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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Animal Welfare (Companion Animals) Amendment
Bill 2014
A BILL FOR
An Act to amend the Animal
Welfare Act 1985.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Animal Welfare
Act 1985
4Insertion of Part 3A
Division
1—Preliminary
15BInterpretation
15CApplication of
Part
15DApproved animal welfare
organisations
Division 2—Codes of
practice
15ECodes of
practice
15FOffence
to contravene codes of practice
Division 3—Breeding
of prescribed companion animals
15GMinister may grant breeder's
licence
15HRevocation and suspension of
breeder's licences
15IOffence to breed or mate certain companion animals
without breeder's licence
15JEmployees of breeder's licence holder not required
to hold breeder's licence
Division 4—Desexing
of certain companion animals
15KCertain companion animals to be
desexed
Division 5—Sales of certain companion
animals
15LSale or purchase
of certain companion animals prohibited
15MOffences relating to sale of certain companion
animals
15NCooling off period where written
contract for sale
15OCooling off period where no
written contract for sale
15POffence to threaten etc person returning companion
animal during cooling off period
Division
7—Miscellaneous
15QExemptions
15RGeneral defence
15SReview of Minister's decisions by South Australian
Civil and Administrative Tribunal
15TDealing with seized prescribed companion
animals
5Amendment of section 31C—Dealing with
seized animals and objects
6Amendment of section 38—Offences by
bodies corporate
7Amendment of section
42—Evidence
8Substitution of section
43
43Act does not render
unlawful practices that are in accordance with prescribed code of animal
husbandry practice
9Amendment of section
44—Regulations
Schedule 1—Transitional
provisions
Part 1—Transitional
provisions
1Certain provisions of Act not to apply to
certain companion animals
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Animal Welfare (Companion Animals)
Amendment Act 2014.
This Act will come into operation 12 months after the day on which it
is assented to by the Governor.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Animal Welfare
Act 1985
After section 15A insert:
Part 3A—Companion animals
Division 1—Preliminary
15B—Interpretation
(1) In this Part—
approved animal welfare organisation means an animal welfare
organisation holding a current approval under
section 15D;
breeder's licence means a breeder's licence granted to a
person or body under
section 15G;
cat means an animal of the species felis
catus;
code of practice means a code of practice made under
section 15E, as in
force from time to time;
desex or desexed means to wholly or partly
remove the reproductive organs from an animal such that the animal is not
capable of reproducing;
dog means an animal of the species canis
familiaris;
Dogs SA means the SA Canine Association Inc trading
as Dogs SA;
first sale, of a prescribed companion animal,
means—
(a) the sale of a prescribed companion animal by or on behalf of the
breeder of the animal to a purchaser; or
(b) the sale of a prescribed companion animal by or on behalf of a person
or body to a purchaser in the course of carrying on a business consisting of, or
including, the sale of animals; or
(c) any other sale of a prescribed companion animal declared by the
regulations to be included in the ambit of this definition,
but does not include—
(d) the sale of a prescribed companion animal to a person or body for the
purposes of resale; or
(e) a sale of a prescribed companion animal, or class of prescribed
companion animals, declared by the regulations not to be included in the ambit
of this definition;
mate includes to mate by means of artificial
insemination;
micro-chip means to implant into the body of an animal a
micro-chip containing information identifying the owner of, or another person
entitled to possession of, the animal;
owner of a prescribed companion animal—see
subsection (2);
prescribed companion animal means—
(a) a dog; or
(b) a cat; or
(c) any other animal of a class prescribed by the regulations for the
purposes of this definition,
but does not include a dog, cat or other animal of a class declared by the
regulations not to be included in the ambit of this definition;
prescribed peak bodies means—
(a) the Society; and
(b) the Animal Welfare League of South Australia Inc; and
(c) the Local Government Association; and
(d) Dogs SA; and
(e) the Feline Association of South Australia Inc; and
(f) any other body prescribed by the regulations for the purposes of this
definition.
purchase includes—
(a) barter or exchange; or
(b) offer to purchase, barter or exchange,
and purchaser has a corresponding meaning;
sell includes—
(a) auction, barter or exchange; or
(b) offer for sale, auction, barter or exchange; or
(c) cause or permit to be offered for sale, auction, barter or exchange;
or
(d) possess for the purposes of sale, auction, barter or
exchange,
and seller has a corresponding meaning.
