Prevention of Cruelty to Animals Amendment (Transparency and Fit and Proper Persons) Bill 2024

WHAT IS THE BILL?

The object of the Prevention of Cruelty to Animals Amendment (Transparency and Fit and Proper Persons) Bill 2024 is to—

  1.  amend the Prevention of Cruelty to Animals Act 1979 (the POCTA Act) and the Prevention of Cruelty to Animals Regulation 2012 to expand and improve the transparency of animal welfare enforcement, and
  2. amend the Government Information (Public Access) Regulation 2018 to declare a charitable organisation approved by the Minister (an approved charitable organisation) as a public authority under the Government Information (Public Access) Act 2009 (the GIPA Act), and
  3. amend the Ombudsman Regulation 2016 to declare an approved charitable organisation as a public authority under the Ombudsman Act 1974 (the OA), and
  4. make consequential amendments to certain Acts and a regulation.

WHAT IS A SHADOW SPI?

The Shadow SPI is a new initiative of the Susan McKinnon Foundation that builds upon the work of the Evidence Based Policy Research Project. It seeks to support parliamentarians in the Legislative Council of NSW during the legislative consideration and voting process, to inform decision making and robust parliamentary debate. It is also intended to improve the quality of tabled SPIs and their usefulness, and to shine a light on the importance of transparency in policy making. Each Shadow SPI is collectively developed by a collaborative team from two ideologically differentiated think tanks (Per Capita and Blueprint Institute) and is intended to be utilised as a companion to the tabled Government Statement of Public Interest in the Legislative Council of NSW. The Shadow SPIs aim to demonstrate a comprehensively answered SPI, within the constraints of time and publicly available information.

SHADOW SPI – PREVENTION OF CRUELTY TO ANIMALS AMENDMENT (TRANSPARENCY AND FIT AND PROPER PERSONS) BILL 2024

This Shadow SPI was developed by Blueprint Institute and reviewed by Per Capita.

Need: Why is the policy needed based on factual evidence and stakeholder input?

 The Prevention of Cruelty to Animals Amendment (Transparency and Fit and Proper Persons) Bill 2024 (‘the Bill’) makes amendments to the animal welfare legislative framework in NSW to increase the transparency of Approved Charitable Organisations (‘ACOs’) carrying out the enforcement functions of the Prevention of Cruelty to Animals Act 1979 (‘POCTAA’) and to strengthen restrictions on who may purchase or own an animal or engage in work involving direct contact or care of an animal.[i]

Alongside the Animal Research Act 1985 and the Exhibited Animals Protection Act 1986, the POCTAA is a critical part of NSW’s animal welfare legislation. In addition to prescribing care standards for animals in different settings (such as domestic, farm, and research settings), the POCTAA sets out a list of animal cruelty offences and their associated penalties. The POCTAA also mandates that in addition to NSW Police, ACOs may be appointed to carry out the enforcement functions of the POCTAA.[ii] Currently, only RSPCA NSW and the Animal Welfare League are ACOs.[iii]

Animal welfare has been an area of significant public interest. To this point, the NSW Parliament has conducted numerous inquiries over the last decade concerning animal welfare protections, with particular focus on the subjects of animal research, greyhound racing, companion animal breeding, and stock animal care.[iv]

The NSW Government has committed to:

  1. Reviewing the funding arrangements for Approved Charitable Organisations legislated to conduct compliance and enforcement activities under the POCTAA; and
  2. Introducing a ‘fit and proper person’ regime that will prevent people convicted of an aggravated animal cruelty offence, multiple or repeat animal cruelty offences from being involved in the keeping and breeding of companion animals.[v]

The Bill delivers the above commitments in relation to the fit and proper person regime and introduces provisions to improve ACO transparency, thereby supporting the commitment to conduct a review of the funding provided to these organisations.

The parties affected by this Bill are: RSPCA NSW and the Animal Welfare League (via new reporting and information sharing requirements for ACOs)[vi]; the NSW Ombudsman (via the new responsibility to manage complaints about ACOs on the carrying out of their functions)[vii]; the Minister for Agriculture (via new powers to appoint officers and inspectors under the POCTAA and the ability to delegate certain functions)[viii]; officers and inspectors appointed under the POCTAA (via new obligations to show proof of authority when requested to do so)[ix]; persons convicted of several animal cruelty offences (via strengthened disqualification orders preventing their keeping of or caring for animals)[x]; and animals in NSW (via stronger protections for their welfare and safety).

