Companion Animals and Natural Disasters: Lessons for Australia from Hurricane
Katrina
Thursday 29 January 2009
(EcoCentre, Nathan Campus, Brisbane, Griffith University)
An Australian Legal Perspective*
Steven White
1. Introduction
Thanks Gail.
And, as Gail has already done, I’d like to extend thanks to Marsha and all the other
speakers here today, as well as all of you who have taken the trouble to come along and
take part.
I’d also like to acknowledge the support of the Socio-Legal Research Centre, for helping
to fund Marsha’s visit, and the Law School generally for support in putting on today’s
seminar, particularly Sue Powe.
I’d also especially like to thank Gail for suggesting such a symposium and for her
collegiality in organising the day.
My presentation will be a relatively short one.
Partly this is because Marsha has already done a fantastic job of addressing some of the
key underlying legal issues which shape our responses to the welfare needs of companion
animals in natural disasters, and which are equally applicable in an Australian context.
This presentation may only be reproduced with the consent of the author (contact:
steven.white@griffith.edu.au).
*
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In particular, Marsha has highlighted how the strict legal categorisation of companion
animals as personal property, or things, rather than legal persons, infuses natural disaster
planning and responses for companion animals.
As well, my presentation is circumscribed because there is actually a paucity of law which
addresses the management of companion animals during disasters.
I should say too that I don’t claim any expertise in disaster management regulation, with
my research focus being generic animal welfare legislation.
In the first part of my presentation I’ll provide a justification for a focus on companion
animals, apart from practical considerations such as the time necessary to address all
categories of animals.
I’ll link this justification to the significance companion animals hold for us in our daily
lives.
Recent sociological research by Professor Adrian Franklin shows that, like Americans,
those Australian households who do have companion animals regard them as members
of the family.
I’ll then look at some of the relevant law bearing on treatment of animals during
disasters.
I’ll finish with some questions suggested by my research into this area, and which are
likely to be explored in more detail in subsequent presentations by those better qualified
than me to answer them.
2. Focus on Companion Animals
I thought I should start with a justification of why the issue of companion animals and
natural disasters might be thought to be worthy of a one day seminar program.
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Given your attendance here today you obviously consider the issue to be a significant
one, but this is not necessarily a widely-shared view.
A focus on companion animals is not to deny, and is not inconsistent with, the central
importance of ensuring that the needs of humans are addressed as well as they can be in
a situation of natural disaster.
A focus on companion animals does not imply that the needs of other animals, especially
farmed animals, are not equally important.
I’m sure that some of the presentations and discussion today will incidentally touch on
disaster management issues for farmed animals, as well as wild animals.
A key reason for focussing on companion animals is their emotional significance for
humans.
I would argue they have inherent value, or interests worth protecting in their own right,
and not just an instrumental value, even if their property designation means this is not, or
cannot, be recognised in law.
Of course, other animals, including farmed animals, also have claims to intrinsic value,
with interests worthy of respect.
Companion animals, however, have a special significance for humans, many of us
regarding companion animals as members of our families.
They enjoy the strongest level of animal welfare protection of all categories of animal,
both in terms of formal legal protection and in terms of the enforcement of this
protection, including through investigation and prosecution.
My point here is that if there are valid concerns which can be raised about how well the
needs of companion animals are being addressed in disaster management, you can be
sure that these concerns will be magnified for other animals, especially farmed animals.
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3. Evidence for the Significance of Companion Animals in our Lives
In order to provide a broader context for tody’s discussions, it’s worth exploring just
how significant companion animals are in our everyday lives.
Adrian Franklin, a professor of sociology at the University of Tasmania, has conducted
wide-ranging research into the nature of the relationship between Australians and
animals.
Between 2000 and 2004 he conducted what he calls a ‘national study of human-animal
relations’.
The study involved a survey of 2000 respondents, and was aimed at uncovering attitudes
to and practices with animals in Australia.
He distils some of the results of this research in a book published in 2006, Animal Nation:
The True Story of Animals and Australia (UNSW Press).
The survey results concerning companion animals are highly interesting on a number of
levels.
The results identify the most commonly kept companion animals, the types of people
who keep companion animals, and the reasons for keeping companion animals.
As to the types of companion animal, Franklin finds that dogs, cats, birds and fish form
the key group.
Around 50% of Australian households have a dog, 33% have a cat, 15% have birds and
13% have fish.
Very small percentages of households have other animals that might be characterised as
companions, such as horses, guinea pigs, and rabbits.
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Franklin finds that the keeping of animals is similar across all income groups, except for
those on very low incomes, who are less likely to keep animals.
Households where there are married or de facto partners are more likely to keep animals,
and especially so if they have children under the age of 18.
He also identifies an interesting association between education and keeping of
companion animals.
Generally, the research shows that the higher the level of educational attainment, the
lower the proportion of households keeping animals.
While 79% of persons with limited educational attainment kept animals, only 38% of
people with PhDs did so.
Those with higher educational attainment tend to be more concerned with wildlife and
environmental issues, and relatively less concerned to keep animals as companions.
The reason for keeping companion animals is overwhelmingly for company – for both
adults and children.
Franklin found that the need for company can be motivated by:

