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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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CRIMINAL LAW CONSOLIDATION (PROTECTION FOR WORKING ANIMALS) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. T.A. FRANKS: In my second reading contribution late last night I asked the government at what point they contacted and consulted with the RSPCA with regard to this bill. First, I wanted the date on which the RSPCA was contacted about this bill and what their feedback was. I also wanted to know what their response was to the Law Society's concerns that under current laws of the Criminal Law Consolidation Act 1935 there are also three offences that already cover this ground. I refer both the minister and members to sections 84, 85(3), 85(4) and 85A. I outline for members that these sections make it an offence, without lawful excuse, to damage another's property, which includes an animal intending to damage the property, i.e., the animal, or being recklessly indifferent as to whether the conduct so damages the property, and that has a maximum penalty of 10 years.

My question is twofold. In what capacity and on what date was the RSPCA consulted, and why were these particular sections of the Criminal Law Consolidation Act 1935 not seen as a more appropriate course of action, given that they have a higher maximum penalty?

The Hon. G.E. GAGO: In response to the question that the Hon. Tammy Franks asks in relation to consultation with the RSPCA, I have been advised that the RSPCA was not asked for its input in relation to this bill. While the bill obviously addresses harm to animals, it is not aimed at the type of long-term abuse or neglect of animals that the RSPCA is involved in preventing and prosecuting. The type of conduct being targeted by this bill is really of a different type of category. Prosecutions under this bill will be undertaken by police or the DPP, rather than the RSPCA undertaking prosecution of the offence, as commonly occurs with offences under the Animal Welfare Act. Therefore, consultation with the RSPCA was not considered necessary for this particular bill.

In relation to why this bill is not enhancing the Animal Welfare Act, whilst the Animal Welfare Act does have provisions that address the ill-treatment of animals, it does not distinguish between pets and animals used in various working roles. This bill creates a new category to cover police dogs, etc., and recognises their important functions, in particular the significant costs associated with their training and preparation. In order for these animals to be protected by the new provisions they need to have completed relevant training courses. I outlined costs last night of $25,000 for a police dog and up to $70,000 for a police horse.

These animals are exposed to an increased risk of harm due to the functions they perform and the service they provide in protecting the community, and others. The bill also increases the maximum term of imprisonment for those convicted under a new offence to five years. We have also included new provisions to allow the court to be able to make an order that a person found guilty of an offence is required to pay compensation, and I outlined last night that that could cover veterinary costs, etc. We believe that these provisions will act as a deterrent and will, as a consequence, provide additional protection to working animals.

The Hon. T.A. FRANKS: I will repeat my question to the minister: given there exists under the Criminal Law Consolidation Act 1935 three current offences with respect to harm to animals—section 84, section 85(3), section 85(4) and section 85A, which indeed have a maximum penalty of 10 years—why are they not being employed here in this current situation? Why is the government in fact diminishing the maximum penalty that could potentially be available by endorsing an approach where we take on the provisions of this bill rather than a range of sections which could currently be employed which have a maximum penalty of 10 years?

The Hon. G.E. GAGO: I am advised that the section the Hon. Tammy Franks refers to is property law and covers any property at all. I am advised that using such property law offences does not give specific recognition to working animals. Our bill also introduces things like the ability to include compensation provisions, and I have outlined those, for vet treatment, rehabilitation, etc., that are not currently included in the property law provisions, as I am advised.

The Hon. S.G. WADE: I thank the minister for the answer to the Hon. Ms Franks, but it does raise in my mind the issue of whether or not a police dog is regarded as the property of the police officer, for the purposes of the Criminal Law Consolidation Act.

The Hon. G.E. GAGO: The honourable member is correct. For the purposes outlined, a working dog would be considered the property of—I do not know whether it is the officer or SAPOL generally, but it would be one or the other. However, as I have outlined, it was the intention of the government to give due recognition to the status and role of working animals and the important service they provide to the community and the increased risk to them that relates to the role they play. So, it was deemed that providing a separate piece of legislation to give that due recognition was an appropriate way to go. Also, as to the issue of compensation, it is easier to deal with the issue of compensation in a new piece of legislation than to try to patch up an existing provision. Basically, it was the judgement and decision of this government to give the due recognition it believes working animals deserve.

The Hon. T.A. FRANKS: Is the government comfortable that working animals deserve a maximum penalty of five years rather than 10 years? Will the government be pursuing that and indicating that that is the government's preferred course of action in these cases, which is obviously a diminution of the seriousness of this crime?

The Hon. G.E. GAGO: The maximum penalty of 10 years covered in property law considerations covers the most expensive property on the land—for instance, the Mona Lisa, and there are probably other property items that are worth more than that—so that the 10 years is a maximum penalty to reflect those properties that are of extremely high value, for instance. The government felt that a maximum of five years was relative and relevant for the particular responsibility or the particular penalties that we want to cover; that was our judgement. If the Hon. Tammy Franks wanted to move an amendment to make it a maximum of 10 years, she is quite at liberty to do that. The government would consider that but I think probably the DPP would think it is complete overkill, but that is up to the member.

The Hon. T.A. FRANKS: What parts of the Criminal Law Consolidation Act will be used in the case of Koda in relation to the perpetrator who is alleged to have stabbed this police dog? What particular charges have been laid in that case?

