Page 1232 - Week 04 - Tuesday, 23 March 2010
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be a disallowable instrument. The Animal Welfare Act 1992 already requires non-mandatory codes to be published and this requirement will be extended to new mandatory codes.
It is expected that the process of code development, consultation and notification will also help promulgate the existence of animal welfare codes. Nevertheless, it is possible that ordinary members of the community could, at the end of the day, not know of the existence of codes that might affect them. Therefore, in addition to the requirement to consult and to publish a mandatory code of practice, the operation of the strict liability offence will also be subject to special arrangements where an offender might not reasonably be expected to know of his or her obligations under a code.
It has been explained that the bill introduces two offences for failing to comply with a mandatory code of practice. The first, in section 24A, is that of recklessly failing to follow a requirement of a mandatory code. This will attract a penalty of up to 100Â penalty units. The second offence, in section 24B, is a strict liability offence of failing to comply with a requirement of a mandatory code. This will attract a penalty of up to 50 penalty units.
In certain circumstances the strict liability offence cannot be applied without first giving the person an opportunity to rectify their failure to follow the code. This is set out in section 24C. An inspector or authorised officer must first give a person a direction to rectify a breach if they reasonably believe that the offender, who is in breach of a code, has done so in relation to a non-business activity engaged in by the person. If the person has previously been found guilty or convicted of an offence against section 24A or 24B, or failed to comply with a direction under section 24C, then they can be prosecuted without the need to issue a rectification direction.
The intention of section 24C is to give people, particularly those not involved in business or industry who could not be reasonably expected to know about a code, the opportunity to correct their breach without the risk of being prosecuted under the strict liability offence in section 24B. However, egregious animal welfare abuses can still be prosecuted under the existing animal cruelty provisions of the act or, indeed, under section 24A, provided the requisite level of intention to commit the relevant offence can be established.
If a person is given a direction to comply with a code of practice under section 24C, the inspector or authorised officer issuing the direction must tell the person how they have breached the code and they must give the person a reasonable time to comply with the direction. They must also warn the person that they may be prosecuted if they fail to comply with the direction. It might be considered that the issuing of a direction should be a reviewable decision—reviewable by, say, the ACT Civil and Administrative Tribunal. However, the government believes that such an approach blurs criminal and administrative law procedures.
The procedure in section 24C is a means of relaxing the operation of the strict liability offence provision in section 24B. If a prosecution is to proceed under section 24B because a person has failed to comply with a section 24C direction, then the adequacy of the direction should be tested via the criminal courts. I have no doubt that the
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