With regard to prohibiting persons convicted of animal cruelty offences from keeping or caring for animals, the Government previously amended the POCTAA so that persons convicted of a serious interstate animal offence may not purchase or own an animal or engage in work involving direct contact with an animal, and so that persons convicted of animal cruelty offences may not breed animals, manage or control a business breeding animals, or work with or care for animals in a business related to breeding animals.[xi]

This Bill seeks to address a gap in the current animal welfare legislative framework by creating a new offence to duplicate the restrictions currently placed on persons convicted of serious interstate animal offences to apply to persons convicted of either aggravated animal cruelty or repeat animal cruelty offenders. By extending the prohibition against keeping or caring for animals to apply to persons who have demonstrated repeat behaviour that endangers animal welfare, animals in domestic and business settings that are not related to breeding will be better protected against the potential of that person committing future animal cruelty offences. As such, this amendment to the POCTAA sets “a clear and unambiguous standard that repeat cruelty is unequivocally unacceptable and should disqualify an individual from having the privilege of animal ownership or care”.[xii]

The need for increased transparency of ACOs in carrying out their enforcement functions under the POCTAA is supported by stakeholder evidence given at the 2021 Inquiry into the Approved Charitable Organisations under the Prevention of Cruelty to Animals Act 1979.[xiii] Evidence given at the 2021 inquiry indicated that information made publicly available by ACOs provide little insight into their operation with regard to the POCTAA, with a lack of useful data from which emerging trends in animal welfare incidents could be assessed.[xiv] The lack of public accountability for ACOs’ actions was also raised in the current Inquiry into the Operation of Approved Charitable Organisations under the Prevention of Cruelty to Animals Act 1979, with testimony indicating a strong public demand for information on ACOs’ costs in carrying out their enforcement functions under the POCTAA.[xv]

The insufficiency of public reporting requirements for ACOs was reflected in recommendation 11 of the Select Committee on Animal Cruelty Laws—the Committee’s recommendation that ACOs be required to table their annual reports in both Houses of the NSW Parliament and to comply with requests under the Government Information (Public Access) Act 2009 (‘the Government Information Act’) have been incorporated into the Bill.[xvi] These changes will bring the transparency arrangements for ACOs in line with equivalent regulatory bodies and jurisdictions across Australia.[xvii] Similarly, bringing the conduct of ACOs and their inspectors in enforcing the POCTAA under the jurisdiction of the NSW Ombudsman responds to stakeholder feedback to increase public scrutiny and procedural fairness into the operation of ACOs in relation to the POCTAA.[xviii]

As supported by stakeholder evidence provided to Parliamentary Inquiries, targeted consultation with stakeholders held by the Minister of Agriculture, and a review of previous animal welfare reform work undertaken by the Department of Primary Industries, the amendments in this Bill are necessary to address current gaps in the animal welfare legislation framework and to improve the transparency (and thus accountability) of ACOs in carrying out their statutory functions under the POCTAA. 

COMMENT
Although the Government SPI provided some context to NSW’s current animal welfare legislative framework and evidenced the actions of the Bill in stakeholder feedback, it failed to explicitly identify the problem spurring the need for the Bill—that being, a lack of public accountability in the operation of ACOs in enforcing the POCTAA and gaps in legislation which jeopardise animal welfare. 

The SPI could have been improved by providing a more detailed analysis of the POCTAA and the identity and role of the ACOs in enforcing it, as well as clearly identifying stakeholders who will be impacted by the Bill and how. Nonetheless, the Government SPI appropriately indicated that the BIl is a follow-on from Government commitments and highlighted the work undertaken by Parliamentary Inquiries which form the evidential basis of the Bill.

Objective: What is the policy’s objective couched in terms of the public interest?

As demonstrated in stakeholder feedback during the numerous Parliamentary Inquiries into animal welfare held throughout the years, there is a strong community interest in maintaining rigorous animal welfare standards in NSW.[i] This Bill serves this public interest by strengthening protections for animals and by improving the transparency and functioning of the current animal welfare legislative frameworks.

