ANIMAL WELFARE LEGISLATION AMENDMENT BILL 2011

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This is a Bill, not an Act. For current law, see the Acts databases.

ANIMAL WELFARE LEGISLATION AMENDMENT BILL 2011

2011

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Ms Caroline Le Couteur)

Animal Welfare Legislation Amendment Bill 2011

Contents

Page

2011

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Ms Caroline Le Couteur)

Animal Welfare Legislation Amendment Bill 2011

A Bill for

An Act to amend legislation about animal welfare

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1 Preliminary

1 Name of Act

This Act is the Animal Welfare Legislation Amendment Act 2011.

2 Commencement

(1) This Act (other than parts 3 to 5) commences on the day after its notification day.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

(2) Parts 3 to 5 commence 1 year after this Act’s notification day.

3 Legislation amended

This Act amends the following legislation:

• Animal Welfare Act 1992

• Domestic Animals Act 2000

• Domestic Animals Regulation 2001

• Magistrates Court (Domestic Animals Infringement Notices) Regulation 2005.

Part 2 Animal Welfare Act 1992

4 New division 2.1 heading

before section 7, insert

Division 2.1 Animal welfare offences

5 Cruelty

Section 7, penalty

substitute

Maximum penalty: 200 penalty units, imprisonment for 1 year or both.

6 Aggravated cruelty

Section 7A (1) and (2), penalty

substitute

Maximum penalty: 400 penalty units, imprisonment for 2 years or both.

7 New section 9B

insert

9B Keeping pigs—appropriate accommodation

(1) A person commits an offence if the person—

(a) keeps a pig; and

(b) does not keep the pig in appropriate accommodation.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(2) In this section:

appropriate accommodation, for a pig kept by a person, means accommodation—

(a) that allows the pig to—

(i) turn around, stand up and lie down without difficulty; and

(ii) have a clean, comfortable and adequately drained place in which it can lie down; and

(iii) maintain a comfortable temperature; and

(iv) have outdoor access; and

(b) if the accommodation is for more than 1 pig—that allows each pig in the accommodation to lie down at the same time; and

(i) the pig is isolated on the advice of a veterinary surgeon; or

(ii) the pig is a sow or gilt and it is a week before, or during, farrowing for the sow or gilt.

gilt means a female pig after puberty but before farrowing.

sow means a female pig that has had 1 or more litters.

8 Exception—conduct in accordance with approved code of practice or mandatory code of practice

New section 20 (aa)

before section 20 (a), insert

(aa) section 9B (Keeping pigs—appropriate accommodation);

9 New section 20A

in part 2, insert

20A Conduct not in accordance with code of practice may be considered

In deciding whether conduct engaged in by a person makes up an offence under this part, evidence that the conduct was not in accordance with an approved code of practice or mandatory code of practice that relates to the conduct may be considered.

Note Failure to comply with a mandatory code of practice is an offence (see s 24A and s 24B).

10 New division 2.2

before part 3, insert

Division 2.2 Reporting animal welfare offences

20B Veterinary surgeons to report suspected animal welfare offences

(1) This section applies if a veterinary surgeon believes on reasonable grounds that an offence under division 2.1 (Animal welfare offences) has been committed in relation to an animal in the veterinary surgeon’s care.

(2) The veterinary surgeon must, as soon as practicable after forming the belief, report to the authority—

(a) details about the animal and the offence the veterinary surgeon believes has been committed; and

(b) the name and address of the animal’s owner (if known); and

Maximum penalty: 5 penalty units.

(3) Subsection (2) does not apply if the veterinary surgeon believes on reasonable grounds that someone else has made a report to the authority about the animal in relation to the offence based on the same reasons.

(4) A veterinary surgeon who makes a report under subsection (2) honestly and without recklessness does not incur civil or criminal liability only because of the making of the report.

Note Giving false or misleading information to the authority is an offence (see Criminal Code, s 338).

11 New part 2A

insert

Part 2A Other offences

20C Definitions—pt 2A

In this part:

approved animal welfare organisation—see the Domestic Animals Act 2000, section 73.

licensed breeder—see the Domestic Animals Act 2000, dictionary.

licensed premises, of a licensed breeder—see the Domestic Animals Act 2000, section 73E (1) (a).

market includes—

(a) a fair; and

(b) an event similar to a market or fair; and

premises includes boat.

Note Premises is also defined in the dictionary. The definition in this section extends the dictionary definition.

sell by retail includes—

(a) barter or exchange; and

(b) supply for profit; and

(d) consign or deliver for sale; and

(e) have in possession for sale.

shop means any premises used wholly or mainly for sale by retail of goods or animals, or at which goods or animals are sold by retail on more than 1 occasion, but does not include the following:

(a) premises occupied by an approved animal welfare organisation;

(b) premises at which a veterinary surgeon—

(i) provides health services within the meaning of the Health Professionals Act 2004; and

(ii) sells surrendered or abandoned animals;

20D Displaying animal in shop window

A person commits an offence if the person displays an animal in a shop window.

Maximum penalty: 50 penalty units.

20E Selling or displaying animal at market

(1) A person commits an offence if the person sells an animal at a market.

Maximum penalty: 50 penalty units.

(2) A person commits an offence if the person displays an animal for sale at a market.

Maximum penalty: 50 penalty units.

(3) Subsection (2) does not apply to a person if the person displays an animal at a market for an approved animal welfare organisation.

(4) In this section:

animal does not include a domestic fowl.

sell means transfer ownership by any means, whether with or without consideration, and includes agree to sell.

