Plaintiff v First Defendant

STATUTORY INTERPRETATION - Whether Meat Industry Act 1993 concerned with animal welfare - Whether Meat Industry Act 1993 recognises an interest in animal welfare, imposes any public duties or creates a concomitant public right.

1 The plaintiff, Animals Australia Federation ('Animals Australia'), is a charity concerned with preventing or alleviating the suffering of animals.

2 The second defendant, PrimeSafe, is a regulatory authority established under the Meat Industry Act 1993 (Vic) ('MI Act'). The functions of PrimeSafe include licencing meat processing facilities.

3 The first defendant, CA Sinclair Proprietary Limited ('Sinclair') operates an abattoir in Benalla for the slaughter of pigs for human consumption ('abattoir'). Sinclair holds a licence granted by PrimeSafe under s 17 of the MI Act to operate the abattoir as a meat processing facility ('Licence').

4 The Licence is subject to a condition that Sinclair must conduct its operations and maintain the abattoir in accordance with the Australian Standard for the Hygienic Production and Transportation of Meat and Meat Products for Human Consumption (AS4696:2023) ('Australian Standard').[1] Clause 7 of the Australian Standard concerns animal welfare.

5 The Australian Standard defines 'slaughter' to include stunning, sticking and bleeding. 'Stunning' is defined to mean a procedure for rendering an animal unconscious and insensible to pain. Sinclair uses a carbon dioxide gassing system ('gassing system') at the abattoir to stun pigs in the process of slaughter.

6 The Australian Standard provides that animals should be slaughtered in a way that prevents unnecessary injury, pain and suffering, and causes them the least practical disturbance. Animals Australia alleges that stunning by use of the gassing system results in injury, pain, suffering and disturbance in pigs that could be avoided by use of an alternative stunning system. It brings this proceeding seeking a declaration that use of the gassing system to stun pigs by Sinclair at the abattoir contravenes the Australian Standard and is therefore a breach of the Licence, and an injunction restraining Sinclair from using the gassing system.

7 The defendants argue that Animals Australia lacks standing in the proceeding. On 25 July 2024, Richards J ordered that pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules'),[2] the following question be heard and determined as a separate question:

Does the plaintiff have standing to seek the relief that it seeks by its amended statement of claim?

8 Sinclair has applied in the alternative for summary dismissal on grounds that any breach of the Licence would be a criminal offence, and there are no exceptional circumstances which would entitle Animals Australia to obtain a declaration to that effect.

9 Evidence in the preliminary trial and the summary dismissal application was by the following affidavits:

(a) Glenys Oogjes, chief executive officer ('CEO') of Animals Australia, affirmed 14 May 2024, 24 June 2024 and 30 August 2024;

(b) Samuel Rappensberg, solicitor for Animals Australia, affirmed 15 May 2024;

(c) Matthew Sussmilch, solicitor for Sinclair, sworn 16 April and 5 July 2024; and

(d) Michael Coffey, CEO of PrimeSafe, affirmed 18 July 2024.

10 The following is a summary of evidence given by Oojes, Sussmilch and Coffey.

11 Animals Australia is a company limited by guarantee. It is a charity within the meaning of the Charities Act 2013 (Cth) and is a registered entity within the meaning of the Australian Charities and Not-for-profits Commission Act 2012 (Cth). It is a leading animal advisory organisation with a record of contributing to improved animal welfare practices, policies and legislation at the State, national and international levels for over 40 years. It has over 42,000 individual members, 900,000 email supporters and 1.8 million followers on social media.

12 Animals Australia's constitution relevantly provides:

[Animals Australia's] vision is for a world where kindness, compassion, and respect extend to all living beings. To this end, the Object of [Animals Australia] is to promote kindness to all, and to prevent or alleviate the suffering of animals, including by:

...

(b) raising public awareness of animal cruelty and its causes, and increasing human understanding of the ethical importance of the prevention and alleviation of animal suffering; [and]

(c) providing representation to improve the treatment of animals through the introduction, updating or improvement to relevant law, policy, practice or custom[.]

13 Animals Australia is a member of the World Federation for Animals ('WFA'). The WFA has 'special consultative status' with the United Nations Economic and Social Council and is an Accredited Observer to the United Nations Environment Program. Oogjes was elected to the board of the WFA in May 2024 in her capacity as CEO of Animals Australia.

14 Animals Australia has advocated for animals across many issues including live export, recreational shooting, puppy farming, greyhound racing, and wildlife emergencies such as the 2019-2020 megafire season. It has been recognised internationally as a key stakeholder in matters relating to animal welfare and contributes to international animal welfare policy and standards through bodies such as the World Organisation for Animal Health, the European Commission Committee for Animal Welfare and the International Coalition for the Welfare of Animals.

15 Animals Australia has long been recognised domestically by the Commonwealth government as a key stakeholder in matters relating to animal welfare. It was one of the animal welfare organisations represented on the National Consultative Committee on Animal Welfare. It has contributed to committees which have provided advice to the federal Minister for Agriculture, Fisheries and Forestry and the federal Chief Veterinary Officer on animal welfare issues, including gas stunning, and contributed to the development of a national framework to improve consistency across all animal sectors, including livestock and production animals. Animals Australia has been consulted on updates to the Model Codes of Practice for Animal Welfare since the 1980s, and more recently was directly involved in converting these codes to the Australian Animal Welfare Standards and Guidelines. It actively provides technical and expert advice to Commonwealth inquiries and legislative reform processes relating to animal welfare. Animals Australia is currently being consulted by the Commonwealth Department of Agriculture, Fisheries and Forestry ('DAFF') in relation to a review and re-establishment of the Australian Animal Welfare Strategy. In 2017, Animals Australia was a member of the Stakeholder Advisory Group to review the National Model Code of Practice for the Welfare of Animals: Livestock at Slaughtering Establishments. The review was restarted in 2021 and is ongoing. In September 2023, Animals Australia made a substantive submission to the review that included considerable input on pig gassing.

16 Animals Australia is similarly recognised by the Victorian government as a key stakeholder in animal welfare matters, and contributes to inquiries and legislative reform processes across multiple State jurisdictions on matters pertaining to animal welfare. It has been a member of the Victorian Animal Welfare Advisory Committee since the 1980s. It has consulted and provided advice on Victorian regulations, animal welfare law and policy reform, including a 2022 review of the Wildlife Act 1975 (Vic) and the response to the 2019-2020 megafire season.

17 Animals Australia regularly engages in open discussions with State and Commonwealth regulators about matters pertaining to animal welfare. On occasions where it has taken the view that relevant government action has not been adequate, it has commenced legal proceedings where appropriate. Relevant legal proceedings include a challenge in 2023 to an executive order that removed protection of dingoes in Victoria for the purposes of the 'wild dog' control program, commenced in this Court; an application in 2023 for injunctive relief in a matter concerning the live export of sheep to the Middle East; and an application for judicial review of a decision in relation to the live export of sheep from Australia, commenced in this Court in 2020.

18 Since 2011, Animals Australia has actively engaged with PrimeSafe on slaughter welfare issues via formal cruelty complaints. Complaints made by Animals Australia have included details about serious contraventions of the animal welfare provisions of the Australian Standard, such as the following:

(a) an alleged 'backyard slaughter operation' in 2023, which was found to have likely involved breaches of the Prevention of Cruelty to Animals Act 1986 (Vic) ('POCTA Act') after an investigation by PrimeSafe and the then Victorian Department of Environment, Land, Water and Planning (Coffey said that PrimeSafe declined to investigate the complaint further because it was outside its jurisdiction. He expressed no opinion about whether there may have been any breach of the POCTA Act. Coffey said that he referred the matter to Agriculture Victoria's animal welfare unit);

(b) breaches of slaughter standards for turkeys in 2023;

(c) the slaughter of bobby calves at an abattoir in Echuca in 2012 and 2016. The abattoir was subsequently shut down;

(d) the cruel treatment of sheep and cattle at an abattoir in Carrum Downs in 2015 and 2018;

(e) the cruel treatment of horses at an abattoir in Laverton in 2012; and

(f) pig slaughter cruelty at an abattoir in Gippsland in 2011.

19 Animals Australia has engaged with Commonwealth and State governments, relevant regulators and industry bodies in relation to the welfare of pigs on a number of occasions. Examples include:

(a) in 2014, corresponding with DAFF, the Commonwealth Minister for Agriculture, Safe Food Production Queensland and the Australian Meat Industry Council regarding gassing systems in the slaughter of pigs, and recommending urgent review of industry standards;

(b) in 2014 and 2015, corresponding with Australian Pork Limited to request an update on the industry review of stunning systems used in the slaughter of pigs;

(c) in 2016, meeting with Australian Pork Limited regarding the use of gassing systems;

(d) in 2022, participating in a DAFF Processing Facilities Stakeholder Advisory Group meeting to discuss proposals for the standards and guidelines relating to the slaughter of pigs, and raising concerns about the use of gassing systems;

(e) in April 2023, writing to Biosecurity Queensland recommending changes to the draft Animal Welfare Standards and Guidelines for Livestock Processing Establishments relating to the use of gassing systems; and

(f) in September 2023, providing feedback to the Queensland Department of Agriculture Animal Welfare Program on the Australian Animal Welfare Standards and Guidelines for Livestock at Processing Facilities Draft v1.0 for consultation.

20 In March 2023, Animals Australia made formal complaints to PrimeSafe regarding the use of gassing systems at two Victorian abattoirs, including the abattoir operated by Sinclair, and to DAFF about a third Victorian abattoir. In April 2023, the Australian Alliance for Animals, of which Animals Australia is a founding member, wrote to the Commonwealth Minister for Agriculture, Fisheries and Forestry, and in November 2023 they met with PrimeSafe, about the use of gassing systems at these abattoirs. The genesis of these complaints was a story aired on the Australian Broadcasting Corporation's ('ABC') The 7.30 Report ('7.30 Report') in late March 2023 that contained footage of the use of gas stunning at the three Victorian abattoirs.

21 Also in March 2023, Animals Australia appeared and gave evidence at a Victorian Parliamentary hearing regarding pig welfare. In January 2024, it made extensive written submissions to an associated Parliamentary inquiry. One of the 18 recommendations it made was to prohibit gas stunning of pigs. In that submission, Animals Australia said that 80% of pigs slaughtered in Australia were stunned using a gassing system. The submission referred to the 7.30 Report footage. Animals Australia invited its supporters to make submissions to the Parliamentary inquiry via its website. By May 2024, there had been 4,490 'clicks' from the Animals Australia website to the official Parliamentary inquiry website. The public and stakeholder submissions to the inquiry totalled 9,500.

22 Oogjes said that up until Coffey's appointment as PrimeSafe CEO in April 2022, Oogjes communicated directly with the former CEO by email, telephone and face-to-face meetings. She said that these communications related to the development of a strategic risk-based approach to animal welfare in Victorian abattoirs; the use of CCTV cameras in abattoirs; abattoir auditing requirements; education requirements for abattoir workers; and potential legislative amendments to assist animal handling practices at abattoirs.

23 Oogjes took issue with Coffey's evidence that there is no record of PrimeSafe ever suspending or cancelling an abattoir's licence due to animal welfare concerns. She said that regulatory actions taken by PrimeSafe have included requiring installation of CCTV cameras and the phasing out of electronic prod use on pigs at abattoirs. She said that in her extensive dealings with PrimeSafe regarding animal welfare complaints, she has never been informed by PrimeSafe that they do not investigate matters relating to animal welfare or been directed by PrimeSafe to lodge these formal complaints elsewhere.

24 Oogjes gave two examples of a positive response by PrimeSafe to animal welfare concerns raised by Animals Australia. In 2012, in response to the bobby calf complaint, the then CEO of PrimeSafe wrote to Oogjes stating in part:

The PrimeSafe investigation confirmed that the claims made in your letter were substantiated in that bobby calves were being handled inappropriately at Riverside Meats, Echuca. The handling breached the animal welfare requirements of the Australian Standard for the Hygienic Production and Transportation of Meat and Meat Products for Human Consumption (AS4696:2007).

...

PrimeSafe will continue to monitor compliance with animal welfare requirements at the abattoir.

25 The second example was a response to video footage showing inappropriate treatment of pigs at an abattoir in Trafalgar. The PrimeSafe CEO wrote to Oogjes in November 2011 stating:

Based on that footage, and my concern over the treatment of animals it portrayed, I immediately ordered the abattoir to cease all operations pending a PrimeSafe investigation.

I am appalled by the treatment of animals shown in the video footage. The issue will be vigorously pursued by PrimeSafe, ensuring that any inhumane treatment of animals is eradicated.

...

Animal welfare is an integral part of an abattoirs' Quality Assurance program. On that basis PrimeSafe is authorised to cancel the operating licence of any abattoir that does not satisfactorily meet animal welfare standards.

26 Oogjes referred to a media statement issued by PrimeSafe in October 2023 following Animals Australia's complaints about the abattoir and another pig slaughter facility, which included raising issues about the use of gassing systems. The media statement includes:

PrimeSafe's investigation - involving hundreds of hours of video footage - considered compliance with the [MI Act], the Meat Industry Regulations and the conditions on the operating licences of two Victorian abattoirs, including requirements relating to animal welfare.

27 Oogjes also noted an ABC News article dated 4 March 2024 about PrimeSafe's prosecution of the other pig slaughter facility, in which Coffey is quoted as follows:

Prosecution sends a message that meat processors are expected to comply with all licence conditions, including those that relate to animal welfare[.]

28 PrimeSafe has issued licences to Sinclair under the MI Act to operate the abattoir since 1 July 2000. Sinclair has principally operated the abattoir to process pigs for human consumption.

