Animal Cruelty Complaint To DAFWA against The Wellard Group & Response.

[Kev]

Only just joined the group- so can you tell me are you still going down to the port?

[mellowswish]

I think it is worth adding to this debate how long trucks remain standing at the wharf for, how long the animals are thus confined on the truck in the heat,

My visits to the ports during live export, while loading onto the ships, such as the Al Massilah, Al Shuwaikh, Ocean Swagman & The Ocean Shearer all have the same result. The trucks wait at the docks for AGES. They bring in a max of 3 trucks at a time, go ever them with dogs & prods, slowly empty them out, then put the rejects BACK onto the truck to face a further journey to a slaughterhouse for reasons of quarantine or very bad health.
This is a typical picture of loading practice, minimal people; working with prods, sticks & dogs, maneuvering 3 trucks at a time, which takes quite awhile...& there are many trucks to go.

The dreadful state the animals are in when they arrive at dock is quite clear.

The Code of Practice Mandates that reject sheep are to be killed on the spot (by captive bolt gun) and then the carcasses removed by the trucks; this is not what I witnessed. Once they get them onto the ship, they then remove the animals they don't want & shove them back onto trucks for MORE trucking. God knows how long it takes for them to get to the abattoirs.
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Of this particular evidence collecting at the Al Messilah in Fremantle, I did actually make a YouTube video showcasing the tragedy of the suffering animals NOT just on the ships, but on the trucks.

[youtube]http://www.youtube.com/watch?v=l-DgWJG122o&list=PL9011FF2C7D0ADA30&index=18&feature=plpp_video[/youtube]
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It would also be interesting to know what form of ventilation is operating on the shipped while they are in port - if any. On an enclosed ship, the temperatures in the lower decks (in the holds) if it is that hot outside it is safe to assume that water temperatures are high also heating up those sections of ships. The animals in theory are still under the protection of state legislation while in Australian waters. As for proving the animals are suffering/have suffered, photos of sheep panting and any downer sheep could be helpful.

Different set up for each ship, one could argue that the dilapidated broken down Australian Owned Wellard Shearer IS ventilated, as it is open aired, but on the same token, this cause much distress to the animals, particularly out on the water.


Going in the opposite direction is the likes of the Al Messilah, which has no open air ventilation & a high amount of deaths on board: due, in part to heat stroke.
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I would like to see a clocking system logged into the trucks personally. It starts when they pick up the animals, shows when the animals have been unloaded, at what time & where & also if they have been rejected, again what time & where. Not a hand written log. An on board computer system which would shed some definite life on the reality of how long these animals are suffering out in the elements.

Bottom line, I think this is an issue worth pursuing & seeking law reform, the more the government allows live export to continue, the more animals are suffering severely. The least that can be done is to humanely minimise the length of time they are exposed to severe heat.

[Export News Tasmania]

I think it is worth adding to this debate how long trucks remain standing at the wharf for, how long the animals are thus confined on the truck in the heat, etc. It would also be interesting to know what form of ventilation is operating on the shipd while they are in port - if any. On an enclosed ship, the temperatures in the lower decks (in the holds) if it is that hot outside it is safe to assume that water temperatures are high also heating up those sections of ships. The animals in theory are still under the protection of state legislation while in Australian waters. As for proving the aninals are suffering/have suffered, photos of sheep panting and any downer sheep could be helpful. But good luck getting the RSPCA to ever attend the port, I took it up with RSPCA WA in 2010 amd was informed in no uncertain terms that it is 'not its responsibility'. All creatures great and small? Only those who bring in fundraising dollars, sadly.

[mellowswish]

If you were in court how would you prove that transporting animals in 35 degrees C is cruel given you need to demonstrate what cruelty is and consequently how the animals suffered.

The Animal Welfare Act 2002 DOES lay out what is considered to be cruel, (which I showed in the highlighted section) but what I wanted to weed out of DAFWA was the off-the-cuff admittance that they were not willing to look at the Legislation in an Interpretive Manner, or, more precisely - that they were only interested in THEIR interpretation of it. As I quoted in response to DAFWA, using the Code of Practice as an excuse NOT to investigate is not a sufficient reason as far as I am concerned.