Examples—transfer of ownership

1 by gift

2 by exchange

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

20F Basic care information about animals

(1) The Minister may determine information about basic care for an animal (basic care information).

(2) Before determining basic care information for an animal, the Minister must consult with an expert in the care of an animal of that kind.

(3) A determination is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

20G Failing to display notice about or give basic care information

(1) A person commits an offence if the person—

(a) offers or exposes an animal for sale at a shop; and

(b) does not display a visible notice at a point of sale at the shop that includes a statement to the effect that basic care information for the animal is available on request.

Maximum penalty: 20 penalty units.

Note It is an offence to sell a dog or cat from a shop unless it is sold on behalf of an approved animal welfare organisation (see Domestic Animals Act 2000, s 80B).

(2) A person commits an offence if —

(a) the person offers or exposes an animal for sale at a shop; and

(b) someone else asks the person for basic care information for the animal; and

Maximum penalty: 20 penalty units.

(3) A person commits an offence if the person—

(a) sells an animal at a shop; and

(b) does not give the person to whom the animal is sold basic care information for the animal.

Maximum penalty: 20 penalty units.

(4) A licensed breeder commits an offence if the breeder—

(a) sells an animal; and

(b) does not give the person to whom the animal is sold basic care information for the animal.

Maximum penalty: 20 penalty units.

(5) An offence against this section is a strict liability offence.

(6) In this section:

animal means—

(a) a live member of a vertebrate species, including—

(i) an amphibian; and

(ii) a bird; and

(iii) a fish; and

(iv) a mammal (other than a human being); and

(v) a reptile; or

(b) a live cephalopod; or

basic care information, for an animal—see section 20F.

point of sale, at a shop, means a place where animals are sold within the shop.

sell—see section 20E (4).

visible notice, at a point of sale, means a notice that is displayed prominently so that it can be seen and read easily by a person at or near the point of sale.

12 Dictionary, new definitions

insert

approved animal welfare organisation, for part 2A (Other offences)—see section 20C.

licensed breeder, for part 2A (Other offences)—see section 20C.

13 Dictionary, definition of licensed premises

substitute

licensed premises—

(a) for this Act generally—see section 27 (Decision about licence application); and

(b) of a licensed breeder, for part 2A (Other offences)—see section 20C.

14 Dictionary, new definition of market

insert

market, for part 2A (Other offences)—see section 20C.

15 Dictionary, definition of premises, paragraph (b)

substitute

(b) for part 2A (Other offences)—see section 20C; and

16 Dictionary, new definitions

insert

sell by retail, for part 2A (Other offences)—see section 20C.

shop, for part 2A (Other offences)—see section 20C.

Part 3 Domestic Animals Act 2000

17 Requirement to be licensed

New section 18 (2) (g)

insert

(g) a dog kept by a person under a breeders licence.

18 Section 58

substitute

58 Seizure—contravention of multiple dog licence

An authorised person may seize a dog that is being kept with 3 or more other dogs in contravention of section 18 (Requirement to be licensed) if satisfied on reasonable grounds that the dog’s welfare is being adversely affected by the conditions in which it is being kept.

19 New division 3.1, heading

before section 73, insert

Division 3.1 Preliminary

20 Section 73

substitute

73 Definitions—pt 3

In this part:

advertising approval—see section 80E.

approved animal welfare organisation means any of the following:

(a) the Royal Society for the Prevention of Cruelty to Animals (ACT) Inc;

(b) an administrative unit that operates a facility for the holding of lost, stray, abandoned or surrendered animals;

(c) a not-for-profit organisation that has among its objects the promotion of the welfare of, or the prevention of cruelty to, animals;

(d) an entity approved under section 73A.

authorised seller means any of the following:

(a) an approved animal welfare organisation;

(b) a veterinary surgeon who sells surrendered or abandoned animals;

(d) the registrar;

(e) a licensed breeder.

defined offence means—

(a) an offence against this Act or the Animal Welfare Act 1992; or

(b) an offence in relation to animal welfare under another territory law or a Commonwealth or State law.

de-sex, in relation to a dog or cat, includes perform a vasectomy or tubal ligation on the dog or cat.

executive officer, of a corporation, means a person (however described) who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director of the corporation.

identifying microchip—see the Domestic Animals Regulation 2001, section 10.

licensed premises, of a licensed breeder—see section 73E (1) (a).

permit means a permit issued under this part.

sell means transfer ownership by any means, whether with or without consideration, and includes agree to sell.

Examples—transfer of ownership

1 by gift

2 by exchange

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

sell by retail includes—

(a) barter or exchange; and

(b) supply for profit; and

(d) consign or deliver for sale; and

(e) have in possession for sale.

selling approval—see section 80E.

(a) premises occupied by an approved animal welfare organisation;

(b) premises at which a veterinary surgeon—

(i) provides health services within the meaning of the Health Professionals Act 2004; and

(ii) sells surrendered or abandoned animals;

73A Approval of animal welfare organisations

(1) An entity may apply to the registrar for approval as an animal welfare organisation.

(2) The registrar may approve an application under subsection (1) if satisfied on reasonable grounds that the entity has relevant experience and competency in caring for and handling dogs or cats that have been mistreated or abandoned.

(3) An approval is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

21 New division 3.2

before section 74, insert

Division 3.2 Breeders licences

Subdivision 3.2.1 Breeders licences—general

73B Offence—breeding dog or cat for sale without licence

(1) A person commits an offence if the person—

(a) breeds a dog or cat for sale; and

(b) does not have a breeders licence to breed the dog or cat.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(2) This section does not apply to a person if—

(a) the person rescues a pregnant dog or pregnant cat from mistreatment or abandonment; and

(b) the dog or cat bred for sale was born as a result of that pregnancy.