29 Sinclair has used the gassing system as part of its process to slaughter pigs since 2013.

30 In the period from 1 July 2022 to 20 June 2023, Sinclair's Licence permitted it to slaughter calves, lambs, pigs and sheep up to a throughput of 500,000 units. The Licence required Sinclair to conduct its operations in a manner that complied with the Australian Standard. A further annual Licence was issued to Sinclair by PrimeSafe on 1 July 2023. PrimeSafe amended the Licence shortly after to add the following condition:

(a) by a date not later than 30 September 2023 install and then subsequently maintain optical recording devices in the lairage, in any chamber used to expose pigs to gas for the purpose of rendering them unconscious; and in any gondola, vehicle or other entry point to the chamber used to expose pigs to gas for the purposes of rendering them unconscious, and in accordance with an approved CCTV Plan; and

(b) as soon as reasonably practicable upon request by a PrimeSafe inspector, make available any visual recording held by the licensee of the activity at the licensed facility[.]

31 It was not until March 2023, when Animals Australia wrote to PrimeSafe, that it took any interest in the use of the gassing system at the abattoir or Sinclair's compliance with the Australia Standard. Prior to this correspondence, Animals Australia had not communicated or otherwise sought to engage with Sinclair concerning its use of the gassing system. Animals Australia does not have any physical presence in or proximate to Benalla, and was not otherwise involved in animal welfare issues concerning the use of the gassing system at the abattoir or the slaughter of pigs in Benalla more generally until this correspondence.

32 PrimeSafe employs 13 full-time equivalent employees, including Coffey. Amongst other things, PrimeSafe's employees:

(b) issue licences under the [MI] Act, the Seafood Safety Act [_2003 (_Vic)] and the regulations [made under those Acts], of which there are currently 8,373;

(d) conduct inspections of licensed facilities to monitor compliance with licence conditions;

(e) undertake other activities associated with the enforcement of licence conditions and the laws administered by PrimeSafe, including applying for and executing search warrants and bringing criminal proceedings;

(g) to the extent permitted by the [MI] Act, liaise with Agriculture Victoria relating to matters that fall within the ambit of that agency (including, for example, matters relating to the enforcement of the [POCTA Act];

(h) receive and respond to requests for information from members of the public, the Minister and/or her Department, or other interested parties[.]

33 PrimeSafe also investigates complaints relating to licensees, of which there were 471 in the 2023/2024 financial year, and to the alleged operation of unlicensed 'meat processing facilities' and 'seafood businesses' as defined in the MI Act and the Seafood Safety Act 2003 (Vic) respectively.

34 PrimeSafe's policy is to investigate all complaints that it receives. Where a complaint is supported by illegally obtained evidence, PrimeSafe may determine not to have regard to that evidence. If the complaint is supported only by such evidence, the complaint may not be investigated.

35 PrimeSafe's complaints handling procedure requires that it advise a complainant of the outcome of its investigation and whether the complaint was substantiated, if the complainant has requested such advice.

36 Since 1 January 2011, Animals Australia has lodged 11 complaints and forwarded one other complaint to PrimeSafe. PrimeSafe has no record of ever suspending or cancelling an abattoir's licence due to animal welfare concerns.

37 In response to Animals Australia's 2011 complaint about pig slaughter cruelty at an abattoir in Gippsland, PrimeSafe's then CEO stated in a media interview in March 2012 that 'animal welfare issues' were 'being pursued by the Department of Primary Industries'. The investigation by the then Department of Primary Industries resulted in criminal proceedings against the abattoir under the POCTA Act.

38 Coffey said more generally, in relation to Oogjes' evidence about PrimeSafe investigations, that:

(a) to the best of my knowledge, it has never been PrimeSafe's position that it will not investigate any matters related to animal welfare ... it investigates all complaints received (with limited exceptions);

(b) rather, PrimeSafe has taken the position that animal welfare may fall within its jurisdiction in two ways:

(i) where a licensee has breached the provisions of the POCTA Act in its handling of animals prior to slaughter; or

(ii) where a licensee has breached the provisions of [s] 7 of the [Australian] Standard, and the relevant conduct gives rise to food safety, hygiene or "wholesomeness" concerns.

39 With respect to the interaction between the MI Act and the POCTA Act and the relevance of those Acts to PrimeSafe's functions, Coffey explained:

(a) section 6(1)(a) of the POCTA Act only exempts 'the slaughter of animals in accordance with' the [MI] Act;

(b) PrimeSafe has therefore taken the view that the scope of the POCTA Act covers the treatment and handling of animals prior to stunning and sticking;

(c) section 23 of the [MI] Act requires that all licensees operating a meat processing facility must comply with any applicable Act or statutory instrument, which therefore includes the POCTA Act;

(d) however, PrimeSafe is unable to investigate alleged breaches of the POCTA Act, because:

(i) its auditors and inspectors do not have the training and expertise required to identify and/or investigate animal welfare matters where those matters are not connected with any food safety or hygiene concerns;

(ii) no member, officer or inspector of PrimeSafe is now or has ever been appointed as an 'authorised officer' under [s] 35 of the POCTA Act; and

(iii) PrimeSafe has no power to appoint a person as an 'authorised officer' to investigate an alleged breach of the POCTA Act under that [s] 35;

(e) accordingly:

(i) PrimeSafe usually won't independently investigate an allegation that a licensee has breached the POCTA Act unless there is some clear connection with food safety, hygiene or wholesomeness; [and]

(ii) if a licensee is found to have breached the POCTA Act - through an investigation conducted by or in combination with another organisation or authority - PrimeSafe may take relevant action on the basis that the licensee has breached [s] 23 of the [MI] Act.

40 Coffey said that PrimeSafe's auditors and inspectors have the training and experience to identify and investigate issues relating to food safety, hygiene and wholesomeness. Where a licensee's conduct does not give rise to any concerns about those matters, PrimeSafe does not consider that the conduct would fall within the scope of the Australian Standard. PrimeSafe refers instances of non-compliance with the Australian Standard for animal welfare to relevant authorities for investigation into offences against the POCTA Act.

41 Coffey said that the March 2023 complaints by Animals Australia in relation to the abattoir and a second abattoir relied on video footage that was illegally obtained by another organisation. He said that PrimeSafe undertook its own inspections and investigations to determine whether animals at the two facilities were being handled consistently with the MI Act and applicable licence conditions. Those inspections and investigations extended to use of gassing systems to stun pigs. Coffey said that the prosecution of the second abattoir did not relate to conduct identified in the complaint made by Animals Australia. He said that the full context of a relevant media release referred to by Oogjes at [27] above is as follows:

Coffey said: 'This prosecution sends a clear message that PrimeSafe licensees are expected to comply with all licence conditions, including those that relate to animal welfare'.

'PrimeSafe is focused on ensuring the safety and wholesomeness of food and public confidence in food production in Victoria, so it's important that licensees abide by the rules', he said.

PrimeSafe accepts that it is able to exert influence over licensees to encourage best handling practices, including by denouncing conduct that it considers inappropriate, and it has done so. However, it cannot expand its own jurisdiction to deal with animal welfare matters that are otherwise beyond the scope of the food safety, hygiene and wholesomeness matters dealt with in the [MI] Act.

Meat Industry Act 1993

(a) to set standards for meat production for human consumption and pet food;

(b) to set up a licensing and inspection system and a mechanism for adopting and implementing quality assurance programs to ensure that those standards are maintained; [and]

(d) to establish the Victorian Meat Authority to operate that licensing and inspection system and arrange for the adoption and monitoring of quality assurance programs[.][3]

44 PrimeSafe is established as the 'Victorian Meat Authority' under s 43 of the MI Act. The functions of PrimeSafe as set out in s 44 include:

(a) to control and keep under review the standards of meat, poultry meat and game meat produced for consumption or sale within the State; and

(b) to control and keep under review the standard of the construction and hygiene of plant and equipment in a meat processing facility; and

(d) to ensure that appropriately qualified persons are authorised as inspectors; and

(e) to licence meat processing facilities; and

(g) to approve quality assurance programs and to monitor the implementation of those programs; and

(ga) in consultation with the Secretary to the Department of Health or a municipal council, to protect public health[.]

45 PrimeSafe's membership is governed by s 48 of the MI Act. Members are appointed by the Minister having regard to their expertise in the following areas:

(i) livestock production;

(ii) quality assurance and management;

(iii) poultry production and processing;

(iv) meat processing for human consumption;

(v) meat processing for other than human consumption;

(vi) industrial relations;

(vii) accounting;

(viii) finance;

(ix) business management;

(x) seafood production and processing;

(xi) retailing;

(xii) consumer matters;

(xiii) public health.[4]

46 The definition of 'general meat processing facility' includes an abattoir.[5] The definition of 'abattoir' includes:

(a) a place used for slaughter of consumable animals for human consumption; or

(c) any structure, facility, vehicle or equipment (including equipment to deal with offal or condemned meat) used in connection with a place referred to in paragraph (a) ... whether before or after slaughter[.][6]

any activity in the process of preparing meat for consumption, beginning with the delivery of animals for slaughter, but does not include the retail sale of meat for human consumption[.][7]

47 Licensing of meat processing facilities is dealt with by pt 4 of the MI Act. Under s 17(1), PrimeSafe may determine a licence application by granting or refusing it. Subsection 17(2) provides:

In granting a licence, the Authority may specify any conditions or restrictions to which the licence is subject, including conditions regulating or prohibiting any activity at a meat processing facility covered by the licence.

48 PrimeSafe may suspend or cancel a licence for specific reasons including that the licensee has not complied with a condition or restriction of the licence.[8] A person whose interests are affected by a decision of PrimeSafe to refuse an application for the grant of a licence, to impose a condition or restriction when granting a licence, or to vary, suspend or cancel a licence, may apply to the Victorian Civil and Administrative Tribunal ('VCAT') for review of the decision.[9]

In establishing or operating a meat processing facility a licensee must comply with any Act other than [the MI Act] and with any statutory instrument applying to the facility.

50 The duties concerning meat processing facilities are set out in pt 5 of the MI Act. Section 41 provides:

The holder of a licence under [the MI Act] must comply with the conditions or restrictions specified in that licence.

Penalty: First offence 50 penalty units.

Subsequent offence 100 penalty units or 12 months imprisonment or both.

51 Proceedings under the MI Act may be instituted or conducted by the chairperson of PrimeSafe or a person authorised in writing by the chairperson.[10]

52 PrimeSafe may authorise any appropriately qualified person to be an 'inspector'.[11] The powers of an inspector include taking any action necessary to find out whether a licence issued under the MI Act is being complied with.[12] For that purpose, an inspector may:

(a) enter and search any meat processing facility; and

(g) examine, take samples from, seize, detain, treat or dispose of any meat; and

(h) take samples from any animal for testing; and

(j) brand or direct the branding of any meat; and

(k) colour or direct the colouring of any meat; and

(l) condemn any animal or meat; and

(n) prohibit the slaughter of any animal if the animal is unsuitable for slaughter.[13]

53 The MI Act does not apply to the slaughter of an animal on a farm for consumption on that farm.[14]

Prevention of Cruelty to Animals Act 1986

(a) prevent cruelty to animals; and

(b) to encourage the considerate treatment of animals; and

(c) to improve the level of community awareness about the prevention of cruelty to animals.[15]

55 'Cruelty' includes doing or omitting to do an act that causes or likely causes unreasonable pain or suffering to an animal.[16] Committing an act of cruelty upon an animal renders a natural person liable under the POCTA Act to a penalty of 250 penalty units or imprisonment for 12 months, or 600 penalty units in the case of a corporation.[17]

56 In its original form, s 6(a) of the POCTA Act provided that it did not apply to the slaughter of animals in accordance with the Abattoir and Meat Inspection Act 1973 (Vic) ('Abattoir Act'). The MI Act is the successor to the Abattoir Act. The Prevention of Cruelty to Animals (Amendment) Act 1995 (Vic) ('POCTA Amendment Act') amended s 6(1)(a) of the POCTA Act to take account of the enactment of the MI Act. Relevantly, s 6(1)(a) of the POCTA Act now provides:

(1) This Act does not apply to -

(a) the slaughter of animals in accordance with the [MI Act] or any Commonwealth Act[.][18]

57 The POCTA Act does not apply to the slaughter of a farm animal on a farm for consumption on that farm if the animal 'is slaughtered in a humane manner'.[19]

58 The second reading speech to the POCTA Amendment Act referred to the MI Act as follows:

The [MI Act] will ultimately set standards for all animal slaughter that is intended to produce meat for sale for human consumption. Animal slaughter that fails to meet those standards will not be exempt from the protective provisions of the [POCTA Act].

The bill also provides that the [MI Act] is not to apply to the slaughter on a farm of farm animals for consumption on that farm, provided that the slaughter is conducted in a humane manner. The slaughter will need to be consistent with the principles contained in the [MI Act].[20]

59 The preface to the Australian Standard states that it 'applies to the production and transportation within Australia of meat and meat products'.[21]

60 The focus of the Australian Standard 'is on essential health and hygiene issues and provides for standards that are consistent with the principles and objectives of the Codex Alimentarius Code of Hygienic Practice for Meat'.[22]

The prime objective of this Standard is to ensure meat and meat products for human consumption comply with food safety requirements and are wholesome.

...

This Standard incorporates other objectives so that wholesomeness can be ensured. These objectives include the need for systems to be in place for the accurate identification, traceability, effective recall and integrity of meat and meat products. They also include animal welfare objectives as they impact on food safety and on public expectations as to wholesomeness.[23]

62 The Australian Standard is divided into the following parts:

Part 1 Introduction

Part 2 Wholesomeness and operational hygiene

Part 3 Slaughter and dressing of animals

Part 4 Processing

Part 5 Packaging, storage and handling

Part 6 Identification, traceability, integrity and record keeping

Part 7 Premises, equipment and essential services

Part 8 Transportation of meat and meat products

63 The objectives of the Australian Standard are set out in pt 1 cl 1.2 which states:

(a) meat and meat products for human consumption are wholesome; and

(b) meat and meat products that are not fit for human consumption or not intended for human consumption are dealt with separately; and

(c) the accurate identification, traceability and recall of meat and meat products; and

(d) any statement made in relation to the condition of meat and meat products or their production is accurate; and

(e) an accurate assessment can be made as to whether the objectives identified in paragraphs (a) to (d) are met.

