Notes to Chapter 5: Implementation and Enforcement Provisions
Section 28 Authorities
Section 29 Authorisations
Section 30 Nature of Enforcement
Section 31 Powers of Enforcement Bodies
Section 32 Improvement Notes
Section 33 Duty to Alert and Report Offences and Duty to File a Criminal Complaint
Section 34 Charges and Fees
Section 35 Animal Welfare Committee
Section 36 Animal Welfare Ombudsman
Section 37 Animal Welfare and Protection Organisations/Humane Societies
Section 38 Animal Shelters, Animal Sanctuaries and Wildlife Rehabilitation Centres
Section 39 Veterinarians and Para-Veterinarians
Section 40 Animal Welfare Research
Section 41 Consumer Information
Section 42 Animal Welfare Measurement and Impact Assessment
Section 28 (1): The relevant Ministry at central government level should be given overall responsibility for the policy and administration of this Act. This will enable it to co-ordinate all enforcement role players; and to provide overall responsibility for the mandate. There is discussion/advice about the decision on where to site the mandate above in IV. Proposed New Measures for Consideration, Competent Authority.
Section 28 (2): This provision enables the Competent Authority to use the expertise of the Veterinary Services in drafting or co-ordinating regulations [supplemented as necessary by ‘Welfare Codes, standards and guidance’] or instructions and guidance of a technical nature. This is to ensure the full use of their expertise; but is in no way meant to over-ride the need to fully involve the Animal Welfare Committee, and to take account of its advice.
Section 28 (3): If the humane ethic is to be instilled in all areas where humans have dealings with animals, then animal welfare inspection and education should be made a duty for all authorities dealing with animals, as well as being a police matter.
This provision introduces a ‘duty to enforce’ the Act and any secondary legislation made under it for all relevant government bodies. It is recognised that some of these bodies will need to build expertise in animal welfare matters; and this capacity building will be the responsibility of the Competent Authority. However, targeted enforcement instructions and guidance notes (for specific areas of animal use/activity) will assist in this process.
Section 28 (4): The organs of public security/police officers have a clear duty to enforce this Act. This means that they will need to proactively include this in their functions and duties, rather than solely acting on the direct request of the Competent Authority. As with (3) above, it is recognised that organs of the public security/police will need to build expertise in animal welfare matters; and this capacity building will be the responsibility of the Competent Authority.
Section 28 (5): This provision provides a duty to enforce for lower tiers of government (for municipalities and, where appropriate, for regional governments – such as provinces or states). This is for the avoidance of doubt – e.g. to avoid any cases where regional or local government denies any mandate or responsibility for animal welfare, because this is deemed to be for the Competent Authority.
Section 28 (7): This provision enables the Competent Authority to appoint additional Animal Welfare Inspectors. This has proven to be a useful adjunct to enforcement by officials in cases where countries find themselves lacking in enforcement ability or resources. The most usual source of these additional Animal Welfare Inspectors is from within animal welfare organisations (where much of the animal welfare expertise resides). However, the optimum situation is when resources are made available for comprehensive official supervision; with additional checks permitted by representatives from animal welfare organisations.
In all cases where Animal Welfare Inspectors are appointed, they need to be granted the powers necessary to carry out the task, backed up by official identification and warrants.
Section 28 (8): A system of training and examination/interview will have to be established by the Competent Authority to ensure that only adequately trained and experienced professionals – with appropriate personal qualities and motivations – are granted a license to act as Animal Welfare Inspectors. A system of licensing has been suggested for Animal Welfare Inspectors. However, it is possible to amend this to another form of authorisation (e.g. registration or certification), if appropriate to the system of the jurisdiction.
Section 28 (9): The Competent Authority has the duty to monitor and enforce the proper compliance with the subject Act and all administrative decisions based on it. To meet this obligation the authority has the responsibility to ensure that competent officers/Animal Welfare Inspectors for the execution of this Act are engaged (of sufficient number to ensure regular and systematic monitoring). All of these officers/Animal Welfare Inspectors – whether from central or local government, or additional Animal Welfare Inspectors recruited from outside government – should not only possess the necessary professional qualifications, expertise and technical skills but also the desirable personal commitment and qualities (including compassion and empathy). An important part of the remit of these officers/Animal Welfare Inspectors will lie in areas which prevent animal welfare problems, such as: education, information and advice, particularly as concerns proper animal keeping and care. There will also be an imperative for the oversight of enforcement and inspection activities to ensure the quantity and quality of inspections. This should include a reporting system and inspection audits.
