Animal Welfare Amendment Act 2008. The above Act commenced on 29 July 2008, and amends the Animal Welfare Act 1993, from that date. The amendments are consolidated in the version of the Animal Welfare Act published on the Tasmanian Legislation database at www.thelaw.tas.gov.au A summary of these amendments follows: • Section 3A adds a number of deeming provisions in relation to who has the care or charge for the welfare of animals. Owners of animals, people with control, possession or custody, operators or managers of commercial premises, share farmers and chief executives and directors of corporations which own animals, are all deemed to have care or charge of animals. In addition, employers and corporations are now liable for the actions or omissions of employees. It has often been problematic to prove to the courts that a person had care or charge for the purposes of the Act. These deeming provisions remove this burden of proof. • Section 48A further reinforces the responsibility of employers and corporations for the welfare of animals. Courts considering charges against employees may order employers to appear to answer the same charges. If a body corporate is convicted of an offence, each person concerned in its management is taken to have committed the offence, and may be convicted unless they can demonstrate the offence took place without their knowledge, or they used all due diligence to prevent he offence. • Maximum penalties have been increased for mismanagement, cruelty and aggravated cruelty offences under sections 7 to 10. Maximum penalties under s.7 and 8 are now 100 units/6 months imprisonment for individuals, and 500 units for corporations. Maximum penalties • Section 8(2)(e) of the Act requires animals unable to provide for themselves, be given appropriate and sufficient food, water, shelter and exercise. Interpretive provisions are included in s.8 to define “appropriate and sufficient” in respect of food, water and shelter, to assist officers determine compliance with this section. • Section 11A provides for the regulation of rodeos in Tasmania. Rodeos are required to be conducted in accordance with a prescribed code of practice, and a veterinarian must be in attendance. The functions and powers of veterinarians officiating at rodeos are provided. The Regulations, which are being re-written, will prescribe a code of practice for rodeos. • The use of glue board traps, other than with Ministerial exemption, has been banned. These are devices which use an adhesive substance to entrap animals. They are used for rodent control. • Section 13A spells out the functions of officers, consistent with the purposes of the Act. These are to protect and secure the welfare of animals, to advise and instruct persons with the care or charge of animals and to investigate and take action upon, contraventions of the Act. • Section 14 provides powers for officers to give instructions in order to be able to assess or ensure the welfare of animals. The section previously specified the instructions were to be given to the person “in control” of an animal, which was unnecessarily restrictive. Amendments to this section allow the officer to give instructions to a person with the care or charge, a person who usually has care or charge or a person who the officer believes will have care or charge in the future. This enables the officer, for example, to instruct the driver of an empty livestock transport vehicle to make repairs to the vehicle (such as removing jagged protrusions or repairing gates) before loading any animals. These powers were previously unavailable. • Powers of seizure under s.16 have been increased to include powers to seize anything that the officer reasonably suspects is evidence that an offence has been or is being committed. Previously, powers of seizure were confined to things being used in the committing of an offence. This will for example allow the seizure of documents or other records for evidentiary purposes. • Section 26 (powers to require information) has been broadened to include powers to require answers to questions relating to the health and welfare of animals or to any other matter to which the Act applies. Non compliance is an offence, and the provision of false information is also an offence. Answers to questions under this section are inadmissible in proceedings, other than in proceedings under this section. When requiring a person to answer a question, the officer must inform the person of this inadmissibility. This requirement to advise on admissibility provides protection from self-incrimination. This amendment helps an officer assess the welfare of animals and thus inform any future actions to ensure their welfare. • Court orders are commonly used in all states and territories to restrict the numbers and types of animals a person convicted of an offence may keep. Section 43AA provides a mechanism for forfeiture of animals kept in contravention of court orders. Previously, there was no legal mechanism to enforce such orders by forfeiture. This section allows an officer to apply to a magistrate for an order that an animal kept in contravention of a court order be forfeited to the Crown, and disposed of in a manner determined by the Secretary. There are no rights of appeal. • People have been known to move interstate to avoid the effect of court orders. Section 43AAB provides a mechanism for the application of interstate orders restricting the custody of animals. The Minister is to establish a register of interstate orders. The contravention of an interstate order in Tasmania is an offence. Victoria already has similar legislation. • Section 43A provides for the use of infringement notices. The regulations, when re- written, will prescribe the infringements. It is envisaged that at the lower levels, most offences under the Act, with the exception of the more serious offences under sections 9 and 10, are amenable to infringement notices. Whether to issue an infringement notice, or to pursue the matter through the courts will be a judgment call for the officer involved. DPIW intends to draft guidelines for officers in this regard, and will consult with RSPCA and Tasmania Police in so doing. • The animal research provisions have been amended. Firstly, in s.3, the definition of animal research has been significantly amended. Animal research is now defined in terms of scientific or teaching activities which are likely to have a significant effect on the welfare of animals. Note that this is an outcomes-based definition, involving both intent (science or teaching) and significant animal welfare compromise. Secondly in s.35, the reporting requirements for licensed institutions have changed. Previously, institutions had to report within 14 months of licensing and thereafter at 12 monthly intervals. The amendments require a licensed institution to report as specified in conditions of license. Where conditions of licence do not specify reporting deadlines, the previous position applies as a default – 14 months and thereafter 12 monthly. Thirdly, the requirement for the Minister to consult the Advisory Committee before issuing animal research licenses has been removed. • Section 44 (animal welfare standards) has been significantly amended. Previously, the Minister approved animal welfare standards, which were actually guidelines, in that they were non-enforceable. This terminology caused considerable confusion. S.44A now allows “animal welfare standards” to be prescribed in the regulations, making them enforceable. S.44B allows the Minister to approve “animal welfare guidelines”, which are advisory. The intention is to accommodate the national moves to create uniform, enforceable livestock welfare standards (the “musts”), and advisory guidelines (the “shoulds”), in each jurisdiction. At the same time, the amendment allows the prescription of any other animal welfare standards or the Ministerial approval of any other guidelines. “Animal welfare standards”, in general will be “minimum acceptable” standards.” Non compliance with a prescribed standard will be an offence per se – that is whether or not a cruelty offence under the Act has occurred. Many standards are likely to be relatively easy to measure, making the task of investigating officers simpler. National animal welfare standards for road transport of livestock and for pigs are in the final stages of development and these are likely to be the first such standards prescribed under this provision. This is unlikely to occur before 2009. “Animal welfare guidelines” will include the nationally agreed livestock guidelines. They will usually represent “better” or “best” practice. They are advisory in nature and not enforceable. Non-compliance will not be an offence. • Section 48B provides relatively minor amendments to evidentiary provisions. A veterinary report is taken as evidence of the particulars contained in it, in the absence of evidence to the contrary. Officers are taken to be validly appointed in the absence of evidence to the contrary. This removes the need, by reversing the onus of proof, for the reporting veterinarian to appear, unless subpoenaed, or for an officer to prove his or her appointment is valid by producing documentation. • Section 48C, importantly, increases the period of limitations for offences from 6 months to 5 years for section 9 and 10 offences, and 2 years for all others. • Section 8A establishes a Ministerial register of pest animals and the substances which may be used for their control. Previously, this has been achieved through regulation. The register can now be amended administratively, to allow the expedient use of newly released, more humane poisons, without the need to refer the matter to Parliament.