27 April 2011

Submission On Animal Welfare (Layer Hens) Code Of Welfare 2011- Public Draft

A- GENERAL OBSERVATIONS

The draft Animal Welfare (Layer Hens) Code of Welfare 2011 is in breach of the law.

The preamble to the Animal Welfare Act 1999 states that it is an act –

“(a) To reform the law relating to the welfare of animals and the prevention of their ill-treatment; and, in particular, -
(i)To require owners of animals, and persons in charge of animals, to attend properly to the welfare of those animals…
(v)To provide for the development and issue of codes of welfare and the approval of codes of ethical conduct.”

There is nothing here which provides that the economic interests of egg producers are to be elevated to the primary consideration under the law. Nothing in the rest of the legislation permits that to be done either.

On the contrary, the legislation sets out basic principles and minimum requirements in sections 4 and 10. Section 4 states that the term “physical, health and behavioural needs,” in relation to an animal, includes –
• Proper and sufficient food and water
• Adequate shelter
• Opportunity to display normal patterns of behaviour
• Physical handling in a manner which minimises the likelihood of unreasonable or unnecessary pain or distress
• Protection from, and rapid diagnosis of, any significant injury or disease.

Section 10 provides that –

“The owner of an animal, and every person in charge of an animal, must ensure that the physical, health and behavioural needs of the animal are met in a manner that is in accordance with both –
(a) Good practice; and
(b) Scientific knowledge.”

The draft code fails to comply with these requirements. It proposes that battery cages should be replaced by colony cages at an unspecified date. However, colony cages would provide only a very minimal improvement in living conditions for layer hens. Colony cages – like battery cages – would continue to be in breach of the Animal Welfare Act on the following grounds –

• They do not allow layer hens the opportunity to display normal patterns of behaviour (section 4(c))
• They do not provide for physical handling in a manner which minimises the likelihood of unreasonable or unnecessary pain or distress (section 4(d))
• They do not provide for protection from, and rapid diagnosis of, any significant injury or disease (section 4(e)) – since the cramped conditions of the layer hens make it almost impossible for individual birds to be observed and promptly attended to
• They do not ensure that owners and persons in charge of animals meet the physical, health and behavioural needs of the animals in a manner that is in accordance with both good practice and scientific knowledge (section 10). Both good practice and scientific knowledge clearly demonstrate that layer hens suffer grossly when permanently confined.

Draft Minimum Standard No 5 - Stocking Densities proposes that cages built from January 2005 would allow 550 square centimetres per hen; that all laying cages from January 2014 would allow 550 square centimetres per hen; and that colony cages would allow 750 square centimetres per hen. All of these proposals would be unlawful. They do not comply with the basic requirements of the Animal Welfare Act as outlined above.

Page 21 of the draft code states that –

“The opportunity for layer hens to show normal behaviour in a farm environment is an important welfare consideration that the Animal Welfare Act requires of owners and persons in charge. There is evidence that certain priority behaviours are more important to hens than others. These are –
• Standing erect over all of the available floor space
• Extending and flapping their wings
• Laying their eggs in a discrete nesting area
• Perching
• Scratching a surface and exhibiting foraging and dust bathing behaviours (sham dust bathing is an acceptable alternative).”

Given this recognition of the importance of normal patterns of behaviour, it is puzzling that the National Animal Welfare Advisory Committee (NAWAC) would then produce a draft code which fails to allow layer hens to engage in such behaviour.

NAWAC states at page 21 that “the use of layer hen cages providing less than 750 square centimetres per hen and no perches, discrete nesting areas or scratching surfaces does not fully meet the obligations of the act.” I agree with that statement. However, it is also my opinion that providing only 750 square centimetres of space per hen does not comply with the act.

Page 22 of the draft code states that –

“NAWAC is relying on the application of section 73(3) of the Animal Welfare Act in order to recommend the use of housing systems that do not meet the purposes of the Animal Welfare Act, until the date that will be given in Minimum Standard 11(a).”

However, it is my view that this is incompatible with the law for two reasons. First, as outlined above, the colony cages which NAWAC proposes should replace battery cages would themselves breach the Animal Welfare Act.