73C Ethical breeding standards

(1) The Minister may determine standards (the ethical breeding standards) to be met by licensed breeders.

(2) A determination is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

73D Breeders licences—application

(1) A person may apply to the registrar for a licence to breed, at stated premises, a dog or cat for sale.

Note 1 If a form is approved under s 147 for an application, the form must be used.

Note 2 A fee may be determined under s 144 for this provision.

(2) The application must contain the person’s written consent for an authorised person to inspect the stated premises (unless the application is for renewal of a licence and the licensed premises are the stated premises).

(3) The registrar may, in writing, require the applicant to give the registrar additional information in writing or documents that the registrar reasonably needs to decide the application.

Note The Legislation Act, s 170 and s 171 deal with the application of the privilege against selfincrimination and client legal privilege.

(4) If the applicant does not comply with a requirement under subsection (3), the registrar may refuse to consider the application further.

73E Breeders licences—decision on application

(1) On an application by a person for a breeders licence, the registrar must—

(a) issue the licence for the premises stated in the application (the licensed premises); or

(b) refuse to issue the licence.

(2) The registrar must not issue the licence unless satisfied of each of the following in relation to dogs or cats to be bred under the licence:

(a) that the applicant will not breed more dogs or cats than is appropriate having regard to—

(i) the welfare of the parent dogs and cats; and

(ii) the applicant’s capacity to find homes for all the dogs and cats bred;

(b) that the applicant will only breed from dogs or cats that are healthy and genetically sound;

(d) that the dogs or cats will be cared for appropriately, including being provided with a nutritious diet, adequate opportunities for exercise and socialisation for physical and mental wellbeing, and vaccinations and worming medication;

(e) that the dogs or cats will be kept in appropriate accommodation;

(f) that the applicant will not allow puppies or kittens to leave the applicant’s premises before they are 8 weeks old;

(g) that the arrangements for the provision of veterinary treatment to the dogs or cats will be adequate to maintain them in good health.

(3) In deciding whether to issue the licence, the registrar must also consider each of the following:

(a) the applicant’s experience and competency in breeding, caring for and handling dogs or cats;

(b) the adequacy of the premises stated in the application, equipment and other facilities for breeding, caring for and handling dogs or cats;

(d) whether the applicant has been disqualified from keeping animals under section 138A;

(e) whether an order has been made in relation to the applicant under the Animal Welfare Act 1992, section 101 (3) (Animal offences—court orders (general)) or section 104A (Court orders—offences involving violence);

(f) whether the applicant has been convicted or found guilty of a defined offence;

(g) whether the applicant will comply with the ethical breeding standards.

(4) Subsections (2) and (3) do not limit the matters that the registrar may consider.

(5) The registrar must refuse to issue the licence if the registrar believes on reasonable grounds that refusal is reasonable or necessary in the interests of animal welfare.

(6) In this section:

applicant includes, if the applicant is a corporation, each executive officer of the corporation.

appropriate accommodation, for a dog or cat, means accommodation that—

(a) is suitable for the dog or cat, based on its age, anatomy and behaviour; and

(b) allows the dog or cat space to exercise regularly; and

(d) includes adequate bedding; and

(e) for accommodation that is indoors—

(i) allows the dog or cat to maintain a comfortable temperature; and

(ii) has appropriate lighting and ventilation; and

(f) for outdoor accommodation for a dog—has adequate protection from rain, wind, direct sunlight and extremes of temperature; and

(g) for outdoor accommodation for a cat—is at least 9m² and 1.8m high for 1 to 3 cats, with an additional 2m² for each additional cat; and

(h) complies with the ethical breeding standards.

ethical breeding standards—see section 73C.

issue includes issue by way of renewal.

renewal, of a licence, means the issue of the licence that is to begin on the day after the day the licence being renewed ends.

73F Breeders licences—conditions

(1) A breeders licence is subject to any condition—

(a) prescribed by regulation; or

(b) put on the licence by the registrar that the registrar believes on reasonable grounds is reasonable or necessary in the interests of animal welfare.

Examples—conditions that may be put on a breeders licence

1 a condition about the welfare of the dogs or cats to be bred by the licensed breeder

2 that an approved code of practice must be complied with

Note 1 The registrar may amend a breeders licence (including by putting a condition on the licence, or amending or removing a condition of the licence) at any time (see s 73L).

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) A breeders licence issued to a person is also subject to the following conditions:

(a) if the licence is issued to the person for the first time—that the person must allow an authorised person to enter the licensed premises to inspect the premises within 6 months after the day the licence is issued; and

(b) if the licensed premises stated in the licence change—that the person must allow an authorised person to enter the new licensed premises to inspect the premises within 6 months after the day the premises change.

73G Breeders licences—form

A breeders licence must—

(a) be in writing; and

(b) state the full name and address of the person to whom the licence is issued; and

(d) state the period for which the licence is issued; and

(e) provide a unique identifying number for the licence; and

(f) state any condition put on the licence by the registrar.

73H Breeders licences—term

A breeders licence is issued for the period of not longer than 3 years stated in the licence, and remains in force subject to this Act.

73I Licensed breeders—request for information and documents

The registrar may, in writing, require a licensed breeder to give the registrar information in writing or documents that the registrar reasonably needs to exercise the registrar’s functions under this Act in relation to the breeder’s licence.

Example—information or documents

information about when a dog was examined by a veterinary surgeon

Note 1 The Legislation Act, s 170 and s 171 deal with the application of the privilege against selfincrimination and client legal privilege.

