Submission to the Queensland Animal Care and Protec on Act Review
May 2021
The Animal Law Ins tute is a not-for-profit community legal centre that is dedicated to protec ng animals and advoca ng for their interests through the Australian legal system.
21 May 2021
Manager Animal Care and Protec on Act Review Animal Biosecurity and Welfare Biosecurity Queensland GPO Box 46 Brisbane QLD 4001 [email protected]
Dear Manager,
Review of the A nimal Care and Protec on Act 2001 ( Qld) (the R eview)
The Animal Law Ins tute (A LI) welcomes the opportunity to make this submission to the Queensland Government in response to its review of the Animal Care and Protec on Act 2001 (Qld) (A CPA) . We believe the Review represents a useful opportunity to introduce improvements to the ACPA, par cularly given that the ACPA has been in opera on for 20 years without significant review. Our responses to each of the iden fied areas contained in the published discussion paper are set out below.
About ALI
ALI is a registered charity and a not-for-profit community legal centre that is dedicated to protec ng animals and advoca ng for their interests through the Australian legal system. ALI is a member of peak bodies; the Victorian Federa on of Community Legal Centres and the Na onal Associa on of Community Legal Centres. ALI currently operates in Victoria, New South Wales and Queensland.
Further informa on about ALI can be found here: w ww.ali.org.au
Support for this submission
This submission is supported by the following leading animal law organisa ons:
● Animal Defenders Office; and ● Australasian Animal Law Teachers' And Researchers' Associa on (AALTRA).
Their support is acknowledged at the conclusion of this submission.
Chapter 2: Animal welfare legisla on in Queensland
The legisla ve framework in Queensland is fragmented and complex, consis ng of the ACPA, subsidiary regula on and codes of prac ce. Whilst no ques ons have been posed by the discussion paper on this chapter, ALI considers that, with the backdrop of the Review, it is necessary to reflect on the strength of the legisla ve framework governing animal welfare in Queensland as it currently
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stands. We also note that codes of prac ce are not in scope for this Review; regardless, we provide high-level reflec ons on these in our submissions. Our reflec ons also inform the submissions we make in respect of other chapters below.
It is ALI’s view that the current legisla ve framework undermines the effec veness of the ACPA, whereby much of the harm caused to animals in Queensland is sanc oned by this framework, despite it being contrary to the spirit of the ACPA. We consider that Queensland’s piecemeal approach to animal welfare regula on fails to protect the welfare of the majority of animals in Queensland and achieve meaningful welfare reform.1
ALI’s cri cisms of the legisla ve framework in Queensland can be summarised as follows:2 1. complexity of the framework; 2. existence of an inherent conflict of interest in the bodies responsible for dra ing animal welfare codes and standards; 3. inconsistencies and o en contradictory language and structure of the framework; and 4. lack of a coherent and adequately resourced strategy to enforce animal welfare laws.
Our cri ques of the codes of prac ce and regula on-making powers under the ACPA are outlined as follows.
Codes of prac ce
Drawing on the above cri cisms, ALI considers that the deficiencies with the framework are par cularly illustrated by its use of codes of prac ce and their inherent limited coverage and protec on of animals.
Codes of prac ce in Queensland have varying degrees of enforceability and legal status. This is due to the fact that compliance with certain codes of prac ce is mandatory; for others, it is voluntary. For example, sec on 13(1) of the ACPA provides that a regula on may make codes of prac ce about animal welfare, yet sec on 15(1) provides that a regula on may require a person to comply with the whole or a stated part of a code of prac ce. The Animal Care and Protec on Regula on 2012 (Qld) (the Regula on) prescribes certain mandatory compliance provisions, such as regula on 2(2), providing that a person must comply with a code of prac ce contained in Schedules 1, 2, 3 and 3A to the Regula on (involving codes of prac ce concerning domes c fowl, pigs, livestock transport and the breeding of dogs, respec vely). In contrast however, the 15 codes of prac ce referenced in Schedule 4 to the Regula on are all in fact voluntary3 , given that they ‘may’ be complied with by a person.4 Accordingly, non-compliance with the majority of codes of prac ce in Queensland is not an
1 This is par cularly so where animals used in food produc on are concerned. 2 Alex Bruce, A nimal Law in Australia An Integrated Approach (LexisNexis Bu erworths Australia, 2nd ed, 2018) 82, no ng that while the author’s comments were made in respect of the Australian legisla ve regime generally, we consider they are s ll applicable to the Queensland legisla ve framework, given this framework is part of the Australian legisla ve regime. 3 These codes of prac ce cover the farming and slaughtering of a variety of animals for human consump on, and treatment of feral animals. 4 A nimal Care and Protec on Regula on 2012 (Qld) reg 3(2).
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offence under the ACPA. Further, compliance with a code of prac ce creates an offence exemp on pursuant to sec on 40 of the ACPA, which effec vely ‘unestablishes’ an offence of animal cruelty under sec on 18 of the ACPA.
Codes of prac ce are u lised in industries with the highest propensity for animal pain and suffering, notably, animal agriculture.5 For example, we are aware of numerous instances of alleged animal cruelty within the agricultural industry in Queensland, that to our knowledge have not been subject to enforcement.6 Cri cally, the animals in these par cular industries are those who require the protec on of the current legisla ve framework the most, but are exempt from the protec on of the ACPA because they have economic u lity to humans.
ALI recommends that the references to codes of prac ce be removed from the ACPA and the Regula on and their use be phased out completely. ALI is of the view that all animals should be protected by the ACPA, regardless of their rela onship or func onality to humans. We also note that the requirements in these codes of prac ces generally require revision to reflect current scien fic research, as well as community expecta ons regarding the treatment of animals. We consider the framework would be strengthened if it consisted of primary legisla on; the ACPA, and subordinate legisla on - the Regula on, both of which are binding and enforceable. Adop ng this framework in this way would therefore incorporate terms of each code of prac ce to require mandatory compliance.
Regula on-making powers under the ACPA
Sec on 217 of the ACPA specifies that regula ons may be made under the Act but it does not provide any further detail or criteria for the making of regula ons. We recommend that sec on 217 be amended to include a requirement that the regula ons cannot be inconsistent with the animal welfare du es of the Act.
ALI also submits that the ACPA be amended to include requirements rela ng to the process of making regula ons and other subordinate legisla on. We propose that these requirements include:
● considera on of up-to-date animal welfare science and best prac ce procedures with input from experts in the field;
5 ‘How laws are failing animals: Codes of Cruelty’, A nimals Australia ( Web Page)
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● an assessment of current community standards and expecta ons of animal welfare laws; ● a public consulta on process of an appropriate length (including suitable adver sement of the consulta on itself and mul ple, accessible ways for the public to respond); ● the development of a welfare impact assessment; and ● an appropriate review process (for example, a er five years from the date of enactment).
Chapter 3: Purposes of the ACPA
Q. One of the purposes of the ACPA is to “...achieve a reasonable balance between the welfare needs of animals and the interests of people whose livelihood is dependent on the animals…” This purpose is s ll suitable with increased animal welfare expecta ons and consumer preferences. A. Strongly disagree.
Since the introduc on of the ACPA 20 years ago, significant advances in science and technology have been made, including the development of alterna ve meat and animal products and research recognising the sen ence of animals and their ability to experience pain and suffering.7 As the discussion paper recognises, there has no doubt been an increased interest and awareness of moral and ethical issues by consumers, par cularly with regards to the treatment of animals. Community expecta ons and a tudes have shi ed, and con nue to shi , from those of 20 years ago.
