Abstract
This chapter examines changing attitudes to the treatment of animals in nineteenth century Britain, tracing the effects of change through to the first British animal protection legislation in 1822, and beyond to the law of the Australian colonies. By the early part of the twentieth century a number of key facets of animal protection regulation were established: the adoption of the generic ‘no unnecessary suffering’ standard in assessing the extent of cruelty to animals allowed; the use of exemptions from the generic prohibition against cruelty; the imposition of duties to provide for the needs of an animal; and the establishment of one of the key institutional actors in the animal protection field, the RSPCA. As well, the Australian colonies faithfully reproduced an understanding of domesticated animals as personal property. Analysis of the development of animal protection law in Queensland provides a “representative sample” of the adoption of animal protection law in the States and Territories more broadly. In Queensland, as in other similar jurisdictions, the question remains whether the present day animal protection regulatory framework amounts, in essence, to a nineteenth century answer to twenty-first century concerns.
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Notes
- 1.
While this chapter focusses on the emergence of animal protection law in the U.K., as the coloniser of Australia, similar developments were occurring in the newly independent United States (Favre and Tsang 1993).
- 2.
Turner (1980, p. 25) suggests that ‘urbanisation and industrialisation in some way helped to generate the new concern for beasts. But this is merely an observation, not an explanation’.
- 3.
Ryder (2000, p. 147) acknowledges the significance of urbanisation but also stresses that this should not be accepted in an unqualified way. He points out that “some of the worst cruelties towards non-humans in Victorian Britain were inflicted by urban dwellers in the pursuit of objects that were neither agricultural nor sporting: vivisection, the fashion industry and the daily abuse of horses are three major examples. Furthermore, although the animal protection movement in America was largely an urban phenomenon, in Britain this was not so true; many of the movement’s leaders, for instance, were country clergymen or landowners (admittedly often with business in London) … indeed the industrial middle class played little part in the British animal welfare crusade.”
- 4.
Bull-baiting “involved tying a bull to a stake and setting one or more dogs upon it, the object being for the dogs to get hold of, and hang on to, the bull’s nose” (Radford 2001, p. 18). Bull–baiting and bear-baiting date back to the Middle Ages. The former arose as practise of butchering. In the medieval period ‘baiting bulls with dogs was believed to improve the quality of the meat, and for this reason most medieval towns enforced by-laws stipulating that bulls should be baited before slaughter’ (Griffin 2005, p. 42). These regulations had fallen into disuse by the eighteenth century, but the practise remained as a form of entertainment. Bear-baiting had always been an entertainment, “patronised by royalty, nobility, and civic elites” (Griffin 2005, p. 42).
- 5.
Siobhan O’Sullivan (2011) has utilised a “visibility” argument to underpin a political science analysis of prevailing regulation of animal protection.
- 6.
For more detailed accounts of the significance of each of these developments see Radford (2001). Radford (2001, p. 59) concludes that the “impetus for the introduction of animal protection legislation during the first part of the nineteenth century was founded on much more than mere sentimentality. Greater understanding of animal physiology, a reassessment of man’s place in the world, the development of a secular morality, the increasing influence of middle-class values, concern for social discipline and stability, a political and legislative system which was responsive, the individual campaigners to carry the cause forward, and the endorsement of the higher ranks of society were all factors in legislative protection becoming a reality. It represented a confrontation between the old, pre-industrial, paternal, rural community, dominated by local customs, identity and administration, and the new, urbanized society governed from London.” See also Ryder (2000) who cites a range of prominent artistic, philosophical, and cultural figures in eighteenth century Britain extolling the need for better treatment of animals (such as Samuel Johnson, Percy Shelley, Jeremy Bentham, William Blake and Robert Burns).
- 7.
An Act to prevent the cruel and improper Treatment of Cattle 3 Geo IV, c 71.
- 8.
Although often-cited as the first animal protection statute, Radford (2001, p. 39) notes “an Irish law of 1635 which prohibited the pulling of wool off sheep and the attaching of ploughs to horses’ tails which was enacted at least in part because of the cruelty caused by these practices.” He also points to legislation passed in Massachusetts Bay Colony in 1641 which provided that No man shall exercise any Tirrany or Crueltie towards any bruite Creature which are usuallie kept for man’s use. Anti-cruelty legislation was also passed in Maine the year before Martin’s Act was passed.” Tim Bonyhady (2000, pp. 49–50) suggests that a restriction imposed on the taking of birds on Norfolk Island in 1790 by commandant Robert Ross was “not just concerned to ensure a continued supply of food … Nor was he just mimicking existing metropolitan or colonial practice. His laws included what was probably the world’s first prohibition of cruelty to animals.”
