Animals and the Law

Laws concerning cruelty to animals are controlled by state governments . Each state has its own prevention of cruelty to animals act. The only areas where the Commonwealth Government makes laws in relation to matters such as quarantine when bringing animals into Australia, exporting animals as in the live sheep and cattle trade, or killing kangaroos for export.

Parts of the law – the Act

The law relating to animals in South Australia is made up of the act, now called the Animal Welfare Act, and a set of Regulations. Cruelty to animals is an offence under the Animal Welfare Act 1985, which was most recently amended in 2008. You can see a copy of this Act online at the South Australian government site.

The Act sets out a general definition of what constitutes cruelty. It is quite a long document, but article 13 from the 2008 amended act sums up the main definition :

3) Without limiting the generality of subsection 1) or 2), a person ill treats an animal if the person –

  1. intentionally, unreasonably or recklessly causes the animal unnecessary harm; or
  2. being the owner of the animal –
    1. fails to provide it with appropriate, and adequate, food, water, living conditions (whether temporary or permanent) or exercise; or
    2. fails to take reasonable steps to mitigate harm suffered by the animal; or
    3. abandons the animal; or
    4. neglects the animal so as to cause it harm; or
  3. having caused the animal harm (not being an animal of which that person is the owner), fails to take reasonable steps to mitigate the harm; or
  4. uses the animal in an organized animal fight; or
  5. releases the animal from captivity for the purpose if it then being hunted or killed; or
  6. causes the animal to be killed or injured by another animal; or
  7. kills the animal in a manner that causes the animal unnecessary pain; or
  8. unless the animal is unconscious, kills the animal by a method that does not cause death to occur as rapidly as possible; or
  9. carries out a medical or surgical procedure on the animal in contravention of the regulations; or
  10. ill treats the animal in any other manner prescribed by the regulations for the purposes of this section.”

If a person is found guilty of aggravated cruelty according to section 13, the maximum penalty is a fine of $50,000 or 4 years imprisonment, with the maximum penalty for lesser cruelty being $20,000 or 2 years imprisonment. However, if you examine the actual fines and sentences handed down, you’ll see that they are much lower. In addition to fines or imprisonment, a person may be ordered to pay court costs, or to do a certain number of hours of community service. Under section 36 of the Act, a person who is found guilty of an offence may be ordered to surrender their animals to the Crown, and may be prohibited from owning any animals of a particular species in future.

Before any prosecution is undertaken, an RSPCA inspector can issue a person with an Animal Welfare Notice under section 31B of the Act, which orders the person to improve the treatment of animals in specified ways. If the person fails to carry comply with the notice they can be prosecuted.

Parts of the law – the Regulations

Even more important than the AWA Act itself are the Regulations incorporated under this Act. The Animal Welfare Regulations 2000 set out more specific conditions for the treatment of particular animals, for example, laying hens or animals during transport. You can see a copy of the Regulations  on the South Australian government web site.

The regulations incorporate what are called Model Codes of Practice for the Welfare of Animals. The Codes are written at a national level, but it is up to each state whether or not they wish to incorporate these Codes into their laws.
In South Australia, the following national codes are incorporated into the Regulations, and therefore are declare to be legally enforceable:

