Detailed Discussion of Australian Live Export Laws
- Jordan Sosnowski
- Animal Legal & Historical Center
- Publish Date: 08/2013
- Place of Publication: Michigan State University College of Law
While the Australian government maintains that ‘Australia leads the world in animal welfare practices’, footage and submissions recently made public from a veterinarian present on over 57 long haul sea voyages, tells a very different story for live export animals (see http://www.stoptac.org/index.php?mact=News,cntnt01,detail,0&cntnt01articleid=283&cntnt01returnid=68). Exporting live farm animals to overseas markets will always come with animal welfare concerns – the boat journey alone presents myriad dilemmas including overcrowding, disease, insufficient bedding as well as sewerage problems. Once in export countries, Australia’s animal welfare laws have no weight and animals are often slaughtered whilst fully conscious. Yet, there is no denying that the live export industry boosts the Australian economy, bringing in over $900 million per year as well as providing thousands of jobs. The issue of live export embodies the age old clash between ethics and economics.
Animal welfare considerations are taken into account in export legislation, but usually only to the extent that these concerns do not impinge too greatly upon economic factors. Despite this, members of the public still clearly care for the welfare of animals. The recent public furore over Australia’s live export regime demonstrates the shared aversion many people feel over the unnecessary suffering that is caused to animals as a result of the live export industry. The need to minimise this harm has prompted a number of legislative changes. This paper will critically evaluate the live export industry, the recent amendments and offer opinion in terms of opportunity for further reform.
A. The Live Export Industry Explained
Live export in Australia is a multi-million dollar industry. The industry exports animals each year to various countries, often Indonesia and the Middle East, the journeys often taking months. The long boat journey, coupled with the fact that stunning is not widely used in export countries has resulted in a number of undercover reports from animal rights organisations and calls for the industry to be banned.
All cattle and sheep killed in Australia must be stunned prior to slaughter. This effectively means that the animal is unconscious and therefore, insensitive to pain when its throat is cut. However, when animals are slaughtered for religious requirements, such as kosher or halal, abattoirs can apply to be made exempt from this general rule.
Despite this, most halal abattoirs in Australia do stun animals prior to slaughter, however they do so with a reversible stunning method, while conventional slaughter uses an irreversible stunning method. The reversible stunning method has been approved by many Islamic authorities and is now widely used in Australia. Unfortunately, it is not commonly used in the countries where Australian animals are exported to.
The Commonwealth department concerned with export and licences in Australia is the Department of Agriculture, Fisheries and Forestry (‘DAFF’). The main issue with the live export industry is that the DAFF has the interests of farmers and graziers in mind, as well as the amount of money the agricultural and export sector generates, rather than the welfare of animals. This creates a conflict of interest and in turn, undermines public confidence in the government.
II. REGULATING THE LIVE EXPORT INDUSTRY
The legislation governing the live export regime is complex, not least of all because there are numerous key actors, ranging from International and Commonwealth departments to industry bodies and organisations. This results in a complex and often confusing framework of regulation. As well, due to the large role that the industry bodies, the Meat & Livestock Industry Association (‘MLA’) and LiveCorp play, the validity of their methodology, research and marketing is questionable. As both these private companies serve the interests of producers and exporters to maintain and profit from the live export industry, their interest in animal welfare will necessarily be limited. Similarly, the independence of the DAFF is also dubious, as their main goal is to promote Australia’s agricultural industry.
Regulation of the live export industry is primarily supported by the Australian Meat and Live-stock Industry Act 1997 (Cth) (‘the Meat & Live-stock Act’) and the Export Control Act 1982 (Cth) (‘the Export Control Act’). There is also subordinate legislation such as:
- the Australian Meat and Live-stock Industry Regulations (Export Licensing) Regulations 1998 (Cth) (‘the Export Licence Regulations’);
- the Export Control (Orders) Regulations 1982 (Cth) (‘the Export Control Regulations’);
- State and Territory Animal Welfare Acts; and
- Model Codes of Practice (‘MCOP’) that are prescribed by industry bodies.
The objectives of the Export Control Act are to provide safe food for export. That is, the welfare of animals being exported is not an objective of the regulation, as it operates under the assumption that animals are ‘goods’.
In 2003, after the Cormo Express  live export incident in which it was found that newborn lambs and sick sheep were being disposed of by being thrown alive into large mincers,  the government responded by calling for a review of the regulatory framework. The Keniry Report  was the result of this review and was heavily critical on the self-regulatory regime that allowed the MLA and LiveCorp to govern whether producers were complying with export regulations.
