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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

Committee Stage

In committee (resumed on motion).

(Continued from page 1901.)

Clause 11.

The Hon. G.E. GAGO: I table the MOU between the Department for Environment and Heritage, DWLBC, PIRSA and the RSPCA, as well as the current appendix.

The Hon. M. PARNELL: Mr Acting Chairman, I have a few more things to say, as well as a few remaining questions of the minister which relate to the memorandum of understanding. Before I do that, however, an honourable member at lunchtime queried my championing of the RSPCA in this matter. The honourable member said, 'I thought you didn't like the RSPCA.' I said, 'No, I am a proud member of that organisation; a critical friend.' I have raised in this place the appropriateness of having a private charity effectively doing police work. There is a role for that organisation, but I will continue to advocate for the best possible system that does recognise the important public role that our animal inspectors play.

The minister said before lunch that she is keen not to interfere with operational matters within the RSPCA. We have this memorandum of understanding. Will the minister explain how she relates to the RSPCA? How does that organisation report to her and, in particular, is her relationship with that private organisation through its staff, elected governing council or some other means?

The Hon. G.E. GAGO: The honourable member put some other questions on the record, so I will seek to provide a response to all those concerns. The RSPCA and the government have a contractual arrangement such that the RSPCA will be the primary enforcement agency of the act. It should be noted, however, that the rights and responsibilities are conferred upon inspectors, not the organisation as an entity. The inspectors are appointed by the minister and are subject to scrutiny by the Ombudsman; and they must abide by the Public Sector Management Act and the code of conduct.

The inspectorate is not involved in policy development such as the RSPCA's opposition to live exports, rodeos and caged hens. That is not the role of the inspectors. Their job—which, I might add, they do well—is to ensure that the standards enshrined in law are met. The funding deed and the MOU spell out those things the government requires of the inspectors and the RSPCA in its role as their employer. This arrangement has served us very well for many years. I have said previously in this council—and I say again—that the minister is not and should not be involved in the day-to-day operations and work programs of the inspectorate, whether those inspectors are employees of the RSPCA, DWLBC, DEH or PIRSA.

The funding deed requires that the investigations protocol developed by the RSPCA in consultation with the Crown Solicitor's office will be publicly available through the RSPCA's website. As ministerial appointments, inspectors are subject to the normal expectations and standards of public officers; and the Ombudsman has the authority to investigate allegations concerning the behaviour of any PCA act inspector. There is considerable public scrutiny—which is appropriate, considering the extent of the powers that this act confers on inspectors.

The internal politics of the RSPCA or any other non-government organisation are not the concern of the minister or this parliament. There is a contractual arrangement that the inspectors employed by the RSPCA will provide the government with a service, for which the government will pay a fee, as long as the terms of that agreement and the requirements of the Associations Incorporation Act are met. The government has no interest in the political structure of the society or the dynamics of its membership and the governing council, which at times—

An honourable member interjecting:

The Hon. G.E. GAGO: Very dynamic, indeed. The responsibility for the administration and maintenance of the legislation lies with the minister, as I have said, and the responsibility for enforcement lies with the inspectorate.

The RSPCA provides an annual report and monthly minutes of the council. We have a person who observes at the council meeting, and we also have frequent meetings between the minister's office and the RSPCA's officers. The funding deed sets out, as part of its reporting obligations under the deed, that the RSPCA must: maintain a record of all reports it receives alleging a breach of the act, all actions taken in response to those allegations and any complaints that the RSPCA receives regarding its actions or inaction and its response to those complaints; provide monthly reports to the minister which enable the minister to make an informed assessment of the ongoing financial position of the RSPCA and monitor the RSPCA's compliance with the terms of that deed; and invite the manager of the department's Animal Welfare Unit to attend RSPCA meetings as an observer.

The Hon. M. PARNELL: I thank the minister for those answers, and I also thank her for providing us with the correct copy of the memorandum of understanding and the correct appendix to that memorandum, which is entitled 'Routine inspection of commercial livestock'. This appendix is certainly different from the one that we saw before. However, it still gives rise to a couple of questions that relate to the inspection of large intensive industries. I will read a couple of sentences from the appendix. In point 7, under the heading 'Desktop audits where quality assurance programs are in use', it states:

It is recognised that large intensive industries' operators are audited as part of their quality assurance programs. In most cases, an on-site inspection would be an unnecessary expenditure of resources. However, there is a public expectation that such inspections will be undertaken. To this end, desktop audits of those establishments which operate under quality assurance programs will be the norm, with on-site inspections undertaken occasionally.

That is certainly different from the previous words that we saw. The question that arises is: how many of these intensive animal industries are, in fact, audited as part of their quality assurance programs? We have been told that there are roughly 500 intensive animal facilities, of which 130 could be regarded as large. First, how many of them have quality assurance programs and, secondly, how many are audited under those programs?

The Hon. G.E. GAGO: The MOU is not between the minister and the RSPCA: it is an agreement between bodies that employ inspectors on the way in which those inspections will take place. The minister is not a signatory and does not represent a requirement by the minister or government. The QA process is a separate process to the inspectorate process; however, once routine inspections are in place, the inspectorate system will be able to actually link in with the QA system.

The Hon. M. PARNELL: I thank the minister for the answer. I take it that she does not have available to her now precisely the number of intensive animal facilities that have quality assurance programs?

The Hon. G.E. GAGO: Yes; those figures are not available to me at present.

The Hon. M. PARNELL: If it is possible to give those figures before we conclude the debate that would be appreciated. Given the clear connection between inspectorate functions and quality assurance programs, I would be interested to know whether the piggery to which I referred earlier, the Ludvigsen piggery, was in fact such a facility that had a quality assurance program, because it has been described to me as 'award winning'. Is that the type of facility that the memorandum of understanding envisages might need to be inspected only occasionally?

The Hon. G.E. Gago interjecting:

The Hon. M. PARNELL: That is all right; I understand. If the minister is able to come up with some statistics while we are debating about how many of these intensive animal facilities do have formal quality assurance programs, that would answer the first question. The second question was whether she could ascertain whether the Ludvigsen piggery, to which I referred earlier, is an example of a piggery that has a quality assurance program, given that it has been described to me as 'award winning'.

The Hon. G.E. GAGO: As I have said, the QA system is separate to that of the inspectorate, so I do not have that information available to me. I can try to ascertain those figures, but it is a separate part of the inspectorate, so that sort of information is not readily available. In the spirit of cooperation, if we are able to get that information I am more than happy to make it available.

The Hon. SANDRA KANCK: This memorandum of understanding is important, because it refers specifically to the inspectorial role that the RSPCA has to play, and as part of that it states:

The RSPCA will undertake routine inspections of intensive animal industries only in accordance with the appendix to this MOU.

The question that arises for me is: how does one get to know when the appendix has changed? Clearly, there was an appendix at the time of the signing of this memorandum in October 2007. It has changed. When did it change? That is the question that I would really like answered. Who gets to know when it is changed, and who is consulted about those changes?

The Hon. G.E. GAGO: The appendix was not changed per se. The advice I have is that the appendix that the Hon. Mark Parnell had was incorrectly provided to him (a mistake that was rectified straightaway) and it was, in fact, a copy of a draft of the appendix that had been out for consultation. It was part of the consultative process and, as part of that process, it was amended accordingly. The advice I have is that the appendix was not changed; it is the original part of that particular MOU dated October 2007.

The Hon. SANDRA KANCK: By the way, I should point out that, prior to lunch, the minister said that this was a public document. One of my staff spent 20 minutes on the DEH website trying to find it, so I can assure her that it is not very public.

The Hon. G.E. Gago: It is on the website, though.

The Hon. SANDRA KANCK: I would be very interested to find out where, if the minister—

The Hon. G.E. GAGO: I beg your pardon; it is not on the website. I need to ensure that the record is straight on that. It is not on the website; it is a document which is publicly available. I beg your pardon.

The Hon. SANDRA KANCK: Looking at this appendix, at the present time it has the wording of clause 31 of this bill in it. It assumes, therefore, that clause 31 will be passed intact. If this chamber amends clause 31 and the bill then becomes an act, this appendix will need to be altered. I would like some indication from the minister as to what process is used to alter the appendix and who is consulted, or is it simply something that the minister puts together and then advises the signatories representing the four bodies?

The Hon. G.E. GAGO: The MOU is an agreement between inspectors. The relevant inspectors are consulted in respect of that. If, and when, the appendix is amended, those appropriate bodies, who are signatories to the MOU, will be consulted before it is then amended.