  • Australian Model Code of Practice for the Welfare of Animals – the Pig
  • Australian Model Code of Practice for the Welfare of Animals – Cattle
  • Model Code of Practice for the Welfare of Animals – the Camel
  • Model Code of Practice for the Welfare of Animals – the Sheep
  • Model Code of Practice for the Welfare of Animals – Farmed Buffalo
  • Model Code of Practice for the Welfare of Animals – Husbandry of Captive Bred Emus
  • Model Code of Practice for the Welfare of Animals – Farming of Ostriches
  • Model Code of Practice for the Welfare of Animals – the Goat
  • Model Code of Practice for the Welfare of Animals – the Farming of Deer
  • Model Code of Practice for the Welfare of Animals – the Intensive Husbandry of Rabbits
  • Model Code of Practice for the Welfare of Animals – the Destruction or Capture, Handling and Marketing of Feral Livestock Animals
  • Model Code of Practice for the Welfare of Animals – Animals at Saleyards
  • Model Code of Practice for the Welfare of Animals – Livestock and Poultry at Slaughtering Establishments
  • Model Code of Practice for the Welfare of Animals – Land Transport of Horses
  • Model Code of Practice for the Welfare of Animals – Land Transport of Poultry
  • Model Code of Practice for the Welfare of Animals – Land Transport of Pigs
  • Model Code of Practice for the Welfare of Animals – Land Transport of Cattle
  • Australian Model Code of Practice for the Welfare of Animals – Road Transport of Livestock
  • Australian Model Code of Practice for the Welfare of Animals – Rail Transport of Livestock
  • Model Code of Practice for the Welfare of Animals – Sea Transport of Livestock
  • Model Code of Practice for the Welfare of Animals – Air Transport of Livestock
  • In addition, there are 3 codes written in SA incorporated into the Regulations:
  • South Australian Code of Practice for the Welfare of Animals in Circuses
  • South Australian Code of Practice for the Care and Management of Animals in the Pet Trade
  • South Australian Code of Practice for the Husbandry of Captive Birds

To summarise, the law relating to animals includes the:

  • Animal Welfare Act 1985, and
  • Animal Welfare Regulations 2000, which include some Codes of Practice written at the national level.

Intensive industries such as piggeries and battery hen establishments are clearly in breach of section 13 of the Animal Welfare Act. For example, the Act requires that animals be provided with appropriate and adequate exercise. It is common for sows in intensive piggeries to be kept in pens barely larger than their bodies, where exercise is impossible. However, this cruelty is made legally permissible by Codes of Practice and section 43 of the AWA, which states that Codes of Practice override the AWA. The Code of Practice for Pigs allows for extreme confinement of pigs. A person who kept a dog or cat in similar conditions as a battery hen or pig would undoubtedly be prosecuted for a breach of the AWA. The defense provided by section 43 and the cruelty which is institutionalised in the Codes of Practice are the greatest barrier to any real improvement in the welfare of animals in South Australia.
Another problem is that the Codes are worded in such a way that any prosecution is virtually impossible. For example, the Code of Practice for poultry transport states: 5.2.8 “Poultry should not be transported during the hottest part of the day on very hot days…”. However, when a member of the public picked up a chicken that fell off a truck at 1 pm when the temperature in the shade was 37.3°C, nothing was done. The chicken soon died in great distress, probably as a result of heat stress. According to the government’s Office of Animal Welfare, nothing could be done because the Code of Practice says “should” not be transported, not “must” not be transported. The wording of Codes is deliberately vague. The Codes of Practice merely give the impression that the welfare of certain animals is protected, whereas in reality the Codes can be ignored with impunity.

Problems with legal protection

Although animals supposedly have legal protection against cruelty, a lot of animal suffering exists either because of the inadequate ways laws are drafted, or the inadequate way they are enforced. These problems will be discussed under the following headings:

  • Omissions from the Act – the case of fish
  • Failure to apply the law – the cases of duck shooting and laboratory animals
  • Codes of Practice overrule the Act – the case of pigs
  • Inadequate enforcement of the law

Omissions from the Act – fish

Under the Act, ‘animal’ is defined as any vertebrate, except humans and fish. In other words, it includes all animals with a backbone in the classes of mammal, bird, reptile and amphibian, but not fish.
There is no scientific reason for excluding fish; on the contrary, there is very strong scientific evidence that fish feel pain and fear in much the same way as mammals do. (For more details on this point, go to Fish Feel Pain.)
Nevertheless, at present fish have no legal protection whatsoever. For example:

  • It is legal to leave fish to die of suffocation once on land, whereas death by suffocation would be quite unacceptable if inflicted on any other animal.
  • It is legal to use gaff hooks to dig into the flesh of live fish when they are hauled out of the water.
  • It is also legal to thread hooks through the body and even eyes of live fish to use them as bait for larger fish. (This practice is called ‘live baiting’.)