Thus, new regulations, such as the Export Control (Animals) Order 2004 (Cth) (‘the Export Control Order’) and the Agriculture, Fisheries and Forestry Legislation Amendment (Export Control) Act 2004 (‘the Amendment’) were introduced in order to enforce some of the Keniry recommendations. The main recommendation from the Report was that the government step in and enforce the regulations, as opposed to the industry bodies.
This change has been adopted and the federal government is now in charge of the licensing and permit scheme. The Australian government then announced a position statement in 2006 and further updates to the regulations in 2011, in the form of the Australian Standards for the Export of Live-stock: Version 2.3 (2011) (‘the Standards’).
The DAFF’s current policy states that animal welfare is defined as ‘animals that are healthy, properly fed and comfortable and that efforts are made to improve their well-being and living conditions’. Despite this statement, the recent 4 Corners expose  confirmed what many of the public already feared – that the Standards had not significantly improved the welfare of animals and the industry is still fraught with difficulties.
A. Co-regulation and Self-Regulation
As the statutory provisions are set out by the government, it could be argued that the system is that of a co-regulatory scheme. Indeed, this is primarily what the recent reform aimed to achieve. However, as subordinate legislation operates to vest authority in industry bodies, the live export regime is still highly self-regulated. That is, while the Standards are prescribed by the government, they are drafted to reflect the industry MCOP that are formulated by companies such as the MLA and LiveCorp.
At an administrative level, the actual process of exporting live-stock by sea is quite complicated, with a number of licences and permits being issued. The first step for an exporter, is to apply for a licence under the Meat & Live-stock Act to export ‘prescribed goods’. This licence is granted by the Secretary of the DAFF and can be subject to specified conditions, so long as they are not inconsistent with the regulations. Once a licence holder, the exporter then has to apply to the Secretary for an export permit. The Secretary will make a determination about whether to grant a permit based upon the exporter’s compliance with licence conditions. In deciding whether to grant a licence and a permit, the Secretary must have regard to ‘industry policies’. This effectively means that broad industry policies such as the MCOP must be regarded by the Minister in making an evaluation about the decision to grant a licence or permit. (See DAFF "Exporter Supply Chain Assurance System (ESCAS)" available at http://www.daff.gov.au/biosecurity/export/live-animals/livestock/escas).
An exporter must also submit a Notice of Intention to Export (‘NOI’) and a Consignment Risk Management Plan (‘CRMP’). The NOI outlines the dates of transport, departure and arrival, the source and specific type of animal being exported, as well as where the animals will be housed until permission is given for loading. The CRMP is completed by the exporter and contains risk management plans associated with the proposed sea voyage such as food and water shortage and extreme weather contingency plans. The CRMP should also outline the relevant legislative requirements of the export under the Meat & Live-stock Act and the Standards, and how the exporter meets these. (See DAFF "Exporter Supply Chain Assurance System (ESCAS)" available at http://www.daff.gov.au/biosecurity/export/live-animals/livestock/escas).
One of the more recent developments in this process is the introduction of the Exporter Supply Chain Assurance System (‘ESCAS’). This process aims to ‘track’ animals from ‘the proposed export up to and including the point of slaughter’. While this reform was introduced to bring in a level of accountability to the system, bizarrely the ESCAS allows exporters to use the information from a previous export for the purposes of a proposed export:
2.42A Exporter supply chain assurance systems (ESCASs)
(3) However, an exporter may refer the Secretary to details contained in, or documents or information accompanying, an ESCAS that the exporter has given to the Secretary for the purposes of another proposed export.
It seems fundamentally inconsistent to introduce this initiative to ‘improve animal welfare standards in approved export supply chains’,  yet allow exporters to simply reiterate the information they provided from previous exports.
The Australian government has made efforts to ‘encourage the use of stunning’ by providing companies such as the MLA and LiveCorp with $5 million over 2 years to train exporters and raise awareness about the Approved Supply Chain Improvements Program (‘ASCIP’). Under the Standards, ‘live-stock industry organisations’ are charged with research and development in terms of animal welfare initiatives. However, again, this presents a significant conflict of interest, as these bodies also develop and manage the Quality Assurance Systems on behalf of the government. (See DAFF "Exporter Supply Chain Assurance System (ESCAS)" available at http://www.daff.gov.au/biosecurity/export/live-animals/livestock/escas).
In practice, an action that is consistent with a MCOP can operate as a defence to a charge of animal cruelty under State and Territory law. Similarly, as the industry bodies benefit from the sale of live animals and meat products, it is not in their economic interests to outline more humane standards for their upkeep, transportation and general welfare.