This shi is exemplified by the large number of consumers ac vely making food and lifestyle choices that minimise or eliminate harm caused to animals. By way of example, the consump on of and investment in alterna ve meat products only con nues to grow in Australia.8 Separately, there appears to be an increased trend in consumers wan ng to invest ethically and hold companies (including their supply chains) accountable to acceptable standards of animal welfare. This is highlighted by the existence of super funds such as ‘Cruelty Free Super’ and ‘Australian Ethical Super’,9 and even large banks including their stance on animal welfare as part of their Environmental, Social and Governance documenta on, or in standalone animal welfare policies.1 0 We consider these choices are mo vated by an increased consumer interest in animal welfare issues, demonstrated by the public opprobrium resul ng from graphic exposés of animal cruelty, for example, the ABC Four
7 Philip Low, T he Cambridge Declara on on Consciousness (7 July 2012) Churchill College
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Corners Live Export exposé; ‘A Bloody Business’.1 1
The ACPA is the only animal-centric legisla on in Queensland with the purpose of protec ng animal welfare. Due to this, it is ALI’s view that the ACPA’s purposes should focus primarily on achieving acceptable standards of welfare for animals, in line with objec ve scien fic research and community expecta ons. Its purposes should not be influenced by the interests of others who stand to benefit economically from exploi ng animals; otherwise, to do so would always provide an opportunity for those par es to iden fy an overriding human interest to the detriment of animals. This shi in the balance of power is necessary to ensure that animals’ interests, in this animal-centric Act directed at their care and protec on, are paramount. Further, the economic interests of animal owners are already considered as part of the regula on impact assessment process in the development of new laws, regula ons and standards. We therefore do not consider the appropriate place to account for such interests to be within the objects provisions of the ACPA.
In achieving this, ALI considers that the purpose set out in sec on 3(b)(i) of the ACPA should be reframed to align with the Australian Capital Territory animal welfare act. The Animal Welfare Act 1992 (ACT) (A WA) states its objects in sec on 4A as follows:
(1) The main objects of this Act are to recognise that--- (a) animals are sen ent beings that are able to subjec vely feel and perceive the world around them; and (b) animals have intrinsic value and deserve to be treated with compassion and have a quality of life that reflects their intrinsic value; and (c) people have a duty to care for the physical and mental welfare of animals.
For completeness, our submissions with respect to this chapter are not limited to s 3(b)(i) of the ACPA; ALI considers that sec on 3 in its en rety should be reframed to align with the objects set out in sec on 4A of the AWA referenced above.
It is our view that Queensland should follow the Australian Capital Territory approach on this basis because these objects suitably align with increased animal welfare expecta ons and consumer preferences by recognising animals as sen ent beings with intrinsic value. Such an approach would also be consistent with the recogni on of animal sen ence in many other jurisdic ons including New Zealand,1 2 the United Kingdom1 3 and the European Union.1 4
11 ‘A Bloody Business’, A BC Four Corners ( Video, 8 August 2011)
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Duty of care
We recommend that the objects of the ACPA be amended to include express recogni on that people have a duty of care for the welfare of animals. In light of this, we also recommend that the posi ve duty of care imposed under sec on 17 of the ACPA extend to all persons who have animals under their care, control or custody.
We also note that the duty of care provisions currently under the ACPA do not include an obliga on to ensure that persons in charge of animals have the required competency, including appropriate levels of knowledge, and skills or experience, to fulfil their duty of care to the animal in their care or control. In our view such a duty of competency should be incorporated into the ACPA.
In light of this, we propose the following addi onal amendments to sec on 17 of the APCA:
● Replace “water” with “drink”, no ng that some animals may require liquids other than water (for example, due to age or medical reasons).1 5 ● Include further detail on what amounts to “appropriate accommoda on and living condi ons” including the provision of enrichment and protec on from extreme heat and cold at all mes. ● In addi on to the obliga on to provide appropriate “treatment for disease or injury,” include a duty to take reasonable steps to prevent an animal from suffering disease or injury. ● Provide further detail on what amounts to appropriate handling including handling in a way that avoids stress to the animal.
Chapter 4: Prohibited events
Q. The current prohibited event provisions are appropriate. A. Strongly disagree.
ALI submits that the scope of the current prohibited event provisions should be broadened. There are several other events, acts or conduct (collec vely referred to as “ac vi es”) that have the propensity to cause significant harm to animals and are not currently prohibited by the prohibited event provisions.
We consider that comparisons of the prohibited events provisions across Australia are an important reference point for this Review. The prohibited events provisions differ state by state, with certain ac vi es prohibited in some states, but not in others.1 6
15 For example, see RSPCA Australia, ‘What should I feed my ki en?’, R SPCA Knowledgebase ( Web Page updated 8 October 2019)
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We recommend that the prohibited ac vi es in other states and territories that are not classified as prohibited events in Queensland be consolidated into the ACPA to bring the Queensland legisla on in line with the remainder of Australia. It is not logical that certain ac vi es are prohibited, and therefore considered cruel, simply based upon the loca on in which they occur in Australia. We propose that these ac vi es should be prohibited, regardless of their loca on.
Drawing upon the prohibited event provisions in other states and territories, in addi on to the current prohibited events, we consider the following ac vi es should also be expressly prohibited and captured under these amended provisions:
● tail-nicking of horses;1 7 ● steeplechasing/hurdle racing/jumps racing;1 8 ● use of electrical devices;1 9 ● trap-shoo ng;2 0 ● riding/working unfit animals;2 1 ● carrying or conveying;2 2 ● tethering animals;2 3 ● failure to report injuries;2 4 ● rodeos (including calf roping) and game parks;2 5 ● shoo ng of any species of waterbirds including ducks;2 6 ● greyhound racing;2 7
17 Prohibited in: NSW (P reven on of Cruelty to Animals Act 1979 ( NSW) s 21B) and the NT (A nimal Welfare Act 1999 ( NT) s 9). 18 Prohibited in: NSW (P reven on of Cruelty to Animals Act 1979 ( NSW) s 21C). 19 Prohibited in: the ACT (A nimal Welfare Act 1992 ( ACT) s 13); NSW (P reven on of Cruelty to Animals Act 1979 (NSW) s 16); the NT (A nimal Welfare Act 1999 ( NT) s 19); SA (A nimal Welfare Act 1985 ( SA) s 15); and Tasmania (A nimal Welfare Act 1993 ( Tas) s 8). 20 Prohibited in: NSW (P reven on of Cruelty to Animals Act 1979 ( NSW) s 19); the NT (A nimal Welfare Act 1999 (NT) s 21); Tasmania (A nimal Welfare Act 1993 ( Tas) s 10); and Victoria (P reven on of Cruelty to Animals Act 1986 (Vic) s 14). 21 Prohibited in: the ACT (A nimal Welfare Act 1992 ( ACT) s 16); NSW (P reven on of Cruelty to Animals Act 1979 (NSW) s 13); the NT (A nimal Welfare Act 1999 ( NT) s 9); SA (A nimal Welfare Act 1985 ( SA) s 13); Tasmania (A nimal Welfare Act 1993 ( Tas) s 8); Victoria (P reven on of Cruelty to Animals Act 1986 (Vic) s 9); and WA (A nimal Welfare Act 2002 (WA) s 19). 22 Prohibited in: the ACT (A nimal Welfare Act 1992 ( ACT) ss 15 and 15A); NSW (P reven on of Cruelty to Animals Act 1979 ( NSW) s 7); SA (A nimal Welfare Act 1985 ( SA) s 15A); Tasmania (A nimal Welfare Act 1993 ( Tas) s 8); and Victoria (P reven on of Cruelty to Animals Act 1986 (Vic) s 9). 23 Prohibited in: NSW (P reven on of Cruelty to Animals Act 1979 ( NSW) s 10) and the NT (A nimal Welfare Act 1999 ( NT) s 9). 24 Prohibited in: NSW (P reven on of Cruelty to Animals Act 1979 ( NSW) s 14) and the NT (A nimal Welfare Act 1999 ( NT) s 15). 25 Prohibited in: the ACT (A nimal Welfare Act 1992 ( ACT) s 18). 26 Shoo ng of na ve ducks is currently prohibited in Queensland (N ature Conserva on Act 1992 ( Qld) s 97A) but we recommend that a wider ban on the shoo ng of any waterbird species be incorporated into the ACPA. 27 Prohibited in: the ACT (A nimal Welfare Act 1992 ( ACT) s 18A).
