Introductory Info
Date introduced: 31 July 2019
House: Senate
Portfolio: Agriculture
Commencement: The day after Royal Assent.
Purpose of
the Bill
The purpose of the Inspector-General of Live Animal
Exports Bill 2019 (the Bill) is to establish an independent Inspector-General
of Live Animal Exports, responsible for oversight of the Department of
Agriculture in its role as the regulator of the Australian live-stock export
industry.
Structure of
the Bill
The Bill has six Parts:
- Part
1 sets out preliminary matters including the statutory objects and relevant
definitions
- Part
2 establishes the Inspector-General of Live Animal Exports and sets out its
functions and powers
- Part
3 provides for the appointment of the Inspector-General and terms and
conditions of the office
- Part
4 contains provisions relating to the use and disclosure of information
- Part
5 provides for the enforcement of civil penalty provisions and
- Part
6 contains miscellaneous matters, including the power to make rules and a
reporting requirement.
Background
Regulation
of live animal exports
The regulation of live animal exports has long been a
source of contention, as numerous incidents involving live-stock deaths and
documented cruelty in destination countries have prompted debate, both about
Australia’s continued participation in the live-stock export trade as well as
the Department of Agriculture’s regulatory role.[1]
As the independent regulator, the Department is
responsible for enforcement of the regulatory scheme underpinning live animal
exports. There are two key Acts which create the broad legal framework, with
specific requirements for exporters largely contained in instruments made under
these Acts:
- the Australian Meat
and Live-stock Industry Act 1997 (AMLI Act) regulates the
licencing of exporters. It prohibits the export of meat or live-stock without a
licence, which may be subject to prescribed conditions, orders and directions[2]
and
- the Export Control Act
1982 regulates the export of prescribed goods (including live animals).
It provides authority for ‘authorised officers’ to carry out monitoring and
enforcement activities, and sets out penalties for a range of export offences.[3]
The Export Control
(Animals) Order 2004 (Animals Order) requires exporters of live-stock to
have in place an Exporter Supply Chain Assurance System (ESCAS), allowing them
to trace all animals through the supply chain and ensure that handling and
slaughter in the importing country conforms to international animal welfare
standards.[4]
In relation to the live-stock export process, the
Department’s monitoring role is primarily conducted through ESCAS auditing
requirements.[5]
The Department also has the power to monitor, review or audit the activities of
exporters, including in response to self-reported breaches and third party
complaints.[6]
There is a range of sanctions available, including criminal penalties, the
refusal or revoking of an export permit or licence, or imposition of conditions
on the export licence.[7]
From February 2012 to the time of writing, there have been
172 regulatory compliance investigations (either finalised or ongoing).[8]
Additionally, there have been 77 investigations of voyages with reportable
mortality events.[9]
However, the Department has been criticised for a perceived reluctance to
penalise exporters, having only suspended or cancelled export licences in a
small number of cases.[10]
As part of its 2016 inquiry on the Regulation of
Australian Agriculture, the Productivity Commission considered the
regulatory scheme for live animal exports.[11]
Its report highlights the tension between concerns from exporters as to the
cost and complexity of the ESCAS, and criticisms from animal welfare groups
regarding weaknesses in responding to non-compliance. The Commission concluded:
It is critical that the community has confidence in the
system used to regulate live exports. Incidents of mistreatment of animals in facilities
that are within the purview of the ESCAS and that are overseen by the
Australian livestock industry reduce community confidence in the trade and the
regulator’s effectiveness.[12]
The Productivity Commission’s report acknowledged concerns
about conflicts of interest in the arrangements for animal welfare regulation
in Australia, noting:
There is the potential for a conflict of interest to
arise where policy and regulatory objectives conflict. Animal welfare is likely
to be of secondary importance when the primary objective of the agency
responsible for livestock welfare is to promote a productive and profitable
agricultural sector.
