Federal Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Federal Law Review |
|
Steven White[*]
Human treatment of other animals has been the subject of intense scholarly and more general public deliberation for many years, especially in the wake of the 1975 publication of Australian philosopher Peter Singer's book Animal Liberation.[1] In the United States, this debate has permeated the discipline of law to the extent that there are now more than 90 animal law courses conducted in universities around the country,a significant and growing scholarly literature, multiple edition textbooks[2] and dedicated law journals.[3] Despite the Australian provenance of a major contributor to the contemporary philosophical debate, the Australian legal academy has shown relatively little interest in this important area.[4] The aim of this article is to contribute to the fledging Australian legal scholarship in animal law by critically analysing the respective roles of the Commonwealth, States and Territories in the regulation of animal welfare, focussing principally on the welfare of companion and farmed animals.
The regulation of animal welfare has long been the responsibility of the States and Territories. The Australian Constitution does not specifically address animal welfare matters and, historically, the Commonwealth's role in this area has not been a significant one. However, institutional demands for increased national and international cooperation on matters of animal welfare are forcing the Commonwealth to take a more active role. Despite a lack of specific constitutional power, the Commonwealth has assumed an increasingly influential position in the regulation of animal welfare, especially concerning farmed animals.
By contrast with its far-reaching intervention in other areas of regulation in which the States and Territories have formerly held primary responsibility, such as industrial relations,[6] the Commonwealth has been much more respectful of 'States' rights' in the area of animal welfare. It will be argued that this reticence serves only to entrench the flawed approach to regulation adopted by the States and Territories, centred on a prohibition against cruelty and a positive duty of care ('the standard regulatory approach'). It will be argued that the standard regulatory approach is deficient in a number of respects, particularly in the regulation of the treatment of farmed animals. First, despite the adoption of an anti-cruelty standard and a positive duty of care, whole categories of animals, including farmed animals, are exempted from the protection of these standards. Second, even where the standards remain applicable, they are not strictly enforced. Third, more fundamentally, regulatory standards fall well short of adequately addressing the relevant risk (ie that animals, as sentient creatures, will not be provided with the necessary care for a decent life).
The standard regulatory approach is marked by an underlying irrationality — the insistence on treating farmed and companion animals differently, even though both categories comprise sentient creatures capable of feeling pain.[7] It will be argued that, despite increasing Commonwealth influence in the area of animal welfare regulation, there is little evidence of a Commonwealth challenge to this irrationality. This is perhaps not surprising given that in two areas where the Commonwealth has exercised direct regulatory responsibility for the treatment of animals — the live export of farmed animals and trade in wildlife — irrational distinctions are made in the application of welfare standards.
Part II of this article provides a brief overview of the history of animal welfare regulation in Australia. The prevailing regulatory approach of the States and Territories to the treatment of companion and farmed animals is described and critically assessed.
Part III considers some constitutional limitations on Commonwealth power to regulate in this area. It then considers two areas in which the Commonwealth has been able to directly regulate animal welfare — live export of farmed animals and trade in wildlife. The former, in which the Commonwealth has largely allowed industry self-regulation, has been marked by regulatory failure. Different regulatory welfare standards applicable to live export of farmed animals on the one hand, and export of wildlife on the other, will be highlighted.
Part IV contends that despite constitutional limitations the Commonwealth exerts a growing influence on the regulation of animal welfare. It is argued that although the role of the Commonwealth has the potential to be quite far-reaching, the Commonwealth's major contribution to date, the development of the Australian Animal Welfare Strategy,[8] merely endorses the standard regulatory approach of the States and Territories, and is for that reason flawed.
The first Australian anti-cruelty legislation was enacted in Van Dieman's Land in 1837.[9] New South Wales enacted legislation of this type next, although not until 1850,[10] and other colonies followed in the 1860s.[11] Jamieson argues that this legislation, consistent with its English antecedents, was premised at least partly on a desire to exert some control over the 'lower classes', an issue of some concern following revolutions in Europe in 1848 and the emergence of universal suffrage.[12] Initially, such legislation was not separately labelled as 'animal welfare' or 'anti-cruelty' legislation. Instead, animal cruelty offences were included in criminal laws:
The growth of animal cruelty legislation in the colonies as a means of social control is reinforced by the early inclusion of such provisions almost exclusively in colonial police offences laws, remaining so in Victoria as late as 1966. The legislation of all four colonies active in animal welfare in the 1860s is to be found in Police Acts.[13]
The early legislation established a broadly expressed prohibition on cruelty to animals.[14] Following the reforms of the 1860s, this broad prohibition was refined, becoming more particular and, importantly, subject to a range of exemptions. The fundamental structure of anti-cruelty legislation, established in the 1850s and 1860s, and refined through exemptions, remains in place today.[15]
The key plank of such legislation is to criminalise cruel acts against animals (eg '[a] person must not be cruel to an animal'[16]). This broadly expressed standard is usually qualified such that it is not cruelty per se which is illegal, but acts causing unnecessary suffering. For example, s 18(2) of the Animal Care and Protection Act 2001 (Qld) defines animal cruelty as including 'pain that, in the circumstances, is unjustifiable, unnecessary or unreasonable'. In Victoria, the offence of cruelty is exclusively defined by listed practices, including acts or omissions leading to 'unreasonable pain or suffering'.[17]
Early in the 20th century, the States began including exemptions for particular types of farming practices, such as the dehorning of cattle, castration, spaying, ear-splitting and branding.[18] In a further significant expansion of this area of exemption in the 1970s and 1980s, the States shifted to a model of blanket exemptions for farming practices. Jamieson gives the example of Victoria, which in 1980 amended anti-cruelty legislation to provide that 'no farming activity would infringe the Act when undertaken "in accordance with accepted farming practice".'[19] The inclusion of such exemptions is consistent with Australia's traditionally significant reliance on rural industry. As Jamieson suggests:
Australia being a country so heavily dependent even today on the activities of its rural sector, one would expect in any utilitarian humanist calculation substantial concessions to that industry from the operation of the anti-cruelty laws in recognition of its fundamental importance to the Australian economy.[20]
The inclusion of significant exemptions remains in place today. Their operation can be broadly summarised as follows:
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 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. Codes [may] take the form of delegated legislation, and compliance may or may not be compulsory. Other exemptions in some of the statutes include Aboriginal or Torres Strait Islander custom or tradition, slaughter of an animal as part of religious faith, self-defence against an animal, normal animal husbandry, hunting, and acts controlling feral animals and pests (although in the latter case there is usually a requirement that as little pain as reasonable be caused).[21]
A notable development in anti-cruelty legislation since the 19th century is the inclusion of a positive duty of care owed to animals. A prohibition on cruelty is negative in character, establishing what a person must not do to animals. More recently, some of the States and Territories have included the imposition of positive duties on those responsible for animals. For example, s 17 of the Animal Care and Protection Act 2001 (Qld) requires a person in charge of an animal to take reasonable steps to meet an animal's needs, including the provision of food, water and suitable accommodation or living conditions; to enable the animal to display normal behaviour; and to treat disease or injury. Such provisions recognise that animal welfare can require more than a mere prohibition against cruelty.
Although there is some variation between the States and Territories, the typical model of enforcement of animal welfare law limits the authority to enforce regulatory standards to agents of three authorities: the police, a departmental authority and the Royal Society for the Prevention of Cruelty of Animals ('RSPCA').
The role of the police is generally limited. In Australia, as in the United Kingdom, 'for the police, animal law forms only a very small part of their general duty to enforce the criminal law and investigate the commission of offences'.[22]
In some jurisdictions, the RSPCA and the relevant department have formalised their respective enforcement roles. For example, in Queensland, RSPCA Qld and the Department of Primary Industries and Fisheries have entered into a memorandum of understanding:
The MOU was jointly developed by the DPI&F and the RSPCA, with all clauses subject to mutual agreement. … The question of who enforces the [Act] is influenced by location and expertise. … Although not a mandated requirement under the MOU, it is mutually accepted [that] the DPI&F will generally have primary responsibility for dealing with livestock animal welfare issues. Conversely, the RSPCA largely has responsibility for companion animal issues. This division of responsibilities is not an issue of constraining operations of agencies, but rather one of logistics and operational practicality.[23]
Such an arrangement is purely a matter of political-administrative convenience, and is not a legislative requirement. It should also be noted that even in jurisdictions where there is no formal memorandum of understanding between enforcement agencies, the burden of enforcing the law, at least in relation to companion animals,[24] is largely assumed by the RSPCA.
What is the regulatory framework within which the RSPCA exercises its powers of enforcement? The first point to be made here is that the sphere within which the RSPCA operates is 'civil', rather than economic:
In mapping out the variety of non-state actors it is useful to distinguish between the state, the economy and civil society. The economic sphere includes, for example, markets and a broad range of profit motivated organizations and activities embracing, for example, finance and industry. The civil sphere comprises non-governmental organizations (NGOs), charities, trusts, foundations, advocacy groups and national and international non-state associations.[25]
Increased understanding of the regulatory role of non-state actors has grown alongside changes in public governance, including shifts to outsourcing and privatisation (the 'decentring' of regulation).[26] Interestingly, the RSPCA is a very early example of a non-state actor being relied upon by the state to pursue enforcement of legislation, with the organisation engaged in prosecutions almost from its inception in 1822.[27]
The second important point about the regulatory framework within which the RSPCA operates is that the regulation of the treatment of companion animals, even in the absence of a direct state role, is a classic example of command and control regulation, 'the exercise of influence by imposing standards backed by criminal sanctions.'[28] A broad prohibition standard ('no unnecessary cruelty') is applied, supplemented in more recent years by a positive duty of care, with a fine and/or a jail sentence imposed for breach of the standard.
