¹ Peter Singer, Animal Liberation (revised ed, 2001).

² See Animal Legal Defense Fund, Programs: Animal Law Courses (2007) <http://www.aldf.org/content/index.php?pid=83> at 19 November 2007.

³ See, eg, Sonia Waisman, Bruce Wagman and Pamela Frasch, Animal Law (2^nd ed, 2002).

⁴ 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.

⁵ 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) 29 Melbourne University Law Review 298, 298–9.

⁶ 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.

⁷ 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) 229 CLR 1, see Andrew Stewart and George Williams, Work Choices: What the High Court Said (2007).

⁸ 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.

⁹ AAWS, above n 8.

¹⁰ Jamieson, Philip, ‘Duty and the Beast: The Movement in Reform of Animal Welfare Law’ (1991) 16 University of Queensland Law Journal 238Google Scholar, 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.

¹¹ 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.

¹² Emmerson, above n 11, 8.

¹³ Jamieson, above n 10, 240–2.

¹⁴ 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.

¹⁵ 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.

¹⁶ 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).

¹⁷ Animal Care and Protection Act 2001 (Qld) s 18(1).

¹⁸ Prevention of Cruelty to Animals Act 1986 (Vic) s 9(1)(c).

¹⁹ Jamieson, above n 10, 250.

²⁰ Ibid.

²¹ Ibid 249.

²² White, Steven, ‘Legislating for Animal Welfare: Making the Interests of Animals Count’ (2003) 28 Alternative Law Journal 277CrossRefGoogle Scholar, 278 (citations omitted).

²³ Radford, above n 10, 357.

²⁴ 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).

²⁵ 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.'

²⁶ 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).

²⁷ Black, Julia, ‘Decentring Regulation: The Role of Regulation and Self Regulation in a “Post Regulatory” World’ (2001) 54 Current Legal Problems 103.CrossRefGoogle Scholar

²⁸ 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.

²⁹ Robert Baldwin and Martin Cave, Understanding Regulation: Theory, Strategy and Practice (1999) 35.

³⁰ Bronwen Morgan and Karen Yeung, An Introduction to Law and Regulation (2007) 96.

³¹ RSPCA Australia, Objectives (2007) <http://www.rspca.org.au/about/objectives.asp> at 19 November 2007.

³² Animal Care and Protection Act 2001 (Qld) ch 6, pt 2, div 5.

³³ Julia Black, ‘Talking About Regulation’ (1998) Public Law 77, cited in Morgan and Yeung, above n 30, 176–8.

³⁴ Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992) 25.

³⁵ Baldwin and Cave, above n 29, 98.

³⁶ RSPCA Australia, Our Work: Inspectorate (2007) <http://www.rspca.org.au/about/ourwork_inspect.asp> at 19 November 2007.

³⁷ RSPCA Australia, RSPCA: Australia National Statistics 2005–2006 (2007) <http://www.rspca.org.au/resource/stats2006.pdf> at 19 November 2007.

³⁸ RSPCA Victoria, Annual Report 2001–2002, 38.

³⁹ 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).

⁴⁰ 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 (7^th ed, 2004). There are no national codes dealing with the use and care of animals in zoos or in entertainment, such as in circuses.

⁴¹ 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.

⁴² 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.

⁴³ 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.

⁴⁴ 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.

⁴⁵ 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).

⁴⁶ 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.

⁴⁷ Prevention of Cruelty to Animals Act 1979 (NSW) s 34A.

⁴⁸ Prevention of Cruelty to Animals (General) Regulation 2006 (NSW) cl 24.

⁴⁹ Prevention of Cruelty to Animals Act 1979 (NSW) s 34A.

⁵⁰ 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.

⁵¹ 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).

⁵² Radford, above n 10, 261 (emphasis in original).

⁵³ 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.

⁵⁴ Bluff and Gunningham, above n 50, 20.

⁵⁵ 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).

⁵⁶ Bluff and Gunningham, above n 50, 20.

⁵⁷ Ibid.

⁵⁸ 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.

⁵⁹ For a more detailed consideration of this issue see White, above n 22, 279.

⁶⁰ 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.

⁶¹ Baldwin and Cave, above n 29, 38.

⁶² 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 (2^nd ed, 1998).

