A paper prepared by Stephanie Abbott.

Introduction and comments by Katrina Sharman.

INTRODUCTION:

Over the last few years, there has been an increasing amount of debate about the relative merits of anti-cruelty laws. According to some commentators, anti-cruelty laws work well because they prohibit certain activities involving animals and they impose a duty on prescribed agencies to enforce minimum standards of humane treatment. Other critics have suggested anti-cruelty laws are not worth the paper that they are written on, because their exemptions are so broad that ‘the only thing we are prohibited from doing is inflicting pain and suffering when there is absolutely no recognised social benefit.’ [3]

It has been suggested that our anti-cruelty statutes, in large part, reflect the dominant human/animal interaction in society and what the majority of people think the human/animal relationship should be. [4] That would appear to explain why our laws focus on protecting companion animals whilst offering significantly less protection for farm animals, laboratory animals and those unfortunate enough to be deemed feral or noxious.

One would be well justified in observing that anti-cruelty laws call for little moral or ethical deliberation. How else can we explain the fact that a man who fails to give his dog food or water for a week commits an act of cruelty but a man who commits the same act in a laboratory, having obtained the appropriate approvals, is applauded for conducting a worthy experiment?

The reasons as to why anti-cruelty statutes treat some animals as more equal than others are well worth exploring. However it is not the objective of this paper to delve into that debate. Rather, this paper is intended to serve as a summary of the main provisions in the Prevention of Cruelty to Animals Act 1979 (POCTAA), which is the primary piece of legislation that aims to protect animals from cruelty in New South Wales . Attempts have been made to offer critical analysis, and suggestions for reform, where possible. This paper is not intended to be an exhaustive summary of the POCTAA. It is a work in progress. Readers who monitor the NSW Young Lawyers Animal Rights Committee website on a regular basis may note that the shape of the paper changes as our statutory and caselaw evolves.

This paper has been prepared on the assumption that the presence of basic protections for some animals is better than no protections at all.

AN OVERVIEW

POCTAA achieves its aims by outlawing numerous activities that are said to constitute acts of cruelty towards an animal.

POCTAA should be read in conjunction with its associated regulations, which provide further guidance in relation to the provisions of the Act. The regulations made to date include:

·         The Prevention of Cruelty to Animals (General) Regulation 1996 (“ POCTAA Regs ”); and

·         The Prevention of Cruelty to Animals (Animal Trades) Regulation 1996 (“ Animal Trades Regs”).

In this paper, where a matter dealt with in the Act is supplemented by the Regulations, that detail will be set out with the relevant part of the summary of POCTAA. Detailed summaries of the Regulations can also be found at the end of this document. Acts and Omissions under POCTAA

POCTAA establishes certain acts or omissions as offences and also provides defences to a charge under the Act in certain circumstances. POCTAA prohibits cruelty and aggravated cruelty generally, as well as a number of other types of activities, including neglect, confinement, abandonment, failure to act in certain circumstances, some transport-related activities, inappropriate use , mutilation , poison, torture, fighting and baiting , certain hunting and trapping related activities , selling severely injured animals failing to take action where an animal is injured by a vehicle.

Other offences include permitting , attempting and abetting the above acts, obstructing an officer administering POCTAAor giving false information in relation to the Act .

POCTAA applies to both corporations and individuals (although only individuals may be imprisoned if convicted of an offence) and the directors and managers of a corporation may also be personally liable in relation to an offence committed by a corporation.

POCTAA sets out the powers of officers in relation to offences or suspected offences and the penalties or other orders that may be made by a court in relation to offences. When considering sentencing options under the POCTAA, a court must remain mindful of the   Crimes (Sentencing Procedure) Act 1999 (NSW) .

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ANIMALS COVERED BY THE ACT:

The protections under POCTAA extend to vertebrates, including any amphibian, bird, fish, non-human mammal, reptile, and to crustaceans at places where food is prepared/offered for retail consumption: s 4(1). [5]

  A distinction is drawn between stock animals, being cattle, horse, sheep, goat, swine, poultry, and domestic animals, being wholly or partly tame animals or animals being tamed to serve a purpose for humans: s 4(1). 'Deer' have been added to the definition of stock animals by regulation: POCTAA Regs cl 8. Some animals involved in government work are also exempted in certain circumstances - see 'Who may be Prosecuted?'.

