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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-02-28 Daily Xml
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PREVENTION OF CRUELTY TO ANIMALS (ANIMAL WELFARE) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 26 February 2008. Page 1783.)

Clause 8 as amended passed.

New clause 8A.

The Hon. M. PARNELL: I move:

Page 7, after line 24—

8A—Amendment of section 19—Conditions of licence.

Section 19(2)—after paragraph (e) insert:

and

(f) requiring the holder of the licence to comply with such provisions of the Code as may be specified in the conditions.

This is a fairly simple amendment which requires that it be a condition of a licence given for teaching and research involving animals that the activity which is the subject of the licence must be carried out in accordance with the relevant research code as set out in the regulations. That is the situation that most people would imagine and expect is already the case. However, currently the code is binding only on the ethics committee that approves the activity rather than the person actually carrying out the activity. The minister has a discretion whether or not to require the involvement of an ethics committee. This could be regarded as a tidying up type of amendment that makes it clear that the relevant research code should apply to research.

The Hon. G.E. GAGO: Whilst I do not believe that this amendment is in fact necessary as it is already dealt with under the act, I appreciate that it will make compliance with the code explicit, so the government will support it.

The Hon. C.V. SCHAEFER: The opposition is opposing this amendment simply because we see it as superfluous. We believe that it is covered.

The Hon. D.G.E. HOOD: Family First supports the amendment. We see no harm in making the requirements explicit.

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

New clause inserted.

Clause 9.

The Hon. C.V. SCHAEFER: I seek some clarification, but my understanding is that this is the amendment that originally proposed to appoint a layperson to the ethics committee. I said in my second reading contribution that, having had the purpose of the ethics committee explained better to me, I am not proceeding with my amendment.

Clause passed.

Clause 10 passed.

Clause 11.

The Hon. C.V. SCHAEFER: I will move and speak to both my amendments Nos 5 and 6 because both are to do with having a suitably qualified person as the inspector under various circumstances. One of my concerns is: who is the inspectorate and what qualifications do they have which enables them to determine whether an action is an act of cruelty? That is the essence of inserting 'qualified' before person in my amendment No. 5 (clause 11, page 8, line 9).

My second amendment is to clause 11, page 8 after line 14, 'qualified person means a person who has successfully completed the training prescribed in the regulations as relevant to their condition of appointment'. This amendment was suggested to me by the minister's office late last night, hence I have not been able to put it on file. It takes up my concern that you may have an inspector who is highly qualified in injuries to dogs, for instance, but who has never seen a pig, a budgie or whatever in their life. It has been pointed out to me that the appointment of a woman in the D & H Animal Welfare Unit is conditional to inspecting laboratories.

Certainly the people I am envisaging who will be inspecting piggeries would have no qualifications suitable to inspecting laboratories, hence, I would, where it is practical to do so, like to move that amended form. I do apologise to the table staff for not giving them any notice but, basically, I did not have any myself.

The Hon. G.E. GAGO: The government supports the Hon. Caroline Schaefer's amendments Nos 5, 6 and 7 in an amended way as indicated.

The Hon. C.V. SCHAEFER: The amended words I would like inserted are in fact to my amendment No. 7 (clause 11, page 8 after line 14). All three of the amendments are consequential and I would like to move them en bloc. I therefore move:

Page 8, line 9—

Clause 11, inserted section 28(1)—before 'person' insert:

qualified

After line 12—

Clause 11, inserted section 28—after subsection (2) insert:

(2a) Without limiting the conditions that may be imposed under subsection (2), the conditions may include the following:

(a) a condition restricting the powers of the inspector;

(b) a condition requiring the inspector to undertake suitable training;

(c) condition requiring compliance with prescribed protocols and operational procedures;

(d) any other condition that the minister thinks fit.

After line 14—

Clause 11, inserted section 28—after subsection (3) insert:

(4) In this section—

qualified person means a person who has successfully completed a prescribed course of training.

The Hon. G.E. GAGO: The government believes that these changes enhance the legislation in a positive way and we will be supporting them.

Amendments carried.

The Hon. M. PARNELL: I move:

Page 8, after line 36—After the penalty provision insert:

Expiation fee: $210.

This is a tidying-up amendment. Currently, if an inspector fails to return an identity card the only option is to initiate an expensive prosecution in court. This amendment provides an option for an expiation for that relatively minor offence.

The Hon. G.E. GAGO: The government will be supporting this amendment.

Amendment carried.

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

Page 11, line 2—Delete 'if' and substitute:

Subject to this section if

I am advised that this is a consequential amendment arising out of the government's amendment No. 3.

Amendment carried.

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

Page 11, line 3—Delete 'an inspection' and substitute:

a routine inspection

I am advised that this is a minor amendment which clarifies that routine inspections, as opposed to all inspections, are the subject of this particular section.

The Hon. C.V. SCHAEFER: The opposition strongly supports this amendment. It was explained to me that this whole section applies to routine inspections, anyway. One of the misconceptions which is being put out amongst the public is that, with all the opposition's amendments with regard to routine inspections, we are trying to apply them to acts of cruelty. Nothing could be further from the case. This is a new section in the act which provides for routine inspections which have nothing to do with anyone who is under suspicion of an act of cruelty or under an order. This amendment helps to make that clearer and we support it.

