This opinion piece was first published in volume 41, issue 5 of the Bulletin of the Law Society of South Australia, in June, 2019.
RSPCA is the only non-government organisation charged with enforcing South Australian legislation, namely the Animal Welfare Act.
This has been an important function of the Society throughout its 143 year history in this State, and today represents a cost of nearly $3 million per year. An inspectorate team of 10 staff covers the entire state, seven days a week, 24 hours a day. An internal legal counsel, supported by a number of probono and contracted external lawyers, oversees cases that progress to prosecution. Complementing the work of the Inspectorate and legal teams is a professional animal management group. At our main animal care centre in Lonsdale, a 12-member veterinary unit, four animal behaviour specialists and over 30 husbandry staff (together with several hundred volunteers) repair, rehabilitate and rehome about 10,000 animals every year. RSPCA SA also operates animal care centres in Whyalla and Pt Lincoln.
The State Government contributes $1.1 million towards funding of the Inspectorate, with donations making up the $1.6 million shortfall.
The Animal Welfare Act gives rise to criminal offences and the RSPCA has an outstanding record in not having lost a trial during the last decade. In 2017/18 the RSPCA Inspectorate responded to 4,077 reports of cruelty from the public to our 24 hour call centre. Investigations resulted in 70 prosecutions of 79 defendants (some cases had multiple defendants). We pursue every alternative to prosecution in improving animal welfare standards in this State. However, when we deem it is appropriate to take a matter to court, our Inspectors (who are authorised by the State Minister for Environment and Water) have proven to be very skilled in accumulating the necessary evidence for successful criminal prosecutions.
Aside from law enforcement, another ongoing task for the RSPCA is to identify loopholes or legislative deficiencies that enable some cruelty perpetrators to escape prosecution. Laws must evolve in response to community expectations and unfortunately there is clear evidence SA’s animal welfare laws have not kept up. Thanks to a recently completed study by Adelaide University researchers, there is now also evidence that some decisions made in regards to penalties for convicted animal cruelty perpetrators might have failed to meet community expectations too.
In South Australia, the most common penalties magistrates impose for animal welfare offences are fines, good behaviour bonds and – in the most serious cases – prison sentences. In 2008, public pressure to make the punishment better fit the crime resulted in amendments to SA’s Animal Welfare Act that doubled all the maximum penalties for animal welfare offences.
The maximum time for imprisonment in SA jumped from one to two years, and the maximum fine increased from A$10,000 to A$20,000. The 2008 amendments also introduced a new aggravated offence for particularly horrific crimes against animals, which were deliberate or reckless. Those found guilty of this offence can receive a four-year prison sentence or a A$50,000 fine.
In the ten years since these changes came into effect, some people have claimed that decisions handed down in the Magistrates’ Courts have ignored the legislative intent behind the increased penalties. In other words, magistrates have leant towards the lower end when determining penalties for convicted animal cruelty offenders.
In the Adelaide University research project (the first of its kind), academics from the University’s School of Animal and Veterinary Sciences analysed the penalties imposed on more than 300 convicted animal cruelty offenders in South Australia to identify trends in sentencing data both before and after the 2008 amendments. These offenders faced court in a total of 264 cases, with multiple defendants in some of the cases.
The researchers collected preamendments data from cases finalised 2006-2009, and post-amendments data from cases finalised 2016-2018. At a time when public interest in animal welfare grows exponentially, the final report sheds valuable light on where SA’s legal system sits in its response to individuals who commit crimes against animals.
Prior to the 2008 amendments, fines made up the majority of penalties, while good behaviour bonds and prison sentences were in the minority. Since the amendments, the imposition of fines has declined while the imposition of harsher penalties, in the form of good behaviour bonds and prison sentences, have both increased. Where fines and prison terms have been imposed, they have been higher and longer, respectively, post 2008.
In an article for The Conversation, published online on 17 January, 2019, the report’s authors wrote that they
“found the average fine increased from A$700 to A$1,535 over the 12 year period, from before to after the law change with the average prison sentences doubling from 37 to 77 days. But, the maximum prison sentence ever handed down for animal cruelty in SA is still only seven months; 41 months shy of the maximum available.”
