> Ruth Pollard Case #58 - Speciesism Law

Industrialised cruelty to animals: Responding as trustees

August 31, 2020

Ruth Pollard

The abuse of animals in modern times is entwined with the industrial and digital revolutions.[1] Abuse of animals and human violence are two sides of the same coin.[2] During the past decade, television broadcasts have exposed cruelty in Australia’s agricultural and racing industries. People were shocked in 2011 by grim footage of exported cattle at an Indonesian abattoir.[3] More footage surfaced of creatures suffering on vessels sent to Middle Eastern destinations. For several years, horses have perished at the annual Melbourne Cup races.[4] In 2015, greyhounds were filmed in training with small creatures as live bait.[5]

Public outrage has been widespread. Animals Australia, PETA, Voiceless, and Dominion Movement are sources of secular commentary about animal protection. The public mood is also reflected in the election of representatives from the Animal Justice Party to the NSW and Victorian state parliaments. I have been reflecting on the contrasts between the groundswell for the passage of England’s first anti-cruelty legislation in 1822, and today’s public outrage. In the nineteenth century, cruelty was constantly visible.[6] Today, cruelty is mostly invisible to the public gaze.[7] Two centuries ago Christians preached and lobbied against cruelty, but now they seem invisible. What would the founders of England’s RSPCA say to us about billions of creatures being abused on an industrial scale?

Recent controversies

In June 2011, a temporary ban on the live export trade to Indonesia was ordered by the Minister for Agriculture. A backlash from vested interests changed the climate of opinion. A recent Federal Court decision ruled in favour of Northern Australian cattle farmers against the Minister for Agriculture’s 2011 ban. Substantial compensation claims may ensue.[8]

The live export trade is a matter of concern in many countries. Trade has quadrupled in size over the last fifty years, so that in 2017 it was worth $21 billion, with nearly two billion farm animals being exported and at least five million animals in transit every day.[9] Investigations outside Australia reveal multiple problems: boats licensed to convey animals are often dilapidated, animals suffer in hot vehicles, and abuse occurs at slaughter. In the US, UK, and France consolidated abattoirs result in animals travelling longer distances.

Commercial greyhound racing occurs in seven countries and non-commercial racing happens in twenty-one countries.[10] Many countries allow gambling on greyhound races from remote locations. The moral concerns have not abated: dogs caged and drugged, scientific experimentation, injuries, fatalities, live baiting.

It is reported that around 40% of the 11 000 greyhounds bred in Australia each year are surplus to requirements. The average lifespan of a racing greyhound is 1.5 years, compared to 10 to 12 years for a non-racing greyhound. It is estimated that seven hundred and fifty greyhounds are injured on racing tracks each month. State governments invest millions of dollars in support due to revenue generated by gambling.[11]

When live baiting was exposed, the NSW Premier ordered a permanent ban on greyhound racing. It was short-lived once industry apologists shunned some bad apples, claimed the ban was emotional over-kill, and prophesied financial Armageddon. The narrative deflected attention from institutionalised cruelty and was redirected to faith in the quasi-religious rhetoric of economic rationalism.[12]

Minor reforms have been implemented. Sheep are not to be shipped to the Middle East in summer months. The NSW Government response resulted in a Special Commission of Inquiry and the establishment of the Greyhound Welfare and Integrity Commission, and codes of practice are being developed. Nevertheless, greyhound fatalities and deaths on live export vessels continue.[13] Dogs and other creatures are disposable investments and making money matters more. Remember that slaves were commodities and slavery was justified by economic rhetoric.[14] Live bait footage which was obtained in secret surveillance has been excluded from evidence in a case pending before the High Court.[15]

Stereotyping Christianity

Australian Christian voices are seldom heard in protest about cruelty.[16] Theologians have classically argued that cruelty is diabolical and rooted in the heart: failure to obey God, self-centredness, greed, absence of mercy, and abuse of power.[17]

In our post-truth era, Christian belief is construed as the root cause for the abuse of animals. Since 2005, elective courses in animal law have been taught in many Australian university law schools, but in brief historical surveys the textbooks negatively stereotype Christianity.[18] Lynn White and Peter Singer argue that Christianity is part of the problem rather than the solution. According to them, Christians are anthropocentric, and discriminate against animals. The Bible, they say, confers on humans a special status which is accompanied by the authorisation (dominion mandate) to use creatures as subservient instruments.[19] Philip Sampson reports that Christian complicity in cruelty is cited by young non-Christians as a belief-blocker to the gospel.[20]

