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A sow in a farrowing crate, Germany (Photo: Christian Adam/ullstein bild via Getty Images)
A sow in a farrowing crate, Germany (Photo: Christian Adam/ullstein bild via Getty Images)

OPINIONSocietyNovember 18, 2020

Farrowing crates for pigs being ruled unlawful is a victory for all animals

A sow in a farrowing crate, Germany (Photo: Christian Adam/ullstein bild via Getty Images)
A sow in a farrowing crate, Germany (Photo: Christian Adam/ullstein bild via Getty Images)

Both pigs and humans alike should rejoice over the High Court’s ruling on farrowing crates, writes University of Otago law lecturer Marcelo Rodriguez Ferrere.

If you know anything about pigs, it’ll likely be that despite their slovenly and biblically-dubious reputation, actually, they’re quite clever creatures. As smart as dogs! As smart as chimpanzees! At the very least, pigs are “intelligent, aware, emotionally and socially sophisticated beings.” However, “intelligent” and “sophisticated” aren’t adjectives you’d use to describe New Zealand’s animal welfare system after a damning ruling on Friday by the High Court.

In its judgment, the High Court ruled “farrowing crates” and “mating stalls” for pigs as unlawful. That’s the simple takeaway, and a powerful one it is. But the way Justice Helen Cull reached her decision is revealing of a complex, almost Byzantine system we use to regulate animal welfare in this country. That revelation means the judgment wasn’t simply a victory for pigs and their human advocates – New Zealand Animal Law Association and SAFEwho brought the case to court. It was a victory for all animals, since it exposed some pretty major flaws in our animal welfare system, and will hopefully spur the case for wider reform.

The starting point to any analysis of that system is the Animal Welfare Act 1999. This legislation enshrines the five freedoms for animals which at the time of enactment 20 years ago was a world first. Those freedoms include access to proper and sufficient food, water and shelter. Critically, it also includes the “opportunity to display normal patterns of behaviour”. Anyone who owns or is in charge of animal has a statutory obligation to provide for those freedoms

About half of all pig farms in New Zealand use farrowing crates and mating stalls. While there are some important differences between them, to the untrained eye they are essentially similar since they serve the same purpose: to prevent the sow from turning around. Mating stalls are used to make mating (or, more likely, artificial insemination) an easier process (for the inseminator). Farrowing crates are used when sows are weaning their piglets, the theory being that if the sow can’t turn around, it minimises the risk that she’ll accidentally crush one of her piglets. 

Piglets nursing in a farrowing crate (Photo: Wikimedia)

You don’t need to be a pig to see the disjunct here. A pig being able to turn around is surely “a natural pattern of behaviour”. How, then, if the Animal Welfare Act guarantees pigs the “opportunity to display normal patterns of behaviour”, was it ever possible to use mating stalls and farrowing crates? The answer lies in the next tier of our animal welfare system. The Animal Welfare Act allows for the creation of both “Codes of Welfare” and regulations that specify minimum standards for particular animals or industries. There’s a Code of Welfare for everything from commercial slaughter to Llamas and Alpacas. There’s even one for companion cats. If you have a cat and haven’t read that code, you now know why your cat has forever looked unimpressed with you.

Until 2015, Codes of Welfare could specify minimum standards that would otherwise fall below the general requirements of the Animal Welfare Act and those five freedoms. Farrowing crates and mating stalls originally fell under this loophole. However, a big amendment to the Animal Welfare Act in that year meant that thereafter, any standard that fell below would need to be specifically allowed for in regulations, with a view to being phased out eventually. 

A body called the National Animal Welfare Advisory Council (NAWAC) is responsible for overseeing these codes and the regulation-making process. The Court found that when it was creating Codes of Welfare for pigs in 2005 and 2010, NAWAC consistently wanted to see both farrowing crates and mating stalls eventually phased out, since it saw them as contrary to the general obligations in the Animal Welfare Act. Yet in 2016, it changed its tune. In a complete change of position, it now viewed farrowing crates and mating stalls as consistent with the act, without the need to be phased out. Bizarrely, the basis for the change in position was because there hadn’t been any change in the science to provide viable alternatives to the crates and stalls. That’s a little like saying, “well, science still hasn’t worked out a way to drink and drive safely at the same time, so instead, we’re just gonna say it’s pretty legal”. 