(2) For the purposes of
this Part, the following people are presumed, in the absence of proof to the
contrary, to be owners of a prescribed companion animal:
(a) in the case of a
prescribed companion animal that is a dog that is registered under the Dog
and Cat Management Act 1995—a person in whose name the dog
was last registered in the relevant register under that Act;
(b) in the case of a
prescribed companion animal to which
paragraph (a) does
not apply but that is micro-chipped (whether as required by this Act or
otherwise)—a person last recorded on a record relating to the micro-chip
as being an owner of the prescribed companion animal;
(c) in the case of a prescribed companion animal to which neither
paragraph (a)
nor
(b) applies, but that is
habitually in the apparent ownership of a person—that person.
15C—Application of Part
This Part is in addition to, and does not derogate from, the provisions of
any other Act or law.
15D—Approved animal welfare
organisations
(1) The Minister may,
on application, approve a specified person or body as an approved animal welfare
organisation for the purposes of this Part.
(2) An application under
subsection (1)—
(a) must be made in a manner and form determined by the Minister;
and
(b) must be accompanied by such information as the Minister may reasonably
require; and
(c) must be accompanied by the prescribed fee.
(3) An approval—
(a) must be in writing; and
(b) may be conditional or unconditional.
(4) The Minister may, by notice in writing, vary or revoke an
approval.
Division 2—Codes of practice
15E—Codes of practice
(1) The Governor may,
on the recommendation of the Minister, make regulations establishing codes of
practice for the purposes of this Part.
(2) Before making a recommendation for the purposes of
subsection (1), the
Minister—
(a) must consult with the prescribed peak bodies; and
(b) must call for public submissions in accordance with a scheme
determined by the regulations.
(3) The Minister must cause a code of practice to be reviewed at least
once in each 5 year period.
15F—Offence to contravene codes of
practice
(1) A person who, in relation to the breeding of prescribed companion
animals pursuant to a breeder's licence, contravenes a provision of a code of
practice that applies to the person is guilty of an offence.
Maximum penalty: $10 000.
(2) A person who, in relation to the sale of a prescribed companion
animal, contravenes a provision of a code of practice that applies to the person
is guilty of an offence.
Maximum penalty: $10 000.
Division 3—Breeding of prescribed companion
animals
15G—Minister may grant breeder's
licence
(1) The Minister may, on application, grant a licence (a breeder's
licence) to a person authorising the person to—
(a) breed from, or mate, a female prescribed companion animal of a
specified class;
(b) own or possess a prescribed companion animal of a specified class that
is not desexed.
(2) Subject to this Act, a breeder's licence has effect according to its
terms.
(a) is subject to a condition requiring the holder of the breeder's
licence to comply with each relevant code of practice; and
(b) must identify the class or classes of prescribed companion animal to
which the breeder's licence relates.
(4) Without limiting
subsection (3), a
breeder's licence may be granted subject to such conditions as the Minister
thinks fit and specifies in the breeder's licence (including, without limiting
the generality of this subsection, a condition limiting the number of prescribed
companion animals that can be bred pursuant to the breeder's licence).
(5) An application for a breeder's licence—
(a) must be made in a manner and form approved by the Minister;
and
(b) must include such information as the Minister may reasonably require;
and
(c) must be accompanied by the prescribed fee.
(6) In determining whether or not to grant a breeder's licence, the
Minister must have regard to—
(a) the suitability of the applicant to be granted the breeder's licence;
and
(b) the adequacy of the applicant's premises and facilities for the care
and handling of prescribed companion animals of the relevant class;
and
(c) such other matters as may be prescribed,
and may have regard to any other matter that the Minister thinks
relevant.
(7) The Minister may, by notice in writing, vary or revoke a condition of,
or impose further conditions on, a breeder's licence for any reason the Minister
thinks fit.
(8) A breeder's licence has effect for the term specified in the breeder's
licence and may be renewed in accordance with the regulations.
15H—Revocation and suspension of breeder's
licences
(1) If the Minister is satisfied that the holder of a breeder's
licence—
(a) has been found guilty of an offence against this Act; or
(b) has contravened a relevant code of practice; or
(c) has failed to comply with a condition of the breeder's licence;
or
(d) has obtained the breeder's licence improperly,
the Minister may, by notice in writing—
(e) suspend the breeder's licence—
(i) for a period specified in the notice; or
(ii) until the holder of the breeder's licence causes such action as may
be specified in the notice to be taken to the satisfaction of the Minister;
or
(f) revoke the breeder's licence.
(2) The Minister may,
if he or she considers it appropriate to do so, by notice in writing, disqualify
(either permanently or for a specified period) a person from holding or
obtaining a breeder's licence.
