HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-10-16 Daily Xml
Contents
Pdf Xml

CRIMINAL LAW CONSOLIDATION (PROTECTION FOR WORKING ANIMALS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 11 September 2013.)

Mr VAN HOLST PELLEKAAN (Stuart) (16:18): We are here today to debate the Criminal Law Consolidation (Protection for Working Animals) Amendment Bill 2013. I indicate that I am the lead speaker for the opposition and I know that there will be some other speakers. I will have some questions, primarily for clarification, in the committee stage. I also have one amendment filed, which I will formally move during the committee stage.

The opposition is supporting this bill from the government. I have to say that it was not an easy decision to come to, because there are a lot of pros and cons that I think any one of us or any man or woman on the street can see go with this piece of legislation. I say from the outset that I think everybody here very sensibly understands that animals deserve protection. Animals are not people and they do not deserve the same protection as people, but animals do deserve protection, even if you are not particularly an animal lover. It is pretty plain common sense that any animal working on behalf of people probably deserves a bit more protection.

I know that the member for Torrens is a very keen animal lover and she tells us about her dogs at home quite regularly, and she says that they actually think they are people. I grew up with dogs at home and I absolutely love them. I have had three dogs myself in my adult life at home. We have a cat as well—that came with my wife—and we have chickens and it is pretty straightforward commonsense stuff that you have to look after animals, particularly if they are working hard on behalf of people.

What is this bill does, though, is to give some very particular protection for working animals to the point where, potentially, there is a maximum of five years' imprisonment plus compensation. This bill would create a new serious criminal offence of causing death or serious harm to a working animal by an intentional act punishable by up to 5 years' imprisonment. As I understand it, serious harm could attract a maximum of four years and serious bodily harm could attract a maximum of five years—plus compensation, as I said before. I will have some questions at the committee stage which will relate particularly to that compensation issue.

These working animals are put in danger essentially by people. The working animals that we are talking about are not jumping into harm's way. They really are put into harm's way by people, by the people for whom they are working and that, I think, needs to be very clearly understood. The bill essentially covers police dogs and horses. I understand that right now we have 25 dogs and 36 horses working for the South Australia Police.

In Correctional Services I am told that we usually have six dogs working but there are three at present. Certainly as shadow minister for corrections and the member for Stuart, with two correctional institutions in my electorate, I would certainly encourage the government to get back up to the six, because they are a very important part of Correctional Services and play a very important role in the detection of contraband in prison.

The bill also includes guide dogs. Guide dogs are trained and provided in South Australia by Guide Dogs SA/NT and also the Royal Society for the Blind. There are also other animals as per the regulations. We will ask Attorney-General, when we get to it, if he can share with us what other animals he thinks he will have in the regulations. One of the most difficult aspects of this issue, of course, is what do you leave in and what do you leave out?

We would all agree that any serious, deliberate harm to an animal is serious. Is it more serious for these working animals or is it more serious for somebody's dog or horse perhaps—as very sadly does happen occasionally when it is just sitting in a paddock minding its own business, half asleep in the middle of the night and somebody comes along and does the wrong thing. Where do you draw the line? That is an important issue for us to consider.

Another thing that is important to consider is the fact that this bill essentially came about and was brought to us by the government in response to the very unfortunate stabbing of a police working dog named Koda. We all agree that that incident was completely inappropriate and very sad. Fortunately, Koda has seemingly made a full recovery and went from one day having potentially life-threatening injuries to very quickly being back on duty. That is very positive and we are all glad to know that, but is this just a response by the government to the fact that there was a public outcry when Koda was stabbed and harmed?

We have had working animals in the South Australian police force for 175 years, right from day one when we started with mounted police as the foundation of our South Australian police force, but it is not until 175 years later, in 2013, that the government has decided to bring this forward, and that decision coincides with the public outcry against the harm done to police working dog Koda.

It would not be too great a stretch of the imagination to think that perhaps the government is bringing this forward more as a populist political move than purely to protect these animals because, very unfortunately, working animals have been getting harmed for 175 years, at least in the police force, and potentially longer than that in other forms of work, although, of course, not in the categories that are being provided here for us today. There is a fair degree of politics in this but, nonetheless, the opposition has decided that, given the opportunity to support the government in its desire to protect these working animals, we will also show our hand and do our best to support these working animals as well.

