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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-02-26 Daily Xml
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PREVENTION OF CRUELTY TO ANIMALS (ANIMAL WELFARE) AMENDMENT BILL

Committee Stage

In committee.

Clauses 1 to 5 passed.

Clause 6.

The Hon. D.W. RIDGWAY: Mr Chairman, I draw your attention to the state of the committee.

A quorum having been formed:

The Hon. J.M.A. LENSINK: On behalf of the Hon. Caroline Schaefer, I move:

Page 3, line 9—Delete paragraph (b).

The Hon. G.E. GAGO: This amendment filed by the Hon. Caroline Schaefer would remove electric fences from the definition of 'electrical device designed for the purposes of confining or controlling an animal', which clearly it is. The current act includes electric fences in the section on electrical devices. So, the bill does not represent a change in the conditions.

The provision states that a person must not, for the purposes of confining or controlling an animal, use an electrical device in contravention of the regulations. The standard electric fence is an important animal management tool, and the government has no intention of restricting or prohibiting its use. I cannot give a stronger assurance than I have already given; however, technology is constantly changing and, without knowing what electrical devices may be invented in the future, it is unreasonable to state categorically those which may or may not be restricted or prohibited. If any minister sought to ban any electrical device by regulation, there would have to be extensive consultation and it would be subject to normal parliamentary processes.

If electric fences were to be removed from the definition of 'electric device', it would mean that, if an extreme version of an electric fence were developed in the future, any prosecution relating to its use would have to be undertaken under the provision of section 13 of the act. For these reasons the government does not support this amendment.

The Hon. M. PARNELL: The Greens do not support this amendment, largely for the reasons set out by the minister. Whilst the use of current technology and current practice arrangements might not be regarded as cruel, I think that the subject matter of electric fences needs to stay in there, because part of the issue obviously will be the voltage that is to go through those fences and the strength of shock to be imparted, and I think it makes sense to keep those items on the agenda as a matter to be regulated. As we debate this clause, unless I hear cogent reasons to the contrary, I am not inclined to support the amendment.

The Hon. J.M.A. LENSINK: Could the minister outline what an extreme version of an electric fence might entail?

The Hon. G.E. GAGO: For example, it could be an electric fence that had an extreme voltage level.

The Hon. J.M.A. LENSINK: Would that not fall, therefore, under the definition which is envisaged in this bill that refers to causing unnecessary pain, harm and so forth?

The Hon. G.E. GAGO: As I have already pointed out, but I will repeat it, if electric fences were to be removed from the definition of 'electric device', it would mean that if an extreme version of electric fencing were developed in the future any prosecution relating to its use would have to be undertaken in the provisions of section 13 of the act.

The Hon. C.V. SCHAEFER: Why do we need to leave this in there, if the extreme instances that you speak of, minister, are covered in another section of the bill?

The Hon. G.E. GAGO: As I stated in my opening remarks, technology is constantly changing and we do not know what sort of electrical devices may be invented in the future and, therefore, it is unreasonable to state categorically those which may or may not be restricted or prohibited.

The Hon. C.V. SCHAEFER: Minister, the amendment does not take all types of electrical device out of the definition; it merely takes 'electric fence' out of the definition. I state again that it is unnecessary to leave in 'electric fence' if, in fact, you have no intention of calling an electric fence an electrical device.

The Hon. D.G.E. HOOD: Family First supports the opposition's amendment on this occasion. We are persuaded by the arguments presented by the Hon. Caroline Schaefer and, also, we are not in the business of supporting amendments that are designed for situations that may or may not occur in the future.

The Hon. G.E. GAGO: I have been advised that, if a device is prohibited by regulation, using that device is an offence, whether or not suffering can be proven; if there is suffering, as well, then there are two offences.

The committee divided on the amendment:

AYES (12)

Bressington, A. Darley, J.A. Dawkins, J.S.L.
Evans, A.L. Hood, D.G.E. Lawson, R.D.
Lensink, J.M.A. Lucas, R.I. Ridgway, D.W.
Schaefer, C.V. (teller) Stephens, T.J. Wade, S.G.

NOES (9)

Finnigan, B.V. Gago, G.E. (teller) Gazzola, J.M.
Holloway, P. Hunter, I.K. Kanck, S.M.
Parnell, M. Wortley, R.P. Zollo, C.


