Pollard, Ruth --- "Animals, Guardianship and the Local Courts: Towards a Practical Model for Advocacy" [2007] ALRCRefJl 13; (2007) 91 Australian Law Reform Commission Reform Journal 48

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Animals, guardianship and the local courts: towards a practical model for advocacy

* By Ruth Pollard

The legal concept of guardianship has been invoked by some advocates as an avenue through which the interests or rights of animals can be promoted. In general these analogies for animal law have been drawn from legal principles concerning children and guardianship.

Guardianship evokes the imagery of a substitute adult standing in the place of the child’s parents. However what has been lacking from earlier proposals is any discussion on the practical implementation of a model of guardianship for animals within the disputes resolution systems of either the Courts or Tribunals.

The modern legal concept of guardianship can be traced to religious and juridical concepts found in ancient Near Eastern and

Greco-Roman cultures. Metaphors of guardianship appear in the Bible in various contexts such as provisions in the Torah that required the community at large to seek justice for orphans, or where trustworthy officials were appointed as guardians of the royal children.

Guardianship existed in both ancient Greece and Rome but it is in Roman law that we find it in a developed form. The original purpose of guardianship was to protect the property of the ward for the whole 'kin-group', which inherited on the death of the ward. This latter concern is reflected in contemporary theological discussions about humans as trustees of the earth, and in environmentalist discourses about the as-yet-unborn generations and the future of the planet.

In ancient Rome the role of guardian was held by a public official whose duty to the ward was to act as legal representative, provide food, clothing, housing and education and protect the property for the ward¹ himself. The guardian had a duty to promote the interests of the ward and to give account for the administration of the ward’s property. There are similarities between Roman law and the modern law of guardianship both in relation to minors and adults.

Guardianship of animals

Joyce Tischler and David Favre have discussed applying a guardianship model to promoting and protecting the interests of animals in the context of US law. George Seymour has considered the guardianship model in the Australian context. To develop a practical working model for animal guardianship we must first consider some of their suggestions, and the legal language they invoke.

Tischler broke the ice with a model concerning only companion animals. The key point she made was that humans must act compassionately toward animals in the same ideal manner that we ought to treat people who are unable to defend themselves at law and in society:

'The essence of guardianship is 'care and compassion' and an acceptance of responsibility for both the physical and mental well being of the ward. The guardian is the protector of the ward, who by reason of 'weakness, incompetence, youthfulness, or other legally recognised disability,' needs an intermediary to put her on more equal footing with the rest of society.' ²

The concept of animal guardianship has deepened with some very innovative ideas put forward by Favre. He explores concepts of property and equity to set up a model of equitable self-ownership for animals. As animals are living beings and not money or real estate, the legal owner takes on the guise of a guardian rather than a traditional trustee. ³ Favre suggests several guidelines of which the most striking concerns how a child is raised. His parallel thought is that the guardian of an animal should likewise work out what is in the best interests of the animal. A child needs discipline not abuse, a parent must allow for the mental development of the child as well as food, water, shelter and medical assistance. Animals have an essential and basic interest in surviving, and at the very least a human guardian must parallel the same nurture for a child in the case of an animal.

Aside from Tischler and Favre, other overseas discussions have ventured the idea of establishing a special minister for animals with a whole government department devoted to the interests of animals, which would be separate from agriculture and fisheries. There would be wide powers of inspection of businesses involving animals, and monitoring of the import and export of animals, and the registration of animals. Laws would be rationalised and there would be educational programmes run in places such as schools to enable the continuing reform and promotion of animal interests. ⁴

The Australian states of Tasmania and Queensland have introduced the term 'duty of care' into their animal welfare legislation. Seymour examines the use of this term in both pieces of legislation. He supports a change in the legal status of animals from property to personhood, and makes the point that personhood is a legal fiction. Personhood has been bestowed upon entities such as corporations and ships but was once denied to women and slaves. He sees guardianship as a way forward to the granting of legal standing to animals. Animals, like some incapable people, cannot communicate their interests and so a guardian must represent their interests in court. He suggests that someone could represent the animal from his or her human family or, if not, then an animal protection organisation. Duty of care means that people who have care of an animal, in addition to not being cruel, must also look to the animal’s welfare.

The language of duty of care has recently appeared in the Australian Government Department of Agriculture, Fisheries and Forestry paper, The Australian Animal Welfare Strategy. ⁵ It acknowledges the 'intrinsic value' of animals and their economic importance, and that all animals deserve humane care and treatment. All animal owners and carers owe a duty of care for animals that includes: understanding, support of, promotion of and application of animal welfare principles. It also affirms the need for international co-operation in drafting a Universal Declaration on Animal Welfare framed around 'five freedoms':

1.freedom from hunger, thirst and malnutrition

2.freedom from fear and distress

3.freedom from physical and thermal discomfort

4.freedom from pain, injury and disease

5.freedom to express normal patterns of behaviour

The Strategy also refers to the three 'R’s', the reduction in animals, refinement of experimental methods and replacement of animals in experimental situations. The principal flaw in this document is that contradictory standards are upheld, namely business interests over the interests of animals, and this is where proper duty of care is sacrificed in favour of profits. The interesting point of both the Queensland and Tasmanian welfare legislation and the Government Strategy is the introduction of the neighbour principle of duty of care.

