Pearson, Alan; Plowman, Kathleen; Topfer, John --- "Animals and the Law in Australia: a Livestock Industry Perspective" [2007] ALRCRefJl 8; (2007) 91 Australian Law Reform Commission Reform Journal 25

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Animals and the law in Australia: a livestock industry perspective

* By Kathleen Plowman, Alan Pearson and John Topfer

As far as law and public policy are concerned, there are four key areas of law that affect all animal owners and industries in the livestock farming sector. Some of these areas also apply to companion and performance animals.

These four key areas are:

a) Animal welfare

b) Biosecurity

c) Food safety

d) Animals and the environment

This article focuses primarily on the interrelationship of animal welfare, food safety and the environment, aspects which are also covered in environmental protection legislation. Changes to farming practices and the regulations in one area cannot be viewed in isolation to these other aspects. To do so is a simplistic approach in what is a complex interrelationship between these key aspects and can put at risk public health, the environment and the very animals we are seeking to protect.

Legal status of animals

The legal status of animals has evolved in so-called ‘developed’ countries over the last 50 years. Changes in Europe particularly have been significant in this. Under the Treaty of Rome, the agreement that created the European Economic Community in 1957, animals were defined as ‘agricultural goods’ thereby creating a basis for European animal legislation to focus primarily on improving the quality of these agricultural goods. However, animal welfare groups have long been concerned about this definition.

The heads of all the Member States meet regularly at Intergovernmental Conferences (IGCs), where amongst other things, they can agree on amendments to the Treaty of Rome. In 1991, at the Maastricht IGC, the UK Government succeeded in getting a Declaration on the Protection of Animals added to the Maastricht Treaty. However, this declaration was not enforceable. Due to continuing pressure from animal welfare groups, however, a legally binding protocol was adopted in 1997 at the Amsterdam IGC. This protocol requires EU Member States to pay full regard to the welfare of animals as ‘sentient beings’ in their animal legislation.

By contrast, in the USA, animals are primarily regarded as ‘property’ rather than ‘sentient beings’.1 There is no formal animal protection legislation that covers farm animals at the federal level and in many states livestock are exempted from cruelty laws. Where such laws do exist, they are also often focused on the protection of the animal owner’s rights.

Focus of animal laws in Australia

In Australia, animal laws are more aligned to the European model, whereby animals are recognised as living beings that are capable of experiencing pain and distress. Under this definition, ‘humane treatment’ of animals is a key concept. However, both internationally and domestically, what constitutes ‘humane treatment’ is open to debate and interpretation. This concept is strongly governed by what society expects within any given jurisdiction and hence is strongly influenced by cultural considerations.

Animal laws also focus on the control of animals and their living environments in relation to both the ecological environment and their role in the human food chain. These aspects are covered in biosecurity, food safety and environmental protection legislation.

Biosecurity laws focus on both the protection of animals from diseases or pests that may affect them directly and also on the protection of other animal species from pests or diseases that they may harbour or carry.

Food safety laws on the other hand focus on the prevention of harmful effects on humans from animal products. The way in which such effects are managed starts through ensuring that animals raised for the production of such products are kept in conditions and managed in ways that reduce such risks from occurring. This is backed up by food hygiene requirements that apply to the handling of the animal products, including slaughter and post-slaughter processes.

Environmental aspects of animal laws focus on areas such as preventing animals from becoming unwanted pests and/or managing them in ways so that undesired consequences to the environment do not occur. Management of animal effluent is a key feature of environmental laws as it affects animals and animal industries. A novel feature that is now also emerging is consideration of carbon emissions released by animals into the atmosphere and their potential effect on climate change.

Both biosecurity and food safety legislation are in part governed by international treaties and conventions established under the auspices of the Organisation Internationale des Epizooites (OIE), otherwise known as the World Animal Health Organisation, and the Codex Alimentarius respectively. Australia is a signatory to these treaties and Australian legislation reflects the treaty provisions.

Typically animal laws focus accountability on owners or persons in charge of animals and, as a result, such persons have various ‘duties of care’ in relation to animals under their control. These ‘duties of care’ are further explained below in an Australian context.

Animal welfare legislation in Australia

Overall framework

Animal welfare legislation in Australia is enacted by the states. 2 Each state of Australia has animal protection legislation. The legislation generally is based on the concept of prevention of cruelty to animals by humans. These laws (Prevention of Cruelty to Animals legislation—'POCTA') are by no means uniform across Australia. Generally they make treatment of animals which might be considered as cruel or inflicting unnecessary pain or suffering an offence. The level of detail (and hence assistance to livestock industries) as to what particular conduct will be an offence varies from jurisdiction to jurisdiction.

In some circumstances it will be difficult for an individual to know whether particular conduct in relation to a particular animal amounts to an offence or not.

