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Legislative Council - Fifty-First Parliament, Second Session (51-2)
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PREVENTION OF CRUELTY TO ANIMALS (ANIMAL WELFARE) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 23 October. Page 1081.)

The Hon. R.P. WORTLEY (16:52): I bring to the attention of the chamber some very disturbing statistics, which clearly demonstrate why this bill needs to be amended to focus on promoting animal welfare rather than just emphasising the importance of preventing animal cruelty. The following statistics were provided to me by the South Australian RSPCA over the 2006-07 financial year: 1,051 animals were put down by the RSPCA Adelaide branch; 3,099 animals were put down by the RSPCA Lonsdale animal shelter; and, a staggering 7,500 animals went through the Adelaide branch alone as a result of ill treatment.

As there is already a large number of animals in captivity, and more being bred, new legislation needs to be enforced to reduce the cases of stress and/or suffering of animals and to also make those responsible for cruelty to animals accountable for their actions. The proposed legislation before us will strengthen the existing legislation by:

providing tougher penalties (in fact, penalties for animal cruelty offences will be doubled, up to $20,000 or two years' imprisonment);

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

empowering inspectors to routinely inspect commercial enterprises using animals such as intensive animal industries, puppy farms, circuses and council-operated dog pounds;

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

empowering courts to order confiscation of objects used in an offence and any finical processes of an offence; and

forcing owners to forfeit mistreated animals without having to seek a conviction through the courts.

The act will also be amended to deal with the cruel blood sport of organised animal fighting, which still unfortunately takes place in South Australia and Australia. Dogs and birds are predominantly the animals which suffer from this so-called form of entertainment. Fights result in extreme mutilation of animals as they are forced to fight until it is physically impossible for them to continue. Birds are often fitted with artificial spurs designed to cause as much damage as possible to the other bird. The birds involved will consequently suffer horrific injuries, including punctured lungs and pinched eyes. Dogs often die from blood loss, dehydration, exhaustion or shock.

In situations such as organised animal fighting, there is a broad involvement of offenders who have previously evaded conviction on animal cruelty and welfare charges. However, the amendment to this section of the act will stipulate that any person involved in the activity of organised animal fighting—from the organiser and the owner to the participants or even any person present at the premises—will be classed as an offender. It will also be an offence for a person to be in possession of items that would assist in training an animal to fight.

Extensive consultation took place with the general public and relevant organisations over the suggested amendments to this bill to ensure that appropriate measures for the welfare of animals were enforced through the proposed legislation. It was evident throughout this consultation period that the community clearly does not accept malicious behaviour towards animals, with widespread support for improved measures for the welfare of animals. The irresponsible act of causing harm to an animal is deemed as a serious offence by this community and this government.

The proposed changes to this bill reflect the public's concerns. Causing harm to an animal will be an offence. Participating in causing harm to an animal will also be an offence. Knowingly allowing your premises or vehicle to be used for the purpose of harming an animal will be an offence. Also, deliberately ignoring harm to an animal will be an offence. Animals need to be protected in an environment that caters for individual species' needs, and I believe this bill is a vital and necessary step towards reducing the number of animals that are ill-treated in this state.

The Hon. C.V. SCHAEFER (16:56): I begin by saying that I detest cruelty. I rank cruelty to any animal as very similar to cruelty to a child. Both are helpless, innocent creatures who are dependent on mankind for their welfare. A society that does not care for and respect its most vulnerable—in this case, animals—is not, in my view, a civilised society. I might add that that obligation extends, in my view, to wild and feral animals. There seems to be a view among some people that because they are feral and a pest it is okay to inflict pain and torture. It is not.

I have grown up in an environment where animals have to be culled and in some cases hunted and destroyed, and I have had to do some pretty tough things myself from time to time. When one lives 200 kilometres from the nearest vet, decisions have to be made and animals treated or destroyed, so I do not come to this debate as some sort of wuss or do-gooder. However, I have never been able to understand those who get pleasure from killing a living creature, let alone those who would be cruel to it first. Indeed, research is increasingly indicating that people, particularly children, who are cruel to animals are likely to be prone to domestic violence as well.

There is no argument from me or my party about the creation of an aggravated offence for those who would be deliberately cruel to an animal, and we certainly have no problem with outlawing organised animal fights such as cock fighting and dog fights. I have been told that there can be no such thing in the law as an accidental aggravated offence, but this bill, although it purports to be about animal welfare, is in fact a great deal about punishment. It is about reverse onus of proof and giving the inspectorate almost unfettered powers. I will read the definition which is in the act and which disturbs me greatly. Section 13 provides:

(1) If—

(a) a person ill treats an animal: and

(b) the ill treatment causes the death of, or serious harm to, the animal; and

(c) the person intends to cause, or is reckless about causing—

and I stress, 'is reckless about causing'—

the death of, or serious harm to, the animal,

the person is guilty of an offence.

Maximum penalty: $50,000 or imprisonment for 4 years.

(2) A person who ill treats an animal is guilty of an offence.

Then it goes on to define some of the things that are considered to be reckless.

This is where I begin to become very concerned with this bill, and I want to give some examples. What about when such harm occurs but is not intended, for example, a horse caught in a fence which you might not see for two or three days? What a hideous way for that horse to be either maimed or even die, but no-one has intended that it happen. What about when a pipe bursts in a paddock and a mob of sheep are left without water and some, or even in the worst case all, of them perish through lack of water? Again, that is a hideous way to die. Again, it does cause harm, damage, pain, suffering, distress and unconsciousness, which are some of the things mentioned in this definition, yet the person who has perpetrated that act, if you like—the owner of that farm or animal—is already going to be entirely traumatised by that event having happened.

I am concerned that this bill imposes a reverse onus of proof. In other words, if an inspector—and we will get onto inspectors in a minute—suspects that this might be a case which can be prosecuted, they can do so, and the poor old farmer, who might have gone to the beach for the weekend and who has lost his horse or cow or mob of sheep, has to prove that he is innocent. There is no assumption of innocence unless proven guilty in this bill, so that is one of my many concerns with this bill.