As was explained in Part 1, IV. Proposed New Measures for Consideration, Content of the Law, this Act is only intended as framework legislation, establishing broad principles. The Act then authorises the Minister responsible, the Ministry or the Competent Authority to adopt any regulations [and establish, as appropriate, ‘Welfare Codes’, standards and guidance] needed to elaborate the concrete details for the implementation of these principles. This accords with the right and proper delineation between Parliament’s governance function and Government’s responsibility for implementation (avoiding a lengthy and over-technical Act for Parliamentary consideration, and facilitating subsequent amendments by the Executive based on experience gained and advancing scientific knowledge and the changing values and expectations of society).
A modern Animal Welfare Act lays down certain fundamental provisions to ensure the well-being of the individual animal. Where these cannot be met in certain areas of animal use, then prohibitions can be included in the Act. However, in other areas, concerns may exist over the ability to protect the welfare of animals, but there is not yet a consensus in favour of a prohibition. In these cases, a system of authorisation (based on licensing) can provide a framework which
- Can prevent the expansion of types of animal use and systems which are suspected of adversely affecting animal welfare;
- Provides a scheme for elaborating and notifying detailed requirements designed to protect the welfare of animals;
- Enables such requirements to be specifically tailored to each use and system (such as a zoo/aquaria, animal shelter, wildlife rehabilitation centre, breeding establishment, pet shop, farm, slaughterhouse etc.), and each species (i.e. housing and care of animals based on species-specific needs);
- Enables the elaboration of detailed requirements covering the professional, technical and personal skills and experience of persons working in these areas;
- Raises knowledge and awareness of animal owners, keepers and users;
- Puts animal owners, keepers and users on notice, given the possibility of losing their licence or even ownership for certain infringements;
- Enables and facilitates the elaboration of provisions on enforcement, such as: inspections, powers of entry, access to animal keeping facilities, record keeping and reporting requirements; and
- Provides a feed-back and reporting system, which will facilitate regular review and reappraisal (in some cases leading to subsequent prohibitions; and in others to tightened requirements and enhanced enforcement).
This approach equates with the legal concept of ‘proportionality’, whereby the least onerous measures should always be adopted (when faced with a choice of approaches).
The list provided in Section 29 (1) is a non-exhaustive enumeration of activities which are subject to approval from the authorities; but there should be comprehensive discussion and consultation on which of these activities should be included in each country. Indeed, some countries would have different types of activities which need to be covered, so this can only be considered on a country-by-country basis. In such deliberations, prominence should be given to the inclusion of areas where exploitation and abuse is more likely to warrant additional protection. Authorisation should also be required where surveillance or monitoring is deemed necessary (for example, to determine whether any use has to be prohibited). In general, the aim should be to cover as many activities of keeping or breeding animals as possible, because the authorisation system provides a helpful framework for the authorities to establish and notify relevant requirements (with regular updates as needed), and to carry out effective enforcement.
Where the authorisation system or other feedback identifies a specific animal welfare problem which needs to be dealt with, consideration would have to be given as to whether this could be tackled though administrative procedures (for example, connected to the authorisation system), through the introduction of new implementing regulations [supplemented as necessary by ‘Welfare Codes’, standards and guidance], or through a combination of the two.
For example, in the case of a stray dog control problem,
- The introduction of a compulsory dog license scheme (when overpopulation and straying become a real problem);
- Measures to promote neutering (such as a graded rate of dog license fee, depending on whether a dog has been neutered or not);
- Compulsory marking/identification of dogs (and cats) for the purpose of enforcement, and repatriating runaway animals;
- Compulsory vaccination for problematic and prevalent diseases; and
- Control over breeders and traders of companion animals/dogs.
To some extent, countries may decide that they are unable to cope with the administrative requirements for an extensive system of authorisations. This would be regrettable, for the reasons given above. In such cases, it is strongly recommended that an authorisation system is at least brought into effect for the areas of animal use with the highest welfare problems or the lowest level of ethical justification. Thus the system can be trialled, inspections carried out, and an informed decision taken as to whether to prohibit the uses in question. Then, once the Competent Authority is familiar with an authorisation system and able to administer this effectively, it is hoped that it could subsequently be extended to other areas of animal use.