For instance, the Bill contains several provisions which seek to increase public accountability towards the conduct of ACOs with regard to upholding animal welfare protections. One of these provisions brings the conduct of ACOs and their officers in enforcing the POCTAA under the remit of the NSW Ombudsman, thereby granting citizens an independent complaints mechanism through which to hold ACOs accountable. Increased transparency and accountability of ACOs responsible for legislative enforcement functions serves the public interest by increasing public trust in the ACOs in their ability to effectively perform statutory functions despite having an organisational structure sitting outside of government control. 

Furthermore, the Bill seeks to implement information sharing provisions to permit ACOs and other entities exercising functions under the POCTAA to collect, use, and disclose any information necessary to administer and enforce the POCTAA. Stakeholder feedback in the 2021 inquiry indicated that the lack of information sharing between ACOs and NSW Police was an impediment to the effective functioning of the POCTAA, particularly with regard to information about persons convicted of animal cruelty offences.[ii]

Improving communication between agencies enforcing the POCTAA serves the public interest not only by enhancing opportunities for preventative measures against animal cruelty (i.e. by identifying, monitoring, and disqualifying repeat or severe animal cruelty offenders from being in contact with animals) —information sharing measures may also result in increased public safety, given research conducted into the link between violence against animals and the propensity to commit violence against humans.[iii]

Although information sharing provisions may pose a threat to the public interest to privacy, the provisions in the Bill mitigate this risk by legislating that ACOs may only collect, use, and disclose information “A relevant agency may collect, use or disclose information if it is reasonably necessary for the purposes of administering or enforcing” the POCTAA or its regulations.[iv] Moreover, the reasons ACOs may share information to other relevant agencies responsible for enforcing the POCTAA are limited to circumstances that are considered to be a significant risk to safety, necessary for conducting legal proceedings under the POCTAA, or otherwise in relation to the enforcement of the POCTAA.[v] As such, the potential risk to information privacy is well mitigated and balanced in favour of the public interest outcomes of the Bill in upholding animal welfare protections and increased public trust in the entities responsible for enforcing animal welfare protections.

COMMENT
The Government SPI does allude to the public interest concerns addressed by the Bill—yet the explanation of how the Bill serves the public interest appears as secondary to information provided on what the Bill’s provisions actually do. This demonstrates a misguided understanding of what the Objectives section of an SPI is intended for – that is to illustrate the specific ways in which the Bill addresses the need for the Bill, with an emphasis on how the Bill serves the public interest. Although the Government SPI contained sufficient information to satisfy the purpose of the Objectives section, the writer would be better positioned to focus more on the public interest implications of the Bill’s provisions (including risks to alternate public interests and their mitigation) rather than providing as detailed of an explanation of the Bill’s provisions themselves.

Options: What alternative policies and mechanisms were considered in advance of the bill?

  1. Taking no action (no change) – maintaining the current animal welfare regulatory framework.
  2. Non-regulatory approaches seeking to achieve the objectives identified above, such as written agreements such as a Memorandum of Understanding between Government and the ACOs.
  3. Legislating ACO compliance with all of the Government Information Public Access (GIPA) Act 2009 (‘GIPA’) requirements.
  4. Legislating ACO compliance with some GIPA requirements, alongside carefully considered reporting requirements and information sharing provisions.
  5. Legislating ACO compliance with some GIPA requirements, alongside carefully considered reporting requirements and information sharing provisions and expanded disqualification orders on persons convicted of animal cruelty.

Given stakeholder support for a high level of ACO transparency and support for legislated change, non-legislative options (i.e. maintaining the status quo or non-regulatory approaches) were considered insufficient to secure the level of public accountability of ACOs to satisfy the public interest. Furthermore, a legislative approach was necessary to expand and strengthen existing restrictions for persons convicted of animal cruelty as authorised by statute.

