How does the ‘property’ legal status of non-human animals impact on how they are protected under the law in Australia? Should this legal status be changed? Discuss with respect to a specific animal protection issue. PDF

Preview

Summary

How does the ‘property’ legal status of non-human animals impact on how they are protected under the law in Australia? Should this legal status be changed? Discuss with respect to a specific animal protection issue. ...

Description

208554

How does the ‘property’ legal status of non-human animals impact on how they are protected under the law in Australia? Should this legal status be changed? Discuss with respect to a specific animal protection issue. (Word count: 4927 words)

Introduction

This essay will argue that the 'property' legal status of non-human animals ('animals') negatively impacts on how they are protected under the law in Australia. This essay will also argue that the 'property' legal status of animals should be abolished and be replaced with 'legal persons' in a future social climate where there is a higher possibility for societal and political acceptance toward changing the legal status of animals. To that end, this essay will be split into two parts. Part I will briefly explain the ‘property’ legal status of animals in Australia and how it negatively impacts animal protection in Australia. Even though there are positive impacts of that status such as the securement of food and shelter for animals, however, the negative impacts substantialy outweigh the positive in this issue. This is because the ‘property’ status deprives animals of rights and standing, objectifies them, and treats their interests as lesser than human interests. Part II will focus on the different types of reforms suggested by academics to combat the problems associated with the ‘property’ status of animals. This essay will consider the welfarist, abolitionist and incremental approach, with reference to other jurisdictions that have implemented those approaches. Furthermore, it will also argue that the legal status of animals as 'property' should be changed to ‘legal persons’ due to the limitations of animal welfare legislation and the fact that animal interests will never be considered equal to humans as long as they remain as ‘property’. However, this essay will acknowledge that in the current social climate, this approach is unrealistic and unlikely to gain public support. Therefore, a more pragmatic method for now is to adopt the incremental approach and strengthen animal welfare laws to reduce animal suffering while increasing awareness regarding animal cruelty practices among the community. This would increase the likelihood of future societal acceptance of a modified legal status for animals. Finally, this essay will conclude that the 'property' legal status of animals negatively impacts on their protection in Australia and that it should be changed to 'legal persons' to offer them rights and better protection through the incremental approach.

208554

Part I

A. Legal Status of Animals in Australia The status of animals is important as it is essential to how animals are classified and treated under the law. In the Australian Constitution, there is no head of power that refers to animal welfare specifically, therefore, animal welfare is a state and territory matter. According to the various definitions of ‘person in charge of an animal’ in state and territory legislations such as ‘owner of an animal’ (Northern Territory, Tasmania and Western Australia), and ‘the person who owns or has a lease, license or other proprietary interest in the animal’ (Queensland), ‘person who has custody or control of the animal (South Australia), and the references of an owner being responsible for an animal in Victorian legislation, it can be inferred that animals are classified as ‘property’ under Australian law.1 Furthermore, the Halsbury’s Laws of Australia states that ‘domestic animals, like other personal and moveable chattels, are the subject of absolute property’.2

B. Detriments of the 'Property' Legal Status to Animals The 'property' legal status of animals hugely impacts the way they are protected under the law in Australia. This can be seen by examining the effects that the ‘property’ legal status has on the treatment of animals and the consequences of their mistreatment. Academics such as Epstein argue that the ‘property’ legal status offers advantages to animals such as the securement of food, shelter and veterinary care.3 However, this essay argues that the negative impacts flowing from the ‘property’ legal status far outweighs any possible benefit. Reason being, the ‘property’ legal status of animals inhibits any ‘meaningful protection of their rights’ and fortifies the notion that animals are simply resources that are used to achieve ‘human ends’. 4 This is because the ‘property’ legal status of animals:   

Denies animals legal rights which in turn causes problems in terms of standing issues Do not recognise animals as sentient beings Do not adhere to the principle of equal consideration

1 Rebekah Lam, ‘Animals: Really just property?’ (Animal Law Essay Competition 2nd Prize, Law Society of New South Wales, 2012). 2 Halsbury’s Laws of Australia Vol 1(2) (21 March 2007) 20 Animals, Para 20-50. 3 Richard Epstein, ‘Animals as Objects, or Subjects, of Rights’ in Cass R Sunstein and Martha C Nussbaum (eds), Animal Rights: Current Debates and New Directions (Oxford University Press, 2004) 143, 149. 4 Above n 1.

