CATTLE V THE CROWN: IS THERE A PLACE FOR … · comparative analysis of the cases for and against...

CATTLE V THE CROWN: IS THERE A PLACE FOR THE COMMONWEALTH AS ANIMAL WELFARE GUARDIAN?

BRENDAN WALKER-MUNRO*

I INTRODUCTION

We rely on animals for the provision of foodstuffs, material goods, domestic and commercial labour, and medical and cosmetic experimentation.1 Yet despite the many obvious ways that animals interact with the human sphere there is little to no regulation of animal welfare or their interests at the Commonwealth level. As our population grows so too does the economic and social value of animals – in the words of Andrew Thelander back in 1991 ‘animals have already contributed more to [Australia] than all the breweries and football teams put together’.2

This paper will seek to examine whether there is a need for a Commonwealth guardianship framework for animal welfare. It will examine the current tensions in the existing framework between international, national and State laws, as well as conduct a comparative analysis of the cases for and against federalist intervention. It will then be proposed that the current situation requires Commonwealth intervention to establish a guardianship model of animal welfare law based on internationally and socially recognised principles, with a concomitant expansion of the rules of standing enabling representation of animals before the Courts by litigation guardians, in a similar model to that used for children and the mentally ill.

II THE LAW AS IT WAS, AND THE LAW AS IT IS

Given that our laws develop from our philosophy3 ‘animal welfare’ should be properly distinguished from ‘animal rights’. Animal welfare recognises humanity as an apex predator, and that our society is dependent on animals for food, sport, entertainment and science – our use of animals is morally justifiable so long as it occurs ‘humanely’.4 Animal rights on the other hand dictates a far more abolitionist philosophy that requires that society must cease all use of animals, regardless of purpose.5 Dr Hugh Wirth, former President of the RSPCA, said:

The general media, and thus a great number of people in the community, believe that animal welfare and animal rights are synonymous terms and are therefore interchangeable. This view is simply wrong…humans may make use of animals for companionship, work, pleasure and food and fibre production, provided all animals are

* Manager, Revenue Assurance & Integrity Office of Liquor, Gaming & Racing, NSW

Department of Justice. 1 Steven White, ‘Animals and the Law: A New Legal Frontier?’ (2005) 29(1) Melbourne

University Law Review 298. 2 Andrew Thelander, ‘Positive Concepts in Legislative Reform’ (Paper presented at the Animal

Welfare Conference, Brisbane, 8-9 June 1991) 21. 3 Jerrold Tannenbaum, ‘Animals and the law: property, cruelty, rights’ (1995) 62 Social Research

539, 575. 4 Ibid, 576. 5 Cass Sunstein, ‘Introduction: What Are Animal Rights?’ Cass R Sunstein and Martha C

Nussbaum (eds), Animal Rights: Current Debates and New Directions (Oxford University Press, 2004) 4-5.

364 University of Queensland Law Journal 2015

always treated with respect, not subjected to cruelty and their welfare is fully protected.6

Within this philosophical framework two camps emerge: welfarists believe that the interests of animals or humans are of equal worth,7 whilst abolitionists believe animals are ‘bearers of intrinsic value’8 and deserve complete emancipation.9 Either way, Glasgow argues both views are too universalist, based on conflicting philosophical views about the legal status of animals:

Therefore, rather than speaking of ‘animal’ rights or ‘animal’ welfare, we should speak specifically of gorilla rights, pig rights, dolphin rights and so on. These rights or welfare interests are likely to differ considerably from species to species. When discussing animal rights, we should always ask: which animal? And which rights? 10

If we accept Glasgow’s hypothesis this in turn suggests that a starting point for

any possible intervention would be a clarification on why we protect animals in the first place.

Much of the law relating to animals stems from mankind’s philosophies towards animals at the relevant times of law-making. Poor treatment of animals was rife throughout the Middle Ages where they were considered mere chattels to be used and abused at their owner’s whim. Whilst animals appearing in ecclesiastical Courts charged with criminal offences11 may seem absurd, it nonetheless marks a point where animals transitioned away from being mere property.12 But the transition to ‘something more’ did not fully crystallise until the philosophical revolution in the 1800s established concepts of universal suffrage and anthropomorphism,13 growing from roots in Judeo-Christian religion14 and the works of Aristotle15 and Immanuel Kant.16 The passing of the Ill-Treatment of Cattle Act 1822 (UK) was the first English statute to protect animals’ unique contributions to society – offenders faced prosecution and Court imposed fines.17 In Australia the position was little different. The first piece of animal protection legislation was enacted in 1837 in Van Diemen’s Land, followed by

6 Clare McCausland, United Nations Declaration on Animal Welfare: Why Not Rights? (19 April

2013) Regarding Rights, <http://asiapacific.anu.edu.au/regarding-rights/2013/04/19/united-nations-declaration-on-animal-welfare-why-not-rights/>.

7 Robert Garner, ‘Animal Welfare: A Political Defense’ (2006) 1 Journal of Animal Law and Ethics 161.

8 Ibid, 187. 9 David Glasgow, ‘The Law of the Jungle: Advocating for Animals in Australia’ (2008) 13(1)

Deakin Law Review 181. 10 Ibid 191. 11 Jen Girgen, ‘The Historical and Contemporary Prosecution and Punishment of Animals’ (2003)

9 Animal Law 97. 12 Glenda Emmerson, ‘Duty and the Beast: Animal Welfare Issues’ (1993) Background

Information Brief No 25, presented to the Queensland Parliament, Brisbane, April 1993 (available at http://www.parliament.qld.gov.au/documents/explore/ResearchPublications/BackgroundInformationBriefs/bib25ge.pdf) 2.

13 William Blackstone, Commentaries on the Laws of England (1769), 240-241. 14 The Bible, Book of Genesis, 1:26. 15 Aristotle, ‘Politics’ in Jonathan Barnes (ed), The Complete Works of Aristotle (1984, Oxford

University Press) 1993-4. 16 Immanuel Kant, Lecture on Ethics (translated by L Infield, 1963), 239-40. 17 Budge v Parsons (1863) 129 RR 367; Ford v Wiley (1889) 23 QBD 203.

Vol 34(2) Cattle v The Crown 365

NSW in 1850 and the other colonies in the 1860s.18 Most of the original legislative protections for animals were part of colonial Police Acts19 and the remnants of these can be seen variously around Australia in certain preserved criminal legislation.20 With Federation in 1901 came, along with a Federal Parliament, the Australian Constitution. Unsurprisingly, given the ethnocentric British social viewpoints of the age, neither animal welfare nor any cogent derivation thereof was listed as a head of power, nor was it mentioned at any time during the Constitutional debates.21 In the absence of a guiding Commonwealth statute, animal welfare law evolved solely as a creature of State and Territory regulation.22

But the Ill-Treatment of Cattle Act 1822 (UK) also reinforced long held linkages between the legal status of animals and their economic utility. The UK Act only protected certain animals (a position likewise reflected in Australian Police Acts) and only criminalised events which focused on animals with high economic value.23 Both wild animals24 and those kept ‘for whim and pleasure’25 were not considered as needing the protection of the law.26 Ibrahim tells us that the scope of the protection offered by the law was directly proportional to the animal’s economic value to its owner or possessor for good reason:

…ie. if it will produce a societal benefit. Therefore, anticruelty statutes need only protect against the irrational property owner…Viewed in this manner, the focus of anticruelty statutes on the prevention of gratuitous suffering is effectively a regulation of the irrational property owner, while the conduct of rational property owners is exempted.27

Both English and Australian common law have long defined animals as a form of

chattel28 and the subject of absolute property,29 dealing with animals purely as a class of property:

By itself … [this] would suggest that there are no constraints on the ways in which humans may deal with animals. They may do so compassionately, sensitively and

18 Philip Jamieson, ‘Duty and the Beast: The Movement in Reform of Animal Welfare Law’ (1991)

16 University of Queensland Law Journal 238. 19 Police Act 1865 (29 Vict No 10) (TAS), s 83. 20 For example Summary Offences Act (NT), ss 75A and 82; Criminal Code (Qld), s 468; Criminal

Law Consolidation Act 1935 (SA), s 83I. 21 Official Record of the Debates of the Australasian Federal Convention, Sydney, 22 September

1897, 1059–64. 22 Prevention of Cruelty to Animals Act 1901 (NSW); Prevention of Cruelty to Animals Act 1904

(TAS); Animals Protection Act 1901 (Qld); Prevention of Cruelty to Animals Act 1908 (SA); Prevention of Cruelty to Animals Act 1920 (WA).

23 Such as songbirds, strays and horses; Emmerson, above, n 12, 3. 24 John Edwards, ‘Fraudulent Taking in Larceny’ (1953) 16 Modern Law Review 385–388; also see

Criminal Code Act Compilation Act 2013 (WA), s 370. 25 Blackstone, above n 13, 236. 26 The Case of Swans (1572–1616) 7 Co Rep 15b; 77 ER 435; Blades v Higgs (1865) 11 HLC 621;

11 ER 1474. 27 Darian M Ibrahim, ‘The Anticruelty Statute: A Study in Animal Welfare’ (2006) 1 Journal of

Animal Law and Ethics 175, 200. 28 Stephens v State (1888) 65 Miss 329, 331. 29 Butterworths, Halsbury’s Laws of Australia, Vol 1(2) (at 4 March 2005), 20.


respectfully; equally though, under a regime of ‘absolute property’, they may treat animals insensitively and in a way that is gratuitously cruel, without legal ramifications…30

It is easy to see that the legal rights of animals have evolved as a function of our

philosophical drive to see our ‘societal inferiors’ properly treated but balanced against an economic desire to maximise their personal worth to us as owners. One need only examine the fate of deer in the forests of the King of England.31 In 1066, William the Conqueror issued a royal decree that all deer within the royal domains were his by right. Then under the rule of King Henry II, poaching was listed as one of only two offences that ‘men of the cloth’ could be arrested and tried for. Given that the other offence was treason, this gives some indication of the importance early rulers placed on their control over animals. From this history the situation in English (and later Australian) law emerged where a living, breathing creature like a horse, capable of pain and suffering, becomes a trade good with no more legal protection than a castle or a sword32. Under such a questionable system of law, a comparison of an animal’s position to human slavery becomes inevitable:

To put breathing, sentient property born of nature into a group along with commodities born of craft defies understanding, unless, of course, it is a subterfuge to reach other policy…There was a time when human beings themselves were considered property and were listed as inventory as a means to reach odious ends.33

Animal welfare law also suffers from a profound lack of international guidance.

In 1957 when the Treaty Establishing the European Communities (‘the Treaty of Rome’)34 was signed, animals were again defined by their economic worth.35 From an international standpoint the Treaty of Rome could be said to have created the first constructive obligation on Member States to improve the quality of life of its animals, if only from a purely mercantile viewpoint.36 This premise is supported by the enactment by the Council of Europe (with its forty-six Member States) of a series of Conventions which, by and large, only protect farm animals on their journey from paddock to plate.37 It was not until 1982 when the United Nations General Assembly

30 White, above, n 1. 31 Michael Stockdale, ‘English and American Wildlife Law: Lessons from the Past’ (1993) 47

Proceedings of the Annual Conference of Southeast Association of Fish and Wildlife Agencies 732, 735.

32 Karl Jacoby, ‘Slaves by Nature? Domestic Animals and Human Slaves’ (1994) 15(1) Slavery and Abolition: A Journal of Slave and Post-Slave Studies 89.

33 RB Lansing, ‘The Animal Companion Puzzle: A Worth Unknown Though Height Taken’ (2011) 18 Animal Law 105, 115.

34 Treaty Establishing the European Economic Community, opened for signature 25 March 1957, 298 UNTS 11 (entered into force 1 January 1958).