Unfortunately, The Animal Welfare Act is SO open to interpretation that it gave the likes of the RSPCA WA every excuse to palm off a complaint, but a government department should show at least an inkling of concern when you present them with a legal interpretation that is just as valid as their own interpretation.

They interpret that the Code is an excuse NOT to investigate the validity of the complaint, but the wording of it in the Act itself states it is for a defendant to use, that is another ACCURATE INTERPRETATION.

By pushing this issue to DAFWA & proving that they are not seeing to the Welfare of the Animals, which they are in charge of, by being given The Animal Welfare Act, I would hope that, at some point the loopholes in the law that allow for a government department to dismiss a serious allegation of Animal Cruelty are seen to & amended.

As I stated in the initial complaint, there is no 'cut off temperature' for transporting the animals in the heat, though there are remarks about wind chill for freshly shorn sheep. An example of reforming this would be to state what temperature/weather is an absolute no-go for animal trucking, a specific that would easily wipe out any kind of complaint like the one I lodged. Instead the law states the animal should not be transported or not given shade/shelter or adequate protection from the elements... TOO VAGUE, which of course is why the complaint would not be pursued: so reform the law.

Proving that the animals on the trucks are suffering in the scorching heat is not difficult, I have oodles of video & photo proof of this, on the roads & at the docks. The Cruelty Complaint that I put in is an example of what I see as something that should be reformed. The Code of Practice for the Transportation of Sheep gives an outline of Model Ideas & rough guidelines, with the occasional specification, but it is just TOO VAGUE. A Law that can be used to charge an individual & bring them to court absolutely should not refer to Codes of Practice that aren't Legal Protocols of which breaching them is an offense against the law.

You are spot on about the law only being taken into account when it is too late & the cruelty has killed or is still killing a lot of animals in an inhumane way. It is BECAUSE the law is SO OPEN to interpretation that this is happening. There needs to be a legislative reform of The Animal Welfare Act so that Complaints can be categorized & considered by strict regulations & protocols, not loose defenses of Codes of Practice which amount to ZERO in a court situation.

[mellowswish]

On Thursday the 1st of December 2011, The Wellard Ocean Swagman came into port at Fremantle to load animals over a period of 2 days in temperatures exceeding 35 degrees. Upon reviewing the Animal Welfare Act 2002, the Codes of Practice etc, I decided to place a formal complaint of Animal Cruelty under Section 3 of the Animal Welfare Act against The Wellard Group for perpetrating Cruelty to Animals as the trucking & loading of Animals in extreme temps meets the criteria for Animal Cruelty.

Apart from my solid opinion that this constituted cruelty, I wanted also to get a reaction from DAFWA, since they were given power to enforce the Animal Welfare Act, (rather than reinstating the Animal Welfare Inspectorate) to regulate the Live Export Industry & see to the welfare of the Animals.

As I had anticipated, DAFWA could not care less & refused to even investigate the complaint; sighting 'defense against being charged with animal cruelty: Code of Practice' However, it is not for DAFWA to sight this as a reason to refuse investigation, this Code is for the accused to defend themselves, not for DAFWA to refuse investigation. Below is the correspondence.

Formail Complaint Sent to DAFWA on Friday 2nd December 2012

To Whom it May Concern,

I have been a Live Export investigator for some time & I have currently taken up a voluntary position as WSPA Captain of the Hasluck Electorate. The WSPA Move Forward Program is aiming for a 3 year phase out of live export. This, however is not the reason I am contacting you.

When I became aware of the handover of duties to carry out the enforcement of the Animal Welfare Act 2002 to your department, I must admit that I was surprised.
I am aware the RSPCA WA (a charity) also has General Inspectors as well as there being nominated general inspectors within local governments, but it is my opinion that THIS ANIMAL CRUELTY COMPLAINT definitely falls within the realms of your department.

