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Senate Inquiry examines Animal Protection Bill

James Nason, 19/05/2015

Animal protection groups have told a Senate Inquiry they do not condone illegal activities, but say shortfalls in current regulatory frameworks mean that evidence of animal cruelty would not be exposed without illegally obtained footage.

Representatives of the RSPCA, Voiceless and Sentient each told a Senate Inquiry into Senator Chris Back’s proposed Animal Protection Bill last Friday that they believe evidence of animal cruelty should be gained legally.

In their various sessions before the Senate Committee the groups expressed a common view that existing animal welfare protection regulations were inadequate, and the RSPCA should be given legal powers to conduct covert surveillance activities.

However, in the absence of those powers, and a perceived lack of action from existing authorities in State agriculture departments, activists were taking the law into their own hands, the inquiry heard.

Barrister Graeme McEwen, representing the Barristers Animal Welfare Panel, said State Government based animal welfare authorities such as the Departments of Agricuture were playing “virtually no role in law enforcement of animal cruelty”.

“And that is why, out of frustration, some animal activists…expose this by covert surveillance, and it is because departments of agriculture are not doing their job.”

Dr Rosemary Elliott from the Sentient group said evidence obtained by undercover surveillance was “the most powerful” in exposing systemic cruelty.

Dr Elliott said that under current regulatory frameworks, she could not see how cruelty such as that documented in the greyhound live baiting issue would have been exposed other than through illegally obtained footage.

“I am saying that as someone who is against people breaking into properties and doing things illegally, because I think that can have its own animal welfare impact as well,” she said.

“But the bigger picture is: how would we have known if there have been state based inquiries into this sport? It is completely self regulated; one of the things we are up against with animal welfare is industry self-regulation.

“I am also concerned that the Department of Primary Industries has a conflict of interest in regulating animal welfare, but at the same time being there, having the brief that they need to help industry expansion and profit.”

Does the RSPCA ask illegal investigations to stop?

Given the RSPCA’s stance against illegal activity, did the organisation ask those involved in illegal investigations to stop when it became aware of their investigations, WA Labor Senator Joe Bullock asked?

RSPCA policy officer Jed Goodfellow said that usually by the time the RSPCA received the evidence, the investigation had already finished.

The RSPCA was also questioned about a $10,000 bounty it recently offered in Western Australia as a reward for people who could provide evidence of cruelty in the State’s greyhound industry.

By offering that prize, wasn’t the RSPCA in fact encouraging and rewarding illegal activity, Queensland Nationals Senator Matt Canavan asked?

The RSPCA representatives chose to take the question on notice, stating that they would reply to the Senator with more information about the boundaries of the $10,000 offer after the hearing.

Committee chair and NSW farmer Senator Bill Heffernan suggested that despite publicly stating that it did not condone illegal activities, the RSPCA was “turning a blind eye” to illegal activities involved in obtaining evidence of cruelty.

Immediate reporting versus evidence collection over time

A central point of debate surrounded the question of whether evidence of animal cruelty should be reported immediately to prevent cruel practices from continuing, or whether those in possession of evidence should be given time to collect more evidence and to build a bigger and stronger case.

Emmanuel Giuffre, legal counsel for Voiceless, said he did not think that any of the animal interest groups at the hearing believed that animal cruelty should not be reported to the relevant authorities “as soon as is reasonably practicable”.

“It certainly should not be held on purely for campaign purposes or, as the assertion is being made, for donation purposes. We are not suggesting that.

“What I am saying, however, and what has also been said here, is that there is clearly an enforcement deficiency where it is impossible to conduct covert surveillance in these sorts of facilities.

“If the RSPCA does not have the power, then no other authority is really going to step in and conduct that kind of surveillance.

“And it means that routine and systemic animal cruelty will continue to go undetected and unabated.”

The RSPCA’s preferred solution, chief executive officer Heather Neill said, was for the introduction of State-based legislation requiring mandatory reporting of cruelty by anyone who witnesses it, not just with a camera but with their own eyes, and the reporting of that cruelty “as soon as practicable”.

