There are any number of interesting legal challenges now posed by the animal cause. And, to the credit of the profession, lawyers are coming increasingly to the fore in waging the battle for reform. Certainly, law reform is at the heart of the animal welfare battle. But increasingly an agenda exists to impart the message about treatment of animals through, first, public interest cases affecting animals and, second, prosecutions in key areas, such as intensive livestock production and live animal exports.
Historically, there has been little prosecution in these two areas, although they comprise the “main game” in Australian animal welfare. However, this looks set to change. In Victoria and Western Australia private prosecutions are not permissible. In New South Wales, by reason of a recent amendment to the local animal protection statute, permission to bring a private prosecution is first required to be obtained from the Minister for Primary Industries or the department’s Director General. By reason of the sanction by state animal protection statutes of producer friendly ‘codes of practice’ their protective reach is denied to the overwhelming mass of animals, some 500 million annually. For example, the code of practice for domestic poultry permits the confinement of a battery hen to a floor area less than an A4 sheet of paper. Such enduring close confinement would ordinarily give rise to a cruelty offence under a statute. As such confinement complies with the relevant code of practice however, the act does not apply.
With welfare threshholds so low for intensively produced animals in particular, prosecution is difficult. Accordingly, the lawyer is compelled to turn to other and more creative legal strategies. For example, section 52, Trade Practices Act 1974 prohibits misleading and deceptive conduct by a corporation in trade or commerce. Hypothetically speaking, major players in an industry may market their animal products on the basis that the animals were raised in ideal or enriched conditions, when in fact they were not.
For more information, please see Strategic Litigation and Law Reform, a speech presented by Graeme McEwen at the national conference of the Australian Law Students Association, in Adelaide on Friday 16 July 2010.