All these actions are cruel because they cause great pain and fear, but the law does not protect fish. According to sub-section 13.3(f) of the Act, live baiting would be illegal if done to any other vertebrate because a person is causing one animal to be killed or injured by another. The cruelty of live baiting is well illustrated in this description from “The Australian Magazine” (16/2/1991, p9):

” Kept alive by having salt water pumped through their gills, they have hooks stitched to the top of their heads by means of a sack needle passed through the eye socket. Then, with mouths sewn shut, they are towed behind the boats at a steady five knots. Sometimes they stay alive all day. If they begin to skitter in panic across the surface, observers know that something big is closing in. “

In spite of the pain and panic, this activity is legal because fish are excluded from the Act.

Failure to apply the Act – duck shooting

Although duck shooting is still legal, it inevitably results in cruelty and breaches of the Animal Welfare Act. According to section 13.3(g) of the Act, it is an offence to kill an animal in a manner which causes unnecessary pain. Section 13.3(h) of the Act states that it is an offence to fail to kill an animal as rapidly as possible. (Go to Duck Shooting for detailed evidence of the cruelty involved in this so-called sport.)
Thousands of ducks each year are not killed instantly when hit by one or more of the over 100 pellets fired with each shotgun blast. There are then several possible scenarios:

  1. The duck falls into the water and is picked up and killed some time later by the shooter.
  2. The duck falls into the water and is NOT found by the shooter. In this case, the duck may survive, but more likely will die in the hours or days following its injury.
  3. The duck is hit, but is able to fly on with one or more pellets in its body.

CSIRO and National Parks and Wildlife Service have X-rayed thousands of ducks caught in the wild before duck season . Depending on the species of duck, between 10% and 15% of all birds have shotgun pellets embedded in their flesh from previous shoots. Bearing in mind that many injured ducks were either killed by shooters or died of their wounds, this figure of 10% to 15% surviving with pellets shows that vast numbers of ducks are wounded and suffer unnecessary pain as a result of duck shooting.
When ducks are wounded and subsequently die or are killed, sections 13.3(g) and 13.3(h) of the Act are breached, because an animal is being killed in a manner that causes unnecessary pain and is not killed as rapidly as possible. When a duck is only wounded, sections 13.3(a) is breached, because the shooter is unreasonably causing unnecessary pain. However, no-one is ever charged with cruelty during duck shooting; breaches of the Act are conveniently neglected while this cruel “sport” continues to be legal.

Failure to apply the Code – laboratory animals

Specific guidelines covering animals in laboratories are contained in the Australian Code of Practice for the Care and Use of Animals for Scientific Purposes. Any proposal to use animals for research or teaching has to be submitted to an Animal Experimentation Ethics Committee, which is supposed to ensure that the proposal meets the requirements of the code of practice. You can download publications relating to animals used in experiments, including the Code of Practice, from the NHMRC web site.
The Code of Practice gives the impression that experiments are only allowed to go ahead if they are really important, and there are definitely no alternatives to using animals. Unfortunately this is not the reality. The following are some general requirements of the Code:

1.2 Projects using animals may be performed only after a decision has been made that they are justified, weighing the predicted scientific or educational value of the projects against the potential effects on the welfare of the animals.
1.8 Techniques that totally or partially replace the use of animals for scientific purposes must be sought and used wherever possible.
6.1.1 Animals are not to be used for teaching activities unless there are no suitable alternatives for achieving all of the educational objectives.”

