Aaron Timoshanko, ‘Limitations of the Market-Based Approach to the Regulation of Farm Animal Welfare’ (2015) 38(1) University of New South Wales Law Journal 514

This article challenges the conventional wisdom that Australian consumers who are concerned about the care and treatment of farm animals are able to reflect these values through their purchasing behaviour. This is due to interference by market, political and social considerations that disrupt the transmission of animal welfare values into purchasing behaviour. For this reason, the regulation of farm animal welfare cannot be left to the market-based approach. Instead, government regulatory intervention is required in accordance with public interest theories of regulation.

It will take a ban on caging pigs to clean up the pork industry

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A piggery in New South Wales. Courtesy: Aussie Farms
Aaron Timoshanko, Monash University and Joanna Kyriakakis, Monash University

A current bill before the New South Wales Parliament proposes to end the use of sow-stalls.

Sow-stalls, sometimes referred to as gestation crates, are small metal and concrete cages measuring 2.2 by 0.6 metres in which pregnant pigs are kept for up to 105 days.

If passed, New South Wales would become the second Australian jurisdiction to do so, after the Australian Capital Territory banned their use in 2014.

But in 2010, Australian Pork Limited (APL), the peak representative body for the pork industry, agreed to a voluntary phase-out of sow-stalls by 2017.

So why do we need a ban anyway?

The problem with sow-stalls

It is hard to say for certain the extent of physical and psychological harm caused by keeping pregnant pigs in sow-stalls. Key pieces of scientific research conducted in this area have been funded either in whole or part by APL. Whether or not this funding influences the research outcomes is difficult to say.

In any event, researchers have found that the lack of exercise caused by such confinement reduces bone strength and muscle weight in sows and they report higher incidences of lameness.

We also know that these intelligent animals will bite the bars of their cage to express boredom or frustration at their confinement. The pregnant sows develop skin abrasions from the metal bars as the stall is not much larger than their body.

Furthermore, such confinement deprives these pigs from exercising natural behaviours, such as foraging for food and nesting. It is these kinds of harms that have seen sow-stalls banned or their use substantially restricted in countries such as the United Kingdom, Sweden, and New Zealand, among others.

Why is a law to ban sow-stalls necessary?

The voluntary phase-out can be seen as the industries response to market-forces. Retailers such as Coles and Woolworths have already responded to this demand.

Coles’ own brand pork products have been sow-stall free since 2013, while Woolworths is committed to sourcing all its fresh pork products from producers who use sow-stalls for less than 10% of the sows’ gestation period.

Despite the apparent success of market forces, there remain important reasons why governments still need to regulate farm animal welfare.

There are important limitations to the APL’s voluntary phase-out.

First, the phase-out only applies to APL members. Only 38% of pork producers in Australia are APL members (although they account for 94% of pig meat products), so there will still be animals not covered under the voluntary scheme.

Second, as the phase-out is voluntary, APL members who choose not to comply cannot be forced to do so – although they may be engaging in misleading and deceptive conduct if they promote their products as sow-stall free.

Third, the voluntary phase-out will be policed through industry self-regulation. This appears to involve auditing by the Australian Pork Industry Quality Assurance Program, which is owned and managed by APL.

There are limits to the efficacy of industry self-regulation given the tension that can exist between profit maximisation and animal welfare goals.

Fourth, the voluntary phase-out will not mean pigs are free-range or free from confinement. The APL voluntary phase-out provides a qualified definition of “gestation stall free”, which will allow pigs to be confined to mating stalls and farrowing crates for up to 10% of their pregnancy.

Also, the alternate to sow-stalls proposed by APL is “loose housing”, which will not guarantee any access to the outdoors, opportunities for socialising or access to bedding/nesting materials.

The need for a ban

To protect all pregnant pigs from sow-stalls, laws must be passed in each Australian State and Territory. The ACT has already done so and the current NSW bill aims to follow in its footsteps.

Although the ACT never had sow-stalls operating in its territory, the amendment to its Animal Welfare Act will ensure it stays this way.