Stock animals are generally afforded less protection due to a number of exemptions in POCTAA. See further information on specific offences and defences below.

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WHO MAY BE PROSECUTED?

Any individual committing an offence under POCTAA may be prosecuted.

At law, a corporation is a legal person, and a corporation may be prosecuted for an offence under POCTAA. [6] For some offences, corporate offenders attract higher penalties (for example, cruelty (s 5), tethering (s 10), and failure to provide adequate exercise for a confined animal (s 9).

The 'owner' of an animal for the purposes of the Act includes a joint owner : s 4(1)

POCTAA binds the Crown: s 35A, but its application may be limited by regulations, and does not apply to the use and handling of police dogs and horses by police officers or drug detection dogs used by officers of the Department of Corrective Services in the course of their duties: s 35A.  

OFFENCES UNDER THE ACT

1. Cruelty and aggravated cruelty

A person must not commit an act of cruelty (s 5(1)) or aggravated cruelty (s 6(1)) upon an animal: s 5(1). 'Cruelty' includes any unreasonable, unnecessary or unjustifiable act or failure to act which results in an animal being:

·         beaten, kicked, wounded, pinioned, mutilated, maimed, abused, tortured, terrified or infuriated;

·         over-loaded, over-worked, over-driven, over-ridden or over-used;

·         exposed to excessive heat or excessive cold; or

·         inflicted with pain: s 4(2), 4(2A).

Pinioning a bird other than in accordance with the regulations is an offence under the Act. The prescribed manner for pinioning birds is as set out in the Guidelines for the Pinioning of Birds , 7 June 1995 , Animal Welfare Advisory Council, available from the Department of Agriculture: POCTAA Regs cl 8A.

It is also an offence of cruelty if a person authorises the commission of an act of cruelty upon an animal: s 5(2), or if a person in charge of an animal fails to:

·         exercise reasonable care, control or supervision of the animal to prevent the commission of an act of cruelty;

·         take such steps reasonably necessary to alleviate pain, where pain is being inflicted on the animal;

·         provide the animal with veterinary treatment, where veterinary treatment is necessary: s 5(3).

An act of aggravated cruelty is committed where the above actions result in the death, deformity or serious disablement of the animal; or the animal is so seriously injured, diseased or in such a physical condition that it is cruel to keep it alive: s 4(3).  

2. Neglect, confinement, abandonment and failure to act:

Apart from failures that constitute cruelty offences as discussed above, it is also an offence to fail to provide proper food, drink, or shelter : s 8(1). If an animal is not provided with clean water for a period of 24 hours or more, that is taken to be evidence that there has been a failure to provide proper food and drink: s 8(3). The POCTAA Regs extend the time limit to 72 hours in the case of ruminant stock animals that, because of drought conditions, are being given supplementary feeding of stored or purchased stock feed: POCTAA Regs cl 8B.

Failure to provide adequate exercise or to confine an animal in a cage of insufficient height, length or breadth to allow a reasonable opportunity for adequate exercise is also prohibited: POCTAA s 9.

Some exceptions apply to the requirement that animals be given adequate exercise. For example:

·         it is not an offence when the animal is a stock animal (other than a horse) or a species which is usually caged (s 9(1A)); and

·         the offence of keeping an animal in an enclosure that is too small does not apply to stock animals at all: s 9(3).

It is not an offence to keep an animal in a small container providing no unnecessary pain is inflicted, it is being carried, conveyed or being displayed in a public exhibition or competition and this does not continue for more than 24 hours: s 9(4).