Clause 6 includes a definition of electrical devices and outlaws various electrical devices. The minister has decided that she will sum up tonight and address all of these matters in committee. Within the act or bill—I am not sure which, without checking—an electrical device (an electric fence) is included within that definition. However, in another place it is specified, and I have been assured in briefings that an electric fence is not included in this. So, I want absolute, set-in-concrete definitions that people in the future can look up in Hansard and see that an electric fence is not included.

My next concern is with the addition of another person to the Animal Ethics Committee. I cannot see why this person is being added or what they can add to the Animal Ethics Committee as it currently operates. The amendment provides that at least one additional person can be appointed to the Animal Ethics Committee who will be a person who is independent of the licensee and who has never been involved in teaching or research activities.

The current Animal Ethics Committee consists of five members appointed by the minister: at least one a veterinary surgeon, at least one a teaching or research activities involving animals, at least one involved in the daily care of animals kept in teaching or research activities and at least one with an established commitment to the welfare of animals. So, I cannot see who this other new person will be, and I seek clarification and detail from the minister. I express my concern now that I see this as an opening for an extremist animal rights activist such as Ralph Hahnheuser or someone like that to be put on the Animal Ethics Committee. I can see absolutely no reason for that to be there and seek considerably greater input than is currently there.

The government kept talking about this being an animal welfare bill, but clause 11 sums up what it is. It changes the title from 'Appointment and power of inspectors' to 'Enforcement', and this seems to be the main thrust of this bill. The minister may in writing appoint a person to be an inspector for the purposes of this act, yet that actually writes out the RSPCA, which provision the Hon. Russell Wortley interpreted so badly a few minutes ago.

The current act gives the minister the authority to appoint a person nominated by the RSPCA, so the RSPCA is actually written out of this bill. All power now rests with the minister, who has the right to delegate, and she may appoint or dismiss any inspector. I have concerns about this, and I had concerns with the original act inasmuch as no qualifications are required for this person. Previously they were well-meaning people who were appointed by the RSPCA, so they probably did not need any great qualifications then, but we are giving people—and it seems to me there will be a lot of them—authorities and powers which in many cases surpass the authorities and powers of the police, yet we expect them to have no training and no qualifications whatsoever.

One of my amendments will endeavour to bring in a requirement—and we might have to generate such a course—of at least a TAFE course, certificate in animal husbandry or veterinary nurse certificate that will give people some knowledge of what it is they are actually inspecting. The Hon. John Dawkins gave an example of I am sure a well-meaning person who reported him for mistreating his horse, because the horse was old and skinny. Anyone who has old horses knows that it is very difficult to keep condition on them.

There are numerous examples in country South Australia of, again, well-meaning inspectors driving past and deciding that they are seeing something that, in fact, does not exist. I will be endeavouring to see that these new inspectors, who will have some incredible powers, at the very least are required to have some sort of qualifications. Further, when I move to the new section relating to routine inspections, which is aimed entirely at commercial operators of intensive animal husbandry farms, I will be seeking to move an amendment requiring that the inspectors have some qualifications in and/or knowledge of the industry they will be inspecting.

New section 31 outlines the general powers of inspectors (I have had a brief look at the minister's proposed additional amendments), and I think those powers are becoming even stronger rather than perhaps more rational. One of the main changes is that the inspectors have a right to act if they reasonably suspect a breach, but there is no definition of what is reasonable. There is nothing that we can measure this reasonableness against, yet some of the powers these people will have are as follows: the power to enter and search using reasonable force; the power to require documents to be produced, to take photos, films and videos; and the power to seize and retain any animal or other thing for the purposes of evidence identified by tagging or marking any animal.

Again, that raises some real issues with me. We have this inspector who has no qualifications and who may not know one end of a horse from the other, but they have the right to mark or tag them. They have the right to require a suspected animal abuser to provide their full name and identification, etc.; they can require people who may know about abuse to answer questions; and they can require permit holders to produce their permit for inspection (that I do not mind). They can give a direction on pretty well anything, the way I read this bill. They can ask anyone to give assistance.

The example I was given at the briefing was that, if an inspector decides they are going to yard or possess a whole mob of sheep and they cannot manage it by themselves, they can ask some other poor innocent who is driving past to help them. It also includes a vehicle as part of the definition of 'premises'. So, all of the things I have previously mentioned they can also do to a car. Victorian legislation, which I understand has recently been amended, does not allow inspectors to enter a dwelling, and it is my intention for us to amend this legislation to also not allow inspectors to enter a dwelling.

I now move to section 31, which is aimed fairly and squarely at intensive animal husbandry, that is, poultry farms with egg or meat, and piggeries in particular. Again, it requires that the occupier be given reasonable notice of a proposed inspection. When I was briefed (and I thank the minister for allowing her staff to brief me), I was told that initially, these inspections will probably occur quarterly—so, four times a year—and that reasonable notice will be given, but it does not actually say how long that notice will be. Then, reasonable opportunity will be given for the farmer to have a nominee with them (for example, a vet), and it requires that reasonable steps be taken to minimise any adverse effects of the inspection on the business or activities of the occupier of the premises or the owner of the vehicle.

No-one would be surprised to know that I have spent some time trying to contact as many of these people who have piggeries and poultry sheds as possible. SAFF has sent me details of some of the times that it would probably be most dangerous—certainly it would be bad for the animals—for such an inspection to take place. Particularly with poultry, those times are at placement. As members would know (or as I would hope they know), the animals never belong to the poultry farmer, who is merely contracted by the processors to grow the chickens out to a specific size. About four times a year, I think it is, all sheds are completely emptied, cleaned out and replaced with new litter, and new chickens are put into those grower sheds.

Chickens are particularly nervous creatures at that stage in their life; they are prone to crowd into a corner and to jump on top of each other, and they are easily disturbed by any strange person or noise, or by any change in light. So, placement would be a particularly dangerous time for such an inspection to take place. Vaccinations would be another bad time, when producers are vaccinating livestock.