The Hon. SANDRA KANCK: When the appendix does change, will there have to be any initialling of this? Will there be a new MOU? As it says here on page 4 of the MOU, those inspections will be undertaken only in accordance with the appendix to this MOU. So, would it be a different MOU?

The Hon. G.E. GAGO: The advice I have been given is that the MOU will need to be revised accordingly and a new MOU re-signed.

The Hon. SANDRA KANCK: I make a request to the minister: when this occurs, could the appendix be dated and initialled so that people who obtain copies know that they have the correct one?

The Hon. G.E. GAGO: Yes.

The Hon. C.V. SCHAEFER: Without wishing to be critical, since question time we have been discussing almost every line of what appears to me to be an internal procedural document that would not normally be put on the website or anywhere else, and I must say that unlike my colleagues, having seen it, I am somewhat relieved because there appear to be some common sense procedures in place. With due respect to everyone, we have a whole series of quite involved amendments to wade our way through and I would not mind returning to the debate on them.

The CHAIRMAN: The Hon. Mrs Schaefer has a very good point. This internal document has been discussed and it is not that closely related to the bill in that sense. We have a number of amendments and we have had a fairly good discussion on them.

The Hon. M. PARNELL: It is a wonderful coincidence that the patience of the Hon. Caroline Schaefer has worn out at the same time that I have finished my questions on that document. However, I maintain that we are talking about a subsidiary document that would inform the inspectorate function. It is vital for us to understand how inspections will occur. We have been invited to proceed, and far be it for me to hold up the council in its important work, but I was invited to address my amendment briefly. I will be quite brief because most of the things that I want to say about why I believe we should have unannounced random inspections I have said already.

My amendment proposes to remove paragraph (a) of the proposed new section 31. That paragraph provides that the inspector must give the occupier of the premises or the owner of the vehicle reasonable notice of the proposed inspection. I say that removing those words leaves the discretion in the hands of the inspector as to the appropriate amount of notice to give and, in support of that claim, I refer very briefly to something I touched on in my second reading speech, which is the role of inspectors and the role of notice as commented upon by the Coroner of South Australia in the inquiry into the death of Nikki Robinson, the little girl who died in the Garibaldi meat poisoning. To read one sentence from that finding, the Coroner said:

Mr S—

as I will call him—

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.

We are talking in that case about a factory making food for human consumption, but the principle is exactly the same. If you give notice, you cannot be surprised that action will be taken to make the facility come up to the standard the inspector will want to see. The best course of action is for us to remove those words. I foreshadowed earlier, having discussed the issue with colleagues over the past days, weeks and months as to the possibility that I might not have the support of the council for that position, that in the hierarchy of amendments facing us I see as a preferable outcome going back to the original words of giving 'reasonable notice'. I see that as a preferable outcome to other amendments, such as the requirement for 24 hours, which may be the reasonable notice given in some cases, but I would not like to constrain our inspectors by prescribing that in law.

This is a matter on which I distinguish between the principle and the pragmatics in politics. The principle is that this paragraph should be removed. I say this as a member of the RSPCA, having attended its last annual general meeting and having participated in the democratic vote on the floor of the AGM, where the membership said that it wanted the RSPCA to support unannounced random inspections. I am giving faith to that democratic call and will be pursuing my amendment and urge members to consider it.

The Hon. G.E. GAGO: This amendment removes the requirement for an inspector to give reasonable notice of a routine inspection. I am aware that some animal welfare and rights groups, including the RSPCA, seek inspection with no notice. The animal industries consider this to be unfair and potentially dangerous, due to safety and biosecurity concerns. The provision as it stands is a compromise between these two perspectives. The government supports no absolute definition of what constitutes a reasonable time period. The definition of reasonable notice will vary with the circumstances of each individual inspection, and the government would prefer not to legislate more precisely. There do not seem to be problems interpreting grounds for 'unreasonable' as it is in lots of other legislation and is administered and enforced well through our legislation.

It was determined that anything specified in the act would be inappropriate. Depending on the specific circumstances, and in general, 'reasonable' would mean a time that is mutually convenient to the inspector and the owner or manager of the animals and when the necessary personnel are available, and that would need to be reasonable, as opposed to stalling. It is important to note that if there is any suspicion of an offence or in urgent situations an inspector can enter without a warrant and without notice. These situations are not the purpose of routine inspections, so consequently the government does not support this amendment.

The Hon. SANDRA KANCK: Like the Hon. Mark Parnell, I too am a member of the RSPCA and I will support his amendment as it upholds the view of the members who attended the AGM of the RSPCA.

I should mention also that the Hon. Dennis Hood's amendment is not acceptable, because it is effectively providing 24 hours or more notice, and that is way too much.

The CHAIRMAN: The question is: that all words in subclause (1) down to but excluding paragraph (a), stand as printed. Therefore, if you support the Hon. Sandra Kanck's amendment, you will vote no.

The committee divided on the question:

AYES (16)

Darley, J.A. Dawkins, J.S.L. Evans, A.L.
Finnigan, B.V. Gago, G.E. (teller) Gazzola, J.M.
Holloway, P. Hood, D.G.E. Hunter, I.K.
Lawson, R.D. Lensink, J.M.A. Ridgway, D.W.
Schaefer, C.V. Stephens, T.J. Wade, S.G.
Wortley, R.P.

NOES (3)

Bressington, A. Kanck, S.M. (teller) Parnell, M.


Majority of 13 for the ayes.

Question thus carried.

The CHAIRMAN: The next amendment is in the name of the Hon. Mr Parnell. The question is: that the words in paragraph (a) down to but excluding the word 'reasonable' in line 7 stand as printed.

The committee divided on the question:

AYES (16)

Darley, J.A. Dawkins, J.S.L. Evans, A.L.
Finnigan, B.V. Gago, G.E. (teller) Gazzola, J.M.
Holloway, P. Hood, D.G.E. Hunter, I.K.
Lawson, R.D. Lensink, J.M.A. Ridgway, D.W.
Schaefer, C.V. Stephens, T.J. Wade, S.G.
Wortley, R.P.

NOES (3)

Bressington, A. Kanck, S.M. Parnell, M. (teller)


Majority of 13 for the ayes.

Question thus carried.

The committee divided on the Hon. D. Hood's amendment:

AYES (9)

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

NOES (10)

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

PAIRS (2)

Lucas, R.I. Zollo, C.



Majority of 1 for the noes.

Amendment thus negatived.

The Hon. C.V. SCHAEFER: I have moved my amendment. It deals with my concern that we do not have a definition of 'reasonable'. I am proposing that 'reasonable steps' be substituted with 'such steps as are necessary in the circumstances'. Clearly, with various species of animals the necessary steps will alter from species to species.

The Hon. G.E. GAGO: The government believes this is a reasonable amendment and we will be supporting it.

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

The Hon. D.G.E. HOOD: That is unanimous.

The Hon. C.V. Schaefer's amendment carried.

The Hon. G.E. GAGO: I move:

Page 11, after line 20—Insert:

(1a) No notice is required to be given of a routine inspection of premises or a vehicle in or on which an inspector reasonably suspects there is an animal in respect of which an animal welfare notice or animal welfare order is in force.

This amendment removes the requirement for an inspector to give reasonable notice if intending to check on compliance with an animal welfare notice or animal welfare order. The no notice requirement for monitoring animal welfare notices was considered necessary in most cases. Notifying the person would invalidate the reason for visiting that person and hinder the inspector in determining whether or not the requirements of the notice are being met.

The Hon. C.V. SCHAEFER: The opposition supports the amendment.

Amendment carried.

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

Page 11, after line 22—

After subsection (2) insert:

(3) This section does not entitle inspectors to conduct a routine inspection of premises or a vehicle that is being used for or in connection with intensive animal husbandry if the minister is satisfied that the occupier of the premises or the owner of the vehicle complies with a prescribed code of practice in respect of the particular intensive animal husbandry carried on by the occupier or owner.

This amendment is worded in such a way that I feel there is a need to explain what I aim to do. I must say, having now seen the MOU and the attachment to it, that it is fairly well covered within that. This amendment seeks to give an exemption from regular routine inspections to those animal precincts that are already covered by a nationally registered QA system. The reason for this is that those (and they are relatively few in number) that have gone to the time and expense to be registered on a national scheme, which applies a code of practice and mandatory veterinary inspections, should not be required to have other inspections.

