Vickovich, Ilija; Goodfellow, Jed --- "Editors' Note" [2013] MqLawJl 1; (2013) 11 Macquarie Law Journal 1

EDITORS’ NOTE

As this Editors’ Note outlines more fully below, Volume 11 of the Macquarie Law Journal is a themed edition that focuses on some key issues confronting the law and its intersection with non-human animals. But we begin with a special contribution by the Hon Michael Kirby, a Patron of our journal, on the outstanding legacy and influence of Professor Tony Blackshield, a Professor Emeritus of Macquarie Law School and a member of this journal’s distinguished Editorial Board. Mr Kirby’s paper is based on the address he delivered at the inaugural Tony Blackshield Lecture in October last year. We are very grateful to Mr Kirby for the time and effort he has invested in documenting some of the key aspects of Professor Blackshield’s personal and professional life, and for reminding the legal academy and profession of the breadth of Tony Blackshield’s work and its influence on the development of the law in Australia.

We are very pleased also to deliver the contributions on the theme of this edition. Human beings have been interacting with and utilising the various species of non-human animals since their homo genus came into being. Throughout recorded history there are scattered accounts of the efforts of philosophers and religious leaders to make sense of our place in the world relative to the other species of the animal kingdom. While some of these great thinkers espoused somewhat biocentric worldviews in which the interests and lives of animals were valued on equal terms with those of humans, such ideas certainly represented the exception rather than the rule. It was far more convenient, if not necessary, to place humans above the other animals on ‘the great chain of being’ during earlier times when reliance on animals for nutrition, transport and labour were fundamental to the sustainability and development of civilisations. From Aristotle to Aquinas, and through to Descartes, an anthropocentric ethic has governed the nature of our relationship with animals. Utilising animals as a means to our ends was sanctioned without qualification.

But as societies progressed economically, technologically and ethically, a greater consciousness of animal interests began to emerge. Jeremy Bentham’s famous contribution in the late 18th century preceded a new era in our thinking about animals. Bentham rejected the traditional reliance on ‘rationality’ as a precondition for direct moral status, proposing that ‘the question is not, Can they reason? nor, Can they talk? But, Can they suffer?’1 The moral relevance of animal sentience was subsequently reflected in the enactment of numerous laws throughout the Western world to protect animals from cruelty. While this certainly represented an improvement on past indifference to animal suffering, anthropocentric influences still pervaded the design, implementation and application of such laws, severely limiting their intended effect. Providing one could demonstrate a ‘legitimate purpose’ (usually

of an economic kind) for an animal being used in a particular way, such use would be legally sanctioned despite the fact that it may have caused pain and suffering to the animal.2

This traditional approach to animal welfare law and policy is now being challenged. The ‘necessity’ of causing animals harm is becoming increasingly difficult for animal use industries and governments to justify in the modern world amid sustained scrutiny from an expanding segment of the general population. Over the past three decades animal protection organisations have been very successful at raising awareness about the treatment of animals used for the production of food and fibre, scientific research, sport and entertainment and for other instrumental purposes. Public discourse and engagement on animal welfare matters is now at an all-time high and appears to have all the hallmarks of what may be referred to as a ‘social justice movement’.

Unsurprisingly, the legal fraternity has now entered the fray. Lawyers have a strong tradition of participating in social justice movements and of representing the rights of those who are unable to speak for themselves. It may therefore be seen as a fairly natural progression for lawyers to begin representing the interests of animals, and the legal academy has been leading the way. Questions relating to the legal status of animals, the determination of ‘unnecessary harm’, and the jurisprudential frames underpinning the legal recognition of animal interests have been vigorously pursued by legal scholars and in the process the new discipline of ‘animal law’ has emerged. While animal law has only started to develop in Australia within

the past decade,3 its growth since that time has been exponential. The interest shown from students has been particularly intense. Today there are 13 law schools throughout the country offering courses in animal law,4 as well as several texts, edited collections and a bi-annual journal publication dedicated to the field.

Academic conferences also play a key role in developing new fields of scholarship. In October 2012 the Centre for Legal Governance at Macquarie Law School, in partnership with animal protection organisation RSPCA Australia, hosted a one-day conference in Sydney named Tomorrow’s Law: The Future of Animal Law. The conference was very well attended and received, and it succeeded in bringing like-minded practitioners and researchers together to network and share ideas on how animal interests may be given greater recognition within the law.

It is against this background that we are pleased to present this issue of the Macquarie Law Journal on the theme ‘Animals and the Law: Theory, Policy and Regulation.’ In keeping with this theme, we have included contributions on animal rights philosophy, cases for animal welfare policy reform and critical analyses of relevant governance and regulatory frameworks.

We are delighted to begin the issue with an article on legal theory from a recent Macquarie Law School graduate, Tess Vickery. She takes on the ambitious challenge of delving into the complexities of Rawlsean theory to ask what it has to offer animal law. After presenting a workable contractarian model of justice for animals, Ms Vickery then contemplates its application in practice. This includes an intriguing discussion on the possibility of placing judges behind the ‘veil of ignorance’ when determining the question of ‘necessary harm’ in animal welfare cases. Her analysis is insightful and will no doubt prove to be a worthy contribution to this fundamentally important facet of animal law, and indeed animal rights theory more broadly.