The NSW bill is closely modelled on the ACT amendment. Both provide for “appropriate accommodation” for all pigs.

Appropriate accommodation means that pigs must be able to turn around, stand up and lie down without difficulty. The floor is to be clean, comfortable and well-drained. The facilities must enable pigs to maintain a comfortable body temperature and have access to an outdoor area.

Unlike the ACT model, the NSW bill does allow pigs to remain wholly indoors provided bedding material and enrichment objects are made available and the pig is able to move about freely.

Another difference is the requirement that pigs be housed in “compatible groups”, being “a group of two or more pigs that can be kept together without undue stress to any of those pigs.” This will help reduce aggression and fighting between pigs.

A final difference between the ACT legislation and the NSW bill is that farrowing crates (which were designed to reduce the chance of piglets being trampled or crushed by the sow) will also be banned by 2020 if the NSW bill is successful.

Although a voluntary phase-out of sow-stalls may improve the lives of some pregnant sows, a law requiring all pork producers to provide “appropriate accommodation” for the pigs in their care is the better option. This will ensure the rule covers all producers and enables direct governmental oversight.

The ConversationNo doubt the bill will have some limitations. However, as the community’s expectations shift, the decision to end the use of sow-stalls should rest with parliament, not industry.

Aaron Timoshanko, Sessional Academic and Research Assistant at Flinders University, PhD Candidate, Monash University and Joanna Kyriakakis, Lecturer in Law, Monash University

This article was originally published on The Conversation. Read the original article.

Queensland will need teeth to stop the greyhound industry bleeding to death

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Following reports of cruelty Queensland will separate the commercial and integrity arms of the greyhound industry. enjosmith/Flickr, CC BY-SA

Aaron Timoshanko, Monash University and Christine Parker, Monash University

The abolition of all Queensland’s racing boards on Tuesday follows the handing down of the final report of the Queensland Greyhound Racing Industry Commission of Inquiry by Alan MacSporran, QC.

The report’s key recommendation is to establish a new statutory body to oversee the integrity of the sport, thus separating the Queensland racing industry’s integrity and commercial arms.

Queensland Premier Annastacia Palazsczuk’s abolition includes the Queensland All Codes Racing Industry Board (trading as Racing Queensland), the Greyhound Racing Board, the Harness Racing Board and the Thoroughbred Racing Board.

The inquiry and action follows evidence and allegations of live-baiting documented in an ABC Four Corners exposé. But will the Premier’s actions fix the industry’s problems?

Damning critique

In the report’s most significant finding, Racing Queensland was found to have a conflict of interest resulting from its dual responsibilities for the commercial and integrity operations of the business. This finding has potentially far reaching consequences as such a conflict arguably exists in every state and territory in Australia where racing exists.

In addition, the final report made several important findings including the failure of industry self-regulation to protect the welfare of animals entrusted in its care. The inquiry was also highly critical of Racing Queensland for failing in its duties across all three sporting codes (greyhound, harness and thoroughbred racing).

The wide-ranging recommendations made by the inquiry not only address the issue of live baiting, but also tackles other welfare issues that have plagued the industry.

In particular, the inquiry takes aim at the issue of overbreeding, wastage, licensing and the traceability of greyhounds (a third of greyhound pups born in Queensland are unaccounted for).

Winning back public confidence

The final report and a subsequent statement made by the Queensland Premier make it clear that the primary aim of the inquiry is to restore public confidence in the racing industry. This is rightfully seen as a necessary pre-condition for the industry to be considered legitimate in the eyes of the public.

The inquiry hopes to achieve this aim through recommendations that promote the integrity of the industry and by safeguarding animal welfare. Public confidence can only be restored once these issues have been addressed.

In this regard, the live baiting of greyhounds is a rather unique issue as animal welfare and integrity overlap due to the perceived competitive advantage blooded greyhounds possess.

In fact, this may explain why live baiting has received such a strong response from the industry and state governments, whereas the issue of wastage has largely been ignored for years.