208554

Deprivation of Rights Animals are denied legal rights as a result of their ‘property’ legal status. This is because they are considered as objects under the law and are incapable of holding rights. 5 This is a problem because traditional property concepts provides that animals are wholly subject to the will of their human owner,6 who, subject to animal welfare laws, are able to use them for whatever purpose they wish, even if it conflicts with the animals’ own interests.7 For example, since animals do not have rights and their lives are not protected by legislation, the owner of the animal has the power to kill their pets without repercussions.8 They can also decide on whether to treat their animal property in a humane manner, because as owners, they can decide how much their property is worth. This opens up many ways in which animals can be treated cruelly due to their lack of rights. For instance, circus animals are denied the right to be itself as they are forced to perform tricks that go against their nature. 9 Due to the fact that those animals are owned by circus personnel, they have to endure ‘food deprivation, intimidation, and physical and emotional punishment’ that are not illegal even though those practices causes circus animals terrible stress and illness that may eventually lead to death.10 In addition, top horses who are destined to compete in international racing circuits have to endure ‘unnerving aircraft flights, quarantine and foreign surroundings’ because they are ‘first and foremost possessions and investments’ of their owners, and have no choice but to go wherever their owners can profit the most from. 11 These racehorses pay the price for human amusement and profit, and their owners face no consequences for deciding to abandon them after they are no longer useful. This is best described by Francione: ‘The owner is also entitled to exclusive physical possession of the animal, the use of the animal for economic and other gain, and the right to make contracts with respect to the animal or to use the animal as collateral for a loan. The owner is under a duty to ensure that her animal property does not harm other humans or their property, but she can sell or bequeath the animal, give the animal away, or have the animal taken from her as part of the execution of a legal judgment against her. She can also kill the animal.’12

5 Wendy A Adams, ‘Human Subjects and Animal Objects: Animals as Other in law’ (2009) 3 Journal of Animal Law & Ethics 29, 34. 6 Deborah Cao, Katrina Sharman and Steven White, Animal Law in Australia and New Zealand (Thomson Reuters 2010), 77. 7 Gary L. Francione, Animals, Property, and the Law (Temple University Press, Philadelphia, 1995) at 46. 8 Mike Radford, Animal Welfare in Britain: Regulation and Responsibility (Oxford University Press 2001) 100. 9 Danny Crossman, The Animal Code: Giving Animals Respect and Rights (Arcadia, 2011) 35. 10 Ibid. 11 Ibid 39. 12 Gary Francione, ‘Animals – Property or Persons?’ in Cass Sunstein and Martha Nussbaum (eds), Animal Rights: Current Debates and New Directions (Oxford University Press, 2004) 108, 116.

208554

As shown in the quote above, the law regulates the treatment of animals by offsetting the otherwise unconstrained property rights of their owner under common law. It is almost impossible to balance the interests of human owners (property owners) against animals (property) as properties do not have interests that are protectable against their property owner. 13 This results in animals being seen as deriving their value from their use to their owners, and being protected only for the extrinsic value that they provide to their owners. 14 The ‘property’ legal status of animals is the reason why compensation is unrecoverable under Australian law for the loss or harm suffered by an animal, and that damages are only recoverable for economic loss by their owners ‘in the form of the market value of the animal’.15 This means that, while humans are able to claim compensation for personal injury, animals cannot claim compensation for wrongful harm in the same way. Instead of measuring the harm done to the animal, the court will measure compensation based on the loss suffered by the owner of that animal.16 Consequently, this limits the remedies available where the wrong of another leads to the death of, or harm to, an animal, 17 and limits the level of punishment that a judge can impose because offences towards property are regarded as less serious compared to offences towards another legal person. 18 Thus, the ‘property’ legal status of animals fails to recognize them as having any inherent value by classifying them as objects without any rights.