35 Ibid, art 38. 36 Alan Pearson, Kathleen Plowman and John Topfer, ‘Animals and the law in Australia: A

livestock industry perspective’ (2007) 91 Australian Law Reform Commission Reform Journal 25.

37 European Convention for the Protection of Animals during International Transport, opened for signature 13 December 1968, CETS No 065 (entered into force 20 February 1971); European Convention for the Protection of Animals kept for Farming Purposes, opened for signature 10 March 1976, CETS No 087 (entered into force 20 February 1971); European Convention for the Protection of Animals for Slaughter, opened for signature 10 May 1979, CETS No 102 (entered into force 11 June 1982); Additional Protocol to the European Convention for the Protection of


adopted the World Charter for Nature 198238 that a philosophical recognition of animals’ inherent worth irrespective of their economic value appeared in an international instrument. This philosophical recognition evolved through the Maastricht Treaty of 1993,39 the Treaty of Amsterdam40 of 1999 and the Lisbon Treaty of 200941 to a statement that identified animals as sentient beings and required Members States to ‘pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage’.42 The problems with these Treaty obligations is that they are heavily qualified – the language of the declarations only refers to animal welfare when considered as part of ‘formulating and implementing the Community’s agriculture, transport, internal market and research policies’.43 The declaration also makes no attempt to extend the recognition of sentience to household pets, wild animals or pest species. Further complicating the issues is the concept that Australia is neither a party nor an obligation holder under any of the Treaties or Declarations so the recognition from Maastricht and Lisbon is void in Australian jurisprudence.

Australia does have a number of other international treaty obligations, one of the most important being CITES.44 The Convention was given legal force in Australia with

Animals during International Transport, opened for signature 10 May 1979, CETS No 103 (entered into force 7 November 1989); European Convention for the Protection of Vertebrate Animals used for Experimental and other Scientific Purposes, opened for signature 18 March 1986, CETS No 123 (entered into force 1 January 1991); European Convention for the Protection of Pet Animals, opened for signature 13 November 1987, CETS No 125 (entered into force 1 May 1992); Protocol of Amendment to the European Convention for the Protection of Animals kept for Farming Purposes, opened for signature 6 February 1992, CETS No 145 (entered into force 1 May 1994); Protocol of Amendment to the European Convention for the Protection of Vertebrate Animals used for Experimental and other Scientific Purposes, opened for signature 22 June 1998, CETS No 170 (entered into force 2 December 2005); European Convention for the Protection of Animals during International Transport (Revised), opened for signature 6 November 2003, CETS No 193 (entered into force 14 March 2006).

38 World Charter for Nature, GA Res 37/7, UN GAOR, 37th sess, Supp No 51, UN Doc A/RES/37/7 (adopted 28 October 1982).

39 Treaty on European Union, opened for signature 7 February 1992, OJ C 224/1 (entered into force 1 November 1993) as amending Treaty Establishing the European Economic Community, opened for signature 25 March 1957, 298 UNTS 11 (entered into force 1 January 1958), as amended by Single European Act, opened for signature 17 February 1986, OJ L 169/1 (entered into force on 1 July 1987).

40 Protocol on Protection and Welfare of Animals, adopted in Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, opened for signature 2 October 1997, [1997] OJ C 340/01 (entered into force 1 May 1999), as amending Treaty Establishing the European Economic Community, opened for signature 25 March 1957, 298 UNTS 11 (entered into force 1 January 1958).

41 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, opened for signature 13 December 2007, [2007] OJ C 306/1 (entered into force 1 December 2009) art III-121.

42 Ibid 110. 43 Consolidated Version of the Treaty on the Functioning of the European Union, opened for

signature 13 December 2007, 2008 OJ C 115/47 (entered into force 26 October 2012). 44 Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for

signature 3 March 1973, 993 UNTS 243 (entered into force 1 July 1975).


the enactment of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA), the predominant environmental protection Act existing at Commonwealth level. Part 13A of the EPBCA gives effect to Australia’s CITES obligations and incorporates an offence provision for cruel treatment of protected species.45 Other animal related Conventions are also binding on Australia, such as the CMS46 and the CBD.47 Recently there has also been lobbying at the United Nations for a Universal Declaration of Animal Welfare (UDAW) as a prelude to member States assuming some future harder obligations in animal welfare.48 The UDAW seeks to enshrine what are known as the ‘Five Freedoms’ covering food, water, shelter, ability to express normal behaviours, and freedom from pain, fear and disease.49 Although formally accepted at a series of high level UN meetings,50 the declaration itself is not recognised as an international instrument. Furthermore, the ‘Five Freedoms’ is itself becoming an outmoded concept – it has since been refined by Mellor and Reid51 into the ‘Five Domains’ of potential welfare compromise. A so-called ‘sixth domain’ is also starting to emerge, named Quality of Life (or QoL) and ‘includes related notions of “a life not worth living”, “a life worth living” and “a good life”’ applied to animals subject to human exposure.52 In fact animal welfare as a concept is burgeoning (somewhat unexpectedly, given the amount of research being applied to the topic) to encompass a holistic view to ‘emphasis[e] multifactorial approaches that combined individual experiences in attempts to achieve a more comprehensive understanding of overall welfare status’.53 Any internationally guiding instrument would, by necessity, need to be reflective of this new thinking.

Australia is also a member nation of the Organization for Animal Health (Office International des Epizooties, or OIE),54 which was formed in 1924 with the mandate from the World Trade Organization to improve animal health and welfare worldwide with a focus on zoonotic disease. The progress made by the OIE Animal Welfare Working Group since its establishment in 2002 has been ‘impressive…the notion of approaching animal welfare change management on a truly global, rather than a

45 Environmental Protection and Biodiversity Conservation Act 1999 (Cth), s 303GP. 46 Convention on the Conservation of Migratory Species of Wild Animals, opened for signature 12

June 1979, 1651 UNTS 333 (entered into force 1 November 1983). 47 Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered

into force 29 December 1993). 48 Miah Gibson, ‘The Universal Declaration of Animal Welfare’ (2011) 16 Deakin Law Review 2,

539. 49 Ruth Pollard, ‘Animals, guardianship and the local courts: towards a practical model for

advocacy’ (2007) 91 Australian Law Reform Commission Reform Journal 48. 50 Peter Davies, ‘Work of Non-Governmental Organisations supporting the implementation of the

OIE standards’ (Speech delivered to the Second OIE Global Conference on Animal Welfare, Cairo, 21 October 2008).

51 David Mellor and CSW Reid, ‘Concepts of animal well-being and predicting the impact of procedures on experimental animals’ In: R Baker, G Jenkin & D Mellor (eds) Improving the Well-being of Animals in the Research Environment (Australian and New Zealand Council for the Care of Animals in Research and Teaching, Glen Osmond, South Australia, 1994), 3-18.

52 TC Green and David Mellor, ‘Extending ideas about animal welfare assessment to include ‘quality of life’ and related concepts’ (2011) 59 New Zealand Veterinary Journal 6, 263-271.

53 Ibid, 270. 54 United Nations, About Us (28 February 2013) Organization for Animal Health <

http://www.oie.int/about-us/>.


national basis, represents a significant paradigm shift’.55 However the OIE’s Working Group is not a panacea for international animal welfare law – its Terrestrial Animal Health Code and Aquatic Animal Health Code are not binding on member countries,56 nor are they permitted grounds for disputes under the General Agreement on Tariffs and Trade57. The Health Codes are really nothing more than glorified trade standards between the members, with ambiguity over whether they apply solely to production animals or to all animals within the sovereignty of the member State.58

But even were the UDAW or a similar document to be endorsed by the United Nations, it would not be sufficient to guide Australia’s domestic legislature for two reasons: international environmental law (where animal welfare is often lumped) is notoriously difficult to enforce, and Australia as a jurisdiction seems recalcitrant to do so. Conventions such as CMS and CBD are ‘typical of prevailing conservation treaties, and [contain] no provisions addressing individual animal welfare’59 where treaties of this kind aim only to protect a species’ unique nature, not because the animal can or does feel pain or suffering at human hands:60

…this means that internationally, while the environmental perspective of the importance of wildlife as part of ecosystems is well accepted, the conditions of life and death of individual animals at the hands of humans around the world are not yet a focus of legal drafting.61

Nor does our previous enforcement of international environmental Treaty

obligations fill us with much certainty; recent cases in the Federal Court question the international jurisdiction of the EPBCA, particularly in whaling cases.62 The EPBCA also remains silent as to whether some cruelty against protected species is defensible where those species threaten domestic industries.63 Even were a UDAW or similar Treaty obligation to be enacted, there is no certainty that Australia would seek to ratify it or enshrine the obligations in legislation – one need only look at Australia’s lacklustre response to the Kyoto and Montreal Protocols to bear this out.64 Gibson is

55 David Bayvel (2008) ‘The Globalisation of Animal Welfare: a New Zealand and Australian Perspective on Recent Developments of Strategic Importance’. Paper presented at AAWS International Animal Welfare Conference, Gold Coast, Australia, 31 August – 3 September.

56 David Fraser, ‘Towards a Global Perspective on Farm Animal Welfare’ (2008) 113 Applied Animal Behaviour Science 4, 335.

57 Peter Fitzgerald (2011) ‘‘Morality’ May Not Be Enough to Justify the EU Seal Products Ban: Animal Welfare meets International Trade Law’ 14 Journal of International Wildlife Law and Policy 85, 102.

58 Caley Otter, Siobahn O’Sullivan and Sandy Ross (2012) ‘Laying the Foundations for an International Animal Protection Regime’ 2 Journal of Animal Ethics 1, 57.

59 David Favre, ‘An International Treaty for Animal Welfare’ (2012) 18 Animal Law 237, 246. 60 Alexander Gillespie, ‘Animals, Ethics and International Law’, in Peter Sankoff and Steven

White (eds), Animal Law in Australasia (Federation Press, 2009) 352. 61 Favre, above n 56. 62 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116; Humane

Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124. 63 Dominique Thiriet, ‘Flying Fox Conservation Laws, Policies and Practices in Australia – A Case

Study in Conserving Unpopular Species’ (2010) 13 Australasian Journal of Natural Resources Law and Policy 2, 161.

64 Cass Sunstein, ‘Montreal versus Kyoto: A Tale of Two Protocols’ (John M. Olin Law & Economics Working Paper No 302, University of Chicago Law School, 18 August 2006) 23-30.


likewise sceptical, positing that Australia already has some of the most progressive animal welfare legislation in the world and that the domestic usefulness of UDAW is questionable.65

This lack of direction extends from international law into domestic national legislature – there is no Commonwealth Act that deals specifically with animal welfare. The various interpretation Acts ignore animals as legal entities entirely,66 whilst the animal welfare Acts67 are a patchwork of conflicting and confusing definitions. A core concept of these Acts is a bald criminalisation of certain treatment68 by ‘the exercise of influence by imposing standards backed by criminal sanctions’.69 But the nature of this legislative protection is not focused on a proactive recognition of animals as something needing protection, but simply on a desire to punish what Ibrahim would call the ‘irrational property owner’.70 Ibrahim’s proposition is further strengthened by the continued linkages between an animal’s economic worth and its legal protection under statute. For example the Animal Care and Protection Act 2001 (Qld) defines animals quite comprehensively71 when compared to the Prevention of Cruelty to Animals Act 1979 (NSW). Other examples include:

• Certain animal welfare Acts only protect the rights of crustaceans such as

crabs and lobsters if they are held at premises related to food preparation72 – otherwise they are not considered ‘animals’ in those jurisdictions at all;73

• The maximum punishment for stealing cattle in NSW is three times that of stealing any other goods74, and in Queensland the maximum punishment for killing, maiming or wounding stock is 7 years imprisonment but only 2 years in ‘any other case’;75

• The existence of a separate criminal offence in South Australia for causing the death or serious harm of a ‘working animal’, such as a police working dog, police horse, or accredited guide dog76 (interestingly, assistance animals for the disabled are not so protected); and

• Criminal offences in WA only protecting the property rights of an animal’s owner and not the animal itself (ie. unlawful use of a registered brand).77

65 Gibson, n 48 above, 551. 66 Acts Interpretation Act 1901 (Cth) s 2B; Acts Interpretation Act 1954 (Qld), Schedule 1;

Interpretation Act 1987 (NSW) s 21; Acts Interpretation Act 1915 (SA) s 4; Legislation Act 2001 (ACT), Dictionary; Interpretation Act 1984 (WA) s 5; Interpretation Act (NT) s 17; Acts Interpretation Act 1931 (TAS) s 46; Interpretation of Legislation Act 1984 (Vic) s 38.

