Could existing anticruelty laws ban whip use in horse racing?

Could existing anticruelty laws ban whip use in horse racing?

In the face of new scientific evidence suggesting horses experience pain with the use of padded whips in racing, this article considers whether the continued use of whips in racing could offend the existing anticruelty laws. In Australia, it is an offence to inflict ‘unreasonable’, ‘unnecessary’ or ‘unjustifiable’ pain or suffering on an animal. How reasonable, necessary or justifiable is the pain caused by padded whips for the purpose of human entertainment?
Relying on the ‘modern’ approach to statutory interpretation and the application of the ‘always speaking’ approach, it is argued that a court could interpret ‘unreasonable’, ‘unnecessary’ or ‘unjustifiable’ to extend the anticruelty provision to new situations and developments, including new scientific knowledge. However, in respect of whip use in racing, other important constitutional and contextual considerations must also be taken into account when deciding if whipping inflicts ‘unreasonable’, ‘unnecessary’ or ‘unjustifiable’ pain. Namely, the potential consequences of a certain interpretation, the presumption against retrospective operation, and the doctrine of the separation of powers. In giving all considerations due weight, it is unlikely that any court would interpret whip use in racing as inflicting ‘unreasonable’, ‘unnecessary’ or ‘unjustifiable’ pain or suffering despite new scientific evidence suggesting the pain inflicted may be disproportionate.

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