Note 2 A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).

Note 3 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

73J Breeders licences—renewal

(1) This section applies if—

(a) a licensed breeder makes an application under section 73D (Breeders licences—application); and

(b) the application is for renewal of the breeder’s licence; and

(2) The licence remains in force, subject to this Act, until the application is decided under section 73E (Breeders licences—decision on application).

(3) If the registrar issues the licence applied for, the renewal of the licence begins on the day after the day the licence being renewed ends.

(4) A suspended licence may be renewed, but the renewed licence is suspended until the suspension ends.

(5) In this section:

renewal, of a breeders licence, means the issue of the licence that is to begin on the day after the licence being renewed ends.

73K Breeders licences—licensed breeder to notify change of name, address or licensed premises etc

(1) If a licensed breeder changes the breeder’s name, address or licensed premises, the breeder must, as soon as practicable but not later than 14 days after the day the change happens, tell the registrar, in writing, about the change.

Maximum penalty: 10 penalty units.

(2) An offence against this section is a strict liability offence.

(3) The licensed breeder must return the licence to the registrar for amendment as soon as practicable, but not later than 14 days, after telling the registrar about the change.

73L Breeders licences—amendment in interests of animal welfare

(1) The registrar may amend a breeders licence at any time in accordance with this section if the registrar believes on reasonable grounds that the amendment is reasonable or necessary in the interests of animal welfare.

(2) The registrar may amend a licence on the registrar’s own initiative or on application by the licensed breeder.

Note 1 If a form is approved under s 147 for an application, the form must be used.

Note 2 A fee may be determined under s 144 for this provision.

(3) The registrar may amend a breeders licence on the registrar’s own initiative if the registrar has—

(a) given the licensed breeder written notice of the proposed amendment; and

(b) considered any comments made by the licensed breeder in accordance with the notice.

(4) The notice mentioned in subsection (3) (a) must—

(a) include the registrar’s grounds for making the proposed amendment; and

(b) invite the licensed breeder to give the registrar any comments about the amendment before the end of a stated period of at least 14 days after the notice is given to the breeder.

(5) Subsection (3) does not apply to action under section 73P (Breeders licences—taking regulatory action).

Note Section 119 provides that the registrar must give written notice of the decision to each person affected by the decision.

(6) The amendment of a licence takes effect on—

(a) the day the notice of the decision to amend is given to the licensed breeder; or

(b) if the notice states a later date of effect—that date.

(7) A licence amended under this section must be returned to the registrar as soon as practicable, but not later than 7 days after the day the notice of the decision to amend is given to the licensed breeder.

(8) In this section:

amend, a licence, includes putting a condition on the licence, or amending or removing a condition of the licence.

condition does not include a condition prescribed by regulation.

73M Breeders licences—surrender

(1) A licensed breeder may surrender the licence by giving the registrar written notice of the surrender and the licence.

(2) The surrender takes effect on—

(a) the day the notice is given to the registrar under subsection (1); or

(b) if the notice states a later date of effect—that date.

Subdivision 3.2.2 Breeders licences—regulatory action

73N Breeders licences—grounds for regulatory action

Each of the following is a ground for regulatory action against a licensed breeder:

(a) the breeder gave information to the registrar in relation to the application for the issue or renewal of the breeder’s licence that was false or misleading in a material particular;

(b) the breeder contravened a condition of the breeder’s licence;

(c) the breeder did not return the breeder’s licence as required under section 73L (7) (Breeders licences—amendment in interests of animal welfare);

(d) the breeder has been convicted or found guilty of a defined offence—

(i) within the 3 years immediately before the date of the application for the breeder’s licence; or

(ii) while a licensed breeder; or

(iii) during any suspension of the breeder’s licence;

(e) if the registrar believes on reasonable grounds that it would refuse an application by the breeder for a breeders licence on the grounds mentioned in section 73E (2), (3) (a), (b), (d), (e) or (f) or (4) (Breeders licences—decision on application).

73O Breeders licences—regulatory action

Each of the following is regulatory action when taken against a licensed breeder:

(a) putting a condition on, or amending a condition put on, the breeder’s licence;

(b) suspending the breeder’s licence for a stated period or until a stated thing happens;

(d) cancelling the breeder’s licence and disqualifying the breeder from applying for a breeders licence for a stated period or until a stated thing happens.

73P Breeders licences—taking regulatory action

(1) If the registrar proposes to take regulatory action in relation to a licensed breeder, the registrar must give the breeder a written notice (a regulatory notice) that—

(a) states the details of the proposed regulatory action; and

(b) states the grounds for the proposed regulatory action; and

(c) tells the breeder that the breeder may, not later than 14 days after the day the breeder is given the notice, give a written response to the registrar about the proposed regulatory action.

(2) In deciding whether to take the proposed regulatory action, the registrar must consider any response given to the registrar in accordance with the regulatory notice.

(3) If the registrar believes on reasonable grounds that a ground for taking the proposed regulatory action has been established in relation to the licensed breeder, the registrar may—

(a) take the regulatory action stated in the regulatory notice; or

(b) if the proposed regulatory action is the cancellation of the breeder’s licence and disqualification mentioned in section 73O (d)—

(i) cancel the licence; or

(ii) suspend the licence as mentioned in section 73O (b); or

(iii) put a condition on, or amend a condition put on, the licence; or

(i) suspend the licence as mentioned in section 73O (b); or

(ii) put a condition on, or amend a condition put on, the licence; or

(d) if the proposed regulatory action is the suspension of the breeder’s licence as mentioned in section 73O (b)—

(i) suspend the licence for a shorter period; or

(ii) put a condition on, or amend a condition put on, the licence.

