Animal welfare: in search of reform

A recent report by national charity the Australian Alliance for Animals, titled ‘Building a fairer Australia for animals’, is a damning indictment of Australia’s national animal welfare systems and international reputation relating to animal welfare. The report highlights the lack of alignment of current animal laws with animal welfare science and public values, and the undue influence by industry on government.

Mike Rosalky discusses the implications of this report with LSJ. He is a Senior Associate at lawyerbank, where he advises government clients in various fields, including contract law, corporations law, intellectual property law, the Commonwealth resource management framework, and privacy law. But that is only part of his professional life. Rosalky is passionate about animal rights.

In 2019 he founded K & R Animal Law, a private law firm, together with colleague Naaman Kranz.

“We ran that firm almost exclusively outside of business hours on top of full-time jobs,” he says. “We actually did most of our work pro bono because we cared about the causes, and often our clients didn’t have a lot of money.”

The Animal Law Institute, funded by the Victorian government, was founded in 2014; it is a community legal centre dedicated to protecting animals through the Australian legal system.

“When we got approached by the Animal Law Institute to join them about a year ago,” Rosalky says, “we decided that it would be a good thing to do, because the ALI had the same goals that we have and it was a community legal centre so we could continue to provide pro bono services.”

In September 2022, therefore, the functions of K & R Animal Law were transferred to the Animal Law Institute, with Rosalky still holding the role of Partner, and taking up the position of Principal Lawyer at the ALI, advising and representing clients who bought pets with health conditions from what are commonly called “puppy factories”. He also identifies and manages litigation opportunities which benefit animals.

‘The evidence was undeniable’

Animal welfare was at the core of Rosalky’s decision to study law.

He admits, “I grew up, like many Australians, loving steak and eating animal products. I was a passionate fisherman and I didn’t think at all about the welfare of animals.”

His change in his perspective came about through his choice of music.

“It was through listening to certain [activist] bands between 2000 and 2006 that were talking about the treatment of animals in their songs. I looked into the situation and what was happening, did some research, and was horrified with what I learned.”

Though he’d been travelling around the world snowboarding during that time, the impetus to become a defender of animal rights drew him back to Wollongong to pursue legal studies.

“It was around 2006 that, once the evidence was undeniable, I decided I had to somehow help animals, and I knew that the laws in Australia facilitated animal cruelty. I knew that if I wanted to change the law, then I had to be a lawyer, so I studied law with the aim of being able to help animals in some way.”

Rosalky commenced his legal studies in 2008. He graduated with a Bachelor of Laws at the University of Wollongong in 2012, completed a Graduate Diploma of Legal Practice at the Australian National University (ANU) in 2013, and then his Masters of Laws degree (also at ANU) between 2014 and 2015.

Rosalky points to the fundamental need for structural change in the legal rights of animals in Australia, and, though he is not affiliated with the Allaince in any way, believes it is important to regard its report as a blueprint for the humane treatment of animals.

Welfare v profit: mutually exclusive aims

The Alliance’s report, entitled “Building a fairer Australia for animals”, launched the #FairGoForAnimals campaign, with a mandate to address structural problems. One of those is the lack of consistent national legal protections for animals and a sturdy national leadership.

A proposed solution is installing a Minister for Animal Welfare, with the role existing independently of agriculture portfolios, where interests of industry and welfare conflict. Numerous European jurisdictions have shifted responsibility for animal welfare away from agriculture ministers, leading to more progressive legislation. Austria and Italy have both transferred animal welfare to their health ministries, while in Belgium ministers with animal welfare responsibility have animal welfare within their ministerial titles and are not dually responsible for agriculture.

Rosalky says, “The issue in Australia is that the state and territory governments that have primary responsibility for promoting animal agriculture are also charged with regulating animal cruelty. These two functions are, to a large extent, mutually exclusive. The welfare of those animals is a secondary consideration in order for the maximum profit to be made from those animals.”

What is needed, Rosalky adds, are “new regulation officers, independent from agriculture, who have a Minister for Animal Welfare and an agency responsible for regulating animal welfare and prosecuting animal welfare offences.”

A charity as the sole prosecutor

Rosalky says, “A major issue in Australia is that the charity RSPCA is almost entirely responsible for prosecuting animal cruelty offences. There’s no other case in Australia where a charity is left to enforce the laws. That responsibility needs to be brought under a government body that prosecutes animal cruelty offences.”

Rosalky says, “My understanding is that the RSPCA doesn’t have the funds and resources to prosecute all the animal cruelty cases that occur, so they primarily focus on cruelty to dogs and cats. One reason is that it’s a criminal offence, but people who exploit agricultural animals are virtually exempt from animal cruelty laws. It’s not that [agricultural animals] suffer less; they suffer in an identical way to dogs, cats and even humans. But laws say that if you’re an agricultural animal, experiencing acts that are virtually torture, it’s exempt from animal cruelty prosecution because it is for food, or fibre, or scientific experimentation.”

The other barrier is evidence.

