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The State of Australian Animal Law and What Needs Improving

A new book discusses unnecessary animal suffering and conflicts of interest.

Key points

  • Elizabeth Ellis reviews current Australian animal law, including the exemption of most animals from cruelty laws and hidden animal abuse.
  • Animal law "helps to construct the relationship between human and non-human animals, including through its silences and omissions."
  • There is an enormous gulf between official animal welfare narratives and the lack of legal protection animals actually receive.

Animal law is a growing area of study and practice because of the many ways in which nonhuman animals (animals) are used in a wide variety of venues.

Globally, nonhumans, including fully sentient companion animals and other thinking and feeling nonhuman beings, are viewed legally as unfeeling property or things, and this means they can be subjected to incredibly invasive, painful, and deadly treatment without breaking any laws.

In the United States, the Federal Animal Welfare Act redefined the word "animals" to exclude laboratory rats, mice, and other sentient beings who clearly are animals and used by the millions. While some people think this is a joke, it isn't, and countless scientists continue their work without questioning this outrageous taxonomic revision.

Sydney University Press, with permission.
Source: Sydney University Press, with permission.

I've previously posted a number of essays about different systems of animal law, and I'm pleased Elizabeth Ellis of the School of Law at the University of Wollongong could answer some questions about her new landmark book Australian Animal Law: Context and Critique.1

Some key areas she considers include unnecessary animal suffering, the exemption of most animals from the operation of cruelty laws, regulatory conflicts of interest, the hidden nature of animal use, and the lack of transparency in animal law.

Marc Bekoff: Why did you write Australian Animal Law?

Elizabeth Ellis: The last two decades in Australia have seen significant work in the field of animal law: a proliferation of university courses, law reform activities, and a growing body of literature. Yet all this good work has not been matched by substantial legal reforms. While there have been some wins for animals, these have been relatively modest, and major problems remain largely unchanged.

Even quite modest improvements get bogged down for years, as evidenced by the recent process to create national welfare standards for poultry. I wanted to explore this resistance to change by examining the common threads in the legal and regulatory framework across the different animal use sectors.

MB: How does your book relate to your background and general areas of interest?

EE: I had been concerned about government-sanctioned animal cruelty, such as the live export trade, for a long time. Although I viewed the issues as primarily political, some of my concerns married with my teaching and research interests in public law, in particular issues of government accountability and transparency.

When I wrote a foundational law textbook for first-year students, I took the opportunity to include references to animal protection issues to illustrate the practical operation of law. Around the same time, animal law started to emerge as a discipline in Australia, and the work of other lawyers, as well as the establishment of Voiceless, helped me to see how law could have an important role in effecting change.

In 2008, I introduced Animal Law as an elective subject in the LLB degree at the University of Wollongong, making it one of the earliest courses to be taught in Australia.

MB: Who is your intended audience?

EE: The book is a resource for Australian law students and teachers, but it aims to provide a critique that is also accessible to animal studies scholars and the general public. I hope my contextual approach will expose a wider audience to the enormous gulf between official animal welfare narratives and the lack of legal protection animals actually receive.

MB: What are some of the topics you weave into your book, and how does your work differ from others that are concerned with similar topics?

EE: The existing Australian legal texts tend to focus on the regulatory problems within each animal use sector in a relatively discrete way. While I traverse similar ground, I wanted to emphasise the common regulatory characteristics across all sectors, including those which provide the greatest protection.

The commonalities include regulation that is industry dominated, fragmented, largely invisible, poorly enforced, and anomalous. The connection between these characteristics compounds their effect. I also highlight the interrelationship between governance issues and the more theoretical and ethical questions underlying animal protection.

Changing governance arrangements not only opens up opportunities for law reform but also informs our understanding of nonhuman animals which in turn influences regulatory arrangements. In conjunction with this, I explore how the current institutional arrangements contribute to official animal welfare narratives that are widely promoted but factually incorrect.

MB: What are some of your major messages?

EE: The emphasis on commonalities across the regulation of all animal uses exposes the systemic nature of the legal problems in Australia and why it’s been so difficult to effect meaningful change. The key takeaway is the urgent need to establish genuinely independent statutory agencies at both state and federal level to assume responsibility for all aspects of animal protection.

At present, agriculture departments act as the gatekeepers of animal protection despite their manifest conflict of interests. Although reviews of animal welfare legislation are currently underway in most Australian jurisdictions, proposed reforms are severely limited because the same departments oversee the review process!

But it’s not just the immediate impact of this conflict of interests that is highly problematic. Agriculture departments play a key part in promoting the idea that Australia has very good animal protection, a manifestly false narrative enabled by secrecy, not only of much animal use but also of regulatory action.

A key task of independent statutory agencies would be to foster increased openness about the practices the law allows and the extent of their regulation. More broadly, treating animal protection as a secondary function of any government agency perpetuates the idea that nonhuman animals have limited moral significance.

By contrast, to insist on the creation of separate, independent agencies is to recognise that animals have inherent value, deserving of consideration in their own right, not merely as adjuncts to human activity. This dynamic relationship between the material and the ideational is an important aspect of the book.

MB: Are you hopeful that as people learn more about animal law, they will come to appreciate the current challenges and why it's so important to work for major change?

EE: It’s pretty clear that when people know and see what the law actually allows to be done to animals, many appreciate the need for substantial change. The challenge is to expose the reality of both animal use and the limits of current regulatory action. With governments cracking down on undercover activities that reveal animal suffering, it is critical that responsibility for animal protection is transferred to properly-resourced, independent bodies with a commitment to a much greater level of transparency about our use of animals.

References

In conversation with Elizabeth Ellis, an honorary senior fellow with the School of Law at the University of Wollongong where she taught for many years. She introduced animal law into the LLB degree in 2008, making UOW one of the earliest Australian universities to teach the subject.

1) These include: Human Imprisonment, Animal Captivity, Social Justice, and Law; Is Treating Abused Animals as Victims Good for the Animals?; How Animal Law Applies to Many Areas of Mainstream Practice; Are Animals "Things?" The Evolution of Animal Law; Canine Science Shows Dogs Aren't Merely Unfeeling Property; Should Wildlife Be Granted the Right to Own Their Homes?; Why Are Cages Bad for Nonhumans and OK for Humans?; Animal Welfare in China: Tradition, Facts, and Fiction; and As Food Animals Became "Things," Their Feelings Were Ignored.

The Animal Welfare Act Claims Rats and Mice Are Not Animals.

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