The Veterinary Institute for Animal Ethics

Submission from Sentient, The Veterinary Institute for Animal Ethics: Criminal Code Amendment (Animal Protection) Bill 2015

To the Committee Secretary, Senate Standing Committees on Rural and Regional Affairs and Transport

As an independent association of veterinarians and associates solely dedicated to and ethics, we have serious concerns about the proposed federal Criminal Code Amendment (Animal Protection) Bill 2015. Thank you for the opportunity to submit these concerns. They form the basis of our complete rejection of this Bill, which we regard as regressive, misleading, and detrimental to the public interest and animal welfare.

1. The Bill will hinder the detection and prosecution of malicious perpetrated within animal enterprises: This Bill will result in the prosecution of individuals or organisations who, in the public interest, obtain undercover footage of malicious cruelty to animals that would otherwise never be exposed. The Bill will not lead to greater efficiency in prosecuting the perpetrators of such cruelty, and is likely to hinder prosecutions by placing unrealistically short time frames on the mandatory submission of evidence. In effect, the prosecution of ‘whistleblowers’ themselves will deter the collection of further evidence, deflecting attention away from the more pertinent issue: animal cruelty complaints. Consider the recent response by State and Territory Governments to the exposure by ABC’s Four Corners and animal activists of live baiting in the greyhound racing industry1 - this response has included (at the time of writing) investigations and likely prosecutions, stronger penalties for live baiting, lifelong bans on individuals, and the establishment of independent regulatory reviews, including a review by the Chief Veterinarian of . All this would have been thwarted had the Bill already been introduced, because to avoid penalty, investigators from Animal Liberation Queensland and Animals would have been required to submit their initial footage to the relevant authorities within five business days, effectively bringing their investigations to an end. The threat of such powerful deterrents would have allowed the malicious cruelty of live baiting to flourish within the greyhound racing industry - the public would remain unaware of this or may dismiss insider reports as ‘rumours’, and the responsible authorities (Police or RSPCA) would most likely conduct one-off, announced visits to the premises concerned, at times the cruelty was not occurring. The Four Corners expose, which triggered the current overhaul of the greyhound racing industry, was only possible due to a sustained investigation that used footage to establish a pattern of cruelty offences over time.

2. The Bill fails to prescribe mandatory reporting by firsthand witnesses to malicious cruelty to animals from within animal enterprises: The explanatory memorandum states that “The Bill’s first priority is to ensure that animals are protected against further unnecessary cruelty caused by a delay in reporting”. If this is the primary aim of the Bill, why does it not prescribe timely mandatory reporting by individuals who are firsthand witnesses to malicious cruelty to animals within their industry? Instead, the Bill outlines new offences for those who fail to report

1 ‘Making a killing’, ABC, 16 February 2015: http://www.abc.net.au/4corners/stories/2015/02/16/4178920.htm

PO Box 223, Oatley NSW, 2223 www.sentient.org.au [email protected]

The Veterinary Institute for Animal Ethics malicious cruelty to animals only after recording it. The bias against animal activists and investigative journalists who record evidence of animal cruelty is very clear. For this reason, many in the animal welfare and wider communities have judged this as a Bill that primarily aims to protect animal industries that harbor systemic animal abuse.

3. The crucial role of undercover footage in the context of Australia’s current animal welfare regulatory framework and its limitations: This Bill is contextually perilous, occurring at a time when the Government and other authorities designated to respond to animal welfare matters are understaffed and unable to adequately oversee the enforcement of State and Territory animal cruelty laws. As a consequence, a number of successful prosecutions for animal cruelty in Australia have been aided by undercover footage obtained by private individuals and independent animal protection organisations. There is a crucial role for undercover footage in ensuring public scrutiny of animal industries. This is because of the aforementioned resource limitations, and also the lack of mandatory reporting by those engaged within animal industries, the often geographically remote and private nature of industry facilities, the absence of independent monitoring and auditing of animal welfare standards, and the inability of responsible authorities to conduct sustained investigations into animal cruelty.

4. Failure to address the deficiencies in Australia’s current resources to independently monitor animal welfare, and to detect, investigate and prosecute animal cruelty: If Senator Back and the Federal Government are serious about “enhancing animal protection”, they must set up the resources and funding to allow the relevant authorities (the state RSPCA and other Inspectorates) to more closely monitor and enforce animal welfare standards in animal industries. They must also increase the Inspectorates’ range of investigative powers to include right of entry, unannounced, random inspections, sustained investigations and the covert video surveillance that has so far been the domain of private investigators. This would remove any possible biosecurity risks posed by unauthorised undercover investigations and would also guarantee that video footage of animal cruelty (including neglect) is admissible as evidence in court, having been lawfully obtained. Compulsory and independently monitored 24-hour closed- circuit television (CCTV) surveillance in all animal enterprises should form part of the regulatory framework, and would greatly increase transparency. Sentient also supports the proposal in September 2014 by RSPCA Australia2 for mandatory abuse reporting by key responsible persons with a duty of care for animals, to be incorporated within State and Territory animal welfare legislation. The task of monitoring and enforcing animal welfare legislation wherever animals are used by humans is enormous. It will always be compromised by any form of industry self- regulation or by conflict of interest, such as allocating the protection of animal welfare to the Commonwealth Department of Agriculture, Fisheries and Forestry (DAFF) or the State or Territory Departments of Primary Industry, whose roles are also to support industry expansion and profit. We submit that if the is truly committed to the protection of animal welfare, it must commit to funding a federal initiative. It is our view that this can best be achieved by establishing a national Independent Office of Animal Welfare (with counterpart bodies in all States and Territories) with the powers to promote legislative reform, harmonise