There is also another very important aspect that comes out of this, and this is the removal of the opportunity to claim self-defence if a person happens to seriously harm a working animal. That is something I know the member for Bragg, our deputy leader, will investigate. She will put her keen, thorough legal mind to that issue. Let me just say that it is a very important issue. If you think about the practicalities of it, the reason you use a working dog, in a trained situation, is basically to attack somebody—bring them to the ground by force. It is not unreasonable that the person upon whom that force is being used might feel obliged to defend themselves, and it may be conscious or subconscious.

I have never been attacked by a dog in that way but it is not hard to imagine that, if it was happening, you would do whatever you thought you needed to do to protect yourself, even if that meant harming that animal. While it might be okay for the handler to say, 'The person was never in any danger because I could call the dog off at any point in time,' if you are the person getting dragged to the ground at that time you may, quite understandably, not be thinking clearly about all of that. You may not know that the handler is just waiting for the right command, the right call or the right whistle to call the dog off. There are some very serious issues that need to be investigated about the fact that a defence of self-defence has been taken out of this legislation for a person who thinks they might actually need to use it.

The other thing that is interesting is that animals working for the South Australian government are given greater protection under this legislation than other animals, and that is something I will delve into in a little bit more detail in the committee stage of this bill. As I said before, I do have quite a few questions but, really, just for clarification, the opposition does support the government in this. I have an amendment which has been filed which I hope the government will agree to. When it gets to the appropriate time in committee, I will provide my logic for moving that amendment.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:28): I rise to speak on the Criminal Law Consolidation (Protection for Working Animals) Amendment Bill 2013 and confirm that I, as indicated by our lead speaker, will not be opposing this bill. I cannot say I can rush with enthusiasm to say the word 'support', but it certainly will pass without any objection from me as a member of the house.

Put simply, the position of this bill is that the incident occurred a couple of months ago when a dog named Koda sustained injuries whilst undertaking his duties as a working animal. As the member for Stuart has outlined, he is now recovering after he had to have emergency veterinary treatment and surgery, I think, to survive. There was the predictable public outrage to this, to the extent that there was a major media story, followed by sympathetic expressions of disgust and distress about what had happened to this dog.

It is not unusual in any way that that would be the reaction of humans to animals (in particular dogs, who are companion animals) which are obviously much loved in the community. In fact, I represent an area which I often say has out of 20 million trees about 18 million trees, and probably more Shih Tzus per square metre than anywhere else in the world. They are not usually working dogs; they are not farm animals, nor are they security animals, but they are very important companion animals in my area. John, the person who runs the local pet shop, probably has one of the best and strongest small businesses in South Australia, in selling pet food and all the things that go with it.

We have, as humans, a natural affection and love for our animals, and when they are under threat, or unreasonably injured or neglected, we feel some considerable concern for them. The government's reaction to this, though, was entirely political. It was to announce, as it frequently does, 'We will introduce legislation which is going to remove this disgraceful ill by imposing a new offence and/or penalty.' That is their common response.

Some members will recall when the former premier came into the house after hearing somebody ring talkback radio to say that she was concerned because she had heard that there had been a case, possibly in Victoria, where someone had eaten some cat meat in a restaurant. That was the basis upon which the then premier introduced to this legislative chamber a new law which prohibited people from eating cats.

That was notwithstanding that we already had legislation—the former attorney-general would remember; I think he was probably the ultimate mover of this legislation—and a myriad of laws to provide that you could not sell cat meat, you could not kill cats in abattoirs, and you could not offer cat meat on the menu in restaurants. There was a myriad of legislation which made it extremely difficult for any human to be able to eat cat meat. But, no, on the basis that somebody had telephoned a talkback radio station about a problem they might have had in Victoria, we needed to immediately act in haste and rush to the protection of cats, leaving people with the illusion that they were on abattoir runs in a rush for provision of service in certain restaurants.

The Hon. J.R. Rau: That has been the most successful piece of legislation this parliament has ever put forward.

Ms CHAPMAN: I am yet to hear from the Attorney as to the number of prosecutions we have had under that legislation, and how effective it has been as a deterrent to this scurrilous activity. It is in the theme of that type of approach that the government jump onto something, that they want the public to think would bless them with a response of sympathy, and for which they would receive some accolade for removing the scourge of this ill in the public arena.