The movement around farms from shed to shed needs to be carefully managed to maximise the effect of vaccinations, so that sheds are visited in order and the clean sheds are left clean. Similarly, at pick-up the process of loading livestock for the sheds needs to be managed very carefully to minimise stress to the birds as well as the number of mortalities. So, it is not simply a matter of the inspector deciding that they will do a heap of chook sheds this week and giving 'reasonable notice'—because, again, we do not know what is 'reasonable notice'.

The new section gives inspectors powers to examine an animal and, based on their assessment, provide treatment (and, again, we are not talking about vets here; we are talking about just the inspectors), modify the animal's living conditions or seize the animal. The Crown may obtain costs from the owner, and the inspector may destroy the animal but may not exercise this power unless the owner of the animal consents or the owner of the owner has failed to give consent, and so on.

There seems to me to be little process between these fairly draconian methods and actually dealing with the people on the ground. I really want to say that, even if one did not concern oneself with animal welfare, even if one could not care less, what farmer would actually want to run their place at a loss? It is well known that unless animals are well treated they do not do well. There seems to be this assumption that these people are not already doing the right thing.

It has been put to me that the most successful and perhaps more progressive of our piggeries and poultry sheds, in particular, are already registered to internationally-recognised QA standards. Those standards require third party auditing and a veterinary certificate. As I say, they require that these people be independently audited, inspected by a vet and comply with the regulations within their particular QA assessment; therefore, if they are already compliant with those standards, I see no reason why we would need to inspect them again,.

I guess the other major concern I have in this is: who pays? Is this to be yet another impost on our already cash-strapped farming community? Is this to be full-cost recovery? Suddenly we have a whole new batch of what my colleague the Hon. Graham Gunn would call 'gestapo'. We have a whole new batch of inspectors out there and, as I see it, a whole new stream of employment. I do not know how many intensive animal farms we have in South Australia, but I think it would be in the vicinity of 500, and these are all now to be inspected quarterly—at least for the first couple of years. Suddenly there will be a whole heap of people out there—and I stress again, a whole heap of people with no qualifications. Who is going to pay for this? Are we expecting the owner of the piggery to pay for this inspection?

The Hon. R.P. Wortley interjecting:

The Hon. C.V. SCHAEFER: The Hon. Russell Wortley interjects that we are all happy to protect them but we do not want it to cost anything. I am arguing that we are protecting them from something mythical, something that is not happening. My argument is that, again, we are coming in and playing on the emotions of people who do not have any real understanding of how commercial animal husbandry premises work.

In fact, I think we expose them to considerable bio-security issues. We have seen what equine influenza has done within Australia (fortunately not South Australia), and how quickly that virus has spread. If we have these people going from one farm to another, having given 'reasonable notice' (whatever that is), I believe we will have to bring in the most stringent regulations. These people will have to adhere to bio-security methods as they are today, and possibly even more strict than they are today.

While we will be supporting a number of aspects within this piece of legislation, we will also be seeking to make a number of amendments, particularly with a view to getting some qualifications for the inspectors. We will also be asking questions regarding what is suddenly wrong with the RSPCA in that it no longer has any rights; suddenly the minister has all the rights. We will also be moving amendments that, we believe, will allow people to get on with their businesses whilst still allowing for an inspectorate and routine inspections.

The Hon. M. PARNELL: The Greens are very happy to support the second reading of this bill, which contains many important changes we have waited a long time to see introduced. The Greens believe that animals have intrinsic value and that that value is separate from the needs of humans. We believe humans have a responsibility to ensure that animals' welfare, and indeed their rights, are respected. The Greens believe that we have a duty of care to minimise and remove cruelty to animals that results from human activity. We also believe that native animals and their habitats are as deserving of our care and protection as domesticated animals.

The area of animal welfare has been a fairly big focus of my work over the past year. Very recently I attended an Animals Australia seminar, which was held here in Adelaide. It was a day long seminar and some of the speakers, some of the animal activists who participated in that conference, were some of the most inspiring people that I have had the privilege to meet and listen to. We had at that seminar, for example, an activist from Egypt, who was able to show us the conditions that our sheep arrive in when they leave on live export ships from Australia. Without that type of exposure many of us would expect that, because animals are treated relatively well in Australia, they would be treated that well on the trip over and at their final destination, but clearly that is not the case. There are vast amounts of cruelty occurring on the ships and also at the final destination.

I have spoken in parliament a number of times about animal welfare. Last year I called for an inquiry into animal welfare and, in particular, the role that the RSPCA plays as a private charity that is also our principal law enforcement agency in this area. I also called for a parliamentary inquiry in response to the Ludvigsen case. That did not result in a parliamentary inquiry, but there was a departmental inquiry, which I will refer to shortly. Just to remind members about the Ludvigsen case—and I will refer to it a number of times because I believe that it provides an excellent case study of some of the areas of law reform that are required in this bill—it for me was basically about the RSPCA's response to a number of whistleblowers who drew attention to cruelty and mistreatment that they say was occurring at an intensive piggery in the Mid North.

There were serious allegations of animal cruelty, made not once but twice to RSPCA inspectors. The outcome of that was that the RSPCA ignored the first report and in response to the second report notified the piggery owner—who was clearly a potential defendant in the matter—over the phone that a complaint had been made. The worker who made the complaint was subsequently sacked for disloyalty. Then nine days later, after having notified the owner of the report, the RSPCA then arranged for an inspection of the property and gave it a clean bill of health.

Finally, in that case, a third whistleblower came forward but the difference with the third whistleblower was that they sought the assistance of other animal welfare groups and, in response, Animal Liberation went into the facility, in the company of a worker, wearing full bio security protective clothing, and they took video footage of what they saw inside that facility. That video footage was then lodged with the RSPCA, and the same day it sent inspectors out who raided the property. They killed two pigs that were beyond help and they ordered that three other pigs receive treatment. They also exhumed the bodies of other dead pigs for forensic evidence.