2 ‘Act to Protect Animals by Reporting Animal Cruelty’, RSPCA Australia, 8 September 2014: http://www.rspca.org.au/sites/default/files/website/media-centre/Press-releases/RSPCA_Australia- Act_to_Protect_Animals_by_reporting_animal_cruelty-FAQs.pdf

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The Veterinary Institute for Animal Ethics

State and Territory animal welfare laws and to oversee the regulation and enforcement of this legislation.

5. The Bill is detrimental to the public interest and to public trust in animal enterprises: Implementation of this Bill would limit openness and transparency in animal industries, preventing the Australian public from learning about significant animal cruelty. It is therefore not in the best interests of the public or of the welfare of animals, and may even damage legitimate animal industries through eroding public trust. We submit that if industries are complying with animal welfare legislation, they have nothing to hide and this Bill is unnecessary.

6. We wish to address the following specifics of this Bill:

• Division 383.5 (1): Unreasonable time frames: The time frames stated for submission of a report of having obtained footage and for submission of the footage itself (one and five business days respectively) are unreasonable. The impact of many previous animal cruelty investigations has been largely aided by the collation of serial footage, obtained over a period of weeks to months. Without this, many issues may be dismissed as one-off anomalies rather than as evidence of widespread, systemic animal abuse. This has serious consequences for the effectiveness of enforcing animal cruelty legislation. Furthermore, once footage has been fully obtained, it must be viewed by more than one individual, which may take many hours; the purpose of this viewing is to confirm the belief that malicious cruelty has occurred and to consult with veterinary or other experts to describe the likely injuries and other impact of the cruelty on the animals concerned. Although Sentient does not engage in undercover or any other cruelty investigations, we are routinely consulted to provide expert commentary on footage obtained by animal welfare organisations internationally. Therefore, we can attest to the hours of viewing required to formulate a response that may assist in prosecutions of animal cruelty.

• Division 385.15 (c): “Evidential burden” on the defendant: It may be very difficult for the defendant to prove their conduct is “publishing in good faith a report or commentary about a matter of public interest” (Division 385.15c) as, without survey data, the question of whether a matter is of public interest is open to debate. It is concerning that defendants would be required to prove their intentions for reporting on animal cruelty as a matter of public interest, particularly when it is unclear how they could do so. We believe this burden may further hinder the collection of evidence required for animal cruelty prosecutions.

• Division 383.10 (1): Inadequate definition of animal cruelty: The definition of malicious cruelty to animals as engaging in “an unlawful activity for the purpose of inflicting unnecessary pain, injury or death upon domestic animals” is problematic:

o The definition does not protect non-domestic animals, such as feral animals or wildlife, yet these animals are often subjected to malicious cruelty, as evidenced by the recent expose of live baiting in the greyhound racing industry, where possums were used as lures.

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The Veterinary Institute for Animal Ethics

o The definition needs to be broadened to specify that it includes malicious cruelty during lawful activities; without this specifier, there is the risk that defendants may claim their actions are necessary to perform lawful procedures on animals in some circumstances, such as harsh handling of animals during humane slaughter. o The use of the word ‘purpose’ too easily allows the defendant to claim innocence on the grounds of not having intended to inflict pain, injury or death. Cruelty to animals produces suffering regardless of whether those who inflict cruelty have intended to so do or not. o Focusing on malicious cruelty does not protect animals from suffering resulting from neglect or inadequate care. We would argue that the Bill should broaden its definition of cruelty accordingly.

• Division 383.10 (2): The Bill may be interpreted to dismiss reports of cruelty during humane slaughter: “Humane slaughter for the purposes of food production, or for compassionate purposes, is not malicious cruelty to animals.” To prevent the defense of malicious cruelty on the grounds of humane slaughter for food production or for compassionate purposes, ‘humane slaughter’ should be clearly defined to encompass all aspects of the management and treatment of animals in this context, and not be confined to the slaughter process.

• Division 385.10: Duplication of existing legislation: ‘Criminal trespass’ should be removed as an offence causing fear of death or serious bodily injury in cases where investigative journalists or animal activists are engaging in covert surveillance of an animal industry with the purpose of reporting animal cruelty as a matter of public interest. The inclusion of criminal trespass as an offence causing fear of death or serious bodily injury is open to subjective opinion. In any case, criminal trespass is already covered under other legislation within the criminal code (State and Territory legislation).

On these grounds, we submit that the Senate Rural and Regional Affairs and Transport Legislation Committee recommend this Bill be rejected.

Regards,

The Executive of Sentient, The Veterinary Institute for Animal Ethics

Dr Rosemary Elliott, President Dr Adele Lloyd, Vice President Dr Katherine van Ekert Onay, Secretary Mr Matthew Lloyd, Public Officer

Submitted as a supplementary document on 12th May 2015

PO Box 223, Oatley NSW, 2223 www.sentient.org.au [email protected]