As the states consider animal welfare law reform, what changes would curb cruelty against animals?

Mahatma Gandhi said:

The greatness of a nation and its moral progress can be judged by the way its animals are treated.

Yet we often hear of animals being treated poorly in Australia, and our laws are frequently criticised as a result.

In response, many states are reforming their animal welfare laws.

The South Australian government recently called for public feedback on how animal welfare law works and how it could be improved. This follows recent similar calls in New South Wales, Queensland, Victoria and Western Australia.

These public consultation processes allow lawmakers to get a sense of the weight of concern about key issues. So, what are the key issues for debate, and how would changing them affect animals and society?

Animal welfare laws in Australia

We don’t have a national law to deal with animal welfare. This might seem seem strange. After all, animals are often transported across state boundaries, and having a single law throughout the country would create consistent practice, making it easier for our global trading partners to identify our animal husbandry practices (a current controversial issue).

This federated system for animal welfare is a result of our Constitution. As a result, each state and territory has its own act. We’ll call these “animal welfare acts” even though the names differ between the states.

Broadly, these acts regulate human interactions with animals. They make it an offence to be cruel to an animal.

But the acts go further than this. They make animal owners responsible for promoting their animals’ wellbeing by ensuring they have access to food, water, good housing and other resources. These acts also outline any procedures that cannot be done on animals, such as tail docking of dogs.

But you won’t find the details of animal husbandry and care in the acts. For this, you’ll have to read the codes of practice or standards. These documents, sometimes referred to as “soft law”, lay out what is acceptable husbandry practice. But they are harder to enforce as they have less legal weight.

It’s a complex system. And it’s important to remember that the current state reviews are focused on the acts.

Animals included and their sentience

A hotly debated reform topic is the definition of an animal in law. All states include mammals, reptiles, amphibians and birds, but fish and other aquatic animals such as crustaceans and cephalopods (octopuses and squid) might not be included.

Recently, the UK government made news when it recognised decapods (lobsters and crabs) and cephalopods as sentient.

Recognition of animal sentience in law has been a big-ticket reform item both in Australia and internationally. Sentience describes the ability of animals to experience feelings such as pain or pleasure. Ascribing sentience to animals represents a big step forward, by acknowledging that animals are more than their current legal classification as property suggests.

So what would recognition of these animals as sentient mean for our seafood lunch or fishing trip up the coast? Well, these activities likely wouldn’t change much.

Our current laws provide protection to animals such as sheep and cattle. Yet we still farm them. The same would apply for these aquatic species. But their inclusion may provide a basis for future changes in practice – for example, the outlawing of boiling crabs alive.

But there is still debate within the legal community about what practical impact this change would have. Because of the codes of practice, farming practices will remain unchanged. It is likely the biggest impact will be on how courts apply the law to animal cruelty cases.

Still, its inclusion is important messaging, and would allow states to showcase a commitment to animal welfare, with minimal actual change to the status quo.

Read more: ACT's new animal sentience law recognises an animal's psychological pain and pleasure, and may lead to better protections

Community expectations around penalties

Cruelty to animals evokes strong emotions among our nation of animal lovers. There is similar outrage when perpetrators of these offences receive what is seen as lenient sentencing.

Governments have responded to these “community expectations” by increasing maximum penalties for offences in the animal welfare acts. This sends a message to the community and the courts that animal welfare is a serious issue. It also hopefully acts as a deterrent to potential offenders.

However, changes in law do not always lead to changes in sentencing by the courts. In any case, there may be better ways to reduce this kind of offending, such as education programs or penalties, like counselling, that support offenders to get help.

We may be seeing a shift in the tide of community opinion around this issue. Recent research showed Australians appear more supportive of the use of alternative penalties than previously suggested, and more willing to trust judges’ sentencing decisions. Nevertheless, support for increasing harshness of sentences is still strong.

Read more: Penalties for animal cruelty double in SA, but is this enough to stop animal abuse?

Limitations of animal welfare law

It is easy to criticise the law when animal welfare issues arise. But the law is a blunt instrument. Law relies on effective and well-resourced enforcement for its success.

Written law also only provides a minimum benchmark. It does not (and has never been proclaimed to) represent best practice in animal care. This can be better achieved through use of assurance or accreditation schemes, which producers can sign up to.

The power of consumers should not be discounted either. By choosing to buy only products that meet high welfare standards, we can move industry direction far more quickly than legal change is able.