The POCTA legislation in each state is enforced by inspectors under the applicable POCTA Act. The Acts define who has inspectorial powers.

To assist in providing guidance for the livestock industries on what is appropriate treatment for animals and what is considered inappropriate or cruel, the Council of Australian Governments (COAG) has established Model Codes of Practice for the Welfare of Animals (MCOP). These MCOP are established under the auspices of the Primary Industries Ministerial Council (PIMC). There are specific MCOP for each species. For example, pig welfare in Australia is covered under the Model Code of Practice for the Welfare of Animals (Pigs) —Revised (2007). This document sets out standards, recommended practices and guidelines for pig owners and persons in charge of pigs under the three main husbandry systems used in the keeping of pigs: indoor, deep litter and outdoors.

In order for the requirements of an MCOP to be legally binding, they need to be adopted under state POCTA laws. States can modify the provisions of the MCOP to suit their particular local conditions if they so choose, however, the PIMC has made it clear that it does not expect this to be generally necessary. Recently revised MCOPs such as the pig Code have been specifically designed to promote national consistency.

As a consequence of the differences in the POCTA legislation between the states, failure to comply with mandatory provisions of an animal welfare Code will have different implications between the jurisdictions. In some jurisdictions failure to comply with the relevant Code is itself an offence. In others evidence of failure to comply with the Code will be prima facie evidence of the commission of an offence.

The uncertainty for livestock industries created by different approaches in the POCTA laws to application of the Codes is exacerbated by the fact that, in the past, Codes were generally not drafted with a high degree of technical and legal clarity. Instead they were written more in an advisory style.

The Australian pig industry has been a strong advocate and played a lead role to secure in the revised MCOP specific standards that must be met, separating these from the related advisory material. It is also intended that proof of compliance with a standard in the Code will be made a defence under state POCTA Acts.

Move from POCTA to standards-based legislation

The Australian Animal Welfare Strategy (AAWS), published by the Department of Agriculture, Fisheries and Forestry (DAFF) in 2004 under the auspices of COAG, sets out a framework for the future of animal welfare legislation in Australia. ³

The AAWS has a goal of promoting consistency in the legislation as well as a move to underpin such legislation with agreed standards for the way in which animals are to be managed.

The AAWS recognises that the importance of POCTA legislation for specific acts of cruelty will remain, however, POCTA legislation alone is essentially outdated in terms of modern farming practices, because it focuses mainly on the individual animal versus caring for the herd and does not provide for broader-based standards.

The revised MCOP for pig welfare has been designed to support this strategic direction by providing stronger and clearer direction for owners and people in charge of pigs regarding their everyday responsibilities in pig care. In other words it aims to support the development and maintenance of management systems to prevent undesirable animal welfare outcomes occurring, rather than simply intervening in cases of cruelty and punishing the culprits.

The Pig Code process and industry response

Development of the revised MCOP for the welfare of pigs has been a four-year process of policy analysis and consultation led by Australian Government officials, with extensive involvement of both industry and animal welfare groups in the process.

The outcome is a document that is essentially a ‘stepping stone’ to a full standards-based regulatory approach. The industry now has the challenge of implementing the requirements.

One of the main issues resolved by the MCOP is the appropriate standard for the housing of pregnant sows.

Key aspects of the revised Code are:

• a reduction of the use of individual stalls to house sows from up to their full 16 weeks of pregnancy down to a maximum of 6 weeks within 10 years;

• requirements for some other changes to housing space allowances to be introduced within 5 years; and

• staff training requirements to be introduced within 3 years.

The industry is fully supportive of these provisions, along with other changes required under the Code, however will need to undertake a significant program of work over the coming years to ensure that they are adopted.

A key aspect of the industry response is to ensure that all the requirements of the MCOP are incorporated within its existing Quality Assurance program, an independently audited program which addresses animal welfare, food safety and biosecurity. This focuses accountability for standards of animal care clearly with those responsible and provides a framework for auditing to ensure those standards are met. It also provides a vehicle for compliance and verification reports to regulators, the consumer and the larger community.

Food safety legislation

Overall framework

The food regulatory system is complex with a range of national, state and local agencies involved. Australian governments are committed to a consistent national framework for food safety policy and standards setting under the auspices of the Australian Quarantine Inspector Service for exports and Food Standards Australia New Zealand and the state regulatory authorities for the domestic food industry. The important legislation governing food safety are the state Food Acts.

Impact on animal owners in relation to management practices and duties of care

For livestock owners, the impact of food safety legislation is to require them to put in place management practices that ensure identified food safety risks are managed. This means keeping the animals free of diseases that may be a human health hazard and ensuring that any animal remedies or pesticides used are licensed for the purpose as well as used within the terms of that licence.

Another key aspect that is moving into the food safety regulatory environment increasingly is that of traceability of products from the farm of origin through to the retail point of sale. This provides for clearer accountabilities to be established in the event of a food safety problem as well as facilitating risk mitigation in such an event.

