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8 July 2007

Animal rights

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Should animals have rights? Under the law animals are treated as things just as human slaves were treated as things. Is there an argument that the intelligence of some animals means that they deserve more rights than others? Professor Steven Wise teaches animal rights law at Harvard and is speaking here at a conference hosted in May by the University of NSW and Voiceless.

Transcript


Transcript

This transcript was typed from a recording of the program. The ABC cannot guarantee its complete accuracy because of the possibility of mishearing and occasional difficulty in identifying speakers.

THEME

Kirsten Garrett: This is Background Briefing on ABC Radio National; I'm Kirsten Garrett.

In May this year, the University of New South Wales and the animal fund called Voiceless hosted a talk by Professor Steven Wise, who teaches animal rights law at Harvard and other universities in America.

Professor Wise, and others, such as the philosopher Peter Singer, and people campaigning for animal welfare issues broadly, argue that animals should have rights.

Professor Steven Wise.

APPLAUSE

Steven Wise: The work I do and the work of animal welfare, animal protection lawyers around the world, is to try to protect the interests of non-human animals in a system in which they are invisible as a matter of civil law and in which they are seen as legal things, as slaves. They're either owned or can be potentially owned by us persons.

Kirsten Garrett: Animals are presently treated as things, just as human slaves used to be treated as things. One of the most important human rights cases in history was a 1772 trial in London, when a black slave called James Somerset fought to be called a human being. Animals, some of them at least, will have to fight for their basic rights.

Professor Steven Wise.

Steven Wise: You also have to know a lot about, or at least a little about a lot of areas because the use and abuse of non-human animals goes to every discipline of law. The Landlord and Tenant Law, Constitutional Law, Criminal Law, Property Law, every kind of law, in one way or another, can have an animal protection problem in there somewhere. And each case has its own kind of odd and indirect ways of trying to represent the interests of non-human animals. I once tried to stop a deer hunt at a place that had not been hunted for almost 100 years, and it's very difficult to stop a deer hunt. Just like if I'm trying to stop the cruelties that might be inherent in certain forms of factory farming, it's very difficult to do. Because the cruelties inherent in factory farming are legal. And deer hunts are legal. So even though they may be abhorrent, they're still legal, and the law permits all sorts of things to be legal, yet cruel.

So one time I was trying to stop this deer hunt and the brilliant idea I came up with, it turns out actually did not stop the deer hunt, because I lost the case, but it was an interesting case and it shows kind of the gyrations that we have to engage in sometimes. I found that at the site of those hunts were bald eagles, bald eagles are protected - were a protected species under our Federal Endangered Species Act. And so we made the following arguments: the hunters are going to shoot at the deer with lead bullets. Some of the deer are going to be hit, but not found, and are going to go under brush. Bald eagles are circling under the sky, they're going to see them because they have terrific eyesight. They will then go down and try to eat the deer flesh, they will inevitably ingest lead which will cause them to be harmed. Therefore hunting deer is a taking of the American bald eagle. But the problem is that there were indeed bald eagles dying of lead poisoning, we just couldn't prove that they'd gotten lead poisoning from that place. They may have gotten lead poisoning from ten miles down the road, or three States down, and they just happened to drop dead at the place where the hunt was happening. And the judge said, 'That might happen, you have not excluded it and you lose.'

I'm afraid we tormented the New England Aquarium for a few years because at the beginning of the Gulf War it turned out that they were trying to transport dolphins that they use in their dolphin shows to the US Navy, to do various things about which we did not agree and the US Navy told us that we were wrong, but they wouldn't tell us what they were using the dolphins for. And we thought they were using them in ways that might endanger the dolphins. So we sued the US Navy and we sued the New England Aquarium. And the name of the dolphin was Rainbow, so the case was Rainbow versus the US Navy et al. And represented by yours truly, I was the lawyer for Rainbow, and the lawyers for the New England Aquarium were apoplectic that I was representing their dolphin, and I just decided I would, and that's what they'd tell the judge: 'He just decides he's representing our dolphin'. And I said, 'That's right'. And indeed we went to try to seek a preliminary injunction, and as soon as we came in, the lawyer for the United States Navy walks over to me and he puts his arm around me and he says, 'Are you in the Reserves?' and I said, 'I'm not'. He said, 'Well, you know if you were, you would be in the Middle East tomorrow'. I said, 'I understand'. And so we ended up settling the case and they did not transfer the dolphins to the US Navy, and I ended up signing the settlement agreement as a lawyer for the plaintiff, Rainbow.

