LSB December 2021 HR

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FEATURE The existing legal safeguards for experimental laboratory animals in SA ROSS TEMPLEMAN, MEMBER, ANIMAL LAW COMMITTEE If you, or someone that you know, lives with diabetes, has had a coronary bypass or a hip replacement, or received a vaccination for diphtheria, polio, tetanus, or been treated with antibiotics, it is probable that you or they are alive or have a better quality of life due to research that was carried out on laboratory animals. Irrespective of whether you place yourself as supporting animal welfare, animal rights or haven’t considered the matter closely, what is the actual state of the law for animal experimentation in SA at present? The bulk of the legislative framework for animal experimentation (and teaching involving animals) is contained within the Animal Welfare Act 1985. Any person (or body corporate) that wishes to use animals for teaching or research or experimentation must be licensed. 1 The type or organisations that use animals and require licensing are typically universities, TAFEs, schools, hospitals and research centres, and animal organisations such as zoos and wildlife parks. They may be either private or government owned. A licence is only granted where the responsible Minister is satisfied that the applicant can adequately house and provide for the needs meeting of the animals kept. 2 Licences need to be renewed every two years. 3 Animals that may be used include typical ‘laboratory’ species such as mice, rats, guinea pigs and ferrets, farm species such as cattle, sheep, poultry, horses and pigs, and other species such as native birds and animals, cats, dogs, and primates. 4 It must be remembered that many uses of animals under the Act are for the training of individuals that will interact with animals on a professional basis, such as veterinarians, agricultural students and science/medical students, rather than all being strictly experimental in nature. There are two major licence conditions that are normally made applicable for licensees. The first of these is the need to comply with ‘the Code’, being the Australian code for the care and use of animals for scientific purposes 5 (NHMRC) – the current version being the 8th Edition, 2013. 6 The Code was prepared by a working committee comprising representatives from amongst 30 THE BULLETIN December 2021 others the ARC, 7 CSIRO, 8 NHMRC, 9 Universities Australia, RSPCA and Animals Australia, Commonwealth and State government departments. Under the Code, “the use of animals for scientific purposes must have scientific or educational merit; must aim to benefit humans, animals or the environment; and must be conducted with integrity. When animals are used, the number of animals involved must be minimised, the wellbeing of the animals must be supported, and harm, including pain and distress, in those animals must be avoided or minimised.” 10 The second license condition is that all research/teaching activities must be approved by an Animal Ethics Committee (AEC). 11 The AECs look at all research and teaching proposals and decide whether the work proposed is ethically acceptable and likely to be useful. They comprise at least five members, who shall include at least one each of a veterinarian, nominees of animal welfare organisations and the public, 12 with the AEC itself obligated to follow the Code. 13 AECs have the wide powers to accept proposals, turn them down completely or request changes to make the proposals acceptable. 14 They have the power to inspect work on approved projects at any time, with or without notification, 15 and halt any work which is not being carried out in an appropriate manner. 16 They also examine the need for the particular end use of the proposal and ensure that there is no unnecessary repetition of previous research. 17 Should a decision of the AEC, or the Minister, be disagreed with, a Review lies to the South Australian Civil and Administrative Tribunal within one month of the decision. 18 And what of the older images of rabbits being subject to the testing of shampoos or beauty products poured into their eyes? - or the LD (lethal dose) 50 test 19 that measures the dose of a substance which is required to kill 50% of a test population? Under the Animal Welfare Regulations 2012, both of these practices are normally prohibited in South Australia. 20 The exception to the prohibition has a reverse onus of proof on the research applicant, to justify that the research has the potential to benefit human or animal health and the objectives cannot be achieved by means that will cause less pain to animals. 21 So, the next time that you visit the doctor, vet or chemist and obtain a treatment or medicine, give a small thought to the laboratory animals who have played a part over many years in ensuring that that procedure or medicine is available and relatively safe for use. B Endnotes 1 Animal Welfare Act 1985 s16 2 Animal Welfare Act 1985 s18 3 Animal Welfare Act 1985 s20 4 Definition of ‘Animal’ under the Australian Code for the care and use of animals for scientific purposes: Animal: any live non-human vertebrate (that is, fish, amphibians, reptiles, birds and mammals, encompassing domestic animals, purpose-bred animals, livestock, wildlife) and cephalopods. 5 https://www.nhmrc.gov.au/about-us/ publications/australian-code-care-and-use-animalsscientific-purposes 6 Animal Welfare Act 1985 s19(2)(f) 7 Australian Research Council, https://www.arc.gov.au/about-arc 8 The Commonwealth Scientific and Industrial Research Organisation, https://www.csiro.au/en/ 9 National Health and Medical Research Council, https://www.nhmrc.gov.au/ 10 Australian code for the care and use of animals for scientific purposes – 8 th Edition, Canberra, NHMRC, p1 11 Animal Welfare Act 1985 s19(2)(c)-(e). More information on Animal ethics committee’s may be found here: https://www.environment.sa.gov.au/topics/ plants-and-animals/animal-welfare/Animals_in_ research_teaching/Animal_ethics_committees 12 Animal Welfare Act 1985 s23(3) 13 Animal Welfare Act 1985 s25(1a) 14 Australian code for the care and use of animals for scientific purposes – 8 th Edition, Canberra, NHMRC, 2.3.9 p26 15 Australian code for the care and use of animals for scientific purposes – 8 th Edition, Canberra, NHMRC, 2.3.21 p27 16 Australian code for the care and use of animals for scientific purposes – 8 th Edition, Canberra, NHMRC, 2.3.25 p28 17 Animal Welfare Act 1985 s25(3) 18 Animal Welfare Act 1985 ss26, 27 19 https://www.animalethics.org.au/accreditationand-licensing/ld50-and-lethality-testing 20 Animal Welfare Regulations 2012 s11 21 Animal Welfare Regulations 2012 s11(1)(c), (d)
FEATURE 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 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. DEFINITION OF ANIMAL 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 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? 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). 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) 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 31
Page 1 and 2: THE BULLETIN THE LAW SOCIETY OF SA
Page 3 and 4: This issue of The Law Society of So
Page 5 and 6: PRESIDENT’S MESSAGE I look forwar
Page 8 and 9: ANIMAL LAW Animals and intervention
Page 10 and 11: RENTING WITH PETS IN THE DOG HOUSE?
Page 12 and 13: Q&A Know Your Council Member: Melan
Page 14 and 15: IN HONOUR Vale: Mark Glencraig Nich
Page 16 and 17: DISABILITY JUSTICE More collaborati
Page 18 and 19: FEATURE THE NEED TO THINK OUTSIDE C
Page 20 and 21: FEATURE Western Law as having judge
Page 22 and 23: ANIMAL LAW Therapy or assistance an
Page 24 and 25: YOUNG LAWYERS facebook.com/YLCSA Yo
Page 26 and 27: WELLBEING & RESILIENCE It's OK to g
Page 28 and 29: RISK WATCH Culturally and linguisti
Page 32 and 33: FEATURE Turkeys and the law DIANA T
Page 34 and 35: TAX FILES DGRs that are not already
Page 36 and 37: FAMILY LAW CASE NOTES Family Law Ca
Page 38 and 39: GAZING IN THE GAZETTE REGULATIONS P
Page 40: We manage one of SA’s largest soc

LSB December 2021 HR

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