The Hon. G.E. GAGO: I have been advised that the charges laid against Koda's assailant, and the status of the prosecution in relation to that, are 11 charges, three counts of serious criminal trespass, four counts of theft, one count of failing to pay a taxi, one count of attempted robbery, one count of assaulting a police officer and one count of ill-treating an animal (which obviously would fall under the Animal Welfare Act). A count of property damage of the dog was withdrawn, and the charges are next before the Magistrates Court, I am advised, on 13 November.

The Hon. T.A. FRANKS: Just to clarify, because the minister was a bit softly spoken at the end there, there was indeed a property damage charge, but it has been withdrawn, and that was with regard to specifically the harm caused to the police dog Koda?

The Hon. G.E. GAGO: Yes, I am advised that a property charge was withdrawn.

The Hon. T.A. FRANKS: That does beg the question why, and why that particular charge was not pursued. Does it have any relevance for this bill before us in terms of charges of a similar nature facing similar barriers? It would be useful to the council to know why that charge was withdrawn, or those charges were withdrawn.

The Hon. G.E. GAGO: Those decisions generally relate to operational matters. It is a decision that would have been made either by the DPP or police to withdraw the charge of property damage. They are usually based on consideration of legal issues, evidence available, etc. They are based on operational matters, and that detail is never released, for obvious reasons.

The Hon. T.A. FRANKS: This is my final question on this section. That is useful information to have, to know that we have reverted to the Animal Welfare Act with regards to the specific case of Koda, although somewhat disturbing, given that the RSPCA has not been consulted. It has a great deal of expertise with regards to prosecution under the Animal Welfare Act. What I would say is, will any provisions in this bill be able to assist Koda? I understand that it is a matter that this bill will be an act to be proclaimed, so there is no retrospectivity. Is that the case? Will there be any ability for this act, once proclaimed, to be used in the case of Koda the police dog?

The Hon. G.E. GAGO: The bill before us has no retrospective capabilities.

The Hon. S.G. WADE: I was wondering if the minister might be able to advise whether the government is aware of any past events—and obviously as the minister said, this bill has no retrospective effect—in other words, harm to police dogs, police horses and so forth, that might have been able to be prosecuted under this legislation if it had existed at that time?

The Hon. G.E. GAGO: I did address these matters in my second reading summary remarks, but, just for the benefit of the honourable member, we are not aware of those numbers, because the statistics are not collated in that way. The statistics around what type of animal or what capacity they are working in, for instance, are not recorded or collected.

The Hon. K.L. VINCENT: I have a number of questions and I will start them off by asking what is the government position on the Law Society submission to them, which stated very clearly that it is their opinion that this bill creates unnecessary complexity from a legal perspective. Why is it that this issue rises above what would appear to me to be good legal sense?

The Hon. G.E. GAGO: With all due respect to the Law Society, the government disagrees with it that this bill creates unnecessary complexity, and I have already made quite clear the intention of the government, namely, that it has chosen to put together designated legislation that reflects the value of working animals and the special role they fulfil in serving the community, and we chose this particular legislative path.

The Hon. K.L. VINCENT: Is the minister of the opinion that these amendments could be included in an amendment to the existing Animal Welfare Act, thereby circumventing some of the legal confusion? I suppose my question is: do they have to be in a separate act and, if so, why?

The Hon. G.E. GAGO: I am advised that anything is possible. Our parliamentary counsel are wonderful people and you give them a task to do and they can just about amend any piece of legislation to fulfil any outcome you want to achieve. The answer is, yes, there are a number of ways we possibly could have chosen to achieve these type of outcomes, but I have made very plain that this government does not believe this legislation creates unnecessary complexity. We believe it is quite a simple and straightforward piece of legislation. We have chosen to do it this way because we believe working animals deserve that level of recognition.

The Hon. K.L. VINCENT: I now have a number of questions as to a variety of animals that are not currently covered by the bill. I stated in my second reading speech last evening that guide dogs are indeed covered, but it is my understanding that, for example, a hearing assistance dog, or a dog assisting a child or person on the autism spectrum or with an intellectual disability, would not be included. I am interested to know the government's reasoning on this: why guide dogs and not other disability assistance dogs?

The Hon. G.E. GAGO: I am advised that the government has the ability to prescribe other animals to be working animals, and we understand that there are possibly a number of other animals that could be considered to be working animals, and we are happy to consider those if there is a need. If information can be presented, we are happy to look at that and to be advised by any groups that have specific needs and would like to draw them to our attention. There is flexibility within the regulation to be able to add additional working animals to these arrangements, if needed, and we would be happy to do that.

The Hon. K.L. VINCENT: The bill refers in section 83I(4)(b)(i) to death or serious harm that occurs related to the commission of an offence by the defendant of a person, or a person in the company of the defendant. In the event that the offending has been carried out by a person in the company of the defendant and there is no reference to the defendant having any knowledge of their companion's offending, is the government concerned that under these circumstances the bill leaves the public unable to know whether or not their conduct in dealing with a potentially aggressive animal is lawful?

The Hon. G.E. GAGO: I am advised that, no, we are not concerned. We believe that section 83I(3) deals with that. It states:

In proceedings for an offence against subsection (1), it is a defence for the defendant to prove that he or she did not know, and could not reasonably have been expected to have known, that an animal the subject of the charge was a working animal.