64 The following definitions set out in pt 1 of the Australian Standard are relevant:

emergency slaughter means slaughter by necessity of any animal that:

(a) has recently suffered traumatic injury or is affected or suspected of being affected by a disease or other abnormality; and

(b) is in pain or is likely to deteriorate unless it is killed immediately.

slaughter means the killing of an animal and includes stunning, sticking and bleeding.

sticking means the severing of the large blood vessels to induce effective bleeding.

stunning means a procedure for rendering an animal unconscious and insensible to pain.

wholesome when used in relation to meat and meat products, means that the meat and meat products may be passed for human consumption on the basis that they:

(a) are not likely to cause food-borne disease or intoxication when properly stored, handled and prepared for their intended use; and

(b) do not contain residues in excess of established limits; and

(c) are free of obvious contamination; and

(d) are free of defects that are generally recognised as objectionable to consumers; and

(e) have been produced and transported under adequate hygiene and temperature controls; and

(f) do not contain additives other than those permitted under the Food Standards Code; and

(g) have not been irradiated contrary to the Food Standards Code; and

(h) have not been treated with a substance contrary to a law of the Commonwealth or a law of the state or territory in which the treatment takes place.

65 Some sections of the Australian Standard contain an outcome statement. Clause 1.5 provides:

A note in this Standard or an outcome described at the head of a section is for information or guidance only and does not form part of this Standard.

66 Application of the Australian Standard is dealt with by pt 1 cl 2. Clause 2.3 provides:

The proprietor of a meat business must ensure each of the matters specified in [pts] 2 to 7 of this Standard that apply to or are in relation to:

(a) the production of meat and meat products by the business; and

(b) the premises, equipment, vehicles and essential services used or to be used by the business for and in relation to the production; are met.

It is not in issue that the abattoir is a meat business for the purposes of the Australian Standard.

67 Animal welfare is dealt with by pt 3 cl 7 of the Australian Standard. The outcome recorded at the head of cl 7 is '[t]he minimisation of the risk of injury, pain and suffering and the least practical disturbance to animals'. In relation to the handling of animals, cl 7 requires:

7.1 Premises and equipment:

(a) are used in a way; and

(b) are maintained in a condition; that minimises risk of injury, pain and suffering to animals and causes them the least practicable disturbance.

7.2 Animals are handled at meat premises in a way that minimises the risk of injury, pain and suffering and causes the least practicable disturbance to them and to other animals at the premises.

68 Special provision is made in relation to the slaughter of young, injured, sick or stress-susceptible animals. Relevantly, cl 7.8 of the Australian Standard provides:

Animals identified as requiring emergency slaughter are not moved more than is necessary and are slaughtered or killed humanely as soon as possible after being so identified.

69 The slaughter of animals is dealt with by the following clauses of the Australian Standard:

7.9 Animals are slaughtered in a way that prevents unnecessary injury, pain and suffering to them and causes them the least practicable disturbance.

7.10. Before sticking commences, animals are stunned in a way that ensures the animals are unconscious and insensible to pain before sticking occurs and do not regain consciousness or sensibility before dying.

7.11 Before stunning commences, animals are restrained in a way that ensures stunning is effective.

70 Ritual slaughter is dealt with by cl 7.12 of the Australian Standard, which provides:

(1) This provision only applies to animals killed under an approved arrangement that provides for their ritual slaughter involving sticking without prior stunning.

(2) An animal that is stuck without first being stunned and is not rendered unconscious as part of its ritual slaughter is stunned without delay after it is stuck to ensure it is rendered unconscious.

71 Animals Australia alleges that Sinclair must comply with the conditions and restrictions specified in the Licence to operate the abattoir as a meat processing facility.[24] It alleges that the Licence is subject to a condition that the operation of the abattoir comply with the Australian Standard. It alleges that the Australian Standard requires Sinclair to ensure that the abattoir is operated in a way that minimises risk of injury, pain and suffering to pigs, and causes pigs the least practicable disturbance. Further, Animals Australia alleges that the Australian Standard requires PrimeSafe to ensure that pigs are handled and slaughtered at the abattoir in a way that prevents unnecessary injury, pain and suffering to them, and causes them the least practicable disturbance.

72 Animals Australia alleges, in relation to the use of the gassing system:

1. The exposure of pigs to carbon dioxide by the use of [the gassing system] necessarily involves causing changes in the physiology of the pigs, namely:

22.1 activation of chemoreceptors, which increase respiratory drive and contribute to an affective state of breathlessness;

22.2 reduction of pH of the arterial blood and tissues (acidosis) which alters cellular function and stimulates activity in the sympathetic nervous system, promoting anxiety; and

22.3 acidification of the mucous membranes of the nasal passages and conjunctiva resulting in pain.

1. The physiological changes pleaded in paragraph 22 above individually and together, result in injury, pain, suffering, and disturbance in pigs.

Animals Australia alleges that there are alternative means by which pigs may be stunned, including an electrical stunning system, which if properly implemented and applied would result in pigs enduring less or evading completely injury, pain, suffering and/or disturbance than results from use of the gassing system.

1. By the use of the Carbon Dioxide Gassing System to stun pigs at the Abattoir:

26.1 [Sinclair] is causing pigs injury, pain, suffering and disturbance ...; [and]

26.2 [Sinclair] is causing pigs such injury, pain, suffering and disturbance that could be avoided or significantly reduced by the use of an Electrical Stunning System to stun pigs at the Abattoir.

1. Accordingly, by the use of the Carbon Dioxide Gassing System, [Sinclair] is:

27.1 contrary to [cls] 2.3 and 7.1 of the Australian Standard, failing to ensure that the Abattoir and its equipment are being used in a way that minimises the risk of injury, pain and suffering to pigs, and causes them the least practicable disturbance;

27.2 contrary to [cls] 2.3 and 7.2 of the Australian Standard, failing to handle pigs at the Abattoir in a way in a way that minimises the risk of injury, pain and suffering, and causes them the least practicable disturbance; and/or

27.3 contrary to [cls] 2.3 and 7.9 of the Australian Standard, failing to ensure that pigs at the Abattoir are being stunned, as part of the process of slaughter, in a way that prevents unnecessary injury, pain and suffering and causes them the least practicable disturbance.

1. By reason of each of the failures identified in paragraph 27 above, the continuing operation of the Abattoir:

28.1 is not being done in compliance with the Australian Standard; and

28.2 therefore, is being done in contravention of a condition of the Licence.

74 Animals Australia alleges in relation to PrimeSafe that:

1. PrimeSafe advised [Animals Australia] to the effect that it is not considering conducting any regulatory activity with respect to the use by licensees of a Carbon Dioxide Gassing System for the slaughter of pigs, or to possible alternative methods for the slaughter of pigs such as an Electrical Stunning System.

...

9.1 neither [Sinclair], nor any other licensee, is being investigated or prosecuted for any breach of the [MI] Act on the basis that they use a Carbon Dioxide Gassing System for the slaughter of pigs; [and]

9.2 there is no real prospect that the [Sinclair] or any other licensee will be investigated or prosecuted for any breach of the [MI] Act on the basis of their use of a Carbon Dioxide Gassing System for the slaughter of pigs[.]

1. A declaration that the use of the [gassing system] at the Abattoir contravenes cl[s] 2.3, 7.1, 7.2 and 7.9 of the Australian Standard and, therefore, its use is a breach of a condition of the Licence held by [Sinclair].
2. An injunction restraining [Sinclair] from using the [gassing system] at the Abattoir.

76 Sinclair denies that use of the gassing system is a contravention of the Australian Standard and a breach of the Licence.

77 Sinclair admits that to its knowledge, it is not being investigated or prosecuted for any breach of the MI Act. It does not admit that there is no real prospect of that occurring.

78 PrimeSafe alleges that the purpose of requiring compliance with the Australian Standard as a licence condition is to ensure the safety and wholesomeness of meat and meat products.

79 PrimeSafe alleges that it conducts investigations and brings prosecutions where appropriate in respect of acts or omissions that, if proven, constitute offences against the MI Act. It alleges that use of a gassing system is not an offence against the MI Act and cannot, on its own, form the basis of any investigation or prosecution. It alleges it does not have power to investigate or prosecute a licensee solely on the basis of their use of a gassing system for the slaughter of pigs, and that, used properly, use of a gassing system does not breach the Australian Standard. It says that in November 2023, its offices informed representatives of Animals Australia that PrimeSafe was not currently conducting an investigation into whether the use by any meat processing facility licensee of carbon dioxide to stun pigs prior to slaughter may contravene the MI Act.

80 Whether a plaintiff has standing will depend on it demonstrating a sufficient connection to, or 'special interest' in, the issues in the litigation to justify them being allowed to bring the action.[25]

81 The Court in VicForests v Kinglake Friends of the Forest Inc ('VicForests')[26] summarised the principles governing standing, derived from the High Court of Australia authorities of Australian Conservation Foundation Inc v The Commonwealth ('ACF'),[27] and Onus v Alcoa of Australia Ltd ('Onus'),[28] as follows:

A number of points emerge from ACF and Onus:

(a) a plaintiff must show a special interest in the subject matter of the litigation;

(b) the need for a special interest reflects the need to show an interest or a position that is different from the public at large;

(c) the concept of 'interest' is not limited to proprietary, business or economic interests;

(d) the need for the interest to be special or different is not merely a function of the depth of feeling but reflects the nature of the relationship between the person and the subject matter of the litigation. The nature of the interest in the subject matter must be more than merely emotional or intellectual; [and]

(e) the subject matter of the litigation will involve a consideration of the statutory context, the nature of the power, and the form of relief sought. The place, if any, that the plaintiff has in the statutory scheme may be important.[29]

82 The 'special interest' test is flexible, and its application in a particular proceeding is 'heavily fact and context specific'.[30] There must be an intersection between the interests of the plaintiff and the subject matter of the proceeding, and it is necessary to assess how the plaintiff's interest may be affected by the matter in respect of which it seeks relief.[31] Where the basis for standing sought to be invoked is statutory, 'the starting point for determining whether there is standing will be the terms of the statute'.[32] However, the statutory context does not control standing, and a 'plaintiff may have standing to challenge the exercise of power because of its practical or legal effect'.[33]

83 The requirements of standing serve to keep the exercise of judicial power within proper bounds, being the resolution of legal controversies between parties who are effected by the outcome.[34] Gibbs CJ warned in Onus of the possibility that without those requirements:

[N]ot only that the processes of the law will be abused by busybodies and cranks and persons actuated by malice, but also that persons or groups who feel strongly enough about an issue will be prepared to put some other citizen, with whom they have had no relationship, and whose actions have not affected them except by causing them intellectual or emotional concern, to very great cost and inconvenience in defending the legality of his actions.[35]

84 The appellants in Onus were Gunditjmara people who brought the proceeding to prevent the respondent from carrying out works on land, which they claimed would interfere with Gunditjmara relics on that land. The appellants relied on s 21 of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic), which made it an offence to wilfully or negligently deface or damage a relic. Brennan J identified the purpose of the statute as 'the preservation of relics', and found that its effect was to preserve objects which were of specific cultural significance to the Gunditjmara people.[36] For this reason, the appellants' interest in enforcing the duty allegedly owed by the respondent was more than a mere emotional or intellectual one, but was to relieve them of a 'distinctive detriment, namely, the destruction or obliteration of the relics of their tribe or clan'.[37]

85 The majority concluded that the appellants had shown a special interest in the subject matter of the proceeding that was sufficient to give them standing. Wilson J expressed his reasons for that conclusion as follows:

The nature of the interest that is asserted is clear enough, and in my opinion it is one which stands in contrast to that which was asserted in [ACF]. In that case, the Foundation was asserting a general concern that environmental considerations should receive adequate consideration in the administration of government, a concern that happened to be focussed through the events that occurred on a particular development in Queensland. It might just as easily have been related to proposed development in Victoria, or Western Australia or anywhere else in Australia. In the present case, the interest of the appellants is necessarily focussed on relics in a particular locality. There is nothing abstract about it. There is nothing voluntary about it, as there would be if it were a cause which if not pursued at Portland today may be pursued in the Kimberleys tomorrow. The Gournditch-jmara people, of which the appellants are representative, are involved with these relics, whether they like it or not. It is to their ancestors, their history, that the relics bear silent but meaningful testimony. Furthermore, the corporate nature of the interest, resident as it is collectively in the tribe, also serves to identify an interest which is deeper and more significant than a mere emotional attachment. In my opinion, the interest of the appellants, described as it is as a cultural and historical interest, is more than the kind of emotional or intellectual interest to which Gibbs J referred in [ACF].[38]

86 In VicForests, the respondent sought a declaration and a permanent injunction in respect of timber harvesting in State forests by the appellant that it alleged contravened the Sustainable Forests (Timber) Act 2004 (Vic) and relevant statutory instruments. The Court contrasted important features of that proceeding and ACF. First, the relevant statutory scheme in ACF imposed a general requirement that the potential environmental impact of certain government decisions be taken into account,[39] while in VicForests, mandatory legislative prescriptions were imposed to control the logging operations in State forests by the appellant. Second, the relief sought in ACF included a declaration that there had not been a lawful environmental assessment. However, the validity of that assessment did not bear directly on the decision that the plaintiff sought to challenge. In contrast, the plaintiff in VicForests sought to restrain the removal of particular trees on the basis that their removal would breach the express statutory prescriptions.[40] The Court noted that the principal difference between the two cases was that the respondent in VicForests had a direct and ongoing involvement in the particular local environment with which the proceeding was concerned, a connection which was absent in ACF.[41]

87 The Court in VicForests identified the nature of the interest demonstrated by the respondent as follows:

It is apparent from the activities described in paragraph 69 that [the respondent] is an active user of the Central Highlands forests in that it seeks not only to agitate to preserve them, but to foster the understanding and enjoyment of them by its members and by the local and wider community. Its activities and position in the local community are similar to those of [the plaintiff] in [Environment East Gippsland Inc v VicForests [2010] VSC 335; (2010) 30 VR 1]. The forests of the Central Highlands are a locus of scientific investigation and the development of knowledge about the natural world, and for the enjoyment of nature, which is a fundamental human impulse. In this sense, they are a resource for [the respondent] as much as they are for [the appellant]. A breach of the regulatory controls designed to balance the competing demands on the forests can therefore be said to involve a disadvantage to [the respondent] that gives rise to more than a sense of grievance.

