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Regulatory Capture and the Welfare of Farm Animals in Australia

Part of the Ius Gentium: Comparative Perspectives on Law and Justice book series (IUSGENT,volume 53)

Abstract

Recent controversies over the treatment of animals within Australia’s agricultural sector have raised questions over the adequacy of current governance and regulatory arrangements for farm animal welfare. Concerns have been expressed over perceived conflicts of interest on behalf of State and Federal Departments of Agriculture in administering animal welfare law. The theory of regulatory capture is applied to assess the veracity of such claims. Capture theory concerns the private distortion of public purposes. It occurs when a regulatory agency acts in the interests of the industry it is charged with regulating in a way that is inconsistent with the public interest the regulation is designed to serve. Key to the analysis is a consideration of the relationship between farm animal welfare and on-farm productivity. It is argued that due to the structure of the Departments’ reward system, measurable economic goals associated with productive and profitable primary industries are prioritised over the more elusive, less determinate public interest in animal welfare. This has led the Departments to a community of interests with the regulated parties where they have adopted the same instrumental approach to animal welfare as that advanced by the livestock industries. Consequently, the Departments have deviated from serving the public interest in farm animal welfare as demonstrated by various regulatory failures and process deficiencies presenting a strong case for the existence of regulatory capture. The chapter concludes with exploring options for regulatory reform to circumvent the capturing influences and to improve the accountability and democratic legitimacy of the framework.

Keywords

  • Animal Welfare
  • Livestock Industry
  • Regulatory Capture
  • Australian Capital Territory
  • Welfare Standard

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

The views expressed do not represent the views of RSPCA Australia. Thanks are due to Steven White and Deborah Cao for constructive comments and Mariko Kawase for assistance with diagrams.

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Fig. 10.1
Fig. 10.2
Fig. 10.3

Notes

  1. 1.

    See list of incidents in Sect. 10.3.2.

  2. 2.

    In 2011, national demonstrations were held to protest against the export of animals to Indonesia following an investigative news program depicting horrific slaughter practices. The Commonwealth Department of Agriculture reported receiving 284,415 items of ministerial correspondence during the 2011–2012 Financial Year. This represented a 556 % increase from the previous year with over 97 % of the correspondence relating to the live export trade (Commonwealth Department of Agriculture 2013a). See also, further discussion in Sect. 10.3.2.

  3. 3.

    Since May 2011, six separate Bills have been introduced to Federal Parliament to end the live export trade.

  4. 4.

    Figure 10.3 below outlines the causal relationship between the various stages of the capture process.

  5. 5.

    These are outlined in s 51 of the Australian Constitution.

  6. 6.

    This is courtesy of the residual powers doctrine, which provides that any power not expressly vested in the Commonwealth Government remains within the jurisdiction of the States: See Australian Constitution s 107.

  7. 7.

    Australian Constitution s 51(xxxix).

  8. 8.

    Australian Constitution s 51(i).

  9. 9.

    Australian Constitution s 51(xxix).

  10. 10.

    Referred to as the ‘Model Codes of Practice for the Welfare of Animals’; accessible at: http://www.publish.csiro.au/index.cfm

  11. 11.

    Accessible here: http://www.animalwelfarestandards.net.au/land-transport/

  12. 12.

    The current version is the 2010–2014 Australian Animal Welfare Strategy, available at: http://www.australiananimalwelfare.com.au/

  13. 13.

    The term “regulatory failing” is used in this context to refer to a failure to achieve policy objectives, as opposed to the meaning given to a similar term – “government failure” – which in economic literature, refers to government intervention in the market that causes inefficiency and misallocation of scarce resources.

  14. 14.

    For a detailed critique of current farm animal welfare standards, see Sharman (2013).

  15. 15.

    The term ‘utilitarian’ here is used for its common meaning in terms of valuing action by its utility, not the meaning ascribed to it in the field of animal ethics, particularly by Peter Singer.

  16. 16.

    The “Five Freedoms” are a universally recognised benchmark for animal welfare. They include: freedom from hunger and thirst, freedom from discomfort, freedom from pain, injury or disease, freedom to express normal behaviour, and freedom from fear and distress.

  17. 17.

    Council Directive 1999/74/EC of July 1999 laying down minimum standards for the protection of laying hens [1999] OJ L 203, p0053–0057, Art 5.

  18. 18.

    Council Directive 2001/88/EC of 23 October 2001 amending Directive 91/630/EEC laying down minimum standards for the protection of pigs [2001] OJ L 316 p 001–0004, Art 3.

  19. 19.

    Animal Welfare (Pigs) Code of Welfare 2010 (NZ), available at: http://www.mpi.govt.nz/Default.aspx?TabId=126&id=1846

  20. 20.

    Animal Welfare (Layer Hens) Code of Welfare 2012 (NZ), available at: http://www.biosecurity.govt.nz/files/regs/animal-welfare/2012-layer-hens-code-web.pdf

  21. 21.

    See Humane Society of the United States timeline of legislative developments for farm animal welfare here: http://www.humanesociety.org/issues/confinement_farm/timelines/timeline_farm_animal_protection.html

  22. 22.

    Code of Practice for the Care and Handling of Pigs (Canada), available at: http://www.nfacc.ca/pdfs/codes/pig_code_of_practice.pdf

  23. 23.

    See Animal Welfare Act 1992 (ACT), ss 9A and 9B.

  24. 24.

    See Animal Welfare (Pigs) Regulations 2013 (Tas), r 25A.

  25. 25.