Secondly, NAWAC is purporting to apply section 73(3) in a way which does not comply with the law. Section 73(3) states that NAWAC may “in exceptional circumstances” recommend minimum standards and recommendations for best practice that do not fully meet the obligations of sections 10 or 11 or the obligations a person would need to observe to avoid committing offences under sections 12, 21, 22, 23, or 29.

In law, “exceptional circumstances” mean just that: they must be out of the ordinary. This is not the way in which NAWAC has applied section 73(3). Rather, NAWAC has relied on section 73(3) to elevate the economic interests of egg producers to a primary position above all of the animal welfare considerations in the Animal Welfare Act. An “exception” cannot relate to the permanent state of affairs that NAWAC and egg producers believe that a ban on battery and colony cages would be harmful to the economic interests of egg producers. (This assumption is in any case untested – see the section of the submission relating to the economic reports).

Public law principles require that delegated legislation such as a code of welfare not be inconsistent with the primary legislation – the Animal Welfare Act. Delegated legislation cannot allow conduct which would not be permitted under the main statute.

A further significant concern about the code drafting process is its lack of independence. NAWAC has in the past relied on industry groups such as the Egg Producers Federation and the New Zealand Pork Industry Board to produce initial drafts of codes of welfare. This is completely unsatisfactory and lays the entire code writing practice open to legal challenge. The process should be an independent process and NAWAC should not be relying for advice and assistance on industry groups with a clear vested interest in preserving the status quo and protecting the economic interests of farmers at the expense of animal welfare and New Zealand’s international reputation.

NAWAC has continued to grant egg producers a privileged position in the drafting of this latest code. Page 1 of the document Consultation on draft Animal Welfare (Layer Hen) Code of Welfare and Draft Economic Analysis states that “The draft code has been reviewed in consultation with representatives of egg producers.” Once again, there is nothing in the statute to authorise such an approach. On page 2 of the document NAWAC states that “From consultation with the Egg Producers Federation, as the key representative of those affected by the code..” (my italics). This is a plainly nonsensical statement. It is not egg producers who are the most affected by the code: it is plainly the animals who are most affected. On the basis of NAWAC’s reasoning it is accordingly animal welfare advocates who should be granted primary input into the code drafting process, not industry groups.

Page 3 of the document states that “Animal welfare is the key issue that NAWAC takes into account.” This is clearly incorrect. If animal welfare was the key consideration taken into account by NAWAC, it would be recommending an immediate ban on battery and colony cages. NAWAC has in the past, and continued to do so in the drafting of this code, subordinated the welfare of animals to the economic interests of farmers, an approach for which there is no legal authority.

B - RESPONSES TO GENERAL QUESTIONS POSED ABOUT THE DRAFT CODE OF WELFARE ON PAGES 5 AND 6 OF THE CONSULTATION ON DRAFT ANIMAL WELFARE (LAYER HEN) CODE OF WELFARE AND DRAFT ECONOMIC ANALYSIS DOCUMENT

1 Do you consider a code of welfare for lawyer hens to be necessary ? Are there any alternatives which would achieve the same outcome as having a code of welfare ? If so, what are they ?

As outlined above, the codes of welfare have in practice not been drafted or applied in the way envisaged by the statute. Instead of providing protection for animals, they are used in practice to provide a legal defence to practices which would otherwise be unlawful due to failure to comply with the basic principles of the Animal Welfare Act.

It is my view that all codes of welfare should be required to comply with the basic section 4, 10 and 29 principles of the Animal Welfare Act 1999. If this is not to be the case, there is little point in having an Animal Welfare Act since millions of New Zealand farmed animals are beyond its protection.

2 Do you agree that the minimum standards in the proposed code are the minimum necessary to ensure that the physical, health and behavioural needs of layer hens will be met ? For example, do the minimum standards reflect good practice (not just current practice), current scientific knowledge and available technology ? If not, what alternative(s) do you suggest ?
3 Do you agree that enriched colony systems will provide hens with an adequate minimum standard of welfare ? If not, what alternative do you suggest ? Please state your reasons.