In this context, a distinction may be drawn between merely holding beliefs (or having a mere emotional or intellectual concern), and the taking of concrete steps to give effect to those beliefs. The latter demonstrates a commitment that distinguishes the person or entity from other members of the community and may give rise to a 'special interest' in securing compliance with regulatory requirements. In the context of environmental protection, the commitment may be shown by the conduct or support of research, community engagement, interaction with the regulator, participation in the development of regulatory controls, the development of expertise and knowledge, political lobbying or other conduct. Such conduct would reveal that the person or entity is not just an 'intermeddler', 'crank' or 'busy body'. It may allay concerns that the entity will not be in a position to carry through the litigation. In this context, the distinction between beliefs and action is both logical and coherent, and consistent with the purpose of the standing rule.

On the facts, [the respondent] has demonstrated a commitment to the specific environment that it alleges is subject to unlawful logging operations. By its proceeding it seeks to restrain those operations.[42]

88 The Court said, discussing the necessary connection between the interest demonstrated by the plaintiff and the subject matter of the litigation:

As ACF and the discussion in Onus demonstrate, it is important that the matters relied on to establish standing relate back to the specific issues in the litigation. In order to consider this matter it is necessary to identify the subject matter of the litigation at the appropriate level of abstraction. Depending on the context, it may be accurate to describe the issues as involving the protection of the environment in the Central Highlands, the preservation of trees in the Central Highlands forests, the lawfulness of logging in that area, or the alleged non-compliance with the specific prescription relating to buffers.[43]

The Court noted that the trial judge described the subject matter of the proceeding as being 'the trees in State forests in the Central Highlands region of Victoria that [the appellant] proposes to cut down, remove, and sell, and which [the respondent] seeks to protect'. The Court concluded that this description was incomplete, and said:

However, given that the purpose of the proceeding is to enforce a regulatory standard in relation to logging, the central issue raised by the litigation is the lawfulness - and not the merits - of proposed logging operations.[44]

The Court described the subject matter of the proceeding as follows:

The issue in this proceeding can be expressed more generally as being whether there has been compliance with environmental prescriptions and the lawfulness of certain tree removal operations in the Kinglake and Central Highlands forests. In the context of a regulatory regime that imposes multiple requirements at varying degrees of specificity, it would be artificial to approach standing as if each regulatory requirement gave rise to a separate subject matter.[45]

Construction of the Meat Industry Act 1993 and the Australian Standard

89 There is significant dispute between Animals Australia and PrimeSafe in relation to the construction of the MI Act, particularly whether it imposes any public duty or gives rise to any public right directed to animal welfare. For Animals Australia to have standing, it must show an intersection between the matter in which it has a special interest and the subject matter of the proceeding. Expressed broadly, the special interest identified by Animals Australia is the welfare of pigs. PrimeSafe argued that because the MI Act is not concerned with animal welfare, then the subject matter of a proceeding brought to enforce the conditions of a licence issued under the MI Act cannot be about the welfare of pigs.

90 This proceeding is concerned with obligations imposed under statute designed to protect public interests. The objects of the MI Act include the setting of standards for meat production and a licensing system to ensure that those standards are maintained. A standard affecting the welfare of animals to be slaughtered is a '[standard] for meat production' within the meaning of s 1(a) of the MI Act. The licensing and inspection system contemplated by s 1(b) is directed to those standards, which may include animal welfare. There are no words limiting the scope and purpose of the MI Act solely to the outcome of food safety and quality.

91 PrimeSafe has the power under s 17(2) of the MI Act to specify any conditions regulating and prohibiting activities at meat processing facilities. PrimeSafe's functions include the general matters listed in ss 44(e), (g). There is no reason why PrimeSafe's powers and functions cannot extend to imposing conditions prohibiting cruelty to animals.

92 Importantly, the POCTA Act exempts 'the slaughter of animals in accordance with the [MI Act]' from the ambit of its protection.[46] This Act is Victoria's primary animal welfare legislation. Parliament cannot be taken to have intended to leave that category of animals unprotected from any and all forms of cruelty in the process of their slaughter. The exemption reflects the position that the MI Act confers regulatory powers suited to designating standards of welfare for animals going to slaughter.

93 PrimeSafe's submission that the MI Act does not empower it to make regulations in respect of animal welfare, if correct, and in light of s 6(1)(a) of the POCTA Act, would mean that no Victorian statute can be used to stop animals being tortured to death so long as it does not affect food safety. This would be a perverse outcome, unsupported by any textual limitation in the MI Act. PrimeSafe's position that because the POCTA Act cannot apply unmodified and slaughter is antithetical to welfare, Parliament intended that no statute should enable regulating welfare during slaughter is a non sequitur. Animals may be treated more or less humanely during slaughter, and the more likely intention was that specific regimes (for example, the MI Act for licensed slaughter) should address welfare in ways suiting their context. Further, PrimeSafe's position is contrary to the consistent approach of Parliament to protect animal welfare during slaughter and does not fit with the legislative history of the MI Act, which has previously given force to regulations for animal welfare made under the preceding statute.

94 The obligations in the Australian Standard are plainly directed to ensuring standards of welfare for animals at the time of slaughter. Those obligations should not be read down by reference to the objective in the Australian Standard that 'meat and meat products for human consumption are wholesome'. Objects clauses do not justify reading down or contradicting express language,[47] and the purposes of provisions are discerned from their terms. Further, the Australian Standard contains provisions that could not relate to ensuring the wholesomeness of meat. For example, an animal affected by disease or other abnormality that may never be used for human consumption is still required by the Australian Standard to be killed humanely.

95 The MI Act is about food safety and quality. It has nothing to do with animal welfare. It does not empower PrimeSafe to have regard to animal welfare as a separate consideration.

96 The title of the Australian Standard leaves little room for doubt that it is about the hygienic production and transportation of meat and meat products for human consumption. It is not about animal welfare. The Australian Standard was approved at the 2023 Australian and New Zealand Food Ministers' meeting - that is, by people concerned with food, not animals. The objectives of the Australian Standard are directed towards the wholesomeness of meat products for human consumption. The definition of 'wholesomeness' has nothing to do with animal welfare. There is a separate standard dealing with animal welfare in livestock processing establishments. Compliance with that standard is not a condition of the Licence.

97 Clause 7 of the Australian Standard deals with welfare in that it requires the process of slaughter to cause animals 'the least practical disturbance'. Injury, pain, suffering or disturbance of an animal has the potential to affect the quality of meat produced. Understood in this way, the Australian Standard introduces the issue of welfare only to the extent it may impact upon the quality or wholesomeness of meat.

98 The POCTA Act deals with animal welfare. It does not apply to slaughter in accordance with the MI Act because the processes of stunning and sticking would otherwise amount to cruelty or aggravated cruelty under the POCTA Act.

99 The construction of the MI Act for which Animals Australia contends, would leave the issue of animal welfare associated with slaughter entirely to the discretion of PrimeSafe, being an industry body designed to ensure food safety. It is more likely that Parliament's intention was that, at the point at which animals are slaughtered in licensed premises pursuant to standards that they be rendered unconscious and insensible to pain, there is no protection for animal welfare because in reality the slaughter of animals is antithetical to their welfare. This explains why slaughter is excluded from the POCTA Act, and why the MI Act is not concerned with animal welfare.

100 Animals Australia's reference to s 6(1)(f) of the POCTA Act, which relates to slaughter on farms, is unhelpful in interpreting the MI Act. Farm slaughter is, and at all times has been, exempt from the MI Act. To the extent that this provision has any relevance at all, it is that Parliament preferred to make the requirement of humane slaughter a matter for the POCTA Act rather than a matter for the MI Act. This is entirely consistent with the MI Act not being related to animal welfare.

101 If, contrary to PrimeSafe's primary submission, animal welfare is or can be a relevant consideration under the MI Act, then it is so incidental to the principal purpose of the MI Act as to not be the subject matter of this proceeding. The limited clauses of the Australian Standard which might arguably relate to animal welfare are not sufficient to give rise to a separate subject matter.

102 Under the MI Act, PrimeSafe has the power to grant, vary, suspend or cancel a licence, and to impose a condition on the licence. The exercise of that power is subject to review at VCAT. This proceeding is inconsistent with the process for granting and reviewing licences provided for in the MI Act.

103 A purpose of the MI Act is 'to set standards for meat production for human consumption'.[48] The words used in s 1(a) suggest that a subject matter of the standards and a purpose of the MI Act is the quality and safety of meat for human consumption. That conclusion is reinforced by references in s 44 to 'the standards of meat ... produced for human consumption or sale within the State'; 'hygiene of plant and equipment in a meat processing facility'; and protection of 'public health'; and in s 48 to 'consumer matters' and 'public health'. The conclusion is further reinforced by the second reading speech introducing the MI Act, which includes the following:

The Bill meets the government's goal of enhanced self-regulation in the industry while maintaining existing hygiene and safety standards of domestic meat production to protect public health.

...

The specific functions of the new authority are to control standards of meat processed for domestic consumption and to issue licences to establishments that process meat, including poultry, for human consumption, knackeries, pet food establishments, retail pet meat shops and meat transport vehicles. The authority will also have power to approve quality assurance programs and monitor the implementation of and compliance with these programs.

...

This Bill represents a major step forward for the meat processing industry in Victoria to an era where industry takes greater responsibility, through the implementation of self-imposed quality assurance programs, for the standards which deliver hygienic and wholesome meat to Victorian consumers.[49]

While the text of s 1(a) does not confine the purpose of the MI Act and subject matter of the standards to the safety and quality of meat produced for human consumption, and to associated considerations of public health and hygiene, those matters are clearly central to the MI Act.

104 Part 2 of the MI Act deals with meat inspection. PrimeSafe must provide inspection services 'for the animals and meat at each licensed meat processing facility'.[50] There is no further description in pt 2 of the subject matter and requirements of inspection.

105 Part 3 of the MI Act concerns quality assurance programs. The content of a program approved by PrimeSafe for a meat processing facility must provide for, amongst other things, 'strategies to ensure that the standards required by this Act and the regulations are maintained at the facility'.[51]

106 Licensing is governed by pt 4 of the MI Act. An application to operate a meat processing facility must include evidence that the applicant is a fit and proper person to be granted a licence.[52] There is no direction in pt 4 about the matters to be taken into account by PrimeSafe in granting or refusing a licence application, the information it may require in assessing a licence application, or on the conditions or restrictions it may specify in granting a licence.

107 The connection between the primary purpose, being the quality and safety of meat for human consumption and the matters dealt with in pts 2, 3, 4 of the MI Act is made by the text of s 1 and by the functions of PrimeSafe in s 44. Accordingly, the meat inspection, quality assurance and licensing regimes are in place to support the primary purpose of the MI Act.

108 The provisions in pt 5 of the MI Act are largely directed to the safety and fitness of meat for human consumption. Part 5 div 1 addresses matters including testing of animals and meat for chemical residues and listed diseases; the unauthorised removal of meat from a processing facility prior to inspection; the prohibition on delivery to a processing facility of animals that are diseased or otherwise unfit for human consumption; and the prohibition on unauthorised alterations of processing facilities. The provisions in pt 5 div 2 concern fitness of meat for human consumption, other than s 37B which concerns fitness of meat for consumption as pet food. Part 5 div 3 creates offences in relation to unlicensed premises, removal of meat from a processing facility, failure to comply with licence conditions or restrictions, and providing false or misleading information to PrimeSafe.

109 I have already referred to ss 44, 48, found in pt 6 of the MI Act, which concerns PrimeSafe.

110 There is no reference in the text of the MI Act to animal welfare. While the words used in s 1(a) do not exclude animal welfare as a relevant consideration, reading the MI Act as a whole leads to the conclusion that, at most, it is a matter secondary or incidental to the primary purpose of the MI Act.

111 The MI Act and the POCTA Act are related statutes. The provisions of those Acts should be construed on the assumption that Parliament intended its legislation to 'operate harmoniously, or, in other words, rationally, efficiently and justly together'.[53]

112 The POCTA Act has always contained exclusions for the slaughter of animals in certain circumstances. Those exclusions are not absolute. The slaughter of an animal on a farm for consumption on that farm is excluded only if it is slaughtered in a humane manner.[54] The slaughter of animals in an abattoir is excluded from the POCTA Act only if it is in accordance with the MI Act.[55] The POCTA Act continues to apply if an animal is slaughtered on a farm or in a meat processing facility outside the terms of the statutory exclusions.