It would be reductionist, however, to characterise the regulation of the treatment of companion animals as merely command and control. The RSPCA utilises enforcement techniques apart from investigation and prosecution.
One important regulatory technique employed by the RSPCA is 'communication'. Morgan and Yeung characterise this technique as follows:
Simple communication-based techniques include attempts to persuade and educate members of the regulated community, or those affected by the regulated activity, to act in a manner that will facilitate the achievement of regulatory goals … [t]he aim is therefore to bring some kind of indirect social pressure to bear on individual decision-making in the hope that it will lead to behavioural change.[29]
The RSPCA engages in significant educational and public advocacy campaigns, reflecting two key objectives for the organisation: 'To take whatsoever steps are necessary to educate the community with regard to the humane treatment of animals' and 'to diffuse information about the care, protection and treatment of animals by publishing and circulating literature and conducting lectures, seminars and competitions'.[30]
Another important regulatory technique available to the RSPCA in some jurisdictions is the ability to issue enforceable directions, providing guidance and/or a warning to companion animal owners who are committing or may be about to commit a breach of the legislation. For example, in Queensland, inspectors are authorised to issue 'animal welfare directions' to persons in charge of an animal, requiring certain steps to be taken relating to the welfare of the animal.[31] The directions are generally in written form, and are required to set out quite detailed information about what action is needed and the time frame for doing so. Breach of an animal welfare direction is an offence. Legislative provision for animal welfare directions provides a formal mechanism for the exercise of discretion in enforcement. This form of regulatory technique can be characterised as compliance regulation, with the regulator engaging in a 'conversation' with the regulated.[32] It can be used both as an educative tool and as a spur, under threat of prosecution, to compliance.
In summary, therefore, the RSPCA employs both compliance and deterrent approaches to the task of enforcement of animal welfare standards for the treatment of companion animals, consistent with the argument of Ayres and Braithwaite that '[t]o reject punitive regulation is naive; to be totally committed to it is to lead a charge of the Light Brigade. The trick of successful regulation is to establish a synergy between punishment and persuasion.'[33]
Part of the explanation for the RSPCA's multi-faceted approach to enforcement is the high cost of deterrence through prosecution. This is consistent with the observation that '[p]roponents of deterrence tend to argue that compliance approaches are indicative of … lack of enforcement resources'.[34] Lack of funding significantly constrains the RSPCA's ability to provide adequate numbers of inspectors. As RSPCA Australia suggests:
The Inspectorate plays a vital role within the RSPCA and maintaining their presence is essential in providing continuity of animal welfare services to the community … The associated costs of funding just one RSPCA Inspector can be as much as $100,000 each year, which constitutes a large part of each Society's annual budget. Whilst each state and territory RSPCA struggles to raise enough funds for its existing Inspectors, the sad reality is that, more Inspectors are desperately needed.[35]
Figures collated by RSPCA Australia show that in 2005–06, RSPCA inspectors investigated a total of 38,913 cruelty complaints, with 337 prosecutions and 254 convictions.[36] The prosecution/conviction to investigation ratio is low. Limited resources mean that only those cases that are almost certain to succeed are prosecuted since, in the words of RSPCA Victoria, 'the RSPCA cannot afford to lose.'[37]
Despite appearing to be governed by the same broad legislative scheme as that for companion animals, the regulation of the treatment of farmed animals[38] differs in significant ways. This is because the treatment of farmed animals is exempted from the overarching cruelty and duty of care standards included in animal welfare legislation.
A feature of animal welfare legislation in most of the States and Territories is the incorporation of codes of practice addressing welfare issues in a range of settings in which animals are exploited by humans, principally in the areas of farming, scientific research and entertainment. In the key area of farming, the Commonwealth Scientific and Industrial Research Organisation ('CSIRO') publishes a number of Model Codes of Practice for the Welfare of Animals ('Model Codes of Practice'), developed by the Primary Industries Ministerial Council ('PIMC'). These codes of practice range across a number of categories of farmed animals, including cattle, poultry, pigs, sheep, buffalo and camels, and cover titles dealing with land transportation and feral animals.[39]
The codes are regularly updated, although some date as far back as 1991. The Model Codes of Practice set minimum standards for the welfare of farmed animals. Crucially, as illustrated below, these minimum standards may be lower than the 'no-cruelty' standard established in offence provisions in the primary legislation.
Most of the States and Territories either adopt the Model Codes of Practice directly or prepare their own codes based on the Model Codes. There is considerable variation in the extent to which the codes are adopted and their effect once they are adopted. The typical approach is for primary legislation to allow for the adoption of codes of practice by regulation or disallowable instrument, with the regulation or disallowable instrument then adopting some or all of the Model Codes of Practice (or codes of practice based on the Model Codes). Significantly, most jurisdictions then provide that compliance with the code is a defence to prosecution for cruelty.
For example, in Queensland, s 40 of the Animal Care and Protection Act 2001 (Qld) provides that it is a defence to a charge of cruelty if there has been compliance with a relevant code of practice. Under s 2 and sch 1 of the Animal Care and Protection Regulation 2002 (Qld), all of the Model Codes of Practice have been adopted, although compliance with them is voluntary and some of the Model Codes of Practice listed are not the most recent published by the CSIRO. The effect of this arrangement is that a farmer of cattle, for instance, is not legally compelled to comply with the Model Code of Practice dealing with cattle. However, if the farmer was charged with a cruelty offence, and wished to rely on the code as a defence, he or she would need to demonstrate compliance with the code.
This general approach is also followed in Victoria, South Australia, the Northern Territory, the Australian Capital Territory and Western Australia.[44]
In Tasmania, s 50(4) of the Animal Welfare Act 1993 (Tas) provides for incorporation of codes of practice by regulation, but this has not occurred. Section 44 allows the Minister to approve 'standards of animal welfare', and these are 'to be followed in the care and management of animals'. The Minister has approved a number of codes of practice, including some of the Model Codes of Practice, as animal welfare standards. Their status, however, is uncertain. The legislation does not provide that compliance with these animal welfare standards amounts to a defence to a prosecution for cruelty. The Act has recently been reviewed, and some of these issues may be addressed in subsequent amendments to the Act.[45]
The status of codes of practice in New South Wales is much less certain. They may be adopted under regulations,[46] and a number of the Model Codes of Practice have been prescribed.[47] Although the codes are not incorporated as a defence to the prohibition against cruelty, evidence of compliance or non-compliance is admissible in prosecution proceedings.[48] The New South Wales primary legislation provides various directly stated exemptions from the anti-cruelty prohibition for farmed animals. This makes the differential treatment of farmed animals and companion animals more readily transparent in the primary legislation.
In summary, codes of practice for farmed animals detail wide-ranging standards for care and transportation. Significantly, as illustrated below, some of those standards would not meet a general cruelty standard. This should not be surprising given that compliance with a code is generally a complete defence to a prosecution for cruelty. Compliance with a code is generally voluntary — the incentive for choosing to comply with a code lies in the protection from a prosecution for cruelty.
The regulation of farmed animals therefore approximates a form of command and control regulation, since government (with significant input from those regulated) establishes minimum standards, with the possibility of prosecution for non-compliance. It is approximate because compliance with industry standards generally operates by way of incentive rather than force.
In each State and Territory the relevant enforcement agency is usually the government department responsible for administering animal welfare legislation, most commonly a primary industries or local government department. As has already been discussed, there are usually arrangements — informal or formal (eg a memorandum of understanding) — in place between the RSPCA and the departmental agency demarcating enforcement roles, the RSPCA dealing with companion animals and hobby farms, and the departmental agencies dealing with commercially farmed animals. By contrast with the RSPCA in each State and Territory jurisdiction, little information on enforcement activities is publicly disclosed by the agencies responsible for enforcing the animal welfare standards applicable to farmed animals. This gap highlights a need for empirical research into the work of these agencies. Even in the absence of such research, some important questions can justifiably be raised about regulatory activity in this area, even if not yet capable of a definitive answer.
The standard regulatory approach to the treatment of companion and farmed animals raises a number of concerns about the extent to which the interests of animals are protected.
The first concern is the type of standard used in animal welfare law. As Bluff and Gunningham suggest: 'The choice of the type of standard is crucial as it influences the measures implemented to improve … performance, compliance with … law, whether regulatory objectives are achieved and enforceability.'[49]
As has been shown, a longstanding standard adopted in animal welfare law is the general overarching prohibition against cruelty. This standard is broadly expressed and heavily qualified. Cruelty is prohibited, so long as the pain imposed on animals is not unjustifiable, unnecessary or unreasonable.[50] Increasingly, as has also been shown, animal welfare law also imposes a positive duty on those responsible for the care of animals to meet the welfare needs of those animals. Radford argues that these two requirements — a duty to not be cruel and a duty to promote the welfare of an animal — are distinct, even if they do overlap to some extent:
[Welfare] involves taking account of influences which may be either positive or negative, while cruelty is concerned only with treatment that is deleterious. This distinction is reflected in the thrust of public policy. 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.[51]
Regardless of whether these duties are regarded as being distinct, or, perhaps more appropriately, as fitting along a continuum with cruelty at one end, they are broadly expressed, malleable concepts. The broad duties in animal welfare law most closely resemble what Bluff and Gunningham define as general duties or 'principle based' standards. Two notable aspects of general duty standards are 'the broad nature of the duty to take all (reasonably) practicable measures' and 'the fact that they do not specify a clear performance outcome.'[52]
There are some advantages in adopting a general duty:
First, such a duty is all-encompassing, requiring attention to be given to a wide range of potential harms.[53] Most animal welfare law provides a non-exhaustive list of the types of matters which may amount to cruelty, indicative of the range of potential harms which the general duty addresses.[54]
Second, the broad nature of a general duty means that it does not date quickly.[55] This is clearly true of the prevailing cruelty standard in animal welfare law — as has been shown, this standard was established in Australia more than 150 years ago.
