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The Law

Tasmania’s former Animal Welfare Act had been in force since 1993, and has recently undergone a comprehensive review.

(See Tasmania’s Animal Welfare Act at http://www.thelaw.tas.gov.au/)

Despite numerous well-informed submissions, few recommendations made by animal advocates have been taken into consideration.

Read our submission

Links An Act for all Animals

The new Act came into effect in July 2008, and provides for increased penalities, and contains strengthened "Duty of Care" provisions; however, the question of "seizure" and "forfeiture" remains ambiguous. StopTAC, while welcoming the improvements, questions the matter of the penalties, since the penalties provided for in the previous Act were never applied, with the most egregious offenders being let off with "slaps on the wrist". Until the judiciary treats animal abuse with the seriousness it deserves, it is our belief that little will change for the benefit of Tasmanian animals, particularly those used in farming, experiments, hunting and "entertainment".  All too often, cases are left to lie without ever being dealt with (for example James George Turner), or offenders are able to leave the state without facing charges (for example Roderic Neil Mitchell - regardless of the number and seriousness of the offences. The case against Mitchell has dragged on for more than four years with no end in sight.

The Act itself is underpinned by “Standards” (called Codes of Practice in other jurisdictions), which now take the form of (unenforceable) "Guidelines" because National Standards are in the process of being implemented. These 'National Standards', in many cases involve worse compromises for animals than the various State and Territory Codes of Practice.

As is the case in other jurisdictions, the “Standards” provide the mechanisms by which “producers” are able to routinely breach the cruelty provisions of the Animal Welfare Act. While non-compliance with the Standards can form the basis of a prosecution, compliance with these codes of cruelty can also form the basis of a defence. These standards mean that animals used in farming receive significantly less real protection from cruelty than do “companion” animals.

See Tasmania’s Animal Welfare Standards at

http://www.dpiw.tas.gov.au/inter.nsf/WebPages/EGIL-535VVF?open#Tasmania'sAnimalWelf

While none of these issues is by any means unique to Tasmania, we have provided a local focus with comprehensive information about what you can do to help these animals.

Tasmania is also unique in its Section 7 of the Act (“using an unsatisfactory method of management of an animal”). This provision results in sentences that are little more than “slaps on the wrist” for actions which would attract cruelty or aggravated cruelty charges in other states and territories.

Below are some examples of these 'slap on the wrist' penalties;

Robert Charles Gregg

Richard Rainbird

James George Turner

The fox is in charge of the henhouse

Comment by Victorian barrister Graeme McEwen on the conflicts of interest failing to protect farmed animals from egregious cruelty. This comment applies across the country, as Codes of Practice, or Standards, allow shocking cruelty

Welfare laws for farm animals are hamstrung by a conflict of interest. Graeme McEwen, who chairs the Barristers Animal Welfare Panel, discusses how farm animals have been excluded from the protection of animal welfare laws.

VICTORIA'S animal-protection law largely fails to protect animals. In fact, it institutionalises widespread animal suffering. Why? Because the Prevention of Cruelty to Animals Act 1986, in effect, exempts the overwhelming mass of animals from its 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.

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 300,000 annually. Or the plight of the nation's battery hens - 13 million annually. Or that of broiler hens - 420 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 in Victoria will require the statute's unqualified acknowledgement that animals should be treated humanely.

Who is responsible for initiating and creating these "codes of practice"? In Victoria, 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 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.

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, enforcement of what remains of the Victorian act's protective reach 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 by the Minister for Primary Industries or his delegate. This power is exercised sparingly.

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.

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.

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.

Graeme McEwen chairs the Barristers Animal Welfare Panel

http://www.animalsaustralia.org/media/opinion.php?op=47