Chapter 2
Background
2.1
The Explanatory Memorandum (EM) to the bill notes that the bill is
'designed to minimise unnecessary delays in the reporting of malicious cruelty
to animals'. It is argued that when there is delay in the reporting of such
events:
... there are serious implications for the animals involved as
well as the risk of significant threats to animal enterprise industries which
include economic viability, safety and biosecurity.[1]
2.2
The amendments proposed to the Criminal Code Act 1995 include the
insertion of a new Part 9.7 in relation to protecting animals and animal
enterprises, consisting of:
-
Division 383, which relates to failing to report malicious
cruelty to animals; and
-
Division 385, which relates to interference with the conduct of
lawful animal enterprises.[2]
Schedule 1 – Amendments
Part 1 – Main Amendments
2.3
Item 1 inserts a new Part 9.7 into the Criminal Code Act 1995,
consisting of two divisions, providing for the protection of animals and animal
enterprises.
Division 383
2.4
Division 383 relates to failure to report malicious cruelty to animals.
2.5
Section 383.5 sets out two obligations relating to the reporting of
malicious cruelty to animals. Under the amendments proposed by the bill, if a person
has made a visual recording of an activity they believe to constitute malicious
cruelty to an animal or animals, they must report the activity to the relevant
authority within one business day. The person must also provide this record to
the relevant authority (that has responsibility for animal welfare in the
jurisdiction) within five business days.[3]
2.6
The EM indicates that if a person fails to fulfil either or both of
these obligations, they have committed an offence under section 383.5.[4]
2.7
The EM indicates that the bill is not intended to override the
constitutional rights of states and territories to enact and enforce laws. It
is also noted that Subsection 383.5(4) limits the effect of the offence to
where the alleged malicious cruelty is observed and recording made by a
federally regulated entity or in constitutional trade or commerce or in a
territory or Commonwealth place.[5]
2.8
It is proposed that the extent of the bill will be confined to 'domestic
animals':
It is intended that these will be those which are husbanded
by or rely on humans for elements of their nutrition, management, housing and
general wellbeing. This is in contrast to feral animals or other animals that
are not domesticated or reliant on human nurture.[6]
2.9
The EM notes that subsection 383.5(3) would set out that the defendant would
bear an evidential burden in relation to making out the matter in paragraph
383.5(1)(c). It is suggested that this is appropriate, because it reflects the
fact that it would be significantly more difficult and costly for the
prosecution to, in effect, prove a negative – i.e. that the activity was not
reported – as information about whether the matter was reported would in most
cases be peculiarly within the knowledge of the defendant.[7]
2.10
It is also noted that the prosecution will not need to prove that a
person knew that the conduct occurred in the circumstances mentioned in
subsections 383.5(4):
Absolute liability will apply. The effect of applying
absolute liability to this element would mean that no fault element needs to be
proved and the defence of mistake of fact is not available. [8]
Division 385
2.11
It is proposed, under Section 385.5, that a person would commit an
offence if they engage in conduct that destroys or damages property used in
carrying on an animal enterprise, or that belongs to a person who carries on or
is associated with a person who carries on an animal enterprise. This offence would
be punishable by imprisonment according to the following:
-
An offence which results in economic damage exceeding $10,000: 5
years.
-
An offence which results in substantial bodily injury or economic
damage exceeding $100,000: 10 years.
-
An offence which results in serious bodily injury or economic
damage exceeding $1,000,000: 20 years.
-
An offence which results in death of any individual: Life
imprisonment.