The POCTAA Regs prescribe minimum cage sizes for fowls used in egg production. It is an offence to confine a fowl in a cage for the purposes of egg production unless the cage meets the minimum floor area specified: cl 6(1). The prescribed minimum floor area is as follows: (POCTAA Regs cl 6(1)(a)-(c))

·         for a cage containing one fowl: 1000 square cm;

·         for a cage containing two fowls: 1350 square cm;

·         for a cage containing three or more fowls: 450 square cm for each fowl, if the average weight of fowls in the cage is 2.4 kg or less; or 600 square cm for each fowl if the average weight of fowls in the cage is over 2.4 kg;

If fowls are kept in more than 30 cages at a place, compliance with the prescribed cage floor areas is to be determined on the basis of the average flock weight, which is the average weight of all the fowls in all the cages concerned, determined according to the procedures set out in the National Guidelines for RSPCA Inspectors in the Inspection of Layer Hens in Cages. See: Code of Practice for the Welfare of Animals - Domestic Poultry 3rd edition, issued by the Agriculture and Resource Management Council of Australia and New Zealand [7] : POCTAA Regs cl 6(2), (3).

The floor area of a cage includes the area under any egg baffle, manure deflector, drinking nipple or vee-trough for water: POCTAA Regs cl 6.

A first-time contravention of this clause does not constitute an offence unless the person has already been given a written direction to remedy the situation and the person has failed to do so: POCTAA Regs cl 4, 5.

Tethering or the authorisation of tethering an animal for an unreasonable time or by an unreasonably heavy or short rope, chain or cord is an offence: POCTAA s 10(1).

Abandoning an animal is prohibited: s 11.  

3. Transport-related offences:

It is an offence to carry or convey an animal in a way that inflicts unreasonable pain upon the animal: s 7(1). Authorising an act of this nature is also an offence. The POCTAA Regs also provide that it is an offence to carry or convey or to authorise the carriage or conveyance of a large stock animal in a cage or a vehicle unless the cage or vehicle is high enough to allow the animal to stand upright without any part of the animal coming into contact with the roof, ceiling or cover of the cage or vehicle: cl 5(1).

In this context 'large stock animal' means an animal belonging to the class of animals comprising cattle, horses, sheep, goats, swine and deer: POCTAA Regs cl 5(2). Horses must not be carried in multi-deck vehicles (POCTAA s 7(2)) and dogs, other than dogs working livestock, must not travel on the open deck of a moving vehicle on a public street without being restrained or enclosed to prevent falling; (s 7(2A)).

4. Inappropriate use

It is an offence to ride, drive, use carry or convey an animal or for a person in charge to authorise any of those things if the animal is unfit for the purpose: s 13.

5. Mutilation

The following procedures are prohibited (s 12(1)):

·         docking the tail of a horse, bull, ox, bullock, steer, calf less than 6 months old; and

·         cropping the ears of a dog.

The following procedures may only be carried out by a veterinarian, and in the prescribed circumstances and conditions set out in the Regulations (s 12(1), 12(2)):

·         docking the tail of a cow, heifer or female calf;

·         de-barking a dog;

·         de-clawing a cat;

·         grinding, trimming or clipping the teeth of a sheep;

·         performing a clitoridectomy on a greyhound; or

·         firing or hot branding the face of an animal.

Vets performing these procedures must enter the prescribed details into a register kept for the purpose within a week. Prescribed particulars for the register include the name and address of the owner, the nature of the procedure, the date on which the procedure was carried out, a full description of the animal and the name of the veterinary surgeon who carried out the procedure: POCTAA Regs cl 12.

A person is not guilty of an offence under s 12(1) if:

• the procedure was docking the tail of a dog;
• it was performed by a veterinary surgeon; and
• was in the interests of the dog’s welfare: s 12(2A).

A cow, heifer or female calf may have her tail docked if she is a dairy cow and the pastoral and environmental conditions in the place where she is to be kept mean that there is a likelihood of disease to the udder. Where the cow, heifer or calf is 6 months old or older there is an additional requirement that the veterinarian who docks her tail must be given a statutory declaration setting out reasons sufficient to establish those conditions. The tail may only be docked in such a manner that it is left long enough to cover the animal's vulva: POCTAA Regs cl 9.

De-barking is permitted where the veterinarian who is to perform the procedure is given a statutory declaration stating that the dog will be destroyed unless the operation is performed, as the dog's barking causes an unacceptable public nuisance: POCTAA Regs cl 10.

