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34 U. Queensland L.J. 363 (2015)
Cattle v the Crown: Is There a Place for the Commonwealth as Animal Welfare Guardian

handle is hein.journals/qland34 and id is 371 raw text is: 











        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. 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'.' 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.' 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.
   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 bid, 576.
   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.

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