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House of Assembly - Fifty-First Parliament, Second Session (51-2)
2008-03-05 Daily Xml
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PREVENTION OF CRUELTY TO ANIMALS (ANIMAL WELFARE) AMENDMENT BILL

Second Reading

Second reading.

The Hon. J.W. WEATHERILL (Cheltenham—Minister for Families and Communities, Minister for Aboriginal Affairs and Reconciliation, Minister for Housing, Minister for Ageing, Minister for Disability, Minister Assisting the Premier in Cabinet Business and Public Sector Management) (16:18): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Prevention of Cruelty to Animals (Animal Welfare) Amendment Bill 2007 will:

increase penalties up to $20,000 or 2 years' imprisonment for animal ill treatment and organised animal fights, such as cock fighting;

make aggravated animal cruelty an indictable offence, increasing the penalties for offenders;

empower animal welfare inspectors to routinely inspect intensive farming establishments, puppy farms, circuses, council pounds and similar places holding animals;

allow animal welfare inspectors to enter a property to rescue an animal, even if the owner is not present;

empower courts to order confiscation of objects used in an offence;

allow courts to order the forfeiture of mistreated animals even where no conviction has been recorded;

include in the offence of ill treatment of animals the keeping of animals in conditions likely to cause pain, distress or disease;

change the name of the Act to the Animal Welfare Act 1985 to reflect a changed emphasis from preventing animal cruelty to promoting animal welfare. This emphasis is reflected throughout the provisions of the Bill.

Consultation

A draft consultation Bill was distributed to all key stakeholders and interested individuals and many of their responses, particularly those from industry groups, raised issues of regulatory impacts.

This Bill has been prepared after consideration of the comments received during the consultation period, and consultation with the following groups and organisations amongst others:

Primary Industries and Resources South Australia, Animal Health Branch

Minister for Agriculture, Food and Fisheries

Department for Environment and Heritage, Animal Welfare Unit

Department for Environment and Heritage, Compliance and Investigations Unit

Department for Water, Land and Biodiversity Conservation, Animal Plant Control Group Unit

RSPCA

South Australian Farmers Federation.

Title of the Act

Modern animal welfare legislation uses terms such as animal protection and animal welfare rather than prevention of cruelty. This is a change in emphasis. The title of the current Act, namely the Prevention of Cruelty to Animals Act 1985, focuses on preventing cruelty rather than broader considerations of animal welfare. The Bill will rename the Act as the Animal Welfare Act 1985. References to cruelty will be replaced by ill treatment and welfare requirements of animals. Similarly, causing harm to an animal, as defined by the changes proposed in the Bill, will be an offence. This reflects a duty of care which exceeds merely preventing cruelty.

Increasing penalties and vicarious offences

The penalties in the Act relating to ill treatment and enforcement will be increased, as will penalties for offences against the regulations. A new offence of aggravated cruelty will be created in circumstances where a person intentionally or recklessly ill treats an animal to the extent that it dies or is seriously harmed. This will be an indictable offence with a maximum penalty of $50,000 or 4 years imprisonment. The employer of a person who, in the course of their duties, commits an offence, will be liable to the same penalty as the principal offender unless it can be established that the employer could not, through due diligence, have prevented the offence from occurring.

Powers of Inspectors

The Minister will be able to appoint persons as inspectors with broader powers than the Act currently permits. The appointments may be made subject to conditions, thus enabling the Minister to limit an inspector's powers, as appropriate. Subject to any conditions imposed on an inspector's powers, an inspector may exercise his or her powers:

with the consent of the owner; or

if there is reasonable suspicion of an offence, with a warrant; or

if the situation is urgent, without a warrant; or

to conduct routine inspections of certain premises or vehicles.

The inspector may also be accompanied by any person the inspector considers necessary. The general inspectorial powers will extend to places linked to an offence as well as the place where an alleged offence occurred. If the conditions of appointment permit, an inspector will be entitled, on reasonable notice, to enter intensive animal production facilities, farms, dog pounds, circuses, rodeos, zoos, puppy farms, pet shops, etc.

The increased powers of entry afforded to inspectors in relation to the investigation of suspected breaches parallels that in other legislation; for example, the National Parks and Wildlife Act 1972. As inspectors are appointed by the Minister, the Public Service Management Act applies to inspectors, thus ensuring appropriate and lawful behaviour and penalties for inappropriate actions and compliance with the Code of Conduct for Public Sector Employees.