COMMENT
The Government SPI appropriately identified alternate policies considered in advance for the Bill, including the option to maintain the status quo of the animal welfare policy framework. The Government SPI also provides a convincing justification for why legislative action is required to solve the identified problem and meet the Bill’s public interest objectives. To improve in this section, the Government SPI could have detailed legislative options which were considered in the creation of the Bill, including the final policy which was chosen. By providing a comprehensive list of policy options considered in solving the identified problem, Members may be better informed on the decision-making processes undertaken in the creation of the Bill.

Analysis: What were the pros/cons and benefits/costs of each option considered?

  1. Taking no action (no change) – maintaining the current animal welfare regulatory framework.
    – Maintaining the status quo would act contrary to the public interest in protecting animal welfare by leaving issues raised by stakeholder feedback unaddressed.
    – Taking no action risks further entrenching the consultation fatigue felt by stakeholders as brought up during the current inquiry concerning ACOs and the POCTAA, thereby risking meaningful stakeholder engagement on this topic in the future.[i]
    – On account of the breadth of stakeholder feedback indicating a need to address public accountability of ACOs and opportunities to strengthen NSW’s animal welfare legislative framework, some action must be taken.

  2. Non-regulatory approaches seeking to achieve the objectives identified above, such as written agreements such as a Memorandum of Understanding between Government and the ACOs.
    – Given stakeholder support for a high level of ACO transparency and support for legislated change, non-legislative options are insufficient to secure the level of public accountability of ACOs to satisfy the public interest.

  3. Legislating ACO compliance with all of the GIPA requirements.
    – Legislating ACO compliance with GIPA requirements with respect to the exercise of their functions under the POCTAA enables members of the public to have clarity and oversight into the operation of ACOs.
    – Some of the information required to be published by an ACO under GIPA would already be included in the ACOs annual reports as mandated by POCTAA, therefore posing an unnecessary administrative burden and spending resources which could be deployed towards animal welfare activities.

  4. Legislating ACO compliance with some GIPA requirements (excluding section 6 and part 3), alongside carefully considered reporting requirements.
    – Exempting ACOs from regulations mandating the proactive release of information under GIPA prevents “unnecessary duplicative administrative burden on the ACOs”.[i]
    – This option would permit comprehensive public oversight into the operation and conduct of ACOs and their officers in carrying out their functions under the POCTAA, without imposing unnecessary administrative burdens on ACOs.
    – This option addresses stakeholder feedback on increasing transparency and public accountability into ACOs in a holistic manner, but does not address stakeholder feedback regarding opportunities to make the animal welfare legislative protections more effective in safeguarding animals.

  5. Legislating ACO compliance with some GIPA requirements, alongside carefully considered reporting requirements and information sharing provisions and expanded disqualification orders on persons convicted of animal cruelty.
    – This option would permit comprehensive public oversight into the operation and conduct of ACOs and their officers in carrying out their functions under the POCTAA, without imposing unnecessary administrative burdens on ACOs.
    – This option would also address stakeholder feedback and the public interest in strengthening the legislative framework for prosecuting and protecting animal welfare via increased information sharing and expanded restrictions on individuals with a history of animal cruelty.
    – Increased information sharing would permit better functioning of the POCTAA in protecting animal welfare, with restrictions on the circumstances in which information can be shared ensuring that information privacy risks are minimised.

COMMENT
By focusing on the costs and disadvantages of the alternate policy options, the Government SPI reads as a defense of the chosen policy option, rather than a genuine analysis of the merits and disadvantages of all policy options considered in the drafting of the Bill. The aim of the Analysis section of an SPI is to indicate why the policy in the Bill was considered most appropriate to address the identified issue amongst alternate options—as such, the Government SPI would be improved by undertaking a more rigorous analysis of the benefits of each option in addition to their disadvantages, and by providing more in-depth comparison between options.

Pathway: What are the timetable and steps for the policy’s rollout and who will administer it?

The Bill will commence on assent. The Bill contains minor transitional provisions which ensure that the Bill will function as intended—such as ensuring that persons previously appointed as officers or inspectors for the purposes of enforcing the POCTAA will retain that role after the passing of the Bill.[i]

Implementation measures will include, for example, producing and distributing identification documents to officers and inspectors appointed under the POCTAA and ensuring that stakeholders are aware of their new obligations under the Bill.