Amendment carried.

The Hon. SANDRA KANCK: I move:

Page 11, lines 2 to 20 (inclusive)—

Delete subsection (1) and substitute:

(1) For the purposes of administering this act, an inspector may, in circumstances where there is no suspicion of an offence, exercise powers under this act to conduct a routine inspection of premises or a vehicle.

(1a) A routine inspection must be carried out during normal business hours and the inspector must—

(a) give the following persons (as required) a reasonable opportunity to accompany the inspector throughout the inspection:

(i) the occupier of the premises or the owner of the vehicle;

(ii) a nominee of the occupier of the premises or the owner of the vehicle;

(iii) the occupier of the premises or the owner of the vehicle and a nominee of the occupier or owner; and

(b) take reasonable steps to minimise any adverse effect of the inspection on the business or activities of the occupier of the premises or the owner of the vehicle.

(1b) The minister must ensure that a routine inspection under this section of premises or a vehicle being used for or in connection with intensive animal husbandry is carried out at least once in each year.

One of the controversial aspects about this bill is the issue of inspection. My understanding is that the RSPCA's membership has supported random inspection, but the powers that be in the RSPCA are not actively promoting that policy. To me, this amendment is, to some extent, a compromise. I know that the government and the opposition will not accept random inspections. So, this amendment is setting out some powers in relation to routine inspections (as we will be calling them), and it sets out effectively, the protections for the property owner, so that there are opportunities for the person who is operating that business to be able to accompany the inspector, and so on.

What is most important for me, however, in this amendment is subclause (1b). This is about intensive animal husbandry—for example, pig farming and chickens that are kept in barns and cages in conditions that many of us do not consider to be particularly humane. This measure requires that, where intensive animal husbandry is involved, once a year the minister will ensure that a routine inspection of those operations takes place. It is not a random inspection, because it will require notification; it will require those things that I have said—that the operator of the business will be able to accompany the inspector. It will all be done within this state of reasonableness, so that there is no surprise.

It is important to me that this inspection occur once a year. I know that the argument will be advanced that we cannot have random inspections because of the issue of biosecurity, which I think is something of a furphy, but I know that it will be used. However, we know that, where intensive animal husbandry is occurring, there are elements of cruelty. The problem that faces us is that it is not like someone mistreating their dog, whereby the next door neighbour sees it and can advise the RSPCA. When these enterprises are located in country areas, often the sheds are set back from the road, and there is no opportunity for a member of the public to see the cruelty and advise the RSPCA.

So, if you are going to rely on someone telling the RSPCA that there is a problem, you might find that an employee from time to time will let the RSPCA know, but mostly that will not happen, because their job depends on a raid not happening. This is effectively the next best thing. Because there is no-one who will be advising the RSPCA that things are not good in these factories, this will put a requirement within that concept of reasonableness that they will be inspected once a year.

It does not mean that cruelty within those practices will necessarily stop, but it means that, for at least one day a year, and probably in the period of time leading up to an inspection, they will have to clean up their act. If they clean it up for at least that short period of time, it is likely to continue for some extended period after the inspection. It is, effectively, the best we can offer, given that we know that the government and the opposition will not agree to random inspections.

The Hon. G.E. GAGO: One part of the amendment filed by the Hon. Sandra Kanck removes the requirement for an inspector to give reasonable notice of a routine inspection but retains the requirement to give the specified persons, as required, a reasonable opportunity to accompany the inspector throughout the inspection. The government does not support no notice of routine inspections.

My colleague's amendment also requires inspections to be carried out in normal business hours. Normal business hours may not be convenient for either the owner or the inspector, or even appropriate for the type of facility to be inspected. The bill, in requiring reasonable notice, gives the inspector and the owner the ability to arrange the inspection for a mutually convenient time and allows both to be accompanied by persons they believe can assist with the inspection.

The last part of the amendment requires the minister to ensure that routine inspection of premises or vehicles being used for or in connection with intensive animal husbandry are carried out at least once in each year. The bill does not specify the number of routine inspections for an individual facility in any given period, nor will there be a restriction on the number of inspections for an individual facility in any given time period. It is important that the timing of routine inspections be genuinely in the hands of the inspectorate, in consultation with the animal owner, with no undue requirements or limitations beyond giving reasonable notice.

Good practice will mean that it is unlikely that animal welfare inspectors will waste their valuable time continuously visiting well performing facilities, and it is important that the inspectorate be able to determine its priorities without undue restrictions through the bill. It may well be that some facilities require more frequent attention, and any requirement that spreads the inspectorate more thinly and evenly across all facilities may actually hamper this concentrated effort where it is most likely to be needed the most.

The MOU I have referred to earlier addresses the desirability of ensuring that all intensive husbandry establishments are regularly audited. Finally, I advise that the government has filed an amendment, which will be debated later, to address victimisation of complainants by persons who have been the subject of a complaint. It is hoped that this will give some reassurance to potential complainants that there are mechanisms to protect their interests and to report cases of ill treatment of animals. Consequently, the government does not support this amendment in its entirety.