So sometimes I win, a lot of times I lose, and in fact I frequently tell my students that when you get into the legal world and you start winning cases, you're really not trying hard enough, that you should be losing a substantial number of your cases, because the law is so stacked against the interests of non-human animals that if you're winning, you're not protecting them very well.

So the problems inherent in trying to vindicate the interests of a thing in our legal systems, can, and certainly did for me, after a number of years become overwhelmingly frustrating. And so I decided that what had to be done is that this wall that exists, a legal wall, with all humans on this side of the wall and all non-humans on that side of the wall, had to be breached.

Kirsten Garrett: Professor Steven Wise is a founding member of the Animal Legal Defense Fund in America, and he teaches animal law at Harvard.

Steven Wise: And the work I've done has focused on the Common Law, and the Common Law is really that law that accrues as judges decide cases, one by one, by ten, by 100, by 100,000, by a million, year after year after year. And the reason I chose the Common Law is that 1) it can be exceedingly flexible. So what kind of procedural vehicles might be used to bring say the case of a chimpanzee who ought to be a person, a chimpanzee who thinks he ought to be a person, or whose next friend, or guardian ad litem thinks that chimpanzee ought to be a person with rights before a court. What sort of procedural vehicles?

So one idea that I came up with was Well, if you saw a chimpanzee in a biomedical research institution, maybe you should bring a Common Law writ of habeas corpus, produce the body, just as if a human was being imprisoned wrongly. And indeed, that ended up having me write my third book which is Though the Heavens may fall, and that was a book in which I tried to show how James Somerset, who was a black slave who had been captured in Africa at the age of 8 and brought to Virginia and Massachusetts and then on to London, how James Somerset was able to move from the status of being a thing, a slave, under English law, to becoming free, a person. And what happened was that James Somerset after being a slave of Charles Stuart, for almost 30 years, fled Charles Stuart's home in London in 1771, and he was gone for 73 days and something happened between the two of those men that really made Charles Stuart angry. And Charles Stuart sent slave-catchers to find James Somerset and not bring him back to Charles Stuart but to put him on a ship, sail him to Jamaica where he would have to work in the sugar fields where he would die after a few years and it would be a terrible life and even a worse death.

So those slave-catchers did find him, and they put him in chains on the 'Ann Mary' and they were about to sail away with him to Jamaica, and people (and we don't know exactly who; we think that they might have been James Somerset's godparents) then sought a writ of habeas corpus before the Lord Chief Justice of the Quarter King's Bench, Lord Mansfield, who may have been the greatest judge ever to speak English, and he granted that writ of habeas corpus, and he didn't have to. Why, oh why, did Lord Mansfield for example, grant the writ of habeas corpus? Why did he order James Somerset's body brought before him and allow the fight as to whether or not James Somerset ought to be a thing. Because once you start to think about it, there is an inherent paradox of a thing claiming that he shouldn't be one. And Lord Mansfield could have said, 'I'm sorry, things don't file writs of habeas corpus, you lose', and indeed in the Southern States in the US, up until the time that slavery was ended, many, many black slaves sought to use the writ of habeas corpus and were denied on the grounds that things can't file writs of habeas corpus , and after a series of hearings which lasted over six months, Lord Mansfield at one point was frustrated because people would not settle. And he finally ordered James Somerset free.

And the reason I wrote this book was to show that a thing, and here it was a black slave, could use our judicial process there, a writ of habeas corpus, a Common Law writ of habeas corpus to tell the judge that while he was a thing, he shouldn't be one, and that a judge, a powerful, smart, intelligent judge, influential judge, could buy that argument and free him, and indeed I've gone on to use that as a preface for a Law Review article which just came out about eight weeks ago, in which I argue that a chimpanzee should be able to use a Common Law writ of habeas corpus for the exact same reason on the exact same grounds.

