Council--No Legislative 55
As introduced and read a first time, 31 July 2007
South Australia
Prevention of Cruelty to Animals (Animal Welfare)
Amendment Bill 2007
A BILL FOR
An Act to amend the Prevention of Cruelty to Animals Act 1985.
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Contents
Contents
Part 1--Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2--Amendment of Prevention of Cruelty to Animals Act 1985
4 Amendment of long title
5 Amendment of section 1--Short title
6 Amendment of section 3--Interpretation
7 Amendment of section 6--Establishment of Animal Welfare Advisory Committee
8 Substitution of Part 3
Part 3--Animal welfare offences
13 Ill treatment of animals
14 Organised animal fights
15 Electrical devices not to be used in contravention of regulations
9 Amendment of section 23--Animal ethics committees
10 Substitution of heading to Part 5
Division 1--Appointment and identification of inspectors
11 Substitution of sections 28 to 31
28 Appointment of inspectors
29 Identification of inspectors
Division 2--Powers of inspectors
30 General powers
31 Routine inspections
31A Special powers relating to animals
31B Animal welfare notices
Division 3--Miscellaneous
31C Dealing with seized animals and objects
31D Warrant procedures
31E Offence to hinder etc inspectors
12 Amendment, redesignation and relocation of section 33--Duty of person in charge of
vehicle in case of accidents involving animals
13 Insertion of section 33
33 Delegation
14 Amendment of section 34--Permit to hold rodeos
15 Insertion of sections 34A and 34B
34A False or misleading statements
34B Power of veterinary surgeons to destroy animals
16 Amendment, redesignation and relocation of section 36--Court orders on finding of guilt
etc
17 Substitution of section 40
40 Vicarious liability of employers in certain circumstances
18 Substitution of section 42
42 Evidence
19 Amendment of section 44--Regulations
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Preliminary--Part 1
The Parliament of South Australia enacts as follows:
Part 1--Preliminary
1--Short title
This Act may be cited as the Prevention of Cruelty to Animals (Animal Welfare)
Amendment Act 2007.
5 2--Commencement
This Act will come into operation on a day to be fixed by proclamation.
3--Amendment provisions
In this Act, a provision under a heading referring to the amendment of a specified Act
amends the Act so specified.
10 Part 2--Amendment of Prevention of Cruelty to Animals
Act 1985
4--Amendment of long title
Long title--delete "to discourage cruelty to animals" and substitute:
for the promotion of animal welfare
15 5--Amendment of section 1--Short title
Section 1--delete "Prevention of Cruelty to Animals Act 1985" and substitute:
Animal Welfare Act 1985
6--Amendment of section 3--Interpretation
(1) Section 3--after the definition of animal insert:
20 animal welfare notice means a notice given by an inspector under
section 31B;
animal welfare order means an order of a court under section 32A;
(2) Section 3, definition of the Code--delete "1997, 6th" and substitute:
2004, 7th
25 (3) Section 3--after the definition of the Committee insert:
electrical device means any of the following devices designed for the purpose
of confining or controlling an animal:
(a) an electrical prod or goad;
(b) an electric fence;
30 (c) a collar designed to impart an electric shock;
(d) an electroimmobiliser;
(e) any other electrical device prescribed by the regulations;
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electroimmobiliser means an electrical device designed to temporarily
immobilise an animal;
harm means any form of damage, pain, suffering or distress (including
unconsciousness), whether arising from injury, disease or any other condition;
5 (4) Section 3, definition of inspector, (a)--delete paragraph (a) and substitute:
(a) a police officer; or
(5) Section 3--after the definition of inspector insert:
organised animal fight means an event in which an animal is encouraged to
fight with another animal;
10 (6) Section 3, definition of pain--delete the definition
(7) Section 3--after the definition of premises insert:
rodeo means a competition involving cattle or horses (or both) and featuring
1 or more rodeo events, but does not include a competition declared by the
regulations not to be a rodeo;
15 rodeo event means any of the following events:
(a) saddle bronc riding;
(b) bareback bronc riding;
(c) bull riding;
(d) steer riding;
20 (e) roping or tying;
(f) team roping;
(g) steer wrestling;
(h) a prescribed event,
serious harm means--
25 (a) harm that endangers an animal's life; or
(b) harm that consists of, or results in, severe, protracted, abnormal
