LIVE SHEEP EXPORTS AND ANIMAL WELFARE:
AN IMPOSSIBLE MATCH

http://www.arlan.org.nz

By Asa Lind

In late 2003, the world followed the fate of thousands of sheep condemned to float from port to port in the Middle East . Close to four thousand sheep died on the Cormo Express before the remaining animals were finally unloaded. While the ship was an Australian vessel, live sheep exports – in smaller numbers – also leave from New Zealand , though they have been temporarily halted. This article, which was published in two parts in the ARLAN Report, examines the legality of this practice in New Zealand . ARLAN concludes that live sheep export is fundamentally incompatible with the principles of the Animal Welfare Act 1999.

“In behavioural terms, sheep can be described as defenceless, vigilant, visually alert, tight flocking, follower responsive, wool-covered ruminants that evolved within a mountain grassland habitat.”
-AWAC Code of Animal Welfare No. 2

“On board they are packed into pens at a density of three to a square metre…in temperatures reaching 34C despite ventilation, sheep starve because they stop eating, are killed by salmonella bacteria, or die from trauma, frequently caused when the hind legs splay, dislocating hips and tearing pelvic muscle.”
- New Zealand Herald, September 27 2003

Introduction

The following is an examination of the current practice of exporting live sheep, and the law which governs this type of trade. In this part of the article, the history of the practice and the particular conditions that sheep endure on board an export ship are first outlined. Subsequently, the issues of jurisdiction to prosecute and the authority to grant export permits is considered. In next month’s report, the legal requirements that govern the care and transport of live animals will be analysed. In particular the Animal Welfare Act 1999 and the Code of Recommendations and Minimum Standards for the Sea Transport of Sheep from New Zealand 1991 (AWAC) (Code of Animal Welfare No. 2) will be covered.

 

 

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Background

The export of live sheep has had a troublesome and violent history. Between 1981 and 1985, over 600,000 sheep died in transit(1). Within the first 20 years of the practice, it is estimated that more than 2 million animals died, this in spite of industry moves to use new ship designs and techniques to improve conditions.

Importers of live sheep are mainly Muslim populated countries in the Middle East , for the requirements for the killing of animals under Islamic law are not usually met in New Zealand . Islamic requirements for halal killing involve severing a sheep’s throat with a single cut through to the spinal column. This could be carried out in New Zealand but, it has been argued, only to a limited degree as there is a lack of refrigerated storage in some countries, and therefore carcass trade is not always possible(2).

Life for sheep on board a ship entails the boredom of cramped metal pens where the animals stand or lie down in sawdust, often in their own muck(3).

“On board they are packed into pens at a density of three to a square metre…in temperatures reaching 34C despite ventilation, sheep starve because they stop eating, are killed by salmonella bacteria, or die from trauma, frequently caused when the hind legs splay, dislocating hips and tearing pelvic muscle.”(4).

“Sheep are particularly at risk of heat stress, as they cannot readily lose heat, especially if they are in full wool.”(5).

When the animals get very hot, they pant in order to cool down, and consequently saliva evaporates from the tongue. The fluid that is lost must therefore be replaced and thus an increased water supply becomes necessary. When they are crowded together with little ventilation in hot conditions they rapidly become stressed, and if unattended to, they thereafter suffer heat stroke which can result in collapse and death. At feeding times the animals are subjected to intense competition in order to get fed, and this can result in “…plunging and pushing episodes, loss of footing…and suffocation of some animals.”(6).

The end of the journey does not necessarily mean the end of suffering, as the surviving animals face a further risk of being killed during their unloading. Furthermore it has been estimated that at least 3% of sheep die while awaiting slaughter in the Middle East (7).