De-clawing of cats is permitted where the veterinarian who is to perform the procedure is given a statutory declaration stating that, in the case of a domestic cat, the cat will be destroyed unless its claws are removed because:

·         it is causing unacceptable damage to property and attempted restraining has been unsuccessful; or

·         it has repeatedly killed wildlife.

In relation to cats other than domestic cats, it is sufficient if the procedure is being requested because of potential damage to property, persons or animals: POCTAA Regs cl 11.

6. Poisoning, torture and fighting

It is an offence to administer a poison or a substance containing a poison to a domestic animal. Laying, throwing or dropping poison in any place with the intention of destroying or injuring a domestic animal or having poison in possession with the intention of using it to kill or injure a domestic animal is also prohibited: s 15.

Poisons include substances on the list proclaimed under the (NSW) Poisons and Therapeutic Goods Act 1966 s 8, as well as a substance containing glass or any other thing likely to kill or injure an animal.

The sale and use of electrical devices (other than for prescribed animals and purposes), and the possession and use of spurs for the purposes of fighting or training to fight is illegal under POCTAA: ss 16, 17. The prescribed circumstances where electrical devices may be used or sold can be found in the POCTAA Regs, and include electric stock prods used for mustering weaned cattle or pigs, electric fences for controlling animals other than dogs or cats, and canine invisible boundaries for containing dogs: POCTAA Regs cl 13, Sch 1.

Animal baiting and fighting is prohibited, including using, managing or controlling any place or authorising its use or receiving money for admission to a place used for animal fighting or baiting: s 18(1). This prohibition also extends to permitting, encouraging or inciting a fight where animals are pitted against other animals, or organising, promoting or attending a fight: s 18(2).

There is a further prohibition specifically applying to bullfights: s 18A. However, anyone using premises, receiving admission money or authorising premises to be used for a rodeo is exempt from ss 18 and 18A, providing the rodeo is conducted in accordance with the relevant Code of Practice: POCTAA Regs cl 14. Any advertising or promoting of a rodeo is similarly exempt. The relevant Code of Practice is the Code of Practice for the Welfare of Animals Used in Rodeo Events , 30 April 1988 , Animal Welfare Advisory Council, available from the Department of Agriculture: POCTAA Regs cl 14(4). For the purposes of the POCTAA Regs, 'rodeo' means any exhibition, spectacle or display in which a person takes part in buck-jumping, rough riding or the dogging, roping or tying of any animal: POCTAA Regs cl 14(4).

7. Other Offences

Firing (the application of a thermal stimulus (e.g. hot wires) to the leg of an animal in order to develop scar tissue) and 'tail nicking' (cutting the tail of a horse to ensure high carriage) are offences: POCTAA ss 21A, 21B; as well as the confining of a bird by a ring around its leg with a chain attached: s 21D.

Steeplechasing or hurdle racing are prohibited   (s 21C) unless the race is organised in such a way that no horse in the race can approach or attempt to jump a particular hurdle or obstacle at the same time as any other horse in the race: POCTAA Regs cl 7A.

Various hunting and trapping-related activities are prohibited, including trap-shooting (where an animal is released from confinement to be shot at) (s 19), and promoting or participating in an activity where animals are released from captivity to be chased and caught (s 20).

Certain types of traps are prohibited in prescribed parts of NSW (the Eastern, Central and Western Divisions within the meaning of the (NSW) Crown Lands Act 1989, and Lord Howe Island), including traps prescribed under the Regulations (including 'Lane's 'Ace' Rabbit Trap', 'Lane's Dog Trap', 'Lane's Round Jaw Wild Dog Trap', 'Lane's Dingo Trap', 'Oneida No 14 Steel Trap', and any other trap that is similar in design, construction or manner of operation to any of those traps, except for soft-jawed traps (traps with steel jaws that are offset and padded): POCTAA Regs cl 17): POCTAA s 23.

The use, management and control of premises for the purposes or a game park as well as the authorisation of any of those things is an offence: s 19A(2). The receipt of money or other consideration for admission to any premises used as a game park is prohibited: s 19A(2). Anyone admitted to a game park by paying a fee or other consideration is prohibited from taking or killing any animal in the park: s 19A(3). Provision is made for prescribing circumstances or particular animals for which no offence is committed under this section, but to date no relevant regulations have been made: s 19A(4).