(3) If the Minister
revokes a breeder's licence, the Minister may, by notice in writing, direct the
person who held the licence to desex or dispose of any prescribed companion
animal owned by the person within the period specified by the
Minister.
(4) A person who, without reasonable excuse, refuses or fails to comply
with a direction of the Minister under
subsection (3) is
guilty of an offence.
Maximum penalty: $10 000.
(5) If the Minister gives a direction under
subsection (3),
section 15K of this Act
will be taken to apply to the person to whom the direction is given from the day
following the end of the period specified in the direction.
15I—Offence to breed or mate certain companion
animals without breeder's licence
(1) A person must
not knowingly breed from, or mate, a female prescribed companion animal (whether
for the purposes of sale or otherwise) unless the person holds a breeder's
licence in respect of prescribed companion animals of the relevant
class.
Maximum penalty: $10 000.
(2) A person must
not possess a female prescribed companion animal for the purposes of breeding
unless the person holds a breeder's licence in respect of prescribed companion
animals of the relevant class.
Maximum penalty: $10 000.
(3) For the purposes of
subsection (2)—
(a) the owner of a female prescribed companion animal will be presumed, in
the absence of proof to the contrary, to possess the animal for the purposes of
breeding if the animal (being an animal that is required to be desexed under
section 15K) is not so
desexed; and
(b) a reference to a breeder's licence includes a reference to a breeder's
licence that has been suspended under
section 15H.
15J—Employees of breeder's licence holder not
required to hold breeder's licence
(1) An employee of a person who holds a breeder's licence is not required
to hold a breeder's licence in respect of anything done in the course of his or
her employment.
(2) For the purposes of this section, a reference to an employee of a
person who holds a breeder's licence includes a reference to a person who
undertakes voluntary work for the breeder's licence holder.
Division 4—Desexing of certain companion
animals
15K—Certain companion animals to be
desexed
(1) The owner of a
prescribed companion animal must ensure that the animal is desexed in accordance
with any requirements set out in the regulations.
(2) Without limiting the regulations that may be made under
subsection (1)
or section 44, the regulations may—
(a) prescribe a period (whether by reference to the sale of an animal or
otherwise) within which a prescribed companion animal must be desexed;
and
(b) prescribe a minimum or maximum age at which a prescribed companion
animal may be required to be desexed; and
(c) exempt a person or prescribed companion animal of a specified class
from the operation of this section (whether conditionally or
unconditionally).
(3) An owner of a prescribed companion animal who contravenes
subsection (1)
is guilty of an offence.
Maximum penalty: $10 000.
(4) This section does not apply to—
(a) a person who holds a breeder's licence (including a breeder's licence
that has been suspended) in respect of prescribed companion animals of the
relevant class; or
(b) the owner of a prescribed companion animal, or class of prescribed
companion animals, declared by the regulations to be included in the ambit of
this subsection.
Division 5—Sales of certain companion
animals
15L—Sale or purchase of certain companion animals
prohibited
(1) A person must not sell a prescribed companion animal if he or she
knows, or ought reasonably to know, that the animal was bred in contravention of
Division 3.
Maximum penalty: $10 000.
(2) A person must not purchase a prescribed companion animal if he or she
knows, or ought reasonably to know, that the animal was bred in contravention of
Division 3.
Maximum penalty: $10 000.
(3) This section does not apply—
(a) to the following persons or bodies:
(i) an approved animal welfare organisation;
(ii) any other person or body prescribed by the regulations for the
purposes of this paragraph; or
(b) in the following circumstances:
(i) a sale that is not the first sale of the prescribed companion
animal;
(ii) a sale or purchase of a prescribed companion animal occurring in
circumstances prescribed by the regulations for the purposes of this
paragraph.
15M—Offences relating to sale of certain companion
animals
(1) A person must not sell a prescribed companion animal unless the
animal—
(a) has been vaccinated in accordance with any requirements set out in the
regulations; and
(b) has been treated for worms and parasites in accordance with any
requirements set out in the regulations; and
(c) has been micro-chipped in accordance with any requirement set out in
the regulations.
Maximum penalty: $10 000.
(2) A person who sells a prescribed companion animal must give to the
purchaser a written notice setting out—
(a) the information required by the regulations relating to the identity
of the breeder of the prescribed companion animal; and
(b) the information required by the regulations relating to vaccinations
and other treatments given to the prescribed companion animal; and
(c) the information required by the regulations relating to the prescribed
companion animal's micro-chip; and
(d) any other information required by the regulations in respect of a sale
of the relevant kind.
Maximum penalty: $10 000.