Preventing harm

The current Act allows inspectors to enter premises if an offence has been committed or to seize an animal if it is the subject of an offence. The Bill provides that the inspector can use the powers conferred by the Act if there is reasonable suspicion that an offence is about to be committed or if the animal will suffer unnecessary harm if urgent action is not taken (whether or not there is suspicion of an offence). It also authorises inspectors to issue notices with respect to special care that must be given to an animal or to its surroundings. This may include orders as diverse as providing veterinary attention to a limping dog, or removing broken glass from a horse paddock.

The Act will be amended so as to make provision for the giving of animal welfare notices. If an inspector believes on reasonable grounds that the exercise of powers under the proposed provision is warranted because the welfare of an animal is being adversely affected, the inspector will be able to give the person a written animal welfare notice specifying the action that must be taken for the welfare of the animal and the time within which such action must be taken. Contravention of an animal welfare notice will be an expiable offence.

Organised animal fights

The Act will be amended to create a new section to deal with organised animal fights, incorporating the provisions currently in different sections of the Act and regulations. This section would stipulate that any person involved in the activity, (for example, an organiser, any participants, the owners of the animals, any person present and any person who knowingly allows their premises or vehicles to be used for this purpose) commits an offence. It will also be an offence for a person to be in possession of other relevant items that would assist in training an animal to fight.

The community does not accept this 'sport' and submissions received in the consultation period clearly indicated that any person involved should be prosecuted. The re organisation of the provisions has no regulatory impact. The expansion of the provisions relating to organised animal fights would mean that any person involved in such activities would be liable for prosecution.

Objects used in offences

The Bill provides that the court may order objects used in an offence (for example, spurs confiscated from a cock fight) to be forfeited to the Crown to be disposed of as the Minister sees fit. This may include allowing law enforcement agencies to retain the items for evidentiary purposes or allowing museums to retain the objects for artistic or cultural purposes.

Destruction of animals by veterinarians or inspectors

The current Act allows inspectors or veterinarians to destroy animals that 'by reason of age, illness or injury, such that the animal is so weak or disabled, or in such pain, that it should be killed '. The Bill extends the power of veterinarians and inspectors to euthanise animals which are suffering severely. An inspector must not exercise any such power without the consent of the owner or on the warrant of a magistrate except where the animal is wild or the owner is uncontactable.

The intention of this amendment is to allow inspectors and veterinarians to kill animals which are obviously wild or which have such severe behavioural abnormalities that caging them whilst an owner is sought would, of itself, amount to a form of ill treatment.

Disposal of animals

Currently, an inspector can dispose of animals on the authority of a court order, if the owner cannot be found or if an owner fails to collect an animal within 3 clear days of being advised that it is being held. The Bill expands this ability to include the disposal of animals that cannot reasonably be held until a matter is heard in the courts. This may include circumstances such as fighting cocks, large numbers of emaciated livestock or a dog of such bad temperament or so diseased that it is impractical to hold it. In such cases, an inspector can dispose of the animal and, if it is sold, the proceeds will be held by the Crown pending the outcome of the prosecution.

In many cases, it is unreasonable or unfair to the animal to hold it pending a prosecution. In some cases (for example, emaciated livestock or ill natured dogs), the animals are of little or no financial value. In circumstances where the animals do have value, the proceeds will be held by the Minister pending resolution of proceedings. This will ensure that, if the defendant is found not guilty, he or she will be compensated at market value for the loss of the animal. Currently, on a finding of guilt, the court may order the defendant to pay the costs incurred by keeping the animal until the matter is heard. This provision will reduce those costs in some cases.

Powers of the court

Under the current Act, the court may order that a person forfeit an animal to the RSPCA on conviction of an offence against the Act. The Bill provides that the court may also order the forfeiture of an animal if the person is deemed unfit to plead or on a finding of guilt. In addition, the court may make an order that a person may keep any animal owned by the person in accordance with the conditions of the order (which may include a condition that the care of the animal be supervised or monitored by an inspector). The court may take into consideration any other matters put to the court on sentence, including any interstate orders made against the person.

If a person is unfit to plead, they cannot be found guilty of an offence. Hence, currently the court cannot require forfeiture of the animals if a person is mentally incompetent. In some cases, the court may allow a person to keep 1 or 2 animals but cannot order that the animals be supervised—thus courts may prohibit the keeping of any animal if in doubt that the owner is able to care for them adequately. This provision would address both of those issues.