I was unsurprised to receive the notice from the Law Society on this bill. Generally, I think it is pretty fair that they say, 'Look, the government has got a good idea, we generally agree with the sentiment, although they might not have got it all as best we think that it should be implemented,' but on this occasion they leave no doubt. They say that this piece of legislation is quite unnecessary. They do not support it. They set out, as the Attorney had in a much more narrow identification, the legislation which currently applies.

They obviously refer to section 13(1) of the Animal Welfare Act 1985, which the Attorney had referred to in his second reading contribution, pointing out that we clearly already have offences which identify that if a person ill-treats an animal, causing its death or serious harm, or intends to do so (the usual reckless provisions, etc.), they can attract penalties of up to two years' imprisonment and four years for aggravated offences. So, on anyone's assessment, that is a fairly serious provision, with fines of up to $20,000 in the first instance and $40,000 for aggravated offences. As you can see from this bill, we are asked to toughen that up, to be tough on law and order against cruelty to dogs—working dogs in particular—with up to five years' imprisonment.

I will be listening with interest to the Attorney's response in committee, unless he wishes to outline this in response, as to what charges have been laid to date in respect of cruelty to animals (dogs and horses in particular, the subject of these proceedings) since at least his time in office and why that has not been exercised or, if it has been, if there has been some level of leniency that justifies it—a judgement, for example, from a member of the judiciary who says, 'I was bound by the limitations of this legislation. It only allowed me up to four years. I think this crime towards this animal was so heinous that I want the legislature to consider an expansion of the penalty and an increase in the imprisonment term for cruelty to animals, particularly those that are undertaking work on behalf of their human owners.' I will be listening with interest to whether that has any origin.

In addition, I do not think the Attorney has shared this with the house, but I think it is important to identify that there is already an existing Criminal Law Consolidation Act 1935 in which there are three different offences in respect of harm to animals; one is section 84, which defines inter alia 'to damage in relation to property' to include 'to injure, wound or kill' an animal. It also provides for damage to have a corresponding meaning.

Under section 85(3) of that act, it is also an offence, without lawful excuse, to damage another's property (which includes an animal), intending to damage the property (animal) or being recklessly indifferent as to whether the conduct so damages the animal. This has a maximum penalty of imprisonment for 10 years. Section 85(4) provides that it is an offence, without lawful excuse, to threaten or damage another's property, etc., with a maximum penalty of either five or seven years. By section 85A, it is an offence to do an act knowing that the act creates a substantial risk of serious damage to another's property (animal)—maximum penalty six years.

There would be some argument that the presentation that has been submitted to us to accept—that is, an increase to a five-year penalty—is actually being a bit light. Why are they not prosecuting under these other provisions, which would give access to an even higher penalty? It reminds me of the time that, again, the former premier (I think with you as his Attorney-General at the time, Mr Speaker) rushed into the parliament with action as to how they were going to deal with these dreadful people who lit bushfires and caused damage and threat to life and damage to property, etc.

We had this debate at that time, when the proposal was that we were going to get tough on these people who lit these fires, either deliberately or recklessly, and that there would be a special new offence—to cause a bushfire to start as a result of either intention or recklessness—and that that alone, without any property damage, which was a feature of the commonly known and still prevailing arson legislation, would attract a penalty of up to 15 years. I think it was then changed to 20 years; after the debates, it went to 20 years.

But arson already attracted a penalty of life imprisonment. So much for rushing out with these ideas—blood to the head, fantastic that we are going to crack down on this heinous activity and we are going to show that the leadership of the government is serious about these matters. The law already covers a number of these, and I think it is fair to say that the assessment by the Law Society is pretty obvious.

The other aspect of concern is the expansion by regulation. This seems to be the conduct of a government that is intent on ruling by regulation rather than legislation. The government well knows that we think that is full of problems, and it is particularly unattractive when we are dealing with criminal offences where we start with the premise that people need to understand exactly what they are being accused of and what the law is, and that regulatory provision, which is not as immediately identifiable to the average person, is something that should remain the exception rather than the rule. Unsurprisingly, the Law Society shares our view on that and that working animals as a special category of attracting protection, which is the subject of this bill, should be clear.

I am not entirely sure why it is confined to horses and dogs. I do not know what happened to the canary in the coalfield or anything else, but we have a whole lot of other animals that carry out tasks for us as humans. I do not mean those that are sacrificed for medical research; I mean those that we are indebted to for the service they provide to us. The question of intent is also raised. Section 83I(1) provides:

A person who, by an intentional act, causes the death of, or serious harm to, a working animal is guilty of an offence.