Consideration could be given to levying a licensing fee for the authorisation of any commercial establishment or activity using animals (breeding, keeping, using, transporting or trading), which should then be considered an animal welfare tax and retained in the budget for animal welfare activities. No fees/animal welfare taxes should be levied for non-profit and voluntary activities for the benefit of animal welfare.
The Competent Authority will need to design an enforcement programme, based on a combination of these approaches. The aim should be to maximise the use of current supervision activities involving animals, by always including animal welfare inspections in these. For other activities involving animals, a proactive enforcement regime will need to be determined. In general, more resources should be directed towards prevention work and areas where there are prohibitions or controls (for example, authorisation requirements), as these have been implemented for good reasons.
These powers shall be granted to all enforcement bodies, including appointed Animal Welfare Inspectors. This enables these officers to fulfil their enforcement duties effectively. However, the granting of such powers underlines the importance of authorising only competent and suitable professionals.
Section 31 (1): The bodies responsible for enforcement have the right to enter and inspect any premises or means of transportation regardless of whether this is in relation to a commercial animal keeping/use activity or in relation to private animal keeping. This is especially the case when there is suspicion of an infringement of this Act.
Section 31 (4): Wide-ranging powers are suggested to facilitate effective enforcement. However, these will need to be checked locally, as in some jurisdictions reasonable notice or a court order may be constitutionally required absent exigent circumstances. Also, consideration may be given to restricting power of access to private dwellings, possibly requiring a court order to enter in cases where there is reason to suspect a breach of the subject Act or any legislation made under it.
Where veterinary support is needed, the Competent Authority should have a list of authorised veterinarians with relevant skills and experience, including species-specific experts.
Section 31 (5): The provisions of Section 18 (1) and (2) with regard to lost, abandoned or confiscated animals apply accordingly to an animal which has been relieved or seized from its owner/keeper as per this Section.
In more advanced animal welfare legislation, emphasis is given to the role of education and awareness in enforcement. An important part of an Animal Welfare Inspector’s job is to generate awareness and to inform the public about proper animal keeping and care. Thus, the preference is for prevention (wherever feasible), as opposed to focussing on sanctions and punishments. This idea is at the core of this measure of an improvement notice.
Improvement notices can be given at the discretion of the enforcement officer/Animal Welfare Inspector in cases where he/she feels that an educational approach is appropriate. This action is recommended in cases where any omission or contravention has been carried out through lack of knowledge or awareness (rather than intentionally), and the enforcement officer/Animal Welfare Inspector feels that there will be no recurrence. However, it should be left to the judgement of the individual enforcement officer/Animal Welfare Inspector whether to issue an improvement notice or to implement prosecution proceedings without any further delay.
Therefore the Animal Welfare Inspector has the option to grant a culprit a period of grace in which to rectify the problem, remedy the defects, and comply with the provisions of the Act.
Improvement notices can be used for defects found to vehicles transporting animals and animal keeping systems, as well as for aspects of animal care.
Section 33 (1): This regulation is addressed to ‘anybody’, and thus provides a duty for all people (whether working with animals or not, including the general public) to report any suspicions of animal mistreatment, cruelty or neglect to the authorities. It is recognised that this may bring negative, as well as positive, benefits – as it may deter some people from seeking medical assistance for their injured animal. However, on balance, such a provision is thought to be favourable.
The authorities are not always in a position to easily discover breaches of the law, and so additional intelligence can be helpful. The aim is not so much reprisal, as assistance for the animal which suffers as well as expert support, advice and help for the keeper by the Competent Authority.
Section 33 (3): The Competent Authority will need to carry out education and awareness activities to encourage citizens to note and report any animal welfare infringements. Providing media feedback on investigations into such complaints will assist to spread the message that public participation is useful and constructive.
Section 33 (4) and (5): The Competent Authority has the duty to follow up on all alerts and reports, and is obligated to file a criminal complaint when a violation according to Section 43 (1) has been committed intentionally.