However, as Bluff and Cunningham point out, the broad nature of general duties is a two-edged sword:
the very breadth and flexibility of general duties entail 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.[56]
In relation to the treatment of farmed animals, this uncertainty is resolved by deferring to codes of practice, although where these are not complied with a court is still required to consider whether, in the absence of compliance, the practice was nonetheless cruel or inconsistent with a positive duty of care.
The uncertainty around what is required to satisfy general duties is amplified in an animal welfare setting because of the qualification limiting the prohibition on cruelty to that which is 'unnecessary, unreasonable or unjustified'. This qualification has been celebrated as making an important contribution to the improved treatment of animals:
The concept of unnecessary suffering, which has been developed by the courts and widely adopted by the legislature, has two very considerable merits. First, it may be applied to a multitude of different situations. Secondly, it can be constantly reinterpreted by the courts in the light of greater understanding about animal suffering, and changing social attitudes regarding the proper treatment of animals.[57]
However, there are good reasons to be cautious about the 'benefits' of the flexibility inherent in this qualification, and the broader standard of cruelty per se.[58]
First, at least in Australia, there is very little higher court consideration of these provisions — as a summary offence, almost all prosecutions are finally disposed of in magistrates' courts. This carries the risk of uneven application of legislation both within the States and Territories and across jurisdictions. Second, the uncertainty of what is required to satisfy the 'no unnecessary suffering' standard creates the risk that in marginal cases the interests of animals will always be downplayed.[59]
A second concern with the standard regulatory approach is lack of adequate enforcement. As has been shown, financial constraints may severely limit the ability of the RSPCA to prosecute breaches of regulatory standards for the treatment of companion animals. By necessity, it pursues prosecutions in a highly selective way. Concerning the treatment of farmed animals, there is little publicly disclosed information on enforcement activities by relevant enforcement agencies. It is likely that prosecution rates are low, although the reasons for this may be more complex than resource constraints.
One consequence of very low rates of prosecution is that in practice the limits of standards in animal welfare law have not been subject to sustained judicial scrutiny. Arguably, enforcement of animal welfare law is distinguished by the limitations identified by Baldwin and Cave as particularly associated with command and control regimes, where 'rules attending such regimes have to be brought to bear on the ground by bodies of officials or inspectors but enforcement is expensive, the techniques used give rise to contention, and the effects of enforcement are said to be uncertain.'[60]
A third concern with the standard regulatory approach to the treatment of companion and farmed animals is the distinction between standards applicable to each category of animal. The way in which the codes are adopted in State and Territory legislation is to institutionalise the possibility of cruelty to farmed animals in a way that would not be permissible for companion animals. By providing that compliance with codes is a defence to a charge of cruelty or breach of duty, or at least evidence relevant to a prosecution, as most of the State and Territory legislation does, the way is clear for cruel practices to be legally sanctioned.
For example, the Model Code of Practice for pigs endorses intensive farming of pigs, including in special farrowing crates and stalls where individual animals are kept.[61] Under the code, the recommended minimum space for sows kept in stalls is 0.6m x 2m (newly established stalls are required to be 0.6m x 2.2m).[62] Farrowing crates are special stalls where pregnant sows are moved to give birth. The recommended minimum space for these crates is 0.5m x 2m.[63] Pigs can be confined in these stalls for up to 16 weeks (to be reduced to six weeks in 10 years time).[64] Confinement in these stalls causes physical harm and psychological stress to pigs.[65]
These aspects of intensive farming are manifestly cruel,[66] and for this reason have been banned or are being phased out in countries of the European Union and New Zealand.[67] The cruel nature of sow stalls and farrowing crates was, arguably, implicitly recognised by the code itself, at least in its earlier second edition. It suggested that '[p]racticable alternatives to current conventional stalls (eg turnaround stalls or use of group housing) should be considered as they are developed' and that '[p]racticable alternatives to the current farrowing crates should be considered as they are developed.'[68] Despite the obviously cruel nature of the intensive farming of pigs, and the certainty that similar practices inflicted on a companion animal such as a dog would be illegal, compliance with animal welfare standards in the pig code will be a defence to a prosecution for cruelty.
On what basis can the application of differential standards applicable to the two categories of animal be justified?
The answer to this question entails a consideration of the legal status of the subjects of regulation, and of the reason for why the treatment of companion and farmed animals is regulated at all.
Regulation of the treatment of domesticated animals occurs in a context in which those animals are the property of humans. As Halsbury's Laws of Australia puts it, 'domestic animals, like other personal and moveable chattels, are the subject of absolute property.'[69] In essence, animal welfare legislation regulates the manner in which property owners are entitled to exploit their property. Why regulate the treatment of domesticated animals, including companion and farmed animals, if they are analogous to personal property such as inanimate chattels? One persuasive answer is that domesticated animals are sentient creatures, both capable of leading a fulfilling life and of feeling pain. In moral terms, these facts demand that constraints be placed on the ways in which humans may treat animals.[70] If regulation of the treatment of animals is conceptualised as minimising risk, the relevant risk here is that in the absence of state intervention, animals will be exposed to harm by their owners and/or third parties. Sunstein articulates this justification for regulatory intervention as follows:
The idea here is that animals, species as such, and perhaps even natural objects warrant respect for their own sake, and quite apart from interactions with human beings. Sometimes such arguments posit general rights held by living creatures (and natural objects) against human depredations. In especially powerful forms, these arguments are utilitarian in character, stressing the often extreme and unnecessary suffering of animals who are hurt or killed. … [Animal welfare legislation] reflects these concerns.[71]
However, if regulatory intervention is justified by the sentiency of animals and the potential for harm which they may suffer, on what basis can differential standards of care applicable to companion and farmed animals be explained? Given their shared sentiency, there is no rational basis for distinguishing between the two. Rather, the key factor in understanding this dichotomy is the property status (and hence economic value) of animals:
economic theory tells us that rational property owners will only harm their animal property for good reason; ie, if it will produce a societal benefit. Therefore, anticruelty statutes need only protect against the irrational property owner — one who causes or allows harm to his property that is of no benefit to society. 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.[72]
In other words, the differential approach to standard setting is justified on the grounds that while cruelty to companion animals yields no discernible social benefit, the same cannot be said of cruelty to farmed animals. By permitting some cruelty to farmed animals, farmers can adopt production methods that are more efficient than would be possible if higher standards of care were applicable, in turn allowing for the supply of slaughtered animals to consumers at a lower price.[73]
Differential standards might also be justified on democratic grounds, on the basis that they reflect 'societal preference'. Ibrahim articulates this justification as follows:
As representative bodies, legislatures are implementing a collective choice that society has made to allow the exploitation of animals so long as it produces a human benefit. …. society's practical desire for the benefits of animal exploitation outweighs its theoretical desire that animals suffer only if necessary, and, consequently, the exceptions to anticruelty statutes swallow the rule.[74]
The economic and democratic justifications made for differential standards setting are pragmatic. They fail to fully acknowledge the more fundamental reason for regulation — that animals, both companion and farmed, are sentient creatures capable of experiencing pain and leading a fulfilling life. In other words, so long as differential standards continue to apply to companion and farmed animals, the standard regulatory approach must be accepted as being incoherent, at least in moral and scientific terms.[75]
This duality is possible because a key assumption underpinning both economic and democratic justifications for the differential treatment of companion and farmed animals, an engaged and informed citizenry, is not satisfied. Many common farming practices are unknown to the general public. The result is that:
Every day of every year, people engage in practices that ensure extraordinary suffering for animals. If those practices were highly visible, they would change because many people already believe they are morally unacceptable. This point makes existing treatment of animals extremely unusual. A great deal of progress could be made, not by challenging existing moral judgments, but by ensuring they are actually respected.[76]
A command and control regulatory model fails to adequately address this informational deficit. Leslie and Sunstein suggest the need for a different regulatory approach:
Among the most dramatic developments of the last decades … has been the shift from command-and-control regulation to disclosure of information as a regulatory tool. In countless areas, government has required agencies and companies not to alter their practices, but to disclose them. Sometimes the goal is to make democratic processes work better by providing people with information to inform their political judgments … And sometimes the goal is to make markets work better by giving people information that bears on their choices.[77]
The disclosure of common farming practices which cause suffering to animals may lead consumers to pay more for animals (and associated animal products) which have not been subject to such practices. However, even if this does not occur, whether due to financial pragmatism or collective action problems:
information about animal suffering may [still] have significant effects on the political domain. It may energize public debate, activating ordinary citizens and representatives alike. To the extent that this effect is a product of increased information, exposing practices previously hidden from public view, there is every reason to welcome it.[78]
In summary, the standard regulatory approach in place today for the treatment of animals is rooted in measures first introduced more than a century ago. This approach entails, first, the adoption of a general prohibition standard (no unnecessary cruelty) and a general duty standard (duty to take steps to meet the welfare needs of an animal), second, the grant of an exemption from these standards in respect of significant categories of animals, including farmed animals, and, third, the placement of enforcement responsibilities into the hands of poorly resourced public benevolent societies and/or opaque departmental authorities. Apart from the introduction of positive duties of care, reform at the State and Territory level in recent times has been uneven and modest, centred on increasing the penalties for breach of anti-cruelty prohibitions.
Given the shortcomings I have identified with this regulatory structure, and the cautious approach to change on the part of the States and Territories, is significant reform possible and likely? Having established the general background to animal welfare regulation in Australia, centred on the States and Territories, Part III of this article considers the role of the Commonwealth. As will be argued below, the Commonwealth is playing an increasingly influential role in this regulatory arena. However, whether the Commonwealth will exert its influence to address the shortcomings in the standard regulatory approach of the States and Territories is uncertain at best.
