Assessing the legitimacy of Australia s farm animal welfare regulatory framework

Transcription

1 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

2 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

3 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.

4 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.

5 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

6 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

7 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.

8 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?

9 Role of science Basic health and functioning Affective states Natural living Fraser et al, 1997

10 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 EC legislates to phase stalls out by 2012.

11 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.

12 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.

13 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.

14 Bobby Calf Time Off Feed Standard Case study: Bobby calf feed standard

15 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)

16 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.

17 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.

18 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.

19 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.

20 James Morgan

21 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.

22 References: Adams, Gary et al, 'Regulatory Capture: Managing the Risk' (Paper presented at the Australian Public Sector Anti-Corruption Conference, Sydney, 24 October 2007) 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 Baxter, Lawrence, 'Understanding Regulatory Capture: An Academic Perspective from the United States' in Stefano Pagliari (ed), Making Good Financial Regulation: Towards a Policy Response to Regulatory Capture (Grosvenor House Publishing Limited, 2012) 31 Bennett, Richard, 'Animal Welfare, Economics and Policy' in Michael Appleby (ed), Animal Welfare (CAB International, 1997) Biber, Eric, Too Many Things to Do: How to Deal With the Dysfunctions of Multiple-Goal Agencies (2009) 33 Harvard Environmental Law Review 1. Broom, Donald, 'Animal Welfare: Future Knowledge, Attitudes and Solutions' (Paper presented at the Australian Animal Welfare Strategy International Animal Welfare Conference, Gold Coast, 31 August 2008) data/assets/pdf_file/0003/ /26-donald-broom.pdf Broom, Donald, 'Indicators of Poor Welfare' (1986) 142 British Veterinary Journal 524

23 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) 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.