Introduction to Animal Law

1. Introduction to Animal Law Steven White Lecturer, Griffith Law School Consultant, Couper Geysen Lawyers AELA – Voiceless – Griffith University Seminar: Protecting our evolutionary companions - do our laws measure up? Monday 12 May 2014 Griffith Law School

2. Overview • This presentation will: • address the question ‘what is animal law?’ • describe the development of animal law in Australia and internationally. • canvas some of the key principles and issue areas in animal law. Griffith Law School

3. What is Animal Law? • In the broadest sense: • legal doctrine in which the legal, social or biological nature of nonhuman animals is an important factor (Schaffner, An Introduction to Animals and the Law). • consistent with a ‘black letter’ approach to law. • focus on established doctrinal categories (eg property, contract, torts, administrative law, succession etc) and identify legislation and cases which in any way concern animals. Griffith Law School

4. What is Animal Law? (cont) • In a narrower sense, focus on animal protection: • places the animal at the centre of legal consideration. • concerned to improve the legal status and/or protection of animals. • draws on non-legal disciplinary knowledge including: • animal welfare science (scientific study of animal behaviour/sentiency); • ethics; • politics/political theory; and • sociology. Griffith Law School

5. Development of Animal Law • In the United States: • first taught in 1986 in one law school, has now been taught in more than 100 law schools. • Center for Animal Law Studies (Lewis & Clark Law School, Portland, Oregon) – offers a suite of courses in animal law. • number of law journals established including: • Animal Law Review; • Journal of Animal and Environmental Law; • Journal of Animal Law; and • Stanford Journal of Animal Law and Policy. • comparatively well-resourced advocacy organisations: Animal Legal Defense Fund; Humane Society of the United States; PETA. Griffith Law School

6. Development of Animal Law (cont) • In Australia: • first offered by UNSW in 2005. Thirteen universities offer or have since offered animal law: Adelaide, ANU, Bond, Flinders, Griffith, Macquarie, Melbourne, SCU, Sydney, Tasmania, UNSW, UTS & Wollongong. • Australian Animal Protection Law Journal established in 2008. • a plethora of new texts (see over), as well as a freely accessible e-book: Animal Law: Principles and Frontiers (Graeme McEwen, 2011 http://bawp.org.au/animal-law-e-book/) . Griffith Law School

7. Animal Law in Australasia (2nd ed, 2013; 1st ed 2009) Animal Law in Aust (2011) Humanising Animals, Civilising People (2012) Animal Law in Aust & NZ (2010) Development of Animal Law (cont)

8. Development of Animal Law (cont) • Animal law practice and/or advocacy: • Voiceless. • Barristers Animal Welfare Panel (national). • BLEATS (Qld). • Animal Welfare Community Legal Centre (Tas). • Pro Bono Animal Law Service (PILCH in Vic and NSW). • Couper Geysen Lawyers (Brisbane) – first private practice firm in Australia to specialise in animal law. Griffith Law School

9. Foundation Principles in Animal Law • First things first: • Why and how do animals matter? • a moral/ethical question. • obligations owed to animals: • animal welfare: prevailing approach - humane treatment only to extent doesn’t interfere with human interests, even where those interests trivial. • animal interests: weigh up human and animal interests, without devaluing animal interests. • animal rights: cognition and/or sentiency of animals demands recognition of animals as bearers of rights. • many other ways of thinking about why we have obligations to animals: kinship, antidiscrimination, capabilities, etc. Griffith Law School

10. Foundation Principles in Animal Law (cont) • What is an ‘animal’ in law? • detailed definition in Animal Care and Protection Act 2001 (Qld) (ACPA) ss 11(1) & (2) . • differs from jurisdiction to jurisdiction. • Legal status of animals • animals as personal property (animals are not ‘legal’ persons) – objects of ownership. • should legal status of animals be modified? • note Nonhuman Rights Project in the US – focus on court recognition of legal personhood for chimpanzees, elephants and dolphins (first cases filed in late 2013) (http://www.nonhumanrights.org/) Griffith Law School

11. Foundation Principles in Animal Law (cont) • Central feature of animal protection law: • protection varies according to setting • eg a rabbit might be a companion animal (highest level of protection), farm animal (limited protection), research animal (very limited protection) or “pest” (very limited protection). • same animal, same sentiency/cognition – different legal protection in different settings. How is this possible? Griffith Law School

12. Key Legislation • Animal welfare largely a matter for States and Territories (except live export), but there is a push for nationally consistent approach. • In Queensland: • prohibition against cruelty (s 18 ACPA) and duty of care imposed (s 17 ACPA). • prohibition against aggravated cruelty: proposed by A-G late March 2014. • key phrasing: “no unreasonable pain or suffering”, but what is “unreasonable”? Flexible term, meaning can vary over time but rarely tested in Australian courts. Griffith Law School

13. Key Legislation (cont) • Sections 17 & 18 nominally apply to all animals. • However: • exemptions from ss 17 & 18 offences, including where compliance with a code of practice/standards and guidelines: ss 38, 40 ACPA and s 2 and Schs 1-3 of the ACP Regulation 2012. • what does this mean? Practices which otherwise would be “cruel” are legal, so long as included in a code of practice/ standards and guidelines (eg beak trimming, sow stalls, mulesing etc). • key issue: who prepares codes of practice/standards and guidelines? Griffith Law School

14. Issues in Animal Law • Companion animals: • overwhelmingly regarded as ‘members of the family’. • in strict legal terms best protected of nearly all categories of animal but range of issues: • cruelty/duty of care + sentencing • overpopulation • puppy farming • dangerous dogs • succession • veterinarian liability for malpractice • pet custody disputes Griffith Law School

15. Issues in Animal Law (cont) • Farm animals: • cruelty and welfare, including in factory farming and live export. • exemption from cruelty prohibition and duty of care obligations where compliance with code of practice/standards and guidelines (see earlier slide). • currently shifting from codes of practice to national standards and guidelines. • labelling – inconsistent approaches/lack of clarity. Griffith Law School

16. Issues in Animal Law (cont) • Animals used in research: • regulated by Australian code for the care and use of animals for scientific purposes 8th edition (2013). • defence to cruelty offences where compliance with the Australian code: ACPA s 40. • role of Animal Ethics Committees, transparency/accountability. • meta-studies of research effectiveness increasingly calling into question necessity/usefulness of much animal research. Griffith Law School

17. Issues in Animal Law (cont) • Wild animals: • protection, farming and killing of native species. • killing of so-called ’feral’ or ‘pest’ animals. • intersection with environmental law: • conservation legislation can have significant implications for animal welfare: see, eg, Environment Protection and Biodiversity Conservation Act 1999 (Cth). • conflict between animal protection law and environmental law? Griffith Law School

18. Role of Commonwealth • Traditionally limited role, but increasingly more significant from 1970s. • Commonwealth: • largely regulates live export. • until last year funded and coordinated Australian Animal Welfare Strategy, with major goal of nationally consistent approach to animal welfare. • coordinates codes of practice and, more recently, preparation of Australian Animal Welfare Standards and Guidelines. • need for federal legislation and Independent Office of Animal Welfare? Griffith Law School