Assessing the legitimacy of
Australia’s farm animal welfare
regulatory framework
Monash Animal Law Workshop
6 November 2015
Jed Goodfellow
PhD Candidate, Macquarie Law School
Legitimacy theory
• ‘The acceptance of shared rule by a community as
appropriate and justified.’
• heavily tied to its acceptance within the social and
cultural context of the citizenry over which it governs.
• Input and output legitimacy
• Input legitimacy - concerns the procedural aspects of
the authority’s decision-making processes
Deliberative democracy
Citizens will perceive authorities – and the laws,
policies, decisions, and actions that derive from
them – as legitimate only ‘insofar as the
democratic process, as it is institutionally
organised and conducted, warrants the
presumption that outcomes are reasonable
products of a sufficiently inclusive deliberative
process.
Deliberative democracy
This deliberative process requires that ‘decisions
rest on “good arguments” made under
conditions in which free and equal autonomous
actors can challenge validity claims, seek a
reasoned communicative consensus about their
understandings of the situation and justifications
for norms guiding their action, and are open to
being persuaded.
Procedural fairness
Perceptions of procedural fairness shape
people’s views about the legitimacy of the
decision-making authority.
Fair procedures communicate respect and
value; unfair procedures communicate
disrespect, marginality or even exclusion from a
valued group.
Tom Tyler, 1994
Procedural fairness
deficiencies
1. Perception of bias due to degree of control
exerted by agricultural institutions
2. Actual bias evidenced by the nature of the
science relied upon by decision-makers
Standard-setting framework
- Controlled by:
- Livestock industries;
- Animal Health Australia;
- Departments of Agriculture;
- Agriculture ministers
- Set priorities, establish funding, determine
whether scientific research is necessary, and if
so, commission research, make the final
decisions.
Role of science in standardsetting
• All agree standards must be based on science
• But what science? Who funds, conducts,
interprets and applies science to standards?
Role of science
Basic health
and functioning
Affective
states
Natural
living
Fraser et al, 1997
Sows in stalls
• 1997 European Union Scientific Veterinary Committee
report – ‘since overall welfare appears to be better when
sows are not confined throughout gestation, sows should
preferably be kept in groups.’
• 2001 – EC legislates to phase stalls out by 2012.
Sows in stalls
• 2001 – Australian Animal Welfare Science Centre funded by
APL conduct a scientific literature review.
• Expressly adopted a ‘functional or homeostasis’ in preference
to the ‘feelings, preference and nature’ approach. Focuses on
measuring the magnitude of the animal’s biological responses
to its environment and the consequences of these responses
particularly for the animal’s ‘ability to grow, reproduce and
remain healthy.’
• Concluded that both individual and group housing can achieve
similar degrees of animal welfare. Therefore, no scientific
evidence to support phase out of stalls.
Sows in stalls
• 2006 review of the Code of Practice for Pigs referred to
the Barnett and Hemsworth study and stated that the
European law was based on ‘a question of personal
ethics, not science.’
• It went on to endorse the continued use of sow stalls for
the entire 16 weeks of pregnancy until 2017 after which
the time would reduce to 6 weeks.
Sows in stalls
•
Weaver and Morris critique (2004):
– ‘the authors relied solely on anatomical and physiological data such as cortisol
concentration, immune response, and production efficiency’ and that
‘underlying this is an assumption that welfare can be reduced to physiology.’
•
Australian Farm Institute (2015):
– The difference between the two reviews lay in the weight the respective teams
gave to “affective states” versus “biological functioning.” In the European
review, “the effect of fear and the behavioural and physiological consequence
of lack of control, especially frustration” were seen as a cause of suffering
which compromised welfare. In the Australian review, those facts were
acknowledged but were deemed not to impact welfare sufficiently as “the
(negative) effects on fitness variables growth, reproduction, injury and health”
were not noticeable.
Bobby Calf Time Off Feed Standard
Case study: Bobby calf feed standard
Bobby Calf Time Off Feed Standard
• Dairy Australia Study:
“The study measured a range of blood biochemical variables in the
calves, and the authors concluded that food withdrawal for up to 30
hours and transport for up to 12 hours had no detrimental effects
on the metabolism of healthy calves.
The study concluded that with correct feeding regimes and
transport protocols, welfare compromise in young, healthy calves
being transported for up to 12 hours can be minimised when they
are slaughtered within 30 hours of the start of transport.”
- Dairy Australia, Determining a suitable time off feed for bobby calf
transport under Australian conditions (2010)
Bobby Calf Time Off Feed Standard
• Regulatory Impact Statement:
The proposed standard amendment is for a maximum of 30 hours
without a liquid feed from the time of last feeding to the next feed or
slaughter of the calf.
