Legislation relating to animal protection to prevent abuse of animals has been present in Australia for a long time. The oldest Animal Protection Act extant in Australia is the Western Australian Act, dated 1920; the Queensland Act, dated 1925, follows this. Both these Acts have been amended from time to time, with the latest amendments dated 2000. However, they are urgently in need of re-writing to comply with modern community attitudes to animal welfare. Other Australian States and territories have re-written and updated their animal protection legislation more recently, with the oldest revision being NSW, dated 1979, and the newest being Australian Capital Territory (ACT) and Northern Territory (NT), dated 2000.

In 2000, New Zealand passed a new and very comprehensive animal welfare act that is closely tied to “codes of practice” and gives theses codes more legal powers. This approach lends much more flexibility for regular updating and review of the legislation without actually opening the act in parliament. Some Australian acts are being re-written to incorporate Codes of Practice. It is likely that most Australian and British legislation will follow this pathway.

The role of the Commonwealth Government of Australia is to try to coordinate state legislation so that it is reasonably uniform across Australia. The main mechanism for this in the animal welfare field is the National Consultative Committee on Animal Welfare (NCCAW) which meets on a regular basis. NCCAW has representatives for the entire community of animal interest organisations and is chaired by Professor Ivan Caple, Dean of the University of Melbourne, School of Veterinary Science.

All the State and Territory acts are reasonably uniform in relation to their clauses regarding animal abuse. It is interesting to see that the older acts concentrate more on farm animals and beasts of burden rather than companion animals whereas the more recently revised versions move the focus to companion animal species. Even the fate of crustaceans (such as lobsters) is regulated, when killed and eaten as human fare in restaurants.

OBJECTIVES

The more modern Acts have clarified their objectives to reflect a pro-active welfare role for legislation rather than the older retroactive role. For example, the Northern Territory Act of March 2000 has as its stated objectives:

The objectives of this Act are:

a.   To ensure that animals are treated humanely;

b.   To prevent cruelty to animals; and

c.   To promote community awareness about the welfare of animals.

Animal welfare in many poor communities takes a second place to human welfare. For example, Australia has had to make concessions to its Aboriginal and Torres Strait Islander’s customs in some areas of animal welfare and we have the anomaly where a lobster in a restaurant in Sydney has to be humanely dispatched, whereas a captured live turtle in the Torres Strait or Queensland can be legally turned on its back and have portions of its flesh excised over a period of days until it dies of exposure and blood loss.

Companion animals, such as dogs, in Australian and Pacific island cultures can be seen in every community, where they are generally liked. However, their health needs are traditionally ignored often to the detriment of human health. Sarcoptic mange, ringworm, and roundworms are all examples of zoonoses that plague these communities, largely through lack of education and veterinary care.

DEFINITIONS OF “ANIMAL”

Definitions of an animal are nicely summarised in the Northern Territory Act to encompass all species used (and abused) by man:

In this Act, unless the contrary intention appears, “animal” means:

a. A live member of a vertebrate species including an amphibian, bird, mammal (other than a human being) and reptile;

b. A live fish in captivity or dependent on a person for food; or

c. A live crustacean if it is in or on premises where food is prepared for retail sale, or offered by retail sale, for human consumption.

DEFINITIONS OF OFFENCES

The legislation relating to offences varies quite widely in detail in each State and Territory, but the general principles are very similar. The more recently reviewed Acts have very simplified wording that tends to encompass all events and allows the court the discretion to decide each case on an individual basis. For example, the Northern Territory Act states:

1.  A person must not neglect or commit an act of cruelty on an animal.

2.  A person in charge of an animal must:

a.  Exercise reasonable care, control or supervision of the animal to maintain the animal's welfare and prevent the neglect of the animal or the commission of an act of cruelty on it;

b.  If it is necessary for the animal's welfare, obtain veterinary treatment for it; and

c.  If the animal is suffering, take reasonable action to alleviate the suffering.

3.  In this section, “an act of cruelty” includes the following:

a.  An act that causes an animal unnecessary suffering;

b.  An act that causes an animal suffering and is unreasonable in the circumstances;

c.  Treatment that is inhumane in the circumstances.

