Complaint about Animal Welfare (Layer Hens) Code of Welfare

Transcription

1 Complaint about Animal Welfare (Layer Hens) Code of Welfare Report of the Regulations Review Committee Contents Recommendation 2 Introduction 2 Relevant legislation 2 The complainant s concerns 4 Evidence from the Ministry for Primary Industries and the National Animal Welfare Advisory Committee 5 Our consideration 5 Conclusion 7 Appendix 8

2 Complaint about Animal Welfare (Layer Hens) Code of Welfare Recommendation The Regulations Review Committee has considered a complaint about the Animal Welfare (Layer Hens) Code of Welfare Although we have found that the grounds of the complaint are not made out in respect of the code, our investigations have raised some concerns that we note for the House s attention. We recommend that the House take note of this report. Introduction On 21 August 2015 we received a complaint from Save Animals From Exploitation (SAFE) regarding the Animal Welfare (Layer Hen) Code of Welfare This code sets the minimum standards for the care and management of layer hens under all forms of management used in New Zealand. The purpose of the code is to provide guidance to the owners of layer hens and to people in charge of them about the standards they have to meet to meet their obligations under the Animal Welfare Act SAFE objected to the code on three of the grounds specified in Standing Order 319(2): The code is not in accordance with the general objects and intentions of the enactment under which it is made (SO 319(2)(a)). The code appears to make some unusual or unexpected use of the powers conferred by the enactment under which it is made (SO 319(2)(c)). The code was not made in compliance with particular notice and consultation procedures prescribed by applicable enactments (SO 319(2)(h)). In particular, SAFE is concerned that the code allows the use of colony cages. It maintains that their use is not justified under the Act. After corresponding with SAFE, we determined that we could consider matters relating to Standing Order 319(2)(c), namely, whether the code makes some unusual or unexpected use of the powers conferred under the Act. Relevant legislation The Animal Welfare Act 1999 Codes of welfare form part of the regime established by the Act. They are intended to provide detailed minimum standards of care for individual species, and animal management practices that meet the requirements of the Act. 1 See MPI website at: 2

3 Codes are issued under section 75 of the Act by the Minister for Primary Industries, after considering a recommendation by the National Animal Welfare Advisory Committee (NAWAC). Section 73(1) of the Act requires that, before NAWAC recommends that the Minister issue a code of welfare, it must be satisfied that the proposed standards are the minimum necessary to ensure that the purposes of the Act will be met. Under section 75(1), the Minister must also have regard to that requirement. Codes of welfare issued under section 75 are disallowable instruments, but not legislative instruments, for the purposes of the Legislation Act Purposes of the Act The Act establishes positive obligations on owners and people in charge of animals. Its primary purpose is to promote the welfare of animals and prevent their ill-treatment. Part 1 of the Act sets out how animals must be cared for. The key provisions are in sections 4, 9, and 10. Section 9 states the purpose of this Part: to ensure that owners of animals and persons in charge of animals attend properly to the welfare of those animals. Section 10 requires the owner of an animal, and every person in charge of an animal, to ensure that the physical, health, and behavioural needs of an animal are met in a manner that is in accordance with both good practice and scientific knowledge. The definition of physical, health, and behavioural needs is contained in section 4 of the Act. That provision states: In this Act, unless the context otherwise requires, the term physical, health, and behavioural needs, in relation to an animal, includes (a) proper and sufficient food: (ab) proper and sufficient water: (b) adequate shelter: (c) opportunity to display normal patterns of behaviour: (d) physical handling in a manner which minimises the likelihood of unreasonable or unnecessary pain or distress: (e) protection from, and rapid diagnosis of, any significant injury or disease, being a need which, in each case, is appropriate to the species, environment, and circumstances of the animal. 2 2 Section 4(a) originally read proper and sufficient food and water, but this clause was separated and replaced by the current section 4(a) and (ab) on 10 May 2015, by section 7 of the Animal Welfare Amendment Act (No 2) 2015 (that is, after the code was issued). 3