The Hon. M. PARNELL: I take this opportunity to seek a little guidance from the chair because, as has been pointed out, four of us have amendments on more or less the same topic, with the threshold question being the amount of notice to be given and some subsidiary questions such as whether or not we should have a guaranteed inspection at least once a year.

I have a number of questions of the minister before we get through to the conclusion of the debate. With the consent of the committee, it might be appropriate for us all to hear some of the answers to those questions rather than taking all of these amendments in a piecemeal fashion, because they may well inform the response that we take to each other's amendments. May I ask specific questions that relate just to the Hon. Sandra Kanck's amendment?

The CHAIRMAN: If you have specific questions that you think are only on the Hon. Sandra Kanck's amendment then, yes, ask them.

The Hon. M. PARNELL: Thank you for your guidance, Mr Chairman. I will ask a question on something that is in the honourable member's amendment that is not in any one else's, and that is this issue of a requirement, if you like, that each intensive animal facility be inspected at least once per year. My question of the minister is: given the resources that are to be committed to the task of inspecting intensive animal facilities, on average, how many times per year does the minister expect the facilities to be visited?

The Hon. G.E. GAGO: Could I just clarify: is the question what we anticipate the average number of inspections per year would be, or what they currently are?

The Hon. M. PARNELL: I will clarify the question. I guess, if we are going to put it in parts, the answer would clearly depend on how many intensive animal facilities there are in South Australia and how many inspectors will be devoted to the task. My understanding is that the answer to that is one, but I would like the minister to clarify that. Bearing in mind that a certain proportion of time will be dealt with dealing with known problems, what proportion of that one person's time might be available to deal with routine inspections? Therefore, on the basis of current resources, or the resources that are anticipated with this new inspector being appointed, how often is it likely that a random inspection would occur?

The Hon. G.E. GAGO: I have been advised that there are approximately 500 intensive animal facilities in South Australia, with approximately 130 significant operations. I have been advised that the RSPCA has seven full-time dedicated inspectors appointed under the act, with an additional 12 staff appointed as inspectors in their roles as shelter managers or rescue officers.

Primary Industries and Resources SA has 37 staff appointed as inspectors under the act. The Department for Environment and Heritage has 12 staff appointed as inspectors under the act. The Department for Water, Land and Biodiversity Conservation has seven staff appointed as inspectors under the act. In addition, all police officers are inspectors under the act. The recent announcement of increased funding to the RSPCA will mean an additional inspector can be appointed in this financial year, and two in the next financial year. It is not the minister's job to require a number of inspections for each facility, but the RSPCA has indicated that several inspections per week will occur.

The Hon. M. PARNELL: I thank the minister for her answer. Of that large number of inspectors working for different agencies, including the seven currently with the RSPCA and the additional one that has been funded, will the minister clarify, on the basis of her understanding, how many of those will be dedicated to the task of inspecting intensive animal facilities?

The Hon. G.E. GAGO: I have been advised that the RSPCA has indicated that several will be trained to do this, in terms of that particular task, rather than simply one being dedicated to the job. However, in terms of the actual numbers, that will be a matter for the inspectorate to assess and monitor to ensure that it meets demand.

The Hon. M. PARNELL: Just to pursue that a little further, it seems that it is a bit like the police force, in that all of them might be able to undertake certain work and all of them might be trained in certain work, but has the RSPCA given any indication to the minister as to the resources that it expects to be applied to intensive animal facilities? I understand that many will be able to do it but, in the conduct of their work, they have a range of functions. I am interested to know the likely resources to be devoted to this task of inspecting intensive animal facilities.

The Hon. G.E. GAGO: The details of that are not known. The inspectorate would have the responsibility of managing its resources and delegating resources to the range of responsibilities that is has. That is not a job for the minister to perform, given that the minister should not be involved in operational matters. It is a matter for the organisation to determine and to monitor, in an ongoing way, to ensure that adequate resources are in place, demands are met and its responsibilities are fulfilled.

The Hon. M. PARNELL: I understand the minister not wanting to get overly involved in operational matters but, as the minister said before, given a decision to increase funding to the RSPCA to allow an additional inspector to be employed, is it the minister's understanding that that is because the RSPCA has not had sufficient resources to deal with, for example, intensive animal facilities and that an inspector is proposed to be devoted to that task?

The Hon. G.E. GAGO: A funding deed is in place with the RSPCA. The funding deed and a memorandum of understanding spell out those things which the government requires of its inspectors and of the RSPCA in its role as the employer. This arrangements has served the people and animals of South Australia very well for many years and will continue to do so, no doubt, for many years to come.

The responsibility for the administration and maintenance of the legislation lies with the minister, and the responsibility for its enforcement lies with the inspectorate that the minister appoints, and the police. If any person considers that either the police or the inspectorate are not performing adequately, there are mechanisms in place by which their allegations can be fairly and impartially investigated. 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, PIRSA, DWLBC, or DEH.

The Hon. SANDRA KANCK: The minister has said that she will not accept my amendment and, if I have understood what she has said, her main objection is that I do not have a requirement for reasonable notice of the inspection. I ask the minister: if I amended my amendment to put in what is currently in the bill—1(a) give the occupier of the premises or the owner of the vehicle reasonable notice of the proposed inspection—would my amendment, in its entirety, then be acceptable to her?

