Notes to Chapter 1: Preliminary Provisions
Section 1 Title, Commencement and Conflicting Provisions
Section 2 Objectives
Section 3 Support for Animal Welfare
Section 4 Scope of Application
Section 5 Definitions
Section 6 Fundamental Principles of Animal Welfare
As regards commencement, the Act could be brought into operation on a given date in the future, at a time which would permit the Competent Authority to begin implementation without delay. As the Act envisages progressive implementation this need not be a lengthy delay. However, where provisions will necessitate work and investment to amend animal keeping/husbandry/handling systems (such as animal housing/enclosures, fixtures/fittings or equipment), then a phase-in period can be stipulated in the relevant provision. Experience elsewhere has indicated that this must be stressed to be mandatory, with stringent express penalties for lack of compliance (otherwise animal industries will not use the period concerned to make the necessary adaptations).
Lays out the overall objectives of the Act. It is important that these objectives include the progressive development of humane attitudes, as well as protection of animal welfare.
Section 3 (1): Obliges the state with the mandate to promote and support animal welfare and the development of humane attitudes, ideologically as well as materially. This not only gives the government the responsibility for educating, informing and sensitising the public, but also for providing the financial resources needed to support the development of animal welfare and humane attitudes.
It is the nation’s as well as its society’s duty to instigate a change of attitude towards animal welfare concerns by informing and educating its people so every individual is able to take an ethical and moral decision on their relationship to their fellow creatures. The state is therefore bound to take steps to progressively counteract any deficiencies in its society’s knowledge, understanding and awareness which prevent the achievement of the protection of the lives and welfare of animals.
Section 3 (2): It is envisaged that this work would include
Supporting and (co-)funding research in areas such as: animal welfare (for example, humane forms of animal keeping), the application of indigenous knowledge to improve animal welfare (including use of traditional/adapted breeds), alternatives to animal experiments, and the development of humane attitudes.
The establishment of a strong and dynamic institutional relationship between animal welfare scientists and regulatory agencies is an important precursor to the development of good animal welfare legislation.
- Good Practice Development
The collection and dissemination of animal welfare good practice: pilot projects, case studies, research and cooperation (within and outside of the country) – thus facilitating the application of nationally appropriate best practice.
- Training and Capacity Building
Support and funding for training and capacity building (including the provision of guidance) on animal welfare where most needed, e.g.: policy officials, enforcement officers/police officers and extension workers.
Support (including technical support/expertise and political support) would also be needed for similar training and capacity building for other relevant stakeholders, such as NGOs (including both animal welfare organisations and others working on animal issues), veterinarians (and other animal health workers, such as para-vets), animal owners/keepers and animal industries (including farmers/farmers groups, traders, transporters, handlers, and slaughterhouses).
The introduction of programmes at schools, further and higher education bodies (such as: veterinary universities and agricultural colleges).
- Public Awareness
The introduction of communication and public awareness programmes including: events and actions, use of international days (for example, World Animal Day, World Wildlife Day and World Rabies Day) and use of the mass media.
- Animal Welfare Organisations/NGOs
Supporting and encouraging the establishment and effective running of NGOs engaging in animal welfare matters, i.e. animal welfare and protection organisations, such as SPCAs. Also, funding (or co-funding) of services provided in connection with this Animal Welfare Act.
In the context of financial support, consideration could be given to including a financial clause in this paragraph specifying the extent of the state’s obligations. Without such a specific provision, the state may not be able to limit or restrict the extent of its liability, or prioritise its engagement based on its assessment of need, relative urgency and importance, and the weighting of interests on a case-by-case basis. There will clearly be areas where the state should have primary responsibility; and others where the obligation should be passed to other stakeholders (for example, animal industries – where the costs incurred in complying with this Act should be part and parcel of their operating costs).
The aim of this Act is the protection of the lives and welfare of animals. Animal protection is aimed at safeguarding the animal and preserving it from harm, injury, and negative impacts and actions. Thus, by definition, animal protection constitutes and implements specifically targeted assistance for each and every animal. In principle, both the concepts of animal welfare and animal protection would incorporate the protection of life, and therefore the provisions of any animal welfare law should also embrace each animal as an individual regardless of the species, assumed possible inferiority as a species or the species value or detriment (for instance as a ‘pest’) for the human. Indeed, the major distinction between animal welfare and conservation is this very care for each individual animal, as opposed to the species.
For avoidance of doubt, we have defined an ‘animal’ as any mammal, bird, reptile, amphibian, fish, insect or other multi-cellular organism that is not a plant or fungi.
Whilst a number of contemporary animal welfare laws – such as the UK’s Animal Welfare Act 2006 and the Swiss Tierschutzgesetz (Animal Welfare Act) of 2005 – continue to restrict their range of application to vertebrates alone, others espouse the principle of comprehensive and unconditional protection of life – as can be found, for instance, in the current and exemplary German (Tierschutzgesetz 2006) and Austrian (Tierschutzgesetz 2005) animal welfare laws (although certain sections of these laws apply only to vertebrates (Germany), and vertebrates, cephalopods and decapods (Austria)). The New Zealand Act (Animal Welfare Act 1999 – reprint 1 January 2014) also has a wide definition of ‘animal'. A wider scope is favoured. Even if science has not yet demonstrated a comparable capability to suffer or feel pain in some non-vertebrates, they can experience harm and damage, their physical integrity can be impaired and their welfare could be detrimentally affected.
