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How is the live export trade regulated in Australia?

Exporting livestock for slaughter in foreign countries poses significant and unavoidable risks to animal welfare. These risks are inherent to the trade and include the stress and distress caused by loading ruminant grazing animals onto ships to be sent on long voyages and subjected to unfamiliar feed, extreme changes in climatic conditions, and unregulated handling and slaughter practices in jurisdictions that not only fail to monitor and enforce animal welfare laws, but fail to enact such laws.

The trade has been subject to multiple government and parliamentary reviews due to several major animal welfare incidents over the past decade. Additional regulatory requirements have been imposed following these reviews, but these have failed to prevent ongoing suffering and deaths. The current regulatory framework governing live exports is outlined below.

The regulatory framework

The trade is governed by a complex mix of Commonwealth legislative regimes falling under the Australian Meat and Livestock Industry Act 1997 (AMLI Act) and the Export Control Act 1982 (EC Act). Both of these regimes are administered by the Australian Government Department of Agriculture, Water and the Environment (DAWE). In addition to these laws, the Commonwealth Navigation Act 1912 and state-based animal welfare legislation also play a role in the regulation of the trade.

The AMLI Act provides a regime for the licensing of exporters. It prohibits the export of livestock without the appropriate licence. The Secretary of DAWE is empowered to make orders that impose certain conditions on export licences. The relevant order is the Australian Meat and Live-stock Industry (Standards) Order 2005. This Order requires licence holders to comply with the Australian Standards for the Export of Livestock (Version 2.3) 2011 (ASEL). From 1 November 2020, version 3 of the ASEL come into effect. The ASEL set out the requirements for the live export process and cover the following stages of the export chain:

  • planning the consignment
  • sourcing and on farm preparation of animals
  • land transportation
  • pre-embarkation assembly
  • vessel preparation and loading of the vessel
  • the sea voyage or flight.

The ASEL also impose reporting obligations on exporters. Exporters must notify DAWE if the mortality rate exceeds 1% for cattle or 2% for sheep. Following the high profile exposure of sheep suffering on-board live export vessels to the Middle East in 2018, the Australian Government reduced the reportable mortality rate for sheep to 1%. Since 2006 there have been at least 70 occasions where the reportable mortality level has been exceeded.

The EC Act provides a legislative framework for governing the export of ‘prescribed goods’ (including live animals) from Australia. It is responsible for approving individual consignments of animals. The administrative detail of this regime is given effect through subordinate instruments known as Export Control Orders. The primary order for the export of live animals is the Export Control (Animals) Order 2004 (EC (Animals) Order). Under the EC (Animals) Order, a person who wishes to export live animals must first be licensed under the AMLI Act, and must comply with any conditions imposed on that licence. The EC (Animals) Order outlines the process for approving consignments of livestock.

This requires exporters to have in place an ‘exporter supply chain assurance system’ (ESCAS). The ESCAS was recommended by the Farmer Review in 2011 following evidence of cruel animal handling and slaughter practices in Indonesia. The ESCAS is designed to monitor the movement of livestock in importing countries to ensure the animals can be traced from export to slaughter. However, breaches of ESCAS occur frequently. Since 2012 there have been at least 163 reported breaches; it is not known how many go unreported. As part of the ESCAS the exporter must submit an end of processing report and a performance audit report. It is very important to note that the ESCAS only covers animals destined for slaughter – it does not cover breeder animals, which includes exports of dairy cattle.

In 2018, the EC (Animals) Order was amended to empower the Secretary of DAWE to place departmental officers on-board live export vessels to monitor conditions of transport. The Australian Government currently requires these departmental observers on all live export vessels.

The live export industry is in the process of developing a quality assurance program referred to as the Livestock Global Assurance Program as a means of demonstrating compliance with the ESCAS. If implemented, this would transfer many of the existing compliance, reporting and investigation requirements from government to industry. The RSPCA is opposed to reducing Government oversight of the live export trade.

There are a range of possible sanctions available to DAWE for dealing with breaches of the ASEL and ESCAS under the AMLI Act and EC Act. These include criminal sanctions such as fines and imprisonment and administrative sanctions such as export licence suspensions or cancellation. In practice, however, DAWE rarely utilises these regulatory mechanisms and will instead simply opt to impose further conditions on the offending exporter during future consignments.

The Navigation Act also plays a role in regulating the live export trade through the certification of live export vessels. The Navigation Act, through Marine Orders, Part 43: Cargo and Cargo Handling – Livestock, specifies requirements for animal pen sizes, passage ways to enable inspection of animals, and the possession of humane destruction equipment. The Marine Orders also impose reporting obligations regarding mortality rates on the ship’s master.

Finally, as much of the live export process occurs within state jurisdictions, state-based animal welfare law also applies to the trade. The loading and transportation of unfit animals, as well as the inappropriate handling and treatment of animals during any stage of the live export process may be met with criminal prosecution under state welfare law.

Concerns with the regulatory framework

Despite the comprehensive nature of the regulatory framework there remain a number of fundamental concerns. These are outlined below:

  1. It is not possible to ‘regulate out’ risks that are inherent to the trade. No amount of government regulation can overcome the inevitable welfare issues associated with the stress of prolonged transportation, changes in climatic conditions, and uncontrollable handling and slaughter practices in foreign jurisdictions.
  2. Stocking densities on-board vessels are too high and do not allow animals to lie down at the same time nor easily access food and water.
  3. There is no requirement for animals in foreign jurisdictions to be stunned before slaughter.
  4. The regulatory framework is fundamentally reactive in nature. While the ESCAS is a welcomed improvement, it operates primarily to monitor and detect breaches, not to prevent them. Detecting cruelty after it has occurred is of little benefit to the animals affected.
  5. The ASEL and ESCAS take the form of licence conditions rather than legislative provisions. This renders any requirement for compliance with the ASEL and ESCAS vulnerable to the discretion of relevant DAWE officers. A breach of the ASEL or ESCAS is not an offence of itself but a breach of a licence condition, which is ultimately left to DAWE to decide whether any action should be taken in response. If the ASEL or ESCAS were legislated any breach would constitute an offence of itself.
  6. There are fundamental limitations to any effort by the Australian Government to control the conditions of animal handling and slaughter in foreign jurisdictions.
  7. Accountability mechanisms, effected through the various reporting obligations under the ASEL and ESCAS, lack independence. Veterinarians operating under the ASEL and the independent auditors under the ESCAS are engaged and compensated directly by the exporter. The Farmer Review itself acknowledged incidents of undue influence being exerted by exporters over accredited vets but failed to recommend a change to the way their services are engaged.
  8. Sanctions for breaches of the ASEL and ESCAS have to-date been manifestly inadequate and have failed to act as a sufficient deterrent to neglecting animal welfare responsibilities.

These problems are fundamental to the regulatory framework and demonstrate the futility of trying to ensure acceptable animal welfare standards within the live export trade. This is why RSPCA Australia believes the live export trade is profoundly unethical and calls upon the Australian Government to commit to an ordered phase out of the trade.

If you would like to take action on this issue, please visit our live export campaign pages.

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Updated on May 29, 2020
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