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Published by La Trobe University Press in conjunction with Black Inc. 22–24 Northumberland Street Collingwood VIC 3066, Australia [email protected] La Trobe University plays an integral role in Australia’s public intellectual life, and is recognised globally for its research excellence and commitment to ideas and debate. La Trobe University Press publishes books of high intellectual quality, aimed at general readers. Titles range across the humanities and sciences, and are written by distinguished and innovative scholars. La Trobe University Press books are produced in conjunction with Black Inc., an independent Australian publishing house. The members of the LTUP Editorial Board are Vice-Chancellor’s Fellows Emeritus Professor Robert Manne and Dr Elizabeth Finkel, and Morry Schwartz and Chris Feik of Black Inc. Copyright © Katy Barnett and Jeremy Gans 2022 Katy Barnett and Jeremy Gans assert their right to be known as the authors of this work. all rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means electronic, mechanical, photocopying, recording or otherwise without the prior consent of the publishers. 9781760641849 (paperback) 9781743822159 (ebook) A catalogue record for this book is available from the National Library of Australia

Cover design by Tristan Main Text design and typesetting by Tristan Main Cover images from FoxysGraphic / Alamy Stock Vector (pig) and Sergey Pykhonin / Alamy Stock Vector (bible) Every effort has been made to trace copyright holders and obtain their permission for the use of copyright material. The publisher apologises for any errors or omissions and would be grateful if notified of any corrections that should be incorporated in future reprints or editions of this book. Printed in Australia by McPherson’s Printing Group.

This book is dedicated to the memory of Lucy ‘Tilly’ Houghton (3 October 1992 – 29 June 2020)



Animals’ Laws


1. Owning Animals


2. Controlling Animals


3. Blaming Animals


4. Understanding Animals


5. Harming Animals


6. Protecting Animals



Authors’ Note

Law’s Animals

261 289

Acknowledgements291 Sources295 Image Credits



i n t rod u c t ion



n a Saturday morning in August 2012, three generations of the Edward family went shopping at The Basin, a suburb in the foothills of Melbourne’s Dandenong Ranges, feted for its village atmosphere. En route to the local bakery, Emily Edward noticed two Staffordshire terriers roaming around the park. Later, her mother, Jennifer, browsing in a store, saw two dogs sprint through the alley behind the shopping strip. Sensing something was amiss, she went looking for her daughter, only to find the staffies attacking a Jack Russell terrier and Emily’s four-­month-­old border collie. While Emily screamed at the dogs, Jennifer tried to loosen the jaws of the dog that had latched onto the puppy’s neck and ear. The local butcher and a passer-­­by came to the rescue and pulled the staffies away, but Jennifer was left with a puncture mark and a torn finger, prompting a trip to a medical clinic. The incident led to the life of a four-­year-­old Staffordshire terrier called Izzy being put on the line – and, as it happens, this sparked a landmark High Court judgment three years later. The question of how the law should respond to this incident and the many conflicting interests of the parties involved – the staffies, their owner and the Edward family – gave rise to a decision called Isbester v Knox City Council, probably the most important Australian decision on animal law in recent years. Tania Isbester, the staffies’ owner, sued the Knox City Council – the administrative body of a local government area in Melbourne’s eastern suburbs – when it decided that her dog Izzy should be put down. She initially sued them in Victoria’s Supreme Court, then in its Court of Appeal and finally in Australia’s High Court. Each of those courts ruled on the dispute and, importantly, they published the reasons for their rulings. It is this case that prompted us to write this book. Some years ago, we began to discuss the many issues it raises about the relationship between animals, humans and the law. As we will see, Isbester v Knox City Council ostensibly focused on Tania 1

introduction Isbester and her local council but was really all about Izzy, a four-year-old Staffordshire terrier, and her life and death. Izzy’s fate rested on a statute enacted by Victoria’s parliament that allowed what could have been a pri­ vate law dispute about compensation for Jennifer Edward, who was bitten by Izzy, to be initially dealt with as a criminal prosecution of Izzy’s owner and then as a government decision about Izzy herself. In short, the case is about a court’s decision on a common law rule concerning administrative law, which, in the end, saved Izzy’s life. Non-­lawyers may be wondering what we mean when we say that this could have been a private law dispute. Let’s consider that first, and then move on to consider the criminal law and public law aspects of the case.