Ultimately, the owner of that piggery was prosecuted. He pleaded guilty to three offences in the Magistrates Court. As I have said, I called—before the court case—for a parliamentary inquiry into this. Instead, the minister offered a departmental inquiry and we received a copy of the results of that inquiry last week. I have to say that I believe that report to be seriously flawed.

First, I do not believe there is any adequate response as to why the initial whistleblower complaint was ignored. I think the report also fails to address the issue of how the RSPCA can have, as its standard operating procedure, the action of contacting the owner, a person accused of an animal cruelty offence, to ask whether the animal is all right. I think I have said in this place before that it is akin to the police ringing up a member of an outlaw motorcycle gang and saying, 'Is it true that you are growing drugs, or you are making drugs on your property?' It is not something that our police would do, and I do not think that the issue is adequately dealt with in the departmental report.

I also understand that the Commissioner for Equal Opportunity has taken up the case of Mr Bugg, the whistleblower who was sacked, and is assisting him in pursuing a complaint before the Equal Opportunity Commission. I can only assume from that that the commissioner has decided that Mr Bugg has a prima facie case; yet in the Ludvigsen matter, when there was a conflict between the whistleblower's version of events and the RSPCA in the departmental report, Mr Bugg was not believed.

Despite the report discounting all of the evidence from the whistleblower, the report does recommend changes in the RSPCA's investigative practices. I do find it baffling that the RSPCA can give a piggery owner a clean bill of health and yet another whistleblower needed to come forward before the truth was finally revealed. I will say that, although it has taken some time, I am pleased that the departmental inquiry has been completed prior to the commencement of this debate in parliament. As I said, I believe it provides a rich case study of some of the flaws in the current system, some of which are remedied in the bill but many of which still remain to be fixed.

I would like to go through some of the law reform themes that resulted from the Ludvigsen case. The first of these themes relates to penalties. Although Mr Ludvigsen pleaded guilty to three animal cruelty charges and was facing a maximum $10,000 fine, the lawyers for the RSPCA (quite inexplicably, as far as I am concerned) did not even ask for a fine to be imposed. My information is that, despite this, the magistrate imposed a fine of $1,500.

I think the lesson that comes from that is that increased fines in legislation can be a good thing if they properly reflect the prevailing attitudes in society, but we must ask the question: what is the point of increasing penalties if we do not increase the resources that are used to investigate cases of animal cruelty and if we do not change the culture of all the organisations involved so that they have the will to pursue wrongdoers, as well? The Ludvigsen case also raises interesting questions about the culture and the practice of the RSPCA as an investigatory body.

I have said it before and I will say it again: it is quite an anomaly that we have a private charity, a pretty well unaccountable private charity, involved in the investigation of multi-million dollar agribusinesses. The procedures that this body follows in its work do not appear to be, to me at least, sufficiently focused on gathering evidence. If the culture was about gathering evidence for potential prosecutions then we would not have had a situation where the investigators rang up the prime suspect and talked to them over the telephone about an offence that they may or may not have committed. We have some problems borne out through the Ludvigsen case.

The issue of inspections is one of the most important aspects of this bill. It seems to me that someone in the position of Mr Bugg, as a whistleblower, was always untenable under the current system because, in the absence of a regime of unannounced, routine or random inspections, there will always be a whistleblower who can take the blame for the RSPCA turning up to premises. If there was a regime of unannounced inspections, that would offer some level of protection to whistleblowers because the whistleblower is not as obviously the cause of the inspection having taken place.

My view is that inspectors should be able to enter commercial premises where animals are kept at any time. That is also the submission of a number of the individuals and groups that wrote to the government in relation to this legislation. I will refer briefly to the submission of Animal Liberation. In relation to rights of entry of inspectors it says that it believes that the RSPCA currently has reasonable powers of entry and disputes the legal advice the RSPCA has obtained to the contrary. That dispute over the powers is one that has hamstrung the RSPCA for many years. At least now, through this bill, we have a chance to bring it to a head. The Animal Liberation submission continues as follows:

Under any reasonable definition a farm is a 'premises being used for holding or confining animals that have been herded or collected together for sale, transport or other commercial purposes'. A farm is a place with a collection of animals kept for commercial purposes. We believe the RSPCA is hiding behind this alleged vagueness in the legislation to avoid dealing with the tough business of enforcing the act with respect to intensive farming industries. That said, Animal Liberation has no objection to redrafting the legislation to make it crystal clear that the RSPCA can enter farms to check on the condition of the animals at any time whilst ensuring proper and adequate biosecurity measures are followed.

We have had a stand-off over many years where the RSPCA has said it does not have the powers and other animal welfare or animal rights groups say they do have the power, and now we need to make sure that when we clarify the rights and powers of inspectors we do it in a way that removes all ambiguity. I do believe that the RSPCA already has powers under the act. However, it is good that we are clarifying those powers.

We must make sure, of course, that we strengthen rather than weaken those powers. I do draw some comparison of the role of inspectors under this regime with the role of inspectors in other areas of public life. Many years ago I lectured at Flinders University in the subject of public health law. One of the things I had to teach the students, most of whom were budding environmental health officers, was the Food Act and the inspection regime under that legislation. One of the things that I always referred my students to was the Garibaldi case.

As members would recall, that was a tragic case of food poisoning that resulted in many people becoming ill and one little girl, Nicky Robinson, dying as a result of eating contaminated food. I will read a couple of sentences from the Coroner's report into the inquest into the death of Nicky Robinson as follows:

Mr S confirmed that his officers always gave notice of a routine inspection and he did not seem surprised that this notice would prompt a clean up at the factory. He said that the giving of such notice was regarded as a courtesy and that being local government 'customer focus has a high profile'.

There you have the Coroner being astounded at the fact that the food inspectors seem surprised that, having given notice of an impending inspection, a clean up took place. We need to think how that situation would occur in relation to the inspection of animal facilities. The Coroner goes on to say:

I must say that I have some difficulty with the concept of a regulatory authority describing the occupier of premises to be inspected as a 'customer'. I realise that the expression has a certain currency in management jargon at the moment, but it implies a relationship of service which is inappropriate. It is not the function of an environmental health officer to please those whom he or she is required to inspect, although I do not suggest that unnecessary rudeness and officiousness should be resorted to.