But just filing a writ of habeas corpus isn't going to help you. What are the arguments that would convince me that you ought to be free? And that was the focus on my first two books, Rattling the Cage and Drawing the Line. They try to develop those substantive arguments that might convince a fair-minded judge whose value systems leaned in that direction to declare a chimpanzee or another non-human animal to be a person who would have at least two rights: the right to bodily integrity and bodily liberty. So you should not be able to have your body infringed upon, to have an unconsent to touching I guess, a battery, you could not commit a battery upon a chimpanzee say, and you couldn't lock them up in steel cages in biomedical research labs.

And those arguments, I argue, are derived from the same way and in the same place that the arguments, or at least some arguments for fundamental human rights are derived. And I spent months and/or years, trying to figure out why exactly are we entitled to those sorts of rights? And I would stumble upon things like right after World War II the Universal Declaration of Human Rights was when it was being generated, the people who were doing that, sent out questionnaires and letters to people all over the world saying 'Are there universal human rights? And if so, why?' and in their final report they essentially said that everybody agrees that there are universal human rights but nobody agrees why. And the arguments for non-human animals I don't think should be held to any higher standard. And so the fact that everybody does not agree why a chimpanzee or an elephant should have fundamental rights, should not stop that chimpanzee or elephant from having those rights, because we don't agree why humans have these kinds of fundamental rights either.

So I looked at hundreds and hundreds and hundreds of years of judicial decisions, especially Common Law ones, but all the way back to Roman times, trying to understand what is it that judges believe in, what causes them to give us fundamental rights? And two things kept popping up: liberty and equality, the ideas of liberty and equality. Liberty is a non-comparative right. It's the kind of right that you're entitled to because of how you're put together, who you are. And if no-one else in the universe has that right, you're still entitled to it. Equality is a comparative right and you're entitled to a right as a matter of equality because someone else has that right and you are like that other person in a relevant way. So you should be entitled to that right as well.

And so I decided that the grounds for the rights, for these basic fundamental rights of a chimpanzee would be liberty and equality, and what is it about liberty that is so compelling? Well one thing is the idea that human beings have dignity, and really after you go through several layers, I concluded that at the bottom of that is the idea of autonomy, that human beings are entitled to fundamental rights because we are autonomous, we are not slaves, we are not automatons, we are conscious, autonomous beings, and judges want to protect that autonomy. It's a very important thing, and I showed in Rattling the Cage. Many cases where judges had to deal with human beings who are not autonomous: babies who are born without brains, adults who are elderly and have end-stage Alzheimer's Disease, people who have an IQ of 3. These folks generally are not autonomous at all, and how do judges deal with them? Why did they get certain kinds of rights, and frequently judges would resort to legal fictions. A legal fiction being roughly a lie the judges tell you that they demand that you believe.

So they would then say, We are going to assume, or We are going to deem this non-autonomous being, autonomous, and give them certain sorts of rights. Even a child who doesn't have a brain is going to have a guardian ad litem who's going to act in the interest of that child and do what that child would want if that child was only autonomous. And at the bottom of that was the idea of what I call practical autonomy; the idea that a being should have these kinds of fundamental rights, the rights of a fundamental to them, and it seems to me we have, bodily integrity and bodily liberty are fundamental to us, and they're probably fundamental to all animals that are reasonably close to us, evolutionarily. Chimpanzees and me, and a chimpanzee last shared a common ancestor perhaps 6-million years ago, which is pretty recently in evolutionary times. A honeybee last shared a common ancestor with me about 600-million years ago which is a fair amount of time even in evolutionary terms.

So I can be reasonably sure, or pretty sure, that a chimpanzee who's only 6-million years separated from me, also values bodily integrity and bodily liberty. A honey bee who is 600-million years from me, I'm not exactly sure what they value. It's a lot harder to know, and the further they are from us, in evolutionary terms, the harder it is for us to understand what goes on in their minds or whether they even have minds. And indeed, I spoke to a man who had studied hone ybees for 50 years, his entire professional life, had revolved around the study of honey bees. And these people are crazy, they take a hive of 10,000 bees and they number of them and they study them individually which is beyond my comprehension. And so this man had studies honey bees for 50 years, and I said, 'Are they conscious?' and he said, 'How do I know?' So if he doesn't know, I don't know.

