Zaman, Rebecca; Kucharova, Ella --- "2009 Kirby Cup: Animal welfare legislation in Austraila: the federal regulatory framework" [2009] ALRCRefJl 45; (2009) 94 Australian Law Reform Commission Reform Journal 59

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Reform Issue 94 Summer 2009

This article appears on pages 59–62 of the original journal.

2009 Kirby Cup

Congratulations to Rebecca Zaman and Ella Kucharova from the University of New South Wales, winners of the 2009 Kirby Cup.

The Kirby Cup Law Reform Competition is a unique opportunity for Australian law students to gain recognition for their vision for law reform. The Kirby Cup is organised and sponsored by the Australian Law Reform Commission (ALRC), in collaboration with the Australian Law Students Association (ALSA).

To enter, teams of two students must provide a written submission on a topic of law reform set by the ALRC. Based on written entries, up to three teams are invited to participate in an oral advocacy round.

The topic the 2009 entrants were asked to consider drew on the theme presented in Reform 91 ‘Animals’:

What are the key issues that arise from the present federal regulatory framework for animal welfare? In considering appropriate law reform recommendations, assess whether Codes of Practice for animal welfare provide a reliable & satisfactory mechanism for regulating animal welfare; or whether a national Animal Welfare Act or harmonisation of state/territory legislation would be more appropriate.

This year’s final oral advocacy round was held in conjunction with the 30th annual ALSA conference, co-hosted by Griffith University and the Queensland University of Technology, in Brisbane in July. Three teams presented their proposal to an expert judging panel consisting of Justice Berna Collier (Federal Court and part-time ALRC Commissioner), Professor Rosalind Croucher (ALRC Commissioner and Professor, Macquarie University), Mr Steven White (Griffith University) and Mr Jonathan Dobinson (ALRC Research Manager). Ms Zaman and Ms Kucharova were declared the winners, based on a combination of their written submissions and the oral advocacy round.

Thank you to all entrants for participating in the competition, and special congratulations to finalists:

• James Dawson and Michael Jones (Australian National University); and

• Fiona Graney and Laura Costello (University of Sydney).

The following article is an edited extract of the written submission entered by Ms Zaman and Ms Kucharova.[1]

Animal welfare legislation in Australia

The federal regulatory framework

By Rebecca Zaman and Ella Kucharova

Animal welfare has become a concern that cuts across all social sectors of the Australian community. The issue is also receiving increasing international recognition, with 27 European Union states having voted in favour of the provisional draft Universal Declaration on Animal Welfare 2007 (UDAW). The draft UDAW calls on signatories to

‘[recognise] that animals are living, sentient beings and therefore deserve due consideration and respect’.^[2]

However, although the importance of animal welfare is socially recognised, and Australians generally treat companion animals very well, there exists a significant discrepancy between Australian attitudes towards animal welfare and the way the vast majority of animals are actually being treated in Australia.^[3]

The existing law

There is no accepted head of power under which the Commonwealth may legislate with respect to animal welfare. Thus, the states and territories each have their own laws on this subject.^[4] The typical model of animal welfare law enforcement imposes a negative duty on owners to refrain from inflicting cruelty on animals (we note, however, that some recent laws, such as s 17 of the Animal Care and Protection Act 2001 (Qld), impose a positive duty on a person to require them to take reasonable steps to meet an animal’s needs).^[5] Although as a criminal offence these laws can be enforced by police, the burden of enforcing the law in relation to companion animals falls largely to the RSPCA.^[6]

But these laws do not protect farm animals at all. The treatment of farm animals is ‘exempted from the overarching cruelty and duty of care standards included in animal welfare legislation’.^[7] Instead, farm animals are supposed to be treated in compliance with Codes of Practice, which vary between states and territories but are based broadly on the Commonwealth Scientific and Industrial Research Organisation (CSIRO)’s Model Codes of Practice for the Welfare of Animals (Model Codes).^[8]

The Codes are detailed and wide-ranging, and they are ‘revised on a regular basis’ to take account of changing standards.^[9] However, some of them ‘would not meet a general cruelty standard’.^[10] For example, the intensive farming of pigs has led to an industrial standard of confining pregnant sows in cramped stalls, which inflicts physical and psychological stress on the animal.^[11] Yet under the state and territory legislation, it is a defence to charges of animal cruelty or breach of duty to show that the treatment was in compliance with a Model Code.^[12] Clearly, the issue of how the Code is determined and whether the development process adequately considers the impact on animals is a pressing one.

Proposed reform

We consider the status quo to be an inadequate means of protecting animal welfare. We dismiss as unrealistic any suggestion of an Animal Bill of Rights. We also dismiss suggestions that animals can be adequately protected through common law remedies.

We propose a reform that recognises the importance of protecting animal welfare and considers how best to balance human and economic interests with animal welfare, that furthermore considers how to develop institutions that can achieve that balance, and finally that incorporates an appropriate means of enforcement. For the purpose of this section, we assume the validity of a national Animal Welfare Act under the external affairs or state referral power. However, if the constitutionality of a federal Act were in doubt, a similar scheme could be implemented using uniform legislation and state institutions.

