Government and governance, Trade and industry, Law, Arts, culture & society | Australia

4 September 2016

The decision to ban greyhound racing in New South Wales is an historic win for animal protection in Australia, but as Alexandra McEwan writes, it’s also a decision which reflects a societal divide, and one which could have broader implications.

The passing of the New South Wales Greyhound Racing Prohibition Bill 2016 through the NSW Parliament has been hailed as an historic turning point for animal protection in Australia. It is a triumph for animal protection advocates who have brought the large-scale killing of greyhounds and other forms of animal cruelty in the racing industry into the political spotlight. Once this legislation commences operation the NSW greyhound racing industry will be phased out, and banned completely as of 1 July 2017.

In deciding to ban greyhound racing in NSW, Premier Mike Baird relied on the findings of the Special Commission of Inquiry into the Greyhound Racing Industry in New South Wales Report published in June. The evidence put before the Special Commission suggested that over a 12-year period “between 48,891 and 68,448 dogs were killed because they were considered too slow to pay their way or were unsuitable for racing”. Even by the most meagre animal welfare standards it is impossible to justify this type of carnage: it is intolerable.

But having a compelling rationale for phasing out greyhound racing is not to disregard the impact the decision will have on current greyhound racing industry employees, nor to deny this is a culturally significant event. Greyhound racing has been a feature of Australia’s cultural landscape for around a century. The first commercial greyhound race meet using a ‘tin hare’ in Australia was held in May 1927 at what became known as the Harold Park racecourse in Sydney.

Once, greyhound racing was a hobby sport, enjoyed by working class people. Dogs were kept in small numbers, mostly in suburban backyards. However, the Special Commission’s estimate of the numbers of greyhounds killed per year indicates that greyhound racing underwent significant changes over the last few decades, meaning that the viability of the industry came to rely on large-scale violence against animals.

More on this: Why Australia needs an independent animal welfare statutory body | Gary Humphries & Jed Goodfellow

The NSW decision to ban greyhound racing reflects an international trend. The late 20th century saw a sharp decline in greyhound racing around the world. Australia is one of the few countries in which commercial greyhound racing remains lawful. It seems that greyhound racing is a form of gambling whose time has passed.

The banning of greyhound racing in NSW is also significant because it suggests that Australians’ attitudes towards animal use industries are changing. This possibility will, no doubt, be making other animal use industries nervous. The Australian reported that the head of Racing NSW, Peter V’Landy, has already suggested that horse racing could be next to feel the heat from activists, and there have been reports of anxiety among primary producers who fear the greyhound racing ban could lead to tighter animal welfare laws.

So what does the greyhound racing ban mean for other animal use industries? If one thinks about how animal cruelty operates as a field of criminal law, the pattern of prosecution is as follows. Those charged are individuals who are intentionally cruel to, or neglect, a companion animal – often a dog. Often, they reside in outer metropolitan or regional areas. Lastly, in animal cruelty matters the court applies the necessity test. Generally ‘necessity’ is about what is economically necessary. Hence, it is those who do not use animals in a recognised economically efficient manner that fall foul of the law.

It is possible to take the example above and apply it to the circumstances of the greyhound racing ban in NSW as a way of thinking about the possible barriers to achieving law reform in other animal use industries. For example, one can see that in important ways, in the broader field of animal use industries in contemporary society, the greyhound racing industry’s position is comparable to that of the stereotypical individual animal cruelty defendant. Firstly, the industry primarily harms dogs, as opposed to any other species (i.e. not pigs or chickens). Secondly, greyhound racing is a spectator ‘sport’ (form of gambling) popular among regional populations, with most racing tracks located on the outskirts of regional cities or towns. Lastly as was noted in the 2013 Select Committee on Greyhound Racing in NSW report, the industry was “economically unviable in the short to medium term and is not sustainable in the long term”. Therefore, in a very broad sense, it is failing to use animals in a recognised economically efficient manner.

Applying this analogy between the individual defendant and the larger field of animal use industries suggests that there is a structure underlying animal use industries in society that mirrors the structure of animal cruelty as a field of criminal law.

More on this: Tackling animal cruelty in China | Amanda Whitfort

From their inception, animal protection laws were structured along class lines. There were two aims: to protect animals from wanton cruelty and to bring virtues, such as industry, to what was then referred to as ‘the lower orders’. In England and in colonial Australia the aristocracy and respective colonial gentry did not commit to the moral sentiments that fuelled the 19th-century animal welfare movement and managed to be exempted from prosecution. As Tim Bonyhady notes in his book The Colonial Earth, when the Tasmanian Society for the Prevention of Cruelty to Animals was formed in July 1878, Louisa Meredith, one of the founding members, confronted the question of whether the Society would lobby to put an end to hunting and coursing. The Society’s President, Governor Sir Fredrick Weld, cautioned against adopting ‘extreme positions’. As ‘an old sportsman’ and patron of several clubs, Weld ‘refused to countenance any criticism of hunting’. Similarly, Kathleen Kete notes that in England, the RSPCA left alone fox hunting ‘by the professional and landed classes’.

Against this background, the ban on greyhound racing in NSW provides evidence of historical continuity and indicates an underlying pattern to how animal protection operates in contemporary society.

By understanding the problems that beset the operation of animal cruelty as a field of criminal law you can start to see animal use industries as forming one large and complex field in which industries are positioned as a constellation of power relations amongst themselves. In this analysis, it is possible to understand the greyhound racing industry as having been traded on behalf of more mainstream animal use industries, or those tied to elite interests. These dynamics may explain why horseracing seems impervious to animal protection advocacy.

On top of that, we need to develop what scholar Jonathon Clough refers to as a ‘realist’ model of corporate criminal culpability for application in the context of animal protection. This model would focus on the liability of a corporation as a whole, rather than individual employees. Also, it might move away from needing to establish cruelty against individual animals as the basis of a criminal charge, and instead develop alternative indicia of harm. In some circumstances absolute liability may offer a feasible option. However, in order to achieve the appropriate sense of moral reprehension or censure the punishment would need to take the form of a substantial fine (or even more creative corporate shaming penalties and public reparations funded by companies), and be imposed within a regulatory environment that increases the level of uncertainty for the potential corporate offender.

In view of the public backlash the greyhound racing ban has generated, including from large media corporations, punters, politicians and industry, such a model is needed to ensure that the scope of animal cruelty laws and possible forms of liability are able to bring mainstream animal use industries to account and rupture the structure that maintains the status quo.

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McEwan, Alexandra. 2016. "Gone To The Dogs - Policy Forum". Policy Forum.