7.2.1 Enabling the Capacity to Take Legal Action

Perhaps the most significant implication of the Principle of Multispecies Legality in the context of civil law is that it would permit those animals with recognisable legal interests to take legal action. Recall that the fourth objective arising from the Principle is that of ensuring that any being who is the bearer of interests must not be prevented from taking legal action merely on the basis of their species (see Section 5.2). This entails that where an animal is recognised as having a judiciable claim, that animal has the capacity to bring that claim to a legal court. There may, of course, be other factors to be considered when determining whether the animal plaintiff can establish standing in a particular case. Recall from Chapter 2 that there are different kinds of standing; adoption of the Principle of Multispecies Legality would not, for example, ensure that a plaintiff has jurisdictional standing. Nor would it ensure that the interests a plaintiff has are the kind of interests that are relevant to, or sufficiently strong for the purposes of, the law that is being appealed to. To be clear, the principle ensures that plaintiffs are not denied standing merely on the basis of their species status, but they may be denied on other, perfectly legitimate grounds. Let’s now consider how the adoption of the principle might have impacted some of the animal plaintiff cases that were seen in earlier chapters.

Recall the case of Justice the horse, whose owner had subjected him to egregious neglect, leaving him with chronic medical conditions (Chapter 2). Justice was not recognised as having the standing to bring a tort action against his previous owner because, as the court reasoned, nonhuman animals had never been granted legal standing to do so before. This was not a ruling against the merits of Justice’s claims, per se; indeed, a previous court ruling had acknowledged the serious and legally significant harm done to Justice when it convicted his former owner of criminal negligence. Rather, it was a refusal to consider Justice’s claims at all. If the Principle of Multispecies Legality were to be adopted, the barrier in the way of Justice taking action via tort law (namely, the notion that tort law is only for humans) would be removed. Particularly given there was no explicit legislative directive against horses being the instigators of tort actions (a directive that would be open to challenge under the Principle, in any case), the court would not have been justified in excluding Justice merely on the basis that he was a member of the species Equus ferus. While Justice may or may not have been successful gaining the compensation he sought in the end, he would at least have had the opportunity to have his case heard on its merits.

As was the case for Justice, the clients of the Nonhuman Rights Project (NhPR) (as discussed in Chapter 3) were denied access to a legal remedy – in this case, the common law writ of habeas corpus. The central question before the courts in each of these cases was not whether the interests of the plaintiffs warranted protection under the writ, but rather whether they could be regarded as legal persons, entitled to seek protection under the writ at all. The courts’ understanding of what constituted legal personhood varied quite wildly across these cases, with conceptualisations of this core legal concept not only lacking consistency but also, at times, standing in contradiction to one another. In any case, the courts were united on this point: neither chimpanzees nor elephants are legal persons. Lacking legal personhood, the NhRP’s clients have been denied standing for the purpose of the writ of habeas corpus, and have therefore so far been unable to have the legality of their confinement addressed by the courts.

Under the Principle of Multispecies Legality and its commitment to rejecting legal discrimination on the basis of species membership alone, animals like Happy the elephant would have the right to seek judicial review of their confinement. Happy ultimately may not have been able to convince the courts of the merits of her case. Indeed, it may be that some animals do not have a sufficiently strong interest in not being held in a cage or housed in a zoo, or otherwise being ‘liberated’ (Cochrane Reference Cochrane2012). In this case, a court may plausibly deny that an animal’s confinement, if not otherwise harming him, should be regarded as illegal. Yet in such a case, the central question would not be that of whether the animal has the legal capacity to have the legality of their captivity assessed by the courts in the first place (as in the NhRP cases). Rather, the question would be whether they have a sufficiently strong interest in not being detained to warrant legal intervention. In the case of the NhRP’s clients, as has been attested by various chimpanzee and elephant experts, chimpanzees and elephants (respectively) have a strong interest in not being housed in cages or in zoo enclosures, particularly when they are kept there in solitary confinement, without conspecific companions. Taking this interest seriously, in line with a commitment to the Principle of Multispecies Legality, it seems likely that the NhRP’s current clients would have been granted the legal relief that they sought.