Shared creaturehood

The Bible is theocentric and has nearly 3,000 references to various creatures.[21] It does ascribe value to humans made in the image of God (Genesis 1:26-27; 9:6), but like other creatures we metaphorically sprang from the ground (Genesis 2:9, 19; 1:24). Charles Spurgeon preached:

You and I are made of such stuff as the world around us and yet we are the compeers of angels. We are brothers to the worm.[22]

Space limitations prevent exegesis, but these points warrant serious reflections:

Every creature, including humans, partakes of a breath of life (Genesis 2:7; 7:22). The Hebrew terminology (nephesh: soul; chayah: living) is used without differentiation between the breath of life given to humans and creatures. At death, every creature, including us, returns to dust (Ecclesiastes 3:18-20).[23]
The diet assigned to humans and non-humans in Eden was plant based (Genesis 1:29-30). Accounts of the bounty the Israelites will enjoy in the land God is giving them include fruit and grains, but are silent about consuming flesh (Deuteronomy 8:7-10; Amos 9:14).
Noah’s Flood underscores God’s concern to preserve humans and other creatures (Genesis 6-8). The post-Flood covenant is made with both people and other creatures, with the rainbow as its visible sign (Genesis 9:9-17). The rainbow appears in visions of four heavenly creatures whose faces resemble an ox, eagle, lion and human (Ezekiel 1:5- 28; Revelation 4:6-9). It reminds us of God’s everlasting covenant with creation.[24]
God’s blessing of Israel included their livestock (Ezekiel 36:11); God’s mercy extends to all creation (Psalm 145:9); God feeds them (Joel 2:22; Matthew 6:26); they are valued by God (Matthew 10:29; Luke 12:6).
Compassionate treatment of animals is part of righteousness (Proverbs 12:10); the Sabbath rest extended to Israel’s animals (Exodus 20:10); oxen should not be muzzled (Deuteronomy 25:4); trapped creatures must be rescued (Luke 14:5).
All creatures praise and glorify God (e.g. Psalm 104; 148; Isaiah 43:20; Revelation 5:13).[25]
All creatures belong to God (Psalm 50:10- 11). All creation is made by, through and for Christ (Colossians 1:15-20), and awaits final redemption (Romans 8:18-22).[26]

The above passages must inform our ethical behaviour and attitudes. The value ascribed to people does not mean that God disregards other creatures.[27]

Divine agency

Scholars argue that dominion must be understood in the context in which it was written. It intersects with: humans complying with the divine will; concern for the welfare of its subjects; compassion; servanthood; responsibility; stewardship; peaceful reign. It is a term of hierarchical relationship but is not exploitative or destructive.[28] Genesis 1:26 says that humans bear God’s image and have dominion, but absent from this peaceful portrait are destructive deeds and the slaughtering of creatures. Dominion is inextricably linked to humans expressing God’s image through love, mercy, grace, kindness, and faithfulness.

In his influential 1967 article published in Science, Lynn White had asserted:

Especially in its Western form, Christianity is the most anthropocentric religion the world has seen … Man shares, in great measure, God’s transcendence of nature. Christianity, in absolute contrast to ancient paganism and Asia’s religions (except, perhaps, Zoroastrianism), not only established a dualism of man and nature but also insisted that it is God’s will that man exploit nature for his proper ends.[29]

Jeremy Cohen indicates that White’s characterisation of dominion is not evident in any Jewish or Christian interpretations of Genesis up to the Renaissance.[30] Likewise, Susan Power Bratton confirms that it is not pictorially represented in pre-modern Christian art.[31] What White pinpoints as harsh dominion is, however, evident in colonialist beliefs about subduing the world, and some seventeenth century Christians in science justified animal experimentation from ‘dominion’.[32]

We may contemplate dominion via legal analogies: agency, trusteeship, guardianship. God appoints humans as vice-regents or agents over creation. In law, an agent owes a fiduciary duty to the person (the principal) who has appointed the agent to that role. If the agent breaches their duty, the principal may have legal remedies against the agent. Unless permitted by the principal, an agent must not use the principal’s property for their own purpose or end; this is a conflict of interest. Animals belong to God (his property), and humans are delegated to care for them. In law, an agent must account to the principal for how the agent deals with the principal’s property. Humans will be called to account for the way they have treated animals, or shown their indifference, and let us be mindful that God is praised ‘for destroying the destroyers of the earth’ (Revelation 11:18).