The Law Society's comment here is:

We understand the intent of Parliament is to make it an offence intentionally to cause serious harm to, or death of, a working animal. However, the words of section 83I(1) link intent to the act, not to the harm. Thus, literally, an intentional action which is not intended to cause harm etc, but which does in fact cause serious harm or death, would seemingly be an offence. If so section 83I(1) comes close to creating an offence of strict liability for acts which may not, in themselves, be wrongful. The obvious example would be pushing away a dog without intent to injure, but unintentionally causing injury. We do not understand this to be Parliament's intent—

I interrupt myself to say that this would be the government's intent—

and it is inconsistent with the defence in section 83I(3), which appears to be drafted on the premise that the offending conduct was directed to the injured animal. It is inappropriate that there be liability without actual intent to harm.

Then there is the matter of defence and self-defence. These issues have also been raised. Self-defence is an obvious one, particularly I think in relation to police dogs sent in to undertake their lawful role which they are trained to do but which the hapless victim of the dog's approach may well see as an unfair threat to themselves and therefore act for their own self-preservation. There are questions there to which the Law Society says, if you are going to allow it, it is referred to, and the general provisions of section 15 are arguably applicable, but it ought to be clear in this new offence that is going to be there.

There is, under our parks and wildlife legislation—if the government wants to have a look at it—a special provision which states that you are not allowed to kill a magpie or a snake unless it is in self-defence. I am not sure what happened to crows. I often tell this story, of course, when I am in the football arena, but crows do not have any special provisions; it is only magpies which have a provision under our parks and wildlife legislation. So, there are circumstances in other laws where we give special protection to, in this case, wildlife.

I have never been in a situation of putting to the test whether it is reasonable to kill a snake when you see it slithering along outside the toilet, or whether you wait until you are in a state where you might be able to prove that it is causing you some threat. I think I would be so frozen in terror, as most would, that I would act to protect myself, but who knows? I do not know the legislation that covers that.

These are serious matters that are being raised by the Law Society, and we think that they need to have some serious consideration. For the sake of completeness, the opposition has looked at this legislation. Whilst we are doubtful of its necessity, if it is going to be here, then all of the levels of government dogs and horses need consideration. The member for Stuart has identified this deficiency in the bill, and I will be looking forward to supporting his amendment in that regard.

Finally, there is only one case that the Law Society was able to find that would be relevant to these matters, after giving a comprehensive assessment of the interstate operation of this protection. There is a case of Curtis v R [2007] NSWSCCA page 11 and they tell us it:

...is the only case that we have been able to find that relates to the intentional act of harm on a police animal. In Curtis, the defendant pleaded guilty, inter alia, to an offence against section 33B of the Crimes Act 1900 (Vic) namely that he used a knife to prevent his apprehension. The maximum penalty for this offence is 12 years.

The facts were that a police dog, Titan, was released to apprehend the defendant. Titan pursued the defendant and lunged at this left wrist, thus preventing him from using a knife held in that hand. Titan took the defendant's wrist in his mouth but did not bite. The defendant used a knife he held in his right hand to stab the dog. The stab wound proved to be fatal.

Simpson J (with whom McClellan CJ and Rotham J agreed) held that 'the fact that a police dog was stabbed and killed does take the offence into the higher levels of objective seriousness of offences of using weapons to resist lawful apprehension. I am, however, satisfied that it could not be at the very top: the use of firearms would have to occupy that position.'

On appeal, the defendant was sentenced in respect to this offence to 9 years imprisonment with a non-parole period of 6 years.

So it seems that we have laws, both here and interstate, which can properly address and assuage the public's expected outcry when working animals are at risk and at the mercy of threat and harm by humans. They are more than adequate and we are disappointed to have to be dealing with legislation such as this. We will not interrupt its passage but if you are going to have it at all, I hope the government receives with support the amendment that we have foreshadowed.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:48): I thank the contributors to this important debate. In particular I acknowledge and thank the opposition for indicating that they will be supporting the legislation. That is good and I very much welcome that. I gather we will go into committee because the honourable member for Stuart has an amendment, and I will obviously be more than happy to address any questions that any member has in the committee stage.

