2002-2003

The Parliament of the
Commonwealth of Australia

THE SENATE



Presented and read a first time




National Animal Welfare Bill 2003
No.            , 2003
(Senator Bartlett)




A Bill for an Act to promote humane, responsible
and accountable care, protection and use of
domestic animals, livestock, wildlife and animals
kept for scientific purposes, and the standards
required to achieve this end, and for related
purposes


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Part 1--Preliminary                                                                                                               1
                 1        Short title ........................................................................................... 1
                 2        Commencement ................................................................................. 2
                 3        Purposes of Act.................................................................................. 2
                 4        How purposes are to be primarily achieved....................................... 2
                 5        Application of Act ............................................................................. 3
                 6        Saving of certain State and Territory laws......................................... 4
                 7        Act to bind the Crown........................................................................ 5

Part 2--National Animal Welfare Authority                                                                               6
                 8        National Animal Welfare Authority .................................................. 6
                 9        Legal status of Authority ................................................................... 6
                 10       Constitution of Authority................................................................... 6
                 11       Terms and conditions of appointment................................................ 7
                 12       Advisory committees ......................................................................... 7
                 13       Functions and powers of Authority ................................................... 7
                 14       Reports and advice to be provided to the Ministerial Council........... 8

Part 3--Inspection                                                                                                               9
    Division 1--General                                                                                                9
                 15       Appointment of inspectors................................................................. 9
                 16       Qualifications of inspectors ............................................................... 9
                 17       Powers of inspectors--general powers............................................ 10
    Division 2--Entry to places other than vehicles                                                                            11
          Subdivision 1--Power to enter places other than vehicles                                                         11
                 18       Power of entry ................................................................................. 11
                 19       Limited entry to provide relief to animal......................................... 12
          Subdivision 2--Procedure for entry without warrant                                                     12
                 20       Procedure for entry with consent ..................................................... 12
                 21       Procedure for other entries without warrant .................................... 13
          Subdivision 3--Warrants                                                                                          14
                 22       Application for warrant.................................................................... 14
                 23       Issue of warrant ............................................................................... 14
                 24       Special warrants............................................................................... 15
                 25       Warrants--procedure for entry........................................................ 16
    Division 3--Entry to vehicles                                                                                              18
          Subdivision 1--Power to enter vehicles                                                                               18




i   National Animal Welfare Bill 2003            No.        , 2003


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          27          Procedure for entry without consent if person in control or
                      occupier present ............................................................................... 18
    Subdivision 2--Powers to support entry                                                                   19
          28       Power to stop vehicle that may be entered....................................... 19
          29 Failure to comply with stop signal............................................................. 19
          30       Power to require help to enter from person in control ..................... 20
          31       Failure to comply with entry requirement ....................................... 20
Division 4--Powers for entry to all places                                                                              21
          32          Application of Division ................................................................... 21
          33          General powers ................................................................................ 21
          34          Power to require reasonable help..................................................... 22
          35          Failure to comply with help requirement......................................... 22
          36          Power to require person in control of vehicle to take action ........... 23
          37          Failure to comply with action requirement...................................... 23
          38          Compliance ...................................................................................... 23
Division 5--Seizure and forfeiture                                                                                    24
    Subdivision 1--Powers of seizure                                                                           24
          39          General power to seize evidence ..................................................... 24
          40          Seizure or evidence under warrant................................................... 25
          41          Seizure for welfare of animal........................................................... 25
          42          Seizure of property subject to security............................................. 25
    Subdivision 2--Powers to support seizure                                                                      25
          43          Direction to person in charge........................................................... 25
          44          Failure to comply with seizure direction ......................................... 26
          45          Powers for seized things .................................................................. 26
          46          Offence to tamper with seized thing ................................................ 27
    Subdivision 3--Safeguards for seized animal or property                                                    27
          47       Information notice and receipt for seized animal or property.......... 27
          48       Access to seized animal or property ................................................ 28
          49       Return of seized animal ................................................................... 29
          50 Return of other seized property ................................................................. 30
    Subdivision 4--Forfeiture                                                                                           31
          51          Power to forfeit ................................................................................ 31
          52          Information notice about forfeiture.................................................. 32
    Subdivision 5--Dealing with animal or property forfeited or
                   transferred to Commonwealth or prescribed
                   entity                                                                                        33
          53          When transfer takes effect ............................................................... 33




                                     National Animal Welfare Bill 2003                        No.       , 2003          ii


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                  55       Appeal against forfeiture ................................................................. 34
                  56       Where a person makes an appeal in accordance with
                           section 55......................................................................................... 34
      Division 6--Animal welfare directions                                                                            35
                  57       Application of Division ................................................................... 35
                  58       Power to give animal welfare direction ........................................... 35
                  59       Requirements for giving animal welfare direction .......................... 36
                  60       Failure to comply with animal welfare direction ............................. 37
      Division 7--Inspector's power to destroy animals                                                                        38
                  61       Power of destruction ........................................................................ 38
                  62       Other duties...................................................................................... 38

Part 4--Animal welfare offences                                                                                                39
      Division 1--Breach of duty of care                                                                          39
                  63       Breach of duty of care prohibited .................................................... 39
      Division 2--Cruelty offences                                                                                         40
                  64       Animal cruelty prohibited................................................................ 40
                  65       Alleviation of pain ........................................................................... 41
      Division 3--Prohibited conduct                                                                                             42
                  66       Unreasonable abandonment............................................................. 42
                  67       Prohibited release............................................................................. 42
                  68       Causing captive animal to be injured or killed by dog .................... 42
                  69       Releasing animal for injury or killing by dog .................................. 42
                  70       Keeping or using as kill or lure for blooding or coursing................ 43
                  71       Possession of prohibited trap or spur unlawful................................ 43
                  72       Use of prohibited trap or spur unlawful........................................... 44
                  73       Baits or harmful substances ............................................................. 44
                  74       Unlawfully allowing an animal to injure or kill another
                           animal .............................................................................................. 45
                  75       Cropping dogs' ears......................................................................... 45
                  76       Docking dogs' tails .......................................................................... 45
                  77       Debarking operations....................................................................... 46
                  78       Removal of cats' claws .................................................................... 47
                  79       Docking tails of cattle or horses ...................................................... 47
                  80       Use for certain scientific purposes unlawful.................................... 48
      Division 4--Prohibited events                                                                                  49
                  81       Meaning of prohibited event............................................................ 49
                  82       Participation in prohibited event...................................................... 49
                  83       Presence at prohibited event ............................................................ 50



iii   National Animal Welfare Bill 2003             No.        , 2003


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             84    Obligation to exercise closely confined dogs .................................. 51
             85    Feral animals or pests ...................................................................... 51
             86    Animals used to feed another animal............................................... 52

Part 5--Live exports                                                                                                     53
             87    Limitation on live exports................................................................ 53
             88    Export permits ................................................................................. 53
             89    Duties of veterinary surgeons .......................................................... 54
             90    Liability ........................................................................................... 54

Part 6--Imports of animal products                                                                                  56
             91    Limitation on import of animal products ......................................... 56
             92    Import permits ................................................................................. 56

Part 7--Labelling of animal products                                                                 57
             93    Authority to develop draft code of practice ..................................... 57

Part 8--Animals used for experimental purposes                                                                           58
             94    Definitions ....................................................................................... 58
             95    Offence to operate research unit or supply unit without a
                   licence.............................................................................................. 59
             96    Offence to conduct research with animals other than in
                   accordance with NHMRC code of practice ..................................... 59
             97    Matters of responsibility .................................................................. 59
             98    Data bank......................................................................................... 61
             99    Licences ........................................................................................... 61
             100   Public notice of licences .................................................................. 62
             101   Conditions of licences...................................................................... 62
             102   Objections to licences ...................................................................... 62
             103   Suspension or revocation of licence ................................................ 62
             104   Acquisition of animals for research ................................................. 63
             105   Revoked licences ............................................................................. 63
             106   Management of pain ........................................................................ 63
             107   Notice of revocation, refusal or suspension of licence .................... 63
             108   Annual report of research unit operator ........................................... 64
             109   Annual report of supply unit operator.............................................. 65
             110   Register............................................................................................ 65
             111   Registration details .......................................................................... 65
             112   Inspection of register ....................................................................... 66
             113   False representations about registration........................................... 66
             114   Conditions for cancellation or suspension ....................................... 66




                                  National Animal Welfare Bill 2003                          No.        , 2003          iv


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                 115      Prohibition on research funding....................................................... 68

Part 10--Administrative provisions                                                                                              69
    Division 1--Staff                                                                                                             69
                 116      Staff ................................................................................................. 69
                 117      Consultants ...................................................................................... 69
    Division 2--Payments and application of money                                                                             70
                 118      Payments to the Authority ............................................................... 70
                 119      Application of money of the Authority............................................ 70
                 120      Estimates.......................................................................................... 70
    Division 3--Procedure of the Authority                                                                                   71
                 121      Authority to regulate its procedure .................................................. 71
                 122      Convening meetings ........................................................................ 71
                 123      Presiding at meetings....................................................................... 71
                 124      Quorum............................................................................................ 71
                 125      Voting at meetings........................................................................... 71
                 126      Conduct and records of meetings..................................................... 72
    Division 4--Administrative provisions                                                                                    73
                 127      Delegation........................................................................................ 73
                 128      Remuneration and allowances ......................................................... 73
                 129      Leave of absence.............................................................................. 73
                 130      Resignation ...................................................................................... 73
                 131      Disclosure of interests...................................................................... 74
                 132      Ceasing to be Chairperson ............................................................... 74
                 133      Termination of appointment ............................................................ 74
                 134      Acting appointments........................................................................ 75

Part 11--Miscellaneous                                                                                                       77
                 135      Regulations ...................................................................................... 77

Schedule 1--A national animal welfare system                                                                                    78

Schedule 2--Definitions                                                                                                         80




v   National Animal Welfare Bill 2003             No.        , 2003


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 2
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 8
 9
10
11
12
13
14
15
16
17
18
19
20

     A Bill for an Act to promote humane, responsible
21

     and accountable care, protection and use of
22

     domestic animals, livestock, wildlife and animals
23

     kept for scientific purposes, and the standards
24

     required to achieve this end, and for related
25

     purposes
26


     The Parliament of Australia enacts:
27



     Part 1--Preliminary
28


     1 Short title
29

                This Act may be cited as the National Animal Welfare Act 2003.
30




                                  National Animal Welfare Bill 2003   No.   , 2003   1


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     Section 2

     2 Commencement
 1

             (1) Sections 1 and 2 commence on the day on which this Act receives
 2
                 the Royal Assent.
 3

             (2) Subject to subsection (3), the remaining provisions of this Act
 4
                 commence on a day to be fixed by Proclamation.
 5

             (3) If the provisions referred to in subsection (2) do not commence
 6
                 under that subsection within the period of 6 months beginning on
 7
                 the day on which this Act receives the Royal Assent, they
 8
                 commence on the first day after the end of that period.
 9


     3 Purposes of Act
10

                  The purposes of this Act are to do the following:
11
                   (a) promote the responsible care and use of animals;
12
                   (b) provide standards for the care and use of animals that:
13
                         (i) where it is deemed necessary to capture and kill
14
                              wildlife, only those devices and techniques should be
15
                              used which do not inflict unnecessary cruelty, harm
16
                              non-target animals or damage natural habitat;
17
                        (ii)      prohibit the capture and killing of wild animals for
18
                              the purpose of entertainment or sport;
19
                        (iii)     ensure that, in the implementation of the matters
20
                              contained in paragraphs (i) and (ii), all necessary
21
                              measures shall be taken to protect habitat and
22
                              ecosystems;
23
                   (d) protect animals from unjustifiable, unnecessary or
24
                       unreasonable pain;
25
                   (e) ensure the use of animals for scientific purposes is
26
                       accountable, open and responsible.
27


     4 How purposes are to be primarily achieved
28

                  The purposes of this Act are to be primarily achieved by the
29
                  following:
30
                    (a) providing for regulations about codes of practice for animal
31
                        welfare;
32




     2      National Animal Welfare Bill 2003   No.   , 2003


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                                                                             Section 5

                 (b) allowing regulations to require compliance with codes of
 1
                      practice;
 2
                 (c) imposing a duty of care on persons in charge of animals;
 3
                 (d) prohibiting certain conduct in relation to animals;
 4
                 (e) regulating certain conduct in relation to animals;
 5
                  (f) requiring a person using an animal for scientific purposes to
 6
                      comply with any scientific use code of practice and a duty of
 7
                      care;
 8
                 (g) providing for the registration of certain users of animals for
 9
                      scientific purposes;
10
                 (h) providing for the appointment of authorised officers to
11
                      monitor compliance with compulsory code of practice
12
                      requirements and any scientific use code of practice;
13
                  (i) providing for the appointment of inspectors to investigate and
14
                      enforce this Act;
15
                  (j) providing for the establishment of the National Animal
16
                      Welfare Authority to advise the Minister on animal welfare
17
                      issues and implement this Act.
18


     5 Application of Act
19

            (1) The provisions of this Act apply to all animals in Australia or in an
20
                external Territory to the extent that those provisions:
21
                  (a) give effect to a prescribed treaty or international agreement;
22
                      or
23
                 (b) relate to matters external to Australia; or
24
                  (c) relate to matters of international concern.
25

            (2) Without prejudice because of the effect of subsection (1), the
26
                provisions of this Act apply to the welfare of animals and dealings
27
                in respect of animals:
28
                  (a) that are owned by, or in the possession or control of, the
29
                      Commonwealth, an authority or instrumentality of the
30
                      Commonwealth or a Commonwealth company; or
31
                  (b) that are supplied to the Commonwealth, an authority or
32
                      instrumentality of the Commonwealth or a Commonwealth
33
                      company; or
34




                                 National Animal Welfare Bill 2003   No.   , 2003     3


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     Section 6

                    (c) that are owned by, or are in the possession or control of, a
 1
                         trading corporation; or
 2
                    (d) that are owned by, or are in the possession or control of, a
 3
                         financial corporation; or
 4
                    (e) that are owned by, or in the possession or control of, a
 5
                         foreign corporation; or
 6
                     (f) that are situated in a Territory, or owned by or in the
 7
                         possession or control of a resident of a Territory; or
 8
                    (g) that are the subject of, or used in, the course of trade or
 9
                         commerce:
10
                           (i) between Australia and a place outside Australia; or
11
                          (ii) among the States; or
12
                         (iii) within a Territory, between a State and a Territory or
13
                               between 2 Territories.
14

             (3) By force of this subsection, this Act, as it applies to a trading
15
                 corporation or a financial corporation, has effect in relation to
16
                 things done, or authorised or caused to be done, by the corporation
17
                 in the course of its trading activities or its financial activities.
18

             (4) In this section:
19

                  financial corporation means a body corporate that is, for the
20
                  purposes of paragraph 51(xx) of the Constitution, a financial
21
                  corporation formed within the limits of the Commonwealth.
22

                  trading corporation means a body corporate that is, for the
23
                  purposes of paragraph 51(xx) of the Constitution, a trading
24
                  corporation formed within the limits of the Commonwealth.
25


