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PRIMARY INDUSTRIES ACTS (AMENDMENT) BILL 2005

    Primary Industries Acts (Amendment) Bill

                        Introduction Print

              EXPLANATORY MEMORANDUM


                               Clause notes

                      PART 1--PRELIMINARY
Clause 1   sets out the purposes of the Bill.

Clause 2   provides for most provisions of the Bill to come into operation on
           the day after the day on which the Bill receives the Royal Assent.
           Clause 10 will come into operation on a day to be proclaimed
           with a forced commencement date of 31 March 2007.
           The delayed commencement provides time for regulations to be
           made to support the amendments in clause 10 before that clause
           commences.

     PART 2--AMENDMENTS TO THE PREVENTION OF
             CRUELTY TO ANIMALS ACT 1986
Clause 3   inserts new sections 12A and 12B into the Prevention of
           Cruelty to Animals Act 1986. New section 12A enables a
           minister responsible for administering a law of another
           Australian jurisdiction that substantially corresponds with
           section 12 of the Prevention of Cruelty to Animals Act 1986
           (a "corresponding law") to request the responsible Minister under
           the Prevention of Cruelty to Animals Act 1986 to register a
           court order made under that corresponding law. (Section 12 of
           the Prevention of Cruelty to Animals Act 1986 enables a court
           to make an order that a person be disqualified from having
           custody of an animal or that such custody is subject to certain
           conditions and that contravention of the order is an offence.)
           The interstate order is then enforceable under new section 12A.
           New section 12B provides for the Governor in Council to declare
           a law of another State or Territory to be a corresponding law for
           the purposes of new section 12A.




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551257                                          BILL LA INTRODUCTION 3/5/2005

 


 

Clause 4 amends the search warrant provisions in section 21A of the Prevention of Cruelty to Animals Act 1986 to replace references to "in the premises" with "in or on the premises" in order to make the language in section 21A consistent with the other enforcement provisions in that Act. Clause 5 substitutes section 21B of the Prevention of Cruelty to Animals Act 1986 for consistency with new section 24L. This section enables an inspector or other person named in a warrant authorised under section 21A to execute the warrant without an announcement or giving a person on the premises an opportunity to allow entry if immediate entry is required to ensure the safety of a person or effective execution of the warrant. Clause 6 inserts new sections 21D to 21M into the Prevention of Cruelty to Animals Act 1986 to provide for the seizure, destruction and forfeiture of a thing (including an animal) believed to have been used in connection with the commission of an offence against that Act or the regulations under that Act. New section 21D enables an inspector to seize any thing (including an animal) he or she reasonably believes has been used in connection with the commission of an offence under the Prevention of Cruelty to Animals Act 1986 or the regulations under that Act. New section 21E requires an inspector to provide a receipt for a seized thing that identifies the thing, provides the name of the inspector and states the reason for the thing being seized. New section 21F requires an inspector to provide, in certain circumstances, a copy of a seized thing or information stored on a seized thing to its owner or custodian unless the inspector is unable to discover the identity of the owner or custodian. If it is not practicable to provide a copy the inspector must give a receipt for the thing to the person from whom it was seized. A copy of a paper document is to be certified as an accurate copy by the inspector and is evidence of equal validity to the original in a court or tribunal. New section 21G requires an inspector who has seized a thing and has possession or control of the thing to allow a person otherwise entitled to possession of the thing to have reasonable access to it if it is practicable to do so. New section 21H provides for the return of a seized thing before the commencement of proceedings against a person for an offence in relation to which the thing was seized by means of an application to the Magistrates' Court by a person entitled to possession of the thing. 2

 


 

New section 21I requires an inspector to take reasonable steps to return a seized thing if the reason for its seizure no longer exists or within 60 days of seizure unless proceedings commenced within that period or any extended period under new section 21J have not been completed or the retention period has been extended by a court under new section 21J or the possession, use or setting of the thing is an offence against the Prevention of Cruelty to Animals Act 1986 or the regulations under that Act or the thing is forfeited to the Crown under new section 21M. New section 21J enables the Magistrates' Court to extend the period during which the inspector may retain a seized thing for a period or periods up to a maximum of 12 months from the day of seizure if the court is satisfied that retention of the thing is necessary for the purposes of the investigation in relation to which the thing was seized. New section 21K applies where there is a dispute as to whom a seized thing should be returned. It permits any person seeking possession of the thing to apply to the Magistrates' Court for an order that the thing be given to that person. Persons who may reasonably have a claim must be notified of the application and the Court may order the return of the thing to the person it is satisfied has the best claim to possession of the thing. New section 21L provides for the sale or destruction of a seized thing that has not been claimed by the person from whom it was seized within 12 months after notice is given to them or if 12 months after the end of the retention period that person has not been identified and located. A seized thing that is an animal may be destroyed at any time after it is seized on humane grounds or if it is diseased. New section 21M provides for a court to order that a thing seized under the Act be forfeited to the Crown and for the proceeds of any sale of a forfeited thing to be paid into the Consolidated Fund after the deduction of any specified costs that apply. Clause 7 amends sections 22A(1)(a) and 22A(2) of the Prevention of Cruelty to Animals Act 1986 to enable a specialist inspector to exercise the powers in new sections 21D, 24K, 24N and 24O in the same manner as an inspector. Clause 8 amends section 24E(1) of the Prevention of Cruelty to Animals Act 1986 by replacing "Secretary" with "Department Head". 3