... Representing the interests of the industry that a
government department is tasked with addressing is not of itself a concern, it
is consistent with its objective. However, issues can arise when that
department is also responsible for implementing a regulation that has broader
community interests that may conflict with those of the industry.[13]
Awassi
Express footage and response
The Explanatory Memorandum to the Bill notes that:
The need for increased assurance over the live-stock export
regulatory system was highlighted in the months following the release of
footage showing the conditions experienced by sheep and unacceptable mortality
rates during a voyage of the Awassi Express to the Middle East in August
2017.[14]
In April 2018, Sixty Minutes broadcast footage
obtained by Animals Australia from the Awassi Express en route to the
Middle East in August 2017, run by Perth exporter Emanuel Exports.[15]
The footage showed the extreme suffering of sheep on board the vessel, on which
approximately 2,400 sheep died from heat stress (3.76 per cent of the total
number on board).[16]
A mortality investigation by the Department, completed prior to the release of
the footage, had declined to take enforcement action against the exporter.[17]
On 9 April 2018, then Minister for Agriculture, David
Littleproud expressed concern that the Department’s mortality report ‘did not
accurately reflect the conditions seen in the vision on the ship’.[18]
He announced three measures in response:
- a
review into the ‘investigative capability, powers and culture’ of the Department
- a
whistleblower hotline, allowing anonymous reporting of wrongdoing and
- an
intention to increase the applicable penalties for exporters.
In relation to the review of the Department’s regulatory
capabilities, Minister Littleproud stated:
We need to make sure the regulator has the right tools,
training and culture to make sure exporters do the right thing. This requires
prosecutions and heavy penalties where breaches occur.[19]
Moss Review
The independent review into the Department’s regulatory
capability and culture was conducted by Philip Moss, and was tasked with making
recommendations on:
... any improvements to regulatory and investigative
performance to ensure persons involved in the live export trade are compliant
with regulations and maintain high standards of animal welfare, and the department
is a trusted regulator of the live animal exports trade.
The terms of reference for the review included,
relevantly, an assessment of: ‘appropriate structures within the Department to
ensure regulatory responsibilities are met, including whether an
Inspector-General of Livestock Exports would provide superior oversight of the
regulator’.[20]
The report from the Moss Review was publicly released in
late October 2018.[21]
The review found that the Department’s focus on trade facilitation and industry
self-regulation ‘appears to have had a negative impact [on] the department’s
culture as a regulator’, and that the Department’s regulatory capability was dispersed
across a number of groups, divisions and branches, with ‘the characteristics
necessary for effective regulation including skills, resources and technology... lacking
to the required extent’.[22]
The report made 31 recommendations, including the
re-establishment of an Animal Welfare Branch within the Department, to address
the finding that ‘sufficient focus within the department on animal welfare is
currently lacking’, and to ensure the Department places animal welfare ‘at the
centre of its regulatory activities relating to live animal exports’.[23]
It also recommended the establishment of an external entity to oversee the
Department in its regulatory role, and suggested that the model provided by the
Inspector-General of Biosecurity could be
applied. The review concluded:
The proposed Inspector-General of Live Animal Exports would:
- be independent of the department, be appointed by the Minister and would
review the performance of functions or exercise of powers by department staff
members in the regulation of live animal exports
-
in consultation with the department and key stakeholders, would develop
a review program which would be over and above the department’s internal audit
and performance programs
- provide reports to the Minister and make recommendations about the
regulatory framework and provide an assurance framework for stakeholders.[24]
The Government’s response to the Moss Review accepted the
report’s findings and announced an intention to implement its recommendations,
including the establishment of an Inspector-General of Live Animal Exports.
Minister Littleproud stated ‘[t]he live export industry needs a strong ‘cop on
the beat’ and the Department must reform as a capable, trusted and effective
regulator’.[25]
The current Bill reflects the features of the
Inspector-General role recommended by the Moss Review.
Interim Inspector-General
In March 2019, an Interim Inspector-General of Live Animal
Exports, Ross Carter, was appointed for twelve months ‘pending completion of
legislation to establish the statutory appointment’.[26]
The Interim Inspector-General provided an indicative three-year work program
to the Minister in June 2019—this is discussed further below, under Key Issues
and Provisions.
The Interim Inspector-General is currently conducting a
review on the effectiveness and efficiency of the Department’s requirements and
management of monitoring and reporting during livestock export voyages by sea.
Public submissions are due by 25 September 2019.[27]
Other oversight proposals
There have previously been a number of proposals to reform
the oversight of live animal exports.
Independent
Office of Animal Welfare
In its 2016 report, the Productivity Commission
recommended the establishment of an Australian Commission for Animal Welfare,
with responsibility for developing national standards and guidelines relating
to farmed animal welfare. It also recommended that this independent statutory
body play a role in live export regulation:
At a minimum, this role should involve reviewing the
performance of the ESCAS, including the performance, independence and
effectiveness of the auditing arrangements, and making recommendations for
reform... It should also review other aspects of the regulatory system for live
exports, including the Australian Standards for the Export of Livestock.
Although not a focus of analysis of this inquiry, the Commission notes concerns
raised about these standards, including with respect to the accreditation and
independence of veterinarians on board live export vessels.