So a being who has practical autonomy would be entitled to those fundamental rights that protect their fundamental interests, are those, I argue,
1) you have to be able to be cognitively complex enough to be able to want, to desire.
2) you have to be able to intentionally act so as to achieve your desire.
3) And this perhaps is the most complicated: you have to have some sense of self. So that when something happens to you, you at least dimly understand that it's happening to you, and if you don't understand it's happening to you, and you don't know it's happening to you, then it's not clear why anybody else should care what's happening to you. If you don't care at all, it's not clear why anyone else should as well. And this presupposes that you are conscious. If a being is not conscious, cannot be conscious, then they are not going to have practical autonomy. But once you're conscious, then you can then become self conscious. And a self conscious being is a being who is conscious that she's conscious. And the gold standard for that is the red dot test. I can call it that. And that was developed using chimpanzees about 30 years ago, where a man named Gordon Gallop anaesthetised chimpanzees after letting them see what mirrors looked like, and then put a red dot here and a red dot there, say. Woke them up, showed them the mirror, and the question is, what are the chimpanzees going to do. And what they did is they looked in the mirror and they went like this, or they went like this. They didn't go like this, they went like this, that would have been a different thing. They went like this. And he argued that that means that they have some kind of self consciousness. That they understand that the creature, that handsome creature in the mirror is them.

For example, Koko the gorilla, who I've met, will look into a mirror. Penny Patterson who works with Koko, hows you a video Koko looking in the mirror and putting a hat on and then she takes out a tube of lipstick and slowly applies it. This is certainly at least a self conscious being. So Koko clearly has some kind of a sense of self.

Kirsten Garrett: Professor Wise has divided animals into groups, or categories, and they're explained in detail in his books.

Basically, Category 1 is great apes and bottle-nosed dolphins

Category 2 includes some insects such as honey bees; and African gray parrots, and dogs, all creatures with a complex cognitive ability and creatures we know a lot about.

Category 3 is where most animals are, and there is as yet no way to make a rational determination about them.

Category 4 is for those animals which, he says, are such simple forms of life that they lack sufficient autonomy, or the power to govern oneself or have free will, for basic liberty rights.

Professor Steven Wise.

Steven Wise: Category 4 are those animals, and as you move down towards zero, we become less and less convinced that they meet the practical autonomy requirements. And in my second book I actually chose honey bees as an example of those kinds of animals. To my horror and chagrin, it turned out that they weren't like that; I stumbled upon a literature massive, involving honey bees, in which these creatures who have approximately 950,000 neurons, 1-million for the number of neurons that we have, understand symbols. And they have these honey bee languages, or languages. And they can do quite amazing things. However, I don't argue the honey bee should have rights, but they're in my Category 2, they're kind of at the bottom of Category 2. The problem is, no-one has a clue whether honey bees are conscious or have senses of self. They might do all sorts of things, but we don't know whether they are doing them consciously, and you always have to understand that it's possible for animals to act in a certain way, even exactly the same way that we do, but that does not mean that what's going on in their minds is the same thing, or even that they have minds. There may be other reasons they might be doing it. And the burden of proof is probably going to be on those of us who are going into court and trying to claim that non-human animals have certain cognitive abilities and ought to be persons.

However, I also looked at dogs. I found that we hardly know anything about the minds of dogs. I was as amazed about dogs as I was amazed about honey bees. I thought there wasn't anything about honey bees, and it took me weeks and weeks to find and read that stuff. I thought there'd be an enormous amount written about the minds of dogs; it turned out there were approximately ten studies from the time Adam and Eve came into existence until 2004 when I was working on it. Ten studies about the minds of dogs. No-one had ever done it. They're beginning to pick up a little bit now, but no-one has ever really done it. And then I looked at African grey elephants, I found out for a lot of times they didn't think that they had any kind of self consciousness, and it may have turned out that what you really needed was the 25-foot mirror that people began to use and when they had a 25-foot mirror, things began to look at bit different. But you can even see that - what about this red dot test? How do you show that an elephant is self conscious? Or how do you show a honey bee is self conscious, using the red dot test? Or an African grey parrot? How are you going to show that he's self conscious?