In most instances we believe that it will be incredibly obvious: the police are often in uniform and yelling, 'Stop, desist,' or whatever, and it is obviously a mounted police horse. In most cases it will be quite obvious that it is a working animal. As I said, there is a defence clause and if a person is not able to reasonably know that it is a working animal then that will be a defence they could use.

The Hon. K.L. VINCENT: However, it is my understanding that 83I(4) could, in fact, remove the defence available under 83I(3). Could the minister provide clarity as to that?

The Hon. G.E. GAGO: I am advised that the only time that this provision would not exist is where a person was actively resisting arrest.

The Hon. K.L. VINCENT: But my question was with regard to a person in the company of the person committing the offence. That person in the company of a person committing the offence could not be resisting arrest because they are not in fact being pursued for the purposes of arrest. My question relates to the person in the company of a person committing an offence being able to defend themselves.

The Hon. G.E. GAGO: The circumstances that the Hon. Kelly Vincent outlines are highly implausible. I think what she is asking about is the case where the defence provision does not prevail is when a person is committing a crime and actively resisting arrest. You would have a police officer and a dog and the dog will be going at the person who is a resisting arrest and their attention and efforts would be targeted on the person resisting arrest.

They are highly trained animals that respond very well to very specific commands directed at very specific objects and people, so for the Hon. Kelly Vincent to suggest that there could be a person accompanying that person who is actively committing a crime and/or actively resisting arrest with a dog confronting their companion and that somehow the companion stabs the dog not knowing that the dog is a working animal is just bordering on the ridiculous really. As I said, it is highly implausible.

The Hon. S.G. WADE: Perhaps I suffer from an overactive imagination, but actually I do not find it implausible. What about a police horse? A police horse is involved in a public demonstration. There are all sorts of people involved, some actively, some inactively. What if a person was driving through that area and perhaps they hit the horse? I think that we just need to get out of the situation of thinking it is a police dog in pursuit of a suspect. I think the Hon. Kelly Vincent raises interesting issues in terms of particularly group contests, particularly horses and public demonstrations.

The CHAIR: I will take that as a comment.

The Hon. S.G. WADE: Yes.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 1 [Broke–1]—

Page 3, after line 6 [clause 4, inserted section 83H(1)]—

After the definition of correctional services dog insert:

customs dog means a detection dog used by the Australian Customs and Border Protection Service in relation to the operation and enforcement of the Customs Act 1901 of the Commonwealth;

I was hoping to have a further amendment tabled that is on its way. I am alerting the house, particularly you, Mr Chair, to the fact that I do have a further amendment which just basically enshrines the police matter, but not the matter regarding the general community, when it comes to amendment No. 5 where it says, 'where the death or serious harm is caused by a police officer acting in the course of his or her official duties and functions'. I will be removing the further subsequent parts to that. I am just letting members know that and I will speak more to that clause in a while.

There are two key elements here. One is to further tidy up dogs and animals that should be prescribed within the legislation. The government has done some of that already when it actually brought in guide dogs, but I believe that there was some sense in describing some others. The key to this is to enshrine in legislation those animals, rather than leave it to regulation for the reasons that I said last night. Too much is happening outside of the chamber in regulation, often with unintended consequences, often then having to be addressed through a disallowance or the like.

We are here as legislators to legislate and I believe the way to do that is to enshrine the description of the dogs in law and not rely on those good people in government to bring a regulation in that suits them at an appropriate time and may surprise the general community when we can describe these animals here now.

The Hon. T.A. FRANKS: I ask the mover of the amendment what consultation he has had and why he has decided to restrict the possible animals that will come under this legislation? Has he had feedback from various groups, and can he outline which groups they were and what those groups have said to him?

The Hon. R.L. BROKENSHIRE: I have probably done a little bit more consultation than the government has clearly done on this. I will probably get a tick for that. I have had consultation with a cross-section of the community as well. For personal reasons I do not want to disclose my constituent base and I do not believe I have to, unless the Chair overrules me and tells me that I am going into the cell if I do not. The bottom line is that the initial intent of this was to address a very tragic situation with a working dog, the police dog Koda. Straightaway, when the government announced that, it clearly had to bring in the mounted division as well.

There has been some broadening of it, but I think there are too many unintended consequences that could cause issues if we rely on regulation. So the short answer to my colleague, the Hon. Tammy Franks, is that, yes, I have had discussion with some sectors. I have a basic policy—which I will try to reinforce more next term, as one member—to, wherever possible, describe this stuff in the legislation. Alternatively, if disallowance of regulations is to occur then once you disallow that is it; not just reintroducing it. That is a key frustration of mine that I have harped on about for the last few years.

The Hon. T.A. FRANKS: In discussions in our office we wondered why military dogs have not been included in this legislation, so I am asking the mover of the amendment, the Hon. Robert Brokenshire, why military dogs have not been included in his amendment. Given that his amendment then shuts the door behind any other animal's inclusion in this legislation, what reason is there for not including military dogs?

The Hon. R.L. BROKENSHIRE: I have not put military dogs in there; I put the dogs in there that were raised with me through discussions with various organisations.

The Hon. G.E. Gago: Secret discussions.

The Hon. R.L. BROKENSHIRE: Cabinet-type discussions. The fact is that if members want to move other amendments to include other dogs, I am very happy to consider those.

An honourable member: Why don't you support the regulations?

