New CTH Act Provides Independent Body of Review for Live Animal Exports

Tuesday 8 October 2019 @ 11.26 a.m. | Legal Research | Trade & Commerce

On 2 October 2019, the Inspector-General of Live Animal Exports Act 2019 (Cth) (‘the Act’) received assent as Act 81 of 2019. The entirety of the Act commenced on 3 October. However, since 18 March 2019 and throughout the parliamentary process, due to the pending completion of this legislation to secure statutory appointment, Mr Ross Carter has acted as Interim Inspector-General of Live Animal Exports.  Mr Carter was engaged to fill the role for a 12 month period and it is expected the role will be appointed by the Minister at some point prior to the expiry of that period.

The Inspector-General of Live Animal Exports Bill 2019 (Cth) (‘the Bill’) was initially introduced into Parliament on 31 July 2019 by the Assistant Minister for Forestry and Fisheries, Senator Jonathon Duniam, on behalf of Senator McKenzie, the Minister for Agriculture. The primary purpose of the Act is to establish the independent role of the Inspector-General of Live Animal Exports (Inspector-General) and outline the Inspector-General’s powers and responsibilities. The Act is intended to address community concerns regarding welfare of live-stock in the export supply chain by establishing an independent body of review for the regulatory practices of live animal exports in order to enhance accountability, assurance and transparency within the livestock industry.

The Bill was initially introduced in the Senate and was passed with two amendments proposed by Senator Mehreen Faruqi on behalf of the Australian Greens Party. The first amendment inserted a new subclause that required the Inspector-General to consider animal welfare in conducting a review and the second amendment required animal welfare to be explicitly referenced in the objects of the Act.

Administrative Provisions

Part 3 of the Act outlines the administrative provisions pertaining to the office of the Inspector-General. The Inspector-General is appointed by the Minister for a maximum term of office of 5 years. While the role may be fulfilled in a part-time capacity, other paid work must not conflict with proper performance of the duties of the Inspector-General and conflict of interests with other employment provides a justification for termination of the appointment by the Minister.

Powers of the Inspector-General

Part 2 Section 10 of the Act outlines the power of the Inspector-General to conduct review over the performance of functions by livestock export officials and their exercise of the powers relating to live animal export as provided for by the Export Control Act 1982 (Cth) and the Australian Meat and Live-stock Industry Act 1997 (Cth). Further, the Act prohibits the Inspector-General from reviewing a single livestock export official’s exercise of a particular power and notes that the Inspector-General’s role is primarily to identify broader structural and regulatory issues and to make recommendations for overall system improvements. Part 6 Section 3 of the Act enables the Inspector-General to report misconduct of livestock officials to the Secretary (or alternately the Minister, if the official in question is the Secretary) provided the Inspector-General is sufficiently satisfied that the official has engaged in serious misconduct. Further, Section 40 requires the publication of an annual report to the Minister by the Inspector-General regarding the process, results and effects of the reviews.

Section 11 of the Act allows the Inspector-General to require a person to answer questions or produce documents provided that the Inspector-General holds a reasonable belief that the person has information or documentation relevant for a review. The Inspector-General must provide written notice to the person and can only require a person to provide information 14 days after notification is given. The Act provides for a civil penalty provision for failure or refusal to comply with a written notification requiring the submission of relevant information and prescribes a civil penalty of 240 penalty units.

Information Management

The purposes for which authorisation for the use and disclosure of protected information are permitted are non-exhaustively listed in Part 4 of the Act:

  1. Performance of the Inspector-General’s functions and exercise of duties
  2. Purpose of proceedings (court, tribunal or coronial inquiry)
  3. Enforcement related activity
  4. Requirement by another Australian law

The Act also authorises the use and disclosure of protected information to the person to whom the information relates and to the person who provided the information. Section 31 defines the fault-based offence of the unauthorised use or disclosure of protected information which has a penalty of 2 years imprisonment, 120 penalty units or both. Sections 34 and 35 of Part 5 of the Act outline two civil penalty provisions relating to false and misleading information and documentation respectively. The Act states that a person who knowingly presents misleading information or omits relevant information is liable for a civil penalty of 240 units.

Support for the Act and Consideration of Ban on Live Animal Export

In his Second Reading Speech, Senator Jonathon Duniam made reference to the public outrage and community concerns for animal welfare raised after the release of footage showing the unacceptable mortality rates and poor conditions of livestock during a voyage of the Awassi Express to the Middle East in August 2017. The consequent investigation into livestock exports, known as the Review of the Regulatory Capability and Culture of the Department of Agriculture and Water Resources in the Regulation of Live Animal Exports (‘the Moss Review’), recommended the implementation of an independent external entity to oversee the Department of Agriculture and its performance of its role as the regulator of livestock imports.

Mr Duniam referred to “high risk to animal health and welfare” and “failures to comply with animal welfare standards” within the livestock export supply chain. Furthermore, the parliamentary debate surrounding the Act has initiated further discussions about an absolute ban on live animal export. In reference to banning live animal export, Mr Duniam stated:

The calls to ban livestock exports disregard the value of this trade to our farmers and others in rural and regional Australia. Banning, or even suspending, livestock exports would simply be a 'knee-jerk' reaction, and would be a poorly considered decision. (…) The government supports the farmers who rely on livestock exports, and the exporters who do the right thing.

In a media release, Senator Faruqi, referring to the amendments regarding animal welfare presented an opposing view stating:

Requiring the Inspector-General to consider animal welfare is an important win, but we know that live export is fundamentally incompatible with animal welfare. The only way to protect animals is to ban live exports (…) I will always be a voice for animals in Parliament.

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