So people need to think about how they can deal with that sort of thing. It was similar to the problem that was solved by a young scientist named Brian Hare. Did chimpanzees have any kind of theory of mind? Could a chimpanzee put himself in the mind of another chimpanzee? And scientists were doing studies, but that seemed to say No. But those studies required the chimpanzee to put himself in the mind of a human, and while those scientists concluded that the chimpanzee did not understand the mind of a human, when I read the studies I concluded that the scientists didn't understand the mind of the chimpanzee, and it was very difficult to tease out one or the other. What Brian did and one of the reasons he was able to do this was because he'd actually gone to Africa and understood, had some understanding of what chimpanzees are like in the wild. So what he did, he went to Yurkes and Yurkes had a chimpanzee cage here, a chimpanzee here, and a chimpanzee cage here, with guillotine doors. So you'd have a chimp here, a chimp here, nothing here. And what he did is he set up pairs of chimpanzees to see whether he could get a dominant and submissive pair. So he might put two chimps right here, and put a piece of food equidistant between them, and if this chimpanzee kept letting this chimpanzee eat the food, then he was submissive, he was dominant. If they like beat the living daylights out of each other, he had two dominants; he didn't want that, but he wanted to get dominant and submissive pairs. So he was able to do that.

Then he'd take the submissive, put in here, take the dominant chimp, put him here. Raise the doors, put a piece of food equidistant. What's going to happen? The submissive chimpanzee is going to let the dominant chimpanzee take the food. That's what happens.

Now Brian then puts up barriers in this middle room. And so he has a barrier here, and then he puts a piece of food behind the barrier, so this chimpanzee cannot see the food, this chimpanzee can see the food. But can this chimpanzee put himself in the mind of this chimpanzee and determine that he can't see the food? And he did. That's what they would do. The submissive chimpanzees would kind of stroll out, and they'd kind of like take the food. And this happened again and again and again. This was the first concrete evidence that chimpanzees had these kinds of elements of a theory of mind.

So I have one minute so I will tell you all the rest of my theories in that time. So the second part of my theory, I'll have to leave liberty here and move on to equality. Equality is the idea that likes are to be treated alike, and that unalikes are to be treated unalike. And it is a violation of justice to treat likes unalike, and to treat unalikes alike. OK. Has everyone followed that?

Now let me take an example here. What happens when you have that little baby who's born in a hospital tonight who doesn't have a brain, an anencephalic girl. She's here. Then you have one of these amazing chimpanzees, like Kanzi who I talk about, who understands between five and 7,000 English words, and probably can produce 500 or 600 on a sophisticated computer board, and co do math, can add, has a theory of mind, basically is one heck of a smart chimpanzee. Operates on the level of, say, human 4 or even 5 year old child. But Kanzi has no rights whatsoever, and indeed could theoretically be owned by the little girl who doesn't have a brain. So this child, who doesn't have a brain, but can breathe and digest, has all kinds of rights, an infinite number probably of rights. Kanzi doesn't have any at all, and indeed can be owned by that child.

I argue that as a matter of equality this is an injustice. And you have to have some kind of an equalising of these two folks if you believe in equality. And so a judge who's faced with that can take one of three paths.

One, is that she can say Well you know equality really isn't that important, and gross inequalities are just fine. And I would argue that equality is such a fundamental value of Western law that you may not take that tack. Or you could say, Fine, we believe in equality and what we'll do is we'll now lower the brain-dead or anencephalic child to the level of Kanzi, so neither of them have rights and indeed 100 years ago that's probably exactly what would have happened. And as a matter of pure equality I probably can't argue with that. But I don't think that's going to happen. I think it happened once and will never happen again.

So in order to achieve some measure of equality I argue that the judge has to acknowledge that Kanzi is entitled to at least some fundamental rights to be able to begin raising him up at least to the level of a human child who doesn't have a brain. And that was some of all the rest of my theories, but my time is finished, and I thank you very much.

