This article was first published in the December 2019 edition of the Law Society of NSW Journal. Reproduced by Voiceless with the permission of The Law Society of NSW. By Giulia Prosperi-Porta, Vice-Chair, NSW Young Lawyers Animal Law Committee & Timothy Allen, Animal Law Committee Team Member.
The recognition of animal sentience in ACT legislation, strategic litigation for animals, current gaps in NSW legislation and institutional reform were discussed at the NSW Young Lawyers Animal Law Committee’s recent Animal Law Conference in Sydney. The conference brought together eminent animal protection lawyers from across Australia to examine how legal protections for animals can be improved.
Recognition of animal sentience
The recognition of animal sentience in ACT legislation, which came into effect in October, is a positive step for animal protection that could lead to greater change, speakers stated during the panel discussion. The ACT is the first jurisdiction in Australia to recognise animal sentience.
Under the objects of the Animal Welfare Act 1992 (ACT), animals are recognised as ‘sentient beings that are able to subjectively feel and perceive the world around them, have intrinsic value and deserve to be treated with compassion’.
RSPCA Australia Senior Policy Officer and Macquarie University animal law lecturer, Dr Jed Goodfellow, said expressly recognising animals as sentient provided clarity as to the purpose of animal welfare legislation. ‘Stating it expressly in the legislation guides judges, magistrates, policymakers and the enforcers of the legislation as to its true underlying purpose, and answers the question as to why animal welfare matters,’ Dr Goodfellow said. ‘It will provide a more consistent, principled basis to the interpretation, application and development of the law... Implicitly, sentience is recognised by virtue, in prohibiting cruelty, for instance. Why else would it be wrong to be cruel to an animal if an animal isn’t sentient?’
Sentience is defined as the capacity to feel, perceive or experience subjectively. There is mounting scientific evidence that most complex animals suffer pain, experience feelings and are social beings.
Executive Director of community legal centre, Animal Defenders Office (‘ADO’), Tara Ward, said while the legislative change had been described as ‘merely symbolic’, it was a step in the right direction that could lead to greater change. For example, at the hearings for the recent NSW Parliamentary Inquiry into the Use of Battery Cages for Hens in the Egg Production Industry, a member of the committee raised the issue of whether the law should consider the behavioural needs of hens.
‘It’s obvious that if there is legislative acknowledgement of the sentience of animals, it would be a given that you must take that into account,’ Ms Ward said.
Dr Goodfellow said the establishment of an Inspector-General to oversee regulation of Australia’s live animal export industry was another step in the right direction. The Inspector-General of Live Animal Exports Act 2019 (Cth), which establishes the new role, commenced in October. It follows the Moss Review into Australia’s live animal export industry in 2018, sparked by the release of graphic footage by Animals Australia showing sheep suffering from heat stress during transit.
Under the objects of the new Act, it is a requirement to consider animal welfare. The legislation largely provides the Inspector-General with powers to review and seek information. Dr Goodfellow said while the powers were limited, the creation of the role was a promising move. ‘It is fantastic to see that even with a conservative government we have seen the establishment of an Inspector-General. It’s a process that can be built on to create a more robust checking and balancing mechanism in the future,’ Dr Goodfellow said.
However, he said that ultimately, institutional reform was required to transparently and genuinely advance animal welfare legislation in Australia, noting that Australia’s animal protection laws, particularly at a federal level, were lagging behind much of the developed world. ‘We’re very much down at the bottom tier of OECD nations around the world in terms of things like phasing out intensive forms of animal confinement such as battery cages and sow stalls, which are progressively being phased out in the developed world,’ Dr Goodfellow said.
Battery cages were banned in Switzerland more than 25 years ago, and were prohibited in the European Union in 2012. Battery cages are being phased out in New Zealand and Canada. Sow stalls are banned in New Zealand, the UK and Sweden.
Dr Goodfellow, whose PhD examined animal welfare regulation in Australia’s agricultural sector, attributed Australia’s lack of animal protection progress to ‘regulatory capture’, apparent in agriculture departments responsible for regulating animal welfare within the livestock industry. ‘Regulatory capture refers to a process that occurs when the regulatory agency acts in the interest of the industry it is tasked with regulating, in a way that deviates from the public interest that underpins the regulation,’ Dr Goodfellow explained. As an example, he said this was evident in the formulation of new animal welfare standards for Australia’s poultry industry. As reported by the ABC’s 7.30 in 2017, documents obtained through Freedom of Information requests revealed that NSW officials responsible for drafting the standards held secret meetings with egg industry representatives in a bid to take discussions regarding a battery cage ban off the table.
To combat such conflict, Dr Goodfellow recommended the establishment of an independent statutory body with the primary purpose of promoting and protecting animal welfare. ‘They would be replacing departments of agriculture, which would create a more inclusive process where animal welfare groups and committees’ viewpoints can be taken into account in a genuine way,’ he said. ‘We have a good support base and evidence base for this institutional reform to take place.’
