Clause 1: Short title
This clause provides for the Act to be cited as the National Animal Welfare Act 2003.
Clause 2: Commencement
Clause 2 provides that the Act commences on a day on which this Act receives the Royal Assent. In accordance with subsection (3) the remaining provisions of this Act to commence on a day to be fixed by proclamation.
Should the provisions referred to in subsection (2) not commence under that subsection within the period of 6 months on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.
Clause 3: Purposes of the Act
This clause details the purposes of the Act. The Act is designed to:
promote the responsible care and use of animals by persons involved in their care or use;
ensure the development and maintenance of proper standards of care that:
— achieve a reasonable balance between the interests of people who depend on animals for their livelihood and the welfare of animals; and
— recognise improvements in scientific knowledge on animal biology and changes in community expectations about practices involving animals;
protect animals from unjust, unnecessary or unreasonable pain; and
ensure that the use of animals for scientific purposes is conducted in an accountable, open and responsible manner.
These purposes are designed to reflect a positive and proactive approach to animal care and protection rather than simply a reactive approach of dealing with acts of cruelty after they have occurred, although dealing with acts of cruelty after they have occurred is still an essential part of the Bill.
Clause 4: How purposes are to be primarily achieved
Clause 4 details the way in which the purposes of the Act are to be primarily achieved. They are:
providing for regulations about codes of practice for animal welfare;
— Codes are currently widely used and are generally accepted as a way of describing acceptable and unacceptable standards for animal care and use within a number of animal industries. Under the Bill, codes may be adopted as a way of defining minimum acceptable standards for animal care and use in a variety of areas;
allowing a regulation to require compliance with a code of practice;
— The Bill does not require all codes of practice adopted to be complied with. However, in some areas of animal use, the real or perceived animal welfare risk to the animal is significant enough to warrant requiring compliance with standards set out in a code;
imposing a duty of care on persons in charge of animals;
— The concept of a duty of care is essential to promoting a proactive approach to animal care and protection. The duty of care is designed to ensure that animal owners/users recognise their responsibilities towards animals;
prohibiting certain conduct in relation to animals;
— The community generally regards certain conduct in relation to animals as unacceptable. This includes conduct that may generally be categorised as cruel as well as certain specific practices and procedures that the community regards as inherently cruel or unnecessary;
requiring a person using an animal for scientific purposes to comply with the Australian Code of Practice for the Care and Use of Animals for Scientific Purposes (‘the scientific use code’);
— The scientific use code is a national code and aims to ensure the humane care of animals used for a broad range of scientific purposes;
providing for the registration of certain users of animals for scientific purposes;
— This reflects the Commonwealth Senate Select Committee into Animal Welfare (1989) recommendation that, as a means of controlling the use of animals for scientific
purposes, research institutions using animals should be licensed;
providing for the appointment of authorised officers to monitor compliance with compulsory code requirements and the scientific use code;
providing for the appointment of inspectors to investigate and enforce the Act—The Bill increases the classes of persons who may be appointed as inspectors to investigate and enforce the legislation; and
providing for the establishment of the Animal Welfare Authority to advise the Minister on animal welfare issues and the implementation of this Act.
Clause 5: Application of the Act
This clause provides that the provisions of Part 5 together with the provisions of this Act will apply in Australia and in each external territory and, in turn, gives effect to a prescribed treaty or international agreements, and relates to matters external to Australia and those of international concern.
Without prejudice to their effect because of subsection (1) or (2), the provisions of this Act apply to the welfare of animals and dealings in respect of animals:
that are owned by, or in the possession or control of, the Commonwealth, or of an authority or instrumentality of the Commonwealth or of a Commonwealth company; or
that are supplied to the Commonwealth, or to an authority or instrumentality of the Commonwealth or to a Commonwealth company; or
that are owned by, or are in the possession or control of, a trading corporation; or
that are owned by, or are in the possession or control of, a financial corporation; or
that are owned by, or in the possession or control of, a foreign corporation; or
that are situated in a state and/or territory or owned by or in the possession or control of a resident of a state and/or territory; or
that are the subject of, or used in, the course of trade or commerce:
between Australia and a place outside Australia; or
among the States; or
within a Territory, between a State and a Territory or between 2 Territories.
By force of this subsection, this Act, as it applies to a trading corporation or a financial corporation, has effect in relation to things done, or authorised or caused to be done, by the corporation in the course of its trading activities or its financial activities.