Note Section 119 provides that the registrar must give written notice of the decision to each person affected by the decision.

(4) Regulatory action under this section takes effect on—

(a) the day the notice of the decision is given to the licensed breeder; or

(b) if the notice states a later date of effect—that date.

(5) In this section:

ground for regulatory action against a licensed breeder—see section 73N (Breeders licences—grounds for regulatory action).

regulatory action—see section 73O (Breeders licences—regulatory action).

73Q Breeders licences—immediate suspension

(1) This section applies if—

(a) the registrar gives, or has given, a regulatory notice under section 73P to a licensed breeder; and

(b) having regard to the grounds stated in the notice, the registrar believes on reasonable grounds that the breeder’s licence should be suspended immediately in the interests of animal welfare.

(2) The registrar must give the breeder a written notice (the immediate suspension notice) suspending the breeder’s licence.

(3) The suspension of a breeder’s licence under this section takes effect when the immediate suspension notice is given to the breeder.

(4) The suspension of a breeder’s licence under this section ends—

(a) if regulatory action is taken against the breeder under section 73P because of the regulatory notice—when the regulatory action takes effect, or 30 days after the day the immediate suspension notice is given to the breeder, whichever is the earlier; or

(b) if regulatory action is not taken against the breeder under section 73P because of the regulatory notice—when the breeder is given written notice of the registrar’s decision not to take regulatory action, or 30 days after the day the immediate suspension notice is given to the breeder, whichever is the earlier.

73R Breeders licences—effect of suspension

(1) A suspended breeders licence does not authorise the carrying on of any activity under the licence during the suspension.

(2) If the registrar suspends a breeder’s licence, the breeder is, during the suspension—

(a) taken not to hold the licence; and

(b) disqualified from applying for a licence.

73S Offence—return of amended, suspended or cancelled breeders licence

(1) A licensed breeder commits an offence if—

(a) the breeder’s licence is amended, suspended or cancelled under this subdivision; and

(b) the breeder does not return the licence to the registrar as soon as practicable, but not later than 7 days after the day the breeder is given notice under section 119 (Reviewable decision notices).

Maximum penalty: 10 penalty units.

(2) An offence against this section is a strict liability offence.

73T Breeders licences—action by registrar in relation to amended or suspended licence

(1) This section applies if—

(a) a breeder’s licence is—

(i) amended under section 73L (Breeders licences—amendment in interests of animal welfare); or

(ii) amended or suspended under this subdivision; and

(b) the licence is returned to the registrar.

(2) For an amended breeders licence, the registrar must—

(a) return the amended licence to the breeder; or

(b) give the breeder a replacement licence that includes the amendment.

(3) If a breeder’s licence is suspended under this subdivision and the suspension ends before the end of the term of the licence, the registrar must return the licence to the breeder.

Division 3.3 De-sexing dogs and cats

22 Dogs and cats to be de-sexed if over certain age

Section 74 (5)

substitute

(5) It is a defence to a prosecution for an offence against this section in relation to a dog or a cat if the defendant proves—

(a) that it is less than 28 days since the day the dog or cat first came into the defendant’s possession; or

(b) that—

(i) the defendant rescued the dog or cat from mistreatment or abandonment; and

(ii) the dog or cat was pregnant when rescued; and

(iii) it is less than 160 days since the dog or cat first came into the defendant’s possession; and

(iv) the defendant is keeping the dog or cat until it, or the dogs or cats born as a result of the pregnancy, can be rehomed.

Note The defendant has a legal burden in relation to the matters mentioned in s (5) (see Criminal Code, s 59).

23 Section 74A

substitute

74A Offence—selling dog 6 months old or older if not de-sexed

(1) A person commits an offence if the person—

(a) sells a dog that has not been de-sexed to someone else (the buyer); and

(b) believes, or ought reasonably to believe, that the dog is 6 months old or older.

Maximum penalty: 50 penalty units.

(2) Strict liability applies to subsection (1) (a).

(3) This section does not apply if—

(a) the person holds an exemption under section 74E in relation to the dog; or

(b) the buyer holds a permit for the dog.

74B Offence—selling dog less than 6 months old without redeemable de-sexing voucher

(1) A person commits an offence if the person—

(a) sells a dog that has not been de-sexed to someone else (the buyer); and

(b) believes, or ought reasonably to believe, that the dog is less than 6 months old; and

Maximum penalty: 50 penalty units.

(2) Strict liability applies to subsection (1) (a).

(3) This section does not apply if—

(a) the person holds an exemption under section 74E in relation to the dog; or

(b) the buyer holds a permit for the dog; or

(i) is not resident in the ACT; and

(ii) does not ask the person to give the buyer a redeemable de-sexing voucher for the dog.

(4) In this section:

redeemable de-sexing voucher means a voucher that—

(a) allows for the de-sexing of a dog free of charge when the dog is old enough to be safely de-sexed; and

(b) is provided by a veterinary surgeon or, if the buyer requests, a person qualified in another State to de-sex dogs.

74C Offence—selling cat 3 months old or older if not de-sexed

(1) A person commits an offence if the person—

(a) sells a cat that has not been de-sexed to someone else (the buyer); and

(b) believes, or ought reasonably to believe, that the cat is 3 months old or older.

Maximum penalty: 50 penalty units.

(2) Strict liability applies to subsection (1) (a).

(3) This section does not apply if—

(a) the person holds an exemption under section 74E in relation to the cat; or

(b) the buyer holds a permit for the cat.

