Lawful cruelty: six ways in which Australian animal welfare laws permit cruelty towards nonhuman animals

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.