 


 

Clause 9 inserts new sections 24K to 24Q into the Prevention of Cruelty to Animals Act 1986 to provide for the seizure, sale and destruction of an animal held in contravention of section 12(7) or new section 12A(8) (breaching a court order or a registered interstate court order). New section 24K provides for a magistrate to issue a warrant authorising an inspector to enter premises and seize an animal if the magistrate is satisfied that there are reasonable grounds to believe that an animal is being held in contravention of section 12(7) or new section 12A(8). New section 24L requires an inspector executing a warrant under new section 24K to announce that he or she is authorised under the warrant to enter and give any person at the premises the opportunity to allow entry unless immediate entry is required to ensure the safety of any person or the effective execution of the warrant. New section 24M requires an inspector to identify himself or herself to any occupier present at premises where a warrant under new section 24K is being executed and to give the occupier a copy of the warrant. If the occupier is absent but another person is present at the premises, the inspector must identify himself or herself to the person and give the person a copy of the warrant. New section 24N applies where a person has been found guilty of an offence against section 12(7) or new section 12A(8) and provides for the Department Head to authorise the sale by an inspector of an animal seized under new section 24K. The inspector may sell the seized animal by public auction or public tender but must provide at least 14 days public notice of the sale. New section 24O provides for the Department Head to authorise the destruction of a seized animal by an inspector if a person has been found guilty of an offence against section 12(7) or new section 12A(8) in respect of the animal. New section 24P enables the costs incurred in the maintenance, care, removal, transport, sale or destruction of a seized animal that are not recovered from the sale of the animal to be recovered from the owner as a civil debt recoverable summarily. New section 24Q provides that the various processes, rights and obligations set out in new sections 21E, 21G, 21I, 21J, 24K and 21L that relate to a thing seized by warrant under new section 21D also apply to an animal seized by warrant under new section 24K. 4

 


 

PART 3--AMENDMENTS TO THE DOMESTIC (FERAL AND NUISANCE) ANIMALS ACT 1994 Clause 10 amends section 19(2) of the Domestic (Feral and Nuisance) Animals Act 1994 to provide that a "menacing dog" must be identified by a prescribed permanent identification device. Clause 11 inserts new sub-section (3A) in section 77 of the Domestic (Feral and Nuisance) Animals Act 1994 to provide that a cat may be seized where it is found outside its owner's premises without identification. Section 79(2) of the Domestic (Feral and Nuisance) Animals Act 1994 is amended to provide that an owner may recover a cat seized under new section 77(3A). Section 80(1) of the Act is amended to provide that the Council may sell or destroy a cat seized under new section 77(3A) in certain circumstances. Clause 12 substitutes new section 80(3) of the Domestic (Feral and Nuisance) Animals Act 1994 to provide that where the owner of a dog seized on suspicion of an offence is able to be identified but not located, the Council must serve on the owner at his or her last known address notice of the seizure of the dog, the offence the owner is suspected of committing and the possible destruction of the dog if the owner's current address is not provided to the Council within 14 days of the notice being served. New sub-section (3A) is inserted into section 80 of the Domestic (Feral and Nuisance) Animals Act 1994 to provide that a dog seized on suspicion of an offence by its owner with regards to the control of dangerous or restricted breed dogs or the setting on or training of a dog to attack, can be destroyed in 2 circumstances. The dog may be destroyed if the owner has not provided his or her current address in response to a notice served under new section 80(3)(b). The dog may also be destroyed if the owner is unable to be identified from a marker attached to, or a device implanted in, the dog, and if the Council has not received sufficient information about the owner to prosecute the owner within 8 days after the dog has been seized. 5

 


 

PART 4--AMENDMENTS TO THE FISHERIES ACT 1995 Clause 13 amends section 68A of the Fisheries Act 1995 to provide that offences relating to size and catch limits apply in relation to size and catch limits set by fisheries notices as well as size and catch limits specified in the regulations. Clause 14 inserts new sections 102(6A),102(6B) and 102(6C) into the Fisheries Act 1995. New section 102(6A) enables an authorised officer to require a person to produce a document which the officer reasonably believes to be relevant to ascertaining whether or not that Act, the regulations under that Act or a fisheries notice are being observed. New section 102(6B) abrogates the privilege against self- incrimination for any record produced under section 102(6) or document produced under new section 102(6A). However, a use-immunity provision is included for a document produced under section 102(6A). This provision will enable a natural person to claim, before producing such a document, that the production of the document would tend to incriminate the person or make the person liable to a penalty. The document is not then admissible in evidence against the person in criminal or civil proceedings or in proceedings for the imposition of a penalty except in relation to the offence of providing false or misleading information. This will enable documents to be obtained, for example, from a person who may have records about the transport of high value fish such as abalone. The documents would not be able to be used as evidence against the person but may be used as evidence of non-compliance with the Fisheries Act 1995 by a third party. If the privilege against self- incrimination is not abrogated, the person could refuse to provide documents on the grounds that they provide evidence of a failure to comply with a non-fisheries related offence, thereby frustrating the purposes of the provision. Clause 15 amends section 152 of the Fisheries Act 1995 to specifically provide that a fisheries notice can set minimum and maximum size limits for the taking of fish. 6

 


 

 


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