Caulfield, Malcolm --- "The Law and Pig Farming" [2007] ALRCRefJl 7; (2007) 91 Australian Law Reform Commission Reform Journal 22

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The law and pig farming

* By Malcolm Caulfield

Farmers keeping animals under intensive conditions are permitted by the law to inflict various forms of cruelty on those animals. The example of intensive pig farming illustrates the way the anti-cruelty legislation of Australia sanctions cruel activities. It is a truism that laws are enacted for the good of people. It might be said that laws seeking to prevent cruelty to animals are an exception to this rule. However, there is a strong argument that animal cruelty laws, insofar as they apply to farm animals, conform to the general picture. They are for the good of farmers and others who make money out of animals. Any benefit to animals is an incidental result of looking after the interests of their keepers. This short article seeks to illustrate the point by reference to one aspect of Australian law relating to the keeping of pigs in intensive piggeries.

The pig industry in Australia is relatively small. In 2004-05 just over 5 million pigs were slaughtered,¹ representing a value of about 7% of the value of all livestock slaughterings.² In 2004 there were 318,594 breeding sows in Australia and about 76% of those animals will spend a significant part of their lives in a 'sow stall'.³ Sow stalls are essentially metal cages little bigger than the body of the pregnant pigs they house. They were introduced by pig farmers purely on economic grounds – they are said to minimise fighting amongst sows (which it is claimed decreases their 'productivity') and to minimise the costs of managing the animals. The farmers like to say that keeping sows in these tiny cages allows animals to receive individual attention, which would otherwise be difficult to provide in a group housing situation and that it is good for their welfare. Not everyone is convinced by these claims. Faced with a growing public outcry that putting pregnant sows into these tiny cages is cruel, the pig farmers have responded with the argument that there is no scientific basis for the claim that the welfare of sows is decreased by confining them in sow stalls. They have used this argument to convince politicians to continue the legalisation of this practice. This provides a good example of how Australian law-makers, pushed by the influence of the agricultural lobby, have become complicit in perpetuating and legalising cruel practices in intensive animal farms.

The failure of Australian law to protect the welfare of breeding sows

It is entirely rational to regard keeping pregnant pigs in sow stalls as reducing welfare for sows,⁴ and as cruel.⁵ The response to this, some 20 years ago, was for the farming lobby and the various government agencies responsible for farming to develop 'codes of practice' which sanctioned cruel farming practices including the use of sow stalls. The first Model Code of Practice for the Welfare of Animals – Pigs (the Pig Code), for example, was published in 1983. These codes of practice, including the Pig Code, are endorsed by the Primary Industries Ministerial Committee (PIMC), which is a co-operative arrangement operating as part of the structure of the Council of Australian Governments.

Because anti-cruelty statutes are part of state and territory law (ie not Commonwealth law), those codes, being Commonwealth documents, are in themselves legally ineffectual. They acquire legal effect when adopted in some way by state or territory legislation. To date, adoption has been patchy and inconsistent. For example, breach of the Pig Code is an offence only in South Australia. The Pig Code has no legal effect in New South Wales, Tasmania, the Australian Capital Territory or the Northern Territory. In South Australia, Queensland, Victoria and Western Australia, compliance with the provisions of the Pig Code (or the equivalent local version, which picks up the wording of the Commonwealth document) as they relate to sow stalls is a defence to a prosecution under the relevant anti-cruelty statute (insofar as it relates to cruelty occasioned by the act of keeping the sow in the stall). It is interesting to note in passing that the protestations of the pig farmers that keeping sows in sow stalls is not cruel are made somewhat less credible by the need for a statutory defence to prosecution responsible for the practice.

The pig farming industry recently initiated a review of the Pig Code, through the PIMC mechanism. This review was said to be based on industry worries that welfare concerns, perhaps stimulated by the recent review in Europe, which restricted sow stall use to 4 weeks of any pregnancy, would result in the imposition of unpalatable restraints in Australia.⁶ The stated intention is that the new Pig Code, which was to contain mandatory standards relating to various matters, including sow stalls, would become enforceable by virtue of the mandatory standards being picked up in regulations in the various jurisdictions.

The process of review included the production of a Regulatory Impact Statement (RIS). This included what was said to be a scientific review of welfare issues relating to keeping sows in stalls. Oddly, this review, consisting of 10 pages, was not done by an independent panel of experts, as was the case with the earlier European Union review, but was carried out by the consultants who were contracted to prepare the RIS itself. This scientific review concluded that 'to date there is insufficient scientific justification to ban the usage of stalls completely and the ban by countries in Europe is a question of personal ethics, not science.' This clearly misrepresents the view of the eminent Scientific Veterinary Committee of the European Commission which produced an extensive review of the relevant scientific literature as at 1997. It is nearly 200 pages long, and makes reference to approximately 800 relevant scientific publications. After reviewing the positive and negative aspects of stall housing versus group housing, the report concludes: 'since overall welfare appears to be better when sows are not confined throughout gestation, sows should preferably be kept in groups'.⁷

The draft version of the new Pig Code which was the subject of the RIS included provisions to increase the length of the stall from 2.0 metres to 2.2 metres, with a width of 0.6 metres. Animals Australia is aware that nearly 45% of the sow stalls in Australia do not even comply with the dimensions specified in the old Pig Code (2.0 metres length; 0.6 metres width). It is perhaps not surprising in view of this that the new Code as endorsed by PIMC allows all existing sow stalls which do not comply with the new dimensions to continue to be used providing (in effect) the dimensions of the stall are no smaller than the dimensions of the animal in that stall. There is no mechanism for phasing out these stalls. In other words, the 45% of the stalls which would not comply with the dimensions of either the old or the new Pig Code can continue to be used until they fall apart. As the pig industry argued (during the Code consultation process) for a 25 year phase-in of new stall dimensions, it is reasonable to conclude that sows will continue to be kept in these undersize stalls for at least 25 years.

