From the iconic kangaroos to the wonderful sea creatures of the Great Barrier Reef, Australia is well-known for being home to a wide range of animals. Australia also has several introduced species such as horses, pigs, and sheep. So, when it comes to animal welfare in Australia, one might assume that all animals (both companion and working) are roaming happily across the vast lands. But is this really the case? This week, guest writer Jessica Tang, an Australian qualified solicitor, provides an introduction to the legal framework surrounding animal welfare in Australia.
Current legal framework
The legal framework protecting animals in Australia is complex, with a multi-layered governance system involving federal, state, and local law.
Despite animals being transported across states and territories daily, Australia does not have a national law on animal welfare. This may seem odd: having a single law throughout the country would likely create more consistency and simplicity for everyone involved. However, because of Australia’s Constitution, the Commonwealth (i.e.the country of Australia) has limited powers and can only enact legislation in certain specified fields - as set out in section 51 of the Australian Constitution. As a result, when it comes to animals and their welfare, the Commonwealth can only exercise power in the context of international treaties and external trade (e.g. live export and trade in wildlife).
Instead, each state and territory exercises its residual power to enact legislation, and each has its own separate statutes, regulations, and industry guidelines relating to the welfare of animals. The relevant animal welfare statutes are:
(the “Animal Welfare Acts”).
Generally, the Animal Welfare Acts make it an offence to commit an act of cruelty to an animal. In Queensland and Tasmania, the respective Animal Welfare Acts also impose a duty of care on the person in charge of an animal.
Whilst the broad offences are set out in the Animal Welfare Acts, the detail regarding applicable standards and requirements are contained in a series of National Model Codes of Practice. However, the intention is to replace these Model Codes with nationally agreed Australian Animal Welfare Standards and Guidelines (the “Standards and Guidelines”
In theory, the Standards and Guidelines would aim to achieve nationally consistent objectives, standards, and guidelines across different animal industries. Unfortunately, in practice, it is arguable that they don’t go far enough to uphold animal welfare.
Concerns of the Standards and Guidelines can be outlined as follows:
They only outline minimum recommendations for the proper care and management of animals and are not intended to define best practice;
They largely operate to protect the interests of producers over the welfare of the animals; and
Each state and territory is responsible for implementing the Standards and Guidelines, meaning, unless incorporated in the relevant laws of each jurisdiction, compliance is only voluntary and non-compliance with the Standards and Guidelines does not constitute an offence.
What is an ‘animal’?
Most of the Animal Welfare Acts define an ‘animal’ as a live member of a vertebrate species such as an amphibian, reptile, bird, fish (subject to certain conditions), and mammal (excluding human). The definition of an ‘animal’ varies widely across the Animal Welfare Acts which can be demonstrated as follows:
Cephalopods can be included as ‘animals’ in the Australian Capital Territory and Queensland;
Crustaceans can be included as ‘animals’ in the Australian Capital Territory, New South Wales, Victoria, Queensland, and Northern Territory;
Other than fish eggs, live pre-natal or pre-hatched creatures in the last half of gestation or development are included as ‘animals’ in Queensland; and
Fish are excluded as ‘animals’ in South Australia and Western Australia meaning that these animals are not protected at all from cruelty under the relevant Animal Welfare Acts.
Animals are classified as property in Australia. Under common law, domesticated animals are “absolute property” and wild animals are deemed to be property only once captured or in the possession or control of a person. The status of animals as property is also reflected in legislation both at the federal and state/territory level.
For example, under the Competition and Consumer Act 2010 (Cth), the definition of “goods” includes animals. This fails to recognise animals as beings with feelings and their own interests, and is an obstacle to advocating for animals through the legal system. There is a strong community push to reform current legislation to recognise animal sentience more broadly and the Australian Capital Territory was the first (and remains the only) jurisdiction in Australia to recognise animal sentience, with the Australian Capital Territory Act reformed in 2019 to reflect that animals have the ability to “subjectively feel and perceive the world around them”.
At the time of writing, proposed reforms of the Victoria Act have also been introduced to recognise animal sentience. And although recognising animal sentience does not completely overcome their legal status as property, it is a step towards distinguishing animals from mere objects under the law.
Animals in farms
One of the most obvious issues in Australia is that many animals are simply excluded from protection under the Animal Welfare Acts. The Animal Welfare Acts differentiate between farmed animals (such as cattle) and companion animals (such as cats), with most basic protections only covering companion animals. For example, whilst section 9 of the NSW Act makes it an offence to fail to provide an animal with adequate exercise, “Stock Animals” (defined as cows, sheep, goats, deer, pigs, and domestic fowl) are expressly excluded. Further, young cows, sheep, goats, and pigs are all excluded from the offence of castrating an animal without anaesthetic under the NSW Act.