⁶³ PIMC, above n 62.

⁶⁴ Ibid.

⁶⁵ Ibid.

⁶⁶ 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.

⁶⁷ 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 Ibrahim, Darian M, ‘The Anticruelty Statute: A Study in Animal Welfare’ (2006) 1 Journal of Animal Law and Ethics 175Google Scholar, 200–2.

⁶⁸ Sherman, Sherman and Sharman, above n 66, 9–10.

⁶⁹ PIMC, above n 62, 2.

⁷⁰ LexisNexis, Halsbury's Laws of Australia, vol 1(2) (at 19 November 2007) 20 Animals, ‘1 Property in Animals’ [20–50].

⁷¹ 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.

⁷² Cass R Sunstein, After the Rights Revolution (1990) 69.

⁷³ Ibrahim, above n 67, 187, citing Gary L Francione, Introduction to Animal Rights: Your Child or the Dog? (2000).

⁷⁴ 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.

⁷⁵ Ibrahim, above n 67, 182–3.

⁷⁶ 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 (2^nd ed, 1993) and Tom Regan, The Case for Animal Rights (1983).

⁷⁷ 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.

⁷⁸ Ibid 123. For a critique of disclosure regulation as an effective regulatory strategy see Baldwin and Cave, above n 29, 49–50.

⁷⁹ Leslie and Sunstein, above n 77, 124.

⁸⁰ 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.

⁸¹ Although, as discussed below, there are specific heads of power addressing quarantine (Australian Constitution s 51(ix)) and fisheries (Australian Constitution s 51(x)).

⁸² See Nattrass, Kate, ‘''…Und Die Tiere” Constitutional Protection for Germany's Animals’ (2004) 10 Animal Law 283Google Scholar, 283.

⁸³ 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).

⁸⁴ Ibid.

⁸⁵ Ibid. Formal acknowledgement of animal sentience is significant to the extent that it makes it more difficult to think about animals as mere commodities.

⁸⁶ 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.'

⁸⁷ Martin Balluch, ‘How Austria Achieved a Historic Breakthrough’ in Peter Singer (ed), In Defense of Animals: The Second Wave (2006) 157, 162.

⁸⁸ Australian Constitution s 51(i).

⁸⁹ Australian Constitution s 51(ix).

⁹⁰ Australian Constitution s 51(x).

⁹¹ Australian Constitution s 51(xxix).

⁹² AAWS, above n 8, 27.

⁹³ 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.

⁹⁴ Ibid 185–6.

⁹⁵ 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.

⁹⁶ Ibid 11.

⁹⁷ Senate Select Committee on Animal Welfare, above n 93, 191.

⁹⁸ Keniry Report, above n 95, 35.

⁹⁹ Ibid 24.

¹⁰⁰ Ibid 35.

¹⁰¹ Ibid 23.

¹⁰² Baldwin and Cave, above n 29, 129.

¹⁰³ 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.

¹⁰⁴ Ibid standard 2.1.

¹⁰⁵ Senate Select Committee on Animal Welfare, above n 93.

¹⁰⁶ 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.

¹⁰⁷ 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).

¹⁰⁸ 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.

¹⁰⁹ 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.

¹¹⁰ 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.

¹¹¹ AAWS, above n 8.

¹¹² PIMC, About the PI Ministerial Council <http://www.mincos.gov.au/about_pimc> at 19 November 2007.

¹¹³ 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.

¹¹⁴ AAWS, above n 8, 7.

¹¹⁵ Ibid (citation omitted).

¹¹⁶ Ibid.

¹¹⁷ Ibid 26.

¹¹⁸ Ibid 11–18.

¹¹⁹ Ibid.

¹²⁰ Ibid 18.

¹²¹ 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.

¹²² AAWS, above n 8, 22.

¹²³ Office International des Epizooties (OIE), <http://www.oie.int/eng/en_index.htm> at 19 November 2007.

¹²⁴ 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.

¹²⁵ 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.

¹²⁶ 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).

¹²⁷ 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.

¹²⁸ 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.

¹²⁹ 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.

¹³⁰ 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).

¹³¹ WSPA, above n 125.

¹³² AAWS, above n 8, 34.

¹³³ 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 (4^th ed, 2006) 904–29.

¹³⁴ 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).