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● circuses containing exo c animals; and2 8 ● marine animal exhibits including dolphin displays.
Rodeos
Of the above, a notable poten al inclusion to the prohibited events provisions is rodeos. We note that rodeos are en rely unregulated in Queensland by the ACPA.2 9 There is extensive commentary available on the cruelty inherent in rodeos, which o en involve calf roping, steer wrestling and bareback riding - all ac vi es involving causing terrible injuries and distress to the animals.3 0 The RSPCA opposes rodeos for this reason.3 1 ALI is also of the view that each of these ac vi es should be prohibited.
Greyhound racing
Another notable recommended inclusion is greyhound racing. Racing of greyhounds has already been recognised by other jurisdic ons as both inherently cruel and inconsistent with modern community expecta ons for the appropriate treatment of animals. For example, greyhound racing was banned in the ACT in April 2018 in response to ‘significant welfare concerns associated with the greyhound industry’ raised by the 2016 Special Commission of Inquiry into the Greyhound Racing Industry in New South Wales (Inquiry).3 2 The Inquiry iden fied the extensive range of animal welfare issues inextricably linked with greyhound racing, including catastrophic injuries and the unnecessary deaths of tens of thousands of healthy greyhounds, and the horrendous cruelty associated with the prac ces of live bai ng and blooding.3 3 ALI supports the Inquiry findings and submits that it is not possible to reform the greyhound racing industry so as to avoid unacceptable animal welfare outcomes, or to bring the industry in line with community expecta ons. For this reason, greyhound racing in its en rety should be banned in Queensland and specified as a prohibited event under the ACPA.
Other prohibited conduct
Inclusion of some of the above ac vi es in the prohibited events provisions may require amendments to other sec ons of the ACPA. For example, for rodeos (including calf roping), sec on 20(2) would require repeal; for trap-shoo ng, sec on 20(1)(d) would require amendment.
28 Prohibited in: the ACT (A nimal Welfare Act 1992 ( ACT) s 52(2)). 29 RSPCA Australia, ‘What laws protect animals in rodeos?’, R SPCA Knowledgebase ( Web Page, updated 14 October 2020)
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For the avoidance of doubt, ALI is strongly opposed to any prac ce causing harm to animals: the fact that par cular ac vi es have not been referenced above should not be taken as an indica on that ALI is not opposed to those ac vi es. It is ALI’s expecta on that these other ac vi es would be captured by the general prohibi on on animal cruelty in sec on 18 of the ACPA.
We also take this opportunity to discuss prohibited conduct under the ACPA. In general terms, the ACPA prohibits certain conduct that is likely to result in adverse welfare outcomes for an animal. In our view, however, the following conduct should also be prohibited given the nega ve animal welfare outcomes associated with the conduct:
● breeding an animal with known and avoidable gene c abnormali es that have the capacity to cause harm to their offspring; ● use and possession of pronged collars (as banned in Victoria3 4) ; and/or ● failing to take reasonable steps to minimise the harm caused to an animal, a er the animal is struck by a moving vehicle.3 5
Chapter 5: Repor ng of animal welfare concerns by veterinary professionals
Q. Veterinary professionals should have obliga ons under the ACPA to report suspected incidents of animal cruelty or neglect to authori es. A. Strongly agree.
ALI understands that any person in Queensland may voluntarily report any concerns regarding animal welfare to the Department of Agriculture and Fisheries, RSPCA Queensland and/or the Queensland Police Service. The ACPA extends certain protec ons from liability to those providing informa on to these authori es in good faith.3 6 Currently there are no mandatory legal requirements for veterinary professionals in Queensland to report animal welfare concerns to relevant authori es, yet the Australian Veterinary Associa on (A VA) encourages repor ng.3 7
Introduc on of Mandatory Repor ng
ALI is of the view that the ACPA should be amended to introduce a mandatory repor ng requirement for veterinary professionals in rela on to suspected instances of abuse in contraven on of any provisions under the following categories:
● Animal cruelty offences (under Part 2, Chapter 3 of the ACPA); ● Use of an animal in a prohibited event (under Part 3, Chapter 3 of the ACPA); ● Unregulated surgical procedures conducted on an animal (under Part 4, Chapter 3 of the
34 P reven on of Cruelty to Animals Regula ons 2019 (Vic), reg 11. 35 For examples of such requirements, see P reven on of Cruelty to Animals Act 1979 (NSW) s 14, and A nimal Welfare Act 1992 ( ACT) s 10. 36 A nimal Care and Protec on Act 2001 (Qld) s 215A. 37 ‘Animal abuse policy’, A ustralian Veterinary Associa on (Web Page, 1 December 2013)
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ACPA); and/or ● Any other prohibited conduct (under Part 5, Chapter 3 of the ACPA).
We refer to any conduct falling into the above categories as ‘animal abuse’ in this sec on.
Despite our recommenda ons for amendment set out on page 24, an ‘animal’ is defined very broadly under the ACPA to include “live amphibians, birds, fish, mammals (other than humans) and rep les”.3 8 Therefore, the adop on of a mandatory repor ng requirement as stated above would be applied widely in prac ce.
The AVA advocates against mandatory repor ng requirements for veterinarians “...as this may discourage owners from seeking essen al treatment for their injured animals.”3 9 The AVA also notes that a veterinarian’s first priority should be the welfare of the animal, and that animal abusers could pose a danger to veterinarians given the “...correla on between animal harm and other forms of psycho-social distress.”4 0
To address these concerns, ALI proposes that a mandatory repor ng requirement under the ACPA for veterinary professionals should take into account the veterinarian’s first priority to support the welfare of the animal, and the veterinarian’s obliga on to prevent further harm to the animal. The amendments to the ACPA should also create a balance between the repor ng requirement and any immediate risk or material threat made against the veterinarian.
ALI’s An -Puppy Farm Legal Clinic
An avenue in which we have witnessed the benefits of veterinarian opinion and repor ng is through our establishment of the An -Puppy Farm Legal Clinic in Victoria. ALI established an An -Puppy Farm Legal Clinic in Victoria in February 2021, which is assis ng individuals who have purchased domes c pets from animal breeders, who later discovered that their animal is suffering from a medical condi on requiring veterinary treatment. This typically leaves the individual thousands of dollars out of pocket for past and future veterinary care of their animal. ALI is providing legal advice in rela on to Schedule 2 to the Compe on and Consumer Act 2010 (Cth) (the Australian Consumer Law) as it applies to the sale of domes c animals in these cases. The An -Puppy Farm Legal Clinic is currently supported by the Victorian Government.