In ‘The Great Audit’ the English jurist Sir Matthew Hale (1609-1676) condemned sports involving the torture and slaughter of creatures as a breach of trust:

I have ever esteemed it a breach of Trust, and have accordingly declined any Cruelty to any thy Creatures, and as much as I might, prevented it in others, as a Tyranny, inconsistent with the Trust and Stewardship that thou hast committed to me … ever remembring that thou hast given us a Dominion over thy Creatures; yet it is under a Law of Justice, Prudence and Moderation, otherwise we should become Tyrants, not Lords, over thy Creatures: And therefore those things of this nature, that others have practised as Recreations, I have avoided as Sins.[33]

Hale characterised humans acting kindly toward animals as God’s Vice-Roys, stewards, and bailiffs.[34] In the role of vice regents or agents, we carry out God’s purposes in his creation. The concept of a divine trust which is placed in our care surfaces in William How’s hymn:

We give thee but thine own,

Whate’er the gift may be;

All that we have is thine alone,

A trust, O Lord, from thee.[35]

God’s rights as owner of all creatures, plus the individual creature’s interests in flourishing, establish moral boundaries for our duties as trustees. Elsewhere, I have argued that guardianship, which like agency and trusteeship bestows a fiduciary duty, may characterise our protective duties toward animals.[36]

Australian laws

Australia derived its legal system from England. English law in turn was influenced by Roman Law. Roman law distinguished persons, things, and actions. Under Roman law, women, children, slaves, the insane and animals were things. Roman law also made a distinction between domestic and wild animals. Animals were owned by humans as property: damage done by or to an animal was actionable by or against the owner. These concepts still exist in our law today. A person has absolute ownership in their animal. Unless there is legislative intervention, the owner has complete discretion, even as to whether an animal lives or dies.

The Commonwealth Constitution does not mention animals but does make laws about animals, relying on various sections such as s51, which allows the Commonwealth to make laws relating to trade and commerce, fisheries, quarantine, and external affairs. It is the Commonwealth Government which regulates the live export trade.[37]

The states and territories have enacted animal welfare legislation, all with a similar framework and purpose, but which contain some differences in wording or definition of terms.[38] The laws contain various defences and qualifications. Each Act qualifies an act of cruelty in some way, such as the act of cruelty must not be unreasonable, unnecessary, or unjustifiable. In the NSW Prevention of Cruelty to Animals Act 1979 defences are available so that for example a stock animal may be ear-tagged or branded, stock animals less than six months old may be castrated, sheep less than twelve months old may have the ‘mules’ operation performed without anaesthetic, and animals may be destroyed for food consumption in a manner that inflicts no unnecessary pain. Penalties for infliction of cruelty range from modest fines to imprisonment.

There is a plethora of other legislation: in NSW there is the Companion Animals Act 1998, Exhibited Animals Protection Act 1986, National Parks and Wildlife Act 1974, Fisheries Management Act 1994, Greyhound Racing Act 2017, and more.[39] Recent state and Commonwealth gag legislation may shield industrialised enterprises from exposure by activists using surveillance technology.[40]

Final questions

‘Stop being sentimental, it is only an animal’ is a common retort. This stems from early twentieth century slurs that women who opposed vivisection were mentally ill (malady of zoophil-psychosis); in a male this malfunction was evidence of being effeminate.[41] It presents a binary choice of either humans or animals, but past Christian social reformers were both/and: William Wilberforce was both anti-slavery and anti-cruelty, while Basil Montagu QC pushed reforms on the death penalty and, alongside Wilberforce, he was a founding member of the RSPCA.[42]

Spurgeon emphasised that every creature is made for God’s pleasure and glory.[43] Kindness is a fruit of the spirit (Galatians 5:22). What will be our account to God as his agents? Are we representing Christ to other creatures in our daily habits? Are our actions preventing other creatures from glorifying God? Do we consider animal cruelty when shopping for consumer products? Are we willing to challenge powerful vested interests in an industrialised system that perpetuates cruelty? Christians must resurrect their moral conscience, behave as compassionate trustees and not be captives to the idols: money, power, and greed.