The attachment that we have allows for them, in most cases, to have desktop audits, which would alleviate much of the doubling up and additional expense about which I was concerned. There are not very many piggeries or poultry sheds, as I understand it, which go to the trouble of registering—my guess is that it would be less than 10 per cent, and possibly about 5 per cent. They tend to be, if you like, the big end of town, very professional operations. If they register, they are required to be annually inspected and subject to veterinary inspection, which I believe (I am not sure) is relatively random.

These QA systems came about for people who, I suppose, wanted to lock into contracts that would pay them premiums. They are, for instance, the few big piggeries that are contracted to Woolworths, for example, and they are expected to turn out pigs to a certain size and a certain fat level, under extremely clean and hygienic conditions. This amendment attempts to stop an unnecessary doubling up, because they are already inspected quite rigorously. As I have said, I have fewer concerns, having seen that there is some acknowledgment of the time and expense to which these people go to get QA within that attachment to the MOU.

The Hon. G.E. GAGO: This amendment means that premises or vehicles that are being used for or in connection with intensive animal husbandry would not be subject to routine inspections if the minister is satisfied that the occupier of the premises or owner of the vehicle is complying with the prescribed code of practice.

It is highly inappropriate for a minister to be given such power to exempt a private facility from routine inspection. The minister could not be satisfied that the owner is complying or continues to comply with a code of practice or a QA system, or whatever, unless the minister has access to third party audit documentation and an inspector has visited the premises to determine whether or not practices were, in fact, compliant. So, the minister would not know whether or not this prescribed code was being complied with. Even on one occasion, they would not know whether it continued to do so, without further evidence.

For the minister to be satisfied, an inspection would be required, in any case. Even if there is a quality assurance program in place, a business could still be subject to routine inspection, although (and I generalise here) businesses that participate in quality assurance programs tend to be better managed and more compliant with legislative requirements than those that do not. We recognise that there are some people who, in fact, manage their businesses to very high standards, indeed.

However, the government considers that it is important that the inspectorate is unfettered and makes its own decisions about priorities for routine inspections, and it is not the minister's role to second-guess that. Consequently, the government very strongly opposes this amendment, and we would have significant concerns about the overall integrity of this bill if this amendment was to be endorsed.

The Hon. C.V. SCHAEFER: I think I should probably explain that what I would envisage is that those who believe they have suitable QA registration would apply for the exemption, and a decision would be made under the minister's name (but I do not imagine by the minister) as to whether the specific quality assurance under which that firm is registered would qualify for an exemption. I do not imagine that the minister or her department would have to make that assessment. It would be for the business to prove whether or not they were suitably registered to not be subject to another inspection. That is how I envisage it would work.

The Hon. G.E. GAGO: I do sympathise with the principles that the Hon. Caroline Schaefer is trying to—'enshrine' is not quite the right word—integrate into this process. However, it is fundamentally flawed in its application because, even if they were to register a particular QA system—and the codes and agreements about those systems and standards are still all over the shop—and even if that could be agreed to, which is a problem in itself, applying for an exemption at a given point in time, how would one know whether those quality assurance practices were in fact in place and not just written on a piece of paper?

How would you know, in an ongoing way, that an owner or operator continued to apply those QA standards if there was no ability to have an inspection? No doubt that is not intended by the Hon. Caroline Schaefer, but it is open to possible future abuse by giving the minister what would, in effect, result in an unfettered discretion. I certainly do not believe that is an appropriate responsibility for myself as minister, and I certainly would not like that to be in place for future ministers either.

The Hon. M. PARNELL: I will not be supporting the amendment for the same reasons that the minister has given, yet I am glad that the honourable mover has explained what it is she intended to achieve because, at first blush when reading this amendment, it looks to be a recipe for corruption. It looks to be a recipe for someone within the inspectorate to be able to say, 'Don't go to property X; that's the minister's friend. The minister is satisfied that they are complying with the pig or chicken code of conduct; therefore, they are exempt from inspection.' I would not suggest that that is likely to happen, but it would be open in a regime such as this.

What the Hon. Caroline Schaefer had in mind, I think, was more like the private certification scheme that applies with, say, building inspections, where rather than the council inspector checking the depth of the footings there is a private person who does it. I do not like that model in animal welfare, but I also think the honourable member's amendment does not actually achieve that, because it does refer to prescribed codes of practice, which are different creatures—if I can use that analogy—to quality assurance programs.

The prescribed codes of practice are things like the code agreed by all of the agriculture ministers in relation to things like pigs and chickens, and I think that is a very different creature. Under the codes of practice there are no other inspection regimes attached to that. That is different from a quality assurance program. So, I am pleased that the honourable member has explained what it is she had in mind but, for the reasons that I have just given and for the reasons the minister gave, I cannot support the amendment.

The Hon. A. BRESSINGTON: I also will not be supporting this amendment. As the minister said, it is way too much responsibility for a minister to carry to make sure that people have gone through quality assurance and are still complying with those requirements and those codes of practice. If we look back over history in other areas where quality assurance has been achieved, nursing homes for the elderly, for example, they have been quality assured and all the stuff is on paper, but in some cases it is not being carried out. So, the same thing could apply here, and I think it would undermine the whole bill if this amendment were to go through.

The Hon. D.G.E. HOOD: Whilst Family First are supporting a number of the opposition amendments we will not be supporting this one on this occasion. I think the reasons have been well outlined. The concern is really the system that would have to be in place in order to satisfy this amendment and also in order to satisfy me, I guess, that there was no potential for corruption, as mentioned by the Hon. Mark Parnell. So, for that reason we oppose the amendment.

Amendment negatived.

The Hon. G.E. GAGO: I move:

Page 11, line 26—Delete 'will' and substitute: may.

This is a minor amendment to section 31A, Special Powers Relating to Animals, which reduce the level of certainty an inspector must have in order to take action under this section. Instead of suspecting on reasonable grounds that an animal will, if urgent action is not taken, suffer unnecessary harm, the inspector now only has to suspect on reasonable grounds that the animal may suffer unnecessary harm before he can take specified actions under this section.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 11, after line 30—Insert:

(1a) For the purposes of subsection (1), an inspector has all of the powers conferred on an inspector by section 30.

Again, it is a minor amendment which clarifies the fact that an inspector has the powers conferred on him or her under section 30, General Powers, including the power to enter premises for the purposes of section 31A, Special Powers Relating to Animals.

The Hon. C.V. SCHAEFER: I have a question for the minister: does this then give an inspector the powers to enter a premises—someone's home—to search for records, and so on? If that is the case, it is not consistent with many other laws within this state, where we do still give people some rights. Certainly, they are being eroded, but in most cases people may not enter a home without a warrant.

The Hon. G.E. GAGO: The short answer is no.

The Hon. C.V. SCHAEFER: Then I would like the long answer please; I would like an explanation.

The Hon. G.E. GAGO: The answer is no, because they can only enter and search and use force if they have a warrant—which is in section 30(2)(b).

The Hon. C.V. SCHAEFER: I do not want to prolong this, but it seems very strange to me that this has been put in as an amendment when, to all intents and purposes, it would be a par-for-the-course piece of writing. I came into this thinking that it was a minor amendment but, if I go back to section 30, the first thing it says is:

An inspector may enter and search and, if necessary, use reasonable force to break into or open premises or a vehicle...part of, or anything in or on premises or a vehicle...give directions with respect to stopping or movement of a vehicle...require a person to produce a document...examine, copy or take extracts...take photographs, films or audio...seize and retain any animal...identify—

And so it goes on. We have a number of laws in this state to which Mr Graham Gunn, in another place, always moves an amendment. He is always, as far as I know, successful in preventing that type of authority to enter people's premises and use all these things—reasonable force, break into, open. You are telling me that is not what it means, but my reading of it is that that is exactly what it means, because you are now conferring those powers on an inspector who is there on a routine inspection. It might be different if there is a reasonable suspicion of a particularly cruel act but, to have all of these powers when you are there on a routine inspection, seems to me to be overkill in the extreme.

The Hon. D.G.E. HOOD: I rise to indicate that I can certainly see the point the Hon. Mrs Schaefer is making. On a simple reading of what is proposed it does appear to say that. In fact, it says nothing else other than that. I express Family First's concern about it, as well, and indicate that we will need to be satisfied that it is not saying that in order to support the amendment.