The Hon. G.E. GAGO: The short answer is no. As I have outlined in my response to the member's amendment, there is a range of different issues—which I do not need to go through again because they have been recorded—that I have put on record that are of concern with respect to this particular amendment.

The Hon. SANDRA KANCK: It is fairly clear from the figures that we have heard in response to the Hon. Mark Parnell's questions that it would be unlikely that each of the intensive animal husbandry operations in South Australia would receive an annual routine inspection. I think the minister needs to recognise that, without a requirement like this, she and her government are ensuring that actions of animal groups in raiding such establishments will continue, because they will have no other option if they cannot get into these places in any other way. For instance, if biosecurity is a problem, those animal activists have no other way but to take the risks with biosecurity in order to expose what is happening in some of these animal factories. I, for one, will probably join them, because there is no other way to do it.

The Hon. M. PARNELL: I want to make an observation which is specific to the Hon. Sandra Kanck's amendment and which flows from the answers that the minister has given. We are effectively being asked to make the job fit the resources that have been allocated, when clearly our role as legislators is to determine what the task is that needs doing and how often it needs doing, then it is up to government to apply the resources to the task that we have identified. So, I think we have it the wrong way round.

I am attracted to the Hon. Sandra Kanck's amendment of trying to make sure that these places are visited at least once, and that would be enough for the vast majority of them where there is no problem, no known history and no particular evidence that there is an issue, but I am nervous that our starting point is a limited number of inspectors. Let us craft the law around making sure that we do not overwork those people. The assumption inherent in that is that there is no scope for further inquiries and resources to be devoted to this task. I make that observation which I think will flavour the discussions we are yet to have on inspectors and their powers.

The Hon. C.V. SCHAEFER: The opposition does not support this amendment for many of the reasons that have been outlined by the minister. Almost certainly most of the places which are inspected on a routine basis originally will not necessarily need frequent inspections, and perhaps others will need frequent inspections, but to mandate that every intensive animal husbandry precinct must be inspected at least once a year whether or not we like it is going to tie up resources that could be better used inspecting those who may be recalcitrant. While I am on my feet, and given the complexity of the number of amendments, I will indicate that the Liberal Party will not be proceeding with my amendment No. 9; instead, we will be supporting the Hon. Dennis Hood's amendment.

The Hon. G.E. GAGO: I do not want to repeat what I have already said, but this bill already provides the potential for routine inspections of any and/or all sites, so that provision is already available. If an annual inspection was required, it is important to understand that it could have the adverse effect of luring the owner into a sense of thinking that they have had their annual inspection, therefore they do not have to worry about anything for another year when, in fact, it could have the opposite effect of what the honourable member was intending.

It is also important that the inspectorate can focus its resources on those areas that it deems to be a priority and that it be left to make those assessments according to its own information and understanding of what is going on in the industry. We have a responsibility to ensure that all resources are used wisely to fulfil the purposes of the act rather than to satisfy individual sense of order. So, because our resources are precious we have a responsibility that they be used as wisely as possible.

The Hon. SANDRA KANCK: How many inspections of intensive animal husbandry operations occur on an annual basis at the moment in South Australia?

The Hon. G.E. GAGO: There are no random inspections at the moment because no power currently exists to do this. Random inspections are conducted on a regular and frequent basis by inspectors employed by PIRSA, DEH, DWLBC and the RSPCA. A precise number cannot be provided because they are often conducted as part of normal business, for example, a National Parks and Wildlife warden may conduct a stock check to ensure compliance with the National Parks and Wildlife Act and at the same time check the conditions of the animals being held, using their powers as an inspector. Similarly, PIRSA livestock inspectors routinely attend abattoirs and saleyards and, if they see a breach or marginal incident, can take action using the powers conferred on them by their appointment under the PCA. It is not possible to provide a reliable figure on the number of times these types of inspections occur as it is every day.

The Hon. M. PARNELL: I will pursue the answer the minister has just given and ask: why not in terms of the inspections? Without anticipating the minister's answer (which I would never do), discussions that have been had in animal welfare circles over many years refer to things like the legal advice is that we cannot do it. I remind members that the 1985 act we are amending contains inspection powers. The minister stated, in her second reading explanation, which on the principles of statutory interpretation should be a powerful message as to the intention of the legislature:

The powers of RSPCA inspectors will change. They will no longer be special constables but will have all the powers normally associated with inspectors appointed under legislation. They will have the power to enter any vehicle or premises where animals are kept for commercial purposes.

That seems a very straight forward explanation of the intention of the current legislation and it surprises me that we have not had these inspections up until now. I would be keen to hear the minister's explanation of why, under current legislation, these inspections have not been taking place.

The Hon. G.E. GAGO: I have been advised that routine inspections can only be conducted in accordance with either this act or another act, for example, the Livestock Act, the National Parks and Wildlife Act, or with reference to the current PCA Act. In the absence of suspicion of an offence inspections may be conducted only in the following circumstances: premises licensed under this act being used by the holder of a licence under this act for the purposes of an activity for which the holder is required to be licensed under this act; being used by the holder of an accreditation under the Meat Hygiene Act for or in connection with meat processing within the meaning of that act; or, at any reasonable time enter any premises or vehicle that is being used for holding or confining animals that have been herded or collected together for sale, transport or any other commercial purposes. That is the purpose and intention of the current bill before us: to enable us to improve our powers in respect of the way we are able to inspect these facilities.