Our work in this area has led to an apprecia on of the unique posi on that veterinarians are in, in connec on to the breeding, rearing and treatment of domes c pets. Veterinary professionals are well placed to iden fy the signs of poten al offences under the ACPA (in connec on with poor animal husbandry prac ces or otherwise). The introduc on of any such mandatory repor ng requirement by veterinarians should be supported by the extension of appropriate statutory immuni es to them in connec on with repor ng. We consider that appropriate educa on and
38 A nimal Care and Protec on Act 2001 (Qld) s 11(1). 39 ‘Animal abuse policy’, A ustralian Veterinary Associa on (Web Page, 1 December 2013)
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training within the industry must be provided in order to raise awareness and ensure the requirement is understood and complied with.
Chapter 6: Regulated surgical procedures
Procedures limited to veterinary surgeons
Q. The current list of surgical procedures restricted to veterinary surgeons is appropriate. A. Somewhat disagree.
Medical and surgical procedures—people other than veterinary prac oners
ALI is of the view that under no circumstances should any surgical procedure on an animal be conducted by an unqualified person. To ensure the ACPA reflects this explicitly, we propose the following wording be inserted into a new sec on under Part 4, Chapter 3: “A person who is not a veterinary prac oner commits an offence if the person carries out a medical or surgical procedure on an animal.”4 1 This new sec on must be accompanied by appropriate penal es consistent with animal cruelty offences listed under sec on 18 of the ACPA.4 2
Medical and surgical procedures—veterinary prac oners
We believe that under no circumstances should the surgical procedures currently referred to in Part 4, Chapter 3 of the ACPA be conducted by anyone other than a qualified veterinary surgeon. The list of procedures currently includes the following:4 3
● cropping a dog’s ear; ● docking a dog’s tail; ● debarking opera ons; ● removal of a cat’s claws; and ● docking the tail of a horse or cow.
We propose that this list be expanded to include the following addi onal procedures:
● castra on or spaying of any animal; and ● mulesing of sheep.4 4
The ACPA currently permits a veterinary surgeon to conduct certain procedures if the veterinary surgeon reasonably considers the procedure to be in the interests of the animal’s welfare.4 5 We
41 This reflects the language of an equivalent provision found in A nimal Welfare Act 1992 ( ACT) s 19. 42 Maximum penalty: 2,000 penalty units or three years imprisonment. 43 A nimal Care and Protec on Act 2001 (Qld) ss 23-27. 44 Mulesing is a procedure involving cu ng away wrinkles of skin from a lamb's breech in order to prevent build-up of faeces, which can a ract blowflies and maggots and lead to medical condi ons in the animal. 45 A nimal Care and Protec on Act 2001 (Qld) ss 23(2), 24(2)(a), 25(2)(a), 26(2) and 27(3).
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recommend that all relevant provisions of the ACPA4 6 be amended to permit a veterinary surgeon to conduct the above procedures only in certain instances where the veterinary surgeon reasonably considers the procedure to be in the best interests of the animal’s welfare. We consider that this proposed change removes the interest of the animal’s human owner from the decision, which must be made in the best interests of the animal.
Debarking
ALI does not support provisions in the ACPA4 7 or other statutes or regula ons in Queensland currently enabling debarking surgery to be performed on an animal for non-therapeu c reasons or for convenience-only purposes.
It is not in dispute that barking is a natural behaviour in dogs and that dogs are social animals who use barking as a form of communica on.4 8 It is also not in dispute that debarking may have adverse health consequences to the animal, does not alter the animal’s underlying behaviour causing excessive barking, and may not result in a permanent reduc on of the volume of a dog’s bark.4 9 For these reasons, ALI supports the AVA’s posi on that “...debarking surgery should not be performed on any dog.”5 0
We encourage the State Government to repeal provisions of the ACPA5 1 enabling this surgery to be performed for non-therapeu c reasons or for otherwise convenience-only purposes.
Cosme c-only medical or surgical procedures
It is not in dispute that cosme c-only procedures are no longer limited to procedures such as tail docking and ear cropping in dogs.5 2 Because such procedures are, by defini on, not required for a
46 Amendments required to A nimal Care and Protec on Act 2001 (Qld) ss 23(2), 24(2)(a), 25(2)(a), 26(2) and 27(3). 47 A nimal Care and Protec on Act 2001 (Qld) s 25. 48 ‘Surgical altera on of companion animals’ natural func ons for human convenience’, A ustralian Veterinary Associa on, ( Web Page, 3 August 2018)
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genuine therapeu c purpose, we are of the view that they should not be permi ed under the ACPA. Furthermore, the AVA does not support or recommend any surgical procedures on domes c pets conducted “...primarily to provide a convenience or benefit to humans”, which are described as “...painful and, unless medically warranted, … unnecessary.”5 3
Therefore, it is ALI’s view that the ACPA should be amended to recognise changing market trends and explicitly prohibit a ny procedure of this nature.
Docking a dog’s tail
Q. The current provision on tail docking of dogs is appropriate. A. Somewhat disagree.
Under sec on 24(1) of the ACPA, it is possible for a person who is not a veterinary surgeon to dock a dog’s tail if the procedure is done in a way prescribed under a regula on.
We are of the view that sec on 24(1) of the ACPA should be amended to remove any reference to jus fica on on the grounds that there is an exis ng “regula on”. This change would bring the provision into line with the language of sec on 23(1) of the ACPA, which does not provide for regulatory excep ons. This proposal is made because we can see no reason to permit anyone other than a veterinary prac oner to conduct this procedure. The discussion paper acknowledges that no regula on currently exists. However we recommend amendment of the ACPA at sec on 24(1) to prevent any form of regula on being introduced in future.
Supplying animals subject to regulated surgical procedures
Q. The current provisions for the supply of animals that have undergone a regulated surgical procedure are appropriate. A. Strongly agree.
We agree that the current provisions in the ACPA for the supply of animals who have undergone a regulated surgical procedure are appropriate.
Chapter 7: Possession or use of certain traps or spurs
Q. The current provisions for traps and spurs are appropriate. A. S trongly disagree.
ALI acknowledges that the current ACPA provisions prohibit the possession and use of certain traps
53 ‘Surgical altera on of companion animals’ natural func ons for human convenience’, A ustralian Veterinary Associa on, ( Web Page, 3 August 2018)
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and spurs without a reasonable excuse5 4 and provide for prohibited traps to be prescribed under the Regula on. We note that no prohibited traps are currently prescribed, and that there currently exists no defini on of a “trap”.
Proposed Amendments to the ACPA in rela on to traps
In light of this, we propose the following addi onal amendments to the APCA:
● Sec on 34(1)(a) of the ACPA be amended to include ‘steel-jawed traps’ and ‘glue traps’ as prohibited traps. ● We note that the AWA defines a trap as “a device used or designed to catch an animal”5 5, which we consider would be a suitable defini on to adopt in the ACPA. ● Permits should be required to assist with the regula on of permi ed traps, as required pursuant to the AWA.5 6 In amending the ACPA to require permits for permi ed traps, we recommend the inser on of a provision similar to that of sec on 62 of the AWA, to create an offence “if the person sets a trap.” ● Sec on 35 of the ACPA be amended to: ○ state that “traps must be inspected at least daily to prevent suffering and possible death from exposure, thirst, starva on, preda on and/or shock;”5 7 ○ create an offence if a person sets a prohibited trap, in alignment with the AWA5 8 and most other Australian states;5 9 ○ to create an offence if a person “engages in; or keeps or uses any premises for the purposes of— the trap-shoo ng of birds”, in alignment with the Preven on of Cruelty to Animals Act 1986 (Vic) (PCA)6 0.
