LSB December 2021 HR

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