The Hon. C.V. SCHAEFER: I have had explained to me—and I have misread it—that this amendment applies to new section 31A, which refers not to routine inspections but to special powers relating to animals; so, in fact, this gives an inspector powers under reasonable grounds that an animal is suffering. The example that has just been given to me is that of a dog locked in a car. We can argue whether or not that is deliberate, but no-one would want the inspector not to be able to release that dog legally. So, in good faith, I will support the amendment but I hope that I am not inundated with complaints from people where overzealous inspectors have invaded their homes, properties and their privacy.

The Hon. D.G.E. HOOD: I am glad that is cleared up because it settles things from our point of view. We support the amendment.

Amendment carried.

The Hon. M. PARNELL: One of the difficulties is that my amendments were to the bill as published. In other words, my amendments were to the new section 31B, but we now have the minister's brand new section 31B, which does some of the things that my amendments proposed. With the leave of the council, could the minister explain to us the purport of the new section 31B and I will see whether any of my amendments still have life in them.

The Hon. G.E. GAGO: I move:

Clause 11 (new section 31B), page 12, lines 11 to 24 (inclusive)—

Delete these lines and substitute:

(1) If an inspector believes on reasonable grounds that the exercise of powers under this section is warranted because the welfare of an animal is being adversely affected, the inspector may, by written notice (an animal welfare notice) given to the owner of the animal—

(a) direct the owner to provide the animal with such food, water, shelter, rest or treatment as the inspector thinks necessary;

(b) require the owner to ensure the animal is not worked or used for any purpose specified in the notice for such period as is specified in the notice;

(c) require the owner to ensure the animal is exercised in accordance with the stipulations of the notice;

(d) direct or require the owner to take any other action specified in the notice, within the time specified in the notice, that the inspector considers necessary for the improvement of the animal's welfare.

(2) A person to whom an animal welfare notice has been given must not refuse or fail to comply with the direction or requirement set out in the notice.

Maximum penalty: $2,500.

Expiation fee: $210.

This amendment rewrites section 31B regarding animal welfare notices. It has been requested by the RSPCA on the ground that notices are an important proactive tool to ameliorate the conditions in which an animal is kept or its treatment without resorting to impounding the animal and initiating a prosecution. This amendment has removed the need for an inspector to be satisfied on reasonable grounds that a person is contravening this act in a manner that adversely affects the welfare of an animal—that is, that an offence has occurred.

The inspector now has to believe on reasonable grounds that the exercise of powers under this section is warranted because the welfare of the animal is being adversely affected. It brings the application of notices closer to what is in the act currently. The amendment also provides more guidance on directions an inspector can make in the animal welfare notice and the inspector considers necessary for the improvement of the animal's welfare. This includes a broad ability to direct or require the owner to take any other action specified in the notice within the time specified in the notice.

The creation of an expiation fee is a new policy which has not previously existed. It is not allowed elsewhere in the current act, although it appears in one regulation. It will allow enforcement of the notices without the need to take people to court and mount prosecution. Therefore, it is likely to increase compliance and reduce enforcement costs. The amendment also incorporates amendments made by my colleague the Hon. Mark Parnell (his amendments Nos 14 and 15) to introduce specific wording requiring compliance within a time period as specified in the notice.

The Hon. M. PARNELL: I thank the minister for her explanation. My amendments Nos 14 and 15 have been incorporated in the government's amendment, so I do not need to move those. I tabled the amendment because I felt that the standard of proof or satisfaction that the inspector had to have was too high and they had to be satisfied on reasonable grounds that a person was contravening the act. Under the new amendment, if the inspector believes on reasonable grounds that the exercise of powers under the act is warranted and is now the standard, that is, a lower standard, basically it goes to the inspector forming the view that an animal needs some help. Therefore, my amendment No.13 is pretty well redundant. The only other difference was that I was calling for the words 'reasonably suspects' (the word 'suspect' I felt was a better standard, but it relates to a criminal offence and there is no need to suspect that the animal needs help—you form the view that it needs help). On that basis I will not move any of those three amendments.

The Hon. C.V. SCHAEFER: The opposition supports this amendment.

Amendment carried; clause as amended passed.

Clause 12.

The Hon. M. PARNELL: I move:

Page 15, after line 8—Clause 12(1)—After the penalty provision insert: Expiation fee: $315.

This amendment is to include the expiation fee. The particular offence, which ought to be able to be expiated, is the offence under section 33, which relates to the duty of a person in charge of a vehicle in the case of an accident involving animals. The bill proposes to provide for a maximum criminal penalty. My amendment proposes that in appropriate cases—cases of less severity—an expiation would be appropriate.

The Hon. G.E. GAGO: The government supports the amendment.

The Hon. C.V. SCHAEFER: The opposition supports the amendment.

Amendment carried; clause as amended passed.

Clause 13 passed.

Clause 14.

The Hon. M. PARNELL: This is another example of differential penalties between corporations and individuals; we have already tested that, so I will not pursue my amendment.

Clause passed.

Clause 15 passed.

Clause 16.

The Hon. G.E. GAGO: I move:

Page 16—

Lines 19 and 20—Delete 'an animal that is owned by the person and is the subject of the offence' and substitute: any animal owned by the person (whether or not the subject of the offence)

Line 22—Delete 'the animal' and substitute: any such animal

This amendment allows that, where the owner of an animal is convicted of an offence against this act in respect of an animal, the court may make an order requiring the person to care for an animal owned by the person in accordance with the conditions of the order, that is, the offence may have been against one of a number of animals living with the owner and this amendment allows for all to be subject to the order. For example, in the case of an animal hoarder, some of that person's animals may be in very bad condition and seizure may be required and it would be the subject of a court order. Other animals owned by that person may not be in quite as poor condition and might not be able to be removed. This allows for the court to make an order addressing all of the animals owned by that person rather than simply those animals that are worst affected.

The Hon. C.V. SCHAEFER: I am reluctant to ask this question because I know the minister will have to go and ask, but I would like an example. I think what we have envisaged is, we will say, three horses in a paddock. One is badly enough affected to be subject to an order and the other two are not. The assumption, therefore, is that all three horses should be seized. I am not sure that that is necessarily the case.

The Hon. G.E. GAGO: Using the example the Hon. Mrs Schaefer gave of the three horses, one might be emaciated and the other two thin. The emaciated horse would be able to be seized because certain conditions have been breached but the other two might not be in a condition so bad as to allow seizure. This provision does not extend the ability of seizure: rather, it enables an order to be placed on the owner to require the owner, for instance, to feed the other two horses.

The Hon. C.V. SCHAEFER: I thought we had just provided for that in the minister's previous amendment No. 6—new section 31B. I thought that was what we had just finished doing.

The Hon. G.E. GAGO: This provision relates only to court orders, where someone has actually been prosecuted, whereas the previous amendment applied to animal welfare notices, where prosecutions had not occurred.

Amendments carried; clause as amended passed.

Clause 17.

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

Page 17, after line 8—After inserted section 40 insert:

41—Prosecutions

(1) A prosecution for a summary offence against this act cannot be commenced except by a person who has the consent of the minister to commence the prosecution.

(2) In any proceedings, an apparently genuine document purporting to be a certificate of the minister certifying consent to a prosecution for a summary offence against this act will be accepted, in the absence of proof to the contrary, as proof of the consent.

This amendment attempts to prevent third party prosecutions. The opposition is of the view that third party prosecutions open the door to extremist animal liberation groups or, indeed, malicious neighbours to proceed against their neighbours. This may be purely vexatious.

We believe that there is sufficient authority now for someone to report to the inspectorate and for prosecutions to take place thereon. I add that my amendment is in line with the law as it stands in Victoria. I have not checked with respect to other states, but third party prosecutions are not allowed in Victoria.

The Hon. G.E. GAGO: The amendment proposed by the Hon. Caroline Schaefer means that a prosecution for a summary offence against this act cannot be commenced by a person without the consent of the minister. It means that any person, including an inspector or a police officer, would have to seek ministerial approval in writing before commencing a prosecution if someone has been found to be or is believed to be in breach of the act.

It is completely inappropriate to put a minister in the position of approving the commencement of prosecutions for allegedly breaking the law. The government acknowledges the concern of animal industries regarding third party prosecutions, and we are sympathetic to some of those cases. However, there is no history of an abuse of this provision and no demonstrable problem needing to be addressed through the removal of third party prosecution rights. There is no evidence of history that this current provision has been abused.