No, I do not agree that the minimum standards in the proposed code are the minimum necessary to ensure that the physical, health and behavioural needs of layer hens will be met. On the contrary, the proposals would result in an indefinite continuation of grossly cruel treatment of layer hens, with them being kept in conditions which do not meet the basic requirements of the Animal Welfare Act. The proposal is that New Zealand should at an unspecified time phase out battery cages and move to colony cages. This would be entirely unsatisfactory. Colony cages provide only very marginally better conditions for layer hens than do battery cages. In colony cages, hens would still be unable to be outside, to experience night and day, to roam freely, to scratch properly, to fly, to take dust baths, to sunbathe or to scratch in the soil.

As discussed above in Section A of this submission, draft Minimum Standard No 5 is in breach of the law.

The minimum standards do not reflect good practice, current scientific knowledge or available technology. There is ample evidence available both within New Zealand and internationally of the detrimental impact on layer hens of cruelly confined lives in battery cages. Conversely, there is clear evidence of the benefits to layer hens of a free range lifestyle. If it is considered that further information about these benefits is required, it can easily be obtained from New Zealand’s free range egg producers.

The alternative I suggest is that New Zealand should ban both battery and colony cages and move to entirely free range egg production from 1 January 2016. New Zealand could market itself as the first country to do this, allying a good animal welfare image to its “clean, green” brand.

4 Do you agree the example indicators given are appropriate to describe how to measure or assess the achievement of the intended outcome of the minimum standards ? If not, what alternative(s) do you suggest ?

No, I do not. All animal husbandry practices should be required to comply with the basic principles set out in sections 4, 10 and 29 of the Animal Welfare Act. Practices which do not comply with those principles should be illegal – as was plainly Parliament’s intention when the Animal Welfare Act was passed.

5 Do you agree that the recommendations for best practice in the proposed code are appropriate ? If not, what alternatives do you suggest ?

No. See answer to questions 2 and 3 above.

6 What barriers do you see to the implementation of the proposed code and how might they be resolved ?

The three principal barriers that I see to the implementation of the proposed code are the following –
• Public resistance – opinion polls over the past decade have demonstrated great public disquiet about the appalling conditions in which battery hens are kept. A move to widespread use of colony cages would improve conditions for layer hens by only the minutest fraction. Accordingly, a public backlash against such a move can be expected.
• Political backlash – the Government receives a large volume of correspondence about animal welfare issues and is sensitive to public views. This was demonstrated when the Minister of Agriculture moved further in relation to the phasing out of sow stalls than had been proposed by NAWAC in the Animal Welfare (Pigs) Code of Welfare released in 2010. The Government is accordingly unlikely to view favourably a proposal that there should be a move to a widespread use of colony cages at a future time yet to be set. The Minister of Agriculture in an interview with me in 2011 January stated in relation to the review of the Animal Welfare (Layer Hens) Code of Welfare that “I think that industry again is going to find that public concern around some poultry industry practices has moved and industry is going to have to move with that.”
• Legal challenge – as outlined above, NAWAC and the Minister will be open to legal challenge by way of judicial review proceedings if the code does not comply with the Animal Welfare Act.

These barriers could be overcome by abandoning the draft code and writing a new one providing for the banning of battery and colony cages.

7 What benefits do you see from the proposed code ?
9 What impacts do you think the proposed code will have on New Zealand society, the economy and the environment ?

I do not see any benefits from the proposed code. On the contrary, it will produce extremely negative outcomes. Layer hens will continue to suffer horrendous physical and psychological detriment indefinitely.

New Zealand’s international reputation will be tarnished as a result of its cruel treatment of animals and it is inevitable that this will have a negative impact on the country’s export earnings.

C- COMMENTS ON DRAFT ECONOMIC ANALYSIS

In my opinion, all of the economic analysis released with the Draft Code of Welfare for Layer Hens is severely flawed and should not be relied on in producing a Final Code.