Coursing (the chasing and capturing of an animal by a dog) is an offence, and this extends to permitting or encouraging, advertising or promoting such activities, and possession or use of an animal for the purpose of training dogs for coursing: s 21. The Regulations prescribe all animal species (other than coursing dogs) as species which, if found at a place where an activity prohibited by s 21 is being conducted, is taken to be evidence that the animal is kept for the purpose of being used for that activity pursuant to s 21C: POCTAA Regs cl 16.  

8. Selling severely injured animals

It is not permitted to purchase, acquire, keep, or sell (including offering or exposing for sale) any animal that is so severely injured or diseased, or in such a condition that it is cruel to keep it alive: POCTAA s 22(1). It is not an offence to do so if the person satisfies the court that these actions were done for the purpose of causing the animal to be destroyed promptly: s 22(2) Where a person purchases or acquires an animal for the purpose of having the animal promptly destroyed, it must be promptly destroyed in a manner that causes it to die quickly and without unnecessary pain: s 22(3).

9. Duty towards animals injured by vehicles

A driver of a vehicle which strikes and injures an animal other than a bird must take reasonable steps to alleviate any pain inflicted upon the animal as a result of the injury and, where the driver believes or ought to believe that it is a domestic animal, inform as soon as practicable an officer or a person in charge of the animal that it has been injured. Failure to do so is an offence: s 14.

10. Offences by Corporations

Where a corporation commits and offence under this Act, whether by act or omission and whether or not the corporation has been prosecuted or convicted, each director or person involved in the corporation's management who knowingly authorised or permitted the contravention is taken to have committed the relevant offence: s 33A. The personal liability of a director or manager does not affect the liability of the corporation for offences under POCTAA: s 33A(3).

11. Permitting or failing to prevent offences

An owner or a person in charge of an animal, or an owner or occupier of land on which an animal is located, who knowingly permits or fails to prevent an offence under POCTAA to be committed toward the animal is guilty of an offence: s 33B.

12. Complicity and common purpose, attempts:

Anyone who aids, abets, counsels or procures the commission of an offence against POCTAA is taken to have committed the offence and is punishable accordingly: s 33C. For this section to be effective it must be found that the person's actions actually aided etc the commission of the offence by the other person, and the other person must have actually committed the offence (even if they haven't been proceeded against for or convicted of the offence): s 33C. A person cannot be found guilty under this section if they terminated their involvement prior to the offence being committed or took all reasonable steps to prevent the commission of the offence: s 33C(3).

Any attempt to commit an act that is an offence under the legislation is an offence and punishable accordingly: s 33D.

13. Guidelines relating to welfare of farm and companion animals:

The regulations may prescribe guidelines relating to the welfare of species of farm or companion animals: s 34A(1). Compliance or failure to comply with guidelines prescribed by regulation under this section is admissible as evidence in proceedings relating to compliance or failure to comply with POCTAA or the regulations: s 34A(3).

POCTAA Regs cl 19A prescribes the following documents, published by the CSIRO, as guidelines:

Ø       Model Code of Practice for the Welfare of Animals - Domestic Poultry (3rd Edition, 1995) [8] ,

Ø       Model Code of Practice for the Welfare of Animals - Farmed Buffalo (1995)

Ø       Model Code of Practice for the Welfare of Animals - Animals at Saleyards (1991)

Ø       Model Code of Practice for the Welfare of Animals - The Goat (1991)

Ø       Model Code of Practice for the Welfare of Animals - The Sheep (1991)

Ø       Model Code of Practice for the Welfare of Animals - The Farming of Deer (1991) (with the following amendment: clause 5.2(ii) is replaced with a clause stipulating that removal of velvet antlers should be the responsibility of a registered veterinary surgeon).

Ø       Model Code of Practice for the Welfare of Animals - Cattle (1992)

Ø       Model Code of Practice for the Welfare of Animals - National Guidelines for Beef Cattle Feedlots in Australia (2nd edition, 1997).

