Animal Welfare Bill
  |  First Published: February 2007

Dear Sir,

I’d like to comment on the Animal Welfare Bill 2005, which seems to be occupying the thoughts of many Queensland recreational fishermen.

This bill is sponsored by Queensland Senator Andrew Bartlett (a past president of the group Animal Welfare Qld) and deals with treatment of animals, including fish, in Australia. It has not passed through the Commonwealth Government and is not law.

Much has been written and said about this Bill.

Basically, it’s a piece of proposed legislation about which Queensland fishermen appear to be apprehensive. I must confess that I can’t understand why.

To me, it boils down to two issues.

Has the Federal Government got the power under the Constitution to introduce the legislation and how is the bill different to our existing Qld law?

One only has to look at the existing Qld Animal Care and Protection Act 2001 and the Qld Animal Care and Protection Regulations 2002 (sometimes mistakenly referred to as the Prevention of Cruelty to Animals laws) to see that most of Senator Bartlett’s proposals are simply straight word-for-word copies of the existing Qld laws.

It’s probably no coincidence seeing that Senator Bartlett is from Qld so why re-invent the wheel?

So what is the hype about? Perhaps it’s the thought that those greenies and their associates must be at it again.

Tickle me grandmother! Ted Bullpitt must have left Wombat Crescent in his trusty old Kingswood and is travelling around Queensland spreading confusion. No, it can’t be Ted. Apart from replays on cable TV, Kingswood Country hasn’t be seen in Qld for years. Bloody greenies. Somebody should blow greenies up!

So what is it that’s causing all the hype?

It seems that there is mileage to be made out of how recreational fishing interests can be (or have been) protected. Your magazine has carried stories on how close we came to oblivion and how we were saved.

So how close did we come to oblivion? What were we saved from? Who saved us?

The reality is that we weren’t close to anything from which we needed saving. There was simply no immediate threat in the first place.

In the run-up to the last Federal election, Senator MacDonald (then Federal Minister for Fisheries) made some noises about the possible extinction of recreational fishing. He was simply stampeding voters about those dreadful greenies.

Let’s have a little waltz through Australia’s Federal legislative processes. I’m no expert on Constitutional law (or any law for that matter) but one simply needs to be able to search and read.

Legislation is introduced to Federal Government as a bill. After debate (which may include amendment), it must pass both houses of Government (House of Representatives and the Senate) then receive royal assent (by the Governor-General) to be enacted.

A couple of basic things spring to mind.

To introduce legislation in Australia, the Federal Government must first have the power under the Australian Constitution to legislate about the particular matter.

Section 51 of the Commonwealth of Australia Constitution Act (The Constitution) lays out 39 matters about which the Federal Government has the power to legislate. These range from census and statistics, taxation, currency, weights and measures, marriage, immigration, external affairs etc.

Section 53 has a couple of matters, which relate to two further powers exclusive to the Federal Government.

The only mention of fishing is in Section 51 (x) of the Constitution, which gives the Federal Government the power to make laws in respect of “fisheries in Australian waters beyond territorial limits”.

Simply put, the Federal Government has no direct power to unilaterally introduce a law in respect of fishing within territorial limits.

Animal welfare doesn’t rate a mention in the Constitution either so the simple answer is that the Federal Government has no direct power to make laws about animal welfare.

So one might ask “How then did we end up with Federal Government fishing laws about green zones in the Great Barrier Reef”?

Those particular laws were a result of the world heritage listing of the Great Barrier Reef and can be called indirect powers.

To address its international obligations in respect of managing the world heritage listed reef, the Federal Government seems to have used its external affairs powers under the Constitution (sub-section xxix).

However, there are no world heritage implications with animal welfare. Are there any other implications relating to animal welfare that may fall under Australia’s external affairs obligations?

I can’t think of any.

Basically the state of play is that “the Feds can’t seem to be able to expand on what the Qld Government has already substantially done anyway”. So what’s the problem? I don’t see anybody hopping up and down about the existing Qld legislation.

So there was no new, immediate or direct threat from the Animal Welfare Bill to recreational fishermen. We didn’t come anywhere near close to oblivion and we certainly weren’t ‘saved’.

That doesn’t necessarily mean that there isn’t a feasible indirect threat.

A back door or indirect method for Federal Government to introduce laws for which it doesn’t have the direct Constitutional power is provided in Section 51 (xxxvii).

It provides that the Federal Government can make a law in respect of matters referred by the Government/s of any state or states but so that the law shall only extend to the states referring the matter or which afterwards adopt the law.

This means that the animal welfare lobby needs to have a sympathetic State Government refer the Bill to the Federal Government (not Senator Bartlett taking it upon himself to introduce a bill to the Senate). The Qld Government (or the Government of some other state) has to refer the matter.

If subsequently passed by both houses and given royal assent, the referred Bill becomes law but only in the referring state.

The animal welfare lobby would then have to pressure the other states individually to adopt that law and, if successful, we end up with the law becoming national by the mechanism of being adopted state by state.

A lot of pieces of the jigsaw have to be put in place for that to happen. Recreational fishers probably need to be vigilant and keep an eye on what is happening in state politics. With the existing Qld laws reflecting most of Senator Bartlett’s proposals anyway what is the attraction for the Qld Government to refer the matter? Very little.

Political parties are strange animals and will do deals with the devil if it means retaining or gaining government. Its hard to see a government with a big majority snuggling up to the animal welfare brigade but its not so difficult to see in respect of a struggling government or a desperate opposition (which ultimately becomes the government).

With the Qld Nationals being part of the opposition and not having animal welfare lobbyists or ‘greenies’ high on their social invitation list, that isn’t likely either.

That hasn’t stopped the peddling of perceptions that recreational fishers were saved from something. So what did our apparent saviour (the Fishing Party) save us from?

They didn’t save us from anything relating to the Animal Welfare Bill but one never lets facts get in the way of a good perception.

To be fair, I don’t recall TFP promoting that perception. Enthusiastic supporters who seem to operate with the philosophy that its better to be confidently wrong rather than hesitantly correct about issues have certainly promoted the notion.

Neither has TFP posed a threat to the House of Windsor by adopting the royal ‘we’ reference like a well-known Qld peak body claiming to represent 4.9% of recreational fishing interests. In fact, the peak body’s CQ section seems to have extended its regal ambitions to the use of the royal ‘our’ at a recent public meeting about the Qld East Coast Inshore Fin Fish review.

Life is about perceptions and, as we all know, inaccurate perceptions become reality if left unchallenged. There is an inaccurate perception that we were saved from oblivion by TFP and that will become reality over time if not challenged.


Ron Jenkins


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