was extensive public notification and consultation in the making of the regulations and in respect of the amendments to the 2018 code and that “In that sense the Minister’s failure to properly issue the code had no substantive effect on its own.”
[60] Section 19 of the Judicial Review Procedure Act 2016 confers a discretion on the Court to refuse to grant relief for a defect in form or technical irregularity. The respondents invite me to exercise this discretion. For the reasons discussed above, just as Cull J was,34 I am satisfied that a defect in form or technical irregularity has occurred here.
[61] The 2014 Code could and should have been amended by using the s 76 procedure. The requirements of s 76(1A) and (2) were met.
[62] The fact that a full review of the 2018 Code, involving extensive consultation, is presently underway, also supports a decision not to grant the relief sought. That process is the most appropriate way for the applicants to convey to NAWAC their concerns and the evidence upon which those concerns are based.
[63] The practical effect of granting the relief sought would be that there was no Rodeo Code, given that the 2014 Code has been revoked. Although breaches of the code are not actionable in themselves, compliance with a code (where one exists) can be a relevant issue in a prosecution.35 It is therefore undesirable for there to be no code currently in existence.
[64] Section 19(2)(b) of the Judicial Review Procedure Act authorises the Court to make an order validating a decision which has already been made, despite a defect or irregularity.
[65] The only unlawfulness that the applicants have established is the revocation and “reissue” of the code. This can properly be described as a minor defect or technical irregularity. It does not warrant the relief of quashing the whole code.
34 The Pigs case, above n 14, at [173].
35 Section 13(1A) of the Act provides that in a prosecution for an offence under s 12 of the Act, evidence that a relevant code of welfare was in existence at the time of the alleged offence and that a relevant minimum standard in the code was not complied with is rebuttable evidence that the person charged with the offence failed to comply with the Act or contravened the provision of the Act to which the offence relates. Section 13(2)(c) provides that it is a defence to a prosecution if the relevant welfare standards in a code were complied with or exceeded.
[66] This is not a situation where there was no power to make the minor amendments that were made to the 2014 Code. That power existed under s 76(1)(b).
[67] The applicants relied on the decision in Air Nelson Ltd v Minister of Transport for the proposition that, on a finding of unlawfulness, they were entitled to relief.36 However, the Courts have adopted a more nuanced approach since then.37
[68] The question of prejudice is relevant.38 There is no obvious prejudice to the applicants in declining to quash the 2018 Code, let alone anything that could be described as substantial prejudice. They have not lost the opportunity to be consulted on any significant change to the Code. They are in fact presently participating in a consultation process with NAWAC in relation to the current statutory review of the 2018 Code pursuant to s 78(1) of the Act.
[69] In these circumstances, it is appropriate to exercise the power given by s 19(2)(b) of the Judicial Review Procedure Act and validate the 2018 Code, and I do that.
Summary of findings
[70] While there was a technical error in describing the 2018 Code as being a “reissue”, the Minister intended to exercise powers that were lawful pursuant to s 76. Such an error is unfortunate. However, its effect should not render the 2018 Code unlawful, as that would be a disproportionate response. The only changes made were in the nature of amendments within the powers of the Minister pursuant to s 76. This ground of review must fail.
[71] On the second issue, the arguments of the respondents are persuasive. The errors of law contended for by the applicants depend on a finding that the amendment of the 2014 Code, resulting in the 2018 Code, was subject to the requirements
36 Air Nelson Ltd v Minister of Transport [2008] NZCA 26.
37 See, for example, Rees v Firth [2011] NZCA 668, [2012] 1 NZLR 408, Tauber v Commissioner of Inland Revenue [2012] NZCA 411, [2012] 3 NZLR 549 and Jones v Teaching Council [2021] NZHC 1581 at [225].
38 See Graham Taylor Judicial Review A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at 185.
contained in ss 71 to 75. That would be contrary to the terms of the Act. The applicants have not sustained prejudice in not being heard.
[72] It is not appropriate for the Court to inquire into the question of whether each individual rodeo event is consistent with the purpose of the Act. That is the role of NAWAC, who is currently undertaking a review of the 2018 Code. Cull J’s reasoning in the Pigs case at [187] to [196] is also persuasive in this respect.
Outcome
[73] The application for judicial review is dismissed. The 2018 Code is validated under s 19(2)(b) of the Judicial Review Procedure Act.
Costs
[74] The parties are encouraged to settle costs. If no agreement can be reached, the respondents are to file memoranda no greater than three pages in length within 15 working days of the date of this decision, with the applicants to file memoranda in reply of no greater than three pages in length within 10 days of receipt of the respondents’ memoranda. I will then deal with costs on the papers.
Churchman J
Solicitors:
Buddle Findlay, Wellington for Applicants Crown Law, Wellington for First Respondent
Wakefields Lawyers Limited, Wellington for Second Respondent Tavendale and Partners Ltd, Christchurch for Third Respondent
Counsel:
V L Heine QC S M Bisley
R L Roff
J V Ormsby
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