Lack of Standing Animals, as property, do not have legal personality and cannot possess or enforce legal rights. This means that animals do not have standing to bring an action to court when animal welfare laws affecting them are breached. As a consequence, animals have no choice but to rely on prosecuting authorities to ‘detect, investigate and prosecute breaches’.19 Unfortunately, this results in many breaches remaining unaddressed due to the lack of resources of the RSPCA and competing priorities of the police.20 Animal interest organizations have attempted to address this problem by fighting for the right to standing on behalf of aggrieved animals, however, as illustrated in the case of Animal Liberation,21 the standing threshold that must be overcome for animal interest organizations is extremely high. Moreover, in Australian Conservation Foundation v Commonwealth,22 the court held that, a person who wishes to gain standing must have a special interest in the subject matter of the litigation, and that interest must be more than a mere emotional or intellectual concern. Justice Gibbs further stated that the special interest test is satisfied when the party bringing the action is ‘likely to gain some advantage, other than the 13 Ibid. 14 Above n 1. 15 Above n 6, 160. 16 Ibid. 17 Ibid. 18 Above n 1. 19 Ibid. 20 George Seymour, ‘Animals and the Law: Towards a Guardianship Model’ (2004) 29 Alternative Law Journal 183, 3. 21 Animal Liberation Ltd v Department of Environment and Conservation (2007) NSWSC 221. 22 (1980) 146 CLR 493.

208554

satisfaction of righting a wrong, upholding a principle or winning a contest’ and that party must suffer a disadvantage if the action fails.23 This makes it extremely difficult for animal interest organizations to satisfy that test, and acts as a barrier to punishing animal cruelty and deliver justice for abused animals. Hence, it is clear that the property status of animals impact them negatively as it denies them of legal rights, standing, and hinders the ability of other parties to sue on their behalf. Sentience Animals are sentient beings as they are capable of experiencing pain and pleasure, and possess the ability to use those sensations to escape life-threatening situations and pursue situations that enhances their lives.24 According to Singer, the legal status of animals as property does not recognize them as sentient beings.25 This is because the law objectifies animals by classifying them in the same category of inanimate objects that does not have the capacity for independent action.26 With increasing knowledge and awareness regarding animal welfare, it is commonly accepted that animals are sentient beings and have morally relevant interests that needs to be protected which are not reflected in the law. This does not reflect the reality where many humans see animals (particularly companion animals) as a family member and form deep emotional bonds with them, and in this regard they are rarely seen as property equating to an inanimate object that humans own.27 Therefore, the ‘property’ legal status of animals does not reflect prevailing and changing community standards regarding animals as sentient beings, which leads to a contradiction between the law and community values – that animals should not be treated as mere objects.

23 Ibid. 24 Gary Francione, ‘Animals – Property or Persons?’ in Cass Sunstein and Martha Nussbaum (eds) Animal Rights – Current Debates and New Directions (Oxford University Press, 2004) 108, 127. 25 Peter Singer, Animal Liberation (1975). 26 Geeta Shyam, ‘The Legal Status of Animals – The World Rethinks its Position’ (2015) 40(4) Alternative Law Journal 266. 27 Above n 1.

208554

No Equal Consideration The ‘property’ legal status of animals impacts them negatively as it affirms the ‘presumed moral superiority and entitlement of humans’28, which is why animal interests are always considered inferior to human interests. This is morally unjustifiable as both humans and animals have the ability to ‘suffer, feel pain and experience enjoyment’,29 and thus their interests should both receive equal consideration. Once it is accepted that animals as sentient beings have interests, the failure to give equal consideration to those interests reflects ‘speciesism’, which means the discriminatory preference for human interests over animal interests.30 Singer argues that speciesism is irrational, considering that some animals have developed intellectual capacities that are equal or greater than some humans, 31 and yet, those humans are not considered to have diminished rights or that they can be used as resources because of their inferior cognitive functions.32 Singer further stated that: ‘If a being suffers, there can be no moral justification for refusing to take that suffering into consideration. No matter what the nature of the being, the principle of equality requires that the suffering be counted equally with the like suffering … of any other beings’.33 Therefore, since sentient animals have an interest to not suffer, it is morally arbitrary for humans to ignore the effects of our actions have on animals just because animals are not humans and their interests are not human interests.34 Furthermore, Francione stated that a key problem with the ‘property’ status of animals is that their interests will almost always be outweighed by the interests of their owners, which makes it almost impossible to apply the principle of equal consideration because when the interests of two parties are considered by the court, and only one of them possess rights, the outcome is almost certain to be determined in the favour of the party who possesses rights. 35 Hence, as long as animals remain under the legal status of ‘property’, they will never have the right to equal consideration of interest.