physiological or behavioural reactions;
(8) Section 3, definition of the Society--delete "S.A. " and substitute:
South Australia
30 (9) Section 3, definition of vehicle--delete the definition and substitute:
vehicle includes an aircraft, a vessel, a caravan, a trailer and anything
attached to a vehicle;
(10) Section 3, definition of veterinary surgeon--delete "Veterinary Surgeons Act 1985"
and substitute:
35 Veterinary Practice Act 2003
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7--Amendment of section 6--Establishment of Animal Welfare Advisory
Committee
(1) Section 6(2)(a)--delete "for Primary Industries, Natural Resources and Regional
Development" and substitute:
5 responsible for the administration of the Livestock Act 1997
(2) Section 6(2)(f)--delete "for Human Services" and substitute:
responsible for the administration of the Institute of Medical and Veterinary
Science Act 1982
8--Substitution of Part 3
10 Part 3--delete the Part and substitute:
Part 3--Animal welfare offences
13--Ill treatment of animals
(1) If--
(a) a person ill treats an animal; and
15 (b) the ill treatment causes the death of, or serious harm to, the
animal; and
(c) the person intends to cause, or is reckless about causing, the
death of, or serious harm to, the animal,
the person is guilty of an offence.
20 Maximum penalty: $50 000 or imprisonment for 4 years.
(2) A person who ill treats an animal is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 2 years.
(3) Without limiting the generality of subsection (1) or (2), a person ill
treats an animal if the person--
25 (a) causes the animal unnecessary harm; or
(b) being the owner of the animal--
(i) fails to provide it with appropriate, and adequate,
food, water, living conditions (whether temporary
or permanent) or exercise; or
30 (ii) fails to take reasonable steps to mitigate harm
suffered by the animal; or
(iii) abandons the animal; or
(iv) neglects the animal so as to cause it harm; or
(c) having caused the animal harm (not being an animal of
35 which that person is the owner), fails to take reasonable
steps to mitigate the harm; or
(d) uses the animal in an organised animal fight; or
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(e) releases the animal from captivity for the purpose of it then
being hunted or killed; or
(f) causes the animal to be killed or injured by another animal;
or
5 (g) kills the animal in a manner that causes the animal
unnecessary pain; or
(h) unless the animal is unconscious, kills the animal by a
method that does not cause death to occur as rapidly as
possible; or
10 (i) carries out a medical or surgical procedure on the animal in
contravention of the regulations; or
(j) ill treats the animal in any other manner prescribed by the
regulations for the purposes of this section.
(4) A person charged with an offence against subsection (1) (the
15 aggravated offence) may be convicted of an offence against
subsection (2) (the lesser offence) if the court is not satisfied that the
aggravated offence has been established beyond reasonable doubt but
is satisfied that the lesser offence has been so established.
(5) In this section--
20 cause--a person's act or omission causes the death of, or harm to, an
animal if the act or omission substantially contributes to the death or
harm.
14--Organised animal fights
(1) A person must not organise or promote, or participate in organising
25 or promoting, an organised animal fight.
Maximum penalty: $20 000 or imprisonment for 2 years.
(2) A person must not keep an animal wholly or partly for the purpose of
the animal being used (whether by that person or another person) in
an organised animal fight.
30 Maximum penalty: $20 000 or imprisonment for 2 years.
(3) A person must not, without the approval of the Minister, have in his
or her possession or control--
(a) a cock-fighting spur; or
(b) an implement, article or other thing made or adapted for
35 attachment to an animal--
(i) for the purpose of training the animal to fight
another animal; or
(ii) for the purpose of inciting or assisting the animal to
fight another animal or to inflict injury on another
40 animal during a fight; or
(iii) for the purpose of protecting the animal in a fight
with another animal; or
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(c)a drug (not being a drug supplied on the prescription of, and
given to an animal in accordance with the directions of, a
veterinary surgeon) to be administered to an animal for the
purpose of inciting or assisting the animal to fight another
5 animal or to inflict injury on another animal during a fight.
Maximum penalty: $20 000 or imprisonment for 2 years.
