University of Southern Queensland

Category: Uncategorized

Whip Use in Horse Racing

Courtesy of Pixabay

At the end of last year, I was fortunate to have an article titled ‘Could existing anticruelty laws ban whip use in horse racing?’ published in the Adelaide Law Review. More recently, I was interviewed on the Adelaide Law Review podcast, where we discussed some of my article’s background and broader implications.

Adelaide Law Review podcast

The article aimed to investigate whether industry-compliant whip use in horse racing breaches existing animal cruelty laws.

This question has been of interest to me for some time and was one of the reasons I decided to do a PhD. My PhD ultimately took a different path, but I could not find a satisfactory answer to this question during my reading in animal law/animal protection scholarship. I know, for example, that if I whipped my dog Lucy (sorry, Lucy!) to make her run faster, I could (and would likely) be prosecuted by the RSPCA.

So why aren’t jockeys in a horse race prosecuted?

There are many ways to answer this question, from the philosophical (as property, animal interests are not recognised by the legal system) to the more practical.

I took the latter approach. There is, however, no reported case (that I found) involving whipping a horse during a horse race that was compliant with industry standards. Because there is no case law ruling whether industry-compliant whip use was animal cruelty, I turned to principles of statutory interpretation.

By ‘industry-compliant’ whip use, I refer to the Australian Rules of Racing and the Local Rules of Racing, which permit using so-called ‘padded whips’ within specific parameters. So, I acknowledge that if a jockey was to whip a horse in the stables, then there is a good chance that the RSPCA might prosecute — whether the RSPCA would is the subject of another article.

But, my article seeks to answer whether a jockey could be prosecuted for animal cruelty for whipping a horse in compliance with the Rules of Racing.

Using the ‘always speaking’ approach to statutory interpretation, I argue that it is theoretically possible for a court to interpret the words of qualification in the animal cruelty provisions as extending to industry-compliant whip use based on new scientific evidence that horse skin is more sensitive than previously believed.

So, why hasn’t there been a prosecution for industry-compliant whip use? As I cite in the article, recent scientific evidence debunks the myth that horses’ skin is thicker than humans. Instead, the evidence suggests that from an anatomical perspective, horses’ skin is just as sensitive, if not possibly more sensitive, than human skin.

I argue that three constitutional and contextual considerations will likely sway a court in considering whether industry-compliant whip use could constitute animal cruelty.

Consequences of interpretation

This means that courts may consider the consequences of a particular statutory interpretation before adopting a specific meaning. For example, this was done by the High Court of Australia in Project Blue Sky. The majority found that ‘[e]xpense, inconvenience and loss of investor confidence’ would flow from a particular interpretation. Based on these potential consequences, the majority decided to take an interpretation that avoided the adverse effects identified.

Presumption against retrospectivity

It is presumed that legislation won’t operate retrospectively unless there are clear words to this effect.

This is for excellent reasons — it offends people’s sense of fairness if they did something that was lawful at the time but later determined to be unlawful.

This is what I think could be at issue if a court was to interpret the words of qualification in the way I previously put forward — basically, a jockey would be whipping their horse on the widespread belief that this is legal (providing they are doing so per the rules of racing).

Generally, where there is an alternative interpretation open to the court that does not involve retrospectivity, the court will take it — especially in criminal law matters, of which the animal welfare legislation is classified.

Separation of powers

While the common law is an important and valuable source of law, deciding on the lawfulness of an activity is the proper responsibility of a democratically accountable Parliament. It would therefore breach the separation of powers in the Constitution if Courts decided questions of whether certain activities (previously thought to be lawful) should now be unlawful — especially controversial activities such as the whipping of horses for entertainment.

I believe these three considerations explain why we haven’t and are unlikely to see a prosecution for industry-compliant whip use despite the research suggesting padded whips cause horses pain, possibly significant pain.

This does not suggest that the judiciary cannot use the ‘always speaking’ approach to extend existing statutory words and phrases in legislation. But, whether industry-compliant whip use breaches animal cruelty laws, this would require a level of judicial activism that is very unlikely until more people in society change their relationship with animals. And by that time, the Parliament would have probably changed the laws.