In addi on to the above, we recommend further amendments be made to the ACPA, in alignment with the PCA to prohibit the selling of prohibited traps6 1 and regulate traps that are permi ed.6 2
Proposed Amendments to the ACPA in rela on to electrical devices
When examining the use of electrical devices within ACPA, sec on 18(2)(e) notes that a person is taken to be cruel to an animal if the person “… uses on the animal an electrical device prescribed under a regula on”. In line with this, ALI submits that a new provision be inserted into the ACPA to
54 A nimal Care and Protec on Act 2001 (Qld) s 14. 55 A nimal Welfare Act 1992 (ACT) s 62 (4). 56 Refer to A nimal Welfare Act 1992 ( ACT) Part 6, Division 6.2. 57 Ibid. 58 Refer to sec on 60. Also refer to Trudy Sharp, ‘Trapping of rabbits using padded-jaw traps (RAB008) Standard Opera ng Procedure’, P estSmart (Web Page, 2012)
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create an offence if a person “administers an electric shock to an animal” and in turn, legislates an electrical device as a prohibited item. We consider that implemen ng this change would also be in alignment with the AWA6 3 and various other jurisdic ons.6 4
Chapter 8: Dogs
Use of a dog to injure or kill another animal
Q. The current offences rela ng to the use of dogs to kill or injure another animal are appropriate. A. S omewhat disagree.
We are of the view that, in addi on to the three current dog-related offences listed under sec ons 30 – 32 of the ACPA, it should also be an offence to release a dog to allow the dog to, or to be in circumstances in which the dog is likely to, injure or kill a cap ve, na ve, or other wild animal.
Addi onally, we recommend that a new offence be introduced into chapter 3 of the ACPA specifically banning the use of dogs for the purpose of hun ng feral pigs (a prac ce commonly known as ‘pig dogging’). We are of the firm belief that pig dogging is inhumane, causing unnecessary suffering, and posing health risks to pigs and dogs.6 5 Queensland residents have raised concerns with the prac ce6 6 and research indicates that the prac ce also poses health risks to human popula ons via disease carried by feral pigs.6 7
We strongly urge the Queensland Government to amend the ACPA and Regula on to introduce a ban on the use of dogs for the purpose of hun ng feral pigs. Similarly, we note that pig dogging has been banned in the ACT as a ‘violent animal ac vity’.6 8
63 A nimal Welfare Act 1992 (ACT) s 13. The example provided in the AWA is “a collar that is able to administer an electric shock by remote control or if the collar nears a boundary fence; a collar that has a variable se ng that can be turned off and on”. 64 For example, A nimal Welfare Act 1999 (NT) s 19. 65 RSPCA Australia, ‘What happens when dogs are used to hunt feral pigs?’ R SPCA Knowledgebase ( Web Page, 26 October 2020)
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Closely confining a dog
Q. The current offence rela ng to confining a dog is appropriate. A. S omewhat disagree.
ALI considers that a dog should never be kept closely confined for a period of 24 hours, unless there is a genuine welfare, medical, travel, or safety-related reason for such confinement.
We recommend amending sec on 33 of the ACPA to introduce a new provision sta ng that if such confinement is required on one or more of the above grounds, the confinement must not be con nued for a period of more than 48 hours without input from a veterinarian as to the dog’s needs and the necessity or otherwise of the confinement.
We also suggest that sec on 33 of the ACPA be amended to remove the reference to “a reasonable excuse” that a person may rely on if keeping a dog confined in this manner.
Restraint of dogs in open vehicle trays and trailers and open windows
Q. Transpor ng an unrestrained dog in the back of an open u lity, tray of a truck or from an open window should be made a specific offence under the ACPA. A. S trongly agree.
We agree that transpor ng an unrestrained dog in the back of an open u lity, tray of a truck or from an open window should be made a specific offence under the ACPA.
Chapter 9: Using animals for scien fic purposes
Q. The scope of when an animal is used for scien fic purposes should be aligned with the Scien fic Use Code. In par cular, it should be expanded to: - accommodate advances in science such as the crea on and breeding of new animals where the impact on the animal’s wellbeing is unknown or uncertain, and - add other prac ces that involve the use of animals for science, including diagnosis, product tes ng and produc on of biological products. A. S trongly agree.
ALI agrees that animals used for these purposes should be included in the examples under sec on 48 of the ACPA, and afforded the same protec ons under chapter 4 of the ACPA. However, if this provision is amended to include these defini ons, ALI also submits that chapter 4 of the ACPA be further amended in line with the acquisi on and breeding provisions (clauses 3.2.2 – 3.2.4) of the Australian code for the care and use of animals for scien fic purposes 8t h e di on 2013 (Scien fic Use Code). For example, the ACPA may be amended to mirror the wording in the Scien fic Use Code by way of inser on of a provision in chapter 4 sta ng that “when animals are specifically bred for scien fic purposes, the breeding program must be managed in accordance with current best prac ce
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to ensure the wellbeing of the colony, herd or flock, and all animals involved…” in order to ensure consistency.
Q. Other provisions in the APCA rela ng to the scien fic use of animals are appropriate. A. S trongly disagree.
ALI strongly disagrees. With the advancement of science, there are presently far more progressive and accurate methods of tes ng and research.6 9 The alterna ves include in-vitro tests using human cells and ssues, in-silico modeling using advanced computer-modeling techniques, and far more relevant studies with actual human volunteers.7 0 There is a decline in the requirement to use animals for scien fic purposes,7 1 and legisla on should be updated to reflect this.
The 3Rs
ALI submits that the ACPA requires amending to align further with the above, as well as with the Scien fic Use Code. For instance, applying the principles of Replacement, Reduc on and Refinement (t he 3Rs) 7 2 is an important part of animal welfare.7 3 The Scien fic Use Code’s governing principles specifically note the importance of these principles.7 4 Broadly, the principles are: “Replacement: the subs tu on for conscious living higher animals of insen ent material; Reduc on: reduc on in the number of animals used to obtain informa on of given amount and precision; Refinement: any decrease in the severity of inhumane procedures applied to those animals, which s ll have to be used.”7 5
69 Discussed in: New South Wales, P arliamentary Debates, Legisla ve Council, 21 June 2018 (Mark Pearson, MLC) available at
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As evidenced in numerous scien fic literatures,7 6 the 3Rs are interna onally accepted principles within the scien fic community as the governing principles under which animal tes ng, research and experimenta on should be conducted.7 7 It is for this reason that legisla ng the implementa on of the 3Rs would likely not pose any issues for the scien fic community or other interested par es. Therefore, ALI recommends that chapter 4 of the ACPA be amended to legally require these principles be followed when using animals for scien fic purposes whilst extending the protec ons set out within chapter 4 to relevant animals at all stages of their lives, such as: prior to and subsequent to undergoing scien fic ac vi es.7 8 This would ensure consistency between the ACPA and the Scien fic Use Code.
