State animal protection laws largely fail to protect animals. In fact, they institutionalise widespread animal suffering. Why? Because they, in effect, exempt the overwhelming mass of animals from their protection. How? By sanctioning “codes of practice” – usually favouring the interests of producers over animal welfare – as a defence or exemption from prosecution under the act.
For example, the Code of Accepted Farming Practice for the welfare of poultry permits the confinement of a battery hen on a floor area about three quarters the size of an A4 sheet of paper. Such enduring close confinement would ordinarily fall within one of the act’s cruelty offences.
As such confinement complies with the relevant code of practice, however, the act does not apply. In Victoria, for example, the act defines a “farm animal” to include “cattle, sheep, pigs, poultry”. This means, for example, that intensively confined pigs and poultry may be exempted from the act’s reach. Yet this is where acute suffering occurs daily. And in enormous numbers. Contemplate the sow’s plight in a gestation stall or farrowing crate – Australia-wide about 250,000 annually. Or the plight of the nation’s battery hens – 11 million annually. Or that of meat chickens – some 480 million annually.
Suffering is suffering, and does not cease at the borders of human experience. The challenge, then, also lies in the sheer quantity of animal suffering: hundreds of millions of the nation’s animals every year. To allay it will require the unqualified acknowledgement in these animal-protection statutes that animals should be treated humanely.
Who is responsible for initiating and creating these “codes of practice”? In Victoria, for example, it is the Minister for Primary Industries and his department – the very people charged under the act with its administration and enforcement.
Codes are produced by the self-styled “Animal Welfare Committee” within the Australian Primary Industries Council system. Like its federal and other state counterparts, the Victorian Department of Primary Industries, for example, is a member of the “Animal Welfare Committee”. This “Animal Welfare Committee” produces national model codes. In Victoria, these codes are then incorporated into our animal protection legal regime by the Governor in Council on the recommendation of the Minister for Primary Industries.
The bias of the codes on threshold welfare questions is obvious. Take the model Domestic Poultry Code, 4th edition. Its introduction tritely observes: “It is noted that there are particular behaviours such as perching, the ability to fully stretch and to lay eggs in a nest that are not currently possible in certain (caged) poultry housing systems. It is further noted that the ability to manage disease is influenced by the housing system. These issues will remain the subject of debate and review.”
Matters central to the almost universally acknowledged bleak existence of the battery hen are thus put on hold. Indeed, the preface to the model code notes: “The following Code will be further reviewed in 2010, although an earlier review will be implemented if technologies offering significant welfare benefits are available.” Similar statements appear in the Victorian code published in December 2003.
As it is, the various departments have refused to review this year the model code for poultry.
Meanwhile, Council of Europe conventions and European Union legislation provide ultimately for banning battery hens, and their phasing out in the interim.
In the United States and Canada, each country’s largest pork producer has just flagged that it will phase out sow gestation stalls in acknowledgement of public opinion and consumer sentiment. No holding on for significant new technologies or cost savings. Further, the supermarket chain Coles announced in July 2010 that it will impose a ban from 2014 on pig meat that is bred using the controversial “shopping trolley-sized” steel pens in which sows are confined for their 16 week pregnancies. In addition, Tasmanian government has announced that it will phase out from 2014-2017 the use of sow stalls in that state (click here to read more).
Further, enforcement of what remains of the protective reach of state animal protection statutes is left in substantive respects to the RSPCA, a charity with limited resources. In an age in which individuals may be backed by a producer body or a fighting fund, how can a charity also be expected to risk an adverse costs outcome in a difficult or protracted prosecution? Only the state has the resources necessary to enforce a public interest statute, especially such a potentially wide-ranging one. It should do so, but the department’s enforcement record is a modest one.
On the detection of offences, the vital power to permit random inspection of premises (such as a battery hen shed) lies tightly controlled in Victoria by the Minister for Primary Industries or his delegate. This power is exercised sparingly. Other state statutes do not even provide for this power.
Otherwise, for an RSPCA or police inspector to have the necessary “reasonable grounds” to enter premises would need a departing employee to make a complaint (infrequent) or the co-operation of the relevant producer (unlikely).
Inspectors’ other powers of inspection are also materially deficient.
If the true scale of animal suffering were to be acknowledged, the ministerial and departmental role since 1980 in subverting the protective reach of the act would connote an abandonment of public responsibility. It is no coincidence that about 1980 the voice of the animal welfare movement began to be heard.
Pending the establishment of a national animal welfare act and a national statutory authority (independent of the federal department of agriculture), the administration and enforcement of the act should be assigned to the Attorney-General and his department. At least then, the self-evident conflict of interest would cease, and some hope could be kindled of extended animal protection. Otherwise, animal welfare should be a Commonwealth responsibilty. More than adequate constitutional power exists e.g. the trade and commerce power, the corporations power. Having regard to the scale and acuteness of suffering of some 500 million animals annually, animal welfare is a national issue of the first order.
For the present, the legal regime is a public scandal. And this affront to the public interest is likely to continue as long as the fox remains in charge of the chickens.