Despite the colonies having legislated in the area of animal welfare since 1837, there was no discussion of this area of legislative competence in the constitutional conventions of the 1890s.[79] Not surprisingly, then, the Australian Constitution does not specifically address the welfare of animals at all.[80]
Australia is not alone in excluding animal welfare from its constitution. Few western countries have taken the step of explicit constitutional recognition of animal welfare, although some recent national and international developments suggest momentum for constitutional change may be building. In 1992 the Swiss Constitution was amended to recognise the importance of the protection of animals.[81] In 1997 a protocol on animal welfare was annexed to the Treaty Establishing the European Community ('Treaty of Rome'), the foundation document of the European Community.[82] The protocol recognises that animals are sentient beings, deserving of 'improved protection and respect',[83] and requires that 'full regard' be given to the welfare of animals in areas such as agriculture and research.[84]
Further, in a noteworthy development in 2002, the German Parliament amended the German Constitution (Grundgesetz) to afford protection to animals, a step designed to affirm the role of the state in protecting life, including the lives of animals.[85] Significant recent reform of animal law in Austria incorporates the following statement into Austrian constitutional law: 'The state protects the life and wellbeing of animals due to the special responsibility of mankind with respect to animals as their fellows.'[86] It is not yet clear what the practical implications of this form of constitutional recognition might be, but at the very least it reflects a level of socio-political engagement with animal welfare issues at a national level so far absent in Australia.
In Australia, despite a lack of express constitutional power to regulate animal welfare per se, the Commonwealth nonetheless indirectly regulates aspects of animal welfare under the trade,[87] quarantine[88], fisheries[89] and external affairs[90] heads of power:
Australian Government legislation covers the welfare of animals involved in the live animal export trade and animals processed at export registered slaughter establishments. It also has overall responsibility for the welfare of kangaroos killed for commercial purposes …, for the conduct of introduced animal management … and for animal welfare aspects of wild animal management and animal research on Australian Government lands.[91]
I will consider two particular areas where the Commonwealth, relying on the quarantine, trade and external affairs heads of power, has directly regulated animal welfare: the export of live farmed animals and export of wildlife. The former area is important because it represents a significant and highly controversial element of the broader regulation of the treatment of farmed animals. The latter is considered briefly, despite not concerning farmed or companion animals, because it serves to highlight distinctions drawn between categories of animal which cannot be justified by reference to the sentiency of the animals concerned, a recurring theme in animal welfare law generally.
The live farmed animal export trade is a controversial one, involving ship transport of animals over long distances to destinations with limited animal welfare regulation. In 1985, the Senate Select Committee on Animal Welfare concluded that 'if a decision were to be made on the future of the trade purely on animal welfare grounds, there is enough evidence to stop the trade. The trade is, in many respects, inimical to good animal welfare'.[92] Despite this, the Committee acknowledged that the economic significance of the industry meant that it was not likely to be brought to an end in the short-term, recommending improved animal welfare standards and a long-term strategy to phase out the trade.[93] This has not come to pass. Live animal export remains big business for Australia. Australia exports the largest number of live animals in the world,[94] consisting principally of cattle, sheep and goats. The trade generates in excess of A$1 billion per year in export income.[95]
The regulatory regime underpinning live export is complex, undermining effective administration. In 1985 the Senate Select Committee on Animal Welfare found that 'apart from the inadequate legislative base for the trade … there is a lack of co-ordination of the various Federal and State Government authorities involved in the administration of the trade.'[96] Not much has changed. The 2003 Keniry Report echoed these concerns, finding that 'the current legislative and administrative framework for the operation of the livestock export industry is inadequate in that it does not set sufficiently clear and enforceable standards for such a high-risk trade'.[97]
The legislation underpinning live animal export includes the Australian Meat and Live-Stock Industry Act 1997 (Cth), the Export Control Act 1982 (Cth) and the Navigation Act 1912 (Cth). These statutes, and associated regulations, establish a largely self-regulatory industry, including in standard setting, compliance monitoring and enforcement.
In relation to standard setting, the legislation does not set out animal welfare standards. Reliance is placed on codes of practice adopted by the States and Territories, and Australian Livestock Export Standards ('ALES'), developed by the Australian Livestock Exporters' Council ('ALEC'), addressing areas such as selection and preparation of animals for export, land transportation requirements, inspection for fitness to travel and humane destruction of animals.[98]
Until 2003, so-called 'third party' veterinarians monitored standards compliance. In reality, they had been engaged by the exporters whose compliance with standards they monitored. Failure to comply with standards could be a reason for not accrediting an exporter and issuing an export licence. The accreditation body which issued licences, the Australian Livestock Export Corporation Limited ('Livecorp'), was fully owned by Australian livestock exporters through ALEC. The conflict of interest in such a structure is obvious, and the Keniry Report was not shy in identifying the consequences:
the connection between ALES and LEAP [Livecorp's Livestock Export Accreditation Program] and the two primary pieces of Commonwealth legislation applying to the industry, the Australian Meat and Live-stock Industry Act 1987 (the AMLI Act) and the Export Control Act 1982 (ECA), is tenuous: 'third party' veterinarians, who … play a critical role in preparing animals for export and ensuring standards are met, are not referenced in the legislation; and breaches of the standards do not necessarily attract any sanction unless Livecorp withdraws accreditation from an exporter. The Review has heard that this rarely occurs.
In this environment AQIS, as the regulator, has had difficulty achieving effective control and coordination; and audit arrangements are inadequate and not sufficiently transparent.[99]
As well, the Keniry Report concluded that reliance on codes of practice adopted by the States and Territories was problematic:
there are … substantial problems in relying on the Codes to set standards for the livestock industry. To be effective, the Codes have to be located in substantive legislation in each State and Territory. But there is considerable variation among States and Territories in their approach to implementation of the Codes and in some States and Territories the Codes have not been incorporated in legislation. In these circumstances, prosecution for breaches of a Code and application of a sanction is not possible.[100]
The regulatory model associated with the live export of farmed animals has therefore reflected the worst aspects of self-regulation. A frequent failing of self-regulation is that:
legitimate objectives or rules will tend to be subverted to private purposes where their pursuit and application is given over to a private body that is accountable to its private members and is in effective control of relevant information … self-regulatory bodies have an especially poor record in protecting the public interest through enforcing standards against errant members.[101]
The Keniry Report into the live export of animals laid bare a text book example of regulatory failure. Efficiency, based on the applied expertise of live animal exporters in compliance monitoring and enforcement, came at the cost of a total lack of accountability and a failure to meet the underlying mandate of protection of animal welfare.
In response to this failure, the Keniry Report recommended the development of a national live export code referenced in relevant primary legislation, government responsibility for the grant of export licences and for the monitoring of compliance with the code, and third party veterinarians to be directly contracted by and accountable to the Australian Quarantine and Inspection Service ('AQIS').
The government response has been mixed. A national live animal export code has been developed, the Australian Standards for the Export of Livestock, [102]
but important aspects of this code rely on State and Territory animal welfare legislation and are otherwise very broadly expressed. For example, standard 2.1 states that '[t]he land transport of livestock for export must meet any relevant animal health and welfare and road transport requirements under state and territory legislation and relevant requirements under national Model Codes of Practice for the Welfare of Animals.'[103] As already discussed, the Keniry Report identified substantial problems in relying on inconsistent State and Territory regulation for the enforcement of animal welfare standards. As well, in a point not remarked upon in the report, animal welfare standards included in codes of practice can entrench manifestly cruel practices, as has been shown earlier in this article. AQIS is now responsible for the grant of export licences and compliance monitoring. However, it acts on the advice of third party veterinarians who, notwithstanding the recommended approach of the Keniry Report, are still engaged by exporters (even if subject to approval by AQIS).
The narrow terms of inquiry leading to the Keniry Report ensured that the report did not engage at all with the question of whether live export of farmed animals is prima facie cruel, and whether the practice should be continued or at least phased out, as suggested by the 1985 Senate Select Committee on Animal Welfare report.[104] The reformed regulatory regime, following implementation of some of the recommendations of the Keniry Report, continues to entrench cruelty to animals, through reliance on State and Territory codes of practice as the underlying applicable welfare standards.[105]
As the next section of this article shows, this approach to animal welfare standard setting by the Commonwealth may be different in less economically significant spheres.
Relying on the external affairs power, the Commonwealth Parliament has passed the Environment Protection and Biodiversity Conservation Act 1999 (Cth) which, among other things, regulates trade in endangered and/or native species.[106] Part 13A of the Act includes provisions dealing with the import and export of endangered and/or native animals, and includes a very broadly defined anti-cruelty standard. For example, s 303GP(1) states that it is an offence to export or import a 'live animal in a manner that subjects the animal to cruel treatment'.[107]
While a detailed consideration of the regulation of wildlife falls outside the ambit of this article, the cruelty standard adopted by the Commonwealth in this area is worth reflecting on since it is notably different to the standards adopted in the live export of farmed animals, and those applicable under State and Territory legislation and codes of practice: no qualification is placed on the nature of cruelty which is prohibited (such as 'no unnecessary suffering'), and no specific defence to acting in a cruel manner is provided. It means that the Commonwealth, like the States and Territories, applies different standards to different categories of sentient animals. In this case, endangered animals and native animals are regarded as more deserving of protection from cruelty than farmed animals.
As argued in relation to the distinction between standards applicable to the treatment of companion and farmed animals, if sentiency is the basis on which prohibition of cruelty is justified, there is no rational moral or scientific explanation for why export farmed animals should be subject to a lower standard of protection than that afforded to imported or exported wildlife. Arguments considered earlier about the property status of animals, as well as democratic politics, apply with equal force here.[108]
The dualistic regulatory approach in these areas provides good reason to be cautious about the likelihood of broader change as the Commonwealth assumes an increasingly influential role in the regulation of animal welfare.