(4) A person must not knowingly allow premises owned or occupied by,
or a vehicle owned by or under the control of, the person to be used
for the purposes of--
10 (a) an organised animal fight; or
(b)housing or transporting an animal that is to be used in an
organised animal fight.
Maximum penalty: $20 000 or imprisonment for 2 years.
(5) A person must not, without lawful excuse (the proof of which lies on
15 the defendant)--
(a) be present at an organised animal fight; or
(b) be in a place at which an organised animal fight is taking
place.
Maximum penalty: $10 000 or imprisonment for 1 year.
20 15--Electrical devices not to be used in contravention of
regulations
A person must not, for the purpose of confining or controlling an
animal, use an electrical device in contravention of the regulations.
Maximum penalty: $10 000 or imprisonment for 1 year.
25 9--Amendment of section 23--Animal ethics committees
Section 23(3)--after paragraph (d) insert:
and
(e) at least 1 will be a person who is independent of the licensee and has
never been involved in teaching or research activities involving
30 animals.
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10--Substitution of heading to Part 5
Heading to Part 5--delete the heading and substitute:
Part 5--Enforcement
5 Division 1--Appointment and identification of inspectors
11--Substitution of sections 28 to 31
Sections 28 to 31 (inclusive)--delete the sections and substitute:
28--Appointment of inspectors
(1) The Minister may, by instrument in writing, appoint a person to be
10 an inspector for the purposes of this Act.
(2) An appointment may be made subject to conditions specified in the
instrument of appointment.
(3) The Minister may, at any time, revoke an appointment or vary,
revoke or add a condition of an appointment.
15 29--Identification of inspectors
(1) An inspector appointed under this Part must be issued with an
identity card--
(a) containing the person's name and a photograph of the
person; and
20 (b) stating that the person is an inspector for the purposes of this
Act.
(2) If the powers of an inspector have been limited by conditions, the
identity card issued to the inspector must contain a statement of the
conditions imposed on the inspector's powers.
25 (3) An inspector appointed under this Part must, at the request of a
person in relation to whom the inspector intends to exercise powers
under this or any other Act, produce for the inspection of the person
his or her identity card.
(4) If an inspector who is a police officer is not in uniform, the officer
30 must, at the request of a person in relation to whom the officer
intends to exercise powers under this Act, produce for the inspection
of the person his or her warrant card.
(5) If a person in possession of an identity card issued to the person
under this section ceases to be an inspector, the person must
35 immediately return the identity card to the Minister.
Maximum penalty: $2 500.
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Division 2--Powers of inspectors
30--General powers
(1) An inspector may--
(a) enter and search and, if necessary, use reasonable force to
5 break into or open--
(i) premises or a vehicle to which this section applies;
or
(ii) part of, or anything in or on, premises or a vehicle
to which this section applies; and
10 (b) give directions with respect to the stopping or movement of
a vehicle to which this section applies; and
(c) require a person to produce a document, including a written
record that reproduces in an understandable form
information stored by computer, microfilm or other process;
15 and
(d) examine, copy or take extracts from a document or
information so produced or require a person to provide a
copy of any such document or information; and
(e) take photographs, films or audio, video or other recordings;
20 and
(f) seize and retain any animal or other thing that the inspector
reasonably suspects has been used in, or may constitute
evidence of, a contravention of this Act; and
(g) identify, by marking, tagging or otherwise, an animal or
25 other property in respect of which powers have been
exercised under this Act; and
(h) require a person who the inspector reasonably suspects has
committed, is committing, or is about to commit, a
contravention of this Act to state the person's full name and
30 usual place of residence and to produce evidence of the
person's identity; and
(i) require a person who the inspector reasonably suspects has
knowledge of matters in respect of which information is
required for the administration or enforcement of this Act to
35 answer questions in relation to those matters; and
(j) require a person holding or required to hold a licence, permit
or approval under this Act to produce it for inspection; and
(k) give a direction required in connection with the exercise of a
power conferred by this Act or otherwise in connection with
40 the administration or enforcement of this Act.
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(2) An inspector--
(a) may only exercise the powers conferred by subsection (1) as
reasonably required for the administration and enforcement
of this Act; and
5 (b) may only exercise the power to use force under
subsection (1)(a) on the authority of a warrant issued by a
magistrate or in circumstances in which the inspector
reasonably believes that urgent action is required in order to
prevent or mitigate serious harm occurring to an animal.