     6 Saving of certain State and Territory laws
26

             (1) It is the intention of the Parliament that this Act is not to affect the
27
                 operation of a law of a State or of a Territory that makes provision
28
                 with respect to the welfare of animals and is capable of operating
29
                 concurrently with this Act.
30

             (2) In the event that State provisions are deemed more stringent by the
31
                 Commonwealth Minister, those State provisions shall prevail.
32




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                                                                           Section 7

    7 Act to bind the Crown
1

          (1) This Act binds the Crown in all its capacities.
2

          (2) Nothing in this Act renders the Crown liable to be prosecuted for
3
              an offence.
4




                               National Animal Welfare Bill 2003   No.   , 2003     5


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     Section 8
 1


     Part 2--National Animal Welfare Authority
 2
 3


     8 National Animal Welfare Authority
 4

             (1) A National Animal Welfare Authority is established.
 5

             (2) The Authority is the regulatory body for animal welfare in
 6
                 Australia.
 7


     9 Legal status of Authority
 8

             (1) The Authority:
 9
                  (a) is a body corporate; and
10
                  (b) has a seal; and
11
                  (c) may sue and be sued in its corporate name.
12

             (2) All courts, judges and people acting judicially must take judicial
13
                 notice of the imprint of the seal of the Authority appearing on a
14
                 document, and are to presume that the document was duly sealed.
15


     10 Constitution of Authority
16

             (1) The Authority consists of:
17
                  (a) 3 members representing the Commonwealth; and
18
                  (b) 2 members representing commercial producers or users of
19
                       animals and animal products; and
20
                  (c) 2 members representing animal welfare non-government
21
                       organisations; and
22
                  (d) 2 members representing community groups; and
23
                  (e) 4 other members, at least 2 of whom are scientists; and
24
                   (f) 1 member who is an ethicist.
25

             (2) The members are to be appointed by the Minister on the basis of
26
                 merit.
27




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                                                                          Section 11

           (3) The Chairperson of the Authority is to be elected by the members
 1
               of the Authority. This position is not to be held for more than 12
 2
               months by the same person in any 2-year period.
 3


     11 Terms and conditions of appointment
 4

           (1) A member of the Authority is to be appointed for the period (not
 5
               longer than 3 years) specified in the instrument of appointment, but
 6
               is eligible for reappointment.
 7

           (2) A member of the Authority holds office on the terms and
 8
               conditions (if any) not covered by this Act as are determined by the
 9
               Minister.
10


     12 Advisory committees
11

               The Authority may establish national advisory committees as
12
               determined by the Authority, or at the request of the Minister or the
13
               Ministerial Council.
14


     13 Functions and powers of Authority
15

           (1) The Authority has the following functions and powers:
16
                (a) the coordination, monitoring and review of Commonwealth
17
                    responsibilities for animal welfare;
18
                (b) functions and powers conferred on it by or under this Act
19
                    (other than this section);
20
                (c) functions and powers conferred on it by or under other laws
21
                    of the Commonwealth;
22
                (d) functions and powers that are, with the consent of the
23
                    Ministerial Council, conferred on the Authority by writing
24
                    signed by the Minister.
25

           (2) The Authority has power to do whatever is necessary for or in
26
               connection with, or reasonably incidental to, the performance of its
27
               functions.
28

           (3) The Authority is to perform its functions and exercise its powers in
29
               accordance with the Agreement (so far as applicable) and is to
30




                                National Animal Welfare Bill 2003   No.   , 2003    7


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    Section 14

                 comply in all respects with the provisions of the Agreement that
1
                 are applicable to it.
2


    14 Reports and advice to be provided to the Ministerial Council
3

            (1) The Authority is to provide to the Ministerial Council such reports
4
                relating to the performance or exercise of the Authority's functions
5
                or powers as the Ministerial Council directs.
6

            (2) The Ministerial Council may, by resolution, direct the Authority to
7
                provide advice about any matter related to the functions or powers
8
                of the Authority or of the Ministerial Council.
9




    8      National Animal Welfare Bill 2003   No.   , 2003


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                                                                      General Division 1

                                                                            Section 15
 1


     Part 3--Inspection
 2


     Division 1--General
 3


     15 Appointment of inspectors
 4

            (1) The Authority may appoint inspectors.
 5

            (2) An inspector is responsible for matters specified by the Authority.
 6

            (3) The Chairperson of the Authority must issue to each inspector an
 7
                identity card containing a recent photograph of the inspector and
 8
                stating that the holder of the card is an inspector for the purposes of
 9
                this Act.
10

            (4) The Authority may terminate the appointment of inspectors.
11


     16 Qualifications of inspectors
12

            (1) Inspectors must have a sound knowledge of animal husbandry and
13
                animal welfare. The minimum academic requirement is the
14
                completion of a prescribed course of training in animal welfare or
15
                an equivalent course of study.
16

            (2) Inspectors must have a thorough knowledge of the following:
17
                  (a) the operation of this Act and the regulations;
18
                  (b) the codes of practice made under regulations made under this
19
                      Act.
20

            (3) A person may be appointed as an inspector only if:
21
                 (a) the person is:
22
                       (i) engaged under the Public Service Act 1999; or
23
                      (ii) an officer or employee of a State or Territory; or
24
                     (iii) employed by the Royal Society for the Prevention of
25
                           Cruelty to Animals; or
26




                                  National Animal Welfare Bill 2003   No.   , 2003     9


[Page Break]

     Division 1 General

     Section 17

                          (iv) included in a class of persons declared under a
 1
                               regulation to be an approved class of persons for the
 2
                               purposes of this section.
 3


     17 Powers of inspectors--general powers
 4

             (1) Inspectors may exercise any of the following powers in order to
 5
                 fulfil the purposes of this Act.
 6

             (2) Within reason, inspectors may undertake random inspections of
 7
                 animals.
 8

             (3) A person with an animal in his or her care must permit inspection
 9
                 of the animal as well as of housing, foodstuffs and equipment
10
                 intended for use in relation to the animal.
11

                  Maximum penalty: 20 penalty units.
12

             (4) A person must not refuse or fail to comply with subsection (3).
13

             (5) The animal keeper must be advised of the inspection before or on
14
                 the occasion of the visit.
15

             (6) An inspector may:
16
                  (a) inform an animal keeper that he or she has 12 hours in which
17
                      to take action or his or her animal or animals will be seized;
18
                      or
19
                  (b) immediately seize an animal or animals; or
20
                  (c) humanely kill an animal, or take any other necessary steps to
21
                      relieve an animal from suffering; or
22
                  (d) administer analgesics to an animal.
23


24




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                                         Entry to places other than vehicles Division 2

                                                                          Section 18
 1


     Division 2--Entry to places other than vehicles
 2


     Subdivision 1--Power to enter places other than vehicles
 3


     18 Power of entry
 4

           (1) An inspector may enter and stay at a place other than a vehicle if:
 5
                (a) its occupier consents to the entry; or
 6
                (b) it is a public place and the entry is made when the place is
 7
                     open to the public; or
 8
                (c) the entry is authorised by a warrant; or
 9
                (d) its occupier has been given an animal welfare direction and
10
                     the entry is made at a time or interval stated in the direction,
11
                     to check compliance with the direction; or
12
                (e) the inspector reasonably suspects that:
13
                       (i) an animal at the place has just sustained a severe injury;
14
                           and
15
                      (ii) the injury is likely to remain untreated, or untreated for
16
                           an unreasonable period; or
17
                 (f) the inspector reasonably suspects there is an imminent risk of
18
                     death or injury to an animal at the place because of an
19
                     accident or an animal welfare offence; or
20
                (g) the inspector reasonably suspects any delay in entering the
21
                     place will result in the concealment, death, or destruction of
22
                     anything at the place that is:
23
                       (i) evidence of an animal welfare offence under this Act; or
24
                      (ii) being used to commit, continue or repeat, an animal
25
                           welfare offence under this Act.
26

           (2) For the purpose of asking the occupier of a place for consent to
27
               enter a place under paragraph (1)(a), an inspector may, without the
28
               occupier's consent or a warrant:
29
                 (a) enter land around premises at the place to the extent that is
30
                     reasonable to contact the occupier; or
31




                               National Animal Welfare Bill 2003   No.   , 2003     11


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     Division 2 Entry to places other than vehicles

     Section 19

                    (b) enter that part of the place that the inspector reasonably
 1
                        considers members of the public ordinarily are allowed to
 2
                        enter when they wish to contact the occupier.
 3


     19 Limited entry to provide relief to animal
 4

              (1) This section applies if:
 5
                   (a) an inspector reasonably suspects:
 6
                          (i) an animal at a place other than a vehicle is suffering
 7
                              from lack of food or water or is entangled; and
 8
                         (ii) the person in charge of the animal is not, or is
 9
                              apparently not, present at the place; and
10
                   (b) the animal is not at a part of the place at which a person
11
                        resides, or apparently resides.
12

              (2) The inspector may enter and stay at the place while it is reasonably
13
                  necessary to provide food or water to, or to disentangle, the animal.
14

              (3) Before leaving the place, the inspector must leave a notice in a
15
                  conspicuous position and in a reasonably secure way stating the
16
                  following:
17
                    (a) the inspector's name and business address or telephone
18
                        number;
19
                    (b) the action taken by the inspector under subsection (2);
20
                    (c) the time and date the action was taken.
21

              (4) This section does not limit section 20.
22


     Subdivision 2--Procedure for entry without warrant
23


     20 Procedure for entry with consent
24

              (1) This section applies if an inspector intends to ask an occupier of a
25
                  place to consent to the inspector or another inspector entering the
26
                  place under paragraph 18(1)(a).
27

              (2) Before asking for the consent, the inspector must tell the occupier:
28
                   (a) the purpose of the entry; and
29
                   (b) that the occupier is not required to consent.
30




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                                          Entry to places other than vehicles Division 2

                                                                           Section 21

            (3) If the consent is given, the inspector may ask the occupier to sign
 1
                an acknowledgment of the consent.
 2

            (4) The acknowledgment must state:
 3
                 (a) that the occupier has been told:
 4
                       (i) the purpose of the entry; and
 5
                      (ii) that the occupier is not required to consent; and
 6
                 (b) the purpose of the entry; and
 7
                 (c) the occupier gives the inspector or another inspector consent
 8
                     to enter the place and exercise powers under this Part; and
 9
                 (d) the time and date the consent was given.
10

            (5) If the occupier signs the acknowledgment, the inspector must
11
                promptly give a copy to the occupier.
12

            (6) If:
13
                  (a) an issue arises in a proceeding about whether the occupier
14
                      consented to the entry; and
15
                  (b) an acknowledgment complying with subsection (4) for the
16
                      entry is not produced in evidence;
17
                the onus of proof is on the person relying on the lawfulness of the
18
                entry to prove that the occupier consented.
19


     21 Procedure for other entries without warrant
20

            (1) This section applies if:
21
                 (a) an inspector is intending to enter a place under paragraph
22
                      18(1)(d), (e), (f) or (g); and
23
                 (b) the occupier of the place is present at the place.
24

            (2) Before entering the place, the inspector must do, or must make a
25
                reasonable attempt to do, the following things:
26
                  (a) produce or display his or her identity card for the occupier's
27
                      inspection so that it is clearly visible; and
28
                  (b) tell the occupier the purpose of the entry; and
29
                  (c) tell the occupier that the inspector is permitted under this Act
30
                      to enter the place without the occupier's consent or a warrant.
31




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[Page Break]

     Division 2 Entry to places other than vehicles

     Section 22

     Subdivision 3--Warrants
 1


     22 Application for warrant
 2

              (1) An inspector may apply to a magistrate or a justice of the peace for
 3
                  a warrant for a place.
 4

              (2) However, an application cannot be made to a justice of the peace
 5
                  who:
 6
                   (a) if the inspector is employed by the department--is employed
 7
                        by the department; or
 8
                   (b) if the inspector is not employed by the department--is
 9
                       employed by the same person or agency as the inspector.
10

              (3) The application must be sworn and state the grounds on which the
11
                  warrant is sought.
12

              (4) The magistrate or justice of the peace may refuse to consider the
13
                  application until the inspector gives the magistrate or justice of the
14
                  peace all the information the magistrate or justice of the peace
15
                  requires about the application in the way in which the magistrate or
16
                  justice of the peace requires.
17


     23 Issue of warrant
18

              (1) A magistrate or justice of the peace may issue a warrant only if the
19
                  magistrate or justice of the peace is satisfied there are reasonable
20
                  grounds for suspecting there is:
21
                    (a) a need to enter the place for which the warrant is sought, to
22
                        relieve an animal in pain at the place; or
23
                   (b) a particular animal or other thing or activity (the evidence)
24
                        that may provide evidence of an offence under this Act and
25
                        the evidence is at the place, or may be at the place within the
26
                        next 7 days.
27

              (2) The warrant must state:
28
                   (a) that a named inspector may:
29
                         (i) enter the place and any other place necessary for entry;
30
                             and
31




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                                           Entry to places other than vehicles Division 2

                                                                            Section 24

                        (ii) exercise an inspector's powers under this Part; and
 1
                (b)    either:
 2
                         (i) if the warrant is issued under subsection (1)(a)--the
 3
                             animal or a class of animals for which the warrant is
 4
                             issued; or
 5
                        (ii) if the warrant is issued under subsection (1)(b)--the
 6
                             offence for which the warrant is issued; and
 7
                (c)    the evidence that may be seized under the warrant; and
 8
                (d)    the hours of the day or night when the place may be entered;
 9
                       and
10
                 (e)   the date, within 7 days after the warrant's issue, the warrant
11
                       ends.
12


     24 Special warrants
13

           (1) An inspector may apply for a warrant (a special warrant) by
14
               electronic communication, fax, phone, radio or another form of
15
               communication if the inspector considers it necessary because of:
16
                 (a) urgent circumstances; or
17
                 (b) other special circumstances, including, for example, the
18
                     inspector's remote location.
19

           (2) Before applying for the special warrant, the inspector must prepare
20
               an application stating the grounds on which the special warrant is
21
               sought.
22

           (3) The inspector may apply for the special warrant before the
23
               application is sworn.
24

           (4) After issuing the special warrant, the magistrate or justice of the
25
               peace must immediately electronically communicate or fax a copy
26
               to the inspector if it is reasonably practicable to do so.
27

           (5) If it is not reasonably practicable to electronically communicate or
28
               fax a copy of the special warrant to the inspector:
29
                 (a) the magistrate or justice of the peace must tell the inspector:
30
                         (i) what the terms of the warrant are; and
31
                        (ii) the date and time the warrant was issued; and
32




                                 National Animal Welfare Bill 2003   No.   , 2003     15


[Page Break]

     Division 2 Entry to places other than vehicles

     Section 25

                    (b) the inspector must complete a form of warrant (a warrant
 1
                        form) which must include:
 2
                          (i) the magistrate's or justice of the peace's name; and
 3
                         (ii) the date and time the magistrate or justice of the peace
 4
                              issued the warrant; and
 5
                        (iii) the terms of the special warrant.
 6

              (6) The faxed special warrant, or the warrant form properly completed
 7
                  by the inspector, authorises the entry and the exercise of the other
 8
                  powers stated in the special warrant issued by the magistrate or
 9
                  justice of the peace.
10