Here’s the thing with regulations and codes of welfare though. They’re what we in the biz call “subordinate”, “secondary” or “delegated” legislation – parliament delegates the power to the government to make such legislation, but it’s always subordinate to primary legislation enacted by parliament, like the Animal Welfare Act. That means when it’s inconsistent with primary legislation, the court can strike it down as invalid and unlawful. That’s what Justice Cull did here: since the relevant Code of Welfare and the regulations allowed for farrowing crates and mating stalls without any indication of when they’d be phased out, it undermined parliament’s intention that non-compliant practices such as this would and should be phased out. Since it undermined parliament’s intention, it was “ultra vires” or beyond the power given by parliament to the government, and thus unlawful. Further, Justice Cull directed the minister responsible to consider enacting new regulations that will phase out the use of mating stalls and farrowing crates.

While this might seem utterly complicated, here’s the key point: if a status quo practice under the Animal Welfare Act is non-compliant, “science hasn’t found an alternative” is no excuse to allow the status quo to continue in perpetuity. Parliament and New Zealanders have made their voices clear: we want higher standards of animal welfare, and if that means abandoning non-compliant practices, so be it. For the first time in New Zealand history, a couple of pretty courageous NGOs took that sentiment to court and won. And this theory won’t just be confined to pigs: it’ll be applicable to our whole system, which is why it’s so important. NAWAC, and the government will have to take a long hard look at how it regulates animal welfare if it wants to avoid more cases like these in the future. 

New Zealand Pork, the statutory industry board that works to support New Zealand’s commercial pig farmers, is obviously pretty annoyed about this decision, with the reaction ranging from “won’t someone please think about the piglets” to “if we have to improve our systems, that’s going to make New Zealand pork pretty expensive!” Don’t believe it. The science suggests farrowing crates only save approximately 0.4 piglets on average. That’s not zero, but it’s at the completely disproportionate cost of the sow not being able to turn around. Plus, there are plenty of farms in New Zealand that don’t use farrowing crates, including and especially those pioneering free-range pig farms. And as for the threat of cheap and cruel overseas pork flooding the New Zealand market, well, you can demand the government get its act together on country-of-origin labelling, and then, like NZALA, SAFE and the High Court, you can think about the pigs next time you’re at the supermarket.

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About one in two hundred primary school children live with OCD (Photo: Getty Images)
About one in two hundred primary school children live with OCD (Photo: Getty Images)

OPINIONSocietyNovember 18, 2020

Bridging the poverty gap: Why all poor kids need Working For Families support

About one in two hundred primary school children live with OCD (Photo: Getty Images)
About one in two hundred primary school children live with OCD (Photo: Getty Images)

Working For Families payments are a lifeline for kids in poverty – but only if they happen to have a parent in paid work. It’s time to end this false dichotomy between the ‘deserving’ and ‘undeserving’ poor, writes Child Poverty Action Group’s Susan St John.

As 2020 stumbles to an end and the wage subsidies and Covid Income Relief Payment (CIRP) wind down, the threat of Covid-19 continues to harm both businesses and the people they employ. Last Friday was a sharp reminder of the possibility of more lockdowns as Auckland’s CBD was closed while a new case was investigated.

Faced with the prospect of a recession, the Reserve Bank acted aggressively to swamp the market with cheap money with the aim of stimulating the economy and the housing market in particular. The government appears to support this plan, declining to use any of its own fiscal policy options since the height of the Covid crisis. It won’t even extend the CIRP in the face of rising unemployment because, as social development and employment minister Carmel Sepuloni said last week, “The New Zealand’s economy is faring much better than was forecast at the beginning of the pandemic.”

Thus, as a difficult Christmas approaches we can expect a rising tide of New Zealanders will flounder in the toxic stress of accelerating debt, food insecurity, and wondering how to keep a roof over their heads. The government has ruled out any urgent support. Sixty organisations joined together last week to plead for urgent action to address the deep and extensive experience of unmet need – but even that fell on deaf ears. The pain of the recession for many sits starkly alongside the bountiful riches accumulating to owners of multiple houses in an out-of-control housing market.  To constrain the wealth and income divide, there is nothing in place except a pitiful promise of a top tax bracket of 39%. Even the two election promises for welfare, minor as they were – an increase to the amount of income that can be earned on a benefit, and the reintroduction of the training incentive allowance – have no sense of urgency or firm starting dates.