The Hon. M. PARNELL: I appreciate that we are debating changes to the legislation, but it is important to get to the nub of this. The minister referred to animals being herded together for commercial purposes. Does that not include animals kept in intensive facilities, such as piggeries or battery hen farms?

The Hon. G.E. GAGO: The government has been advised that the term 'herded' does not apply to those activities in intensive facilities such as piggeries.

The Hon. M. PARNELL: Will the minister explain further the origin of that advice, and will she release it to the committee?

The Hon. G.E. GAGO: I will need to consider that request and provide that information at a later date.

The Hon. M. PARNELL: I want to go back to the issue in the Hon. Sandra Kanck's amendment that is specific, that is, the frequency of inspections, where the honourable member's amendment is 'at least once per year'. The minister referred earlier to a memorandum of understanding. Will the minister explain to us the status and current content of that memorandum of understanding in relation to this issue?

My reason for asking that question is that there was a reference in the minister's second reading explanation to such a memorandum. The issue as I understand it was that, rather than the Hon. Sandra Kanck's amendment, which is 'at least once a year', the government was committing to farmers that it be no more than once a year, which is entirely, I guess, the flip side of the coin. Do you go into these places at least once a year or, having been once, can you not go back again for more than a year? Will the minister clarify whether that is still the situation in the memorandum of understanding?

The Hon. G.E. GAGO: The MOU that is currently operating was signed in October 2007 by D & H, DWLBC, PIRSA and the RSPCA. To the best of my knowledge, it does not specify a particular number of times that a facility should or should not be visited.

The Hon. M. PARNELL: I thank the minister for her answer. Given what the minister said before about not wanting to be involved in operational matters (and if that was her primary reason for objecting to the Hon. Sandra Kanck's 'at least once per year' amendment), it is good to hear that that provision is no longer in the memorandum of understanding. Is there anything else in that memorandum that might be regarded as fettering the discretion of our inspectors in how they should do their job, when they should it and how frequently they should do it? It is one thing to have removed a section that provides for inspections no more than once a year, but I want to know what else is in that memorandum that might impact on the discretion of our inspectors.

The Hon. G.E. GAGO: The MOU has a number of pages and quite a lot of detail, as the Hon. Mark Parnell knows. I understand that he has a copy of the document. It is a public document. I invite members to access it and read it if they have any concerns. I am happy to make a copy of it available. However, to the best of my knowledge, I do not believe that there are any provisions that fetter the discretion of inspectors in an unreasonable way.

The Hon. SANDRA KANCK: I have a document here that reads in the present tense—'a memorandum of understanding is being developed between the agencies involved with the animal industries and which the roles and responsibilities of those agencies are stipulated'. The document states:

The memorandum of understanding further specifies that intensive industries establishment will not be the subject of a routine inspection more than once a year.

Will the minister categorically state that that did not make it into the memorandum of understanding; and, further, will the minister table a copy of that memorandum of understanding so that, when we resume debate later this afternoon, all members will be able to inspect that for themselves?

The Hon. G.E. GAGO: I have already answered that question on both fronts. I have made it clear that, to the best of my knowledge, any limits to the number of inspections does not exist in the current MOU. It is a public document, so it is already accessible to members of the public, including the Hon. Sandra Kanck. I have said that I am more than happy to make a copy available to members now. By all means, come over and have a read.

The Hon. C.V. SCHAEFER: I was unaware that it was a public document, although we have certainly heard a great deal about this MOU. My concern is whether, in fact, the South Australian Farmers Federation and the pork industry—any of the people who will be affected by this routine inspection, which is, as I keep saying, new to the act—were consulted in the construction of the MOU.

The Hon. G.E. GAGO: Given that the agreement is between inspecting bodies, all relevant stakeholders were consulted in terms of those that have responsibility as inspecting bodies. The broader industry was not consulted.

The Hon. C.V. SCHAEFER: At what stage, if any, in the construction of this bill were any primary industry representatives—and I do not mean the department of primary industries but, rather, actual practitioners—consulted? How extensively and over what period were they consulted? Was any agreement reached with them?

The Hon. G.E. GAGO: Indeed, there has been ongoing and extensive consultation throughout the various stages of the development of this bill. It started with the circulation of a discussion paper entitled 'The Review of Prevention to Animal Cruelty Act 1985: Discussion Paper', which is dated 14 April 2005. That was published and circulated and sent out to all the relevant stakeholders quite broadly throughout the industry. A draft bill was then released for public comment and was available on the website. So, that was broadly available, and comment was invited. There also have been meetings with SAFF and the pig industry and, of course, ongoing discussions and consultations with PIRSA.