7.2.2 Harms Considered and Benefits Awarded

As we have seen, under the Principle of Multispecies Legality, the civil law system would recognise all interest-bearing entities as having the capacity to plead their cases in their own names. Yet what implications might the principle have for the outcomes of such cases? Does the fifth objective listed in Chapter 5 – that there is a duty on public authorities and members of the legal profession to treat like interests alike in their dealings with both human and nonhuman beings – suggest that harms to humans and animals will be treated the same?

Consider a human, Humbert, a French bulldog, Fred, and a horse, Hortense. Humbert, Fred, and Hortense have been invited over to Piper’s house for a picnic and are all frolicking about on her lawn when they fall into a concealed ditch – of which Piper has failed to provide any warning. With each of them breaking a leg, they decide to take civil action against Piper under the tort of negligence. Under the current system, of course, only Humbert’s injuries would be recognised by the courts, and only Humbert would be entitled to compensation. If Humbert were the legal owner of Fred and Hortense, however, their injuries might be taken into account – but only in the sense that they are viewed as ‘damaged property’. Humbert might receive compensation based on their injuries, but it is likely that such compensation would not exceed the market value of Fred and Hortense – a figure that might be substantially lower than the cost of rehabilitating them.

Let’s now consider the case through the lens of the Principle of Multispecies Legality. What kind of compensation might the three parties be entitled to? As we should now be aware, the species membership of the three plaintiffs would have no bearing on the kind of compensation they would be entitled to; knowing nothing else about the incident, we must assume that they are all equally entitled to the same amount of compensation. The court must therefore turn to other factors to distinguish between the claims of the plaintiffs. One could consider Humbert’s time away from work a result of his injury, and the kind of financial impact this will have on him and his family. One could consider Fred’s inability to go for his daily walk – an integral part of his well-being. And one could consider the likelihood that Hortense’s injury will not heal properly – a reason that horses used in the racing industry who suffer broken legs tend to be killed – and the kind of expenses that will arise in the attempt to provide her with rehabilitation. It is only after careful consideration of the nature and strength of the interests involved that the court should decide upon the level of compensation awarded. In this case, since the impact on Hortense’s life, and the cost in ensuring that she can return to somewhere near a pre-accident state of health, would seem to be the greatest, it is likely that she would be entitled to the greatest amount of compensation.

7.2.3 Changing the Orientation of ‘Necessity’ Defences in Animal Welfare Legislation

In June 2020, Emma Hurst MLC, a member of the New South Wales (NSW) Legislative Council representing the Animal Justice Party, released information about a proposed bill which would aim to enshrine the ‘Five Freedoms’ of animal welfare into legislation (Hurst Reference Hurst2020). The Five Freedoms framework encompasses freedom from hunger and thirst; freedom from discomfort; freedom from pain, injury, and illness; freedom from fear and distress; and freedom to express normal behaviours. The briefing note introducing the Species Equality Bill claims that the protections provided to animals by current welfare legislation ‘are quickly pushed aside when human and nonhuman animal interests conflict’, with the purpose of the Bill being to ‘correct this imbalance’ (Hurst Reference Hurst2020). Under the bill, the government would be required to formally affirm its commitment to upholding the Five Freedoms, and certain private citizens would be granted the power to take legal action in the event that the Freedoms are breached in a manner that is ‘unreasonable, inhumane or unjustifiable’ or ‘if carried out in respect of a human, would be unacceptable by community standards, or unlawful’.

Such a bill, while arguably covering many of the legal rights that they already have,Footnote ¹ nevertheless offers a useful, explicit statement of the minimum standards that animals should be able to expect as members of the NSW community. Indeed, to the extent that it serves as a ‘constant guardian of individual liberty’ (Brennan Reference Brennan1989, 425), this formal legal commitment to furnishing animals with the Five Freedoms could be seen as akin to a bill of rights. Furthermore, ensuring that there is a citizen-suit provision would go some way to alleviating the problem of animal welfare enforcement – particularly in a state like New South Wales, where there are currently no such provisions in animal welfare legislation.