The Complaint: Animal Cruelty under section 3 of the Act.

More specifically, on Thursday the 1st of December 2011, the Wellard Ocean Swagman entered Fremantle Port for loading of Animals & only a week before that, the Al Kuwait was here doing the same thing. As you well know, the temperatures for the last fortnight have been generally scorching above 35 degrees. This is not surprising and the dreaded heat of the Perth summer will continue over Christmas and through January.
While I believe Live Export is inherently cruel, I must report that transhipment of animals in these temperatures meet the criteria for Animal Cruelty.

This is very simple, it is cruel to inflict long truck journeys on these animals in the heat, where they go from farm to truck, to feedlot back onto a truck, then set to be loaded onto the boat where they will sit in these metal boxes for days, and that is BEFORE they have left the port.

The ship currently in Port; the Ocean Swagman, is operated by the Wellard Group, so I level this cruelty complaint against them directly. I accuse THE WELLARD GROUP of ANIMAL CRUELTY for perpetrating an Offense against Animal under Part 3 of the Animal Welfare Act, they have breached all subsections of part 3 from (a) to (e).

The Animal Welfare Act 2002 states:
(2) This Act intends to —
(a) promote and protect the welfare, safety and health of
animals;
(b) ensure the proper and humane care and management of
all animals in accordance with generally accepted
standards; and
(c) reflect the community's expectation that people who are
in charge of animals will ensure that they are properly
treated and cared for.

So the interpretation of the act is spelt out there. Section 3 of the Act is VERY SPECIFIC about what EXACTLY animal cruelty is BY YOUR OWN DEFINITIONS.

Part 3 — Offences against animals
(3) Without limiting subsection (1) a person in charge of an animal
is cruel to an animal if the animal —
(a) is transported in a way that causes, or is likely to cause,
it unnecessary harm;
(b) is confined, restrained or caught in a manner that —
(i) is prescribed; or
(ii) causes, or is likely to cause, it unnecessary harm;
(c) is worked, driven, ridden or otherwise used —
(i) when it is not fit to be so used or has been over
used; or
(ii) in a manner that causes, or is likely to cause, it
unnecessary harm;
(d) is not provided with proper and sufficient food or water;
(e) is not provided with such shelter, shade or other
protection from the elements as is reasonably necessary
to ensure its welfare, safety and health;

This kind of transhipment seems to have no specific temperature restriction within the law where you have a 'cut off temp', that point is however...moot. The Animal Welfare Act lays out exactly what IS & IS NOT ANIMAL CRUELTY & the Live Exporting of Animals in the heat of summer is cruelty to animals.

This is a serious, official complaint & I would like a response from the Department of Food & Agr, especially since I have contacted my Electorate's Office. Your reaction & investigation of this complaint will weigh heavily on the recommendations & media contact I have to report to about your attentiveness to this as a serious complaint. I will also be waiting to see an official reaction to your interpretation of the Cruelty Complaint relevant to the Act, if you believe mine is misguided & wish to quickly close the complaint.

If this is not seen to post haste, then I will have to contact other agencies and organisations to assist in the protection of the welfare of these animals.

Yours sincerely
Melissa Smith

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Response from DAFWA: No Investigation Will Be Conducted. Tuesday 6th December 2011

Good Morning Melissa –

Thankyou for your complaint of alleged animal cruelty at Fremantle Port for Thursday 1st December 2012.

The Animal Welfare Act provides for defences to cruelty under Section 19. One of the defences is under Section 25 which clearly states –

25. Defence — code of practice
It is a defence to a charge under section 19(1) for a person to prove that the person was acting in accordance with a relevant code of practice.

I have provided a copy of the Code of Practice for the transport of sheep.

In short – the code allows for the transport of sheep for 24 hours. As the feedlots who service the wharf are all within a 4 hour drive from the Wharf – the transportation of the sheep is not in contravention of the code of practice.

The live export trade is governed by the Australian Standards for Live Export. I have also attached a copy of this for your information.