... Regular, independent reviews will help to address any
perceived or actual conflict of interest in livestock export regulatory
arrangements, and ultimately help to further improve the welfare of Australian
live exports. It is important that the live export regulatory system is independently
reviewed irrespective of whether the Australian Government establishes an
independent organisation for farm animal welfare.[28]
The Australian Greens have previously introduced private
member’s Bills to establish an Independent Office of Animal Welfare.[29]
Under their proposal, the Office would be responsible for reviewing and
monitoring livestock export standards; preparing reports about a range of
animal welfare issues including live animal export; and reviewing the
activities of the Department in relation to the monitoring, enforcement and
effectiveness of the Commonwealth’s animal welfare laws.[30]
ALP proposal
for Inspector-General
In the lead-up to the 2013 Federal Election, the Rudd
Government announced its plan to establish an Independent Inspector-General of
Animal Welfare and Live Animal Exports, responsible for auditing and reviewing
the live animal export regulator across the supply chain, including its
investigation and compliance procedures.[31]
In June 2018, Shadow Minister for Agriculture, Fisheries and Forestry, Joel
Fitzgibbon introduced a private member’s Bill into the House of Representatives
aimed at establishing this independent office.[32]
The Inspector-General’s powers and functions under the private member’s Bill
were in largely similar terms to the present Bill. However, unlike the current
Bill, the Inspector-General’s review powers were not expressly limited to
live-stock exports but extended to exports of all ‘live animals’.[33]
The private member’s Bill lapsed at the dissolution of the House of
Representatives in April 2019.
The establishment of an Inspector-General for Animal
Welfare and Live Animal Exports was also part of the ALP’s ‘six point animal
welfare plan’ prior to the 2019 Election:
Labor will provide $1 million a year to establish the
Inspector-General of Animal Welfare as an independent statutory position
operating within the Department of Agriculture. The Inspector-General will be
responsible for advising on the protection of animals in all
Commonwealth-regulated activities and will report directly to the Minister of
the day on issues concerning live export, animal welfare standards and
guidelines. The Inspector-General will also work with the states and
territories to establish an independent Office of Animal Welfare to oversee animal
protection and welfare activities nationally.[34]
Committee
consideration
Selection of
Bills Committee
On 1 August 2019, the Senate Standing Committee for the
Selection of Bills deferred consideration of the Bill to its next meeting.[35]
Senate
Standing Committee for the Scrutiny of Bills
The Scrutiny of Bills Committee has not commented on the
Bill at the time of writing.
Policy
position of non-government parties/independents
The ALP has not stated its position on the Bill at the
time of writing. However, as discussed above, the establishment of an
independent Inspector-General for Animal Welfare and Live Animal Exports was
one of the ALP’s 2019 Election commitments.
The Australian Greens also have not stated whether they
support the current Bill but, as discussed above, have previously advocated for
the establishment of an independent Office of Animal Welfare to oversee live
exports. At the same time, in response to the Moss Review, Greens Animal
Welfare Spokesperson, Mehreen Faruqi stated:
While I welcome Mr Moss’s review and proposed changes, it
clearly shows the reality that a culture of tolerating animal cruelty is
completely entrenched. The shortcomings of the system encompass legislation,
regulation, capability and culture. The whole industry and its regulation are
based on money, not animal welfare.
... No amount of reviews or tinkering around the edges can get
around the fact that this is a trade in misery and is incompatible with animal
welfare. The live export industry is well beyond redemption.[36]
Similarly, independent MP, Andrew Wilkie described the Moss
Review’s recommendation for an independent Inspector-General as ‘welcome’, but
also stated:
... even if the Government implements these recommendations, it
is only a small improvement to a trade that is systemically cruel. The
Government can tweak around the edges all it likes, but the only way to stop
the cruelty is to stop the trade. There is simply no amount of regulation that
can make live export not cruel.[37]
Independent MP, Bob Katter does not appear to support the
establishment of an Independent Inspector-General, stating in response to the
proposal in November 2018: ‘I remain tenaciously opposed to any restrictions on
live exports’.[38]
No other minor parties or independents appear to have
commented on the Bill at the time of writing.
Position of
major interest groups
Livestock exporters and farmers have expressed support for
the Bill. The Australian Livestock Exporters’ Council (ALEC) stated:
An independent Inspector General of Live Animal Exports will
support the industry’s commitment to improved welfare practices of exported
animals.