The Australian Capital Territory Act goes one stage further and not only has its own list of offences, but also has a clause which “ropes in” all the offences in other States.

Defined offence means:

 An offence against this Act; or

 An offence in relation to animal welfare under another Territory law or a Commonwealth or State law.

PROSCRIBED SURGICAL AND MEDICAL PROCEDURES

All Australian Animal Welfare Acts have a list of proscribed medical and surgical procedures. These are either totally prohibited or allowed under certain circumstances. Some of these procedures are allowed to be performed by registered veterinarians if they are in the interests of the welfare of the animal concerned. Other surgical procedures can be performed as part of normal farming practice, but only under regulated conditions.

Proscribed procedures in the NT Act which are common to most/all Australian Acts:

 Cropping the ears of an animal.

 Remove the voice of an animal (devocalisation).

 Disable a bird by means of pinioning.

 Remove the claws of an animal, other than the dewclaws of a dog less than five days old.

 Dock the tail of an animal unless the animal is a dog less than five days old and the docking is performed in accordance with prescribed conditions.

Subject to the Veterinarians Act and Veterinarians Regulations, a veterinarian may perform a procedure referred to above if he/she is of the opinion that it is reasonable and necessary to do so.  In the Regulations to this Act, the conditions are prescribed, for example:

Prescribed conditions relating to tail docking:

1. A person who docks the tail of a dog under the NT Act must perform the docking in appropriate hygienic conditions and in a manner that minimises suffering to the dog.

2. In a proceeding for an offence, onus of establishing the docking was performed in appropriate hygienic conditions and a manner that minimises suffering to the dog is on the person accused of the offence.

In my opinion, although this wording goes further than most other Australian Animal Welfare Acts, this is a political manoeuvre to avoid banning tail docking altogether and allows vets to perform the procedure if the are of the “opinion that it is reasonable and necessary to do so.” This would effectively negate most prosecutions.

     The ACT Act goes a lot further and effectively bans tail docking altogether except for therapeutic or prophylactic reasons. It is the only Australian Animal Welfare Act to do this to date. Under this act, the following procedures can only be performed by a veterinarian and then only for a therapeutic or prophylactic purpose.

19A. Medical and surgical procedures—veterinary surgeons:

A veterinary surgeon must not, for a purpose other than a prophylactic or therapeutic purpose

a.   Dock a dog’s tail; or

b.   Crop a dog’s ear; or

c.   Remove a dog’s ear; or

d.   Remove a dog’s dew claws after 10 days after its birth; or

e.   Perform a clitoridectomy on a dog; or

f.   Perform a procedure prescribed under the regulations.

g.   Maximum penalty: 50 penalty units.

In my opinion, the wording of this Act would also give a veterinarian with a good lawyer an escape clause under the “prophylactic” wording. Fortunately, over 90% of Australian veterinarians are against tail docking etc.

For those of you who are wondering why clitoridectomy is included, I am informed it was a practice sometimes performed on female greyhounds, whose clitoris becomes hypertrophied from the chronic use of virilizing anabolic steroids and protrudes from the vulva.

CODES OF CONDUCT

An effective way of updating and maintaining an animal Welfare act is with Codes of conduct that are enforceable under the Act concerned. Examples of Australian codes are:

The care and use of animals for scientific purposes; the use of animals from pounds in scientific research and teaching; the management and control of companion animals in the community; the management of companion animals in pounds and shelters; the development of new breeds of companion animals (genetic modification); the use of electric goads in farm animal species; the use of electric training collars in Companion animal species; horse agistment establishments; dog and cat breeding establishments; animal welfare in rural industry; animal welfare in intensive farming; transport of livestock; animal welfare in the management of saleyards; livestock and poultry slaughtering establishments; fishing; culling of native animals; control of feral animals; aerial shooting of animals; trapping and snaring of animals; commercial pest control; commercial keeping and display of animals; keeping of zoo animals; animal welfare in the racing industry; any other matter related to animal welfare.

Australian animal welfare legislation is generally available from the Internet on the WWW via the following URLs (web addresses):

 www.scaleplus.law.gov.au

 www.austlii.edu.au