Codes of Practice

CHAPTER 3 Codes of Practice Summary and Overview 3.1 As noted in Chapter 2, the early cases interpreting the English anti-cruelty law defined “cruelty” to mean “unnecessary cruelty”. What can be said to be necessary or otherwise is of course a matter of opinion. However, what has developed in the intervening years is a view that cruelty to animals is acceptable where it suits the ends of society. Those ends may involve, for example, growing animals which are to be killed and eaten, or otherwise used, or using animals in scientific experiments of one sort or another. Because “necessity” is what society regards as acceptable, the definition of “necessity” has shifted somewhat over the years. For example, it is no longer possible to keep pigs tethered in stalls. 3.2 The great preponderance of cruelty (necessary or otherwise, depending on one's point of view) is, as has already been stated, in the exploitation of animals by agribusiness. Toleration of this cruelty and other forms of animal cruelty by the legislatures clearly creates a tension between the objectives of a statute seemingly intended to prevent or reduce cruelty to animals and the harming of animals which occurs as a result of various practices which the wider community may regard as acceptable. 3.3 Taking intensive animal farming as an example, the accepted practice in Australian jurisdictions has been not to leave it to the courts to decide the detail of what is cruel, but to seek to set out what is "acceptable practice" and to endorse that practice. This endorsement has been either by way of exemptions incorporated in the parent statute or its subsidiary legislation, or by way of reference to “codes of practice” which seek to set out in some detail the procedures which are said to be acceptable. The process of identifying "acceptable practice" in these codes has been dominated by industry, with the result that there has been an entrenchment of practices favoured by the relevant industry and which, therefore, are based purely on practices which are designed to minimise costs and maximise profits. The practical upshot has typically been to allow cruel practices to continue in the animal farming industry without rendering those responsible liable for prosecution by providing statutory immunity from prosecution where the practices are carried out in accordance with an authorised code of practice. 3.4 In 2005 the Commonwealth Department of Agriculture, Fisheries and Forestry commissioned a review of “animal welfare” codes of practice. The 53 resultant report by Geoff Neumann and Associates provides valuable background and commentary.1 The early Codes of Practice concerning farming practices were developed (by the then Commonwealth Bureau of Animal Health) in the 1980s as national guidelines in response to what were seen as the increasing challenges by those concerned with animal welfare to practices including usual farming practices. Since that time various Commonwealth bodies have developed Codes of Practice relating to animal welfare. To date, this has resulted in the generation of 18 such Codes,2 a Code of Practice relating to the use of animals in scientific research3 and Codes of Practice concerning animal slaughter, which include reference to welfare.4 The Codes were not intended to be binding on States and Territories, but were rather intended as guidelines. 3.5 There has been an attempt to bring a rational and uniform approach to the development and adoption of Codes of Practice. The current situation is that Codes are developed under the auspices of the Primary Industries Ministerial Council (PIMC).5 This is a body which is part of the structure of the Council of Australian Governments (COAG). PIMC is chaired by the Federal Minister for Agriculture, Fisheries and Forestry (ie a person who has no statutory responsibility in relation to animal welfare); its other members are the primary industries6 ministers of the States and Territories, together with the New Zealand government ministers responsible for those industries. Note that PIMC does not include representatives from the departments in South Australia (Environment and Conservation), Western Australia (Local Government and Regional Development), Australian Capital Territory (Environment, Water and Climate Change) and the Northern Territory (Local Government, Housing and Sport) which are responsible for administering the laws relating to prevention of animal cruelty and animal welfare. This is curious, given that an important part of the agreement within PIMC concerning Codes of Practice was that those Codes would 1 Geoff Neumann & Associates (2005) Model Codes of Practice for the Welfare of Animals – see: http://www.daff.gov.au/_data/assets/pdf_file/0006/146751/Neumann_report.pdf 2 Model Codes of Practice for the Welfare of