III. COMPLIANCE & ENFORCEMENT ISSUES
While some of the live export industry is self-regulatory as mentioned above, the reform has taken the shape of a co-regulatory scheme. While the government prescribes the overarching legislation that governs the administrative process concerning licences and permits, the subordinate legislation vests authority in the prescribed industry bodies and they in turn, inform the standard setting process.
In this way, the public trust is undermined because the government has placed the very industries that are responsible for the exporting, in charge of setting the standards they are to comply with. The regulator, the DAFF, and the regulatees, primarily the MLA and LiveCorp, are working together to advance the interests of the MLA and LiveCorp. This is because the more animals and meat sold, the stronger the agricultural sector becomes, thus the regulator and the regulatees are pursuing very similar objectives. As the public see the DAFF’s role as also encompassing animal welfare, as opposed to mere economic gain for agri-business, there is a fundamental conflict of interest within the live export regime.
While there may be compliance with the regulatory standards due to the fact that the industry bodies prescribe most of them, this does not necessarily mean that there is compliance with the collective goals of the live export regime. For example, the animal welfare policy propounded by the government in its recent Australian Animal Welfare Strategy, recognises animals as ‘sentient beings with intrinsic value’.  Similarly, ‘live-stock handlers have a responsibility for the humane handling and care of live-stock, especially during loading and disembarkation’.  However, the live export Standards also allow handlers to utilise electric prods to ‘assist loading’ and well as deprive cattle of water for up to 48 hours during transportation.
The evidence that has been witnessed as a result of the various Animals Australia investigations are enough to indicate that while the Standards may be being adhered to, they do not reflect community expectations of animal welfare. Similarly, the number of prosecutions brought against those who are non-compliant is minimal, as those who are in charge of reporting on the outcome of sea voyages are the exporters themselves. As a result, it is left up to the not-for-profit charity organisations to bring evidence to the government and the community’s attention when grave breaches of the Standards occur.
The Meat & Live-stock Act incorporates criminal sanctions as a means of enforcement. For example, section 54 states that:
Export of meat or live-stock without export licence etc.
(1) A person who is not the holder of a meat export licence must not export meat from Australia.
(2) A person who is not the holder of a live-stock export licence must not export live-stock from Australia.
(3) The holder of an export licence must not contravene a condition of the licence either intentionally or being reckless as to the condition.
Penalty: Imprisonment for 5 years.
This is quite a harsh sentence for contravening a licence condition or carrying out an activity without first obtaining a licence. However, a subsequent ‘Note’ to section 54 allows for a fine to be substituted by the court pursuant to subsection 4B(2) of the Crimes Act 1914 (Cth), instead of a term of imprisonment. As the majority of offenders would be corporations, it is submitted that a jail term is rarely meted out and a fine is by far the more common sanction.
For example, in the case of Emanuel Exports,  the Western Australian government initiated an animal cruelty prosecution against the company Emanuel Exports and its directors. This only occurred after Animals Australia had obtained a writ of mandamus and thus, forced the hand of the local government to investigate. The court found that State animal welfare legislation which the charges were based on, was inconsistent with the Commonwealth export licensing regime. Thus, due to section 109 of the Constitution, the State legislation did not operate to the extent of the inconsistency.
The upshot of this is that the export company and its directors essentially ‘walked’, even though they were initially charged with three different counts of animal cruelty. This is one of the only cases concerning cruelty charges and the live export process, and it demonstrates that enforcement of animal welfare standards is problematic. It even begs the question as to whether the State legislation concerning animal welfare is applicable in the context of the live export regime.
C. Evaluation of the legislation
The previous regime involving self-regulation primarily failed because the industry bodies prescribing the regulations had no incentive to put in stricter controls concerning animal welfare. The reform which introduced co-regulation, but in practice is largely self-regulation, has not solved this issue.
While the Standards are set by the DAFF, (which is a conflict of interest in itself), the Standards are drafted to reflect the MCOP that are prescribed by the industry. Thus, even though the government is the ultimate authority in terms of enforcing compliance with the Standards, the actual Standards are drafted by the very industries who do not have an interest in promoting animal welfare. Similarly, subsidies to fund animal welfare research are provided by the government to the MLA and LiveCorp and thus, allow the industry bodies to control the direction of the research and evidently, merely confirm the status quo.
In terms of effectiveness, it seems that the numerous rules and regulations governing the industry cause needless complexity and confusion. Their overlap in some instances, coupled with the obvious conflict of interest presented by the DAFF, illustrates that the current regime and the more recent reform is highly ineffective, at least in terms of animal welfare outcomes.