Surprisingly, given its rhetoric about child poverty, the government seems oblivious to the recession’s impact on children. The keystone income support programme for children, Working for Families, was never designed for recessions of the type we are facing. It works very badly for the worst-off children because it is based on the neoliberal mantra that paid work is the only way out of poverty. The in-work tax credit, a payment meant for the support of children, is dangled like a carrot to reward parents for not being on a benefit. This is cruel: for many families, paid work is inappropriate or impossible; other parents, meanwhile, are desperate to find a job – but in a recession far fewer jobs exist.

The way we protect the old and the young in New Zealand is to make sure there is a basic floor of income for both. For the old, NZ Super is widely understood as an effective basic income that is highly successful in providing unconditional support and preventing poverty.

Working for Families is the comparable programme for the young. It deserves the same understanding and support. Currently all parents or caregivers who are in some paid work, earning under $42,700 a year and not accessing any benefit, receive the full WFF weekly payment for their children. This payment is a cushion for children, and it should be unconditional for all low income children, just as NZ Super is available to all older people. We shouldn’t be differentiating between “deserving” and “undeserving” poor children.

What children need is for their parents to have an adequate income for themselves, and for children to be acknowledged as also having income needs. The children’s needs don’t suddenly reduce because their parents become so poor that they qualify for an adult benefit. Their WFF payment should not be cut when parents have no hours of paid work or need a welfare benefit because, for example, they have exhausted their wage subsidy or CIRP.

It is past time for the government to face up to the consequences of this policy: the perpetuation of the worst of child poverty. CPAG has noted many times that the numbers of children in the red danger zone of poverty – living in households with less than 40% of median after-housing-costs income – has hardly budged for 12 years. While we don’t yet have the full picture of the success of the Labour government’s first-term policies, as data is always two years out of date, the worst-off children gained little real help from the 2017 Families Package. This suggests that children below the 40% line – around 170,000 of them before Covid hit, and probably more now – continue to suffer under the current settings that deny them $500m of WFF payments per year and that keep their parents on subsistence-level adult benefits.

To repeat, welfare benefits are for adults. Putting up the adult benefit by $25 (only $12.50 each for couples) this year has often been cited as evidence of the generosity of government to families. But adult benefits have been far too low to meet the needs of the adults themselves. The additional support needed to meet the needs of children in low income households is a separate issue and has been largely ignored, in spite of all we know about poverty and child development. (The exception is Best Start which supports children under three on a non-discriminatory basis and is a welcome small step in the right direction.)

The Ministry of Social Development acknowledges the historic problem for those children excluded from the full WFF package in their annual 2019 household incomes report:

From 1992 to 2004, children in workless households generally had poverty rates around four times higher than for those in households where at least one adult was in full-time work.  From 2007 to 2015, the difference was even greater – around six to seven times higher for children in workless households. This change in relativities to a large degree reflects the greater WFF assistance for working families than for beneficiary families.

A low-income one-child family entitled to the full WFF weekly payment receives $185 a week. The caregiver in a qualifying four-child family receives $473 WFF per week to meet the needs of her children.

But the adults in these families must have some paid work to qualify for the full package. And there is a second condition: they must not be on any welfare benefit regardless of whether they have paid part-time work. A sole parent, for example, who fails to meet these two requirements loses $72.50 a week for her children, or 40% of WFF. In a four-child family the loss is $87 per week, or a cut in WFF of 18%. That’s rent for a much-needed additional bedroom, or an awful lot of fruit, milk, bread and vegetables cut out of the weekly low-income budget.

The IRD could flip the switch overnight and pay the full WFF to all low-income families. It wouldn’t cure child poverty on its own, but it is an obvious start, targeted only at those in severest poverty. It would commit the government to spending an extra $500m per year – an excellent economic stimulus as it’s money that would be spent immediately. Within government, there seems to be no questioning of expenditure like the $2 billion a year that goes into the NZ Super Fund, or the shameful subsidisation of those making extraordinary capital gains. It is not about the money, it is about letting go of a failed neoliberal ideology that withholds a poverty-reducing payment for the poorest children in the name of a work incentive. It is stunting the lives of our poorest children.

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