You can read the full article here. I hope you find it interesting and thought-provoking.

Opinion: Grant worship is damaging the humanities

By Dr Jeremy Patrick, Senior Lecturer, University of Southern Queensland

In the past two decades, many Australian universities have made dramatic shifts in how they recognise research. Often, these shifts are in direct response to government incentives.  There have been periods where the sheer quantity of peer-reviewed research was the goal, periods where only “Q1” publications were deemed valuable, periods where “impact and engagement” looked to be the next big thing, and more.  Most recently, the only thing that really seems to matter is research income—grants.  Any academic discipline within a university that can’t show major grant income could be punished by mediocre (or worse) ratings in ERA rankings, leading many universities to respond by explicitly building research income into the evaluation of individual academics when it comes to matters like promotion and workload allocation for research.

It may be plausible to argue that this focus on research income is warranted for the sciences.  Cutting-edge research in medicine, physics, agriculture, engineering, and related fields isn’t done well on the cheap.  In a field where a single piece of laboratory equipment could cost hundreds of thousands or even millions of dollars, every dollar that comes into a university via external research income helps build capacity for future research success.

But—at least for now—universities are more than just STEM research institutes.  The humanities have been poorly served by this new worship of grant success as the be all and end all of what makes a good researcher.  At my university, a former research director once remarked: “It’s not like anyone does research sitting in their office anymore.”  He had a science background, and I can’t comment on whether or not that’s true in STEM.  But for the humanities, I can attest that many of us do perform most of our research sitting behind a desk.  In law, the doctrinal methodology of synthesising case law and evaluating legal rules is still foremost in the discipline’s legal journals.  A literature scholar looking at portrayals of gender in the works of EM Forster or a political scientist labouring over census data to analyse voting patterns also (probably) don’t need hundreds of thousands of dollars in grant income in order to do good work and publish in the best outlets. 

The distorting effect comes when universities adopt a “one size fits all” approach and evaluate scholars in the humanities by exactly the same criteria that it evaluates scholars in the sciences.  Although grants do exist in the humanities, they do so at only fraction of the number and dollar value available for the sciences.  More so, many particular disciplines in the humanities have a very different approach to scholarship than the sciences: we don’t usually put fifteen names on a five-page article, track prestige by citation count, “partner with industry,” or join established research teams as doctoral students.  There is a fundamental difference in kind that needs to be recognised, and policies that fail to do so (for administrative simplicity or a false equality) are deeply problematic.

Grant worship has a more fundamental flaw, however.  Universities have begun to lose sight of what grants are: a means to an end.  Grants are an input, not an output.  The ability to wheedle money out of the ARC or some corporation is certainly a skill, but it’s not necessarily the same skillset of what we traditionally value in scholars—the ability to contribute to knowledge.   In the past several years, we’ve begun to value the mere obtaining of money for research far more than the actual research itself.  We’ve gotten to the point, even in the humanities, where winning a grant to write a book is celebrated (and rewarded internally) far more than the actual writing and publishing of the book.  And those scholars who publish regularly without having to resort to grant money?  They are, by (new) definition, simply not very good researchers—despite their output constituting the vast majority of total research output.  The incentive now is to apply for grants just for the sake of getting the prestige of getting the grant, regardless of whether or not the money is actually necessary or the project is one that the academic is genuinely interested in.  And, of course, for the humanities there are so few grant opportunities that all the futile time invested in making repeated applications could probably have been better spent doing actual research.

In this new world for the humanities, “publish or perish” has become “fund-raise or perish.”  Though, to be fair, “perish” probably just means being “punished” by additional teaching loads instead of research time, along with a permanent relegation to the bottom ranks of the academic ladder.  It still beats digging ditches, of course.  But universities need to have a more realistic view of what scholars in the humanities do, and how unrealistic it is to expect more than a handful of us to win significant research income.