Another factor that is often considered in relation to the scope of an animal welfare law is whether this should cover animals living in the wild, as well as those in captivity. The inclusion of wild-living animals is favoured, as human actions and activities can affect the welfare of these animals as well as those directly under the custody or care of people.
The argument is sometimes advanced that wild animals living in wilderness areas should be left alone. Whilst we agree with this in principle, in practice the situation with wild animals is more complex. There are few truly wild habitats left in the world where animals can live their lives without being affected by human activities: Not only are animals’ habitats encroached by human expansion and their lives affected by human-caused factors such as climate change; but also their territories are often entered by humans, or criss-crossed by roads, railways, farms, power lines, fences, and even country borders. These factors are also causing more wild animals to voluntarily enter into areas of human habitation, where our lives become inextricably linked and entwined, and the way in which we deal with wild animal encounters directly affects their welfare – and sometimes their lives. Hence there is an ethical imperative to include these animals in the scope of the law: The question is not so much whether an animal is living in the wild or in the custody or care of people; but rather whether there is the possibility of human actions affecting the welfare of that individual animal. This is why the definition covers all animals regardless of the animal being domestic or wild.
Where the objective is to develop a prudent and morally responsible human-animal relationship on a compassionate level (in terms of principles, education and changing attitudes) and an ethically-based system of animal welfare, which is comprehensive and future-orientated, then the basic scope of legal protection for animals should be all-embracing and cover all animals indiscriminately. Thus, the decision for this Act is to cover all non-human animals, using a wide definition of ‘animal’. The decision to focus Chapters 5 and 6 (on enforcement and penalties) on sentient animals was based on reasons of practicality and the effective targeting of enforcement and prosecution resources. However, if this approach is followed, then the precautionary principle should always be applied - as science is showing that an increasing number of species of animals are sentient than was previously supposed.
In many legal orders it is common practice to give a catalogue of definitions to help with the application of the law and to avoid – as far as possible – any misinterpretations of the wording of the law by its users. These definitions serve as clarifications and often prove to be exceedingly valuable tools in the implementation and execution of an act. Some laws have very elaborate definitions which do not necessarily serve their intended purpose, particularly when they expound at great length on common place expressions and established terms. Preference should be given to specifying crucial essentials and substantive differences, especially when any further or different legal consequences are drawn from the distinctions: for instance, the classification of animals in certain groups such as ‘wild animals’, ‘farmed animals’ or ‘animals used for work’, ‘companion animals’ etc., or to describe in more detail a Competent Authority or the attributes of an Animal Welfare Inspector.
The list given here should not be seen as conclusive, but is just a proposal which can be contracted or expanded according to need, requirements and desire.
Section 5 Pt. 2: It is understood that ‘Animal Protection’ could be implemented by practical, legal or formal measures to prevent suffering and preserve liberties, interests and/or rights.
Section 5 Pt. 4: In regard to ‘Animal Shelter’, the definition specifically states that this should be operated by a charitable, non-profit animal welfare organisation, both in order to distinguish a shelter from a government/municipal facility and to prevent private enterprises from using this terminology to solicit donations for private animal collections.
Section 5 Pt. 28: The definition of veterinarian can be amended to suit the prevailing system, i.e. whether veterinarians are registered, certified or licensed (or indeed any other form of authorisation) to practice as a veterinarian.
The list is not comprehensive and could for example be broadened to also incorporate some more abstract and ambiguous terms like
- Dignity – Inherent worth of the animal that has to be respected when dealing with it. If any strain imposed on the animal cannot be justified by overriding interests, this constitutes a disregard for the animal’s dignity. Strain is deemed to be present in particular if pain, suffering or harm is inflicted on the animal, if it is exposed to anxiety or humiliation, if there is major interference with its appearance or its abilities or if it is excessively instrumentalised.
The term ‘dignity’ is used in the Swiss Animal Welfare Act (Tierschutzgesetz 2005).
The fundamental principles underlying this Act have been reiterated here in order to ensure that they are well understood and promulgated along with the law. Also, there is an obligation for these to be considered by every person using or applying the Act and by any supporting secondary legislation, i.e. regulations, as well as ‘Welfare Codes’ and standards. This specifically includes cases where the Act/auxiliary regulations [and, as appropriate, ‘Welfare Codes’, standards and guidance] are subject to interpretation.
We consider the principle of the 3Rs, which were first introduced in Russell and Burch’s 1959 book ‘The Principles of Humane Experimental Techniques’, to be ethically sound and practical to apply. As well as being internationally recognised, these are prominently highlighted as a guiding principle in European Union (EU) Directive 2010/63/EU on the protection of animals used for scientific purposes (see: For instance, Pt. (10), (11) and (13), and Articles 4 and 13 of Directive 2010/63/EU).
It is logical to extend the 3R principles to all other areas of commercial animal use (with appropriate minor textual amendments), particularly where there is any doubt that the welfare needs of the animals can be met. Indeed, they are already being applied in many areas. For example, as regards livestock production
- Reduction – ‘Eat Less Meat’ programmes, ‘Meat Free’ days (Mondays or Fridays) etc;
- Refinement – Introduction of free range and organic systems; and
- Replacement – The development of cultured meat and vegetarian meat replacements.
In all cases, replacement should be the ultimate goal.