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Is There a Place for the Commonwealth As Animal Welfare Guardian?

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CATTLE V THE CROWN: IS THERE A PLACE FOR THE COMMONWEALTH AS ANIMAL WELFARE GUARDIAN? BRENDAN WALKER-MUNRO* I INTRODUCTION We rely on animals for the provision of foodstuffs, material goods, domestic and commercial labour, and medical and cosmetic experimentation.1 Yet despite the many obvious ways that animals interact with the human sphere there is little to no regulation of animal welfare or their interests at the Commonwealth level. As our population grows so too does the economic and social value of animals – in the words of Andrew Thelander back in 1991 ‘animals have already contributed more to [Australia] than all the breweries and football teams put together’.2 This paper will seek to examine whether there is a need for a Commonwealth guardianship framework for animal welfare. It will examine the current tensions in the existing framework between international, national and State laws, as well as conduct a comparative analysis of the cases for and against federalist intervention. It will then be proposed that the current situation requires Commonwealth intervention to establish a guardianship model of animal welfare law based on internationally and socially recognised principles, with a concomitant expansion of the rules of standing enabling representation of animals before the Courts by litigation guardians, in a similar model to that used for children and the mentally ill. II THE LAW AS IT WAS, AND THE LAW AS IT IS Given that our laws develop from our philosophy3 ‘animal welfare’ should be properly distinguished from ‘animal rights’. Animal welfare recognises humanity as an apex predator, and that our society is dependent on animals for food, sport, entertainment and science – our use of animals is morally justifiable so long as it occurs ‘humanely’.4 Animal rights on the other hand dictates a far more abolitionist philosophy that requires that society must cease all use of animals, regardless of purpose.5 Dr Hugh Wirth, former President of the RSPCA, said: The general media, and thus a great number of people in the community, believe that animal welfare and animal rights are synonymous terms and are therefore interchangeable. This view is simply wrong…humans may make use of animals for companionship, work, pleasure and food and fibre production, provided all animals are * Manager, Revenue Assurance & Integrity Office of Liquor, Gaming & Racing, NSW Department of Justice. 1 Steven White, ‘Animals and the Law: A New Legal Frontier?’ (2005) 29(1) Melbourne University Law Review 298. 2 Andrew Thelander, ‘Positive Concepts in Legislative Reform’ (Paper presented at the Animal Welfare Conference, Brisbane, 8-9 June 1991) 21. 3 Jerrold Tannenbaum, ‘Animals and the law: property, cruelty, rights’ (1995) 62 Social Research 539, 575. 4 Ibid, 576. 5 Cass Sunstein, ‘Introduction: What Are Animal Rights?’ Cass R Sunstein and Martha C Nussbaum (eds), Animal Rights: Current Debates and New Directions (Oxford University Press, 2004) 4-5. 364 University of Queensland Law Journal 2015 always treated with respect, not subjected to cruelty and their welfare is fully protected.6 Within this philosophical framework two camps emerge: welfarists believe that the interests of animals or humans are of equal worth,7 whilst abolitionists believe animals are ‘bearers of intrinsic value’8 and deserve complete emancipation.9 Either way, Glasgow argues both views are too universalist, based on conflicting philosophical views about the legal status of animals: Therefore, rather than speaking of ‘animal’ rights or ‘animal’ welfare, we should speak specifically of gorilla rights, pig rights, dolphin rights and so on. These rights or welfare interests are likely to differ considerably from species to species. When discussing animal rights, we should always ask: which animal? And which rights? 10 If we accept Glasgow’s hypothesis this in turn suggests that a starting point for any possible intervention would be a clarification on why we protect animals in the first place. Much of the law relating to animals stems from mankind’s philosophies towards animals at the relevant times of law-making. Poor treatment of animals was rife throughout the Middle Ages where they were considered mere chattels to be used and abused at their owner’s whim. Whilst animals appearing in ecclesiastical Courts charged with criminal offences11 may seem absurd, it nonetheless marks a point where animals transitioned away from being mere property.12 But the transition to ‘something more’ did not fully crystallise until the philosophical revolution in the 1800s established concepts of universal suffrage and anthropomorphism,13 growing from roots in Judeo-Christian religion14 and the works of Aristotle15 and Immanuel Kant.16 The passing of the Ill-Treatment of Cattle Act 1822 (UK) was the first English statute to protect animals’ unique contributions to society – offenders faced prosecution and Court imposed fines.17 In Australia the position was little different. The first piece of animal protection legislation was enacted in 1837 in Van Diemen’s Land, followed by 6 Clare McCausland, United Nations Declaration on Animal Welfare: Why Not Rights? (19 April 2013) Regarding Rights, <http://asiapacific.anu.edu.au/regarding-rights/2013/04/19/united- nations-declaration-on-animal-welfare-why-not-rights/>. 