Full Title Name:  Animal Law in Australia

Overview

Australia is a large and diverse island continent situated in the Asia Pacific, between the Indian and the Pacific oceans. It measures approximately 4000km east to west and 3200km north to south. [i] The Tropic of Capricorn passes through part of the Australian landscape, creating a number of climatic zones, from the dry, barren and sparsely populated outback to the fertile plains, coastal dunes and rainforests of the eastern seaboard.

Australia’s unique natural environment is home to a wide variety of animals, consisting of both native and introduced species. Some of the better known indigenous species include marsupials such as the kangaroo, koala, emu, platypus, echidna, possum and wombat. Other famous Australian animals include the saltwater and freshwater crocodiles, the dingo, cockatoo and kookaburra. Australia has a number of introduced species ranging from wild or ‘feral’ cats, dogs, buffalo, horses, goats, camels, pigs and deer, to domestic dogs and cats, which are kept both as companions and as working animals. [ii] Australia is also involved in intensive and extensive farming of animals such as pigs, cattle, sheep and poultry. [iii]

While the concept of animal law as a legitimate area of study and practice is still emerging in Australia, a complex legal regime has already developed to regulate the treatment of animals in many aspects of society. There are laws that seek to manage the use of animals in educational and research institutions, in zoos and circuses, in food production, in the wild and in domestic contexts.

Australia has a federal system of governance, which means that its laws, including those that affect animals, are made at Federal, State and local levels. The purpose of this paper is to help the reader to navigate that system by providing an overview of the division of law-making powers with respect to animals in Australia [iv] .

Since the Australian Constitution underpins the legal system, this paper begins by examining the extent to which notions of animal law are built into the Constitution. It then explores which levels of government have the power to make and enforce laws that regulate the treatment of animals in various contexts. The paper is only intended to provide a brief introduction to animal law in Australia. However it includes links to various sources where the reader can obtain more detailed information about the topics covered. As animal law in Australia is constantly evolving, before citing any information or legislation referred to in this Paper, the reader should confirm whether subsequent changes have been made.

Animal law and the Australian Constitution

The Constitution of the Commonwealth of Australia is similar to the United States’ Constitution in that it delineates specific powers to be exercised by the Federal Government. The States themselves possess plenary powers. This means that, subject to some limitations, States retain powers to legislate in relation to any subject matter. Where a State law conflicts with a validly enacted law of the Parliament of the Commonwealth (referred to from here on as 'Commonwealth'), § 109 of the Constitution provides that the Commonwealth law prevails to the extent of the inconsistency.

The Australian Constitution does not mention animals specifically, apart from fish. [v] However the Commonwealth has been able to enact and enforce valid legislation relating to animals on the basis of a number of sections of the Constitution. Some of the relevant sections are explored below. [vi]

Firstly, section 51 of the Constitution provides that the 'Parliament shall… have power to make laws for peace, order and good government of the Commonwealth with respect to' 39 subject matters, known as 'heads of power'. The Commonwealth is permitted to enact any law, provided that the law is characterised as being under at least one of the heads of power. [vii] Subject to some limitations, a law that is characterised as being one with respect to one of these heads of power will be valid even though it may regulate some other matter that is not specifically allocated to the Commonwealth (such as animal welfare).

Two of the section 51 heads of power that are significant for animal law purposes are the external affairs power and the corporations power. The external affairs power, which is embodied in section 51(xxix) of the Constitution, enables the Commonwealth to make laws relating to persons, events and things outside Australia and to implement the terms of any international treaty as part of domestic law. [viii] Some examples of treaties concerning animals, to which Australia is a party [ix] are: the Convention on Biological Diversity 1992, [x] the Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 (CITES), [xi] the Convention on the Conservation of Migratory Species and Wild Animals 1979 (‘the Bonn Convention’) [xii] and the Convention on the Conservation of Nature in the South Pacific 1976 (‘the Apia Convention’). [xiii]

The corporations power, which is enshrined in section 51(xx) of the Australian Constitution, also arguably provides a platform for the Commonwealth to enact constitutionally valid laws relating to animals. Section 51(xx) permits the   Commonwealth to make laws relating to foreign corporations, trading and financial corporations. Of significance to animal law, the High Court has held that a corporation is a trading corporation if it conducts 'substantial or significant trading activities'. [xiv] Once a corporation has been identified as a foreign, trading or financial corporation, any of its activities may be regulated. [xv] This arguably provides the Commonwealth with the power to make laws with respect to trading or foreign corporations that may affect animals in all Australian States and Territories.