“The only way to get evidence of cruelty in agricultural facilities is for someone to trespass onto the property. Because animal exploitation occurs behind closed doors, out of public view, it raises admissibility of evidence at court if it was obtained – potentially – unlawfully.”

A national Animal Welfare Commission?

The report suggests a solution to animal welfare issues in Australia in the form of a national Animal Welfare Commission, taking responsibility from agriculture departments and moving the onus for policy and standards development and oversight to an independent statutory agency. The states and territories would remain responsible for the implementation and enforcement of the standards and the administration of Animal Welfare Acts via independent, statutory authorities, provided with adequate funding and resources. At present, the Alliance argues, limited funding has hamstrung efforts to investigate welfare breaches and to prevent and respond appropriately.

The state and territory bodies would carry out the following roles, according to the proposed scheme:

• Overseeing the appointment and training of inspectors
• Supporting the functions of state Animal Welfare Advisory Committees
• Administering licensing regimes for animal establishments
• Administering compliance monitoring programs for animal industries
• Determining animal forfeiture applications
• Approving official forms for use under the legislation
• Recognising interstate prohibition and other court orders
• Publicly reporting on compliance and enforcement activities

In terms of staffing and budget, the report recommends that the national Animal Welfare Commission have a workforce of around 40 personnel, with an operating budget of approximately $15 million per year. This funding, the Alliance proposes, could be partially sourced through the reallocation of existing resources away from agricultural portfolios, where their function is similar.

Rosalky says, “My understanding is that there’s a lot of federal government and state-based funding given to agricultural institutions, and the public are largely unaware of that. if there was a greater awareness in society of how animals are treated in animal supply chains, they’d feel very uncomfortable about their taxes going towards subsidising these activities that cause horrific suffering to animals.”

A further recommendation from the Alliance is the introduction of stricter animal welfare standards and guidelines under state and territory animal welfare legislation, ensuring these are based on contemporary scientific knowledge and technology, community expectations, and advice from the Animal Welfare Advisory Committee. The Alliance recommends that these standards be developed without influence from lobbyists, and reviewed within a decade of implementation to address any shortcomings or ineffective measures and bolster the laws where justified.

Regulatory capture and conflicts of interest

Where government departments and agencies are tasked with pursuing conflicting objectives, ‘regulatory capture’ is a real risk. This occurs where an institution acts in the interests of the business or industry it is charged with regulating, which is inconsistent with the public interest. In NSW, the Prevention of Cruelty to Animals Act 1979 (NSW) is overseen by the Agriculture Department of Primary Industries.

Australian animal welfare law currently lacks consistency in the processes of development and adoption of national Animal Welfare Standards and Guidelines. Without this foundation, decisions made and standards prescribed under the legislation lack predictability and efficiency. At present, national standards are usually determined by the state or territory that volunteers to manage the process, which is likely to be the jurisdiction with the most prominent agricultural industry that will be impacted by the proposed standards. As state and territory animal welfare laws contain no requirements regarding the outcomes the process must meet, the subsequent standards set by states and territories differ widely in terms of the level of care and protection afforded to animals in different contexts of use.

Rosalky says, “My understanding is that we don’t have clear guidelines at all [at present], and nothing at the federal level that regulates animal welfare. There are some welfare laws, like the Environment Protection Act, but no uniform law that says it’s a crime to harm an animal in general. It’s regulated by states and territories and it’s different but similar in that all permit factory farming and things like the gassing of pigs, as depicted on the 7:30 Report recently.”

Rosalky continues, “There’s no greater social injustice occurring in Australia than the abuse of animals. They suffer excruciating physical pain and mental distress. There are over 700 million animals subjected to a life of abject misery in Australia at any one time, and that’s just land animals. Aquatic animals are much higher in number. They suffer due to dredging and deep-sea hauling. Science indicates that fish are sentient, which we didn’t acknowledge for a long time. There are also many kilos of by-catch including seals, dolphins and whales, for every kilo of fish caught.”

It is his hope that, sooner rather than later, “we’ll look back on the legal treatment of animals in 2023 and think, how did we allow these sentient animals to be tortured for something so insignificant as pleasing our tastebuds?”

Recognising animal sentience

Modern animal welfare legislation, Rosalky says, is currently not based on the scientific understanding about animal intelligence and capabilities, or sentience. Rather, it is subjective, inconsistent, and liable to be interpreted by ministers and authorities according to the interests of stakeholders. Sentience provides a science-based standard for animal protection, and recognition of animal sentience is the basis for a principled, consistent, and coherent legislative framework.

This year, at least 19 jurisdictions around the world have recognised animal sentience in some form. This includes our neighbours in NZ, the UK, and the entire EU. As countries move to include recognition of animal sentience under their animal welfare laws, the lack of recognition in Australia is apparent in discussions of ethics and increasingly, may provide a barrier to free trade.

Rosalky concludes with advice on what legal professionals can do if they’re interested in helping animals.

“If lawyers want to assist animals, it is largely pro bono because community legal centres and animal protection associations don’t have a lot of money,” he says. “Organisations like Animal Defenders Office in the ACT take on a lot of clients in NSW, and there’s the Animal Law Institute in Victoria.”