These findings appear to support the idea that magistrates appreciate the intent behind the penalty increases, being to reflect community belief that ill treatment of animals warrants severe punishment. However, they remain reluctant to impose penalties available to them at the upper end of the ranges.
Aside from the eternal quest of making the punishment fit the crime (or be seen to fit the crime in the majority’s view), our legal system also needs sufficient teeth to charge alleged offenders in the first place.
Since the introduction of SA’s Animal Welfare Act more than 30 years ago, the court of public opinion has not only ruled that crimes against animals warrant tougher penalties, but also that some practices society once accepted or condoned should now be illegal.
RSPCA South Australia is proposing a number of changes that would tighten existing legislation and introduce new laws, many of them designed to bring our legal protections for animals in line with those in other states. Some key proposed changes relate to court orders that prohibit convicted animal abusers from acquiring further animals, either for a specified time or indefinitely. The inclusion of intervention orders, for example, into the Animal Welfare Act would make it unnecessary to obtain a conviction simply to secure a prohibition order. This would reduce the demand on court time and may be a more appropriate approach than seeking convictions in animal cruelty cases arising from mental health and economic factors.
Recognition of interstate prohibition orders is also proposed. This would discourage people with prohibition orders relocating to another state and taking on ownership of new animals. We are now experiencing the phenomenon of large commercial animal breeding facilities, prosecuted in Victoria (where legislation identifies the facilities as “puppy farms”), simply moving over the border and starting up operations in SA.
Another legal change RSPCA SA regards as a high priority would enable the prosecution of people who subject animals to situations or treatment that is likely to cause harm. Both Western Australian and Victorian legislation recognises that cruelty may occur from an act or omission. Currently SA’s Act only allows RSPCA to prosecute once harm has occurred. By this time, it is often too late to save the animal.
A recent case highlights the need to reword this section of the Act. RSPCA SA’s legal counsel had no choice but to withdraw charges against the owner of a dog left in a vehicle. Soon after the dog was found dead in the car, a vet recorded its internal body temperature as 42C on a day when the maximum temperature was 30C. Despite this, the owner’s lawyer successfully argued that there was insufficient proof that the dog had died from heat stress and not a pre-existing, but unidentified, condition.
Inclusion of fish and crustaceans in the definition of animals is among RSPCA SA’s proposed additions to the existing Act.
Queensland, New South Wales and Victoria already protect these animals, with no negative impact on recreational or commercial fishing. RSPCA SA also proposes a prohibition on the use of flank straps and spurs in rodeos, an approach several U.S. states have employed to make rodeos more humane. (RSPCA is opposed to many events at rodeos, including bull riding and calf roping, because these forms of entertainment have unavoidable negative impact on the welfare of the animals involved.)
Another example of a compromise position on RSPCA policy is a proposal to ban the use of shotguns in duck shooting within South Australia. (The 2019 SA duck shooting season is due to begin on March 16.) Shotguns spray shot and wound one duck for every one duck shot, leading to significant suffering of wounded animals. Recreational duck shooting is only legal in SA, Victoria and Tasmania, with RSPCA policy in support of a total ban.
Like duck shooting, jumps racing is an activity the RSPCA opposes because of the high likelihood of suffering for the animals involved. A University of Melbourne study* found that jumps horses are almost 19 times more likely to die during a race than horses competing on the flat. Only SA and Victoria still allow this activity, and RSPCA SA will again seek legislative change in late 2019 to see it end.
Clearly, we have much work to do, but RSPCA SA’s proposed legal reforms – if adopted – will represent significant and much needed progress in catching up with interstate legislation.
Amid a growing public appetite for putting animal welfare at the heart of government policies and legislation, anything that contributes to positive, lasting change for animals in our state will be widely welcomed by the community.
Paul Stevenson is the chief executive officer of RSPCA South Australia. He wrote this opinion piece as part of our Combat Cruelty campaign, in which we’ve released full details of almost every cruelty case RSPCA South Australia prosecuted last financial year. See the files at www.combatcruelty.com
*Boden LA et al. (2006) Risk of fatality and causes of death of Thoroughbred horses associated with racing in Victoria, Australia: 1989-2004. Equine Veterinary Journal 38:312-318.