The establishment of an independent Office of Animal Welfare is supported by the Australian Labor Party, The Greens, and has been recommended by the Productivity Commission.
Strategic litigation for animals
Animal Law Institute (‘ALI’) Senior Lawyer Amanda Richman said given Australia’s animal welfare laws were largely ineffective in protecting animals, lawyers needed to be 'creative’ in generating positive legal change for animals, including through strategic litigation.
Ms Richman has been working on cases aimed at creating a commercial disincentive to mistreating animals, using the Australian Consumer Law (‘ACL’), including through suing negligent puppy breeders for damages. She lead ‘Nala’s Case’ in the Victorian Civil and Administrative Tribunal (‘VCAT’) in 2018, in which the VCAT member ordered the breeder to pay more than $15,000 in vet fees associated with an illness present at the time of sale but not disclosed to the purchasers. With animals considered ‘goods’ under the ACL, ALI successfully argued that Nala was not of ‘acceptable quality’ at the point of purchase, which breached the ACL’s consumer guarantees. ALI argued that the veterinary fees and ongoing medical costs were reasonably foreseeable losses under the ACL. While the respondent did not contest the hearing, Ms Richman said the member simply agreeing with the principles of the case and awarding Nala’s owners damages was a positive step.
Given that tribunals have jurisdiction in small consumer matters and do not establish precedents, Ms Richman said ALI was considering bringing a matter similar to Nala’s Case in the Federal Court. This could potentially include appealing a tribunal decision, or pursuing a claim over $40,000, which is beyond the jurisdiction of tribunals. However, Ms Richman said such a move runs the risk of hitting the upper limit of what can be considered a reasonably foreseeable loss under the ACL. Further, a recent High Court decision, Burns v Corbett determined that state tribunals do not have jurisdiction in matters involving individuals in different states. Such cases fall into the Federal Court’s jurisdiction, offering ALI another avenue to pursue.
The push for legislative change
In just her first six months in NSW Parliament, the conference’s opening presenter, The Hon Emma Hurst of the Animal Justice Part (‘AJP’) has helped initiate a number of animal protection-related inquiries, including the Inquiry into the Use of Battery Cages in the Egg Production Industry, which received more than 14,000 submissions. The majority of submissions called for an end to battery cages. However, amendments to the inquiry report tabled in October removed the timeframe for a phase out of battery cages. Instead, ‘furnished cages’ with the proposed definition similar to the battery cage, including space of 550cm² per hen - equivalent to an A4 sheet of paper - were recommended.
Ms Hurst also instigated the Inquiry into the Provisions of the Right to Farm Bill 2019, which commenced in mid-November. Under the new provisions, those who ‘incite or direct trespass’ on 'inclosed' lands such as farms, could be liable for a fine of up to $11,000 or 12 months imprisonment. Under the new provisions, the maximum penalty for the offence of aggravated unlawful entry on 'inclosed' lands has significantly increased - from $5500 to $13,200, and/or imprisonment for 12 months. The potential penalties rise to $22,000 or three years imprisonment if the offender is accompanied by two or more persons, or if the offender does anything to put the safety of any person at serious risk. The penalty of imprisonment has been described by lawyers as harsh and disproportionate.
Also underway in NSW is an Inquiry into Animal Cruelty Laws in NSW, chaired by AJP member, The Hon Mark Pearson and an Inquiry into the Use of Exotic Animals in Circuses and the Exhibition of Cetaceans in NSW. Mr Pearson also instigated the Inquiry into Koala Populations and Habitat in NSW, the report for which is due in June 2020.
Ms Hurst also discussed current gaps in NSW legislation including the link between domestic violence and animal abuse, citing that 53 per cent of women fleeing domestic violence have reported that a companion animal has also been abused. Possible responses include improved information sharing between police and animal welfare groups, government funding for domestic abuse shelters and an animal abuse register. Ms Hurst also suggested recognising animals in the Crimes (Domestic and Personal Violence) Act 2007 (NSW), including their protection in apprehended domestic violence orders, and greater flexibility to allow animals to live in rental accommodation.
Other speakers at the conference included Animals Australia Legal Counsel Shatha Hamade and Animal Law and Education Manager at Voiceless: the Animal Protection Institute, Dr Meg Good. ■
Voiceless was a proud co-sponsor of the NSW Young Lawyers Animal Law Committee’s Animal Law Conference 2019: Laws of Tomorrow.
Voiceless Animal Law & Education Manager Dr Meg Good presented at the Conference on the findings from her interviews with a range of animal law and animal protection advocates conducted for Voiceless Animal Law Talk Episode 2: Animal Law and Policy Reform.
You can listen to the podcast here.