Why is the Archbishop of Melbourne and Primate of the Anglican Church in Australia going to be stopped from performing in a circus in the ACT?
This idiotic thought came to me as I was reading a proposed amendment to the Animal Welfare Bill. It says a “”prohibited circus animal means _ (a) a primate; (b) a bear cheetah, elephant, giraffe, leopard, lion, puma or tiger or (c) and animal prescribed (by the Minister).
I looked in the dictionary to find that a primate means head of the Anglican Church or any mammal of the order Primate that includes man, the apes, monkeys the lemurs etc. Ah, ah, so humans are going to be prohibited circus animals, too. No so fast, the people who draft laws are more clever than that. Earlier on in the Act is says “”animal means an amphibian, bird, fish, a mammal and a reptile but does not include a human being”.
So the good archbishop can perform in a circus, after all.
This speculation was not all idle. The Animal Welfare Bill is now before the Legislative Assembly. It is a classic example of what anti-lawyers call “”black-letter law”.
Black-letter law is where the people writing the law attempt to cover every foreseeable circumstance and close off every loophole. So they define and word things with great precision. The result is no-one can understand the law, not even the judges who so frequently disagree with each other as cases go on appeal. And invariably loophole are found.
The Animal Welfare Bill is 52 pages long. Honestly now, do we really need 52 pages to tell us what is cruelty to an animal and what is not?
The Bill says, “”A person shall not, without reasonable excuse, commit an act of cruelty on an animal. Penalty: $10,000 or imprisonment for 1 year or both.” Fine. But then it has a dozen other prohibitions with the same penalty: deliberately causing an animal pain, applying an electric shock, failing to provide adequate food water and shelter, etc etc etc. Surely all these things are contained within the general prohibition on cruelty. Does the drafter, in his or her manic desire to cover all possibilities, think that any magistrate would be so thick to say applying an electric shock is not cruelty, so it better be put in as a separate offence?
This sort of drafting is the damnation of our law. No drafter can possibly define every future circumstance. Worse, in attempting to do so, the drafter is actually creating loopholes because when you have a detailed law with lots of definitions, everything not defined must be excluded, thereby creating the loopholes. Take the circus animals. The proposed section does not include llamas or ligers (crosses between lions and tigers). So I could set up a circus using them. It could be prevents by the Minister making a new regulation and publishing it in the üGazette.@ How much simpler to say: wild animals must not be used in a circus.
Sure, there will be artful dodgers. They will say “”wild animals” do not mean camels, or that the once-wild tigers they have put in cages are now domestic. But we will have artful dodgers anyway. The answer is not hugely long statutes that virtually no-one can understand. The answer lies in giving the courts more general guidance on the purpose of a law. We would have no more or less artful dodges than now, but we would have understandable law.
It would require magistrates and judges to take a common-sense approach. They would have to be prepared to cut through the lawyers’ nonsense and apply laws according to their obvious purpose.
And it would require a general law of criminal conduct that embraces things like sentencing, degrees of fault (intention, recklessness or negligence) and related offences: accessories, attempts to commit offences and so on.
The Animal Welfare Bill could then be reduced to stating some general principles prohibiting cruelty and stating the purpose of the legislation is to give greater protection to animals. It should not attempt to define the totality of human relations with the animal world. Such a task is impossible even in 52 pages.
More importantly, it should tell courts in general terms what is new by stating the conduct that used to be legal and is now illegal. In this case, the law should say something like: this law wants to ban trapping, rodeos and using wild animals in circuses.
Ordinary sensible human beings know what trapping is, they know what rodeos are and they know what wild animals are. So do ordinary sensible magistrates (and we assume all of them are).
If the law were drafted like that we could read it and know where we stand. There is no need for 52 pages of bumpf.
One of the troubles with black-letter law is the resort to bureaucratic solutions, which invariably are more expensive than they are worth. The law prohibits conduct, then sets up a licensing system. In the Animal Welfare Bill, this is the approach for research. Some animal-rights zealots will disagree, but research and vetinerary practice in the ACT does not need this nonsense. The cruelty provisions provide enough protection.
In the commercial field, black-letter law is manic. The thousands of pages of company, tax and superannuation laws are now beyond most lawyers and accountants. Yet they can be put more simply if we are prepared to give the courts more rein. This we must do because the present system of statutory drafting has failed: not only is it incomprehensible but it still has loopholes.