It is es mated that over six million animals are used annually in research and teaching in Australia and New Zealand. Therefore, giving legisla ve effect to the 3Rs has the poten al to widely impact animal welfare due to the sheer number of animals involved in animal tes ng.7 9
Proposal for new / expanded provisions within the ACPA
The Scien fic Use Code requires that “[o]pportuni es to rehome animals should be considered wherever possible”.8 0 We propose that there should be a new provision in the ACPA requiring that opportuni es to rehome animals be considered wherever possible as a first resort and exhausted in full prior to approval for any humane killing being sought.8 1 We note that NSW has recently published rehoming guidelines for establishments and individuals involved in the care and use of animals for research and teaching in that State.8 2
Further, we propose that new provisions be inserted into the ACPA specifically addressing the topic of humane killing. These inserted provisions should require that the method and procedures used
76 K athryn L. Chapman et al, ‘Pharmaceu cal Toxicology: Designing Studies To Reduce Animal Use, While Maximizing Human Transla on’ (2013) R egulatory Toxicology and Pharmacology 66(1) available at
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are humane and avoid pain, distress, and cause rapid loss of consciousness un l death.8 3 It should also be mandated that the method of killing be reliable, reproducible and irreversible, and death should be checked and established before disposal of the carcass, fetuses, embryos and/or fer lised eggs.8 4 Addi onally, provisions should be inserted into the ACPA to create a legal requirement for the use of appropriate local and/or general anaesthesia when conduc ng tes ng which requires surgery,8 5 and addressing the postprocedural care of an animal.8 6
ALI further submits that the examples of “ac vity” set out in sec on 48(1)(a) of the ACPA be expanded to include: procedure, test (opposed to just “product tes ng”), experiment, inquiry, inves ga on or study,8 7 acquisi on, transport, breeding, housing and husbandry.8 8 For the avoidance of doubt, “scien fic fields” should be defined within the ACPA to include: human medicine, veterinary medicine, den stry, gene c engineering, physiological, psychological, agricultural research, biological studies of a fundamental nature and any other relevant or related fields. This defini on would be in line with Victorian legisla on.8 9
Finally, ALI proposes that sec on 92(c) of the ACPA be expanded to ban all products, chemicals, and ingredients, including those which have been used in tes ng outside of Queensland or Australia. This should also specifically include chemicals and products used in, or in rela on to, cleaning products.9 0
Chapter 10: Inspectors
Powers of inspectors
Q. The powers of inspectors under the ACPA are sufficient to allow inspectors to effec vely deal with animal welfare incidents and do not require strengthening. A. S trongly disagree.
ALI is of the view that the powers of inspectors must be broadened under the Act.
In par cular, in addi on to the specific concerns of dog figh ng, abandoned animals, and animals locked in hot cars, inspectors ought to have the power to inves gate any incident or situa on in respect of which a reasonable belief is held that:
83 Refer to clause 3.3.45 of the Scien fic Use Code. 84 Ibid. 85 ‘ Animal Experimenta on Fact Sheet’, A nimals Australia ( Web Page)
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a) the welfare of an animal or animals is at risk; and/or b) cruelty is being inflicted upon an animal or animals by a person, or another animal at the direc on, or under the control, of a person.
Moreover, we note that the power for ‘authorised officers’ to enter premises to monitor compliance with compulsory code requirements under sec on 108 of the ACPA requires the officers to give at least 48 hours’ no ce before entry. ALI is of the view that such a lengthy no ce requirement militates against the apprehension of non-compliance with the ACPA and codes of prac ce. ALI therefore submits that inspectors should have the power to conduct inspec ons of proper es without no ce, and without the need for receiving a complaint.
ALI is also of the view that the ACPA should include a power for inspectors to enter proper es with the company of a veterinary prac oner or other relevant specialists.
Mutual recogni on of interstate inspectors during emergencies
ALI is of the view that the ACPA should provide a mechanism to enable the recogni on of equivalent interstate animal welfare inspectors for the purposes of gran ng them authorisa on to exercise powers under the ACPA in mes of natural disaster or other emergencies. This would be par cularly helpful during natural disasters such as bushfires or other sudden emergencies.
Externally appointed inspectors
Q. It is appropriate for the Queensland Government to authorise non-government organisa ons, such as the RSPCA, to undertake inves ga ons and conduct prosecu ons under the ACPA. A. S omewhat agree.
ALI is of the view that an independent animal welfare authority is the most appropriate organisa on to undertake inves ga ons and conduct prosecu ons under the ACPA. Further explana on of this concept is outlined below under the sec on tled ‘Establishment of an Independent Animal Welfare Authority’ on page 24.
Q. People from non-government organisa ons who are appointed as inspectors under the ACPA should be subject to the same accountability as public servants in terms of ethics and codes of conduct. A. S trongly agree.
Ch 11: Compliance and enforcement
Q. The current suite of compliance op ons (not including PINs, as discussed below) for responding to breaches of animal welfare under the ACPA is comprehensive. A. S trongly disagree.
ALI strongly disagrees. Animal welfare legisla on is the primary tool for defining, penalising and
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deterring animal cruelty, yet it remains a residual power of the Australian states and territories.9 1 This has led to various pieces of animal welfare legisla on across Australia with a range of different approaches to regula ng breaches of animal welfare. These conflic ng pieces of legisla on create issues at mes for any consistent approach to the enforcement of animal welfare law.9 2 There is also an iden fied gap between legisla ve inten on and the outcomes of the enforcement process, as well as issues surrounding conflicts of interests.9 3
Amendment to key defini ons to improve compliance and enforcement
The ability to enforce legisla ve compliance where animal welfare is threatened is dependent on how the legisla ve model defines animal welfare. The legisla ve wording can address animal welfare breaches as a result of either acts or omissions, where terms such as “harm” and “suffering” have statutory defini ons. It has been argued that the use of this terminology contradicts the inten on of animal welfare legisla on, as enforcement only occurs puni vely, and not preventa vely.9 4
We consider that the Western Australian and Victorian an -cruelty legisla on have addressed this dichotomy by including the words “likely to cause harm”9 5 in rela on to various breaches under their legisla on. This provides a broader range for authority interven on before an animal welfare breach actually occurs, and thus more adequately protects animal welfare.9 6 ALI submits that the ACPA wording be amended in alignment with the Western Australian and Victorian jurisdic ons specifically for provisions regula ng breaches to be amended to reference “likely to cause harm” to animals. In order to widen the scope of applica on of the ACPA, we recommend that the defini on of animal (under sec on 11) be expanded to include Malacostraca species, which includes lobsters. These sen ent animals are used in restaurants and sold in markets, and we therefore believe that their welfare should be protected under the ACPA in parallel to any other sen ent animal.
We also suggest changes to ensure the ACPA can be be er used to protect ‘pest’ and ‘feral’ species. For example, ALI submits that sec on 42 of the ACPA should remove the defences currently given to offenders for “control of pests and feral animals”. In effect, this operates to exclude the vast majority of animals that are under human control from the majority of the protec ons regulated within the
91 R ochelle Morton, Michelle L. Hebart and Alexandra L. Whi aker, ‘Explaining The Gap Between The Ambi ous Goals And Prac cal Reality Of Animal Welfare Law Enforcement: A Review Of The Enforcement Gap In Australia’ (2020) A nimals 10(3). 92 R ochelle Morton et al, ‘Assessing The Uniformity In Australian Animal Protec on Law: A Statutory Comparison’ (2020) A nimals 11(1). 93 Jed G oodfellow, ‘Animal Welfare Regula on in the Australian Agricultural Sector: A Legi macy Maximising Analysis’ (PhD Thesis, Macquarie University, 2015); Hao Yu Shih, Mandy B. A. Paterson and Clive J. C. Phillips, ‘A Retrospec ve Analysis Of Complaints To RSPCA Queensland, Australia, About Dog Welfare’ (2019) A nimals 9(5). 94 R ochelle Morton, Michelle L. Hebart and Alexandra L. Whi aker, ‘Explaining The Gap Between The Ambi ous Goals And Prac cal Reality Of Animal Welfare Law Enforcement: A Review Of The Enforcement Gap In Australia’ (2020) A nimals 10(3). 95 P reven on of Cruelty to Animals Act 1986 (Vic) s 9; A nimal Welfare Act 2002 ( WA) s 19. 96 R ochelle Morton et al, ‘Assessing The Uniformity In Australian Animal Protec on Law: A Statutory Comparison’ (2020) A nimals 11(1).
