Greens call for legal recognition of animal sentience

Today Abigail delivered an impassioned speech for her bill to legally recognise animals' capacity to feel joy, fear, pleasure, suffering and more.

PREVENTION OF CRUELTY TO ANIMALS AMENDMENT (ANIMAL SENTIENCE) BILL 2022

You can find the text of the Bill here

https://www.facebook.com/abigailboydmlc/videos/718298682583648/ 

Abigail said: 

Animals are sentient beings that consciously and subjectively feel joy, fear, pleasure and suffering. To the vast majority of us, this is not a controversial statement. We have all interacted with animals and seen it for ourselves. Those of us lucky enough to have shared our lives with loved companion animals will be very aware that each animal has its own unique personality, fears and interests, as well as ways of expressing those individual traits. They are all individually someone, not something.

Thousands of robust and peer-reviewed scientific studies have proven various elements of consciousness and sentience in a variety of animal species. To list a few, we now know that mice and chickens display empathy; that rats will behave altruistically for others; that dolphins experience intense grief; that ants can recognise themselves in a mirror; that ravens demonstrate moral behaviour and will collectively punish others with social ostracism; that Siamese fighting fish can make logical deductions based on prior information; that apes play practical jokes and experience humour; that elephants can act motivated by revenge and exhibit symptoms of post‑traumatic stress disorder; that some parrots and dogs can ask questions and comprehend the responses; that octopuses experience dreamlike active REM sleep; and that cats can feel annoyed.

We have been studying animal cognition, consciousness and sentience for hundreds of years, and the science on the basic question of whether animals are sentient beings is settled. We have come a long way from the Cartesian thinking of the early seventeenth century that viewed animals as biological machines incapable of reason and devoid of consciousness. But in New South Wales, our laws are stuck firmly in the past. Currently, instead of recognising the inherent value of animals, our laws consider them animate property that can feel only pain or its absence. This is not too far removed from the "automata" categorisation made by Descartes. We can and must do better than this.

While the Prevention of Cruelty to Animals Act 1979 currently recognises the ability for animals to feel pain, including suffering and distress, and holds in its objects the prevention of cruelty and the promotion of animal welfare, it does not define what welfare for animals actually looks like. The Prevention of Cruelty to Animals Act 1979 is a product of its time. In the 1960s and 1970s, the science of the Five Freedoms of animal welfare—being the freedom from hunger and thirst; freedom from discomfort; freedom from pain, injury or disease; freedom to express normal behaviour; and freedom from fear and distress—resulted in animal welfare laws evolving to actually prevent likely suffering of animals by providing for their physical health and behavioural needs rather than just requiring action after the suffering had already occurred. This is captured in the offences contained in the original 1979 version of the Act as it was made, with the Act not fundamentally changing since. As a result, we have "anti-cruelty" laws that, as the word "anti-cruelty" identifies, apply legal responsibilities that focus only on the animals' negative state of suffering, pain and distress.

Anti-cruelty laws are breached only when an animal's life is so unacceptably bad that it warrants punishment against those responsible, but anti-cruelty laws cannot and do not tell us what an acceptably good life for an animal looks like. It is an outdated concept that suggests "less pain is better welfare". By definition, sentience means the ability to feel and experience. Sentient animals experience pain and pleasure in what the modern science of the Five Domains describes as negative and positive states. Anti-cruelty law prohibits actions that cause an animal to "feel or experience" unnecessary pain and leads to the logical conclusion that anti-cruelty law implicitly recognises animals as sentient. But anti-cruelty law does not extend the duty of care that people have for animals to anything more than avoiding pain. Anti-cruelty law does not acknowledge or apply a responsibility to facilitate a positive life for animals.

The New South Wales Government knows full well that our current laws are not up to scratch. In 2018 the Department of Primary Industries released its Animal Welfare Action Plan, the main goal of which was to modernise the policy and legislative framework. As part of this process, the department invited input on what the public wanted to see in our animal welfare laws. The consultation outcomes report released in December 2021 showed that one of the key issues raised was that the new laws should make specific reference to sentience and/or the intrinsic value of animals. However, despite the clear mandate for a significant overhaul of these laws, including through recognition of sentience, the report has culminated in a piece of draft legislation released two years after the Government's original time line said it would, which provides little improvement to the legislation introduced more than forty years earlier and does not improve on the implicit recognition of sentience in the 1979 Act.

At the beginning of this year, the then Minister for Agriculture referred this draft bill to a parliamentary inquiry, presumably knowing that the committee could never reach a consensus on the need to update our laws because of the diversity of views—however outdated and misguided some of them may be—of the members that make up the committee. I sat on the inquiry and watched as recreational hunters who brutally kill animals for entertainment, and animal agriculture industry lobby groups that serve to profit from lax welfare laws, were given the same, if not greater, weight as leading animal scientists when presenting evidence to the committee. Meanwhile, the clear mandate demonstrated in the consultation outcomes report was maintained in submissions made to the inquiry, with organisations like RSPCA NSW, the NSW Young Lawyers division of the Law Society of New South Wales and the Australian Veterinary Association, in addition to dozens of individuals and animal welfare organisations, calling for the explicit recognition of animal sentience.