              (7) The inspector must, at the first reasonable opportunity, send the
11
                  magistrate or justice of the peace:
12
                   (a) the sworn application; and
13
                   (b) if the inspector completed a warrant form--the completed
14
                       warrant form.
15

              (8) On receiving the documents, the magistrate or justice of the peace
16
                  must attach them to the special warrant.
17

              (9) If:
18
                    (a) the issue arises in a proceeding of whether an exercise of a
19
                        power was authorised by a special warrant; and
20
                    (b) the special warrant is not produced in evidence;
21
                  the onus of proof is on the person relying on the lawfulness of the
22
                  exercise of the power to prove a special warrant authorised the
23
                  exercise of the power.
24


     25 Warrants--procedure for entry
25

              (1) This section applies if:
26
                   (a) an inspector named in a warrant issued under this Part for a
27
                        place is intending to enter the place under the warrant; and
28
                   (b) the occupier of the place is present at the place.
29

              (2) Before entering the place, the inspector must do, or must make a
30
                  reasonable attempt to do, the following things:
31




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[Page Break]

                                    Entry to places other than vehicles Division 2

                                                                     Section 25

           (a) produce or display his or her identity card for the occupier's
 1
               inspection so that it is clearly visible; and
 2
           (b) give the occupier a copy of:
 3
                 (i) the warrant; or
 4
                (ii) if the entry is authorised by a faxed special warrant or
 5
                      warrant form mentioned in paragraph 24(5)(b)--the
 6
                      faxed special warrant or warrant form; and
 7
           (c) tell the occupier that the inspector is permitted by the special
 8
               warrant to enter the place; and
 9
           (d) give the occupier an opportunity to allow the inspector
10
               immediate entry to the place without using force.
11

     (3) However, the inspector need not comply with subsection (2) if the
12
         inspector reasonably believes the inspector must immediately enter
13
         the place to ensure that the effective execution of the warrant is not
14
         frustrated.
15




                          National Animal Welfare Bill 2003   No.   , 2003     17


[Page Break]

     Division 3 Entry to vehicles

     Section 26
 1


     Division 3--Entry to vehicles
 2


     Subdivision 1--Power to enter vehicles
 3


     26 Power of entry
 4

                  An inspector may enter and stay in a vehicle if:
 5
                   (a) the person in control of the vehicle consents to the entry; or
 6
                   (b) the person in control of the vehicle has been given an animal
 7
                       welfare direction and the entry is made at a time or interval
 8
                       stated in the direction, to check compliance with the
 9
                       direction; or
10
                   (c) the inspector reasonably suspects that:
11
                         (i) the vehicle is being, has been, or is about to be used in
12
                             the commission of an animal welfare offence; or
13
                        (ii) the vehicle, or an animal or other thing in the vehicle,
14
                             may provide evidence of an animal welfare offence; or
15
                       (iii) there is an imminent risk of death or injury to an animal
16
                             in or from the vehicle or because of an animal welfare
17
                             offence involving the vehicle; or
18
                       (iv) there is a need to enter the vehicle to relieve an animal
19
                             in pain in the vehicle or prevent an animal in the vehicle
20
                             from suffering pain.
21

                  Note:      The definition of vehicle in Schedule 2 is intended to be wide to
22
                             enable inspectors to deal with animal welfare situations arising in
23
                             relation to any vehicle used on land, sea or in the air.
24


     27 Procedure for entry without consent if person in control or
25
              occupier present
26

              (1) This section applies if:
27
                   (a) an inspector is intending to enter a vehicle under paragraph
28
                        26(b) or (c); and
29
                   (b) a person who is a person in control of, or an occupier of, the
30
                        vehicle is present at the vehicle.
31




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[Page Break]

                                                                Entry to vehicles Division 3

                                                                               Section 28

            (2) Before entering the vehicle, the inspector must do, or must make a
 1
                reasonable attempt to do, the following things:
 2
                  (a) produce or display his or her identity card for the person's
 3
                      inspection so that it is clearly visible; and
 4
                  (b) tell the person the purpose of the entry; and
 5
                  (c) seek the consent of the person to the entry; and
 6
                  (d) tell the person that the inspector is permitted under this Act to
 7
                      enter the vehicle without the person's consent.
 8

            (3) If the person in control of the vehicle is not present at the vehicle,
 9
                the inspector must take reasonable steps to advise the person or any
10
                registered operator of the vehicle of the inspector's intention to
11
                enter the vehicle.
12

            (4) Subsection (3) does not require the inspector to take a step that the
13
                inspector reasonably believes may frustrate or otherwise hinder an
14
                investigation under this Act or the purpose of the intended entry.
15


     Subdivision 2--Powers to support entry
16


     28 Power to stop vehicle that may be entered
17

            (1) If a vehicle that an inspector may enter under this Part other than
18
                an aircraft or train, is moving or about to move, the inspector may
19
                signal (a stop signal) the person in control of the vehicle:
20
                  (a) to stop the vehicle; or
21
                  (b) not to move the vehicle.
22

            (2) In this section:
23

                stop a vehicle includes requiring it to remain stationary, and in the
24
                case of an aircraft or a vessel on or adjacent to land, for the time
25
                reasonably necessary to enable a function or power under this or
26
                another Act to be performed or exercised.
27


     29 Failure to comply with stop signal
28

            (1) A person in control of a vehicle to whom a stop signal has been
29
                given must not refuse or fail to comply with the stop signal.
30




                                   National Animal Welfare Bill 2003   No.   , 2003      19


[Page Break]

     Division 3 Entry to vehicles

     Section 30

                  Maximum penalty: 100 penalty units.
 1

              (2) Subsection (1) does not apply if the person has a reasonable
 2
                  excuse.
 3

                  Note:      The defendant bears an evidential burden in relation to the matter in
 4
                             subsection (2). See subsection 13.3(3) of the Criminal Code.
 5

              (3) For the purposes of subsection (2), it is a reasonable excuse for the
 6
                  person refusing or failing to comply with the stop signal if:
 7
                   (a) to immediately comply with the stop signal would have
 8
                        endangered the person or someone else; and
 9
                   (b) the person complied with the stop signal as soon as it was
10
                        practicable to do so.
11


     30 Power to require help to enter from person in control
12

              (1) If an inspector may, under this Part, enter a vehicle, the inspector
13
                  may require (make an entry requirement of) the person in control
14
                  of the vehicle to give the inspector reasonable help to enter the
15
                  vehicle.
16

              (2) When making an entry requirement, the inspector must give the
17
                  person an offence warning.
18


     31 Failure to comply with entry requirement
19

              (1) A person of whom an entry requirement has been made must not
20
                  refuse or fail to comply with the requirement.
21

                  Maximum penalty: 100 penalty units.
22

              (2) Subsection (1) does not apply if the person has a reasonable
23
                  excuse.
24

                  Note:      The defendant bears an evidential burden in relation to the matter in
25
                             subsection (2). See subsection 13.3(3) of the Criminal Code.
26




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[Page Break]

                                                Powers for entry to all places Division 4

                                                                            Section 32
 1


     Division 4--Powers for entry to all places
 2


     32 Application of Division
 3

            (1) This Division applies if, under a provision of this Part other than
 4
                section 19, an inspector may enter, or has entered, a place.
 5

            (2) However, if an inspector under subsection 18(2) enters a place to
 6
                ask the occupier's consent to enter premises, this Division applies
 7
                to the inspector only if the consent is given or the entry is
 8
                otherwise authorised.
 9


     33 General powers
10

                The inspector may do any of the following:
11
                 (a) enter the place using reasonable force in the circumstances;
12
                 (b) search any part of the place;
13
                 (c) open, using reasonable force, a cage, container, pen, yard or
14
                      other structure confining or containing an animal or other
15
                      thing to examine the structure, animal or other thing;
16
                 (d) take reasonable measures to relieve the pain of an animal at
17
                      the place;
18
                 (e) examine, inspect, film, photograph, videotape or otherwise
19
                      record an image of, an animal, document or other thing at the
20
                      place;
21
                  (f) take a sample of or from an animal or other thing at the place
22
                      for analysis or testing;
23
                 (g) copy a document at the place;
24
                 (h) take into the place the equipment, materials or persons the
25
                      inspector reasonably requires for exercising a power under
26
                      this Part;
27
                  (i) brand, mark, tag or otherwise identify an animal at the place
28
                      in accordance with the usual practices for branding, marking,
29
                      tagging or otherwise identifying that species of animal but
30
                      not so as to disfigure or damage the animal so as to adversely
31
                      affect its health or value;
32




                                National Animal Welfare Bill 2003   No.   , 2003      21


[Page Break]

     Division 4 Powers for entry to all places

     Section 34

                     (j) take a necessary step to allow a power under paragraphs (a)
 1
                         to (i) to be exercised.
 2


     34 Power to require reasonable help
 3

              (1) The inspector may require (make a help requirement of) a person
 4
                  at the place to give the inspector reasonable help to exercise a
 5
                  power under this Part, including, for example to produce a
 6
                  document or give information.
 7

              (2) When making a help requirement, the inspector must give the
 8
                  person an offence warning.
 9


     35 Failure to comply with help requirement
10

              (1) A person of whom a help requirement has been made must not
11
                  refuse or fail to comply with the requirement.
12

                   Maximum penalty: 100 penalty units.
13

              (2) Subsection (1) does not apply if the person has a reasonable
14
                  excuse.
15

                   Note:      The defendant bears an evidential burden in relation to the matter in
16
                              subsection (2). See subsection 13.3(3) of the Criminal Code.
17

              (3) It is a reasonable excuse for a person not to comply with a help
18
                  requirement if complying with the help requirement might tend to
19
                  incriminate the person.
20

              (4) However, subsection (3) does not apply if the help requirement is
21
                  to produce a document required to be held or kept by the person
22
                  under:
23
                    (a) this Act; or
24
                    (b) another Act or a law of the Commonwealth or another
25
                        country if the document relates to the transportation of live
26
                        animals.
27




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[Page Break]

                                                   Powers for entry to all places Division 4

                                                                                   Section 36

     36 Power to require person in control of vehicle to take action
 1

            (1) This section applies if a place to which this Division applies is a
 2
                vehicle.
 3

            (2) The inspector may require (make an action requirement of) the
 4
                person in control of the vehicle to do any of the following to allow
 5
                the inspector to exercise a power under this Part:
 6
                  (a) bring the vehicle, or an animal or other thing in it, to a stated
 7
                      reasonable place;
 8
                  (b) remain in control of the vehicle, animal or other thing at the
 9
                      place for a stated reasonable period.
10

            (3) When making an action requirement, the inspector must give the
11
                person an offence warning.
12


     37 Failure to comply with action requirement
13

            (1) A person of whom an action requirement has been made must not
14
                refuse or fail to comply with the requirement.
15

                Maximum penalty: 100 penalty units.
16

            (2) Subsection (1) does not apply if the person has a reasonable
17
                excuse.
18

                Note:     The defendant bears an evidential burden in relation to the matter in
19
                          subsection (2). See subsection 13.3(3) of the Criminal Code.
20


     38 Compliance
21

            (1) Any person in charge of an animal must comply with the
22
                provisions of this Act including, in the case of a prescribed
23
                practice, the regulations and in the case of a licence, the terms of
24
                the licence.
25

            (2) If there is a failure to comply, the animal keeper must be informed
26
                of the failure and of the corrective action to be taken. An inspector
27
                is to determine the period for taking the action and a follow-up
28
                visit is to be made at the end of this period.
29




                                 National Animal Welfare Bill 2003       No.     , 2003           23


[Page Break]

     Division 5 Seizure and forfeiture

     Section 39
 1


     Division 5--Seizure and forfeiture
 2


     Subdivision 1--Powers of seizure
 3


     39 General power to seize evidence
 4

              (1) An inspector who has, under this Part, entered a place may seize an
 5
                  animal or other thing at the place if the inspector:
 6
                    (a) reasonably suspects that it is evidence of an offence against
 7
                        this Act; or
 8
                   (b) reasonably believes that the seizure is necessary to prevent it
 9
                        being:
10
                          (i) destroyed, hidden or lost; or
11
                         (ii) used to commit, continue or repeat, an offence.
12

              (2) An inspector also may seize an animal or other thing at the place:
13
                   (a) if the inspector reasonably believes that it has just been used
14
                       in committing, or is the subject of, an animal welfare offence;
15
                       or
16
                   (b) with the written consent of a person or a person that the
17
                       inspector reasonably believes is a person who is:
18
                         (i) for an animal--the person in charge of the animal;
19
                        (ii) for another thing--the owner or person in possession of
20
                             the thing.
21

              (3) A written consent under subsection (2)(b) given by an owner may
22
                  also include the owner's agreement to transfer ownership of the
23
                  animal or other thing to the Commonwealth or a prescribed entity.
24

              (4) Despite subsections (1) and (2), if an entry to a place is made after
25
                  obtaining the necessary consent of a person, the inspector may
26
                  seize a thing at the place only if the seizure is consistent with the
27
                  purpose of entry as told to the person when asking for the consent.
28

              (5) This section does not limit a power to seize under section 40, 41 or
29
                  42.
30




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[Page Break]

                                                        Seizure and forfeiture Division 5

                                                                            Section 40

     40 Seizure or evidence under warrant
 1

                An inspector who, under this Part, enters a place with a warrant
 2
                may seize the evidence for which the warrant was issued.
 3


     41 Seizure for welfare of animal
 4

            (1) An inspector who has, under this Part, entered a place may seize an
 5
                animal at the place if the inspector reasonably believes that:
 6
                  (a) the animal:
 7
                        (i) is under an imminent risk of death or injury; or
 8
                       (ii) requires veterinary treatment; or
 9
                      (iii) is experiencing undue pain; and
10
                 (b) the interests of the welfare of the animal require its
11
                      immediate seizure.
12

            (2) The inspector may also seize the animal if the person in charge of
13
                the animal has contravened, or is contravening, an animal welfare
14
                direction or a court order about the animal.
15


     42 Seizure of property subject to security
16

            (1) An inspector may seize an animal or other thing under this
17
                Subdivision or exercise powers under Subdivision 2 in relation to
18
                the animal or other thing despite a lien or other security over the
19
                animal or other thing claimed by another person.
20

            (2) However, the seizure does not affect the other person's claim to the
21
                lien or other security against a person other than the inspector or a
22
                person acting for the inspector.
23


     Subdivision 2--Powers to support seizure
24


     43 Direction to person in charge
25

            (1) To enable an animal or other thing to be seized, an inspector may
26
                direct (give a seizure direction to) the person in charge, or owner
27
                or person in possession, of it:
28




                                National Animal Welfare Bill 2003   No.   , 2003      25


[Page Break]

     Division 5 Seizure and forfeiture

     Section 44

                    (a) to take the animal or other thing to a stated reasonable place
 1
                        or places by a stated reasonable time or times; and
 2
                    (b) if necessary, to remain in control of the animal or other thing
 3
                        at the stated place for a reasonable time.
 4

              (2) A seizure direction:
 5
                   (a) must be made by notice in the approved form; or
 6
                   (b) if for any reason it is not practicable to give notice in the
 7
                        approved form--may be made orally and confirmed by
 8
                        notice in the approved form as soon as practicable.
 9