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ACPA, and subjects these animals to a different set of legal standards.9 7 This appears to create an inherent double standard9 8 which should be addressed and removed from the ACPA.
The defini on of person in charge (under sec on 12) does not currently include reference to the occupier of a place or vehicle where the animal was at the relevant me. This could lead to persons with responsibility for the welfare of an animal at a par cular me avoiding prosecu on for offences under the ACPA. In our view, therefore, the defini on of a person in charge should be amended to include ‘occupiers of a place or vehicle where the animal was at the me of the alleged offence’.
Enforcement
In rela on to the enforcement of animal welfare breaches that have occurred, this is carried out by two different types of authori es: government-run departments, and non-governmental organisa ons (NGOs). This shared rela onship o en sees bodies such as the RSPCA regula ng companion animal ma ers and agricultural government departments enforcing farming, livestock and agricultural cases9 9 in most Australian states and territories.1 00 This creates various challenges, specifically with departmental authori es having to promote the agricultural industry economically whilst also having to regulate it.1 01 As a result of this conflict “the interests of animals have always come second to commercial interests.”1 02
Establishment of an Independent Animal Welfare Authority
Research suggests that the best method to remove this conflict of interest is to separate the compe ng interests directly.1 03 This can be done with the establishment of an independent government office of animal welfare. This independent body would act as a mi gator between the conflic ng interests1 04 and could be set up at the state level in accordance with cons tu onal requirements.1 05 The establishment of this independent animal welfare authority can be created by
97 Jed Goodf ellow, ‘ Animal W elfare R egula on in the Aus tralian Agricultur al Sect or: A Legi macy Ma ximising Analy sis’ (PhD Thesis, Macquarie Univ ersity, 2015). 98 Ibid. 99 R ochelle Morton, Michelle L. Hebart and Alexandra L. Whi aker, ‘Explaining The Gap Between The Ambi ous Goals And Prac cal Reality Of Animal Welfare Law Enforcement: A Review Of The Enforcement Gap In Australia’ (2020) A nimals 10(3); Hao Yu Shih, Mandy B. A. Paterson and Clive J. C. Phillips, ‘A Retrospec ve Analysis Of Complaints To RSPCA Queensland, Australia, About Dog Welfare’ (2019) A nimals 9(5). 100 Other than the Australian Capital Territory and South Australia. 101 R ochelle Morton, Michelle L. Hebart and Alexandra L. Whi aker, ‘Explaining The Gap Between The Ambi ous Goals And Prac cal Reality Of Animal Welfare Law Enforcement: A Review Of The Enforcement Gap In Australia’ (2020) A nimals 10(3). 102 Jed G oodfellow, ‘Animal Welfare Regula on in the Australian Agricultural Sector: A Legi macy Maximising Analysis’ (PhD Thesis, Macquarie University, 2015). 103 Ibid. 104 Ibid. 105 See David Thacher and Mar n Rein, ‘Managing Value Conflict in Public Policy’ (2004) 17:4 Governance: An Interna onal Journal of Policy, Administra on, and Ins tu ons 457 in rela on to the ‘firewall strategy’, which is also discussed in depth in Jed G oodfellow, ‘Animal Welfare Regula on in the Australian Agricultural Sector: A Legi macy Maximising Analysis’ (PhD Thesis, Macquarie University, 2015).
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amending the ACPA to insert provisions crea ng and regula ng this office. The independent office would s ll be held accountable and report to ministers and government leadership. It would also be required to meet funding and resource requirements.
The Northern Territory and Australian Capital Territory both establish an ‘Animal Welfare Authority’ within their animal welfare legisla on.1 06 However, these authori es are not independent agencies. In 2019 the NSW Parliament established a commi ee of inquiry into the effec veness of arrangements for the administra on and enforcement of NSW laws for the protec on of animals from cruelty.1 07 In 2020 the commi ee made various recommenda ons, including that the NSW Government:
● move responsibility for animal welfare ma ers out of the Department of Primary Industries (Recommenda on 3); ● establish and fully fund a specialist unit within the NSW Police Force to inves gate and prosecute animal cruelty offences (Recommenda on 13); and ● establish an independent statutory body, the Independent Office of Animal Protec on, to oversight the animal welfare framework. Further, that the NSW Government consult stakeholders on the appropriate func ons of the new body (Recommenda on 14).1 08
The establishment of a na onal independent animal welfare authority is supported by a number of organisa ons, including the Produc vity Commission and RSPCA Australia.1 09 S uch establishment would also be consistent with the changes proposed by the United Kingdom’s Animal Welfare (Sen ence) Bill, which would, inter alia, establish an independent Animal Sen ence Commi ee comprising experts who would ensure that cross-departmental government policy consider animal sen ence.1 10
We consider that enshrining this independent regulatory body within the ACPA would likely receive wide support and assistance from the aforemen oned stakeholders as well as the Queensland community.
106 A nimal Welfare Act 1999 ( NT) Part 4; A nimal Welfare Act 1992 (ACT) ss 5 and 6. 107 Parliament of NSW, Legisla ve Council Select Commi ee on Animal Cruelty Laws in New South Wales, T erms of Reference ( updated 24 March 2020). 108 Parliament of NSW, Legisla ve Council Select Commi ee on Animal Cruelty Laws in New South Wales, Animal cruelty laws in New South Wales (Report No 1, June 2020). 109 Produc vity Commission, R egula on of Australian Agriculture ( Report no. 79, 2016); ‘ Animal Welfare Office’, V oiceless the Animal Protec on Ins tute ( Web Page, 2021)
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Interstate decisions
ALI also recommends that the ACPA be amended to address the inter-jurisdic onal issues and legisla ve inten on issues by amending the provisions rela ng to court orders.
For example, amending the ACPA to recognise interstate prohibi on orders would discourage offenders from reloca ng to another state and con nuing their ownership of animals.1 11 Further, the ACPA could be amended to allow supervision orders, such as those which are enforceable in Victoria1 12 and are similar to prohibi on orders. Offenders are placed under the supervision of an enforcement authority who is empowered to regularly check on the welfare of offenders’ animals.
Q. PINs should be introduced as a compliance op on under the ACPA for clearly defined, low range animal welfare offences. A. S trongly agree.
ALI agrees that PINs should be introduced into the ACPA as a compliance op on for the reasons outlined in the discussion paper.
Transparency and public repor ng
ALI supports greater transparency and public repor ng on animal welfare enforcement and compliance ac vi es. The ACPA should include periodic repor ng obliga ons on the Queensland Government to ensure the public is informed of basic compliance and enforcement sta s cs including the number of Animal Welfare Direc ons issued, the number of prosecu ons commenced, the number of compliance monitoring inspec ons undertaken. Greater public disclosure regarding the administra on of the Act will help to build confidence within the community that the legisla on is being ac vely administered and compliance monitored.
Animal cruelty offenders register
Addi onally, the ACPA does not provide a mechanism for recording the details of individuals who have been found guilty of offences under the ACPA on a register accessible to members of state, territory and Commonwealth police forces, relevant government agencies, and RSPCA Inspectorates. ALI is of the view that the ACPA should provide for such a register in Queensland, on the grounds that this record would aid in abuse preven on by increasing transparency and deterring animal abusers to re-offend.