As has been established, legislative intervention at a federal level in the regulation of the treatment of companion and farmed animals is subject to putative constitutional limitation so that, notwithstanding Commonwealth regulation of live animal export and trade in native and endangered species, it is the States and Territories which have been primarily responsible for regulatory action in the area of animal welfare.
Despite the formal division of powers between the Commonwealth and the States and Territories, the substantive role played by the Commonwealth is becoming more significant. The Commonwealth plays a central role in coordinating the development of the regulatory standards for the treatment of farmed animals, reflected in the Model Codes of Practice which are directly incorporated, or adapted, into State and Territory regulatory regimes. And the Commonwealth is increasingly assuming policy leadership on animal welfare issues, through bodies such as the National Consultative Committee on Animal Welfare ('NCCAW'),[109]
and the development of the AAWS.[110]The Model Codes of Practice, discussed in detail in Part II of this article, are significant from a Commonwealth regulatory perspective because the Commonwealth plays a central role in leading the ministerial council, the PIMC, which develops and approves the codes. The role of the PIMC is
to facilitate the implementation, nationally, of plans and proposals which would not otherwise be possible because of the limitations imposed by the division of constitutional powers between Australian, State and Territory governments.
The Primary Industries Ministerial Council (PIMC) consists of the Australian/State/Territory and New Zealand government ministers responsible for agriculture, food, fibre, forestry, fisheries and aquaculture industries/production and rural adjustment policy.[111]
While there has not been uniform adoption of the Model Codes of Practice, and this undermines national consistency in animal welfare regulation, they have, as discussed earlier, been taken up in whole or part, or adapted, by a number of State and Territory jurisdictions.
The Commonwealth is now seeking to play a much more active role across the regulation of the treatment of all animals, through the AAWS. The AAWS, developed by the Commonwealth with the assistance and advice of the NCCAW, was approved by the PIMC in May 2004 and launched in October 2005, amidst rhetorical claims that Australia is a 'world leader in the field of animal welfare'.[112] The purpose of the AAWS is to provide 'direction for the development of future animal welfare policies, based on a national consultative approach and a firm commitment to high standards of animal welfare.'[113]
The AAWS is wide-ranging, aiming to bring national coordination to human activities having an effect 'on all sentient species of animals in Australia'.[114] The AAWS:
embraces a broad vision for the humane treatment of all sentient animals and provides a framework for sustainable improvements in animal welfare outcomes, based on scientific evidence and social, economic and ethical considerations. It reflects the high regard Australians place on the value, care and the well-being of animals.[115]
Attachment 1 to the AAWS provides perhaps the most succinct expression of the underlying rationale of the AAWS:
Australia has a strong existing framework to establish and enforce acceptable animal welfare outcomes and has contemporary and comprehensive animal welfare legislation and enforcement at national, state, territory and local levels … The Strategy aims to promote and refine the framework used to protect the welfare of animals.[116]
It is clear that the AAWS does not represent a thorough and critical re-examination of the underlying regulatory framework for animal welfare in Australia. Rather, the much more modest mandate is to 'refine' and 'promote' the existing framework. As part of this limited mandate, however, a number of important initiatives are proposed, their potential for providing the basis for more substantive change shielded by ambiguous and blandly expressed bureaucratic language. These initiatives include to:[117]
• '[f]acilitate the maintenance of effective animal welfare units in each jurisdiction';
• '[f]acilitate the timely development and revision of codes of practice, standards and guidelines and legislation';
• '[p]romote the adoption of a harmonised approach to the development and application of clear, contemporary, adequate and consistent animal welfare legislation and codes of practice across all state, territory and local government jurisdictions';
• '[u]ndertake a review of the existing animal welfare infrastructure, policies and programs';
• '[f]acilitate the development, collection and collation of national statistics on animal welfare standards';
• '[e]xpand Australia's efforts to inform international bodies of our current standards for animal welfare through the development of readily available explanatory material outlining the animal welfare arrangements and achievements, in Australia';
• '[p]romote and facilitate the inclusion of animal welfare studies in the curricula of educational institutions'; and
• '[c]reate national internet sources for national, state/territory and local animal welfare information'.
In order to claim a wide base of support, the development of the AAWS necessarily required sensitivity to the significant and often conflicting concerns of those interest groups affected by the strategy — including the State and Territory governments, animal welfare organisations, farmed animal representative groups, the scientific research community, and the veterinary profession — so that the measured aspirations of the strategy should not be surprising.
Depending on how the AAWS is implemented, it may prove to be no more than a bureaucratic/administrative exercise, providing some national coordination to an area of regulation which has historically been the domain of the States and Territories, improving access to information about animal welfare regulation and allowing Australia to participate in international fora on animal welfare in a more informed way. Such an approach would mean that the critique of animal welfare regulation considered earlier in this article would apply with equal force to the implementation of the AAWS. In particular, the AAWS suffers from an underlying lack of coherence and rationality, for the same reasons that the standard regulatory approach to the treatment of animals lacks these. The AAWS adopts a broad definition of 'sentiency',[118] and states that '[a]ll animals have intrinsic value'.[119] However, by endorsing the Model Codes of Practice as the source of minimum standards for the treatment of farmed animals, it repudiates the idea of a universal intrinsic value for animals based on shared sentiency. Endorsement of the Model Codes of Practice must mean, as argued above, that the treatment of farmed animals is to be regulated in a quite different way to that of other categories of animal, including companion animals.[120]
On the other hand, if the AAWS initiatives outlined above are to be given full effect, particularly those requiring harmonisation, it will require leadership from the Commonwealth in setting the standards which are to apply in achieving a nationally consistent approach to regulation. This provides an opportunity for coordinated regulatory reform, even if this will be a formidable task, given the significant inconsistencies which exist in the structure, content, and enforcement of animal welfare regulation across the country. Moreover, it prompts the question of why the Commonwealth has decided to assume a new and potentially significant role in the regulation of animal welfare at all.
The first of the Commonwealth government's specific responsibilities set out in the AAWS is to 'represent Australia's position on animal welfare'.[121] One important reason for the recent and unprecedented interest of the Commonwealth in animal welfare matters, reflected in its coordination of the AAWS, is the increasing level of international cooperation on animal welfare matters. For example, the World Organisation for Animal Health,[122] of which Australia is a member, is currently considering the need for national and international benchmarking of animal welfare outcomes.[123]
As well, Australia has been 'working with other international bodies such as the World Society for the Protection of Animals (WSPA) on issues such as development of a Universal Declaration on Animal Welfare.'[124] While particular regions of the world have developed cross-jurisdictional agreements in this area, such as the Protocol on Protection and Welfare of Animals in the European Union,[125] there is as yet no international agreement on animal welfare. Australia was one of 22 countries represented at an intergovernmental conference in Manilla in 2003 which agreed to a proposal for a Universal Declaration on Animal Welfare. The next step is 'a ministerial conference planned for the end of 2007 in New York. If consensus is achieved at that ministerial conference it is hoped that the Declaration will then be put before the United Nations General Assembly for adoption.'[126]
Developments in animal welfare in the international arena, in which Australia has so far been an active participant, have the potential to be a two-edged sword for the Commonwealth. While having the positive effect of prompting the federal government to assume a greater role in coordinating animal welfare regulation, they also have the potential to highlight significant shortcomings in domestic animal welfare regulation.[127] This may have particular resonance for Australia in the area of the welfare of farmed animals. For example, the World Organisation for Animal Health recognises that:
the internationally recognised 'five freedoms' (freedom from hunger, thirst and malnutrition; freedom from fear and distress; freedom from physical and thermal discomfort; freedom from pain, injury and disease; and freedom to express normal patterns of behaviour) provide valuable guidance in animal welfare.[128]
These freedoms, at least in the abstract, are uncontroversial and have been widely accepted.[129] The five freedoms are included in the proposed Universal Declaration on Animal Welfare.[130] The AAWS even includes a commitment that, together with other guiding principles, 'Australia will take these into account in developing its vision, international policies and input to relevant international goals for animal welfare.'[131] However, as is clear from the earlier discussion of the Model Codes of Practice, Australian regulation of the treatment of farmed animals is not always consistent with these freedoms. Indeed, on any view, intensive or factory farming may breach four of these five freedoms.
As well as highlighting inconsistencies and shortcomings in the animal welfare standards which currently exist in Australia, the emergence of a Universal Declaration on Animal Welfare would be significant for another reason. On the reasonable assumption that Australia will be a signatory, the declaration might provide the basis for direct regulation of companion and farmed animals by the Commonwealth, relying on the external affairs power of the Australian Constitution.[132] There is, of course, no indication to date that the Commonwealth intends to take such a step, or that this is a reason for its active involvement in the development of international law. One of the key goals of the AAWS is to bring a degree of national consistency to animal welfare regulation in Australia, but through negotiated harmonisation rather than Commonwealth fiat.[133]
This article has challenged the prevailing standard regulatory approach to companion and farmed animal welfare in Australia. Deficiencies in this approach exist across standard setting, strategy and enforcement. The locus of regulatory control has historically rested with the States and Territories, principally for constitutional reasons. There is, however, evidence that the Commonwealth is emerging as a significant regulatory player. By establishing a national strategy for animal welfare, the Commonwealth is signalling an intention to contribute in a more meaningful way to animal welfare regulation. While some of the objectives of its national strategy are potentially transformative, the extent to which the Commonwealth will challenge the standard regulatory approach established by the States and Territories remains unclear and, perhaps, slight. In two areas where the Commonwealth has played a direct role in regulation of animal welfare — live farmed animal export and trade in wildlife — the regulatory approach, especially in standard setting, has echoed the irrationality and incoherence found in State and Territory regulation of the welfare of companion and farmed animals.