DEFENCES [9]

A person is not guilty of an offence under POCTAA if the person is able to satisfy the court that no unnecessary pain was inflicted on the animal [10] and the animal was being:

·         ear marked, ear tagged or branded (other than by firing or hot iron branding the face of the animal) (applies to all stock animals);

·         castrated (applies to pigs less than 2 months of age or cattle, sheep or goats less than 6 months old);

·         dehorned (applies to goats less than 1 month of age or cattle less than 12 months of age);

·         tailed or given Mules' operation (applies to sheep less than 6 months of age);

·         hunted, shot, snared, trapped or caught (other than in a game park);

·         destroyed or prepared for destruction for the purpose of producing food for human consumption;

·         destroyed or prepared to be destroyed in accordance with the precepts of the Jewish religion;

·         destroyed or prepared to be destroyed in compliance with any duty imposed under POCTAA

·         given veterinary treatment (although this does not apply to tail docking of dogs – s 24(3), but tail docking is permitted if performed by a veterinary surgeon for the dog’s welfare: s 12 (2A)); or

·         used in the course of or supplied for the purpose of animal research under the (NSW) Animal Research Act 1985.

POWERS OF OFFICERS, VETS, OTHERS

Officers with prescribed authority are given broad powers to effect POCTAA, including powers to enter premises, stop vehicles, obtain a search warrant, demand information, seize certain things, examine and even to take possession of an animal if they suspect that an offence has, is, or is about to be committed against an animal: ss 25-26A, 27, 27A. A 'Prescribed authority' is, in relation to a police officer, an identification certificate issued in respect of the officer by the Commissioner of Police, or, in relation to any other officer, an authority bearing the photograph of the officer issued in respect of the officer by the Minister: POCTAA Regs cl 18.

The POCTAA Regs also prescribe the manner in which the power to stop vehicles may be exercised, and this includes displaying a clear 'STOP' sign, wearing appropriate identification (uniform, prescribed authority) and, in the case of police officers, having a clearly marked vehicle: POCTAA Regs cl 18A.

Where an officer, a vet, a manager of a sale-yard or abattoir, or a court believes that an animal is in a physical condition where it is cruel to keep it alive, they can arrange for the animal to be destroyed: ss 26AA, 26B, 30. Registered veterinarians and persons with special expertise in the handling of the animal concerned are people who may be classed as 'assistants' for the purposes of exercising powers under POCTAA: POCTAA Regs cl 18A.

The Minister can approve charities for the purposes of its officers exercising law enforcement powers under POCTAA: s 34B.

OFFENCES RELATING TO THE ADMINISTRATION OF THE ACT

Failure to comply with a direction of an officer under POCTAA is an offence

Obstruction:

It is an offence to obstruct, hinder or interfere with any other person while they are exercising any power, duty or function under POCTAA: s 28.

False information:

Giving false information to an officer exercising his or her powers under POCTAA carries a penalty unless the officer did not warn the person of the requirement to provide information that is not false or misleading and did not identify himself or herself as an officer: s 29B. It is also an offence to knowingly make or authorise the making of a false entry in a register that is required to be kept by POCTAA: s 29A.

PROCEDURE

Proceedings under the legislation may be dealt with summarily before a

Local Court constituted by a single Magistrate or by the Supreme Court in its summary jurisdiction: s 34. The Local Court may only impose a fine of up to 100 penalty units (currently $11,000).

PENALTIES AND ORDERS IN RELATION TO OFFENCES:

Penalties:

Where an offence is created under POCTAA, the penalty is set out in the relevant section.

The maximum penalties that can be imposed are fines of 200 penalty units (currently $22,000) or imprisonment for 2 years, or both for an individual offender and fines of 1000 penalty units (currently $110,000) for a corporate offender.