According to these guidelines, Ethics Committees should be asking: Is this project worth doing? Will it provide information important enough to justify causing harm to animals? Has the researcher/teacher looked for non-animal alternatives?
Although these questions are required by the Code of Practice, they are rarely asked. There is a strong assumption that all research is useful and worth doing, but this is not the case, especially not when it causes harm to animals . This is not what the Code of Practice intends.
Clear examples of available alternatives not being used occur in the area of teaching. It is unbelievable that Ethics Committees are still approving animals for dissection when there are so many alternatives that are demonstrably at least as good. The same applies in many other areas of teaching. In spite of the evidence, Ethics Committees continue to approve animals for teaching merely on the say-so of teachers, without asking for evidence that they are necessary or that there are no alternatives.
In 2008, permission was still be given for the University of Queensland to kill pound dogs for the training of veterinary surgeons. Universities such as Sydney and Murdoch train vets without using such harmful methods. Many universities in the US train vets without killing dogs.

Another example of alternatives not being used highlights many of the problems in this area. For several years Animal Liberation tried to stop the use of mice to produce monoclonal antibodies. This painful procedure was banned in several European countries in the early 1990s because there is a good alternative method. However, Ethics Committees in Australia continued to approve the use of mice. Researchers confidently asserted that the new alternatives didn’t work, but made criticisms only relevant to a method developed in 1975 ! It was clear that they had made no effort to keep up with new technologies. Fortunately NH&MRC stepped in and proposed that it is was no longer acceptable for Ethics Committees to routinely approve the use of mice for this purpose.
Both the antibody and the teaching examples show that:

  1. non-specialists on Ethics Committees don’t have the required knowledge about alternatives;
  2. many researchers and teachers have little motivation to keep up to date on alternatives to animals and to learn new techniques to replace the animal methods they have used for years and years.

These factors result in the Code of Practice not being implemented.

Codes of Practice overrule the Act. Case study: pigs

There are major contradictions between the Codes and Article 13 of the Act, and when there is a contradiction it is the Code of Practice not the Act which prevails. As Article 43 of the Act states:

Nothing in this Act renders unlawful anything done in accordance with a prescribed code of practice relating to animals.”

So, if the Act says that it is an offence to fail to provide adequate and appropriate exercise, but the Codes of Practice say it is acceptable to keep pigs in confined spaces where exercise is impossible, then it is legal to keep pigs in confined spaces. The Code of Practice allows pigs to be kept permanently in the following conditions:

  • A fully grown sow may be kept in a stall measuring 0.6 by 2.2 metres, a space only slightly larger than her body, where she can’t walk or turn around. That this space doesn’t provide “adequate and appropriate” exercise is shown by the fact that there is a high level of lameness among sows.
  • Growing pigs may be kept in crowded group pens, with a pig weighing 100kg (more than most humans) needing to be given a living space of only 0.66 square metres. Imagine if a dog were permanently locked up in this way.

Abnormal behaviour and increased levels of lameness and bone problems show that this confinement and lack of exercise cause suffering. (For more detailed information on these points, go to Intensive piggeries .) So, if you happen to be a dog, the law makes sure that you receive adequate exercise, but if you’re unlucky enough to be a pig or a fowl you don’t have this luxury because the Codes of Practice override the protection offered by the Act.
According to the SA Animal Welfare Regulations (2000), it is an offence to cut off the tail of dogs, cattle or horses, and to clip the ears of any animal. However, according to the Code of Practice, it is legal to cut off the tails of piglets, to cut notches in their ears for identification, to clip teeth and to castrate males, all without any pain relief. If you did any of this to a dog, you would be prosecuted.
You can download (in pdf format) copies of the Codes of Practice relating to farm animals from the CSIRO site if you click on the link and type “Model Codes of Practice” into the search box on the left.

