Heikkila, Karina Elizabeth (2018) Could s 17 of the Animal Care and Protection Act 2001 (Qld) represent a Derridean justice-based approach to animal protections? PhD thesis, Victoria University.

Abstract

Section 17(1) of the Animal Care and Protection Act 2001 (Qld) (‘ACPA’) provides that ‘[a] person in charge of an animal owes a duty of care to it’. Until the Northern Territory adopted that same expression in its Animal Welfare Act, the ACPA was the only animal protection statute in Australia that suggested that a nonhuman animal is owed a duty. What is at stake in this thesis is the contrasting of that legal duty, posited to derive legal justice, with Derridean justice that demands that a duty is owed to other beings. This research addresses the question: could s 17 of the Animal Care and Protection Act 2001 (Qld) represent a Derridean justice-based approach to animal protections? To address this question, this thesis develops a legal and contextual analysis of ACPA s 17. It also applies Derrida’s proposition of deconstructions to ferret-out how rationality, embedded in the metaphysics of presence, gets-to-work in law. The purpose is to test if ACPA s 17 delivers what it promises. This research examines whether ACPA s 17 provides any undoing of the Western inheritance, which through rationality justifies using, mistreating, and slaughtering nonhuman animals for human animal ends. Within this research, ACPA s 17 is examined in context to the Western cultural trace that Derrida described as a ‘culture of sacrifice’. Derrida’s lens offers a unique perspective since he provided a different accounting of beingness. That is one that breaks down human-animal difference. It enables contrasting of Western conceptions of duties and rights that continue to rely on rationality as bases for ‘ethics’. The deconstructive approach highlights our Western modes of thinking and reasoning that reinstitute that violent culture of sacrifice. This research offers: a rich discussion of relevant Derridean propositions; a contrasting of Anglo-American and Continental perspectives of what is thought to be owed to nonhuman animals, a survey of neurosciences to ascertain if Derrida’s propositions of beingness remain credible, and various approaches to legal contextualisation of ACPA s 17. The new knowledge developed in the research includes a rich legal characterisation of ACPA s 17. The research finds that, in contrast to existing commentary, ACPA s 17 is not an implementation of ‘negligence’, and neither could it be properly described as implementing a ‘guardianship’ model. It is a regulatory type offence that is constrained by many layers of anthropocentric law. Various problems that limit the effect of ACPA s 17 are highlighted. The research makes suggestions for law reform. The thesis finally brings together the traces gathered in the research, through a legal analysis, and a deconstructive reading, of a relevant appeal case. Unfortunately, ACPA s 17 does not institute a legal duty that is owed to nonhuman animals. Neither does it appear to be an opening toward Derridean justice.

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