The Hon. R.L. BROKENSHIRE: For the reason that I do not trust the government of the day with regulations. I have said that; I cannot be clearer than that. I have put in there the dogs that I think are most at risk. Someone can move an amendment if they want or, of course, we can always bring back legislation at another time with an amendment to further describe other animals—notwithstanding the fact that there has been a debate by some members in here who actually say that it is already covered under the Animal Welfare Act.

The Hon. T.A. FRANKS: With respect, I am not sure that the honourable member has been listening to the debate, given that the Criminal Law Consolidation Act already covers this area and has a greater penalty than the current law we are about to pass. However, further on from that point, why have hearing dogs not been covered in the honourable member's proposed amendments to this legislation (which, as I said, then shuts the door on any other animal's inclusion)?

The Hon. R.L. BROKENSHIRE: They are the animals that I requested parliamentary counsel describe in the amendments. The answer is as simple as that. If other members want to put other dogs into the debate, bring them in.

The Hon. G.E. GAGO: The government opposes this amendment. Customs dogs work under the Australian Customs and Border Protection Service, which is obviously a federal government agency. Any animals used by the Customs service to perform their function is the responsibility of the federal government, and it is not the responsibility of the South Australian government to legislate for their protection. The federal government could, by all means, move to do the same thing for their animals, and should be encouraged to do so.

In any event, with the sorts of dogs we have included we have looked at issues around their training and other requirements. The skill and expertise needed and the investment in the animal are to be considered. The honourable member has not included any details around those things, details of any specific training courses, etc. That has not been provided; there is not a lot of detail there either. However, basically it is federal property.

The Hon. S.G. WADE: The opposition does not need any evidence that the Customs dogs are trained animals and that harm to them would be not only at the cost of the service they serve but also at the cost to the wider taxpaying community. We are a bit surprised at the narrow focus of the particular suggestion because, in the same work space in which Customs dogs are working, there are often AQIS dogs. I would not like to see this to be a case of the labradors discriminating against beagles!

Be that as it may, it is a disappointment to the opposition that we received these amendments after our scheduled party meeting on Monday afternoon. So, whilst we are not closed to the idea in a policy sense, we have not had the opportunity to enjoy the collective wisdom of our party room, and we will not be supporting the amendment.

The Hon. K.L. VINCENT: Dignity for Disability's position on this bill as a whole is well known by now, so it will surprise none to know that we also oppose this amendment. I wonder if at this time it would appropriate for me to ask some further questions of the mover. I did try to get your attention previously, Mr Chairman, but I was not successful. With your permission, sir, I would like to ask some further questions.

The CHAIR: You have the floor.

The Hon. K.L. VINCENT: The first question is: does the Hon. Mr Brokenshire consider that, by not allowing more animals to be added to this law by regulation, it could lead to a situation where we would, in fact, see more kneejerk responses where an animal not covered under Mr Brokenshire's definitions is harmed, there is a public outcry, and we then come back and amend the bill for that particular animal?

The CHAIR: The Hon. Mr Wade, do you have a point of order?

The Hon. S.G. WADE: It seems to me that the Hon. Tammy Franks and the Hon. Kelly Vincent are asking the Hon. Mr Brokenshire to justify an amendment he has not moved: he has not moved an amendment in relation to the regulations. If they want to challenge him on that point, that would be the appropriate place to do it. He has not had a chance to put his case yet.

The CHAIR: Well, he has moved his first amendment, and there has been a general broad discussion about that amendment, and that is how I see the Hon. Ms Vincent going.

The Hon. K.L. VINCENT: Your advice, sir: shall I proceed?

The CHAIR: Yes.

The Hon. K.L. VINCENT: Thank you. My first question for the Hon. Mr Brokenshire: can he foresee a situation where this lack of adding animals by regulation could lead to further knee jerking in that an animal not covered by his definition could be injured, we would then come back and amend the legislation for that particular animal, another incident occurs where a different animal again is injured, we come back to amend the legislation for that animal and so on? I guess to put it briefly, my question is: does the Hon. Mr Brokenshire concede that this process of restricting them by legislation could, in fact, hinder the process that he is, as I understand it, trying to make simpler?

The Hon. R.L. BROKENSHIRE: No, I do not concede that. I was listening to the debate, by the way, and I acknowledge the good intent of my colleague the Hon. Tammy Franks when she asked a question about penalties and so on under another act and why that act was more powerful from that point of view than this act.

I also acknowledge the Hon. Kelly Vincent, another colleague, and her comments yesterday, when she publicly said that she does not agree with what the government is doing. The issue, from my point of view, is that, after a tragic incident, the government did make a decision to introduce this legislation. The government has since broadened it as to what would be included and not included. I have attempted to broaden it further, and we will see what the numbers in the committee finally work through. As I have said, I have done this because at least I will know that, if they are going to include some, the dogs I believe definitely should be included are included. I have no idea what the government may or may not include if the government does it through regulation.

The Hon. S.G. WADE: In relation to the debate about whether or not the honourable member is closing the door, that relates to a later amendment. However, I strongly believe that the Hon. Mr Brokenshire's proposed approach, which is to prescribe in legislation and to remove the regulation-making power, is actually the best way that this parliament can protect itself from a knee-jerk response. Cabinet can add an animal every time it meets; we can have one on Monday, one on Thursday and one on the following Monday, and we can keep going indefinitely. If this parliament wants to avoid a knee-jerk reaction, the best way is to support the Hon. Robert Brokenshire in his amendment to remove the regulation-making power.