In addition, treatment of an animal has to be “unreasonable”, “unnecessary” or “unjustifiable” for a cruelty offence to be established in most jurisdictions (for example, section 4(2) of the NSW Act). These qualifications are subjective and can protect producers. For example, if cruel farming practices are seen as necessary to create food supply for humans, then such cruel farming practices would not constitute a cruelty offence under the relevant Animal Welfare Act.
It is also worth noting that responsibility for regulating animal welfare is delegated to the Commonwealth Department of Agriculture, as well as the equivalent departments of Primary Industry and Agriculture in each state. This means that the same department that is responsible for the welfare of farmed animals is also responsible for the profitability of primary industries based on the exploitation of such farmed animals. These two functions are incompatible in nature and economic interests normally take precedence over the welfare of the animal.
Introducing independent offices of animal welfare, solely devoted to promoting animal welfare and with a responsibility to report directly to Parliament (rather than being contained in other governmental departments with conflicting interests and priorities) has long been campaigned for in Australia as a solution to this issue.
At the time of writing, the Independent Office of Animal Welfare Bill 2023 (South Australia) has been introduced, which intends to establish in South Australia the first such independent office of animal welfare.
Animals used for scientific purposes
There is specific legislation in each state and territory in Australia, which deals with the use of animals for scientific purposes, either through their respective Animal Welfare Statutes (for example, sections 25 to 36 of the Victoria Act) or separate legislation (for example, the Animal Research Act 1985 (NSW) and the Animal Research Regulations 2021 (NSW)).
Further, at the Commonwealth level, the Australian Code for the Care and Use of Animals for Scientific Purposes (the “Code”) must be complied with for all research conducted in Australia that is funded by the National Health and Medical Research Council. The Code has been incorporated into legislation in each of the states.
The Code applies the ‘3Rs’ principle to animal experimentation: (i) the replacement of animal usage with alternatives; (ii) the refinement of procedures to safeguard animal welfare; and (iii) the reduction of the number of animals used. However, as noted above, any potential offence can be rebutted if an animal’s suffering is deemed to be necessary. Therefore, if the experiment can be shown to have a human benefit, it could be deemed ‘necessary’, resulting in procedures that cause harm to animals being permitted.
Cosmetic testing on animals is banned in Australia under the Industrial Chemicals Act 2019 (Cth) (“ICA 2019”). Under ICA 2019, new ingredients that are exclusively used in cosmetic products (e.g. eyeshadow) that are either manufactured in Australia or imported into Australia are not permitted to use information derived from animal testing to prove that the product is safe for humans.
However, a chemical ingredient may still be tested on animals if the ingredient is also intended to be used in a non-cosmetic product. This loophole defeats the purpose of the legislation and means that certain ingredients in Australian cosmetics can still be tested on animals.
Animals in exhibitions
The laws surrounding zoos, aquariums and marine parks also vary across the different states and territories. In NSW, the Exhibited Animals Protection Act 1986 (NSW) and the Exhibited Animals Protection Regulation 2021 (NSW) govern how animals can be exhibited and the requirements for licences, approvals and permits. The latter provides several standards that animal exhibitors must comply with.
To improve national consistency, the Agricultural Ministers Forum endorsed the Australian Animal Welfare Standards and Guidelines for Exhibited Animals in 2019, which contains standards for the welfare of animals used for exhibition purposes. They include general standards and guidelines and specific standards and guidelines for the exhibition of koalas, wombats, kangaroos, wallabies, crocodilians and flightless birds. The standards apply to those who are responsible for caring and managing the exhibition of such animals and set out a minimum industry standard. However, the effect of these standards is largely dependent on each jurisdiction implementing them in their legislation. At the time of of writing, most states and territories are still either in the process of implementing or considering these standards and guidelines.
When thinking about the legal regime applicable to animals in Australia, it is important to understand the specific circumstances of the animal. An animal in Australia may find itself subject to different legislation depending on: (i) what kind of animal it is; (ii) which context it finds itself in (e.g. farm, zoo or laboratory); and (iii) which state or territory it is in.
However, whilst there is still a long way to go to achieve animal justice in Australia, the current proposed reforms show that Australia is moving in the right direction.
This blog post is not legal advice. For more information on the services Advocates for Animals offers please contact email@example.com