In this section:
financial corporation means a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a financial corporation formed within the limits of the Commonwealth.
trading corporation means a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a trading corporation formed within the limits of the Commonwealth.
Clause 6: Saving of certain state and territory laws
Clause 6 makes provision for this Act not to affect the operation of a law of a state or of a territory that makes provision with respect to the welfare of animals and is capable of operating concurrently with this Act.
In the event that state provisions are deemed more stringent by the Commonwealth Minister, those state provisions shall prevail.
Clause 7: Act to bind the Crown
Clause 7 binds the Crown in all its capacities, and there is nothing in this Act that renders the Crown liable to be prosecuted for an offence.
Part 2—National Animal Welfare Authority
Clause 8: National Animal Welfare Authority
This clause refers to the establishment of the National Animal Welfare Authority; it is the regulatory body for animal welfare in Australia.
Clause 9: Legal status of the Authority
Clause 9 identifies the Authority as a body corporate, it has a seal and may sue and be sued in its corporate name. All courts, judges and people acting judicially must take judicial notice of the imprint of the seal of the Authority appearing on a document, and are to presume that the document was duly sealed.
Clause 10: Constitution of the Authority
This clause identifies the composition of the Authority:
3 members representing the Commonwealth; and
2 members representing commercial producers or users of animals and animal products; and
2 members representing animal welfare NGOs; and
2 members representing community groups; and
4 other members, at least 2 of whom are scientists; and
1 member who is an ethicist
The members are to be appointed by the Minister. The Chairperson of the authority is to be elected by the members of the authority. This position is not to be held for more than 12 months by the same person in any 2-year period.
Clause 11: Terms and conditions of appointment
This clause describes the appointment of members, which will be for a period (not longer than 3 years) as specified in the instrument of appointment—members are eligible for reappointment. A member holds office on the terms and conditions (if any) in relation to matters not covered by this Act as are determined by the Minister.
Clause 12: Advisory committees
This clause provides for the Authority to establish national advisory committees as determined by the Authority, or at the request of the Minister or the Ministerial Council.
Clause 13: Functions and powers of Authority
Clause 13 describes the Authority having the following functions and powers:
the coordination, monitoring and review of Commonwealth responsibilities for animal welfare;
functions and powers conferred on it by or under this Act (other than this section);
functions and powers conferred on it by or under other laws of the Commonwealth;
functions and powers that are, with the consent of the Ministerial Council, conferred on the Authority by writing signed by the Minister.
The Authority has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions. The Authority is required to perform its functions and exercise its powers in accordance with the Agreement (so far as applicable) and is to comply in all respects with the provisions of the Agreement that are applicable to it.
Clause 14: Reports and advice to be provided to the Ministerial Council
This clause explains that the Authority is to provide to the Ministerial Council such reports relating to the performance or exercise of the Authority’s functions or powers as the Ministerial Council directs.
And that the Ministerial Council may, by resolution, direct the Authority to provide advice about any matter related to the functions or powers of the Authority or of the Ministerial Council.
Clauses 15: Appointment of Inspectors
Under clause 15 the Authority may appoint national inspectors; an inspector is responsible for matters specified by the Authority.
The Chairperson of the Authority is responsible for the issuing of identity cards containing a recent photograph of the inspector and identifying the holder of the card as an inspector for the purposes of this Act.
Clause 16: Qualifications of Inspectors
This clause sets out the minimum requirements for the appointment of Inspectors. National Inspectors are required to have a sound knowledge of animal husbandry and animal welfare. Minimum academic requirement is the completion of a prescribed course of training in animal welfare or an equivalent course of study.
There is a necessity for the Inspectors to have a thorough knowledge of the operation of this Act and the regulations, and the codes of practice approved by the Minister under this Act. And Inspectors can only be appointed to such positions if the individual is a public service officer or employee, or employed by the Royal Society for the Prevention of Cruelty to Animals, or included in a class of individuals declared under a regulation to be an approved class of person for this section.
Clause 17: Powers of Inspectors—General powers
Under this clause the appointed Inspectors may exercise any of the following powers in order to fulfil the objects of this Act.
Inspectors have the power to undertake random inspections of animals. And a person with an animal in their care must permit inspection of the animal as well as of the housing, foodstuffs and equipment intended for use with the animal.
It is essential for inspection advice to be submitted to the animal keeper on or before the commencement of the inspection.