Historical journeys

There have been countless tragedies involving sheep shipped live to the Middle East . For example, in 1980, 40,600 sheep died in a fire on board the ship Farid Fares. The death of a further 15,000 sheep followed in 1983, owing to heat exhaustion. In 1990, the Cormo Express, sailing from New Zealand , lost 10,000 sheep to death from various causes. Also in 1990, thousands of sheep were stranded on board the Mawashi Al Gasseem for 16 weeks, after it was rejected by Saudi Arabia . That incident ended New Zealand trade in live sheep with the kingdom, although not with other nations.

Recently the world experienced the tragedy on board the Cormo Express, an 11 deck converted ferry, that departed from Fremantle , Australia , on August 5 of this year, with 57,937 sheep aboard. The journey was to take 16 days and unloading was to take place at Jeddah , Saudi Arabia , in the heat of summer. However, the ship was prevented from unloading its live cargo when a Saudi vet claimed he had found a skin problem called ‘scabby mouth’ among the animals. Although the condition does not affect the meat, Saudi Arabian importers require the sheep’s appearance to be perfect in order to suit their ritual slaughter – and therefore the sheep were declined entry. Over the 11 weeks that followed, disaster ensued as the sheep began to suffer from heat exhaustion and die in the extreme temperatures. According to the ship’s Dutch manager, Vroon B.V, by September 20, 3777 sheep had died on the ship(8).

The practice in New Zealand today

Although New Zealand no longer exports large volumes of live sheep, it still carries on the practice. In 1996 eight shipments went to the Middle East whilst in the year 2002 there was one shipment, containing 32,000 sheep. The number of shipments has dropped drastically since 1997, when a regulation change saw the banning of live exports of lambs(9). Since the beginning of 2003, at least 43,000 sheep have been exported for slaughter from New Zealand (10). On the 24th of September, the Ministry of Agriculture and Forestry delayed the export of 60 thousand sheep to the Middle East owing to growing concerns over the Australian shipment on board the Cormo Express.

The practice of live sheep exports is governed primarily by the Animal Welfare Act 1999, the Code of Recommendations and Minimum Standards for the Sea Transport of Sheep from New Zealand 1991 (AWAC) (Code of Animal Welfare No. 2) and, to a lesser extent, the Maritime Safety Authority Rules.

Sheep Exports and The Animal Welfare Act

The treatment of animals exported from New Zealand is clearly captured by the Animal Welfare Act 1999. As noted above, several parts of the Act deal explicitly with this issue, and as we shall see, animals cannot be exported from New Zealand without permission of the government. A more difficult legal issue, however, is whether offenders who commit Animal Welfare offences outside of New Zealand waters are liable to be prosecuted for those offences in New Zealand . It is an important question that needs to be addressed. The truth is, in almost every case, the harm done to the sheep tends to occur only after the animals have left New Zealand , and are well on their way to the Middle East .

While ARLAN believes that transgressions of the Animal Welfare Act 1999 that commence in New Zealand (through the export of the sheep) can be prosecuted, it is not absolutely certain that this is the case. This legal uncertainty is another strong reason for banning live sheep export altogether.

Jurisdiction to Prosecute

The general principle is that acts and omissions occurring outside New Zealand are not within the jurisdiction of the New Zealand Courts, as stated in s6 of the Crimes Act 1961 (hereafter the Crimes Act), but this is subject to s7 of the Crimes Act(11) which holds that for the purpose of jurisdiction, where any act or omission forming part of any offence, or any event necessary for the completion of any offence occurs in New Zealand, the offence shall be deemed to be committed in New Zealand, whether or not the person charged with the offence was in New Zealand or not at the time of the act, omission or event.

Adams on Criminal Law(12) writes that this provision can resolve a situation where an entire offence is not completed within the territorial jurisdiction of the Court. The problem is thus solved through the technique of deeming the whole offence to occur within New Zealand . This is however only possible if either: 1, any act or omission forming part of the offence occurs in New Zealand; or 2, any event necessary for the completion of the offence occurs in New Zealand (13).