74D Offence—selling cat less than 3 months old without redeemable de-sexing voucher

(1) A person commits an offence if the person—

(a) sells a cat that has not been de-sexed to someone else (the buyer); and

(b) believes, or ought reasonably to believe, that the cat is less than 3 months old; and

Maximum penalty: 50 penalty units.

(2) Strict liability applies to subsection (1) (a).

(3) This section does not apply if—

(a) the person holds an exemption under section 74E in relation to the cat; or

(b) the buyer holds a permit for the cat; or

(i) is not resident in the ACT; and

(ii) does not ask the person to give the buyer a redeemable de-sexing voucher for the cat.

(4) In this section:

redeemable de-sexing voucher means a voucher that—

(a) allows for the de-sexing of a cat free of charge when the cat is old enough to be safely de-sexed; and

(b) is provided by a veterinary surgeon or, if the buyer requests, a person qualified in another State to de-sex cats.

74E Exemptions from section 74A to section 74D

(1) The registrar may give a licensed breeder an exemption from a relevant provision in relation to a dog or cat if satisfied on reasonable grounds that the dog or cat—

(a) will be used for showing or breeding; and

(b) is registered (however described) with an entity that—

(i) manages the showing or breeding of dogs or cats; and

(ii) takes appropriate care to ensure that the dogs or cats registered (however described) with the entity are legitimately for showing or breeding.

(2) The registrar may also give a person an exemption from a relevant provision in relation to a dog or cat if satisfied on reasonable grounds that—

(a) the person does not breed dogs or cats for sale, or sell dogs or cats on behalf of someone else who is not a licensed breeder; and

(b) either—

(i) the person rescued the dog or cat from mistreatment or abandonment; or

(ii) the dog or cat was born as a result of the pregnancy of a dog or cat that the person rescued from mistreatment or abandonment while the dog or cat was pregnant; and

(d) it would be unreasonably financially onerous for the person to have the dog or cat de-sexed or sell the dog or cat with a redeemable de-sexing voucher.

(3) In this section:

redeemable de-sexing voucher—

(a) for a dog—see section 74B (4); and

(b) for a cat—see section 74D (4).

relevant provision means any of the following provisions:

(a) section 74A (Offence—selling dog 6 months old or older if not de-sexed);

(b) section 74B (Offence—selling dog less than 6 months old without redeemable de-sexing voucher);

(d) section 74D (Offence—selling cat less than 3 months old without redeemable de-sexing voucher).

74F Sale of dogs and cats to be notified if not de-sexed

(1) A person commits an offence if the person—

(a) sells a dog or cat that has not been de-sexed to someone else (the buyer); and

(b) does not, within 3 working days after the day the person sells the dog or cat, tell the registrar in writing the name and address of the buyer.

Maximum penalty: 5 penalty units.

(2) An offence against this section is a strict liability offence.

(3) This section does not apply if the buyer holds a permit for the dog or cat.

24 Approval or refusal of applications

Section 76 (2)

substitute

(2) The registrar must issue a permit for a dog or cat if satisfied on reasonable grounds that—

(a) the applicant has a breeders licence to breed from the dog or cat; or

(b) the applicant keeps or uses the dog or cat for show; or

(c) a veterinary surgeon has advised that it would be detrimental to the health of the dog or cat if it were de-sexed; or

(d) for a dog—the dog is a racing greyhound.

25 Section 77

substitute

77 Revocation of permits

The registrar may revoke a permit if satisfied on reasonable grounds that section 76 (2) no longer applies.

26 New division 3.4

after section 80, insert

Division 3.4 Sale of dogs and cats

80A Offence—keeping dog or cat at shop for sale

(1) A person commits an offence if the person keeps a dog or cat at a shop for the purpose of selling the dog or cat.

Maximum penalty: 40 penalty units.

(2) This section does not apply if the person keeps the dog or cat at a shop for an approved animal welfare organisation during the shop’s business hours.

Note It is an offence to display a dog or cat in a shop window, or to sell a dog or cat at a market (see Animal Welfare Act 1992, s 20D and 20E).

80B Offence—selling dog or cat from shop

(1) A person commits an offence if—

(a) the person sells a dog or cat from a shop; and

(b) the dog or cat is not sold on behalf of an approved animal welfare organisation.

Maximum penalty: 50 penalty units.

(2) An offence against this section is a strict liability offence.

80C Offence—selling dog or cat if not authorised seller or approved person

(1) A person commits an offence if the person—

(a) sells a dog or cat; and

(b) is not an authorised seller or approved person.

Maximum penalty: 50 penalty units.

(2) In this section:

approved person, in relation to the sale of a dog or cat, means a person who holds a selling approval in relation to the sale.

80D Offence—advertising sale of dog or cat

(1) A person commits an offence if the person—

(a) publishes an advertisement for the sale of a dog or cat by the person; and

(b) is not an authorised seller or approved person.

Maximum penalty: 10 penalty units.

(2) A person commits an offence if—

(a) the person publishes an advertisement for the sale of a dog or cat by the person; and

(b) if the person is an authorised seller—the advertisement does not contain all of the following information:

(i) the person’s name and ABN (if any);

(ii) if the person is a licensed breeder—the unique identifying number for the breeder’s licence;

(iii) for each dog or cat advertised—the unique identification number for the identifying microchip implanted in the dog or cat (if any); and

(c) if the person is an approved person—the advertisement does not contain the unique identifying number for the approval.

Maximum penalty: 10 penalty units.

