“What is an animal?” The law has asked.

It seems almost too obvious to answer that an “animal” is a member of the animal kingdom; too synonymous to use the word fauna interchangeably; too intuitive to expect that everything we see moving of its own volition would be considered an animal. But that is not the case, and legislation makes certain judgments when it comes to define what is an “animal”.

Insects are not animals. Well, that may be too general to say. It would be more correct to say that insects, and “lower-order” invertebrates, are not considered deserving of legislative protection from pain and suffering. The various animal welfare Acts, examined in the new The Laws of Australia Subtitle 14.14 “Animals”, protect amphibians, birds, cephalopods, crustaceans, fish, non-human mammals and reptiles, but not ants, bees, beetles, butterflies, mantids, spiders or stick insects.

There may be a sound basis for this distinction. The Environment Protection and Biodiversity Conservation Act 1999 (Cth) is the most inclusive for invertebrates, with s 528 defining an “animal” as “any member... of the animal kingdom”. Pest species are important to an Act concerning the import and export of animals to and from Australia, whereas welfare Acts are concerned with protection from “unnecessary pain and suffering”.

The Australian Code for the Care and Use of Animals for Scientific Purposes only includes “higher-order” invertebrates within its definition of “animals” used for scientific research, however it does require its Animal Ethics Committees to “[take] into account emerging evidence of sentience and ability to experience pain and distress”.

Certain invertebrates are capable of sensing pain. They have nerve cells that respond to aversive stimuli, and exhibit avoidance and escape responses. However, scientific literature has drawn a distinction between the “registering” of a noxious stimulus and the “experience” of pain. It comes down to subjective perception on part of the animal and its ability to “suffer”. Insects are not considered capable of “unnecessary suffering” then.

However, there are certain biases involved here. Any considerations of “pain and suffering” will necessarily come from a human perspective. We may wrongly ascribe some insect behaviour as a pain response where it is just a nerve reflex. Similarly, we might deny that insects suffer because we imagine pain or stress in our own anthropocentric way.

The old adage of Victor Hugo that “nothing is more powerful than an idea whose time has come” is often adapted to present animal welfare as just such an idea. Among its adaptors are Philip Wollen OAM, former Citibank vice-president; and The Hon Michael Kirby AC CMG, Editor-in-Chief of The Laws of Australia. Next to equality of sexuality, animal rights is the greatest social justice issue of the new century. However, we should be careful about where we choose to draw the line for animals worthy of protection, and those to whose suffering we may be indifferent. Fifty years ago we would never have considered animal pain. Who knows? Insects might not be so different to us after all.

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