Livestock industries are currently responding to these requirements by integrating traceability into industry and enterprise level quality assurance systems. The Australian pork industry’s Pig Pass system is an example of this. Such systems, whilst often primarily driven by food safety concerns, have potentially much wider value in providing broader supply chain and consumer assurances about product integrity and the integrity of the production system.

Environmental legislation affecting animals and animal industries

Overall framework

Environmental legislation in relation to animals exists at two levels in Australia. The Environment Protection and Biodiversity Act 1999 (Cth) provides an overall framework that regulates environmental impacts.

Then, at local/ state government level, the various jurisdictions have resource management legislation and policies that specifically define what a livestock owner must do in relation to managing effects of their animals on the environment.

Impact on producers

The major impacts of environmental law on livestock producers relate to managing effluent as well as ensuring that domestic animals are properly contained on the farm and that they are not allowed to destroy important natural resources such as fragile soil structures.

Where farms are located in areas close to cities or townships, additional environmental impacts also often need to be considered such as odours, noise and visual impacts. It has been the experience of Australian pork producers that local government planning requirements are making it increasingly difficult to farm in areas that are becoming more urbanised.

This factor, coupled with the fact that there is no requirement for consistency of application of environmental planning rules between territorial local authorities, has emerged as a major concern for pork producers faced with the challenges of implementing the revised MCOP for pig welfare.

Many of the requirements of the Code translate into a need to provide more housing space for pigs and may also result in changes to the effluent system. For example the move by the industry to group housing arrangements sees a greater demand for bedding such as straw. Not only can this impact on the effluent system which will need to be redesigned but during a drought straw is often in short supply and a significant cost. Whilst the Code aims to set nationally consistent standards, producers’ ability to comply with them is constrained in many cases by local government planning requirements that will not allow them to obtain the necessary building or effluent discharge permits. This is an issue that has been raised by Australian Pork Limited with the Government’s Code Implementation Working Group, established under the auspices of the PIMC, and will hopefully be resolved through that process. However, it provides a good example of the complexities and conflicts often faced by livestock industries in trying to operate to national standards across a range of jurisdictional environments.

Summary and conclusions

In summary, animal law in Australia is a complex and multi-faceted area. This is compounded by continuing evolution in the attitudes of societies towards the appropriate status for animals and therefore how they should be treated in the law. Even within Australia there is a broad spectrum of opinion regarding this matter. This was exemplified in the pig welfare Code revision process, where submissions made on the draft Code expressed a wide range of views about the acceptability or otherwise of proposed standards.

A further confounding factor is the apparent dichotomy that occurs between citizens’ general attitudes to animals as expressed verbally or politically and their behaviour as consumers. It has been shown through social and consumer research that consumers often buy products at point of purchase that are not consistent with their expressed ethical values or attitudes. ⁴

Australian markets are increasingly opening to wider competition from imports through the World Trade Organization process. In the absence of any related international treaties on standards for animal welfare or the environment, it poses a particular challenge to regulators and industries alike when contemplating making changes that may be ethically or values-based, and will confer a higher cost structure into the supply chain.

Such factors as price, brand familiarity and visual appearance are often more important in point of purchase decision making than broader values based criteria.⁵ This can lead to ‘market failures’ in such areas and provide a strong case for legislative intervention. However, the challenge for legislators in contemplating such interventions is finding a way to balance up the requirements of the various stakeholders, within the constraints of the wider social and economic environment.

The everyday challenge for livestock industry operators on the other hand is integrating all the various legal and business requirements into a cohesive and balanced overall set of operating policies and procedures.

This has resulted in the Australian pork industry being pro-active in developing an integrated industry Quality Assurance scheme that will assist pork producers to comply with all the requirements and provide an audit trail to confirm compliance.

From the industry’s perspective, development of a related legal framework for the production animal industries would be an ideal solution to resolve the current gaps and conflicts within existing legislation. Such a legal framework would prescribe all the duties and responsibilities of production animal owners in relation to their animals and allow for recognised quality systems to be legally sanctioned as a mechanism for compliance.

Endnotes

1. .Tomaselli, P. M. (2003); International Comparative Animal Cruelty Laws, Animal Legal and Historical Center, Michigan State University – Detroit College of Law.

2. .In this paper unless otherwise noted, a reference to states includes the ACT and the NT.

3. . Department of Agriculture, Fisheries and Forestry; (2004) Australian Animal Welfare Strategy

4. . Coleman, G.J., Hay, M., and Toukhstai, S.R.(2003) Effects of Consumer Attitudes and Behaviour on The Egg And Pork Industry; Monash University

5. . Pearson, A. B. (2003); Summary of Consumer Research on Animal Welfare - an APL commissioned report; Prime Consulting International Limited