There is a public expectation that any person can lay charges. It is a democratic right, if you like. This ability is generally unfettered in South Australian legislation, and it is generally something that South Australians are very proud of. The government considers this to be a very important fundamental democratic principle.

The government also considers it important that the Crown is bound by this legislation to ensure that persons, other than those who serve the Crown, can lay charges. Third party prosecutions have been retained.

The requirement that the consent of the minister is required would be perceived to allow for unwarranted political interference of the minister in a decision on prosecution. The government does not support this amendment, and if it was to be supported, we believe that it would provide a serious problem and fundamentally breach the integrity of this legislation.

The Hon. C.V. SCHAEFER: If that is what this amendment means, I can only say that I am very disappointed in its drafting because my intention is to prevent third party prosecutions. However, the minister knows (and even I know) that she is telling a bit of a porky because it says 'a person who has the consent of the minister'. We all know that an authorised officer under the law in this state has the consent of the minister—and since when has the minister not authorised people to do their work within the parameters of any act, not just this act? What I am attempting to do is—and I have faith that the amendments were correctly drafted—as I have said, prevent malicious prosecution and prosecution by third parties who have probably no business even being on a property.

The Hon. M. PARNELL: I strongly oppose this amendment for the reasons given by the minister. Notwithstanding what the Hon. Caroline Schaefer says was her intention, it is a similar argument to political interference in conducting random inspections about which we talked earlier. This is even worse. This is saying—and I accept that this was not the honourable member's intention—that the minister has the ability to say to inspectors and to prosecutors, 'Leave my mate alone. Don't you prosecute my mate.' It is called corruption in other countries. I am not saying that was the intention of the honourable member. Clearly, it was not. She has explained what she had in mind, but that is the effect.

In other pieces of legislation, we deal with this type of issue by providing that the enforcement function is at arm's length from the minister. For example, when it comes to prosecuting for pollution offences under the Environment Protection Act, it is written into the legislation that the EPA (in that case) is not bound by any ministerial direction. They are their own people; they are at arm's length. There are other areas where ministers can tell departments what to do. However, when it comes to prosecution, we need to ensure that we do not have political interference.

On the question of the honourable member's real intention, which was to avoid these third parties bringing prosecutions, I endorse what the minister said; that is, it is an important right to retain in our legislation and there is no evidence in South Australia of its being abused. There are many acts but only a small number of examples of which I can think where it has been used. One was a native vegetation clearance dispute on Kangaroo Island. A local group successfully prosecuted their council for breaking the law. I think under the animal welfare laws, a private prosecution was commenced in the Magistrates Court in relation to a chicken shed. It is the only one I can remember. We can count these by the decades without taking our gloves or socks off, they are so rare. However, it is an important principle to retain in legislation.

There are two reasons why this amendment should not be supported, but the most important one for me is the unintended consequence of the honourable member that it would lead to corruption if we were to allow this to go through.

The Hon. C.V. SCHAEFER: I can count and it appears that I will not have any success here. If I thought there was any indication that the committee was not in favour of a third party prosecution, I would suggest that we have a go at redrafting and I would recommit after we have finished this debate. My sense is that there is no support for my intended amendment. I seek the point of view of others. The Hon. Mr Parnell has spoken of unintended consequences and the unintended consequence of my not allowing anyone to be prosecuted other than by the direct permission of the minister. In fact, may I say that I think that an unintended consequence of what is here now is to encourage third party and malicious prosecution.

The Hon. D.G.E. HOOD: Family First is somewhat sympathetic to the intention of the amendment, because we also have concerns about unnecessary litigation in an increasingly litigious society. However, as has been well pointed out, we cannot support the amendment as it stands because there is the potential—as I read it, anyway—for corruption. I think it is highly unlikely but there is that theoretical possibility. The Hon. Mrs Schaefer mentioned the possibility of redrafting; and, certainly, we would not be closed to that possibility.

Amendment negatived; clause passed.

Clause 18 passed.

New clause 18A.

The Hon. M. PARNELL: I move:

Page 17, after line 25—After clause 18 insert:

18A—Insertion of sections 43A and 43B

After section 43 insert:

43A—Reports in respect of alleged contraventions

If a person reports to an inspector an alleged contravention of this act, the inspector must, at the request of the person, inform the person as soon as practicable of the action (if any) taken or proposed to be taken under the act in respect of the allegation.

43B—Victimisation

(1) A person who causes detriment to another on the ground, or substantially on the ground, that the other person or a third person has made or intends to make an appropriate complaint of an alleged contravention of this act commits an act of victimisation.

(2) An act of victimisation may be dealt with—

(a) as a tort; or

(b) as if it were an act of discrimination under the Equal Opportunity Act 1984,

but, if the victim commences proceedings in a court seeking a remedy in tort, he or she cannot subsequently lodge a complaint under the Equal Opportunity Act 1984 and, conversely, if the victim lodges a complaint under that act, he or she cannot subsequently commence proceedings in a court seeking a remedy in tort.

(3) If a complaint alleging an act of discrimination has been lodged with the Commissioner for Equal Opportunity under subsection (2)(b) and the Commissioner is of the opinion that the subject matter of the complaint has already been adequately dealt with by a competent authority, the Commissioner may decline to act on the complaint or to proceed further with action on the complaint.

(4) In this section—

detriment includes—

(a) injury, damage or loss; or

(b) intimidation or harassment; or

(c) discrimination, disadvantage or adverse treatment in relation to a person's employment; or

(d) threats of reprisal.

Again, this is where we have overlapping amendments. There are two parts to my amendment. One might be most simply described as creating a requirement for inspectors to tell informants what it is they are doing. That is my proposed new section 43A. My proposed new section 43B basically provides protection for whistleblowers, which is very similar to the minister's proposed new section 43A. If we were to debate and decide on my amendments first, we would have to renumber the minister's if that is successful, and vice versa—if the minister's amendment were successful we would have to renumber mine. I will leave that to the table staff and to parliamentary counsel to work out. I will just speak to the amendments.

We may need to split my amendment to make sure that we deal separately with both those proposed two new clauses. I had new section 43A so drafted to reflect some other laws that we have, which basically provide that the publicly motivated people who report wrong-doings to inspectors should not be left entirely in the dark as to what will happen. That person should have some right to at least be told what is going on. However, I have discussed this amendment with the government and, as I understand it, the government is nervous about enshrining in law a guaranteed toing-and-froing between the informant and the inspector.

The inspector has to keep their supervisors and employers informed about what they are doing, but the government is very keen for them not to also have to keep the complainant informed. I would think that good practice would mean that the inspectors would keep informants informed as to what was going on, but the government is nervous about enshrining it to the extent that I have drafted it in law. So, with the indulgence of the committee, my understanding is that, with the deletion of a very few words in my amendment, we can, at least, have the government on side. I withdraw my original amendment and move it in an amended form, as follows:

Page 17, after line 25—Insert:

18A—Insertion of section 43A

After section 43 insert–

43A—Reports in respect of alleged contraventions

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

In speaking to this amended amendment, I re-emphasise the obvious fact that we do not have sufficient inspectors out there witnessing at first-hand every act of cruelty done to animals. For this system to work it requires the goodwill of the community. It is ordinary people out there in the community reporting to the authorities, to the RSPCA, that will make the system work. I think it is appropriate that those reports do not just end up in a black hole, and I want to ensure that there is at least the minimal feedback that I have proposed with these words. So, if the informant requests it, the inspector will be required to tell them of the action they are proposing to take.

I do not believe I said this in my second reading contribution, but the need for this type of amendment came out of a personal experience. I was chased down the road by a dog and, when I rang to complain, the inspector refused to tell me what, if anything, he was going to do about it. I thought that was outrageous; I think I should have at least been told what the process is, whether a person makes a report or they will consider prosecution or whatever. I think it is only right that informants be told what is going on. The government appears to be satisfied with my amended amendment.

The Hon. G.E. GAGO: The government supports the amendment as amended.

The Hon. J.M.A. LENSINK: I understand what the Hon. Mark Parnell is attempting to do. We had a briefing from the RSPCA as well as the department, and clearly it is the 80:20 rule—where 80 per cent of these take up 20 per cent of the time, and vice versa.

One of the things about which I would be concerned is busybodies (for want of a better word). I am not suggesting that the Hon. Mr Parnell was a busybody; he certainly did not initiate contact between himself and the large dog. I wonder whether the government has any idea about the impact on the inspectorate's resources of those people who repeatedly report things, given that I understand the inspectorate is already under-resourced.

