LAWFUL CRUELTY: SIX WAYS IN WHICH AUSTRALIAN ANIMAL WELFARE LAWS PERMIT CRUELTY TOWARDS NONHUMAN ANIMALS KATHERINE. E. RUSSELL LLB (HONS), BA, DIP. MUSIC (UNIVERSITY OF ADELAIDE) A THESIS SUBMITTED FOR THE DEGREE OF DOCTOR OF PHILOSOPHY ADELAIDE LAW SCHOOL THE UNIVERSITY OF ADELAIDE DECEMBER 2017 Page 1 of 305 TABLE OF CONTENTS Chapter 1: Introduction Chapter 2: The Intellectual Context: Literature Review and the Unique Contribution of this Thesis Chapter 3: Legal Persons, Legal Things, and Somewhere In Between Chapter 4: Australian Animal ‘Welfare’ Laws Chapter 5: The Commodification of Nonhuman Animals Chapter 6: The Policy of Inaction Chapter 7: The Myth of Animal Protection Chapter 8: Keeping Cruelty Invisible: Laws that Punish Civil Disobedience Chapter 9: Conclusion Page 2 of 305 ABSTRACT The central argument of this thesis is that the very same laws that purport to prohibit cruelty towards nonhuman animals in Australia are responsible for facilitating it. Australian animal welfare statutes, regulations and Codes of Practice all state the prevention of cruelty towards nonhuman animals as their objective. They contain provisions which not only prohibit cruel conduct, but they also place positive duties on those who have a nonhuman animal within their custody and control to do certain things to ensure their basic welfare needs are met. Yet, nonhuman animals in Australia are lawfully treated with cruelty on a routine basis. They are confined to cages so small they cannot turn around, they have surgical procedures performed on their bodies without anaesthetic or pain relief, and they may be slaughtered without being rendered unconscious or insensible to pain. In all such cases, I argue that Australian animal welfare legislation not only fails to meet its stated objective of prohibiting cruelty, but that it actively permits it. This thesis departs from existing literature on the topic of lawful animal cruelty by seeking to understand precisely how animal cruelty is lawful in Australia. Existing literature has established that Australian animal welfare provisions are inadequate, and fail to protect nonhuman animals from some of the worst cruelties. Yet, little has been said about precisely what legal mechanisms are operating to permit such cruelty. A critical understanding of not only what the law allows, but how it allows it is essential to future attempts at reforming the law to better protect the interests of nonhuman animals in law. This thesis lays new groundwork for thinking about and understanding the complex problem of lawful animal cruelty in Australia. Through technical legal analysis and a critical assessment of the provisions of animal welfare legislation, regulations and Codes of Practice, I identify six ways in which Australian law permits cruelty towards nonhuman animals: (1) through the legal classification of nonhuman animals as legal property, (2) through inadequate legal provisions which prohibit only ‘unnecessary’ cruelty, and which give force to Codes of Practice that permit cruel acts, (3) through the commodification of nonhuman animals which characterises them as having only exchange value in the capitalist marketplace, (4) through the use of definitions, legal fictions and express exclusions to declare inaction with respect to some forms of cruelty, (5) through the propagation of the myth that animal welfare laws are protecting nonhuman animals from cruelty, and (6) through an implicit reliance on other laws which prohibit the public from observing the lawful cruelty that occurs against nonhuman animals in private industry. Page 3 of 305 ACKNOWLEDGEMENTS In the writing of this thesis I would like to acknowledge with heartfelt gratitude the support of my supervisors Peter Burdon and Ngaire Naffine. Thank you both for the countless hours you have spent reviewing my work and providing me with feedback. Your offices have become safe houses for me to explore my ideas, and to challenge them. You have given me confidence in my ideas and taught me the skills I need to articulate them. Thank you for being such wonderful mentors. I feel immeasurably privileged to have spent the last few years learning from you both. Thank you to the University of Adelaide for providing me with the resources to complete this thesis, and for the many wonderful learning experiences I have enjoyed throughout both my undergraduate and postgraduate studies. I also gratefully acknowledge the financial support that I have received from the University of Adelaide Divisional Scholarship and the Zelling-Gray Scholarship throughout my candidature. These generous scholarships have allowed me to dedicate my time to the writing of this thesis, for which I feel profoundly privileged. I would also like to acknowledge the role that my family and friends have played in the completion of this thesis. To my husband James, thank