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ANIMAL WELFARE AMENDMENT BILL (No. 2) 2012

LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY

MINISTER FOR LOCAL GOVERNMENT

SERIAL No. 9

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends the Animal Welfare Act (the Act).

The purpose of this Bill is to:
·	strengthen the scheme of the Act by streamlining and rationalising the roles, functions and powers of the Animal Welfare Authority (the Authority); 
·	clarify that the functions of the Authority are to ensure compliance, prosecute offences, appoint authorised persons and administer the licensing scheme for premises used for teaching or research involving animals;
·	clarify that the Authority will be supported by authorised officers who may be qualified inspectors or veterinary officers and who act under the direction of the Authority;
·	define functions and powers of authorised persons;
·	introduce a duty of care and specific offences; 
·	allow alternative verdicts;
·	extend the time limit for commencing proceedings;
·	ensure the Authority has the resources necessary to perform its functions;
·	empower the Authority to require information;
·	apply the relevant Australian code or standards in force at the relevant time;
·	make the involvement and direction of an ethics committee a condition of a licence to use premises for teaching or research involving animals;
·	regulate the seizure, retention and disposal of animals or other things;
·	stipulate that costs under an order for recovery of seizure and care costs are recoverable under the Fines and Penalties (Recovery) Act; and
·	allow a court to make orders preventing an offender from being in charge of an animal. 

NOTES ON CLAUSES

Clause 1.	 Short title

This is a formal clause which provides for the citation of the Bill. The Bill, when assented to, will be cited as the Animal Welfare Amendment Act (No. 2) 2012.

Clause 2.	Commencement

This clause provides for the Animal Welfare Amendment Act (No.2) 2012 (that is, this Act) to commence on the day fixed by the Administrator by Gazette notice.

Clause 3.	Act amended

This clause specifies that the Act being amended is the Animal Welfare Act.

Clause 4.	Section 4 amended

This clause omits the previous definition of “ethics committee”, inserts a new definition for “ethics committee” and clarifies the definition of “inspector”. The clause also inserts definitions for “authorised person”, “causes”, “connected with an offence”, “cruel”, “minimum level of care”, “occupier”, “person entitled”, “return or disposal order”, and “seizure and care costs”.

Clause 5.	Part 2, Division 1, heading amended

This clause amends the heading of Part 2, Division 1 by deleting the word “Obligations” and inserting “Duty of care”. The heading of the Division now reads:
“Duty of care and offences”

Clause 6.	Section 6 to 14 replaced

This clause repeals the previous sections 6 to 14 and inserts new sections 6 to 10 in Part 2, Division 1 of the Act.

New Section 6 inserts new definitions for “causes” and “cruel”.

New Section 7 provides the meaning of “minimum level of care”. The minimum level of care required for an animal is that the animal has appropriate and sufficient food and water and, appropriate accommodation and living conditions. In addition, the minimum level of care requires that an animal is appropriately treated for disease, injury or suffering; is allowed appropriate exercise; is handled only in ways that are appropriate; and is confined or restrained only in ways that are appropriate. Furthermore, the minimum level of care requires that an animal is appropriately worked, ridden or otherwise used, and is not abandoned or used in an organised animal fight.

For this section, “appropriate” means appropriate to ensure the welfare, health and safety of the animal having regard to all relevant circumstances, including the animal’s species and the environment in which it is kept or lives. Something is considered “not appropriate” if it causes, or is likely to cause the animal unnecessary suffering, or is prescribed by the Regulations to be not appropriate. 

Section 8 imposes a duty of care on any person in charge of an animal. Section 4 of the Act defines “a person in charge” as the owner or person in possession of the animal. A person commits an offence if they breach the duty of care. A breach occurs if the person fails to take reasonable steps to ensure the animal receives the minimum level of care having regard to all the relevant circumstances and also having regard to the steps an ordinary person might reasonably be expected to have taken in those circumstances. The maximum penalty for this offence is 100 penalty units or imprisonment for one year.

Section 9 creates the offence of cruelty to an animal. The maximum penalty for the offence is 150 penalty units or 18 months imprisonment. A person in charge of an animal is cruel to the animal if they fail to ensure that the animal receives the minimum level of care and intends to cause harm to the animal. The section also provides that any person, whether or not in charge of an animal, is cruel to the animal if they cause the animal unnecessary suffering. In addition, a person is cruel to an animal if they, having caused the animal unnecessary suffering (including accidentally), fail to take reasonable action to mitigate the suffering. A person is also guilty of the offence of cruelty if they use, on the animal, a device prescribed by the Regulations to be inhumane, or subject the animal to treatment prescribed by Regulations to be cruel.