     44 Failure to comply with seizure direction
10

              (1) A person of whom a seizure direction has been made must not
11
                  refuse or fail to comply with the direction.
12

                  Maximum penalty: 100 penalty units.
13

              (2) Subsection (1) does not apply if the person has a reasonable
14
                  excuse.
15

                  Note:      The defendant bears an evidential burden in relation to the matter in
16
                             subsection (2). See subsection 13.3(3) of the Criminal Code.
17


     45 Powers for seized things
18

                  Having seized an animal or other thing, an inspector may do one or
19
                  more of the following:
20
                   (a) move it from the place where it was seized (the place of
21
                       seizure);
22
                   (b) leave it at the place of seizure but take reasonable action to
23
                       restrict access to it;
24
                   (c) for equipment--make it inoperable, without damaging the
25
                       equipment;
26
                   (d) for an animal:
27
                         (i) take it by suitable and appropriate means to a place the
28
                             inspector considers appropriate;
29
                        (ii) give it accommodation, food, rest, water or other living
30
                             conditions;
31




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[Page Break]

                                                             Seizure and forfeiture Division 5

                                                                                     Section 46

                        (iii) if the inspector reasonably believes that, in the interests
 1
                              of its welfare, the animal requires veterinary
 2
                              treatment--arrange for the treatment;
 3
                        (iv) if an animal welfare direction has been given in relation
 4
                              to the animal and the direction has not been complied
 5
                              with--take other action to ensure the direction is
 6
                              complied with.
 7


     46 Offence to tamper with seized thing
 8

            (1) This section applies in relation to an animal or other thing seized
 9
                under this Part.
10

            (2) A person, other than an inspector or a person authorised by an
11
                inspector for the purpose, must not do, or must not attempt to do,
12
                any of the following:
13
                  (a) tamper with the animal or other thing;
14
                  (b) enter, or be at, the place where the animal or other thing is
15
                      being kept;
16
                  (c) move the animal or other thing from the place where it is
17
                      being kept;
18
                  (d) have the animal or other thing in the person's possession.
19

                Maximum penalty: 100 penalty units.
20

            (3) Subsection (2) does not apply if the person has a reasonable
21
                excuse.
22

                Note:       The defendant bears an evidential burden in relation to the matter in
23
                            subsection (3). See subsection 13.3(3) of the Criminal Code.
24


     Subdivision 3--Safeguards for seized animal or property
25


     47 Information notice and receipt for seized animal or property
26

            (1) This section applies if, under this Part or under a warrant, an
27
                inspector seizes an animal or another thing, unless:
28
                  (a) the inspector reasonably believes that there is no-one
29
                      apparently in possession of the thing or the thing has been
30
                      abandoned; or
31




                                   National Animal Welfare Bill 2003       No.     , 2003           27


[Page Break]

     Division 5 Seizure and forfeiture

     Section 48

                    (b) the seized thing is not an animal and it would be
 1
                        impracticable or unreasonable to expect the inspector to
 2
                        account for the thing given its condition, nature and value.
 3

              (2) The inspector must, as soon as practicable after the seizure, give
 4
                  the person from whom the animal or thing was seized:
 5
                    (a) a receipt for the animal or thing that generally describes the
 6
                        animal or thing and its condition; and
 7
                    (b) an information notice about the decision to make the seizure.
 8

              (3) However, if:
 9
                    (a) for an animal--a person in charge of the animal;
10
                    (b) for another thing--the owner or person in possession of the
11
                         thing;
12
                  is not present at the place at which the seizure occurs, the receipt
13
                  and information notice may be given by leaving them at the place
14
                  in a conspicuous position and in a reasonably secure way.
15

              (4) The information notice and receipt may:
16
                   (a) be given in the same document; and
17
                   (b) relate to more than one seized thing.
18

              (5) The inspector may delay in giving the receipt and information
19
                  notice if the inspector reasonably suspects that doing so may
20
                  frustrate or otherwise hinder an investigation under this Act.
21

              (6) However, the delay may be only for so long as the inspector
22
                  continues to have that reasonable suspicion and remains in the
23
                  vicinity of the place to keep it under observation.
24


     48 Access to seized animal or property
25

              (1) This section applies to an inspector who has, under this Part or
26
                  under a warrant, seized an animal or thing until the animal or thing
27
                  is forfeited or returned under this Part.
28

              (2) The inspector must allow any owner of the animal or thing:
29
                   (a) to inspect the animal or thing at any reasonable time and
30
                       from time to time; and
31




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                                                         Seizure and forfeiture Division 5

                                                                             Section 49

                  (b) if it is a document--to copy it.
 1

            (3) Subsection (2) does not apply if it is impracticable or would be
 2
                unreasonable to allow the inspection or copying.
 3

            (4) The inspection or copying must be provided free of charge.
 4


     49 Return of seized animal
 5

            (1) This section applies if an inspector has, under this Part or under a
 6
                warrant, seized an animal.
 7

            (2) The inspector must, within 28 days after the seizure, return the
 8
                animal to its owner unless:
 9
                  (a) the owner has, under this Part, agreed in writing to transfer
10
                      ownership of it to the Commonwealth or a prescribed entity;
11
                      or
12
                 (b) the animal has been forfeited to the Commonwealth under
13
                      this Part; or
14
                  (c) an application has been made for a disposal or prohibition
15
                      order in relation to the animal; or
16
                 (d) continued retention of the animal is needed as evidence for a
17
                      proceeding or proposed proceeding for an offence involving
18
                      the animal; or
19
                  (e) an animal welfare direction given in relation to the animal
20
                      has not been complied with and the inspector is taking, or
21
                      proposes to take, action to ensure the direction is complied
22
                      with; or
23
                  (f) the inspector reasonably believes the animal's condition may
24
                      require its destruction under section 61.
25

            (3) If subsection (2)(c) applies, the inspector must promptly return the
26
                animal to its owner if the application for the disposal or prohibition
27
                order:
28
                  (a) is withdrawn; or
29
                  (b) has been finally decided or otherwise ended and a disposal or
30
                      prohibition order has not been made in relation to the animal.
31




                                National Animal Welfare Bill 2003    No.   , 2003      29


[Page Break]

     Division 5 Seizure and forfeiture

     Section 49

              (4) If subsection (2)(d) applies, the inspector must promptly return the
 1
                  animal to its owner if its continued retention as evidence is no
 2
                  longer required.
 3

              (5) If subsection (2)(e) applies, the inspector must promptly return the
 4
                  animal to its owner if:
 5
                    (a) the animal welfare direction is complied with; or
 6
                    (b) the inspector ceases to take, or propose to take, action to
 7
                        ensure the direction is complied with.
 8

              (6) If subsection (2)(f) applies, the inspector must promptly return the
 9
                  animal to its owner if the inspector no longer believes the animal's
10
                  condition may require its destruction under section 61.
11

              (7) Where an inspector returns a seized animal in accordance with this
12
                  section, the inspector must ensure that:
13
                    (a) suitable and appropriate transport and care is arranged to
14
                        effect the return; and
15
                    (b) the return to the owner is effected at a time that within reason
16
                        is suitable to the owner.
17

              (8) Nothing in this section affects a lien or other security over the
18
                  animal.
19


     50 Return of other seized property
20

              (1) This section applies if:
21
                   (a) an inspector has, under this Part or under a warrant, seized a
22
                        thing other than an animal; and
23
                   (b) the thing has some intrinsic value; and
24
                   (c) the owner of the thing has not, under this Part, agreed in
25
                        writing to transfer ownership of it to the Commonwealth or a
26
                        prescribed entity; and
27
                   (d) the thing has not been forfeited under this Part; and
28
                   (e) a disposal order has not been made in relation to the thing.
29

              (2) If no application has been made for a disposal order in relation to
30
                  the thing, the inspector must return the thing to its owner:
31
                    (a) generally--within the end of 6 months after the seizure; or
32




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[Page Break]

                                                         Seizure and forfeiture Division 5

                                                                             Section 51

                  (b) if a proceeding for an offence involving the thing is started
 1
                      within the 6 months--at the end of the proceeding and any
 2
                      appeal in relation to the proceeding.
 3

            (3) Despite subsection (2), the inspector must promptly return a thing
 4
                seized as evidence to its owner if the inspector is satisfied that:
 5
                  (a) its continued retention as evidence is no longer required; or
 6
                  (b) its continued retention is not necessary to prevent the thing
 7
                      being used to continue or repeat the offence; or
 8
                  (c) it is lawful for the person to possess the thing.
 9

            (4) If an application has been made for a disposal order in relation to
10
                the thing, the inspector must promptly return the thing to its owner
11
                if the application:
12
                  (a) is withdrawn; or
13
                  (b) has been finally decided or otherwise ended and a disposal
14
                       order has not been made in relation to the thing.
15

            (5) Nothing in this section affects a lien or other security over the
16
                thing.
17


     Subdivision 4--Forfeiture
18


     51 Power to forfeit
19

            (1) This section applies if an animal or other thing has been seized
20
                under this Act.
21

            (2) The Chairperson of the Authority may decide to forfeit the animal
22
                or thing to the Commonwealth if an inspector:
23
                  (a) after making reasonable efforts, cannot return it to its owner;
24
                      or
25
                 (b) after making reasonable inquiries, cannot find its owner or,
26
                      for an animal, any other person in charge of it; or
27
                  (c) reasonably believes it is necessary to keep the animal or other
28
                      thing to prevent it from being used in committing, or
29
                      becoming the subject of, an animal welfare offence.
30

            (3) For the purposes of subsection (2):
31




                                 National Animal Welfare Bill 2003   No.   , 2003      31


[Page Break]

     Division 5 Seizure and forfeiture

     Section 52

                    (a) the period over which the efforts or inquiries are made must
 1
                        be at least 4 days; and
 2
                    (b) the inspector is not required to:
 3
                          (i) make efforts if it would be unreasonable to make efforts
 4
                              to return the animal or other thing to its owner; or
 5
                         (ii) make inquiries if it would be unreasonable to make
 6
                              inquiries to find the owner.
 7

              (4) Regard must be had to an animal or other thing's condition, nature
 8
                  and value in deciding:
 9
                    (a) whether it is reasonable to make inquiries or efforts; and
10
                   (b) if inquiries or efforts are made--what inquiries or efforts,
11
                        including the period over which they are made, are
12
                        reasonable.
13


     52 Information notice about forfeiture
14

              (1) If, under subsection 51(2), an animal or other thing is forfeited, the
15
                  Chairperson of the Authority must promptly give the person who
16
                  owned it immediately before the forfeiture (the former owner) an
17
                  information notice about the decision.
18

              (2) However, subsection (1) does not apply if:
19
                   (a) the decision was made under paragraph 51(2)(a) or (b); and
20
                   (b) the place where the animal or other thing was seized is:
21
                         (i) a public place; or
22
                        (ii) a place at which the notice is unlikely to be read by the
23
                             former owner.
24

              (3) The information notice must state that the former owner may apply
25
                  for a stay of the decision if he or she appeals under section 55
26
                  against the decision.
27

              (4) If subsection (2) does not apply and the decision was made under
28
                  paragraph 51(2)(a) or (b), the information notice may be given by
29
                  leaving it at the place where the animal or other thing was seized,
30
                  in a conspicuous position and in a reasonably secure way.
31




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                                                        Seizure and forfeiture Division 5

                                                                            Section 53

     Subdivision 5--Dealing with animal or property forfeited or
 1
               transferred to Commonwealth or prescribed entity
 2


     53 When transfer takes effect
 3

            (1) An animal or other thing becomes the Commonwealth's property
 4
                if, under subsection 51(2), it is forfeited to the Commonwealth.
 5

            (2) If the owner of an animal or other thing agrees in writing to
 6
                transfer ownership of the animal or thing to the Commonwealth or
 7
                a prescribed entity, it becomes the property of the Commonwealth
 8
                or entity when the Commonwealth or entity agrees in writing to the
 9
                transfer.
10


     54 How animal or property may be dealt with
11

            (1) This section applies if, under section 53, an animal or other thing
12
                becomes the property of the Commonwealth or a prescribed entity.
13

            (2) The Commonwealth or a prescribed entity may deal with the
14
                animal or other thing as it considers appropriate, including, for
15
                example, by destroying it or giving it away.
16

            (3) However, the Commonwealth or a prescribed entity must not deal
17
                with the animal or other thing in a way that could prejudice the
18
                outcome of an appeal under this Act of which it is aware.
19

            (4) Subsection (3) does not limit an inspector's power under section 61
20
                to destroy the animal.
21

            (5) If the Commonwealth or a prescribed entity sells the animal or
22
                other thing, it may return the proceeds of the sale to the former
23
                owner of the animal or other thing, after deducting the costs of the
24
                sale and allowing for any costs it has previously recovered from
25
                the former owner.
26

            (6) The Chairperson of the Authority may deal with the animal or
27
                other thing for the Commonwealth.
28




                                National Animal Welfare Bill 2003   No.   , 2003      33


[Page Break]

     Division 5 Seizure and forfeiture

     Section 55

     55 Appeal against forfeiture
 1

              (1) If an animal or thing is forfeited in accordance with this
 2
                  Subdivision, the owner of the animal or other thing may, whether
 3
                  or not an information notice has been given to the owner, appeal to
 4
                  the Chairperson of the Authority for the return of the animal or
 5
                  other thing.
 6

              (2) An appeal:
 7
                   (a) must be in writing in an approved form; and
 8
                   (b) must specify the grounds on which the appeal is made.
 9


     56 Where a person makes an appeal in accordance with section 55
10

                  The Chairperson must consider an appeal under section 55
11
                  expeditiously and either:
12
                    (a) overturn the forfeiture; or
13
                    (b) confirm the forfeiture;
14
                  and must cause the person to be notified in writing of the decision
15
                  together with a statement of reasons for the decision.
16




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[Page Break]

                                                   Animal welfare directions Division 6

                                                                           Section 57
 1


     Division 6--Animal welfare directions
 2


     57 Application of Division
 3

            (1) This Division applies if an inspector reasonably believes:
 4
                 (a) a person has committed, is committing, or is about to
 5
                     commit, an animal welfare offence; or
 6
                 (b) an animal:
 7
                        (i) is not being cared for properly; or
 8
                       (ii) is experiencing undue pain; or
 9
                     (iii) requires veterinary treatment; or
10
                      (iv) should not be used for work.
11

            (2) This Division also applies if an animal has been seized under
12
                Subdivision 1 of Division 5.
13


     58 Power to give animal welfare direction
14

            (1) The inspector may give a written direction (an animal welfare
15
                direction) requiring stated action about the animal or its
16
                environment.
17

            (2) The animal welfare direction may be given to:
18
                 (a) a person in charge of the animal; or
19
                 (b) a person whom the inspector reasonably believes is in charge
20
                     of the animal; or
21
                 (c) if the animal has been seized under Subdivision 1 of
22
                     Division 5:
23
                       (i) a person who, immediately before the seizure, was a
24
                           person in charge of the animal; or
25
                      (ii) a person whom the inspector reasonably believes was,
26
                           immediately before the seizure, a person in charge of
27
                           the animal.
28