The Hon. K.L. VINCENT: I think the Hon. Mr Wade raised a completely unnecessary lecture, but—

The Hon. S.G. Wade: I'm allowed to make points.

The Hon. K.L. VINCENT: You are, to the committee, not to me. Clear? Right. I have a further question of the Hon. Mr Brokenshire. He has made it somewhat clear that he is unwilling to disclose the exact individual groups with whom he has consulted on this issue, but I am interested to know whether he would be willing to change that position given that it is difficult to understand how the Hon. Mr Brokenshire has reached the position that the particular animals that he has selected to define in this definition are more important than the ones he has not. For example, how does the Hon. Mr Brokenshire know that the animals that he has selected are more important than a dog assisting someone in the autism sector or a hearing dog or a companion dog to someone with a psychiatric illness? On what grounds has he reached the decision?

The Hon. R.L. BROKENSHIRE: I have reached the decision based on the grounds that I have tabled before this parliament. If other members want to broaden that out, I encourage them to go ahead.

The Hon. S.G. WADE: I make the point to the committee that it was the government that chose to limit it to guide dogs. It was the government that chose to exclude other accredited disability assistance animals. I fail to see why the Hon. Mr Brokenshire has to justify why he has chosen to add a related animal, because this animal is actually related to law enforcement. A guide dog is not related to law enforcement. I would be interested to know in that sense why the government thought a guide dog needed to be specifically prescribed in the legislation and other animals did not. As I said, we will not be supporting the amendment but we certainly do not believe that the Hon. Mr Brokenshire needs to, if you like, provide a statutory declaration as to who is consulted on an amendment; after all, the government has not been asked to do that in relation to its listing of animals.

The Hon. T.A. Franks: Yes, it has. I did ask the government as well.

The Hon. G.E. GAGO: And I have answered the question. Let's get on with it. This is a circus; it is embarrassing.

The Hon. T.A. Franks: They're both lacking in consultation.

The CHAIR: Order! The Hon. Ms Franks.

The Hon. T.A. FRANKS: I indicate that the Greens will be supporting amendment No. 1 [Brokenshire-1] with regard to Customs dogs. Of course, with regard to regulations and the ability to add other animals, that is a completely different matter. However, it should be seen in the context of if we do add animals here, we need to consider whether or not we do, as I say, close the door on the ability to add other animals. Indeed, cabinet may well decide on a new animal every Monday and Thursday, but I would prefer to see that done in regulations, which are disallowable by this parliament, rather than having to debate this bill time and time again with a different name each time and a great new photo opportunity for a potential government.

With that, we support this particular amendment, but we certainly do not see them as consequential. We indicate just on our very scant consultation—which I suspect may be more substantial than other members' consultation processes, and I am not differentiating between the opposition, the crossbench, the Greens or the government on that because we really just have not had the capacity or the time to do that due diligence—that hearing dogs, military dogs and, indeed, quarantine dogs are all possibly worthy and obvious examples, but I am sure there are many other examples.

Amendment negatived.

The Hon. S.G. WADE: I move:

Amendment No 1 [Wade–1]—

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

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

This amendment proposes to extend the definition of working animal to include a dog used by a local council to enforce council by-laws, conduct security patrols or protect property in the council area. These dogs are used by local councils for a range of law enforcement purposes and it seems logical to the opposition to include them in the definition of working animal and afford them the same protection as other law enforcement animals. This is particularly the case in many rural areas where, since 2008, the District Council of Ceduna and the Port Augusta City Council have operated security canine patrols.

The patrols are authorised officers of the council with the authority to enforce council by-laws. The patrols are supported by canine members. Their roles include the monitoring of city infrastructure against vandalism, to counter antisocial behaviour and assist police where possible. The canines are trained, as are police dogs and corrections dogs. They are specifically trained in obedience and also to respond towards aggression towards the handler. In that case, it puts them in the direct line of fire.

In the current bill, the definition of working animal is able to be extended by way of regulations but the opposition will be supporting the Hon. Robert Brokenshire's amendment to remove that power of regulation. The Liberal opposition wants to specifically prescribe council dogs in this list. The definition of working animals under the act, in our view, should be extended to include council dogs. The Attorney has already indicated the government's reluctance to support this amendment in the other place, but that he was willing to consider prescribing them in the regulations.

Considering that we are proposing that the parliament not give the government the power to prescribe animals without reference to this place, we propose to prescribe council dogs in the act itself. To do otherwise would not provide them with the protection that is accorded to similar dogs in similar law enforcement activities.

The Hon. G.E. GAGO: The government rises to oppose this amendment. Firstly, paragraph (e) of the definition of a working animal allows for other animals or animals of a class to be prescribed by regulation to be included in the definition of a working animal and it is not necessary to include further animals in the bill. Secondly, the amendment may capture animals that are not intended to be covered by the definition. The government understands that this amendment is prompted by the use of specific dog patrols by the local councils in, particularly, Port Augusta and Ceduna. However, the definition is very wide and it would expand the definition to cover many more dogs. It is unknown how many animals would be captured and to what purposes they were being used for.