67 Animal Welfare Act 1985 (SA) s 3; Animal Welfare Act 1993 (Tas) s 3; Prevention of Cruelty to Animals Act 1986 (Vic) s 3(3); Animal Welfare Act 2002 (WA) s 5; Animal Welfare Act 1992 (ACT), Dictionary; Animal Welfare Act (NT) s 4; collectively, ‘animal welfare Acts’.

68 Glasgow, above n 9. 69 Robert Baldwin, Martin Cave and Martin Lodge, Understanding Regulation: Theory, Strategy

and Practice (2012, Oxford University Press) 35. 70 Ibrahim, above n 27, 200. 71 Animal Care and Protection Act 2001 (Qld), s 11(1). 72 Prevention of Cruelty to Animals Act 1979 (NSW), s 4(1). 73 Animal Welfare Act 1992 (ACT); Prevention of Cruelty to Animals Act 1979 (NSW); Animal

Welfare Act (NT), Part 2; Animal Welfare Act 1985 (SA); Prevention of Cruelty to Animals Act 1986 (Vic).

74 Crimes Act 1900 (NSW), s 126; cf. Crimes Act 1900 (NSW), s 117. 75 Criminal Code (Qld), s 468(2); cf. Criminal Code (Qld), s 468(3). 76 Criminal Law Consolidation Act 1935 (SA), s 83I. 77 Criminal Code Act Compilation Act 2013 (WA), ss 382, 384 and 429.


III IS INTERVENTION NEEDED?

Whenever the Commonwealth needs to intervene in the affairs of the States and

Territories, particularly when imposing a legislative regime over them within which they have had little prior control, the Commonwealth must tread carefully. The WorkChoices78 case is a classic exemplar for the animosity some States feel when the might of Federal Parliament intervenes in matters of State legislation.79 Although the WorkChoices challenge was ultimately unsuccessful for the plaintiffs, the legislation was such a substantial alteration to the Australian industrial relations landscape that it continues to have repercussions today.80

So with WorkChoices in mind, does animal welfare warrant Commonwealth intervention? The aims of a federally enacted animal welfare statute might always be achieved in other ways. The first of these is a newly emerging concept known as ‘socially responsible investment’ (SRI). SRI relies on investors now ‘taking a broader and more sophisticated view of the economic forces that shape environmental pressures’.81 Increased shareholder awareness requires compliance with community expectations for environmental protection and ethically conducted business decisions as preconditions for funding.82 Animal welfare has been suggested as being another likely candidate for the SRI movement, with companies who test pharmaceuticals on animals already incurring a higher bar to investor funding.83 The problem with this approach is the long-standing ‘prudent investor’ duty84 owed by trustees, investors and fiduciaries to maximise profits for their shareholders,85 as well as an ‘absence of express legislative mandate in the Corporations Act 2001 (Cth)’.86 An added hurdle is that Federal Parliament seems unwilling to embrace SRI as a concept. The Government Investment Funds Amendment (Ethical Investments) Bill 2011 (Cth) was introduced in November 2011 to distance government investment funds from ‘inappropriate’

78 New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1. 79 Anthony Forsyth and Carolyn Sutherland, ‘From Uncharted Seas to Stormy Waters: How Will

Trade Unions Fare Under Work Choices Legislation?’ (2006) 16 The Economics and Labour Relations Review 2; Australian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910.

80 Ben Waugh, ‘Trade Unions and the Freedom of Association – A Comparative Analysis of Work Choices and the Fair Work Act 2009’ (Student Working Paper, No 5, University of Melbourne: Centre for Employment and Labour Relations Law, November 2010), 5-6.

81 Benjamin Richardson, ‘Can Socially Responsible Investment Provide a Means for Environmental Regulation?’ (2009) 35 Monash University Law Review 2, 263.

82 Ibid, 265; see also Julie Froud, Adam Leaver and Karel Williams, ‘New Actors in a Financialised Economy and the Remaking of Capitalism’ (2007) 12 New Political Economy 339.

83 Hu Li, ‘Animal Research, Non-Vegetarianism, and the Moral Status of Animals – Understanding the Impasse of the Animal Rights Problem’ (2002) 27 Journal of Medicine and Philosophy 5, 589.

84 Cowan v Scargill [1985] Ch 270. 85 Paul Ali and Martin Gold, ‘An Appraisal of Socially Responsible Investments and Implications

for Trustees and Other Investment Fiduciaries’ (Discussion Paper, University of Melbourne: Centre for Corporate Law and Securities Regulation, 2002), 17.

86 Helen Anderson and Wayne Gumley, ‘Corporate Social Responsibility: Legislative Options for Protecting Employees and the Environment’ (2008) 29 Adelaide Law Review 1, 30.


investments (such as the Health and Hospitals Fund investing in tobacco companies).87 The legislation failed to be passed after Parliament was dissolved in November 2013 and subsequently lapsed. Internationally, there is some evidence of SRI programs working to improve animal welfare – in December 2014 Denmark, Germany and the Netherlands signed a joint declaration banning providing investment capital to farm animal operations that violate EU animal welfare laws.88

Production animals might also have their own concurrent set of Federal legislation89 where the role of the Commonwealth would remain as it has traditionally been – one of policy design and guidance. In the 1970s the CSIRO published a series of Model Codes of Practice90 that related to the farming and keeping of primary production animals, with various iterations of the Model Codes released until the 1990s. Unfortunately the CSIRO did not write the Model Codes; they were in fact developed by the Primary Industries Ministerial Council (now the Standing Council on Primary Industries)91 composed of politicians, industry stakeholders and portfolio staff. The Councils did not include an animal welfare representative resulting in ‘many Codes [having] passed through this process without scrutiny’.92 The result was absurdities in the Model Codes such as the following:

It is desirable to feed, water and rest cattle for at least 12 hours…if mustering has caused considerable physical exertion….Cattle should be offered water and feed of reasonable quality if water deprivation time is expected to exceed 36 hours…93 (emphasis added)

The language used in the Model Code allows significant and varied interpretation,

and promotes the idea that ‘some cruelty is necessary or justified during the course of raising animals for food production’.94

From this background the Commonwealth in 2005 created the Australian Animal Welfare Strategy (AAWS).95 The AAWS Advisory Committee was then established to provide advice to Department of Agriculture, Forestry and Fisheries (DAFF) and the Australian Government more broadly, as well as to implement the AAWS through a series of stakeholder engagements and policy reviews. Concomitant with this was DAFF’s decision in 2005 to transform the Model Codes (via SCoPI and Animal Health Australia, a non-profit public company) into the Australian Animal Welfare Standards

87 Commonwealth, Parliamentary Debates, Senate, 13 September 2012, 6845 (Richard Di Natale). 88 Nicolas Entrup, Incorporating animal welfare in financial instruments (17 December 2014)

Shifting Values <http://www.shiftingvalues.com/incorporating-animal-welfare-in-financial-instruments/>

89 Pearson, Plowman and Topfer, above n 36. 90 CSIRO, Primary Industry Report Series (2015) CSIRO Publishing

<http://www.publish.csiro.au/nid/22/sid/11.htm>. 91 Australian Government, Background to the Councils (27 January 2015) SCoPI

<http://www.mincos.gov.au/Pages/background.aspx> 92 Geoff Neumann & Associates, ‘Model Codes of Practice for the Welfare of Animals’ (Report to

the Australian Government Department of Agriculture, Forestry and Fisheries, 2005). 93 SCoPI, ‘Model Code of Practice for the Welfare of Animals: Land Transport of Cattle’ (Primary

Industries Report Series 77, Australian Government Printer, 2000) [5.1]-[5.2]. 94 Katrina Sharman, ‘Farm Animals and Welfare Law: An Unhappy Union’ in Peter Sankoff,

Steven White and Celeste Black (eds), Animal Law in Australasia (Federation Press, 2013) 61, 78.

95 Australian Veterinary Association, About the AAWS (January 2015) AAWS <http://www.australiananimalwelfare.com.au/content/about-aaws>.


and Guidelines,96 which they claim is to encourage a nationally consistent approach.97 The AAWS Advisory Committee and SCoPI were then supposed to engage in policy design and engagement with the State and Territory primary industry Ministers. After that, could the Commonwealth retain this position as legislative and policy ‘mentor’ to the States and Territories, particularly in relation to production animals? Simply, no. When the AAWS was reviewed in 2008 by Bruce Gemmell, his observations were lukewarm at best, and included 20 recommendations including to ensure ‘…[t]he lack of a government governance structure for production and non-production animals be addressed.’98 Whilst the now Department of Agriculture continues working on converting the Model Codes, it is worth noting:

• At the time of writing, none of the Gemmell review recommendations relating

to intergovernmental arrangements have been actioned; • The Board of Animal Health Australia consists of those same Departments

charged with ensuring maximum economic viability to Australian agribusiness;99 and

• The Standards and Guidelines themselves will also be of no legal effect, given that Commonwealth policy is that ‘non-compliance with one or more of the guidelines will not constitute an offence’.100

A subsequent review in 2013 of the Department’s progress was also highly critical. The report made another 20 recommendations including better understanding of community expectations, improved project management, conflict resolution and use of evidence-based decision making. In particular it noted that ‘the Standards may not be implemented in a timely manner by State and Territory governments’ and ‘a lack of agreement on the overarching objective of the Standards… is driving conflict within the process…’.101

If one accepts that the current animal welfare scheme is in need of reform, and that the Federal government shoulders that responsibility, it is appropriate to consider if other jurisdictions might have already done so and what learning could be applied.

96 Arnja Dale and Steven White, ‘Codifying Animal Welfare Standards: Foundations for Better

Animal Protection or Merely a Façade’ in Peter Sankoff, Steven White and Celeste Black (eds), Animal Law in Australasia (Federation Press, 2013) 151, 160.

97 Australian Government, Animal Welfare Standards and Guidelines (4 March 2015) Department of Agriculture <http://www.agriculture.gov.au/animal/welfare/standards-guidelines>.

98 Bruce Gemmell, ‘Review of the Australian Animal Welfare Strategy’ (Report to the Australian Government Department of Agriculture, Forestry and Fisheries, 2009) available at <http://www.australiananimalwelfare.com.au/app/webroot/files/upload/files/Gemmell%20review-aaws.pdf>.

99 Dale and White, above n 93, 161. 100 Australian Government, ‘FOI2014.15-09 Frequently Asked Questions – Australian Animal

Welfare Standards and Guidelines’ (15 December 2014) Department of Agriculture <http://www.agriculture.gov.au/SiteCollectionDocuments/animal-plant-health/welfare/standards-guidelines/foi/faq-aus-animal-welfare-standards-guidelines.pdf>

101 PriceWaterhouseCoopers, ‘Review of the Animal Welfare Standards and Guidelines Development Process’ (Report to the Australian Government Department of Agriculture, 2013) ii <http://www.agriculture.gov.au/Style%20Library/Images/DAFF/__data/assets/pdffile/0009/2344968/review-animal-welfare-standards-guidelines-development-process.pdf>.