            (3) Without limiting subsection (1), the animal welfare direction may
29
                require a person to:
30
                  (a) care for, or treat, the animal in a stated way;
31




                                National Animal Welfare Bill 2003   No.   , 2003    35


[Page Break]

     Division 6 Animal welfare directions

     Section 59

                    (b) provide the animal with stated accommodation, food, rest,
 1
                        water or other living conditions;
 2
                    (c) consult a veterinary surgeon about the animal's condition
 3
                        before a stated time;
 4
                    (d) move the animal from the place where it is situated when the
 5
                        direction is given to another stated place for a purpose
 6
                        mentioned in paragraph (a), (b) or (c);
 7
                    (e) not to move the animal from the place where it is situated
 8
                        when the direction is given.
 9

              (4) However, an animal welfare direction may be given only if the
10
                  inspector considers it to be necessary and reasonable in the
11
                  interests of the animal's welfare.
12

              (5) The animal welfare direction may state how the person given the
13
                  direction may show that the stated action has been taken.
14


     59 Requirements for giving animal welfare direction
15

              (1) An animal welfare direction must:
16
                   (a) be in the approved form; and
17
                   (b) describe:
18
                         (i) the animal in a way that reasonably allows the person
19
                             given the direction to identify it; or
20
                        (ii) if the direction is given because the inspector reasonably
21
                             believes a person has committed, is committing or is
22
                             about to commit, an animal welfare offence--the type
23
                             of animal to which the offence relates; and
24
                   (c) state:
25
                         (i) each requirement; and
26
                        (ii) a time for the person to comply with each requirement;
27
                             and
28
                   (d) include an information notice about the decision to give the
29
                       direction.
30

              (2) Despite paragraph (1)(a), an animal welfare direction may be given
31
                  orally if:
32




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[Page Break]

                                                      Animal welfare directions Division 6

                                                                                   Section 60

                 (a) the inspector considers it to be in the interests of the animal's
 1
                     welfare to give the direction immediately; and
 2
                 (b) for any reason it is not practicable to immediately give the
 3
                     direction in the approved form; and
 4
                 (c) the inspector gives the person an offence warning.
 5

            (3) If the direction is given orally, the inspector must confirm the
 6
                direction by also giving it in the approved form as soon as
 7
                practicable after giving it orally.
 8

            (4) An animal welfare direction may state that an inspector proposes,
 9
                at a stated time or at stated intervals, to enter either of the
10
                following places where an animal the subject of the direction is
11
                kept, to check compliance with the direction:
12
                  (a) a vehicle of which the person is the person in control;
13
                  (b) another place of which the person is the occupier.
14


     60 Failure to comply with animal welfare direction
15

            (1) A person to whom an animal welfare direction has been given must
16
                not refuse or fail to comply with the direction.
17

                Maximum penalty: 100 penalty units or imprisonment for 1 year.
18

            (2) Subsection (1) does not apply if the person has a reasonable
19
                excuse.
20

                Note:     The defendant bears an evidential burden in relation to the matter in
21
                          subsection (2). See subsection 13.3(3) of the Criminal Code.
22




                                 National Animal Welfare Bill 2003       No.     , 2003           37


[Page Break]

     Division 7 Inspector's power to destroy animals

     Section 61
 1


     Division 7--Inspector's power to destroy animals
 2


     61 Power of destruction
 3

                  An inspector may destroy an animal, or cause it to be destroyed, if:
 4
                   (a) an inspector has seized the animal under this Part or the
 5
                       person in charge of the animal has given written consent to
 6
                       the destruction; and
 7
                   (b) the inspector reasonably believes that the animal is in pain to
 8
                       the extent that it is cruel to keep it alive.
 9


     62 Other duties
10

              (1) An inspector must keep an inventory of all animals for which he or
11
                  she has responsibility.
12

              (2) Inspectors must keep prescribed records of their activities.
13

              (3) Without affecting subsection (2), records must contain a brief
14
                  account of each case, observations, corrective actions and other
15
                  matters that may be important for the welfare of animals.
16

              (4) A report in relation to each animal for which an inspector has
17
                  responsibility must be submitted in the prescribed form by the
18
                  inspector to the Authority.
19




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[Page Break]

                                                       Breach of duty of care Division 1

                                                                           Section 63
 1


     Part 4--Animal welfare offences
 2


     Division 1--Breach of duty of care
 3


     63 Breach of duty of care prohibited
 4

            (1) A person in charge of an animal owes a duty of care to it.
 5

            (2) The person must not breach the duty of care.
 6

                Maximum penalty: 300 penalty units or imprisonment for 1 year.
 7

            (3) For the purposes of subsection (2), a person breaches the duty only
 8
                if the person does not take reasonable steps to ensure that:
 9
                  (a) the animal's needs for:
10
                         (i) food and water;
11
                        (ii) accommodation or living conditions;
12
                       (iii) treatment for disease or injury;
13
                       are provided for; and
14
                  (b) any handling of the animal by the person, or caused by the
15
                       person, is appropriate.
16

            (4) In deciding what is appropriate for the purposes of
17
                paragraph (3)(b), regard must be had to:
18
                  (a) the species, environment and circumstances of the animal;
19
                      and
20
                  (b) the steps a reasonable person in the circumstances of the
21
                      person would reasonably be expected to have taken.
22




                                National Animal Welfare Bill 2003   No.   , 2003     39


[Page Break]

     Division 2 Cruelty offences

     Section 64
 1


     Division 2--Cruelty offences
 2


     64 Animal cruelty prohibited
 3

             (1) A person must not be cruel to an animal.
 4

                  Maximum penalty: 1000 penalty units or imprisonment for 2
 5
                         years.
 6

             (2) Without limiting subsection (1), a person is taken to be cruel to an
 7
                 animal if the person does any of the following to the animal:
 8
                   (a) causes it pain that, in the circumstances, is unjustifiable,
 9
                        unnecessary or unreasonable;
10
                  (b) beats it so as to cause the animal pain;
11
                   (c) abuses, terrifies, torments or worries it;
12
                  (d) overdrives, overrides or overworks it;
13
                   (e) uses on the animal an electrical device;
14
                   (f) confines or transports it:
15
                          (i) without appropriate preparation, including, for example,
16
                              appropriate food, rest, shelter, exercise or water; or
17
                         (ii) when it is unfit for the confinement or transport; or
18
                        (iii) in a manner that causes injury, pain or undue stress to
19
                              the animal; or
20
                        (iv) in a way that is inappropriate for the animal's welfare;
21
                              or
22
                         (v) in an unsuitable container or vehicle; or
23
                        (vi) with lack of protection from the elements; or
24
                       (vii) in conditions susceptible to infestation of food by
25
                              rodents or insects;
26
                  (g) kills it in a way that:
27
                          (i) is inhumane; or
28
                         (ii) causes it not to die quickly; or
29
                        (iii) causes it to die in unreasonable pain;
30
                  (h) unjustifiably, unnecessarily or unreasonably:
31
                          (i) injures or wounds it; or
32




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[Page Break]

                                                               Cruelty offences Division 2

                                                                              Section 65

                          (ii) overcrowds or overloads it; or
 1
                         (iii) overbreeds female dogs during the first estrus cycle:
 2
                                   (A) when the female dogs are not fully mature; or
 3
                                   (B) without sufficient rest between litters;
 4
                   (i)   inbreeds dogs;
 5
                   (j)   fails to provide proper veterinary care;
 6
                  (k)    fails to socialise dogs with humans;
 7
                   (l)   kills unwanted animals.
 8

            (3) For the purposes of this section, it is presumed that any breeder
 9
                with more than 25 dogs is in violation of this section, unless the
10
                breeder is able to demonstrate the contrary to the satisfaction of the
11
                Chairperson of the Authority.
12


     65 Alleviation of pain
13

            (1) A person who injures an animal (not being an animal of which that
14
                person is in charge) must not, without reasonable excuse, fail to
15
                take reasonable steps (including, where appropriate, seeking
16
                veterinary treatment) to alleviate any pain suffered by the animal.
17

                Maximum penalty: 50 penalty units.
18

            (2) A person in charge of an animal must not, without reasonable
19
                excuse, fail to take adequate precautions to prevent the escape of
20
                the animal from custody or control.
21

                Maximum penalty: 20 penalty units.
22




                                   National Animal Welfare Bill 2003   No.   , 2003    41


[Page Break]

     Division 3 Prohibited conduct

     Section 66
 1


     Division 3--Prohibited conduct
 2


     66 Unreasonable abandonment
 3

                  A person in charge of an animal must not abandon an animal
 4
                  unless the person has a reasonable excuse or the abandonment is
 5
                  authorised by law.
 6

                  Maximum penalty: 300 penalty units or imprisonment for 1 year.
 7


     67 Prohibited release
 8


                  Intentional release
 9

             (1) A person in charge of an animal must not intentionally release an
10
                 animal unless the person has a reasonable excuse or the release is
11
                 authorised by law.
12

                  Maximum penalty: 300 penalty units or imprisonment for 1 year.
13


                  Unintentional release
14

             (2) A person in charge of an animal must not unintentionally release
15
                 an animal unless the person has a reasonable excuse or the release
16
                 is authorised by law.
17

                  Maximum penalty: 50 penalty units.
18


     68 Causing captive animal to be injured or killed by dog
19

                  A person must not knowingly cause an animal in captivity to be
20
                  injured or killed by a dog.
21

                  Maximum penalty: 300 penalty units or imprisonment for 1 year.
22


     69 Releasing animal for injury or killing by dog
23

                  A person must not release an animal if the release is:
24
                   (a) to allow the animal to be injured or killed by a dog; or
25




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[Page Break]

                                                              Prohibited conduct Division 3

                                                                                   Section 70

                  (b) in circumstances in which the animal is likely to be injured or
 1
                      killed by a dog unless the person takes reasonable steps to
 2
                      prevent the injury or killing.
 3

                Maximum penalty: 300 penalty units or imprisonment for 1 year.
 4


     70 Keeping or using as kill or lure for blooding or coursing
 5

                A person must not keep or use an animal as a kill or lure:
 6
                 (a) for blooding a dog; or
 7
                 (b) to race or train a coursing dog.
 8

                Maximum penalty: 300 penalty units or imprisonment for 1 year.
 9


     71 Possession of prohibited trap or spur unlawful
10

            (1) A person must not possess any of the following (a prohibited trap
11
                or spur):
12
                  (a) a trap prescribed under a regulation to be a prohibited trap;
13
                 (b) a spur with sharpened or fixed rowels;
14
                  (c) a cockfighting spur cap.
15

                Maximum penalty: 100 penalty units.
16

            (2) Subsection (1) does not apply if the person has a reasonable
17
                excuse.
18

                Note:     The defendant bears an evidential burden in relation to the matter in
19
                          subsection (2). See section 13.3(3) of the Criminal Code.
20

            (3) It is a reasonable excuse for a person to possess a prohibited trap or
21
                spur if:
22
                  (a) it has been rendered inoperable for use as a prohibited trap or
23
                       spur; and
24
                  (b) the possession is for display or is part of a collection.
25

            (4) In this section:
26

                spur includes any device similar to a spur.
27




                                   National Animal Welfare Bill 2003     No.     , 2003           43


[Page Break]

     Division 3 Prohibited conduct

     Section 72

     72 Use of prohibited trap or spur unlawful
 1

                  A person must not use a prohibited trap or spur as a trap or spur.
 2

                  Maximum penalty: 300 penalty units or imprisonment for 1 year.
 3


     73 Baits or harmful substances
 4

             (1) A person, other than a person authorised under the following
 5
                 regime, must not, with the intention of injuring or killing an
 6
                 animal, administer to or feed the animal a substance that the person
 7
                 knows is harmful or poisonous to it unless:
 8
                   (a) a permit is issued; and
 9
                   (b) it has been assessed or is under assessment under the
10
                       Environment Protection and Biodiversity Conservation Act
11
                       1999 by a public environment report or environmental impact
12
                       assessment; and
13
                   (c) there are no impacts caused on threatened species, migratory
14
                       birds, or any matters of national environmental significance;
15
                       and
16
                   (d) baits laced by hand are laid by approved persons.
17

             (2) All baits must be recorded and a register kept of all laid and
18
                 recovered baits.
19

             (3) Every baiting event must be audited to include:
20
                  (a) estimated numbers of target species and deaths;
21
                  (b) estimated numbers of non-target species deaths.
22

                  Maximum penalty: 300 penalty units or imprisonment for 1 year.
23

             (4) A person must not, with the intention of injuring or killing any
24
                 animal, lay a bait or a substance that is harmful or poisonous to any
25
                 animal.
26

                  Maximum penalty: 300 penalty units or imprisonment for 1 year.
27

             (5) In this section:
28

                  lay includes deposit, distribute, leave and throw.
29




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[Page Break]

                                                             Prohibited conduct Division 3

                                                                              Section 74

     74 Unlawfully allowing an animal to injure or kill another animal
 1

                A person in control of an animal (the first animal) must not
 2
                unlawfully allow it to injure or kill another animal (the second
 3
                animal).
 4

                Maximum penalty: 300 penalty units or imprisonment for 1 year.
 5

            (2) The person unlawfully allows the first animal to injure or kill the
 6
                second animal if immediately before the injury or killing happens:
 7
                  (a) the first animal was under the person's immediate
 8
                      supervision; and
 9
                  (b) the person:
10
                        (i) was aware of the second animal's presence; and
11
                       (ii) ought reasonably to have suspected that the second
12
                            animal was immediately vulnerable to the first animal
13
                            and was likely to be injured or killed by it; and
14
                      (iii) did not take reasonable steps to prevent the injury or
15
                            killing.
16


     75 Cropping dogs' ears
17

            (1) A person, other than a veterinary surgeon, must not crop a dog's
18
                ear.
19

                Maximum penalty: 100 penalty units.
20

            (2) A veterinary surgeon must not crop a dog's ear for cosmetic
21
                purposes.
22

                Maximum penalty: 100 penalty units.
23

            (3) In this section:
24

                crop a dog's ear means to remove part of the ear to make the ear
25
                stand erect.
26


     76 Docking dogs' tails
27

            (1) A person, other than a veterinary surgeon, must not dock a dog's
28
                tail.
29




                                   National Animal Welfare Bill 2003   No.   , 2003    45


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     Division 3 Prohibited conduct

     Section 77

                  Maximum penalty: 100 penalty units.
 1

             (2) A veterinary surgeon must not dock a dog's tail unless the
 2
                 veterinary surgeon reasonably considers that the docking is in the
 3
                 interests of the dog's welfare.
 4

                  Maximum penalty: 100 penalty units.
 5


     77 Debarking operations
 6

             (1) A person, other than a veterinary surgeon, must not perform an
 7
                 operation on a dog to prevent it from being able to bark or to
 8
                 reduce the volume of its bark (a debarking operation).
 9

                  Maximum penalty: 300 penalty units or imprisonment for 1 year.
10

             (2) A veterinary surgeon must not perform a debarking operation on a
11
                 dog unless the veterinary surgeon:
12
                  (a) reasonably considers that the operation is in the interests of
13
                      the dog's welfare; or
14
                  (b) has been given a relevant nuisance abatement notice and the
15
                      veterinary surgeon reasonably considers that the operation is
16
                      the only way to comply with the notice without destroying
17
                      the dog; or
18
                  (c) has been given an appropriate notice and the surgeon
19
                      reasonably considers that the operation is the only way to
20
                      stop the dog's barking from being a nuisance without
21
                      destroying the dog.
22