“That would go a long way to help us investigate animal cruelty. But hand in hand with that there need to be resources to investigate cruelty and powers for the RSPCA to enter properties under a broader range of arrangements than we have currently. So it is not about trying to get people who take a photo. If as a society we want to crack down on animal cruelty, it needs anybody who sees animal cruelty to have a moral and legal responsibility to report it.”

Bill would have accelerated greyhound response: Back

Senator Chris Back told the hearing that if his bill had been enacted by the time of the greyhound live baiting expose, the RSPCA would have been able to act on the footage and stop the cruelty in November last year, not three months later when the groups with the footage were ready to release via an ABC Four Corners program.

Barrister Graeme McEwen representing the Barristers Animal Welfare Panel rejected the Senator’s position as “nonsense”, stating that if those in possession of evidence were required to report that evidence immediately, it would “shut down the entire investigation”.

“The cover will be blown, and therefore exposure of systemic or widespread cruelty of the kind that took place in the greyhound industry will not be prosecuted,” he said.

Can activists take law into their own hands?

Earlier Senator Back asked Brisbane-based agribusiness lawyer Trent Thorne if any legal circumstance existed where animal activists or journalists could take the law into their own hands and engage in illegal activities to gain evidence.

Mr Thorne said he did not believe there was, with this possible exception: under the Commonwealth Evidence Act, once evidence is put forward, he said, a judge has an ability to decide whether a public need exists for that illegal evidence to become legal.

This was demonstrated in a case involving Lenah Game Meats where the High Court acknowledged that covert footage had been obtained illegally. However, because animal cruelty was involved, the court ruled that there was a public interest in showing the evidence, so it “became legal in that sense”.

‘Turf war’ for donations

Later in his evidence Mr Thorne said groups such as the RSPCA now appeared to be involved in a “turf war” with other animal interest groups for a share of the donations pie.

“I think the RSPCA do phenomenal work in this area, and I agree with Senator Sterle that they require more funding….” Mr Thorne said.

“But also in certain respects the RSPCA has started to move towards that extreme end of the spectrum because they have to compete with these other groups that seem to be cutting into their territory. They made comments about banning sale yards and the live export industry.”

Referring to the events that led to the June 2011 live export ban, Mr Thorne said he had it on good authority that Animals Australia had shopped footage around different networks for almost three months before ending up with ABC Four Corners.

In that three month period he estimated that more than 100,000 cattle went to a market where Animals Australia had evidence that mistreatment was occurring.

While the evidence shown in the footage “needed to be uncovered”, Mr Thorne said it was not appropriate for Animals Australia to have sat on the footage for three months.

Can farmers make “citizen’s arrests”?

Debate also surrounded the question of whether a landholder has the power to make a citizen’s arrest in the event of finding an activist trespassing on their property.

Pig industry veterinarian Dr Barry Lloyd said his understanding was that a farmer had to ask an intruder to leave before they could be considered guilty of trespass.

Senator Bill Heffernan asked the RSPCA if a farmer was entitled to pull out a licensed shotgun in such an event. RSPCA policy officer Jed Goodfellow said the Senator would have to take the question up with a criminal lawyer. A landholder could take reasonable action, he said, but the RSPCA was unable to provide legal advice on the rights of a person being invaded to make a citizen’s arrest.

Later in the proceedings, agribusiness lawyer Trent Thorne advised landholders to exercise caution before physically detaining a trespasser.

“There will be concerns about that because you could potentially be up for common assault.

“As soon as you touch someone, you are going to have them say, ‘You’ve assaulted me.’

“If a client said to me, ‘Should I try to detain someone?’ my response would be, ‘Only if you don’t touch them’—I do not know where that takes you.”

Debate over 24-hour reporting requirement

The RSPCA said it could not support Senator Back’s legislation because of the “arbitrary” nature of the requirement to report evidence within 24 hours.

“You simply cannot impose a defined period of time that is completely onerous and does not allow for that flexibility in different circumstances,” RSPCA policy officer Jef Goodfellow said.

“No other law in Australia has such a definitive time frame on mandatory reporting. Even the child abuse mandatory reporting requirements use the phrase ‘as soon as reasonably practicable’, and that is what the RSPCA has modelled its mandatory reporting proposal on.”

Livestock industry veterinarian Dr George Smyth said notification period for reporting malicious “cannot be soon enough”.