Section 10 creates the offence of aggravated cruelty. A person commits the offence if the person is cruel to an animal, the cruelty causes the death of, or serious harm to the animal and, the person intends to kill or seriously harm the animal. The maximum penalty for this offence is 200 penalty units or two years imprisonment. Subsection 10(2) provides the definition of “serious harm”.

Clause 7.	Section 15 amended

This clause omits the previous subsection 15(1) which required a person who injured an animal not in his or her charge to take reasonable steps to alleviate the animal’s suffering. This is now a requirement in section 9, as not doing so amounts to cruelty.

Clause 8.	Section 16 repealed

The previous section 16 that prohibited purchasing, acquiring, keeping or selling of an animal that was severely injured, diseased or in such a condition that it was cruel to keep it alive is repealed as it is covered by the new section 9 on cruelty.

Clause 9.	Part 2, Division 2, heading

This clause amends the heading of Part 2, Division 2 of the Act by omitting “of veterinarians”. The amended heading now reads: 
“Power to alleviate suffering etc.”

Clause 10.	Section 23A inserted

This clause inserts new section 23A. New section 23A provides that a person, who believes on reasonable grounds that an animal has been confined for more than 24 hours without appropriate and sufficient food or water, may enter the premises where the animal is confined to supply it with food or water, if it is reasonably necessary to so do to alleviate the animal’s suffering. A person who does so incurs no liability for entering the premises and may recover the reasonable cost of food and water, from a person in charge of the animal, in a court as a debt owed to the person. However, this section does not apply to stock animals being transported in accordance with an adopted code of practice as that code of practice would make provision for what is required.

This section addresses matters covered before in the previous subsections 8(3)-(5), now being repealed.

Clause 11.	Sections 26A to 26C inserted

This clause inserts new sections 26A, 26B and 26C.

New section 26A provides that the functions of the Animal Welfare Authority (the Authority) include ensuring compliance with the Act and prosecuting offences against the Act. The Authority’s functions also include appointing inspectors and officers and being responsible for their performance, of their functions. In addition, the Authority is to administer the licensing regime for premises used for teaching or research and otherwise administer the Act. The Authority must also perform any other functions imposed under the Act or another Act. The Authority has the powers necessary to perform its functions.

New section 26B provides that the Chief Executive Officer of the Agency administering the Act must provide the Authority with staff and facilities to enable the Authority to properly perform its functions. To assist in the performance of its functions, the Authority may arrange with the Chief Executive Officer of any other Agency to use the staff or facilities of that Agency.

New section 26C provides that, in carrying out its functions under the Act, the Authority may obtain relevant information from people, consult with people or make inquiries as the Authority considers appropriate. The Authority may require a person to either give information or produce documents, or both. A person must comply with the Authority’s requirement and in the manner and within the time, specified by the Authority. Failure to comply constitutes an offence. The maximum penalty for this offence is 50 penalty units or six months imprisonment. 

It is a defence to the offence if a person establishes a reasonable excuse. A person is not excused from complying with the Authority’s requirement on the basis that to do so might tend to incriminate the person or make the person liable to a penalty. However, information or a document given or produced by an individual for compliance with the Authority’s requirement is not admissible in evidence against the individual in a civil or criminal proceeding, except a proceeding for an offence in which the falsity or misleading nature of the information or document is relevant. 

Clause 12.	Section 34 amended

This clause amends section 34 of the Act. Section 34(1) now provides that a licence to use premises for teaching and research is subject to the condition that the licensee must ensure there is at least one animal ethics committee for the licensee. The licensee must also comply with directions given to the licensee by the animal ethics committee. In addition, the licensee must give an annual report to the Authority about activities carried on during the year under section 34A and report and give information to the Authority as mentioned in section 34B. New subsection 34(3) makes it an offence not to comply with the conditions of the licence. The maximum penalty for this offence is 10 penalty units or imprisonment for one year.

Clause 13.	Sections 34A and 34B inserted

This clause inserts new sections 34A and 34B.