you for being an unwavering source of love and support, and for always having faith that I would complete this thesis even when it seemed impossible. To my son Stanley, who arrived half way through the writing of this thesis, thank you for being you, and for proving to me every day that this world is full of goodness. To my parents- in-law, Brian and Sheila, thank you for believing in me and for your support on the home front, which gave me time to write this thesis. To my best friend Estelle Boyle, thank you for always listening, and for sharing in my many highs and lows. Thank you also for giving me confidence, and for your comradery throughout the difficult process of writing. To my mentor and friend, Shatha Hamade, thank you for taking me under your wing as an undergraduate law student, and for introducing me to the world of animal law. Thank you for inspiring me. Finally - and most importantly, to my parents. You have supported me not only through the writing of this PhD, but in all that I do. You have been Stanley’s ‘home away from home’, which has made the completion of this thesis possible. More than that, you have taught me all that I know, and have made me who I am. Thank you for all that you have given me and for all that you continue to give. I dedicate this thesis to you both, and to our Rohan. Page 4 of 305 DETAILED TABLE OF CONTENTS ABSTRACT 3 ACKNOWLEDGEMENTS 4 DECLARATION 5 CHAPTER 1: INTRODUCTION 11 I. Thesis 12 A. Defining Key Terms: ‘Cruelty’ and ‘Nonhuman Animal’ 12 B. Underlying Premises of the Thesis 14 II. Background to the Investigation 16 A. The Legislative Framework 16 B. Lawful Cruelty 17 III. Approach to the Investigation 19 A. Scope of Thesis 19 B. Method of Analysis 22 IV. Structure of Thesis 25 Chapter Three: Legal Persons, Legal Things and Somewhere In-Between 25 Chapter Four: Australian Animal Welfare Laws 26 Chapter Five : The Commodification of Nonhuman Animals 27 Chapter Six: The Policy of Inaction 27 Chapter Seven: The Myth of Animal Protection 28 Chapter Eight: Keeping Cruelty Invisible: Laws that Punish Civil Disobedience 29 V. Conclusion 30 CHAPTER 2 : THE INTELLECTUAL CONTEXT: LITERATURE REVIEW AND THE UNIQUE CONTRIBUTION OF THIS THESIS 31 I. The Intellectual Context 32 II. Legal Status of Nonhuman Animals 34 III. Failing Welfare Laws and Codes of Cruelty 41 A. Critique of Australian Codes of Practice 43 Page 6 of 305 IV. Practical Issues in Animal Law 45 A. Animals and Legal Standing 45 B. Enforcement 46 C. Sentencing 47 V. The Unique Contribution Offered by this Thesis 49 CHAPTER 3: LEGAL PERSONS, LEGAL THINGS AND SOMETHING IN BETWEEN 51 I. Introduction 52 II. The Person / Property Divide 54 A. What is Legal Personhood? 55 B. What is a Legal Thing? 58 C. Status of Wild Nonhuman Animals 60 III. Who Can Be a Legal Person? 61 A. Competing Conceptions of the Legal Person 62 1. The Legalist View 62 2. The Realist View 65 IV. Making Animals Persons and Conflating Conceptions of the Legal Person 66 A. Gary Francione’s Approach 67 B. Steven Wise and Nonhuman Animal ‘Persons’ 69 C. Wise’s and Francione’s Blended Conceptions of the Legal Person 72 V. Conclusion 80 CHAPTER 4: AUSTRALIAN ANIMAL ‘WELFARE’ LAWS 82 I. Introduction 83 II. Australia’s Animal Welfare Legislative Framework 85 A. The Legal Definition of ‘Animal’ 86 B. Key Animal Welfare Provisions 87 1. Anti-Cruelty Provisions 88 2. Animal Welfare Provisions 91 3. Specific Offences Against Nonhuman Animals 92 III. Failing Legal Protections 93 A. Qualifying Words and ‘Necessary’ Cruelty 94 1. Judicial Commentary on ‘Necessary’ Suffering 96 B. Legitimacy of Purpose and Reasonableness of Means 100 Page 7 of 305 1. Confirmation Bias in Law 101 2. What is a Legitimate Purpose? 103 3. What is a Reasonable Means? 103 C. The Limited Operation of the Prohibition on ‘Unnecessary’ Cruelty 106 IV. Australian Codes of Practice and Standards and Guidelines 108 A. Conflicts of Interest in the Development of Model Codes and National Standards and Guidelines 110 B. How Are Codes of Practice and Standards and Guidelines Enforced? 116 V. Case Study: Factory Farmed Pigs in New South Wales 120 VI. Conclusion 126 CHAPTER 5 : THE COMMODIFICATION OF NONHUMAN ANIMALS 127 I. Introduction 128 II. The Problem With Being A Commodity 129 A. The Commodification of Nonhuman Animals 130 B. Commodification Facilitates Cruelty 132 1. How Commodified Animals Become ‘Absent’ 133 III. ‘Treating Meat Humanely’: Legal Language That Commodifies Nonhuman Animals 138 A. Where Law Maximises Exchange Value at the Cost of Animal Welfare 138 B. Where Law Conflates the Life and Death of Nonhuman Animals 141 C. Where Nonhuman Animals become ‘Wastage’ 146 D. Nonhuman Animals that are ‘Pests’ 146 IV. Conclusion 148 CHAPTER 6 : THE POLICY OF INACTION 149 I. Introduction 150 II. ‘Inaction Is a Policy’ 151 A. Language Use: The Law as ‘Intervening’ 155 III.