The Hon Kevin Rudd, MP

1

21 September 2009

The Hon Kevin Rudd, MP

Prime Minister of Australia

Parliament House

Canberra ACT 2600

Dear Prime Minister,

The Commonwealth as the existing principal regulator of animal welfare;

and the live animal export trade

The interest of the legal profession in recent years in issues of law reform to improve the welfare of animals continues unabated and is now focused especially on the legal regime regulating the welfare of ‘factory farmed’ animals and animals in the live export trade.

Put simply, the treatment of these animals invokes from a lawyer’s viewpoint a stark and compelling justice issue of the first order. It is no surprise then that the Australian Law Reform Commission in the 2007/08 issue of its Reform journal published twice a year should devote the publication to ‘Animals’:

The Panel comprises some 90 barristers (including some 25 silks from the criminal and commercial bars), and as a Bar Association of the Victorian Bar addresses a national agenda. It has an adjunct panel of law firms which includes large national first tier firms.

Federal parliamentary intervention to address the institutionalised injustice of Australia’s animal protection legal regimeis viewed as not only urgent for the reasons set out below but as also necessary in view of the Commonwealth’s principal role in creating welfare standards with such a low threshold that these animals fail to receive even the most rudimentary protection.

At the conclusion of this letter we set out a couple of practical regulatory measures which could be adopted to begin to address some of the more unsavoury features of the trade in these animals. That said, the Panel takes the view that only by ceasing the ‘factory farming’ of these animals and the live animal export trade can these features be brought to an end. Enclosed with this letter is a brief summary of the reasons the Panel believes the live sheep export trade should cease. As to ‘factory farming’, you will appreciate that the bleak existence, for example, of the battery hen or the sow confined to a sow stall or a farrowing crate, is almost universally acknowledged.

The existing animal protection legal regime and the Commonwealth’s leading role

Contrary to popular belief, the Commonwealth plays the primary or pivotal role in regulating the welfare of the nation’s animals, some half a billion annually.[1] That pivotal role arises in this way.

First, the overwhelming mass of animals are exempted from the reach and application of the various state and territory animal protection statutes. How? By sanctioning compliance with “codes of practice” – usually favouring the interests of producers over animal welfare – as a defence or exemption from prosecution under the local statute. As a result, these codes usually adopt low animal welfare standards, and in terms of most of the half billion animals each year requiring protection operate to institutionalise acute and chronic suffering.

This is no overstatement: for example, the code of practice for the welfare ofpoultry permits the confinement of a battery hen to a floor space less thanthe size of an A4 sheet of paper. Such enduring close confinement would ordinarily fall within one of the local statutes’ cruelty offences.

As such confinement complies with the relevant code of practice, however, the statute does not apply.

Second, the Commonwealth plays the pivotal role in the formulation of these codes of practice under the auspices of the federal Department of Agriculture, Fisheries and Forestry. Codes are produced by the self-styled “Animal Welfare Committee” within the Australian Primary Industries Ministerial Council system. Representatives of the federal department and its state counterparts are members of the “Animal Welfare Committee” together with representatives of other bodies such as industry body Animal Health Australia. This Animal Welfare Committee (bereft of any animal welfare representation) produces national model codes. In Victoria, for example, these codes are then incorporated into the local animal protection legal regime by the Governor in Council on the recommendation of the Victorian Minister for Primary Industries.

For completeness, it should be noted that the codes are gradually being replaced by a system of Standards and Guidelines prepared under the auspices of the federal department. They will be introduced into local legal regimes by their promulgation as Regulations so that their breach may in addition render an offender liable to prosecution. However, the same low animal welfare thresholds will apply, thus rendering any successful prosecution exceedingly difficult andotherwise perpetuating the same poor animal welfare outcomes as now obtain.

Third, the low animal welfare standards of the codes lag behind public sentiment and overseas reform. For instance, Council of Europe conventions and European Union legislation provide for the prohibition of battery cages by 2012, and their phasing out in the interim. In the United States and Canada, each country’s largest pork producer has flagged it will phase out sow gestation stalls in acknowledgment of public opinion and consumer sentiment. The sow stall was abolished in England in 1999.

Fourth, whilst there is a self-evident conflict of interest in a state or territory department of agriculture remaining in charge of enforcement and administration of most local statutes where each views itself as the ‘friend’ of industry, this conflict of interest is compounded in the case of a federal department of agriculture by its lack of leadership in adoptingsuch a leadingand unquestioning role in initiating and formulating national “model” codes ( or the new Standards and Guidelines) with such low animal protection standards. In short, the federal department fails to provide the necessary moral leadership despite being in the prime position to do so. Instead, it leads the charge to perpetuate poor animal welfare outcomes[2].Indeed, in the ‘Foreword’ to each code the objective of the Primary Industries Ministerial Council is expressed to be :

“to develop and promote sustainable, innovative and profitable agriculture, fisheries/aquaculture, food and forestry industries.”