[*] BSc(Hons) (Melbourne), LLB(Hons), MPubStrM (Griffith), Griffith Law School. I would like to thank Richard Johnstone, Graeme Orr, Jan McDonald, Elizabeth Ellis and an anonymous referee for their helpful comments.
[1] Peter Singer, Animal Liberation (revised ed, 2001).
[1] See Animal Legal Defense Fund, Programs: Animal Law Courses (2007) <http://www.aldf.org/content/index.php?pid=83> at 19 November 2007.
[2] See, eg, Sonia Waisman, Bruce Wagman and Pamela Frasch, Animal Law (2nd ed, 2002).
[3] See, eg, Animal Law, published by the National Center for Animal Law, Journal of Animal Law, published by Michigan State University College of Law, and Journal of Animal Law and Ethics, published by University of Pennsylvania. For an account of the evolution of animal law as a scholarly discipline in the United States see David Favre, 'The Gathering Momentum' (2005) 1 Journal of Animal Law 1.
[4] For a brief account of the extent of scholarly consideration of animal law matters in Australia see Steven White, 'Animals and the Law: A New Legal Frontier?' [2005] MelbULawRw 9; (2005) 29 Melbourne University Law Review 298, 298–9.
[5] For a useful summary of relevant Australian constitutional and statutory law, see Katrina Sharman, Animal Law in Australia (2004) Animal Legal and Historical Web Center <http://www.animallaw.info/nonus/articles/ovaustrailia.htm> at 19 November 2007.
[6] For an account of the Commonwealth's recent incursion into the area of industrial relations regulation, and the failed constitutional challenge mounted by some States to this intervention in New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1, see Andrew Stewart and George Williams, Work Choices: What the High Court Said (2007).
[7] In this article I assume that 'sentient' animals are 'animals endowed with any sorts of feelings: (conscious) sensations such as pain or emotional states such as fear or suffering': David DeGrazia, 'The Ethics of Animal Research: What are the Prospects for Agreement?' in Susan Armstrong and Richard Botzler (eds), The Animal Ethics Reader (2003) 253. The Commonwealth has adopted a similar definition, accepting that '[a] sentient animal is one that has the capacity to have feelings and to experience suffering and pleasure. Sentience implies a level of conscious awareness': Commonwealth, Department of Agriculture, Fisheries and Forestry, The Australian Animal Welfare Strategy (2005) ('AAWS') 7 <http://www.daff.gov.au/__data/assets/pdf_file/0011/146747/Aaw_Strategy_Final.pdf> at 19 November 2007. For a succinct analysis of the moral significance of sentiency see Robert Garner, Animal Ethics (2005) 70–3.
[8] AAWS, above n 8.
[9] Philip Jamieson, 'Duty and the Beast: The Movement in Reform of Animal Welfare Law' (1991) 16 University of Queensland Law Journal 238, 239. As Jamieson points out, this antipodean legislation was modelled on the 1822 English legislation, despite more extensive animal welfare legislation being passed in England in 1835. For a fuller account of the socio-political context of the English legislation on which Australian colonial law was based: see Mike Radford, Animal Welfare Law in Britain: Regulation and Responsibility (2001) 33–59.
[10] An Act for the more effectual prevention of Cruelty to Animals 1850 14 Vict 40 (NSW) cited in Glenda Emmerson, 'Duty and the Beast: Animal Care and Protection Bill 2001', Research Brief No 2001/23, Queensland Parliamentary Library (2001) 8.
[11] Emmerson, above n 11, 8.
[12] Jamieson, above n 10, 240–2.
[13] Ibid 241 (citation omitted). An alternative explanation for the location of animal cruelty offences in criminal legislation is simply that such offences were taken seriously per se. That is, the protection of animals from cruelty was an important enough principle in its own right to be included in criminal legislation alongside a range of other offences, perhaps implying a commitment to enforcement of these offences by the police in a manner consistent with other significant criminal offences.
[14] Interestingly, in two colonies, South Australia and Victoria, a positive duty of care was included to 'supply an animal with food and water', in addition to the general negative duty of no cruelty: ibid 242. In more recent times, the States and Territories have been reinvigorating the concept of a duty of care to animals. This is discussed further below.
[15] See Animal Welfare Act 1992 (ACT); Animal Welfare Act 1999 (NT); Prevention of Cruelty to Animals Act 1979 (NSW); Animal Care and Protection Act 2001 (Qld); Prevention of Cruelty to Animals Act 1985 (SA); Animal Welfare Act 1993 (Tas); Prevention of Cruelty to Animals Act 1986 (Vic); Animal Welfare Act 2002 (WA).
[16] Animal Care and Protection Act 2001 (Qld) s 18(1).
[17] Prevention of Cruelty to Animals Act 1986 (Vic) s 9(1)(c).
[18] Jamieson, above n 10, 250.
[19] Ibid.
[20] Ibid 249.
[21] Steven White, 'Legislating for Animal Welfare: Making the Interests of Animals Count' (2003) 28 Alternative Law Journal 277, 278 (citations omitted).
[22] Radford, above n 10, 357.
[23] Evidence to Senate Rural and Regional Affairs and Transport Committee, Parliament of Australia, Canberra, 15 February 2006, 4 (Jim Varghese, Director-General, Queensland Department of Primary Industries and Fisheries). This evidence was provided in the course of an inquiry into the proposed National Animal Welfare Bill 2005 (Cth).
[24] With the exception of one jurisdiction, there is no legislative category of 'companion animal'. The term conceivably covers a potentially wide spectrum, including the traditional family pet (eg a cat, dog or bird), an assistance animal (eg a guide dog for the blind), and a 'guard' animal (eg a family pet nonetheless kept partially for security reasons), as well as, perhaps, a 'working' dog on a farm. In NSW, s 5 of the Companion Animals Act 1998 (NSW) defines a companion animal as a cat or a dog, but notes that '[t]he fact that an animal is not strictly a "companion" does not prevent it being a companion animal for the purposes of this Act. All dogs are treated as companion animals, even working dogs on rural properties, guard dogs and police dogs.'
[25] Bridget Hutter, The Role of Non-State Actors in Regulation, Centre for Analysis of Risk and Regulation Discussion Paper No 37 (2006) 2 <http://www.lse.ac.uk/collections /CARR/pdf/Disspaper37.pdf> at 19 November 2007 (citations omitted).
[26] Julia Black, 'Decentring Regulation: The Role of Regulation and Self Regulation in a "Post Regulatory" World' (2001) 54 Current Legal Problems 103.
[27] Radford, above n 10, 40–2. As Hutter suggests 'regulation is no longer regarded as the exclusive domain of the state and governments and the role of non-state actors in regulation is now widely acknowledged. Some non-state sources are new and represent a growth of regulation. But many of the sources of regulation are well established, they have existed for a very long time in one form or another': above n 26, 2.
[28] Robert Baldwin and Martin Cave, Understanding Regulation: Theory, Strategy and Practice (1999) 35.
[29] Bronwen Morgan and Karen Yeung, An Introduction to Law and Regulation (2007) 96.
[30] RSPCA Australia, Objectives (2007) <http://www.rspca.org.au/about/objectives.asp> at 19 November 2007.
[31] Animal Care and Protection Act 2001 (Qld) ch 6, pt 2, div 5.
[32] Julia Black, 'Talking About Regulation' (1998) Public Law 77, cited in Morgan and Yeung, above n 30, 176–8.
[33] Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992) 25.
[34] Baldwin and Cave, above n 29, 98.
[35] RSPCA Australia, Our Work: Inspectorate (2007) <http://www.rspca.org.au/about/ourwork_inspect.asp> at 19 November 2007.
[36] RSPCA Australia, RSPCA: Australia National Statistics 2005–2006 (2007) <http://www.rspca.org.au/resource/stats2006.pdf> at 19 November 2007.
[37] RSPCA Victoria, Annual Report 2001–2002, 38.
[38] As with 'companion animal', there is no common legislative definition of 'farmed animal'. Jurisdictions take a variety of approaches, some not defining the term at all (eg the Australian Capital Territory, Queensland and Tasmania). Other jurisdictions take a very broad approach (eg in New South Wales, a 'stock animal' is defined as 'an animal which belongs to the class of animals comprising cattle, horses, sheep, goats, deer, pigs, poultry and any other [prescribed] species': Prevention of Cruelty to Animals Act 1979 (NSW) s 4). Others define farm animals by reference to their use in primary (ie commercial) production, and this is the definition assumed by this article (eg in Victoria, 'farm animal' refers to cattle, sheep, pigs, poultry, goats, and deer 'if kept for or used in connexion with primary production': Prevention of Cruelty to Animals Act 1986 (Vic) s 3).
[39] For a full list see CSIRO Publishing, Primary Industries Report Series (2007) CSIRO <http://www.publish.csiro.au/nid/22/sid/11.htm> at 19 November 2007. In the area of scientific research, the National Health and Medical Research Council ('NHMRC') is responsible for producing a code of practice for the care and use of animals in scientific research: NHMRC, Australian Code of Practice for the Care and Use of Animals for Scientific Purposes (7th ed, 2004). There are no national codes dealing with the use and care of animals in zoos or in entertainment, such as in circuses.
[40] Under s 7 of the Prevention of Cruelty to Animals Act 1986 (Vic) a code may take the form of a disallowable instrument. Under s 6(1)(c) compliance with a code of practice renders the Act inapplicable to the treatment of farmed animals. Victoria has adopted its own codes of practice, based on the Model Codes of Practice: see Victoria, Department of Primary Industries, Codes of Practice for Animal Welfare (2007) <http://www.dpi.vic.gov.au/dpi/nrenfa.nsf> at 19 November 2007.