Inspectors may inform an animal keeper that he or she has 12 hours in which to take action or their animal(s) will be seized, or immediately seize animals, or that the animal will be humanely killed, or take any other necessary steps to relieve an animal from suffering, including the administering of analgesics to the animal(s) when such intervention is required.
Division 2—Entry to places other than vehicles
Subdivision 1—Power to enter places other than vehicles
Clauses 18: Power of entry
Serious animal welfare problems can develop when animals are used for commercial purposes because many such uses take place on private property and away from scrutiny. To protect the welfare of animals used for such purposes, inspectors are provided with the powers of entry that are essential if the Bill is to meet its stated purpose of protecting animals from unjust, unnecessary or unreasonable pain and to gather evidence of animal welfare offences that would otherwise be hidden or destroyed. Inspectors are permitted to enter without warrant in the following limited circumstances:
to ensure compliance with an animal welfare direction;
where an animal has sustained a severe injury that would otherwise remain untreated for an unreasonable period of time;
where there is imminent risk of death or injury to an animal because of an accident or animal welfare offence; and
where any delay in entering will result in the concealment or destruction of evidence or the death of an animal that is being used in an offence.
Clause 18 also provides power to enter the non-residential parts of a place where an animal is suffering because of lack of food or water, or because the animal is entangled and the person in charge of the animal does not appear to be at the place. Entry is only permitted in these circumstances for the duration of providing relief to the animal and the issuing of a notice advising the occupier of the entry and providing the inspector’s contact details.
It is considered that the need to assist animals that have been severely injured, to protect animals from death or injury and to seize evidence where it would be otherwise destroyed or concealed is sufficient and appropriate justification to override the fundamental legislative principle that power to enter premises should be conferred only with a warrant issued by a judicial officer.
Clause 19: Limited entry to provide relief to an animal
Inspectors are provided with limited powers under clause 19 so as to provide relief to an animal at a place (other than a vehicle or part of the place at which a person resides or apparently resides.) The inspector can enter if they reasonably suspect that the animal is suffering from lack of food or water or is entangled.
In these circumstances, the inspector may enter and stay at the place only for the period of time necessary to provide food or water, or disentangle the animal. This clause is designed to address situations where a neighbour reports a dog is tied up in a backyard without food or water, and it is obvious that the owners have gone away for a number of days.
Where the inspector exercises this power, they must leave a notice identifying the inspector, the action taken and when the action was taken before leaving the place. This information will enable the person in charge of the animal to take action if the person considers that the action taken by the inspector was unreasonable.
Subdivision 2—Procedure for entry without warrant
Clause 20: Procedure for entry with consent
This clause outlines the procedures an inspector must follow when seeking consent to enter a place.
Clause 21: Procedure for other entries without warrant
This section applies if the inspector is intending to enter a place other than with consent of its occupier, where it is a public place or with a warrant. In those circumstances the inspector must, if the occupier is present, before entering, making a reasonable attempt to:
display the inspector’s card;
tell the person of the entry; and
tell the person the inspector is permitted to enter the place without the person’s consent or a warrant.
Clause 22: Application for warrant
This clause makes provision for an inspector to apply to a magistrate or a justice of the peace (qualified) for a warrant to enter a place. Under this provision, a magistrate or a justice of the peace (qualified) may refuse to consider an application until an inspector provides them with the information he or she requires. The application cannot be made to a magistrate or a justice of the peace (qualified) who is employed by the same department or a person that employs the inspector.
Clause 23: Issue of warrant
This provision sets out the conditions under which the magistrate or a justice of the peace (qualified) may issue a warrant and specifies the information that must be stated in the warrant.
Claude 24: Special warrants
The special warrant clause makes provision for and outlines the procedures by which an inspector can apply for a warrant by telephone, facsimile, radio or another means of communication because of urgent or special circumstances.
Clause 25: Warrants—procedure for entry
This outlines the procedures that an inspector must follow or attempt to follow prior to entering a place under a warrant. However, the procedures need not be complied with if immediate entry is required to ensure the effective execution of the warrant is not frustrated.
Division 3—Entry to vehicles
Subdivision 1—Power to enter vehicles
Clause 26: Power of entry
Provision has been made for the entry to vehicles. Transportation of animals is an area where there are many animal welfare problems and concerns, such as overcrowding and excessive distances without sufficient water, food or rest. This clause provides inspectors with appropriate powers to address these issues.