Private Law: Restoring the Edward Family Private law deals with the legal rights and obligations humans have towards each other as private individuals. Two common types of private law are contracts, by which two individuals agree to reciprocal obligations, and the law of property, which allows us to enforce rights and obligations about what we own – including animals – whether or not others agree. The main sort of private law addressed in this book is tort (from the Norman French word for ‘wrong’), which deals with instances of people wronging each other, and what the wrongdoer must do to make it up to the other person. There are many ways in which people may wrong each other: by interfering with another’s body, property or business; by being careless; and by destroying someone’s reputation. There are obvious overlaps between tort and criminal law, but what makes tort different is its focus on what the offender can do to make it better for the wronged party (rather than how the state should punish the offender for their actions). In early medieval times, English law often dealt with what we would now consider criminal offences through the law of tort, resolving incidents such as the one that we have been describing through the law governing private obligations. The initial law that applied to Izzy was property law, which, as we mentioned, is a type of private law that governs what people can do with and to things owned by someone else. Many animals – especially in urban settings – are someone’s property, just like a bicycle or a bag. This may be surprising to some readers because of course Izzy was not just a bicycle or 2

introduction a bag. She had special value to her owner, as indicated by how hard Isbester fought on her behalf in court. She also had a relationship with the family who housed and provided for her. Nonetheless, she was, for the purposes of the law, to be regarded as property. The law of property means that people generally cannot do anything to a companion animal owned by someone else without that owner’s permission. But the law is full of (mostly) sensible exceptions, including provisions for people to do otherwise forbidden things – within reason – that are necessary to protect themselves, others and even property. An exception of that sort clearly allowed Jennifer, the butcher and the passer-­by to pull the two staffies away from the Jack Russell and the border collie that day. The same exception almost certainly allowed them to place the staffies in a fenced-­off area at the back of a bike shop, which they presumably did to stop them attacking more animals or people. In an extreme situation, the law could have allowed the locals to injure or even kill the staffies, but only if they properly thought that there was no other way to keep everyone safe. Isbester, the staffies’ owner, was not at The Basin’s shops that morning, and this fact had many legal potential implications for Izzy’s case. One example is that property law permits people to seize and deal with others’ property if they think that there’s no reasonable way to identify the owner. In this instance, however, the dogs’ owner could be easily identified, either from the microchip implants that are mandatory for cats and dogs in Victoria or by simply asking around the neighbourhood. Not for the last time in this case, the relevant private law was overshadowed by Victoria’s statute on dogs and cats, the Domestic Animals Act 1994, which says that anyone can seize a dog at large, so long as they promptly deliver it to the local council, which in turn must notify its owner if the owner is identifiable. Most Australian law is from statutes such as this. Each state and mainland territory has its own parliament that makes different rules. Over the top of the states (like an umbrella) we have the federal parliament, which can only legislate on certain matters listed in the Australian Constitution. In the federal system, federal laws are only valid if they are within the powers and restrictions set out in the Constitution, but if they are valid, they apply across Australia and override contrary state legislation. Underneath each of these parliamentary systems, there are many other sorts of written rules – variously called regulations or by-­laws, orders, codes or instruments – made by other public bodies and even by some private bodies. 3