Adams further notes that “if the only act occurring in New Zealand was merely preparatory to the commission of an offence, and did not form part of the actus reus of the offence itself, the deeming effect of s7 would not be brought into play…”(14). For an ‘event’ to be ‘necessary to the completion of any offence’, under the second s7 test, the inquiry goes towards the event and not the conduct of the defendant(15). Here the offence must be a “result crime”, meaning that a particular result must follow on from the defendant’s conduct before it amounts to a completed offence(16). To establish jurisdiction under this part, the Court has to ascertain whether or not the offence requires an event to occur in New Zealand as part of the offence. In Tipple v Pain, the arrival of goods in New Zealand was an event necessary for the completion of the offence and its occurrence was sufficient to give the New Zealand courts jurisdiction (17).

Common law approach to jurisdiction

Common law decisions of the courts also inform decisions on jurisdiction. In recent years English Courts have asserted jurisdiction on the basis of the “last act” done to complete an offence approach(18), but at other times a less strict method has been applied, and the Court has asserted jurisdiction because of the gist of the offence or some event necessary for the offence took place within the jurisdiction, and international and the comity of nations did not prevent it(19). Adams upholds this last approach as ‘having practical attraction’, and it was further upheld by the Privy Council in Liangsiriprasert (20). Australia has since followed this approach in Wong v R The Canadian courts use an even lower threshold for asserting jurisdiction, as in that country a prosecution can occur if the ‘defendant’s conduct has harmful consequences within Canada even if the conduct occurs outside Canada’(21). The Canadian case of Libman v The Queen (22) further holds that there must be a “real and substantial link” between the offence and the country, and whether there are any facts that legitimately gives the country an interest in prosecuting the offence must be taken into consideration. The Court must then consider whether there is anything in those facts that offends international comity

In New Zealand , Paterson J stated in Solicitor-General v Reid that ‘the real and substantial link principle…seems an appropriate test at a time when modern communications and travel transcends borders’(23). While this decision was only obiter dicta, it is still approving of the more liberal Canadian approach in Libman. The issue is not entirely resolved, as Paterson J’s statements appear contrary to views expressed in earlier New Zealand decisions (24) In particular, Adams notes that New Zealand courts have generally resolved jurisdictional issues through statutory interpretation (see above discussion on s7).

While there are encouraging signs, the matter is not entirely resolved. Under a strict approach to s7 of the Crimes Act, a welfare offence occurring on a transport ship would not fall under New Zealand ’s prosecutorial discretion. Still, legal developments consistently indicate that a narrow approach should not be adopted. Given that live sheep export is a commercial activity that takes place in New Zealand , with New Zealand animals, there is clearly a “real and substantial link” with activity in New Zealand . In light of international legal developments on issues of transnational crime, it is highly likely that a New Zealand would have jurisdiction to try animal welfare offences arising out of live sheep export.

Animal Exports

Exports from New Zealand are explicitly covered under Part 3 of the Animal Welfare Act 1999. Section 38 of states that the purpose of this part is to protect the welfare of animals which are being exported from New Zealand and which are being transported by ship or aircraft by ensuring that the risk faced by such animals are minimized.

The Act has a number of mechanisms to prevent unauthorized sheep export. First, section 40 makes it an offence to export an animal other than under the authority, and in accordance with the conditions of an animal welfare certificate. A person who commits an offence under s40 faces a hefty penalty; in the case of an individual, to imprisonment for a term not exceeding 6 months or to a maximum fine of &25,000; in the case of a body corporate, to a maximum fine of $125,000. A member of the police may arrest a person and take possession of the ship under s137 if an offence is committed against s40.

Animal Welfare certificates are designed to ensure that New Zealand animal welfare standards are adhered to during the export of animals. Generally, these certificates require exporters to meet with a number of standards set out by the Director-General of … These are set out in Guidelines, as per the Act. Any guidelines published may relate to a specific type of animal or animals generally (s41(5)(a)), to the export of animals (s41(5)(b)) and also to particular animals in particular circumstances (s41(5)(c)).