The Hon. M. PARNELL: I invite the minister to clarify, for the benefit of the committee, the current status of the memorandum of understanding. I thank her for reminding me that I had a copy on my file, and I have asked for it to be brought up to me, but I want to check with the minister whether I have the current version. Mine is dated October 2007, and it is a photocopy bearing the signatures of Greg Leaman, Acting Chief Executive, Department of Environment and Heritage, signed on 25 October last year; Rob Freeman, Chief Executive, Department of Water, Land and Biodiversity Conservation, signed on 24 October; Mark Peters, Executive Director RSPCA SA Inc, signed on 25 October; and Geoff Knight, Chief Executive, Primary Industries and Resources SA, signed on 23 October 2007.

The appendix to that memorandum, under the heading 'desktop audits where quality assurance programs are in use' contains the following words: 'no individual facility will be the subject of a routine on-site inspection more than once annually'. Can I ask the minister to clarify that this is not the current version of the memorandum of understanding? Whilst it was signed, I have a photocopy that is stapled, and I do not have possession of the original document.

The Hon. G.E. GAGO: There obviously has been some confusion. The version of the MOU of 2007 to which the member referred is, in fact, the current version of the MOU. However, the appendix to which he referred is not a current appendix.

The Hon. M. PARNELL: I ask, for the benefit of all members, if the current version of the appendix could be tabled and circulated as soon as possible.

The Hon. G.E. GAGO: I have already indicated that I am happy to do that.

The Hon. SANDRA KANCK: When I asked the question about how many inspections of intensive livestock operations had been occurring—what were the figures for the present time—the minister was unable to give them. One of the reasons she gave was that the inspectors do not have that power. I want to draw to her attention to what section 29 of the current act provides. It states:

Powers of inspectors

(1) Subject to this section, an inspector may—

(a) at any reasonable time, enter any premises that are—

(i) licensed under this act; or

(ii) being used by the holder of a licence under this act for the purposes of an activity for which the holder is required to be licensed under this act; or

(iii) being used by the holder of an accreditation under the Primary Produce (Food Safety Schemes) Act 2004 for or in connection with meat processing within the meaning of that act;

(b) at any reasonable time, enter any premises or vehicle that is being used for holding or confining animals that have been herded or collected together or sale, transport or any other commercial purposes;

Subsection (c) provides that, where the inspector believes that an offence has occurred, it gives them those extra powers to break and enter. For the minister to say that the inspectors do not have powers and therefore it is difficult to give those figures is an absolute nonsense, when this has been in the act for 30 years.

The Hon. G.E. GAGO: I have already answered in detail the circumstances and provisions around inspections. I have already recorded that into Hansard and listed the specific circumstances in which that can occur. So, that is already on the record.

The Hon. D.G.E. HOOD: I move:

Page 11—

Line 3—Delete 'an inspection' and substitute: a routine inspection.

Lines 6 and 7—Delete paragraph (a) and substitute:

(a) give the occupier of the premises or the owner of the vehicle notice of the proposed inspection as follows:

(a) if the inspector reasonably suspects that there is in or on the premises or vehicle an animal in respect of which an animal welfare notice or animal welfare order is in force—the inspector must give the occupier or owner reasonable notice of the inspection;

(b) in any other case—the inspector must give the occupier or owner at least 24 hours notice of the inspection; and

I think the Hon. Sandra Kanck used the word 'compromise' in introducing her amendment; this is an attempt to do the same. The opposition's position originally was to allow a 72-hour notice period, as I understand it, for inspections. The government's position was substantially less than that. This is an attempt to find a middle ground. The reason for that is that the truth is, and I think it has been acknowledged by all parties in this debate, that the overwhelming majority of sites and individuals that have the responsibility for caring for animals are compliant; in fact, it is in their interests to care for those animals. So, why create a situation where the onus almost appears to assume, in some cases, that people are doing the wrong thing, which is certainly not the case in the absolute overwhelming majority of cases?

This amendment will simply delete the word 'reasonable' in terms of notice for routine inspections only, and introduce the specific requirement of 24 hours. Some may argue that 'reasonable' is a reasonable term to use in this case, but this amendment will just specify exactly what that time frame should be. Again, in doing so we should acknowledge that the overwhelming majority of sites and people do precisely the right thing.

I should add that I have discussed this at some length with representatives from the RSPCA and they were happy to agree to the 24-hour time frame as being a reasonable length of time. They said that in many cases it would in fact be a greater length of time than that, so 24 hours was quite a good time frame from their perspective. I have also discussed it with a number of people from the various affected industries and they also seem quite happy with this as a good compromise position, again reiterating to me that it was in their interests to look after their livestock or the animals for which they had responsibility.

I thank the opposition for its indication of support for the amendments. I think it is worth noting that this only deals with the issue of routine inspections. Of course, if there has been a history at a site of wrongdoing then, as far as I am concerned, virtually immediate access should be granted, and this amendment will not impede that in any way, shape or form. So, I commend the amendments to members.

The Hon. G.E. GAGO: I have previously set out the government's position in relation to providing reasonable notice for routine inspections. The government does not support that there is 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 will not legislate more precisely. Anything specified in the act could be inappropriate, depending on the specific circumstances.

It is essential that the public have confidence in the routine inspections, that the public can trust that these inspections truly will expose any cruelty or any breaches in the code. To, in every case, require notice of a set time period may well shake the confidence of the public in the robustness of the routine inspection process, and it is likely that allegations could be made, justly or unjustly, about clean-ups, which will cast an unfair pall over the animal husbandry industries.

