Animal Law

Posted on 06/14/10 in , No Comments

‘[T]he view equating a living, breathing animal to a chattel is archaic and does not withstand the test of critical analysis. Slavish adherence to a worn-out doctrine without serious, critical analysis does the law no good and, indeed, engenders public disrespect for the law.’
Murray v Bill Wells Kennels, Ltd, Wayne County Circuit Court No. 95-536479-NO (Mich 1997)

The AJP Position

We seek a new legal status for animals, acknowledging their right to live protected from human harm.

The Animal Justice Party’s Policy Objectives
The Animal Justice Party will actively work to bring about:
•    A new legal classification for animals that recognises their status as sentient beings
•    A national approach to protecting animals under the law
•    Improved enforcement of laws governing the welfare of animals
•    Fairer evidentiary burdens on those responsible for prosecuting animal cruelty
•    A more flexible interpretation of international trade rules regarding animal-derived products

The Animal Justice Party’s Policy Goals
The Animal Justice Party advocates:
•    The abolition of the property status of animals in law, so that the law can better protect animals from human harm.
•    Uniform laws throughout Australia dealing with animal welfare and animal cruelty.
•    A statutory national animal welfare commission to advise on and develop relevant laws.
•    A national database to provide records of the proceedings of court cases dealing with animal cruelty and animal welfare matters, thereby encouraging consistency in judgments and in the application of penalties.
•    The creation of omnibus legislation that will unify disparate laws dealing with matters such as native and introduced wildlife management and control, where those laws have animal welfare implications.
•    The enforceability in all jurisdictions of Court orders prohibiting a person from keeping an animal.
•    Making the enforcement of criminal law relating to animal cruelty and animal welfare the responsibility of a specialist branch of relevant police forces in each Australian jurisdiction, and expressing that responsibility as a duty in relevant legislation.
•    Removing the RSPCA, a private and unaccountable organisation, from involvement in the enforcement of laws relating to animal welfare and animal cruelty.
•    Random, unannounced inspections of animal-related industries by those responsible for enforcing anti-cruelty laws.
•    Reducing the need to prove elements of cruelty through expert evidence by adopting a ‘precautionary principle’, according to which animals are presumed to be suffering pain or distress if they are in a situation which would be regarded as painful or distressing to a human being.
•    Reversing the onus of proof regarding animal ownership in anti-cruelty prosecutions, so that an assertion that a person is the owner (or person in charge) of an animal is proof of that matter, unless proved to the contrary.
•    More flexible interpretations of General Agreement on Tariffs and Trade (GATT) rules so that they take into account public policy considerations regarding animal welfare.
•    Active debate by the Australian Government with countries in the World Trade Organisation to allow imports to be limited if the imported products are not generated according to animal welfare standards acceptable in Australia.

BACKGROUND

The legal status of animals in Australia
In law, entities are either persons or things. The legal classification of ‘persons’ includes human beings, companies, trusts, and ships.  Non-human animals are, however, classified as things, or ‘personal property’. They can be owned, just as a legal person can own a computer or a pencil.

Only legal persons are given a voice in our legal system, and their interests are protected through the possession of legal rights. Philosophically and legally, ‘things’ do not have interests – only persons do.  The legal status of animals as property means that their interests are not recognised, let alone protected, in law. It means that animals are ‘invisible’ before the law; they have no standing to make legal claims on their own behalf.  Guardians cannot be appointed to represent and protect animals, as animals have no legal rights to protect.   The status of animals as property has therefore severely limited the type of legal protection that we extend to animals.

Animals’ status as property does not reflect society’s view of animals as sentient creatures who can feel pain and experience a range of emotions.  This view of animals’ sentience is now amply supported by science.

It is therefore clearly time for the law to catch up with society’s views and create a new status for animals. Legal status is not, after all, immutable. The slave trade was based on the property status of human beings from certain parts of the world. Not so long ago, women and children were also considered property.  The law’s classification of entities can, and does, change over time.

Change is even starting to happen in relation to the law’s treatment of animals.  Courts in America have begun to recognise the injustice of the law, and are treating animals as more than simply property. Over 30 years ago, a New York court held that ‘a pet is not just a thing, but occupies a special place somewhere in between a person and a piece of personal property’ (emphasis added). (1) The Court held that there must be a distinct category to account for the uniqueness of animals.

There are a number of suggestions as to what this new category for animals under the law could be.  Some have proposed that animal property could be divided into legal and equitable components, which would also allow the equitable title of an animal to be transferred to the animal him/herself. (2)  This would create a new, limited form of self-ownership in an animal, and would give animals access to the legal system for the protection of their interests. Under this proposal the legal (human) owner would be characterised as a guardian, based on the custodial relationship of a human parent and child.