These aspects of the bill are certainly important. However, arguably what makes the proposed legislation particularly promising is how it seeks to reorient the way that terms like ‘unreasonable, inhumane or unjustifiable’ are applied in the context of animal welfare law. As mentioned in Chapter 1, we saw the problem of exculpatory provisions permitting otherwise cruel treatment if it is deemed to be ‘necessary’ or ‘justifiable’. Of course, the problem is that the necessity of the act is judged from the human perspective, and such a perspective deems a variety of painful acts – such as the mulesing of lambs, the caging of chickens, the separation of mother cows from their calves, and the suffocation of pigs with CO₂ gas – ‘necessary’. In practice, this has meant that protections for most animals tend to be diluted to the level of a homeopathic remedy. Such exemptions are, therefore, entirely out of keeping with the Principle of Multispecies Legality’s objective of treating like interests alike.

This is why efforts to design new legal instruments to protect animals must follow the lead of the Species Equality Bill and ensure that ‘get out of jail free cards’ like anthropocentric necessity exemptions are challenged. It will of course be case that, in certain limited situations, actions that cause animals pain or suffering should be deemed ‘reasonable’ or ‘justifiable’. Indeed, as the Species Equality Bill’s Briefing Note makes clear, the euthanasia of animals who are facing severe and irremediable pain would be permissible – as it should, arguably, be in relation to humans suffering in an equivalent way. The point is that these exceptions need to be understood as referring to instances in which the actions are done for the benefit of the animal herself. To reiterate, whether an act is deemed to be necessary or reasonable should not be determined by the interests of the human who commits the otherwise harmful action. To ensure that the focus is truly on the welfare of the animal, the onus should be on the defendant to make the case that the action was necessary for the animal’s benefit, not on the prosecution to demonstrate that it was not.

Having now explored some of the implications of implementing the Principle of Multispecies Legality, we now turn to consider how legal institutions can be reformed in order to ensure the principle’s successful adoption and implementation.

7.3.1 Anticipatory Accommodation

In critiquing the attitude of liberal states towards women, feminist legal scholar Catharine MacKinnon has noted that ‘the state is male in the feminist sense: the law sees and treats women the way men see and treat women’ (MacKinnon Reference MacKinnon1989, 161–62). The masculine perspective of the law has meant that women have either been ignored by the legal system entirely or, where noticed, treated as honorary men. Consider the US Constitution, the foundational legal document of the United States, which rests on a vision of a society that is free and equal, and absent intrusive government intervention. As MacKinnon points out, this vision assumes relations between free and equal men; there is no recognition that the relations between men and women are, and have been throughout history, decidedly unequal (MacKinnon Reference MacKinnon1989, 163; see also: Pateman Reference Pateman2018). Along a similar vein, Ngaire Naffine shows how the legal system, across its various conceptions of the legal person, has tended to view the archetypal legal subject as male. Women are not sufficiently rational to be autonomous, self-legislating persons, under one conception of personhood; by another, the divine spark that gives women inherent value is accorded less relative value when she is pregnant with another being with sacred value (Naffine Reference Naffine, Jones, Grear, Fenton and Stevenson2011). Yet it is not that the legal system only recognises women when they are man-like. For the woman who seeks to challenge instances of sex discrimination, she arguably must either ‘be like a man’ or ‘be like a lady’; this means either meeting ‘the male standard for males or the male standard for females’ (MacKinnon Reference MacKinnon1987, 71). That women, at certain times, may have to present as (vulnerable, feminine) ‘ladies’ for the purposes of legal recognition arguably reflects the idea that women can only evince difference from the male archetype when they do not represent a threat to male dominance or male social and legal power structures.

The challenge for animals in gaining greater inclusion in the legal system parallels the challenge that women have faced in their own pursuit of legal recognition. There is the difficulty of ensuring that the legal system, and the development of legislation, does not perpetuate the discriminatory treatment of animals that has characterised human–animal relations throughout history and across societies. There is also the need to ensure that the archetypal legal subject is not regarded as a (male) human, such that all beings seeking legal recognition must demonstrate their likeness to humans in order to have their interests recognised.