introduction As we know, the dogs’ owner was identified as Tania Isbester, who lived about a kilometre from The Basin with her five children and three Staffordshire terriers. One of those staffies, a female named Bud, was still in her yard on the day of the attack. The other two dogs, a female named Izzy and a male named Jock, had seemingly escaped and made their way through the streets and a park to the local shops. The Domestic Animals Act 1994 says that an owner can get back a stray dog that has been delivered to a council within eight days of its apprehension if he or she proves ownership, pays a fee and complies with the council’s rules (by registering the dog, for instance). Soon, Izzy and Jock were back in Isbester’s yard. For the Edward family, things were not back to the way they were. The family’s border collie puppy was covered in blood after the attack and had to be taken to the vet. Jennifer Edward likewise went to a medical clinic to have her finger cleaned and antiseptic applied. Depending on billing and insurance arrangements, the family may have been out of pocket for those medical expenses. Emily Edward later said that she felt unable to walk her dog at The Basin after the attack and, four months afterwards, gave the puppy away ‘for retraining’. She added that, even a year later, her son remained scared of dogs and walking in the area. These events imply further financial costs (a replacement puppy, perhaps) and the potential for ongoing limitations on their lives (for instance, coping with or recovering from physical and emotional injuries, and restrictions on their usual activities). Tort law offers a remedy of sorts for at least some of these after-­effects in the form of financial compensation for the out-­of-­pocket expenses of the victims and their pain and suffering. There are many different torts, each specifying who can be made to pay for another’s expenses and suffering, and when and how much they have to pay. Australian tort and contract laws derive from a form of judge-­made or common law that arose in medieval England after the Norman conquest. Medieval kings asked judges from the different regions of England to compile their decisions, establish what was ‘common’ to all of them and discard anything that was idiosyncratic or regionally specific. Over time, the cases decided by judges gave rise to a giant body of judge-­made law, incrementally developed on a case-­by-­case basis. Occasionally (more and more often in modern times) parliaments decide that the common law needs reform or clarification, and they will pass legislation to adjust or replace it. Criminal prosecutions and administrative actions (which we describe later) were originally common law 4

introduction causes too; however, there are now statutes governing these parts of the law, and today criminal law is almost entirely decided by parliaments. Many modern tort claims are made under the law of negligence, which potentially allows someone who is injured to recover money from someone else who should have foreseen that their actions could cause such injuries. The law of negligence is said to have been developed by judges in the United Kingdom in 1932, when a woman claimed that she had found a snail in her bottle of ginger beer and sued the manufacturer, but the law was soon taken up by the common law world, including Australia. In Isbester v Knox City Council, the charge of negligence clearly could have been applied to Isbester, the adult in charge of Izzy and Jock. But to successfully sue her, the Edward family would have had to prove that she had acted unreasonably and that the Edward family suffered as a result. In practice, the family would have needed to prove that Isbester both could and should have stopped her dogs from getting out of her backyard that day. Proving that would depend on several factors, including how exactly the two dogs escaped, how foreseeable this and subsequent events were, and what practical steps Isbester could have taken to stop them. Proving such things in court can be difficult and potentially costly. The problem of animals attacking people is one that has existed for millennia. As we will discuss in Chapters 2 and 3, older torts that were developed in English courts centuries before the modern law of negligence might have provided an easier legal remedy for people who found themselves injured by someone else’s animal. One older law, now abolished in Australia, allowed people to sue landowners if a dangerous animal escaped from their land and caused injury or damage to someone or something. A different law called scienter (after the Latin word for ‘knowledge’), which still exists in parts of Australia, deals specifically with people who own dangerous animals that attack people. Importantly, neither of these older doctrines requires the injured person to prove that the animal owner did anything wrong. Instead, owners are strictly responsible for whatever harm their animal causes. Because strict rules often work unfairly in modern settings – they can make owning a dog a financially risky proposition, for instance – many of them have since been abolished. As we will explain in Chapter 2, there are some very old laws that deal with roaming animals such as cows, goats and horses, but they do not cover dogs and cats, so they would not have applied to Izzy and Jock. But in Victoria, the old doctrine of scienter is still part of the law today. The catch is 5

