On the latest episode of SCU Buzz, Dr Meri Oakwood - ecologist, lawyer, and lecturer at Southern Cross University - dives into the ethical and legal minefield of how animals are classified under Australian law. From kangaroos labelled as both 'protected' and 'pest' depending on their location, to pets treated as mere property in domestic violence cases, this conversation challenges our human-centric legal lens and asks: what rights should animals have?
Welcome to the podcast, Meri. What legal rights do animals have under Australian law?
Generally, in Australian law, the sentience of animals – the ability to perceive one's environment and have positive and negative feelings – is not recognised. There has been a lot of research globally that demonstrates that animals are sentient and most of us who have pets would know from experience that your dog or cat is aware of its environment and experiences feelings.
The law is slow to catch up. In 2019, the Australian Capital Territory was the first jurisdiction to recognise animal sentience. So, in the ACT, people have a duty to care for an animal's mental welfare as well as their physical wellbeing. A draft animal care and protection bill is currently being developed in Victoria but these are only two jurisdictions in Australia. Unfortunately, even if sentience is recognised by our laws, it still doesn't give equal protection to all sentient animals. This is because, under Australian law, the perception of animals and the resulting welfare protections, or lack thereof, depends on how we classify each species in relation to us.
Broadly speaking, native animals are classified in three ways: protected, as a resource, or as a pest. You might have one kangaroo species that can be shot in one location and used as a resource, and yet the same species in a different location, such as a national park, will be protected from harm by humans. So, there are inconsistencies in the legal rights of animals, depending on our relationship with them and their geographic location.
Are there different protections for domestic animals and pets?
Animals that are considered companion animals are treated very differently from animals that are considered to be resources. For example, in New South Wales it is illegal to cut off a dog's tail, but you can legally remove the tail of a sheep without anaesthetic if it is under six months of age. That lamb will still feel pain but they don't have the same protection as a dog because we classify them differently. Our laws view the wellbeing of livestock as less important than the wellbeing of companion animals, even though both groups of animals are sentient.
What legal protections are there for companion animals in domestic violence situations?
In relationships where there is domestic violence, companion animals are at risk of abuse because animals are often weaponised by perpetrators of domestic violence, particularly where there is coercive control. This creates really intense fear in the victim about the welfare of their beloved pet.
When there is a relationship breakdown and two people are arguing about the ownership of a companion animal, the law views that animal as personal property. So, it is viewed the same way as a couch or bookcase. When the court is asked to decide these types of disputes, they usually apply the traditional indicia of property. So, who paid for it? Whose name is it registered in? Who paid the related expenses? Historically, there has been no legal consideration of the safety and wellbeing of animals where there is a relationship breakdown. The animals essentially have no legal rights, the same way a couch has no legal rights.
What steps are being taken to improve this?
The Family Law Amendment Bill was passed by both houses of the Australian Parliament last year. These amendments will recognise that companion animals are really important in Australian households. The definition of companion animals will be expanded to include any animal species that is kept for companionship. Where there is a relationship breakdown and a family court is asked to determine the ownership of a pet, the pet will still be viewed as property, but the court will now be required to take into consideration family violence in the relationship, and cruelty or abuse by a party towards that animal.
This is really significant because it recognises that family violence is relevant to the ownership of a pet after relationship breakdown. The outcome is that thousands of companion animals could gain protection from abuse in the future. This is a tremendous step forward for animal welfare.