New section 34A provides that a licensee must prepare a report about activities carried on during the year under the authority of its licence. The report must contain the information prescribed by the Regulations about the activities of the licensee, the licensee’s ethics committee and permit holders employed or engaged by the licensee. The Regulation may include a document or information that is required to be kept or made under a code of practice, standard or other document. The report must be given to the Authority on or before 31 October following the end of the financial year.

New section 34B provides that if a licensee believes on reasonable grounds that a person employed or engaged by the licensee, has engaged in, is engaging in, or intends to engage in conduct that contravenes the Act, the licensee must report the matter to the Authority as soon as practicable after becoming aware of it. The licensee is not excused from complying with this reporting requirement on the basis that to do so might tend to incriminate the licensee or make the licensee liable to a penalty. However, a report given by an individual for compliance with the reporting requirement is not admissible in evidence against the individual in a civil or criminal proceeding, except a proceeding for an offence in which the falsity or misleading nature of the report is relevant. 

Clause 14.	Section 41 replaced

Section 41 is amended to clarify that a licensee must have an animal ethics committee. The animal ethics committee may be established and maintained by the licensee. The animal ethics committee may also be a committee established and maintained by another person or body (other than the licensee), if that other person or body has agreed to the committee being the licensee’s animal ethics committee. The animal ethics committee must be constituted, and has powers and functions, as prescribed by the Regulations.

Clause 15.	Section 42 replaced

Section 42 is repealed and replaced with a new section 42. Section 42 now clarifies that in Part 5, Division 3 of the Act, the “relevant ethics committee”, for a permit holder or applicant for a permit, means the ethics committee for the licensee by whom the permit holder or applicant is employed or engaged. Note that permits are required under section 43 for the conduct of a teaching or research program by a person employed or engaged by a licensee.

Clause 16.	Section 48 amended

This clause amends section 48 by omitting the previous provision in subsection 48(1) and inserting a new provision. Subsection 48(1) now provides that a permit to conduct a teaching or research program is subject to the condition that the permit holder must comply with directions of the ethics committee. In addition, the permit holder must, on the request of the licensee, give any information reasonably required by the licensee to enable the licensee to comply with its obligations under the Act. 

Clause 17.	Section 57 amended

This clause amends section 57 which deals with the appointment of inspectors. New subsection 57(1A) provides that the Authority must not appoint a person to be an inspector unless it is satisfied that the person has skills, qualifications, training and experience to properly perform the functions of an inspector.

Clause 18.	Section 58 amended

This clause amends section 58 which deals with the appointment of animal welfare officers. New subsection 58(1A) provides that the Authority must not appoint a person to be an officer unless it is satisfied that the person has skills, qualifications, training and experience to properly perform the functions of an animal welfare officer. Note that the Act provides that animal welfare officers are to be veterinarians.

Clause 19.	Section 58A inserted

This clause inserts a new provision regarding the appointment of public sector employees in other Agencies. New section 58A provides that the Authority may appoint a public sector employee in an Agency other than the Agency administering the Act to be an authorised person. However, the Authority must not do so without the agreement of the Chief Executive Officer of the other Agency. 

Clause 20.	Section 60 replaced

This clause replaces section 60 and inserts new section 60A. 

Section 60 now provides that an authorised person’s functions are to assess whether or not the provisions of the Act are being complied with and seek evidence of a suspected offence against the Act. In addition, an authorised person is to perform the functions conferred on the person by the Act and assist the Authority in the performance of its functions. In performing these functions, an authorised person may exercise any power conferred by the Act but is subject to the direction of the Authority. 

New section 60A provides that if an authorised person believes on reasonable grounds that an offence against the Act has been, is being or is likely to be, committed, the authorised person must report the matter to the Authority as soon as reasonably practicable after the person forms that belief.

Clause 21.	Section 62 amended

Section 62 relates to an authorised person’s power of entry into premises. Subsection 62(2) is amended to provide that an authorised person may enter premises in accordance with this section for the purpose of exercising the person’s functions under section 60.

Clause 22.	Section 67 amended

Section 67 relates to an authorised person’s power to alleviate suffering. The previous subsection 67(7) that provided that the authorised person can recover the costs incurred as a result of exercising the power to alleviate suffering is omitted. The ability to recover costs is now dealt with under the new Part 6, Division 4 of the Act.

