SUBMISSION ON THE PREVENTION OF CRUELTY TO ANIMALS REGULATION 2012

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1 SUBMISSION ON THE PREVENTION OF CRUELTY TO ANIMALS REGULATION June 2012 Voiceless Limited ACN Paddington Street Paddington NSW 2021 P F Disclaimer: Voiceless Limited ACN ( Voiceless ) is a company limited by guarantee. Voiceless is not a legal practice and does not give legal advice to individuals or organisations. While Voiceless makes every effort to ensure the accuracy of information presented on its behalf, Voiceless does not guarantee the accuracy or completeness of that information. Information is provided by Voiceless as general information only and any use of or reliance on it should only be undertaken on a strictly voluntary basis after an independent review by a qualified legal practitioner (or other expert). Voiceless is not responsible for, and disclaims all liability for, any loss or damage arising out of the use of or reliance on information it provides. To learn more about Voiceless, please visit Voiceless envisions a world in which animals are treated with respect and compassion

2 ABOUT VOICELESS As an innovator, capacity builder and ideas-generator, Voiceless plays a leading role in the development of a cutting edge social justice movement, animal protection. With a highly professional and well-educated team, Voiceless brings together like-minded compassionate Australians from the legal, academic, non-profit and education sectors to form strong and effective networks. Voiceless believes in the provision of quality information, analysis and resources to inspire debate and discussion and to empower individuals and organisations to generate positive social change. Voiceless is a non-profit Australian organisation established in May 2004 by father and daughter team Brian and Ondine Sherman. To build and fortify the animal protection movement, Voiceless: Creates and fosters networks of leading lawyers, politicians, businesspeople and academics to influence law, policy, business and public opinion; Conducts high quality research and analysis of animal industries, exposing legalised cruelty and promoting informed debate; Creates a groundswell for social change by building and fortifying the Australian animal protection movement with select grants and prizes; Grows animal law as a mainstream practice area to advocate for change in the courts and in legislation; and Informs consumers and empowers them to make animal-friendly choices. PATRONS J.M. COETZEE, Nobel Prize for Literature Winner 2003, author of 'Lives of Animals' and 'Elizabeth Costello' BRIAN SHERMAN AM, businessman and philanthropist DR JANE GOODALL, world-renowned primatologist and animal advocate THE HON MICHAEL KIRBY AC CMG, former justice of the High Court of Australia AMBASSADORS HUGO WEAVING, Actor Last Ride, Little Fish, Lord of the Rings Trilogy, Matrix Trilogy, The Adventures of Priscilla Queen of the Desert, Oranges and Sunshine EMILY BARCLAY, Actor Prime Mover, Piece of my Heart, Suburban Mayhem, In My Father s Den ABBIE CORNISH, Actor Bright Star, Stop Loss, Elizabeth: The Golden Age, Somersault, Candy, A Good Year, Suckerpunch, Limitless For further information visit All correspondence in relation to this submission should be directed to: Ms Ruth Hatten, Legal Counsel Voiceless 2 Paddington Street Paddington NSW 2021 AUSTRALIA T: F: e.mail: ruth@voiceless.org.au 14 June 2012

3 1 Introduction 1.1 The NSW Department of Primary Industries has invited submissions on the Prevention of Cruelty to Animals Regulation 2012 (Regulation). The purpose of the Regulation is to remake, with amendments, the Prevention of Cruelty to Animals Regulation 2006 (2006 Regulation). 1.2 The Regulation makes a number of proposed changes, which Voiceless will comment on below. In addition to these changes, Voiceless believes that additional changes should also be made. 1.3 Voiceless agrees with the preferred option, that is, to make the proposed regulation, but with further amendments recommended below. 2 The proposed changes 2.1 The Regulation makes several proposed changes that Voiceless has considered and comments on below. (a) Clarifying the requirements of pinioning of birds Voiceless notes some improvements made on the pinioning requirements, for example, the removal from the Guidelines for the Pinioning of Birds (which are incorporated in the 2006 Regulation) of the allowance to pinion birds over 3 days of age. Voiceless remains concerned though over the use of the phrase no unnecessary pain where the pinion of a bird may be cut off if it inflicts no unnecessary pain on the bird (clause 24(2)(d) and clause 24(3)(b) for pheasants). The word unnecessary is ambiguous and it leaves the determination of what is unnecessary to the person pinioning the bird. What pain is necessary ; especially when pinioning a bird appears to be purely for human benefit? The same concern arises where the word is used to determine the permission to disable the wings of a bird under clause 24(1). Despite the inappropriateness of the use of the word unnecessary, the animal welfare impact of pinioning is debated, with some research showing that pinioning a bird at any age is unnecessarily painful and that it may even cause a phantom limb syndrome similar to what is observed in human amputees. 1 In light of such research, the NSW Government should err on the side of caution and prohibit pinioning. Voiceless recommends that pinioning be prohibited and that the disablement of wings by fleather clipping or other means be restricted to circumstances that don t cause any pain to the bird. 1 Ian J. h. Duncan; Penny Hawkins (13 January 2010). The Welfare of Domestic Fowl and Other Captive Birds. Springer. pp ISBN Page 1