Whilst examining the section 51 heads of power that may be significant for animal law purposes, consideration should also be given to section 51(xxxvii) or the 'Referral Power', which enables the States to refer certain of their powers (including animal welfare matters) back to the Commonwealth. The States have previously used this provision in some areas of the law to achieve uniform national legislation. [xvi] However in the animal welfare context, a more popular approach has been for the States to expressly or impliedly incorporate national model standards of animal welfare into their own legislation.

The Commonwealth's power to legislate with respect to the Australian Territories is more extensive than its power to legislate in respect of the States. Section 122 , or the 'Territories power'   empowers the Commonwealth to make laws with respect to any of its Territories in areas beyond the limited heads of power in §51. [xvii] This means that the Commonwealth could pass constitutionally valid animal welfare laws relating to the Australian Capital Territory and the Northern Territory if it chose to do so. Despite the presence of section 122, the Australian Capital Territory and the Northern Territory tend to enjoy self-government, which extends to the enactment and enforcement of animal welfare laws. [xviii]

Section 52 of the Constitution provides the Commonwealth with exclusive power to legislate with respect to ‘Commonwealth places’. Commonwealth places are areas that have been acquired by the Commonwealth government for public purposes. They include places such as airports, as well as certain land and marine areas. [xix] This means that if an animal lives in a Commonwealth place it will be subject to Commonwealth rather than State legislation. However, the Commonwealth Government has passed legislation which, in effect, applies state laws to Commonwealth places as if those places were a regular part of the surrounding state. [xx] In the event that there is an inconsistency between a Commonwealth law and an applied state law, it is a matter of statutory interpretation as to which prevails as both are, in reality, Commonwealth laws. [xxi]

Examples of animal law in practice

The previous section of this paper examined the issue of how the provisions of the Constitution affect the distribution of power with respect to animal law making in Australia. In this section, the paper examines certain case studies of Australian animal law in practice by examining areas of exclusive Commonwealth jurisdiction, exclusive State jurisdiction and areas of shared or cooperative responsibility.

Case Study 1: Commonwealth Jurisdiction

The import and export of live animals

Notwithstanding the States’ plenary powers,   the area of import and export of live animals tends to be administered by the Commonwealth. [xxii] The Commonwealth department that deals with the import and export of live animals is the Dep a rtme n t Of Agriculture, Fisheries And Forestry - Australia (AFFA). A F FA and its agencies are responsible for administering a number of laws which include the Quarantine Act 1981 (Cth), the Imported Food Control Act 1992 (Cth), the Export Control Act 1982 (Cth) and the Australian Meat and Livestock Industry Act 1997 (Cth). Although there are a number of operating groups within AFFA that regulate animal matters, the main group concerned with the import and export of live animals is the Australian Quarantine Inspection Service (AQIS).

The kinds of animal law matters that AFFA and AQIS are involved with include:

·         administering the import and export of cats, dogs (including disability assistance dogs) and horses;

·         issuing licenses and certifications for the live export of cattle, sheep and goats;

·         implementing government policy with respect to live exports; and

·         investigating the deaths of animals during shipment. [xxiii]

Notwithstanding the role of AFFA, the live export of cattle, sheep and goats from Australia is largely self-regulated. The relevant industry body, which is responsible for accrediting exporters is the Australian Livestock Export Corporation Ltd (LiveCorp). The accreditation scheme operated by LiveCorp is known as the Livestock Export Accreditation Programme (LEAP). Licenses are granted by AFFA to accredited exporters under the Australian Meat and Livestock Industry Act 1997 (Cth) and Australian Meat and Livestock Industry (Export Licensing) Regulations 1998 (Cth). The regulatory framework for the export of live animals has recently been subjected to considerable scrutiny due to the high incidence of sheep mortalities during voyages to the Middle East. It is possible that the existing framework will be subject to reform in the near future. [xxiv]

