Chapter 12 - Animals and Environmental Protection

Animal welfare and environmental protection are two areas of the law that can sometimes conflict. Environmental law primarily involves regulating human activities that potentially affect the natural and built environments. It frequently involves the protection of biodiversity, at the species, population or ecosystem levels, and does not consider individual animals. Moreover, environmental legislation such as the Threatened Species Conservation Act 1995 (NSW) facilitates the listing of “ key threatening processes” that predominantly relate to introduced species such as, foxes, cats, goats, rabbits, deer and feral dogs. Government policy favours the eradication of these animals in circumstances that animal advocates argue lack appropriate safeguards for the animals’ welfare. In this regard also see the case of Animal Lovers Volunteer Association v Weinberger that was discussed in Chapter 3.

In some situations, as illustrated in Booth v Bosworth, environmental and animal welfare issues are more closely aligned.

12.1 Booth v Bosworth [2001] FCA 1453

Prepared by Emily Shipp

Court

Federal Court of Australia

Facts

Booth, the applicant, applied to the Court for an injunction restraining the Bosworths, the respondents, from killing Spectacled Flying Foxes on their lychee orchard in North Queensland. The Bosworths had erected electrical fences in a grid pattern (‘the Grid’) with the purpose of electrocuting flying foxes who approached or departed from the orchard.

Booth applied for an injunction under the Environmental Protection and Biodiversity Conservation Act 1999 (‘the Act’) on the basis that the operation of the Bosworths’ Grid had, or was likely to have, a significant impact on the world heritage values of a declared World Heritage property. The Bosworths’ orchard was located in close proximity to the Wet Tropics World Heritage Area, which is a listed property under the World Heritage Convention.

Booth had visited the Bosworths’ lychee orchard on four nights during the 2000-2001 lychee season and on each night had counted the number of dead Spectacled Flying Foxes on and under the Grid. The average number was 377 per night. The Bosworths did not give evidence regarding the number and species of flying foxes killed by the Grid. The Court concluded, assisted by expert evidence, that the number of female Spectacled Flying Foxes killed by the Grid during the 2000-2001 lychee season fell within the range of 9,900 and 10,800. The Court also accepted expert evidence that the total Australian population of Spectacled Flying Foxes in 2000 did not exceed 100,000.

Issues

• Whether the operation of the Grid caused, and would it continue to
• cause, injury and death to a large number of Spectacled Flying Foxes
• Whether the Spectacled Flying Foxes were resident within the Wet Tropics World Heritage Area and whether the Spectacled Flying Foxes contributed to the biodiversity, ecological function and ongoing evolutionary processes of the Wet Tropics Area
• Whether the injury and death of the Spectacled Flying Foxes was likely to have, or would have, a significant impact on the world heritage values of the Wet Tropics Area

Decision and the Reasons for the Decision

Branson J found that the operation of the Grid had, or was likely to have, a significant impact on the world heritage values of the Wet Tropics World Heritage Area within the meaning of s 12 of the Act. His Honour accordingly held that the Bosworths had contravened s 12 of the Act through their operation of the Grid without approval. Under subsection 475(2) of the Act, the Court therefore had discretionary power to grant an injunction restraining the Bosworths from operating the Grid.

The effect of the operation of the Grid

Guided by expert evidence, Branson J found that approximately 20% of the population of adult female Spectacled Flying Foxes in Australia had been killed by the respondents’ Grid. He further found that if the Grid were allowed to continue during future lychee seasons, there would be an on-going dramatic decline in population, leading to a halving of the population of Spectacled Flying Foxes in less than five years. Branson J concluded that the probable impact of the operation of the Grid would be to render the Spectacled Flying Fox an endangered species in less than five years.

The connection to the World Heritage Area

Branson J held that, given the proximity of the Wet Tropics World Heritage Area to the farm, the Spectacled Flying Foxes killed by the Grid resided in the World Heritage Area.

His Honour noted that the dramatic impact on the population of Spectacled Flying Foxes entailed a significant impact on the world heritage values of the Wet Tropics World Heritage Area. His Honour stated at [105] that:

A dramatic decline in the population of a species, so as to render the species endangered, where that species forms a part … of the record of the Earth’s evolutionary history or of the biological diversity of a most important and significant habitat … is to be understood as having an impact that is important, notable or of consequence.