The new dimension requirement will only become compulsory for new stalls installed after April 2017. Also from April 2017, the new Code will permit sows to be kept in stalls for up to six weeks of a pregnancy (the gestation period in pigs is about 16 weeks). However, farmers will be permitted to keep sows in stalls for longer than six weeks where they are 'under special care by a competent stock person'. Would it be cynical to suggest that this will provide a loophole allowing farmers to keep sows in sow stalls for as long as they want?

The fact is that this shocking document, endorsed by PIMC on 20 April 2007 and which is intended to become law in Australia within the next two years, is a huge backward step for pig welfare. It flies in the face of developments in countries such as the UK, Switzerland, Sweden and Finland, which have either banned or will ban the use of sow stalls in the near future. It also flies in the face of changes by major overseas producers. For example, Smithfield Foods in the USA has responded to consumer pressure (reflected in pressure from Smithfield's customers, including McDonald's), by undertaking to phase out sow stalls by 2017. Smithfield alone produces 3 times as many pigs per annum as the entire Australian industry.

Despite this, the former Commonwealth minister responsible for the 'Australian Animal Welfare Strategy', Peter McGauran, had no problem describing Australian animal welfare standards as 'world class'. And in a letter to Animals Australia, the responsible minister in Victoria, Joe Helper, quaintly said (referring to the decision by Smithfield) that there was nothing in the law to prevent industry from phasing out sow stalls. One cannot but conclude that farm animals have few friends in government.

This sorry state of affairs is reflected throughout the provisions of the Pig Code. Other examples in the Pig Code of the sanctioning of cruel practices include tooth clipping, castration and tail docking of piglets, all without anaesthetic. The failure of the Pig Code review process to improve pig welfare is likely to be repeated in the outcomes of reviews of other Codes of Practice relating to the keeping of farm animals. There appears to be little political will for change, as both the major parties are reluctant to upset the farm animal industry lobby.

The position is exacerbated by the repeated failure of those charged with responsibility (or who assume responsibility, in the case of the RSPCA) to properly enforce even the existing laws. In many jurisdictions the relevant primary industry department enforces the law as it applies to farm animals. The conflict of interest is obvious. In some jurisdictions the government has abrogated responsibility and appointed the RSPCA as de facto enforcing authority. No rational person would dispute that it is completely wrong to delegate the enforcement of a criminal statute to an unaccountable (and inevitably inadequately funded) private society.

The reason this has happened is that legislation relating to the welfare of farm animals is the province of those who represent farmers and promote their interests. Governments pay lip service to animal welfare concerns by ensuring that welfare organisations sit on relevant committees and are consulted. The fact that these organisations are in the minority means that their views are in effect ignored.

There is every reason why the interests of farmers should be considered and taken into account, but this should not be the primary consideration. The way forward is for each jurisdiction to firstly ensure that prevention of animal cruelty is the responsibility of ministers other than primary industry or agriculture ministers and secondly to establish independent statutory bodies to draft, review and enforce the legislation. Given the evident ability of the disparate Australian governments to enact uniform legislation (eg in the area of corporations law and defamation law), it is equally feasible to have a uniform animal cruelty law.

Finally, it is apparent from the biased nature and outcome of the review process for the Pig Code that an essential step for drafting and review of animal cruelty legislation and its application to farm animals is the appointment of an independent scientific review committee. This committee must include eminent independent overseas scientists, as there is simply not a sufficient number of adequately experienced independent scientists in Australia.

Despite the seemingly overwhelming bias in favour of intensive animal farmers and the seemingly hopeless plight of their animals, those of us who are concerned about this issue are encouraged that increasing awareness of these cruel practices will force change. The very fact that this issue of Reform includes reference to these matters is itself evidence that things are on the move. We live in hope.

Endnotes

1. Australian Pork Limited (2005) Australian Pig Annual

2. Australian Bureau of Statistics (2007) Yearbook Australia

3. Based on figures provided by Australian Pork Limited to the authors of the Regulatory Impact Statement associated with the review of the Model Code of Practice for the Welfare of Animals – Pigs.

4. EU Scientific Veterinary Committee (1997) The Welfare of Intensively Kept Pigs

5. see the comments of Justice Bell in the case of McDonald's v Steel & Morris (“McLibel”) http://www.mcspotlight.org/case/trial/verdict/verdict_jud.html, which included the statement “I have no doubt that keeping sows in...sow stalls for extended periods is cruel”.

6. Neumann, G (2005) Review of the Australian Model Codes of Practice for the Welfare of Animals (commissioned by the Commonwealth Department of Agriculture Fisheries and Forestry)

7. Note 4 above

* Malcolm Caulfield is the legal counsel for Animals Australia