10 (3) An inspector may be assisted in the exercise of powers under this Act
by such persons as the inspector considers necessary in the
circumstances.
(4) An inspector may require an occupier of premises or a person
apparently in charge of a vehicle, animal or other thing to give to the
15 inspector or a person assisting the inspector such assistance as is
reasonably required by the inspector for the effective exercise of
powers under this Act.
(5) This section applies to the following premises and vehicles:
(a) premises or a vehicle in or on which an inspector reasonably
20 suspects that an offence against this Act has been, is being
or is about to be, committed;
(b) premises or a vehicle in or on which an inspector reasonably
suspects there is an animal that is being, or has been, harmed
unnecessarily or that will, if urgent action is not taken, be
25 harmed unnecessarily;
(c) premises or a vehicle subject to, or being used for the
purposes of an activity that is the subject of, a licence,
permit or approval under this Act;
(d) premises or a vehicle in on or which an inspector reasonably
30 suspects there is an animal in respect of which an animal
welfare notice or animal welfare order is in force;
(e) premises or a vehicle that an inspector reasonably suspects
is being used for or in connection with a business, or
organised event or activity, involving animals;
35 (f) premises or a vehicle in which an inspector reasonably
suspects there may be records relating to a business or
organised event or activity involving animals or an animal
or other thing that has been used in, or may constitute
evidence of, a contravention of this Act.
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31--Routine inspections
(1) If, for the purposes of administering this Act, an inspector proposes
to exercise powers under this Act to conduct an inspection of
premises or a vehicle in circumstances where there is no suspicion of
5 an offence, the inspector must--
(a) give the occupier of the premises or the owner of the vehicle
reasonable notice of the proposed inspection; and
(b) give the following persons (as required) a reasonable
opportunity to accompany the inspector throughout the
10 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;
15 (iii) the occupier of the premises or the owner of the
vehicle and a nominee of the occupier or owner;
and
(c) take reasonable steps to minimise any adverse effect of the
inspection on the business or activities of the occupier of the
20 premises or the owner of the vehicle.
(2) Non-compliance with this section does not affect the validity of the
exercise of powers by the inspector under this Act.
31A--Special powers relating to animals
(1) An inspector may examine an animal and its living conditions and, if
25 the inspector suspects on reasonable grounds that the animal is
suffering or will if urgent action is not taken suffer unnecessary
harm, do 1 or more of the following:
(a) provide treatment and care for the animal;
(b) cause the living conditions of the animal to be modified;
30 (c) seize and retain the animal for treatment and care.
(2) The costs and expenses reasonably incurred by a person or the
Crown in seizing, treating or caring for an animal, or in causing the
living conditions of an animal to be modified, under this section may
be recovered as a debt from the owner of the animal.
35 (3) Subject to this section, an inspector may destroy an animal if of the
opinion that the condition of the animal is such that the animal is so
weak or disabled (whether physically or mentally), or in such pain,
that it should be destroyed.
(4) An inspector must not exercise a power under subsection (3)
40 unless--
(a) the owner of the animal consents; or
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(b) the owner of the animal has refused or failed to give consent
and a magistrate has, on application by an inspector, issued a
warrant authorising the destruction of the animal; or
(c) the inspector has been unable to determine who owns the
5 animal, or has been unable to contact the owner, after taking
reasonable steps to do so; or
(d) the inspector is satisfied that the animal is wild.
(5) An inspector who destroys an animal under this section does not
incur any civil liability for the destruction.
10 31B--Animal welfare notices
(1) If an inspector is satisfied on reasonable grounds that a person is
contravening this Act in a manner that adversely affects the welfare
of an animal, the inspector may give the person a notice in writing
specifying the action that the inspector considers should be taken for
15 the welfare of the animal in order to avoid further contravention.
(2) Failure to comply with an animal welfare notice is not of itself an
offence but the notice (and any evidence of the taking or failure to
take the action specified in the notice) is admissible in any
proceedings against the person for an offence against this Act
20 relating to--
(a) the alleged contravention in respect of which the notice was
given; or
(b) an alleged contravention of a similar kind occurring after the
notice was given.