The Hon. M. PARNELL: As the mover I might answer that question. The way in which I have modified it means that there is a number of reasons why it would not impose an onerous obligation on inspectors. First, there is no obligation on the inspector to inform the complainant about action unless the complainant wants to be informed. Some people will be happy to say, 'I thought you should know this,' and they will ring up with a story of an animal that is being ill-treated; not everyone wants the authorities to get back to them. As the amendment now reads, the inspector has to inform the person 'if practicable'. It may not be practicable, in which case there is no informing to be done.

Secondly, they must inform the person, if practicable, of the action proposed to be taken under the act. That might be as simple as explaining to the complainant how the investigation system works. It might be as simple as the inspector saying to the person, 'Thank you for ringing about the starving horse in the paddock. I will log that with our inspectorate and they will send out someone to investigate it.' I do not want to pre-empt the appropriate response in each situation.

I accept what the Hon. Michelle Lensink says. My original amendment would have required a more onerous duty on the inspectors. It seems to me that this duty may be satisfied in the initial phone call that is made. If the phone call is taken by someone else then it might require one very quick phone call back, but only if the person requires it. I do not think this is an onerous responsibility.

We always have to balance extra administrative load with the big picture. The big picture here is that we know that the public of South Australia is the ears and the eyes of the RSPCA when it comes to investigating animal cruelty. Inspectors are not out there finding things for themselves. They have to be told something is wrong before they can take any action. It seems to me to be commonsense and to be courteous. If we want the RSPCA to keep the faith of the community, then provisions such as this (which require minimal feedback on action to be taken) are not unreasonable.

We want members of the community to take personal responsibility for animal welfare. I think amendments such as this engender that sense of responsibility in the community. When people have the authorities getting back to them, they are more inclined next time to report things. They will say, 'It wasn't a waste of time; I know they investigated it and took action.' I do not think it is an onerous provision.

The Hon. C.V. SCHAEFER: I understand that the Hon. Mark Parnell's amendments and the minister's amendments attempt to do the same thing; that is, protect whistleblowers.

The Hon. M. PARNELL: I am happy to hear any other comments on proposed new section 43A, but I wonder whether it is appropriate to test it now; then we can move to proposed new section 43B, which is the same subject matter as the minister's proposed new section 43A. So, can we deal first with the first part of my amendment No. 19?

The Hon. D.G.E. HOOD: I have not heard the government position on this.

The Hon. G.E. GAGO: We are supporting it.

The Hon. D.G.E. HOOD: You are supporting it. I beg your pardon; sorry.

The CHAIRMAN: The question is that new clause 18A as proposed to be inserted by the Hon. Mr Parnell, down to including proposed and new section 43A, be so inserted

New clause inserted.

New clause 18B.

The Hon. G.E. GAGO: I move:

Page 17, after line 25—Insert:

43B—Victimisation

(1) A person commits an act of victimisation against another person (the victim) if he or she causes detriment to the victim on the ground, or substantially on the ground, that the victim—

(a) has disclosed or intends to disclose information; or

(b) has made or intends to make an allegation,

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

(2) An act of victimisation under this act may be dealt with—

(a) as a tort; or

(b) as if it were an act of victimisation under the Equal Opportunity Act 1984,

but, if the victim commences proceedings in a court seeking a remedy in tort, he or she cannot subsequently lodge a complaint under the Equal Opportunity Act 1984 and, conversely, if the victim lodges a complaint under that act, he or she cannot subsequently commence proceedings in a court seeking a remedy in tort.

(3) Where a complaint alleging an act of victimisation under this act has been lodged with the Commissioner for Equal Opportunity and the Commissioner is of the opinion that the subject matter of the complaint has already been adequately dealt with by a competent authority, the Commissioner may decline to act on the complaint or to proceed further with action on the complaint.

(4) In this section—

detriment includes—

(a) injury, damage or loss; or

(b) intimidation or harassment; or

(c) discrimination, disadvantage or adverse treatment in relation to the victim's employment or business; or

(d) threats of reprisal.

The Hon. M. PARNELL: Mr Chair, if the government's amendment to insert new section 43B, entitled 'Victimisation', is supported, I will not move my amendment. However, if the government's amendment is not supported, I will move mine.

The Hon. C.V. SCHAEFER: The opposition supports the government's amendment.

The Hon. A. BRESSINGTON: As do I.

New clause inserted.

Clause 19.

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

Page 17, after line 36—

After subclause (2) insert:

(3) Section 44—After subsection (4) insert:

(5) Despite the previous subsections, no regulation may be made prohibiting an animal of less than, or more than, a specified body weight from being used in a rodeo event.

(6) In this section—Rodeo event means any of the following events:

(a) saddle bronc riding;

(b) bareback bronc riding;

(c) bull riding;

(d) steer riding;

(e) roping or tying;

(f) team roping;

(g) steer wrestling.

The shadow minister, who has followed this argument right through, will be speaking to this amendment. I would like to say that I have been very disappointed. I do not know who out of the minister's office decided that this is a matter for Today Tonight but, certainly, the image that has been portrayed of me as someone who is cruel to animals is completely incorrect and most upsetting. It is personally quite offensive. I, too, am a member of the RSPCA. I did indeed say that a calf at a rodeo is statistically safer than a calf in the paddock, and that is statistically quite correct. Over four years, there has been one injury to a calf in a roping event across Australia.

The Hon. G.E. GAGO: The Hon. Caroline Schaefer would not be surprised that the government does not support this amendment. It would remove the weight restriction on animals being used in rodeo events. Last year, the government introduced new regulations to tighten animal welfare standards for rodeos in South Australia. This included a ban on all animals weighing less than 200 kilograms taking part, which effectively prohibits calf roping events at all rodeos held in South Australia.

I took the advice of the RSPCA, which raised with me issues of concern for these juvenile animals. These are very young animals that are in a state of physical under-development, and there is serious concern that these small animals are frightened, lassoed, thrown to the ground and then have their legs tied for the enjoyment of the public.

I have taken the advice of the RSPCA and have said no in respect of those juvenile animals, and that they have to be above a certain weight to be involved in a roping event. I do not resile from that. The RSPCA considers calf roping to be the most unacceptable and highest risk of all rodeo events, because calves are small and potentially prone to injury and distress, and a lot of that cannot be measured. One cannot measure fear, and there is a great deal of soft tissue damage and bruising that also cannot be measured.

I remind the committee that Victoria banned calf roping as an event many years ago, and I am aware that steer roping may be substituted as a roping event. However, steers are larger animals than calves, so they are less sensitive to trauma. In addition, steers are not required to be thrown and tied in a steer roping event, only roped. The RSPCA considers that this results in the potential for less impact on the animals.

As I indicated in this place last year, the bottom line is that what we have here in regard to calf roping are particular points of view that are not shared and, as the minister responsible for animal welfare, I have the responsibility to protect the interests, welfare and safety of animals. The proposed amendment by the Hon. Caroline Schaefer would remove the restriction of weight and allow calf roping. It would also remove the upper weight limit, thus allowing very large animals to be used in rodeo events, which is also a concern to the government. As I said, the government does not support this amendment.

The Hon. J.M.A. LENSINK: As my colleague the Hon. Caroline Schaefer alluded to, I believe that there has been much muddying of the waters by Today Tonight on Channel 7 and, unfortunately, FIVEaa has picked up the rather skew-whiff baton as well. Honourable members may have seen a program several weeks ago that related to wild horse riding, an event which took place in Queensland. There were some fairly distressing scenes in which riders were biting the ears of horses and indulging in other cruel practices, which I am sure no-one in this chamber would endorse. Wild horse racing does not take place in South Australia. The body that administers rodeos, the Australian Professional Rodeo Association, opposes wild horse riding, and I believe APRA always seeks to conduct its rodeos in an ethical manner.

I urge all honourable members who supported the disallowance motion last year to support this amendment, because it is consistent with that. There was an error, which may well have been an oversight (I am not quite sure how it came about). The Legislative Council disallowed regulation No. 217, which was tabled on 16 August 2007, which was entitled 'Prevention of cruelty to animals regulations—rodeos'. There was a subsequent regulation, No. 220, on 23 August 2007, which was 'Prevention of cruelty to animals regulations—electrical devices'. I understand that the difference between the two was that there had been some technical omission, and the issue of electrical devices was inserted into the subsequent one. This Legislative Council disallowed the former one, which was superseded and, therefore, the regulations are now in place.