APPLAUSE

Kirsten Garrett: Professor Steven Wise was speaking at a conference on Animal Law at the University of New South Wales, co-hosted by the fund for animals called Voiceless. Katrina Sharman, corporate counsel for Voiceless, gave an Australian perspective.

Katrina Sharman: Can I take a few moments to demonstrate how some of the key themes of Steven's speech are applicable to us in Australia. It's beyond dispute that although Australia's anti-cruelty laws seek to provide certain basic protections to animals, they still classify them as property. For example, when it comes to farm animals such as pigs, cows and chickens, our laws ensure that we can buy them, sell them, trade them and in fact we even refer to them as 'livestock' or 'living stock' if you take the two words apart.

Essentially, we decide how they live and how they die, because they're our property. Each year in Australia approximately 540 million animals are raised for food and food production. This equates to the slaughter of about 50,000 animals per hour; 90% of those animals are meat chickens.

Of all the animals that are affected by their classification as property in Australia, the suffering of farm animals is probably of the greatest magnitude. These animals are largely exempt from the protective reach of our anti-cruelty laws, and although both science and commonsense tells us that they're emotionally and psychologically very complex beings, their miserable plights are sanctioned and even entrenched by the current legal framework for animal welfare in this country.

For example, on factory farms for pigs, pregnant females known as sows spend much of their reproductive cycle in stalls where they can barely take a footstep forward or backward, let alone engage in normal social behaviours. Their levels of frustration and stress are so high that some have even been documented to have experienced chronic depression. Two weeks ago a meeting of federal, state and territory agricultural ministers confirmed that despite moves to phase out these stalls in the European Union, female pigs in Australia will continue to be locked in those sow stalls for at least the next ten years.

Many people in the audience will also be familiar with the plight of battery hens. Awareness of this kind of suffering has grown considerably in recent years, and people are buying more free range eggs, but Australia still cages 13 million battery hens every single year. These birds spend their lives confined in cages with little less than an A4 sized piece of paper in which to move.

Lawyers have a key role to play in lifting the veil which has made the suffering of many species invisible to the public eye, and largely, as Steven has told us, invisible to the legal system.

We're also delighted to welcome Professor David Weisbrot who heads up the Australian Law Reform Commission, a body responsible for conducting inquiries into areas of law reform at the request of the Commonwealth Attorney-General. So please welcome Professor David Weisbrot.

APPLAUSE

Kirsten Garrett: Emeritus Professor, David Weisbrot is President of the Law Reform Commission, and the Commission acts on issues raised by the Attorney-General. Professor Weisbrot said that if asked by the Attorney-General to look at animal rights, the Commission would not simply concentrate on legislation, but on a raft of broader implementation possibilities.

David Weisbrot: First, community education and consciousness raising efforts; secondly, looking at issues around labelling laws and logos, trustmarks; third, improved animal welfare laws, and fourth, moving to a full blown animal rights model of the sort that Steven urged on us earlier.

If you look at the first issue, consciousness raising, the Law Reform Commission hopefully will join in this effort. We produce a journal that's aimed at a general audience called Reform, it comes out two times a year, and we're proposing that the first issue next year, be devoted to animal rights, and so we hope that that will get the message out through the schools.

APPLAUSE

David Weisbrot: The issue that just came out is on water, so we picked that one right a couple of years ago when we decided to do that, and our next issue will be on children, and it's ten years since Australia acceded to the Convention on the Rights of the Child.

On the more legal side, at the moment the animal welfare laws have pros and cons and mostly cons. So if you look just at the penalties, for example, a common provision across Australia is the one in the New South Wales Crimes Act, Section 530, and it says exactly what we would all want, that someone's guilty of an offence if they inflict severe pain on an animal, if they're involved in torture, beating, or any other serious act of cruelty, and it actually carries a whacking good sentence in these circumstances. It's imprisonment for five years. And so if you stop there, you think, well that's pretty good. But these always a sub-section 2 in the law. And sub-section 2 says well you're not responsible for an offence, you're not liable if that behaviour that we described above occurred for the purposes of routine agricultural or as animal husbandry activities, recognised religious practices, the extermination of pest animals or veterinary practice. We'll leave vets to one side, in fact I'll leave religion to one side for these purposes. But what are routine agricultural or animal husbandry activities? And using the Code of Practice that most of the courts in Australia would take into account, it is all the agricultural activities that were described above that we would probably abhor, in other words factory farming, and those sorts of practices are considered routine agricultural practices.