Chapter 12: Orders rela ng to animal welfare offences
Managing seized animals
111 R ochelle Morton et al, ‘Assessing The Uniformity In Australian Animal Protec on Law: A Statutory Comparison’ (2020) A nimals 1 1(1). T he NT, Tasmania and Victoria also recognise orders made by interstate courts within animal welfare legisla on. 112 P reven on of Cruelty to Animals Act 1986 (Vic) s 21A; also available in SA.
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Q. The introduc on of a provision that would allow a court to make a decision to sell or rehome seized animals prior to court ma ers being finalised is reasonable. A. Strongly agree.
We are of the view that seized animals should be rehomed prior to court proceedings being finalised where appropriate, through the RSPCA, in order to avoid keeping animals in confinement for extended periods of me given the poten al for court delays.
Q. The introduc on of a provision that would allow a court to impose a bond or security on the owner of seized animals for the care of their animals prior to court ma ers being finalised is reasonable. A. Strongly agree.
Q. What other cost recovery arrangements should be considered?
We propose the following measures:
a) The implementa on of a payment plan system whereby the owner is ordered to pay a bond or security for the care of the animal or animals, which can be paid in periodic instalments to assist with affordability. b) The owner can surrender the animal, with no admission of guilt and at no cost, to the RSPCA or a similar rescue organisa on approved by the court, if the owner cannot afford the bond or security. c) Under no circumstances should the ACPA be amended to include a provision which allows a court to make an order that the animal or animals be euthanised, unless there is a genuine medical reason for such euthanasia, as cer fied by a qualified veterinarian, such that euthanasia would be in the best interests of the animal. To empower the court to make such euthanasia orders upon applica on by either party to the proceeding, is to risk economic interests outweighing and overshadowing the interests of the animal, as a sen ent being.
Other court orders
The ACPA provides the Court with a range of powers for dealing with animal cruelty offenders. ALI is of the view that these powers could be augmented for be er animal welfare and criminal jus ce outcomes. In this way, we recommend that the ACPA establish discre onary powers for the Courts to make orders in circumstances where a defendant who is convicted of commi ng animal cruelty or having breached their duty of care:
● to care for an animal in a par cular way; ● to facilitate follow up inspec ons of an animal’s welfare; and ● to undergo psychological counselling.
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Chapter 13: Establishing appropriate penal es
Q. The maximum penal es for animal welfare offences under the ACPA are appropriate. A. S omewhat disagree.
As illustrated in Table 4 of Chapter 13 of the discussion paper, Queensland currently has some of the highest maximum penal es associated with animal cruelty in comparison with other Australian states and territories. However, there are a number of issues associated with these penal es as explored below.
Inconsistencies
There are certain inconsistencies in penal es currently available under the ACPA. For example, a person convicted of animal cruelty under sec on 18 is subject to a maximum penalty of three years imprisonment or a fine of 2,000 penalty units. Alterna vely, a person convicted of par cipa on in a prohibited event under sec on 21 of the ACPA, such as a dog figh ng event, is only subject to a maximum penalty of one year imprisonment or a fine of 300 penalty units. It is difficult to understand why the la er convic on a aches a significantly lower penalty given that par cipa on in a prohibited event, such as dog figh ng, would logically impact a greater number of animals over an extended period of me, whereas a cruelty offence under sec on 18 could be commi ed against a single animal on a single occasion. Similarly, a person convicted of neglect under sec on 17 of the ACPA is only subject to a maximum penalty of one year imprisonment or a fine of 300 penalty units, despite the fact that neglect can be commi ed over a long-term period causing significant suffering to the animal involved.
We propose a close examina on and revision of all penal es under the ACPA in light of the impact that each offence has on the animals subjected to the harm, including the number of animals involved.
Interstate decisions
We recommend that amendments to the ACPA be introduced to allow Queensland authori es to enforce interstate decisions regarding animal welfare, for example, animal ownership bans made in other states. At present, if a person subject to an animal ownership prohibi on order moves into Queensland from another state where they are convicted, there are no provisions in the Act that would prevent them owning animals in Queensland despite an order made in another state or territory.
Sentencing trends
Despite the fact that Queensland boasts some of the highest maximum penal es available for cruelty offences under the ACPA and the Criminal Code 1899 (Qld), available data on sentencing trends reveal that low penal es are typically applied in prac ce. For example, the Queensland Sentencing Advisory Council has determined that between the periods 2005-06 to 2017-18, only 9.2 percent of offenders received custodial penal es while 90.8 percent of offenders received a non-custodial
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penalty.1 13 Fines for individuals ranged from just $50.00 to $25,000.00, with an average of just $1,460.00.1 14 The largest fine imposed during this period was $55,000.00 (against a corpora on for breaching the duty of care owed to an animal).1 15 The data also revealed that prison sentences during this period ranged from one month to 30 months, with the average sentence length being five months.1 16
We recommend that a further analysis of sentencing trends under the ACPA be conducted, in order to ensure the State Government and other stakeholders have a clear understanding of how the ACPA is being administered in prac ce by the legal system. We also suggest that wider research is conducted into whether higher penal es in statute necessarily result in higher court sentences.
Beyond this, we are of the view that the Queensland Government should fund specific animal welfare training for court officers to be er apply the ACPA in line with community expecta ons around animal cruelty.
Other ma ers
In our view, the following important ma ers were omi ed by the discussion paper but should be included in any review of the ACPA.
Establishment of statutory advisory body
Sec on 211 of the ACPA provides the Minister with a discre onary power to “establish an animal welfare advisory commi ee or another body to advise the Minister on animal welfare issues.” We note that an Animal Welfare Advisory Board is currently opera onal in Queensland. However, the ACPA does not itself establish a body, or provide guidance on its role or membership base. We recommend sec on 211 be amended to specify func ons of the body, and state that the Minister must establish a commi ee or body. This amendment will ensure the body is established by statute and is not affected by changes to the poli cal landscape from government to government. By way of example, the AWA requires that “[t]he Minister must establish an Animal Welfare Advisory Commi ee” and specifies the func ons of the commi ee.1 17
Establishment of animal welfare trust fund
ALI recommends the establishment, via the ACPA, of an animal welfare trust fund. This would func on as a fund into which all money raised from fines or infringement no ces under relevant animal welfare laws is paid. Under this arrangement, we envisage that proceeds would be used to deliver animal welfare ini a ves within Queensland.
113 Queensland Sentencing Advisory Council, S entencing Spotlight on Animal Welfare Offences (August 2019)
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Conclusion
These submissions have been prepared with the significant contribu on and assistance of Erin German s, Chelsea McPherson and Rachel Lamb, volunteer lawyers with ALI.
Thank you for taking these submissions into considera on.
Avishan Bird Dr Katrina Kluss Principal Lawyer Board Director & Lawyer The Animal Law Ins tute The Animal Law Ins tute
The Animal Defenders Office supports the substan ve law reform recommenda ons made in this submission. The Animal Defenders Office (ADO) is a na onally accredited community legal centre that provides pro bono animal law services to the community. The ADO is a member of Community Legal Centres Australia Inc., the na onal peak body represen ng community legal centres in Australia.
The Australasian Animal Law Teachers’ and Researchers’ Associa on (AALTRA) supports the substan ve law reform recommenda ons made in this submission. AALTRA is an incorporated associa on dedicated to using law and policy as a means of improving animal well-being. AALTRA’s members comprise university teachers, researchers, personnel from non-government bodies, corporate bodies and students whose work or research demonstrates an interest in improving animal well-being by means of animal law teaching, animal law research or animal law prac ce.
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