Clause 23.	Part 6, Divisions 3 and 4 inserted

This clause inserts new Part 6, Divisions 3 and 4 into the Act.

The title for new Division 3 is: “Dealing with seized animals or things”.

New section 68A provides for the definition of “person entitled” in Part 6, Division 3 of the Act. 

New section 68B provides that if an animal or something is seized under the Act, the Authority is taken to be in possession of it and must take reasonable steps to ensure it is kept safely and provided with at least the minimum level of care. The Authority may enter into an arrangement with another person to keep and care for the animal or thing.

New section 68C regulates the retention of an animal or thing seized under section 66(e), that is, animals or things seized because they are believed to be connected with an offence. The Authority may retain the animal or thing until any one of four situations occurs. The four situations are when 2 years elapse from when the animal or thing was seized without a prosecution having been commenced for an offence in relation to it, when the Authority decides not to prosecute any person for an offence with which the animal or thing is connected, when all proceedings relating to the prosecution (including any appeals) have been completed if a prosecution has been commenced for an offence with which the animal or thing is connected, or when a court makes a return order for the animal or thing. 

When the Authority’s right to retain the animal or thing ceases, the Authority must deal with it in accordance with the return or disposal order issued by the court (if any), and in any other case, under new section 68E. 

New section 68D regulates the situation when an authorised person seizes an animal for the purpose of alleviating its suffering. The Authority may retain the animal for as long as it considers reasonably necessary for the purpose of alleviating the animal’s suffering. When it is no longer necessary to retain the animal for that purpose, the Authority must deal with it under new section 68E. However, if the Authority believes on reasonable grounds that the animal is connected with an offence, the Authority may instead deal with the animal as if it is seized under section 66(e) of the Act (section 68C regulates the retention of an animal or thing seized under section 66(e)).

New section 68E provides that if the Authority is required to deal with an animal or thing under the section, the Authority must return it to a person who the Authority reasonably believes is entitled to it. However, the Authority may instead deal with the animal or thing under new section 68F if it has taken all reasonable steps to find a person entitled to it but has been unable to do so, or no person entitled to it is willing to take possession of it. In addition, the Authority may deal with the animal or thing under section 68F if the owner, or other person with legal right to sell it, authorises the Authority, in writing, to deal with it under section 68F. Further, if a court makes a return or disposal order for the animal or thing, the Authority must deal with it in accordance with the order.

New section 68F provides that if required or permitted by the Act to deal with an animal or thing under the section, the Authority may, as it thinks fit, sell the animal or thing or give the animal or thing to a charitable organisation. In addition, the Authority may retain the animal or thing if it is of use to the Authority, give the animal or thing to another Agency if it is of use to that agency, or otherwise destroy the animal or thing.

A person is to be reimbursed for seizure and care costs out of the proceeds of the sale of an animal or thing if costs have been incurred but not reimbursed in accordance with a reimbursement order made under the Act. Any balance of the proceeds must be paid to the owner or another person who is legally entitled to those proceeds. Alternatively, if the Authority has taken all reasonable steps to find the owner or person who is legally entitled to those proceeds but has been unable to do so, or where the animal or thing has been forfeited to the Crown, the balance of the proceeds must be paid to the Central Holding Authority. However, if a court makes an order for the sale or disposal of the animal or thing or distribution of proceeds in a different way, the Authority must deal with the animal, thing or proceeds in accordance with the order.

New section 68G provides for return or disposal orders. It applies if an animal or thing has been seized under the Act, has not been forfeited to the Crown and has not been sold or disposed of under section 68F. On application by the Authority or any person entitled to the animal or thing, a return or disposal order may be made by the appropriate civil court. Alternatively, if a person has been charged with an offence against the Act with which the animal or thing is connected, a return or disposal order may be made by the court hearing the charge. An order may be made by the court hearing the charge as an interim order or on conclusion of the proceedings and whether or not a person is convicted of an offence.

A return or disposal order may be made by the appropriate civil court whether or not a person has been charged with an offence connected to the animal or thing. If a person has been charged with an offence connected to the animal or thing, the appropriate civil court can transfer an application for a return or disposal order to the court hearing the charge. New subsection 68G(6) also provides the definition of “appropriate civil court”.

The title for new Division 4 is: “Recovery of seizure and care costs”.