Other orders:

A court may make orders:

·         that an animal be produced to the court (where the Magistrate issues a summons in relation to a suspected offence against POCTAA): s 29;

·         relating to the care of an animal where they require urgent maintenance and care and the owner has either died or cannot be located and no other person is responsible for the maintenance and care of the animal: s 29C;

·         that an animal be destroyed (where a person has been convicted of an offence and the court is satisfied that the animal is so severely injured, diseased or in such a condition that it would be cruel to keep it alive), and require that the person convicted pay the costs of the destruction: s 30;

·         that a person convicted of an offence under the act pay costs in relation to expenses incurred in the care of the animal by another person or organisation for retrieval, transport, food and water, shelter and veterinary care, and invoke debt recovery mechanisms to secure the payment: s 30A; and

·         that an animal be sold or otherwise transferred, and that the person convicted of an offence may not buy or otherwise acquire it and make orders for the use of the proceeds of sale: ss 31, 31A. A n advertisement for the proposed sale of an animal under s 31A must appear at least once before the date of the proposed sale, in the public notices or equivalent section of the newspaper in the locality in which the animal was seized, and must include a description of the animal: POCTAA Regs cl 19.

Sentencing under POCTAA is also subject to the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) . Under that Act, the Courts have are given a variety of sentencing options including periodic detention, home detention, community service orders, good behaviour bonds, dismissal of charges, conditional discharges of offenders, suspended sentences and fines. [11]

REGULATIONS:

The (NSW) Prevention of Cruelty to Animals (General) Regulation 1996 and the (NSW) Prevention of Cruelty to Animals (Animal Trades) Regulation 1996 contain additional provisions relating to offences, covering matters including

·                          manner of conveyance of large stock animals;

·                          minimum cage sizes for fowls used for egg production;

·                          use of animals in films and theatrical performances;

·                          steeplechasing and hurdle races;

·                          prescription of circumstances in which tail docking, debarking and de-clawing are permitted;

·                          exemption of rodeos from the animal baiting and fighting and bullfighting provisions; and

·                          establishment of guidelines for the welfare of farm or companion animals.

This paper has already examined provisions of the Regulations that relate to specific sections of POCTAA. This section of the paper explores a number of additional Regulations which have not yet been covered.

ANIMALS IN FILMS AND THEATRICAL PERFORMANCES

Animals must not be used in connection with the production of a film or a theatrical performance otherwise than in accordance with the relevant Code of Practice (currently the Code of Practice for the Welfare of Animals in Films and Theatrical Performances , 3 February 1997 by the Animal Welfare Advisory Council, copies of which are available from the Department of Agriculture): POCTAA Regs cl 7(1), (3). It is not an offence to fail to comply with the Code if the failure occurs despite the person's having done all that he or she could reasonably be expected to have done to comply: POCTAA Regs cl 7(2).

ANIMAL TRADES AND CODES OF PRACTICE

This Prevention of Cruelty to Animals (Animal Trades) Regulation 1996   identifies certain businesses as animal trades for the purposes of POCTAA, and prescribes Codes of Practice relevant to the conduct of those businesses. It also creates offences relating to the conduct of businesses classed as 'animal trades'.

The following operations are prescribed as 'animal trades' under POCTAA s 4(1), and their corresponding Code of Practice is also prescribed: Animal Trades Regs cll 5, 6, Sch 1.

Each Code of Practice is available from the Department of Agriculture.

Offences in relation to animal trades:

The Animal Trades Regulations set out requirements for the conduct of animal trades and the care and treatment of animals in animal trades: cl 7. A penalty exists where the proprietor of an animal trade and each person concerned in its management fail to take all reasonable steps to ensure that the requirements of the clause are observed by all persons employed in the trade, both in relation to the conduct of the trade generally and in relation to the care and treatment of animals used or kept in connection with the conduct of the trade: cl 7(1).

The requirements that must be observed in relation to the conduct of animal trades generally are (Animal Trades Regs cl 7(2)):

·                          the premises where animals are kept must be maintained in a clean and hygienic condition;

·                          each person who has duties in relation to the care or treatment of animals must be appropriately supervised;

·                          appropriate records must be kept to ensure that the care and treatment of animals can be properly monitored; and

·                          the relevant Code of Practice for the trade must be complied with.