S42 sets out the requirements for application for animal export certificates and s43 stipulates the matters to be taken into consideration when issuing such a certificate. Such matters include, amongst others; the manner in which the welfare of any animal previously exported by the applicant was attended to, the species of animal, the mode of transport and the length and nature of the journey proposed, the susceptibility of the animal to harm and distress under the conditions of transport proposed and any New Zealand requirements in relation to exportation of animals.

Where an animal that is to be exported is loaded onto a ship other than under authority and in accordance with the prescribed terms of a certificate, the Director-General or other authorized person may under s53 seize the animal, take any steps to prevent any suffering of an animal, direct the owner to take steps to prevent suffering or keep the animal for a period of time. It is furthermore an offence if a person refuses to comply with any requirement of an inspector under s53, as per s54. An individual who commits an offence against s54, is liable to a maximum fine of $5,000; a body corporate to a maximum fine of $25,000.

The first part of this article reviewed the background of live sheep export, whether breaches of animal welfare standards could be prosecuted by New Zealand authorities, and the need for a certificate before export. This part addresses the types of offences that might occur during an overseas export of sheep. The practice of live sheep exports is governed primarily by the Animal Welfare Act 1999 (the Act) but it also requires consideration of the Code of Recommendations and Minimum Standards for the Sea Transport of Sheep from New Zealand 1991 (AWAC) and, to a lesser extent, the Maritime Safety Authority Rules.

The Animal Welfare Act 1999 Animal welfare standards involving the transportation of animals are governed by sections 22 – 25 of the Act. S 22 requires that every person in charge of a ship on which an animal is transported, must ensure that the welfare of the animal is ‘properly attended to’, and that each particular animal is provided with ‘reasonably comfortable and secure accommodation’, and is ‘supplied with sufficient food and water’. Any person commits an offence who fails, without reasonable excuse, to comply with any of the above requirements, as per s22(2).

When one applies this section to a situation, such as the recent Cormo Express disaster, it is difficult to see how live sheep export allows this section would be complied with as the welfare of the animals is clearly jeopardized and therefore ‘not properly attended to’. When sheep are made to endure weeks of suffering on board a ship in cramped conditions and sweltering heat, it cannot be said that they are provided with ‘reasonably comfortable and secure accommodation’. Furthermore, when sheep die of heat exhaustion, none of the above requirements are complied with, and it is always questionable in such circumstances whether ‘sufficient water has been supplied’.

Under s23 a person commits an offence who, without reasonable excuse, confines or transports an animal ‘in a manner or position that causes the animal unreasonable or unnecessary pain or distress’. This section goes on to add that it is an offence if the owner or the person in charge of the animal permits it to be transported on a ship while the ‘condition or health of that animal is such as to render it unfit to be so transported’ (s23(2)(c)).

Evidence demonstrates that sheep are often packed onto a ship into pens at a density of three to a square meter. Temperatures often reach highs of 34C despite ventilation, and the animals often starve because they stop eating, are killed by salmonella bacteria, or die from trauma (25). It would seem that virtually as a rule, it can be said that sheep exporters confine and transport the animal ‘in a manner or position that causes the animal unreasonable or unnecessary pain or distress’.

It can further be assumed that the second part of the section would also be breached, as the biological nature and physicality of a sheep makes it in a ‘condition such as to render it unfit to be transported’ on a ship. Sheep are ‘wool-covered ruminants that evolved within a mountain grassland habitat’(26) and they are ‘particularly at risk of heat stress, as they cannot readily lose heat, especially if they are in full wool.’ (27)

The maximum penalties imposed for a breach of the above sections are laid down in s25 as: for an individual; a term of imprisonment not exceeding 6 months or a fine of maximum $25,000. For a body corporate; a fine of maximum $125,000.