Animals: Animals at Saleyards; Cattle; Domestic Poultry; Farmed Buffalo; Farming of Ostriches; Feral Livestock Animals; Husbandry of Captive-Bred Emus; Intensive Husbandry of Rabbits; Land Transport of Cattle; Land Transport of Horses; Land Transport of Pigs; Land Transport of Poultry; Livestock at Slaughtering Establishments; Pigs; The Camel; The Farming of Deer; The Goat; The Sheep: available at the website of the Commonwealth Scientific and Industrial Research Organisation (CSIRO), http://publish.csiro.au/nid/22/sid/11.htm 3 Australian Code of Practice for the Care and Use of Animals for Scientific Purposes (1997); by agreement between the National Health and Medical Research Council, CSIRO, Australian Research Council and Australian Vice-Chancellors' Committee 4 see for example Australian Standard for the Hygienic Production and Transportation of Meat and Meat Products for Human Consumption (2002). This is adopted under Orders made pursuant to the Export Control Act 1982 and is relevant to animals slaughtered for preparation of meat for export. There is a 2007 version of this Code, which is yet to be adopted at the time of writing (10 March 2009). See Chapter 5 for other codes relevant to killing game, etc 5 The forerunner of PIMC was the Agriculture and Resource Management Council of Australia and New Zealand (ARMCANZ) and the predecessor of that body was the Australian Agricultural Council 6 “Primary industries” being agriculture, food, fibre, forestry, fisheries and aquaculture 54 be implemented by the departments in the States and Territories responsible for animal cruelty legislation. 3.6 The body which does the work on Code development within this framework is the Animal Welfare Working Group.7 This body is made up of representatives from the federal Department of Agriculture, Fisheries and Forestry (DAFF) and their State and Territory counterparts, together with representatives of CSIRO, Animal Health Australia8 and the Vertebrate Pest Committee.9 3.7 Another key factor is the Australian Animal Welfare Strategy (AAWS). AAWS was endorsed by PIMC and launched in 2005. AAWS is in essence controlled under the auspices of DAFF.10 AAWS involves consultation with and involvement of “stakeholders”, including representatives from industry and from animal rights and animal welfare groups. One of its objectives is to “involve all key stakeholders in...the development and implementation of animal welfare standards that have a strong scientific basis”, while another is to improve the “consistency of legislation and administration across jurisdictions and the enforcement of agreed standards." Note that the “standards” referred to are meant to be mandatory elements of the codes. 3.8 A “key outcome” said to have been achieved by AAWS is “completion of a stocktake of animal welfare arrangements for each of the AAWS animal use sectors.”11 The stocktakes have the purpose of assessing "any gaps or any weaknesses in the current animal welfare arrangements."12 3.9 One such stocktake has been done in the area of “Livestock and Production Animals”.13 The brief of the consultant who prepared it included to give "a concise inventory of relevant animal welfare arrangements", which was to include "legislation, Codes of Practice, standards [and] guidelines." It certainly did not do that. Rather, it provided a list of URLs for websites. This "stocktake", which is presumably an important part of the overall code review procedure for livestock 7 This Committee reports to the Animal Health Committee, which is in turn part of the Primary Industries Health Committee, which sits under the PIMC umbrella. The Animal Health Committee is made up of the Chief Veterinary Officers of each jurisdiction, representatives of CSIRO and representatives of “Biosecurity Australia”. See http://www.daff.gov.au/animal-plant-health/animal/committees/ahc/awwg 8 Animal Health Australia is a not for profit public company established by the federal state and territory governments and peak bodies representing the major livestock industry organisations (in other words, it has no representatives of independent bodies concerned with animal welfare, such as the RSPCA or Animals Australia) 9 This reports to the Natural Resources Planning and Policy Committee within the COAG structure: see http://www.feral.org.au 10 See the DAFF website at http://www.daff.gov.au/animal-plant-health/welfare/aaws 11 There are six such sectors, including “Livestock and Production Animals” see P Thornber (2007) Animal welfare is the responsibility of all Farm Policy Journal 4 (4), 33 12 See the DAFF website at http://www/daff.gov.au/animal-plant-health/welfare/stocktake 13 See the DAFF website at http://www.daff.gov.au/_data/assets/pdf_file/0014/152105/aaws_stocktake_livestock_prod.pdf

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