4 (b) Clarifying what may be used as evidence of failure to provide food to ruminant stock animals during an emergency The 2006 Regulation provided that a person has failed to provide an animal with proper and sufficient food in drought conditions where it is found that a ruminant stock animal is not provided with supplementary feed during a period of 72 hours. The Regulation retains the 72-hour period in drought conditions but extends the circumstances to include a flood or other emergency. Other emergency is quite vague and should be specified to include natural disasters such as storms and fire, as stated in the Regulatory Impact Statement and therefore the intent of the amendment. (c) The circumstances in which tail docking of dairy cows, heifers or female calves is permitted The proposed changes to the tail docking requirements are an improvement on the 2006 Regulation in that tail docking is only permitted on a calf less than 6 months old, upon the advice of a veterinary practitioner to treat an injury or disease, and if older than 6 months, by a veterinary practitioner to treat an injury or disease. However, some further changes should be made. In respect of the procedure for a calf less than 6 months, it should be a requirement that the procedure be performed by a veterinary practitioner and, in all cases, it should be a requirement that anaesthic be used. (d) Additional requirements for debarking of dogs and declawing of cats The proposed changes to the debarking of dogs and declawing of cats requirements are an improvement on the 2006 Regulation in that: a dog owner is to state in a statutory declaration that all reasonble measures have been taken without success to prevent a dog from barking; an order must be issued under the Companion Animals Act 1998 requiring the owner to take action to prevent a cat causing damage with its claws to anything outside its residence; and a statutory declaration is required stating that a cat has caused damage to property within its residence, repeatedly injured humans or repeatedly injured or killed animals other than vermin, and that all measures have been taken to prevent the cat from causing damage to property, persons or animals without success. Both procedures should only ever be performed as a last resort ie where it s regarded as the only alternative to euthanasia and where it is in the interests of the animal s welfare. In fact, Queensland s Animal Care and Protection Act 2001 (sections 25 and 26) restricts debarking on both these grounds and restricts declawing where it is in the interests of the cat s welfare. Neither procedure is medically necessary and can result in pain, psychological distress and prevent dogs and cats from performing natural behaviours. The Regulation includes as examples of measures taken to prevent the cat causing damage etc behavioural training or caging of the cat. The example, Page 2

5 caging of the cat should be removed and replaced with another example, such as supervised outdoor play. To cage a cat is at least as inhumane as removing a cat s claws and should not be a recommended alternative measure. To ensure that all other measures to prevent a dog from barking or a cat from causing damage to property, persons and other animals have been taken; further proof ought be required in addition to a statutory declaration. Voiceless recommends that the Regulation set out matters that must be included in a statutory declaration such as witness accounts (by way of separate statutory declaration), photographs and other evidence and require that investigations of the home and training methods of the animal in question should be carried out prior to a procedure being performed. Voiceless would also like to see references to welfare interests of the animal, as provided for in the equivalent Queensland legislation. (e) Prescribing a maximum penalty for corporations in relation to the conveyance of animals and the use of animals in film and theatre Voiceless agrees that maximum penalties should be included for corporations. (f) Clarifying provisions relating to prohibited traps Voiceless agrees that clause 14 of the 2006 Regulation essentially repeats the requirements of section 23(2) of the Prevention of Cruelty to Animals Act 1979 (Act) and is therefore not necessary in the Regulation. (g) Simplifying reporting requirements for approved charitable organisations with law enforcement powers under the Act Voiceless has no issue with the simplification of reporting requirements as provided in the Regulation. 3 Additional changes required 3.1 The Regulation makes very minor changes to Part 2, Confinement of fowl for egg production, which have no substantial effect. Overall, the Regulation retains allowances for confining fowls in cages that prevent the performance of natural behavoiurs and create a stressful environment for fowls. It is glaringly obvious that restrictions relating to free-range egg production are missing from the Regulation. Voiceless recommends that the Regulation set out requirements for free-range egg production including maximum stocking density, which is currently set at 1,500 hens per hectare in the Model Code of Practice for the Welfare of Animals, Domestic Poultry. Alternatively (and instead of the Code being adopted as guidelines by way of clause 33 of the Regulation), Schedule 1 of the Regulation ought to include egg production as an animal trade and correspondingly specify this Code in Column 2 of that Schedule, with the effect of it being a Code that must be complied with. Page 3

6 3.2 All Codes that have been adopted as guidelines should instead be included in Schedule 1 of the Regulation with the effect that compliance with those Codes is mandatory. 3.3 Clause 35 of the Regulation retains the exemption on using prohibited electrical devices where a purpose or circumstance is specified in Schedule 3. Alternative methods of control that don t cause pain or distress should be prescribed instead. 3.4 Clause 36 of the Regulation retains the exemptions for rodeos from prohibitions under sections 18(1), 18A and 20 of the Act. There are a number of welfare concerns attributed with rodeos and the ideal case scenario is that they be prohibited. As an intermediate measure, mandatory compliance with the Code of Practice for the Welfare of Animals Used in Rodeo Events should be required. The provision in clause 36(4) that a person does not lose the benefit of the exemption because of a failure to comply with the relevant Code of Practice if the failure occurs despite the person having done all that the person could reasonably be expected to have done to comply with that Code should be removed. 3.5 The penalties in the Regulation (and in the Act) are too low and in fact, NSW has the lowest penalties across the country when it comes to animal welfare legislation. All penalties need to be increased so that they are at least on a par with other States. 4 Summary 4.1 While the Regulation does contain amendments, which improve circumstances for animals in most respects, there is still great room for improvement. The Regulatory Impact Statement states that through the Act, the Government seeks to prevent acts of cruelty to animals, and to promote animal welfare, by requiring persons in charge of animals to treat them in a humane manner and by taking necessary action to prevent cruelty or mistreatment. The Act as it currently stands, does not achieve its aims, some of the reasons for which are stated above. The recommendations made above should be taken into account if the NSW Government is serious about preventing acts of cruelty to animals and promoting animal welfare. Respectfully submitted by Ruth Hatten, Legal Counsel, Voiceless Page 4