However, there will be times when the customer will be displeased by an environmental health officer's actions, and in my view the public has a right to expect that an environmental health officer will not be daunted by that. Firmness, objectivity and professionalism should govern the activities of a regulator, particularly where, as here, the health and safety of the general public are at stake. I do not consider that the concept of customer service has a role in this context.

We could replace the reference to environmental health officers with animal welfare officers. This extract from that terribly sad occasion many years ago now needs to sound a warning bell to us that, when we are looking at public authorities (or in this case a private charity), who are effectively regulating industries in the public interest, they need to make sure that their clients or customers are in fact members of the public. In relation to animals, the animals themselves might be regarded as the clients or customers that they are seeking to protect. You do not have to be rude, but you need to ensure that you know where your priorities lie.

A lot is said about biosecurity in relation to the inspection of premises where animals are kept. This is a real furphy because effectively we are saying in the context of the regulation of animal welfare laws that we trust our inspectors to carry out the law of the land and trust them to prosecute offenders on our behalf, but we do not trust them to take basic precautions such as putting on protective clothing and washing their boots afterwards.

I find it remarkable that we have this mantra of biosecurity that somehow assumes that all inspectors are complete idiots who do not know what they are doing. Clearly that is not the case. The people charged with inspecting our animal welfare facilities will be well trained and will understand issues in relation to biosecurity. I think we can trust them not to barge from one animal facility to another without taking appropriate precautions. Biosecurity is not the answer to preventing unannounced random inspections.

I look forward to the minister's second reading conclusion because I want her to clarify the content and status of the memorandum of understanding she referred to in her introductory speech. She describes this memorandum of understanding as being developed between agencies involved with the animal industries in which the roles and responsibilities of those agencies are stipulated. The minister says that the memorandum of understanding also specifies the training and biosecurity requirements for intensive industry inspectors and defines the minimum and maximum notice of an impending inspection that would normally be given to producers. The minister goes on to say:

The memorandum of understanding further specifies that intensive industries establishments will not be the subject of a routine inspection more than once each year, and if a quality assurance program is in place desktop audits of the program will be undertaken more frequently than site visits.

I look forward to the minister explaining how the memorandum of understanding is developing, and I will be very keen to see that we do not find in that memorandum any unlawful fettering of discretion. By that I mean that, if the legislation provides for a regime of inspection, I do not want to see some memorandum of understanding watering down those powers. It may be an illegal fettering of discretion, so I look forward to the minister's clarification.

I have on file amendments in relation to the powers of inspectors and, in particular, an amendment that does not require the giving of notice, for the reasons I have given already. I do not think it is appropriate for notice to be given because inevitably if there are problems it will result in those problems being fixed. That is not to say that the inspectors should be willy-nilly barging into animal facilities. The bill as drafted provides for an inspector to give an opportunity to the owner of a facility or person in charge to participate in the inspection, and that is appropriate.

I understand that there is some division in the animal welfare community with the appropriate wording for this section giving powers of inspection. I attended the Annual General Meeting of the RSPCA this year (as I attended it last year) and I was very pleased that, in the most democratic forum available to an incorporated body (the AGM), the membership voted to support unannounced inspections of these intensive animal facilities. I think that was a grand day. In the most democratic forum available to them, the RSPCA members chose to vote for unannounced inspections.

Since that day, however, I have been somewhat dismayed to find that the RSPCA executive is not out there batting for its members and promoting the resolution that its members passed at the meeting. I have had a number of conversations with RSPCA members, including Mary Barton, who is the newly appointed President, and the effect of those conversations is to devalue the general meeting resolution that was passed. Apparently, the executive of that organisation is all powerful, and it does not have to do what its members tell it to do at an AGM. I find that quite remarkable.

It seems to me that the council of the RSPCA has rejected the motion of the members, and it seems—at least to the very few people to whom I have spoken at the top level—to be prepared to live with the reasonable notice provisions that are currently in the bill. I do not find that acceptable from the point of view of how a democratic community organisation should be run, and I say that as someone who has spent almost my entire life working in non-government incorporated non-profit bodies.

I find it remarkable that the RSPCA is not putting in place what its members ask of it. I note that this issue of inspection was raised many times by the previous chief executive officer of the RSPCA, Mark Peters—someone who was a regular in the media. A paragraph appearing in the Independent Weekly states:

Mark Peters, Chief Executive Officer of the RSPCA's state division, told the Independent Weekly, 'Current laws make it impossible for officers to enter a property without a warrant and evidence animals being ill-treated.'

The quote the Independent Weekly attributes to him is:

At the moment we cannot conduct routine inspections at all. We can only enter if we have received details of an alleged offence.

It has been an issue of concern to the organisation for some time. We do need to fix it up. We do need to make sure that we get it right this time. One issue with which we will have to deal in committee is that of random versus routine inspections. A question I would like the minister to answer when we get into committee is: how many random inspections have occurred under the existing legislation? Bearing in mind what Dr Peters said, have there been any random inspections? I would also like the minister to better define for me what is meant by 'routine inspections'? Does it mean 'scheduled' or does 'routine' in fact mean random?

I also need to know the meaning of 'reasonable notice', because it seems to me that those two words 'reasonable notice' will be central to our debate in committee. What the RSPCA people say to me is that those who are happy enough with that constraint of reasonable notice are those people who say, 'Oh, we'll be the ones who define it. We'll decide what reasonable notice is. If we're driving past a piggery or a chicken shed, we should be able to knock on the door and that should be enough reasonable notice.' On the other hand, you might get the operators of those facilities who find that reasonable notice is measured in days or weeks rather than in minutes and seconds.