Three reports were released with the Draft Code. These were the following –
• Economic Impact of a proposed revision to the Code of Welfare for Layer Hens – Final report March 2010. That report was authored by Nimmo-Bell & Company Ltd (“the Nimmo-Bell report”).
• Egg market Dynamics – An Investigation into the Impact of Changed Production Requirements June 2010. That report was written by Kieran Murray and Patrick Harnett of LECG (“the LECG report”).
• Review of the Animal Welfare (Layer Hens) Code of Welfare – Draft Economic Analysis for Consultation – MAF Biosecurity New Zealand Discussion Paper- December 2010 (“the MAF report”).

The Nimmo-Bell & Company report and the LECG report were both commissioned and paid for by the Egg Producers Federation. This means that the Egg Producers Federation set the framework for the reports and that the federation was the report authors’ client. The members of the Egg Producers Federation support the retention of battery cages and have a financial vested interest in maintaining the status quo. The reports cannot therefore be considered to be either objective or independent.

The March 2010 Nimmo-Bell & Company Ltd report is described as a “Final” report. No information is provided as to whether an earlier edition of the report was provided to the report commissioner and changes were made in response to feedback provided by the Egg Producers Federation.

The MAF report used Nimmo-Bell & Company’s analysis (see paragraph 6, page 1 of Summary of the Economic Analyses on the Draft Layer Hen Code of Welfare). This is entirely unsatisfactory. As explained above, reports commissioned by industry groups with a vested financial interest in the status quo cannot be regarded as objective or independent. MAF had a duty to produce an independent economic analysis. It has not done that and accordingly its economic analysis cannot be relied on.

A further shortcoming in the economic analyses relied on in producing the Draft Code is that not one of the reports contains any information at all from free range egg producers. This seems an astounding oversight and clearly demonstrates a failure to come to the task of drafting a new code with an open mind. Financial information from free range egg producers would have been of clear relevance if the code drafters had been contemplating the option of moving entirely to free range production of eggs. The fact that no such information was sought shows that, in effect, the code drafters began their work with some possible options already ruled out of consideration.

The reports also contain no information at all about retail prices for free range eggs. Producers both in New Zealand and overseas have demonstrated increasing concern about animal welfare issues. This has translated into growing sales of free range eggs and free range pork. Free range products typically attract a price premium over battery eggs and sow stall pork. The economic analyses should accordingly have included details of retail prices for free range eggs. Economic modelling could then have been done to determine how much egg producers’ incomes would increase if they moved from production of battery eggs to production of free range eggs. That additional income would offset some of the capital costs of the move from battery to free range production.

It would also be instructive for MAF to obtain information from retail outlets about consumer preferences in relation to battery and free range eggs. Victoria Park New World supermarket in Auckland began labelling its eggs about five years ago, dividing the shelf segments into “free range,” “barn” and “battery” eggs (there has been some alteration to these descriptions over time with the word “caged” being used in place of “battery”). Since the labelling began, consumers have demonstrated a stronger and stronger preference for the purchase of free range eggs, and these have come to occupy more and more shelf segments, while battery eggs have occupied fewer segments. In February 2011, for example, only seven of the 30 shelf segments contained battery eggs. Consumers have accordingly clearly demonstrated that they are prepared to pay a premium for free range eggs.

The economic reports fail to make any attempt to calculate the damage to New Zealand’s reputation internationally and consequent threat to export earnings from a continuation of the use of battery cages. New Zealand is an agricultural nation, heavily reliant for its income on dairy and other agricultural products and tourism. All of these industries rely on the international promotion of a “clean, green” image for New Zealand. Cruel treatment of animals is entirely inconsistent with such a brand. In compiling economic data relating to the draft code, MAF should consider the benefit to this country’s reputation from being able to promote itself as Number One internationally for animal welfare if cruel animal practices were banned. This would be an immensely valuable brand for New Zealand to work towards and one which would inevitably bring economic rewards.

The economic impact of cruel treatment of animals on a country’s international reputation and export returns was clearly demonstrated when animal lobby group PETA in the United States launched a campaign against the practice of mulesing by Australian sheep farmers. Australia speedily realised that, if it did not take action promptly, the damage to its international reputation would be incalculable and would flow through into lost export earnings. Australia accordingly moved quickly to end the practice.
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