A Typology of Australian Animal Sentience Recognition Provisions — Enacted and Proposed
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/0067205X231166707 |
| Author | Jane Kotzmann |
| Date | 01 June 2023 |
| Subject Matter | Articles |
Article
Federal Law Review
2023, Vol. 51(2) 157–181
© The Author(s) 2023
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DOI: 10.1177/0067205X231166707
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A Typology of Australian Animal
Sentience Recognition Provisions
—Enacted and Proposed
Jane Kotzmann*
Abstract
Australia appears to be following the trend in mainly Western countries of recognising animal
sentience in the law. This article sets out a typology of animal sentience recognition provisions
that have been enacted, or have been proposed, in Australian jurisdictions to date. These
include provisions or proposed provisions located in statutory objects, statutory principles,
statutory definitions and a treaty. Depending on legislative context, these provisions, and
proposed provisions (if enacted), may have different legal consequences. The trend towards
legally recognising animal sentience may also signal further positive legal reforms for animals in
the future.
Accepted 9 August 2022
I Introduction
Knowing others is a difficult thing. It is relatively straightforward to know ourselves: we know
that we have thoughts, we have feelings, we can respond to and interact with a tangible world
that exists outside of us. We also have good evidence that other humans have similar sub-
jective experiences because they tell us, in a language that we understand, that this is the case.
When it comes to non-human animals, however, it is less straightforward because humans do
not share a spoken language with other animals.
1
Instead, we need to rely on other evidence,
including animal vocalisation, physical movement and hormonal changes. Fortunately,
scientists have now gathered sufficient evidence to conclude that many animals have similar
* Alfred Deakin Postdoctoral Research Fellow in Law, Deakin University Law School, Australia.
Email: j.kotzmann@deakin.edu.au. Thank you to Morgan Stonebridge for her outstanding research assistance that
underpins this article and feedback in relationprior drafts of the article. Many thanks also to anonymous reviewers, members
of the Deakin Law School, and members of the Australasian Animal Law Teachers’and Researchers’Association Reading
Group who provided feedback in relation to earlier drafts of the article.
1. Note that henceforth this article uses the word ‘animal’to refer to all animals, except for human beings. While human
beings are also animals, this use of language helps to clearly communicate the messages intending to be conveyed: see
Peter Singer, Animal Liberation (Random House, 2015) xx.
subjective experiences to humans.
2
Like humans, these animals have the capacity for negative
feelings like fear, anxiety and suffering, as well as positive emotions, like happiness and joy.
3
In other words, many animals are sentient. While the term sentience lacks ‘aclearandin-
controvertible definition at present’,
4
David J Mellor’sdefinition is particularly helpful.
Mellor asserts that ‘[s]entience is a capacity of animals to consciously perceive by the senses;
to consciously feel or experience subjectively. In animals that manifest different states of
welfare, these experiences can be negative, that is, potentially welfare compromising, or
positive, that is, potentially welfare enhancing’.
5
In this respect, animal welfare scientists
have established that all vertebrates are sentient,
6
and that cephalopods (including octopods,
squids and cuttlefish) and decapod crustaceans (including crabs, lobsters and crayfish) are
probably also sentient.
7
In tandem with these scientific developments, public concern for animals has grown in Australia
and other developed countries. Our increased understanding of animals’inner lives, as well as better
understanding of the ways in which humans impact other animals has led to public concern that legal
protections for animals are inadequate. This concern is most evident in relation to farmed animals, as
they are generally provided with much lower levels of legal protection when compared with other
animals. For example, a 2018 report commissioned by the federal Department of Agriculture and
WaterResources foundthat ‘theAustral ian public’sview on how farm animals should be treated has
advanced to the point where they expect to see more effective regulation’, and that the public
consider that animals should have rights and freedoms.
8
These findings are remarkable as they are
the product of reliable and extensive research showing that current animal welfare laws are out of
step with Australian values.
Human society has been engaged with issues concerning the treatment of animals for a long
time. These recent scientific developments and public concerns, however, are beginning to be
reflected in law and policy in many national legal systems, particularly in developed countries.
2. See, eg, Daniel M Weary et al, ‘Identifying and Preventing Pain in Animals’(2006) 100(1) Applied Animal Behaviour
Science 64, 65; Lynne U Sneddon et al, ‘Defining and Assessing Animal Pain’(2014) 97 Animal Behaviour 201; Donald
M Broom, Sentience and Animal Welfare (Cabi, 2014).
3. Broom (n 2) 20; David Degrazia, ‘The Ethics of Animal Research: What Are the Prospects for Agreement?’(1999) 8(1)
Cambridge Quarterly of Health Care Ethics 23, 26; Klaus Wilhelm, ‘Do Animals Have Feelings?’17(1) Scientific
American Mind 24, 27.
4. M B Rodriguez Ferrere, ‘The (Symbolic) Legislative Recognition of Animal Sentience’(2022) 28 Animal Law Review
119, 124.
5. David J Mellor, ‘Welfare-Aligned Sentience: Enhanced Capacities to Experience, Interact, Anticipate, Choose and
Survive’(2019) 9(7) Animals 440, 440. In terms of translating this meaning into the law, Ian Robertson and Daniel
Goldsworthy argue for defining sentience as meaning ‘that an animal experiences negative and positive (physical, mental
and emotional) states’: Ian Robertson and Daniel Goldsworthy, ‘Recognising and Defining Animal Sentience in Leg-
islation: A Framework for Importing Positive Animal Welfare Through the Five Domains Model’(2022) 48(1) Monash
University Law Review 1, 2 (forthcoming).
6. See, eg, Jaak Panksepp, ‘Affective Consciousness: Core Emotional Feelings in Animals and Humans’(2005)
14 Consciousness and Cognition 30, 43-56; Helen Proctor, ‘Animal Sentience: Where are We and Where are We
Heading?’(2012) 2(4) Animals 628, 632-634; Jacky Turner, Stop—Look—Listen: Recognising the Sentience of Farm
Animals (Report, Compassion in World Farming Trust, 2006) 11-26.
7. Jonathan Birch et al, Review of the Evidence of Sentience in Cephalopod Molluscs and Decapod Crustaceans (Report,
LSE Consulting, London, 2021) 7-8.
8. Futureye, ‘Commodity or Sentient Being? Australia’s Shifting Mindset on Farm Animal Welfare’(Research Report,
2018) 4.
158 Federal Law Review 51(2)
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