Case Study 2: State Jurisdiction and Uniform 'Model Laws'

Laws governing the cruel treatment of animals

Each State and Territory in Australia has legislation relating to the prevention of cruelty to animals. The current statutes are:

·                          Animal Welfare Act 1992 (ACT)

·                          Animal Welfare Act 1999 (NT)

·                          Prevention of Cruelty to Animals Act 1979 (NSW)

·                          Animal Care & Protection Act 2001 (QLD)

·                          Prevention of Cruelty to Animals Act 1985 (SA)

·                          Animal Welfare Act 1993 (TAS)

·                          Prevention of Cruelty to Animals Act 1986 (VIC)

·                          Animal Welfare Act 2002 (WA)

A. What is an 'animal'?

Although there are some similarities, each State and Territory in Australia has adopted a different definition of which creatures are to be defined as animals for the purposes of the anti-cruelty statutes. Most statutes define 'animal' as a live member of a vertebrate species including any amphibian, reptile, bird, fish (in certain circumstances) and mammal (but not a human). The Australian Capital Territory, New South Wales, Victoria, Queensland and the Northern Territory include crustaceans in defined circumstances. [xxv] The Australian Capital Territory and Queensland also include cephalopods (octopus and squid) in certain circumstances. [xxvi] The Queensland Act even includes a live pre-natal or pre-hatched creature if it is in the last half of gestation or development but does not include the eggs, spat or spawn of fish. [xxvii] South Australia and Western Australia do not include fish in their definition of an animal. [xxviii]

B. Objectives of the Anti-cruelty Acts

Insofar as the prevention of cruelty is concerned, the objectives of the legislation are, broadly speaking, the same, despite the fact that the structure and provisions of the legislation vary between States. The New South Wales, Victoria, Tasmanian and Northern Territory Acts expressly state that one of the Act's objectives is 'to prevent cruelty to animals '. The South Australian Act does not expressly state that this is an objective but it may be implied from its title. A number of States also include additional 'management' or 'educational aims' in their list of objectives. [xxix]

C. Definition of cruelty and common defences

In relation to the definition of 'cruelty', all States and Territories arguably prohibit the infliction of unnecessary pain on an animal or the failure to take steps to alleviate pain being experienced by an animal, subject to specific exceptions. New South Wales, Western Australia, Queensland, Tasmania and Victoria use words such as 'beating, mutilating, kicking, wounding, terrifying, torturing, abusing and overworking an animal' in their definitions of cruelty. [xxx]   Some States, such as New South Wales, Victoria and Tasmania have created offences for acts of aggravated cruelty, which are defined as 'acts resulting in the death, deformity or serious disablement of an animal .' [xxxi]

In addition to the general anti-cruelty provisions, some anti-cruelty statutes create   specific offences of cruelty, including confining an animal or failing to provide adequate or appropriate exercise, exposing an animal to excessive heat or excessive cold, failing to provide adequate veterinary treatment, neglecting an animal so as to cause it pain, tethering an animal for an unreasonable length of time and failing to provide an animal with proper food, drink, or shelter. [xxxii] The Queensland and Tasmanian statutes go one step further and proactively impose a positive duty of care on persons in charge of the animal. [xxxiii]

Despite the apparent protection which the above statutes convey on animals, the benefits of many of the States’ and Territories’ anti-cruelty statutes are tempered by exceptions and the underlying theme that one must not inflict ‘ unnecessary ’ pain or harm on an animal. Certain States’ and Territories’ anti-cruelty statutes provide that it is a defence if the offender acted reasonably or adopted usual or accepted killing methods'. Defences such as these, which are inherently malleable, arguably dilute the strength of anti-cruelty provisions and enable those who would otherwise be conducting illegal acts, to escape the force of anti-cruelty legislation. Such provisions are of course, a feature of anti-cruelty statutes in many countries and as such, are not unique to the Australian legislative context.