Under another proposal, animals could be given rights over their habitat. (3) These rights would again be administered by a human guardian. Under this ‘animal guardianship’ system, landholders wishing to alter habitat on their land would have to negotiate with a guardian acting on behalf of the affected group of animals.

Perhaps the simplest proposal would be to create a new legal category called ‘animals’. (4) Under this proposal animals would be subject to their own set of laws, independent of those that apply to property or humans.  It would allow the implementation of laws similar to child custody laws for companion animals, and stronger protection laws for other types of animals.

The Animal Justice Party supports these efforts to create a distinct legal category for animals, and will work towards determining the most appropriate scheme for our Australian legal system.  This policy position is based on the view that having their own legal status would encourage respect for animals as sentient creatures, and afford them greater protection under our legal system.

National approach to the legal protection of animals in Australia
Australian laws relating to animals are many and varied across the State, Territory and Commonwealth legislatures.  The evolution of Australian animal cruelty law, in particular, has arguably been hindered by the complex State / Territory / Commonwealth government and legislative systems and a failure to achieve anything resembling a uniform legislative approach to animal cruelty. As a consequence there are nine very different sets of laws relating to animal cruelty.  This ‘jumble’ of state and territory animal cruelty legislation makes it very difficult to achieve any significant or uniform advances in animal welfare protection, or any comprehensive monitoring or review.

The Animal Justice Party therefore supports the creation of uniform laws throughout Australia dealing with animal welfare and animal cruelty, and the enforceability in all jurisdictions of Court orders prohibiting a person from keeping an animal.

The comprehensive monitoring or review of animal welfare law in Australia is also hindered by the difficulty in obtaining detailed information about animal cruelty prosecutions.  The lack of such information means that the community has little basis on which to evaluate the efficacy of current animal welfare law enforcement, or legislative change with respect to it.
What little evidence is available, moreover, appears to indicate that there are significant gaps in enforcement activity.  For example, the majority of cruel acts committed on animals in Australia occur in industries which keep and use animals for profit.  By far the biggest such industry is the animal farming industry.  The cruel practices concerned are concentrated in the intensive industries involving pigs and chickens, in the dairy and wool industries and in the live export of food animals.

Although there are no national figures relating to animal cruelty prosecutions, it appears that there are very few prosecutions of those involved in intensive animal farming industries.  The Animal Justice Party therefore supports the establishment of a national database to provide records of court proceedings dealing with animal cruelty and animal welfare matters.  This would allow better monitoring and review of the enforcement of animal welfare law in Australia, and would encourage consistency in judgements and in the application of penalties.

Another area of concern regarding the lack of a uniform, national approach to the legal protection of animals is in relation to laws that sanction animal killing, whether it be slaughter of food animals, killing ‘pests’, or killing animals for pleasure. While the various anti-cruelty laws are the primary legal means of taking action against cruelty to animals, the wide range of other legislative provisions and codes means that the law lacks coherence and certainty.  Given the obvious potential for animal cruelty where the law sanctions animal killing, the Animal Justice Party supports the creation of omnibus legislation that would unite the disparate laws dealing with the management and control of native and introduced animals, and the killing of animals in general.

The lack of a national regulatory authority with overarching responsibility for animal welfare legislation and its application is yet another serious impediment to the legal protection of animals in Australia.  In 2004 the Australian Animal Welfare Strategy (AAWS) was established to guide the development of new, nationally consistent policies and enhance existing animal welfare arrangements in all Australian states and territories. It is intended to cover the ‘humane treatment of all sentient animals’ in Australia. (5) However, the distribution of responsibility for animal cruelty laws across the eight state and territory jurisdictions  makes it hard to achieve uniformity, particularly in the areas of implementation and enforcement. It is also important to note that the AAWS is administered by the Commonwealth government department (the Department of Agriculture, Fisheries and Forestry) that looks after industry interests, so they have a disproportionate influence on determining the outcomes of the strategy.  The strategy therefore risks simply serving the purposes of the animal farming industry and allowing those within it to treat animals as they wish without fear of prosecution.  The Animal Justice Party instead supports the establishment of a truly independent and properly resourced statutory national animal welfare commission to advise on and develop appropriate laws.

Enforcement of animal protection laws in Australia
In most cases in Australia, responsibility for the enforcement of anti-cruelty legislation is delegated to private associations such as the RSPCA in its various embodiments.  These organisations depend financially on donations from governments and private citizens, are not accountable to the community or parliaments, and are arguably subject to the whims of whoever happens to be running them.