To some extent at least, passing legislation that focuses on promoting animals’ interests (without including provisions that tip the balance of the scales overwhelming in favour of humans) can address the former challenge. Consider some of the following proposals, recently made by legal scholars and philosophers. Companion animals could be covered by the ‘best interests’ principle that guides decisions in custody cases involving human children, so that following a divorce, they are placed with the party that can best promote their welfare, regardless of which party bears legal ownership (Bogdanoski Reference Bogdanoski2010; Kymlicka Reference Kymlicka2017). Free-living (i.e. non-domesticated) animals could be granted property rights (Bradshaw Reference Bradshaw2018; Reference Bradshaw2020; Hadley Reference Hadley2015)Footnote ² or sovereignty rights (Donaldson and Kymlicka Reference Donaldson and Kymlicka2011) over their habitats. Existing animal welfare legislation could be supplemented with ‘citizen suit’ provisions that would allow humans to bring legal action in the case of breaches of the legislation (Frasch Reference Frasch2016). Or, better, since even where citizen suit provisions already exist it is often prohibitively difficult for an individual or organisation to establish that they have standing to bring the case, we might amend such legislation to include ‘animal suit’ provisions that allow the animals to bring suits in their own names (Burke Reference Burke2004). Along a similar vein, we could introduce a tort of ‘intentional interference with the primary interests of an animal’, which would enable animals to bring suits against humans who have interfered with their primary interests, granted the animal interest ‘substantially outweighs the weight and nature’ of the defendant’s interests (Favre Reference Favre2005, 353).

Such animal-interests-based proposals are not limited to scholarly articles; we can also see developments in the legislative realm that are focused on ensuring that animals’ interests are better protected. As noted earlier, there is the proposed Species Equality Bill in New South Wales that seeks to entrench the ‘Five Freedoms’ of animal welfare into legislation and provide citizens with the power to take action against breaches of the law. There is also a movement in the United States to introduce ‘courtroom animal advocates’ who would serve animal victims of crime by speaking on their behalf in the courtroom. Connecticut was the first state to pass a bill establishing courtroom animal advocacy into law in 2016,Footnote ³ followed by Maine;Footnote ⁴ a similar bill recently passed through the New Jersey Senate and is set to appear before the State Assembly (Animal Legal Defense Fund 2021b).

The adoption of any of these proposals would certainly improve the legal situation for animals. If enacted, these and other proposed laws could contribute to the development of a legal landscape in which a wide range of animals’ interests are taken seriously, beyond merely that of not being the subject of cruel or neglectful treatment. As a flow-on effect, it may also mean that the range of harmful acts that are currently granted exemptions under animal welfare laws will narrow in scope. If the expansion of animals’ rights were to imbue animals with greater social status, such that they may even come to be recognised as ‘workers’ or ‘members of the family’ in certain legal contexts (see Kymlicka Reference Kymlicka2017), it may become increasingly less socially acceptable for economically motivated, abusive treatment of these animals to be regarded as ‘reasonable’ or ‘justifiable’.

Yet aside from how these proposed ‘animal laws’ might benefit animals, we should also be wary of how they might serve to situate animals as beings with fundamentally different interests to those of humans, rather than as beings with a range of interests that overlap with our own. In other words, we do not want these laws to ‘Other’ animals and their interests. Take David Favre’s (Reference Favre2005) proposed tort of ‘intentional interference with the primary interests of an animal’, which, he notes, could be used to remove animals from neglectful or abusive owners. There already exist common law torts for, for example, assault, battery, and false imprisonment; but for the fact that they have not previously been applied to animals, these torts could be employed to protect animals’ interests just as they currently protect human interests. The concern with creating a parallel stream of laws to protect animals, even – or especially – when their interests could be protected under existing legislation or common law provisions is that this move may express the notion that animals are not regarded, alongside humans, as the primary subjects of the legal system’s concern.