The foregoing analysis indicates that sheep export is a risky proposition that would almost inevitably conflict with the welfare provisions of the Act. Still, s24 of the Act goes on to provide a defence to a person in breach of the above sections, if the minimum requirements of an established code of welfare have been complied with. Unfortunately for exporters, no such Code exists. In 1991, the Code of Recommendations and Minimum Standards for the Sea Transport of Sheep from New Zealand 1991 (AWAC) Code of Animal Welfare No. 2 was enacted, but this Code no longer has legal force in New Zealand. While the Code might be useful in determining whether a particular practice was “unreasonable” or “unnecessary”, it has not been subjected to public consultation, and it has not been measured against the principles of the Animal Welfare Act. There is no immediate plan to enact this Code as a Code of Welfare.

General care of animals

The transportation provisions are arguably not the only aspects of the Act that may give rise to concern. Transporters also qualify as “persons in charge” of animals, and they must accord with the general obligations imposed upon these individuals in Part 1 of the Act. S10 of the Act requires owners and persons in charge of animals to take all reasonable steps to ensure that the physical, health and behavioural needs of the animals are met in accordance with good practice and scientific knowledge. ‘Physical, health, and behavioural needs’ are defined in s4 of the Act as including: sufficient water, adequate shelter, opportunity to display normal patterns of behaviour and further ‘physical handling which minimizes the likelihood of unreasonable or unnecessary pain or distress’.

To place sheep on ships where the conditions are cramped and temperatures are high cannot be said to constitute handling ‘which minimizes the likelihood of unreasonable or unnecessary pain or distress’. The historical evidence shows that transport of this nature almost inevitably results in these conditions. S11 creates a further obligation, to alleviate pain or distress of ill or injured animals. When read in conjunction with s4(e), which refers to protection from, and rapid diagnosis of injury or disease, it appears that the conditions present on board a live sheep export ship, would not easily meet the Act’s requirements here.

Under s14, an owner or person in charge of an animal further commits an offence who, without reasonable excuse, keeps the animal alive when it is in such condition that it is suffering unreasonable or unnecessary pain or distress, or deserts the animal. In a situation as the recent Cormo Express tragedy, s14 would be breached as the animals were kept alive in conditions where they were ‘suffering unreasonably’ or from ‘unnecessary pain or distress’, and such conduct would amount to an offence under this section.

In addition to the Animal Welfare Act and the Code, further requirements for the shipment of livestock is provided by the Maritime Safety Authority Rules. Under Part 2.1, sheep are specifically dealt with, and particular requirements are set out for the number of sheep that can be held in specific pens. Part 24C.18 gives particular requirements for ships carrying live stock, which are set out in detail. These Rules are mainly directed to the suitability of the ship and of its equipment.

The power to inspect ships

An inspector intending to inspect a ship, or other vessel, may enter, without a warrant, that ship at any reasonable time or times at which the ship is stationary, for the purposes of inspecting any animal on board, as per s127 of the Act. Where an inspector has reasonable grounds to believe, in respect of any animal found on…a ship, that the animal has been wilfully ill-treated contrary to s28, or the physical, health or behavioural needs of the animal or the need for an animal to receive treatment from a veterinarian make it necessary or desirable to remove the animal, the inspector may take possession of the animal/s (s127(5)).

Under s130, where an inspector, either in the course of exercising a power under s127 or at any other time, has reasonable grounds to believe that an animal is suffering or is likely to suffer unreasonable or unnecessary pain or distress, the inspector may take all such steps as the inspector considers are necessary or desirable to prevent or mitigate the suffering of the animal. This means that not only can the inspector interfere if he or she suspects that an animal is suffering, but if the inspector has reason to believe that there is even a risk that sheep onboard ship will suffer at a future date, the inspector can also take action. The inspector may also, by notice in writing to the owner or person in charge, require the person to ‘take all such steps as the inspector considers necessary or desirable to prevent or mitigate the suffering of the animal (s130(1)(b).