What is playing out now, however, is predictable. The Government is throwing its arms up in the air and declaring that it is just too hard to marry up this great variety of opinions, so it will just tinker around the edges of this fundamentally out-of-date and out-of-touch law. As we heard from experts during the inquiry, the most up‑to‑date model of scientific assessment of animal welfare and, consequently, the genuinely "modern" authority and scientific model for our animal welfare laws is what is known as the Five Domains. Just as the science of the Five Freedoms was the best-practice scientific model of the day that informed the 1979 legislation half a century ago, the laws of today need to reflect today's best scientific knowledge and concepts of best practice.

The Five Domains model that was developed by Professor David Mellor is the leading scientific animal welfare assessment model. It is accepted in multiple disciplines and by animal welfare scientists, ethicists, lawyers and animal welfare leaders around the world as the best tool for assessing an animal's welfare. The Five Domains model builds upon the Five Freedoms model and provides us with a modern-day concept of animal welfare that stresses the importance of not only minimising negative welfare impacts but also promoting positive welfare outcomes. I quote from the most recent update to the Five Domains model by David Mellor et al,The 2020 Five Domains Model: Including Human-Animal Interactions in Assessments of Animal Welfare:

The domains of the ... Model ... are: 1 Nutrition, 2 Physical Environment, 3 Health, 4 Behavioural Interactions and 5 Mental State. The first four domains focus attention on factors that give rise to specific negative or positive subjective experiences (affects), which contribute to the animal's mental state, as evaluated in Domain 5.

In summarising that science, the Five Domains model identifies that the mental state of an animal that subjectively feels and experiences is a combination of its negative and positive nutritional, environmental, health and interactive experiences.

Similarly, the application of the Five Domains model to our animal welfare laws that apply a duty of care for the animals' negative and positive experiences means that animal caregivers will continue to be responsible for ensuring that the animal is free from unnecessary suffering—negative states—and also have a responsibility to provide animals in their care with the opportunity to experience positive states like comfort, interest, pleasure and enjoyment. In practice, providing opportunities for positive states includes simple things like the ability to have a varied diet; access to shade and shelter; and room to play, move and interact and to live what is described in the animal welfare sector as a "good life".

Further examples of providing animals with access to experience positive states, compared with simply an absence of negative states, include the comfort that comes from pleasant and appropriate bedding, compared with the lack of physical discomfort that comes from an unsheltered and overly hot or cold place to sleep; the vitality of fitness and the pleasure of appropriately vigorous exercise, compared with the absence of physical weakness and exhaustion from limited access to movement or over‑exercise; and the engaged satisfaction of the animal having choice within its own environment caused by voluntary and self‑directed play, socialising and expression of natural behaviours like foraging or hunting, compared with gradual boredom or monotony caused by access to limited or scheduled enrichment.

This is surely what we must aspire to in achieving the true purpose and meaning of animal welfare and wellbeing. Many public and industry leaders are already doing these things. This bill simply means that all people in New South Wales will be required to look after animals in a way that gives due consideration to the suffering and enjoyment of the animal and that all New South Wales animals will have a good life, not just the lucky ones. The creation of a positive animal welfare framework means that a failure to provide adequate and appropriate opportunity for the animal to have positive experiences is a failure to meet welfare obligations. The evolved duty of care that clearly applies to animals' negative and positive states will allow and necessitate a shift in the standards of acceptable animal care to incorporate a legal responsibility for a good quality of life, not just the absence of a bad quality of life.

To quote the Sentient Animal Law Foundation's argument for establishing positive animal welfare as the next logical step in animal law reform, "Less pain is not the same as more pleasure". This reframes the designation of animals as property without abolishing it, creating a meaningful consequence of recognition of sentience in the form of positive animal welfare obligations, hinging on the existing legal paradigm of legal responsibility. That does not provide legal personhood to animals, a concept which is vastly different as a legal concept and in practice. One day it may well be that animals are classified as something other than sentient property and debates about animal rights, personhood and the property status of animals may be further debated and explored. But to be clear, the positive animal welfare laws proposed in this bill—just like our existing anti‑cruelty laws—are not about rights for animals but about responsibilities for people. I turn to the specifics of the bill. Schedule 1 [1] provides that the object of the principal Act is to recognise:

(a)the sentience of animals and their ability to subjectively feel and perceive the world around them,

(b)that animals have intrinsic value and deserve to be treated with compassion and to have a quality of life that reflects their intrinsic value,

(c)that people have a duty of care to ensure the physical and mental welfare of an animal in their charge and to provide opportunities for the animal to feel or experience positive states of comfort, interest or pleasure.

The proposed section also sets out how the object is to be achieved. Schedule 1 [2] inserts definitions of "cruelty" and "sentience". Cruelty is not currently defined in the Prevention of Cruelty to Animals Act 1979, so a definition has been inserted to clarify the Act and its interpretation. "Sentience" is defined as an "animal's capacity to feel or experience negative and positive physical, mental and emotional states". Schedule 1 [2] also amends the definition of "pain" in the principal Act to include "physical, mental or emotional suffering or distress". Currently "pain" is only defined insofar as the Act specifies that it "includes suffering and distress".

