Animal welfare the Government’s ticking time bomb

Animal cruelty can be a challenge for governments trying to cater to both business and the public. Former animal welfare policy advisor Shanti Ahluwalia discusses how developments in animal welfare law may be especially challenging for Labour’s brand.

Over the past few years, the legal case against factory farming has been steadily growing. This could spell disaster for the Labour Party’s current strategy on animal welfare.

Labour has one goal when it comes to animal cruelty: do not let Jacinda Ardern’s face be associated with animals suffering. They have gone all-in on Jacindamania and must protect her brand at all costs.

Her brand is incredibly resilient. She is a strong-willed woman, but also compassionate. She is well known internationally as a hero of mums everywhere. Just this week she appeared on American television talking about the importance of compassion in politics.

That brand stands up well to snide attacks from Simon Bridges. It will not stand up well against animals suffering. Whatever happens, Labour needs to avoid the Prime Minister defending anything that the public sees as cruel.

As long as she can avoid commenting on animal welfare, Labour can afford inaction whenever there is a scandal about the latest cruelty.

But there is a problem.

Last week, by demoting Meka Whaitiri, Labour backtracked on one of their campaign promises – having a separate Minister for Animals. That responsibility has now returned to Damien O’Connor.

In 2016, O’Connor spoke out in support of rodeo, despite Labour’s progression of policies to tackle rodeo issues. Labour also promised in both 2014 and 2017 to put an end to factory farming, which does not align well with O’Connor’s past support of practices like caging hens.

O’Connor’s approach to animals is not compatible with Ardern’s compassionate brand. If animal activists can successfully force comment from the Prime Minister during animal welfare scandals, it will put the Government in an awkward position.

Labour seems to be set to use the traditional strategy during animal welfare scandals: evade and review. This strategy has successfully kept chickens and pigs in factory farms for decades.

Three key legal developments may mean this strategy is so no longer an option, and Labour will have to decide whether they want to actively defend factory farms.

The Balfour Case

Historically, government regulators have used a legal trick to preserve factory farms. They relied on an interpretation of the law that required proof of suffering before banning a practice like caging hens. But it is virtually impossible to prove suffering – one can hardly ask a chicken how she feels. Thus, no rules needed to be changed.

In 2013, the Court of Appeal threw out this interpretation. Instead of proof of suffering, the law requires proof that the owner of an animal takes certain steps to ensure the ‘five freedoms’ are protected – essentially the freedom to behave as an animal naturally would, and to have needs met. This is far easier to enforce and interpret. It is also a problem for factory farmers. Animals in cages do not have the opportunity to behave naturally.

Hundreds of current regulations rely on the old interpretation of the law. On any one of those rules, the Government could conceivably be challenged in court.

Farrowing crates

In judicial review cases where courts must make decisions about the law, there is a lot of room for interpretation. The courts must determine what the intention of Parliament was when writing a law. This can create a lot of ambiguity.

In the case of farrowing crates, where mother pigs are prevented from turning around for weeks at a time, there is no ambiguity. The government’s own documents in the revision of the Animal Welfare Act in 2015 clearly shows that farrowing crates were meant to be banned. The Act even has a special framework to ban practices over long time periods, specifically created to ban practices like farrowing crates.

Yet earlier this year the Labour-led Government signed off on regulations that allow the use of farrowing crates, despite the Government’s own documentation showing that the intention of the Animal Welfare Act is for farrowing crates to be banned.

Colony cages

In August 2015, I took a detailed case to the Regulations Review Committee. I argued that the Code of Welfare for Layer Hens misused the powers of the Animal Welfare Act to protect colony cages.

The Committee, controlled by the National Party at the time, ruled against me.

Here is the tricky part though: the legal advice to the Committee suggested they rule in my favour.

The Regulations Review Committee is supposed to be impartial, but in this case, they ignored how the law was supposed to work in favour of protecting farmers. But courts will not be willing to ignore the law. If there is a strong legal argument – and the Government’s own advisors believe there is – then courts would rule against factory farmers.

A legal ticking time-bomb

Governments have an easy defence against judicial review: they can just rewrite the law whenever they like.

But that is a disastrous path for this Government. All the coalition partners have made some promises to improve animal welfare, and the Government’s brand is based on compassion.

A court case, whether successful or not, will mean the government has to spend month after month defending animal cruelty. Every new development in the case will put Ardern’s face in front of the public, talking about why the Government will not help animals.

All it would take is one wealthy donor deciding they want to make it happen.

Meka Whaitiri’s dismissal from being a minister allowed Damien O’Connor to quietly grab back power over the animal welfare portfolio. The government should be seriously examining the wisdom of giving a farmer control over animal welfare.

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