(3) A person commits an offence if—

(a) the person publishes an advertisement for the sale of a dog or cat by someone else (the seller); and

(b) if the seller is an authorised seller—the advertisement does not contain all of the following information:

(i) the seller’s name and ABN (if any);

(ii) if the seller is a licensed breeder—the unique identifying number for the breeder’s licence;

(iii) for each dog or cat advertised—the unique identification number for the identifying microchip implanted in the dog or cat (if any); and

(c) if the seller is an approved person—the advertisement does not contain the unique identifying number for the approval.

Maximum penalty: 10 penalty units.

(4) An offence against this section is a strict liability offence.

(5) In this section:

advertise includes to advertise by oral, visual or written means.

Examples

cinema, video, radio, internet, television, brochures or flyers

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

approved person, in relation to the advertising of the sale of a dog or cat, means a person who holds an advertising approval in relation to the advertising.

publish means communicate or disseminate information in a way or to an extent that makes it available to, or likely to come to the notice of, the public or a section of the public.

unique identifying number, for an identifying microchip—see the Domestic Animals Regulation 1991, section 7 (4) (b).

80E Selling or advertising approval—application

(1) An individual may apply to the registrar for either or both of the following:

(a) an approval to advertise the sale of a dog or cat (an advertising approval);

(b) an approval to sell a dog or cat (a selling approval).

Note 1 If a form is approved under s 147 for an application, the form must be used.

Note 2 A fee may be determined under s 144 for this provision.

(2) The registrar may, in writing, require the individual to give the registrar information in writing or documents that the registrar reasonably needs to decide the application.

Note The Legislation Act, s 170 and s 171 deal with the application of the privilege against selfincrimination and client legal privilege.

80F Selling or advertising approval—decision on application

(1) On an application by an individual for a selling or advertising approval in relation to a dog or cat, the registrar must—

(a) issue the approval; or

(b) refuse to issue the approval.

(2) The registrar must issue a selling or advertising approval to an individual if satisfied on reasonable grounds that—

(a) the individual does not breed dogs or cats for sale; and

(b) the individual does not sell dogs or cats on behalf of someone else who is not a licensed breeder; and

(i) the dog or cat is or was the individual’s pet; or

(ii) all of the following circumstances apply:

(A) the individual rescued a dog or cat from mistreatment or abandonment;

(B) the rescued dog or cat was pregnant when rescued;

(C) the dog or cat for sale or to be advertised is the rescued dog or cat or a dog or cat born as a result of that pregnancy; and

(d) the sale is on a not-for-profit basis.

(3) Also, the registrar must issue an advertising approval to an individual who is resident in another State if satisfied on reasonable grounds that the registrar would be able to issue a breeders licence to the individual if the individual were resident in the ACT.

80G Selling or advertising approval—form

A selling or advertising approval must—

(a) be in writing; and

(b) state the full name and address of the individual to whom the approval is issued; and

80H Selling or advertising approval—term

A selling or advertising approval continues in force until the earlier of—

(a) the end of the 6-month period for which it is issued; and

(b) the day it is revoked.

80I Selling or advertising approval—revocation

The registrar may revoke an individual’s selling or advertising approval if no longer satisfied on reasonable grounds of the matters mentioned in section 80F (2).

Division 3.5 Cat curfew

27 New division 3.6 heading

before section 83, insert

Division 3.6 Identification of dogs and cats

28 Identification of dogs and cats—requirement

New section 84 (2A)

insert

(2A) A person commits an offence if—

(a) the person breeds a dog or cat; and

(b) the person sells the dog or cat to someone else; and

(d) the dog or cat is not identified as required by the regulation.

Maximum penalty: 5 penalty units.

29 Multiple cat licences—requirement to be licensed

New section 84A (2) (g)

insert

(g) a cat kept by a person under a breeders licence.

30 New part 4A

insert

Part 4A Sale of animals to people under 18 years old

94 Offence—selling animal to person under 18

(1) A person commits an offence if the person—

(a) sells an animal to a person who is under 18 years old; and

(b) is reckless about whether the person to whom the animal is sold is under 18 years old.

Maximum penalty: 10 penalty units.

(2) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that—

(a) immediately before the animal was sold to the person, the defendant (or an employee or agent of the defendant) (the seller) asked the person to show the seller a document of identification; and

(b) the person showed the seller a document of identification; and

(c) the seller had no reasonable grounds for believing that the document was not a genuine document of identification of the person.

Note The defendant has a legal burden in relation to the matters mentioned in s (2) (see Criminal Code, s 59).

(3) A person may refuse to sell an animal to someone else, or to permit someone else to obtain an animal, if the person—

(a) is not satisfied that the other person is at least 18 years old; or

(b) considers that any identification shown by the other person is not genuine, or has been tampered with.

(4) Subsection (3) does not limit the circumstances in which a person may refuse to sell an animal, or refuse to permit someone else to obtain an animal.

(5) In this section:

document of identification, of a person, means a document that—

(a) is—

(i) an Australian driver licence or a licence to drive a motor vehicle (however described) issued under the law of an external Territory or a foreign country; or

(ii) a proof of age card issued under the Liquor Act 2010, section 210 (Proof of age cards), or a corresponding document issued under the law of a State; or

(iii) a passport; and

(b) contains a photograph that could reasonably be taken to be of the person; and

31 New sections 127 and 127A

insert

127 Entry of premises—decision about issue of breeders licence

(1) This section applies if—

(a) a person applies for a breeders licence; and

(b) the application contains the person’s written consent for an authorised person to inspect the premises stated in the application.

(2) For section 73E (Breeders licences—decision on application), an authorised person may enter the premises.

(3) However, subsection (2) does not authorise entry into a part of the premises that is not used for breeding or housing dogs or cats.