Here we turn to Canada, where animal welfare is predominantly regulated at the federal level by the Criminal Code, RSC 1985, c. C-46. In some provinces provincial law also applies but these statutes all contain the same ‘utilitarian calculus’ as the federal law, which justifies some pain and injury by animals at human hands.102 Despite major reforms that were attempted (and failed) in 2001 the language in the federal Criminal Code is substantially the same as it was in the 1950s.103 Attempts to reclassify animal cruelty offences as not being ‘offences against property’104 were generally mocked as a deliberate attempt to avoid controversial policy discussion.105 Whether as a direct result of the failed reforms or not, ten years later Bisgould concluded that Canadian animal welfare offences were ‘minimized throughout the justice system, resulting in the withdrawal of charges, high acquittal rates, or weak sentences’.106 Nor is this criticism solely of Canadian criminal law – recently the Court of Appeal of Alberta upheld 2:1 a denial of leave to animal rights groups who were seeking an order to release Lucy, a 36 year old Asian elephant at the Edmonton Valley Zoo.107 What was unique about this case was the dissenting judgement of Fraser CJA who believed that although the question of standing for an elephant was novel, it remained justiciable,108 suggesting that the judiciary at least might help shape the interpretation of the statute.109 But others have argued convincingly that Canada itself is ill-suited for a large scale animal welfare reform program based on its societal, political and legal history.110

Such criticisms are hardly limited to the Canadian jurisdiction. In 1999 New Zealand undertook a fairly comprehensive and widely applauded reform of its animal welfare laws; indeed, Sankoff describes the New Zealand approach as a laudible one that ‘promote[d] dialogue – directly or indirectly – between the government, animal users and the wider public’.111 But in NZ problems continue to exist with the definition of ‘animal’, investigative and prosecutorial resourcing, and differing community expectations.112 New Zealand magistrates also appear hesitant to order imprisonment for convictions, and those that have are often reversed on appeal.113 In the UK penalties

102 Elaine Hughes and Christiane Meyer, ‘Animal Welfare Law in Canada and Europe’ (2000) 6

Animal Law 23, 39. 103 Bill C-15, An Act to amend the Criminal Code and to amend other Acts, 1st Sess., 37th Parl.,

2001 (1st reading 14 March 2001). 104 Marie Blosh, ‘The History of Animal Welfare Law and the Future of Animal Rights’ (University

of Western Ontario – Electronic Thesis and Dissertation Repository Paper No 803, University of Western Ontario, August 2012) 95.

105 Hughes and Meyer, above n 99, 41. 106 Lesli Bisgould, Animals and the Law (Irwin Law Publishers, 2011) 87. 107 Reece v Edmonton (City) 2011 ABCA 238. 108 Ibid, 162. 109 Peter Sankoff, ‘Opportunity Lost: The Supreme Court Misses a Historic Opportunity to Consider

Question of Public Interest Standing for Animal Interests’ (2012) 30 Windsor Yearbook of Access to Justice 129.

110 Terry Whiting, ‘Policing Farm Animal Welfare in Federated Nations: The Problem of Dual Federalism in Canada and the USA’ (2013) 3 Animals 4, 1086.

111 Peter Sankoff, ‘The Failure to Enforce Criminal Law: Does it Impede the Development of Social Discourse on Important Policy Issues’ (2013) 46 Housei Riron 1, 128.

112 Peter Sankoff, ‘Five Years of the ‘New’ Animal Welfare Regime: Lessons Learned from New Zealand’s Decision to Modernize its Animal Welfare Legislation’ (2005) 11 Animal Law 7, 25.

113 Porter v SPCA [1988] 220 NZLR 87; SPCA v Berryman and Murphy (Unreported, DC KAIH CRN 1027009866-871, 5 May 2003, Everitt J); Hurring v SPCA [2009] NZHC 1201.


for animal cruelty are between half and one-fifth that of the Australian jurisdiction114 with custodial sentences imposed in only 5% of cases.115 Moving into south-east Asia, the Singaporean Wild Animals and Birds Act (2000) focuses more on licensing than prohibition, does not protect pest species and fails to outlaw certain acts such as beating and cock-fighting.116 Custodial sentences for animal welfare in Singaporean courts are also very rare.117 China’s nascent Wildlife Law passed in 1998 protects only ‘endangered species or those valuable to economic or scientific research’118 even after numerous cases of animal cruelty could not be successfully prosecuted simply because there was no offence committed by the conduct.119 Penalties of imprisonment for animal cruelty are likewise rare in other south-east Asian countries and often subject to successful appeal.120

It takes a relatively cursory effort to identify the shortcomings in the current Australian legislation that would support some degree of Federal reform. Indeed, the observations are neatly summarised by E.J. Ellis:

…in the contradictory structure and language of the legislation, in the complex regulatory framework that relies heavily on regulations and codes of practice, in the disproportionate influence in the making of these subordinate laws and guidelines by bodies whose interests are very different to those of animals, and in the enforcement of a penal statute by inadequately resourced charitable bodies.121

Much of the contradictory language issues were dealt with earlier in this essay –

particularly to do with the definition of ‘animal’ being neither inclusive nor specific. One need only compare the dictionary terms between the animal welfare Acts to see the extent of the discrepancies. Other key terms in the animal welfare Acts change widely by jurisdiction – the definition of ‘cruelty’ in the POCTA NSW122 (and similarly in the Prevention of Cruelty to Animals Act 1986 (Vic)123) allows that there are circumstances created where the ‘beating, kicking, mutilating or injuring an animal’ might be committed reasonably, necessarily or justifiably, and therefore escape criminal liability. This qualification is framed practically rather than objectively124 but

114 Annabel Markham, ‘Animal Cruelty Sentencing in Australia and New Zealand’ in Peter Sankoff, Steven White and Celeste Black (eds), Animal Law in Australasia (Federation Press, 2013) 208.

115 Sentencing Guidelines Council (2008), Magistrates Court Sentencing Guidelines (15 May 2008) United Kingdom Magistrates Court < https://www.sentencingcouncil.org.uk/wp-content/uploads/MCSG_web_-_October_2014.pdf>; cf. R v Somerset County Council, ex parte Fewings & Ors [1995] 3 All ER 20.

116 Joseph Chun, ‘Animal Welfare and Nature Conservation Laws in Singapore: A Moral Duty to Non-Human Nature?’ (2005) 9 Asia Pacific Journal of Environmental Law 1, 54-56.

117 PP v Seah Kian Hock [1997] 2 SLR 414. 118 Amanda Whitfort, ‘Evaluating China’s Draft Animal Protection Law’ (2012) 34 Sydney Law

Review 2, 350. 119 Ibid, 350-353. 120 HKSAR v Shu Ngai Fung (Unreported, High Court of the Hong Kong Special Administrative

Region, Deputy Judge Line, 30 September 2008); Whitfort, above n 115, 366-367. 121 E. J. Ellis, ‘Making sausages and law: the failure of animal welfare laws to protect both animals

and fundamental tenets of Australia's legal system’ (2010) 4 Australian Animal Protection Law Journal 6, 7-8.

122 Prevention of Cruelty to Animals Act 1979 (NSW) s 4(2). 123 Prevention of Cruelty to Animals Act 1986 (Vic) s 9(1). 124 Dee v Yorke (1914) 78 JP 359.


still requires a balance between the ‘legitimate object of the act committed and the consequences for the animal’.125 So in the words of Glasgow, ‘offences so framed…allow for plenty of definitional wriggle room’.126

Discrepancies continue the more one looks – cruelty is very widely defined in the SA, Tasmanian and NT Acts, but in the ACT the word becomes part of the phrase ‘act of cruelty’127 which, confusingly, is undefined in both the Act and the Dictionary appended to it. Queensland and WA do not recognise aggravated offences128 as alternatives to the head offence, supposedly designed to punish more heinous or deplorable acts with higher penalties. A wide variety of other conduct has also been deemed illegal,129 such as animal baiting, fighting, coursing and steeplechasing, unnecessary cosmetic procedures (such as tail docking, ‘ringing’ and ear clipping) and use of certain electrical devices such as cattle prods.130 Certain specialised uses of animals such as in the entertainment industry, either as part of rodeos, zoos, aquaria and ‘animal actors’ for film and television, are simply not addressed.131

We also observe in these Acts numerous defences to the conduct of being cruel to an animal, which dovetails neatly into the second source of criticism of the animal welfare Acts. Broadly labelled these defences are generally called ‘exemptions’, a series of statutory excuses or administrative instruments (the so-called ‘codes of practice’) which, if complied with, obviate or displace the animal cruelty provisions of the relevant jurisdiction. Examples of statutory defences that exist relate to religious or cultural observances (such as hunting in accordance with an Indigenous religion and custom, or kosher / halal slaughtering),132 recreational hunting and the control of feral animals or pests.133 Codes of practice on the other hand, provide an almost unfettered discretion in the Minister charged with regulating animal welfare in the jurisdiction (almost always the Minister also charged with agriculture and primary industries) to exempt production animals from animal cruelty offences. Stephen White summarises the position on codes quite succinctly:

All jurisdictions have an exemption from offences under the legislation where there is compliance with relevant codes of [practice]. Codes are especially important in the areas of farm animal production and transportation, and the use of animals in scientific

125 Ford v Wiley (1889) 23 QBD 203. 126 Glasgow, above n 9, 196. 127 Animal Welfare Act 1992 (ACT) ss 7-7B. 128 Whilst other States do: Animal Welfare Act 1992 (ACT) s 7A; Prevention of Cruelty to Animals

Act 1979 (NSW) s 6; Animal Welfare Act (NT s 10; Animal Welfare Act 1985 (SA) s 13(1); Animal Welfare Act 1993 (Tas) s 9; Prevention of Cruelty to Animals Act 1986 (Vic) s 10.

129 Animal Welfare Act 1992 (ACT) s 7; Prevention of Cruelty to Animals Act 1979 (NSW) s 5; Animal Welfare Act (NT) s 9; Animal Care and Protection Act 2001 (Qld) s 18; Animal Welfare Act 1985 (SA) s 13(2); Animal Welfare Act 1993 (Tas) s 8; Prevention of Cruelty to Animals Act 1986 (Vic) s 9; Animal Welfare Act 2002 (WA) s 19(1).

130 Animal Welfare Act 1992 (ACT), Part 2; Prevention of Cruelty to Animals Act 1979 (NSW), Part 2; Animal Welfare Act (NT), Part 2; Animal Care and Protection Act 2001 (Qld), Chapter 3; Animal Welfare Act 1985 (SA), Part 3; Animal Welfare Act 1993 (Tas), Part 2; Prevention of Cruelty to Animals Act 1986 (Vic), Part 2; Animal Welfare Act 2002 (WA), Part 3.

131 For a review, see Jackson Walkden-Brown, ‘Animals and Entertainment’ in Peter Sankoff, Steven White and Celeste Black (eds), Animal Law in Australasia (Federation Press, 2013) 129.

132 Joel Silver, ‘Understanding Freedom of Religion in a Religious Industry: Kosher Slaughter (Shechita) and Animal Welfare’ (2011) 42 Victoria University of Wellington Law Review 4, 671.