The clause empowers an inspector to enter a vehicle:
with the consent of the person in charge of the vehicle; or
if the person in control of the vehicle has been given an animal welfare direction and the entry is made at a time stated in the direction to check compliance with the direction.
An inspector may also enter a vehicle if the inspector reasonably suspects the vehicle is being or has been used in the commission of an animal welfare offence or contains evidence of an offence.
Finally, an inspector may enter the vehicle if the inspector reasonably suspects that there is an imminent risk of death of or injury to an animal in the vehicle (such as a dog locked in a car suffering heat exhaustion) or it is necessary to relieve an animal of pain or prevent an animal suffering pain in a vehicle.
Clause 27: Procedure for entry without consent if person in control or occupier present
This clause applies where an inspector is intending to enter a vehicle under clause 26 other than with the consent of the person in control of the vehicle. Before entering, the inspector must, if the person in charge of the vehicle or the occupier of the vehicle is present, make a reasonable attempt to:
display the inspector’s identity card;
tell the person the purpose of the entry;
seek the consent of the person to the entry; and
tell the person the inspector is permitted to enter the place without the person’s consent.
If the person in control of the vehicle is not present at the vehicle, the inspector must take reasonable steps to advise the person or any registered operator of the vehicle of the inspector’s intention to enter.
The inspector is not required to take any of the above steps if the inspector reasonably believes it may frustrate or otherwise hinder an investigation under the Act or the purpose of the intended entry.
Subdivision 2—Powers to support entry
Clause 28: Power to stop vehicle that may be entered
This clause provides an inspector with the power to stop a moving vehicle or to prevent a vehicle from moving that the inspector intends to enter.
Clause 29: Failure to comply with stop signal
Failure to comply with a stop signal given by an inspector will be seen as an offence under clause 29. It will not be an offence if the person had a reasonable excuse such as that immediately obeying would have endangered the person or someone else and the signal was complied as soon as practicable. Maximum penalty is 100 penalty units ($11,000 at current rates).
Clause 30: Power to require help to enter from person in charge
This clause empowers an inspector, where the inspector may enter a vehicle under this Part, to require the person in control of the vehicle to give the inspector reasonable help to enter the vehicle (an entry requirement). For example, where a vehicle is locked and the person in control of the vehicle has the keys, the inspector may require the person to unlock the vehicle.
When making an entry requirement the inspector must warn the person in charge of the vehicle that it is an offence not to comply.
Clause 31: Failure to comply with entry requirement
Failure to comply with an entry requirement given by an inspector will be seen as an offence under clause 31, unless the person has an appropriate and reasonable excuse.
Division 4—Powers for entry to all places
Clause 32: Application of Division
This Division applies where an inspector may enter or has entered a place under the Part (Powers of Inspector) other than under the limited entry power to provide relief to an animal (clause 19). If the inspector enters a place to get the occupier’s consent to enter the premises (clause 21), this Division will only apply to the inspector if the consent is given or the entry otherwise authorised.
Clause 33: General powers
Clause 33 specifies the powers available to an inspector who has entered a place for the purposes enforcing compliance with the legislation. The inspector may:
enter the place using reasonable force;
search any part of the place;
open, using reasonable force, any container or any cage, pen, yard or other structure confining an animal so as to examine the animal, structure or other thing;
take a reasonable measures to relieve an animal’s pain (for example, feed, water or untether an animal);
inspect, examine, photograph or film an animal, document or any other thing at the place;
make copies of a document at the place;
take into or onto the place any persons, equipment or materials the inspector reasonably requires for exercising any powers in relation to the place;
take samples for testing (for example, to obtain evidence of dehydration or poor food quality);
identify an animal, for example, by ear tagging or paint branding (this may be necessary to indicate which animals require treatment or are to be seized); and
take any other necessary step to exercise a power under the clause, such as mustering, unloading or yarding cattle to allow them to be examined.
Clause 34: Power to require reasonable help
An inspector may require reasonable help from a person at the place being entered into by the inspector, such as requiring the production of a document or the provision of information under clause 34.
When making a help requirement the inspector is under a duty to warn the person that it is an offence not to comply with the requirement without a reasonable excuse.