(3) A person who publishes an advertisement in relation to the sale of a
particular prescribed companion animal must ensure that the advertisement
contains—
(a) the information required by the regulations relating to the identity
of the breeder of the prescribed companion animal; and
(b) the information required by the regulations relating to vaccinations
and other treatments given to the prescribed companion animal; and
(c) the information required by the regulations relating to the prescribed
companion animal's micro-chip; and
(d) any other information required by the regulations in respect of an
advertisement of the relevant kind.
Maximum penalty: $10 000.
(4) This section does not apply to—
(a) a sale that is not the first sale of the prescribed companion animal;
or
(b) a sale of a prescribed companion animal occurring in circumstances
prescribed by the regulations for the purposes of this paragraph.
15N—Cooling off period where written contract for
sale
(1) A written contract
for the sale of a companion animal must comply with each of the following
provisions:
(a) the contract must contain a term that provides for the cooling off
period contemplated by this section;
(b) the contract must contain immediately above the place provided for the
signature of the purchaser the statement "THIS CONTRACT IS SUBJECT TO A COOLING
OFF PERIOD OF 10 DAYS" printed clearly and legibly;
(c) the contract cannot purport to exclude or modify the cooling off
period;
(d) the contract must comply with any other requirements set out in the
regulations for the purposes of this subsection.
(2) If a written contract for the sale of a companion animal contravenes
subsection (1), the
seller of the companion animal to be sold pursuant to the contract is guilty of
an offence.
Maximum penalty: $10 000.
(3) The purchaser of a companion animal may, during the cooling off
period, for any reason, notify the seller of the animal that he or she wishes to
avoid the written contract of sale relating to the animal.
(4) If a purchaser notifies the seller of a companion animal that he or
she wishes to avoid the written contract of sale relating to the animal, the
seller must, within 24 hours of being so notified—
(a) take custody of the companion animal; and
(b) refund to the purchaser the full amount paid for the companion
animal.
Maximum penalty: $10 000.
(5) However, nothing in this section requires a person to refund to a
purchaser an amount paid for other goods or equipment sold to the purchaser in
relation to the sale of the companion animal.
Note—
For example, a kennel, bedding or food for the companion animal.
(6) In this section—
companion animal means any animal, or animal of a class, kept
primarily as a pet, or for a person's company or protection;
cooling off period, in relation to a written contract for the
sale of a companion animal, means the period of 10 days commencing on and
including the day on which the contract is made and during which the contract is
voidable at the option of the purchaser.
15O—Cooling off period where no written contract
for sale
(1) This section applies to a sale of a companion animal in relation to
which there is no written contract.
(2) The purchaser of a companion animal may, during the cooling off
period, for any reason, notify the seller of the animal that he or she wishes to
return the animal.
(3) If a purchaser notifies the seller of the companion animal that he or
she wishes to return the animal, the seller must, within 24 hours of being
so notified—
(a) take custody of the companion animal; and
(b) refund to the purchaser the full amount paid for the companion
animal.
Maximum penalty: $10 000.
(4) However, nothing in this section requires a seller to refund to a
purchaser an amount paid for other goods or equipment sold to the purchaser in
relation to the sale of the companion animal.
Note—
For example, a kennel, bedding or food for the companion animal.
(5) In this section—
companion animal has the same meaning as in
section 15N;
cooling off period, in relation to a sale of a prescribed
companion animal to which this section applies, means the period of 10 days
commencing on and including the day on which the sale is made.
15P—Offence to threaten etc person returning
companion animal during cooling off period
(1) A person who, in relation to the return of a companion animal under
section 15N or
15O, threatens, harasses or
insults a purchaser who wishes to return the animal is guilty of an
offence.
Maximum penalty: $10 000.
(2) In this section—
companion animal has the same meaning as in
section 15N.
Division 7—Miscellaneous
15Q—Exemptions
(1) The Minister may, on application or on his or her own motion, exempt a
specified person from this Part, or specified provisions of this Part.
(2) Subject to this section, an exemption—
(a) must be in writing; and
(b) may be conditional or unconditional; and
(c) has effect for the period specified in the exemption.
(3) The Minister—
(a) must, unless the Minister is satisfied that good reasons exist for not
doing so, by notice in writing, revoke an exemption of a person if the
person—
(i) has been found guilty of an offence against this Act; or
(ii) has obtained the exemption improperly; or
(iii) has failed to comply with a condition of the exemption;
and
(b) may, by notice in writing, vary or revoke an exemption for any other
reason the Minister thinks fit.
