Primary Industries Acts (Further Amendment) Bill

Primary Industries Acts (Further Amendment) Bill

Circulation Print

EXPLANATORY MEMORANDUM

551342

BILL LA CIRCULATION 8/9/2005

Clause Notes

PART 1—PRELIMINARY

Clause 1sets out the purposes of the Bill.

Clause 2provides that clause 7 will come into operation on 1 May 2007. Clauses 6, 8, 9(2), 21(6), 22, 24 and 29 will come into operation on a day or days to be proclaimed with a forced commencement date of 1 July 2006. All other sections will come into operation on the day after the day on which the Bill receives Royal Assent.

PART 2—AMENDMENTS TO THE DOMESTIC (FERAL AND NUISANCE) ANIMALS ACT 1994

Clause 3substitutes the words "dogs or cats" for the words "dogs and cats" in the definitions of "domestic animals business" and "pound" in section 3(1) of the Domestic (Feral and Nuisance) Animals Act 1994 (DFNA Act)to ensure that provisions relating to these premises include premises dealing with only dogs, only cats or both dogs and cats.

Clause 4amends section 10(3) of the DFNA Act to increase the penalty for failure to declare whether or not a dog is a restricted breed dog from 5 penalty units to 10 penalty units.

Clause 5inserts new sections 10A and 10B into the DFNA Act. Section10A provides that a Council may resolve that it will not after a specified date register or renew the registration of a dog orcat unless the animal is desexed or exempted from the requirement to be desexed.

New section 10B provides that certain dogs and cats are exempt from any requirement to be desexed in order to be registered by a Council or to have their registration renewed. A Council may also exempt a class of dog or cat from any requirement to be desexed for the purposes of registration or renewal of registration but may not make such an exemption for a dangerous or restricted breed dog.

New section 10A also provides that a dangerous or restricted breed dog must be desexed in order to register or renew the registration of that dog unless exempted under section 10B because the dog is a dangerous dog kept as a guard dog for nonresidential premises, a dangerous dog that has undergone protection training or a dog that is the subject of veterinary advice that the health of the dog could be significantly prejudiced if it is desexed.

Clause 6inserts new section 10C into the DFNA Act to provide that a Council must not register or renew the registration of a dangerous, menacing or restricted breed dog unless that dog hasbeen implanted with a permanent identification device. Thisprovision is re-enacted at a later commencement time as new section 10C(6) inserted by clause 7.

Clause 7substitutes section 10C and inserts new section 10D in the DFNA Act on 1 May 2007.

New section 10C will provide that a Council must not register any dog or cat unless the dog or cat—

has been implanted with a permanent identification device; or

has previously been registered with the Council at any time in the previous 12 months (except where the Council has made a resolution that requires the class ofdog or cat to be implanted with a permanent identification device for the purposes of renewal of registration); or

is of a class of dog or cat which the Council has exempted under section 10D(3); or

is otherwise exempt under the DFNA Act from the requirement.

New section 10C also provides that a Council may resolve that it will not renew the registration of any dog or cat unless the dog or cat has been implanted with a prescribed permanent identification device or is exempted from any requirement under the DFNA Act to be implanted with a permanent identification device.

New section 10C further provides that a Council must not register or renew the registration of a dangerous, menacing or restricted breed dog unless the dog has been implanted with a prescribed permanent identification device.

New section 10D provides that a dog or cat (except for a dangerous, menacing or restricted breed dog) that is the subject of veterinary advice that the health of the animal is liable to be significantly prejudiced if it is implanted with a permanent identification device is exempt from any requirement to be so implanted for the purposes of registration or renewal of registration.

New section 10D also provides that a Council may exempt a class of dog or cat (except dangerous, menacing or restricted breed dogs) from any requirement to be implanted with a permanent identification device for the purposes of registration or renewal of registration.

Clause 8inserts section 12A into DFNA Act and substitutes section 13 of the DFNA Act.