[41] Under s 44 of the Prevention of Cruelty to Animals Act 1985 (SA) codes of practice may be incorporated by regulation and, under s 43, compliance with a code will be a complete defence to a cruelty prosecution. Most of the Model Codes of Practice have been adopted under s 10 and sch 2 of the Prevention of Cruelty to Animals Regulation 2000 (SA). Uniquely to South Australia, compliance with all of the incorporated codes is mandatory, with a breach carrying a fine of $1,250.
[42] The Minister may adopt a code of practice under s 24 of the Animal Welfare Act 1999 (NT) and, under s 79(1) of the Act, it is a defence to prosecution for an offence if there has been compliance with an adopted code of practice. The Northern Territory has considered a number of the Model Codes of Practice, but so far adopted a small number: see Northern Territory, Department of Local Government, Housing and Sport, Animal Welfare Advisory Committee Annual Reports (2007) <http://www.animalwelfare.nt.gov.au/publications> at 19 November 2006.
[43] Under s 22 of the Animal Welfare Act 1992 (ACT) the Minister may approve a code in writing, and the code is a disallowable instrument. Once a code is adopted, s 20 provides that compliance with the code is a defence to a prosecution for a cruelty offence. The ACT has established its own codes of practice, apparently drawing on the Model Codes of Practice. The codes are dated and coverage is patchy: see Australian Capital Territory, Department of Territory and Municipal Services, Animal Welfare Standards — Codes of Practice (2006) <http://www.tams.act.gov.au/live/pets/animalwelfare/ animalwelfarestandards-codesofpractice> at 19 November 2007.
[44] Section 25 of the Animal Welfare Act 2002 (WA) provides that it is a defence to a prosecution for cruelty where there is compliance with a relevant code of practice. A code of practice can be adopted by regulation under s 94(2)(d) of the Act. A large number of codes, based on the Model Codes of Practice, have been adopted under s 6 and sch 1 of the Animal Welfare (General) Regulations 2003 (WA).
[45] See Tasmania, Department of Primary Industries and Water, Animal Welfare (2007) <http://www.dpiwe.tas.gov.au/inter.nsf/WebPages/EGIL-535VVF?open> at 19 November 2007.
[46] Prevention of Cruelty to Animals Act 1979 (NSW) s 34A.
[47] Prevention of Cruelty to Animals (General) Regulation 2006 (NSW) cl 24.
[48] Prevention of Cruelty to Animals Act 1979 (NSW) s 34A.
[49] Elizabeth Bluff and Neil Gunningham, 'Principle, Process, Performance or What? New Approaches to OHS Standards Setting', Elizabeth Bluff, Neil Gunningham and Richard Johnstone (eds), OHS Regulation for a Changing World of Work (2004) 12, 17. Although arising in an OHS setting, the insights of Bluff and Gunningham transcend their particular regulatory context.
[50] See, eg, Animal Care and Protection Act 2001 (Qld) s 18; Animal Welfare Act 1993 (Tas) s 8(1); Animal Welfare Act 1992 (ACT) s 8(1).
[51] Radford, above n 10, 261 (emphasis in original).
[52] The first aspect is transparently a feature of animal welfare law, with legislation increasingly incorporating a positive duty of care towards animals — for example, to provide adequate food and accommodation: see, eg, Animal Care and Protection Act 2001 (Qld) s 17; Animal Welfare Act 1993 (Tas) s 6. Cf Animal Welfare Act 1992 (ACT) s 8(2)(a), which is expressed in negative terms. Such duties are analogous to general duties used in OHS regulation, where negligence-style standards developed at common law have been incorporated into Australian OHS legislation: see Bluff and Gunningham, above n 50, 20.
[53] Bluff and Gunningham, above n 50, 20.
[54] See, eg, Prevention of Cruelty to Animals Act 1986 (Vic) s 9; Animal Care and Protection Act 2001 (Qld) s 18(2); Prevention of Cruelty to Animals Act 1985 (SA) s 13(2); and Animal Welfare Act 2002 (WA), ss 19(2) and 19(3).
[55] Bluff and Gunningham, above n 50, 20.
[56] Ibid.
[57] Radford, above n 10, 258. The emphasis on changing social attitudes regarding the proper treatment of animals also points to legislation as a means of transforming what is accepted as 'necessary suffering'. For example, the Agriculture (Miscellaneous Provisions) Act 1968 (UK) outlaws 'unnecessary pain' and 'unnecessary distress' in relation to farm animals in the UK. Since the introduction of this broad statutory offence, a range of more specific prohibitions have been introduced through secondary legislation: see Simon Brooman and Debbie Legge, Law Relating to Animals (1997) 198–9.
[58] For a more detailed consideration of this issue see White, above n 22, 279.
[59] For an extended account of this argument see Gary Francione, Rain without Thunder: The Ideology of the Animal Rights Movement (1996). Radford argues, by reference to English and Scottish decisions concerning the cruel treatment of livestock, that the courts have shown a willingness to place the interests of animals ahead of farmers, undermining Francione's thesis: Radford, above n 10, 248–9.
[60] Baldwin and Cave, above n 29, 38.
[61] PIMC, Model Code of Practice for the Welfare of Animals — Pigs (revised), (2007) Department of Agriculture, Fisheries and Forestry <http://www.daffa.gov.au/_media/documents/ animal-plant/animal-welfare/mcopractice/pig-code.pdf> at 19 November 2007. This version of the revised code was endorsed on 20 April 2007 by the PIMC, with a final version to be published by CSIRO (the final version will have editing and formatting changes only). The revised code replaces Primary Industries Standing Committee, Model Code of Practice for the Welfare of Animals — Pigs (2nd ed, 1998).
[62] PIMC, above n 62.
[63] Ibid.
[64] Ibid.
[65] For a well-documented summary of the physical and psychological harm suffered by intensively farmed pigs, see Brian Sherman, Ondine Sherman and Katrina Sharman, From Paddocks to Prisons — Pigs in New South Wales, Australia: Current Practices, Future Directions, (2005), Voiceless, 14–19 <http://www.voiceless.org.au/images/stories/reports/ Voiceless_Report,_From_Paddocks_To_Prisons_Dec_05.pdf> at 19 November 2007.
[66] Ibid. Judicial recognition of this fact is provided by the infamous McLibel case (the longest civil trial in the history of the English legal system, running for 313 court days between 28 June 1994 and 13 December 1996), where confinement of pigs in dry sow stalls was found to be cruel on the basis of the severe restriction in movement: see McDonald's Corporation v Steel and Morris [1997] EWHC QB 366 (Unreported, Bell J, 19 June 1997) [153]–[156], cited in Sherman, Sherman and Sharman, above n 66, 13. Judgment varied in other respects on appeal: see Steel v McDonald's Corporation [1999] EWCA Civ 1144 (Unreported, Pill and May LJJ and Keene J, 31 March 1999). For a critique of the trial court's approach to deciding issues of cruelty see Darian M Ibrahim, 'The Anticruelty Statute: A Study in Animal Welfare' (2006) 1 Journal of Animal Law and Ethics 175, 200–2.
[67] Sherman, Sherman and Sharman, above n 66, 9–10.
[68] PIMC, above n 62, 2.
[69] LexisNexis, Halsbury's Laws of Australia, vol 1(2) (at 19 November 2007) 20 Animals, '1 Property in Animals' [20–50].
[70] The nature and extent of the moral claims which can be made for animals is the subject of intense scholarly debate, with a broad range of perspectives represented in Cass R Sunstein and Martha C Nussbaum (eds), Animal Rights: Current Debates and New Directions (2004). See also Garner, above n 8.
[71] Cass R Sunstein, After the Rights Revolution (1990) 69.
[72] Ibrahim, above n 67, 187, citing Gary L Francione, Introduction to Animal Rights: Your Child or the Dog? (2000).
[73] As Radford suggests, the status of animals as property 'undoubtedly colours attitudes towards animals. This is particularly so with regard to those kept for commercial purposes, which are too readily considered to be just another commodity, and threats to their welfare as the inevitable consequence of competitive pressures and business imperatives': above n 10, 103.
[74] Ibrahim, above n 67, 182–3.
[75] Beyond assuming that animals are sentient (see above n 8), it is beyond the scope of this article to explore arguments about the moral status of animals. The focus on inconsistencies in regulatory approaches to the treatment of different categories of animal is not intended to divert attention from the importance of addressing first order questions about the moral status of animals. For extended accounts of the moral incoherency in our treatment of animals, both as between human and non-human animals and as between different species of non-human animals see Peter Singer, Practical Ethics (2nd ed, 1993) and Tom Regan, The Case for Animal Rights (1983).
[76] Jeff Leslie and Cass Sunstein, 'Animal Rights without Controversy' (2007) 70 Law and Contemporary Problems 117, 118–19. Of course, such a contention is speculative. The question of whether highlighting inconsistencies in the regulation of the treatment of different categories of animal will necessarily lead to widespread public disquiet is an empirical one.
[77] Ibid 123. For a critique of disclosure regulation as an effective regulatory strategy see Baldwin and Cave, above n 29, 49–50.
[78] Leslie and Sunstein, above n 77, 124.
[79] Animals are only considered in the context of free movement between the States, including in debate about whether the power to prohibit the introduction of 'vegetable and animal diseases' should be left to the States or specifically conferred on the Commonwealth: see, eg, Official Record of the Debates of the Australasian Federal Convention, Sydney, 22 September 1897, 1059–64.
[80] Although, as discussed below, there are specific heads of power addressing quarantine (Australian Constitution s 51(ix)) and fisheries (Australian Constitution s 51(x)).
[81] See Kate Nattrass, '''…Und Die Tiere" Constitutional Protection for Germany's Animals' (2004) 10 Animal Law 283, 283.
[82] 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), 110 as amending Treaty Establishing the European Economic Community, opened for signature 25 March 1957, 298 UNTS 11 (entered into force 1 January 1958).
[83] Ibid.
[84] Ibid. Formal acknowledgement of animal sentience is significant to the extent that it makes it more difficult to think about animals as mere commodities.
