The High Court has ruled that regulations 26 and 27 of the Animal Welfare (Care and Procedures) Regulations 2018 (“Regulations”) and minimum standards 10 and 11 of the Code of Welfare: Pigs (2018) (“2018 code”) were contrary to the purpose of the Animal Welfare Act 1999 and therefore invalid.
This case was a judicial review of regulations 26 and 27 and the minimum standards set out in the 2018 code. Regulation 26 set minimum requirements for owners to use pig “farrowing” or birthing crates. Regulation 27 prohibited confining pigs to sow stalls other than for mating. The 2018 Code allowed for the use of crates and stalls as a minimum standard of practice.
Farrowing crates and sow stalls have always been considered to be non-compliant with the Animal Welfare Act, but were historically allowed by the statute under “exceptional circumstances”. The Animal Welfare Amendment Act 2015 removed this exception. The Amendment Act set up a transitional scheme to phase out these non-compliant practices by allowing for temporary exceptions to be made under regulations.
The Minister of Agriculture recommends that the Governor-General make regulations after receiving recommendations from the National Animal Welfare Advisory Committee ("NAWAC"). The Animal Welfare Act allows the Minister to establish welfare codes which set out minimum standards of animal welfare.
Minimum standards 10 and 11 in the 2018 Code allowed for the use of farrowing crates and sow stalls despite the removal of the “exceptional circumstances” exemption.
The applicants challenged the validity of regulations 26 and 27 and minimum standards 10 and 11 on the grounds of unlawfulness and/or unreasonableness:
a) the 2018 code allowed for minimum standards that contravened the Act’s purpose, and
b) the Minister and the NAWAC wrongly recommended regulations based off the 2018 code’s non-compliant minimum standards.
The applicants sought a declaration that regulations 26 and 27 and the 2018 Code be declared invalid if their challenge was successful.
The Court agreed with the applicants but declined to declare the full 2018 Code as invalid.
Regulations 26 and 27
The Regulations were made under the new powers brought in by the 2015 Amendment Act under section 183A. Two types of regulations were made possible by this section:
- Regulations under s183A(1) prescribe standards that either meet the welfare standards of the Act, or establish minimum standards through welfare codes that ensure the purpose of the Act is met.
- Regulations under s183A(2) prescribe temporary standards that are inconsistent with the purpose of the Act, which specify the period that they apply (which cannot exceed 10 years).
Regulations 26 and27 were made under s183A(1), meaning that they had to either meet the welfare standards of the Act or establish minimum standards through welfare codes that ensured the Act’s purpose.
The 2018 Code
Animal welfare codes may be set up by the Minister under Part 5 of the Act. They establish minimum standards that ensure the purpose of the Act is carried out, and can also prescribe standards of best practice.
The 2018 Code was a replacement of the previous Code of Welfare: Pigs (2010). Both codes prescribed minimum standards for the use of farrowing cages and sow stalls. However, it was understood that the minimum standards in 2010 were applicable to those “exceptional circumstances” statutory exceptions that, at the time, allowed for practices that were inconsistent with the Act’s purposes. The Minister established the 2018 Code without changing these minimum standards.
Cull J said that welfare codes “must ensure the purposes of the Act are met.” Since the removal of the “exceptional circumstances” exception by the passing of the 2015 Amendment Act, welfare codes could no longer prescribe minimum standards that did not ensure the Act’s purposes. The 2018 Code’s prescription of minimum standards around farrowing crates and sow stalls did not ensure those purposes.
Invalidity of the Code and Regulations
Regulations and codes of welfare (subordinate legislation) must abide by the law for them to be valid. This means they also need to be made with good and informed reasons for making the subordinate legislation. The Judge found that NAWAC and the Minister did not give proper consideration to the circumstances surrounding farrowing crates and sow stalls when establishing minimum standards 10 and 11 of the 2018 Code, and recommending regulations 26 and 27 to the Governor-General.
Since minimum standards 10 and 11 of the 2018 Code prescribed standards that did not ensure the purpose of the Act were met, Cull J ruled that they were invalid. Cull J held restating old standards under the new 2018 code did not mean the practices of using farrowing crates and sow stalls became compliant with the Act’s animal welfare obligations.
Turning to regulations 26 and 27, Cull J ruled the Regulations were invalid because they failed to meet either of the requirements under s183A(1). The Regulations prescribed standards that did not meet animal welfare standards under the Act. They allowed for the practice of farrowing crates and sow stalls
The Judge commented that regulations allowing the practice of using farrowing cages and sow stalls could have been lawful if they were made under s183A(2), however this would require the Minister and NAWAC to recognise that there were no practical alternatives to the practice and recommend a specific time period to allow the exception.
Cull J directed the Minister to consider recommending new regulations phasing out the use of farrowing crates mating stalls under s183A(2) of the Act and consider making such changes as required to minimum standards 10 and 11.