Ruth Pollard is a solicitor working in succession and trust law. She studied Animal Law at UNSW, and has written on animal law issues for the Australian Law Reform Commission and the Cat Protection Society. She contributed to the first edition of the Animal Law Guide NSW.

ENDNOTES

[1] The problem encompasses clothing, footwear, beauty products, fabrics, pharmaceuticals, medicine, entertainment, fast-food etc. Cf. C. J. Sherry, Animal Rights: A Reference Handbook 2nd ed. (ABC-CLIO, 2009).

[2] Andrew Linzey (ed.), The Link Between Animal Abuse and Human Violence (Sussex Academic Press, 2009).

[3] Bidda Jones and Julian Davies, Backlash: Australia’s Conflict of Values Over Live Exports (Finlay Lloyd, 2016).

[4] See www.abc.net.au/news/2018-11-06/the-cliffsofmoher-euthanased-on-track-after-melbourne-cup/10470260. (All URLs referenced were accessed June 2020).

[5] ‘Making a Killing’, ABC-TV Four Corners, 16 February 2015, at www.abc.net.au/4corners/making-a-killing/6127124.

[6] Exhausted dogs and horses hauling carriages, sheep and cattle driven to London’s Smithfield Market for slaughter, and bull-baiting. See K. Shevelow, For the Love of Animals (Henry Holt, 2008).

[7] Siobhan O’Sullivan, Animals, Equality and Democracy (Palgrave Macmillan, 2011) discusses visibility/invisibility.

[8] Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732. See www.abc.net.au/news/2020-06-02/federal-court-live-export-class-action-ruling/12308388.

[9] The patchy regulations are highlighted in www.theguardian. com/environment/2020/jan/20/live-export-animals-at-risk-as-giant-global-industry-goes-unchecked.

[10] www.grey2kusa.org/about/worldwide.php.

[11] http://greyhoundcoalition.com/. Greyhound Coalition formed in 2015 after the Four Corners exposé.

[12] On quasi-religious factors see Neil Darragh, ‘Doing Theology in Public: An Engagement with Economic Rationalism’. International Journal of Public Theology Vol.4, 2010, pp391-409.

[13] There have been 100 greyhound track deaths in the first six months of 2020. See http://greyhoundcoalition.com/cpg-in-the-media/. www.rspca.org.au/media-centre/news/2019/ more-footage-live-export-cruelty-further-evidence-industry%E2%80%99s-inability.

[14] John Warwick Montgomery, ‘Slavery, human dignity and human rights’. Evangelical Quarterly Vol.79, 2007, pp113-131.

[15] www.abc.net.au/news/2020-02-05/greyhound-trainers-facing-cruelty-charges-high-court-partial-win/11931242.

[16] Scott Cowdell, ‘The Elephant in the Room’. St. Mark’s Review No.211, February 2010, pp83-88.

[17] Martin Bucer, Instruction in Christian Love trans. Paul Traugott Fuhrmann (Wipf & Stock, 2008 [1523]), p27. Humphry Primatt, A Dissertation on the Duty of Mercy and Sin of Cruelty to Brute Animals (Hett, 1776). Andrew Linzey, Animal Theology (University of Illinois Press, 1995). Sarah Withrow King, Animals Are Not Ours: (No, Really, They’re Not) (Lutterworth, 2016).

[18] Malcolm Caulfield, Animals in Australia: Use and Abuse (Vivid Publishing, 2018), pp9-14. Cf. Deborah Cao, Animal Law in Australia and New Zealand 2nd ed. (Thomson Reuters, 2015). Alex Bruce, Animal Law in Australia: An Integrated Approach 2nd ed. (LexisNexis, 2018).

[19] L. White Jr, ‘The Historic Roots of Our Ecologic Crisis’. Science Vol.155, 1967, pp1203-1207. Peter Singer, ‘Prologue’. In Defence of Animals (Blackwell, 1985), pp2-3. Idem, Animal Liberation Rev. ed. (Avon, 1990), p187.

[20] Philip Sampson, ‘Curious case of the kind evangelicals’. Ethics in Brief Vol.20, 2015.

[21] Ross Clifford and Philip Johnson, Taboo or To Do? (Darton, Longman and Todd, 2016), p165.