Relating to the second point, dogs captured by the amendment are not required to have any particular qualifications that we are aware of. Whilst the dogs used by the councils in Port Augusta and Ceduna may be highly trained dogs used by the councils, they are not a group defined by a particular qualification in the same way that guide dogs or police dogs are, to the best of our knowledge anyway. As the bill provides extra protection to working animals, it is important that animals that are included have some sort of qualification that identifies them as trained working animals. Dogs may even be used by subcontractors to councils where, again, it is more difficult to ensure quality control and to ensure that dogs are in fact trained and trained in appropriate ways.

Thirdly, some dogs captured by the amendment may not even work with a handler. Dogs guarding property in council areas may well include guard dogs left on their own to guard property, and it is clear that such dogs are not under the control of a handler in the same way as police dogs and guide dogs are; it is quite a separate category. The government feels it is not appropriate to include these animals within the definition of working animal.

Lastly, working animals are a special category of animal that deserve extra protection due to the nature of the tasks they undertake, and it is important not to dilute the category by including many other animals within that definition, otherwise the definition becomes meaningless. The government wishes to reiterate that it is possible to include other classes of working animals in the regulation should there be a demonstrated need. So, if those councils want to come to us and put forward an argument and a reason for those animals, we would be happy to consider them.

The Hon. S.G. WADE: Just in response to the minister's comments, could I clarify the wording of the amendment itself. The amendment itself says 'a dog used by or on behalf of the council'. In our view, those words in and of themselves exclude a number of the case situations that the minister suggested. It is not a dog working in a private security yard: it is a dog used by or on behalf of a council; for that matter, it is specified in the Local Government Act and it is also in relation to a particular task for the purpose of enforcing council by-laws.

The two councils that are specifically cited—Ceduna and Port Augusta—specifically employ the canine patrols to provide similar patrolling support that would otherwise be provided by police. My understanding is that they work cooperatively with police. In that sense, we would suggest that this does not significantly dilute the category or broaden the scope. Certainly, there is more similarity between what, shall we say, these council dogs do and what police dogs do than there is between what guide dogs do and what police dogs do.

The Hon. I.K. HUNTER: Can I ask the mover of the amendment: has he taken time to consult with Aboriginal communities in Port Augusta and Ceduna about the use of these dogs and how they would be captured by this amendment?

The Hon. S.G. WADE: This amendment was not my amendment; it was from the member for Stuart, Mr Dan van Holst Pellekaan.

The Hon. G.E. Gago: Who is the vessel?

The Hon. S.G. WADE: I'm sorry—

The CHAIR: Order!

Members interjecting:

The Hon. S.G. WADE: I would like other members to hear what I am saying, which does not seem to be possible.

Members interjecting:

The CHAIR: Order!

The Hon. I.K. HUNTER: I ask the mover of the amendment on behalf of the member in the other place whether he is aware of any concerns raised by Aboriginal communities that these dogs are used exclusively to police members of the Aboriginal communities and allegations that they are being used in unfair and demeaning ways?

The Hon. S.G. WADE: I am not aware, and if the government is aware of such allegations I trust that they have taken all relevant action with the police to ensure they are not misused in that way.

The Hon. R.L. BROKENSHIRE: I ask the minister who asked the question of the Hon. Mr Wade: what has the minister done to address that matter, given that it has been raised with him in his official ministerial capacity? What has he done to address the matter?

The Hon. I.K. HUNTER: I have not moved any amendments in this debate or the bill. The Hon. Mr Brokenshire might need to brush up on his standing orders instead of consulting Daisy and Maisy in secret conversations. I ask the mover of the amendment again—he obviously is not aware of any consultations with the Aboriginal communities about these dogs being put into the legislation—whether he thinks it is therefore appropriate that this amendment proceed without that consultation occurring?

The Hon. S.G. WADE: The honourable minister chooses to misrepresent my words. I made no comment as to whether consultation had or had not occurred. I presume that it has occurred, because the honourable member for Stuart is intimately involved in this community. In that regard, I specifically correct the record where the minister suggests that I am suggesting the consultation did not occur.

The committee divided on the amendment:

AYES (11)
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. Ridgway, D.W. Stephens, T.J.
Vincent, K.L. Wade, S.G. (teller)
NOES (8)
Finnigan, B.V. Franks, T.A. Gago, G.E. (teller)
Hunter, I.K. Kandelaars, G.A. Maher, K.J.
Parnell, M. Wortley, R.P.
PAIRS (2)
Bressington, A. Zollo, C.

Majority of 3 for the ayes.

Amendment thus carried.

The CHAIR: The Hon. Mr Brokenshire, do you see the next amendment, which goes to Customs dogs, as consequential?

The Hon. R.L. BROKENSHIRE: Yes, that will be withdrawn.

The CHAIR: Then you have amendment No. 4.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 4 [Broke–1]—

Page 3, lines 37 and 38 [clause 4, inserted section 83H(1), definition of working animal, (e)]—Delete paragraph (e)

I have already foreshadowed the reason for this amendment, but if colleagues took the time to look back through a lot of debate I have been consistent in my argument about too much being done by regulation. There was clear and direct intent with what the government wanted with this bill, and I believe this is the right way to go, that it describes it at law and, if anything is to be done in future, they bring it back through the parliament.

The only other thing I would say is that, while one colleague said, 'Well, you've got a right to disallow,' disallowance has proven to be a joke, because even if you get the absolute majority of either chamber agreeing to the disallowance, before the ink is dry the government has brought back the regulation, and you sit there then with that regulation and no direct input from the parliament.