133 See generally Prevention of Cruelty to Animals Act 1979 (NSW) s 24(1); Animal Welfare Act 1985 (SA) s 43; Prevention of Cruelty to Animals Act 1986 (Vic) s 11.


experiments. In most jurisdictions, a person who complies with an applicable code in their dealings with an animal will be exempted from the offence provisions…134

Medical, pharmaceutical, toxicological and cosmetic research also is exempted by

code of practice. Research bodies in Australia that seek to obtain funding from the National Medical and Health Research Council (NHMRC), the CSIRO or the Australian Agricultural Council must comply with the Australian code for the care and use of animals for scientific purposes.135. Although the current edition was last amended in 2013, it has existed in some form since the late 1970s. The code ‘provides an ethical framework and governing principles to guide the decisions and actions of all those involved in the care and use of animals’ and ‘applies to the care and use of all live non-human vertebrates and cephalopods’.136 Research proposals involving animals must be vetted and approved by an Ethics Committee, usually constituted by senior academics, a veterinarian or RSPCA member, and varying numbers of members of the community. But whilst the research code exemplified a high moral standard of care in research, the reality was that it typified the problems with self-regulation in any industry. In 1989 a Senate Select Committee on Animal Welfare report on Animal Experimentation was published that showed:

In practice, there was little effort made to secure compliance with the Code of Practice by experimenters and institutions. Many ethics committees did not carry out their responsibilities and some institutions did not even have ethics committees in operation. The NHMRC and other funding bodies had no resources to monitor compliance and they depended on statements of compliance from experimenters and institutions.137

Some research in the 1980s and 90s showed that ethics committees generally

rubber-stamped research proposals because ‘researchers had no strong desire to spend time and money looking for alternatives to animal experimentation’.138 As animal welfare came to the forefront of social consciousness,139 so did general political and community pressure gradually bring about an improvement in compliance140 and according to O’Sullivan:141

134 Steven White, ‘Legislating for Animal Welfare: Making the Interests of Animals Count’ (2003)

28 Alternative Law Journal 277, 278. 135 Australian Government, ‘Australian code for the care and use of animals for scientific purposes

8th edition’ (12 November 2014) Publications, <http://www.nhmrc.gov.au/guidelines-publications/ea28>.

136 Ibid. 137 Senate Select Committee on Animal Welfare, Parliament of Australia, Animal Experimentation

(1989) [16.17]. 138 Brett Wright, ‘The Animal Labs’ (Jan / March 1992) Animal Liberation Magazine 39, 16. 139 Heather Dietrich and Renato Schibeci, ‘Beyond Public Perceptions of Gene Technology:

Community Participation in Public Policy in Australia’ (2003) 12 Public Understanding of Science 4, 381-401.

140 Michael Rickard, ‘Meeting community expectations for animal-based science: an Australian perspective’ (2003) 16 ANZCCART News 3, 5.

141 Siobahn O’Sullivan, ‘Transparency and Animal Research Regulation: An Australian Case Study’ (2006) 4 Journal of Animal Liberation Philosophy & Policy 1.


The AEC system has come a long way since [the Senate report in 1989] and it is likely that in Australia research proposals are overwhelmingly approved by an AEC, which is properly constituted…and which takes the task seriously…

But this came at a cost – in some spheres of research, ethics committees became

so difficult to appease that researchers routinely flouted the regulations just to get the research done.142 From an Australian perspective, Lunney highlights this shifting role of animal ethics committees over fifteen years in his essay143 which confirms that the system is still wide open to abuse and prevalent to ‘double standards’144 because of incomplete definitions, focus on production animals and outdated concepts.145

Significant traps also await the moral crusaders who attempt to expose acts they consider to be cruel. His Honour Justice Gallop, as the Magistrate at first instance, said in 1997 ‘[i]t seems ironic that the prosecution can argue that cruelty may be excused on grounds of profit, but that the defendants’ actions to draw attention to that cruelty cannot excuse their harmless trespass’.146 Although the much-cited case of Lenah Game Meats147 dealt substantially with torts and injunctive relief, the facts turned on animal welfare activists filming inside a possum abattoir that was in all respects legally operated. The duty not to publish confidential information obtained by a third party but relating to public interest matters is very wide-ranging148 and affected those same individuals. In a more recent case149 activists from Animal Liberation NSW broke into a farm to gather video evidence of what they alleged was mistreatment of pigs. Despite reviewing the video neither the RSPCA nor the Police took any action against the plaintiff; instead the activists were sued by the plaintiff and ordered to pay general and special damages for their trespass. Most recently Senator Chris Back in Western Australia has introduced a Private Members Bill which seeks to introduce new offences to the Criminal Code (WA), criminalising ‘interference with the carrying on of an animal enterprise’.150 Although this is ostensibly to improve reporting of animal welfare offences to the bodies charged with investigating and prosecuting them, it is nonetheless a ‘hook’ on which many an animal activist might be caught.

These cases highlight the third criticism of current animal welfare regulation, directed as it is at the Ministerial cohort charged with administering the animal welfare acts, and their ability to exempt cruel practices by virtue of either administrative instrument or subordinate legislation.151 Welfare of production animals is a key consideration, both in terms of economic viability152 as well as acceptance of

142 Robert Cribb, ‘Ethical regulation and humanities research in Australia: problems and

consequences’ (2004) 23 Monash Bioethics Review 3, 39-57. 143 Daniel Lunney, ‘Ethics and Australian mammalogy: reflections on 15 years (1991–2006) on an

Animal Ethics Committee’ (2012) Australian Mammalogy 34, 1-17. 144 Ellis, above n 118. 145 Lunney, above n 138, 7. 146 Gordon Robert Henshaw v Patricia Ellen Mark, Lynda Stoner, Margaret Mary Setter and Mark

Anthony Pearson [1997] ACTSC 64 (appeal decision). 147 ABC v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199. 148 Duchess of Argyle v Duke of Argyle [1967] Ch 302; ABC v Lenah Game Meats Pty Limited

[2001] HCA 63; (2001) 208 CLR 199. 149 Windridge Farm Pty Ltd v Grassi & Ors [2011] NSWSC 196. 150 Criminal Code Amendment (Animal Protection) Bill 2015 (WA), Division 385 to Schedule 1. 151 As examples, the Animal Care and Protection Act 2001 (Qld), ss 15 and 217; Prevention of

Cruelty to Animals Act 1979 (NSW), s 35; Animal Welfare Act 1985 (SA), s 44. 152 Noel Maughan, ‘The Impact of Welfare Issues on Farming Practices’ (Paper presented at the

Farm Animal Welfare Conference, Ballarat, 5 September 1986) 15.


agriculture by the wider public.153 But with production animals that welfare must be balanced with economic considerations, and the two do not reconcile easily. Quite often this creates an irreconcilable conflict of interest with the rest of the Ministerial portfolio, which is most often related to the economic maximisation of agriculture, farming and other primary industries. The result is a confusion of priorities evidenced by practices that, absent the Code of practice, would be considered animal cruelty.154 The problem is then compounded by the fact that ‘little information on enforcement activities…is publicly disclosed by the agencies responsible for enforcing the animal welfare standards’.155 Thus the statue is limited to ‘isolated acts of cruelty committed against domestic pets, as opposed to large-scale systemic cruelty in institutions of food, science and sport’.156 Whilst there is some international authority for the concept of animal welfare winning out over primary industry,157 these by no means form the majority.

There is also valid evidence for criticism of the legislative character of the Codes and Regulations themselves. Although each State and Territory has mechanisms to provide an oversight and review of legislative instruments158 the ‘volume of delegated legislation detracts from the efficacy of this form of oversight’.159 According to Ellis, ‘what the Act does – allow institutionalised cruelty to millions of animals – and what it purports to do – protect animals’ welfare – are in direct conflict’.160 A statute can set both a prohibition and a positive duty of care on those with the custody and care of animals but, in the same breath, a legislative instrument issued by the Minister can ‘carve out’ whole industries where those rules simply do not apply. This lack of transparency would seem to violate a long-held rule of jurisprudence that ‘Parliament must squarely confront what it is doing and accept the political cost’.161

A case study illustrates this point. In Tasmania in 1993, Golden Egg Farms was found guilty of seven counts of cruelty under the Cruelty to Animals Prevention Act 1925 (Tas).162 Soon after that decision the Liberal government enacted the Animal

153 Jan Joyce, ‘Animal Welfare - The Graziers' Perspective’ (Paper presented at the Animal Welfare

Conference, Brisbane, 8-9 June 1991) 52. 154 Graeme McEwen, ‘Farm Animals and the Law’ (Paper presented at the New South Wales

Young Lawyers Animal Law Conference, Sydney, 6-7 July 2007) 5. 155 Stephen White, ‘Regulation of Animal Welfare in Australia and the Emergent Commonwealth:

Entrenching the Traditional Approach of the States and Territories or Laying the Ground for Reform?’ (2007) 35(3) Federal Law Review 347.

156 Glasgow, above n 9, 196. 157 Noah v Attorney-General [2002-03] IsrSC 215 (HCJ 9232/01); cited in M Sullivan and DJ

Wolfson, ‘What’s Good for the Goose…The Israeli Supreme Court, Foie Gras and the Future of Farmed Animals in the United States’ (2007) 70 Law and Contemporary Problems 139.

158 Interpretation Act 1987 (NSW), Part 6; Statutory Instruments Act 1992 (QLD), Part 6; Interpretation Act (NT), Division 2 of Part VII; Interpretations Act 1984 (WA), Part VI; Acts Interpretation Act 1915 (SA), Part 3; Interpretation of Legislation Act 1984 (VIC), Part III; Acts Interpretation Act 1931 (TAS), s 47; Legislation Act 2001 (ACT), Chapter 7.

159 Ellis, above n 118, 12. 160 Ellis, above n 118, 9. 161 R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115, 131 (Lord

Hoffmann) cited in K-Generation Pty Limited v Liquor Licensing Court (2009) 237 CLR 501, 520.

162 Clarke v Golden Egg Farm Pty Ltd (Unreported, Hobart Magistrates Court, matter 36539/92, Wright J, 24 February 1993).


Welfare Act 1993 (Tas) which allowed, at section 50(3), for subordinate regulations to be passed that allowed for certain practices to be exempt from the cruelty provisions including, should the Government so decide, battery farming. The Animal Welfare Regulations 1993 (Tas) were duly enacted on 13 December 1993 which at regulations 5, 6 and 6A, authorised the keeping of laying fowl in cages of a similar size used by Golden Egg Farms, having the effect of exempting them from further liability for cruelty offences. An even more disturbing case involved the live export of sheep from Western Australia to Oman, Kuwait and the United Arab Emirates. In 2003 a total of 103,232 sheep were loaded onto the MV Al Kuwait with insufficient feed, water and relief from heat; as a result charges were brought against the company Emmanuel Exports Pty Ltd and its directors for animal cruelty offences under the Animal Welfare Act 2002 (WA). Despite finding the charges proven beyond reasonable doubt, His Honour found that the Australian Meat and Livestock Industry Act 1997 (Cth), the Export Control Act 1982 (Cth), their subordinate Regulations and Orders resulted in an inconsistency between State and Commonwealth law. In so doing, s 109 of the Constitution applied to give the Commonwealth Acts primacy and the animal welfare offences were declared invalid.163 This is certainly not the first time Commonwealth laws and State laws have come into uncomfortable proximity.164

These two case studies touch on the last major problem with the animal welfare Acts, that of enforcement and prosecution. The bodies responsible for enforcement of the animal welfare Acts are the State or Territory’s Police Force, departmental authority(ies), or branch of the Royal Society for the Prevention of Cruelty to Animals (‘RSPCA’). Officers of local councils also have a relatively minor role,165 usually only becoming involved in the collection of stray dogs where it poses either a health, safety or local traffic risk.166 Enforcement officers are often given wide powers to enter premises, seize evidence (including animals), seek and execute search warrants, as well as aconcomitant indemnity from prosecution under most circumstances,167 and the criminal nature of animal welfare offences has been previously canvassed above. Any criticism of the lack of animal welfare enforcement that is directed at the Police Forces is unduly harsh, as Australian Police face a situation similar to the one in the UK in that ‘animal law forms only a very small part of their general duty to enforce the criminal law and investigate the commission of offences’.168 The situation is made worse by remaining enforcement authorities (departmental agencies and the RSPCA) suffering something of a jurisdictional rift over who regulates the welfare of which animals. In Queensland, for example, the departmental authority is Biosecurity Queensland who share the regulatory burden with the RSPCA Queensland. However the delineation between the two bodies is not clear – Biosecurity Queensland appears to regulate stock animals and rural locations, whilst the RSPCA’s remit is companion

163 Department of Local Government & Regional Development v Emmanuel Exports & Anor

(Unreported, Magistrates Court of Western Australia, Magistrate Crawford, 8 February 2008). 164 Song v Coddington [2003] NSWSC 1196, where a Commonwealth AQIS veterinary officer was

charged with animal cruelty offences after confining a dog to a cage to conduct certain examinations.