28 Above n 6, 109. 29 Peter Singer, Animal Liberation (Harper Collins, Revised Ed, 2002) 7-8. 30 Ibid. 31 Steven White, ‘Animals and the Law: A New Legal Frontier?’ (2005) 29(1) Melbourne University Law Review 298. 32 Above n 21. 33 Ibid. 34 Peter Singer, Practical Ethics (Cambridge University Press, 1993) 57-58. 35 Above n 28.

208554

Part II - Reform

In light of the negative impacts explained in Part I, it is painfully obvious that reform is necessary to decrease animal suffering. This essay will analyze three different approaches towards achieving animal legislative reform, which are the welfarist, abolitionist and incremental approach, and make a recommendation on the best course of action in the current social climate of Australia.

A. Welfarist Approach Legal welfarists do not advocate for the abolishment of the ‘property’ status of animals, instead, they accept the classification of animals as property and seeks refinement of animal welfare legislations to reduce unnecessary animal suffering.36 Basically, they accept the use of animals as property and view that it is morally justifiable to kill animals or subject them to suffering as long as it is done as ‘humanely’ as possible.37 Therefore, legal welfarists advocate for welfare provisions that imposes positive duties on humans to care for their animal property, 38 with the aim of prohibiting unnecessary suffering to animals. This provides more protection to animals as focusing on general behaviour and imposing positive duties has a broader scope than proscribing specific actions of non-compliance. For example, the New Zealand Animal Welfare Act (AWA) 39 contains ‘Codes of Welfare’ that specifies positive obligations that apply to particular situations and animals to reduce unnecessary animal suffering. Furthermore, Garner argues that removing the ‘property’ status does not guarantee that animals will receive better protection or be free from exploitation, and that the benefits of removing that status is exaggerated.40 He also argues that legal rights and standing are separate and animal welfare can be improved by granting standing to animals and strengthening animal welfare legislations in the existing property paradigm to counteract the current insufficiencies.41 This position is shared by Radford, who states that: ‘[I]t is far more important to secure a level of legal regulation which recognizes the needs and capacities of animals, imposes a clear and explicit duty on those who assume responsibility for them to ensure that prescribed standards are met, and –crucially- to ensure that this strategy is supported by adequate means of enforcement.’42 36 Gary Francione, Rain without Thunder – The ideology of the Animal Rights movement (Temple University Press, 1996) 8. 37 Above n 7, 6. 38 Above n 6, 142. 39 Animal Welfare Act 1999 (NZ). 40 Robert Garner, ‘Political Ideology and the Legal Status of Animals’, (2002) 8 Animal Law Journal 77, 78. 41 Ibid. 42 Above n 8, 128.

208554

He further points out that the protection of animals can be promoted by a greater awareness of the nature of animals and the consequences of human activity on them, with a more effective legal regulation of animal use and treatment, and by imposing detailed and binding positive obligations on owners towards their animal property.43

B. Abolitionist Approach The abolitionist approach, in contrast to the welfarist approach, seeks to remove the ‘property’ status of animals and give them the status of ‘legal persons’. This is based on the principle of equal consideration as explained in Part I(B). Legal abolitionists reject animal welfare legislation as it subjugates animals to their property status and regulates exploitation rather than condemning it.44 They argue that any balancing interest test under animal welfare laws are rendered meaningless as the property status of animals would always put their interests below that of their owners.45 For example, in New South Wales, the term ‘unreasonable, unnecessary or unjustifiable’ is not defined in the Prevention of Cruelty to Animals Act,46 and therefore it is left to the courts to decide whether the alleged act is proportionate to the suffering experienced by the animal.47 This balancing test is ‘doomed to fail’ because animals are still treated exclusively as resources of humans and their interests will always be subordinate to human interests.48 For example, cruel practices such as hunting, sports fishing and animal use at circuses are still lega...