- 9.
Ritvo (1987, p. 145) suggests that “[b]y maintaining what amounted to a private police force, the society defined itself as a quasi-governmental institution and its mission as the surveillance and control of the dangerous perpetrators of cruelty to animals. This whole-hearted endorsement of interventionist law enforcement seemed particularly powerful and daring in 1824, when the regular police force were still new and widely resented as invaders of the privacy of citizens.” See also Anderson (2012).
- 10.
See Sect. 6.5 below.
- 11.
5 & 6 Will IV, c 59; An Act to consolidate and amend the several Laws relating to the cruel and improper Treatment of Animals, and the Mischiefs arising from the driving of Cattle.
- 12.
Ibid.
- 13.
8 William IV, No. 3; An Act for the Better Prevention of Cruelty to Animals http://www.austlii.edu.au/au/legis/tas/num_act/aaftbpocta8win3611/. The Act is brief, making it an offence to “wantonly torture or cruelly beat ill-treat or abuse any Horse Bull Ox Cow Calf Mule Ass Sheep Pig Goat Dog or other Domestic Animal.” For a detailed history of the development of animal protection law in Tasmania see Petrow (2012).
- 14.
The available evidence suggests that the legislation was enforced through prosecutions at least from 1838. Jamieson (1991a, p. 22) states that “the Hobart Town Courier notes the imposition of fines for convictions of cruelty given against Thomas Dowling (14 September 1838) and Richard Hume (12 October 1838). Records at Richmond Gaol record 6 days solitary confinement for cruelty given to Charles M in September 1838.”
- 15.
14 Vic, No 40; An Act for the More Effectual Prevention of Cruelty to Animals http://www.austlii.edu.au/au/legis/nsw/num_act/ctaa1850n40240.pdf. The key provision provided that if “any person shall … cruelly beat ill treat over-drive abuse or torture or cause or procure to be cruelly beaten ill treated over-driven abused or tortured any animal every such offender shall for every such offence forfeit and pay a penalty not exceeding five pounds”: s 1.
- 16.
The definition referred to “any horse mare gelding bull ox cow heifer steer calf mule ass sheep lamb hog pig sow or goat or any dog cat or other domestic animal.”
- 17.
- 18.
Police Act 1865 (Tas) s 83 http://www.austlii.edu.au/au/legis/tas/num_act/tpa186529vn10163/
- 19.
12 Vic No 20; An Ordinance for Regulating the Police in Western Australia, s XX http://www.austlii.edu.au/au/legis/wa/num_act/p12vn20131/
- 20.
26 & 27 Vic No 10, Police Act 1863 (SA) s 76 http://www.austlii.edu.au/au/legis/sa/num_act/pa10o26a27v1863168/
- 21.
27 Vic No 225, Police Offences Statute 1864 s 18 http://www.austlii.edu.au/au/legis/vic/hist_act/tpos1864248/
- 22.
For Jamieson (1991a, p. 26) “little new development is to be found in the cruelty provisions adopted beyond the precedent earlier established by the New South Wales legislation of 1850. Nevertheless, that early legislation having generally recognized the offence of cruelty and made specific provision in respect of animal fights and the carriage of animals, both Victoria (1854) and South Australia (1863) did make further provision as to the omission to supply an animal with food and water.”
- 23.
In 1890 the Constitution of the Queensland Society was amended to incorporate protection of children and the name shortened to the “Society for the Prevention of Cruelty”. The Society was an active contributor to the successful campaign for child protection legislation in the 1890s. However “[o]ver the twentieth century, the Government gradually assumed a greater role in the protection of children and old people and the Society’s involvement declined until it finally ceased around 1970”: (RSPCA Queensland).
- 24.
It was only much later, in 1981, that RSPCA Australia, a national organisation, was created (RSPCA Australia n.d.).
- 25.
For a detailed examination of this period of wild animal protection law see White (2013).
- 26.
Citing doctoral research by MacCulloch (1993).
- 27.