165 Such as under the Local Government Act 1993 (NSW) or the Local Government Act 2009 (Qld). 166 Office of Local Government (NSW), Circular Number 11-09: Responsibilities of Councils to

Respond to Concerns about Dogs in the Community (3 June 2011) Publications < http://www.olg.nsw.gov.au/sites/default/files/11-09_0.pdf>.

167 Emmerson, above n 12, 22-23. 168 Mike Radford, Animal Welfare Law in Britain: Regulation and Responsibility (2001, Oxford

University Press), 357.


animals (pets), riding schools and pet shops.169 While these delineations are ‘a matter of political-administrative convenience, they are not a legislative requirement’170 and opens the jurisdiction to the risk that neither body will identify or regulate problems appropriately.

Additional problems exist within the RSPCA. The RSPCA in every State is a non-government community-based charity that relies almost solely on fundraising and donations to fund its operations. This funding model seems prima facie inappropriate when the cost of funding a single RSPCA Inspector can be as much as $100,000.171 The complex mechanics, immense resources and skill of legal argument required for criminal prosecution where ‘…an accusatorial process in which the power of the State is deployed against an individual accused of crime’172 is likewise ill-suited to the RSPCA. By way of demonstration, in 2013-14 RSPCA Australia reported investigating 58,591 complaints of animal cruelty nationwide but only 236 matters were prosecuted with 230 ultimately successful (in that the principal or head charges as alleged were admitted to or subsequently proven at trial).173 Although this prosecutorial success rate (nearly 97.5%) is certainly enviable, criminal prosecutions make up less than half of one percent of the RSPCA’s enforcement outcomes. Judges hearing animal cruelty offences are also (with the greatest of respect) notoriously hesitant to impose custodial sentences – although the animal welfare Acts all have maximum custodial sentences attached to offences that range between one to five years,174 imprisonment is a rare finding in prosecutions even when the defendant engages in violent or long-running animal cruelty – even then, sentences of a few months are typical.175

Alternatives to prosecution are also fairly limited. Inspectors in all the States and Territories can seize and take away animals that are suffering cruelty or neglect.176 Inspectors in WA,177 Victoria178 and Tasmania179 can also issue infringement notices, whilst their counterparts in SA180 and Queensland181 can issue written notices to

169 Queensland Department of Agriculture and Fisheries, Enforcing the Animal Care and Protection

Act (4 November 2013) Biosecurity Queensland <https://www.business.qld.gov.au/industry/agriculture/animal-management/land-management-for-livestock-farms/welfare-and-transport-of-livestock/animal-welfare/animal-welfare-law/enforcing-animal-protection-act>.

170 White, above n 45. 171 RSPCA Australia, Animal Cruelty (8 January 2014) About Us

<http://www.rspca.org.au/animal-cruelty>. 172 R v Carroll (2002) 213 CLR 635, 643. 173 RSPCA Australia, RSPCA Australia National Statistics 2013-2014 (1 July 2014) RSPCA

Australia National Statistics < http://www.rspca.org.au/sites/default/files/website/The-facts/Statistics/RSPCA_Australia-Annual_Statistics_2013-2014.pdf>.

174 Above n 12; summarised in RSPCA Australia, What are the penalties for animal cruelty offences? (1 February 2012) RSPCA KnowledgeBase < http://kb.rspca.org.au/What-are-the-penalties-for-animal-cruelty-offences_271.html>.

175 Mitchell v Marshall [2014] TASSC 43; R v Hartwig; Ex parte Attorney-General (Qld) [2013] QCA 295; Towers-Hammon v Burnett [2007] QDC 282; cf. Joyce v Visser [2001] TASSC 116.

176 White, above n 42. 177 Animal Welfare Act 1993 (WA), Part 7A. 178 Prevention of Cruelty to Animals Act 1986 (Vic), Part 3A. 179 Animal Welfare Act 1993 (TAS), Part 7A. 180 Animal Welfare Act 1985 (SA), s 31B. 181 Animal Care and Protection Act 2001 (Qld), Div 5 of Part 2.


provide treatment, food or shelter to distressed or mistreated animals in their care or control. But beyond these measures there are few other options to enhance compliance available to a ‘non-state actor’ such as the RSPCA,182 other than perhaps education and raising public awareness. However, recent damning evidence of live baiting in the Australian greyhound industry183 demonstrates that such mechanisms of ‘conversation between regulator and regulated’184 do not appear to be creating a sufficient degree of deterrence. Without the enforcement mechanisms that exist in other regulatory schemes,185 the words of well-known animal law academic Geoff Bloom ring true:

[B]y placing animal welfare in a criminal framework, the remedies for a breach… such as a fine or imprisonment are intrinsically negative and backwards looking. They are concerned with the harm caused, rather than future harms to be prevented (or even promotion of future welfare) and their orientation is punishment, rather than reform and help with improvement in conduct. It may well be that, in certain cases, criminal remedies are appropriate but without a parallel administrative framework, the criminal framework must remain a blunt instrument for the improvement of animal welfare.186

The problems with animal welfare law are not specific to Australia, nor are they

easily repaired with government policy or economic incentive. With fractured, disparate and poorly expressed legislative frameworks overburdened with regulation and exemptions, conflicting interests between industry and society, and an underequipped and underfunded regulator, it would certainly seem that the stage might be set for a wider involvement of Commonwealth power in the regulation of animal welfare law. But the lessons from both the Canadian and New Zealand experiences should make it clear that the problem is not a simple one.

IV WHAT FORM?

It is clear that animal welfare is not a problem that can be immediately and

completely fixed solely by Parliamentary lawmaking, as a great degree of social discourse and education is also required (which is beyond the scope of this paper). Amending the law will produce more than just moral and economic benefits; other areas of amelioration include increased standards of public health, greater economic development187 and better investments in more sustainable industries.188 Long term

182 Julia Black, ‘Decentring Regulation: The Role of Regulation and Self-Regulation in a Post

Regulatory World’ (2001) 54 Current Legal Problems 103. 183 Caro Meldrum-Hanna, ‘Greyhound racing: Piglets, possums and rabbits used as live bait in

secret training sessions, Four Corners reveals’ (17 February 2015) ABC News <http://www.abc.net.au/news/2015-02-16/live-baiting-expose-to-rock-greyhound-industry/6109878>

184 Julia Black, ‘Talking About Regulation’ (1998) Public Law 77. 185 For example, enforceable undertakings and compliance notices under the Fair Work Act 2009

(Cth). 186 Geoff Bloom, ‘Regulating Animal Welfare to Promote and Protect Improved Animal Welfare

Outcomes under the Australian Animal Welfare Strategy’ (Paper presented at the Australian Animal Welfare Strategy International Animal Welfare Conference, Gold Coast, 1 September 2008) 32.

187 Jessica Vapnek and Megan Chapman, ‘Legislative and regulatory options for animal welfare’ (2010) FAO Legislative Study, Food and Agricultural Organisation of the United Nations, Rome.


evidence also tells us that harsher animal cruelty laws may ameliorate future offenders189 as well as contributing positively to families and society as a whole.190 There is some international evidence for the transformative effect of federal statutes – Norway recently passed amendments to its own Animal Welfare Act in 2010. Under this new Act, animals are vested with statutory recognition of an intrinsic value, irrespective of their financial value. Local veterinarians with commercial practices are appointed as animal welfare inspectors, easing the burden on local enforcement officers. Finally, in what is considered a world first, cruelty complaints are first referred to a panel of community members (animal welfare committees) for assessment prior to the involvement of police.191 The Norway Act takes the approach that ‘individuals must be co-responsible for the interpretation and implementation of the central moral concepts in the law’.192 So what should the Commonwealth do?

In solving a problem through lawmaking at the Commonwealth level, it has been long held by the High Court that ‘[a]t issue is not the reasonableness or desirability of a law…but the extent or degree of its connection with a constitutional head of power’.193 So at the outset it should be noted that it is not realistic that Australia seek to enshrine animal welfare in the Constitution. Although some jurisdictions such as Switzerland, India, Germany and Ecuador have achieved success by doing so,194 the Australian history of Constitutional referendums is poor. The ‘race power’ of s 51(xxvi) of the Constitution was criticised as early as 1910,195 but despite a Royal Commission into the Constitution in 1929196 and various political and social upheavals including labour disputes and unfair treatment,197 it took the Australian government until 1967 to conduct the Referendum. It is ironic to observe that the race power was originally

188 David Fraser, ‘Animal welfare assurance programs in food production: A framework for

assessing the options’ (2006) 15 Animal Welfare 93, 104. 189 Paul Wilson and Gareth Norris, ‘Relationship between Criminal Behaviour and Mental Illness in

Young Adults: Conduct Disorder, Cruelty to Animals and Young Adult Serious Violence’ (2003) 10 Psychiatry, Psychology and Law 239; Mark Dadds, Cynthia Turner and John McAloon, ‘Developmental Links between Cruelty to Animals and Human Violence’ (2002) 35 Australian and New Zealand Journal of Criminology 363; Randall Lockwood, ‘ Animal Cruelty and Violence against Humans: Making the Connection’ (1999) 5 Animal Law 81; Katrina Sharman, ‘Sentencing Under Our Anti-cruelty Statutes: Why Our Leniency Will Come Back To Bite Us’ (2002) 13 Current Issues in Criminal Justice 333.

190 Charlotte Lacroix, ‘Another weapon for combating family violence: Prevention of animal abuse’ (1998) 4 Animal Law 1; Kirsten E. Brimer, ‘Justice for Dusty: Implementing Mandatory Minimum Sentences for Animal Abusers’ (2008) 113 Penn State Law Review 649.

191 Ellen-Marie Forsberg, ‘Inspiring Respect for Animals Through the Law? Current Development in the Norwegian Animal Welfare Legislation’ (2011) 24 Journal of Agricultural and Environmental Ethics 351.

192 Ibid, 362. 193 Cunliffe v Commonwealth (1994) 182 CLR 272. 194 Bruce Wagman and Matthew Liebman, A Worldview of Animal Law (Carolina Academic Press,

Durham, 2011); Antoine Goetschel, ‘The Animal Voice: Ensuring Interests Through Law’ (2014) 41(7) Brief 32.

195 Report of the Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, 16 January 2012, 15.

196 Ibid, 18. 197 Reconciliation Australia, Submission to the Joint Select Committee, Constitutional Recognition

of Aboriginal and Torres Strait Island Peoples, 3 December 2014.


enacted because it was believed that the lower social status of Aborigines made them more vulnerable to abuse, thereby requiring legislative intervention198 – the same might also be said for animals under our current laws.