The enforcement of the subject Act would in general be free of charge. However, the Minister, the Ministry or the Competent Authority should be entitled to make provisions for the collection of fees or charges in connection with any appropriate and indicated administrative procedures under the Act and subordinate regulations – for example to cover the costs of certain administrative measures such as: authorisations, licenses, permits, certificates, registrations etc., supervision, control and special services. These dues could help with the expenses involved in the execution of this law. It is good practice to collect such dues in a dedicated account, to ensure that they are used for the animal welfare purposes for which they are collected (as opposed to being placed into general government coffers). No costs or charges should be levied in respect of non-profit organisations, or individuals who are carrying out voluntary activities which are deemed to be in the public interest.
As already mentioned above in IV. Proposed New Measures for Consideration, Involved Parties, an expert Animal Welfare (and Ethics) Committee is needed for a number of purposes. In addition to providing support and counsel to the authorities on a regular basis, these include assisting the government to compile legislation (and enforcement guidance) and to continuously monitor, review and evaluate the existing status and state of animal welfare issues. Expert advice to the government/authorities would include aspects such as: animal care and protection, ethical problems, scientific and legal developments, and practical enforcement issues. Thus, the committee would be charged with keeping abreast of all animal welfare advances, and making recommendations for any policy and enforcement changes needed to take account of these. The Committee would also have a specific duty to ensure that the various agencies in charge of implementing and executing animal welfare laws and provisions are able to effectively carry out their remit.
Section 35 (1): This will include, but not be restricted to, the Animal Welfare Committee compiling a list of traps and catching devices which are authorised, as well as defining which poisons are allowable in which circumstances (positive lists).
Section 35 (2): It is important that members of the Committee are appointed on a personal basis, so they can always put animal welfare interests first, regardless of their official position or role. In an Animal Welfare Committee, the primary duty should always be to the welfare of animals. Thus, members should be selected based on their personal expertise, experience and sympathy to animal welfare. Ethical training is considered necessary to ensure that each member is able to weigh the different ethical perspectives – which can be complex in animal welfare. Issue-related Sub-Committees have been included here in order to ensure appropriate expertise and consideration: This avoids the situation where every Committee member has to be involved in the minutiae of every issue.
Section 35 (3): The Committee must be granted free and full access to all government information and statistics (and premises for the purpose of cross-checking), and at the same time it has to be ensured that it is in a position to publish critical and/or controversial reports or statements when required (including minority reports). An annual report is not only a record of its work during the year, but also a permanent record of its recommendations to government and the status of governments’ response to these (including any that have not yet been actioned). There must always be openness and transparency in its work.
This provision for the appointment of an Animal Welfare Ombudsman provides both an independent arbiter for animal welfare issues, and enhanced legal protection for animals. [NB. ‘Ombudsman’ is a known concept and term, and is used in this Act to cover both male and female incumbents of the post.] The provision of legal representation for animals has been added in order to ensure that animals can (where required) be provided with the necessary and appropriate protection under the law (which they are not able to assess and request on their own account). Thus a ‘public protector’ now is tasked with maintaining/defending the interests of the individual animal. Some countries already use Animal Welfare Ombudsmen and the system is now being called for in others (including Australia and the EU). Switzerland used to have an animal lawyer to act on behalf of the interests of the individual animal in criminal proceedings concerning offences against animal welfare legislation but unfortunately abolished this function by the end of 2010. However, it is considered of utmost importance to provide representation of an individual animal’s own interests at both administrative and criminal levels. The main advantage of this representation over the use of the Public Prosecutor is the level of knowledge/expertise, and the fact that this would be a priority function for the Animal Welfare Ombudsman’s office.
Section 36 (2): Relevant professional qualifications may vary and need to be balanced with skills and experience. These must in combination be sufficient to provide a solid technical and practical overview of animal welfare science, ethics and practical issues. Relevant professional studies may include (but not be limited to): veterinary medicine, animal behaviour/ethology and animal welfare law.
Section 37 (1): This provision should guarantee that always all parties and stakeholders with a verifiable interest in animal welfare and protection issues shall have a chance to be heard and be given an opportunity to influence any current or future measures which might be considered by the authorities/government.
Section 37 (2): This provision guards against commercial interests using the designation ‘animal welfare organisation’, ‘animal protection organisation’ or ‘humane society’ in order to collect funds and donations for purposes other than animal welfare.