1. In this way, the POCTA Act demonstrates Parliament's concern for the welfare of animals in the process of their slaughter. This suggests that, to the extent the exclusions apply, it was intended that the welfare of animals to be slaughtered would be the province of the statutory provisions governing their slaughter. That position is confirmed in relation to farm animals by the requirement that they be slaughtered humanely. It would not be a rational outcome for welfare to be a requirement for the slaughter of farm animals on a farm, but not for the slaughter of the same animals in an abattoir.
2. The only activity in the processing of meat at an abattoir that is exempt from the POCTA Act is the actual slaughter of animals. The position which PrimeSafe adopts would mean that the welfare of animals remains a statutory concern for all processing activities at an abattoir up to the point of slaughter, but is of no concern during the process of the slaughter of an animal in accordance with the MI Act. PrimeSafe sought to explain the apparent irrationality of this position in two ways. First, PrimeSafe contended that the position is logical because the slaughter of an animal is antithetical to its welfare. Unqualified, this statement is undoubtedly correct. However, it is also undoubtedly the case that the manner of slaughter may have a substantial effect on the welfare of an animal.
3. Second, PrimeSafe submitted that Parliament intended to proceed on the understanding that slaughter under the MI Act is to occur in accordance with standards that animals are first rendered unconscious and insensible to pain. I reject this submission. The MI Act does not mandate either that an animal must be stunned so as to render it unconscious and insensible to pain in the process of its slaughter, or that a meat processing facility must comply with the Australian Standard as a condition of a licence to operate. The MI Act did not oblige PrimeSafe to specify those conditions on the Licence.
4. PrimeSafe's submissions would result in an important aspect of animal welfare falling into a lacuna between the two related statutes to the extent that slaughter occurred at a meat processing facility in accordance with the MI Act. That position is irrational, is not mandated by the text of the MI Act, and is inconsistent with context provided by the POCTA Act. I conclude that animal welfare is a relevant consideration to the standards for meat production for human consumption and pet food under the MI Act.
5. The focus of the Australian Standard is health and hygiene issues in relation to the production and transportation of meat and meat products. The definition of wholesomeness is a set of objective parameters directed to health, hygiene and safety. Thus, wholesomeness as defined in the Australian Standard relates to food safety.
6. The Australian Standard states that animal welfare objectives are included because they have an impact on two matters. The first is food safety, being 'wholesomeness' as defined. The second is 'public expectations as to wholesomeness'. The latter suggests that animal welfare objectives are relevant under the Australian Standard to a broader set of considerations that extend beyond strict food safety issues. I reject PrimeSafe's submission that the link to public expectations as to 'wholesomeness' merits consideration of animal welfare objectives only to the extent that it may impact on health, hygiene and safety issues related to meat production and consumption.
7. This conclusion is reinforced by a number of requirements imposed by the Australian Standard that concern animal welfare but cannot impact, at least in any direct way, health, hygiene and food and safety requirements for meat and meat products. The following examples are illustrative of this point.
8. An animal admitted to a meat premise may be affected by a disease. On that basis it may be determined that meat from the animal will not meet safety requirements for human consumption. However, the Australian Standard provides that if such an animal requires emergency slaughter it is to be killed as humanely as possible.
9. The Australian Standard allows for the ritual slaughter of animals involving sticking without prior stunning. The Australian Standard requires that an animal slaughtered in that fashion be 'stunned without delay after it is stuck to ensure it is rendered unconscious'. It is not evident how the stunning of an animal after it has been stuck could affect the quality of the meat produced.
10. More importantly, the concern for animal welfare is expressed clearly, unambiguously and repeatedly in cl 7 of the Australian Standard. The language used does not support PrimeSafe's contention that animal welfare is only a relevant consideration to the extent that it impacts the wholesomeness of meat and meat products. I conclude that the requirements imposed by the Australian Standard that animals must be slaughtered in a way that prevents unnecessary injury, pain and suffering and causes the least practicable disturbance, and be stunned so as to render them unconscious and insensible to pain before slaughter, are directly relevant to the welfare of the animal.
11. As with the MI Act, the primary focus of the Australian Standard is the safety and fitness of meat and meat products for human consumption. Considerations of animal welfare are secondary to that primary purpose.

124 The difference between the construction of the MI Act and the Australian Standard at which I have arrived, and the position adopted by PrimeSafe and explained by Coffey, is more one of form than substance. The qualification by PrimeSafe that animal welfare is only relevant to the extent it may impact the safety, quality or wholesomeness of meat does not appear to have impacted its regulation of Sinclair and the Licence in any way.

1. There is evidence that PrimeSafe had regard to animal welfare considerations in relation to the Licence. It imposed the condition requiring that Sinclair comply with the Australian Standard that included the animal welfare clauses on which Animals Australia relies. In September 2023, PrimeSafe imposed a further condition requiring installation of recording devices to monitor the application of the gassing system of the abattoir.

126 Adapting what was held in VicForests, the imposition by PrimeSafe of a condition requiring compliance with the Australian Standard shows that the protection of the welfare of animals to be slaughtered 'is an important non-material interest that may support or underpin a special interest' of a plaintiff, such as Animals Australia.[56]

127 For the following reasons, Animals Australia has a special interest in the issue of whether pigs are being slaughtered in a way that meets the standards of animal welfare, imported as a condition of the Licence.

128 First, Animals Australia is a leading animal advocacy organisation that has operated for over 40 years and has significant public support.

129 Second, Animals Australia's central objectives as stated in its constitution at [12] above, will be furthered by success in this case.

130 Third, Animals Australia has been recognised as a key stakeholder with respect to animal welfare matters by the Victorian and Commonwealth governments.

131 Fourth, Animals Australia has a long history of engagement with PrimeSafe regarding animal welfare in abattoirs.

132 Fifth, Animals Australia has an extensive history of engaging with Commonwealth and State governments and regulators, including PrimeSafe, in relation to the welfare of pigs in particular. Oogjes deposes to 24 examples of such engagement from 6 May 2014 to 2024. A significant number of those matters have involved Animals Australia communicating to governments and regulators opposing the gassing system. These activities were undertaken independently of this proceeding and show a commitment to the relevant subject matter.

133 Sixth, the precise identity and geographic location of Sinclair, the abattoir and the pigs it slaughters is not significant. What is significant is the welfare of the pigs that Sinclair slaughters. However, even if that were not so, in March 2023 Animals Australia made formal complaints to PrimeSafe regarding Sinclair's use of the gassing system, and attended meetings with the CEO and other officers of PrimeSafe in April and November 2023 to discuss that matter.

134 Success in this case will fundamentally advance Animals Australia's interest in the welfare of animals and the pigs that would be subjected to the gassing system. If it succeeds, Animals Australia will have gained an advantage[57] in respect of the welfare of those pigs, with which it has a substantial connection. The interest of Animals Australia is within the scope of the public interest in animal welfare that is sought to be protected or advanced by PrimeSafe's exercise of statutory power to impose compliance with the Australian Standard as a condition of the Licence.

135 The Court should reject the defendants' submission that Animals Australia's desire to act as a de facto regulator does not confer standing. It is inconsistent with the Court's repeated preparedness to concern itself with the content of executive action, even where there is a regulator, at the suit of a person who is not the subject of that action but has a special interest therein. Within the framework of the MI Act, public obligations are imposed on meat producers through the licensing system. Absent the law of equity and of standing together providing an effective procedure for curial enforcement of those obligations, enforcement could only come as a result of criminal proceedings brought in the Magistrates' Court at PrimeSafe's discretion.[58]

136 PrimeSafe's passivity on the issues underlying this proceeding and the position it has adopted in its defence and submissions supports Animals Australia's standing. PrimeSafe's defence contains surprising and untenable denials and propositions, including:

(a) denying that there is a public interest in the minimisation of the risk of injury, pain and suffering to animals, including pigs, during the process of their slaughter;

(b) asserting that the public interest to which the MI Act is directed is the safety and wholesomeness of meat and meat products, despite these concepts not appearing in the statute;

(c) denying that the Licence condition it imposed advances the public interest in the welfare of animals;

(d) asserting that it is not able to investigate matters that are not offences against the MI Act;

(e) asserting that the Australian Standard only concerns welfare so far as it might affect wholesomeness, or that it should be read down to do so;

(f) not admitting (which must mean that it does not know)[59] that exposure to the gassing system involves certain physiological changes in pigs causing injury, pain, suffering or disturbance; and

(g) positively denying that pain, injury, suffering or disturbance is caused.

PrimeSafe's position makes it perfectly clear that it cannot presently be trusted to advance the public interest in minimising the risk of injury, pain and suffering to animals, including pigs, during the process of their slaughter. This is a relevant matter to take into account in assessing standing.

137 The subject matter of this proceeding is Sinclair's compliance with the Licence. Animals Australia has not identified any special interest in that subject matter. The only real interest of Animals Australia appears to be its belief, however honestly and reasonably held, that Sinclair and operators like it should use an electrical stunning system in preference to a carbon dioxide gassing system. Success in the proceeding would do no more than vindicate Animals Australia's principles or belief. This is not an interest capable of conferring standing.

138 Until March 2023, Animals Australia showed no interest in Sinclair's compliance with the Licence. This is notwithstanding the fact that Sinclair has been using a gassing system since 2013, and has been subject to a Licence condition requiring it to comply with the Australian Standard since 2005. Animals Australia has not alleged any involvement in animal welfare activities in Benalla or the surrounding area, or otherwise in relation to Sinclair at the abattoir. It has no relevant ties to the area or the community.

139 Even on Animals Australia's broader formulation of the subject matter of the proceeding, it is necessary for it to have a special interest in the Licence. Animals Australia's contention that its special interest concerns the 'welfare of pigs' that are exposed to the gassing system is impermissibly broad and general. Animals Australia's formulation ignores the form and nature of the relief that it seeks and the factual substratum upon which it relies. The relief sought makes it clear that the subject matter of the proceeding is inseparable from Sinclair and the Licence. The existence of the Licence is the foundational circumstance upon which Animals Australia builds its claim for relief. It is an essential fact relevant to the assessment of standing, an assessment which is necessarily fact and context specific.

140 The assertion that Animals Australia would 'gain an advantage' or have its interest in the welfare of animals (specifically the pigs subjected to the gassing system) advanced if its claim was successful is also insufficient to confer standing. Any such advantage is, on any view, no more than the satisfaction of righting what Animals Australia considers to be a wrong or the upholding of a principle or belief it holds, and is insufficient to confer standing. Beyond the vindication of its belief, Animals Australia would be in the same position after this proceeding was heard and determined as it was before the proceeding was issued, in the sense that it would have no greater right or exposure regardless of whether a declaration is made. It has what can properly and fairly be described as 'mere intellectual or emotional concern' in the subject matter of the proceeding. This concern is plainly not enough to confer standing.[60]

141 The activities of Animals Australia can be summarised broadly as involving the writing of letters to various stakeholder recipients about issues concerning the welfare of pigs, attending meetings with various stakeholders as to those issues, and making complaints. Those activities are not sufficient to confer standing. Its objects and concern about animal welfare, desire to act as a de facto regulator and the degree to which it has been recognised as holding a special position in relation to the welfare of pigs are also insufficient to justify standing.

142 The absence of any regulatory or statutory proximity between Animals Australia and Sinclair or Sinclair's activities is significant. This is because 'the starting point is the statute, which defines the public duty said to rest upon the defendant, and thus the nature of the interest which the plaintiffs may have in enforcing its performance'.[61] For the following reasons, neither the statutory scheme nor the public interest support Animals Australia having standing in this proceeding. First, the statutory scheme does not provide for Animals Australia to participate in decision-making concerning whether Sinclair should be issued a licence, or the conditions that should attach to any licence issued. Second, Animals Australia does not seek to vindicate any public interest in the conduct or decisions of a public authority or the government. Sinclair is a private organisation conducting a private business. Third, Animals Australia's interests are not within an identifiable range of interests which are sought to be protected or advanced by the statutory scheme established by the MI Act.

143 Animals Australia's contention that this proceeding concerns obligations imposed under statute that are designed to secure public interests mischaracterises the obligation which it purports to enforce. Sinclair's compliance with the Licence conditions in the course of its private operations is not a public obligation. Animals Australia elides the circumstances that there may be a public interest aspect of the relevant clauses of the Australian Standard, with the conclusion that an obligation to comply with those clauses involves a public obligation which can be enforced by a third party. The two are not the same, and the Court should not accept the elision for which Animals Australia contends.

144 The statutory context does not support or assist the claim by Animals Australia to standing.

145 As I have already observed, animal welfare is a secondary consideration under the MI Act to the primary purpose of setting standards for meat production for human consumption. Contextually, it is relevant to the consideration of animal welfare that the MI Act necessarily concerns the slaughter of animals, an act that is antithetical to their welfare.

146 The MI Act does not mandate animal welfare as a relevant consideration to the exercise of any power or that in granting a licence, PrimeSafe must specify animal welfare conditions or restrictions to apply at a meat processing facility. The MI Act does not refer to the Australian Standard nor require compliance with it as a condition of granting a licence to operate a meat processing facility. There are no mandatory prescriptions or obligations in the MI Act that are directed to or informed by animal welfare.

147 The MI Act does not expressly recognise a public interest in animal welfare, impose public duties on meat processing facility licensees such as Sinclair in relation to that matter, or create a concomitant public right.

148 The MI Act does not provide for notice to be given of an application for or grant of a licence, or confer any public right of objection or review of a licence or the conditions or restrictions that apply to it. No public right is conferred to apply for a licence to be suspended or cancelled on grounds of non-compliance with a condition or restriction, or to take any action against the licensee in respect of such alleged non-compliance. Each of those matters is within the ambit of the powers granted to PrimeSafe under the MI Act. There is no statutory requirement for PrimeSafe to take into account the interests of third parties such as Animals Australia when exercising power under the MI Act. There is no statutory recognition of a public interest in compliance by a meat processing facility licensee with a licence condition that was not mandated by the MI Act.

