NAWAC Guideline 03: Setting minimum standards where section 73(3) applies

1. Introduction

The situation of applying section 73(3) of the Animal Welfare Act 1999 and recommending minimum standards that do not fully meet the obligations of the Act is often very complex.

Section 73(3) of the Act provides that NAWAC may, in exceptional circumstances, recommend minimum standards that do not fully meet specified obligations, including the obligation to ensure that the physical, health and behavioural needs of the animal are met. In making this recommendation NAWAC must have regard to, among other things, the feasibility and practicality of effecting a transition from current practices and any adverse effects that may result from such a transition, and the economic effects of any transition from current practices to new practices.

2. Difficulties of forecasting beyond ten years

In applying section 73(3) of the Act, NAWAC notes the difficulties of forecasting beyond a ten-year time frame with regard to:

  1. what scientific research may establish during the intervening years in relation to the issue being considered;
  2. the new practices/technologies that may be developed during the intervening years in relation to the issue being considered;
  3. future external influences, both national and international, which might impede, or accelerate, a change;
  4. likely economic trends and what impact they might have on the ability for change to occur with regard to the issue being considered; and
  5. changes in societal values.

3. Time frame for meeting minimum standards

Given the above forecasting difficulties, NAWAC believes that any attempt to set minimum standards that come into force more than ten years out will generally be unwise, and subject to challenge and legal review.

Therefore, in the interests of robustness when drafting codes of welfare NAWAC has decided that:

  1. it will not attempt to schedule minimum standards to come into force more than ten years after a code is issued; and
  2. it will only include minimum standards which take effect either immediately a code is issued or on a specified date during the following ten years before a code is required to be reviewed.

An exception to the above would be where those affected by a code specifically request that NAWAC set a date more than ten years out for the introduction of a minimum standard, because they are confident that change will be able to be met by that date.

4. Framework for handling the process

NAWAC has therefore endorsed the following framework as a guide to how it will handle the process:

  1. NAWAC will reserve making any decision on whether a draft code contains minimum standards that do not fully meet the obligations of the Act until it has received the public submissions relating to the code and considered:
    • the public submissions
    • the writing group’s submissions (including those from affected parties)
    • current New Zealand and international research
    • current good practice
    • available technology
    • public opinion
    • international practices and trends
    • the feasibility, practicality and economic effects of any change
    • any other relevant matters.
  2. NAWAC may decide that a minimum standard, as originally drafted by the writing group, does not fully meet the obligations of the Act. When that occurs, based on NAWAC’s analysis of the information before it, four courses of action would be available to NAWAC:
    1. NO EXCEPTIONAL CIRCUMSTANCES UNDER SECTION 73(3) AND (4) APPLY
      When NAWAC considers that it is reasonable to require an immediate change to fully meet the obligations of the Act, NAWAC will rewrite the minimum standard, which would come into force on the date the code is issued.
      EXCEPTIONAL CIRCUMSTANCES UNDER SECTION 73(3) AND (4) APPLY
    2. When NAWAC considers that it is reasonable to require a change to fully meet the obligations of the Act at some stage during the ten years before the code is subject to review, NAWAC will rewrite the minimum standard, which would come into force on a specified date during the ten years from when the code is issued. NAWAC may also set interim steps to be achieved towards meeting those obligations on specified dates before the final date for a change.
    3. When NAWAC considers that it is not reasonable to require a change to fully meet the obligations of the Act during the ten years before the code is subject to review, but that interim steps towards those obligations could be set, NAWAC will rewrite the minimum standard to incorporate those interim steps, which would come into force on specified dates during the ten years from when the code is issued. NAWAC will also:
      • signal the future direction towards which NAWAC would like to see progression, based on current knowledge, and subject to welfare standards being met in the future to allow the progression to be made;
      • note that any firm decisions on that progression will be made by NAWAC when it next reviews the code;
      • for the particular issue, note the matters which will require specific consideration as set out in the Act, including current research, good practice and available technology, alternative systems, public opinion, international practice and trends, religious/cultural practices, and the feasibility, practicality and economic effects of any change;
      • specify research NAWAC would like to see undertaken before the next review of the code, if it considers that to be appropriate; and
      • indicate an earlier date when NAWAC hopes to review the code based on research being available, if it considers that to be appropriate.
    4. When NAWAC considers that it is not reasonable to require a change to fully meet the obligations of the Act during the ten years before the code is subject to review, and that there are no interim steps that can be achieved before the code is subject to review, NAWAC will:
      • signal the future direction towards which NAWAC would like to see progression, based on current knowledge, and subject to welfare standards being met in the future to allow the progression to be made;
      • note that any firm decisions on that progression will be made by NAWAC when it next reviews the code;
      • for the particular issue, note the matters which will require specific consideration as set out in the Act, including current research, good practice and available technology, alternative systems, public opinion, international practice and trends, religious/cultural practices, and the feasibility, practicality and economic effects of any change;
      • specify research NAWAC would like to see undertaken before the next review of the code, if it considers that to be appropriate; and
      • indicate an earlier date when NAWAC hopes to review the code based on research being available, if it considers that to be appropriate.
  3. Notwithstanding the above, NAWAC may choose to review a code at any time within its ten year life.

This guideline was originally approved by NAWAC on 23 October 2003, and has since been updated. This guideline is not a legal interpretation of the Animal Welfare Act 1999. It is anticipated that this guideline will be updated from time to time in light of experience gained by NAWAC during its deliberations.

Page last updated: 30 April 2008