New section 68H provides that if an animal or thing is seized under the Act, the seizure and care costs are the reasonable costs incurred in relation to taking possession, transporting, providing the minimum level of care, storing or looking after it. Seizure and care costs also include the reasonable costs incurred in relation to returning, selling or disposing of it in accordance with the Act. If an authorised person takes action under section 67 of the Act (to alleviate suffering of an animal) other than seizing it, the seizure and care costs for the animal are the reasonable costs incurred in taking the action.

New section 68J applies if an animal or thing is seized under the Act or an authorised person takes action to alleviate suffering of an animal and they incur seizure and care costs for that animal or thing. A person who has incurred seizure and care costs can apply to the appropriate civil court for a reimbursement order against a person in charge of the animal or thing. If a person has been charged with an offence against the Act with which the animal or thing is connected, the application can be made to the court hearing the charge. An order may be made by the court hearing the charge as an interim order or on conclusion of the proceedings, whether or not a person is convicted of an offence. The court must not make a reimbursement order unless satisfied that the seizure of the animal or thing, or the taking of the action to alleviate suffering of an animal, was reasonable in the circumstances and it is reasonable in the circumstances to require the person, against whom the order is sought, to pay.

An order may be made by the appropriate civil court whether or not a person has been charged with an offence connected to the animal or thing. The appropriate civil court can also transfer the application for an order to the court hearing the charge, if a person has been charged with an offence connected to the animal or thing.

New subsection 68J(7) provides the definitions of “appropriate civil court”, “person in charge” and “reimbursement order” for the section.

New section 68K clarifies that an order for reimbursement of seizure and care costs (under new sections 68J and 76(3)(b)) for the payment of money is an ancillary money order for Part 7 of the Fines and Penalties (Recovery) Act and is recoverable under that Part.

Clause 24.	Section 71 amended

This clause amends section 71 of the Act to change the time limit for the commencement of proceedings from 12 months to 2 years. Section 71 now provides that proceedings in respect of an offence under the Act are to be commenced no later than 2 years after the date on which it is alleged the offence occurred, despite anything to the contrary in another law in force in the Territory.

Clause 25.	Section 74A inserted

This clause inserts new section 74A, which allows for alternative verdicts. If in a proceeding against a person charged with the offence of aggravated cruelty or cruelty (the prosecuted offence), the court is not satisfied beyond reasonable doubt that the person committed the prosecuted offence but is satisfied beyond reasonable doubt that the person committed or attempted to commit the offence of cruelty or a breach of the duty of care (alternative offence), the court may find the person not guilty of the prosecuted offence but guilty of the alternative offence. For the prosecuted offence of aggravated cruelty, the alternative offences are cruelty and breach of duty of care. For the prosecuted offence of cruelty, the alternative offence is breach of duty of care.

Clause 26.	Section 75 amended

This clause clarifies the provision in subsection 75(3) of the Act. It now provides that a person found guilty of an offence under the Act is liable to an additional penalty not exceeding 5 penalty units for each day on which the offence continues after the first day on which it was committed. 

Clause 27.	Section 76 replaced

This clause repeals the previous section 76 and inserts new sections 76 and 76A which provide for additional orders the court may make on the finding of guilt of a person for an offence under the Act.

New section 76 applies if a court finds a person guilty of an offence against the Act, is satisfied that the offender is in charge of an animal (whether or not the animal is connected with the offence) and is likely to commit an offence against the Act in relation to the animal. The court may order that the animal be seized from the offender. If it does so, the court must make a return or disposal order for the animal and may make orders as it considers appropriate for the payment by the offender of seizure and care costs for the animal.

New section 76A applies if a court finds a person guilty of an offence against the Act and the court is satisfied that the offender is likely to commit another offence against the Act in relation to an animal unless an order is made under this section. The court may, as it considers appropriate, order that the offender must not, for the period specified in the order be a person in charge of an animal or allow an animal into or onto premises occupied by the offender. It is an offence if the offender does not comply with the order. The maximum penalty for the offence is 50 penalty units or six months imprisonment.

Clause 28.	Section 82 amended

This clause amends section 82 of the Act by inserting new subsection 82(2). New subsection 82(2) provides that a regulation may apply, adopt or incorporate (with or without changes) the whole or part of a code of practice, standard or other document as in force or existing at a particular time or from time to time.