D. Enforcement

As the anti-cruelty statutes are enacted by State and Territory governments, power to enforce the statutes is generally granted to officers of State government departments, officers of the Royal Society for the Prevention of Cruelty to Animals (RSPCA), and members of the relevant State or Territory police force. However, despite the large criminal component within anti-cruelty legislation, the bulk of prosecutions are instituted by RSPCA officers, as opposed to State or Territory police forces. [xxxiv] As the RSPCA is a charitable organisation, the ability to enforce anti-cruelty statutes is limited by strict budgetary constraints. In August 2003, there were approximately 75 full-time and 75 honorary or part-time inspectors Australia-wide. [xxxv]

E. Attempts to create uniformity under a federal system

A brief survey of Australia's anti-cruelty legislation suggests that there is little uniformity between the provisions. However some attempts to achieve model standards have been made, by encouraging each State and Territory to incorporate Model ‘Codes of Conduct’, or ‘Codes of Practice’ in their anti-cruelty statutes.

The Codes which were developed by the Agriculture and Resource Management Council of Australia and New Zealand (ARMCANZ), now subsumed by the Primary Industries Ministerial Council (PIMC) cover issues such as the welfare of pigs, sheep, goats, livestock, the farming of deer, the intensive husbandry of rabbits, the keeping of poultry at slaughtering establishments, the keeping of animals in sale yards, the sea and air transport of livestock and the care and use of animals for scientific purposes. However   their legal status and effectiveness varies between States depending on how they are enshrined in each States’ or Territories' legislation.

F. The use of animals for teaching and scientific purposes

As with animal cruelty, the conduct of animal research does not fall clearly under any of the constitutional heads of power. Consequently, State laws regulate the treatment of animals for teaching and scientific purposes. Apart from New South Wales, which has enacted separate legislation, each State and Territory has incorporated provisions relating to animal research in its anti-cruelty statute. The relevant parts of each anti-cruelty statute include:

·                          Animal Welfare Act 1992 (ACT), Part 4;

·                          Animal Welfare Act 1999 (NT), Part 5;

·                          Animal Research Act 1985 (NSW);

·                          Animal Care & Protection Act 2001 (QLD); Chapter 4;

·                          Prevention of Cruelty to Animals Act 1985 (SA), Part 4;

·                          Animal Welfare Act 1993 (TAS), Part 4;

·                          Prevention of Cruelty to Animals Act 1986 (VIC), Part 3; and

·                          Animal Welfare Act 2002 (WA), Part 2.

Further information about each States' and Territories' legislation can be obtained from the websites of the following government departments that administer the legislation:

·         Australian Capital Territory: Environment ACT [xxxvi] ;

·         Northern Territory: Department of Community Development, Sport and Cultural Affairs

·         New South Wales: NSW Department of Primary Industries/Agriculture

·         Queensland:   Queensland Government Department of Primary Industries and Fisheries  and;

·         South Australia: Department for Environment & Heritage

·         Tasmania:   Department of Primary Industries, Water & Environment [xxxviii] ;

·         Victoria: Department of Primary Industry, Bureau of An i mal W elfare ; and

·           Western Australia: The Western Aus t ralian Department of Local Government and Regional Development

The statutory requirements that govern the licensing, monitoring and enforcement of conditions relating to animal research vary considerably between the States. However as with other State/Territory animal welfare matters, attempts have been made to promote uniformity of laws through the development of a model code known as the Australian Code of Practice for the Care and Use of Animals for Scientific Purposes. [xxxix] The legal status and effectiveness of the Code provisions varies in each State and Territory depending on the extent to which it has been incorporated into the relevant legislation.

Case Study 3: Areas of shared legislative responsibility

Identification and protection of endangered species

Australia has a complex web of legislation relating to the identification and protection of endangered species, with responsibilities shared between Commonwealth, State and Territory governments.

The main Commonwealth law concerning endangered or ‘threatened’ species is the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).   That Act, which came into force in July 2000, is designed to reduce species decline, consistently with Australia’s obligations under the Biodiversity Convention.