I want to know what the minister understands by the term 'reasonable notice'. I would also like to understand a little more about what the minister said in her second reading explanation about the quality-assurance programs and whether having such a program in place would effectively make a facility immune from inspections. In other words, would you still inspect and, if so, how do they see that arrangement working? I would like the minister to explain in committee how many inspectors have been employed (full-time equivalent) over the past couple of years and how those numbers are proposed to be increased.

I would like to know how many accredited or authorised inspectors are not employees of the RSPCA. I want to know in particular whether the promised new intensive farm inspector has been appointed, and if that person has not yet been appointed when it is expected that that will take place. I want to refer again to this notion of whistleblowers and how in legislation we can protect these people who I have described in this place before as often the only friend the animals have—the workers who are employed in these intensive facilities. We do not have general public access to these places. We do not know what is going on.

Usually it is just the workers who are privy to the conditions inside. As I pointed out in the Ludvigsen case, the whistleblowers in fact suffered the ultimate indignity of being sacked as a result of their whistleblowing. My amendment is actually to provide some level of protection; to provide that it is unlawful to discriminate against someone—for example, by sacking them—simply because they have drawn the attention of the proper authorities to a situation that is going on. That is a level of protection that we provide to our public servants. We have special legislation enabling them to be protected from drawing a particular situation to the attention of the proper authorities.

Another amendment that I believe is necessary is in response to the current arrangements whereby a person is treated much the same, whether they are a multimillion-dollar intensive animal facility or a solitary individual in charge of one or two companion or domestic animals. I think that the approach should be different: they are very different circumstances. Whilst it might be appropriate to ring up someone in relation to a dog or cat complaint, I do not think that is the appropriate response to serious allegations in relation to intensive animal facilities.

One principle that we find in law elsewhere when criminal sanctions are imposed is that we treat corporations differently to individuals, so I have a range of amendments to this bill that make that same distinction, providing higher penalties for corporations than for individuals. That brings this legislation into line with most other statutes containing criminal provisions. I would like the minister in the committee stage to provide some more details about the history of prosecutions of intensive animal facilities, and I would appreciate figures for prosecutions over the last two years.

There is one issue that also relates to whistleblowers, whether under this animal welfare regime or any other regime where individuals report things to the authorities, and that is the responsibility those authorities have to get back to the person who made the complaint. There is nothing more frustrating to a civic-minded individual than to make a report or complaint about some alleged situation or wrongdoing only to find or suspect that your complaint or report ended up in the rubbish bin or not being actioned. So, I am very attracted to section 130 of the Environment Protection Act, which is the act that relates to pollution and waste in this state. Section 130 says that if someone makes a report to the EPA then the authorities have an obligation to get back to that person and tell them what action has been taken.

I think that is an appropriate model that could apply in this regime as well if we are serious about using the community as the eyes and ears of our regulatory authorities—and that is what we do. Using the pollution analogy, it is a complaint-driven regime. If no-one complains, there is an assumption that nothing is wrong. Complaints and reports from the community are the main way that pollution is drawn to the attention of the authorities. I think it is similar with animal welfare. It is not as if there are dozens of inspectors driving around the streets of our cities and towns looking for animals that are being mistreated. It is very much a complaint-driven regime, and I think it is appropriate for complainants to be given the courtesy of a response from the authority—in this case, the inspector.

There are a number of other amendments that I have on file. One relates to expiation notices. I think that is an important tool in the criminal law for lower level offences. One of the difficulties with this legislation is that we do not have a clear hierarchy of seriousness of offences which would lead some to having expiation fees attached and others not. So, it has been difficult, yet I think it is not impossible, and I see the connection as being the issue of orders and noncompliance with orders being an appropriate offence to expiate.

That is different to what is currently in the bill where noncompliance with an order is not of itself an offence. If you wanted to use an example, you might have an inspector who attends a pet shop and discovers that insufficient water has been provided for the puppies and kittens in the shop window. It may well be that after one visit, if it is serious, or maybe after two visits, an order is an appropriate response and failure to comply with that order should attract some form of penalty. So maybe it is those lower end offences that should attract expiation.

Of course, expiation provides another tool in the tool kit because at present the only tool, really, is prosecution. It is expensive and time-consuming and does not return in fines and fees the effort that is put into them, and it can use up a lot of valuable court time and resources. We have to remember, of course, that we are talking about an agency that has to fundraise to do police work. The government does not fully fund the investigation functions and the prosecution functions of the RSPCA. They fundraise to do the rest—a bit like the police homicide squad selling lamingtons to pay for murder investigations. So the resources are scarce and we do not want to waste them. Therefore, if expiations are appropriate I think we should at least have them in the tool kit.

In relation to licences that can be issued for scientific research or teaching that might involve animals, there is an Australian code of practice for the care and use of animals for scientific purposes, yet the bill as currently drafted does not require licences to reflect that code. In fact, the code is simply something to be taken into account by an ethics committee. It needs to be given higher status than that and incorporated into the licence. So I have an amendment to achieve that end.

Codes of practice can be very problematic in regulatory regimes, and the codes of practice under the animal welfare laws have come in for their fair share of criticism. As one person put to me, many of these codes merely endorse cruelty: they enshrine in those codes cruel practices. That is why I believe it is inappropriate to have compliance with a code as an absolute defence, because that is currently the situation with the act. It is not an inclusion with this bill, but it is something that we need to address, because we are looking at the whole of the act.

In South Australia we perhaps handle this worse than in other jurisdictions, because the legislation refers to codes adapted as amended from time to time. The problem with that, of course, is that we as a state lose control over these important documents. What we are doing is delegating the decision making process away from the parliament. We are talking the authority away from the parliament; we do not debate them in the parliament, and we do not even have the authority to disallow them as we would if they were incorporated into regulations.

I note on this point that it is a view that is shared in the legal community. I refer members to the book Delegated Legislation in Australia by Dennis Pearce and Stephen Argument (a great name for a person writing a law textbook). The authors state:

…the inclusion in delegated legislation of requirements stipulated by another organisation means that the other organisation is, in effect, stating the law on the topic. This may not be so if the incorporation is of a document as in force at a particular time. However, if the incorporation is of the document as in force from time to time, this enables the organisation writing the document to determine the content of the delegated legislation. Can this be said to be a subdelegation of law-making power?