The recommended maximum 30 hour TOF standard is supported by
Australian and New Zealand scientific research. This research
indicates that proposed standard is reasonable as an outer ‘legal‘ limit
for time off feed for bobby calves, when combined with appropriate calf
management and transport practices.
The ethical questions and value judgements of hypothetical animal
“hunger” and “discomfort” are beyond the scope of the RIS.
Bobby Calf Time Off Feed Standard
• Phillips and Petherick critique:
Calves began to feel hunger soon after three hours from their last feed
when plasma glucose began to decline. Hunger increased gradually for
next 15 hours and then rapidly over the final 12 hours.
Evidence of ‘muscular exertion (probably stepping movement to
counteract truck movement), fatigue and possible muscle damage.’
Study based on 60 healthy calves from single well-run farm where
operators were aware of the study and need to provide adequate
colostrum, good shelter accommodation and feed prior to the study.
Based on ideal conditions yet resulting standard intended to apply
across the board of calf transport.
Consequences for legitimacy
•
Standards are based on industry-funded research that prioritises
basic health and functioning conceptions of welfare.
•
Affective states domain of animal welfare, which is important to the
broader community, dismissed as ‘subjective’, ‘hypothetical’.
•
This exclusive approach to standard-setting is indicative of the
closed nature of the agriculture policy community.
•
It communicates disrespect and marginality to those falling outside
this privileged group.
Consequences for legitimacy
•
Resulting standards can not be said to be ‘reasonable products of a
sufficiently inclusive deliberative process’.
•
Participants in the process are not ‘free and equal autonomous
actors’.
•
The outcomes of the process do not reflect the broader citizenry’s
norms and values.
James Morgan
Reforms required
•
Must create a more independent, effective, inclusive, fair and
democratically legitimate approach!
•
Establish an independent scientific advisory council
–
–
•
Statutorily constituted;
Power to oversee allocation of public funds to Rural Research and Development
Corporations for animal welfare research.
Statutory conditions on the development of standards:
–
–
Must take into account contemporary science (advice of scientific advisory
council), and community expectations;
Must be satisfied standards meet certain criteria such as duty of care
requirements or other principles of animal welfare.
References:
•
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Anti-Corruption Conference, Sydney, 24 October 2007)
http://www.apsac.com.au/2011conference/pdf/papers07/day1_24oct07/StreamA2/RegulatoryCaptureManagin
gTheRisks_JohnBoyd.pdf
•
Australian Farm Institute, Designing Balanced and Effective Farm Animal Welfare Policies in Australia (2015)
•
Ayres, Ian and John Braithwaite, 'Tripartism: Regulatory Capture and Empowerment' (1991) 16(3) Law &
Social Inquiry 435
•
Baxter, Lawrence, '"Capture" in Financial Regulation: Can We Channel it Toward the Common Good?' (2011)
21 Cornell Journal of Law and Public Policy 175
•
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•
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•
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Harvard Environmental Law Review 1.
•
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Australian Animal Welfare Strategy International Animal Welfare Conference, Gold Coast, 31 August 2008)
http://www.daff.gov.au/__data/assets/pdf_file/0003/1046451/26-donald-broom.pdf
•
Broom, Donald, 'Indicators of Poor Welfare' (1986) 142 British Veterinary Journal 524
References:
•
David Fraser, D. Weary, E. Pajor, and B. Milligan, ‘A Scientific Conception of Animal Welfare that Reflects
Ethical Concerns’ (1997) 6 Animal Welfare 187
•
Kwak, James, 'Cultural Capture and the Financial Crisis' in Daniel Carpenter and David Moss (eds),
Preventing Regulatory Capture: Special Interest Influence and How to Limit It (Cambridge University Press,
2013)
•
McInerney, John, 'Animal Welfare, Economics and Policy: A Report on a Study Undertaken for the Farm and
Animal Health Economics Division of DEFRA' (2004)
www.archive.defra.gov.uk/evidence/economics/foodfarm/reports/documents/animalwelfare.pdf
•
Mitnick, Barry, The Political Economy of Regulation (Columbia University Press, 1980)
•
Tom Tyler, ‘Governing Amid Diversity: The Effect of Fair Decisionmaking Procedures on the Legitimacy of
Government’ (1994) 28:4 Law and Society Review 809
•
Wilkinson, Roger and Peter Parbery, ‘Victorians’ Attitudes to Farming’ (Department of Primary Industries,
Victoria, 2009)
•
Weaver and Michael Morris, ‘Science, Pigs, and Politics: A New Zealand Perspective on the Phase-Out of
Sow Stalls’ (2004) 17 Journal of Agricultural and Environmental Ethics 51.