Significant impact

Branson J found that a large number of Spectacled Flying Foxes had been killed by the operation of the Bosworths’ Grid and that these flying foxes contributed to the biodiversity and evolutionary processes of the Wet Tropics World Heritage Area. Thus, Branson J was satisfied that the disappearance or significant reduction in the numbers of Spectacled Flying Foxes within the Wet Tropics World Heritage Area would have a significant impact on the World Heritage values of the area.

Significance of the case

This case demonstrates that the way in which environmental law may indirectly protect animals from cruelty, although cruelty to individual Spectacled Flying Foxes through injuring or killing them by electrocution was not taken into account. An injunction could only be obtained when the killing was on such a scale that the species was likely to become endangered. Nevertheless, individual animals benefitted from the protection of the Wet Tropics World Heritage Area as a whole.

12.2 Animal Liberation Ltd v National Parks and Wildlife Service [2003] NSWSC 457

Prepared by Jennifer Hird

Court

Supreme Court of New South Wales

Facts

The Director General of the National Parks & Wildlife Service (‘Director General’), the defendant, proposed to cull wild goats in the Woomargama National Park by conducting a shoot from a helicopter. Animal Liberation Limited (‘Animal Liberation’), the plaintiff, sought an interlocutory injunction to restrain the defendant in the Supreme Court of New South Wales. Animal Liberation argued that the aerial culling of animals constituted cruelty. This argument was based on the risk that some animals may not be killed outright, and would be left to suffer for some time prior to dying. Furthermore, it was unlikely that injured animals would be able to be located and euthanised.

In arguing their case, Animal Liberation referred to the aerial culling of wild goats on Lord Howe Island in 1999. After the cull, local residents took photographs of the animals’ remains, which were then examined by a forensic pathologist, Dr Kevin A P Lee. In his opinion, some of the animals showed clear signs of movement and others showed no visible evidence of injury. Dr Lee concluded that this strongly indicated that not all of the goats had been killed immediately in the shoot. Dr Lee also found no evidence of finishing up or coup de grace shots that would end the animals’ suffering. Finally, Animal Liberation asserted that the National Parks and Wildlife Service conducted or was associated with the Lord Howe Island cull.

On the other hand, the Director General claimed that cruelty could not be inferred from the evidence. Moreover, the Director General denied any connection with the Lord Howe Island cull. Finally, the Director General argued that the Court should not intervene to restrain a statutory agency, as part of the executive government, from carrying out its duty to manage national parks, where the actions did not involve unnecessary cruelty.

Issues

• Whether the Director General was involved in the Lord Howe Island cull
• Whether the aerial cull presented a risk of cruelty
• Whether the Court should award Animal Liberation the interlocutory injunction to restrain the aerial cull

Decision and Reasons for the Decision

Involvement with the Lord Howe Island cull

While Hamilton J found that the Lord Howe Island cull was conducted by the Lord Howe Island Board, His Honour was satisfied that the Director General had a representative on the Board and was consulted regarding the cull. Moreover, the defendant dealt with complaints and wrote letters regarding the satisfactoriness of the cull on behalf of the Minister. His Honour inferred that the defendant believed in the correctness of these views regarding the satisfactoriness of the cull, and that he held these views in his capacity as Director General as well as in any other capacity.

The risk of cruelty

Hamilton J noted that the Director General only provided a broad statement that the shoot would be conducted properly. However, the Director General gave similar assurances concerning the Lord Howe Island cull. Accordingly, Hamilton J did not regard the Director General’s assurances as negating the risk of cruelty in the proposed shoot.

The award of an interlocutory injunction

In deciding whether to grant an interlocutory injunction, the strength of Animal Liberation’s argument was weighed against other considerations including the balance of convenience: a balancing of the harm that would be suffered if the cull were carried out immediately against any damage that would be suffered by the defendant if an injunction were granted.On the balance of convenience, His Honour ordered an interlocutory injunction for a period of four to six weeks, the duration of which was to be determined at a final hearing. The prospect of cruelty to animals in an immediate cull was held to outweigh any damage that might have been suffered by the Director General.