I want to say a few words by way of an overview. The first comment is that, because the opposition is supporting the bill, I will not traverse all of the matters read into Hansard by the member for Bragg which came from the Law Society. The Law Society, of recent times, has really come into its own in the context of writing lengthy and critical pieces of correspondence about matters in the parliament. I think it is fair to say they are difficult people to please. Anyway, as it turns out, I am not going to stay in that space because we have already got the indication the opposition is supporting the legislation.

Can I also just say, because it was the subject of some comment, Mr Speaker—and this might be a matter of some interest to you—that I have in front of me here a copy of the Summary Offences Act 1953, as amended. On working my way through this splendid document I have come upon section 10, which makes it an offence to consume, etc., dogs or cats, which was referred to, I think, by the member for Bragg. It is important that we understand this. This provides that:

A person who knowingly—

(a) kills or otherwise processes—

So we are covering killing and processing here; I think it is significant—

a dog or a cat for the purpose of human consumption; or

(b) supplies—

So, we are not just dealing with the process or the killer of them; we talking about people who—

supplies to another person a dog or a cat (whether alive or not), or meat from a dog or cat, for the purpose of human consumption; or

(c) consumes meat from a dog or a cat,

is guilty of an offence.

This has been lampooned viciously on occasions, particularly by the member for Bragg, who frequently regales this chamber with this as an example of an unhelpful or unnecessary piece of legislation. Can I just say, Mr Speaker, that I have done a brief search of the newspaper clippings since the passage of this piece of legislation, and it appears this practice has ceased completely—completely.

The SPEAKER: Other than in North Vietnam.

The Hon. J.R. RAU: Yes, in Australia, Mr Speaker. So, for a piece of legislation such as this, which has a strong educative flavour and achieves such a profound total impact in the community, the mere fact that there is not a phalanx of people being prosecuted for this is testimony to how effective it is. I hope that puts paid to all of those arguments about section 10 of the Summary Offences Act. Back to the matter at hand. The member for Stuart, I believe, is concerned about a particular group of dogs which are used to guard council property, as I understand it, in Port Augusta.

Mr van Holst Pellekaan: And Ceduna.

The Hon. J.R. RAU: And Ceduna.

Mr van Holst Pellekaan: But potentially anywhere.

The Hon. J.R. RAU: But potentially anywhere. My attitude to the amendment is basically this: if you look on page 3 of the bill, under the definition of 'working animal'—and this helps with one of the member for Bragg's questions as well—and if you go down to (e) it provides:

any other animal, or animal of a class, declared by the regulations to be included in the ambit of this definition.

So the answer to the member for Bragg is yes—if we were minded to look after the coalminers by dealing with the canaries it would be possible by regulation to achieve that outcome. Can I say to the member for Stuart, because I do not believe the member for Stuart necessarily wishes to unintentionally capture dogs which may be all over the state and may or may not necessarily be performing the same function as the ones that we have been hearing about, that it might even get more complicated than that, because there might be some dogs which are, if you like, the property of a council, and other dogs which are, if you like, independent contractors, or the property of an independent contractor to the council, performing the same role somewhere.

My suggestion to the honourable member would be that the most effective and targeted way of achieving exactly what he wants without inadvertently capturing something else would be for us to look at regulations. I can indicate that, if the honourable member is happy to give me enough particularisation of exactly how we can describe these animals, I would be happy to provide or work on some draft regulations between the houses or afterwards. I will make that offer on the record.

Having spoken to the honourable member and listened to his contribution, I do not have any fundamental objection to the specific thing that the member for Stuart wants to achieve. I just think that we can achieve it in a targeted way with no potential for unintended capture of other things if we use the regulation-making power that is in the bill. I think it is probably appropriate that we now move into committee.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The ACTING CHAIR (Mr Sibbons): Member for Stuart, you have an amendment at clause 4?

Mr VAN HOLST PELLEKAAN: Yes, but I would like to move it a bit later. I just want to consider some questions and answers. I understand that I can move the amendment at any stage during this clause. Minister, going to the bottom of page 3, where you were before, the definition of working animals, under the line marked 'a police dog', is that South Australian police dogs or would that cover AFP police dogs working in South Australia?

The Hon. J.R. RAU: I think one would have to say that it is presently drafted in a way that leads me to believe it would be a SAPOL dog. If you look further up, it states:

police dog means a dog (including a drug detection dog within the meaning of the Controlled Substances Act 1984) that—

although that does not necessarily cover it all—

(a) has completed training of a kind approved by the Commissioner of Police.

