Lawyer steps up calls for livex ban

Beef Central, 07/02/2013

An animal welfare lawyer is stepping up calls for the live export trade to be banned, maintaining that mortality rates on live export voyages would be unacceptable if judged under domestic animal welfare laws.

Dr Malcolm Caulfield told a University of Tasmania forum in Hobart last month that Australia’s domestic animal cruelty and welfare laws make it an offence for people to fail to care for, or be cruel to, a single animal.

However, Australian live export laws, principally the Export Control (Animals) Order, allowed animals to be assessed for fitness to transport on a "herd" basis, rather than on an individual animal basis, he said.

His claims have been branded by live export leaders as a mischievous attempt to denigrate the industry, and reflecting a lack of understanding of the laws governing the trade both domestically and abroad (more on the industry response below).

Dr Caulfield is the principal lawyer for the Animal Welfare Community Legal Centre and a former Legal Counsel for Animals Australia.

He told the recent forum that there were several ways that protections for animals differed between domestic and export laws, which he said included:

  • The Australian Standards for the Export of Livestock, with which exporters must comply as a condition of their license, emphasised ‘mortality’ rates, rather than other measures of welfare, which conflict with domestic animal welfare laws;
  • Live export regulations deemed a ‘reportable incident’ to have occurred when mortality rates exceeded 2pc for sheep and between 0.5-1pc for cattle, depending on voyage duration. On an annualised basis, the same mortality rates would equate to around 30pc per annum, Dr Caulfield said, which would not be acceptable under domestic laws;
  • Live export journeys frequently involved other problems that led to poor welfare outcomes, he said, including heat stress, trauma, salmonellosis, inanition/salmonella complex, especially in sheep, and respiratory disease in cattle, which would raise concerns under domestic welfare law. “The heat stress which can be shown to occur regularly on live export voyages, particularly to the Middle East and beyond, which results in a complete inability of the animals to thermoregulate, would be utterly unacceptable, for example in a domestic feed lot,” Dr Caulfield said;
  • Live export law required regular inspection of animals on board vessels, but laws which regulate the minimum height of sheep pens, governed by the Navigation Act, made it “impossible to inspect animals as required”, he told the forum. “The sheer numbers involved also make proper inspection impossible.”
  • Domestic law imposed a duty of care on owners and those responsible for looking after the animals, which in turn underpinned the need for regular and frequent inspections. This had been codified through the adoption of animal welfare codes in some jurisdictions;
  • Live export voyages allowed greater stocking densities per square metre than that mandated under relevant codes governing close confinement situations on land in Australia, such as in stockyards, feedlots and sheep in close confinement.

Dr Caulfield said the same strict interpretation of domestic cruelty laws would not mean that a livestock producer would be liable when a single animal died in their care, such as through illness, attack by a predator or misadventure.

This was because the domestic laws had an overlying consideration of what is "unnecessary" in terms of defining cruelty.

A farmer charged with cruelty for allowing a single animal to die would only be guilty if he or she was doing an act, or failing to do something, and the act or failure to act was “unnecessary, unreasonable or unjustifiable”. 

“Clearly, a farmer who has an animal die on them despite all reasonable efforts would not then be guilty of an offence – and that is the normal state of things,” Dr Caulfield said.

“My argument, put simply, is that the cruelty which is permitted, in effect, under live export law, is unreasonable, unjustifiable and unnecessary and so would breach domestic animal cruelty law.”

Dr Caulfield said this was illustrated by the Al Kuwait case, heard in 2007, in which a live exporter was prosecuted under Western Australian law for, amongst other things, "transporting an animal in a way likely to cause it unnecessary harm". 

This case was brought by the responsible department after Dr Caulfield, on behalf of Animals Australia, lodged a "writ of mandamus" with the Supreme Court – a court proceeding which sought to order the responsible body to carry out its duty in investigating whether a breach of the law had occurred.

“The gist of the case was that fat wethers, which had a known considerably higher likelihood of death, were transported on the voyage that was the subject of the charges. 

“The court found that the relevant elements of the domestic law offence were proven, ie the offence of cruelty, but as the Commonwealth law ‘overrode’ the domestic law, because of what is said in section 109 of the Constitution, the defendants were not guilty.

“So the conclusion is that the exporters in the case were found to have acted in a way which caused unnecessary harm, which in other words was not justifiable or reasonable.”

Push for live export regulator

In the absence of a ban on live exports Dr Caufield is advocating for the establishment of an independent regulator for livestock export, which he would like to see established by statute, in the same vein as the Australian Securities Investment Commission or Australian Competition Consumer Commission, and to have the same investigative powers as those currently granted to the Department of Agriculture, Fisheries and Forestry under the Export Control Act and other law. 

“Because it would be set up by statute, such a regulator would be completely independent of industry interests – which is of course where the conflict arises for the Department, which has as its main task the promotion of live export.

“It would carry out all the regulatory functions currently in the hands of the Department.  Funding would be an issue, although this could be partly on the basis of redirecting some of the current levy away from LiveCorp, but should also include direct government grant of funds. 

“In my view this would be money well spent, as I submit that proper regulation would have avoided the expensive debacles of recent years.”

The concept of an independent regulator has already been adopted by the federal Labor Party parliamentary caucus. 

A formal proposal as to how it is likely to work is expected in February.

Dr Caulfield is also currently running a Federal Court case in Sydney challenging what he believes has been the Department of Agriculture’s ongoing failure to properly regulate the trade.

'Mischievous attempt to denigrate trade'

In response to Dr Caulfield’s statements, Australian Livestock Export Council chief executive Alison Penfold said his position reflected a lack of understanding about laws governing the trade.

“This is a mischievous attempt to denigrate the livestock export industry by someone clearly philosophically opposed to the trade and his arguments are based on a severe lack of understanding of the suite of laws and regulations governing the livestock export industry domestically and abroad,” Ms Penfold said.

“His broad thesis is that the trade is inherently cruel – this supposition is not backed up by the extensive technical and scientific work undertaken over many years and which many of the regulations governing the trade are based on. 

“It also ignores the principle fact that anyone involved with the day to day management of livestock care for the animals.”

Ms Penfold said livestock exports were governed by State and federal legislation and regulations from the paddock to the point of processing, including the Australian Standards for the Livestock of Exports which sets out the standards for the export of livestock from sourcing to onboard management and the Orders governing the export activities in overseas markets. 

“This is the most comprehensive and rigorous legal framework of its type for livestock anywhere in the world. 

“Indeed, of the over 100 countries around the world that export livestock, no other country has a regulatory system that mandates international animal welfare standards into law along each aspect of the supply chain.

“Where issues arrive in the supply chain – exporters are held to account under the rules governing the trade.  We have seen this on a number of occasions, particularly since the introduction of the Exporter Supply Chain Assurance system.”

Ms Penfold said calls for a further layer of regulatory bureaucracy would not improve animal welfare. 

“What is improving animal welfare is industry’s ongoing investment in R&D and the training and skills development of personnel involved in the supply chain both here and abroad.”



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