Paw Regulation: Animal Law in Australia

In recent years, the general public has certainly become more aware of the often cruel practices surrounding the treatment of animals, such as the battery farming of chickens, mulesing of sheep, live cattle and sheep exports, puppy farms, horse and greyhound racing and all manner of animal testing. Increased public awareness, thanks to the RSPCA, Netflix documentaries and media exposes means that animal rights are often considered in the context of law reform.

• Section 5: ‘Cruelty to animals’ which creates a standard offence for an act of cruelty upon an animal and carries a maximum fine of $5,500 and/or 6 months imprisonment.
• Section 6: ‘Aggravated cruelty to animals’ which carries a maximum fine of $22,000 and/or 2 years imprisonment for individuals, and a maximum $110,000 fine for corporations.

Criminal Code Amendment (Agricultural Protection) Act 2019 (Cth)

• Under section 474.46(1)(d) of this Act, an offender can be charged for recklessly engaging in conduct that encourages trespass, or trespassing themselves, on agricultural land that could cause detriment to a primary production business being carried out on the land. This offence carries a maximum imprisonment of 12 months.

Stronger Communities Legislation Amendment (Domestic Violence) Bill 2020 (NSW) – proposes to amend the Crimes (Domestic and Personal Violence) Act 2007 (NSW) with the following animal law related changes:

• identify in the objects of the Act ‘the intersection between animal abuse and domestic violence’;
• include conduct that causes reasonable apprehension of harm to an animal belonging to or in the possession of the protected person within the definition of “intimidation”; and
• amend the list of prohibitions taken to be specified in every apprehended violence order, to additionally prohibit a defendant from harming an animal belonging to or in the possession of a protected person or a person with whom the protected person has a domestic relationship.

• Snowdale, one of Western Australia’s largest egg producers, was ordered to pay penalties totalling $750,000 after the court determined that the ‘free range’ label on their products was misleading and deceptive. This conclusion was based on evidence of insufficient farming conditions, finding that most of the hens from Snowdale’s sheds did not go outside, considering factors such as the numbers of pop holes, birds per metre of pop hole, flock size inside the shed and the shed size.

Australian Conservation Fund v Commonwealth (1980) 146 CLR 493

• This case is the leading authority for judicial standing in Australia and formed the current test of requiring a person to demonstrate that they have a ‘special interest’, which need not involve a legal or pecuniary right, but has to be more than a ‘mere intellectual or emotional concern’ in order to satisfy standing. In this case, ACF, a prominent environmental protection group, commenced proceedings for an injunction against the Commonwealth for approving the construction of a resort in Queensland on the basis that it did not comply with the Environmental Protection (Impact of Proposals) Act 1974 (Cth). The High Court held that ACF did not have a ‘special interest’ and therefore did not have standing.

Animal Liberation Ltd v Department of Environment & Conservation [2007] NSWSC 221

• Animal Liberation attempted to restrain a proposed operation involving aerial shooting of goats and pigs. Hamilton J in the Supreme Court of NSW discussed the principles in Australian Conservation Fund v Commonwealth (1980) 146 CLR 493 (mentioned above) to conclude that Animal Liberation did not satisfy the ‘special interest’ test, and that even if they did, there was not a ‘sufficient likelihood of the infliction of cruelty upon animals to justify the grant of injuncting relief.’

• In Peter Singer’s influential 1975 book ‘Animal Liberation’ he asserted that the way humans treat animals, such as for food entertainment and clothing, is a morally unjustifiable form of discrimination called speciesism. Speciesism differing treatment based on species membership.
• Due to increasingly high court costs, animal law reform advocates rarely engage in litigation and instead are limited to launching inquiries, investigations and making written submissions to policy makers and lawmakers in the hopes of improving the wellbeing of animals in Australia.
• Animal welfare in Australia currently operates under the principle of not causing ‘unnecessary harm’ to animals, except in approved practices of farmed animals, which Dr Jed Goodfellow suggests is a result of ‘regulatory capture.’ Regulatory capture occurs when a regulatory agency acts in the interests of the industry it is designed to regulate in a manner inconsistent with the public interest the regulation is designed to serve.
• Animal law scholars today are concerned with the status of animals as ‘property’ because it hinders their ability to have specific rights, such as the right not to be killed. Other classifications for the status of animals have been suggested such as ‘living property’ or identifying a guardianship relationship between companion animals and their owners, or treating animals as legal persons, however for the meantime animals remain ‘property’ in all jurisdictions.