Majority of three for the ayes.

Amendment thus carried.

The Hon. M. PARNELL: I move:

Page 4, lines 26 and 27—

Clause 6(7), inserted definition of serious harm, (b)—delete paragraph (b) and substitute:

(b) harm that results in an animal being so severely injured, so diseased or in such physical condition that it would be cruel not to destroy the animal; or

(c) harm that consists of, or results in, serious and protracted impairment of a physical or mental function;

This is the amendment that replaces the definition of 'serious harm'. It is a very difficult issue to deal with because we need to find a form of words that reflect the relative seriousness of different types of suffering that animals might be subject to, and that then flows on to the types of penalties that are appropriate for those who inflict various levels of suffering.

The definition that is in my amendment No. 1 is a definition that we have worked through over a period with the RSPCA. I had tabled some amendments earlier which, on consultation, were not ideal. I put on the record my thanks for the effort of Ben Johns, the chief inspector of the RSPCA, who has gone to some lengths to find appropriate definitions in different pieces of animal welfare legislation around the country (in particular, legislation from New South Wales was influential), and also his work in analysing various judicial interpretations of different forms of words. The words I have come up with which, as I say, are supported by the RSPCA, define 'serious harm' as follows:

(b) harm that results in an animal being so severely injured, so diseased or in such physical condition that it would be cruel not to destroy the animal; or

(c) harm that consists of, or results in, serious and protracted impairment of a physical or mental function.

I believe that those modifications to the definition of 'serious harm' deserve the support of the committee. They are supported by the RSPCA, and I would urge all honourable members to give them their support.

The Hon. G.E. GAGO: This amendment proposed by the Hon. Mark Parnell changes the definition of 'serious harm' in the bill. He has stated that this definition is based in part on the New South Wales model. The government recognises that its definition is somewhat complex and cumbersome and may be open to interpretation and, furthermore, it would require the courts to interpret and create legal definitions for a number of terms when ruling on such a charge. The government, therefore, considers the amended definition to provide greater clarity and, consequently, supports the amendment.

The Hon. C.V. SCHAEFER: This amendment does indeed appear to clarify the definition of 'serious harm'. I have a couple of questions for the Hon. Mr Parnell as to why 'disease' has been added, given that I cannot envisage an act of deliberate cruelty, which is what we are talking about here, which causes serious harm. I can certainly understand harm that results in an animal being so severely injured or in such physical condition which would cover acts of deliberate omission or allowing a diseased animal to go untreated, but I wonder about the addition of the word 'diseased', given that unless we are talking about some sort of animal expectation I cannot conceive of anyone deliberately subjecting an animal to disease. Disease is something which generally spreads from animal to animal or from human to animal, etc.

The Hon. M. PARNELL: I would certainly hope that the Hon. Caroline Schaefer is correct and that we would not have people deliberately seeking to subject animals to diseases. I would imagine that a circumstance might be one that perhaps crosses that border between injury and disease and, in particular, infection might be an example that might flow from perhaps a minor injury that results in a major disease. Anyone who has cut their foot on coral in the tropics would know that what might appear to be a very small injury can result in a very serious infection and disease later on. That is the type of circumstance that I would imagine.

I have been happy to take the advice of professionals in this field and, as I have said, in particular the RSPCA. I note that the New South Wales legislation certainly includes that concept of an animal being so severely injured, so diseased or in such a physical condition that it is cruel to keep it alive. So, I think it is consistent with the approach that has been taken in other jurisdictions. I do agree with the honourable member that it is hard to imagine circumstances where the disease itself was deliberately inflicted, but I think that leaving it out might let some serious cases off the hook.

What we are talking about here is compartmentalising a spectrum of offences, and we want to have it clear as to what we regard as the most serious offences. So, that would be my explanation as to why I think those words are appropriate.

The Hon. D.G.E. HOOD: I have a question for the mover. I do not see how the amendment changes the intention of what is written in the bill itself, when it states:

'Serious harm' means—

(a) harm that endangers an animal's life; or

(b) harm that consists of, or results in, severe, protracted, abnormal physiological or behavioural reactions.

Surely an animal with significant disease would fall into that category.