                  Maximum penalty: 300 penalty units or imprisonment for 1 year.
23

             (3) For the purposes of paragraph (2)(c), an appropriate notice means a
24
                 notice signed by each owner of the dog asking the veterinary
25
                 surgeon to perform the operation and stating:
26
                   (a) that, in the opinion of each owner, the dog's barking is a
27
                       nuisance;
28
                   (b) that attempts have been made to prevent the dog's barking
29
                       from being a nuisance;
30
                   (c) for each attempt:
31
                         (i) the nature of the attempt; and
32




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[Page Break]

                                                             Prohibited conduct Division 3

                                                                              Section 78

                       (ii) enough details of the attempt to allow the veterinary
 1
                            surgeon to form a view under paragraph (2)(c);
 2
                  (d) that each attempt has been unsuccessful.
 3

            (4) In this section:
 4

                bark includes cry, howl and yelp.
 5

                nuisance, in relation to barking, means interference with the
 6
                reasonable comfort, peace or privacy of any person.
 7


     78 Removal of cats' claws
 8

            (1) A person, other than a veterinary surgeon, must not remove a cat's
 9
                claw.
10

                Maximum penalty: 300 penalty units or imprisonment for 1 year.
11

            (2) A veterinary surgeon must not remove a cat's claw unless the
12
                veterinary surgeon reasonably considers that the removal is in the
13
                interests of the cat's health or in the interests of native wildlife.
14

                Maximum penalty: 300 penalty units or imprisonment for 1 year.
15


     79 Docking tails of cattle or horses
16

            (1) In this section animal means:
17
                  (a) a head of cattle;
18
                  (b) a horse.
19

            (2) A person, other than a veterinary surgeon, must not dock an
20
                animal's tail.
21

                Maximum penalty: 300 penalty units or imprisonment for 1 year.
22

            (3) A veterinary surgeon must not dock an animal's tail unless the
23
                veterinary surgeon reasonably considers that the docking is in the
24
                interests of the animal's welfare.
25

                Maximum penalty: 300 penalty units or imprisonment for 1 year.
26




                                   National Animal Welfare Bill 2003   No.   , 2003     47


[Page Break]

     Division 3 Prohibited conduct

     Section 80

     80 Use for certain scientific purposes unlawful
 1

                  A person must not, without the Authority's written approval:
 2
                   (a) conduct the test commonly known as the Draize eye or skin
 3
                       irritancy test, or a similar test; or
 4
                   (b) conduct the test commonly known as the classical LD 50 test,
 5
                       or a similar test; or
 6
                   (c) use an animal for a scientific purpose if the use involves
 7
                       testing:
 8
                         (i) a cosmetic; or
 9
                        (ii) a sunscreen product; or
10
                       (iii) an ingredient of a cosmetic or sunscreen product.
11

                  Maximum penalty: 300 penalty units or imprisonment for 1 year.
12




     48      National Animal Welfare Bill 2003   No.   , 2003


[Page Break]

                                                              Prohibited events Division 4

                                                                              Section 81
 1


     Division 4--Prohibited events
 2


     81 Meaning of prohibited event
 3

                A prohibited event means:
 4
                 (a) a bullfight or organised event held for public entertainment in
 5
                      which a person provokes a bull in a way that is likely to
 6
                      cause it to charge;
 7
                 (b) a cockfight or dogfight or other event in which an animal
 8
                      fights, or is encouraged to fight, with another animal;
 9
                 (c) a canned hunt or other event in which an animal is killed in
10
                      an enclosure to obtain a trophy;
11
                 (d) coursing or any other event in which an animal is released
12
                      from captivity to be hunted, injured or killed by another
13
                      animal;
14
                 (e) an event in which an animal is released from captivity to be
15
                      hunted, or shot at by a person;
16
                  (f) an event prescribed under a regulation held for public
17
                      enjoyment or entertainment, with or without charge to
18
                      anyone present, at which anyone participating in the event
19
                      causes an animal pain.
20


     82 Participation in prohibited event
21

            (1) A person must not:
22
                 (a) organise a prohibited event; or
23
                 (b) knowingly:
24
                       (i) permit a prohibited event to be organised; or
25
                      (ii) supply an animal for use in a prohibited event; or
26
                     (iii) supply premises for use for a prohibited event.
27

                Maximum penalty: 300 penalty units or imprisonment for 1 year.
28

            (2) In this section:
29

                organise a prohibited event includes taking part in organising the
30
                event.
31




                                   National Animal Welfare Bill 2003   No.   , 2003    49


[Page Break]

    Division 4 Prohibited events

    Section 83

    83 Presence at prohibited event
1

            (1) A person must not be present at a prohibited event.
2

                 Maximum penalty: 150 penalty units or imprisonment for 1 year.
3

            (2) Subsection (1) does not apply if the person has a reasonable
4
                excuse.
5

                 Note:      The defendant bears an evidential burden in relation to the matter in
6
                            subsection (2). See subsection 13.3(3) of the Criminal Code.
7




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[Page Break]

                                                              Regulated conduct Division 5

                                                                                   Section 84
 1


     Division 5--Regulated conduct
 2


     84 Obligation to exercise closely confined dogs
 3

            (1) A person in charge of a dog that is closely confined for a
 4
                continuous period of 24 hours must ensure the dog is exercised or
 5
                allowed to exercise itself for:
 6
                  (a) the next 2 hours; or
 7
                  (b) the next hour and for another hour in the next 24 hours.
 8

                Maximum penalty: 20 penalty units.
 9

            (2) Subsection (1) does not apply if the person has a reasonable
10
                excuse.
11

                Note:     The defendant bears an evidential burden in relation to the matter in
12
                          subsection (2). See subsection 13.3(3) of the Criminal Code.
13

            (3) In deciding for the purposes of subsection (1) whether a dog is
14
                closely confined, regard must be had to the dog's age, physical
15
                condition and size.
16


     85 Feral animals or pests
17

            (1) This section applies to an offence if the act that constitutes the
18
                offence is:
19
                  (a) an act done by a person to control a feral animal or pest,
20
                      including, for example, by killing it; and
21
                 (b) the act does not involve the use of a prohibited trap or spur.
22

            (2) It is not an offence:
23
                  (a) if the act that otherwise constitutes an offence is done in a
24
                       way that causes the animal as little pain as is reasonable; and
25
                  (b) the act does not damage or cause damage to eco-systems and
26
                       causes no harm or damage to non-target species.
27

            (3) In this section:
28




                                   National Animal Welfare Bill 2003     No.     , 2003           51


[Page Break]

     Division 5 Regulated conduct

     Section 86

                  feral animal means an animal living in a wild state that is a
 1
                  member of a class of animals that usually live in a domestic state.
 2

                  pest means:
 3
                   (a) a non-indigenous animal generally regarded as being a pest;
 4
                   (b) an animal declared under a regulation made under this or
 5
                        another Act to be a pest.
 6

             (4) An act that otherwise constitutes an offence under this Act is not an
 7
                 offence if the Chairperson determines that a feral animal or pest
 8
                 can be eradicated either:
 9
                   (a) completely; or
10
                  (b) from a protected area; or
11
                   (c) from an area deemed significant habitat for other species.
12

             (5) An act that otherwise constitutes an offence under this Act is not an
13
                 offence if the Chairperson determines that eradication measures are
14
                 urgent.
15


     86 Animals used to feed another animal
16

             (1) An act that otherwise constitutes an offence under this Act is not an
17
                 offence if:
18
                   (a) the act that constitutes the offence involves a person using an
19
                       animal (the food animal) as live food for another animal (the
20
                       fed animal); and
21
                  (b) the food animal and the fed animal are both lawfully kept by
22
                       the person; and
23
                   (c) the fed animal will only eat the food animal if it is alive; and
24
                  (d) feeding the food animal to the fed animal is essential for the
25
                       fed animal's survival; and
26
                   (e) the fed animal will only eat native species as lure food and no
27
                       other.
28




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[Page Break]




                                                                            Section 87
 1


     Part 5--Live exports
 2
 3


     87 Limitation on live exports
 4

            (1) A person must not transport a live animal for commercial purposes
 5
                from Australia without a permit issued by the Authority.
 6

            (2) This section has no effect on the export provisions of the
 7
                Environment Protection and Biodiversity Conservation Act 1999.
 8

                Maximum penalty: 100 penalty units.
 9


     88 Export permits
10

            (1) A person must apply to the Authority for a permit to transport live
11
                animals for commercial purposes from Australia.
12

            (2) An application must be made at least 30 days before the proposed
13
                transportation.
14

            (3) The Authority may grant a permit to an applicant only if the
15
                Authority is satisfied that:
16
                 (a) the applicant will comply with the provisions of this section
17
                     and with any code of practice for exporting live animals
18
                     approved by the Minister under the regulations; and
19
                 (b) the applicant will make all facilities to be used in the
20
                     transportation, including waiting areas to be used before and
21
                     after the transportation, available for inspection by an
22
                     inspector; and
23
                 (c) an inspector will be able to inspect the facilities at the port of
24
                     destination and, if the animals are exported for slaughter
25
                     outside Australia, the abattoirs to be used for the slaughter of
26
                     the animals; and
27
                 (d) the applicant will employ, for the purpose of the
28
                     transportation, the number of veterinary surgeons and
29
                     competent stockpersons decided by the Authority; and
30




                                 National Animal Welfare Bill 2003   No.   , 2003    53


[Page Break]




     Section 89

                    (e) the applicant will allow an inspector to be present at the
 1
                        loading and unloading of the animals; and
 2
                    (f) the applicant will, if the Authority directs, allow an inspector
 3
                        to accompany the transportation of the animals.
 4

             (4) The Authority must not issue a permit to an applicant unless the
 5
                 Authority is satisfied that the laws and codes of practice relating to
 6
                 animal welfare that operate in the country to which the animals are
 7
                 to be exported provide comparable animal welfare standards and
 8
                 protection to the laws of Australia.
 9

             (5) An inspector may detain a vessel until all the requirements for
10
                 transportation are fulfilled.
11

             (6) If an animal keeper, before the transportation to which a permit
12
                 relates, fails to implement the provisions of this Act or to comply
13
                 with any approved code of practice for exporting live animals, the
14
                 Authority may, by written notice given to the holder, withdraw the
15
                 permit.
16

             (7) If, after granting a permit and before the transportation to which it
17
                 relates, the Authority ceases to be satisfied of any of the matters
18
                 specified in subsection (4), the Authority may, by written notice
19
                 given to the holder, withdraw the permit.
20


     89 Duties of veterinary surgeons
21

             (1) A veterinary surgeon who accompanies a transportation of animals
22
                 must keep records as prescribed of the welfare and comfort of the
23
                 animals during the transportation and must submit a report of the
24
                 records to the Authority within 2 weeks of returning to Australia.
25

             (2) A report under subsection (1) must include details of animal deaths
26
                 and the physical condition of the animals during the transportation.
27


     90 Liability
28

             (1) Liability under this Act for the welfare of the animals remains with
29
                 the seller of the animals unless legally passed on to an agent. Such
30




     54      National Animal Welfare Bill 2003   No.   , 2003


[Page Break]




                                                                    Section 90

         a transfer of liability must be in writing and signed by both the
 1
         seller and the agent.
 2

     (2) Liability under this Act remains with the seller or his or her agent
 3
         during the entire act of transportation until the time of delivery.
 4

     (3) A person who is liable under subsection (1) may show that another
 5
         person is liable for a particular act during transportation which
 6
         resulted in the suffering or death of an animal.
 7

     (4) If liability cannot be clearly placed with a particular person, the
 8
         liability must be jointly held by those persons against whom it can
 9
         be reasonably assumed that such a liability may lie.
10




                         National Animal Welfare Bill 2003   No.   , 2003       55


[Page Break]




     Section 91
 1


     Part 6--Imports of animal products
 2
 3


     91 Limitation on import of animal products
 4

              (1) A person must not import animal products without a permit issued
 5
                  by the Authority.
 6

              (2) This section has no effect on the import provisions of the
 7
                  Environment Protection and Biodiversity Conservation Act 1999.
 8

                  Maximum penalty: 100 penalty units.
 9


     92 Import permits
10

              (1) A person must apply to the Authority for a permit to import animal
11
                  products.
12

              (2) An application must be made at least 30 days before the proposed
13
                  importation.
14

             (3) The Authority must not issue a permit to an applicant unless the
15
                 Authority is satisfied that the laws and codes of practice relating to
16
                 animal welfare that operate in the country of origin of the animal
17
                 products to be imported provide comparable animal welfare
18
                 standards and protection to the laws of Australia.
19




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[Page Break]




                                                                            Section 93
 1


     Part 7--Labelling of animal products
 2
 3


     93 Authority to develop draft code of practice
 4

            (1) Not less than 3 years after the commencement of this Act, the
 5
                Authority must prepare and give to the Minister for approval a
 6
                draft code of practice in relation to the labelling of animal
 7
                products.
 8

            (2) It is the intention of the Parliament that the code of practice for the
 9
                labelling of animal products establish a system of labelling that
10
                provides consumers with information about the methods used to
11
                produce animal products where those methods may influence
12
                consumer choice because of their impact on:
13
                  (a) animal welfare; or
14
                  (b) the health, safety, ethical or moral concerns or religious
15
                        beliefs of consumers.
16

            (3) In developing a draft code of practice, the Authority must consult
17
                with the community by inviting and considering written
18
                submissions from members of the public, and by convening public
19
                meetings in each State and internal Territory.
20

            (4) This draft code of practice applies to both imported and domestic
21
                products.
22




                                 National Animal Welfare Bill 2003   No.   , 2003    57


[Page Break]




     Section 94
 1


     Part 8--Animals used for experimental purposes
 2
 3


     94 Definitions
 4

                  In this Part:
 5

                  animal means an invertebrate or vertebrate animal other than a
 6
                  human being.
 7

                  approved research is research approved under this Act.
 8

                  pain refers to both psychological and physical pain and, in an
 9
                  animal, is taken to be the same sensation that an average, well
10
                  human, having suffered the same trauma, would experience.
11

                  research means a critical or scientific inquiry, study, investigation
12
                  or experimental test, including a procedure involving interference
13
                  with an animal's condition of well-being, where pain or distress is
14
                  likely to occur.
15

                  research unit means premises on which animals are used in
16
                  research and includes premises used for collecting, assembling,
17
                  breeding, rearing or maintaining animals in connection with a
18
                  research unit.
19

                  research unit operator means the person responsible for a research
20
                  unit.
21

                  research worker means a person actively involved in research.
22

                  supply unit means premises other than a research unit that are used
23
                  for the maintaining, breeding and rearing of animals and the
24
                  collecting and assembling of animals pursuant to a contract
25
                  between the operator of the supply unit and the operator of a
26
                  research unit.
27

                  supply unit operator means the person responsible for a supply
28
                  unit.
29




     58      National Animal Welfare Bill 2003   No.   , 2003


[Page Break]




