Introduction to animal law
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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. Overview. This presentation will:

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Introduction to animal law

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


Overview

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.

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What is animal law

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.

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What is animal law cont

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.

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Development of animal law

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.

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Development of animal law cont

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/) .

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Development of animal law cont1

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)


Development of animal law cont2

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.

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Foundation principles in animal law

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.

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Foundation principles in animal law cont

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/)

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Foundation principles in animal law cont1

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?

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Key legislation

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.

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Key legislation cont

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?

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Issues in animal law

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

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Issues in animal law cont

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.

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Issues in animal law cont1

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.

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Issues in animal law cont2

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?

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Role of commonwealth

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?

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