Schedule 1 [3] specifies considerations that are relevant to determining whether pain experienced by an animal is unreasonable or unnecessary for the purposes of interpreting the amended definition of "cruelty". Those considerations include whether the pain could reasonably have been avoided or reduced and whether the conduct that caused the pain was in compliance with the law. Schedule 1 [4] requires current animal welfare assessment models and best practice to be taken into account by the court in determining whether a person is guilty of an animal cruelty offence, and by officers and the secretary in exercising certain functions under the Act, where "best practice" means:

… best practice principles and standards for ensuring animal welfare that require the physical, emotional and mental needs of animals to be met in a way that conforms with contemporary scientific knowledge.

Other jurisdictions that have explicitly recognised sentience include the Australian Capital Territory, New Zealand, the United Kingdom, France, Colombia, Slovakia, the European Union, Brussels and Quebec. Victoria has indicated its upcoming animal welfare law overhaul will also recognise sentience. Additionally, the December 2021 free trade agreement between the United Kingdom and Australia recognises that animals are sentient beings.

The purpose of this bill is to explicitly recognise animal sentience and then put into action the legal duty of care to ensure a good life that must follow if the recognition of sentience is to result in meaningful change in practice. Legislative changes in other jurisdictions have largely failed to result in meaningful impacts on animal welfare outcomes because, while they have recognised sentience, they have not defined sentience in a manner that extends the duty of care to clearly and unequivocally add a responsibility for the animal's positive states as part of that recognition. To be clear, this legislative change will not materially alter any of the current specific anti‑cruelty welfare standards as they are defined under the Prevention of Cruelty to Animals Act or its regulation. It will not change the statutory definition of "unreasonable" or "unnecessary" cruelty, or the subsequent exemptions granted to commercial animal industries to carry out practices that, if undertaken by a member of the public, would be considered cruel.

Extending anti‑cruelty law by recognising and defining sentience in a way that retains responsibility for an animal's suffering and adds responsibility for the animal's enjoyment does not automatically mean that animals cannot be harmed or will never experience a negative state. However, it does place an expectation on our lawmakers to regulate for the welfare of sentient beings who deserve positive experiences. It also acknowledges that where our laws do permit specific acts of harm to sentient beings, we do so because, as a society, we have decided that it is acceptable on balance. It means that as a society, via our law and our lawmakers, we have decided that we need to do more than just protect animals from unnecessary suffering by adding responsibilities for the animals' comfort, interest and pleasure.

It is worth mentioning that if Parliament chooses to extend the duty of care that people have for animals to include a responsibility to facilitate a positive life, it is necessary for the New South Wales Government to provide education and support to animal industries to ensure that this reform is properly implemented. While many farmers, businesses and communities are already invested in improving the lives of their animals, there are just as many for whom this legislative change would present varied logistical challenges, but not challenges so large that they could not be met nor so burdensome that they should prevent the passage of the bill. I acknowledge that recognition of animal sentience is not a panacea for the problems and pitfalls in animal law in New South Wales. However, the consequences of recognising animal sentience and extending the duty of care that we owe to animals will lay the foundation for a better, more balanced and more just regulatory framework that delivers on the expectations of the New South Wales public, who overwhelmingly believe in animals being given a good life.

We can do better than the status quo. Now is the time to align our laws with scientific best practice and overwhelming community expectations. I thank the animal activists, advocates, ethicists, scientists and lawyers who have been advocating for many years for changes to our laws to recognise sentience and incorporate the Five Domains model of animal welfare assessment. I also thank all the organisations and individuals who made submissions at any stage of the New South Wales Government's animal welfare reform over the past four years, including Animal Liberation; the Animal Defenders Office; Animals' Angels; the Australian Veterinary Association; the Coalition for the Protection of Greyhounds; GREY2K USA Worldwide; Humane Society International Australia; Lawyers for Animals; the NSW Young Lawyers division of the Law Society of New South Wales; RSPCA NSW; the Sentient Animal Law Foundation; Sentient, The Veterinary Institute of Animal Ethics; Tree of Compassion; and World Animal Protection, all of which made public submissions to the parliamentary inquiry into animal welfare policy in New South Wales.

I offer particular and massive thanks to Dr Ian Robertson, Dr Daniel Goldsworthy and the Sentient Animal Law Foundation, whose expert guidance has proved invaluable in shaping this bill. Humans have a large and complicated relationship with animals. We still rely on their bodies to feed and clothe us. We work them for necessary labour and for entertainment. We use their bodies and minds for experimentation to benefit humankind. We up‑end and even end their lives as we destroy their homes and habitats, and we share our lives with them for mutual companionship. The very least we owe them is to recognise that, like us, they feel joy, fear, pleasure and suffering, and that they, too, deserve a good life. I commend the bill to the House.

 

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