149 Animals Australia relied on the decision in Hobart International Airport Pty Ltd v Clarence City Council ('Hobart'),[62] as supporting the proposition that where a public interest exists in a particular regulatory outcome that intersects with the plaintiffs' special interest, that is weighty consideration supporting standing. In Hobart, Gageler and Gleeson JJ said, discussing the relevance of a public interest:

Where a person is shown to have a material interest in seeking a declaration or other order, considerations bearing on the public interest can contribute to the sufficiency of that material interest to justify a court entertaining the proceeding in which the order is sought. A weighty public interest consideration, where it is applicable, is that the person's interest is within the scope of interests sought to be protected or advanced by the exercise of a statutory power or executive authority through which the right or obligation in controversy has come into existence. Another weighty consideration, where it is applicable, is that a party by or against whom the right or obligation is held and against whom the declaration is sought is a public authority or an executive government, which 'acts, or is supposed to act, not according to standards of private interest, but in the public interest'.[63]

The reasons of Gageler and Gleeson JJ in Hobart offer little support to Animals Australia. As I have already said, the MI Act is primarily concerned with the safety of meat for human consumption, and associated issues of public health and hygiene. The Act does not expressly recognise a public interest in animal welfare. Animals Australia seeks relief in relation to the issue against Sinclair, a private company, by alleging noncompliance with a condition attaching to the Licence it holds to operate the abattoir. This proceeding is not about any alleged non-compliance by the relevant statutory authority, PrimeSafe, with the statutory powers and obligations imposed on it by the MI Act.

150 Animals Australia identifies the subject matter of the proceeding as the welfare of the pigs exposed by Sinclair (noting it could have been by another abattoir operator) to the gassing system; whether those pigs are being slaughtered in a way that fails to minimise the risk and level of injury, pain, suffering and disturbance to them, contrary to the Australian Standard; and hence, whether that means the slaughter is contrary to a licence condition (though the obligation could have arisen via a different mechanism).

151 Animals Australia relied on a number of authorities to support the submission that courts have not required the subject matter of a proceeding to be identified in a formalistic way, or solely by reference to the particular defendant or its rights and obligations, but rather have looked to the issues in the litigation and the controversy underlying the dispute. Animals Australia submitted that this pattern supports its characterisation of standing, where the subject matter in this proceeding must be understood as 'the welfare of pigs Sinclair exposes to the Gassing System and, in particular, whether the pigs are being slaughtered in a way that minimises the risk and level of injury, pain, suffering and disturbance to them'.

152 Whether Animals Australia has standing is to be determined on the facts of this case considered in the statutory context which applies. However, a closer consideration of authorities relied on show that they do not support Animals Australia's conception of the subject matter of the proceeding nor its claim to standing in this case. I consider these authorities below.

153 Animals Australia submitted that in VicForests, the identified subject matter of the proceeding (in which the plaintiff was found to have a special interest, hence standing) was not VicForests, or compliance with a 'buffer restriction'.[64] It was rather the legality of proposed logging operations in the Kinglake and Central Highlands forests.[65]

154 In VicForests the Court identified the purpose of the proceeding was 'enforcement of a regulatory standard in relation to logging'.[66] The central issue was the lawfulness of logging operations in Central Highlands forests proposed by VicForests, considered in the context of regulatory prohibitions that were 'direct, mandatory and informed by the protection of the threatened species'.[67] The Court concluded that the proceeding directly related to the respondent's special interest in preserving native forests of the Central Highlands as demonstrated by its activities in that local environment, and that if the respondent obtained the relief sought it would gain the advantage of protecting the particular forests to which it was connected.

155 Animals Australia submitted that in Environment East Gippsland Inc v VicForests ('Environment East Gippsland'),[68] the subject matter of the proceeding was not VicForests, or compliance with some specific, identified, restriction or condition. It was rather the 'implementation of the [East Gippsland Forest Management Plan] and the enforcement of the statutory framework governing logging at Brown Mountain Creek'.[69]

156 In Environment East Gippsland, the plaintiff claimed that the logging of forests at Brown Mountain Creek proposed by VicForests would breach regulatory prescriptions in the Forest Management Plan ('FMP') directed to preservation of habitat for endangered species. Osborn J said that the case fundamentally concerned whether a moratorium on logging the forests at Brown Mountain Creek that was the result of submissions made some years earlier by the plaintiff to the responsible government department should continue. Osborn J noted that the plaintiff had directly contributed to the development of the local FMP, and had conducted wildlife surveys for many years to which prescriptions on logging were directly responsive. Osborn J said the case was 'fundamentally concerned with the adequacy of these prescriptions'.[70] Osborn J noted the activities in which the plaintiff had engaged in relation to the local environment in issue and concluded that it did have a special interest in the implementation of the FMP and the enforcement of the statutory framework governing logging at Brown Mountain Creek.[71]

157 In VicForests and Environment East Gippsland, the subject matter of the proceeding was defined by the nature and purpose of the regulatory obligations imposed on the defendant in relation to the activity in question, being the logging of specific forests, and the relief sought, being the prevention or restriction on logging to protect environmental values in forests. The plaintiffs demonstrated a special interest in the protection of those environmental values in those forests and that success in the proceeding would be of real benefit to them.

158 Animals Australia submitted that in Australian Conservation Foundation Inc v Minister for Resources ('Australian Conservation Foundation v Minister for Resources')[72] the subject matter of the proceeding (in which the applicant was found to have a special interest, hence standing) was not the second respondent, Harris-Daishowa (Australia) Pty Ltd, or its licence issued under the Export Control (Unprocessed Wood) Regulations 1986 (Cth). It was rather the legality of 'logging, including logging for the purpose of the export of woodchips, which is occurring in the forests of south-east Australia', characterised as a 'major environmental issue of the present time'.[73]

159 In this case, the applicant, the Australian Conservation Foundation ('ACF') applied for review of a decision by the first respondent, the Minister, granting a licence to Harris-Daishowa (Australia) Pty Ltd for the export of woodchips sourced from forests that were part of the National Estate under the Australian Heritage Commission Act 1975 (Cth). The effect on the environment was a relevant statutory consideration that the Minister should, in appropriate circumstances, take into account in granting or refusing a licence. The challenge to the Minister's decision to grant the licence was brought on the ground that it did not meet a statutory requirement to not adversely affect the National Estate unless the Minister was satisfied there was no feasible and prudent alternative. The controversy underlying the proceeding was the logging of forests that were part of the National Estate for the purpose of the export of woodchips. Davies J considered ACF had a special interest in those areas of the South East Forests that are National Estate.[74]

160 The central issue in Australian Conservation Foundation v Minister for Resources was whether the Minister, in granting a licence to the respondent to log the forest had complied with the express statutory obligation to protect the National Estate. There was a clear intersection between the statutory public interest in the National Estate, the statutory duty on the Minister to protect the National Estate, and ACF's own interest in that matter. The subject matter of the Australian Conservation Foundation v Minister for Resources proceeding was national and not a local issue. The forests under threat of logging were part of the National Estate in which ACF had a special interest.

161 Animals Australia submitted in North Coast Environmental Council Inc v Minister for Resources ('North Coast')[75] the subject matter of the proceeding was not Sawmillers Exports Pty Limited ('Sawmillers'), or its export licence granted pursuant to the Export Control (Unprocessed Wood) Regulations 1986 (Cth). It was rather 'the preservation of forests in [the plaintiff's] "defined area" of activities',[76] and certain consequences for 'the values [the plaintiff] regards ... as under threat by the licence'.[77]

162 North Coast concerned a challenge by the applicant to the respondent's decision to grant a licence to export woodchips to Sawmillers. The applicant's activities showed a specific concern with and interest in the preservation of the forest in its 'defined area' of activities that was the area affected by the operations generating the woodchips that were the subject of the export licence granted to Sawmillers. Further, the applicant had a long involvement with successive licences granted to Sawmillers in relation to protection of the forests that were the focus of its concerns. Sackville J concluded that the applicant had a special interest in the respondent's decision to grant Sawmillers an export licence. Sackville J said '[o]n the evidence there is no other conservation body with a greater interest or commitment to the issue raised by the grant of export licences to Sawmillers'.[78]

163 Animals Australia submitted that in Tasmanian Conservation Trust Inc v Minister for Resources & Gunns Ltd ('Tasmanian Conservation Trust')[79] the subject matter of the proceeding was not Gunns Ltd, or its licence issued under the Export Control (Unprocessed Wood) Regulations 1986 (Cth), rather, it was the legality of a decision that concerned 'woodchipping and the preservation of Tasmanian forests'.[80]

164 Like North Coast, Tasmanian Conservation Trust concerned the first respondent's grant of a licence and in-principle approval to export woodchips to the second respondents. Sackville J said the question in the proceeding was 'whether the export licence and the in-principle approval were granted in accordance with the procedures prescribed by law.[81] Sackville J said:

As in North Coast, I think that there are a number of factors in the present case that justify the conclusion that the [applicant] is a person aggrieved for the purpose of challenging the [first respondent]'s decisions to grant an export licence to [the second respondent] and to grant an in-principle approval to [the second respondent] to export woodchips over a five-year period. These factors, to use the language of Stephen J in [Onus] ..., show the importance of the [applicant]'s concern with the subject matter of these decisions and the closeness of its relationship to that subject matter.[82]

165 The subject matter North Coast and Tasmanian Conservation Trust was the licences granted to Sawmillers and Gunns Ltd to export woodchips sourced from forests in the north coast of New South Wales and Tasmania respectively, and whether those licences had been granted by the respondents in accordance with statutory procedures directed to environmental protection. A practical effect of the licences was to threaten environmental values in forests in which the plaintiff had a special interest. The applicants had standing because of activities aimed at protecting the particular environment that would be impacted by the licences.

166 Animals Australia submitted that in Animals' Angels e.V. v Secretary, Department of Agriculture ('Animals' Angels'),[83] the subject matter of the proceeding (in which the appellant was found to have a special interest, hence standing) was not International Livestock Export Pty Ltd, or its export licence granted pursuant to the Export Control Act 1982 (Cth). It was rather the legality of a decision that 'directly impacts on animal welfare'.[84] Animals Australia submitted Animals' Angels was an analogue of this case in respect of the factual question of standing.

167 Animals' Angels concerned the international transport of livestock from Australia as governed by the Australian Meat and Livestock Industry Act 1997 (Cth). There are some superficial similarities to the facts of this proceeding. The appellant was a charitable organisation which sought to effect a concern with animal welfare by activities that included making complaints to regulators and seeking regulatory reform. The appellant had no specific concern with the export licence holder or the geographic location from or to which it exported livestock. The relief sought in Animals' Angels was directed to an alleged contravention of a licence to export livestock relating to the welfare of animals while in transit.

168 More specifically, the appellant in Animals' Angels applied to review a decision by a delegate of the respondent not to issue a notice to the holder of a licence to export livestock to show cause why the licence should not be cancelled, renewed, suspended or the licensee not be reprimanded by reason of the failure during a livestock export voyage to comply with the licence conditions relevant to the health and welfare to the livestock concerned.

169 The following facts explain why a different conclusion as to standing was arrived at in that case, and emphasises why Animals Australia does not have standing in this proceeding.

170 First, the appellant in Animals' Angels sought a declaration that the respondent had failed to exercise his duty under the relevant statutory provisions in relation to the licence, and an order that the decision not to issue the notice was infected by a jurisdictional error and directing the respondent to issue the notice. A controversy underlying the proceeding was the licensees failure to comply with the licence conditions.

171 Second, in Animals' Angels, the welfare of animals was expressly and repeatedly addressed in the relevant legislative provisions. Importantly, the particular aspects of animal welfare and the way in which it was to be protected were both a specific feature of the legislative provisions and the basis for the claim made by the appellant. There was a clear intersection between a public interest strongly expressed in the legislation and the relief the appellant sought.

172 Third, relief was sought against the public authority because of its alleged failure to fulfil its statutory obligation to protect the identified public interest.

173 Fourth, the object and activities of the appellant in Animals' Angels showed that it had a special interest in the subject matter of the proceeding and the relief it sought. The appellant's core concern was the transport and export of live animals for slaughter. It had researched and investigated the export of live animals for 14 years; established permanent teams in Australia and internationally that regularly conducted on-site investigations into places where animals were held, including transport vehicles, slaughterhouses, ports, border control stations and livestock markets; analysed the results of these investigations in reports supported by photos and video footage; and submitted those reports to relevant authorities in order to enforce relevant legislation or seek further protective measures. The role of the appellant's Australian representative was to monitor and prepare investigative reports on saleyards, short and long distance transport and live animal export for compliance with relevant laws, and to report on non-compliance to relevant authorities.

174 The degree and proximate nature of the appellant's interest in the subject matter of the proceeding in Animals' Angels is comparable to that recognised by the Court of Appeal in VicForests and by Osborn J in Environment East Gippsland. The interests of Animals Australia in the subject matter of this proceeding is quantitatively and qualitatively inferior, and materially less direct, than the interest of the appellants in Animals' Angels and VicForests and the plaintiff in Environment East Gippsland.

175 I accept Sinclair's criticism of the formulation proposed by Animals Australia as being impermissibly broad and general. The central allegation made by Animals Australia in the proceeding is that Sinclair is in breach of a condition of the Licence to operate the abattoir because its use of the gassing system to stun pigs contravenes clauses of the Australian Standard concerned with animal welfare. The relief Animals Australia seeks relies on and responds to that allegation. I conclude that the subject matter of the proceeding is the lawfulness of Sinclair's operation of the abattoir and whether its use of the gassing system complies with conditions of the Licence concerning the welfare of pigs in the process of stunning and slaughter.

176 The objects and activities of Animals Australia establish that it has a broad interest in animal welfare and in preventing or alleviating the suffering of all animals. This includes membership of the WFA and associated involvement in international forums concerned with animal welfare; advocacy for different animal species across a range of issues affecting their welfare; and State, national and international recognition as a key stakeholder in relation to animal welfare policy and issues, including those matters relate to livestock and production animals. Evidence of those matters emphasises the breadth of the interest Animals Australia has in animal welfare issues.

177 Animals Australia does have an interest in animal welfare issues that arise from the slaughter of livestock and production animals at abattoirs. Animals Australia has been recognised by both the Commonwealth and States as a responsible animal welfare organisation. It has engaged in activities to advance those interests, directed at changing standards, processes and guidelines that apply broadly across the meat production industry so as to better protect the welfare of pigs. Since 2014, Animals Australia has advocated at a national, State and industry level about stunning systems used in the process of pig slaughter.