The transformation of the koala from rural pest and valuable commodity to national icon occurred over many years. In 1896 “one leading fur company held over one million koala skins for export to Russia” (Munro 2001, p. 14). As late as 1927 the Queensland Government, in the face of considerable public outcry, permitted the killing of over one million koalas for the international fur trade (White 2013).
- 28.
Defence counsel would be appointed for accused animals. On a finding of guilt punishment included excommunication, as well as judicial penalties such as capital punishment.
- 29.
Francione (1995, p. 39) suggests that “Locke’s theory of property had an extraordinary influence on the common law.”
- 30.
Citing Castles (1982).
- 31.
The Animals Protection Act of 1901 (Qld). A minor change to the 1850 NSW legislation had earlier expanded the category of “animal” to include camels: Criminal Law and Evidence Amendment Act 1891 (NSW) s 35.
- 32.
‘Animal’ was defined as “every species of animal whether in a natural or domestic state”: s 3.
- 33.
Section 5(1) provided: “No person shall do any act or observe any forbearance towards any animal which act or forbearance involves cruelty.”
- 34.
Section 7 provided: “No person who has the possession or the custody of any animal which is confined or otherwise unable to provide for itself shall omit to provide such animal during so long as it remains so confined in his possession or custody with proper and sufficient food, drink, and shelter.”
- 35.
Section 3 defined cruelty as: “The intentional or deliberate infliction upon any animal of pain that in its kind or degree or its object or its circumstances is unreasonable or wanton or malicious.”
- 36.
Exemptions included for “the extermination of rabbits, marsupials, wild dogs or vermin”, hunting of wild animals and use of animals in scientific research: s 12(1).
- 37.
The Animals Protection Act of 1925 (Qld).
- 38.
The definition of cruelty was changed in the 1925 Act, to unreasonable, unnecessary or unjustifiable ill-treatment. In a circular approach, ill-treatment was then defined to include a range of cruel practices. As Hill (1985, p. 9) argues, “this definition says little more than that cruelty means unreasonable, unnecessary or unjustifiable cruelty. Surely all ill-treatment is cruel, and certainly in the terms proposed in the Act. The words are synonymous.”
- 39.
The Animals Protection Act of 1925 (Qld) s 7(1)(a).
- 40.
Ibid s 7(1)(b) (“dehorning of cattle, or the castration, speying, ear-splitting, ear-marking, or branding of any animal, or the tailing of any lamb, where the operation is performed with a minimum of suffering to the animal operated upon”).
- 41.
Ibid s 19.
- 42.
For detailed discussion see Dale and White (2013). The Commonwealth Government has recently retreated from a leadership role in the animal welfare policy field, reflected in the defunding of the AAWS, with the consequences for the national consistency goal uncertain at best (Commonwealth Government 2013).
- 43.
Animal Care and Protection Act 2001 (Qld).
- 44.
These are the freedom from hunger, thirst and malnutrition; freedom from fear and distress; freedom from physical and thermal discomfort; freedom from pain, injury and disease; and freedom to express normal patterns of behavior. The origin of the Five Freedoms can be traced back to the 1960s Brambell Committee inquiry into the treatment of farm animals in Great Britain (Brambell et al. 1965).
- 45.
In 1991 the Queensland Association for Community and Animal Welfare proposed that a “stewardship” obligation be included in Queensland animal protection law, in terms very similar to the duty of care obligation included in the 2001 Act (Thelander 1991).
- 46.
Farming industry attitudes to codes of practice seemed to shift dramatically between the mid-1980s, when their adoption under legislation in Queensland was first proposed, and the early 1990s. For example, in 1985 grazing animal farmers were expressing the view that “codes of conduct are not necessary for the grazing animal industry since it operates well, and has done so for many years without any such code in place (Peart 1985, p. 173). By 1991 the United Graziers’ Association was arguing that “[i]n our view, the correct strategy is to use the Codes of Practice as a guideline, with the Codes tied to legislation” (Joyce 1991, p. 57).
- 47.
For a succinct account of the range of challenges to an ethic of humaneness see Garner (2005).
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White, S. (2016). Animal Protection Law in Australia: Bound by History. In: Cao, D., White, S. (eds) Animal Law and Welfare - International Perspectives. Ius Gentium: Comparative Perspectives on Law and Justice, vol 53. Springer, Cham. https://doi.org/10.1007/978-3-319-26818-7_6
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