(4) An application for an exemption, or for the variation of an
exemption—
(a) must be made in a manner and form determined by the Minister;
and
(b) must include such information as the Minister may reasonably require;
and
(c) must be accompanied by the prescribed fee.
15R—General defence
It is a defence to a charge of an offence against this Part if the
defendant proves that the alleged offence was not committed intentionally and
did not result from any failure on the part of the defendant to take reasonable
care to avoid the commission of the offence.
15S—Review of Minister's decisions by South
Australian Civil and Administrative Tribunal
(1) The South Australian Civil and Administrative Tribunal is, by force of
this section, conferred with jurisdiction to deal with matters consisting of the
review of a decision of the Minister under this Part.
(2) An application
for review of a decision of the Minister under this Part may be made to the
South Australian Civil and Administrative Tribunal within 1 month after the
applicant receives notice of the relevant decision (or such longer period as the
Tribunal may allow).
(3) However, the South Australian Civil and Administrative Tribunal may
only allow an extension of time under
subsection (2)
if satisfied that—
(a) special circumstances exist; and
(b) another party will not be unreasonably disadvantaged because of the
delay in commencing the proceedings.
15T—Dealing with seized prescribed companion
animals
(1) The Governor
may, on the recommendation of the Minister, make regulations setting out how
prescribed companion animals seized in respect of a contravention of this Part
must be dealt with.
(2) The Minister must consult with the prescribed peak bodies before
making a recommendation for the purposes of
subsection (1).
(3) A prescribed companion animal seized in respect of a contravention of
this Part must be dealt with in accordance with any requirements set out in the
regulations.
5—Amendment
of section 31C—Dealing with seized animals and
objects
Section 31C—after subsection (3) insert:
(3a) This section does not apply in relation to a prescribed companion
animal seized in respect of a contravention of Part 3A.
Note—
See instead section 15T.
6—Amendment
of section 38—Offences by bodies corporate
(1) Section 38(4), definition of prescribed
offence—after paragraph (a) insert:
(ab) an offence against Part 3A; or
(2) Section 38(4), definition of prescribed offence,
(b)—delete "such an offence" and substitute:
an offence referred to in a preceding paragraph
7—Amendment
of section 42—Evidence
(1) Section 42(1)(a)—after "certificate" insert:
, exemption
(2) Section 42(2)—after paragraph (b) insert:
or
(c) a specified animal, or an animal of a specified class, was a
prescribed companion animal; or
(d) a specified animal has, or has not, been desexed; or
(e) a specified animal has, or has not, been micro-chipped; or
(f) a specified animal has, or has not, been given a specified
vaccination,
Section 43—delete the section and substitute:
43—Act does not render unlawful practices that are
in accordance with prescribed code of animal husbandry
practice
(1) Subject to this section, nothing in this Act renders unlawful anything
done in accordance with a prescribed code of practice relating to
animals.
(2) This section
does not apply to breeding a prescribed companion animal in accordance with a
prescribed code of practice (other than a code of practice under Part 3A
Division 2) to the extent that the code permits the breeding to be done in
contravention of Part 3A.
(3) This section
does not apply to the sale of a prescribed companion animal in accordance with a
prescribed code of practice (other than a code of practice under Part 3A
Division 2) to the extent that the code permits the sale to occur in
contravention of Part 3A.
(4) In this section—
prescribed companion animal has the same meaning as in
Part 3A.
9—Amendment
of section 44—Regulations
(1) Section 44(2)(f)—after "Act" insert:
and provide for the waiver or remission of the whole or part of such
fees
(2) Section 44(5)—after "Minister" insert:
or a specified person or body
Schedule 1—Transitional
provisions
Part 1—Transitional
provisions
1—Certain
provisions of Act not to apply to certain companion animals
(1) Section 15F of the Animal
Welfare Act 1985 (as enacted by this Act) does not apply in
relation to an act or omission relating to a prescribed companion animal
occurring before the commencement of that section.
(2) Section 15I of the Animal
Welfare Act 1985 (as enacted by this Act) does not apply in
relation to a prescribed companion animal conceived, or the product of a mating
that occurred, before the commencement of that section.
(3) Section 15L of the Animal
Welfare Act 1985 (as enacted by this Act) does not apply in
relation to a prescribed companion animal born or conceived before the
commencement of that section.
(4) Section 15M(2) and (3) of the Animal
Welfare Act 1985 (as enacted by this Act) does not apply in
relation to a prescribed companion animal born before the commencement of that
section.
(5) Section 15N(2) of the Animal
Welfare Act 1985 (as enacted by this Act) does not apply in
relation to a written contract entered into before the commencement of that
section.