                                                                           Section 95

     95 Offence to operate research unit or supply unit without a licence
 1

           A person must not operate a research unit or a supply unit without a
 2
           licence under this Part.
 3

           Maximum penalty:          100 penalty units.
 4


     96 Offence to conduct research with animals other than in
 5
               accordance with NHMRC code of practice
 6

            (1) A person must not conduct research with animals other than in
 7
                accordance with a code of practice issued by the National Health
 8
                and Medical Research Council.
 9

                Maximum penalty: 100 penalty units.
10

            (2) For the purposes of this section, a code of practice issued by the
11
                National Health and Medical Research Council includes the
12
                Australian Code of Practice for the Care and Use of Animals for
13
                Scientific Purposes.
14


     97 Matters of responsibility
15

            (1) The Authority is responsible for the following matters in relation to
16
                the experimental use of animals:
17
                  (a) issuing licences for approved research to a research worker;
18
                  (b) issuing licences for the operation of a supply unit;
19
                  (c) issuing licences for the operation of a research unit;
20
                  (d) giving final approval and issuing licences to all research
21
                       projects funded by a Commonwealth Department or program;
22
                  (e) giving final approval and issuing licences to all research
23
                       projects funded by a corporation of the kind mentioned in
24
                       section 5 of this Act or an international corporation;
25
                   (f) the preparation of an annual report to the Minister which
26
                       includes:
27
                         (i) the number of animals bred within each research unit
28
                             and the number purchased or obtained from licensed
29
                             supply unit operators in each year, broken down into the
30




                                National Animal Welfare Bill 2003   No.   , 2003     59


[Page Break]




     Section 97

                                different species bred or brought in, and the names and
 1
                                addresses of the licensed supply unit operators; and
 2
                           (ii) the number of animals made available for research each
 3
                                year, and the number of animals used by species; and
 4
                          (iii) the number of animals utilised for breeding colony
 5
                                maintenance; and
 6
                          (iv) the number of animals surplus to requirements which
 7
                                were culled, and by what method; and
 8
                           (v) the number of deaths from disease or from unexplained
 9
                                causes; and
10
                          (vi) the number of experiments and/or tests on live whole
11
                                animals during the preceding twelve months; and
12
                         (vii) the number of experiments or tests on live whole
13
                                animals in which anaesthesia was administered; and
14
                        (viii) the number of animals used per category of experiment
15
                                or test (for example, cancer research, diagnostic
16
                                procedures, medical and veterinary, standardisation of
17
                                drugs, sera and vaccines, safety testing of household
18
                                products, safety testing of cosmetics, testing of
19
                                weapons, riot control and defence devices, safety testing
20
                                of agricultural products, safety testing of industrial
21
                                chemicals, toxicity testing of food additives and
22
                                behavioural research);
23
                    (g) advising inspectors on any matter relating to this Part;
24
                    (h) assessing recommendations from inspectors or research unit
25
                          operators for revocation of licences, and the revocation of
26
                          such licences, temporarily or otherwise;
27
                     (i) reporting and making recommendations regarding any
28
                          extension of the use of animals by commercial interests,
29
                          recognising that strict controls are necessary where the
30
                          overall purpose of experiments is the pursuit of commercial
31
                          enterprise;
32
                     (j) giving the Minister continuing help and advice;
33
                    (k) ensuring that the requirements of scientists are assessed by a
34
                          competent authority;
35
                     (l) ensuring that the public is aware that proposals for cruel
36
                          experiments will be scrutinised;
37




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[Page Break]




                                                                                  Section 98

                (m) providing a panel of persons with expertise in animal welfare
 1
                     and laboratory animal science to advise licensees;
 2
                 (n) actively encouraging, through grants and incentive schemes,
 3
                     research into alternatives to animal experimentation.
 4


     98 Data bank
 5

           (1) The Authority must establish a data bank of all experiments using
 6
               animals, carried out in both Australia and overseas.
 7

           (2) The Authority must establish a data bank of alternatives to
 8
               experiments using animals that are carried out both in Australia
 9
               and overseas.
10


     99 Licences
11

           (1) A person may apply to the Authority, in a form approved by the
12
               Authority, for a licence:
13
                (a) to operate a research unit; or
14
                (b) to operate a supply unit; or
15
                (c) to conduct a research project.
16

           (2) The Authority must not grant a licence to a person unless the
17
               person undertakes in writing to comply with the Australian Code of
18
               Practice for the Care and Use of Animals for Scientific Purposes
19
               issued by the National Health and Medical Research Council.
20

               Note:     It is an offence under section 96 to conduct experiments other than in
21
                         accordance with a code of practice.
22

           (3) The Authority must not grant a licence to operate a research unit
23
               unless it is satisfied that the applicant will provide all pens, cages,
24
               compounds, tools, implements, buildings and dietary materials
25
               necessary to properly care for and handle animals in the research
26
               unit in compliance with the cruelty provisions of this Act.
27

           (4) The Authority must not grant a licence to operate a supply unit
28
               unless it is satisfied that the applicant:
29
                (a) has proven experience in the proper care and handling of
30
                     animals; and
31




                                National Animal Welfare Bill 2003       No.     , 2003       61


[Page Break]




     Section 100

                    (b) possesses all pens, cages, compounds, vehicles, tools,
 1
                        implements, buildings and dietary materials necessary to
 2
                        properly care for and handle animals on his or her premises
 3
                        as specified in the regulations; and
 4
                    (c) has a veterinary surgeon readily available to provide care and
 5
                        regular inspections of the breeding and maintenance
 6
                        premises.
 7


     100 Public notice of licences
 8

             (1) The Authority must ensure that notices of an application for a
 9
                 licence are published in a newspaper circulating in the locality of a
10
                 research unit and in a different newspaper circulating nationally.
11

             (2) The notices must state the time and place at which the Authority
12
                 will meet to consider whether to grant the licence.
13


     101 Conditions of licences
14

                  A licence under this Part is subject to such conditions as the
15
                  Authority determines and specifies in the licence.
16


     102 Objections to licences
17

                  Any person is entitled to appear before the Authority to object to
18
                  the proposed grant of a licence.
19


     103 Suspension or revocation of licence
20

             (1) The Authority may suspend or revoke a licence to operate a
21
                 research unit or a supply unit if the Authority is satisfied on the
22
                 inspection and recommendation of an inspector that:
23
                   (a) the operator has failed to comply with a condition of the
24
                       licence or this Act; or
25
                   (b) the operator has not properly maintained any of the facilities,
26
                       equipment or materials referred to in the regulations; or
27
                   (c) the operator or any person employed by, or associated with,
28
                       the operator, has failed to observe or carry out the provisions
29




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[Page Break]




                                                                           Section 104

                      of this Act or some other law relating to cruelty,
 1
                      maltreatment or neglect of animals.
 2

            (2) The Authority may suspend or revoke another licence under this
 3
                Part, if the operator has failed to comply with a condition of a
 4
                licence.
 5


     104 Acquisition of animals for research
 6

                The research unit operator must not purchase or otherwise acquire
 7
                an animal from any person for use in the research unit other than:
 8
                  (a) another licensed research unit operator; or
 9
                 (b) a licensed supply unit operator.
10

                Maximum penalty: 50 penalty units.
11


     105 Revoked licences
12

            (1) If the Authority revokes a licence to operate a research unit, the
13
                Authority must not grant another licence to the operator before the
14
                end of one year after the revocation.
15

            (2) In this section, operator includes both the organisation and the
16
                responsible individuals determined by the Authority.
17


     106 Management of pain
18

            (1) Every animal used in a research unit in any experiment that is
19
                likely to cause pain to the animal must be anaesthetised.
20

            (2) The operator of a research unit must provide analgesics adequate to
21
                prevent an animal suffering pain during the period of its recovery
22
                from any procedure used in an experiment.
23


     107 Notice of revocation, refusal or suspension of licence
24

                If the Authority refuses to grant, or proposes to suspend or revoke,
25
                a licence it must give notice to the applicant or licensee, together
26
                with written reasons for its refusal or proposed suspension or
27
                revocation.
28




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[Page Break]




     Section 108

     108 Annual report of research unit operator
 1

                  A licensed research unit operator must submit an annual report to
 2
                  the Authority showing for each experiment:
 3
                    (a) the purpose of the experiment; and
 4
                    (b) the need (that is, does it duplicate other experiments and do
 5
                         the purposes justify it); and
 6
                    (c) commercial interests involved in the experiment; and
 7
                    (d) the number of animals bred within the unit and the number
 8
                         purchased or obtained from licensed supply unit operators in
 9
                         each year, broken down into the different species bred or
10
                         brought in and the names and addresses of the licensed
11
                         supply unit operators; and
12
                    (e) the number of animals made available for research each year,
13
                         and the number of animals used by species (for example,
14
                         horses, dogs, cats, rodents, etc.); and
15
                     (f) the number of animals utilised for breeding colony
16
                         maintenance; and
17
                    (g) the number of animals surplus to requirements which were
18
                         culled and by what method; and
19
                    (h) the number of deaths from disease or from unexplained
20
                         causes; and
21
                     (i) the number of experiments or tests on live whole animals
22
                         during the preceding 12 months; and
23
                     (j) the number of experiments or tests on live whole animals in
24
                         which anaesthesia was administered; and
25
                    (k) the number of animals used per category of experiment or
26
                         test (for example, cancer research, diagnostic procedures,
27
                         medical and veterinary, standardisation of drugs, sera and
28
                         vaccines, safety testing of household products, safety testing
29
                         of cosmetics, testing of weapons, riot control and defence
30
                         devices, safety testing of agricultural products, safety testing
31
                         of industrial chemicals, toxicity testing of food additives and
32
                         behavioural research).
33
                  A matter may be excluded from an annual report on the basis of
34
                  commercial-in-confidence only if the information reveals a trade
35
                  secret or details a process or product under patent.
36




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                                                                           Section 109

     109 Annual report of supply unit operator
 1

                A licensed supply unit operator must submit an annual report to the
 2
                Authority showing:
 3
                 (a) the number of each species bred; and
 4
                 (b) to whom the animals were sold or forwarded; and
 5
                 (c) the numbers of animals acquired by each purchaser; and
 6
                 (d) the numbers retained for breeding colony maintenance and
 7
                      the numbers culled; and
 8
                 (e) the number of deaths from disease or from unexplained
 9
                      causes; and
10
                  (f) from where breeding animals are obtained.
11


     110 Register
12

            (1) The Authority must keep a register of persons registered to use
13
                animals for scientific purposes.
14

            (2) The Authority may keep the register in the way in which the
15
                Authority considers appropriate, including, for example, in
16
                electronic form.
17


     111 Registration details
18

            (1) The register must state the following for each registered person:
19
                 (a) the person's name, address and licence number;
20
                 (b) if the person is not an individual--the name of the principal
21
                     executive officer of the registered entity;
22
                 (c) any other information prescribed under the regulations.
23

            (2) The register may include any other information which the
24
                Authority considers appropriate.
25

            (3) The information recorded under subsections (1) and (2) in the
26
                register for a registered person is called the person's registration
27
                details.
28




                                 National Animal Welfare Bill 2003   No.   , 2003      65


[Page Break]




     Section 112

     112 Inspection of register
 1

                  The Authority must:
 2
                   (a) keep the register open for inspection, free of charge, by
 3
                       members of the public during office hours on business days
 4
                       at the Authority's office; and
 5
                   (b) allow a person to take extracts, free of charge, from the
 6
                       register; and
 7
                   (c) give a person a copy of the register, or a part of it, on
 8
                       payment of the fee prescribed under the regulations.
 9


     113 False representations about registration
10

                  A person must not, in connection with the use of an animal for a
11
                  scientific purpose, intentionally or recklessly falsely represent that
12
                  the person or someone else is a registered person.
13

                  Maximum penalty: 150 penalty units.
14


     114 Conditions for cancellation or suspension
15

             (1) The Authority may cancel or suspend a person's registration if an
16
                 event mentioned in subsection (2) has occurred.
17

             (2) For the purposes of subsection (1), the event is any of the
18
                 following:
19
                   (a) the registration was because of a materially false or
20
                       misleading representation or declaration, made either orally
21
                       or in writing;
22
                   (b) the person has not complied with a registration condition;
23
                   (c) the person has not paid a fee prescribed under this Act in
24
                       relation to the registration;
25
                   (d) if the person is an individual:
26
                         (i) a disqualifying event happens in relation to the
27
                             individual; or
28
                        (ii) the individual becomes an undischarged bankrupt or, as
29
                             a debtor, takes advantage of any law about bankruptcy
30
                             or insolvent debtors;
31




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                                                            Section 114

    (e) if the person is a corporation:
1
          (i) a disqualifying event happens in relation to any of its
2
              executive officers or another corporation of which any
3
              of its executive officers is, or has been, an executive
4
              officer; or
5
         (ii) it becomes insolvent as defined under section 95A of
6
              the Corporations Act 2001.
7




                  National Animal Welfare Bill 2003   No.   , 2003      67


[Page Break]




     Section 115
 1


     Part 9--Funding for animal research etc.
 2
 3


     115 Prohibition on research funding
 4

              (1) The Commonwealth must not provide funding to any organisation
 5
                  that uses animals for:
 6
                    (a) research and development; or
 7
                    (b) promotional activities;
 8
                  unless the Minister is satisfied that the organisation's use of
 9
                  animals is consistent with the objects of this Act and does not
10
                  contravene any code of practice established under the regulations.
11

              (2) All organisations that receive commercial funding must publish all
12
                  other funding sources.
13

              (3) If an organisation receives Commonwealth funding and funding
14
                  from Commonwealth sources, those sources of funding must be:
15
                          (i) reported in applying for any Commonwealth funds; and
16
                         (ii) published in the organisation's annual report.
17




     68      National Animal Welfare Bill 2003   No.   , 2003


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                                                                         Staff Division 1

                                                                           Section 116
 1


     Part 10--Administrative provisions
 2


     Division 1--Staff
 3


     116 Staff
 4

            (1) The staff of the Authority are to be persons engaged under the
 5
                Public Service Act 1999.
 6

            (2) The Chairperson has all the powers of a Secretary under the Public
 7
                Service Act 1999 as they relate to the branch of the Australian
 8
                Public Service comprising the Authority.
 9

            (3) The Authority may make arrangements with an authority of the
10
                Commonwealth or of a State or Territory for the services of
11
                officers of that authority to be made available for the purposes of
12
                the Authority.
13


     117 Consultants
14

                 The Authority may engage consultants to assist it in the
15
                 performance of its functions and the exercise of its powers.
16




                                 National Animal Welfare Bill 2003   No.   , 2003     69


[Page Break]

     Division 2 Payments and application of money

     Section 118
 1


     Division 2--Payments and application of money
 2


     118 Payments to the Authority
 3

             (1) There is payable to the Authority such money as is appropriated by
 4
                 the Parliament for the purposes of the Authority.
 5

             (2) The Authority may receive money paid to it by a State or Territory.
 6


     119 Application of money of the Authority
 7

             (1) The money of the Authority is to be spent only:
 8
                  (a) in paying or discharging costs, expenses and other
 9
                      obligations incurred in the performance of its functions; and
10
                  (b) in paying remuneration and allowances payable under this
11
                      Act.
12