There is nothing wrong of course with that objective but not a mention is made of animal welfare.

Commonwealth legal regime for export of live animals

(a)The Commonwealth legal regime for the export of live animals is a ‘mish mash’ of two statutes, Australian Meat and Live-stock Industry Act 1997 and the Export Control Act 1982; Regulations such as the Australian Meat and Live-stock Industry (Export Licensing) Amendment Regulations 2005 (No 1); Orders such as the Export Control (Animals) Order 2004, Export Control (Orders) Regulations 1982, and Australian Meat and Livestock Industry (Standards) Amendment Order 2006 (No 4);Australian Meat and Live-stock (Export of live-stock to Egypt) Order 2008[3]; Australian Standards for the Export of Livestock (Version 2.2, November 2008) and the Australian Position Statement; Navigation Act 1902; and Marine Orders Part 43 Cargo & Handling Livestock Issue No 6.

In addition, there is the local statute where relevant. For example, some 80% of Australia’s 4 million live sheep exports annually are shipped ex-Fremantle. Western Australia’s Animal Welfare Act 2002 by section 19(1) provides that a person must not be cruel to an animal, and by subsection (3)(a) provides:

“Without limiting subsection (1), a person in charge of an animal is cruel to an animal if the animal:

(a)is transported in a way that causes, or is likely to cause, it unnecessary harm.”

(b)The first point to be made is that, local statutes apart, animal welfare standards stand or fall by the administrative fiat of the Secretary of DAFF. They do not endure as if reposed in a statute, for example. Item 2 of ‘Schedule 1-Amendments’ of the Australian Meat and Live-stock Industry (Export Licensing) Amendment Regulations 2005 (No 1) introduced a requirement to comply with those standards which “may be specified in an order made by the Secretary under section 17 of the Act”. The Standards were so specified in an Order made by the Secretary under section 17 of the Act[4] in these terms:

“The holder of a live-stock export licence must not export live-stock except in accordance with the Australian Standards for the export of live-stock.” (Version 2.2, November 2008)

Section 17(5)(a) of the Act makes compliance with this Order a “condition” of any export licence.

It is these Standards which incorporate State and Territory animal welfare legislation. Accordingly, State and Territory jurisdiction in animal welfare may be liable also to stand or fall by the administrative fiat of the Secretary of DAFF and, as it is, it is unclear under the existing Standards where in material respects one jurisdiction begins and the other ends.

(c)It is also unsatisfactory that a Department or agency with such a self-evident conflict of interest should prescribe such standards. The Panel is unaware of any prosecutions or disciplinary proceedings or action taken of any substance by DAFF or its delegate, AQIS. Indeed, AQIS documents obtained under FOI applications show that, despite AQIS claims in 2007 that it had made “full reports” of “high mortality investigation reports” on its website, these claims were untrue: in fact, AQIS had ‘sanitised’ its reports by deleting evidence of export licence breaches by its “clients”, namely export licence holders. AQIS has since rectified this.

Or again, there are grounds for believing that AQIS does not prosecute or relevantly enforce export licence breaches. For example, AQIS “Export Advisory Notice” (no. 2007-16) (obtained under an FOI application) refers to audits of live exporters, identification of shortcomings in those audits, and requests for “corrective action”. Audit reports are rated as “acceptable”, “marginal”, or “unacceptable”. According to the Notice, the sanction applied with marginal or unacceptable audit outcomes is no more than an increase in “audit frequency and supervision of consignments”. Not even export licence renewal would appear to be put in jeopardy.

(d)Again, the federal department, DAFF, in conjunction with the Victorian Minster for Primary Industries and his Department in 2007 publicly sanctioned the continuance in Victoria of ritual slaughter (slitting the throat) of sheep, without pre-stunning, for the purposes of an export program to the Middle East by some four abattoirs in country Victoria, despite the barbarity of such slaughter without pre-stunning. Sheep so slaughtered can remain conscious for up to 20 seconds after their throat is cut. The attendant trauma would be obvious. Prior to this coming to light in 2007, it was not thought to be taking place in Australia on the basis that it would be contrary to Australia’s animal welfare laws. Yet this is the end Australia’s sheep confront in the Middle East. However, DAFF without any public notice had granted permission for this to take place in Australia.[5] Here is a perfect example of the failure of DAFF to address the moral norms enshrined in animal protection legislation, relying presumably on federal power to purportedly circumvent the reach of the Victorian statute.