The Department of Agriculture and Food WA Livestock Compliance Unit frequently monitors the Fremantle Port to ensure all transporters abide by the code and legislation. We thank you for your complaint but as your allegations of cruelty cannot be proved and the transport of sheep in accordance with the code is an acceptable practice, the LCU will not be conducting further inquiries at this stage.

Thanks
Lance Sgro
Manager
Compliance and Investigations
Regulation and Response
Department of Agriculture and Food WA
Phone: (08) 9366 2355
Fax: (08) 9359 4007

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Not Good Enough, in my opinion DAFWA should not use the Code of Practice Defense as a reason to not investigate a complaint: it is for the defendant to do that. This complaint really highlights the failure to care about the welfare of Live Export Animals on DAFWA's behalf. Refusing to make a phone call even. I responded yesterday 6th December 2012.

Thank you for acknowledging my complaint

I am familiar of course with the Codes of Practice relevant to the Transportation of Sheep.
However, even in your own terms, the Code of Practice is to be used as A DEFENSE AGAINST A CRUELTY COMPLAINT BY THE PERSON/S who are charged with cruelty.

The Animal Welfare Act states, as you quoted:
"25. Defence — code of practice

It is a defence to a charge under section 19(1) for a person to prove that the person was acting in accordance with a relevant code of practice."

This means that the person CHARGED, (such as the truck driver or body corporate) may use the code as a defence against an Animal Cruelty charge.

It is not DAFWA that I have made the allegation against & therefor not for you to quote as a Compliance Tool to refuse to investigate. The complaint must be investigated to some extent & the charged person/s MAY list this Code of Practice as a defense. You may not list it for them & then say that you have not & will not investigate the complaint to any extent.

Secondly, the second paragraph of the Code of Practice further enforces what its intended purpose is:
"It is not intended to be used for either audit or compliance purposes."

In short, if you wish to close this complaint by using the attached documents & quoting their significance in the Animal Welfare Act, you have to investigate the complaint first, or at least make contact with The Wellard Group so that THEY may use the Code of Practice to defend themselves from the Animal Cruelty Complaint.

You also state 'lack of evidence' as a reason not to investigate my complaint, how are you to collect any evidence if you do not even attempt to investigate the validity of my complaint. I cannot believe that this is one of your main reasons to refuse to investigate. Surely as a DAFWA Compliance Officer & as a human being, you can attest to the extreme weather that the animals were being transported in & are well aware of the effect extreme weather has on animals in transit. The Code of Practice is very clear about Transportation of Sheep in relation to weather extremes causing stress, exhaustion etc.

Even the extreme stormy weather of today (in which animals were in transit to be loaded onto the AL SHUWAIKH) is taken into account with specifications stating that sheep that have been shorn within the last 2 weeks should not be transported without protection from windchill & rain.

If, after receiving this email, you STILL refuse to investigate the Animal Cruelty Complaint, (bearing in mind that you cannot use the Code of Practice as a defense against failure to investigate), and your reason is 'lack of evidence' still, then you are forcing me and other members of the public to provide the evidence for you, which is a dangerous proposition. You have trained people to investigate the trucking of the animals, as a private citizen, in order for me to provide you documented evidence that animals suffer in extreme temperatures; I have to access the road trains & take video & photo evidence myself. Once again I say; that is dangerous.

But if you are going to force me into a private investigation, you should consider whether or not my complaint, and the welfare of the animals is perhaps worthy of at least a couple of phone calls on your behalf.

Thank you
Please reconsider
Melissa Smith

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So that is it so far. As I previously said, this complaint is to really test the waters with DAFWA & as I suspected, they are doing a very good job of dismissing the welfare of the animals. I did not believe that my allegation would proceed to charging the Wellard Group, but I sincerely feel, that as a governmental body, (unlike if I were to lodge the complaint to the RSPCA WA, a charity) we have a right to expect a decent response as citizens. Bring back the Animal Welfare Inspectorate & give them the power of the Animal Welfare Act 2002, because DAFWA clearly couldn't care less.