-
In any other case: 1 year.[9]
2.12
It is proposed that Section 385.10 would create a new offence of causing
fear of death or serious bodily injury if a person engages in conduct involving
threats, vandalism, property damage, criminal trespass, harassment or intimidation
to another person or persons connected with an animal enterprise. It is
proposed that this offence would be punishable by imprisonment.[10]
2.13
The EM notes that the bill is not designed to limit the lawful conduct
of any person engaged in peaceful picketing or acting in good faith in an
industrial matter or who, in good faith, is reporting on a matter of public
interest according to the defences listed in section 385.15. A defendant bears
an evidential burden in relation to these matters.[11]
2.14
Under the proposed amendment, it is proposed that the prosecution would
not need to prove that a person knew that the conduct occurred in the
circumstances mentioned in subsections 385.5(3) or 385.10(3). Absolute
liability would apply. The effect of applying absolute liability to this
element would mean that no fault element needs to be proved and the defence of
mistake of fact is not available.[12]
2.15
It is indicated that, in relation to both Division 383 and 385:
Absolute liability is appropriate and required for this
element of the offences because it is a jurisdictional element. A
jurisdictional element of an offence is an element that does not relate to the
substance of the offence, but marks a jurisdictional boundary between matters
that fall within the legislative power of the Commonwealth, States or
Territories. This is consistent with Commonwealth criminal law policy, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers. [13]
2.16
Item 2 would insert definitions for the following terms:
-
animal enterprise;
-
constitutional communication;
-
economic damage;
-
federally regulated entity;
-
serious bodily injury; and
-
substantial bodily injury.[14]
Part 2 – Consequential Amendments
2.17
The EM indicates that, under Part 2, a number of amendments are proposed
in relation to defined terms that are to be used in new Part 9.7 of the Criminal
Code Act 1995. The terms 'Commonwealth place' and 'constitutional trade and
commerce' are already used, and defined, elsewhere in the Criminal Code
so the definitions for these terms have been moved to the Dictionary, without
any changes, so that each term is only defined in one place. Part 2 also
includes two new signpost definitions for 'close family member' and 'malicious
cruelty to animals' and replaces a reference to postal, telegraphic, telephonic
communications in paragraph 400.2A(4)(b) with the new term of 'constitutional
communication' that is inserted by Part 1.
Senate Standing Committee for the Scrutiny of Bills – comments on bill
2.18
Under its terms of reference the Senate Standing Committee for the
Scrutiny of Bills (the Scrutiny committee) is appointed to report, in respect
of the clauses of bills introduced into the Senate or the provisions of bills
not yet before the Senate, and in respect of Acts of the Parliament, whether
such bills or Acts, by express words or otherwise:[15]
- trespass unduly on personal rights and liberties;
-
make rights, liberties or obligations unduly dependent upon
insufficiently defined administrative powers;
- make rights, liberties or obligations unduly dependent upon
non-reviewable decisions;
-
inappropriately delegate legislative powers; or
-
insufficiently subject the exercise of legislative power to
parliamentary scrutiny.
2.19
The Scrutiny committee examined the bill and its provisions. The
Scrutiny committee's findings are summarised below.
Undue trespass on personal rights
and liberties – reversal of burden of proof – schedule 1, item 1, proposed
subsection 383.5(3)
2.20
In commenting on Schedule 1, Item 1, proposed subsection 383.5(3), the
Scrutiny committee noted that the proposed subsection provides that the
defendant would bear an evidential burden in relation to making out the matter
in paragraph 383.5(1)(c), namely, that malicious cruelty was not reported to a
relevant authority within one day after the activity occurred and that the
visual record of that activity was not given to the relevant authority within
five days. The Scrutiny committee acknowledged the argument provided in the EM as
to why this approach is appropriate.[16]
However, it argued that:
On the other hand, it may be noted that the matter the
defendant is being required to prove is central to the question of liability
for the offence. Further, it is arguably the case that the relevant authorities
should be required to implement systems which facilitate proof through systems
for recording, processing and storing records. Given the existence of such
systems it may be considered inappropriate to require defendants to discharge
an evidential burden of proof. It is also suggested that the appropriateness of
placing an evidential burden on defendants may be thought problematic as the
entities to whom disclosure of cruelty reports and delivery of records must be
made is not defined with precision, but by reference to whether the authority
has 'responsibility for enforcing laws relating to animal welfare'. In light of
these matters and the brevity of the justification offered for the approach the
committee seeks the Senator's more detailed explanation of the reversal of onus
be sought. The committee therefore seeks the Senator's explanation as to why
the entities to whom disclosure of cruelty and the delivery of records must be
made cannot be defined with more precision as uncertainty in the operation of
offences may also be considered to trespass on personal rights and liberties.[17]
Undue trespass on personal rights
and liberties – absolute liability schedule 1 item 1, proposed subsections
383.5(5), 385.5(4) and 385.10(4)
2.21
The Scrutiny committee noted that absolute liability applied in relation
to the 'jurisdictional' element of the offence set out in subsection 383.5(4).