• There are multiple agencies and organisations in Australia promoting animal welfare law reform, including but not limited to the RSPCA, the Animal Law Institute, Voiceless, the Animal Welfare Committee of NSW Young Lawyers. Many universities across NSW also offer animal law as an elective law subject.
• Animal law is important because it impacts on various areas of the law including criminal, property, securities, family, and environmental law and involves advocacy for victims who cannot represent themselves.
• Farmed animals receive less attention and less protection under current laws.
• There is a strong intersection between animal cruelty and domestic and family violence with 50% of women leaving these relationships claiming that their animals were also harmed. This is particularly problematic for women who own large animals such as horses and need to seek refuge in a shelter.

Stronger Communities Legislation Amendment (Domestic Violence) Bill 2020 – Second Reading Speech in the Legislative Council

Gary L. Francione’s 1996 article ‘Animals as Property’

‘Dominion’ – a documentary on animal agricultural practices in Australia

ACCC v Snowdale Holdings Pty Ltd (No 2) [2017] FCA 834

Animal Liberation Ltd v Department of Environment & Conservation [2007] NSWSC 221

The Animal Law Institute

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In 2020 the RSPCA reported that there are over 29 million pets in Australia – that’s more pets than there are people, and a pet in 61% of Australian households meaning that we have one of the highest pet ownership rates in the world. Although we may all love and protect our cuddly companions, how does the law protect them? Animal law in Australia is still developing and emerging. Historically, animal law has arisen out of the regulation of primary industries and that history sits in tension with modern law reform efforts that aim to improve animal welfare. Legislation relating to animals in both domestic and commercial settings currently operates under an animal welfare approach that seeks to minimise ‘unnecessary harm’ caused to animals. However, the protections afforded under animal welfare legislation such as the Prevention of Cruelty to Animals Act 1979 (NSW), vary depending on the species of the animal and the context of its relationship to humans. For example, farmed animals are not granted the same protections that companion animals are. Joining me today on Hearsay to discuss the current state and the future of animal law is Tess Vickery, policy advisor to the Honourable Emma Hurst in the Parliament of New South Wales and Rishika Pai, solicitor at the Women’s Legal Service of New South Wales. Tess and Rishika, thanks so much for joining me today on Hearsay.

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TIP: Humanity’s relationship with animals and consequently the conceptualisation of animals as ’property’ has existed since ancient times and it has societal, religious and cultural roots. However classifying animals as property presents legal and philosophical issues because: 1) they are sentient beings that can feel pain and pleasure, and 2) our human relationships with certain species of animals and in certain contexts affects how we regard their wellbeing.

Now some say that animals should be regarded as property because of their various cognitive inabilities that distinguish them from humans, such as self-awareness. However, there are also humans that don’t possess the cognitive abilities of a fully capable adult such as very small children or the cognitively impaired, yet their moral status isn’t affected by their ability to say, be self-aware, or speak, or have and observe moral responsibilities towards others. The term ‘moral status’ here is being used to refer to the right to not be killed or to suffer harm. As Australian moral philosopher Peter Singer has summarised: “The catch is that any such characteristic that is possessed by all human beings will not be possessed only by human beings. For example, all human beings, but not only human beings, are capable of feeling pain; and while only human beings are capable of solving complex mathematical problems, not all human beings can do this.”

A key explanation for why we afford all humans moral status, even those that are incapacitated, and no moral status to non-human animals, even those that have capacities that are similar to those of some humans, relates to the innate ‘specialness’ of the human animal compared to other animals, which animal rights scholars refer to as ‘speciescism’ and that’s what I’m about to ask Tess and Rishika about now.

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TIP: Tess is referring here to changes in the Crimes (Domestic and Personal Violence) Act 2007 (NSW). In particular:

• Section 3, to identify in the objects of the Act ‘the intersection between animal abuse and domestic violence’;
• Section 7,  to include conduct that causes reasonable apprehension of harm to an animal belonging to or in the possession of the protected person within the definition of “intimidation”; and
• Section 36(c), which provides that every apprehended violence order prohibits a defendant from harming an animal belonging to or in the possession of a protected person or a person with whom the protected person has a domestic relationship.

In the second reading speech for the Stronger Communities Legislation Amendment (Domestic Violence) Bill, the Honorable Emma Hurst highlighted the significance of the legislation in relation to animal rights, quoting “in drawing attention to the fact that animals are living, sentient beings who deserve a special level of protection. The fact that animals are considered property under the law is an anomaly. Nobody considers their cat or dog as a piece of property, nothing more than a table or chair. They are members of the family. For those leaving violence, animals are often described as their reason for living or their primary source of support….when making an ADVO application, police and survivors do not even realise that a property order would extend to animals, with the result that available protections are not utilised because animals are not considered property to the general public.” Now this is a key statement identifying the gap between the public perception of one’s relationship to animals compared with the legislative reality of their diminished legal status as property.

We’ll leave a link to the full second reading speech for the Act in the episode’s show notes.