     120 Estimates
13

             (1) The Authority must prepare estimates, in the form directed by the
14
                 Minister, of its receipts and expenditure for:
15
                  (a) each financial year; and
16
                  (b) any other period specified by the Minister.
17

             (2) The Authority must give the estimates to the Minister not later than
18
                 a day directed by the Minister.
19

             (3) The Authority's money must be spent in accordance with the
20
                 estimates approved by the Minister.
21




     70      National Animal Welfare Bill 2003   No.   , 2003


[Page Break]

                                                  Procedure of the Authority Division 3

                                                                          Section 121
 1


     Division 3--Procedure of the Authority
 2


     121 Authority to regulate its procedure
 3

                Subject to this Division, the procedure to be followed by the
 4
                Authority is to be determined by the Chairperson.
 5


     122 Convening meetings
 6

            (1) The Chairperson is to convene such meetings of the Authority as
 7
                he or she thinks necessary for the efficient performance of its
 8
                functions.
 9

            (2) The Chairperson must convene a meeting if requested in writing to
10
                do so by at least 3 other members.
11


     123 Presiding at meetings
12

            (1) The Chairperson is to preside at all meetings at which he or she is
13
                present.
14

            (2) If the Chairperson is not present at a meeting, the members present
15
                are to appoint a member to preside at that meeting.
16


     124 Quorum
17

                At a meeting, 5 members constitute a quorum.
18


     125 Voting at meetings
19

            (1) A question arising at a meeting is to be decided by a majority of
20
                the votes of the members present and voting.
21

            (2) The person presiding at a meeting has a deliberative vote but does
22
                not have a casting vote.
23




                                National Animal Welfare Bill 2003   No.   , 2003    71


[Page Break]

    Division 3 Procedure of the Authority

    Section 126

    126 Conduct and records of meetings
1

             (1) The Authority may, subject to this Division, decide the procedure
2
                 at meetings.
3

             (2) The Authority must keep minutes of its meetings.
4




    72      National Animal Welfare Bill 2003   No.   , 2003


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                                                  Administrative provisions Division 4

                                                                         Section 127
 1


     Division 4--Administrative provisions
 2


     127 Delegation
 3

               The Authority may by instrument in writing delegate all or any of
 4
               its powers to a member or a member of the staff of the Authority.
 5


     128 Remuneration and allowances
 6

           (1) A member of the Authority is to be paid the remuneration and
 7
               allowances determined by the Remuneration Tribunal. If there is
 8
               no determination in force, a member is to be paid such
 9
               remuneration as is prescribed.
10

           (2) A member is to be paid such other allowances as are prescribed.
11

           (3) Remuneration and allowances payable to members are to be paid
12
               out of money appropriated by the Parliament for the purposes of
13
               the Authority.
14

           (4) Subsections (1) and (2) have effect subject to the Remuneration
15
               Tribunal Act 1973.
16


     129 Leave of absence
17

           (1) A member of the Authority has the recreation leave entitlements
18
               determined by the Remuneration Tribunal.
19

           (2) The Minister may grant a member leave of absence, other than
20
               recreation leave, on such terms and conditions as to remuneration
21
               or otherwise as the Minister determines.
22


     130 Resignation
23

               A member of the Authority may resign by sending a signed notice
24
               of resignation to the Minister.
25




                               National Animal Welfare Bill 2003   No.   , 2003    73


[Page Break]

     Division 4 Administrative provisions

     Section 131

     131 Disclosure of interests
 1

              (1) A member of the Authority who has a conflict of interest in
 2
                  relation to a matter being considered or about to be considered by
 3
                  the Authority must disclose the matters giving rise to that conflict
 4
                  to the Authority as soon as possible after becoming aware of the
 5
                  conflict.
 6

              (2) The member must not take part in the making of a decision by the
 7
                  Authority in relation to the matter unless the Authority, in the
 8
                  absence of the member, decides that there is no conflict of interest.
 9

              (3) For the purposes of this section, a member has a conflict of interest
10
                  in relation to a matter being considered or about to be considered if
11
                  the member has any interest, pecuniary or otherwise, that could
12
                  conflict with the proper performance of the member's functions in
13
                  relation to the matter.
14


     132 Ceasing to be Chairperson
15

                  If the Chairperson ceases to be a member of the Authority, the
16
                  person ceases to be the Chairperson.
17


     133 Termination of appointment
18

              (1) The Minister may terminate the appointment of a member of the
19
                  Authority for misbehaviour or physical or mental incapacity.
20

              (2) The Minister must terminate the appointment of a member if:
21
                   (a) the member:
22
                         (i) becomes bankrupt; or
23
                        (ii) applies to take the benefit of any law for the relief of
24
                             bankrupt or insolvent debtors; or
25
                       (iii) compounds with his or her creditors; or
26
                       (iv) makes an assignment of his or her remuneration for the
27
                             benefit of his or her creditors; or
28
                   (b) the member is absent, without reasonable excuse, from 3
29
                       consecutive meetings of the Authority.
30

              (3) If a member is:
31




     74      National Animal Welfare Bill 2003   No.   , 2003


[Page Break]

                                                  Administrative provisions Division 4

                                                                         Section 134

                 (a) an eligible employee for the purposes of the Superannuation
 1
                     Act 1976; or
 2
                 (b) a member of the superannuation scheme established by deed
 3
                     under the Superannuation Act 1990;
 4
               the Minister may, with the member's consent, retire the member
 5
               from office on the grounds of physical or mental incapacity.
 6

           (4) In spite of anything in this Act, a member who:
 7
                 (a) is an eligible employee for the purposes of the
 8
                     Superannuation Act 1976; and
 9
                 (b) has not reached his or her retiring age within the meaning of
10
                     that Act;
11
               cannot be retired from office on the ground of invalidity within the
12
               meaning of Part IVA of that Act unless the Commonwealth
13
               Superannuation Board of Trustees No. 2 has given a certificate
14
               under section 54C of that Act.
15

           (5) In spite of anything in this Act, a member who:
16
                 (a) is a member of the superannuation scheme established by
17
                     deed under the Superannuation Act 1990; and
18
                 (b) is under 60;
19
               cannot be retired from office on the ground of invalidity within the
20
               meaning of that Act unless the Commonwealth Superannuation
21
               Board of Trustees No. 1 has given a certificate under section 13 of
22
               that Act.
23


     134 Acting appointments
24

           (1) The Minister may appoint a person to act as a member of the
25
               Authority:
26
                (a) during a vacancy in that office, whether or not an
27
                    appointment has previously been made to the office; or
28
                (b) during a period, or during all periods, when the holder of the
29
                    office is absent from duty or from Australia or is, for any
30
                    reason, unable to perform the duties of the office.
31

           (2) Anything done by or in relation to a person claiming to act under
32
               this section is not invalid merely because:
33




                               National Animal Welfare Bill 2003   No.   , 2003    75


[Page Break]

    Division 4 Administrative provisions

    Section 134

                   (a) the occasion for the appointment had not arisen; or
1
                   (b) there was a defect or irregularity in connection with the
2
                       appointment; or
3
                   (c) the appointment had ceased to have effect; or
4
                   (d) the occasion to act had not arisen or had ended.
5




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[Page Break]




                                                                           Section 135
 1


     Part 11--Miscellaneous
 2
 3


     135 Regulations
 4

           (1) The Governor-General may make regulations prescribing all
 5
               matters:
 6
                (a) required or permitted by this Act to be prescribed; or
 7
                (b) necessary or convenient to be prescribed for carrying out or
 8
                    giving effect to this Act.
 9

           (2) Regulations may prescribe civil or criminal penalties for the breach
10
               of a regulation.
11
12




                               National Animal Welfare Bill 2003     No.   , 2003     77


[Page Break]





     Schedule 1--A national animal welfare
 1

           system
 2
 3
 4
     1 Objectives
 5

                  In supporting the proposal for a national animal welfare system,
 6
                  the main objectives are to promote:
 7
                    (a) the humane treatment of animals so that the quality of life
 8
                        and manner of death of all animals which are under the
 9
                        control of humans reach an acceptable minimum standard;
10
                        and
11
                    (b) standards in relation to the housing, management, transport
12
                        and slaughter of animals that take into account the physical,
13
                        social and behavioural requirements of the relevant species;
14
                        and
15
                    (c) the international adoption of minimum standards by limiting
16
                        Australia's international trade in animals and animal products
17
                        to trade with those countries that observe comparable
18
                        standards.
19
     2 Framework
20

                  The framework for a national animal welfare system is to consist
21
                  of:
22
                    (a) a Ministerial Council to oversee the National Animal Welfare
23
                        Authority and be responsible for national policy formulation,
24
                        strategic directions and priority setting, with decisions by the
25
                        Ministerial Council to be made on the basis of voting by all
26
                        of its members; and
27
                   (b) a National Animal Welfare Authority to be responsible for
28
                        regulating the treatment of animals and reporting to the
29
                        Ministerial Council.
30
     3 Roles and responsibilities of the key parties
31


                  The Ministerial Council
32

             (1) The Ministerial Council will consist of one Minister from each
33
                 State and Territory and the Commonwealth, responsible for
34
                 primary industries, and will be chaired by the Commonwealth
35
                 Minister.
36




     78      National Animal Welfare Bill 2003   No.   , 2003


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     (2) On the Ministerial Council, each State and Territory Minister will
 1
         have one vote while the Commonwealth Minister will have two
 2
         votes and a casting vote. All matters will be decided by a simple
 3
         majority.
 4

     (3) The functions of the Ministerial Council are to include:
 5
          (a) consenting to functions and powers to be conferred on the
 6
              National Animal Welfare Authority; and
 7
          (b) monitoring the operation of the National Animal Welfare
 8
              Authority and receiving advice from the Authority; and
 9
          (c) formulating policy and setting strategic directions and
10
              priorities in relation to animal welfare.
11


         National Animal Welfare Authority
12

     (4) The National Animal Welfare Authority has the functions specified
13
         in this Act and such other functions as are conferred on the
14
         Authority under the Act.
15




                         National Animal Welfare Bill 2003   No.   , 2003   79


[Page Break]





 1

     Schedule 2--Definitions
 2
 3
 4
     1 Definitions
 5

                  In this Act, unless the contrary intention appears:
 6

                  animal is any of the following:
 7
                    (a) a live member of a vertebrate animal taxon;
 8
                    (b) if it is in the last half of gestation or development a live
 9
                         pre-natal or pre-hatched creature that is:
10
                           (i) a mammalian or reptilian foetus;
11
                          (ii) an avian, mammalian or reptilian pre-hatched young;
12
                    (c) a live marsupial young;
13
                    (d) a live invertebrate creature of a species, or a stage of the life
14
                         cycle of a species, from the class Cephalopoda or
15
                         Malacostraca prescribed under a regulation for this
16
                         paragraph.
17
                  However, a human being or human foetus is not an animal. To
18
                  remove any doubt, it is declared that the following are not animals:
19
                    (e) the eggs, spat or spawn of a fish;
20
                     (f) a pre-natal, larval or pre-hatched creature, other than a
21
                         creature mentioned in paragraph (b);
22
                    (g) another immature form of a creature, other than a creature
23
                         mentioned in paragraph (b).
24

                  abattoir means any premises at which the slaughter of animals
25
                  takes place for human consumption or pet food.
26

                  agent includes the transport company or any other person who has
27
                  taken responsibility and therefore liability for the transportation of
28
                  animals.
29

                  Agreement means any agreement made between the
30
                  Commonwealth, the States and the Territories in relation to animal
31
                  welfare.
32

                  animal keeper includes the seller of animals to be transported live,
33
                  or their agent.
34




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     animal product means a product whose physical constituents were
 1
     largely or wholly derived from slaughtered animals.
 2

     Authority means the National Animal Welfare Authority.
 3

     at a place includes in or on the place.
 4

     confine includes:
 5
       (a) caging or keeping an animal in captivity in some other way;
 6
      (b) maiming, mutilating or pinioning an animal or subjecting an
 7
           animal to a device to hinder or prevent the animal's free
 8
           movement;
 9
       (c) tethering an animal.
10

     custody of an animal includes care and control of the animal.
11

     debarking operation has the meaning given in section 77.
12

     delivery means the assumption of responsibility demonstrated by
13
     some physical act of control made by the purchaser of the animals
14
     or their agent.
15

     destroy an animal includes disposing of it after it has been killed.
16

     duty of care for a person in charge of an animal means the duty
17
     imposed on the person.
18

     enter includes:
19
      (a) for a place--to re-enter the place; and
20
      (b) for a vehicle--to board or re-board the vehicle.
21

     entry requirement has the meaning given by section 30.
22

     event includes competition, display and race.
23

     exercise a power includes to exercise a power under an order,
24
     warrant or other authority issued under this Act.
25

     humane methods of slaughter means methods whereby animals
26
     are rendered insensible to pain by mechanical, electrical, chemical
27
     or other means which are rapid and effective, before slaughter and
28
     before being shackled, hoisted, thrown, cast or cut.
29




                     National Animal Welfare Bill 2003     No.   , 2003     81


[Page Break]





                  inspector means a person who holds appointment as an inspector
 1
                  under this Act.
 2

                  member means a member of the Authority.
 3

                  Minister means the Commonwealth Minister with responsibility
 4
                  for primary industries.
 5

                  Ministerial Council means the Animal Welfare Ministerial
 6
                  Council established in accordance with the Agreement.
 7

                  prohibited event has the meaning given by section 81.
 8

                  prohibited trap or spur has the meaning given by section 71.
 9

                  slaughter an animal includes preparing it for slaughter.
10

                  supply includes:
11
                    (a) to give or sell;
12
                   (b) to possess for supply;
13
                    (c) to offer or agree to give, sell or otherwise supply;
14
                   (d) to cause or permit to be given, sold or otherwise supplied.
15

                  transportation includes loading, the waiting period during loading,
16
                  transit, unloading at the point of destination, and the waiting period
17
                  prior to delivery at the point of destination.
18

                  use includes:
19
                   (a) to cause or permit to be used; and
20
                   (b) for an animal:
21
                          (i) to acquire, breed with, care for, dispose of or identify
22
                              the animal; and
23
                         (ii) to drive, load, ride, transport and work; and
24
                        (iii) to accommodate or provide other living conditions for
25
                              the animal; and
26
                   (c) for premises--to keep, manage and occupy; and
27
                   (d) for a trap--to set.
28

                  vehicle includes an aircraft, boat, trailer, train and tram.
29

                  veterinary treatment, of an animal, means:
30




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      (a) consulting with a veterinary surgeon about the animal's
 1
          condition; or
 2
      (b) a medical or surgical procedure performed on the animal by a
 3
          veterinary surgeon;
 4
      (c) a medical procedure of a curative or preventive nature
 5
          performed on the animal by someone other than a veterinary
 6
          surgeon if the procedure is performed under a veterinary
 7
          surgeon's directions.
 8

     welfare, of an animal, means issues about the health, safety or
 9
     wellbeing of the animal.
10




                     National Animal Welfare Bill 2003     No.   , 2003     83


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    National Animal Welfare Bill 2003   No.   , 2003   1