Significance of the Case

While the decision did not stop the aerial culling, it nonetheless provided judicial recognition of animal sentience and the need to recognise such sentience in the decision to cull “feral animals”. It represents yet another example of the utilitarian approach to animal welfare that forms the foundation of animal regulation in Australia.

12.3 Rural Export and Trading (WA) PL & Samex Australian Meat Co Pty v Hahnheuser (2008) FCAFC 156

Prepared by Tiffany Lasschuit

Court

Federal Court of Australia

Facts

Hahnheuser, the respondent, a member of Animal Liberation SA Inc, entered a sheep feedlot in Portland, Victoria. He placed ham and water into two feed troughs for 1,694 sheep who were being held in preparation for live export on the MV Al Shuwaikh several days later. Hahnheuser publicised what he had done and caused a video to be recorded of the contamination. He explained the contamination was intended to preclude the animals from satisfying Halal requirements for consumption by Muslims in Middle Eastern destinations.

The case was heard on appeal from a single judge of the Federal Court of Australia. The primary judge found that the activity of Hahnheuser was “substantially related to environmental protection” within the meaning of s 45DD(3)(a) of the Trade Practices Act 1974 (Cth) (‘The Act’).The Court held that Hahnheuser’s actions substantially hindered Samex Australian Meat Co Pty (‘Samex’), the second applicant, from engaging in trade or commerce by exporting sheep in an adjacent paddock within the meaning of s 45DB(1). However, the judge held that these actions were intended to protect the sheep from suffering and this was within the meaning of the “environmental protection” exemption in s 45DD(3)(a).

Issues

• Whether the protection of sheep from suffering during shipment to the Middle East was within the meaning of “environmental protection” as used in s 45DD(3)(a) of The Act
• Whether the onus of proving that the dominant purpose for Hahnheuser’s conduct was substantially related to environmental protection lay with Hahnheuser or Samex

Decision and Reasons for the Decision

The appeal was allowed, with the Court finding that the first respondent (Ralph Hahnheuser) had engaged in conduct for the purpose of preventing and substantially hindering Samex from engaging in trade or commerce. This was a contravention of s 45DB(1) of the Act.

Hahnheuser was ordered to pay Samex’s costs and damages exceeding $72,000, with this award based on the cost of purchasing the sheep and having them processed into meat products in Australia.

Characterisation of the conduct as environmental protection

The Court rejected the argument that the case fell within the “environmental protection” exemption under s 45DD(3)(a) of The Act.

In considering the word “environment”, the Court referred to Queensland v Murphy [1990] HCA 42; (1990) 95 ALR 493, where it was held that “what constitutes the relevant environment must be ascertained by reference to the person, object or group surrounded or affected”.The Court concluded that Hahnheuser did not have the dominant purpose of protecting the sheep in the environment of the paddock. Instead, he was attempting to protect them from the live export shipping process.

The Court agreed with the judge at first instance that the expression “environmental protection” in s 45DD(3)(a) of The Act should be given a wide construction. However, the Court indicated that this must be balanced with the Parliament’s aim to sustain overseas trade, reflected in s 45DB(1). The ordinary and natural meaning of “environmental protection” as used in s 45DD(3), could not realistically include preventing the movement of animals to a new location.

The onus of proving the dominant purpose

The Court held that it was preferable to approach the construction of s 45DD(3) as requiring Hahnheuser, as respondent, to discharge the burden of proving that his actions fell within the exemption provided by s 45DD(3). However, the Court did not deem it necessary to conclusively answer this since the appeal succeeded on the basis of Hahnheuser’s failure to establish the “environmental protection” exemption under s 45DD(3).

Significance of the Case

The case established that the protection of sheep from live export does not amount to environmental protection for the purposes of s 45DD(3)(a) of The Act. Therefore, protection of this kind is not a defence to a claim of preventing or hindering trade under s 45DB(1). Notably, it was held that there was no direct or primary intention to cause economic loss. In response to the case, the Victorian Parliament amended the Crimes Act 1958 (Vic), adding s 249, which makes it an offence to recklessly to cause economic loss.