It does so by identifying, or ‘listing’:

·         nationally threatened species and ecological communities;

·         habitat which is critical to the survival of a listed threatened species or ecological community (critical habitat);

·         certain migratory species; and

·         certain processes that threaten the survival, abundance or evolutionary development of a native species or ecological community (key threatening processes).

A detailed explanation of the listing process is available on the   website of the Department of Environment and Heritage, Department of En v iron m ent and Heritage , which is responsible for administering the Act.

Protection

Once a species or ecological community is listed, it may be protected through a number of different mechanisms. For example:

·         Recovery Plans and Threat Abatement Plans must be prepared for listed species or ecological communities living in Commonwealth areas. A recovery plan or threat abatement plan can be made by the Minister for the Environment alone or jointly with relevant States and Territories. The Minister can adopt a State or Territory plan. [xl]

·         Wildlife Conservation Plans , which set out the research and management actions necessary to support the survival of a listed species, may be prepared for conservation dependent species, [xli] migratory species, marine species and cetac e ans. As with Recovery Plans and Threat Abatement Plans, Wildlife Conservation Plans can be made by the Minister alone or jointly with relevant States and Territories, where a species is located outside Commonwealth areas. [xlii]

·         The Environmental Impact Process requires detailed assessments to be carried out for certain activities which are likely to have a ‘significant’ impact on a listed threatened species, ecological community or migratory species irrespective of where the action occurs in Australia. The activities are only permitted to proceed where the Minister has granted an exemption or approval, subject to specified conditions. The EPBC Act provides for the development of 'bilateral agreements' between the Commonwealth and the States. If such an agreement is in place, the State or Territory may carry out a single assessment process to satisfy State and Commonwealth requirements. [xliii]

·         The Permit System covers listed threatened species, listed ecological communities, listed migratory species and listed marine species found in Commonwealth areas. The system requires persons to obtain a permit to kill, injure, take or damage a member of a listed species or a listed threatened ecological community. Failure to comply with the permit provisions can lead to the imposition of a penalty and/or imprisonment. [xliv]

·         The Australian Whale Sanctuary, which was established under the EPBC Act, covers all Commonwealth waters. [xlv] The Act makes it an offence for anyone to kill, injure, take, trade, keep, move, interfere with, or treat, [xlvi] any cetacean without a permit. The Act also makes it an offence for Australians to carry out any of these actions beyond the outer limits of the Australian Whale Sanctuary, that is, in international or foreign waters. [xlvii]

State laws relating to endangered species

In addition to the Commonwealth laws, designed to protect nationally listed species, most States and Territories in Australia have legislation aimed at protecting threatened species within their physical borders. In some States, endangered species are also protected by pollution, mining and planning laws.

The main State and Territory laws relating to endangered species are the:

·         Nature Conservation Act 1980 (ACT);

·         Threatened Species Conservation Act 1995 (NSW);

·         Nature Conservation Act 1992 (QLD);

·         Threatened Species Protection Act 1995 (TAS);

·         Flora and Fauna Guarantee Act 1988 (VIC);

·         National Parks and Wildlife Act 1972 (SA); and

·         Territory Parks & Wildlife Conservation Act (NT).

Further information about State and Territory endangered species laws can be obtained from the following websites:

·         New South Wales: Department of Environmental & Conservation (NSW), National Parks and Wildlife Service(NPWS) [xlviii]

·         Australian Capital Territory: Envir o nment ACT [xlix] ;

·         Northern Territory: Parks a nd Wildlife Commission of the Northern Territory [l] ;

·         Queensland: Environmental Protection Agency/ Queenslan d Parks & Wildlife Service [li] ;

·         South Australia: National Parks and Wildlife SA Division of the Department for Environment and Heritage [lii] ;

·         Tasmania:   Parks & Wildlife: Department of Primary Industries, Water & Environment [liii]

·         Victoria: Department of Sustainability and Environbment [liv]

·         Western Australia: Department of Conse r vation and Land Management [lv]

Conclusion

This paper has sought to provide an introduction to legislated animal law in Australia. It has done so by briefly surveying the Australian legal system and the division of powers with respect to animal law in Australia. The paper has also briefly explored several areas of animal law to demonstrate how the division of power between the Commonwealth and State governments works in practice.