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Animal Law, Animal Welfare, Animal Welfare Act 1999

Closing the Loopholes?

With much fanfare, the government launched an animal welfare amendment bill earlier this year.  You may remember our scepticism.  Now, with much less fanfare, Sue Kedgley MP’s clumsily-titled private members bill, the Animal Welfare Amendment (Treatment of Animals) Bill has been balloted to receive its first reading in September.

So, what does she hope to do?

Whereas the other Bill primarily raised the penalties for one offence, the Green Party MP’s Bill aims to eliminate sow crates and battery farms.  For that reason, unfortunately, I suspect that it will fail in Parliament.  While tougher sentences and strong words gained unanimous support, I suspect alas that forcing notable change in the animal industries may frighten too many of our politicians.

Sue Kedgley’s Bill is premised on the sad fact that the codes of welfare for layer hens, broiler hens, and pigs fall below the welfare standards of the Animal Welfare Act 1999.  These codes of welfare provide complete defences to charges under the Act.   Section 73(1) of the Act requires the codes of welfare to comply with the minimum welfare standards necessary to achieve the Act’s purpose.  However, s 73(3) allows the National Animal Welfare Advisory Committee (NAWAC) to recommend codes of welfare in breach of s 10.  Section 10 reads:

10 Obligation in relation to physical, health, and behavioural needs of animals
The owner of an animal, and every person in charge of an animal, must ensure that the physical, health, and behavioural needs of the animal are met in a manner that is in accordance with both—
(a) good practice; and
(b) scientific knowledge.

So, section 73(3) allows the industry to write, NAWAC to discuss and recommend, and the minister to rubber-stamp codes of welfare that allow conduct the violates the animal’s physical and behavioural needs.  It allows conduct that is not good practice or scientifically sound – so long as exceptional circumstances exist.

And, the industries allege, exceptional circumstances do exist.  Businesses would fail, farmers would suffer, and so the codes of welfare – for chickens and pigs at the least – blatantly breach s 10.  But they are not ultra vires or illegal, arguably, because of the exceptional circumstances provision.

So, Sue Kedgley’s bill will, if passed, add new subsections, subss 73(3a) and 73(3b), to restrict how long a code of welfare may operate under the exceptional circumstances provision.  No code of welfare justified by the exceptional circumstances provision may persist for more than five years.

If passed, that would – arguably – close the loophole, or at least add a sunset clause to it.

But I have one niggling doubt.  If this is passed, we fall back to the old difficulty: Challenging the validity of a regulation.  There is already a potential argument that the circumstances are not exceptional, and therefore these codes of welfare are ultra vires.  But the Regulations Review Committee is non-binding, and the other main option – judicial review – is costly and slow.

So, perhaps, rather than invoking the exceptional circumstances provision, the industries will simply fall back to asserting that the codes of welfare do not breach s 10.  Good practice, after all, is something of an amorphous concept.

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About David Tong

LLM (1st Hons) / BA/LLB (Hons) Vegan Straight Edge

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