“We have called for the introduction of an Inspector General
to oversee independence and cultural change in our industry, for both exporters
and the industry regulator”.[39]
The National Farmers’ Federation has also described the
legislation as a ‘positive move’, stating ‘the agriculture industry stands
ready to engage with the Inspector General as he commences his work program. It
is critical that we are all working together to ensure a culture of continuous,
evidence-based improvement’.[40]
Animal welfare groups do not appear to have commented on
the legislation at the time of writing. Following the release of the Moss
Review report, the RSPCA stated that the review had shown the ‘massive failings
of the regulatory framework’, and the:
... fundamental conflict within the Department of Agriculture
in terms of being a facilitator and promoter of the live sheep and cattle
trades, while at the same time having to regulate animal welfare standards.[41]
Financial
implications
The Explanatory Memorandum states that funding of $0.45
million for four years ($1.8 million in total) has been allocated for the
Inspector-General, and that funding commenced in 2018–19.[42]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[43]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights has not
commented on the Bill at the time of writing.
Key issues and
provisions
The objects of the Bill are set out in clause 3,
and are to:
- promote
continual improvements in the regulatory practice, performance and culture of
the Department in its role as the regulator of live-stock exports and
- provide
an additional layer of accountability and assurance over Australian live export
regulation.
Role of the
Inspector-General
Part 2 of the Bill establishes the
Inspector-General of Live Animal Exports and sets out its functions and powers.
As was recommended by the Moss Review, these functions and powers appear to
have been modelled on those of the Inspector-General of Biosecurity, as set out
in Part 6 of Chapter 10 of the Biosecurity Act
2015 (Cth).
Subclause 10(1) provides that the Inspector-General
may review the performance of functions, or exercise of powers, by live-stock
export officials in relation to the export of live-stock under the following
legislation:
- Part
2 of the AMLI Act, or an instrument made for the purposes of this Part
and
- the
Export Control Act, or an instrument made under that Act.
Part 2 of the AMLI Act provides for the regulation
of live-stock exports through the grant and cancellation of export licences and
a range of enforcement powers, including search and seizure powers. The Export
Control Act and the Export Control
(Animals) Order 2004 which is made under it, contain much more
detailed requirements for the various stages of the export process, including the
preparation of livestock for export, the accreditation of veterinarians, export
and health permits, approved export programs, the registration of premises and
the ESCAS.
A live-stock export official is defined as
any of the following:
- an
authorised officer within the meaning of Part 2 of the AMLI Act or the Export
Control Act
- an
accredited veterinarian within the meaning of the Export Control Act or
- the
Secretary or a delegate of the Secretary.[44]
Limits of
review power
Subclause 10(2) states that the Inspector-General
is not permitted to review ‘only a single performance of a function, or a
single exercise of a power, by a single live-stock export official’. The
Explanatory Memorandum states that this limitation:
... is to ensure that the scope of the review is focussed on
the effectiveness of the regulation of the live-stock export regulatory system
as a whole, not the performance of an individual. It is intended that reviews
will be high-level and may concern either the whole or specific parts of the
live-stock export regulatory system.[45]
The Inspector-General’s role, therefore, does not appear
to be aimed at reviewing decisions made about a particular matter, or the
handling of a particular situation, but looking at broader regulatory practices
and approaches and detecting systemic issues. This is reflected in the nature
of the reviews proposed in the three-year ‘indicative work plan’, developed by
the interim Inspector-General:
- a
review of the efficacy of on-board monitoring and reporting of animal welfare,
compliance and responsive actions during livestock export voyages
- a
review of the department’s processes and systems that support decisions
regarding livestock export licences and permits
- a
review of the department’s processes and systems that support decision making
regarding the ESCAS
- a
review of the processes through which the department reviews, develops and
determines the Australian Standards for the Export of Livestock (ASEL)
- a
review of department processes and systems that support responses to external
inquiries, reports, complaints, allegations, and incidents
- a
review of the department’s approach to managing risk
- an
assessment of the effectiveness of the department’s system of Approved Arrangements[46]
- a
review of the department’s establishment of an effective regulatory culture and
- a
review of the effectiveness of the department’s interaction and integration
with state and territory animal welfare regulation.[47]
The Bill is silent as to what may prompt a review—it does
not mention, for example, whether the Minister may request the
Inspector-General review a particular issue.
A note to subclause 10(2) states that the
Inspector-General’s role is to provide ‘accountability and assurance’ in relation
to Australia’s live-stock export regulatory systems through ‘independent
evaluation and verification of regulatory practices’. It further states that
the Inspector-General may make recommendations for overall system improvements.
Subclause 10(3) states that the Inspector-General
must publish a report on each review conducted.