So as Steven mentioned, although animal cruelty on its face is a criminal offence, a serious criminal offence in New South Wales, in practice it's unenforceable in the agricultural context, and so if we're looking for law reform lobbying, that has got to be an area that we look at; we'll have to look at the adequacy of standards, and enforcement, and mostly in this area the problem is the exemptions.

Taking it further, which is where Steven would want to go, the fourth strand would be going to a full blown animal rights model, one that I personally would support. And at the moment we have to think about how you get any kind of full blown rights, and I'm minded that it's 2007, it's exactly 40 years, nearly to the day, in which we had a referendum in Australia that for the first time said Aboriginal people would be counted in the census. Aboriginal people would be counted as people for the purposes of the Australian Constitution and the Australian polity. Only 40 years ago. And so now it just seems completely unconscionable, unimaginable, that that situation obtained so recently.

Similarly in 1968 in the US the US Civil Rights Act began to dismantle the Jim Crow laws in the US, state and territory, which entrenched racial discrimination. And as a kid I still remember going to visit my grandfather holidaying in Florida and going to public toilets in which there were signs saying 'Whites Only', so it's within my remembering, within my imagining.

So on the one hand it seems like a long, long process to go through, a lot of consciousness raising, a lot of lobbying to get to that stage. Although I suspect looking back in 40 years we'll wonder why it all seemed so hard and why it all just wasn't so obvious.

The Animal Legal Defence Fund has been setting up a petition for Congress in which you can actually go on line and support the petition, and it urges an Animal Bill of Rights, and when you first say that to friends and neighbours, particularly people who aren't all the true believers, they are looking for all the reasons why you shouldn't do that. It's just unimaginable, it's too difficult, it's too far out there.

When you actually look at the particulars of it, let me just read you these, and the only thing I will read:

The Animal Bill of Rights says the rights of animals should be free from exploitation, cruelty, neglect and abuse. Lab animals should be not used for cruel and unnecessary experiments. The right of farm animals to an environment that satisfies basic physical and psychological needs. The right of companion animals to a healthy diet, protective shelter, and adequate medical care. The right of wildlife to a natural habitat, ecologically sufficient to a normal existence and self-sustaining species population. And finally, the right of animals to have their interests represented in court and safeguarded by the law of the land.

It hardly seems radical to me. I'll end with that. Thank you very much.

APPLAUSE

Kirsten Garrett: There are many questions to Professor Steven Wise and David Weisbrot from the audience. Here is a selection.

Sharona Sullivan: Hi, my name's Sharona Sullivan, I'm from government and international relations at the University of Sydney. I'm just in the very final days of writing a PhD all about animals and the law, and the question I'm going to ask you is a question that I'm still trying to nut through myself. You seem to be somebody who is happy to use the fruits of animal research to develop an argument to free animals from the animal research process.

Steven Wise: Yes, I am. And it reminds me a little bit of the debate assuming that the Nazis were getting good data from the concentration camp experiments, was it more to use the data or not use the data. My personal value system is that I will go to hell and back if I have to use the data that I will then be able to support an argument to prevent that sort of data from ever being accumulated again.

Kirsten Garrett: The next question raised the philosopher, Wittgenstein, who put up an argument about consciousness and understanding of the world, which could have a bearing on the rights of animals in a world dominated by human beings. Wittgenstein had said that if a lion, which has a different consciousness to humans, could talk, we wouldn't understand him.

Steven Wise: What you're really saying, and this is important, is that all of my work seems to be an application of human standards to decide whether non-human animals should have rights. And the answer is that is an astute and correct observation. And my arguments are deeply speciesist arguments. And the reason I make them is our legal system is a deeply speciesist legal system, and I'm trying to make arguments that judges who are educated and who work in the system as it exists, can understand and accept, and can begin the process of making that system less speciesist. But I believe that if I try to make non-speciesist arguments, I will lose even faster than I might lose anyway. And that as a practical matter, those arguments that you need to understand the animals in terms of themselves, I think will come; I don't think they'll come in my lifetime, but I do think they will come. But I don't think they should come first, or if they do come first, they will not succeed.

