LSB December 2021 HR

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FEATURE Turkeys and the law DIANA THOMAS, CHAIR, ANIMAL LAW COMMITTEE The history and somewhat quirky nature of turkey case law illustrates that this humble fowl is so much more than the traditional protein element in a festive meal. BESTIALITY In 1642, in what was to become the United States of America, Thomas Granger was indicted for buggery with “a mare, a cow, two goats, five sheep, two calves and a turkey”. The man confessed to ‘lewd acts on a regular basis’ and was executed. 1 Fast forward 200 years and in 1880 the NSW courts debated whether a turkey, as a fowl, could be considered an animal for the purposes of sodomy. The case, Queen v Reynolds 2 is one where “an unnatural connection” took place between a prisoner and the body of a male turkey. Debate then ensued as to whether ‘an unnatural connection’ with a fowl could be considered sodomy as a fowl did not come under the term ‘beast’. 3 It was decided that an amendment to the Act 4 whereby ‘animal ‘was substituted for ‘beast’ meant that “all animals of the fowl kind” were now included in the definition. Thus, sodomy with a turkey became a crime in Australia. AIRPLANES Don Larson 5 was a proud turkey farmer in Iowa, USA. He valued his stock and took out an insurance policy on his turkeys covering death as a result of fire, lightning, explosion, smoke, vandalism and malicious mischief caused by huddling, piling, smothering, drowning, or freezing. 21 July, 1964 was a hot day and two planes flew over Mr Larson’s turkey farm, one at 2pm and another at 5pm. There was 32 THE BULLETIN December 2021 nothing unusual about this as Mr Larson’s farm was on the flight path between Minneapolis and Des Moines. However, the 5pm plane was observed to maintain a height of 150 – 200 feet only and flew directly over 4300 insured turkeys. It was alleged the low flying plane caused the 4300 large turkeys to stampede, suffocating 2066 of them. Mr Larson claimed the deceased birds on his insurance policy under malicious mischief. The insurer refused the claim and the matter went to court where an expert witness testified that: “The birds that die from fright will die in a pile. I mean they will get to an object and that stops them, but they just keep piling on top of one another, whether it be from flying objects or from rats.” Mr Larson’s claim was ultimately denied by the court on grounds that they were unable to find in the record: “any evidence on which the jury could find the unidentified pilot was bent on mischief against the plaintiff and was prompted by an evil mind”. FEATHERS A NSW case of Harvey v John Fairfax Publications Pty Ltd 6 which involved a turkey farm, has been quoted several times in text books 7 in the context of form and capacity challenges in defamation proceedings. In 1997, the Sydney Morning Herald published the following in relation to this case: “…Harvey was running about 1000 turkeys in a paddock adjacent to the hotel and ‘it became a health issue because the residents got upset about the feathers blowing everywhere and turkey (droppings) getting into the creek” The article went on to state: “The council took him to court and ‘we must have won because the turkeys disappeared”. Mr Harvey brought a defamation case stating, amongst other matters, that the article impugned that he had seriously endangered public health. Ultimately, the initial pleading was struck out and leave granted for a repleading without the use of the word serious. BRUSH TURKEY EGG OMELETTE. The native brush turkey was a common source of meat during the great depression of the 1930s. 8 The eggs were celebrated as an excellent source of protein as they can weigh up to 180g each and are 80% yolk. 9 After the second world war, due to decreasing numbers, turkeys became protected in Queensland 10 and NSW. 11 In South Australia, brush or scrub turkeys, introduced to Kangaroo Island, are protected by the National Parks and Wildlife Act 12 with fines of up to $2500 or six months in prison for the taking of a protected animal or their eggs. There are exceptions to this for Aboriginal persons where the turkey will be used for food or cultural purposes. 13 The turkey, both native and introduced, has shaped Australian bestiality, defamation and native protection law as well as feeding us through a depression and more recently becoming a much-loved therapy animal. 14 B
