Illegally obtained footage is an important agent of change: Animal welfare lawyer

James Nason April 20, 2015

In a submission opposing Senate Chris Back’s Animal Protection Bill, Animal welfare lawyer Malcolm Caulfield has argued for the creation of an independent, statutorily-established Federal Commission for Animal Welfare to advise State animal welfare authorities.

Dr Caulfield has also defended the use of illegally obtained evidence of animal cruelty behind closed doors, arguing that media reporting of such footage has become “a most effective way” of increasing public awareness of animal cruelty, achieving legislative change for the better, and prosecuting those responsible for the cruelty.

Based in Tasmania, Dr Malcolm Caulfield was the founder and Principal Lawyer of the Animal Welfare Community Legal Centre and sits on the Voiceless Scientific Expert Advisory Council. He is now in private practice, and provides pro bono legal advice on animal welfare matters.

In his submission to the Senate Committee inquiry into Senator Back’s Animal Protection Bill, Dr Caulfield says he believes the true object of the Bill is “to protect firstly farmers and others who keep and use animals out of public view, then by a sidewind, anyone else dealing with animals or animal products”.

“The reason for making this suggestion is that over the last decade, there have been several notable instances of persons making video recordings, often with hidden cameras, which have revealed quite horrendous animal cruelty in premises such as piggeries, chicken sheds and abattoirs.

“The perpetrators of the cruelty understandably do not want this surveillance to reveal their activities.

“The most recent example concerns the use of live animals as baits in greyhound training.

“What was very notable about that footage were the absolutely convincing lies told by the perpetrators when asked whether the practice of live baiting occurred in the industry.

“And these were the same people caught by the covert cameras. It is these sorts of people this Bill seeks to protect, in my view, and it is the reporters of the conduct the Bill seeks to persecute.”

In all instances, it was likely that the placing of the cameras and the making of such videos was illegal, Dr Caulfield said, based on the trespass to put cameras in place, and the illegal making of videos without the permission of the property owner.

“The crux of the matter is that the act of reporting by the media has raised public awareness of animal cruelty behind closed doors.

“This has in turn achieved results in terms of changes to legislation and better enforcement of laws.”

He said changes to welfare practices, including the decision of Australian Pork Limited to reverse its policy on sow stalls and undertake to stop their use; the banning of sow stalls in Tasmania; and inquiries into live baiting in the greyhound industry, all undoubtedly came about because of revelations of cruelty in the media of cruelty.

These would not have happened had the observations been reported to the relevant authorities one day after they were made, Dr Caulfield said.

The story as reported by Four Corners was based on extensive footage and interviews obtained over several months.

Public awareness of animal abuse in agricultural animal enterprises had also led to the increasing involvement of the New South Wales Rural Crime Unit in policing animal welfare offences.

Dr Caulfield said an incidental issue was that those who make secretly filmed videos of animal enterprises were often “not in a position to decide within one day of making them that what they are witnessing (even in their opinion) is “malicious cruelty””.

“Frequently, these persons take videos to veterinarians or other animal welfare experts and seek their opinions. This may take some considerable time. They may also seek legal advice.”

No evidence of significant damage or biosecurity risks

In relation to the heavy penalties the Bill seeks to introduce for trespassers seeking to obtain evidence of cruelty, Dr Caulfield said that in his more than 10 years of experience in the animal welfare field in Australia, he was not aware of “one single instance of those seeking such evidence being involved in creating significant damage”.

“Arguments made by the intensive animal industry of breaches of biosecurity or damage to property or production are simply that – arguments.

“As an example, in one case where the piggery owner brought a civil action against the individuals who filmed activities secretly, the Court ruled that no damage was caused by the trespassers.”

Nor was he aware of any instances in the past decade of responsible authorities becoming aware through their own investigations of serious animal cruelty in “animal enterprises” operating behind closed doors.

“The conclusion is that the reporting of large-scale, egregious animal cruelty by the media has been a most effective way of increasing public awareness of the issue, achieving legislative change for the better, and prosecuting those who are responsible for the cruelty.”

Dr Caulfield said there is no existing legal equivalent in Australia to the first part of Senator Back’s Bill with regard to its application to the requirement to report a “visual record” of “unlawful activity for the purpose of inflicting unnecessary pain, injury or death upon domestic animals”.

He said the second part of the Bill, which seeks to impose penalties for all sorts of actions against “animal enterprises”, ranging from trespass to the equivalent of murder, was “likewise quite unnecessary”.

“There are existing laws, both criminal and civil, which are available to protect all persons, including operators of “animal enterprises”, from such activities.

“The criminal laws are state laws, and that is the proper place for them, not in a piece of federal legislation.”

Should such laws end up in federal legislation, he questioned who would enforce them. How would the Australian Federal Police, for example, deal with the “countless thousands of hours of footage of agricultural shows, pet shops and horse races they will undoubtedly be deluged with? Or might they think they have better things to do?”

He said that those “who use animals for profit, keep them away from public view, and inflict cruelty on them”, have a vested interest in whipping up baseless concerns about intruders who record these activities.

“We should remember that in Australia we have thankfully been spared the excesses which have occurred, for example, in the UK, where extremists advocating animal rights have taken actions which could be regarded as terrorism, including planting bombs in people’s cars.

“This has not occurred in Australia, nor in my view is it likely to occur.

“Given this, the existing law is completely adequate to deal with people who trespass or cause damage to property.”

Dr Caulfield said the “real issue” was the existing system of reporting animal cruelty in “animal enterprises” operating behind closed doors was inadequate.

“What can be learned from all of this is that the existing mechanisms, both in terms of the laws as drafted, and their enforcement, are inadequate to prevent cruelty to animals going on away from the public gaze,” he said.

“This of course raises the question of what can be done to improve things.

“It is not the role of the Commonwealth to legislate in this area. It is the role of the States.

“However, what the Commonwealth can do is seek to provide expertise and advice to the States in a bid to modernise and streamline existing legislation.

“I have long held the view that an independent, statutorily-established Commission for Animal Welfare is the way to go.”

Animal industries should embrace public concern for welfare

Dr Caulfield has told Beef Central that he thinks there is a way forward for the industry to deal with the issues raised by the Bill, which he said would build on suggestions by Australian Livestock Exporter’s Council CEO Alison Penfold regarding the need for that industry to have a “social licence”.

Dr Caulfield said what this means is that agricultural animal users should embrace the evident growing concern of the public for animal welfare by seeing improvements in animal welfare as a positive marketing tool, and respond to this by complete transparency, allowing random inspections of facilities by independent enforcement authorities and where possible, installation of closed circuit video monitoring.

“As Temple Grandin has said in effect, anything short of these sorts of actions will feed the public perception that animal industries have something to hide.  Positive engagement along these lines will in all likelihood make the activists go away.”

To view Dr Caulfield’s submission in full, click here



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  1. Katrina Love, April 22, 2015

    As always, a compassionate voice of logic and reason.

    Regardless of what the Bill is called – Ag Gag or Animal Protection (pffft), it is an attempt to protect those who profit from the production of animals against those who would expose any abuse of or cruelty towards those animals. Eliminate the abuse and as Dr Caulfield alluded to, we go away.

    The world will never operate to the standards and ethics that animal activists would demand, but producers really only have to operate to the standards those who consume animals would like to see. Resisting that change in operating procedures and animal welfare will only see more and more people eschew animal products along with the inherent cruelty; adopting the change may well see that exodus slowed.

    Punish the abuse, not the exposers of it.

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