New section 12A provides that the proprietor of a domestic animal business must not sell or give away a dog or cat unless the animal has been implanted with a permanent identification device.

New section 13 provides that if a proprietor of a domestic animal business sells or gives away a dog or a cat that is not registered, he or she must notify the Council with which the animal should be registered of certain details within 7 days of selling or giving away the animal.

Clause 9substitutes section 14(c) of the DFNA Act to provide that an application for registration or renewal of registration must also be accompanied by, if relevant, evidence that a dog or cat is desexed and, if relevant, evidence that the dog or cat is implanted with a permanent identification device.

Clause 10substitutes section 15(4) of the DFNA Act to provide that in thecase of a dangerous dog(that is not kept as a guard dog for nonresidential premises or has notundergone protection training), a menacing dog or a restricted breed dog, the registration fee payable must be no less than the maximum fee for a dog described in Column 1 of Part 1 of the Schedule (anydog to which a reduced fee does not apply).

New section 15(4) provides that the fee payable in respect of a dangerous dog kept as a guard dog for non-residential premises or that has undergone protection training must be the same amount as the maximum fee payable for a class of dog described in Column 1 of Part 1 of the Schedule (any dog to which a reduced fee does not apply).

New section 15(4) also provides for maximum and reduced registration fees to be paid by dogs and cats.

New section 15(7) provides that section 15(6), which enables the waiving of 50% of the registration fee for an eligible recipient within the meaning of the State Concessions Act 2004, is not to apply to a dangerous, menacing or restricted breed dog.

Clause 11substitutes section 16 of the DFNA Act to provide that a Council must register or renew the registration of a dog or cat (other than a dangerous or restricted breed dog) if the application for registration or renewal of registration is accompanied by the appropriate fee and otherwise complies with the DFNA Act and the regulations under that Act and any pre-condition for registration or renewal of registration imposed by or under the DFNA Act in respect of the dog or cat has been met.

Clause 12amends the heading to section 17 of the DFNA Act to refer to registration of restricted breed dogs as well as dangerous dogs.

The section will also be amended to insert a provision prohibiting the registration of a restricted breed dog unless the Council is satisfied that the dog was in Victoria prior to commencement of clause 12 and the owner of the dog reasonably held the opinion at that commencement that the dog was not a restricted breed dog.

Clause 13amends section 25(1) of the DFNA Act to allow an order confining cats to their properties to apply to part of a municipal district as well as the whole of a municipal district.

Clause 14inserts new section 33A in the DFNA Act which provides that a Council must accept any dog or cat kept in its municipal district that is surrendered to the Council. The Council must deal with the dog or cat in accordance with the DFNA Act, the regulations and any relevant Code of Practice.

Clause 15inserts new section 41EA in the DFNA Act which prohibits the keeping of a restricted breed dog unless the person acquired the dog before the commencement of this provision.

Clause 16repeals the heading to Division 3A of Part 4 of the DFNA Act.

Clause 17substitutes section 58 of the DFNA Act to provide that the Minister may suspend or revoke the registration of premises on which a Council is conducting an animal shelter or pound, or from which any person or body provides animal shelter or pound services to a Council, where the Council or person or body has failed to comply with the DFNA Act, the regulations under that Act, any applicable Code of Practice or conditions on registration or has been found guilty of an offence under the Prevention of Cruelty to Animals Act 1986.

Clause 18inserts a Division heading after section 58 of the DFNA Act.

Clause 19substitutes section 63A of the DFNA Act to include a "body" as a possible offender under this section and to provide that a Council is deemed to have contravened the provision prohibiting a person or body from conducting a domestic animal business that does not comply with the relevant Code of Practice, if—

the business is conducted on behalf of and under an agreement with the Council;

the person or body conducting the business has contravened that provision; and

the Council was aware or ought to have been aware that the contravention was about to occur or was occurring.