Industry benefits from not only following the law but from clearly being seen to follow the law are, obviously, a clear benefit for the industry. Routine inspections can only work to the advantage of industries doing the right thing, particularly in such a sensitive area where community feeling can and has been known to run very high at times. To fetter them is to risk losing public confidence.

The bill also requires reasonable behaviour by inspectors. As inspectors are appointed by the minister, the Public Service Management Act applies, thus ensuring appropriate and lawful behaviour and penalties for inappropriate action. Inspectors would also be required to comply with the code of conduct for public sector employees. The government does not support the amendment, for those reasons outlined.

The Hon. M. PARNELL: We are now getting to the real nitty-gritty of this bill, and I would argue that this clause is the most critical in the whole bill. My view is that the RSPCA needs to have the ability to enter intensive facilities to inspect them at any time. Giving a notice period, such as the honourable member has moved—in fact, a notice period that is any more than a very short one—gives those very few rogue operators in the intensive animal industry a chance to hide evidence of their poor practices. My view is that giving any notice is a massive step back from the current act.

The Hon. Sandra Kanck has read into Hansard the provisions of the existing act. For the life of me, I cannot see how anyone—whether it is crown law or someone else—could possibly have reached the conclusion that thousands of animals gathered together in a piggery or a battery hen facility does not constitute animals herded together for a commercial purpose. I just cannot, for the life of me, understand that convenient interpretation. I say 'convenient' because it has let the government off the hook in having to properly fund our animal welfare organisations and, in particular, the RSPCA.

The minister has referred to allegations that are made against intensive animal facilities. I agree with the Hon. Caroline Schaefer that the vast majority of people engaged in the farming industry are doing so according to the law, they are doing so with compassion, and they will require very little attention from inspectors. However, it is more than just allegations. I remind honourable members of a matter that I raised at great length here in the Legislative Council, and that was the case of the Ludvigsen piggery. In that case, it took only 24 hours for the operators of that facility (after a whistleblower had reported it to the RSPCA) to hide the evidence and to bury the pigs—less than 24 hours for the evidence to be hidden.

Many of us will have seen television footage of the pigs being buried. Once the RSPCA was in possession of video evidence—that was obtained, as I understand it, by Animal Liberation—then inspectors did attend the piggery and they had to exhume the carcasses in order to have the evidence to then bring what turned out to be a successful prosecution. It does not take very long: 24 hours is plenty of time to clean up your act and to hide the evidence.

In my previous life as an environmental lawyer, I was asked to help some people in relation to a battery hen issue. Again, it was a situation, as described by the Hon. Sandra Kanck, where people attend these facilities without invitation, usually to take video evidence. My recollection in that case was that a covert operation during the day on that facility, before any inspectors had arrived, showed the overcrowded cages being rapidly emptied of birds, which were being stuffed into sacks and loaded onto trucks and taken away. Twenty-four hours is a long time in which to be able to hide what you are doing.

I do not want to be on the record here saying that I am talking about a majority of South Australia's farmers or a majority of intensive animal facilities. We are talking about a minority of rogue operators.

It is also important to look at this from the perspective of the whistleblowers. These facilities are not open to you and me; they are not available for public inspection, so we cannot just walk into them. There are very good reasons for that, including biosecurity and other reasons why the public should not have routine access to these places. That means that, when things go wrong, it is often left to the employees to alert authorities to the fact that things are wrong and that action needs to be taken.

The beauty of an inspection system that requires no notice is that all operators are on notice that, according to the law of South Australia, inspectors are allowed to turn up. They are allowed to turn up, knock on your door and say, 'We are here to do an inspection', and then a discussion commences on whether there are any particular reasons why that could be inappropriate at that time. That is the notion of reasonable notice—knocking on the door.

We are discussing the Hon. Dennis Hood's amendment, but it is the same as all the others. The options we have before us are: the inclusion of a 24 hour notice period; my amendment which advocates the removal of a notice period; and the government's position in the bill which is one of 'reasonable notice'. I will move my amendment later when it is appropriate, but I want to put on the record now that I appreciate the honourable member's seeking a compromise, which is something that those of us on the cross benches have become quite good at in the past couple of years.

It is an opportunity to look at where the different parties sit and seeing whether we can get a midpoint that might satisfy everyone because, overwhelmingly, I want this legislation to go through. This bill contains some good reforms. I would like to see it come into law. So, I do not criticise the honourable member for seeking a compromise, but I remind him and other members that, whilst 24 hours seems to be a fairly short period, a lot of damage can be done in that time. Given that we are talking about the pointy end when we must deal with rogue operators who require our attention—and although most of them will not, some of them do—even without any specific allegations just turning up puts every one on notice that we all need to obey the law all the time.

Of course, once suspicions have been aroused through evidence, other provisions kick in, as the Hon. Caroline Schaefer said before. But really we run the risk of missing the proper investigation of some of these facilities if we, as a matter of law, say that no inspector is even allowed to attend on a routine basis with other than 24 hours' notice.