The Hon. S.G. WADE: I rise to indicate that the opposition strongly supports this amendment. I respect the honourable members who have concerns about this legislation, particularly the concern about a kneejerk response. As I humbly suggested earlier, and reiterate: I believe that actually putting it in the legislation is the best way for this parliament to ensure that further additions to the list are appropriately considered.

The Minister for Aboriginal Affairs has highlighted the sorts of issues that might come up when consideration is given to adding a person to the list. If this house is confident that government consultation is always impeccable, and that we can put it in regulation, assuming that matters are properly considered and not provide parliamentary oversight of the list, then you have to ask yourself: why did we start with a list in the act in the first place, why didn't we put them all in regulation? Personally I believe that the category of animals we are talking about, particularly animals involved in law enforcement activities to the extent that their own safety is at risk, is not a large category of animals and it is the sort of list you could expect to see enumerated in legislation.

It is also the sort of list where other issues might arise, and the Minister for Aboriginal Affairs has kindly highlighted issues in that regard. The Hon. Tammy Franks was suggesting that subdelegated legislation could be disallowed. I reiterate the concern this council has had year after year in relation to the risks of subdelegated legislation. In fact, there is a piece of legislation that passed this place without a dissenting voice, other than that of the government in the House of Assembly—it has not been considered by the House of Assembly—specifically to remove the risk to which the Hon. Robert Brokenshire alluded, namely, the day after a regulation is disallowed for a fresh regulation to be promulgated.

The Hon. Mark Parnell, for example, in speaking in support of the Subordinate Legislation (Miscellaneous) Amendment Bill on 6 June 2013, said:

In a nutshell, the Greens have been as disappointed as, I think, a majority of people in this chamber have been that we have not had the ability either to disallow only part of a regulation or to amend a regulation, and we have not been able to stop the government using the shenanigans of the calendar to simply reintroduce exactly the same regulation a short time after it has been defeated in this chamber.

The Hon. Mark Parnell made similar comments on 6 June 2011; he spoke on the 2009 bill. The consistency of the Greens in relation to the need to increase government accountability in terms of legislation is well established on the record. The Greens are not alone in that view within this chamber.

What is actually the standout is the low standards of this parliament. If you look at the other parliaments around Australia, most of them have some sort of safeguards. Either you are allowed to amend it or the government cannot reintroduce it the next day. I would suggest to honourable members that the best way to avoid a kneejerk reaction, the best way to provide accountability and greater assurance for community consultation is by adopting the amendment by the Hon. Robert Brokenshire and removing the right of the government to issue a regulation Monday, Thursdays and the Monday after.

The Hon. G.E. GAGO: The government rises to oppose this amendment. I have to say I find it quite incredible listening to the Hon. Stephen Wade's response in terms of the need for legislative response rather than regulatory to enable community consultation. Here we have a piece of legislation in front of us and the previous amendment where he failed to consult with a major stakeholder in terms of the impact of his amendment. It's a joke; he's just a joke.

The government opposes this particular amendment that removes the ability to prescribe further animals or classes of animals by regulation to be working animals, and it is necessary to have the flexibility to include further animals within the definition should it become necessary. We need the ability to include further types of working animals if it is demonstrated that they require the extra protection that this bill provides.

The Hon. T.A. FRANKS: I rise on behalf of the Greens to oppose this amendment in this particular case. Where the Greens are on record is in calling for greater scrutiny of this parliament, and certainly calling for partial disallowance of delegated legislation is a flexibility we believe this parliament should have. My honourable colleague, Mark Parnell, has rubbed off on me because I cannot help but use the pun, 'This is a dog's breakfast of a piece of legislation.' We support it begrudgingly. We support it knowing that it has not been well consulted but knowing that there is the ability to fix it up with these particular regulations.

As a council, we have just voted down the inclusion of Customs dogs but we voted up the inclusion of the somewhat controversial security patrol dogs used in Ceduna and Port Augusta. All members of this council should be aware that the Aboriginal Legal Rights Movement (ALRM) has called these dogs part of a racist and Gestapo-like presence. They are controversial in their use and yet we have just elevated them above Customs dogs and, indeed, we will not be including hearing dogs without the ability to correct this regulation under this particular act, should it pass.

The Hon. I.K. Hunter: They've turned it into a dog's breakfast.

The Hon. T.A. FRANKS: It is a dog's breakfast. The Greens absolutely advocate for parliamentary reform and better ability, as I say, to not just have an all or nothing argument when you are given a list under a regulation, there should be the ability to strike out parts of a regulation and there should also be respect where one house of parliament has indicated that, and those regulations not to be installed the very next day. That is the reality of the current system, however.

The reality of this bill—and the opposition well know this—is that I do not think anyone with a straight face would go out and argue that this bill has been well consulted, well thought through and covers the whole ground. So, without regulations it will be more of a dog's breakfast than it currently is. With that, that says that I am opposing this particular amendment, but certainly the Greens are very firmly supportive of better reforms for our democracy, better ways of having delegated legislation, and having these debates not necessarily in this chamber, but ensuring that the consultation and the correct democratic processes are actually followed before we get into this sort of a debate in this council.

The Hon. R.L. BROKENSHIRE: I will just make a few points. Members of the Legislative Council or indeed members of the House of Assembly, as individuals, or even as parties, other than if they are the government, and subsequently cabinet, have no chance of input or alteration to regulation. I just want to put that clearly on the record.