I think it is, and I think it is inappropriate for us to lose control over important standards. That is why I say that compliance with those national codes ought not be an absolute defence unless we have had the opportunity to scrutinise them and disallow them as delegated legislation.

The codes of practice are not a necessary precondition to proving an offence under the act, because section 13 provides that ill treatment occurs when someone unreasonably causes an animal unnecessary pain. That raises the question of reasonableness as a defence, so therefore the question would be: why should farmers be able to hide behind codes if the codes are unreasonable or the behaviour of the keeper of the animals is unreasonable as well? My response to that is to get rid of section 43 of the act.

I note that in section 42A(a) of the act these codes do need to be made available and on display, and my question of the minister is: where is that? Where can members of the public obtain or see copies of these codes?

There are a number of issues that this legislation does not address. Probably the most important one is the key issue of appropriate regulatory authority. I think it is important that we clarify who is responsible for the enforcement of this legislation. I do not think that it is satisfactory to have a private charity as the primary agency, with ministers being able to hide behind that charity and say, 'Well, that is an operational matter and I would leave it to them.' So, I think we need to clarify that the buck does stop with the minister.

I would also be keen to see that the minister is under an obligation to enforce the act. Whilst that might not be something that we write into the legislation—we use the committal process to imply that level of responsibility—I would ask the minister to clarify to us what level of oversight the minister has over the inspectorate, the investigation and the prosecutorial functions of the RSPCA and to ask the basic question: who is ultimately responsible? Is it the RSPCA, through its members? Clearly not, because whatever the members say at an AGM seems to be disregarded. Is it the council of the RSPCA, or is it the minister?

The accountability of the regulatory body is something that is at present unclear. It seems to me that the Ombudsman does have some oversight role in relation to the inspectorial function but apparently has no role at all in relation to the general running of the society. We could distinguish that from government agencies, where clearly the Ombudsman has a role that extends beyond just inspectorial functions to all of the functions of government departments. So, the clear anomaly to me is that, whilst the inspectors might notionally be under some sort of supervisory wing of the Ombudsman, the controlling organisation that those inspectors report to is not.

I would also ask the minister to report back to us whether she is comfortable with the management of the RSPCA and the level of democracy within the RSPCA as reflected by its structure as a membership based organisation and urge the minister to explain to us how she reconciles the apparent conflicts between what the organisation's executive says and what its members say at democratic forums.

I note that the RSPCA receives over $500,000 (I think it might be pushing $600,000 now) of public funds each year. So, I am interested to know what level of accountability there is for that money. Other members have referred to the link between animal cruelty and human cruelty. In fact, it is an issue that animal welfare organisations all around Australia and overseas have started to realise.

That raises some interesting and important questions about the appropriate role for law enforcement officers who are trained in dealing with violent, or potentially violent, situations, and it does raise the question of the appropriate role of the police in animal welfare enforcement. It seems that, if people who are known to be cruel to animals are also cruel to other humans and vice versa, we are potentially putting our animal inspectors in harm's way. My questions for the minister are:

1. What is the appropriate role for the police?

2. How many police investigations have occurred under this legislation?

3. Is data that is collected by the police shared with the RSPCA?

4. Is it possible for an RSPCA officer attending an alleged animal cruelty incident to be aware that the potential perpetrator is someone with a history of violence towards other people?

5. What information sharing and what interactions occur between those two agencies?

Whilst I have focused on what I see as some of the deficits and the shortcomings of this legislation, overall, the bill contains many positive changes. We do need to resolve the issue of inspections, particularly in relation to intensive animal facilities, and I would also like to resolve, through the committee stage, some of the issues that are not dealt with in the submission.

I put on the record my particular thanks to some of the organisations and individuals who have written to me and provided me with copies of their submissions. In particular, I thank the RSPCA, which people might find odd, given that I often have things to say about that organisation. In fact, when I attended the AGM, I was very surprised to find that my comments on animal welfare were the main focus of the President's address to the meeting. I lost count of how many times my name was mentioned, but it was over a dozen times.

I was disappointed that there was no opportunity to ask questions of the President or for rights of reply. However, the thrust of what the former president said was that they would prefer me to be less a critic of the organisation and more a champion of the side. I am not sure whether that is the role I see for myself; I see myself as a critical friend. I am a member of the RSPCA, and I acknowledge the standing in which that organisation is held in the community and some of the good work that it does over a large range of areas.

I knowledge that organisation's help; in particular, I acknowledge the help of the Chief Inspector, Mr Ben Johns. I understand that Mr Johns has not been with the organisation very long, but he appears to me to be a great acquisition for that organisation. He is someone with a clear understanding of the legal system and the role of investigations and prosecutions. I also thank the people at Animals Australia and the people at Animal Liberation, who have also sent me material that has been helpful in putting together my view on this bill.

One thing you cannot fail to notice when you deal with these organisations and these people is that the individuals are absolutely passionate. It surprised me somewhat to find that they appear to be fairly hostile to each other when they are basically all on the one side. It surprised me, until I had the former president and the former CEO of the RSPCA in my office, to find that there is such a divide between people concerned about animal welfare and people concerned about animal rights. I have never seen it as an insurmountable divide, but many of the people in those camps do see it that way. I think that is disappointing, given that they are basically all on the one side in that they are all looking for a better deal for animals.

I look forward to the minister's response to the questions I have asked, and I look forward to the committee stage but, for now, the Greens are pleased to support the second reading of this bill.

The Hon. G.E. GAGO (Minister for Environment and Conservation, Minister for Mental Health and Substance Abuse, Minister Assisting the Minister for Health) (18:13): I thank honourable members for their contribution to the second reading debate; their comments have been very valuable and interesting. I acknowledge the role the RSPCA has played in the development of the legislation. I am confident that there is widespread community support for the improved measures for the welfare of animals; the changes to the legislation will ensure that our animal welfare standards are among the best in the country. The new legislation reflects a changed emphasis from preventing cruelty to promoting animal welfare, and this emphasis is reflected throughout the provisions of the bill.

