By Dr Steven White
Leading national and international researchers, teachers and practitioners in animal law examined a range of vital animal protection issues at the Law Futures Centre’s Animal Law Conference. The Conference focused on the regulatory dimensions of animal protection, including regulatory norms, informational regulation, regulatory actors, protection standards and governance.
(a) Regulatory Norms
The first speaker for the day, Professor Werner Scholtz (University of the Western Cape) investigated the emergence of an international animal welfare norm and its
potential consequences for the International Convention on the Regulation of Whaling. A reinterpretation of the Convention that takes into account welfare concerns has several consequences for the whaling regime. Werner highlighted the legal consequences of such an interpretation in a critical manner and argued that the recognition of humane killing as an expression of concern for the welfare of animals may ultimately constitute a phase in an incremental process towards the non-lethal utilisation of whales. An evolutionary interpretation of the Convention may support a paradigm shift towards a preservation ethic. This in turn may provide a step along the path where ‘soft’ international law incorporates an ethic of animal welfare.
Dr Sophie Riley (University of Technology Sydney) outlined her research agenda for a new book, which will address the historical foundations of the now ubiquitous norm of ‘animal welfare’. She showed how international veterinary conferences and treaties relating to animal health and quarantine, in the late nineteenth and early twentieth centuries, facilitated the commodification of farm animals. During this time, the focus lay on achieving disease-free shipments that treated animals as bulk commodities, leading to the regime developing without meaningful ethical engagement. Instead, it fostered the use of animals along a commodification pathway that provided post-war intensive farming with a ready-made avenue for marketing animals in a commercially-driven manner. This calls into question whether a welfare paradigm was, and indeed is, sufficiently robust to offset commercial biases that have become increasingly ingrained by the economic gains humans make from farm animals.
(b) Informational Regulation and Free Range Labelling
Professor Christine Parker (University of Melbourne) discussed the results of her ARC grant project which included an investigation of the politics of free range labelling. She argued that the popularity of “free range” and higher animal welfare labelling shows a growing recognition by retailers and food producers that the public are concerned about the extreme confinement of sentient creatures in factory farming systems. She summarised the lessons from an extensive empirical socio-legal study of the impacts of free range and other higher welfare labelling claims on state and non-state governance of factory farming, voices and themes in public discourse concerning animal agriculture, and the lives of the animals themselves in egg, pig and meat chicken production in Australia.
(c) Regulatory Actors
Dr Jed Goodfellow (RSPCA Australia & Macquarie University) addressed the role of government in live export, highlighting ongoing animal welfare failures in the live animal supply chain. The roles and responsibilities of live exporters was considered, including the extent to which exporters can be held accountable for the fate of Australian animals exported to destinations around the world.
Separately, Jed highlighted two recent State-based campaigns targeting RSPCA WA and RSPCA Victoria respectively. Organisations hostile to improved animal welfare and an active role for the RSPCA in its promotion and enforcement, including the Shooters, Fishers and Farmers Party and the National Party, led trumped up parliamentary inquiries in the two jurisdictions. Whatever the premise of the inquiries, positives consequences include an affirmation of the important role played by the RSPCA in promoting animal protection, and the suggestion of an independent office of animal welfare in WA. On the other hand, RSPCA Vic has agreed to step back from activist campaigning in favour of more restrained advocacy.
(d) Protection Standards
Katrina Kluss (Queensland Bar & University of Queensland) and Professor Jonathan Crowe (Bond University) separately addressed the legal status of animals and the ideal of legal personhood. Katrina outlined a new theoretical approach, bridging the justice arguments of Robert Garner with the sentience-based, utilitarian arguments of Steven Wise and Peter Singer. Jonathan’s presentation complemented this theory with an account of some of the ways in which Australian courts or legislatures might take such a step, whether relying on strategic litigation or legislating for a concept of guardianship in Australian law. Specifically, he considered whether there is sufficient scope in Australian law to commence animal welfare litigation as a special interest group, under the writ of Habeas Corpus, or under guardianship-type provisions.
Dr Rebekah Eyers (RSPCA SA) provided an overview of her PhD research into the application and enforcement of animal welfare standards at Queensland sale yards. Her empirical, observational study of sale yards was married with a sophisticated regulatory analysis of the prevailing, inadequate compliance monitoring and enforcement processes, and suggestions for how these might be reformed.
Marcelo Rodriguez Ferrere (University of Otago) highlighted the Animal Welfare Amendment Act 2015 (NZ) as a major milestone in the development of New Zealand’s animal welfare legal framework. The legislation introduced the power to create regulations that prescribe specific standards of care complementing the general obligations in the parent Act. In 2016, regulations relating to bobby (young, male) calves in the dairy industry and live export were introduced, and in 2017, 46 new regulations are due to be introduced, coming into effect in October 2018. From one perspective, such new regulatory power is to be applauded: it allows greater enforcement, oversight and certainty of the obligations owed by those in charge of animals and their care. However, it remains unclear how existing specific codes of welfare, will work with the new regulations. Marcelo explored the different regulatory structures available for enforcing animal welfare statutes, their advantages and disadvantages, and what Australia can learn from the New Zealand experience so far.
Katie Woolaston (Griffith University) described a regulatory mechanism that can be of use to animal lawyers: collaborative governance. This ‘new governance’ is of growing importance in environmental and natural resource management, and is based on de-centralising decision making and removing permanent hierarchies. She first described the premise of collaborative governance, its uses, successes and challenges. The benefits of legally integrated collaborative processes for wild animal welfare were then identified, including giving animal lawyers and other advocates a more permanent voice in regulation, as well as the ability to promote internalisation of animal-friendly norms. Finally, she applied the possibilities for collaborative governance to two case studies: kangaroos and motor sports in Bathurst, and lethal management of sharks in Western Australia. These case studies not only demonstrate the need for collaborative governance for wild animal welfare, but also the informal and highly effective community based processes already in place.
Whether internationally or domestically, improving animal protection continues to grow as a significant policy, political and ethical imperative. The Conference provided rich insights into the regulatory challenges and opportunities in constructively responding to this imperative.