Weisbrot, David --- "Comment" [2007] ALRCRefJl 1; (2007) 91 Australian Law Reform Commission Reform Journal 2

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COMMENT

* By Professor David Weisbrot, President ALRC

This year marks the 200th anniversary of the passage of the Slave Trade Act 1807 (UK), representing the successful effort of Lord Wilberforce and others finally to persuade the British Parliament to outlaw the slave trade—meaning, basically, the transportation of slaves to the British colonies, especially in the West Indies. (Slavery itself was not abolished by statute until 26 years later, with the passage of the Slavery Abolition Act 1833—although in 1772 Lord Chief Justice Mansfield ruled in the case of James Somersett that slavery was ‘an odious practice’ that was contrary to the Common Law).

This year also marks the anniversary of the (rare) successful federal referendum in 1967, which amended the Australian Constitution to authorise the Commonwealth (and not merely the states) to make laws in respect of Aboriginal and Torres Strait Islander people, and to include Aboriginal and Torres Strait Islander people in the national census—meaning, effectively, that they would have the same rights as other Australian citizens for the first time.

One of the most frequent comments made during the various commemorative events and media stories surrounding the 27 May 2007 anniversary of the referendum was—notwithstanding the sad, continuing legacy of Aboriginal disadvantage—that it is very difficult for people operating under a contemporary sensibility to believe that it was only 40 years ago that Aboriginal and Torres Strait Islander peoples were non-citizens in their own homeland as a matter of Constitutional law.

At the Sydney meeting of the Australasian Law Reform Agencies Conference in April 2006, over 100 institutional law reformers from 32 law reform agencies in 25 Commonwealth countries endeavoured to identify the ‘over the horizon issues’ that would occupy them in the coming decades. These issues included: the environment and sustainability (especially global warming and water resources); the telecommunications revolution and the new media; changing demographics, such as the ageing population base in developed countries, and the worldwide scourge of HIV-AIDS; the challenges of ensuring national and international security without departing from human rights protections; and, finally, animal welfare and animal rights—described by speakers as perhaps ‘the next great social justice movement’.

This issue of Reform is devoted to exploring the parameters of this emerging consciousness about the need to treat non-human animals with dignity and respect. Previous issues of Reform routinely feature a range of distinguished scholars, thinkers and practitioners. However, we are most deeply honoured to be able to open this issue with a piece from John M. Coetzee, Nobel Laureate in Literature and author of Lives of Animals (1999) and Elizabeth Costello (2003).

We are also honoured to present an article by Steven Wise, a pioneer in the field of animal law and litigation, and author of Rattling the Cage: Towards Legal Rights for Animals (2000) and Drawing the Line: Science and the Case for Animal Rights (2002)—as well as many other leaders in this field from Australia and overseas.

The ALRC approached a diverse group of potential authors, with the aim of presenting a wide range of views on animal welfare and the law. Of the potential contributors from the farming and food production industries, only one body accepted the ALRC’s invitation — and the ALRC is grateful to Alan Pearson, Kathleen Plowman and John Topler for their contribution.

As with other social justice movements, activists are seeking to push the existing boundaries and achieve law reform through a range of strategies, including: lobbying for legislative change; utilising targeted and test-case litigation; undertaking community and professional education campaigns; and harnessing the power of consumers in the marketplace.

In recent years, we have witnessed dramatically changed social attitudes—and practices—towards such activities as tobacco smoking, energy consumption, water use, and food production. Little of this change has been driven by law. Some of this change has been prompted by the use of economic disincentives (such as taxes), and some through the use of direct sanctions (such as in relation to illicit drug use). This has involved successful efforts at good community education and consciousness-raising—for example, persuading people that tobacco smoking is very harmful to their health.

Once convinced, it is notable that many people are willing to vote with their pocketbooks and pay more for green power, water saving devices, and organic and humanely-produced food. (It is also evident that, within the family, children usually make the best compliance officers!)

Once awareness has been raised, how can we offer people of good will the ability to act on their consciences? One legal strategy might involve the development of good food labelling laws that address and reward the ethical and human treatment of animals. In this part of the world, for example, the Australia New Zealand Food Standards Authority (ANZFSA), operates an independent, joint statutory authority that sets food standards in a Code with legal force (as regulations), breach of which can attract penalties.

To date, the focus of food standards has been on human health, with no additional consideration of the treatment of animals in the farming and food process. A task for law reformers would be to determine how to integrate and balance animal welfare issues with public health concerns and industry economics in the setting and enforcement of food standards.