The live export regime is unfortunately fraught with difficulties and unintentional loop-holes. The issue previously canvassed of state animal welfare legislation being inconsistent with the federal export licensing regime, is one such example. Similarly, the effectiveness of the regulation is undermined, as a large amount of power is still vested in the industry bodies, despite the recommendations of the Keniry Report.
Given the recent halt of live export to Pakistan after a boat load of 21,000 sheep tested positive for salmonella and actinomyces, the effectiveness of the legislation has again been questioned.
IV. ANIMAL WELFARE CONCERNS
The recent evidence of animal suffering in the live export trade was recently broadcast to Australians via the media correspondence program, Four Corners. The footage used for the episode was obtained via under-cover surveillance camera, worn by an animal welfare activist whilst ‘touring’ eleven Indonesian abattoirs. This evidence was initially obtained to document both the treatment and the slaughter process of Australian cattle, however it also formed the basis of a scientific assessment led by the RSPCA.
The evidence demonstrated that not only were halal practices not being observed, the routine treatment of cattle breached both Australian welfare regulations and international welfare standards. The main issue from the footage is that in the majority of abattoirs, pre-stunning is not employed and thus, it takes many cuts to actually cause a large animal, such as a cow, to become unconscious. From the evidence obtained, the cattle on average experienced 11 cuts to the throat before being disabled. Similarly, other acts caused to restrain cattle, such as ankle slashing, eye-gouging, kicking and tail breaking were also evident from the footage. In one extreme case, a cow was cut an estimated 18 times, which resulted in extended consciousness. (See The Slaughter of Australian Cattle in Indonesia: An Observational Study, Dr. Bidda Jones, RSPCA Australia (2011), available at http://www.rspca.org.au/sites/default/files/website/Campaigns/Live-export/Cattle-to-Indonesia/The-Investigation/Live%20exports%20-%20scientific%20report.pdf).
The actual equipment utilised to restrain cattle for slaughter is provided to Indonesian abattoirs by industry bodies from Australia. However, this equipment seems to cause severe distress to cattle, as many slip and fall on the slanted floor of the metal boxes and break their legs, thus causing more anxiety and pain, even before slaughter. Animal welfare scientist and leading ‘slaughter expert’, Temple Grandin, has commented that the use of the restraint boxes ‘breaches every humane standard all around the world’ and is ‘absolutely atrocious and unacceptable’.  Similarly, lawyers and lobby groups such as the Barristers Animal Welfare Panel (BAWP) submitted a 25-page Submission to the Senate, calling for an end to the live export trade.  The public concern is substantial, with approximately 20,000 people protesting on the streets of Australia’s capital cities and 240,000 people signing petitions and contacting their parliamentarians to end the trade.
This response points to the conclusion that the harm caused by the live export trade is both significant in terms of the actual harm caused to the animals, and one that the public cares considerably about. Therefore, the recent failure of the legislative regime to adequately address this harm, has resulted in a lack of confidence in government enforcement mechanisms. In effect, by allowing this harm, the government is seen as failing in its role and thus, the legitimacy of government itself is threatened.
V. THE CASE FOR REFORM
The problem or social harm that exists as a result of the live export trade is twofold. Firstly, there is the suffering that arises as a result of the long boat journey to various overseas destinations and the anxiety animals experience upon reaching countries such as Indonesia, where pre-slaughter stunning is not compulsory and the actual slaughter process is long and particularly stressful.
Secondly, the DAFF, which is vested with the responsibility of setting regulatory standards, are naturally guided by economic imperatives rather than animal welfare concerns. The recent evidence of cruel treatment towards cattle in Indonesia demonstrates the public perception of a failure in the legislative regime. This in turn results in a growing disparity between community expectations of effective governance and the realities of live export regulation.
The problem of animal suffering as a result of the live export trade can, at least theoretically, be solved. One obvious solution is to stop the trade altogether and this has been proposed by a number of animal rights organisations as well as politicians.  In this way, the issue does have a definable and finite solution. While this proposal would result in a decrease in animal suffering, the trade itself would cease to exist and thus would come at a huge loss to the agricultural industry. Thus while a complete ban on the trade would serve the interests of animal welfare organisations and perhaps a large portion of the public, it would not be beneficial for all members of the industry.
The idea of slaughtering cattle in Australia and exporting the frozen meat has also been canvassed as a way to compensate for the loss to agri-business, were the trade to cease. If this option were pursued, the export trade would still exist, just the object of export would change from its current status as ‘live’. Therefore, sales of the actual cattle would still occur and the loss to the agricultural industries would be minimised. This would also stimulate the economy by generating more employment for Australians, as opposed to sending both animals and job opportunities overseas.