To be fully inclusive of animals’ needs in a way that does not unnecessarily emphasise their differences relative to humans – yet that respects those differences where they do occur – we need to go beyond the introduction of laws that are focused specifically on nonhuman animals, to laws that take the interests of all animals (and, indeed, all interested beings and entities) into account. This goal can be promoted through ‘anticipatory accommodation’ (Bryant Reference Bryant2007). As Taimie Bryant argues, a meaningful commitment to equality requires going beyond finding similarities between minority groups and the dominant group, and according the former equal treatment on the basis of those similarities. Instead, she argues for an ‘anti-discrimination approach’ that accords value to the differences that exist across different groups. In its strongest form, this approach would require that we anticipate the various needs of different groups in society and develop law that accommodates these needs. Crucially, the development and implementation of these laws are intended to precede any need for different groups to demand them. While anticipatory accommodation provides for diversity, it does so in a way that does not Other disadvantaged groups. Instead, precisely because difference is expected, ‘difference is “naturalized”’ (Bryant Reference Bryant2007, 238). A similar proposal of ‘inclusive design’ can be seen in the work of disability rights scholar Laura Davy. As she notes,

A similar design process should be implemented in the project of including animals in the legal system – one that recognises their interests from the outset whilst not Othering them for not being human. One such process has recently been implemented in the United Kingdom, with the passage of the Animal Welfare (Sentience) Act 2022. This piece of legislation places a duty on the government to establish an Animal Sentience Committee, the purpose of which includes ‘furnish[ing] accountability to Parliament for consideration of the welfare of sentient animals in ministerial decision making’ and ‘provid[ing] guidance to policymakers on potential unforeseen impacts or mitigation strategies’ (Crown n.d.) The Committee is also empowered to publish reports that provide recommendations to the government in relation to its policy, with the government liable to respond, in Parliament, to any reports published by the committee.Footnote ⁵ The legislation therefore gives animals representation in the development and implementation of any policy that might impact them. As such, it has the capacity to anticipate the needs of animals and protect their interests before those interests are threatened.

A limitation of the Animal Sentience Committee, however, is that it cannot ensure that all legislation and policy is developed with the interests of all those who stand to be impacted in mind. It is limited to reviewing policy that impacts animals after this policy has already been developed – or, indeed, after it has already been implemented. To ensure that laws and policies are truly designed inclusively and in a forward-looking manner, there is more we can do. One option would be to take a ‘opt-out’ approach to the development of legislation, such that all interest-bearing beings would be included within its scope, unless specified otherwise. That is, any proposal to treat animals differently from humans by excluding them from legal protections – while undoubtedly reasonable in many legal contexts – would require explicit justification. The benefit of this approach would be that rather than having to prove why animals should be included within the scope of laws, the onus would now be on those who think they should not to provide justification for the exclusion (crucially, in a way that does not turn on their species membership). This would ensure that legislators must consider the ways their proposals could affect animals right from the outset, thereby including their interests within the legislative design process.

Anticipatory accommodation via this opt-out approach can be realised in practice through assigning representatives of animals to oversee and engage with the drafting of legislation, in order to ensure that animals’ interests are taken into account. This could work in conjunction with caucuses dedicated to promoting the interests of animals within the legislative process. Such a caucus currently exists in the US state of Connecticut, for example, where the Animal Advocacy Caucus brings together legislators as well as leaders in the animal advocacy movement to ‘[review] the major bills addressing animals [sic] rights’ (Michel Reference Michel2021).

Anticipatory accommodation accords with the obligations set out under the Principle of Multispecies Legality, including the obligation to ensure that like interests are treated alike: at each stage in the legislative design process, the opt-out system works under the assumption that humans and animals have interests that are similar enough to be protected by the same legislation. Furthermore, by rejecting the paradigm of the archetypal human legal subject, this approach supports the obligation to ensure that legal and political actors are proactive in anticipating the interests of animals in all their diversity and how these interests can be protected by the legal system.

