Live Animal Export Prohibition (Ending Cruelty) Bill 2017 [2017] AUSStaCSBSD 109 (29 March 2017)

• Live Animal Export Prohibition (Ending Cruelty) Bill 2017
• Incorporation of external material into the law 53

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Live Animal Export Prohibition (Ending Cruelty) Bill 2017

Purpose	This bill seeks to permanently ban the export of live animals for slaughter from 1 July 2020, and puts in place steps to ensure that, in the interim, live animals are treated humanely after they are exported
Sponsor	Mr Andrew Wilkie MP
Introduced	House of Representatives on 20 March 2017

1.77 This bill is substantially similar to bills that were introduced into the House of Representatives on 20 June 2011, 27 May 2013 and 24 February 2014. This Scrutiny Digest includes the committee's previous comments on those bills to the extent that they are applicable to this bill.

Incorporation of external material into the law ^[53]

1.78 Item 4 seeks to insert a new section 9N into the Export Control Act 1982. Proposed subsection 9N(4) provides that live-stock for slaughter may not be exported and a permission or other consent may not be granted under the regulations unless the Secretary is satisfied that the 'live‑stock will be treated satisfactorily in the country of destination'.

1.79 Proposed subsection 9N(5) provides that 'live-stock for slaughter will be treated satisfactorily in the country of destination' if they will be:

• kept in holding premises that comply with the 'Holding Standards';

• transported to slaughter, unloaded, kept in lairage and slaughtered in accordance with the 'OIE Guidelines'; and

• stunned using appropriate humane restraints immediately before slaughter.

1.80 Proposed subsection 9N(8) defines 'Holding Standards' to mean certain standards (with some modifications) drawn from version 2.3 of the Australian Standards for the Export of Livestock, published by the Department of Agriculture, Fisheries and Forestry. 'OIE Guidelines' is defined to mean the 'relevant sections of the current version of the Terrestrial Animal Health Code published by the OIE (the World Organisation for Animal Health)'.

1.81 At a general level, the committee will have scrutiny concerns where provisions in a bill allow the incorporation of legislative provisions by reference to other documents because such an approach:

• raises the prospect of changes being made to the law in the absence of parliamentary scrutiny;

• can create uncertainty in the law; and

• means that those obliged to obey the law may have inadequate access to its terms (in particular, the committee will be concerned where relevant information, including standards, accounting principles or industry databases, is not publicly available or is available only if a fee is paid).

1.82 In relation to the incorporation of the Holding Standards, the committee notes that the incorporation relates to a specific version of the Standards and therefore the incorporated material will not change over time. The committee also notes that the Standards are currently published on the website of the Department of Agriculture and Water Resources. However, it remains the case that persons interested in the law must access an external document in order to understand the full terms of the law, and there is no legislative requirement that the Standards be made readily and freely available on the internet.

1.83 In relation to the incorporation of the OIE Guidelines, the committee notes that it is not clear on the face of the legislation which sections of the Code are being incorporated into the law. In addition, it appears that the incorporated material will change over time as the Code is updated. The provision therefore introduces uncertainty into the law and raises the prospect of changes being made to the law in the absence of parliamentary scrutiny.

1.84 The issue of access to material incorporated into the law by reference to external documents such as Australian and international standards has been an issue of ongoing concern to Australian parliamentary scrutiny committees. Most recently, the Joint Standing Committee on Delegated Legislation of the Western Australian Parliament has published a detailed report on this issue: Access to Australian Standards Adopted in Delegated Legislation (June 2016). This report comprehensively outlines the significant scrutiny concerns associated with the incorporation of material by reference, particularly where the incorporated material is not freely available.

1.85 Noting the above comments, the committee requests the Member's advice as to whether the relevant sections of the Holding Standards and the OIE Guidelines can be included on the face of the bill (for example, as a Schedule to the Export Control Act 1982).

Pending the Member's reply, the committee draws Senators' attention to the provision, as it may be considered to insufficiently subject the exercise of legislative power to parliamentary scrutiny, in breach of principle 1(a)(v) of the committee's terms of reference.

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[53] Schedule 1, item 4, proposed subsections 9N(5) and (8) of the Export Control Act 1982.