The Hon. C.V. SCHAEFER: As I have indicated previously, the Liberal Party will be supporting this amendment. My concern has always been—and the lawyers continue to argue with me—that 'reasonable' is too subjective. My idea of 'reasonable' does not line up with Mr Parnell's idea of 'reasonable'. I have made it quite clear that our original amendment advocating 72 hours was because we had been lobbied specifically by the pig industry under this legislation. An operator may be accompanied by a vet. There is only one specialist pig vet in Australia who would have to fly from Victoria for such an inspection. However, as I have said, there is provision for the owner or operator to be accompanied, so I would assume that, after some negotiation, time to get that vet would be given. As Mr Parnell has rightly pointed out, we have to compromise in this place. At least 24 hours' notice is some notice, rather than the word 'reasonable' which I find to be quite unreasonable.

The Hon. Mark Parnell, in his last contribution, talked about the pointy end when referring to rogue traders, but the minister has an amendment yet to come which inserts that no notice is required to be given of a routine inspection of premises or a vehicle in or on which an inspector reasonably suspects (and there is that word again) that there is an animal in respect of which an animal welfare notice or animal welfare order is in place.

So, there is an attempt to allow for random inspections of rogue traders. There is nothing in this section to do with routine inspections, and that excludes the option of what would take place now, that is, for a report by staff or whomever, of an act of cruelty to be put forward and for a random inspection process to be put in place.

I remind the committee that this section applies to routine inspections where there is no known cruelty or known harm going on. We are talking about our assumptions of animal husbandry. My assumption is that if people want to make money they will run their stock well. Those of us who know anything about stock know that they do not do well if they are ill treated, unhappy or ill. My assumption is that there are not many rogue traders out there, and those who are, first, will go broke—and the sooner the better as far as I am concerned.

The Hon. M. PARNELL: Just a couple of issues to clarify, and I thank the honourable member for reminding us of other amendments to come. The difficulty has been that the RSPCA historically has been reluctant to form a position based on anonymous tip-offs. On my understanding, the traditional view is that they needed harder evidence than that, which puts the whistleblower in an invidious position.

Another issue the Hon. Dennis Hood mentioned was in relation to the view of the RSPCA in relation to the amendments. One of things I found most curious as a member of the RSPCA and in dealing with it is that its position depends on who you talk to in the organisation. I was at the annual general meeting of the RSPCA and was there during a successful vote on the floor of the AGM by the rank and file membership, which said that unannounced random or routine inspections were what the organisation wanted, and that is a resolution of the organisation at its highest decision making level. I understand the council of the RSPCA—the executive—does not necessarily share that view entirely. The one thing they all have in common is that they want the best regime and a fair regime.

My objection to this amendment is not an objection to 24 hours per se, because that could well be a very appropriate amount of time for the RSPCA to give. For example, if an inspection was to be conducted at a remote country location, it would not, in the absence of any other suspicion, make much sense for a team of people to turn up, only to find that the owner was away and there is no one there to let them in or deal with them. My problem with the amendment is that we are enshrining it in law in all cases; in other words, we are effectively interfering with the day-to-day operations, as the minister said she was reluctant to do.

My view is that I am prepared to trust that the RSPCA inspectors will behave appropriately and fairly. They do not want to waste their time turning up to facilities when there is no one there—although the fact of there being no-one there may give rise to a suspicion of whether the animals are being properly looked after—but they will want to make their work as effective as possible and they will give some notice. It is best to leave the discretion up to the inspectors concerned.

The two ways of leaving it open to their discretion are either to include the word 'reasonable' as exists in the current bill or to require no notice period which, under legal interpretation, effectively means reasonable. We can either state it explicitly or we can imply it in the legislation.

The danger for me with 24 hours is that that becomes the standard in every case other than those cases where a suspicion is formed. I think we need to remember that the amount of times when the inspectors simply knock on the door and say, 'We're here', is likely to be quite small. I do not think there is any intention by the one intensive animal inspector to harass our farmers. We have had the figures before. They will not get out to them very often. There are a lot of facilities but there are not many inspectors. I say that we should leave some discretion to our inspectors as to how best to do their job, and let us not constrain them to always have to give notice because chances are there may be someone who we want to catch who does escape the net because of that regime.

The CHAIRMAN: The Hon. Mr Parnell, without moving it, is speaking to his amendment. Before we break for lunch, I will ask the Hon. Mr Parnell to move his amendment and the Hon. Mrs Schaefer to move her amendment.

The Hon. C.V. SCHAEFER: I have withdrawn it.

The CHAIRMAN: You have withdrawn only amendment No. 9, not your amendment No. 10. I will get both members to move their amendments and then we will adjourn.

The Hon. M. PARNELL: Thank you for your indulgence, Mr Chairman. It is difficult in the debate to separate the issues. I move:

Page 11, lines 6 and 7—

Clause 11, inserted section 31(1)(a)—Delete paragraph (a)

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

Page 11, line 18—

Clause 11, inserted section 31(1)(c)—Delete 'reasonable steps' and substitute:

Such steps as are necessary in the circumstances.

I do see this amendment as slightly different from all the other amendments which refer to the amount of notice that needs to be given.

Progress reported; committee to sit again.

[Sitting suspendedfrom 13:02 to 14:17]

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