[22] Sermon 2017, ‘David’s Spoil’. Spurgeon’s Sermons Vol.34, 1888, p195, at www.ccel.org/ccel/spurgeon.

[23] David L. Clough, On Animals Vol. 1 Systematic Theology (T&T Clark, 2012), p31. Passages applying nephesh chayah to non-humans include Genesis 1:20, 21, 24; 2:19. Nephesh refers to humans, oxen, ass, and sheep (Numbers 31:28), and aquatic creatures lacking fins and scales (Leviticus 11:10).

[24] Richard Bauckham, Living With Other Creatures (Baylor University Press, 2011), pp163-184.

[25] Terence E. Fretheim, God and World in the Old Testament (Abingdon, 2005), pp249-267.

[26] Colin G. Kruse, Paul’s Letter to the Romans (Eerdmans, 2012), pp342-349. Harry Alan Hahne, The Corruption and Redemption of Creation (T & T Clark, 2006).

[27] Cf. Bauckham, Living With Other Creatures and Kris Hiuser, Animals, Theology and the Incarnation (SCM, 2017).

[28] Jeremy Cohen, ‘Be Fertile and Increase, Fill the Earth and Master It’ (Cornell University Press, 1989), pp15-19. Gordon J. Wenham, Word Biblical Commentary Genesis 1-15 (Word, 1987), pp29-33. James Barr, ‘Man and Nature—The Ecological Controversy and the Old Testament’. Bulletin of the John Rylands University Library Vol.55, 1972, pp9-32.

[29] Op. cit., p1205.

[30] Op. cit., p5.

[31] Susan Power Bratton, Environmental Values in Christian Art (State University of New York Press, 2007).

[32] Peter Harrison, ‘Having Dominion: Genesis and the Mastery of Nature’. R. J. Berry (ed.), Environmental Stewardship (T & T Clark, 2006), pp17-31. Philip C. Almond, Adam and Eve in Seventeenth Century Thought (CUP, 1999), pp33-36.

[33] Sir Matthew Hale, ‘The Great Audit’. Contemplations Moral and Divine (London, 1711), p242.

[34] Sir Matthew Hale, The Primitive Origination of Mankind (London, 1677), p370. Cf. Alan Cromartie, Sir Matthew Hale 1609-1676 (CUP, 1995).

[35] https://hymnary.org/text/we_give_thee_but_thine_own.

[36] Ruth Pollard, ‘Animals, Guardianship and the Local Courts: Towards a Practical Model for Advocacy’. Australian Law Reform Commission Reform Journal Vol.13, 2007. Ruth Pollard and Philip Johnson, ‘Animals Matter to God: Rediscovering Creation Guardianship’. Sacred Tribes Journal Vol.2, 2005, pp57-125.

[37] Australian Government Department of Agriculture, Water and Environment lists the many laws, regulations, standards, guidelines and matters such as requirements for export licences, standards for exporting livestock, the regulatory setting which prohibits the shipping of sheep during the northern hemisphere summer and the exporter supply chain assurance system: www.agriculture.gov.au/.

[38] Animal Care and Protection Act 2001 (Qld), Animal Welfare Act 1992 (ACT), Animal Welfare Act 1995 (SA), Animal Welfare Act 2002 (WA), Animal Welfare Act (NT), Prevention of Cruelty to Animals Act 1979 (NSW), Animal Welfare Act 1993 (Tas), Prevention of Cruelty to Animals Act 1986 (Vic.).

[39] The NSW Department of Industries website contains numerous acts, regulations, codes of practice, standards, policies, guidelines and committees: www.dpi.nsw.gov.au/ animals-and-livestock/animal-welfare.

[40] Elizabeth Englezos, ‘Ag-Gag Laws in Australia: Activists under fire may not be out of the woods yet’. Griffith Journal of Law and Human Dignity Vol.6, 2018, pp272-293.

[41] Craig Buettinger, ‘Antivivisection and the Charge of Zoophil-Psychosis in the early Twentieth Century’. The Historian Vol.55, 1993, pp277-288.

[42] See Philip Johnson, The Noah Challenge (Morling Press forthcoming).

[43] Sermon 1005, ‘Lessons from Nature’ Vol.17, 1871, pp456-457, and sermon 3180, ‘Christ the Creator,’ Vol.56, 1910, p31 in Spurgeon’s Sermons.