FEATURE
Animal Welfare Laws leave pet fish up the creek RONAN O’BRIEN, MEMBER OF THE ANIMAL LAW COMMITTEE
I
magine this scenario. You see your neighbour packing up their belongings and moving out. A week goes by and you hear a dog barking from the inside of your neighbour’s house. A quick peek through a window reveals the distressed dog. You contact either the police or the RSPCA (SA) and thankfully they are able to utilise their powers under the Animal Welfare Act 1985 (SA) (the Act) to secure a warrant to forcefully enter the property and retrieve the abandoned dog before any harm comes to it.1 A few days later, your neighbour on the other side moves out. You are aware that they have an aquarium with all sorts of fish, however you don’t see them packing the aquarium into their removalist truck. A few days go by and curiosity gets the better of you, so you peek through your neighbour’s window and clearly see the aquarium still sitting there in the living room with all the fish. Being concerned for the welfare of the fish, you again contact either the police or RSPCA (SA), trusting that once again they will be able to forcefully enter the property and save the fish before any harm comes to them. Unfortunately, this time you are informed that there is nothing that can be done as their powers under the Act only apply to animals.
killing of fish. Nevertheless, every State and Territory, except Western Australia and South Australia, now recognise fish as being animals for the purpose of their animal welfare legislation. So how do other jurisdictions prevent the criminalisation of fishing?
DEFINITION OF ANIMAL
NEW SOUTH WALES
Section 3 of the Act defines an animal as being “a member of any species of the sub-phylum vertebrata”, in other words: Vertebrates. In scientific terms, this includes all mammals, birds, reptiles, amphibians and fish. However, section 3 goes on to specifically exclude fish from being included within the meaning of “animal” for the purposes of the Act. (For the sake of completeness, human beings are also excluded from this definition). A common argument for not including fish within animal welfare legislation is that this would potentially criminalise commercial and recreational fishing which, obviously, involves the capture and
Section 24 of the Prevention of Cruelty to Animals Act 1979 (NSW) provides that a person accused of an animal cruelty offence is not guilty if they satisfy the court that the act committed occurred during “hunting, shooting, snaring, trapping, catching or capturing the animal … in a manner that inflicted no unnecessary pain upon the animal.”
NORTHERN TERRITORY Section 4 of the Animal Welfare Act 1999 (NT) recognises fish as constituting animals only when they are “in captivity or dependent on a person for food”.
TASMANIA Section 4 of the Animal Welfare Act 1933 (TAS) specifically excludes animal cruelty offences in circumstances of recreational and commercial fishing provided that the fishing occurs “in a usual and reasonable manner and without causing excess suffering.”
QUEENSLAND Section 7 of the Animal Care and Protection Act 2001 (QLD) excludes animal cruelty offences in circumstances where the acts or omissions are authorised under a different Act. This would include the Fisheries Act 1994 (QLD).
VICTORIA Section 6(1)(g) of the Prevention of Cruelty to Animals Act 1986 (VIC) specifically excludes animal cruelty offences from fishing activities authorised by and conducted in accordance with the Fisheries Act 1995.
AUSTRALIAN CAPITAL TERRITORY Section 17(1)(5)(e) of the Animal Welfare Act 1992 (ACT) provides that a person commits an offence if the person takes part in a violent animal activity, however this does not apply to the catching of fish in a way authorised under a Commonwealth or Territory law.
OPTIONS FOR SOUTH AUSTRALIA Any future review of the South Australian legislation should consider the approaches taken by other states and territories. The majority of Australian jurisdictions have shown that an additional clause to animal welfare legislation can strike a balance between protecting recreational and commercial fishing whilst ensuring that fish aren’t unnecessarily abused in other aspects. 1. South Australia could follow the example of the Northern Territory and amend the definition of animal, e.g. Animal means a member of any species of the sub-phylum vertebrata except: a. a human being; or b. a fish (in circumstances where the fish is not in captivity or dependent on a person for food), 2. South Australia could remove the exemption of fish within the definition of animal, but then follow the example of the majority of Australian jurisdictions in specifically excluding recreational and commercial fishing from the animal cruelty offence provisions of the Act. Either of the above changes would ensure that in our earlier imagined scenario, the police or RSPCA would be able to intervene and rescue your neighbour’s fish rather than letting them starve to death. Additionally, you could still go fishing without fear of prosecution. B Endnotes 1 Animal Welfare Act 1985 (SA) s 31D.
December 2021 THE BULLETIN
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