The integrity commission

The failure of Racing Queensland to effectively assess and manage risk across all three codes led the inquiry to recommend the creation of a new independent statutory authority, the Queensland Racing Integrity Commission (QRIC).

According to the inquiry, the QRIC is to be led by the existing role of Racing Integrity Commissioner who will be accountable directly to the Minister for Sport and Racing. The proposed responsibilities of the QRIC far exceed those fulfilled by the current racing Commissioner.

The QRIC is to be independent of Racing Queensland and the department. The majority of the members on the board of QRIC will also need to be independent of the racing industry for two years prior to their appointment.

The QRIC will be responsible for integrity and animal welfare issues, leaving Racing Queensland to focus on the commercial aspects to its business. In doing so, the Inquiry aims to redress Racing Queensland’s conflict in performing both the integrity and commerciality functions.

It all depends on funding

Given the stated aim of restoring public confidence in the industry, one may have expected greater discussion of the QRIC’s role in safeguarding animal welfare.

To be fair, the proposed QRIC will:

  • use some of the resources of the Queensland Police Taskforce
  • ensure adequate welfare arrangements for retired greyhounds, through the partial refund of a licensing fee
  • take a “stronger emphasis on detection and response”.

But, greater emphasis on animal welfare may help to reassure the public that welfare will remain the primary focus, rather than integrity more broadly. After all, the public outrage after the ABC’s Four Corners program aired was in response to the horrific animal cruelty, not any concern that their flutter went on a race where one or more dogs had an unfair advantage.

Short of banning the sport, the creation of the QRIC is likely to be a positive step for the welfare of greyhounds. Separating the integrity and commercial operations of the industry will certainly help eliminate the conflict between drawing the crowds and the welfare of greyhounds.

Ultimately, the success of this recommendation will depend on the personnel staffing the new QRIC and its ability to secure adequate funding. These challenges are acknowledged by MacSporran and they cannot be understated.

Securing adequate funding for the QRIC may not be an issue in the short-term, but what happens when the media attention has moved on? Can we trust that the QRIC will be sufficiently funded even in a tight budget?

History would suggest not. According to the inquiry, the current funding of the Racing Integrity Commissioner’s role on a part-time basis was “inadequate” and “meagre”. How will the QRIC be any different?

The ConversationOnly time will tell.

Aaron Timoshanko, Sessional Academic and Research Assistant at Flinders University, PhD Candidate, Monash University and Christine Parker, Professor of Regulatory Studies and Legal Ethics, Monash University

This article was originally published on The Conversation. Read the original article.

Animal welfare laws need more bite to stamp out live baiting

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A possum used in live baiting. Animals Australia & Animal Liberation Qld

Aaron Timoshanko, Monash University and Christine Parker, Monash University

The exposure of live baiting (or “blooding”) activities in greyhound racing has sent shockwaves through the industry, with a spate of suspensions, resignations and dismissals following undercover footage aired by ABC Four Corners in February.

The revelations have prompted calls for greater regulation and for the greyhound racing industry to be made more transparent and accountable to government. But it is not more rules that we need – it’s better enforcement of the laws we already have.

Blooding outlawed

Blooding greyhounds is already prohibited in all three states implicated in the scandal.

In Queensland, the Animal Care and Protection Act 2001 (Qld) prohibits a person from keeping or using an an animal as a kill or lure for blooding a dog. The maximum penalty is A$34,155 or one year in prison.

Similarly, in New South Wales an individual who keeps or uses an animal as a lure or kills an animal for the purpose of blooding greyhounds can be fined A$22,000 or face two years imprisonment, or both. Victoria also prohibits blooding with a maximum fine over A$35,000 or two years in prison.

Self-regulation

The greyhound racing industry also regulates itself. At the national level, the Greyhounds Australasia Rules does not explicitly have a rule against blooding greyhounds although several rules appear to ban the practice.