7.3.2 Independent Offices of Animal Welfare

As touched on in Chapter 1, the standards, guidelines, and codes of practice surrounding the treatment of animals in the agricultural industry in Australia are currently developed by departments of agriculture and primary industries, in conjunction with representatives from these industries. Perhaps not surprisingly then, one of the core principles underpinning the development of animal welfare standards in Australia is that they are ‘practical for industry and government’ (Animal Welfare Standards 2023). This means that the protections afforded animals who live their lives within the animal production industry are designed by those who have interests in the economic health of this industry, and whose goal is to ensure that welfare standards are (economically) practical for them to implement. Of course, many workers within the agricultural industry may view the animals they work with as more than merely products and even experience some kind of emotional attachment to them. However, ultimately the goal of the industry as a whole – as in most profit-seeking ventures – is to ensure that the product is delivered as cheaply and efficiently as possible. It is not clear that such an objective can ever be compatible with truly good animal welfare, much less with ensuring that animals lead full, meaningful, and contented lives. As such, it seems unlikely that codes of practice developed in whole or in part by the industries meant to be regulated by them will meet the obligations set out under the Principle of Multispecies Legality, such as recognising the importance of animals’ unique interests and treating like interests alike.

The standards and codes of practice that apply to domesticated animals being used by humans in industry should be developed, not by a division of a department of agriculture or primary industries, but by a governmental office of animal welfare. Such an office would operate independently of departments of agriculture and primary industries, and have as two of its primary functions the development of new (and the review of existing) animal welfare standards and policies and the power to undertake inquiries into the government’s actions in relation to animal welfare. A similar proposal for such an office was outlined in the Australian Greens’ 2015 Voice for Animals (Independent Office of Animal Welfare) Bill and in the Australian Labor Party’s 2019 plan to establish an independent Inspector-General of Animal Welfare and Live Animal Exports (McGreevy and Phillips Reference McGreevy and Phillips2019). These proposals by two of Australia’s three major political parties, while ultimately unsuccessful, suggest that an independent office of animal welfare is not outside the realm of political possibility in Australia.

To ensure that all interests are represented, such an office might seek input from industry representatives, who could provide information about how feasible different approaches might be, or the best ways to implement proposed standards. Certainly, there is value in having input from those who work with animals in these industries, and who have experience with daily conditions. However, industry representatives would not be directly involved in the development of the standards or policies – they would only have the power to make comments on proposals that could then be implemented (or not) by the welfare standards body. Members of industrial animal-use industries may feel that, based on their experience working with animals, they know what is best for them. However, it should be recognised that the knowledge they have has been garnered in the context of, and under the constraints imposed by, an industry that does not have the flourishing of animals as its primary concern. Limiting the extent to which industry members are directly involved in the writing of their own regulatory instruments is, therefore, vital to ensure that the primary goal of animal welfare is not being downplayed on the basis of economic efficiencies. Such a move is also, more broadly, in line with a fundamental principle recognised, for example, in the work of early liberal theorist John Locke when he noted in his Second Treatise of Government that ‘it is unreasonable for men to be judges in their own cases, that self-love will make men partial to themselves and their friends’ (Locke Reference Locke and Shapiro2008, 105).

Finally, the animal welfare standards, guidelines, and codes of practice that are developed by an independent office of animal welfare should be legally enforceable. In Australia, while standards are designed to be adopted by state governments and given legislative force, these regulatory instruments are generally not legally enforceable. This means that if agricultural businesses or workers do not follow the recommendations set out in these documents, they are not necessarily guilty of committing any offence under animal welfare legislation (however, if they do follow the standards or codes, this may serve as a defence against actions that might otherwise be regarded under animal welfare laws as cruelty). The standards, guidelines, and codes that are developed with animal interests as their primary concern must therefore be given legal backing such that serious deviation from these pieces of delegated legislation renders individuals or corporations liable to prosecution.

7.3.3 Dedicated Animal Crime Units and Public Prosecutors

In addition to their role in developing animal welfare standards, in Australia it is the task of departments of agriculture and primary industries (alongside certain animal charities) to investigate and prosecute offences under animal welfare legislation. The situation is similar in the United States, where powers of enforcement for equivalent laws are held at the federal level by the US Department of Agriculture. And, as in the case of the development of animal welfare regulations by these departments, this assignment of enforcement powers should be of concern. Given the primary purpose of departments of agriculture and primary industries is ensuring the viability and global competitiveness of agricultural industries – and in representing the interests of those humans who work in these industries – there will necessarily be a conflict of interests when it comes to strictly enforcing animal welfare laws where doing so may result in widespread economic losses.

