Animal Welfare Matters: proposals for a New Zealand Animal Welfare Strategy and amendments to the Animal Welfare Act 1999

1. Why has the Animal Welfare Amendment Bill been introduced?

The Government’s 2011-12 review of the Animal Welfare Act 1999 found that the fundamental principles in the legislation were sound, but its operation needed some improvement.  In particular, changes are required to make the Act easier to enforce.

New Zealand has a high-performing animal welfare system.  The Animal Welfare Act is progressive and comprehensive.  It places a duty of care on all people in charge of animals to meet their animals’ needs including the internationally respected ‘five freedoms’:

• 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; and
• protection from, and rapid diagnosis of, any significant injury or disease.

2. What will the Bill do?

The Bill will improve the enforceability, clarity and transparency of the Animal Welfare Act 1999.

Improvements relating to enforceability:

• The Bill enables regulations to be made that set clear mandatory standards for animal welfare.  The new regulations will complement the existing ‘codes of welfare’, and enable a tiered enforcement scheme of offences, penalties, and infringements.  This will allow animal welfare inspectors to address animal welfare offending more efficiently and at a level that is appropriate to the seriousness of the offence. 

• The Bill provides for new compliance orders, which will allow an animal welfare inspector to require a person to stop or start doing something in accordance with an animal welfare law.

Improvements relating to clarity:

• The Bill enables regulations to be made for the export of live animals.  These regulations will give exporters and the public more certainty about animal welfare requirements, and protect New Zealand’s reputation as a responsible exporter.  There will be no change to the Government’s policy of prohibiting live animal exports for slaughter unless a specific exemption is granted.

• The Bill enables regulations to be made that will clarify and improve the requirements for surgical and painful procedures.  The new surgical and painful procedures regulations will be able to prohibit, restrict or place conditions on the performance of particular procedures. 

• The Bill makes it clear that acts of wilful and reckless cruelty towards animals in the wild are an offence under the Act.

Improvements relating to transparency:

• The Bill makes the criteria that the National Animal Welfare Advisory Committee (NAWAC) considers when developing codes of welfare more transparent by explicitly including ‘practicality’ and ‘economic impact’. These will be second-tier considerations – the committee is not obliged to take them into account unless it considers that they are relevant.  These factors will not be able to override animal welfare considerations, as codes of welfare will still have to be consistent with the purposes of the Act – i.e., persons in charge of animals must attend properly to the welfare of those animals.

• The Bill replaces the ‘exceptional circumstances’ provision in the Act with ‘transitions’ and ‘exemptions’ that, in limited circumstances, will allow practices that do not fully meet the animal welfare obligations in the Act.  Transitions will enable people to move from old to new practices within specified timeframes, and ‘exemptions’ will be available only in situations where transitions are not feasible.  Exemptions will need to be reviewed at least every 10 years.  Transitions and exemptions will be determined by Cabinet, rather than the Minister.

• The Bill improves the transparency of research, testing and teaching by requiring ethics approval and reporting of:

• the humane killing of animals for the purpose of performing research, testing or teaching on their body or tissue; and

• the production and breeding of animals with known or potentially compromised welfare for the purposes of research, testing or teaching.

In addition, the Bill makes some minor and technical amendments.  The Bill will:

• provide guidance for the court when considering whether to impose an order disqualifying a convicted offender from owning or being in charge of animals; 

• enable the court to order forfeiture of animals and disqualification from owning or being in charge of animals for people who have been found unfit to stand trial on animal welfare charges;

• clarify the definition of ‘device’ to include explosives and incendiary devices, so that these could be prohibited or restricted in regulations if required;

• create an obligation that the killing of any wild animal or pest that is farmed or kept as a pet must be done humanely, in line with the requirements for other animals that are in someone’s care;

• clarify the process to be followed before an animal is destroyed to prevent unreasonable or unnecessary pain or distress;

• enable a wider range of organisations to become approved organisations under the Act;

• create an express ability for the Ministry for Primary Industries to audit approved organisations;

• remove the State Sector Act 1988 from the process for appointing Ministry for Primary Industries animal welfare inspectors;

• enable the Minister for Primary Industries to suspend the appointment of an animal welfare inspector who works for an approved organisation, pending the outcome of an investigation into the inspector’s conduct;

• clarify the search powers of animal welfare inspectors;

• allow groups not directly involved in research, testing, or teaching using animals to become code of ethical conduct holders on behalf of teaching organisations; and

• make other technical changes to the Act.