For instance, it is an offence to:

  • bring a live animal (other than a greyhound) on to a racecourse, trial track or surrounding area
  • to use an animal in connection with greyhound racing that is “improper” (although no definition of this term is provided)
  • to do a thing which, “in the opinion of the Stewards or the Controlling Body, … is negligent, dishonest, corrupt, fraudulent or improper, or constitutes misconduct”
  • to “act in a way that is detrimental or prejudicial to the interests, welfare, image, control or promotion of greyhound racing”.

A person found guilty of an offence under the national rules could face a fine, suspension, disqualification, cancellation of registration or a “warning off”.

The Victorian local rules explicitly prohibit the use of a live animal as a lure or “for the exciting of greyhounds” and designates it as a “serious offence”. As a “serious offence” the Greyhound Racing Victoria Racing and Disciplinary Board can, among other potential penalties, order the refund of prize money.

Under the Greyhound Racing Victoria’s Animal Welfare Penalty Guidelines the recommended penalty for those guilty of blooding a greyhound is a 10 year disqualification.

All bark, no bite

The Four Corners exposé has highlighted the inadequacy of enforcement by both the greyhound racing industry and the government.

The “police officers” for greyhound racing industry self-regulation are the stewards. They failed to detect and/or act on suspected breaches of the national or local rules of racing.

Reasons for this range from geographical remoteness of the trial or training tracks (according to Scott Parker, CEO of Greyhounds Australasia), to a lack of resources, to stubborn refusal to see the problem.

The government enforcement of animal protection legislation is largely left to the Royal Society for the Prevention of Cruelty to Animals (RSPCA) to enforce, which is rather unique for a branch of criminal law.

As a charitable organisation that is inadequately funded by government, it is severely limited in its ability to bring prosecutions or pursue riskier cases.

The RSPCA is also sensitive to public donations. For instance, a costs order awarded against the RSPCA could see public donations going to the alleged offenders legal team. This in turn is likely to have a negative effect on future donations which the society needs to run animal shelters, and prosecutions.

Better enforcement

One solution would be to ban greyhound racing. There is precedent for completely banning an animal sport when the public sees how cruel it is. In 1997, for example, the New South Wales parliament amended the Prevention of Cruelty to Animals Act 1979 (NSW) to ban coursing and jumps racing (or steeplechase) for horses.

Assuming greyhound racing is not banned, greater enforcement of the existing criminal laws should be the priority. It is not appropriate to devote tax-payer money, as is proposed in Victoria, to help enforce industry self-regulation where criminal laws have been passed to punish the same behaviour, and self-regulation has spectacularly failed. A real and credible threat of criminal prosecution when industry self-regulation fails is also the best way to make the industry self-regulators do a better job.

There is also the danger with strengthening self-regulation that those caught would be disciplined under the local or national rules when the cruelty of the conduct warrants criminal prosecution. Additional government funding could go instead to the enforcement body for animal protection, the RSPCA, so it can employ more inspectors and bring more criminal prosecutions.

State governments could also introduce legislation that allows other organisations such as Animals Australia or Animal Liberation, the bodies that obtained the undercover blooding footage, to prosecute under the animal protection laws. This would mean giving animal protection groups other than the RSPCA “standing”, which the government and courts have been reluctant to do.

Another option is to create a state-based statutory authority with the powers to investigate and prosecute breaches of animal protection laws. In 2013, the Greens attempted to introduce the Independent Office of Animal Welfare and Labor proposed the Inspector General of Animal Welfare and Live Animal Exports at the federal level.

While such proposals were a step in the right direction, the primary responsibility for the regulation of animal welfare rests with the states and territories and it is they who should act to enforce their own criminal laws. The state or territory statutory-authority would be similar to those proposed above but could have greater enforcement powers.

The ConversationWithout adequate enforcement, the laws that governments have passed to reflect societies condemnation and abhorrence of live baiting will continue to lack the necessary bite.

Aaron Timoshanko, Lectures in animal law, the Research Assistant to the Dean at Flinders University and PhD Candidate, Monash University and Christine Parker, Professor of Regulatory Studies and Legal Ethics, Monash University

This article was originally published on The Conversation. Read the original article.