The Hon. M. PARNELL: I guess my response is to say that in this definition we have gone back to first principles and tried to avoid categorising the seriousness of the offence on the basis of those symptoms (if you like) as set out in that legislation. As I said, I am prepared to defer to the greater knowledge of those people who have spent their lives working in this field and who have come across probably every conceivable situation of animal mistreatment and every possible animal welfare case. If they tell me that this is a useful addition that helps to clarify the definition of 'serious harm' then I am more than happy to put that to the council.

If other members have precedents from decided cases in the courts or other good reasons as to why these words may not be appropriate, I would love to hear those. For now it satisfies me and, as I explained to the Hon. Caroline Schaefer before, I think that if we were to leave out the reference to disease we may possibly miss some serious cases that deserve to fall within this definition.

The Hon. G.E. GAGO: I have also had some advice from Ben Johns that might assist with this, as well as hearing some of his concerns about the cumbersome nature of the current definition. In terms of how to approach this moving forward, he suggests replacing the present definition of 'serious' to one that is in line with the New South Wales model. He believes that the current definition is complex and that a court could have a great deal of trouble interpreting and creating legal definitions for words when ruling on this particular definition.

For example, what does the word 'severe' add over and above the word 'serious'? In terms of 'protracted', what if an animal were subjected to intense torture for a period of minutes; would that be protracted enough? With the term 'abnormal', what is normal? Is 'physiological' a reference to anatomy, form or function, or both? In terms of 'behavioural', what if there is severe psychological harm that has minimal behavioural manifestation? In terms of 'reactions', the offence provision relates to harm and not reactions. How do these concepts fit and what useful addition do they make?

So, given the advice from experienced people who have quite a bit of expertise in these areas (he is the operations manager and he has raised some concerns about the current definition), that is why the government supports the proposed amendment.

The Hon. M. PARNELL: I have another very brief addition to the debate. It may help if I read a sentence or two from a note from the RSPCA, which, as the minister said, is focused on the practical application of these words in a court of law. The note the RSPCA has provided talks about the current definition being 'so complicated and compound in its nature. This type of muddled wording is the lifeblood of lawyers and promotes confusion, loopholes, frustration and wasted time and money.' Lawyers have not had a great rap today in this place as we have been debating the Legal Profession Bill, and I am sure that with earlier legislation in our minds we do not want to promote confusion, loopholes, frustration and wasted time or money.

The note goes on, 'Imagine having to explain and argue this before a jury should someone elect for a District Court trial.' The note goes on to state that it would be particularly hard for magistrates, who are dealing with a great many different areas of law. Basically, the definition I have proposed is one that, according to those who prosecute these cases in the courts, would be easier for them to explain to both a trial and a sentencing judge.

The Hon. C.V. SCHAEFER: In more legal jargon, the opposition will not oppose this amendment. However, I agree with Mr Hood that the original definition of 'serious harm' quite clearly pointed out what 'serious harm' was. In fact, this particular amendment, if we want to be pedantic, is probably less severe than the original definition, in that it describes 'serious harm' as treatment which is so cruel that not to destroy the animal would be cruel in itself, whereas the original definition of 'serious harm' was harm that endangers an animal's life. Conceivably, under the original definition, someone could be prosecuted for endangering an animal's life which may well have been able to be saved, whereas the definition we are now agreeing to means, in my layperson's understanding, that the animal would have to be destroyed before prosecution could be made. However, if that suits the government and the majority of the committee the opposition will not oppose it.

The Hon. D.G.E. HOOD: Likewise, Family First will not oppose it either. Similarly to the Hon. Caroline Shaffer, I do not necessarily see the need for the amendment but, equally, we do not oppose it.

The Hon. A. BRESSINGTON: I also rise to indicate my support for this amendment. I believe the current definition of 'serious harm' (the cornerstone of an aggrieved offence) does not adequately describe what constitutes serious harm, nor does it provide sufficient distinction between 'serious harm' and just 'harm'. I am also apprehensive about the current definitions including 'harm that endangers an animal's life', as a penalty for an aggravated offence should apply only where there is demonstrated neglect, severe injury or impairment of a physical or mental function, as the Hon. Mark Parnell's amendment seeks to establish.