FEATURE Endnotes 1 Of Plymouth Plantation a journal written between 1630 and 1651 by Governor William Bradford, the leader of the Pilgrim colony Massachusetts http://www.gutenberg.org/ files/24950/24950-h/24950-h.htm paragraph [475] 2 Regina v Reynolds 4 June 1880. 3 1 Russell on Crimes page 938; Rex v Mulreaty from the MS of Bayley J. 4 9 Geo.IV.,c.31, s 15 5 Larson v. Fireman’s Fund Insurance Company,139 N.W.2d 174 (1965), Don LARSON, also known as Donald Larson and Donald Larsen, Appellant, v. FIREMAN’S FUND INSURANCE COMPANY, Appellee. No. 51843.Supreme Court of Iowa.December 14, 1965. https://law.justia.com/cases/iowa/ supreme-court/1965/51843-0.html 6 Harvey v John Fairfax Publications Pty Ltd [2000] NSWSC 337 (20 April 2000). http://www. austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/ NSWSC/2000/337.html Harvey v John Fairfax Publications Pty Ltd [2004] NSWSC 188 (22 March 2004). http://www.austlii.edu.au/cgi-bin/ viewdoc/au/cases/nsw/NSWSC/2004/188. html 7 Defamation: Comparative Law and Practice by Andrew Kenyon 8 https://blogs.sydneylivingmuseums.com.au/ cook/lets-talk-turkey-brush-style/ 9 https://www.abc.net.au/news/ science/2017-01-17/five-reasons-to-love-brushturkeys/7199724 10 https://www.qld.gov.au/environment/ plants-animals/animals/living-with/brushturkeys#:~:text=Brush%20turkeys%20are%20 threatened%20by,before%20Europeans%20 settled%20in%20Australia. Nature Conservation Act 1992 (Queensland) 11 Biodiversity Conservation Act 2016 (NSW) schedule 5 12 National Parks and Wildlife Act 1972 (SA) s 51 13 Ibid s 68D, 68E 14 https://www.audubon.org/news/why-turkeysand-other-birds-make-great-therapy-animals https://www.emotionalpetsupport.com/2017/11/ turkey-emotional-support-animal/ Animal Law Committee Annual Appeal 2021 SUSAN GARDINER, APPEAL TEAM LEADER AND MEMBER OF THE ANIMAL LAW COMMITTEE Despite continuing Covid-19 related challenges, the Law Society’s Animal Law Committee Members pushed forward with their Annual Shelter Appeal for 2021, which this year ran for two months over July and August. Focussing on smaller and less widely known animal shelters, this year’s appeal supported a total of 13 different South Australian charities, ranging from hearing assistance dogs to ferrets and Australian native wildlife. Posters were widely distributed throughout the legal community of South Australia, detailing drop-off locations for physical items as well as displaying a QR code which allowed monetary donations to be made directly to one of six individual rescues. Members of the Animal Law Committee also rallied their respective work colleagues together, including employees of the Law Society itself, amassing boxes of donated items nominated by the various charitable organisations. The Committee was thrilled with the result of the appeal and the generosity of the legal community. Donations ranged from puppy pads and scratching posts to bird seed and disinfectant, and bundles of donated items have been conveyed to the individual charities throughout the month of September. If you are kicking yourself because you forgot to donate, you’re in luck – it’s not too late! Just scan the QR code displayed above Animal Law Committee Members divvying-up the generous donations. (Left to right): Committee Chair, Diana Thomas; Appeal Team Leader, Susan Gardiner; and Committee Member, Renee Evans.) and you will be directed to a list of links to reputable charities providing invaluable care for animals in need in South Australia. B December 2021 THE BULLETIN 33
Page 1 and 2: THE BULLETIN THE LAW SOCIETY OF SA
Page 3 and 4: This issue of The Law Society of So
Page 5 and 6: PRESIDENT’S MESSAGE I look forwar
Page 8 and 9: ANIMAL LAW Animals and intervention
Page 10 and 11: RENTING WITH PETS IN THE DOG HOUSE?
Page 12 and 13: Q&A Know Your Council Member: Melan
Page 14 and 15: IN HONOUR Vale: Mark Glencraig Nich
Page 16 and 17: DISABILITY JUSTICE More collaborati
Page 18 and 19: FEATURE THE NEED TO THINK OUTSIDE C
Page 20 and 21: FEATURE Western Law as having judge
Page 22 and 23: ANIMAL LAW Therapy or assistance an
Page 24 and 25: YOUNG LAWYERS facebook.com/YLCSA Yo
Page 26 and 27: WELLBEING & RESILIENCE It's OK to g
Page 28 and 29: RISK WATCH Culturally and linguisti
Page 30 and 31: FEATURE The existing legal safeguar
Page 34 and 35: TAX FILES DGRs that are not already
Page 36 and 37: FAMILY LAW CASE NOTES Family Law Ca
Page 38 and 39: GAZING IN THE GAZETTE REGULATIONS P
Page 40: We manage one of SA’s largest soc

LSB December 2021 HR

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