Animal Welfare Laws leave pet fi sh

Animal Welfare Laws leave pet fish up the creek

RONAN O’BRIEN, MEMBER OF THE ANIMAL LAW COMMITTEE

Imagine 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 fi sh, 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 fi sh. Being concerned for the welfare of the fi sh, 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 fi sh 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.

DEFINITION OF ANIMAL

Section 3 of the Act defi nes an animal as being “a member of any species of the sub-phylum vertebrata”, in other words: Vertebrates. In scientifi c terms, this includes all mammals, birds, reptiles, amphibians and fi sh. However, section 3 goes on to specifi cally exclude fi sh 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 defi nition).

A common argument for not including fi sh within animal welfare legislation is that this would potentially criminalise commercial and recreational fi shing which, obviously, involves the capture and killing of fi sh. Nevertheless, every State and Territory, except Western Australia and South Australia, now recognise fi sh as being animals for the purpose of their animal welfare legislation. So how do other jurisdictions prevent the criminalisation of fi shing?

NORTHERN TERRITORY

Section 4 of the Animal Welfare Act 1999 (NT) recognises fi sh 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) specifi cally excludes animal cruelty offences in circumstances of recreational and commercial fi shing provided that the fi shing 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).

NEW SOUTH WALES

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 infl icted no unnecessary pain upon the animal.”

VICTORIA

Section 6(1)(g) of the Prevention of Cruelty to Animals Act 1986 (VIC) specifi cally excludes animal cruelty offences from fi shing 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 fi sh 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 fi shing whilst ensuring that fi sh aren’t unnecessarily abused in other aspects. 1. South Australia could follow the example of the Northern Territory and amend the defi nition of animal, e.g.

Animal means a member of any species of the sub-phylum vertebrata except: a. a human being; or b. a fi sh (in circumstances where the fi sh is not in captivity or dependent on a person for food), 2. South Australia could remove the exemption of fi sh within the defi nition of animal, but then follow the example of the majority of Australian jurisdictions in specifi cally excluding recreational and commercial fi shing 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 fi sh rather than letting them starve to death. Additionally, you could still go fi shing without fear of prosecution. B