If these departments should not have duties of ensuring compliance and powers of enforcement, then why not leave these duties and powers solely within the remit of organisations like the RSPCA and the Animal Welfare League in Australia? As discussed in Chapter 2, we should be deeply concerned by the use of a charity to ensure compliance with legislation, both from practical and normative perspectives. As charities are reliant primarily on private sources of income to operate, organisations like the RSPCA are simply not equipped to ensure widespread compliance with animal welfare laws, nor to ensure reliable prosecution of offences when they occur. Nor, we might think, should they be. Given that, in democratic societies, the duty of ensuring members of society have access to basic goods (including not being subject to severe injury or death at the hand of others) is recognised as falling upon the government in the case of human individuals, why should it be any different in the case of animals? If it is agreed that animals should not be discriminated against on the basis of their species – that their interests should be taken seriously in legal and political spheres – then justice requires that the duty of providing them with basic goods should fall upon the state, at the very least in relation to those basic goods that human interest-bearers are entitled to.

As such, the duties of ensuring that animal welfare laws (and other laws that may disproportionately affect animals) are complied with, and of prosecuting animal welfare offences, should rest solely with those bodies that are already in place to serve such roles in relations to humans: the police force and offices of public prosecution. In terms of the former, animal crime units could be established – akin to other tactical units, such as cybercrime or narcotics units – to ensure that there are officers who are specially trained in, and dedicated to, handling animal-related matters. In relation to the latter, existing offices of public prosecutions could be tasked with handling animal law matters, with the introduction of dedicated teams specialising in the prosecution of animal welfare crimes. Such a proposal comes not without precedent: the role of ‘lawyer for animal protection in criminal matters’ existed in the Swiss Canton of Zurich from 2007 to 2010 (Goetschel Reference Goetscheln.d.), and in Oregon in 2023, legislation was passed that allocates state funding for the maintenance of an Animal Cruelty Deputy District Attorney – a position that had been established and funded by the Animal Legal Defense Fund since 2013 (Animal Legal Defense Fund 2023).

By putting the tasks of compliance and enforcement in the hands of existing branches of the criminal justice system, we can ensure not only that responses to breaches of animal welfare laws are properly resourced (or, at least, resourced no more poorly than are responses to breaches of other areas of law). We can also ensure that the policies and practices surrounding these tasks are transparent and publicly accountable in a way that they cannot be when they are implemented by private organisations.

7.3.4 Equal Access to Legal Services

As a final suggestion for how legal institutions can be improved to support the proper implementation of the Principle of Multispecies Legality, we need to consider equal access to these institutions not only for animals but also for their human guardians, allies, and would-be protectors. Ensuring that offices of public prosecution respond to alleged breaches of animal law provides institutional support for animal interests in the sphere of criminal law. However, what of the civil law? Since humans will, after all, be the ones initiating lawsuits on behalf of animals who seek damages for injuries suffered, we need to ensure that these human assistants will not be prevented from seeking justice on behalf of animals due to their own lack of financial resources. This is where community legal centres and similar organisations can provide relief. Organisations in Australia like the Animal Defenders Office, the Animal Law Clinic, the Animal Law Institute, and Lawyers for Animals provide pro bono legal advice in matters relating to animals and their advocates, and may also provide legal representation where cases are taken to court. Such organisations thus play an important role in ensuring that legal justice is more accessible to all.

However, in order for these organisations to operate effectively, they need to be publicly funded in a consistent manner that allows for the implementation of long-term projects and the development of expertise. These organisations should not be regarded as mere charities, to be funded only by those individuals in the community who personally care about animals. For, in a just society in which all affected interests are taken into consideration, ensuring animals have access to basic legal services should not be up to the generosity or preference of private individuals. Instead, the provision of the basic good of legal inclusion should be viewed as a legitimate end of the state. As such, organisations that provide free legal services to animals and any humans who seek to assist them (but who might otherwise be unable to because of financial hardship) should be supported in their work with state funding.