[85] See Susan Armstrong and Richard Botzler (eds), The Animal Ethics Reader (2003) xi. A more detailed account of the German constitutional development can be found in Nattrass, above n 82. Article 20a (Protection of Natural Resources) of the Grundgesetz was amended to include the words 'and the animals'. Article 20a now reads: 'Mindful also of its responsibility toward future generations, the state shall protect the natural bases of life and the animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.'
[86] Martin Balluch, 'How Austria Achieved a Historic Breakthrough' in Peter Singer (ed), In Defense of Animals: The Second Wave (2006) 157, 162.
[87] Australian Constitution s 51(i).
[88] Australian Constitution s 51(ix).
[89] Australian Constitution s 51(x).
[90] Australian Constitution s 51(xxix).
[91] AAWS, above n 8, 27.
[92] Senate Select Committee on Animal Welfare, Parliament of Australia, Export of Live Sheep from Australia (1985) 185. This report is in some respects extraordinary. In particular, it dedicates an entire chapter to the conundrum of how to weigh up the competing values of economic development and animal welfare, drawing on a range of ethical and moral philosophers, including Peter Singer (a witness before the committee and author of Animal Liberation (Singer, above n 1), Mary Midgely (Animals and Why They Matter (1984)) and Tom Regan (All That Dwell Therein (1982)). It is difficult to imagine a contemporary national parliamentary committee, addressing an animal 'industry', pausing to engage in a quasi-philosophical consideration of ethical challenges to the prevailing economic orthodoxy.
[93] Ibid 185–6.
[94] In 2002, approximately six million sheep, one million cattle and 135,000 goats were exported: John Keniry et al, Livestock Export Review: Final Report, a Report to the Commonwealth Minister for Agriculture, Fisheries and Forestry (2003) ('Keniry Report') 57–8. This review was prompted by the widely-publicised Cormo Express incident (ibid 4), in which a shipment of live sheep was rejected by Saudi Arabia and stranded at sea for weeks before being accepted by Eriteria, by which time there had been a total of 5,691 deaths out of a total initial shipment of 57,937 sheep.
[95] Ibid 11.
[96] Senate Select Committee on Animal Welfare, above n 93, 191.
[97] Keniry Report, above n 95, 35.
[98] Ibid 24.
[99] Ibid 35.
[100] Ibid 23.
[101] Baldwin and Cave, above n 29, 129.
[102] Commonwealth, Department of Agriculture, Fisheries and Forestry, Australian Standards for the Export of Livestock (Version 2.1) <http://www.daff.gov.au/animal-plant-health/welfare/export-trade/v2-1
> at 19 November 2007.
[103] Ibid standard 2.1.
[104] Senate Select Committee on Animal Welfare, above n 93.
[105] In what may prove to be a significant case, the legality of the live animal export trade has been challenged before the Magistrates Court in Western Australia. On November 2005, Western Australian police, acting on behalf of the Western Australia State Solicitor and the Western Australian Government, laid animal cruelty charges against West Perth livestock exporting company Emanuel Exports Pty Ltd and its two directors for breaches of the Animal Welfare Act 2002 (WA). A trial was held in February 2007, with judgment reserved. For a summary of the history of this matter, see Animals Australia, Live Export 'Al Kuwait' Cruelty Complaint, Live Animal Export: Indefensible <http://www.liveexport-indefensible.com/facts/case.htm> at 19 November 2007.
[106] See Environment Protection and Biodiversity Conservation Act 1999 (Cth) pt 13A. These provisions give effect to Australia's international obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature 3 March 1973, 993 UNTS 243, 1052 UNTS 406 (rectification) (entered into force 1 July 1975) and the Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 142 (entered into force 19 December 1993).
[107] An animal is defined as 'any member, alive or dead, of the animal kingdom (other than a human being)': Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 528.
[108] Sociological explanations may also be illuminating in this context. Franklin argues that the way in which Australians understand and relate to animals is inextricably bound up with the process of colonisation and issues of national identity: Adrian Franklin, Animal Nation: The True Story of Animals and Australia (2006). Initially, native Australian animals were viewed as undesirable, with colonial professional shooters working 'their way through country shooting out the wildlife much as the forests were clear-felled'. However, Federation and the development of an independent Australian national culture meant that 'nativeness was to be associated positively with the emergent nation and privileged over the introduced species, who could be now be associated with their rejected colonial status. … native animals seemed to demand policies of protection': 15.
[109] This Committee was established in 1989, and its membership includes Commonwealth, State and Territory departmental representatives, representatives of animal welfare organisations such as the RSPCA and Animals Australia, and scientific research, agricultural and veterinary representatives: see Commonwealth, Department of Agriculture, Fisheries and Forestry, National Consultative Committee on Animal Welfare <http://www.daff.gov.au/animal-plant-health/welfare/nccaw> at 19 November 2007.
[110] AAWS, above n 8.
[111] PIMC, About the PI Ministerial Council <http://www.mincos.gov.au/about_pimc> at 19 November 2007.
[112] See Commonwealth, Minister for Fisheries, Forests and Conservation, 'Major Boost for New Animal Welfare Strategy' (Press Release, 5 July 2005) <http://www.mffc.gov.au/releases/2005/05126m.html> at 19 November 2007.
[113] AAWS, above n 8, 7.
[114] Ibid (citation omitted).
[115] Ibid.
[116] Ibid 26.
[117] Ibid 11–18.
[118] Ibid.
[119] Ibid 18.
[120] The failure by the AAWS to acknowledge this point is nowhere more manifest than in the use of the image of a pig, located, apparently, in a well-grassed open paddock under a clear blue sky: ibid 20. This image misrepresents the lives of almost all farmed pigs, with more than 90% now intensively farmed: Sherman, Sherman and Sharman, above n 66, 1.
[121] AAWS, above n 8, 22.
[122] Office International des Epizooties (OIE), <http://www.oie.int/eng/en_index.htm> at 19 November 2007.
[123] AAWS, above n 8, 33. It should be noted that the OIE is primarily concerned with animal welfare in the scientific sense, rather than the legal sense: see OIE, Objectives <http://www.oie.int/eng/OIE/en_objectifs.htm> at 19 November 2007. This is consistent with a distinction drawn by Radford, who suggests that 'animal welfare is principally a scientific notion, which has emerged as a discrete area of study only comparatively recently; cruelty, in contrast, is a long-established legal test': Radford, above n 10, 261–2 (emphasis in original, citation omitted). The AAWS takes a broader approach, suggesting that 'animal welfare is a complex issue. Science and ethics are both essential. … Science provides the body of evidence about animals that is used for moral and ethical judgments about their welfare': AAWS, above n 8, 6.
[124] AAWS, above n 8, 33. See WSPA, Universal Declaration on Animal Welfare (2005) <http://www.wspa-international.org/universaldeclaration/gov/conference/publicfiles/ UDAW_Text_2005.pdf> at 19 November 2007.
[125] 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 Other Related Treaties, opened for signature 2 October 1997, [1997] OJ C 340/01 (entered into force 1 May 1999), 110 as amending Treaty Establishing the European Community, opened for signature 25 March 1957, 298 UNTS 11 (entered into force 1 January 1958).
[126] WSPA, 'One Step Closer to a UN "First" for Animals' (Press Release, 14 December 2006) <http://www.wspa-international.org/universaldeclaration/gov/conference/publicfiles/ 035UNdec-G77-News-Release-121206.pdf> at 19 November 2007.
[127] This is not to downplay the laudable goal of seeking to improve standards of animal welfare internationally, notwithstanding domestic infelicities. The pursuit of this goal is essential in order to ensure that animal cruelty is not 'exported' to jurisdictions with less rigorous animal welfare standards. For example, in the area of animal use in scientific research, pharmaceutical and biotechnology companies are increasingly conducting research involving animals in countries such as China and Singapore, where animal welfare standards may not be strict and where action by animal activists in drawing attention to the cruel nature of this research is much less common: see, eg, Michael Backman, 'Activists Force the Pigs to Fly to Asia', The Age (Melbourne), 14 December 2005, 10.
[128] OIE, Terrestrial Animal Health Code (2007), Appendix 3.7.1 <http://www.oie.int/eng/normes/mcode/en_sommaire.htm> at 19 November 2007. The origin of the five freedoms can be traced back to the 1960s Brambell Committee inquiry into the treatment of farmed animals in Great Britain: F W Rogers Brambell et al, Report of the Technical Committee to Enquire into the Welfare of Animals Kept Under Intensive Livestock Husbandry Systems (A Report to the Great Britain Minister of Agriculture, Fisheries and Food) (1965), cited in Radford, above n 10, 262.
[129] This includes, for example, implicit acceptance in State and Territory legislation (especially in the requirements of the duty to meet the welfare needs of an animal): see, eg, Animal Care and Protection Act 2001 (Qld) s 17(3).
[130] WSPA, above n 125.
[131] AAWS, above n 8, 34.
[132] For a discussion of the ways in which Commonwealth power may be invoked under Australian Constitution s 51(xxix), relying on international treaties, see Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (4th ed, 2006) 904–29.
[133] Senator Andrew Bartlett, an Australian Democrats representative, introduced the National Animal Welfare Bill 2005 (Cth) into the Senate on 20 June 2005 with the aim of establishing a uniform, national approach to animal welfare legislation. The bill was referred for inquiry to the Senate Rural and Regional Affairs and Transport Committee, which reported on 22 June 2006. In a report notable for a complete lack of serious analytical consideration of the issues raised by the Bill and the 204 submissions received by the inquiry, a majority of the committee recommended that the bill not proceed: see Senate Rural and Regional Affairs and Transport Committee, Parliament of Australia, National Animal Welfare Bill 2005 (2006).
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/FedLawRw/2007/14.html