False and misleading statements

The Bill creates an offence for providing false or misleading information in applications or other documentation relating to the Act. Allowing false information negates the purpose of collecting it. There is an expectation that information provided in an application is truthful. This provision reflects community expectations.

Delegation of powers

The Bill provides for delegation of Ministerial functions by the Minister. Currently, there is no such delegation so all Ministerial functions under the Act must be performed by the Minister. Providing the Minister with the ability to delegate powers will reduce the turn around time for the processing of applications and permits.

I commend the Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Prevention of Cruelty to Animals Act 1985

4—Amendment of long title

It is proposed to amend the long title of the Act to reflect the shift in emphasis from the prevention of cruelty to animals to the promotion of animal welfare.

5—Amendment of section 1—Short title

It is proposed to rename the Act as the Animal Welfare Act 1985.

6—Amendment of section 3—Interpretation

It is proposed to insert a number of additional definitions and to upgrade some of the current definitions. In particular, definitions of harm, serious harm and rodeo event are to be inserted.

7—Amendment of section 6—Establishment of Animal Welfare Advisory Committee

It is proposed to amend this section by deleting obsolete references to certain Ministers and substituting references that will be ongoing.

8—Substitution of Part 3

Current Part 3 relates to cruelty to animals. It is proposed to repeal this Part and substitute a new Part that makes provision for animal welfare offences.

Part 3—Animal welfare offences

13—Ill treatment of animals

New section 13 creates an aggravated offence where the reckless or intentional ill treatment of an animal causes the death of, or serious harm to, the animal. The penalty for an aggravated offence is a fine of $50,000 or imprisonment for 4 years.

The penalty for the offence of ill treating an animal in the non aggravated form is a fine of $20,000 or imprisonment for 2 years.

The section lists some examples of the types of behaviour that would amount to ill treatment of an animal and provides that a person charged with an aggravated offence against the section may be convicted of the lesser offence if the court is not satisfied that the aggravated offence has been established beyond reasonable doubt but is satisfied that the lesser offence has been so established.

A defence is provided to a charge of an offence in its basic form.

14—Organised animal fights

New section 14 provides for offences relating to organised animal fights. With the exception of the offence relating to being present at an organised animal fight, the penalty for offences relating to organised animal fights is a fine of $20,000 or imprisonment for 2 years. The penalty for the lesser offence is a fine of $10,000 or imprisonment for 1 year.

15—Electrical devices not to be used in contravention of regulations

New section 15 provides that it is an offence to use an electrical device for the purpose of confining or controlling an animal in contravention of the regulations. The penalty for such an offence is a fine of $10,000 or imprisonment for 1 year.

9—Amendment of section 19—Conditions of licence

It is proposed to insert that a condition may be imposed on a licence requiring the holder of the licence to comply with such provisions of the Australian Code of Practice for the Care and Use of Animals for Scientific Purposes as may be specified in the conditions.

10—Amendment of section 23—Animal ethics committees

This proposed amendment requires an independent person to be appointed to an animal ethics committee.

11—Substitution of heading to Part 5

It is proposed to rename Part 5 of the Act as 'Enforcement' and divide the Part into suitable Divisions. Division 1 (comprising new sections 28 and 29) will be named 'Appointment and identification of inspectors'.

12—Substitution of sections 28 to 31

28—Appointment of inspectors

This new section provides that the Minister may, by instrument in writing, appoint a person to be an inspector for the purposes of the Act. An appointment may be subject to conditions specified in the instrument of appointment.

29—Identification of inspectors

Inspectors (other than police officers) must be issued with photo identity cards which must be produced when powers under the Act are to be exercised.

Division 2—Powers of inspectors

30—General powers

This new section provides for the general powers of inspectors so as to enable them to carry out their functions under this measure. These powers are in keeping with usual inspector's powers under similar Acts.

31—Routine inspections

This new section makes provision for inspectors to conduct routine inspections of premises or vehicles for the purposes of administering the Act. The owner or occupier must be given reasonable notice of the proposed inspection and be given a reasonable opportunity to be accompanied by a nominee throughout the inspection. However, no notice is required to be given of a routine inspection of premises or a vehicle in or on which an inspector reasonably suspects there is an animal in respect of which an animal welfare notice or animal welfare order is in force. Inspectors must take such steps as are necessary in the circumstances to minimise any adverse effect of such routine inspections on the business or activities of the occupier or owner.