loneliness, in the context of an increasing number of single person households;

as substitutes for children, in the context of couples putting off having children
or not having children at all; and

as surrogate siblings for children, in the context of an increasing number of
couples having only one child.
These motivations link to the last key area explored by Franklin in relation to companion
animals: their place in the family structure.
The results were absolutely one-sided: around 88% of Australians keeping companion
animals ascribe family status to their pets.
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Interestingly, Franklin argues that this is not merely a sentimental response, since the
research explored the extent to which companion animals are allowed into the home.
The results suggest that by contrast with years gone by, and consignment to the back
yard, companion animals increasingly have access to living areas, kitchens, and even
private spaces such as bedrooms.
Around half of all households with a companion animal allow their companion animal to
lie on furniture.
So, it’s clear that an overwhelming number of Australians who keep a companion animal
consider that animal to be a part of their family, and that companion animals are
increasingly intimate members of the family, symbolised by their access to household
space.
As Marsha suggests, this depth of feeling for companion animals means that where
adequate arrangements are not in place to address the needs of companion animals in
traumatic situations such as a disaster, owners are likely to be further stressed and
agitated, and prone to act in ways which may bring harm to themselves or others.
4. Legal Issues Raised by Treatment of Companion Animals in Disasters
There are obviously a range of potentially significant legal issues raised by the treatment
of companion animals in disaster situations.
For example, Allen Anderson, Linda Anderson & John Ensign, writing in their 2006
book Rescued: Saving Animals from Disaster (New World Library) identified a number of
legal questions which were researched in the US by the Animal Legal Defense Fund, in
the aftermath of Hurricane Katrina.
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These issues included:

the position of rescuers who trespass or break into and enter people’s private
property to rescue abandoned animals.

whether veterinarians can treat, including sterilize, animals without owner
consent following a disaster.

where more than one person claims ownership to an animal recovered during a
disaster, how those competing claims can be resolved.

the role of the police and the military in rescuing or shooting abandoned animals.