Lawyers may have forgotten that this principle derives from the story of the Good Samaritan, and if we take the next step as suggested by the preceding material then the implication is that animals are our ‘neighbours’ who are owed a duty of care.

Proposed model

In light of the preceding ideas about guardianship and duty of care, a practical system for animal guardianship could be developed in Australia that can be overseen by and enforced through the courts. It is proposed that the model of guardianship for animals be situated in the local courts and here some reflection is needed with reference to care for minors. The model of guardianship set up by the Children’s and Young Persons (Care and Protection) Act 1998 (NSW) ('the Act') provides a possible platform. The Act was set up to promote the best interests and rights of children and young people in out of home care. The principles underlying the Act are: the promotion of the best interests of the child, the provision of services to meet the individual needs of the child, the enhancement of the physical, emotional, cognitive, social and cultural development of the child, while giving recognition to the rights and responsibilities of the parent to be involved in making decisions for the child. The internationally recognised term ‘best interests’, is used when referring to the protection and welfare of children. This term is also gaining popularity with animal rights advocates.

The Act specifies that jurisdiction is vested in the Children’s Court and cases are heard before a magistrate. The Court has authority to appoint a legal representative or a guardian ad litem for a child appearing before it. The Act gives power to make emergency care and protection orders and the police or the Director General can, without an order, remove children from a care provider if reasonably satisfied that there is danger of infringement of their rights.

Now the above system could be paralleled so that human actions concerning animals are catered for in a similar fashion. Legislation could cover the provision of duties, responsibilities and services required of humans to act in the ‘best interests’ of animals. It would specify the requirements of the community at large having a duty of care, and furnish retributive penalties that parallel sentences brought against child-abusers. It would be streamlining existing animal legislation so that all matters can be heard within the local court. It is acknowledged that currently NSW law provides for animal cruelty matters to be brought before the local courts but a revision and streamlining of the law incorporating the concepts of guardianship and best interests is proposed.

A court is necessary because a tribunal lacks the authority to punish wrongdoers. In a similar vein it is better to work via a local court than confer the responsibility of animal guardianship in the cumbersome bureaucracy of a government department. In the court model standing would be given to human guardians and animal welfare groups, with this latter group being supported by government funding in carrying out this role on behalf of the community, where the duty of care and the animal’s best interests have been abused or breached.

The advantages of this model are that the local court provides an accessible and affordable service. The local court also records matters heard before it and transcripts can be made available. The need for such transcripts is necessary for the organic development of precedents and future judgments. It is also vital in providing an avenue by which public scrutiny and transparent accountability is facilitated for the body politic. As public awareness of the status of animals at law is virtually non-existent the availability of such records would play an important part in public discourses developing on the moral and legal issues about animals. Furthermore the treatment of animals in industrial, agricultural and laboratory settings is something largely hidden from public view and in some respects this has occurred because the legislation governing those settings has minimalist requirements for public accountability.

Social commentators now speak of the 'fur family' as taking its place alongside the nuclear, single-parent styles of family. Animals are gradually being understood as bona fide members of households. As this trend ensues the public will be receptive to further sensitising about animals in non-domestic contexts. A groundswell of opinion would surely surge forward as recorded court cases enter the public domain. In order for such a system to become reality, legal discourses need to be widened to inform and include the body politic. As the interests of animals become a broad matter of public concern, then governments are obliged to listen, and the court system provides a valuable avenue for resolving disputes concerning human duties toward animals.

Endnotes

1. D Walker, ‘Guardianship, or Guardian and Ward,’ in The Oxford Companion To Law (1980), 542-543. R Versteeg, Law in the Ancient World (2002).

2. J Tischler, ‘Rights for Nonhuman Animals: A Guardianship Model for Dogs and Cats’ (1977) 14 (2) San Diego Law Review 473.

3. D Favre, ‘Equitable Self-Ownership for Animals’ (2000) 50 Duke Law Journal 473.

4. S Jenkins, Animal Rights and Human Wrongs (1992), 93-94; R Moss, Europe Animal Welfare Concerns and Chaos (1991).

5. The Australian Animal Welfare Strategy, available at <www.daff.gov.au>.

* Ruth Pollard is Principal Legal Officer at the Public Trustee NSW and in the year of its commencement undertook Australia's first animal law course at the University of New South Wales in February 2005.