    See generally, Animal Welfare Act 2002 (WA), s 3; Prevention of Cruelty to Animals Act 1979 (NSW), s 3; Prevention of Cruelty to Animals Act 1986 (Vic), s 1; Animal Care and Protection Act 2001 (Qld), s 3.

  26. 26.

    See Animal Welfare Act 1985 (SA), s 13(3)(a); Prevention of Cruelty to Animals Act 1986 (Vic), s 9(1)(c); Animal Welfare Act 1993 (Tas), s 8(1); Animal Welfare Act 2002 (WA), s 19(2)(e); Prevention of Cruelty to Animals 1979 (NSW, s 4(2); Animal Care and Protection Act 2001 (Qld), s 18(2)(a); Animal Welfare Act 1992 (ACT), s 8(1).

  27. 27.

    See, RSPCA Australia: http://www.rspca.org.au/campaigns/live-export; Animals Australia: http://www.banliveexport.com/facts/history-of-disasters.php; and Animals Australia: http://www.banliveexport.com/investigations/

  28. 28.

    See Animal Welfare Act 1985 (SA), s 13(3)(a); Prevention of Cruelty to Animals Act 1986 (Vic), s 9(1)(c); Animal Welfare Act 1993 (Tas), s 8(1); Animal Welfare Act 2002 (WA), s 19(2)(e); Prevention of Cruelty to Animals 1979 (NSW, s 4(2); Animal Care and Protection Act 2001 (Qld), s 18(2)(a); Animal Welfare Act 1992 (ACT), s 8(1).

  29. 29.

    For instance, a representative from the Department of Primary Industries and Regions sits on the national Animal Welfare Committee on behalf of South Australia.

  30. 30.

    Budgetary analysis undertaken by the author as part of PhD thesis due for submission in early 2015.

  31. 31.

    See for example, Jai Rowell MP commenting on the Prevention of Cruelty to Animals Amendment Bill 2012 in the NSW Legislative Council on 12 September 2012: “Animals that are mistreated are not as productive as those that are not and they reproduce much less. In simple terms, unhealthy and unhappy animals produce poor-quality meat and dairy products.”

  32. 32.

    See for instance, South Australia, Parliamentary Debates, Legislative Council, 27 March 2012, 669, discussing the role of the RSPCA in farm animal welfare law enforcement; and, NSW, Parliamentary Debates, Legislative Council, 12 September 2012, 15402, discussing the introduction of “Livestock Welfare Panels” to the Prevention of Cruelty to Animals Act 1979 (NSW).

  33. 33.

    For a more detailed explanation, see, McInerney (2004, pp. 18–20).

  34. 34.

    Examples include free-range and organic products, and other private accreditation schemes such as the RSPCA’s Approved Farming Scheme, see: http://www.rspca.org.au/what-we-do/working-farming-industry/approved-farming-scheme

  35. 35.

    Technological developments do have the potential to overcome this dilemma and create “win-win” solutions in which welfare can be improved without reducing productivity. However, these developments are currently context specific and do not have the wider cross species/management system application necessary to fundamentally alter the conflicting nature of the relationship between welfare and higher levels of productivity.

  36. 36.

    Personal correspondence with the author from RSPCA Australia staff member, 28 January 2013, and Glenys Oogjes, Executive Director, Animals Australia, 30 March 2012.

  37. 37.

    Such meetings were previously undertaken under the name of the Standing Council on Primary Industries (SCoPI). However, the Commonwealth Government recently announced that this Council would be abolished as part of its budgetary reforms. The Commonwealth Minister for Agriculture has since stated that jurisdictional agriculture ministers would continue to meet but on a more informal basis (Vidot 2013).

  38. 38.

    See CRC Australia: https://www.crc.gov.au/About-CRCs/Directory/Agriculture-Forestry-and-Fishing/Pages/default.aspx

  39. 39.

    See, Edge and Bailey (2010), noting that facilities under an approved QA scheme will be “deemed to comply in the first instance.”

  40. 40.

    Prevention of Cruelty to Animals Act 1979, s 8(4).

  41. 41.

    Prevention of Cruelty to Animals Act 1979, Part 2B.

  42. 42.

    Including the Office of the Comptroller of the Currency, The Federal Reserve, the Office of Thrift Supervision, the Federal Deposit Insurance Corporation, and the Securities and Exchange Commission.

  43. 43.

    The author has analysed these issues as part of a PhD thesis due for submission in 2015.

  44. 44.

    See for instance, Animal Welfare Act 1985 (SA), s 28.

  45. 45.

    See for instance, Animal Care and Protection Act 2001 (Qld), s 114.

  46. 46.

    See discussion in Sect. 10.6.3.

  47. 47.

    See for instance, Prevention of Cruelty to Animals Act 1979 (NSW), s 34B.

  48. 48.

    This is in combination of course with traditional barriers to public interest litigation. See, McEwen 2011.

  49. 49.

    See, South Australia, Parliamentary Debates, Legislative Council, 27 March 2012, 669; and Western Australia, Parliamentary Debates, Legislative Council, 24 October 2013, 5443c, each discussing proposals to abolish the RSPCA’s role in farm animal welfare law enforcement.

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Goodfellow, J. (2016). Regulatory Capture and the Welfare of Farm Animals in Australia. In: Cao, D., White, S. (eds) Animal Law and Welfare - International Perspectives. Ius Gentium: Comparative Perspectives on Law and Justice, vol 53. Springer, Cham. https://doi.org/10.1007/978-3-319-26818-7_10

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