(4) An authorised person may enter premises under subsection (2) with necessary and reasonable assistance.

127A Entry of premises—licence condition

(1) For section 73F (2) (Breeders licences—conditions), an authorised person may enter the premises.

(2) However, subsection (1) does not authorise entry into a part of the premises that is not used for breeding or housing dogs or cats.

(3) An authorised person may enter premises under subsection (1) with necessary and reasonable assistance.

32 Inspection of premises

Section 131

after

under

insert

section 127 (Entry of premises—decision about issue of breeders licence), section 127A (Entry of premises—licence condition),

33 Dictionary, new definitions

insert

advertising approval, for part 3 (Dogs and cats)—see section 73.

approved animal welfare organisation, for part 3 (Dogs and cats)—see section 73.

authorised seller, for part 3 (Dogs and cats)—see section 73.

breeders licence means a licence issued under section 73E.

defined offence, for part 3 (Dogs and cats)—see section 73.

executive officer, of a corporation, for part 3 (Dogs and cats)—see section 73.

identifying microchip, for part 3 (Dogs and cats)—see section 73.

licensed breeder means a person licensed under division 3.2 to breed cats or dogs for sale.

licensed premises, of a licensed breeder, for part 3 (Dogs and cats)—see section 73.

sell, for part 3 (Dogs and cats)—see section 73.

sell by retail, for part 3 (Dogs and cats)—see section 73.

selling approval, for part 3 (Dogs and cats)—see section 73.

shop, for part 3 (Dogs and cats)—see section 73.

Part 4 Domestic Animals Regulation 2001

34 How dogs must be identified—Act, s 83

New section 7 (3) (d)

insert

(d) is for sale by a licensed breeder.

Note Sell means transfer ownership by any means, whether with or without consideration, and includes agree to sell (see Act, s 73).

35 New section 7 (5) (ba) and (bb)

insert

(ba) if the dog was bred by a licensed breeder—the following information about the breeder:

(i) the breeder’s name and home or business address;

(ii) the breeder’s ABN (if any);

(iii) the unique identifying number for the breeder’s licence; and

(bb) if the dog’s owner obtained the dog from a person other than an authorised seller—the following information about the person:

(i) the person’s name and home or business address;

(ii) the person’s ABN (if any);

(iii) if the person is licensed (however described) to breed or sell the dog in another jurisdiction—details of the licence, including any unique identifying number for the licence; and

Note Authorised seller is defined in the Act, s 73.

36 New part 2A

insert

Part 2A Dogs and cats

7A Breeders licences—conditions—Act, s 73F (1) (a)

(2) The following conditions are prescribed:

(a) if a breeder sells a dog to a person (the buyer) and, under section 7 (6), the dog is not required to be identified by an identifying microchip, the breeder must give the buyer the information about the dog mentioned in section 7 (5) (a) (i) to (v) and (ba);

(b) if a breeder sells a cat to a person (the buyer) and, under section 8 (2), the cat is not required to be identified by an identifying microchip, the breeder must give the buyer the information about the cat mentioned in section 9 (2) (a) (i) to (v) and (ba).

37 Cats to which compulsory identification applies—Act, s 83

New section 8 (1) (c)

insert

Note Sell means transfer ownership by any means, whether with or without consideration, and includes agree to sell (see Act, s 73).

38 How cats must be identified—Act, s 83

New section 9 (2) (ba) and (bb)

insert

(ba) if the cat was bred by a licensed breeder—the following information about the breeder:

(i) the breeder’s name and home or business address;

(ii) the breeder’s ABN (if any);

(iii) the unique identifying number for the breeder’s licence; and

(bb) if the cat’s owner obtained the cat from a person other than an authorised seller—the following information about the person:

(i) the person’s name and home or business address;

(ii) the person’s ABN (if any);

(iii) if the person is licensed (however described) to breed or sell the cat in another jurisdiction—details of the licence, including any unique identifying number for the licence; and

Note Authorised seller is defined in the Act, s 73.

39 Schedule 1, new items 13A to 13H

insert

13A	Act, 73E (1) (a) and 73G	issue or renew breeders licence for period less than 3 years	applicant for licence or renewal
13B	Act, 73E (1) (b)	refuse to issue or renew breeders licence	applicant for licence or renewal
13C	Act, s 73F (1) (b)	put condition on licence	licensed breeder
13D	Act, 73L (1)	amend licence	licensed breeder
13E	Act, 73L (1)	amend licence in way other than the way applied for	applicant for amendment
13F	Act, 73L (1)	refuse to amend licence	applicant for amendment
13G	Act, 73P	take regulatory action	licensed breeder
13H	Act, 73Q	suspend breeders licence immediately	licensed breeder

Part 5 Magistrates Court (Domestic Animals Infringement Notices) Regulation 2005

40 Schedule 1, part 1.1, new items 37A to 37D

insert

37A	80C (1)	person other than authorised seller or approved person sells dog or cat	10	220
37B	80D (1)	person other than authorised seller or approved person publishes advertisement for sale of dog or cat by person	10	220
37C	80D (2)	person publishes advertisement for sale of dog or cat by person and advertisement not contain information mentioned in s 80D (2) (b) or (c)	10	220
37D	80D (3)	person publishes advertisement for sale of dog or cat by someone else and advertisement not contain information mentioned in s 80D (2) (b) or (c)	10	220

Endnotes

1 Presentation speech

Presentation speech made in the Legislative Assembly on 2011.

2 Notification

Notified under the Legislation Act on 2011.

3 Republications of amended laws

For the latest republication of amended laws, see www.legislation.act.gov.au.

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