25 Division 3--Miscellaneous
31C--Dealing with seized animals and objects
(1) The Minister may sell, destroy or otherwise dispose of an animal or
object that has been seized under this Act but is no longer required to
be retained if--
30 (a) the whereabouts of the owner of the animal or object cannot,
after reasonable inquiries, be ascertained; or
(b) the whereabouts of the owner are known but the owner has
failed, within 3 clear working days of being given written
notice that the animal or object may be collected from a
35 specified place, to collect the animal or object.
(2) If, on application by an inspector, a magistrate is satisfied that--
(a) an animal has been seized and retained under this Act; and
(b) legal proceedings under this Act relating to the animal are
pending; and
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(c) in the circumstances, it is impractical or unreasonable for the
animal to continue to be retained until the proceedings have
been concluded or otherwise terminated,
the magistrate may make an order authorising that the animal be
5 sold, destroyed or otherwise disposed of as the Minister thinks fit.
(3) If an animal is disposed of by sale under subsection (2), the proceeds
of the sale are to be held by the Minister until the conclusion or
termination of the proceedings when they are to be disbursed in
accordance with a further order of the court.
10 (4) In this section--
working day means any day except a Saturday, Sunday or public
holiday.
31D--Warrant procedures
(1) A magistrate must not issue a warrant for the purposes of this Part
15 unless satisfied that the warrant is reasonably required in the
circumstances.
(2) An application for a warrant may be made personally or, if, in the
opinion of the applicant, the warrant is urgently required and there is
not enough time to lodge a written application and appear before a
20 magistrate, by fax or telephone.
(3) The grounds of an application for a warrant must be verified by
affidavit.
(4) If an application for the issue of a warrant is made by fax
transmission, the following provisions apply:
25 (a) the application must be in a form approved by the Chief
Magistrate;
(b) the application must be accompanied (through fax
transmission) by an affidavit made by the applicant
verifying the facts referred to in the application;
30 (c) the applicant must be available to speak to the magistrate by
telephone;
(d) the magistrate is entitled to assume, without further inquiry,
that a person who identifies himself or herself as the
applicant acting in the capacity of an inspector during a
35 telephone conversation with the magistrate is indeed the
applicant acting in that capacity;
(e) the magistrate may, on being satisfied as to the
circumstances of urgency and the grounds for the issue of a
warrant, make out and sign a warrant;
40 (f) the warrant is to be taken to have been issued, and comes
into force, when signed by the magistrate;
(g) the magistrate must forward the warrant to the applicant by
fax transmission.
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(5) If an application for a warrant is made by telephone, the following
provisions apply:
(a) the applicant must inform the magistrate of the applicant's
name and identify himself or herself as an inspector and the
5 magistrate, on receiving that information, is entitled to
assume its accuracy without further inquiry;
(b) the applicant must inform the magistrate of the purpose for
which the warrant is required, the grounds on which it is
sought and the circumstances giving rise to the urgency of
10 the application;
(c) the magistrate may, on being satisfied as to the
circumstances of urgency and the grounds for the issue of
the warrant, inform the applicant of the facts on which the
magistrate relies as grounds for the issue of the warrant, and
15 must not proceed to issue the warrant unless the applicant
undertakes to make an affidavit verifying those facts;
(d) if the applicant gives such an undertaking, the magistrate
may then make out and sign a warrant;
(e) the warrant is to be taken to have been issued, and comes
20 into force, when signed by the magistrate;
(f) the magistrate must inform the applicant of the terms of the
warrant;
(g) the applicant must fill out and sign a warrant form (the
duplicate warrant) that--
25 (i) sets out the name of the magistrate who issued the
original and the terms of the warrant; and
(ii) complies with any other prescribed requirements;
(h) the applicant must, as soon as practicable after the issue of
the warrant, forward to the magistrate an affidavit verifying
30 the facts referred to in paragraph (c) and a copy of the
duplicate warrant.
(6) A warrant, if not executed at the expiration of 1 month from the date
of its issue, then expires.
31E--Offence to hinder etc inspectors
35 A person who--
(a) hinders or obstructs an inspector, or a person assisting an
inspector, in the exercise of powers under this Act; or
...