The importance of establishing a theory of justice for animals is further highlighted in an analysis of animal welfare regulation by Elizabeth Ellis. Ms Ellis criticises government’s tendency to relegate questions of animal welfare to the realm of morality in which the question of whether animals are made to suffer is left to individual preference. The article

identifies a number of regulatory flaws including conflicts of interest in animal welfare standard setting and fragmented regulatory responsibility. The author attributes these flaws to an underlining conceptual incoherence: ‘While recognition of sentience is supposedly the basis of animal welfare policy, in practice regulatory measures are informed by the human utility of animals and the degree of influence of those who benefit most.’

The challenges posed by moral pluralism are perhaps no better demonstrated than by Australia’s current debate over the live animal export trade. As Katrina Craig’s article demonstrates, the difficulties of differing attitudes to animal welfare are only exacerbated when they traverse cultural, religious and national boundaries. Ms Craig takes a holistic approach to her examination, considering not only the legal dimensions of the trade, but also the political, economic and practical matters that must be grappled with in determining future policy on the issue. Ultimately she concludes by recommending the trade be phased out and replaced with greater chilled and frozen meat exports.

Celeste Black’s article also concerns the live export trade but takes a more focused line of inquiry. Ms Black assesses the impact of World Trade Organisation (WTO) rules on the Commonwealth Government’s recently imposed Exporter Supply Chain Assurance System (ESCAS). Her analysis finds that concerns over possible non-compliance with WTO rules may have caused the Government to take an overly cautious approach to designing the ESCAS measures. After applying the relevant WTO rules to the ESCAS, Ms Black concludes by stating that the apparent deference given to free trade principles ‘may have produced a live export licencing regime that is too weak to deliver the level of welfare outcomes that the Australian community rightly expects.’ Overall, Ms Black’s analysis provides a pertinent example of how considered legal analysis may serve to combat the regulatory ‘chilling effect’ caused by unsubstantiated fears of noncompliance with free trade laws.

The article by George Kailis takes us on a completely different regulatory trajectory in fisheries management. Professor Kailis tracks developments in fisheries management legislation between 1989 and 2007. He considers the impact such legislation has had on the common law public right to fish as interpreted by key High Court decisions. While not strictly an animal law analysis in the traditional sense, Professor Kailis’ article does include an intriguing exploration of the difficulties faced by governments in attempting to assert property in free-swimming fish. The discussion serves to highlight the sometimes awkward and perhaps counterintuitive application of legal constructs of property to animals.

The final contribution to the issue consists of Patrick Leader-Elliott’s critique of the Victorian Government’s recently introduced offence of ‘causing death by dangerous dog’ under the Crimes Act 1958 (Vic). He expresses concern over the drafting and scope of the offence. On the one hand, he believes the offence is too broad, in that it does not include an element of subjective fault. On the other hand, he argues the offence is also too narrow, in that it restricts liability to owners of dogs that are considered to be ‘dangerous’, ‘menacing’, or of a ‘restricted breed.’ While Mr Leader-Elliott does not intend to comment on the ‘wisdom of enacting breed specific legislation’, his subsequent critique of the ‘restricted breed’ precondition to liability will no doubt resonate with lawyers currently participating in this debate:

If the central question is one of adequacy of control and the prospects of death being caused, the breed of dog … ought not matter, at least as a precondition to the imposition of liability. It is an artificial constraint on a legislative instrument directed at preventing deaths caused by a failure of dog owners to control their dogs.

Mr Leader-Elliott then highlights the flawed logic behind such an approach by drawing an analogy with restricting liability for ‘dangerous driving causing death’ to drivers of V8 vehicles and 500cc motorcycles.

We are pleased to conclude the issue with a book review by Professor Erika Techera, who introduces us to the seminal publication Law and the Question of the Animal: A Critical Jurisprudence. Published earlier this year by Routledge, it is the first volume dedicated solely to animal law jurisprudence and, as such, is sure to have a significant impact on the field.

The diversity of contributions presented in this edition of the Macquarie Law Journal serves to illustrate the wide range of issues covered by the burgeoning field of animal law. We believe these articles will provide a valuable contribution to the existing body of animal law scholarship in Australia. We would like to express our sincerest gratitude for the contributions of the authors, peer reviewers and student editors in helping to realise this objective.

Ilija Vickovich Jed Goodfellow*

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* LLB/BA (Hons) (Griffith), GDipLegalPrac (QUT); PhD candidate and casual lecturer in Animal Law, Macquarie Law School.

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1 Jeremy Bentham, The Principles of Morals and Legislation [1781] (Prometheus, Amherst, 1988), 310.

2 See, Peter Sankoff, ‘The Welfare Paradigm: Making the World a Better Place for Animals?’ in P Sankoff

& S White (eds), Animal Law in Australasia (Federation Press, 2009).

3 Animal law first originated in the United States in the early 1970s: see Joyce Tischler, ‘The History of Animal Law, Part 1 (1972-1987)’ (2008) 1 Stanford Journal of Animal Law and Policy 1.

4 For information about the courses, visit Voiceless, ‘Study Animal Law’ at:

<https://www.voiceless.org.au/animal-law/study-animal-law>