The Hon. G.E. GAGO: Just in case the Hon. Caroline Schaefer is not aware, I draw to her attention that the provision '(a) harm that endangers an animal's life' has been retained.

The Hon. C.V. SCHAEFER: In that case, the amendment is even more pedantic and silly, but I will not oppose it.

Amendment carried; clause as amended passed.

Clause 7 passed.

Clause 8.

The Hon. M. PARNELL: I move:

Page 5, line 20—

Clause 8, inserted section 13(1), penalty provision—delete the penalty provision and substitute:

Maximum penalty:

(a) in the case of a body corporate—$250,000;

(b) in the case of a natural person—$50,000 or imprisonment for four years.

This amendment, as well as a number of other amendments that follow, seeks to put into this legislation a concept that exists in a great deal of criminal legislation in this state, that is, to provide for different levels of penalties for individual perpetrators and corporate perpetrators. We need only to think of examples such as our pollution laws under the Environment Protection Act to see where there are different levels of penalty for an individual and a company.

It is important in this legislation, because it covers the whole gamut of animal welfare. At one end of the spectrum, we may well have a single individual with a single domestic animal, such as a cat, a dog—a pet—and the act applies to that person. This act also applies to a multinational agribusiness with potentially hundreds of thousands of individual animals under its control.

I think that, where offences occur, most reasonable people would see that a difference in penalty is appropriate not just because of the different scale of the offences but also because of the means of the perpetrators. It is not a radical position to take to suggest that corporations be treated differently from individuals when it comes to criminal penalties.

Again, the ratio I have included in this amendment (and in other amendments elsewhere in the bill) is five to one. In other words, the maximum corporate penalty is five times the maximum individual penalty. Again, that is a very common ratio to use in legislative drafting when it comes to distinguishing the different penalties.

With those brief words, I will listen to the contributions made by other members to see whether this has the support of the committee. However, I again put on the record that this amendment and all the amendments that relate to corporate penalties are supported by the RSPCA.

The RSPCA, which I am very pleased to belong to, has been around for 100 or so years, and it will be at the coal face when it comes to enforcing this legislation. It will be the RSPCA that investigates offences, and it will be the one that will put together proof of evidence and prosecute these cases in the court. The RSPCA exists to defend those who cannot defend themselves (that is, our animals), and that organisation believes that this is a sensible amendment, and I urge all honourable members to support it.

The Hon. G.E. GAGO: The proposed amendments put forward by the Hon. Mark Parnell impose financial penalties that are five times greater for a corporate body than what would apply to a natural person. This amendment tends to assume that the average body corporate is a large company; however, it may be a very small business partnership between two or three people. Currently, section 38 of the act provides:

Where a body corporate is guilty of an offence against this act, every member of the governing body of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless it is proved that the member could not by the exercise of reasonable diligence have prevented the commission of that offence.

Hence, if a company breaches the provisions of the act, every member of the governing body corporate is liable to the same penalty as the body corporate. This could include criminal penalties and imprisonment. If these amendments are incorporated into section 38, each member of the governing body of a corporate body could be liable for the significantly higher corporate penalty proposed by my colleague. We believe that this is an unintended consequence but, nevertheless, a consequence which would result in a potentially huge financial impost that would be unreasonable. Therefore, the government does not support this amendment.

The Hon. M. PARNELL: I thank the minister for reminding me about section 38 and also for pointing out that corporations are not all multi-billion dollar multinationals: there are also mum and dad corporations. Yet I think the amendment is still sound and, as I say, it is reflected in a great deal of other legislation in this state which imposes different penalties for corporations and individuals.

The reality is that, if the perpetrator of a criminal offence is a mum or dad or a family company, the maximum penalty on the company will be at that higher rate, but our judicial officers—our magistrates and judges—in their sentencing always take into account the circumstances of the offence. They do not mechanically apply a formula to say, 'This type of offence is half the maximum regardless of other circumstances.' I would be in no doubt that a small company with a small number of individual office holders, while potentially liable for very big fines, in all likelihood would only get the fine they would have got had they been individuals or a farming partnership or, for example, a farming enterprise. I do not think the court would distinguish between a family farm held in the name of a company or partnership or held by a sole trader. I would think our judicial officers could be trusted to know where the penalty should lie in the scheme of things.