Another option could be to alleviate the stress caused to animals by ensuring that only a certain number of animals be transported, so as to minimise the harm caused from over-crowding. Unfortunately, this option does nothing to minimise the stress caused to animals on arrival, where the slaughter process is not always carried out in accordance with humane methods such as pre-slaughter stunning.
As the problem is divisible in terms of the harm caused on the voyage itself and the harm caused pre-slaughter, one option could also be to place mandatory standards on the method of slaughter to be employed in the countries that the animals are exported to. However, this option has the potential to offend religious and cultural beliefs, as well as very likely upset international political relations. Some attempts have been made more recently to create Memorandums of Understanding (‘MOU’) between Australia and export countries. The MOU’s attempt to regulate the treatment of Australian animals once they are overseas, however a recent incident in Bahrain demonstrates the non-binding nature of the government agreements.
Thus, while the problem may at first glance seem easy to resolve, there are various considerations that need to be taken into account that involve both economics and welfare. The harm itself is unfortunately chronic whilst the live export trade exists, as it is systemic in the industry and to some extent, fostered by the current legislative framework.
As can be seen from this evaluation, the recent change to a co-regulatory scheme has not benefited the live export regime in terms of advancing the interests of animal welfare. The current framework does not reflect the government’s animal welfare policy, nor does it match community expectations.
As mentioned, the entire live export regime could be disbanded. This would of course not benefit the economic interests of the industry but would largely improve animal welfare standards. This may in fact be the option that most accurately reflects community expectations. However, if the live export regime were disbanded, there is likely to be a long phase out period, as was the case with other animal welfare reforms such as the banning of sow crates in the European Union. Given the recent halt in the live export of sheep due to food-safety risks, this may indeed become a viable option for the Australian government.
Nonetheless, the legislation governing the live export regime remains in place for the time being. The fundamental problem with the system is the large role that the industry bodies play in the regulatory process. Another, closely related problem is the fact that the DAFF does not have the interests of animals at the forefront of their decision making, but rather the interests of furthering agri-business.
One solution that has been recently proposed is the development of an independent Office of Animal Welfare.  This Office would be completely separate from the Primary Industries Department and would comprise of industry representatives alongside independent scientists and animal welfare organisation representatives. This Office could also be responsible for setting Standards at a Commonwealth level, so that the live export licensing regime would not override animal welfare due to constitutionality issues.
As it stands, the current regulatory framework is not working. It is neither effective nor efficient. Whilst it may seem difficult to apply ethical concepts like animal welfare to an industry that is primarily based on profit, it is clear that ethical concerns are important to the community. While the Indonesian live export scandal did bring on change, this has not resulted in the attainment of animal welfare policy objectives. Earlier this year (2013), more footage emerged of animal abuse occurring in Egyptian abattoirs and the live export trade to Egypt was suspended. At the time of writing, the trade has not yet resumed.
With the recent appointment of a new DAFF Minister in July 2013, also came the announcement of an assessment of the effectiveness of the ESCAS system. Judging from the live export regime’s chequered history, the Egyptian ban may indeed be extended to other export countries and eventually, the industry phased out altogether.
 Department of Local Government and Regional Development v Emanuel Exports Magistrates Court of WA (Criminal Jurisdiction) 8 February 2008 (Crawford J).
 John Keniry et al, Department of Agriculture, Fisheries and Forestry, Live Export Review (2003) http://www.daff.gov.au/__data/assets/pdf_file/0008/146708/keniry_review_jan_04.pdf.
 ABC, ‘A Bloody Business’, Four Corners, 30 May 2011 (Sarah Ferguson) http://www.abc.net.au/4corners/content/2011/s3228880.htm.
 Department of Agriculture, Fisheries and Forestry, Approved Supply Chain Improvements Program (8 March 2012) http://www.daff.gov.au/animal-plant-health/welfare/export-trade/approved-supply-chain-improvements-program.
 Department of Agriculture, Fisheries and Forestry, Australian Animal Welfare Strategy (2008), see http://www.daff.gov.au/animal-plant-health/welfare/aaws.
 Department of Agriculture, Fisheries and Forestry, Australian Standards for Export of Live-stock: Version 2.3 (2011) s 6.6 http://www.daff.gov.au/animal-plant-health/welfare/export-trade/livestock-export-standards.
 Department of Local Government and Regional Development v Emanuel Exports Magistrates Court of WA (Criminal Jurisdiction) 8 February 2008 (Crawford J).
 Mark Dodd, ‘Lawyers Call for Live-stock Watchdog’, The Australian (online) 18 July 2011 http://www.theaustralian.com.au/national-affairs/lawyers-call-for-livestock-watchdog/story-fn59niix-1226096403380.