7 Robert Garner, ‘Animal Welfare: A Political Defense’ (2006) 1 Journal of Animal Law and Ethics 161. 8 Ibid, 187. 9 David Glasgow, ‘The Law of the Jungle: Advocating for Animals in Australia’ (2008) 13(1) Deakin Law Review 181. 10 Ibid 191. 11 Jen Girgen, ‘The Historical and Contemporary Prosecution and Punishment of Animals’ (2003) 9 Animal Law 97. 12 Glenda Emmerson, ‘Duty and the Beast: Animal Welfare Issues’ (1993) Background Information Brief No 25, presented to the Queensland Parliament, Brisbane, April 1993 (available at http://www.parliament.qld.gov.au/documents/explore/ResearchPublications/BackgroundInforma tionBriefs/bib25ge.pdf) 2. 13 William Blackstone, Commentaries on the Laws of England (1769), 240-241. 14 The Bible, Book of Genesis, 1:26. 15 Aristotle, ‘Politics’ in Jonathan Barnes (ed), The Complete Works of Aristotle (1984, Oxford University Press) 1993-4. 16 Immanuel Kant, Lecture on Ethics (translated by L Infield, 1963), 239-40. 17 Budge v Parsons (1863) 129 RR 367; Ford v Wiley (1889) 23 QBD 203. Vol 34(2) Cattle v The Crown 365 NSW in 1850 and the other colonies in the 1860s.18 Most of the original legislative protections for animals were part of colonial Police Acts19 and the remnants of these can be seen variously around Australia in certain preserved criminal legislation.20 With Federation in 1901 came, along with a Federal Parliament, the Australian Constitution. Unsurprisingly, given the ethnocentric British social viewpoints of the age, neither animal welfare nor any cogent derivation thereof was listed as a head of power, nor was it mentioned at any time during the Constitutional debates.21 In the absence of a guiding Commonwealth statute, animal welfare law evolved solely as a creature of State and Territory regulation.22 But the Ill-Treatment of Cattle Act 1822 (UK) also reinforced long held linkages between the legal status of animals and their economic utility. The UK Act only protected certain animals (a position likewise reflected in Australian Police Acts) and only criminalised events which focused on animals with high economic value.23 Both wild animals24 and those kept ‘for whim and pleasure’25 were not considered as needing the protection of the law.26 Ibrahim tells us that the scope of the protection offered by the law was directly proportional to the animal’s economic value to its owner or possessor for good reason: …ie. if it will produce a societal benefit. Therefore, anticruelty statutes need only protect against the irrational property owner…Viewed in this manner, the focus of anticruelty statutes on the prevention of gratuitous suffering is effectively a regulation of the irrational property owner, while the conduct of rational property owners is exempted.27 Both English and Australian common law have long defined animals as a form of chattel28 and the subject of absolute property,29 dealing with animals purely as a class of property: By itself … [this] would suggest that there are no constraints on the ways in which humans may deal with animals. They may do so compassionately, sensitively and 18 Philip Jamieson, ‘Duty and the Beast: The Movement in Reform of Animal Welfare Law’ (1991) 16 University of Queensland Law Journal 238. 19 Police Act 1865 (29 Vict No 10) (TAS), s 83. 20 For example Summary Offences Act (NT), ss 75A and 82; Criminal Code (Qld), s 468; Criminal Law Consolidation Act 1935 (SA), s 83I. 21 Official Record of the Debates of the Australasian Federal Convention, Sydney, 22 September 1897, 1059–64. 22 Prevention of Cruelty to Animals Act 1901 (NSW); Prevention of Cruelty to Animals Act 1904 (TAS); Animals Protection Act 1901 (Qld); Prevention of Cruelty to Animals Act 1908 (SA); Prevention of Cruelty to Animals Act 1920 (WA). 23 Such as songbirds, strays and horses; Emmerson, above, n 12, 3. 24 John Edwards, ‘Fraudulent Taking in Larceny’ (1953) 16 Modern Law Review 385–388; also see Criminal Code Act Compilation Act 2013 (WA), s 370. 25 Blackstone, above n 13, 236. 26 The Case of Swans (1572–1616) 7 Co Rep 15b; 77 ER 435; Blades v Higgs (1865) 11 HLC 621; 11 ER 1474. 27 Darian M Ibrahim, ‘The Anticruelty Statute: A Study in Animal Welfare’ (2006) 1 Journal of Animal Law and Ethics 175, 200. 28 Stephens v State (1888) 65 Miss 329, 331. 29 Butterworths, Halsbury’s Laws of Australia, Vol 1(2) (at 4 March 2005), 20. 366 University of Queensland Law Journal 2015 respectfully; equally though, under a regime of ‘absolute property’, they may treat animals insensitively and in a way that is gratuitously cruel, without legal ramifications…30 It is easy to see that the legal rights of animals have evolved as a function of our philosophical drive to see our ‘societal inferiors’ properly treated but balanced against an economic desire to maximise their personal worth to us as owners.
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