178 Without more, the above matters do not establish that Animals Australia has a special interest in the subject matter of this proceeding.

179 However, Animals Australia has engaged in relatively few activities that are more directly related with the subject matter of the proceeding or the defendants.

180 Since 2011, Animals Australia has made a total of 12 complaints to PrimeSafe about slaughter welfare issues at abattoirs. Before 2023, only one of these, which was made in 2011, related to alleged pig slaughter cruelty at an abattoir. Five of the complaints concerned other production animals.

181 Animals Australia made two complaints to PrimeSafe in 2023 about the operation of pig abattoirs, one of which related to the abattoir operated by Sinclair. A third complaint was made to the other relevant authorises. The three complaints were in part about the use of gassing systems to stun pigs.

182 The three abattoirs came to the attention of Animals Australia as a result of the 7.30 Report. Similar complaints about the use and operation of the gassing system and its impact on the welfare of pigs were made in relation to each abattoir.

183 Evidence relied on by Animals Australia is to the effect that 80% of pigs slaughtered at abattoirs in Australia are stunned using gassing systems. This suggests that the choice by Animals Australia to bring this proceeding against Sinclair was a matter of chance because the abattoir happened to be the subject of the 7.30 Report.

184 Animals Australia engages in activities at a national and sometimes international level. Its activities do not focus on Victoria or any geographic region within this State or disclose any interest in Benalla or in Sinclair's operation of the abattoir other than as a result of the 7:30 Report. Until the 7:30 Report was aired, Animals Australia had no involvement with the successive licences granted to Sinclair to operate the abattoir, or with Sinclair's long term use of a gassing system to stun pigs. The complaint made to PrimeSafe about Sinclair that quickly evolved into this proceeding does little to support Animals Australia having a special interest sufficient to establish standing.

185 Animals Australia has demonstrated through its activities at a national, State and industry level that it fundamentally opposes the use of gassing systems to stun pigs in the process of slaughter. Those activities have been directed to review of industry standards and regulations governing pig slaughter, including as to the use of gassing systems. However, there is no sufficient intersection between the interest of Animals Australia in achieving reform at a national and state level and the local issue of compliance by Sinclair with the condition of the Licence to operate the abattoir in Benalla. I accept Sinclair's submission that success in the proceeding would simply vindicate Animals Australia's belief that gassing systems should not be used in the slaughter of pigs.

186 It is PrimeSafe's position that, used properly, a gassing system to stun pigs does not breach the Australian Standard. From Sinclair's point of view, proper use of the gassing system to stun pigs complies with the licence requirements imposed by the industry regulator that has considered the requirements of the Australian Standard in relation to the welfare of pigs. As Animals Australia believes that the use of gassing systems is contrary to the welfare of pigs, it wishes to take a different regulatory approach to PrimeSafe in relation to Sinclair's compliance with the Licence. By bringing this proceeding, Animals Australia is effectively seeking to step into the shoes of the regulator. To Sinclair, with whom Animals Australia has no relationship, it is a busybody in a proceeding that requires Sinclair to defend the legality of its actions at great cost and inconvenience.[85]

187 This proceeding concerns the local issue of compliance by Sinclair with the conditions of the Licence to operate the abattoir in Benalla. There is no statutory recognition of a public interest in that issue and no claim made in the proceeding seeking to have the relevant statutory authority comply with a statutory duty in the public interest. The interest of Animals Australia expressed at a national and state level in the welfare of pigs and the use of gassing systems in their slaughter does not sufficiently intersect with the local issue of Sinclair's compliance with the Licence conditions.

188 I conclude for the above reasons that Animals Australia does not have standing to bring the proceeding.

189 Because of my conclusion on standing it is not strictly necessary to determine the summary dismissal application made by Sinclair. However, because it has been argued by the parties and if it becomes relevant in future, I will proceed to consider the application.

190 Sinclair has applied for summary dismissal under s 62 of the Civil Procedure Act 2010 (Vic) ('CPA') and r 22.16 of the Rules. The foundation of Sinclair's application is that the declaration sought by Animals Australia (set out at [75] above) would involve a determination that it has engaged in criminal conduct by contravening s 41 of the MI Act. Sinclair argues that the principles that exclude an entitlement to declaratory relief apply equally to the injunction sought by Animals Australia. Further, it argues that the injunction sought by Animals Australia is ancillary, in that without the declaration there is no basis for that relief. Sinclair argues that that there are no exceptional circumstances which would entitle Animals Australia to obtain relief that goes directly to allegations of criminality against it.

191 The test on an application for summary dismissal is not in issue. To succeed, Sinclair must establish that the claim brought by Animals Australia has no real prospect of success.[86] The Court has a residual discretion to refuse an application if it is not in the interests of justice to summarily dismiss a proceeding, or the dispute is of such a nature that only a full hearing on the merits is appropriate.[87] The jurisdiction to summarily terminate a proceeding should be exercised with caution.

192 A court will not grant relief in a civil proceeding in relation to conduct that amounts to a criminal offence other than in exceptional circumstances.[88] This is because making a declaration as to criminality will involve a civil court usurping the functions of a criminal court.[89] A declaration as to criminality has the effect that a defendant will be found to have committed a crime in a civil proceeding without having the advantages associated with a criminal proceeding.[90]

193 A court will be more likely to grant relief where only future conduct is in issue.[91] Most cases where a court has intervened have proceeded on agreed facts and involve only determination of a question of law.[92] The likelihood of criminal charges being laid against a defendant is a relevant consideration.[93] It will also be relevant to consider whether there is a real dispute between the parties, the public interest in granting the relief, and whether the effect of the declaration is to make certain conduct criminal.[94] It may be relevant to consider the response of an industry regulator to the circumstances of the case.[95]

194 The effect of the declaration Animals Australia seeks would be that Sinclair has failed to comply with a condition of the Licence over a significant period of time. The declaration necessarily carries with it the finding that Sinclair has committed offences under the MI Act.

195 There are no exceptional circumstances sufficient to justify the Court's exercise of its discretion to make the declaration. First, PrimeSafe has not foreclosed the possibility that it would take action against Sinclair if the Court determines there has been a failure to comply with Licence conditions. Second, the Court will need to make factual findings about the gassing system and resolve competing expert evidence about stunning systems, the Australian Standard and accepted industry practice. Third, Animals Australia seeks a declaration as to the lawfulness of both past and future conduct. Fourth, there is no general public interest in the Court making the declaration sought.

196 The Court possesses a broad and unfettered discretion to issue declaratory relief within the ambit of its jurisdiction. There is no uniform test to be satisfied for a declaration over potentially criminal subject matter to be made. Exercise of the court's discretion will depend on the nature of the relevant criminal conduct; whether the declaration sought is that the defendant has committed a crime; whether there are disputed facts; what department of law is concerned; and whether criminal proceedings against the defendant are pending or likely.

197 Sinclair's application for summary judgment seeks to invert the ordinary sequence of events which involve a court considering whether to exercise an equitable remedial discretion by granting declaratory relief, having regard to all facts as found and all matters bearing on the discretion.[96] Sinclair bears the onus of establishing grounds for summary judgment. That onus cannot be discharged by reference to only one supposed discretionary factor before other discretionary factors can be known and considered.

198 For the following reasons, the Court should not accept that it is fanciful that Animals Australia would succeed in obtaining the relief it seeks even if it makes out its substantive case:

(a) First, the offence created by s 41 of the MI Act are regulatory in character and are not in the nature of true crime.

(b) Second, the offence is a summary offence with a maximum penalty that is presently less than $10,000. Any trial of a charge would be by judge alone, meaning there is no potential for a declaration to adversely impact a jury.

(c) Third, a criminal prosecution of Sinclair, which can only be commenced by PrimeSafe, is not likely. It would be manifestly unreasonable for PrimeSafe to prosecute Sinclair for use of the gassing system when it in fact approved the use of that system.

(d) Fourth, Sinclair's conduct becomes time barred from prosecution after one year. Any specific conduct brought to light in evidence in this proceeding would likely be barred by the time the trial is conducted and relief ordered.

(e) Fifth, the declaratory relief sought by Animals Australia is not in the form that Sinclair has committed a crime.

(f) Sixth, the nature of the contest between the parties is conducive to the grant of a declaration. The case is not relevantly fact sensitive and the declaration sought is in the public interest.

(g) Seventh, the decisions in VicForests, Thorpe v Head, Transport for Victoria ('Thorpe')[97] and Warburton Environment Inc v VicForests (No 2) ('Warburton Environment')[98] can be distinguished because those cases involved striking out pleadings or refusing amendments, and were not decided on the test that applies under ss 63, 64 of the CPA.

199 There are two reasons for granting declaratory relief in this case. First, a declaration that gives PrimeSafe guidance as to the breadth of its statutory role would be useful and in the interests of justice, considering its passivity on the issues underlying the proceeding in the time leading up to it being commenced and the position it has adopted in its defence and submissions. PrimeSafe submits that its statutory functions do not extend to matters of animal welfare, despite its own materials and historical responses to animal welfare complaints suggesting otherwise. Second, the declaration sought would serve the public interest in pigs not suffering intensely and more than is required in the production of their meat. In the absence of a declaration, PrimeSafe would not investigate whether use of the gassing system is contrary to the terms of the Licence.

200 The application by Sinclair for summary judgment should not be granted where Animals Australia seeks injunctive relief in addition to declaratory relief.

201 The declaration sought by Animals Australia puts in issue whether Sinclair's past and continuing use of the gassing system is a breach of a condition of the Licence.

202 Animals Australia has attempted to couch the contest in abstract terms, that use of gassing systems necessarily results in injury, pain, suffering and disturbance in pigs that would be reduced, possibly eliminated to nil, if an electrical stunning system were used. However it seems unlikely that the trial will be reduced to a simple abstract contest. For example, by its defence, Sinclair denies:

(a) that use of a gassing system necessarily results in injury, pain, suffering and disturbance in pigs;

(b) that an electrical stunning system would result in pigs not suffering or suffering less injury, pain, suffering and disturbance;

(c) that its use of the gassing system causes pigs injury, pain, suffering and disturbance that would be avoided or significantly reduced by use of an electrical stunning system; and

(d) that the abattoir is not being operated in a way which contravenes the Australian Standard.

203 The potential for there to be substantial factual disputes at trial is confirmed by the materials filed in this application. For example, in its letter of complaint to PrimeSafe about Sinclair in March 2023, Animals Australia asserts:

High concentration CO2 pig gassing, by definition, causes very significant suffering in pigs. This fact is known and accepted by industry and government.

Also known to industry and government is the vast array of best available science regarding welfare issues associated with high concentration CO2 pig gassing.

(a) how the gassing system is used at the abattoir;

(b) whether pigs stunned at the abattoir by use of the gassing system experience any and if so what magnitude of injury, pain, suffering and disturbance;

(c) whether an electrical stunning system is a practicable alternative to the use of the gassing system;

(d) whether pigs stunned at the abattoir using an electrical stunning system would experience less injury, pain, suffering and disturbance. This may involve consideration of how and by what magnitude these negative impacts will be reduced; and

(e) the interpretation and application of the Australian Standard relevant to stunning pigs at the abattoir.

Other factual disputes may emerge as the proceeding progresses. However it is sufficiently clear at this stage that the inquiry at trial will be fact-rich and likely involve substantial lay, expert and documentary evidence.

205 The degree to which the facts are in issue and the potential for extensive evidence to be led at trial are matters that weigh heavily against the declaratory relief sought by Animals Australia being available.

206 In its pleaded form, the declaration does not assert that Sinclair has acted in breach of s 41 of the MI Act. However, that is the inescapable substance of the case brought and the relief sought by Animals Australia. It is not to the point that depending on a determination as to the nature of an offence under s 41 of the MI Act, Sinclair may have a defence to a charge of breach of s 41 in that it acted on the basis of an honest and reasonable mistake that its use of the gassing system, having been approved by PrimeSafe, did not contravene the Australian Standard.[99] The declaratory relief sought by Animals Australia could only be granted on the basis of the conclusion that by its use of the gassing system, Sinclair has contravened the Australian Standard and breached s 41 of the MI Act. Such a determination of facts by this Court would undoubtedly usurp the role of a criminal court in relation to any charge against Sinclair.

207 Reliance by Animals Australia on my decision in WOTCH Inc v VicForests (No 7) ('WOTCH (No 7)')[100] is misplaced. That case concerned a complex regulatory scheme governing timber harvesting in Victorian State forests that required VicForests to undertake timber harvesting operations in accordance with an allocation order and in compliance with a Code of Practice. The allocation order and Code of Practice were each lengthy and detailed documents that contained directions and obligations that were not expressed in consistent language. It was in those circumstances that I did not accept the assertion by VicForests that any non-compliance with an allocation order or the Code of Practice would have the necessary consequence that it was guilty of an offence under legislation which applied. The complexity and uncertainty that underpinned my conclusion in WOTCH (No 7) is absent in this case.

208 Only PrimeSafe can bring charges under s 41 of the MI Act. The declaration would be based on a conclusion that Sinclair's use of the gassing system involved a continuing contravention of the Licence and therefore a continuing breach of s 41. I accept that if a declaration was made, PrimeSafe would act in accordance with the Court's determination.

209 There is no evidence that PrimeSafe is investigating or contemplating charges against Sinclair relating to their use of the gassing system. However, I accept Sinclair's submission it is appropriate to consider the likelihood of a criminal prosecution if the case proceeds against it and a declaration is made.

210 PrimeSafe has a discretion as to whether to bring charges against Sinclair. The likelihood of a prosecution may be reduced because PrimeSafe's current position is that the proper use of gassing systems to stun pigs complies with the Australian Standard. However, a prosecution has not been foreclosed. Primesafe may review the decision not to prosecute Sinclar because it considers, based on findings at trial, that the gassing system was not used properly at the abattoir or because the Court has concluded that Sinclair's use of the gassing system has not prevented unnecessary injury, pain and suffering or caused the least possible disturbance to pigs slaughtered at the abattoir.