(e) Further, the Standards themselves are expressed in a discursive way, thereby not lending themselves to the certainty required for proper law enforcement (or perhaps observance in different respects by the industry).

(f ) As a picture is usually worth a thousand words, we recommend you view the footage shot by animal welfare group ‘Animals Australia’ at highlighting the barbarity of the trade in recent years.

A couple of practical regulatory measures

First, one simple step which could be taken in the short term would be to appoint a Commissioner for Animal Welfare to report to the federal parliament annually or as occasion required on deficiencies or progress in improvement of animal welfare standards and treatment. As an officer reporting to the federal parliament, such a commissioner would not derogate from the authority of the federal department of agriculture or its Minister in regulating animal welfare. Such an appointment would also acknowledge the pivotal role the Commonwealth plays in regulating the welfare of most animals and, importantly, the public interest.

There are ample precedents for the appointment of such a commissionerfederally, such as the Commissioner for Children, or the Commissioner for Sex Discrimination or, in the adoption of not unrelated models such as those initially adopted in the areas of women’s affairs and equal opportunity.

Second, in time examination could be made of whether the Commissioner should head or be succeeded by a Commonwealth independent statutory body established to prescribe animal welfare standards generally and in a more enduring manner, and to be responsible for their enforcement. There are a number of relevant constitutional Commonwealthheads of power that may be called in aid, including the trade and commerce power (s.51(i)); the corporations power (s.51(xx); the territories power (s.122); the posts and telegraph power (s.51(v)); and the power in respect of Commonwealth instrumentalities and the public service (s.52). In addition, there is s.109.

Alternatively, the question of animal welfare and its regulation could be referred to the Australian Law Reform Commission for examination and report, or perhaps the Standing Committee of Attorneys General.

In the case of the live animal export trade (assuming its regrettable continuance), it is difficult to appreciate any public interest imperative which dictates the trade cannot be administered by DAFF on the one hand, whilst animal welfare standards are prescribed and enforced by such an independent statutory body on the other.

Presently, enforcement of what remains of the protective reach of local animal protection statutes is left in substantive respects to the RSPCA, a charity with limited resources, and armed with what can only be described as deficient powers of inspection under the local statute. Further, in an age in which individuals may be backed by a producer body or a fighting fund, how can a charity also be expected to risk an adverse costs outcome in a difficult or protracted prosecution? Only the state has the resources necessary to enforce a public interest statute which is, or should be, so potentially wide-ranging. The enforcement record of local departments responsible for animal welfare is, to say the least, a modest one.

We should be grateful if you could give these matters your careful consideration and let us have your thoughts in due course.

The Panel’s website may be found at under the tab ‘Bar Associations’.

Yours sincerely,

Graeme McEwen

Chair

Barristers Animal Welfare Panel

This letter has been sent to only members of the Labor parliamentary caucus as the governing party, and the Senate cross-benchers.

[1] This means, for example, the sow’s plight in a sow stall or farrowing crate extends Australia-wide to some 250,000 to 300,000 animals annually. The plight of the battery hen extends Australia-wide to some 11 million annually, and in the case of broiler chickens, to some 488 million annually. Last year Australia exported (principally to the Middle East) some 4 .3 million sheep, and some 865,000 cattle (about three-quarters of which were imported by Indonesia and the remainder by some 30 other countries). Goats, deer, buffalo and camels are also exported live.

[2]The Department’s ‘Australian Animal Welfare Strategy’ is directed to “harmonizing” laws affecting animals.

[3]This Order (dated 29.11.08) prohibits the export of live-stock to Egypt , save for cattle subject to compliance with certain conditions: this principally arises from hundreds of breaches by Egypt of a Memorandum of Understanding with Australia in the first shipment of resumed live sheep exports in 2006 following a prior suspension. The suspension followed a ’60 Minutes expose’ of the treatment of the sheep in Egypt.

[4] namely, Order 3(1), Australian Meat and Live-Stock Industry (Standards) Order 2005 as later amended by Australian Meat and Live-stock Industry (Standards ) Amendment Order 2008 to provide for a revised set of Standards.

[5] Remarkably, once the matter became public knowledge, the then federal agriculture Minister announced a review of whether such slaughter was inhumane. More than two years later no determination has yet been made or published, although it is understood the Primary Industries Ministerial Council may consider the matter later this year. In contrast, more than 20 years ago the British Government appointed Animal Welfare Council urged it be banned on the ground that it was so particularly inhumane.