: Animal Law in Australasia AND Animal Law in Australia and New Zealand

Animal Law in Australasia AND Animal Law in Australia and New Zealand

Michael Allen Fox

Sankoff Animal_Law_36_1Animal law in Australasia: A new dialogue
Peter Sankoff and Steven White (eds); Federation Press, 2009; 418 pp;
$69.90 (paperback)


Cao Animal_Law_36_1Animal law in Australia and New Zealand
Deborah Cao, with Katrina Sharman and Steven White; Lawbook/Thomson Reuters, 2010; 321 pp;
$85.00 (paperback)

Interest in animal law is growing, with a significant number of law schools worldwide now offering courses in the area, and a small group of lawyers in various countries dedicating themselves to teach and/or practice in this field. These books are therefore timely, in that they carefully describe and examine the legal apparatus that regulates the use and treatment of domesticated (and, to some extent, wild) animals today. They also have the overt purpose of legitimating this field of inquiry, for as Peter Sankoff remarks, 'animal law still has many critics, and is occasionally dismissed as a matter unworthy of "real" legal study' (Sankoff & White, p 389). Although the focus is on Australia and New Zealand, very similar legal regimes are in place elsewhere and are drawn upon for comparison. (One volume purports to cover 'Australasia', as is seen in its title above, but in fact reference is made only to Australia and New Zealand.) International laws are also explored in the Sankoff & White collection.

The reader approaching these books will naturally expect to be enlightened about how animal law operates in Australia and New Zealand to protect animals from abuse, and this expectation is well met. However, the books yield far more than one may be bargaining for, in that they not only reveal the inherent inconsistencies with which animal law is riddled, as well as the general inadequacy of legal protection for animals and the consequently feeble level of prosecution and sentencing that prevails, but also demonstrate that these problems stem ultimately from a fundamental human decision to limit the moral status of animals. Those readers who are committed to better treatment of animals will likely come away feeling that animal law has to be strengthened, or perhaps even radically overhauled, and enforcement greatly improved. This feeling is reinforced by learning that in certain ways Australia and New Zealand lag significantly behind the United Kingdom and the European Union in animal protection.

Animal law began in ancient times, and Deborah Cao maintains that 'what the ancient Roman laws said about animals cast into an enduring mould how animals and matters related to animals have been dealt with in Western law, including the laws in Australia and New Zealand today' (Cao et al, p 64). Animals were then, and still are, property. They therefore 'do not enjoy [legal] standing in their own right' (Cao et al, p 78). Unlike in the US, the property status of animals hasn't been challenged in Australian and New Zealand courts.

What we think of as progressive animal law began particularly in the early to mid-19th century with early anti-cruelty statutes designed to prevent bear-baiting, cock-fighting, abuse of working and livestock animals and other gross, callous and unrestricted examples of exploitation or extreme, sadistic violence. Over time the emphasis has shifted to protecting the wellbeing of animals. Some sort of duty of care in this regard has come to be acknowledged. As Annabel Markham points out, 'the traditional approach of proscribing particularised acts of cruelty has given way to an approach that recognises that animals are entitled to certain minimum standards in their food, water, and living conditions. [Some laws] also expressly recognise animals' behavioural needs' (Sankoff & White, p 300). This has come to be known as the 'animal welfare approach'. It is epitomised by the 'Five Freedoms' doctrine drawn up in the United Kingdom. (This doctrine is mentioned several times in Cao et al, but never explained; for details on this important concept, see www.fawc.org.uk/freedoms.htm.)

Juxtaposed to the animal welfare perspective, there has also emerged the 'animal rights approach', which places emphasis on the intrinsic value of animals' lives and their claim to having morally significant interests and a quality of life that are definable in their own terms. In this view, animals are independent beings whose good is worthwhile realising for its own sake. To complicate matters still further, some animal rights advocates opt for a pragmatic approach (animal welfare today, animal rights tomorrow, as it were); others insist that you can't have it both ways: either you're a defender of animal rights or you're an animal welfarist. These various attitudes weave their way through the many and diverse readings that make up anthologies of this kind, sometimes manifesting themselves in the authors' underlying assumptions, sometimes simply being unveiled as positions embedded in laws or model codes of practice for farming, live animal export, animal experimentation, recreational hunting, and so on, or as shaping agendas for reform.

As noted above, humans have placed limits on the moral status of animals, historically and in the present. This is the territory of ambiguity and contradiction. Here are a few examples: Too much cruelty is too much, but a certain amount is acceptable, if it produces a positive result for humans. We recognise animals as living, sentient beings (and hence, as more than mere things), yet continue to objectify them as commodities and transform them, via factory farms, into mini-food factories themselves. We want them to be healthy and productive — so we can kill and enjoy eating them later on. We want them not to become extinct — so we can admire them and find them amusing in zoos and other entertainments occurring in places of confinement. Pets are deemed to deserve better treatment than food animals; and wild native animals — so long as they aren't 'pests' — get some consideration, while 'pests', 'vermin' and feral animals receive virtually none. Our collective sense of guilt for all this is buried in the laws and regulations of many times and places, which are as confused as our thinking about animals. And there is a gulf between common sense and public opinion, on the one hand, and legality, on the other, which systematically masks or distorts our view of the harms we perpetrate on other creatures.

One of the strongest strands of thought running through these books is a critique of the animal welfare approach, around which every legal regime in the world thus far revolves. It is perhaps explained best by Sankoff ('The Welfare Paradigm', Sankoff & White), who argues that 'animal welfare' is inadequate as a construct in which to ground laws and practices for improving animals' lives, because it licenses many ethical and economic trade-offs that serve to negate animals' basic interests and keep them in permanent servitude to human desire. Many statues and model codes that are supposed to govern specific areas of human activity involving animals are couched in language that permits suffering (or if you prefer, cruelty) so long as it is not deemed 'unnecessary', 'unreasonable', 'excessive', 'unjustifiable', outside of 'normal practice' and so on. Legal frameworks readily accommodate this exploitation, according to various scholars. Former Queensland senator Andrew Bartlett states that: 'Australia's existing legal system is failing to protect animals adequately' (Sankoff & White, p 377). Cao contends that 'the bulk of animal cruelty in Australia is institutionalised and not actionable in law' (Cao et al, p 204). Elizabeth Ellis notes that: 'As animals are treated as things for legal purposes, their objectification in and by law is self-evident' (Sankoff & White, p 357). According to animal rights philosopher and lawyer Gary Francione, the fundamental absurdity of animal welfare cost-benefit calculations resides in the fact that 'what we really balance are the interests of property owners against the interests of their animal property ... which exists only as a means to the ends of humans' (cited in Sankoff & White, p 99). And finally, Sankoff observes that 'Today, this notion of balancing animal pain against human need or pleasure is central to most legislative systems that regulate the treatment of animals.' ... 'Illegitimate purposes are confined to those that have no value in society' ('The Welfare Paradigm' pp 8, 26). Factory farming — where the vast majority of animals are in service to human will — most transparently reveals the truth of these claims. Here we see that economic benefit to their owners is the sole raison d'être of these animals, and that their welfare is always subject to being traded off for even very minor human gain.

So what is to be done? One avenue of redress, of course, would be to legally close down exploitative animal industries and pastimes for good. Most people realise that, even if desirable, this isn't going to happen unless and until the animal rights view becomes a cultural norm. The next-best result, as several authors propose, is for the laws of diverse jurisdictions (say, the states and territories of Australia) to be rendered more consistent and less qualified. (New Zealand has well-developed national legislation regarding animals that offers a clear, centralised source of guidance. In Australia, however, the protection of animals devolves to states and territories.) Enforcement urgently requires better funding, more vigorously pursued and backed up by stricter sentencing. (Most enforcement in Australia and New Zealand is initiated by the charitable organisations RSPCA and RNZSPCA and most sentencing is relatively lenient, with judges frequently granting reduced liability and exemptions that erode defendants' legal responsibilities.) But, as Elizabeth Ellis points out, serious and widespread improvements to the treatment of animals will not eventuate so long as commercial activities involving them remain 'invisible' to most of us — 'not just physically removed from everyday life, but ... also absent from political discourse and public knowledge' (Sankoff & White, p 360). And, Ellis adds, so long as there is conflict of interest as well as lack of openness and accountability endemic to the process by which animal welfare regulation evolves.

It is impossible to do justice in a short review to the wealth of information, insights and arguments these volumes contain. Each book is both valuable in itself and also complementary to the other. Animal Law in Australasia: A New Dialogue, the slightly earlier of the two, grew out of a 2007 workshop held in Brisbane. The articles in this collection are uniformly intelligent, penetrating and written in a seemingly uniform style. Animal Law in Australia and New Zealand offers itself as the first introductory text in the topic area, and accordingly moves from 'Fundamentals of Animal Law' (Part 1), covering basic philosophical and legal-historical background issues, to 'Animal Law in Practice' (Part 2), which addresses animal law in both countries. In contrast, Animal Law in Australasia is more engaged throughout with philosophical problems that we grapple with every day and address through the law, and with demonstrating how, at the level of practice, getting it wrong philosophically ultimately leads to widespread animal suffering. Each book has footnotes on text pages rather than at the end, and contains comprehensive tables of cases and statutes, as well as a general index and other helpful research tools. Those who want to get up to speed in this very interesting frontier area of law can do no better than start with these excellent volumes.

MICHAEL ALLEN FOX is Professor Emeritus of Philosophy, Queen's University (Canada) and Adjunct Professor, School of Humanities, University of New England, Armidale, NSW.

(2011) 36(1) AltLJ 72
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