Rules made by the Minister through a disallowable legislative
instrument may provide for or in relation to:
- the
process to be followed by the Inspector-General in conducting a review, and/or
- the
content of reports.[48]
Which live animals?
Although the name of the proposed office refers to ‘Live
Animal Exports’, clause 10 expressly limits the Inspector-General’s
review functions to live-stock exports. The definition of live-stock
in the Bill is the same as that in the AMLI Act, which defines it as
‘cattle, calves, sheep, lambs, goats or other animals prescribed for the
purposes of this definition’.[49]
Further animals currently prescribed as ‘live-stock’ are buffalos, camelids and
deer.[50]
This means the Inspector-General will not have the power
to review the Department’s regulation of the export of other live animals, such
as companion animals, horses or racing greyhounds.
Information-gathering
powers
Clause 11 provides the Inspector-General with the
power to require a person to:
- answer
questions or give information in writing, about information or documents
relevant to a review or
- produce
relevant documents to the Inspector-General.
The Inspector-General must provide a person with at least
14 days to respond to such a request.[51]
Failure to comply with a request may incur a maximum civil penalty of 240
penalty units, or $50,400.[52]
These powers cannot be used to require a foreign person or body outside
Australia to provide information or documents.[53]
Part 5 of the Bill creates civil penalties for
knowingly:
- giving
false or misleading information, or omitting any matter or thing without which
the information is misleading (clause 34) or
- giving
false or misleading documents (clause 35).
Both provisions attract a maximum penalty of 240 penalty
units, or $50,400. The provisions of Part 4 of the Regulatory Powers
(Standard Provisions) Act 2014 apply to the enforcement of any of the
civil penalty provisions under the Bill.[54]
Reporting
misconduct
Clause 37 provides that if before, during or after
conducting a review, the Inspector-General forms the opinion that a live-stock
export official has engaged in misconduct and that the evidence ‘is of
sufficient weight to justify the Inspector-General doing so’, they must report
the evidence to the Secretary, or in the case the relevant official is the
Secretary, to the Minister.
Terms of
appointment
Part 3 of the Bill contains administrative
provisions regarding the appointment of the Inspector-General. Clause 13
provides that the Inspector-General is to be appointed by the Minister by
written instrument, and can be appointed on a full-time or part-time basis. They
hold office for the period specified in the instrument of appointment, but this
cannot be longer than five years. While the Inspector-General can be
reappointed, they must not hold office for a total of more than ten years.[55]
Clause 22 sets out circumstances in which the Minister may terminate the
appointment, and include misbehaviour, incapacity, bankruptcy or extended
periods of absence.
The Bill provides that remuneration and leave entitlements
are to be determined by the Remuneration Tribunal.[56]
It also requires a full-time Inspector-General to obtain the Minister’s
approval before engaging in other paid work, and prohibits a part-time
Inspector-General from engaging in paid work which conflicts, or may conflict,
with the proper performance of duties of the office.[57]
Other terms and conditions of the office may be determined by the Minister.[58]
Information
management
Part 4 sets out the circumstances in which a person
may use or disclose information obtained under the Act (referred to as
‘protected information’). This includes an authorisation to use or disclose
information:
- in
performing functions or exercising powers under the Act[59]
- to
a court or tribunal, or to a coronial inquiry[60]
- for
the purposes of enforcement related activity conducted by an enforcement body
(as defined under the Privacy Act 1988)[61]
- if
required by another Australian law[62]
- to
a person to whom the information relates, or with the consent of the person to
whom the information relates[63]
and
- to
the person who provided the information.[64]
The Minister may make rules authorising the use or
disclosure of protected information for other purposes. These rules will be in
the form of a disallowable instrument.[65]
Clause 31 states that a person commits an offence
if:
- they
use or disclose protected information which has been obtained in the course, or
for the purposes of, performing functions or duties or exercising powers under
the Act and
- the
use or disclosure is not authorised by any of the provisions in Part 4
(outlined above) or by the rules.
Subclause 31(2) provides an exception where the
information is used or disclosed in good faith and in ‘purported compliance’
with a provision in Part 4 or with relevant rules. A defendant bears an
evidential burden in seeking to rely on this exception.
A maximum penalty of two years’ imprisonment and/or 120
penalty units applies to an offence under clause 31.
Reporting requirement
Clause 40 requires the Inspector-General to prepare
an annual report as soon as practicable after the end of each financial year,
on the activities of the office during the financial year. This report must
include the number of reviews started, and the number completed, during the
year.