We have the opportunity in this bill to address this matter, which the Legislative Council last year clearly decided that it did not wish to ban. As the minister has stated, that is that we will remove the weight allowances, which will effectively allow events such as calf roping to continue. Interestingly, in defence of her position, the minister stated that to oppose this would enable steers to be used, being heavier than calves. The statistics bear out for themselves that calf roping has a lower injury rate.

I would like to refer to some of the correspondence that has taken place. I received copies of emails from July last year, which came from the Australian Professional Rodeo Association. When it first learned that calf roping was to be banned, the association sought some endorsements from veterinarians, and so forth, and people who would know what is safe practice. There is an email from a gentleman by the name of Professor Ivan Caple, who is a past chairman of the NCCAW. He is a professor of veterinary medicine at the University of Melbourne. His email states:

Attached is the most recent edition of the NCCAW standards (10 June 2006) for the Care and Treatment of Rodeo Livestock.

The care and attention provided to all animals used at rodeos is the key to ensuring their welfare, and only qualified and trained people should be involved with the animals.

Below is the key section from the NCCAW standard relating to cattle used at rodeos:

I will not read it all, but part of the email states:

Selection of Animal for Rope and Tie

Cattle used in Rope and Tie must be fit, healthy, and without defects. The optimum weight for roping and tying is 115kg with a minimum of 100kg and a maximum of 130kg.

He then refers to animals for use in steer wrestling, and again:

...must be fit, healthy and without defects. The optimum weight for animals is 250kg, with a minimum of 200kg and a maximum of 300kg.

He goes on to say:

The Minister should be informed that cattle are used for different events at rodeos, and the specifications for the cattle differ for particular events.

The NCCAW standard specifies the minimum (and maximum) weights of cattle to be used for particular events.

The NCCAW is the standard by which all events take place in South Australia. There it is outlined very clearly that the optimum weight for rope and tie is 115 kilograms, which is obviously much less than the steer weight

I, too, am a member of the RSPCA, and have been a member of the Animal Welfare League for a number of years. The RSPCA is a well-recognised organisation within our community, but I would have to say that there have been some significant concerns about certain factions, if you like, in the animal welfare-concerned citizens who have sought to take over the RSPCA, and it has had some difficulties, which we hope will be allayed. In fact, I know that the RSPCA is opposed to rodeos full stop, and this particular measure may just be some way for the government to be able to say, 'Well, we banned part of rodeos, whereas in fact the RSPCA would like to close down the lot.'

I think that it would be worthwhile if people who have concerns about legitimate rodeos in South Australia would actually go to meet with and observe for themselves the legitimate rodeos, rather than taking footage of people behaving unethically, and trying to pretend that that is what rodeos are about in South Australia. I think the industry is being singled out quite unfairly. The statistics and endorsements speak for themselves.

There is one other reference here that I should have read out as well, which is from John Cornwall, BVSc, who is a former Labor member. He refers to a gentleman by the name of John Osborne, and he says:

It has been my good fortune to serve with John Osborne on the Australian Animal Welfare Strategy Committee on Animals Used in Work, Recreation and Display. I have been impressed by his sound commonsense and his ability to use his long experience to negotiate sensible solutions to complex issues.

He has asked me to comment on the issue of calf weights in roping events. I have no specific experience or expertise in the area. However, as a veterinarian with almost fifty years' experience in the profession (including ten years in rural practice in Mount Gambier) it seems obvious to me that, given their relative weights and strength, a calf in the weight range 100 to 130kgs would be significantly less stressed in competition than a steer around 200kgs.

With that, I urge all members to support this amendment.

The Hon. A. BRESSINGTON: I will be supporting the Hon. Caroline Schaefer's amendment. Something that we need to get clear in our mind is that, like it or not, rodeos are part of rural life and they are of interest to the rural community. As I understand it, with the weights of the calves, the weights that the minister has suggested for calf roping, the simple phrase is: the bigger they are the harder they fall. There is science to back that up and there are statistics to back it up—one injury in four years; for goodness sake!

As a kid I spent a lot of time on farms and I wonder where this will stop. The minister says that you cannot measure fear and anxiety and all the rest of it. So, let us stop dipping because that actually causes trauma to those animals while they are going through the whole process of being dipped, as they do not understand what is happening to them. They are in a narrow corral, they are being thrown into a pool of water and they do not know why. They are fearful, they are anxious and they are traumatised by that, but we would not suggest that we stop dipping. The other thing is shearing—

The Hon. G.E. Gago interjecting:

The Hon. A. BRESSINGTON: But we city people have understand that the rural community have activities that do not necessarily appeal to us. The same as probably a lot of rural people would not get off on car racing, but we still have the Clipsal. Let us be fair about this. There are different standards, different activities for different areas of our community, which is Australia. We need to give and take a little here. I think we are being just a little precious about this, when there is no science to back up the recommendation that the higher weight of a roping calf will reduce any trauma. As a matter of fact, it will probably increase the trauma, so where is the logic of that?

While we are at it, let us look at the shearing industry. I have been in shearing sheds and I have seen how sheep are treated when they are being sheared. They are fearful, they are anxious and they are being traumatised. That is for industry—

The CHAIRMAN: The shearer as well.

The Hon. A. BRESSINGTON: The shearer as well; yes. So, let us face it, we city people and people who want warm and fuzzy animal rules all over the place are unrealistic when we say that every little animal should be kept nice and safe and warm and cuddly and should never go through any trauma. This is not Utopia and that is not possible in a country like Australia that has a rural community that has its traditions. So, for goodness sake, just get on with protecting the animals that need protection.

The Hon. M. PARNELL: It will come as no surprise to members to know that the Greens will not be supporting this amendment. We support the policy of the RSPCA, which is to be opposed to rodeos full stop. I think that the types of activities that the government has tried to restrict and prohibit through regulation are cruel and demeaning activities and we do not need to engage in them. I think it demeans not just those who are involved but those who watch as well.

As the Hon. Ann Bressington has said, we can focus on the cultural norms of different communities. Do we focus on the alleged cultural norms of the Japanese? They want to eat whales. They say, 'Respect our culture. Let us eat whales.' I have spent a lot of time in South-East Asia in the past few years. The culture of countries like Indonesia and Vietnam is that cock fighting is just fine. Everywhere you go you find these upturned wicker baskets with the roosters underneath just waiting for the next cock fight.

What we are doing in this parliament is we are debating standards that are appropriate to our culture and to our time. We have banned all sorts of cruel activities over the years. We do not allow cock fighting in Australia and we do not have bear baiting. There are plenty of activities that I still think need regulation. I would like to see rodeos gone. There are other activities that cruel that we could look at as well. I will not be supporting this amendment. I would urge all honourable members to do likewise.

The Hon. A. BRESSINGTON: Just one more thing.

The CHAIRMAN: You're not going to say haircuts are cruel too, are you?

The Hon. A. BRESSINGTON: I hope you will partner with me, Mr Chairman, and get your head shaved for the cancer thing. I am looking for a partner.

I would just like to make the point I made the other night as far as the Greens and Democrats go with animal rights. The Hon. Mark Parnell was looking forward to sweeping changes from me for travel insurance; I will be looking forward to sweeping changes from the Hon. Mark Parnell to the Child Protection Act to make sure that our children are as well-protected and as safe as these animals are. I am sick and tired of this.

The Hon. D.G.E. HOOD: I will reveal our position at the end. I will give just a brief summary of where we are at. We have agonised over this. This is a very difficult decision. We have, on the one hand, some people who have some very strong arguments in the case of their position on animal rights and cruelty to animals. We have listened to them carefully. On the other hand, we have people who have an industry to protect and enjoyment and a way of life that they enjoy very much and have a right to undertake. It is not an illegal activity.

As with all votes for Family First, this is a conscience vote for us. Everything we vote on is a conscience vote. We do not believe that a member of parliament should ever vote against their conscience, and this issue is no exception. We vote as individuals on this particular matter, as we do on all matters. In this case, I am persuaded by the opposition's argument, and indeed by the industry itself. To me as an individual there seems to be more danger for the animals concerned in opposing the amendment than there would be if I were to support the amendment.

I have spoken to perhaps 20 or 30 people involved in the industry and I am impressed by their commitment to care for the animals that are involved in rodeos. They really are genuinely concerned. They tell me that it is in their interests to have the highest possible standards. I have seen footage they have shown me and it presents their product well, if you like. I am persuaded and, for that reason, I will be supporting the amendment.