Section 37 (3) - (5): Some countries where resources for animal welfare enforcement are scarce (man-power and finances) may decide to supplement official enforcement by engaging animal welfare and protection organisations/humane societies in the enforcement task (or in selected parts of this). If this approach is adopted, it is preferable to limit engagement to organisations/societies which have been previously approved by the Minister/Ministry or Competent Authority and fulfil certain requirements according to sub-section (4).
There will need to be discussion and consultation to decide the extent to which enforcement powers should, could or would be given to animal welfare and protection organisations/humane societies. This will relate to both the level of powers ceded by the Competent Authority and the extent to which animal welfare and protection organisations/humane societies are willing to assume government tasks (and whether such services should be compensated).
For their part, animal welfare and protection organisations/humane societies will need to give careful consideration to whether they consider enforcement and prosecution as part of their mission, or whether their willingness to accept such a role could facilitate the ‘abdication’ of government for their responsibilities in this area and/or whether the work would detract from their other programmes (such as government monitoring, advocacy, and education and awareness).
Animal welfare and protection organisations/humane societies will also need to give careful consideration to the effectiveness and viability of accepting enforcement responsibilities, including the extent to which they are given the powers and resources required for the successful discharge of enforcement duties. Here the matter of costs and resources is also an important issue: Animal welfare and protection organisations/humane societies always need to secure funds for their work. Thus, they should negotiate satisfactory government reimbursement for any expenses incurred in carrying out such delegated enforcement measures.
In addition to giving the Animal Welfare Ombudsman the authority of legal representation of an individual animal one might also contemplate allowing any approved Animal Welfare and Protection Organisation/Humane Society the right of action within the framework of an altruistic legal action, i.e. to file complaints against sovereign decisions without being prejudiced in its own rights. Whereby here once again the public interest would be paramount as this right of action for Animal Welfare and Protection Organisations/Humane Societies would only cover infringements of any objectives rights to the detriment of animals but would not apply to an assertion of any possible subjective rights of an individual animal.
Running an animal shelter, animal sanctuary or wildlife rehabilitation centre also requires authorisation in accordance with Section 29. This will prevent the establishment of inadequate facilities and/or facilities being established by ill-qualified and/or unsuitable individuals.
Section 38 (1): As well-run animal shelters, animal sanctuaries and wildlife rehabilitation centres can be beneficial for wildlife and society, it was decided not to restrict these activities to registered non-profit organisations. However, it was decided appropriate to restrict donations (please see Section 38 (6)) to registered non-profit organisations (as these can be accounted for and controlled, to ensure they are used for the purpose).
Section 38 (4): There are a number of measures taken by shelters worldwide to ensure that animals adopted before spay-neuter is possible are subsequently spay-neutered. One option requires adopting owners to leave a financial deposit with the shelter, which is refunded when the dog or cat is brought in for the scheduled operation at the appropriate age/fitness. Alternatively, ownership registration requirements could also be used here: allowing animals to be temporarily homed without official transfer of ownership until they are returned for the operation.
The procedures used by shelters for spay-neuter returns could form part of the competent authority’s authorisation checks.
Section 38 (5): It is important to restrict use of these names (animal shelter, animal sanctuary or wildlife rehabilitation centre) to bona fide organisations to prevent the (current) proliferation of these terms simply to secure visitors and support fraudulently.
A system of licensing has been suggested for animal shelters, sanctuaries and wildlife rehabilitation centres. However, it is possible to amend this to another form of authorisation (e.g. registration or certification), if appropriate to the system of the jurisdiction.
Section 38 (7): Such additional provisions could include
- Providing definitions for an ‘animal shelter’, ‘animal sanctuary’ and ‘wildlife rehabilitation centre’ – which have to be met in order to qualify under each distinct category;
- Establishing detailed standards and criteria which must be met in order to be licensed as an authorised animal shelter, animal sanctuary or wildlife rehabilitation centre; or
- Establishing Welfare Codes containing ‘best practice’ for each category.