Licensing

The cornerstone of our reforms is the implementation of a mandatory regulatory scheme for animal welfare that links adequate protection to agricultural licensing. A principal Animal Welfare Act would provide that any person, natural or body corporate, using animals for commercial purposes must hold a licence. It will also state that, under the Act, regulations may be made setting out Codes of Conduct and providing for breaches of the Code. Pursuant to the Act, to obtain a licence, a person must comply with the regulations and Codes of Conduct. The Codes of Conduct for various animals would appear as schedules to the Act. A person suspected of failing to comply with the Codes may be issued with a ‘notice to show cause’ why their licence should not be revoked. Decision makers would also have the authority to cancel, suspend, vary or impose conditions on licences. As an administrative decision, this would be reviewable by a relevant body such as the Administrative Appeals Tribunal under a federal Act, or Administrative Decisions Tribunals under a state or territory Act.

Greater procedural fairness in development of proportionate Model Codes

Our proposal recognises that the content of the Model Codes and their ability to reconcile animal welfare with the interests of the broader community is critical. The composition and conduct of the body creating these Codes is thus extremely significant.

One approach is to urge government to establish a department, distinct from agriculture and fisheries, with a special minister for animals.^[13] This is viable given the significant and overlapping role of animals in issues of bio-security, quarantine, food safety and environmental protection. Such a department would provide a unified and streamlined approach to issues involving animals. It would be politically accountable and, of necessity, attuned to the interests of its portfolio. A Committee within this department would be obliged to seek and hear submissions from all relevant stakeholders and create a proportionate animal welfare policy. An alternative approach would be to create an independent statutory authority—an Australian Commission for Animals—that was tasked with these same duties and enforcement of the licensing scheme.

A third approach, and that taken in the United Kingdom, is to establish an independent advisory council to investigate, advocate and report on behalf of animals.^[14] This approach is weaker, as there is no enforcement mechanism involved, but it does emphasise the importance of having an independent body reviewing animal welfare. Therefore, at minimum, an independent animal welfare body should be established in Australia, with the power to investigate, report and educate the community about animal welfare.

Better enforcement

By making compliance with Codes of Conduct a necessary requirement for using animals for commercial purposes, these regulatory norms would be better enforced as compliance would become a precondition for doing business.

Additionally, our proposed licensing scheme would exist harmoniously alongside the criminal offence of cruelty to animals. As it stands, the provisions in all Australian jurisdictions provide that it is an exemption to cruelty to animal charges to be acting in accordance with industry Codes. This would remain under our system.

Our proposed Animal Welfare Act would also impose a disclosure regime on corporations who use animals for commercial purposes. As a ‘soft’ reform, the threat of negative publicity and the benefits of being seen to engage in corporate social responsibility may encourage profit-cutting in favour of better treatment of animals.

Requiring disclosure would also aid in other methods of ‘soft’ reform such as education and ‘trustmarks’. These approaches attempt to influence consumer behaviour and provide economic incentives for companies to act in a particular manner. Trustmarks, such as the ‘certified organic’ logo, allow consumers to choose to support companies that produce organic products. A similar logo marking high ethical conduct could be created for companies that treat their animals humanely.

Conclusion

The regulation of animal welfare in Australia requires the intricate balancing of interests. As living, sentient beings, animals have a legitimate interest in avoiding pain and suffering. On the other hand, the Australian economy, farmers and consumers require industry practices that allow for the production of efficient and competitive animal products. In a system that unjustifiably prefers human interests over animal welfare, reform is needed. Our proposed licensing system would reform the way in which the substance of the Codes of Conduct is developed, and would also provide an appropriate, consistent and effective means of enforcement.

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[1] See <www.alrc.gov.au/kirbycup> for an unabridged version of the winning submission.

[2] World Society for the Protection of Animals, Universal Declaration on Animal Welfare (2005) <www.udaw.org/gov/> at 16 September 2009.

[3] S White, ‘Regulation of Animal Welfare in Australia and the Emergent Commonwealth: Entrenching the Traditional Approach of the States and Territories or Laying the Ground for Reform?’ (2008) 35 Federal Law Review 347, 351–357.

[4] See Animal Welfare Act 2002 (WA); Animal Care and Protection Act 2001 (Qld); Animal Welfare Act 1993 (Tas); Prevention of Cruelty to Animals Act 1985 (SA); Animal Welfare Act (NT); Prevention of Cruelty to Animals Act 1979 (NSW).

[5] S White, ‘Regulation of Animal Welfare in Australia and the Emergent Commonwealth: Entrenching the Traditional Approach of the States and Territories or Laying the Ground for Reform?’ (2008) 35 Federal Law Review 347, 351.

[6] Ibid, 352.

[7] Ibid, 354.

[8] Ibid.

[9] See, eg, NSW Department of Primary Industry, National Model Codes of Practice for Animal Welfare, <www.dpi.nsw.gov.au/agriculture/livestock/animal-welfare/codes> on 16 September 2009.

[10] S White, ‘Regulation of Animal Welfare in Australia and the Emergent Commonwealth: Entrenching the Traditional Approach of the States and Territories or Laying the Ground for Reform?’ (2008) 35 Federal Law Review 347, 356.

[11] Voiceless, From Paddocks to Prisons—Pigs in New South Wales, Australia: Current Practices, Future Directions (2005), 14-19.

[12] S White, ‘Regulation of Animal Welfare in Australia and the Emergent Commonwealth: Entrenching the Traditional Approach of the States and Territories or Laying the Ground for Reform?’ (2008) 35 Federal Law Review 347, 359.

[13] R Pollard, ‘Animals, Guardianship and the Local Courts: Towards a Practical Model for Advocacy’ (2007/2008) 91 Reform 48, 49.

[14] See the Farm Animal Welfare Council, <www.fawc.org.uk> at 16 September 2009.