Clause 35: Failure to comply with help requirement
It is an offence under clause 35 not to comply with a help requirement given by an inspector under clause 34 unless the person has an appropriate and reasonable excuse. The clause provides that it will be a reasonable excuse for a person not complying with a help requirement if complying might tend to incriminate the person. However, this does not apply if the requirement is to produce a document required to be kept under the Act or another Act where the document relates to the transportation of animals. An example of this type of document is a vehicle logbook required to be kept under transport legislation. The logbook may provide details of the animals being transported (such as, where the animals were loaded and the period they have been travelling) which is important to an inspector’s investigation.
Clause 36: Power to require a person in control of a vehicle to take action
This clause gives an inspector, in order for the inspector to exercise a power under this Act, the power to require a person in charge of a vehicle to:
bring the vehicle, or an animal or thing in it, to a stated place (for example, a cattle truck driver may be required to bring the truck to unloading facilities); or
remain in control of the vehicle, animal or other thing at the place for a reasonable period.
This power is called an ‘action requirement’. The power is needed to allow an inspector to properly examine animals that are being transported. When making the action requirement the inspector must give the person an offence warning.
Clause 37: Failure to comply with action requirement
It is an offence under clause 37 not to comply with an ‘action requirement’ ordered by an inspector under clause 36, unless the person has a reasonable excuse.
Clause 38: Compliance
This clause states that the provisions of the Act must be complied with and sets out the consequences of failure to comply.
Division 5—Seizure and forfeiture
Subdivision 1—Powers of seizure
Clause 39: General power to seize evidence
An inspector who enters a place under this part may seize an animal or thing at the place:
if the inspector reasonably suspects the thing is evidence of an offence against the Act;
if the inspector reasonably believes it is necessary to prevent it being hidden, lost or destroyed, or used to commit, continue or repeat the offence;
which the inspector reasonably believes has just been used in committing an offence against the Act; or
with the written consent of a person the inspector reasonably believes is the person in charge of an animal or the owner or person in possession of the thing. In this case, the owner may also consent to transfer ownership of the animal or thing to the state or a prescribed entity.
If the entry to the place by the inspector was by consent of a person, the inspector may seize a thing at the place only if the seizure is consistent with the purpose of entry as told to the person.
The intent of the clause is to limit seizure to only those circumstances where it is regarded as necessary.
Clause 40: Seizure of evidence under warrant
An inspector who enters a place under a warrant may seize the evidence for which the warrant was issued.
Clause 41: Seizure for welfare of the animal
This clause enables an inspector who has entered a place under this part to seize an animal in order to protect its welfare. Seizure can be made when the inspector reasonably believes that the animal is under imminent risk of death or injury, requires veterinary treatment or is experiencing undue pain and the welfare of the animal requires its immediate seizure.
This power can be used in circumstances, such as where a prohibited event like a dogfight, is taking place or where an animal is being beaten or tortured. Other circumstances where this power may be required include where an animal’s owners are absent and cannot be contacted to arrange urgent veterinarian treatment or the animal’s owners are refusing to provide urgently required treatment.
An inspector may also seize an animal if the person in charge of it has contravened or is contravening an animal welfare direction or court order about the animal.
Clause 42: Seizure of property subject to security
An inspector under clause 42 may seize an animal or thing under this subdivision or exercise powers in relation to it despite the fact that another person has a lien or security over it. The seizure does not, however, affect the person’s lien or security against a person other than the inspector or a person acting for the inspector.
Subdivision 2—Powers to support seizure
Clause 43: Direction to person in charge
This clause provides an inspector with power to give a direction to the person in charge or owner or person in possession of an animal or thing to be seized (a “seizure direction”). The direction can be to take the animal or thing to a reasonable place or places or, if necessary, to remain in control of it at the stated place for a reasonable time. For example, the direction may require animals that were being transported, to be taken to a secure pound-yard to enable treatment to be provided during the seizure.
The direction must be in the approved form or, if that is not practicable, a notice in the approved form must be given as soon as practicable.
Clause 44: Failure to comply with seizure direction
It is an offence under clause 44 not to comply with a seizure direction given by an inspector under clause 43.
Clause 45: Powers for seized things
Clause 45 details the powers available to inspectors for seized animals or things. The inspector may:
move it or take an animal to a place the inspector believes is appropriate;
leave it at place of seizure but restrict access to it by, for example, branding, marking sealing or tagging it or sealing the entrance to a room where the thing is stored to show access to it is restricted;
make equipment inoperable;
arrange for veterinary treatment or examination if the inspector reasonably believes that the animal requires treatment;
take other reasonable measures to alleviate the animal’s suffering (for example, provide food and drink);
take action to ensure that any previously given animal welfare direction is complied with (for example, where a direction to provide adequate feed to drought affected stock was not complied with, the inspector may organise a contractor to supply and feed the stock at the place they are held during seizure).