While I acknowledge the support the bill has received from members, I also note that questions have been asked by a number of people in this place and by stakeholders interested in both the welfare and management of animals. I have listened carefully to these concerns and, in response, I will provide some further clarification. I am aware that the issue of notice to be provided to animal businesses prior to routine inspections has caused some interest. This bill proposes that an inspector may conduct a routine inspection of an animal business, that is, if there is no suspicion of an offence. However, the inspector must give the owner/occupier of the premises reasonable notice of the proposed inspection as well as the opportunity to accompany the inspector throughout the inspection. The inspector must also take reasonable steps to minimise any adverse effect the inspection may have on the business or activities of the occupier of the premises.

The issue of reasonable notice of routine inspections has been the subject of some debate since the bill was drafted. Some animal welfare and rights groups seek inspection with no notice, but the animal industries consider this to be potentially dangerous due to safety and bio-security concerns. Animals are creatures of habit, and I am advised that if a person enters the wrong door of a chicken-growing shed it may panic the birds and cause mass suffocations. This is not a deliberate or negligent act; it simply breaks the birds' routine and panics them. The owner or manager knows the animals and their routines and it is in the animals' welfare and interests that such precautions are taken.

In requiring reasonable notice, the bill gives the inspector and the owner the ability to arrange the inspection for a mutually convenient time and allows both to be accompanied by persons they believe can assist with the inspection. It is important to acknowledge that if there is any suspicion of an offence an inspector can seek a warrant and enter without notice. If the situation is urgent, the act allows an inspector to enter without even seeking a warrant. These situations are not the purpose of routine inspections. The definition of what is considered 'reasonable notice' will vary with the circumstances of each individual inspection, so it would be inappropriate to legislate more precisely. As it stands, the bill requires reasonable behaviour by inspectors.

In my second reading speech I referred to the development of a memorandum of understanding signed by PIRSA, DEH, DWLBC and the RSPCA—each being a body employing inspectors under the act. This document has now been finalised and signed. In the course of negotiations two elements I raised in my second reading speech have been settled. First, there will be no absolute definition of what constitutes a reasonable time period, and this reflects that reasonableness arises from circumstances and cannot be a minimum period of time. Secondly, there will be no restriction in the number of routine inspections for an individual facility in any given time period. While good practice will mean that animal welfare inspectors will not waste their valuable time continually visiting well-performing facilities, it is important that the timing of routine inspections be genuinely in the hands of the inspectorate with no undue limitations beyond giving reasonable notice.

Routine inspections are a monitoring system to be used to ensure compliance with standards without any suspicion of an offence. Business owners are not accused of anything and will be treated with courtesy and respect; but at the same time we must ensure that the well-intended actions of the inspectors do not jeopardise the business of persons who are not even suspected of breaching the law. We must especially ensure that those actions do not endanger the welfare of the animals that the inspectors are seeking to protect.

The term 'reasonable' is commonly used in legislation. In terms of its broader use in legislation, 'reasonable' generally means the actions of a reasonable person in reasonable circumstances. I asked my department for a specific briefing on the use of the term in animal welfare legislation in Australia and have been advised that it is a common term in all animal welfare legislation in this country, with South Australia using the term less often than all other states—and considerably less than some.

I note the concerns raised by the Hon. Ann Bressington regarding the significant increase in penalties in the act relating to ill-treatment, as well as penalties for offences against the regulations. The penalty for ill-treatment has been doubled and most other penalties have been increased. South Australia's penalties are currently considerably lower than other jurisdictions, and the penalties in the act have not been reviewed since the year 2000. In the interim, other jurisdictions have reviewed their penalties and increased them. Increased penalties in the bill reflect the penalties imposed for similar offences in other Australian jurisdictions and brings South Australia roughly into line with the rest of the country. While increasing penalties is a key component of this legislation, it is not the motivation behind its development.

The Hon. Ann Bressington also raised concerns about an incident concerning a dog owned by an individual. I note the member's concerns, and I am aware that the RSPCA has been in direct contact with the member to clarify matters. Obviously, I cannot give personal details in respect of that.

The expansion of the provisions relating to organised animal fights mean that any person involved in such activities would be liable for prosecution. In addition, the court may order that objects used in an offence (for example, spurs confiscated from a cock fight) be forfeited to the Crown and be disposed of as seen 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. Fighting spurs, while made for an ugly purpose, are often beautifully intricate, carved silver objects, perhaps inlaid with stones, and may be quite valuable.

The regulations under the current Prevention of Cruelty to Animals Act 1985 indicate that only a museum which receives government funding may keep these items; an inspector is not able to possess them. That means that the RSPCA could not hold them as evidence for prosecution. This amendment provides that a private museum, the RSPCA, or anyone else can hold them as artefacts, examples or evidence, with the minister's permission.

Electrical devices, as defined in the bill, include electric fences. I am aware that there is some question from farmers as to whether my intention was to ban electric fences; there is no such proposal and I have no intention of banning livestock electric fences. However, technology is changing and if, in the future, I propose a ban on a particular dangerous or cruel type of electric device it would have to be by regulation, which would have to go through the democratic parliamentary process. As an example, the invisible enclosure system is an electric fence of a sort which is currently prohibited in South Australia because it involves a collar which imparts an electric shock. It would be reasonable to assume that if any minister were to seek to ban normal livestock electric fences the public and the parliament would reject such a proposal.

There were a number of questions raised today by honourable members in their second reading contributions that I have not fully dealt with in my summing up, but I would be happy to provide answers to those outstanding questions during the committee stage.

Finally, I would advise members that, after consultation with stakeholders on the bill, I am proposing a number of amendments to further clarify the intention of some clauses and ensure the bill meets my objective of improving the legislative base of animal welfare in South Australia. I thank all honourable members for their contribution and look forward to the committee stage.

Bill read a second time.

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