31A—Special powers relating to animals

If an inspector reasonably suspects that an animal is suffering or may suffer unnecessary harm if urgent action is not taken, the inspector may—

provide treatment and care for the animal;

cause the living conditions of the animal to be modified;

seize and retain the animal for treatment and care.

If the condition of an animal is such that the animal needs to be destroyed, an inspector may, subject to certain conditions, destroy the animal without incurring any civil liability for the destruction.

Inspectors have the powers conferred on them by new section 30 for the purposes of this proposed section.

31B—Animal welfare notices

If an inspector believes on reasonable grounds that the exercise of powers under this proposed section is warranted, the inspector may give the person an animal welfare notice specifying the action that the inspector considers should be taken for the welfare of the animal. Contravention of any such notice is an offence, punishable by a fine of $2,500 (expiable on payment of a fee of $210).

Division 3—Miscellaneous

31C—Dealing with seized animals and objects

The Minister may sell, destroy or otherwise dispose of animals or objects seized and no longer required to be retained in certain circumstances.

31D—Warrant procedures

This new section sets out the procedures to be followed in order to obtain a warrant from a magistrate.

31E—Offence to hinder etc inspectors

It is an offence for a person to hinder, obstruct, refuse or fail to comply with a requirement or direction of an inspector, to fail to answer a question put by an inspector, or to falsely represent that he or she is an inspector. The penalty for such an offence is a fine of $5,000.

13—Amendment, redesignation and relocation of section 33—Duty of person in charge of vehicle in case of accidents involving animals

The penalty for an offence against this section is to be increased from $1,250 to $5,000 with an expiation fee of $315 included. This section is then to be relocated and redesignated as section 15A in Part 3 of the measure.

14—Insertion of section 33

New section 33 will be the first section in Part 6 (Miscellaneous).

33—Delegation

This new section provides for the usual power of the Minister to delegate a function or power (other than a prescribed function or power) of the Minister under this measure.

15—Amendment of section 34—Permit to hold rodeos

The proposed amendments to this section will increase the penalties for offences against the section from $1,250 to $5,000.

16—Insertion of sections 34A and 34B

34A—False or misleading statements

New section 34A provides that it is an offence for a person to make a statement that is false or misleading in a material particular in an application made or information provided under this measure. If the offence is committed knowingly, the penalty is a fine of $10,000 or imprisonment for 2 years. In any other case, the penalty will be a fine of $5,000.

34B—Power of veterinary surgeons to destroy animals

This new section provides that a veterinary surgeon may destroy an animal if of the opinion that the condition of the animal is such that the animal should be destroyed.

17—Amendment, redesignation and relocation of section 36—Court orders on finding of guilt etc

The proposed amendments to this section will extend the power of the court to make orders against persons found guilty of offences against the Act or if declared to be liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (Mental impairment). Currently, the court may only make orders against persons convicted of offences against the Act in relation to an animal owned by the person that is the subject of the offence. Powers to make additional orders are also proposed and an order may be made in relation to any animal owned by the person (whether or not the subject of the offence). The section is then to be redesignated as section 32A and relocated in Part 5 (Enforcement).

18—Substitution of section 40

40—Vicarious liability of employers in certain circumstances

New section 40 provides if a person commits an offence against this measure in the course of employment by another, the employer is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless it is proved that the employer could not by the exercise of reasonable diligence have prevented the commission of that offence.

19—Substitution of section 42

42—Evidence

This new section makes provision for evidentiary matters for the purposes of this measure.

20—Insertion of sections 43A and 43B

43A—Reports in respect of alleged contraventions

If a person reports to an inspector an alleged contravention of this measure, the inspector must, at the request of the person, inform the person if practicable of the action proposed to be taken in respect of the allegation.

43B—Victimisation

New section 43B provides for victimisation. A person commits an act of victimisation against another person (the victim) if he or she causes detriment to the victim on the ground, or substantially on the ground, that the victim—

has disclosed or intends to disclose information; or

has made or intends to make an allegation,

that has given rise, or could give rise, to proceedings against the person under this measure.

Any such act of victimisation may be dealt with—

as a tort; or

as if it were an act of victimisation under the Equal Opportunity Act 1984.

21—Amendment of section 44—Regulations

The proposed amendments make provision for the fixing of penalties and expiation fees under the regulations and allow for certain matters under the regulations to be determined etc at the discretion of the Minister.

Debate adjourned on motion of Mrs Redmond.

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