the position of animal welfare shelters in dealing with abandoned animals.
Drawing on wide range of volunteer attorneys, the ALDF has published a list of short
answers to these questions, with fuller legal opinions supporting the short answers
available on request (see ‘Responding to Disasters’
<http://www.aldf.org/article.php?id=264> at 28 January 2009).
I’m not aware of any legal work of this nature being undertaken in Australia.
While the issues addressed by the ALDF are important, they are concerned primarily
with liability issues for those dealing with animals during disasters, and not animal
welfare per se.
Of course, the answers to questions of potential liability will have indirect implications
for animal welfare, to the extent they affect the way particular persons deal with animals
during a disaster.
5. Animal Welfare Legislation, Companion Animals and Natural Disasters
So, how are companion animal welfare issues addressed in legislation in Australia?
As most of you would know, the States and Territories have primary legislative
responsibility for addressing animal welfare.
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Local government also plays an important role, with its ambit increasingly extending
beyond animal management issues to welfare issues as well.
The Commonwealth plays a very limited legislative role in companion animal issues,
although it is important in broader policy terms, especially through implementation of
the Australian Animal Welfare Strategy (Department of Agriculture Fisheries and Forestry,
rev ed, June 2008, available at
<http://www.daff.gov.au/__data/assets/pdf_file/0008/749204/aaws-strategyjun08.pdf> at 28 January 2009).
There are three aspects of State and Territory welfare legislation I’ll briefly mention for
today’s purposes – cruelty offences, abandonment offences and duty of care
requirements.
First, anti-cruelty offences.
All State and Territory statutes include a prohibition against cruelty to an animal, with
breach of the provision an offence punishable by a fine and/or imprisonment.
Importantly, the cruelty prohibition is qualified in most jurisdictions. Generally, an act or
omission is cruel so long as it is not unjustifiable, unnecessary or unreasonable.
For example, the WA Act defines cruelty as causing unnecessary harm (Animal Welfare
Act 2002, s 19(2)). In Queensland, cruelty includes causing pain that in the circumstances
is unjustifiable, unnecessary or unreasonable (Animal Care and Protection Act 2001, s
18(2)(a)). In South Australia ‘ill-treatment’ includes unreasonably causing an animal
unnecessary harm (Animal Welfare Act 1985, s 13(3)).
Although not judicially tested, this qualification will be very important in circumstances
where animals have been harmed by a human during a natural disaster, but for
operational or other legitimate management purposes.
Second, abandonment offences.
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In some jurisdictions abandonment of an animal is generally prohibited as part of the
cruelty prohibition, and so is subject to the same qualifications as cruelty generally.
Other jurisdictions have a separate abandonment offence.
This is usually qualified, as in Queensland, by reference to whether there is a reasonable
excuse or authorisation by law for the abandonment (Animal Care and Protection Act 2001,
s 19).
Again, although not judicially tested, it’s clear that coping with the demands of a disaster
will be relevant to the issue of a reasonable excuse.
Finally, duty of care provisions could potentially be relevant.
Two jurisdictions – Queensland and Tasmania - impose a duty of care on persons in
charge of an animal (Animal Care and Protection Act 2001 (Qld), s 17; Animal Welfare Act
1993 (Tas), s 6).
This entails a requirement to meet the basic welfare needs of an animal.
Other jurisdictions have provisions which are similar in effect, even if they are not
explicitly labelled a ‘duty of care’.
All jurisdictions adopt similar qualifications, only requiring care that is appropriate or
reasonable in the circumstances.
Again, these sorts of qualifications will be particularly relevant in a disaster situation.
The legislation in Queensland explicitly bears this out.
After setting out the content of the duty of care in s 17(3) of the Animal Care and
Protection Act 2001 (Qld), such as providing appropriate food and water, sub-section
17(4)(b) states that in deciding appropriateness regard has to be paid to the steps a
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reasonable person in the circumstances of the person would reasonably be expected to
have taken.
The draftsperson then cites, as an example of a relevant circumstance, a bushfire or
another natural disaster, or a flood or another climatic condition.
In summary, it’s clear that animal welfare legislation may have limited application in
circumstances of natural disaster.
Perhaps most importantly, given its focus on the treatment of individual animals, it does
not address broader issues of collective planning for and management of animal welfare
in disaster situations.
6. Animal Welfare and Disaster Management Legislation
It might be expected that the management of animal welfare in disasters would be
addressed in state and territory disaster management legislation.
However, when disaster management legislation does address animals at all, and in many
jurisdictions it doesn’t, it is usually in the context of the powers of authorised officers to
deal with them.
For example, under s 77 of the Queensland Disaster Management Act 2003 a disaster
coordinator can control the movement of persons, vehicle and animals in declared areas;
they can evacuate persons or animals from declared areas; and they can contain an animal
within an area, or remove and destroy an animal.
Similar powers are found in some other jurisdictions, such as s 25 of the Emergency
Management Act 2004 in South Australia.
New South Wales provides an exception.
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Section 37A of the State Emergency and Rescue Management Act 1989 (NSW) provides for the
Minister, in the circumstances of an emergency, to authorise an emergency services
officer to take measures to protect an animal from injury or death.
Even here though, the circumstances are confined to making particular areas secure,
rather than providing for ongoing management of the care of an animal.
Overall, and although the account I’ve provided is a cursory one, disaster management
legislation does not address the welfare of animals in any meaningful way.
The result of this is that we need to look beyond statutory regulation to regulation in a
broader sense, especially state and local government disaster plans, and administrative
arrangements entered into between government and non-government agencies.
I won’t talk too much about these aspects, since they’ll be addressed by subsequent
speakers.
I will say, though, it appears that few state disaster management guidelines or plans
address the welfare of animals in any detailed way.
Certainly, in the jurisdiction I’m most familiar with, Queensland, that’s the case.
7. Concluding Questions
I’ll finish with just a few questions which emerge from a consideration of the law of
animal welfare in disaster situations.
They may well be addressed in later presentations and discussion today.
First, is there a need for directive legislation specifically requiring government at all levels
to address the issue of companion animal management in disasters, not as an afterthought in disaster management planning, but as a key component, and in a way which
recognises the inherent value of companion animals and the responsibility we have for
their well-being?
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Second, in a related question, is there a need for a broadly consistent approach, so that
the welfare needs of animals are addressed in the same way, regardless of the particular
jurisdiction they happen to be located in?
Third, it seems that the law provides little if any guidance on the respective roles of the
various institutional actors preparing for and responding to the needs of companion
animals in disaster situations.
Should these roles be clarified in law, given the potential this brings for greater
consistency, transparency and accountability?
And what should their respective roles be?