Kirsten Garrett: Then there were questions about genetic research, cloning, and stem cell research. Scientists use the ova, or eggs, of cows and rabbits to conduct research and experiments in order to add to medical and scientific knowledge. The member of the audience pointed out that the cows have not, probably cannot, give consent for their eggs to be used in this way, but great good can come from it. Is this an issue in animal rights debates?

Steven Wise: Well my personal opinion, I would have to know what is involved in that before I could say you should do that, or you shouldn't do that. If it's a completely painless process, I don't know if it is, then they probably don't care, and it wouldn't bother them. But I just don't know enough about how the process works. I'm always deeply suspicious of the way we may use animals who we entirely dominate, that we usually don't care whether it's painful or not. But I don't know whether this is one of those circumstances.

David Weisbrot: The Australian legislation at the moment, the Federal legislation to which all the States and Territories agreed, was that one provision in their prohibits chimeras, the mixing of human DNA with other species, and so it would be prohibited in Australia now, as it is prohibited in England, although you're right, that there are pushes for that. I think there are better ways to deal with those issues. Ultimately though, I would go down to a very utilitarian view which is what harm and pain and suffering was being caused to animals to produce those. If the answer was minimal, this is purely on the animal welfare side, not on the ethical and moral side of the research itself. But if the pain and suffering was minimal or nil and the benefit was great, then I would say that I would be more inclined to allow it to happen.

Helena Thompson: I'm Helena Thompson from the World League for Protection of Animals. My question is that the steps towards law reform to my mind, could be also addressed towards the responsibility that we have to ensure that we reduce our ecological footprint. Now that brings me to the fact that our domestic ruminants, sheep and cattle, produce about three tonnes of methane per annum. Now that's the Australia Greenhosue Office. Once you do the relevant calculations, to bring that down to CO2, it seems that in fact over the next 20 years our sheep and cattle will have more of an impact on the climate with 186 megatonnes of CO2 equivalent emissions, than all of our coal-fired power stations here in Australia, which only put out 180-megatonnes of CO2.

Now that is actually quite an amazing calculation. If you calculate it over 20 years as opposed to over 100 year period which it suits this system to calculate it on. So in other words, if we look at the impact of our diet and that then brings us to law reform and where the responsibility lies to reduce methane CO2, it then really gets us to the nitty gritty. The climate question and animal rights is very much linked.

David Weisbrot: It's an important point. There's a UN, FAO, Food and Agricultural Orgnisation relatively recent report that identified agricultural uses as producing 22% of global warming, and all world transport, 17% I think it was. And everybody I've mentioned that to, it was in The Sydney Morning Herald a little while ago, and everybody says 'No, that can't be right', and then when you break it down, it is. But I would go through the same continuum, I would say this is another part of consciousness raising. First of all you have to let people know that that's right, because I don't think most people would accept that on its face, it wouldn't be part of their common understanding, common wisdom, and then to work through the different strategies ranging from education on the one side, and education of producers and consumers, and then all the way through to harder sanctions saying how we're going to meet our global warming targets, how we're going to reduce our carbon footprints in Australia and then using whatever sanctions we need there. The strategies may be slightly different, but I think that same continuum is important, working through from the things we can do educationally to drive behaviour, and to change attitudes, and the consequences that flow from that, all the way through to thinking of areas in which we can make harder interventions, using the sanction of the law, whether it's criminal penalties or civil and administrative penalties, or economic disincentives, incentives or disincentives for production in a way that would drive behaviour if education isn't going to do it.

Helena Thompson: Thank you.

APPLAUSE

Kirsten Garrett: This is Background Briefing on ABC Radio National, and today we heard from American Professor of Animal Law, Steven Wise, Katrina Sharman of the animal welfare fund Voiceless, and Emeritus Professor David Weisbrot of the Australian Law Reform Commission.

I'm Kirsten Garrett, and there'll be links to the Background Briefing website to more information on what you have heard today. And also a guest book where you can comment on this, or any other Background Briefing program.

THEME