The powers under s130 are however circumscribed in the case of a ship that is neither a ship registered (28) nor entitled to be registered as a New Zealand ship, s127(4). A foreign ship can thus only be searched if the ship is in a port, harbour, roadstead, or anchorage in New Zealand ; or if it is within the internal waters of New Zealand (29). The same limitation regarding the power to inspect foreign ships arises under s131, when a search warrant has been obtained. The search warrant entitles the inspector to use force as is reasonable in the circumstances for the purpose of effecting entry and also to seize an animal (s.133).

Conclusion

As has been seen, the practice of live sheep exports has had a troublesome and tragic history and although attempts have been made at improving the practice, it still presents numerous animal welfare questions that have not been properly addressed. In New Zealand the Animal Welfare Act 1999 specifically covers the care and transportation of live animals and it is the author’s opinion that several sections of the Act are likely being breached when sheep are exported under the current conditions. Moreover, it is disturbing that no Code of Welfare actually addresses this particular practice.

Equally troubling is the difficult issues of jurisdiction and enforcement that can arise in situations where a breach occurs on a ship not registered in New Zealand and which is outside New Zealand territorial waters. As these shipments originate in New Zealand , this country’s government must retain the ability to supervise every aspect of the shipping process. Indeed, the inability to properly do so, given the historical evidence of welfare issues, is a large point in favour of halting the shipments entirely.

In order to best provide for the welfare of sheep, it is therefore submitted that no live sheep exports should take place from New Zealand, as it cannot be guaranteed that such sheep will be transported in a manner which will not cause them to ‘suffer unreasonable or unnecessary pain or distress’. Nor can it be said that each animal will be ‘properly attended to’, or provided ‘reasonably comfortable and secure accommodation’ for the purpose of ‘maintaining acceptable welfare standards’.

1 Greg Ansley. The New Zealand Herald, Sep 27 2003 .
2 Ibid.
3 According to David Marshall, veterinarian and supervisor of sheep ships in Australia . Noted in The Sydney Morning Herald, Sep 25 2003 .
4 Emphasis author’s own. Supra at note 1.
5 Ministry of Agriculture, Media Release – 20 Feb 1998 . <http://www.maf.govt.nz/mafnet/press/archive>
6 As reported in a 1994 New Zealand Veterinary Journal and as noted in the New Zealand Herald, supra at note 1.
7 <http://wa.greens.org.au/policy/other/sheep>
8 Supra at note 3.
9 The New Zealand Herald, Sep 29 2003 .
10 <http://www.greens.org.nz/searchdocs>
11 The Animal Welfare Act is subject to the same interpretation, as S11 of the Crimes Act holds that ‘every Act shall be read and construed as if any offence therein mentioned for which the offender may be prosecuted were described or referred to as a crime; and all provisions of this Act relating to crimes generally shall apply to every such offence’.
12 Adams on Criminal Law, Wellington , Brooker’s, 1992.
13 This is confirmed in Solicitor-General v Reid [1997] 3 NZLR 617.
14 Supra at note 26 at 7.12.
15 Supra note 26 at 7.07A.
16 Ibid.
17 Supra at note 28.
18 R v Manning [1998] 2 Cr App R 461.
19 Supra note 26 at 7.05. and
20 Supra note 28.
21 Libman v the Queen (1985) 21 CCC (3rd) 206.
22 (1985) 21 CCC (3rd) 206 and as noted in Solicitor-General v Reid at 631. The Privy Council in Liangsiriprasert v
Government of the USA [1991] 1 AC 225 upheld the statement from Libman.
23 Supra note 27 at 632.
24 Adams , see supra note 26 at 7.05-7.06.
25 New Zealand Herald – Sept 27 2003 .
26 Code of Recommendations and Minimum Standards for the Sea Transport of Sheep from New Zealand 1991 (AWAC) (Code of Animal Welfare No. 2).
27 Ministry of Agriculture, Media Release – 20 Feb 1998 . <http://www.maf.govt.nz/mafnet/press/archive>
28 Under the Ship Registration Act 1992.
29 As defined by s4 of the Territorial Sea , Contiguous Zone, and Exclusive Economic Zone Act 197

 

 
 
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