The requirements that must be observed for the care and treatment of animals kept in connection with an animal trade are (Animal Trades Regs cl 7(2)):

·                          each animal must be provided with accommodation and equipment suited to the behavioural requirements of the animal;

·                          each animal must be protected from extreme climactic and environmental conditions as well as from interference by people;

·                          each animal must have enough space to rest, stand, stretch, swim, fly or otherwise move about;

·                          each animal must be provided with sufficient and appropriate food and water to maintain good health;

·                          each animal must be protected from exposure to disease, distress or injury and in the event that it becomes diseased, distressed or injured, must receive appropriate treatment;

·                          each animal must be periodically inspected to ensure that it is receiving appropriate food and water and is free from disease, distress and injury; and

·                          the provisions of each relevant Code of Practice for that trade must be complied with.

[1] This Paper is not intended to be used as a source of legal advice. If you require legal advice please contact a lawyer, or alternatively, contact the Law Society of New South Wales. If you cite information or sections of legislation appearing in this Paper, you should confirm whether subsequent changes have been made.

[2] Jerrold Tannenbaum, ‘Animals and the Law: Property, Cruelty Rights’, 62 Social Research 539, 1995.

[3] Gary Francione, The Legal Status of Animals: Panel Discussion II, Animal Law, Volume 8, 2002, p21.

[4] David Wolfson, ibid, p19.

[5] Note that this definition of an ‘Animal’ under the POCTAA may be distinguished from the definition of an animal under the United States Animal Welfare Act which excludes birds, rats and mice from its definition of animal. See: Animal Welfare Act 7 U.S.C. §§ 2131 - 59, as summarised on the Animal Legal & Historical Web Center web site.   In contrast, the Model State Animal Protection Laws Animal Legal Defense Fund , 2001 (‘ Model Laws’ ) define an Animal as ‘any nonhuman living creature.’ Refer to Definition ‘A.’

[6] Note that at law, a corporation may be a legal person but an animal is still considered property and has no separate legal status, which acknowledges its existence as a living thing.

[7] Note that the Model Code of Practice for the Welfare of Animals - Domestic Poultry , 4th edition was released in October 2002.

[8] ibid.

[9] The extensive defences available under the POCTAA clearly strip away many of the protections that the Act offers to animals. This may well lead one to conclude that the law treats some animals as more equal than others.

[10]   Many animal rights lawyers have pointed out that this concept of ‘unnecessary suffering’ or ‘unnecessary cruelty’ affords animals little protection. It does not require one to consider ethically objectionable behaviour. It merely requires one to cast their mind to what society in general would consider ‘unnecessary’ to achieve a stated end, which is almost inevitably homocentric and often barbaric. In particular, Professor Gary Francione asserts that provisions of this nature represent a kind of ‘moral schizophrenia’. At an animal law conference held in September 1999, he stated that most people would probably agree ‘with the proposition that we ought not to inflict ‘unnecessary’ suffering on animals… we might disagree about in what particular situations pain and suffering is necessary but we would all agree… that pain and suffering can’t be justified by our own pleasure, our amusement, our convenience... Most of the pain and suffering that we inflict on animals is a direct result of our pleasure, our amusement, our convenience.’ See: Gary Francione, The Legal Status of Animals: Panel Discussion II, Animal Law, Volume 8, 2002, p21.

[11] Crimes (Sentencing Procedure) Act 1999 (NSW) , sections 6-17. Between July 1998 and June 2002, at local court level, 4% of offenders received sentences of full-time imprisonment pursuant to section 5(1) of the POCTAA, 0% received sentences of home detention, periodic detention and suspended sentences (+ supervision) and   2% received suspended sentences. In relation to section 6(1) of the POCTAA, the statistics suggest that only 2% of offenders were sentenced to full-time prison. 3% received suspended sentences, 1% were sentenced to periodic detention, 0% to home detention and 2% were given suspended sentences and supervision.   Source: Judicial Information Research System database, Judicial Commission of New South Wales.

For further information on lenient sentencing of animal cruelty offenders see: Katrina Sharman, ‘ Sentencing under our anti-cruelty statutes: why our leniency will come back to bite us .’ Current Issues in Criminal Justice, vol. 13 no 3., p333-338.