Could the common law ‘evolve’ to fill the gaps? The positive duties beginning to be enacted in some animal welfare Acts199 should put some judges on notice that community expectations are that these duties involve a high standard to discharge.200 The uniform adoption of these positive duties of care as a statutory solution might be preferable to the wider public where:

On the one hand, the intention is to prevent cruel treatment by proscribing particular forms of behaviour. On the other, the aim is to promote improved standards of welfare by identifying those matters which are important to animals, and translating these into rules, guidance, and advice, to which those responsible for their care are required to have due regard.201

Unfortunately there are some practical problems with relying either on the scope

of the duty or the role of the judiciary to appropriately interpret it. On the scope of the duties Bluff and Gunningham said:

… [it] entail[s] considerable uncertainty for duty holders as well as for … inspectors. The lack of guidance provided to duty holders about the outcomes required of them … means that it is uncertain whether the duty of care has been complied with until and unless a matter is actually tested in court.202

Although speaking of OHS duties, their comments are poignant in animal welfare

cases where the argument might be advanced that the common law is a ‘ripe mechanism’ to transform statute.203 Lord Diplock, in his seminal ‘Courts as Legislators’ address said:

…it seems to me that judge-made law, if judges will make proper use of its potentialities, is the only practicable way of laying down rules of conduct appropriate in the unforeseeable variety of circumstances which will in fact arise…If I am right in suggesting that the broad organisation of society is for Parliament, the regulation of human relationships within the framework of that organisation is for the Courts…204

198 Justin Malbon, ‘The Race Power Under the Australian Constitution: Altered Meanings’ [1999]

21 Sydney Law Review 1, 85. 199 Animal Welfare Act 1992 (ACT) ss 9-10; Prevention of Cruelty to Animals Act 1979 (NSW) s 8-

11; Animal Welfare Act (NT) ss 7, 8 and 15; Animal Care and Protection Act 2001 (Qld) s 17; Animal Welfare Act 1985 (SA) s 13(3)(b); Animal Welfare Act 1993 (Tas) ss 6-7; Prevention of Cruelty to Animals Act 1986 (Vic) s 9(1)(f); Animal Welfare Act 2002 (WA) s 19(3).

200 George Seymour, ‘Animals and the law: towards a guardianship model’ (2004) 29 Alternative Law Journal 4, 183.

201 Michael Radford, Animal Welfare Law in Britain: Regulation and Responsibility (Oxford University Press, 2001) 261.

202 Elizabeth Bluff and Neil Gunningham, ‘Principle, Process, Performance or What? New Approaches to OHS Standards Setting’, in Elizabeth Bluff, Neil Gunningham and Richard Johnstone (eds), OHS Regulation for a Changing World of Work (2004) 17.

203 Thomas Kelch, ‘Toward a Non-Property Status for Animals’ (1998) 6(3) New York University Environmental Law Journal 531, 581.

204 Lord Diplock, ‘The Courts as Legislators’ (1978) The Lawyer and Justice 263, 278.


With respect, His Lordship’s suggestion unfortunately ignores three very fundamental flaws in our animal law framework. The first is that the majority of prosecutions are dealt with summarily by Magistrates who do not issue fully accessible judgments. In addition, as we have seen, the appellate judiciary is reluctant to distil the relevant duty principles.205 The second is the overwhelming public perception that the existence of the animal welfare laws is sufficient for their belief that they actually work.206 Finally, it fails to account for the greatest driver in law reform more generally – that of public discourse and opinion driving the political will to have ‘society change the law’.207

Certainly the WorkChoices case208 demonstrates that even a politically and publically undesirable law with sufficient Constitutional connection will be held to be constitutional, and it would be very easy for the Commonwealth to do something similar given that ‘as most animal businesses are conducted by company vehicles (whether for taxation reasons or to limit liability), the Commonwealth’s corporations power could be relied upon to regulate them’.209 But history tells us that the apparent lack of a Constitutional head of power has not been the constraint on proposed animal welfare legislation; rather it has been Parliament’s reluctance to pass it. There were attempts by Andrew Bartlett MP of the Australian Democrats to introduce first the National Animal Welfare Bill 2003 (Cth) and then the National Animal Welfare Bill 2005 (Cth). Both Bills sought to rely on the external affairs, corporations and trade and commerce powers of the Constitution210 (although this was obviously never tested). Both Bills sought to establish a ‘National Animal Welfare Authority’ with the regulatory power to ‘to do whatever is necessary in order to achieve a reasonable balance between the welfare needs of animals and the interests of people who use animals for a livelihood’.211 The Authority would have been comprised of Ministerial appointees from the Commonwealth, commercial producers of animal products, animal welfare NGOs, community, animal scientists and an ‘animal ethicist’,212 as well as employing inspectors with wide powers and Commonwealth funding. The Authority would have had regulatory power over domestic and production animals, animals in research and experimentation, and export and import. The Act itself would have operated concurrently with existing State and Territory statutes (as well as existing export laws), with the option for the Minister to apply State laws if they were more stringent.213 Most importantly, both Bills included the most comprehensive definition of ‘animal’ and specification of cruelty offences of any animal welfare Act to date.214

205 Various cases, above n 167. 206 Steven White, ‘Exploring Different Philosophical Approaches to Animal Protection in Law’ in

Peter Sankoff and Steven White (eds), Animal Law in Australasia: A New Dialogue (Federation Press, 2009) 92.

207 Jonathan R Lovvorn, ‘Animal Law in Action: The Law, Public Perception, and the Limits of Animal Rights Theory as a Basis for Legal Reform’ (2006) 12 Animal Law 133, 149.

208 WorkChoices, above n 75. 209 Graeme McEwen, Animal Law: Principles and Frontiers (Barristers Animal Welfare Panel,

2011) 24. 210 Glasgow, above n 9, 198. 211 Commonwealth, Parliamentary Debates, Senate, 11 August 2003, 12986-12988 (Andrew

Bartlett). 212 National Animal Welfare Bill 2003 (Cth), clause 10. 213 Ibid clause 6. 214 Ibid Schedule 1 and Part 4 respectively.


But none of these considerations made any difference – both Bills failed to proceed through the Senate, lapsing on 12 February 2008. Other attempts to pass the Voice for Animals (Independent Office of Animal Welfare) Bill 2013 (Cth) and Voice for Animals (Independent Office of Animal Welfare) Bill 2013 [No. 2] (Cth), which would have enacted an independent Office of Animal Welfare to provide Commonwealth reviews of livestock standards, the AAWS, Model Codes and Departmental policies,215 likewise failed on 12 November 2013 with the lapsing of Parliament.

Two other statutory solutions that avoid constitutional limitations are applied / referred law systems and use statute to establish a private cause of action. Applied law or referred law systems216 are currently used in other regulatory regimes such as workplace relations,217 early childhood education218 and health practitioner regulation.219 The applied law system works by enacting a law using a host State jurisdiction with subsequent jurisdictions applying that law by subsequent enactments (some modifications are often necessary, such as names of responsible regulatory agencies, tribunals or Courts). The referred law system on the other hand operates by a Commonwealth Act applying to the States and Territories following a referral of power by the State governments under s 51(xxxvii) of the Constitution. The other option is to amend rules of standing to grant animals locus standi for civil suits, either directly or via a litigation guardian. Whilst this proposal is hardly new,220 it has been reinvigorated recently by scholars such as Professor Cass Sunstein, who argue that animals ‘have legal rights, at least of a certain kind’ and deserve nothing less than that ‘animal welfare statutes … be amended to grant a private cause of action against those who violate them, so as to allow private claimants to supplement agency enforcement efforts.’221

Applied and referred law schemes are, compared to amending rules of standing, certainly a simplistic option, easier to implement and probably more socially conventional. But the constitutional validity of applied law schemes was questioned by the High Court in Hughes.222 French J (as he then was) went on to state extracurially that such systems do not create one uniform law, but a ‘mosaic of similar laws’.223 If we accept His Honour’s statement as fact then Australian animals would fare no better under an applied or referred scheme than they do currently. The furious attempts by Commonwealth Parliamentary counsel post-Hughes to insert specific explanatory clauses into applied and referred law schemes have not clarified the ambiguity.224 Hughes clauses also do not settle the Melbourne Corporation doctrine225 applying to Commonwealth laws that directly or constructively achieve a curtailment in State constitutional power, nor do they resolve the inconsistency provision at s 109 of the

215 Voice for Animals (Independent Office of Animal Welfare) Bill 2013 (Cth), s 9. 216 Joe Edwards, ‘Applied Law Schemes and Responsible Government: Some Issues’ in Glenn

Patmore and Kim Rubenstein (eds), Law and Democracy (ANU Press, 2014) 85. 217 Fair Work Act 2009 (Cth). 218 Education and Care Service National Law Act 2010 (Vic). 219 Health Practitioner Regulation National Law Act 2009 (Qld). 220 John Tischler, ‘Rights for nonhuman animals: a guardianship model for dogs and cats’ (1976) 14

San Diego Law Review 484. 221 Cass Sunstein, ‘Standing For Animals’ (Public Law and Legal Theory Working Paper No 6,

University of Chicago Law School, 30 November 1999) 3. 222 R v Hughes [2000] HCA 22; 202 CLR 535. 223 Justice Robert French, ‘Horizontal Arrangements: Competition Law and Cooperative

Federalism’ (2008) 15 Competition and Consumer Law Journal 255, 261. 224 Edwards, above n 208, 102. 225 Melbourne v Commonwealth (1947) 74 CLR 31.


Constitution which arose in the Emmanuel Exports case.226 The role of State regulators under an applied or referred law scheme is also questionable – Professor Cheryl Saunders considers such schemes as ‘mired in complexities’, such as whether State or Commonwealth functions or powers are being exercised at relevant times, and whether those functions are conferred or accepted on or by the Commonwealth.227

Amending the rules of standing on the other hand would be much harder. Firstly it would require Parliamentary displacement of a long held position in Australian law that neither animals nor their representatives (such as lobby or animal rights groups) have standing to bring actions against another party.228 The test developed by the High Court in ACF, which emphasises a ‘genuine special interest’ as opposed to a ‘mere intellectual belief’, has been applied in a variety of animal welfare interest cases since,229 with similar bars to standing in Canadian,230 US231 and UK232 jurisdictions. Giving standing to beings long considered non-sentient and without any direct control over their own lives might also seem anathematic to the wider community – according to Professor Stone ‘until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of…those who are holding rights at the time’.233 Although this view is largely a function of history it does raise the question of what happens if animals were given their own legal personhood. The most compelling argument against personhood for animals is actually one that supports animals’ position as property because according to Tannebaum, abolishing animals’ property status would mean:

[I]t would be impossible to buy or sell animals, to pass their ownership on through inheritance, to tax their value, or to use them in a myriad of ways (such as sources of food and fiber [sic]) that will continue to be regarded as acceptable by the great majority of people.234

Granting a blanket standing to animals also fails to take into account the varying

cognitive capacities of different species235 and their capability to achieve usefulness to society.236 Animals that do not meet an objective test of ‘humanness’ are likewise

226 Above n 155. 227 Cheryl Saunders, ‘A New Direction for Intergovernmental Arrangements’ (2001) 12 Public Law

Review 274. 228 Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493. 229 For example, Animal Liberation Ltd v Department of Environment and Conservation [2007]

NSWSC 221. 230 Hughes and Meyer, above n 99. 231 Lauren Magnotti, ‘Pawing Open the Courthouse Door: Why Animals’ Interests Should Matter

When Courts Grant Standing’ (2006) 80 St John’s Law Review 1, 455. 232 Robert Garner, ‘Political Ideology and the Legal Status of Animals’ (2002) 8 Animal Law 77. 233 Christopher Stone, Should Trees Have Standing? Toward Legal Rights for Natural Objects

(William Kaufman Publishers, 1974) 8. 234 Tannenbaum, above n 3, 593. 235 Steven Wise, ‘Dyson Lecture on Nonhuman Rights to Personhood’ (2013) 30 Pace

Environmental Law Review 1278. 236 Ani Satz, ‘Animals as Vulnerable Subjects: Beyond Interest-Convergence, Heirarchy and

Property’ (2010) 16 Animal Law 65.


likely to fall short of any grant of legal personhood.237 Wholesale elimination of animals as some form of property is also unlikely to find much support in a society where Tannenbaum’s maxim still holds true.238

Of course one of the problems with any of the proposed methods of proposed regulation is that, like any industry, the option exists for major companies to relocate operations to a jurisdiction where laws are not so stringent. Animal activists in Australia and the UK have already forced the relocation of animal cosmetic testing laboratories to more relaxed jurisdictions in China and Singapore.239 Animal fur, long considered the bane of designers and runway models, is now back in fashion and over 80% of it is said to come from farms in South-East Asia.240 Lastly, years before the revelations of live baiting in Australia’s greyhound racing industry surfaced, there was evidence that greyhounds exported to China that failed training were routinely executed.241 Changing the regulatory landscape in Australia is likely to see a continuation of this practice – but this is unfortunately not a matter that the Commonwealth can address within its sovereign territory.