The CHAIRMAN: The Hon. Mr Evans. Tell us about your conscience.

The Hon. A.L. EVANS: I am exercising my conscience and I will not be thrown out of the party for it. I will be voting with the government.

The committee divided on the amendment:

AYES (8)

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

NOES (9)

Darley, J.A. Evans, A.L. Gago, G.E. (teller)
Gazzola, J.M. Holloway, P. Hunter, I.K.
Kanck, S.M. Parnell, M. Wortley, R.P.

PAIRS (4)

Lucas, R.I. Zollo, C.
Wade, S.G. Finnigan, B.V.


Majority of 1 for the noes.

Amendment thus negatived; clause passed.

Title passed.

Bill recommitted.

Clause 17.

The Hon. C.V. SCHAEFER: We have had an exhaustive and exhausting debate, and I have had a new amendment drafted with respect to the prevention of third party prosecutions. I move:

Page 17, after line 8—

(1) A prosecution for a summary offence against this act may only be commenced by—

(a) an inspector; or

(b) a prescribed person or a person of a prescribed class.

(2) In proceedings for any such offence, an allegation in the complaint that a person named in the complaint was, at a specified time—

(a) an inspector; or

(b) a prescribed person or a person of a prescribed class,

is, in the absence of proof to the contrary, proof of the matter alleged.

As I have spoken at some length, my desire is not to make cumbersome legislation, but merely to stop third party and malicious prosecution. I believe prosecution should be in the hands of those who are qualified to do so. In this case, that would be an inspector or someone prescribed by regulation. So, it may well be a veterinary surgeon, it may be a police officer, and it would most likely be an inspector.

The Hon. G.E. GAGO: I think the Hon. Mark Parnell succinctly summed up that there are two aspects of concern about the original amendment that the Hon. Caroline Schaefer moved. One concerned the problems of the potential for corruption and the second concerned the principle of the rights of third party prosecutions. I think that the amendment that the Hon. Caroline Schaefer has now put before us most likely deals with that first issue in terms of the potential for corruption. It certainly limits that. However, the second principle is still very important to South Australians, and the government will be opposing this amendment on those grounds, and that is that we are opposed to removing third party prosecution rights as part of South Australia's democratic process. It is something that South Australians enjoy and we value it very highly. There is no evidence that this right is abused in any significant way whatsoever. So, in terms of historical evidence, it is very limited, which I think demonstrates the fact that—

The CHAIRMAN: Order! There is too much conversation in the chamber.

The Hon. G.E. GAGO: —the potential for vexatious third party prosecutions is very limited. The legal process is a very expensive one and that, in itself, becomes a self-limiting part of the process in terms of pursuing vexatious claims.

I cannot stress highly enough that the public expectation is that any person can lay charges where they believe there has been a breach and where there appears to be enough evidence for a prosecution to proceed. It is a right that South Australians enjoy, we are proud of it, and it is very clear that we have not abused that privilege in any significant way. So, it is a fundamental, democratic principle that any person has the right to third party prosecution. I strongly uphold that principle and, therefore, the government will be opposing this amendment on those grounds.

The Hon. J.M.A. LENSINK: Can the minister provide details of other fields in which any individual can undertake third party prosecutions? What other parts of our statutes allow for that?

The Hon. G.E. GAGO: The advice I have received is that the general rules of criminal procedure in this state provide that a complaint for a summary offence can be made by any person. This right is occasionally constrained by a particular statute. But I think the real point of this is that this provision has been in place for some time and there is no historical evidence to demonstrate that this privilege is being abused.

The Hon. M. PARNELL: I oppose this amendment. I accept that the first problem that I had with it has been resolved but the second has not. The second problem is, as the minister has said, this fundamental democratic right that we have as citizens to seek to enforce the law. But we have to remember that we are not saying that third parties are going to be judge and jury. Third parties are not the ones who are going to be deciding the guilt or innocence of defendants. We are saying that this right—so seldom exercised that I could only think of two cases over decades in the environment field that I am aware of—is not something that is used.

But we also need to put it in the context of animal welfare laws and, yes, in a perfect world we would like to think that the inspectors at the RSPCA have sufficient resources for every case that deserves to be prosecuted to be so prosecuted. But they are constrained by a budget that does not even allow them to do the job that they do without fund-raising. I have said this before: it is like our police officers having to fund-raise to do their job. The RSPCA does not get sufficient funding from government to undertake the full task of inspecting and prosecuting. As the honourable member said, that is another issue. I would like that situation to be remedied, but it is not remedied yet and it will take some time, I think, before our primary law enforcement body gets sufficient resources or other bodies get resources to do the job.

The prospect of private prosecutions in the animal welfare area is low but, if it were to happen and a person were to be found guilty, we would be saying, 'Well, that's terrific. They have appropriately brought an action to the attention of the authorities and the person has been found guilty.' If the person was found not guilty and if it turned out to be, as it has been described, a malicious prosecution—not that there is any evidence that we have ever seen one—there will be consequences for those who brought the action. There are legal cost consequences that come from pursuing actions such as these, particularly if you are not an authorised officer or an inspector.

One might want to take a pragmatic view and say, 'Okay, the government has said that this is an important principle' so, under the honourable member's amendment, it will prescribe all citizens of South Australia to be prescribed people. But that is not good enough, because it leaves it open to future governments to then narrow right down the class of persons who can bring a private prosecution.

It is a matter bigger than this legislation. It actually goes, fundamentally I think, to the relationship that we as citizens have with the state and with the legal system. There is no evidence that it has been abused. I do not encourage people to go out there with private prosecutions. I have spent the past 16 years of my life in environmental law encouraging people to put pressure on the proper authorities to do their job.

When it comes to pollution issues, I say, 'Put your energy into getting the EPA to pursue this. Don't try private legal action as it's fraught with danger.' I think it is the same with animals as well: people will be urging the authorities to do the job. But in that very rare, small number of cases where the proper authorities are unable or unwilling for whatever reason to do their job properly, we need that fall-back position of citizens being able to step into the breach. I still strongly oppose the Liberal amendment.

The Hon. A. BRESSINGTON: I will be supporting this amendment of the Hon. Caroline Shaffer. I would just like to remind some members in here that false allegations in our society are becoming more and more of a problem all the time. We see it in family law and in child protection issues; we see it in a lot of issues, where people actually make their way to court on false allegations and, in some cases, have won cases and ruined people's lives. We say that we have no proof that that happens. Well, when they win based on a false allegation, how do you actually prove that?

I have proposed legislation for polygraphing for exactly these reasons. The court makes a determination on the evidence that it is given. If you have a group of people who band together and decide that a certain person, or a certain circumstance, needs to be prosecuted because it does not actually line up with their moral level, it can be a powerful tool. When the minister says that this is our democratic right, let us not forget that, with this amendment, people will still have the power to dob in people who are doing the wrong thing, and inspectors can then follow it up. If a person rings up or writes in, or whatever, and makes a complaint, we now have a provision where inspectors will notify that person of what action is being taken. This particular protection mechanism is necessary not only in this piece of legislation but in many others as well.

The Hon. SANDRA KANCK: The Democrats will not be supporting this amendment. I think that the two cases that the committee has been made aware of—one in the environmental field and one in the animal field—are not showing, by any means, that this is a mechanism that is abused in any way. The one animal case was upheld, so it was clearly quite appropriate for it to be brought to the court.

It is clear—the evidence is there—that the RSPCA has not been able to manage the load that comes its way. To my mind, it is a little like a citizen's arrest. When something is going wrong and the police are not around, people are able to make a citizen's arrest. I think that this is in the same category. When the RSPCA is overloaded and when it has not been able to do enough cake stalls and raffles in order to be able to keep afloat, it will be useful to have another mechanism that will allow cases to be brought to the court.

The Hon. D.G.E. HOOD: There are strong views in the chamber, but on balance we believe there is merit to this amendment. However, there are some fundamental democratic principles that the Hon. Mark Parnell outlined which to me and the Hon. Andrew Evans override this bill. We have no sympathy at all for people who make vexatious claims, extremist claims, against people making an honest, decent living. There are significant principles at stake here, and for that reason we will somewhat reluctantly oppose the amendment.

Amendment negatived.

Bill reported with amendments.

Third Reading

Bill read a third time and passed.

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