Clause 20inserts a new Part 5A into the DFNA Act to require Councils to prepare domestic animal management plans to outline programs and processes for ensuring that the requirements of the DFNA Act and the objective of management of the domestic animal population are met.

Clause 21substitutes section 77(1)(b) of the DFNA Act to provide that a dangerous or restricted breed dog may be seized where the dog may be registered but the Council has refused to register the dog and the owner has not applied for a review of the decision, or where the dog is a restricted breed dog that cannot be registered under the DFNA Act.

Sections 77(1)(a) and 77(2) are amended to provide that a dog or cat may be seized where its owner has failed to apply to register the dog or cat within one month after having been served with an infringement notice and having paid the penalty in respect of the offence of not applying for registration or within one month after being found guilty of that offence.

New section 77(2A) is to be inserted to provide that an unregistered dog or cat that is unable to be registered or have its registration renewed under the DFNA Act may be seized.

New section 77(3A) is substituted to provide that a cat outside its owner's premises that is not wearing any current Council identification and that appears to be over 3 months old may be seized.

New section 79(3) is to be inserted to provide that a person may recover a seized dog or cat if, within 8 days of seizure under new section 77(2A), he or she arranges for the animal to be desexed (where the animal does not comply with a requirement to be desexed for the purposes of registration), applies to register the animal, pays the amount for costs incurred by the Council in seizing and holding the animal and proves that he or she is the owner of the animal or agent of the owner of the animal.

New section 79(3)(aa) is to be inserted to provide that a person may recover a seized dog or cat if the owner, in the case of an animal that does not comply with a requirement to be implanted with a permanent identification device for the purposes of registration, arranges for the animal to be so implanted, and all other requirements for recovery of the animal are also met. Thisprovision comes into operation after the rest of new section79(3).

Section 80(1) is to be amended to include dogs and cats seized under new section 77(2A). Section 81(1) is also amended to provide that where a seized animal is not recovered within 8days, in the case of a dangerous or restricted breed dog, the dog must be destroyed as soon as possible. Any other seized animal (other than an unmarked wild, diseased or uncontrollable cat)must be sold or destroyed in accordance with any relevant Code of Practice made under section 59 of the DFNA Act.

Clause 22inserts new sections 12A and 41EA of the DFNA Act as offences for which infringement notices may be given.

Clause 23increases the penalty for giving false information under section 97 of the DFNA Act from 5 to 10 penalty units in the case of giving a false declaration about whether or not a dog is a restricted breed dog.

Clause 24amends section 100(2A) of the DFNA Act to enable the incorporation of documents into the regulations as amended from time to time.

Clause 25amends Column 1 of the Schedule to the DFNA Act to amend the description of dogs to which the maximum fee for registration is to apply by excluding dangerous, menacing or restricted breed dogs and also inserts various headings into the Schedule.

PART 3—AMENDMENTS TO THE PREVENTION OF CRUELTY TO ANIMALS ACT 1986

Clause 26inserts a definition of "person in charge of" into section 3(1) of the Prevention of Cruelty to Animals Act 1986 (POCTA Act). The Bill inserts the term "person in charge of" in relation to an animal, in a number of places in the POCTA Act to ensure that people who are responsible for an animal are legally responsible under that Act.

Clause 27amends a number of the cruelty offences in section 9 of the POCTA Act to—

amend the offence in section 9(1)(b) to include confinement of an animal and that an offence will only occur if the activity causes or is likely to cause unreasonable pain or suffering to an animal;

remove the requirement to prove the offender's knowledge or negligence in relation to an act or omission to act for the offences in sections 9(1)(c) and 9(1)(e)—the offences will be made out where the act or omission results in unreasonable pain or suffering being caused to an animal;

to amend section 9(1)(d) to clarify that the offence to fail to provide an animal with proper and sufficient food, drink and shelter applies if there is a failure to provide any one of those things;

provide that the offence in section 9(1)(i) will apply ifthe owner or person in charge of a sick or injured animal unreasonably fails to provide veterinary or appropriate treatment or attention to the animal—therequirement to prove that the owner knowingly or negligently failed to treat or attend to the animal has been removed;

provide that the offences in sections 9(1)(f) and 9(1)(i) also apply to the "person in charge" of an animal.

