Live Animal Export Prohibition (Ending Cruelty) Bill 2017 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 149 (10 May 2017)

• Live Animal Export Prohibition (Ending Cruelty) Bill 2017
• Incorporation of external material into the law 46

---

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
Bill status	Before House of Representatives
Scrutiny principle	Standing Order 24(1)(a)

2.121 The committee dealt with this bill in Scrutiny Digest No. 4 of 2017. The Member responded to the committee's comments in a letter dated 31 March 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Member's response followed by the committee's comments on the response. A copy of the letter is at Appendix 2.

Incorporation of external material into the law ^[46]

Initial scrutiny – extract

2.122 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'.

2.123 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.

2.124 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)'.

2.125 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).

2.126 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.

2.127 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.

2.128 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.

2.129 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).

Member's response

2.130 The Member advised:

If it would assist with achieving the intent of this bill, the relevant sections of the Holding Standards and the OIE Guidelines could be included as a schedule or otherwise incorporated into the legislation.

Committee comment

2.131 The committee thanks the Member for this response. The committee notes the Member's advice that the relevant sections could be included as a schedule or incorporated into the legislation. However, the committee is unsure whether this constitutes a commitment by the Member to amend the legislation accordingly.

2.132 The committee will consider any amendments that may be made to the bill in a future Scrutiny Digest.

---

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