One particularly problematic aspect of enforcement of animal protection laws in Australia is the limited number of routine inspections of commercial premises where animals are used for gain. For example, in NSW and Victoria, the two most populous states in Australia, the local RSPCAs conducted only 95 routine inspections (60 and 35 respectively) in 2009-2010. (6) This is clearly inadequate, given the large number of establishments using animals (including pet shops, abattoirs, circuses, intensive factory farms, pounds, scientific establishments, and zoos), and the huge number of animals involved.

The Animal Justice Party therefore advocates the removal of private and unaccountable charitable organisations from the enforcement of animal welfare and animal cruelty law.  Enforcement of this law should be the responsibility of a specialist branch of relevant police forces in each jurisdiction, and that responsibility should be reflected and expressed as a duty in relevant legislation.  Moreover, those responsible for enforcing the law should be able to carry out random, unannounced inspections of establishments where animals are kept or used for gain.

Evidentiary burdens
Bringing a successful prosecution against animal cruelty offenders is particularly onerous and resource intensive due to the need to prove elements of cruelty through expert evidence.  The Animal Justice Party will therefore work to ensure that animal welfare laws adopt a ‘precautionary principle’ in this context, so that an animal would be presumed to be suffering pain or distress if he or she is in a situation which would be regarded as painful or distressing to a human being.  This approach has already been adopted by the National Health and Medical Research Council, which states in the Australian code of practice for the care and use of animals for scientific purposes that:

…pain and distress cannot be evaluated easily in animals and therefore investigators and teachers must assume that animals experience these in a manner similar to humans unless there is evidence to the contrary.  Decisions regarding the animals’ welfare must be based on this assumption. (7)

The Animal Justice Party’s position is that this ‘precautionary principle’ regarding pain and distress in animals should be incorporated in animal welfare legislation across the board.
The Animal Justice Party also advocates that an assertion that a person is the owner of, or a person in charge of, an animal should be proof of that matter, unless proved to the contrary.  Again, this position has already been adopted in some jurisdictions (see for example s42(2)(b) of the Animal Welfare Act 1985 (SA)).

International approach

Australia is a party to the agreement that established the World Trade Organisation (WTO). (8)  This agreement re-enacted the General Agreement on Tariffs and Trade (GATT).  It also enacted a series of collateral agreements which provided an application of GATT rules in particular areas.  Some of those agreements are relevant in the context of animal welfare. (9)
The GATT rules have been interpreted so that they effectively prevent Australia from taking action which would inhibit the importation of animal-derived goods produced in a way which unacceptably compromised animal welfare.  This is because the rule relating to imports states that the importation of a particular product must be accorded treatment that is no less favourable than ‘like products of national origin’.  In defining what this phrase means, the GATT tribunals have focused on the fact that production methods cannot be considered when deciding which imported products are ‘like’ a corresponding product produced locally.  According to this view, two eggs are ‘like’ products, even if one is produced by chickens housed in battery cages and the other by free-range chickens. Improvements in animal welfare in intensive farming will almost inevitably involve the production method.

The WTO rules therefore risk being a significant stumbling block to the development of improved animal welfare standards in the primary industry sector in Australia.  The Animal Justice Party will encourage the Australian Government to engage in debate with countries in the World Trade Organisation to allow imported products to be limited on the grounds that they are not generated according to animal welfare standards acceptable in Australia.

References
1.  Corso v Crawford Dog and Cat Hospital, Inc, 415 NYS2d 182, 183 (NY Civ Ct, 1979).
2.  David Favre, ‘Equitable Self-Ownership for Animals,’ 50 Duke Law Jour. 473 (2000).
2.  John Hadley, ‘Want to Stop Biodiversity Loss? Give Animals Property Rights,’ 2011, theconversation.edu.au/want-to-stop-biodiversity-loss-give-animals-property-rights-582 (accessed 19 May 2011).
4. Catherine Wolfe, ‘Legal Re-Classification of Animals is Long Overdue,’ paper presented at the Mid-Atlantic Animal Law Symposium, 2010.
5. The Australian Animal Welfare Strategy (revised 2008), p7; www.daff.gov.au/__data/assets/pdf_file/0008/749204/aaws-strategy-jun08.pdf  (accessed 2 August 2011).
6. RSPCA Australia National Statistics 2009-2010, www.rspca.org.au/assets/files/Resources/RSPCAAnnualStats2009-2010.pdf; (accessed 2 August 2011).
7. Section 1.20, 7th edition, 2004.
8. The ‘Marrakesh Agreement’: see www.austlii.edu.au/au/other/dfat/treaties/1995/index.html
9. See P Stevenson (2002) ‘The World Trade Organisation Rules: a Legal Analysis of their Adverse Impact on Animal Welfare’ Animal Law 8, 107.
10. GATT Article III:4: see www.wto.org/english/res_e/booksp_e/analytic_index_e/gatt1994_02_e.htm#article3