“You need to know straight away. The sooner you can have access to an animal that has been injured or whose welfare in any other way has been compromised, the sooner you can institute treatment and the

better off the animal will be and the more likelihood there is of a successful outcome to your treatment.

“The longer the delay between reporting and you, as a veterinarian, being able to access the animal and being able to institute treatment, the less likely you are to have a good outcome. So I do not see a problem with 24-hour reporting.

We know these days that pretty much everybody has a digital device; we have internet access. It is very common in society for people to put information, including images, on a mobile device, push a button and, within 10 minutes, it is global—everybody knows about it.”

Senator Back, the architect of the Bill being examined, said that as a veterinarian with 44 years experience, his contention was that the shortest possible reporting time from the moment evidence of cruelty is detected would surely be in the best interests of the animal.

“If cruelty is happening, it can be stopped, and, if others are exposed to the possibility of it, they can be prevented from that cruelty. That is the motivation.”

Bill ‘gags’ no one: Back

He also challenge the RSPCA’s use of the term “gag” to describe his bill.

“I am at a loss to understand how requiring somebody to report cruelty to somebody such as the RSPCA is gagging, particularly when a circumstance can occur in which the RSPCA may well say to that person: ‘Yes, we have actually heard some suspicions. Can we work with you and can we continue to gather information?’ There is nothing in this bill that prevents that from happening.”

RSPCA policy officer Jeff Goodfellow’s response: “That would not occur because a responsible prosecuting authority, a responsible investigative agency, is going to be under a duty to direct that person not to continue their private investigation. They are going to want to take the evidence themselves and run with that investigation.”

‘Build trust through transparency’

A common theme of comments from animal group representatives was that livestock producers should focus on being open and transparent about their operating environments in order to build trust.

Barrister Graeme McEwen said the way forward for rural industry and their representatives was to to build transparency so that there is consumer confidence in the industry.

“Once you try to shut down a message rather than engage with it, you only invite suspicion and it undermines confidence. I do not think this is the way home. This is sort of like King Canute, and it is not effective. If you want to build confidence, you have to be transparent.”

Is RSPCA open and transparent?

The RSPCA’s Bidda Jones said some farms and many abattoirs were now using CCTV cameras to improve animal welfare standards, and noted that it had been an extremely effective management tool.

“It is also a very good way of clarifying with the Australian public that what goes on in those facilities is acceptable, is meeting standards,” she said.

Senator David Leyonhjelm asked the RSPCA representatives if they believed the RSPCA itself was open and transparent.

“Do you have CCTV in all your pounds, your animal shelters?,” he asked.

“We do not,” RSPCA policy officer Jed Goodfellow responded. “But our pounds and animal shelters are open to the public.

“So in your pounds, your animal shelters, the places where you are obliged to euthanase unwanted dogs and cats, there is no CCTV?” Senator Leyonhjelm continued.

Jed Goodfellow: “Not that I am aware of, no.

Senator Leyonhjelm: “No. So you are not open and transparent, but you want the farms to be open and transparent.”

Jed Goodfellow: “People are not consuming dead dogs and cats. There is a consumer issue here, and that is at the heart—

Senator Leyonhjelm: “You are an animal welfare organisation, Mr Goodfellow.”

Why did RSPCA not act on Mataranka?

Senator Heffernan asked the RSPCA representatives why the organisation had taken no action after hundreds of cattle starved to death on the-then Charles Darwin University owned Mataranka Station in 2009 and 2010.

RSPCA CEO Heather Neill said the RSPCA had been unable to act because it had no jurisdiction to enforce animal welfare laws in the Northern Territory. “That is at the discretion of the Territory government.”

Senator Heffernan: “There were hundreds of cattle dying of starvation and thirst that you knew about and you said it was outside your jurisdiction. I will not tell you what the university boss told me, because I do not want to enflame this inquiry, but this is a very biased view.”

Jed Goodfellow: “We do not have inspectors appointed under the Animal Welfare Act in the Northern Territory—

Senator Heffernan: “So why isn’t the Northern Territory under your jurisdiction?

Heather Neil: “The Northern Territory government has not come to that arrangement with the RSPCA in the Northern Territory—because it is state based legislation.”

 

  • To read the full hansard transcript from last Friday’s hearing click here

 

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