The Scrutiny committee indicated that, in light of the explanation at page four
of the EM – which is consistent with the Guide to Framing Commonwealth
offences, Civil Penalties and Enforcement Powers – it would make no further
comment in relation to this issue.[18]
2.22
The Scrutiny committee noted that this same issue also arises in
relation to subsection 385.5(4) and subsection 385.10(4). The Scrutiny
committee indicated that in the circumstances, it would make no further comment
on these subsections.[19]
Undue trespass on personal rights
and liberties – new offences and penalties – schedule 1, item 1, proposed
subsection 385.5(1), 385.10(1), section 385.20
2.23
The Scrutiny committee noted that these provisions detail proposed penalties
for the offences of destroying or damaging property connected with an animal
enterprise, causing fear of death or serious bodily injury to a person
connected with the carrying on of an animal enterprise. It was also noted that
section 385.20 sets out aggravated offences in relation to conduct that results
in the differing levels of economic damage or that results in physical injury
or death.[20]
2.24
The Scrutiny committee also observed that the penalties proposed involve
significant custodial sentences ranging from 1 year imprisonment to life
imprisonment. In response to which it was stated that:
The committee's normal expectation is that new offences will
be justified by reference to (a) the need for the offences where existing
offences would also cover the conduct (e.g. crimes against property and
persons) and (b) that penalties imposed for new offences be justified by
comparison with those imposed for similar offences in Commonwealth legislation.
As the explanatory memorandum does not address these matters, the committee
seeks the Senator's comprehensive justification for the proposed approach.[21]
Undue trespass on personal rights
and liberties – reversal of burden of proof – schedule 1, item 1, proposed
subsection 385.15
2.25
The Scrutiny committee noted that this provides for three defences to
conduct which would otherwise be caught by offences in Division 385. The proposed
defences are that the conduct is:
- peaceful picketing, or some other legally sanctioned peaceful
demonstration;
-
done in good faith in connection with an industry dispute or an
industrial matter; or
-
publishing in good faith a report or commentary about a matter of public
interest.[22]
2.26
It was also observed by the Scrutiny committee that, in relation to each
of these defences, a defendant bears an evidential burden of proof.
2.27
The Scrutiny committee acknowledged that the bill's Statement of Compatibility
(at page eight) states:
This is appropriate as it reflects the fact that it would be
significantly more difficult and costly for the prosecution to in effect prove
matters such as the fact that the activity was not reported, as information
about whether the matter was reported would in most cases be peculiarly within
the knowledge of the defendant.[23]
2.28
It went on to argue however, that:
Unfortunately this justification for the approach lacks
specificity and seems directed only to the offence in Division 383, not those
in Division 385. Given that aggravated versions of the offences attract very
significant penalties and that the matters in the offence are central to the
question of liability, the committee seeks the Senator's detailed
justification for this approach.[24]
2.29
The Scrutiny committee concluded as follows in relation to the three amendments
summarised above:
Pending the Senator's reply, the committee draws Senators'
attention to the provisions, as they may be considered to trespass unduly on
personal rights and liberties, in breach of principle 1(a)(i) of the
committee's terms of reference.[25]
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