In delineating secondary legislation and guidelines, the Competent Authority will need to place particular attention on the following: that the animal taken into the custody of an animal shelter, animal sanctuary or wildlife rehabilitation centre receives all the attention needed, including ample medical care, as well as appropriate housing and surroundings adapted to its species-specific requirements. Detailed provisions covering the important record keeping requirements (see Section 38 (4)) will have to be established, including: animals arriving and departing from the facility. In addition, rules will need to be elaborated covering the management of the animal, including: the knowledge, experience, expertise and technical skills of the person who will run the animal shelter, animal sanctuary or wildlife rehabilitation centre.
‘Animal shelter’, ‘animal sanctuary’ and ‘wildlife rehabilitation centre’ have each been defined within the Act (see Section 5 Pt. 3., Pt. 2. and Pt. 28.), and are distinctly different. Thus it is important that each license is issued accordingly (with relevant criteria and conditions). A brief overview of the key differences is
Animal Shelter: Temporarily houses and cares for stray or homeless animals, in order to reunite them with their owners or rehome them;
Animal Santuary: Keeps animals to live out their lives; and
Wildlife Rehabilitation Centre: Cares for injured, orphaned, or sick wild animals with the aim of returning them to the wild after treatment and rehabilitation.
When drafting conditions for the licensing of sanctuaries, it is important to ensure that these provide for optimum conditions, as close as possible to the relevant species’ native habitat, as the animals will be there for life. Wildlife rehabilitation centres should have a similar provision, as they are for wild animals that need to remain accustomed to conditions in the wild: In order to be successfully rehabilitated, it is important that they stay in near-natural conditions without becoming accustomed to human contact or proximity.
As animal health and welfare professionals, veterinarians and para-veterinarians are on the front-line of caring for animals thus they should always prioritise the animal’s health and well-being and not focus primarily on their duty to the animal’s owner. However, many are paid for their services by the industry, which may lead to a conflict of interest which has the potential to jeopardise the health and welfare of animals. These provisions have been included to counter this possibility.
Section 39 (3): This clause requiring veterinarians and para-veterinarians to report (potential) cases of non-compliance with this Act has been added after careful consideration. It is recognised that one possible adverse effect of this provision may be that owners or keepers are unwilling to bring suffering animals for veterinary attention. However, it strengthens their duty of care, and core role as protectors of the health and welfare of animals – which is viewed as widely beneficial.
National animal welfare research is necessary in addition to available international research to ensure that the country can take decisions and share knowledge and expertise about animal welfare issues, on the basis of evidence which is relevant to local conditions and the local situation.
These provisions are designed to ensure that consumers are provided with adequate information on the animal welfare aspects of products, thereby empowering them to make informed choices and drive further improvements in animal welfare.
In cases where countries decide not to ban any system or method which is known to cause, or likely to cause, animal welfare problems, then the Competent Authority shall specifically require products made using this system or method to be clearly labelled as such. This will include, but not be limited to, meat produced from animals in (or born from parents in) close confinement systems (cages, stalls, crates etc.) and products tested on animals.
This Section provides for Animal Welfare Impact Assessments to be carried out routinely whenever animal welfare could be adversely impacted. This practice is already widely carried out in relation to environmental issues (as an environmental impact assessment). This is particularly useful for determining any potential impact on wildlife populations of any planned development activities or change of land use. But it could also be useful in other areas – for example, impact on animals in rural areas – such as: development or building activities, deforestation, changing water courses (dams, flooding, river works etc.), changes to habitat etc. It would also cover aspects not usually connected to animal issues, such as the use of chemicals, herbicides, pesticides etc.
Section 42 (2): When animal welfare legislation has been agreed, it is important to ensure that other government policies and laws do not undermine or contradict this. Thus the need for an audit of these; and amendments made whenever necessary to adhere to animal welfare principles.
Section 42 (4): Animal welfare indicators should comprise all authorised/licensed uses. These will need to cover all species, and both inputs (i.e. needs to be provided for the animal, including stockmanship) and animal based measures (ABMs). Inputs are needed to ensure that welfare can be provided for, but only the condition of the animals can procure a true indication of the state of the animal (and thus its welfare). These indicators need to include clear, measurable requirements which allow animal keepers and official Animal Welfare Inspectors to assess compliance. Once agreed, the indicators will need to be publicised and animal owners, keepers and users educated.
Section 42 (5): Statistics are needed to identify and analyse any problems with particular animal industries and uses. This enables the Competent Authority to plan future interventions (such as education/training, enforcement targeting and legislative amendment).