I would have thought that, given it is an act of the South Australian parliament, the Commissioner of Police, to whom this refers, is our Commissioner of Police, not the AFP commissioner. If it were the case that there were AFP dogs—or now that you mention it, customs dogs, for example—we can deal with that under (e). Again, that definition I showed you—the capability of using regs.

Mr VAN HOLST PELLEKAAN: Thank you. I did think about that and, of course, controlled substances dogs could potentially be customs dogs or Australian Federal Police dogs. I just want to know whether in terms of the definitions of specific working dogs that is only SAPOL dogs, and if you were minded to, you would put customs dogs and AFP dogs in the regulations and, if you do not put them in the regulations, they are not covered.

The Hon. J.R. RAU: That is how I read it, yes.

Mr VAN HOLST PELLEKAAN: Attorney-General, does the animal have to be on duty at the time when the offence occurs for the legislation to apply? I understand that it says it applies to a dog that does not only work, essentially, because we all understand that working dogs also are companions at other times. Police dogs go home with their handlers and they are not necessarily working 24 hours a day. So, the fact that a dog is not working 24 hours a day does not exclude it from this, but does the dog have to be at work to be covered?

The Hon. J.R. RAU: That is a good question. While I am ad libbing this, I will have those who advise me perhaps think about it as well. The offence is actually causing the death of or serious injury to a working animal, which is clause 83I. That does not confine 'working animal' to part of its working day, it applies to the animal full stop. So, we go back to the definition of 'working animal' and that takes us to (a) 'a police dog'. We then go up to 'police dog' and it says, 'means a dog that has completed certain training and is used by or to assist'. I do not read that as 'used by' in the sense of 'must be at the time of the event used by', it means 'whose duties are'. That is the way I read it.

I think the situation would be that the only danger that police dogs would be confronted with would be in the course of their policing duties, whereas potentially with a guide dog you are looking at quite a different scenario where some idiot comes out of nowhere and attacks a person and their dog.

Mr VAN HOLST PELLEKAAN: Or probably, most likely, a police horse that is just standing around in a paddock not at work. Thank you for that. Minister, I understand what you are saying about the amendment and I appreciate what you have said. I do still want to move the amendment, but I will not divide on it. I move:

Amendment No 1 [vanHolstPellekaan–1]—

Page 3, after line 35 [clause 4, inserted section 83H, definition of working animal]—After inserted paragraph (c) insert:

(ca) a dog used by, or on behalf of, a council (within the meaning of the Local Government Act 1999) for the purpose of enforcing council by-laws, conducting security patrols or protecting or guarding property in the council area; or

I will explain why I have moved the amendment. I understand that there is an opportunity for the government to include or exclude any other animals that it sees fit. I think it is very appropriate because, essentially, the working dogs that I am trying to include in my Amendment No. 1 are actually there for law enforcement. I think we would all recognise that federal, state and local government all have the right to use working animals to enforce their laws if they want to. This is a very real issue in the electorate of Stuart that I represent, in Port Augusta, and also currently in the member for Flinders' electorate, in Ceduna, where dogs are used and referred to as 'the canine patrol'.

For the benefit of the house, in reality, the canine patrol in each place consists of an officer working on behalf of the council who does an absolutely outstanding job, based on their relationships with local people. The dog almost never leaves the back of the vehicle. The dog is almost just a bit of an insurance. In fact, I have only a few times in Port Augusta seen the dog out of the vehicle at work. I have seen it playing catch or fetch with a ball in the park many times. It is a highly trained and highly skilled animal, but it is really just an insurance or a deterrent.

Nonetheless, I think if that dog were harmed or injured in any serious way, as this legislation is there to protect it, it would deserve the same protection. I assume that I will lose the amendment and, if that happens, I will take the Attorney-General up on his genuine offer to find a good way to include these dogs in the regulations, because they provide an exceptionally important service to us in Port Augusta and I know in Ceduna as well, and potentially in other places down the track as well, and I think they deserve exactly the same protection.

The Hon. J.R. RAU: I will oppose the amendment. It may be that the honourable member for Stuart does not succeed in having the amendment included but, if he does not, he may have lost the amendment but he will not have lost the battle for the regulations, because the regulations are something I am very happy to talk about. If that accommodates his particular concerns and he is able to go back to his constituents and demonstrate that there is a particular provision which assists the people that he represents, then I am very happy to accommodate that.