Clause 46: Offence to tamper with seized thing
This clause provides that it is an offence for any person, other than an inspector or a person authorised by an inspector, to do or attempt to do, in relation to an animal or seized thing under this part:
tamper with it or something done to restrict access to it;
enter, or be at, the place where it is being kept;
move it from the place where it is being kept;
have the animal or other thing in the person’s possession.
Subdivision 3—Safeguards for seized animal or property
Clause 47: Information notice and receipt for seized animal or property
Under clause 47 an inspector is required to issue a receipt and an information notice for any seized thing and give the receipt and information notice to the person from whom it was seized. However, the clause does not apply if:
the seizure was by written consent;
the inspector reasonably believes no one is in possession of the thing;
the thing has been abandoned; or
the seized thing is not an animal and it would be impractical or unreasonable to expect the inspector to account for it given its nature, condition and value. This would apply to, for example, animal droppings collected for evidence.
The receipt must generally describe each thing seized and its condition. If the person is not present, the inspector must leave the receipt and information notice at the place of seizure in a conspicuous position and in a secure way.
The inspector may delay giving the receipt and information notice for as long as the inspector has reasonable suspicion that to do otherwise may frustrate or hinder an investigation.
Clause 48: Access to seized animal or property
This clause requires an inspector who has seized anything to allow the owner of the thing access to inspect it at any reasonable time or, if it is a document, to copy it. The section does not apply when it would be unreasonable to allow these rights to the owner. The inspection or copying must be provided free of charge.
Clause 49: Return of seized animal
Under this clause the inspector is required to return an animal seized under this part within 28 days unless:
the animal’s owner has agreed in writing to transfer ownership to the State or a prescribed entity such as the RSPCA;
the animal has been forfeited to the State under this part;
an application has been made for a disposal or prohibition order in relation to the animal;
the inspector needs to retain the animal for evidence in proceedings for an offence involving the animal (for example, for the purposes of assessment);
an animal welfare direction in regard to the animal has not been complied with and the inspector is taking or proposes to take action to ensure compliance; or
the inspector reasonably believes that the animal’s condition may require its destruction under clause 59.
The intention of this clause is to avoid the prolonged seizure of animals and the resultant costs to parties without compromising the welfare of the animals. For more marginal welfare situations, the Bill provides alternative means to seizure of addressing welfare needs through the issuing of animal welfare directions.
Clause 50: Return of other seized property
This clause provides for the return by an inspector of a seized thing with some intrinsic value other than where the owner has not agreed to transfer ownership to the state or a prescribed entity or it has been forfeited.
Under the clause, the inspector must, unless an application has been made for a disposal order:
return the thing at the end of six months after seizure; or
if a proceeding has been commenced within six months of seizure, at the end of the proceedings and any appeal from the proceeding; or
return the item as soon as the inspector is satisfied the thing is no longer required as evidence or to prevent the thing being used to continue or repeat the offence.
Clause 51: Power to forfeit
This clause sets out the circumstances under which a seized animal or other thing will be forfeited to the state, for example:
if the owner cannot be found, after making reasonable inquiries;
it cannot be returned to its owner after making reasonable efforts; or
it is necessary to prevent it from being used in committing, or becoming the subject of, an animal welfare offence.
The clause applies to animals or things seized under this Bill. The intention is to establish a means of providing for the safety of animals in more serious circumstances where it is clearly not possible or not feasible to return the animal to their owner. Forfeiture is designed to also avoid substantial costs that may occur for both the owner and the enforcement agency of holding seized animals.
Clause 52: Information notice about forfeiture
This clause provides that if the chief executive decides to forfeit an animal or other thing, the chief executive must promptly give its owner an information notice. The information notice will advise the owner of the animal or other thing that he or she may apply for a stay of the decision if he or she appeals the decision. The requirement to supply an information notice does not apply where it relates to an animal seized in a public place or other place where it is unlikely to be read by the person who owned the animal before forfeiture (for example, where an animal seized has roamed from an unknown place into a person’s yard).