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TIP: As Tess has said, animal welfare legislation in NSW follows the principle of not causing ‘unnecessary’ harm to an animal. However prominent animal rights law academics, such as Gary Francione, an American legal scholar, have pointed out the philosophical dilemma of agreeing that ‘unnecessary harm’ should not be inflicted upon animals while harm is routinely inflicted on them in contexts that don’t seem to involve any notion of ‘necessity.’ He says that there are many areas of animal exploitation and industry where the end product or service can’t be justified as necessary in itself. For example, minks are routinely killed and their fur is sold worldwide, yet wearing mink fur is not really a ‘necessity’, is it? Francione suggests that the problematic and contradictory nature of the term ‘unnecessary harm’ is perhaps most clearly illustrated in relation to forms of entertainment such as animal circuses, zoos and rodeos where the concept of ‘necessity’ can be difficult to relate.

We’ll leave a link to Francione’s article ‘Animals as Property’ in the show notes for more discussion on the legal status of animals and the implications of the term ‘unnecessary harm.’

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TIP: In years past there have been numerous live export trade scandals that have impacted trade relations with other nations. For example, in 2003 there was the Cormo Express incident, in which Saudi Arabia rejected a shipment of 57,000 sheep on the basis of a scabby mouth infection, and the Australian government suspended exports to Saudi Arabia as a consequence for two years. In 2006, the live trade to Egypt was suspended after footage was released showing the mistreatment of Australian cattle in a Cairo abattoir. One of the most substantial and economically devastating scandals was in 2011 when the Australian government suspended all live exports to Indonesia, Australia’s largest cattle importer, for six weeks after an ABC Four Corners’ episode broadcasted about animal cruelty in Indonesian abattoirs.

In 2019 the government passed the Inspector-General of Live Animal Exports Bill 2019 (Cth) which established an independent authority responsible for oversight of the Department of Agriculture in its role as the regulator of the Australian live export industry following the Awassi express footage released on Sixty Minutes which depicted thousands of sheep suffering and dying from heat stress on route to the Middle East.

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TIP: Let’s talk about the case of greyhound racing for a moment. Some of you might remember that Four Corners episode which aired in February 2015 showing the ‘dark side’ of Australia’s multi-billion dollar greyhound racing industry. And specifically live baiting: an incredibly cruel practice where animals are used as live bait and then usually mauled and killed by the dogs.

Now in the months following that Four Corners episode the greyhound racing industry came under severe scrutiny, not just about the practice live baiting but also about the welfare of the greyhounds themselves, and was subject to numerous suspensions and inquiries along with widespread condemnation of the sport. In June 2016, former High Court Justice Michael McHugh delivered his report as the Commissioner of the Inquiry into the Greyhound Racing Industry in NSW, reporting, and I quote, ‘overwhelming evidence of systemic animal cruelty, including mass greyhound killings and live baiting’, concluding that the industry had ‘fundamental animal welfare issues, integrity and governance failings that cannot be remedied.’ Following the report, Mike Baird, the NSW Premier announced that the NSW government was going to ban greyhound racing by 1 July 2017. Unfortunately, in October 2016, facing pressure from industry, Baird changed his position and announced that greyhound racing would not be banned after all.

Since then, greyhound racing has remained a focus for animal law reform advocates such as the New South Wales Young Lawyers Animal Law Committee which prepared a submission in response to an inquiry on the NSW legislation last year. Some of the issues raised in that submission concerning animal welfare were that:

• 40% of racing greyhounds in NSW die from on-track injury or euthanasia as they are deemed either unsuitable for re-homing or are unsuccessfully re-homed
• Between January and June 2020 alone, just 6 months, there were 25 track-related greyhound deaths and about 1,300 track-related injuries in NSW.

In their submission the committee suggested that there needs to be more support for computer-simulated greyhound racing events to incentivise people to move to more ethical practices. The tax for computer-simulated racing is more than double that of physical greyhound racing. The committee expressed the view that the tax should be equalised, if not taxed at a higher rate for physical greyhound racing, to encourage people to no longer support the physical version of the race.

And last year, it might have been 2019 actually, there was a Bill that sought to amend the Criminal Code and criminalise people using a carriage service for inciting trespass on agricultural land. And so the Animal Law Committee did a submission, as did various other organisations and stakeholders on that issue sort of saying that Australia’s existing law is adequate in dealing with trespass and incitement. And that bill was sort of brought about by, you might have heard, someone released a map showing where the slaughterhouses and factory farms are in Australia and that’s what brought about that bill. And one of the points we I recall being made in that submission was the imprisonment penalty that was proposed in that bill was about on par with the maximum penalties for acts of animal cruelty in several Australian jurisdictions. So we just didn’t think that it was proportionate to the crime but that bill was ultimately passed.

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TIP: The legislative amendment that Tess is talking about here is the Criminal Code Amendment (Agricultural Protection) Bill 2019 (Cth).