Amendment negatived.

Ms CHAPMAN: I have another question on clause 4. Can we start with the process of regulatory consideration. Unsurprisingly, when this type of legislation comes up—and the member for Stuart has raised a particular area of security dogs and what they do—there are perhaps three or four other areas of concern, and they have been raised with me. One of those areas is obviously farm animals. They are at risk both as a result of baiting by others, and sometimes they are at risk because they might be a professional sheepdog and therefore will be used in shows and have some significant value. I would just like to ask whether, in those categories, those people should write and apply.

Mr Griffiths interjecting:

Ms CHAPMAN: Indeed, as the member for Goyder reminds me, obviously they have a higher breeding value as well. There are companion dogs, and I think there has been some discussion about those already. However, I think it is fair to say that there is a general feeling that, apart from guide dogs for the blind or deaf or whatever, there are other animals that provide other health services.

Finally, for working dogs who are protecting other animals like poultry—Kangaroo Island is a common circumstance where that is used. We do not have a fox problem over there but I have learnt that there are also dogs to help keep foxes out of henhouses in the Adelaide Hills. I have learnt a bit about foxes since I have been the member for Bragg but I am nowhere near as expert as other members of this house, including the member for Stuart. Certainly eagles are a problem for free-range hens, largely for eggs, and dogs are used in those circumstances. Again, if somebody wants to raid the patch and take the stock then, in those circumstances, the dog is a working dog that is vulnerable.

I am not presenting to you, Attorney, as to whether any of these are worthy of being included but I just ask, in these sort of circumstances, if people want to add in rescue dogs or guard dogs or any of the categories that I have given you examples of, is the process to simply write in to you after the passage of this legislation to seek their inclusion?

The Hon. J.R. RAU: Yes, that is basically the way to go forward, although I am reminded of an old story I was told once, that if you go to the football and you stand up you get a better view but if everyone stands up everyone has the same view they had in the first place. The extent to which we broaden this category out reduces the significance of the category to those within it.

There is a natural reluctance on my part to go around endlessly expanding it but I am not ruling out any particular person or group who might have a particular proposal they want to advance. As the honourable member for Bragg mentioned in her original contribution, there are already a number of things that any of those people might be able to avail themselves of anyway.

Ms CHAPMAN: During the course of briefings that were kindly provided by representatives from the Attorney-General's office and Mr Matthew Goode—I cannot remember whether he gave us a briefing on this or if it was someone else at the time but we were given some information about this. What is the situation with the person who is currently charged with the offences against the dog Koda? Has that concluded yet? Has there been any penalty imposed? What is the update on that?

The Hon. J.R. RAU: I can provide some information about that, and this is the advice given to me. There are 11 charges: three counts of serious criminal trespass, four counts of theft, one count of failing to pay a taxi, one count of attempted robbery, one count of assaulting police, and one count of ill-treating an animal. A count of property damage—in particular, the dog—was withdrawn. The charges are next before the Magistrates Court on 13 November.

Ms CHAPMAN: Thank you, Attorney. There is no more information than what we had previously but, obviously, it has not come to a conclusion. In any event, have there been any other cases where people have been convicted for cruelty to working dogs that are currently covered under these definitions under the current Animal Welfare Act or Criminal Law Consolidation Act in the time you have been Attorney-General? I am happy for it to be taken on notice, but we are looking at the number of cases and the charges.

The Hon. J.R. RAU: I will have to take it on notice, but I am advised in the statistical record there is no record under the heading of 'working animals', or anything, but we will pursue that.

Ms CHAPMAN: On compensation, which is proposed section 83J, as you are aware, Attorney, there is already provision for some payment to be made for damages and the magistrate who is hearing the criminal case can make some order for reparation. This is a special regime, I think it is fair to say, for animals that are to be covered in this category which includes some rehabilitation, retraining, etc.

If the definition is kept fairly confined—and we are only talking about 25 dogs and 36 horses, or something—one would hope that this will not be called upon very often. Is it proposed that the magistrate who hears this matter will be dealing with these? This, in itself, is going to be more than just the cost that the prosecutor might ask for, which is usually a fairly simple application, sometimes with some documentation presented for evidence of damage but it is dealt with summarily. This looks rather a lengthy exercise, given that it is to include rehabilitation and retraining. Presumably, there would be valuation evidence about what a replacement dog would cost. We are talking tens of thousands of dollars here.