4 The complainant s concerns In its initial complaint SAFE raised a number of concerns about the code. In particular: that NAWAC s report supporting the code misapplied the scientific evidence; that public submissions were not taken sufficiently into account; and that NAWAC had misinterpreted the requirements of section 4 of the Act. SAFE stated: It is clear that the Code was created to allow for the use of colony cages. Its creation did not entail a thorough investigation as to the best outcome for animals. 3 We wrote to SAFE on 29 March 2016 seeking clarification of its complaint in light of our concerns that the complaint appeared to be based on the underlying policy of the code in allowing the use of colony cages rather than issues that fall within the technical scrutiny role of the committee. SAFE responded to our letter with additional information which we considered at our meeting on 5 May We determined that only one part of SAFE s complaint fell within our jurisdiction: the part relating to NAWAC s application of section 4 of the Act and whether it resulted in the code making an unusual or unexpected use of the powers conferred under the Act. We wrote to SAFE on 12 May 2016 advising them of our determination and asked that it limit its oral submissions to that part of the complaint. We particularly sought comment on whether the approach taken by NAWAC regarding balancing essential and non-essential normal patterns of behaviour was authorised by the Act and whether this approach had led to a code that appeared to make an unusual or unexpected use of the powers in the Act. Unusual or unexpected use of powers conferred by the statute SAFE argued that the approach adopted by NAWAC in its report in support of the code was inconsistent with the intention of the Act. SAFE stated that the Act requires that animals be given (among many other things listed in section 4) the opportunity to display normal patterns of behaviour. SAFE stated that the Act does not provide for the distinction that appears to have been made by NAWAC between normal patterns of behaviour that are considered essential to welfare and those that are not. SAFE further argued NAWAC misinterpreted section 4 of the Act as operating to allow trade-offs between different types of need. The report states: While the Animal Welfare Act does not provide for trade-offs between the physical, health and behavioural needs as defined in s4 of the Act, it qualifies needs by referring to case-by-case application according to the species, environment and circumstances of the animal. 4 SAFE argued that this approach to the interpretation of physical, health, and behavioural needs is inconsistent with the overall policy of the Act and appears to be used by 3 Complaint Regarding the Code of Welfare (Layer Hens) 2012, SAFE, 13 August 2015, paragraph 7. 4 NAWAC, Animal Welfare (Layer Hens) Code of Welfare Report, June 2012, page 10. 4

5 NAWAC to justify trade-offs between welfare matters and matters of convenience for egg producers. 5 Evidence from the Ministry for Primary Industries and the National Animal Welfare Advisory Committee Unusual or unexpected use of powers conferred by the statute The Ministry for Primary Industries (MPI) and NAWAC gave evidence jointly. MPI advised us that there was nothing unusual or unexpected in how NAWAC exercised its responsibilities under the Act. 6 MPI told us that the distinction made by NAWAC between patterns of behaviour that are essential to welfare and those that are not is authorised by the Act. It told us that NAWAC s approach reflects the overriding animal welfare purposes of the Act. 7 It also told us that the Act explicitly does not require all normal patterns of behaviour to be displayed. 8 MPI advised us that the words at the end of section 4 being a need which, in each case, is appropriate to the species, environment, and circumstances of the animal must be interpreted to allow distinctions to be made between animals depending on their environment and the circumstances that they are kept in. MPI highlighted that wild hens would have different behavioural needs to layer hens, which have been bred for the purpose of laying eggs on a production-type scale. 9 MPI also advised us that the requirement in section 73 of the Act is that NAWAC be satisfied that the proposed standards for the care of animals in the code are the minimum necessary for the purposes of the Act. NAWAC is an expert committee appointed under the Act and therefore recommending the code was a matter for its judgement. 10 Our consideration We consider this matter to be finely balanced. This complaint centres on the contents of NAWAC s report recommending the making of the code. The language and style of NAWAC s report is less than helpful about the matters that this complaint raises. In particular, the report is not drafted in a style that readily evidences the application of the Act to NAWAC s findings. Instead, its style is technical, applying a scientific analysis to certain factual circumstances. However, it is clear that the way NAWAC has described its conclusions in the report leaves scope for the report to be interpreted in a way that 5 SAFE, Complaint regarding the Code of Welfare (Layer Hens) 2012, 13 August 2015, paragraphs and Clarification on Layer Hen Complaint before the Regulations Review Committee, 28 April 2016, paragraphs 7 and 8. 6 MPI, MPI s Supplementary Right of Reply to SAFE s Complaint on the Animal Welfare (Layer Hens) Code of Welfare 2012, undated, paragraph 3. 7 Ibid, paragraph 5. 8 Ibid, paragraph 8. 9 Ibid, paragraph Ibid, paragraphs 13 and 14. 5

6 suggests that the report s recommendation was an unusual or unexpected use of the powers conferred on NAWAC by the Act. This difficulty is compounded by the structure and language of the Act itself, which is difficult to read and apply. NAWAC s report recommending the making of the code acknowledges that the natural behaviour of hens would be restricted by the use of colony or barn systems. 11 However, the report states: It is not essential that every hen is able to display all normal patterns of behaviour in every system. 12 NAWAC then appears to distinguish between patterns of behaviour it considers essential to the welfare of layer hens and those it does not: Other behaviours, including extensive locomotion and exploration, sexual behaviour and brooding (when it occurs), are considered non-essential for a bird s welfare and the birds will not experience reduced welfare if prevented from performing these behaviours as a result of the housing system in which they exist (Duncan, 1998). 13 We consider that the Act does allow for some limitations on displaying natural behaviour patterns. The Act specifically does not require all normal patterns of behaviour to be able to be displayed in all systems. NAWAC interpreted that to mean that there was a distinction between essential and non-essential behaviours. However, this language is not provided for in the Act. At the heart of this complaint is the assertion that the essential/non-essential test is not in accordance with the provisions of the Act. Nevertheless the Act does not intend that all forms of behaviour should be able to be displayed. It is, on balance, our view that an appropriate interpretation to be given to the requirement that animals be provided with the opportunity to display normal patterns of behaviour is that animals must be able to display a reasonable range of behaviours that are beneficial to the animal. The approach set out in NAWAC s report can be interpreted in two separate ways. It can be seen as either (a) an acknowledgement from NAWAC that the limitation of certain behaviours of layer hens within colony or barn systems is consistent with good practice and scientific knowledge, or (b) an unusual or unexpected interpretation of the requirements of the Act. However, even if (b) is the preferred interpretation of this part of NAWAC s report, we are not able to state definitively that, were NAWAC to have used a correct interpretation of the Act s requirements, the resulting code would have been different. Accordingly we cannot say definitively that the code itself represents an unusual or unexpected use of the powers under the Act, as is required to make out the grounds in Standing Order 319(2)(c). We recommend to the Government that consideration be given to improving the clarity of the Act when it is next reviewed. 11 NAWAC, Animal Welfare (Layer Hens) Code of Welfare Report, June 2012, page Ibid. 13 Ibid. 6

7 We also recommend that NAWAC ensure that future reports articulate much more clearly how a particular decision meets the requirements of the Act. Conclusion We carefully considered the complaint and an important issue of the interpretation of the Act. The committee s role is to assess whether the resulting code amounts to an unusual or unexpected use of the regulatory power set out in the Act. On this basis we do not believe the complaint is made out. It is not the role of this committee to form a view of the substantive welfare issues that lie behind the code. However, in bringing the code to our attention, we consider that the complainant has highlighted deficiencies in the manner in which NAWAC presented its findings about the code. In addition, this complaint has drawn attention to the difficulties that arise in seeking to apply the Act. We consider that these are both matters that should be addressed in the future. 7

8 Appendix Committee procedure The committee met between 7 April 2016 and 13 October 2016 to consider the complaint. We heard oral evidence from Save Animals From Exploitation, the Ministry for Primary Industries and the National Animal Welfare Advisory Committee. Committee members Hon David Cunliffe (Chairperson) Andrew Bayly Chris Bishop Hon Chester Borrows Hon David Parker Mojo Mathers was a non-voting member for consideration of this item of business. 8