To be successful then, a middle path must be reached – a solution that respects animals as holding certain legal rights to fair and equitable treatment, whilst we also admit the hard and uncomfortable fact that animals exist (to an extent) for our use in food, for companionship or enjoyment.242 This middle road would be served by what several scholars have already proposed as a guardianship model for animals, copying the principles adopted in mental health or childrens’ proceedings.243 As Tischler stated:

The essence of guardianship is ‘care and compassion’ and an acceptance of responsibility for both the physical and mental well-being of the ward. The guardian is the protector of the ward, who by reason of ‘weakness, incompetence, youthfulness, or other legally recognised disability,’ needs an intermediary to put her on more equal footing with the rest of society…244

Of greatest resonance with these principles is the suggestion of modelling a

guardianship law based on a law similar to the Children and Young Persons (Care and Protection) Act 1996 (NSW)245. ‘Animal’ would be defined as widely as possible, perhaps using the progressive definition from the Animal Care and Protection Act 2001 (Qld). The underlying principles of the ‘Animal Guardian Act’ would be the same: the promotion of best interests,246 the respect of freedoms, the enhancement of development, whilst simultaneously allowing for the ‘owner’ to be heard about

237 David DeGrazia, ‘On the Question of Personhood Beyond Homo Sapiens’ in Peter Singer (ed) In

Defense of Animals: The Second Wave (Blackwell Publishing, 2006) 44. 238 David Favre, ‘Integrating Animal Interests into our Legal System’ (2004) 10 Animal Law 87, 88-

91. 239 Michael Backman, ‘Activists force the pigs to fly to Asia’, Melbourne Age (Melbourne), 14

December 2005, 13. 240 Tara Watson, ‘Cruelty is coming back into fashion’, The Drum (Ultimo), 1 October 2013,

Opinion. 241 Emma Younger, ‘Gillard urged to end greyhound live exports’, ABC News (Ultimo), 21 January

2012, 15. 242 See generally Jane Nosworthy, ‘The Koko Dilemma: a Challenge to Legal Personality’ (1998) 2

Southern Cross Law Review 1. 243 Marguerite Hogan, ‘Standing for Nonhuman Animals: Developing a Guardianship Model from

the Dissents in Sierra Club v. Morton’ (2007) 95 California Law Review 513. 244 Tischler, above n 212, 473. 245 Pollard, above n 49. 246 Gibson, above n 48.


decisions in the animal’s life. A Court similar to the Children’s Court would be established as arbiter, as ‘a tribunal lacks the authority to punish wrongdoers’.247 This also deals with the current criticisms of the enforcement capabilities of the RSPCA, Police and welfare inspectors, as it is better to operate under a judicial framework than ‘confer the responsibility of animal guardianship in the cumbersome bureaucracy of a government department’.248 Parties with standing could apply for emergency orders for the removal of animals from those treating them in a manner that contradicts their best interests. The ‘Animal Guardian Act’ might even allow for (without requiring) the creation of a regulator similar in nature to the Public Guardians of the States and Territories. Such a regulator would be empowered (and more importantly funded) by the Commonwealth to investigate animal abuse, neglect or exploitation, a position supported by the current discussion of federalising human guardianship.249 Finally, as an Act of the Federal Parliament, the ‘Animal Guardian Act’ would have jurisdiction in all of Australia’s sovereign territory and would give proactive support to any future animal welfare developments on the international stage.

Of course there are problems with this approach, the first and most obvious being developing a common understanding based on what an animal’s ‘best interests’ actually are when those beings cannot communicate it to us.250 Such answers are not simple and depend on ecology, zoology, neurobiology and a host of other fields of expertise.251 If we could then define or accept what those best interests are, the guardianship model would inevitably result in conflict over who may exercise an animal’s rights in the pursuit of those interests.252 Then even if such views could be uniformly applied, the judiciary have been slow to recognise the public drive for recognition of animals as ‘more than property’.253 But the Norway experience254 and the UDAW255 demonstrates that developing a socially reflective idea of best interests is not an insurmountable obstacle. There is already legislative scope for the Court to appoint guardians ad litem; there is no cogent reason that one could not be appointed for an animal. An animal interests group may also attract standing to appear as amicus curiae where conflict arises,256 or a group similar to the Environmental Defender’s Offices in Australia, the US and Canada might also fill that role.257 And the mere fact that the answers to the ‘best interests’ questions are not simple has not prevented

247 Ibid. 248 Ibid. 249 John Chesterman, ‘The Future of Adult Guardianship in Federal Australia’ (2013) 66 Australia

Social Work 1, 26. 250 Gary Francione, Animals, Property and the Law (Temple University Press, 1995) 65. 251 Katrina Sharman, ‘Animal Law: An Emerging Field’ (2006) 31 Alternative Law Journal 4, 227. 252 George Seymour, ‘Animals and the law: towards a guardianship model’ (2004) 29 Alternative

Law Journal 4, 183. 253 Patrick Barkham, ‘Sandra the ‘nonhuman person’ is sadly not the face of a welfare revolution’,

The Guardian (Sydney), 23 December 2014; The People of the State of New York ex. rel. the Nonhuman Rights Project Inc. on behalf of Tommy v Patrick Lavery (NY Sup Ct App, 3rd Cir, 518336, 8 October 2014).

254 Forsberg, above n 183. 255 Gibson, above n 48. 256 Pollard, above n 49. 257 Ben Boer, ‘Legal aid in environmental disputes’ (1986) 3 Environmental and Planning Law

Journal 22, 35.


Australia establishing solid yet progressive guardianship frameworks for young children, based on granting ‘a status commensurate with their capacities’.258

Such a guardianship model would also require a reinvigoration of judicial decision-making (something which statute alone cannot do) to achieve what Lord Diplock called the ‘regulation of relationships’ by the refinement of the intent of the Parliamentary drafters according to the standards and policies of society.259 The changes in standing do not remove any of the existing protections that animals receive as items of property260 but merely reflect their legal rights as special or unique classes of property, in the same way that ships and companies already do.261 It also circumvents De Grazia’s ‘humanness’ test for granting locus standi.262 The changes also do not elevate animals to personhood in any other sense, although this hardly matters if one accepts the utilitarian view of what constitutes a person at law.263 But the benefits of doing so are legion – White describes the granting of standing to animals as ‘perhaps the single most effective measure to improve enforcement’,264 supported by Francione stating that ‘standing is a prerequisite for enforcement of rights’.265 A grant of standing to an animal guardian will likely extend to other areas of law: judicial review of decisions affecting animals may reverse the injustices visited on protected species by overzealous Primary Industry Ministers.266 Animal guardians ad litem may be able to sue for the same common law remedies available to their human counterparts.267 Animal guardians might bring criminal charges against the abusers of their wards, similar to a system proposed in Canada;268 although the adoption of the Canadian position would require a far greater modification of the criminal law framework than either scholars or advocates are currently comfortable with.269 Such standing is also likely to be more than just cosmetic – both White and Finkelstein

258 Seymour, above n 244. 259 Steven Wise, ‘Dismantling the Barriers to Legal Rights for Nonhuman Animals’ (2001) 7

Animal Law 9, 13. 260 Tannenbaum, above n 3. 261 White, above n 1; Rebecca Huss, ‘Valuing Man’s and Woman’s Best Friend: The Moral and

Legal Status of Companion Animals’ (2002) 86 Marquette Law Review 47, 48-50; David Favre, ‘Living Property: A New Status for Animals within the Legal System’ (2010) 93 Marquette Law Review 1021; Kendra Frew, Changing the Legal Status of Non-Human Animals: An Argument for their Transition from Property to Legal Personhood (Honours in Law Thesis, Murdoch University, 2014).

262 Taimie Bryant, ‘Similarity or Difference as a Basis for Justice: Must Animals Be Like Humans to Be Legally Protected from Humans?’ (2007) 48 Law and Contemporary Problems 207, 211.

263 John Dewey, ‘The Historical Background of Corporate Legal Personality’ (1926) 35(6) Yale Law Journal 655.

264 White, above n 131, 280. 265 Francione, above n 242, 49. 266 Kathleen Mack, ‘Standing to Sue under Federal Administrative Law’ (1986) 16(4) Federal Law

Review 319. 267 Enger McCartney-Smith, ‘Can Nonhuman Animals Find Tort Protection in a Human-Centered

Common Law’ (1998) 4 Animal Law 173; David Favre, ‘Judicial Recognition of the Interests of Animals - A New Tort’ (2005) Michigan State Law Review, 333.

268 Sophie Gaillard and Peter Sankoff, ‘Bringing Animal Abusers to Justice through Independent Means: Private Prosecutions and the Enforcement of Canadian Animal Protection Legislation’ in Peter Sankoff, Vaughan Black and Katie Sykes (eds), Canadian Perspectives on Animals and the Law (Irwin Law, 2015).

269 Graeme McEwen, above n 201, 28; Gaverick Matheny and Cheryl Leahy, ‘Farm-Animal Welfare, Legislation, and Trade’ (2007) Law and Contemporary Problems 325, 337; Jennifer Rackstraw, ‘Reaching for Justice: An Analysis of Self-Help Prosecution for Animal Crimes’ (2003) 9 Animal Law 243.


separately argue that referring to pet owners instead as pet ‘guardians’ creates an implicit requirement to provide a better level of treatment than is implied with mere ownership.270

VI CONCLUSION

Animal welfare, animal rights and animal cruelty are concepts that are built on legally and politically sensitive ground. The current frameworks at international, national and regional levels in Australia and other common law jurisdictions are riddled with inconsistencies, legal fictions and creative exemptions. Whilst arguments exist for the maintenance of the status quo, or implementing reform of the existing frameworks, the current animal welfare law and its regulators are fragmented, overburdened and achieving underwhelming results. Animals deserve a degree of legal recognition and protection at least equal to that which our society offers a ship or a large company. What is required to do this is a strong direction from the Commonwealth government to establish a guardianship system that identifies and enshrines either the Universal Declaration of Animal Welfare, or an equivalent statement of intention such as Mellor’s Domains or Quality of Life, as being a codification of animals’ best interests. Modelling itself on our progressive and comprehensive child protection laws, beneath the guardianship system there could evolve a lively and invigorated juridical debate in the ‘Animals Court’. Those judges entrusted to resolve disputes between the guardians of ward animals and those who seek to curtail or abuse their best interests must do so equitably, and punish harshly those who would deal with our non-human partners maliciously or recklessly.

270 Susan Finkelstein, ‘High Noon for Animal Rights Law: The Coming Showdown between Pet

Owners and Guardians’ (2005) 62 Bellweather 18, 20; Steven White, ‘Companion Animals: Members of the Family or Legally Discarded Objects?’ (2009) 32 University of NSW Law Journal 3, 876.

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