My interest in this amendment is not so much at the lower end where we can trust our judicial officers but, rather, at the upper end. If at the upper end we find a massive multinational company worth millions or billions of dollars, and our judiciary is constrained to only impose penalties on them as if they were an individual who had mistreated a domestic animal such as a dog or cat, we are not sending the right message to the community about the importance that we place on protecting animals. The punishment needs to fit the crime. I want to be able to keep the door open for our courts to deal seriously with large corporations with, perhaps, systemic cruelty problems. We need to send a message that their behaviour is not appropriate. That is what the judges will do but, if they are constrained to relatively small penalties (as exist under this bill), I do not think we are doing the best we can.

The Hon. A. BRESSINGTON: I was leaning towards supporting this amendment until I heard the points raised by the minister. I wish that I could share the Hon. Mark Parnell's confidence in the judiciary but, in my opinion, they hardly manage to interpret the law for humans; it seems a great difficulty for them sometimes. In relation to animals and corporate bodies, I do not have the confidence to leave it in their hands. Perhaps before we finish with this bill the Hon. Mark Parnell can come up with a clearer definition of 'body corporate'.

I still reflect on the case I raised in this place about a person who had a dog and who has been dragged through a terrible situation. She knew the dog had arthritis and was caring for it in her own way. The dog was in a loving environment, but the RSPCA inspectors had a different idea of what should happen to the dog and, as a result, this person has had a long time in litigation and suffered a great fine.

Rather than support the amendment, because I do believe it does make people involved in animal husbandry on a larger scale accountable, it makes me nervous that the smaller people can get caught up in this and get a double whammy. As I said, leaving this matter to an interpretation by the judiciary makes me very nervous. As a result of that, I will not be supporting the amendment for that very reason.

The Hon. SANDRA KANCK: I will be supporting the amendment. I think there is a difference between a body corporate and an individual. We have that status in quite a lot of our laws, and it seems strange that we do not in this instance. Bodies corporate have different laws applied to them in terms of taxes and profits, and so on, and the reality is that, when we are talking bodies corporate in this legislation, we are talking about entities that are making a profit out of using animals for entertainment. I know that for some in this chamber that is a sore point because of regulations relating to rodeos, but it could also—in fact would also—apply to circuses. I do not see that one can treat a group that is using animals for profit in this way in the same way as an ordinary person looking after a sick dog—or a well dog, for that matter.

The Hon. C.V. SCHAEFER: The Liberal Party will not be supporting this amendment, for the same reasons as the government is not doing so. I originally had some sympathy for this amendment but, again, when I was reminded of section 38 and the possibility that a board of a corporate body could incur penalties in the millions of dollars, I think the current bill as it stands is more practical.

Amendment negatived.

The Hon. M. PARNELL: I move:

Page 5, line 22—

Clause 8, inserted section 13(1), penalty provision—delete the penalty provision and substitute:

Maximum penalty:

(a) in the case of a body corporate—$250,000

(b) in the case of a natural person—$50,000 or imprisonment for four years.

Amendment negatived.

The Hon. C.V. SCHAEFER: I move:

Page 5, line 25—

Clause 8, inserted section 13(3)(a)—before 'causes' insert:

intentionally, unreasonably or recklessly

I have introduced this amendment at the request of the RSPCA. Again, it believes that this more accurately describes the ill-treatment of animals. New section 13(3) provides:

Without limiting the generality of subsection (1) or (2), a person ill-treats an animal if the person—

(a) causes the animal unnecessary harm; or

I seek to include the words 'intentionally, unreasonably or recklessly' (causes unnecessary harm). As I said, the amendment is as a result of lobbying that I received from the RSPCA.

The Hon. G.E. GAGO: This amends new section 13(3)(a) such that a person ill-treats an animal if the person intentionally, unreasonably or recklessly causes the animal unnecessary harm. The phrasing is not dissimilar to the phrasing in the current act, which is 'deliberately or unreasonably causes the animal unnecessary pain'. I believe that the amendment will clarify that the person must have harmed an animal intentionally, unreasonably or recklessly to have committed an offence, and the government's comments with respect to amendment No. 3 are also relevant to this discussion. If the word 'unreasonably' is re-inserted in new section 13(3)(a), it may allay some of my colleagues' concerns with respect to amendment No. 3 (which is the Hon. Caroline Schaefer's No. 4), and will also clarify this issue. An unreasonableness test would narrow down the mental element of the offence. Given these remarks, the government will be supporting this amendment.