Under the proposed paragraph 474.46(1)(d), an offender can be charged for recklessly engaging in conduct that encourages trespass, or trespassing themselves, on agricultural land that could cause detriment to a primary production business being carried out on the land. This offence would carry with it a maximum imprisonment of 12 months and a $12,600 fine for individuals.

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So I think that’s something really to be proud of as a nation. Don’t know if you have anything to add to that Tess or?

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TIP: One such case in the Federal Court was the decision of ACCC v Snowdale Holdings Pty Ltd (No 2) [2017] FCA 834 where Snowdale was ordered to pay penalties totalling $750,000 for making false or misleading representations that its eggs were ‘free range’. The ACCC Commissioner Mick Keogh commented on the case at the time saying, “consumers pay a higher price for free range eggs, so when a ‘free range’ claim is made, it’s important that consumers are purchasing eggs laid by chickens in free range conditions.” The Court ultimately held that Snowdale’s labelling amounted to misleading and deceptive conduct after finding that most of the hens from Snowdale’s sheds did not go outside due to farming conditions including insufficient numbers of pop holes, that’s how the birds get outside, birds per metre of pop hole, flock size inside the shed and the shed size itself.

We will leave a link to this case in our show notes.

In most of those cases I believe they ended up resolving with admissions basically from the farmers to basically say yes we did the wrong thing and agreeing on penalties, but there were some as you said that ultimately led to a finding by the court that free range was understood by consumers to mean one thing and what these farmers were delivering was another thing. Unfortunately there has been a little bit of a slide back since that happened so after that occurred, what happened is there was an ACCC standard that was basically introduced to I guess to bring some more clarity about exactly what was meant by free range. But unfortunately that standard was a lot worse than I think people were expecting. The standard generally before was that about 1500 hens per hectare was sort of like the rough standard for free range, but under this new standard you can have 10,000 hens per hectare and still call yourself free range. So unfortunately it’s a little bit disappointing from that angle because I think the court decision was leading us in a much better way, but the good thing is now that under this standard producers do have to put their stocking density on their cartons of eggs. So if you’re shopping you can look around you can see the ones that say 10,000 hectare versus 1500 hens per hectare or even less. So I think that’s a positive that consumers at least have that information out there.

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TIP: One of the key authorities for standing in Australia is the case of Australian Conservation Fund v Commonwealth [1980] HCA 53. In that case ACF, a prominent environmental protection group, brought their case on the basis that they were the peak advocacy body for environmental issues. The Court found at first instance and on appeal that ACF had no standing to commence proceedings, seeking relief in relation to the construction of a resort in Queensland allegedly in non-compliance with the Environmental Protection (Impact of Proposals) Act 1974 (Cth). The High Court found that to have standing, a person has to demonstrate a ‘special interest.’ Now that doesn’t have to be a legal or a pecuniary interest but has to be more than a ‘mere intellectual or emotional concern.’

With Gibbs J stating at paragraph 20:

‘A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his actions succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.’ –  Australian Conservation Fund v Commonwealth (1980) 146 CLR 493, 531 [20]

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TIP: The Nonhuman Rights Project is the only civil rights organisation in the United States solely dedicated to securing rights for animals. Their mission is to challenge the “legal thinghood” of animals is demonstrated by their work for their first client, Tommy, a male chimpanzee believed to have been born in the early 1980s who was regrettably found living alone in a cage in a trailer lot in New York. Now Tommy’s owner alleges that Tommy appeared as the character ‘Goliath’ in the 1987 film ‘Project X’, the same film that animal activist and American TV icon Bob Barker and others alleged that the chimpanzees were beaten by trainers.

In 2013 the NhRP filed a petition in the New York State Supreme Court for a writ of habeas corpus, a legal remedy traditionally used by persons claiming to be unlawfully detained or imprisoned. In that case, Supreme Court Justice Joseph M. Sise held that the court couldn’t agree with the NhRP’s argument to apply New York’s habeas corpus legislation to Tommy, however he nonetheless encouraged the NhRP’s animal rights mission and offered his ongoing extra-judicial support in his comments.

The last significant development in the case was in 2018 when the NhRP announced that the legal advocacy organization, the Center for Constitutional Rights (‘CCR’), along with prominent American law professors Laurence Tribe, Justin Marceau and Samuel Wiseman, had submitted a letter of amicus curiae in support of the NhRP’s motion for permission to appeal. In that brief they stated that ‘Tommy’s case presents a novel question of significant importance, both in terms of the legal precedent it will set and as a matter of social justice and public policy.’ Currently, the NhRP is in the process of determining its next steps after a denial of permission to appeal.

We’ll leave a link in the show notes to the Non-Human Rights Project’s summary on Tommy’s case where you can access all of the relevant legal documentation.

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