Other inconsistencies

Farm animals and any animal labeled a “pest” are particularly poorly protected by the law. For example:

  • The AWA Act states that animals should have shelter, yet there are far too many bare paddocks without any shelter whatsoever. Animals have no shade in the summer heat, and in winter they have no protection from cold, howling winds. Every year many sheep and lambs die in such unprotected paddocks, but the law does nothing to change this situation.
  • Various mutilations can be carried out on farm animals without anaesthetic, but would result in prosecution if done to a dog or cat. For example, tails are cut off sheep, testicles are cut off male sheep and cattle, skin folds are cut off the rear end of lambs in mulesing, horns are cut off cattle, and cattle are branded with red-hot irons. All of these mutilations are extremely painful.
  • So-called pest animals can be trapped or poisoned in ways that would be illegal if done to other animals. For example, steel-jaw traps may be set for dingoes in some areas of the state. The traps themselves are extremely painful and can break legs. According to the Regulations, they must be wrapped in strychnine soaked rags to kill their victims, but strychnine is a particularly nasty poison that causes severe convulsions in fully conscious animals.
  • Sheep and cattle are exported for slaughter to countries where it is well-known that the animals will be handled and killed in ways that breach Australian laws and standards. These animals receive little protection from the law.

The fact is that dogs and cats (pets) are fairly well covered by the law, but other animals are not nearly so well served. Human profit and convenience are placed before the prevention of cruelty.

Enforcement of the law

Charges of cruelty to an animal can only be laid by an Inspector under the Act. All police officers are automatically Inspectors, while others are appointed by the Minister responsible for animal welfare on the recommendation of the RSPCA. Some, but not all Inspectors are employees of the RSPCA. While police sometimes investigate cases in the country, they generally prefer to leave this area to the RSPCA.
The problem is that the RSPCA is a charity, running an animal shelter and a marine rescue centre. It is a large financial burden to also have to employ Inspectors to gather evidence, and to meet costs associated with court cases. Imagine if a charity caring for abused children also had to prosecute the abusers, or if a charity helping road accident victims also had to prosecute drunk and negligent drivers. It doesn’t make sense, yet this is the case with animal cruelty. Crimes against animals should be prosecuted in the same way as crimes against humans.
Part of the problem is that the RSPCA only has a limited number of full-time Inspectors for the whole of South Australia, although there are also a number of honorary (unpaid) Inspectors as well. This shortage of Inspectors limits the number and type of inspections that can be carried out. The RSPCA tends to focus on straight-forward breaches of the law by individuals, such as someone not feeding their dog or horse properly, or someone conducting dog or cock fights. What the RSPCA hasn’t done is systematically inspect businesses where large numbers of animals are kept, such as pig or poultry sheds.
According to the latest amendment of the AWA Act (2008), inspectors can carry out routine inspections of animal sheds if they give “reasonable notice of the proposed inspection”. It is not clear what constitutes “reasonable” notice. In the past, RSPCA inspectors gave farmers several days notice when a complaint was made, giving the farmers time to clean sheds, fix outstanding problems and dispose of sick and injured animals. It remains to be seen whether the RSPCA has the will and the means to carry out useful routine inspections to ensure all animals are treated according to the law.
There is also a problem of accountability when a private charity enforces a public law. According to the latest amendment of the AWA Act (2008), when someone reports a breach of the law, the investigating inspector must tell the person what action was taken in response to the report (43A). However, if the person is not happy about the action taken, it is not clear what more they can do. In contrast, if I am unhappy about treatment received from police officers or the way officers carried out their job, there is an official channel for complaints. Such complaints will be investigated by the Police Complaints Authority and the person complaining will receive a written report. If I make complaints to government authorities, I can use Freedom or Information legislation to get relevant documents or make a complaint to the ombudsman if I am not satisfied. These channels are not available in the case of the RSPCA. So, a whole area of the law (cruelty to animals) is not open to public scrutiny because it is being enforced by a private charity.
If the State government is serious about enforcing its own Animal Welfare Act, then it must make available sufficient funds to employ more inspectors. It must also take on the responsibility of prosecuting people charged with cruelty, because a charity can’t be expected to take on major court cases, which can be drawn-out and costly. It must improve processes of accountability in enforcing the law relating to animals.