Secondly, the moment that the government actually sit around the cabinet table and the Premier signs off, and then the Governor in Executive Council, and it is gazetted, those regulations are law immediately irrespective of unintended consequences and other issues that we see all the time with regulation.

The third point is that, unless the government are brave enough to come back into this house in February, then the bottom line is that we will have a regulation put to this legislation in relation to which none of us will know what is involved in that regulation, and for at least six months, when they shut this house down, we will have no chance for disallowance anyway.

The final point is the government say that they may want to include something else down the track through regulation. I say that they can do that at any time as a government by bringing an amendment into the house.

The committee divided on the amendment:

AYES (11)
Brokenshire, R.L. (teller) Darley, J.A. Dawkins, J.S.L.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. Ridgway, D.W. Stephens, T.J.
Vincent, K.L. Wade, S.G.
NOES (8)
Finnigan, B.V. Franks, T.A. Gago, G.E. (teller)
Hunter, I.K. Kandelaars, G.A. Maher, K.J.
Parnell, M. Wortley, R.P.
PAIRS (2)
Bressington, A. Zollo, C.

Majority of 3 for the ayes.

Amendment thus carried.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 5 [Broke–1]—

Page 4, after line 33 [clause 4, inserted section 83I(2)]—After paragraph (f) insert:

(fa) where the death or serious harm is caused by a police officer acting in the course of his or her official duties and functions;

The reason for having this in there is that, sadly, there is the possibility that in a difficult set of circumstances a situation may arise where a police officer has no choice but to take a serious defensive course of action to protect themselves, partners or the community.

The CHAIR: Just to make it clear, you are moving only paragraph (fa)?

The Hon. R.L. BROKENSHIRE: Only (fa).

The Hon. G.E. GAGO: The government opposes this amendment. It sees paragraph (fa) as completely unnecessary, and struggles to see what actions the amendment is aimed at addressing. If a police officer harms another person's working animal—a guide dog or a correctional services dog—in the course of their duties it would be either in defence of themselves or another, or accidental. It is already lawful to act in self-defence if the animal were attacking a person; if the harm was to their own animal that would be an internal police disciplinary matter. I do not know whether the honourable member can give us an example of the sorts of actions that would come within the provisions of his amendment.

The Hon. R.L. BROKENSHIRE: I could give some examples, but I would prefer not to because I do not like talking about circumstances where a police officer may encounter a situation that leaves them with no other choice. However, if members have ever been out with police officers in certain situations, they would know that police officers, alone, are faced with making split second decisions that, fortunately, the rest of the community—

The Hon. G.E. Gago: That would be in the course of their duty, though. You are talking about actions taken in the course of their duty; we are talking about actions outside of that. Their actions are already protected.

Members interjecting:

The CHAIR: Order, minister. The Hon. Mr Brokenshire has the call.

The Hon. R.L. BROKENSHIRE: Thank you for your protection, Mr Chair. Yes, they are doing this in the course of their duty but, again, because of unintended consequences and because of the whole way this bill has been developed by the government, I believe we cannot afford to have any potential risk factors on the clarity of a situation where a police officer may encounter this. For that reason I am trying to absolutely clarify it in a piece of legislation—which, I understand, is legally appropriate for me to include as an amendment.

The Hon. G.E. GAGO: I am gobsmacked. The honourable member cannot give an example of the sorts of actions that would be protected. The actions of an officer that are performed in the course of their duties are already protected, if a working animal is harmed either accidentally or intentionally. Those actions are already covered. So, we are not talking about an officer in the course of the performance of their duty. It would have to be an officer in actions outside of the course of their duty. I am just gobsmacked. The honourable member has no idea. He is not able to explain or able to give even one example of the sorts of actions that would need this measure to provide protections that are not already in place for officers who are in the course of performing their duties.

The Hon. S.G. WADE: Reluctant as I am to get in the way of the minister, who is engaged in a filibuster, I remind the committee that I have already indicated that the opposition has not been able to take these amendments to our party room, and we will not be supporting them without having properly considered them. The government already knows that the opposition is not going to support them. If the government is trying to persuade us to support the Hon. Robert Brokenshire, I can assure you that will not happen because we are committed to consulting our party room.

The Hon. G.E. GAGO: That is outrageous! This is the committee stage. I have asked reasonable questions of a mover of an amendment, and the mover is not able to give a simple explanation. I have not only every right to do that, I have a responsibility to do that, irrespective of whether or not the opposition is supporting us in this amendment. This is not just about having the numbers. We do not just debate those issues—

Members interjecting:

The CHAIR: Order!

The Hon. G.E. GAGO: —where we have the numbers. If that was the rule of this house, every other member in this place has breached it many times. This is about the integrity of open debate. Goodness gracious me!

The Hon. S.G. WADE: The minister does raise an interesting possibility, and that is that, if the minister is asking the opposition to support the Hon. Robert Brokenshire's amendment so that we could keep it alive, so that we could consider it when this house next resumes, what would happen is that we would support it in this place, the government presumably would not support it in the other place, and we could have a fuller debate again. If that is what the minister wants, she can make that clear and I will consult my colleagues as quickly as possible. But it is not the intention of the opposition to support this amendment unless the government wants to make it a cause célèbre.

Amendment negatived; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (12:58): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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