introduction that the main limitation of that old law – that it only covers ‘dangerous’ animals – is also still part of the current law (in some other places, parliaments have removed or softened that requirement). This means that, in the case of domesticated animals such as dogs, the Edward family would still have to prove that the animals in question – that is, Izzy and Jock – were known to be dangerous at the time of their attacks. So, to successfully sue Isbester, the Edward family would have had to prove that her staffies had acted in a dangerous way prior to the Saturday of the attack. This too would have been an uphill battle. Isbester would later tell Knox City Council that her dogs were typically friendly, non-­aggressive pets, noting that she willingly let them share her home with her five children. As it happens, later events cast new light on Isbester’s dogs. Nine months after the incident at The Basin, Bud and Jock attacked another dog. More significantly, nine days after that, all three dogs were involved in two attacks near Boronia Mall, a large suburban shopping centre several kilometres from Isbester’s house. The first incident occurred on a Sunday morning in early June 2013, when the three dogs attacked a cavoodle, Alfie, and his owner. A second, especially horrible attack occurred later the same morning, and was described this way by the other dog owner involved: I rolled onto my left side and saw my left hand. It was at this point that I noticed my little finger was just hanging by a bit of skin. I managed to get up on my knees and tried to put my body over Pugsley. All three dogs were still attacking Pugsley and still had hold of her. They were not deterred by my screaming and my trying to fight them off. I was still hitting the dogs with my hands and my knees but they would not let go.

Alfie’s and Pugsley’s owners were in a much better position to sue Isbester than the Edward family, not only because the new attacks were seemingly even more frightening and damaging, but also because they came after the earlier incident, so it was much easier to prove that Isbester should have recognised, and indeed acted on, the dangers her staffies posed. However, these later incidents would not have helped the Edward family’s case had they wanted to sue: both negligence and scienter are about foresight, not hindsight. All of this discussion of private law is hypothetical, as there are no reports of anyone suing Isbester. Most people will not take the step of suing 6

introduction another person for lots of reasons – some simply do not want to, others cannot afford it or fear throwing good money after bad; other people reach their own private arrangement that solves their problem cheaply without having to go to court, striking a deal with someone or relying on insurance to foot the bill. It is also possible that one of the people involved did go to court. We would not necessarily know about this, because most courtroom events are not reported by the media, the courts or law reporting organisations. What we do know is that Tania Isbester had Jock – the male staffy that was the common element in all three attacks – euthanised on the afternoon of the two incidents near Boronia Mall. As Jock’s owner, Isbester was free to have him killed painlessly for any reason – selfish or selfless. Her possibly belated recognition of Jock’s dangerous nature could not be used as evidence against her, because courts are loath to discourage people from taking measures to reduce future harm. In any case, it soon became clear that other parts of the law could (and would) be applied to this case.

Criminal Law: Punishing Isbester Most people will be familiar with the notion of criminal law. Broadly speaking, criminal law deals with official punishment. Generally, various government officials seek to punish people for the good of society by first proving people are guilty of crimes. In Australia, punishments include jail and a variety of orders or fines, but in the past, corporal punishments such as whipping and capital punishment also existed – and in some countries they still do. The kinds of crimes for which people may be punished include serious offences, such as murder or rape, usually punished by jail terms, and also much lesser wrongs, such as speeding contraventions, typically punished by fines. For offences that fall between these extremes – including many offences that relate to animals – the courts often impose orders requiring people to behave in a certain way or to be watched closely for a period, sometimes in combination with fines or prison. This book will address both historical forms of criminal law, including the prosecution and punishment of animals, and modern forms of law, which are used against humans, including the law of cruelty to animals. Evidence law runs beneath all types of law, and deals with how we prove to a court that something did or did not happen, and what the court can and cannot take into account. In non-­criminal matters, the test is ‘on 7

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