3. How will the Bill affect me?

The Bill will have little direct impact on most New Zealanders because they are already meeting the needs of their animals.  But for those who are not meeting their obligations under the Act, there will be more sanctions for breaking the rules.

The Bill does change some of the requirements for people using animals in research, testing and teaching.  MPI will work closely with affected organisations to make sure the changes are well understood. 

4. What will happen to codes of welfare?  

Codes of welfare are staying.  Public feedback during consultation in 2012 made it clear that people value codes of welfare and the process that the National Animal Welfare Advisory Committee undertakes to develop the codes.

The concern with codes of welfare is that they cannot be directly enforced.  The Bill therefore enables the development of enforceable regulations, backed up with offences and penalties, so that animal welfare inspectors can better deal with people who aren’t meeting their animals’ needs. The new regulations will sit alongside and complement codes of welfare.

5. What will be in the regulations?  How and when will they be developed? 

The Bill provides for the creation of a number of new regulations.  These regulations will cover three broad areas: surgical and painful procedures; live animal exports; and care of and conduct towards animals.  Existing regulations for reporting the use of animals in research, testing and teaching will need to be amended.

• The surgical and painful procedures regulations will contain any prohibitions, restrictions, or conditions that are necessary to place on the performance of particular surgical or painful procedures.  For example, the regulations may require that a procedure can only be carried out in a particular way, or using a certain analgesic, or by people with a particular qualification.

• The live animal export regulations will replace current non-enforceable export guidelines, and cover issues such as the species, age, and fitness of the animals for travel; the skills, qualifications or experience of people accompanying the animals; and reporting and monitoring requirements. 

• The care of and conduct towards animals regulations will create enforceable animal welfare standards that sit alongside the existing codes of welfare.  The regulations will be able to prescribe standards and requirements for the care of and conduct towards animals, and prohibit specified things or activities.  To ensure the regulations are sufficiently clear and enforceable, they would cover specific and measurable mandatory standards such as prohibitions (e.g. of sow stalls), mandatory requirements (e.g. layer hen housing requirements), or to address specific areas of poor compliance.

• Existing regulations require people who use animals in research, testing or teaching to record and report that use.  These regulations will need to be amended to accommodate the two additional uses of animals that will be included in the definition of research, testing and teaching. 

The Bill also provides for regulations to require the reporting of surplus animals produced for the purposes of research, testing, and teaching that are ultimately not needed, and so humanely killed.  This is an enabling provision and the government has not yet determined whether such regulations are warranted.

All regulations will be developed following the passing of the Bill.  Each set of regulations will be developed through the usual regulation development process, including public consultation and Cabinet approval.
The Ministry anticipates that all regulations would be developed within two years of the Bill being enacted.  

6. How will infringements work?

Infringement offences (or instant fines) are useful where an offence warrants more than a warning letter but less than a full scale prosecution in Court.  They are best suited for those offences that –

• are offences of strict liability that are committed in large numbers; and
• involve misconduct that is generally regarded as being of comparatively minor concern by the general public; and
• involve acts or omissions that involve straightforward issues of fact.

The Bill does not contain any specific infringement offences and fines, but it enables infringement offences to be established in future.  The Government will consult the public, and those directly affected, when developing regulations specifying infringement offences. 

7. Why aren’t the penalties being raised?

The penalties and sentences in the Animal Welfare Act were increased in 2010.  The Government considers that the maximum penalty levels in the Act are appropriate. 

However, enforcement tools are currently limited.  The majority of animal welfare offending is of low-to-medium level of seriousness, and is generally for failing to meet duty of care obligations.  The existing offences and enforcement provisions in the Act are not well-suited for this type of lower-level offending.

The Bill provides for a tiered penalty scheme to enable low-to-medium level offending to be dealt with more effectively.  In addition to the existing offences in the Act, lower-level offences with smaller penalties will be enabled in regulation, as well as parallel infringement offences.  New compliance orders will also help animal welfare inspectors to address lower-level offending. 

8. Where are the 14 surgical procedures that were in the consultation last year?

Following feedback received during public consultation in 2012, the Government decided that the 14 surgical procedures would be best controlled through the surgical and painful procedure regulations to be developed following passage of the Bill. 