I think of one dog that was bitten by a snake in our household. It ended up costing $5,000, which I did not pay for. I felt there were some other options for how it might be dealt with at the time but, nevertheless, the plea for mercy from the rest of the family who wanted to keep it alive meant that it was fairly expensive, and that was just a snake bite. I wonder how, in practical terms, this is going to be carried out.

The Hon. J.R. RAU: As I understand it, it is going to be a matter for the assessment of the magistrate or the judicial officer. Just to give you some idea, these are very approximate costs but, in the case of a police dog, they are saying you are looking at $25,000, including the handler's wages; for a police horse, you are talking about $70,000, including the wages; and, for a guide dog, $30,000, and that is without any wages.

The point is that these animals have an enormous amount of time and effort invested in training them and you cannot just simply conjure up that training and instil it in another animal. I think what is intended here is to direct the magistrate's attention to the fact that they are not just compensating for 'poor old Spot. We loved him very much', it is also the fact that there is an expense sunk into the training of the animal.

Mr VAN HOLST PELLEKAAN: Minister, I am now at the top of page 5 where it talks about self-defence, and it may well be my lack of legal training that means I do not quite understand this. I am looking at subsections (4)(a) and (4)(b) right at the top of the page, and it seems to me what this is saying is that you cannot use a defence of self-defence if it is a police dog, a police horse or a Correctional Services dog. Does that mean that they are getting greater protection and you could use that defence if it was a guide dog or one of the other animals in the regulations?

The Hon. J.R. RAU: The reason for that is apparently that is almost a reproduction of the part of the Criminal Law Consolidation Act that deals with people being arrested. What it is basically saying is that if you are resisting arrest and you hurt the police officer, you cannot say, 'Well, hang on, I was only defending myself.'

What we are saying here, in an analogous sort of situation, is that if you are being arrested by a police officer and a police dog or a police officer and a police horse and you say, 'I only acted that way in self-defence,' that would be a perverse sort of defence for you to be able to have. That is consistent with what would exist if it was just the police officer by themselves. This just says that the police officer in concert with their animal is as protected as the police officer by themselves.

Mr VAN HOLST PELLEKAAN: Understanding all of that, what I am really getting at is that it seems to say that you cannot use that defence if it is a police dog, a police horse or a Correctional Services dog, but you could use that defence if it was an AFP dog or a South Australia Special Operations Group dog (which is the organisation that provides the canine patrol in Port Augusta and Ceduna) because they are in the regulations, not specifically here in the bill that says 'police dog, police horse or Correctional Services dog'. I understand the logic of having self-defence, but it seems to say you could use that self-defence for an AFP dog or a council dog.

The Hon. J.R. RAU: I think that is my reading of it as well, and I think that was probably done on the basis that we were trying to target the police function for that particular defence, but we can have a look at that in the next few days, if you want.

Mr VAN HOLST PELLEKAAN: One of the reasons I thought it was a good idea to put dogs working on behalf of councils into the bill rather than the regulations was so that they would get exactly the same protection. My next question is in regard to compensation and really about who receives the compensation. No doubt, if it was a SAPOL dog or a SAPOL horse it would be SAPOL, but who would receive the compensation if it was a guide dog? I am sure that if it was a SAPOL horse, a SAPOL dog, or a Department for Correctional Services dog, then SAPOL or DCS would get the compensation. If it was a guide dog, who would get the compensation?

The Hon. J.R. RAU: It would be the owner, I am advised.

Mr VAN HOLST PELLEKAAN: As it currently stands, that would be the Royal Society for the Blind or Guide Dogs SA/NT, but under the new NDIS, which is coming in soon, there would be the possibility for a blind person to apply for a grant to access a dog, and it is very likely then that they would actually be purchasing the dog. This is hypothetical, but I believe it would probably go that way.

The Hon. J.R. RAU: It would be the owner.

Mr VAN HOLST PELLEKAAN: So it would be the owner regardless? If the dog was still owned by RSB, they would get the compensation, and if it happens to be the blind person they would get the compensation?

The Hon. J.R. RAU: Yes, that is my understanding.

Clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (17:19): I move:

That this bill be now read a third time.

Bill read a third time and passed.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT