Issue 9
Monday, 04 November 2019
Charles Darwin University
Dr Fish says we need to rethink how animals are protected under law
Dr Fish says we need to rethink how animals are protected under law

Legal protection for animals ‘lacking’

By Kaye Hall

Wild animals are not considered victims under sentencing law, which means that people offending against wild animals are not held to account, research at Charles Darwin University has found.

Dr Misty Fish has just received a PhD for her thesis entitled, “Rethinking the Legal Needs of Wild Animal Welfare in Australia”, which focused on impacts on wild animals due to habitat loss. 

Dr Fish argued that wild animals were not sufficiently protected due to inconsistencies in legislative provisions of State and Territory governments and the Australian Government. 

Anti-cruelty laws, including offences under State or Territory National Park laws, are the responsibility of each State or Territory to administer and enforce. Likewise, certain environmental laws or conservation laws that may apply to wild animals differ across jurisdictions. 

“Differences in the definition of cruelty and aggravated cruelty, and penalty provisions, can cause inconsistency and raise issues of enforcement when animals move over jurisdictional borders,” Dr Fish said.

“When an act of cruelty is considered an offence in one state but not in another, the law is weakened.”

Dr Fish said it was difficult to achieve strong enforcement against offenders because animals did not have legal status as victims of crime. Instead, offences against wild animals were considered an offence against the state.

“An animal’s rights are not protected,” Dr Fish said.

“When sentencing offenders, magistrates and judges cannot have regard to the physical, mental or emotional harm done to an animal, as they could if the animal was classified as a victim.”

Similarly, the Commonwealth Environment Protection and Biodiversity Act protects matters of national significance and biodiversity. However, wild animals are only protected if they are vulnerable, threatened or endangered, and prosecution requires proof of intent.

“It is the animal species being protected under the Act, not the animal’s rights,” Dr Fish said.

“It is highly unlikely that a person who commits an offence against the environment that caused harm to animals would also be charged with animal cruelty.”

According to Dr Fish, the answer lies in resolving jurisdictional inconsistencies in animal cruelty and environmental law, including clearer definition of wild animals, and applying higher penalties. This would result in better legal protections for wild animals that suffer harm through habitat loss or environmental damage. Removing the need for intent in current offence provisions would also help.