The Hon. D.G.E. HOOD: Family First supports the amendment.

The Hon. A. BRESSINGTON: I support the amendment.

The Hon. M. PARNELL: I support the amendment.

Amendment carried.

The Hon. C.V. SCHAEFER: I move:

Page 6, after line 18—

Clause 8, inserted section 13—after subsection (4) insert:

(4a) It is a defence to a charge of an offence against subsection (2) if the defendant proves that the offence did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.

This amendment seeks to make accidental harm a defence under the new act. I am advised by parliamentary counsel that this does not apply to the aggravated offence section, so what we are talking about here is a lesser offence. I think I outlined in my second reading speech some of the occasions when accidental harm may occur and, as I said then, if someone has a dog caught in a fence or a mob of sheep run out of water or a horse goes through a fence and is unaware of any of those things happening, there is no doubt that that has caused harm and that the owner is, indeed, the responsible person for that animal but it is not in any way a deliberate act. If those things happen it is, in fact, quite traumatic for the owner of the animal or animals, and this simply again seeks to allay the concerns of many of my wider constituency that, should those tragic events occur, they have a defence if they are charged by an over-zealous inspector.

The Hon. G.E. GAGO: This amendment provides a defence to a charge of an offence of ill-treatment of an animal if the defendant proves that the offence did not result from any failure of the defendant to take reasonable care to avoid the offence. Basically the government believes that this amendment is superfluous considering that the previous amendment has been supported, and 'intentionally, unreasonably or recklessly' has now been inserted in section 13(3)(a). For example, if a person deliberately and intentionally caused a horse to be tangled in a fence and chose to leave it there for two or three days, that person should be charged with ill treatment. If a person did not know the horse was entangled, there is no expectation that the person should alleviate the suffering and thus there is no offence. So the term 'mens rea' applies, meaning the act does not make the person guilty unless the mind is also guilty.

The RSPCA has advised me that one of the key practical threshold tests it uses when evaluating any potential prosecution is: has the person acted reasonably in the care of the animal? This issue can be best left to the discretion of the inspectors, the police or any other prosecuting authority. The RSPCA does not have the resources or inclination to prosecute people frivolously and, if the person's conduct is reasonable, in almost all circumstances it will not constitute an offence. The government considers this amendment is superfluous as the offence would exist anyway, and it would confuse and undermine the longstanding offence provisions already in place. Consequently, the government does not support this amendment.

The Hon. M. PARNELL: I, too, do not support the amendment for the same reasons given by the minister. I point out that the offence under new section 13 is that a person needs to ill-treat an animal. There needs to be some active role, but that can also be through omission as well. The reasonable care defence is implicit in the offence itself. Certainly, a person who was charged and whose defence was that they did everything they possibly could would have that defence available. Setting it out in the way proposed by the honourable member would add to confusion. It would probably suggest to people that there is a level of defence greater than that which is inherent in the definition of the offence. I think that it is more likely that this amendment would cause harm rather than improvement to the legislation, so I will not be supporting it.

The Hon. D.G.E. HOOD: Family First will be supporting the amendment. We take the government's position and accept that, at some level, there may be an element of its being somewhat superfluous. However, we do feel that it seeks to clarify further someone's position when found in this situation. For that reason, we will be supporting this amendment.

The Hon. A. BRESSINGTON: I will also be supporting this amendment.

The committee divided on the amendment:

AYES (12)

Bressington, A. Darley, J.A. Dawkins, J.S.L.
Evans, A.L. Hood, D.G.E. Lawson, R.D.
Lensink, J.M.A. Lucas, R.I. Ridgway, D.W.
Schaefer, C.V. (teller) Stephens, T.J. Wade, S.G.

NOES (9)

Finnigan, B.V. Gago, G.E. (teller) Gazzola, J.M.
Holloway, P. Hunter, I.K. Kanck, S.M.
Parnell, M. Wortley, R.P. Zollo, C.


Majority of 3 for the ayes.

Amendment thus carried.

Progress reported; committee to sit again.

[Sitting suspended from 18:08 to 19:45]

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