Clause 28amends section 12(2)(a)(i) of the POCTA Act to provide that it applies in relation to the person in charge of an animal.

Clause 29amends section 16 of the POCTA Act to allow the Department Head to impose conditions on a permit to operate a rodeo or to operate a rodeo school and to enable the Department Head to refuse to issue a permit if the application is not lodged at least 28days before the rodeo or rodeo school is to be held. Thisclause also substitutes section 16(3)(b) which provides that aconviction for certain offencesmay result in refusal of a permit.

Clause 30amends sections 21(1)(bb)(ii), 21(2A) and 21(2B) of the POCTA Act to include reference to a person in charge of an animal.

Clause 31amends section 21 of the POCTA Act. New section 21(2D)provides for an inspector to advise the owner or person in charge of an animal or thing of his or her right to be given a part of a sample taken from that animal or thing and, if the person requests a part of the sample, the inspector must divide the sample into 3parts and give one part to the owner or person. However, the inspector is not required to divide a sample taken from an animal if a veterinary practitioner or a pathologist has advised the inspector that it is not practicable or will adversely affect any analysis. Section 21(3) is also amended to provide that a "sample" may include the whole carcass of a dead animal.

Clause 32amends section 21A(3) of the POCTA Act to provide that a search warrant issued by a magistrate under section 21A may allow an inspector to—

take photographs, make video recordings or make sketches of animals or things on the premises being searched;

search for and seize an abandoned animal and retain possession of the animal until the animal is recovered, sold, given away or destroyed.

Clause 33inserts new sections 21CA and 21CB into the POCTA Act to provide the process to be followed if an inspector seizes an abandoned animal under a search warrant issued under section 21A of the POCTA Act. The inspector is required to take certain steps to enable the animal to be recovered by the owner or person in charge of the animal. If the animal is not recovered, the inspector may sell or destroy the animal in accordance with new section 21CB or the animal may be given to a domestic animal business operating from a premises registered under the DFNA Act.

New section 21CB provides that the provisions relating to the sale and destruction of an animal in sections 24B, 24C and 24D of the POCTA Act apply in the case of an abandoned animal which is not recovered by the owner or person in charge of the animal or is not given to a domestic animal business.

Clause 34substitutes section 24A of the POCTA Act. New section 24A provides that the Minister may serve a notice of an intention to seize an animal (which is believed to be in such a condition or circumstances that it is likely to become distressed or disabled) unless satisfactory action is taken within 7 days after the notice isserved to remove the likelihood of the animal becoming distressed or disabled. The notice is to be served on the owner or the person in charge of the animal. New section 24A deals with the situation where the owner or person in charge of the animal cannot be located by providing for notice to also be able to be given in writing by post to the last known residential or business address of the owner or that person.

Clause 35substitutes section 24H of the POCTA Act to provide the processto be followed if an inspector seizes an animal (whose welfare is at immediate risk) under a search warrant issued under section 24E of the POCTA Act. The inspector is required to take certain steps to enable the animal to be recovered by the owner or person in charge of the animal. If the animal is not recovered, the inspector may sell or destroy the animal in accordance with new section 24IA or the animal may be given to a domestic animal business operating from a premises registered under the DFNA Act.

Clause 36inserts new section 24IA into the POCTA Act which provides that the provisions relating to the sale and destruction of an animal in sections 24B, 24C and 24D of the POCTA Act apply inthe case of an animal seized under section 24E which is not recovered by the owner or person in charge of the animal or is not given to a domestic animal business.

Clause 37amends section 24J(1)(b) to insert reference to a person in charge of an animal.