Animal law with teeth - Legislative change and legal advocacy in the 21st century
By Dr Ian Robertson
In 1906, J Howard Moore estimated it would take up to two centuries for humans to replace "human dominion" with a view which recognises a unity and respect of life. If Moore was right, we are about halfway through that process.
From a historical perspective, the legal protection of animals is a relatively recent event. Today's focus on animal welfare is a significant step forward from days not so long ago where the views of seventeenth-century philosopher Rene Descartes - who argued that all of animal behaviour could be explained in purely mechanistic terms – set the tone for widespread abuse of animals. And as recently as the 19th century, the law failed to punish a man by the name of John Cornish for ripping out a horse's tongue.
New Zealand's Animals Protection Act 1960 was replaced in 1999 with the Animal Welfare Act. The difference between these two Acts is arguably captured in the name. The shift from "protection" of animals from acts of cruelty to an emphasis on "welfare" maintains their protection but adds to this by putting a positive duty of care on owners to provide for animals' physical and mental needs, broadly referred to as the "five freedoms" (see box on page 4).
There is significant evidence of a global shift acknowledging greater responsibility in respect of animal welfare. The animal welfare initiatives central to the current European Union objectives are a prime example of regional developments. Scotland and England are the latest states to enact updated animal welfare legislation, which arguably brings their companion animal protection standards in line with those already required for their farm animals. With issues of BSE and avian influenza still fresh in many minds, there is increasing discussion about the possibility of animal health and welfare being recognised as trade criteria between states and within global organisations.
Increasing profile for animal welfare law
Animal welfare may be defined as the legal use of animals which involves duties regarding animals (differentiated from concepts of animal rights which encompasses duties to them). While issues regarding animals have been dealt with under various legal headings, animal law is a developing discipline. At a general level, animal law may be defined as issues of law that deal with an animal; that take into account the unique nature of animals, and additionally affect the relationship between humans and animals. Animal law consequently incorporates all issues of animal welfare.
The continued development of animal law as a legal discipline is evidenced by the increasing number of animal law chapters within legal jurisdictions, and by the growing number of law schools offering animal law as an elective course (two in New Zealand, about seven in Australia and the United Kingdom, over 60 in the United States, and others in Portugal, Switzerland, Israel, Canada and China).
There are also a large number of professional forums and conferences being held to examine the future of animal protection from a variety of legal, ethical and social perspectives. The latest conference held at Harvard Law School is one such example. Dr Ian Robertson, a lecturer in animal law at the University of Canterbury's School of Law (see Biosecurity 73:20), was a guest speaker at the conference. In recognition of worldwide trends reflecting a current international focus on issues of animal welfare, and globalisation of trade, he proposed that it is timely to develop a best-practice model of animal welfare legislation. Such a model may need to consider indigenous and cultural values that currently exist outside traditional western concepts of animals. It would act as a global blueprint for the future of animal welfare and serve as a benchmark for current and future animal welfare initiatives.
New channels for animal advocacy
Coupled with a growing interest in animal law is the increasing use of pressure and advocacy through legal and legislative channels to bring about changes in animal welfare and animal rights. Examples of such initiatives include:
- collection of signatures on a petition to force a referendum (such as the petition to ban cages for hens in New Zealand in the 1990s)
- laying of private charges by animal advocacy organisations against corporations (such as the Humane Society of the United States suing producers of foie gras under environmental protection legislation)
- lobbying MPs for change (for instance, the distribution of a ‘Manifesto for Animal Welfare' by Advocates for Animals to all Scottish parliamentarians on the eve of elections)
- making submissions on pending legislation.
This trend is also represented in both New Zealand and Australia: the Animal Rights Legal Advocacy Network (ARLAN) in New Zealand has, as one of its stated aims, "To enhance the welfare and status of animals by upholding existing statutes, regulations and common law principles; and lobbying for appropriate law reform to allow humans to intervene and provide legal protection for animals." Voiceless, an animal rights/advocacy group in Australia, has its own legal arm which aims to improve legal protection for animals, monitor and enforce laws and facilitate the development of animal law.
Advocacy success
Such legal or legislative advocacy can be very successful. The Humane Society of the United States (HSUS), that country's largest animal protection organisation, has a staff of 10 full-time lawyers targeting corporations and individuals with the aim of improving animal protection and welfare. In February last year, the HSUS and other organisations collectively sued the US Department of Agriculture in relation to the slaughter of horses. In late March this year, that action effectively caused the closure of horse slaughter plants in the United States through a technicality relating to the need for pre-slaughter inspection of horses. It is still lobbying for a federal ban on horse slaughter.
In New Zealand, ARLAN made a complaint to the Government's Regulations Review Committee about the confinement of layer hens in cages, on a legal technicality under the Animal Welfare Act 1999. It argued that the code of welfare for layer hens was unlawful. Although the action did not result in a change to the code of welfare, it did serve as a reminder of the active use of due legal process in the development of animal protection legislation in New Zealand.
The Five Freedoms
- Freedom from hunger and thirst - by ready access to fresh water and a diet to maintain full health and vigour.
- Freedom from discomfort - by providing an appropriate environment including shelter and a comfortable resting area.
- Freedom from pain, injury or disease - by prevention or rapid diagnosis and treatment.
- Freedom to express normal behaviour - by providing sufficient space, proper facilities and company of the animal's own kind.
- Freedom from fear and distress - by ensuring conditions and treatment which avoid mental suffering
Return to:
Page last updated: 30 April 2008