Subdivision 5—Dealing with property forfeited or transferred to Commonwealth or
Clause 53: When transfer takes effect
Under this clause there is provision for an animal or a thing to become Commonwealth property when it is forfeited to the Commonwealth or when the owner agrees in writing to transfer ownership to the Commonwealth or a prescribed entity and the Commonwealth or entity agrees to the transfer.
Clause 54: How property may be dealt with
This clause details how an animal or other thing may be dealt with if it becomes the property of the Commonwealth under clause 53. The clause provides that the Commonwealth may deal with the property as it sees fit including destroying it or giving it away provided that the property is not dealt with in a way that could prejudice the outcome of an appeal. If the property is sold, the proceeds of the sale may be returned to the former owner after deducting net proceeds of sale and allowing for any costs recovered.
Clause 55: Appeal against forfeiture
There is provision in this part for the owner of the animal or the thing that has been forfeited to appeal to the Chairperson of the National Animal Welfare Authority against that forfeiture. The appeal must be in writing and must specify the grounds on which the appeal is made.
Clause 56: Where a person makes an appeal in accordance with section 55
This clause allows the Chairperson of the Authority to consider expeditiously an appeal—either to overturn the forfeiture or confirm the forfeiture. The person to be notified will receive the decision in writing together with a statement of reasons.
Division 6—Animal welfare directions
Clause 57: Application of Division
Clause 57 covers the application of animal welfare directions. Under this part an inspector has the power to give directions about an animal’s welfare to a person in charge of an animal.
The ability of inspectors to give directions is a way to simplify enforcement of the legislation. It is a means of achieving the best outcomes in many animal welfare situations for the animals, their owners and the enforcement agency. Although animal welfare directions can be used in conjunction with seizure powers, they provide a way of avoiding taking an animal from their owner in the appropriate situations. Animal welfare directions also have educational value by indicating to persons in charge of animals what they should be doing for the animal’s welfare.
The part applies, and therefore directions may be given where the inspector believes on reasonable grounds that the animal:
is not being cared for properly;
is experiencing undue pain;
requires veterinary treatment; or
should not be used for work (for example, a horse with saddle sore should not be used by a riding school);
is seized under this Bill.
This is designed to cover situations such as where an animal is not being provided with suitable feed or water, lives in unsanitary conditions or is suffering from an untreated injury or illness.
Directions can be given in any circumstances and not just where an inspector has exercised powers of entry into places or vehicles. For example, an inspector can give written directions on public roads or an authorised officer can give a direction when exercising monitoring powers.
Clause 58: Power to give animal welfare direction
This clause sets out who may be given an animal welfare direction and what action may be required under an animal welfare direction. A direction may be given to a person in charge of an animal, a person who an inspector reasonably believes is in charge of an animal or was in charge immediately before the animal was seized.
The steps the person in charge of the animal may be required to do to rectify the problem include to:
care for or treat the animal in the way specified in the direction;
provide the animal with the rest, food, drink or living conditions specified in the direction; or
consult a veterinary surgeon about the animal’s condition;
move the animal from the place where it is situated to another place for the purposes mentioned above; or
not move the animal from the place where it is situated.
Only requirements the inspector considers necessary and reasonable in the interests of the animal’s welfare may be specified in the direction.
Clause 59: Requirements for giving animal welfare direction
This clause prescribes the requirements for giving animal welfare directions. Directions must always be provided in writing (in an approved form) unless this is not possible for some good reason in which case an oral direction may be provided. Written confirmation of any oral direction must be provided within a reasonable period of time.
The direction may include a stated time or times the inspector will reenter a place to check compliance with the direction.
Clause 60: Failure to comply with animal welfare direction
Failure to comply with a direction will be an offence unless the person has a reasonable excuse.
Division 7—Inspector’s power to destroy animals
Clause 61: Power of destruction
This clause gives inspectors the power to destroy animals. It is recognised that the destruction of a person’s animal seriously impacts on that person’s rights. Therefore, an inspector is given the power to destroy an animal only where:
an inspector has seized the animal under this part or the person in charge has given written consent to the destruction; and
the inspector reasonably believes that the animal is suffering to such an extent that it would be cruel to keep the animal alive.
Clause 62: Other duties
Under this clause an inspector is required to maintain an inventory of all animals for which he/she has responsibility, keep a record of activities, and regularly submit an animal report to the National Animal Welfare Authority.