An alternative or additional strategy might be to develop and utilise a ‘trustmark’ or logo which assures consumers of the ethical and humane treatment of animals. For example, the National Association for Sustainable Agriculture, Australia (NASAA), a non-government organisation (NGO) established in 1986, manages the right to mark foods as ‘certified organic’. Similarly, the Fairtrade Labelling Organisation International (FLO)—an NGO based in Germany—is responsible for maintaining the rules, registers, and annual inspections that authorise the use of the ‘Fairtrade’ logo for coffee products.

A quick visit to the local supermarket, indicates that marketing efforts are sometimes aimed at confusing rather than educating and assuring. For example, a model code of practice for animal welfare sets out minimum standards for the production of ‘free range eggs’—but the shelves are also full of boxes of factory-farm produced eggs misleadingly stamped ‘farm fresh’, ‘all natural’, ‘barn raised’ and so on.¹ Reform is clearly needed in this area, to provide greater clarity and protection to consumers seeking to exercise an informed choice.

Another useful law reform exercise would be to examine the effectiveness of the legislation covering animal welfare and anti-cruelty (which in Australia is a matter for the states and territories)—both in terms of policy and practice. For example, s 530(1) of the Crimes Act 1900 (NSW) is fairly typical of such laws insofar as it prohibits ‘serious animal cruelty’, an offence committed where a person, ‘with the intention of inflicting severe pain: (a) tortures, beats or commits any other serious act of cruelty on an animal, and (b) kills or seriously injures or causes prolonged suffering to the animal’. On its face, this would appear to provide more than adequate protection, especially since the maximum penalty for breach is imprisonment for up to five years. However, a major loophole is provided in sub-section (2), according to which persons are not criminally responsible if they have acted in accordance with ‘routine agricultural or animal husbandry activities, recognised religious practices, the extermination of pest animals or veterinary practice’, or with legal authority under the Animal Research Act 1985 (NSW). And, perhaps not surprisingly given the size, influence and economic importance of the agriculture and livestock industry in Australia, such practices as factory farming and battery egg production are regarded as ‘routine activities’ for the purposes of the law.

In more recent times, there has been a push from activists to go substantially further than improving such laws, and instead seeking to shift from an ‘animal welfare’ model towards an ‘animal rights’ model.

It should be noted that legislative recognition of human rights has been slower to develop in Australia than in virtually every other developed country, with no entrenched statutory or constitutional charter of rights. Federal anti-discrimination legislation is relatively recent, covering racial discrimination (1975), sex discrimination (1984), disability discrimination (1992), and age discrimination (2004).

The emerging effort in Australia is largely patterned on the Animal Legal Defense Fund’s effort to petition the US Congress for an ‘Animal Bill of Rights’, premised on the basis that:

animals, like all sentient beings, are entitled to basic legal rights in our society. Deprived of legal protection, animals are defenseless against exploitation and abuse by humans.

The Petition then states that, as ‘no such rights now exist’, Congress should pass legislation in support of the following basic rights for animals:

• THE RIGHT of animals to be free from exploitation, cruelty, neglect and abuse.

• THE RIGHT of laboratory animals not to be used in cruel or unnecessary experiments.

• THE RIGHT of farm animals to an environment that satisfies their basic physical and psychological needs.

• THE RIGHT of companion animals to a healthy diet, protective shelter, and adequate medical care.

• THE RIGHT of wildlife to a natural habitat, ecologically sufficient to a normal existence and self-sustaining species population.

• THE RIGHT of animals to have their interests represented in court and safeguarded by the law of the land. ²

As the many articles in this issue of Reform highlight, we are at a relatively early stage of consideration of these issues, and it is hoped that this volume will help to stimulate informed community debate and discussion. Just as we now look back on the past 40 years with some bewilderment—and embarrassment—that we were so slow to recognise the human rights of indigenous people, children, people with a disability, older people and others—it is intriguing to wonder whether our children will look back in 40 years and wonder how we possibly failed for so long to take animal rights seriously.

Endnotes

1. See From Label to Liable: Lifting the Veil on Animal-Derived Food Product Labelling in Australia (A report prepared by Voiceless, May 2007), available at <http://www.voiceless.org.au/index.php?option=com_content & task=view & id=459 & Itemid=388> . Turn to page 37 for article by Voiceless.

2. Animal Legal Defense Fund, Winning the Case Against Cruelty: Animal Bill of Rights (2007), available at <http://www.aldf.org/billofrights/index/php> .

* David Weisbrot is the President of the Australian Law Reform Commission