We will use the feedback received to decide what, if any, restrictions are needed on the performance of each procedure when we develop proposals for regulations – and the public will get another chance to comment when the regulations are publicly consulted. 

9. What will the new ill-treatment offences mean for hunting and fishing?

The Bill makes it clear that deliberate or reckless acts of cruelty that are outside of generally accepted hunting or killing practices in New Zealand can be prosecuted as an offence.  The amendment will not affect usual and accepted hunting, fishing, or pest management activities.

Hunting and fishing are important to New Zealand’s heritage, and a crucial source of food for some families.  Pest management activities, including hunting introduced animals such as deer and pigs, is vital to protecting our native species, conservation land and national parks.

10. Why doesn’t the Bill ban livestock exports for slaughter?

The Government’s current policy is that the export of livestock for slaughter is prohibited, unless a specific exemption is granted.  An exemption would only be granted if the applicant could satisfy the Ministry for Primary Industries Director-General that the risks to animal welfare and New Zealand’s reputation could be adequately managed.  This is a very high threshold which the Government considers to be appropriate. No application for an exemption has been received in the six years that the prohibition has been in place. 

11. What impact will ‘practicality’ and ‘economic impact’ have on animal welfare minimum standards?

Economic impact and practicality have been included as second-tier considerations, which means that the National Animal Welfare Advisory Committee (NAWAC) may choose whether or not it considers them when developing codes of welfare.

NAWAC already takes economic impact and practicality into consideration if they are relevant – section 73(2)(d) allows it to consider ‘any other matters considered relevant’.  Explicitly including economic impact and practicality means that this process will be more transparent.

This change is important because it is essential that minimum standards are practical to comply with.  Good regulatory practice also demands that the economic effect of any government action is considered – but economic considerations do not necessarily determine the course of action.

These factors will not be able to override animal welfare considerations as codes of welfare will still have to be consistent with the purposes of the Act – i.e., persons in charge of animals must attend properly to the welfare of those animals.

12. Why doesn’t the Bill ban ‘exceptional circumstances’?

The changes are not intended to allow unacceptable practices to continue indefinitely.  Instead, the proposals recognise that when animal welfare standards are being changed, farmers and other people who care for animals need time to transition from existing practices and systems to new practices and systems.  On very rare occasions, an ongoing exemption to animal welfare requirements may be warranted, but in such cases the law would require the exemption to be periodically reviewed to check whether it’s still appropriate.The changes to the Act make the exceptions much clearer, and put discipline around where they are applied. Systems can’t change overnight, so it’s essential to give people an appropriate amount of time to change their practices. In some very rare situations there may be no viable alternative, so an indefinite exemption, to be reviewed periodically, may be the only option.

The Bill creates strict criteria to be met before a transition or exemption can be issued, to ensure that these are only used when there is a genuine case for doing so. An exemption will only be available where a transition is not feasible.  Unlike exceptional circumstances which are determined by the Minister, Cabinet will make decisions regarding transitions and exemptions.

13. Why isn’t cosmetic testing on animals being banned?

The use of animals in research, testing or teaching is strictly controlled under the Animal Welfare Act 1999.  Projects must be considered and approved by an animal ethics committee before they can take place. Whether particular research, testing or teaching is justified and should be allowed to take place is a decision for Animal Ethics Committees to make on a case-by-case basis.

MPI understands that historically there has been no cosmetic testing on animals undertaken in New Zealand, and no testing of cosmetics on animals happens here now.  For an application for testing cosmetics on animals to be successful, the applicant would need to satisfy an animal ethics committee that the benefits from the testing would outweigh the harm to the animals.  This would be a high threshold for cosmetic testing to reach.  Because the requirements around the use of animals in research, testing and teaching are strict, the Government is satisfied that the current controls around testing on animals in New Zealand are sufficient.  

14. What will the Bill do for greyhounds?

The Bill doesn’t contain any changes specifically aimed at greyhounds, but the changes will make it easier for existing requirements for people in charge of greyhounds to be enforced.

People in charge of greyhounds are subject to the requirements of the Animal Welfare Act and the code of welfare for dogs, which require that people meet the physical, health and behavioural needs of their animals, and seek treatment for any pain and distress suffered by their animal.

Read the Bill here