211 I accept that the regulatory nature of s 41 of the MI Act and the criminal conduct it concerns are relevant to the summary dismissal application.[101] Animals Australia emphasised that a breach of s 41 is a summary offence that carries a relatively modest maximum penalty. Even taking into account that a 12-month time limit applies to commencing proceedings,[102] a declaration that Sinclair's continuing course of conduct was in breach of s 41 would expose it to multiple charges. However, the application of sentencing principles would likely result in the imposition of an aggregate fine or the moderation of individual fines for separate offences. Further, the risks associated with a jury trial of criminal charges does not arise in this case.

212 A prosecution made s 41 of the MI Act can only be brought by the chairperson of PrimeSafe or a person authorised by them. If the claim for a declaration were allowed to prosecute it would mean that Sinclair and other businesses would be exposed to prosecution of claims alleging criminal conduct by any person who is able to establish standing.[103]

213 Animals Australia submitted that the approach taken by the High Court of Australia in Australian Softwood Forests Pty Ltd v Attorney-General (NSW); ex rel Corporate Affairs Commission ('Australian Softwood Forests'),[104] in which the Court approved the decision of the primary judge to grant declarations that the defendants had contravened regulatory provisions of the Companies Act 1961 (NSW), was binding and should be followed. The following matters must be appreciated in relation to this decision. First, while the High Court of Australia ruled that the declarations should be made, it did not explain why. Second, the declarations were sought by the corporate regulator in circumstances where there had been no suggestion at any stage that criminal charges might be laid by it against the defendants. It appeared that the regulator had chosen to pursue the defendants' impugned conduct in civil rather than criminal proceedings. Third, the case proceeded on an agreed statement of facts. In those circumstances, it is not possible to conclude that the result in Australian Softwood Forests reflects 'a wholesale change to the circumstances in which a civil court will intervene in the criminal law'.[105]

214 Animals Australia submitted that PrimeSafe's misunderstanding of its regulatory role under the MI Act was a reason why declaratory relief should be available. For the reasons stated at paragraphs [124]-[125] above, Animals Australia overstated the difference between the regulatory position adopted by PrimeSafe and the construction of the MI Act at which I have arrived. It should be remembered in this context that it was PrimeSafe, as the relevant regulator, that imposed a condition on the Licence that Sinclair comply with the Australian Standard that includes the matters on which Animals Australia relies that relate to animal welfare. Further, PrimeSafe's position is that it will investigate matters related to animal welfare within its jurisdiction and refer potential breaches of the POCTA Act to a relevant authority for investigation and action. PrimeSafe has not ignored the question of whether the use of the gassing system to stun pigs is a contravention of the Australian Standard. The position is simply that it does not agree with Animals Australia's conclusion on that issue.

215 Animals Australia argues that the strong public interest in the declaration is a matter that favours allowing the proceeding to continue. The evidence led by Animals Australia does show, by virtue of matters including the public support of Animals Australia and the response to the Victorian parliamentary inquiry, that there is broad interest by members of the public in animal welfare generally and more specifically the welfare of pigs in the livestock and production industry. Simply identifying a general public interest in those matters is not directly to the point. There is no express recognition of a public interest in animal welfare in the MI Act, and it is a relevant consideration only in the more limited way that I have identified. The declaration is sought to be made against a private company, Sinclair, and not the public authority, PrimeSafe.[106] The public interest in Sinclair complying with the Licence conditions relating to animal welfare should be considered in the context of the legislative intention that breach of licence conditions should be tested through criminal procedures.[107] Little weight should be accorded to the public interest in allowing the claim for declaratory relief to proceed.

216 I do not accept Animals Australia's submission that the issue of criminality should only be considered after the trial has been heard as a matter relevant to whether the Court should exercise the discretion to grant the declaratory relief. In ASIC v HLP,[108] Finkelstein J, considering whether a claim for declaratory relief amounting to criminal conduct should be allowed to proceed, said:

The power to make each order is discretionary. Here, however, we are not concerned with the usual factors that bear on the discretion to grant or withhold relief. In this case the court acting in its civil jurisdiction is asked to make an order in relation to [the second defendant's] allegedly criminal conduct. In that kind of case special rules apply. It is necessary to examine those rules.[109]

The approach consistently taken by courts in cases such as VicForests, Thorpe, Warburton Environment, Pharmacy Guild of Australia v Ramsay Health Care Ltd[110] and Inglis v Moore[111] has been to determine early in a proceeding that a declaration as to criminality should not be available.

217 I reject Animals Australia's submission that the decisions in VicForests, Thorpe, and Warburton Environment should be distinguished because those cases concerned strike out or amendment of pleadings and not summary dismissal. The test applied in each of those cases was whether the claim for declaratory relief or its criminality had a real prospect of success.

218 In addition to declaratory relief, Animals Australia seeks an injunction restraining Sinclair from using the gassing system. The only basis for the injunction is the allegation that the use of the gassing system contravenes the Australian Standard and is therefore a breach of a condition of the Licence. There is no doubt that failure to comply with a licence condition is an offence under s 41 of the MI Act.

219 In Gouriet v Union of Post Office Workers,[112] Lord Wilberforce said the grant of an injunction to enforce the criminal law was 'an exceptional power confined, in practice, to cases where an offence is frequently repeated in disregard of a, usually, inadequate penalty ... or to cases of emergency'.[113] Lord Diplock explained:

It is in my view appropriate [that an injunction to restrain a potential offender from committing a criminal offence] be used only in the most exceptional of cases. It is not accurate to describe it as preventative justice. It is a deterrent and punitive procedure; but this is characteristic too of the enforcement of criminal law through the ordinary courts of criminal jurisdiction. The very creation by Parliament of a statutory offence constitutes a warning to potential offenders that if they are found guilty by a court of criminal jurisdiction of the conduct that is proscribed, they will be liable to suffer punishment up to a maximum authorised by the statute. When a court of civil jurisdiction grants an injunction restraining a potential offender from committing what is a crime but not a wrong for which there is a redress in private law, this in effect is warning him that he will be in double jeopardy, for if he is found guilty by the civil court of committing the crime he will be liable to suffer punishment of whatever severity that court may think appropriate, whether or not it exceeds the maximum penalty authorised by the statute and notwithstanding that he will also be liable to be punished again for the same crime if found guilty of it by a court of criminal jurisdiction.[114]

220 The appellant in VicForests v Environment East Gippsland Inc[115] submitted that injunctive relief should not be granted to restrain the breach of a statutory prescription where the breach attracts criminal liabilities. The Court of Appeal, discussing the authority of Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39, said:

In that case, the plaintiff sought to restrain the publication of certain matters on the basis of, among other things, a threatened breach of an offence in the Crimes Act 1914 (Cth) concerning the disclosure of confidential government information.[116]

The Court of Appeal, rejecting the appellant's submission said:

It is the case that the measures required by the injunctions are directed to ensuring that VicForests complies with the Code. But that is not to enjoin criminal conduct. Yes, it is an offence to take timber from State forests other than in accordance with an allocation order. And, yes, the allocation order requires compliance with the Code. But that does not mean that a particular failure to comply with the Code is an offence.[117]

221 The position is different in this case. The language used in the Australian Standard that Animals Australia alleges Sinclair continues to contravene is clear and consistent. The effect of the injunction would very clearly be to enjoin criminal conduct.

222 There is no suggestion that Sinclair is continuing to use the gassing system because the penalties for breach of s 41 of the MI Act are inadequate. I infer a reason Sinclair is using the gassing system is PrimeSafe's view that proper use of the gassing system does not contravene the Australian Standard.

223 I conclude for the above reasons that there is no real, as distinct from fanciful, prospect of Animals Australia obtaining the relief sought in this proceeding. I further conclude that there is no basis for allowing the proceeding to go to trial despite there being a real prospect of success. Had it been necessary I would have granted Sinclair's application for summary judgment.

224 I have concluded that Animals Australia does not have standing to bring the proceeding. I will order that the proceeding be dismissed. I will hear from the parties as to the form of orders and costs.

[1] The previous iteration of the Standard is AS4696:2007.

[2] The orders of Richards J referred to the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which are superseded by the Supreme Court (General Civil Procedure) Rules 2025 (Vic).

[3] Meat Industry Act 1993 (Vic) s 1 ('MI Act').

[15] Prevention of Cruelty to Animals Act 1986 (Vic) s 1 ('POCTA Act').

[20] Victoria, Parliamentary Debates, Legislative Assembly, 7 September 1995, 158 (Bill McGrath, Minister for Agriculture).

[21] Australian Standard for the Hygienic Production and Transportation of Meat and Meat Products for Human Consumption (AS4696:2023), 7.

[25] VicForests v Kinglake Friends of the Forest Inc [2021] VSCA 195; (2021) 66 VR 143, 151 [21] (Niall, Emerton and Kennedy JJA) ('VicForests').

[28] [1981] HCA 50; (1981) 149 CLR 27 ('Onus').

[30] People of the Small Town of Hawkesdale Inc v Minister for Planning (2022) 71 VR 550, 561-2 [43] (Emerton P, Niall and Kennedy JJA) ('Hawkesdale'); VicForests (n 25) 161-2 [63].

[33] Hawkesdale (n 30); Maguire v Parks Victoria [2020] VSCA 172; (2020) 245 LGERA 141, 157-8 [77]-[80] ('Maguire'); VicForests (n 25) 161 [60](e).

[34] Maguire (n 33) 16-17 [66]-[67]; VicForests (n 25) 154 [31].

[35] VicForests (n 25) 154 [33], quoting Onus (n 28) 35 (Gibbs CJ).

[39] VicForests (n 25) 162-3 [66]-[67].

[42] Ibid 164-5 [75]-[77] (citations omitted).

[47] Bowtell v Goldsbrough, Mort & Co Ltd [1905] HCA 60; (1905) 3 CLR 444, 451 (Griffith CJ).

[49] Victoria, Parliamentary Debates, Legislative Assembly, 8 April 1993, 841 (Bill McGrath, Minister for Agriculture).

[53] Maroondah City Council v Fletcher & Anor [2009] VSCA 250; (2009) 29 VR 160, 177 [85] (Warren CJ and Osborn AJA).

[59] Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) [2014] VSC 400; (2014) 48 VR 1, 34 [87] (Dixon J).

[62] [2022] HCA 5; (2022) 276 CLR 519 ('Hobart').

[64] VicForests (n 25) 146 [7], 168 [86]-[87].

[65] VicForests (n 25) 167-8 [84]-[91].

[68] [2010] VSC 335; (2010) 30 VR 1.

[72] (1989) 76 LGRA 200.

[75] [1994] FCA 1556; (1994) 55 FCR 492.

[79] [1995] FCA 1035; (1995) 55 FCR 516.

[83] [2014] FCAFC 173; (2014) 228 FCR 35 (Kenny, Robertson and Pagone JJ).

[85] VicForests (n 25) 154 [31], [33]; Onus (n 28) 35 (Gibbs CJ).

[86] Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, 212 [35] (Warren CJ and Nettle JA).

[87] Civil Procedure Act 2010 (Vic) s 64 ('CPA').

[88] R (Rusbridger and another) v Attorney-General [2003] UKHL 38; [2004] 1 AC 357, 367 [19], 368 [23] (Lord Steyn); Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487, 496 [30] (Finkelstein J) ('ASIC v HLP'); Brightwater Care Group (Inc) v Rossiter [2009] WASC 229; (2009) 40 WAR 84, 89-90 [18]-[19] (Martin CJ) ('Brightwater'); CrownBet Pty Ltd v New South Wales [2017] NSWSC 1470 [89]-[91] (Stevenson J) ('CrownBet'); Thorpe v Head, Transport for Victoria [2021] VSC 750; (2021) 66 VR 56, 72 [49] (Forbes J) ('Thorpe').

[89] Imperial Tobacco Ltd v Attorney-General [1981] AC 718, 741-2 (Viscount Dilhorne); Brightwater (n 88) 90 [19], 96 [50].

[90] Inglis v Moore (1979) 46 FLR 3, 7 (St John J) ('Inglis').

[92] See, eg, ASIC v HLP (n 88); Inglis (n 90_)_; Australian Softwood Forests Pty Ltd v A-G (NSW) [1981] HCA 49; (1981) 148 CLR 121 ('Australian Softwood Forests').

[94] Pharmacy Guild of Australia v Ramsay Health Care Ltd [2019] NSWSC 1045 (Ward CJ in Eq) ('Ramsay Health Care'), [159].

[95] CrownBet (n 88) [128]; Thorpe (n 88) 75-6 [60].

[96] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 269 [138] (Gummow and Hayne JJ); Maguire & Tansey v Makaronis [1997] HCA 23; (1997) 188 CLR 449, 493-4 (Kirby J).

[98] [2020] VSC 738, ('Warburton Environment').

[99] He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 532 (Gibbs CJ).

[100] [2020] VSC 817.

[101] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 21 (Gibbs ACJ); ASIC v HLP (n 88) 494 [24], 497 [33].

[102] CPA (n 87) s 7(1).

[103] Warburton Environment (n 98) 13 [64]-[66].

[104] Australian Softwood Forests (n 92).

[105] ASIC v HLP (n 88) 498-9 [39]; Thorpe (n 88) 75 [59].

[106] Hobart (n 62) 552 [69] (Gageler and Gleeson JJ).

[112] [1977] UKHL 5; [1978] AC 435 ('Gouriet').

[113] Ibid 481, quoted in ASIC v HLP (n 88) 494-5 [25].

[114] Gouriet (n 111) 498-9, quoted in ASIC v HLP (n 88) 495 [25]; Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 49-50 (Mason J).

[115] (2023) 74 VR 216.