The POCTAA is jointly administered by the Minister for Agriculture and the Minister for Local Government. The Department of Regional NSW, the lead agency for animal welfare in NSW, will implement the changes in consultation with the ACOs, and other relevant agencies including NSW Police, the Information and Privacy Commission NSW, and the NSW Ombudsman.

The Bill does not contain any plans for review or evaluation of its measures. However, evaluation of the changes may be documented in the mandatory annual reporting of the NSW Ombudsman or in a special report by the ACOs upon request of the Minister, according to current statutory requirements.[ii]

COMMENT
The Government SPI appropriately indicates some timeframe for the implementation of the Bill as well as the parties responsible for implementation, however it does not identify any specific implementation measure necessary to the Bill or processes by which the measures in the Bill may be reviewed or evaluated. It is important to clarify each of these implementation elements to provide Members with information that will assist them to make an informed decision as to how to deal with the bill, and to demonstrate sound policymaking.

Consultation: Were the views of affected stakeholders sought and considered in making the policy?

Targeted consultations with stakeholders representing the viewpoints of the ACOs, animal welfare groups, animal-related industries, and law enforcement in relation to the Bill were held in May 2024. These consultations included:

  • RSPCA NSW;
  • Animal Welfare League;
  • NSW Police;
  • Greyhound Welfare Integrity Commission;
  • Animal Research Review Panel;
  • Exhibited Animals Advisory Committee;
  • Veterinary Practitioners Board;
  • Australian Veterinary Association;
  • NSW Farmers Association;
  • Dogs NSW; and
  • Animal Care Australia.

The Department of Primary Industries also conducted consultation across government in relation to the Bill, including with the NSW Information Privacy Commission and the NSW Ombudsman.

Community feedback in relation to the animal welfare framework were reviewed in the drafting of the Bill, including the 2021 and 2023 annual inquiries into ACO operations under POCTAA. Views of stakeholders during these inquiries were incorporated into the Bill, for example the demand for strengthened information sharing provisions for AOCs and greater public oversight into their conduct.[i]

COMMENT:
The Government SPI comprehensively details stakeholders and partners consulted in the creation of the Bill, including evidence given at relevant Parliamentary Inquiries which formed the basis for many of the Bill’s provisions. The SPI also appropriately indicates the strong level of community interest in the Bill. The Government SPI could be minorly improved by indicating the range of interests which consulted stakeholders represent, but more importantly by explaining how stakeholder consultation impacted the provisions in the Bill.

ASSESSMENT


BLUEPRINT INSTITUTE COMMENT:

The provisions in the Bill are indicative of sound policy making as—informed by extensive stakeholder consultation and Parliamentary Inquiries—they appropriately mitigate unwanted consequences while satisfying the public interest to increase the transparency of Approved Charitable Organisations in enforcing the Prevention of Cruelty to Animals Act and improving animal welfare protections more generally. While the Government SPI alludes to some of these considerations in the creation of the Bill, it does not provide nearly enough detail on the critical points to best inform Members on how to treat the Bill. For example, the need for the Bill is never clearly articulated, nor is a comprehensive analysis of alternate policy options as necessary to support what is proposed in the Bill. Although this Government SPI is adequate for its purposes, it could be vastly improved with keener attention paid to the inclusion of the policymaking processes which evidence its merit.

PER CAPITA COMMENT:

Per Capita considers this SPI to be Good Practice. It makes out the need for the Bill, acknowledging the importance of appropriate transparency and accountability requirements for enforcement agencies, particularly those that are independent from government; and ensuring NSW has strong and appropriate animal welfare laws under the strongest possible regulatory framework to prevent cruelty and promote responsible animal ownership and care in NSW. It supports these propositions with reference to stakeholder feedback in numerous Parliamentary Inquiries and provides relevant context for the policy provided by the Bill.  

The Government SPI makes out how the policy serves the public interest with specific examples and links these to the need for, and objective of, the Bill. It provides analysis of the options considered and ultimately argues why the legislative option was the chosen pathway.

The implementation pathway is set out. It notes when the law will commence, as well as the relevant government agencies and stakeholders responsible for, and involved in, its implementation.  It also provides detailed evidence of stakeholder views that were considered in the making of the policy. 

The SPI could have benefited from further evidence supporting the argument for the need for the policy, for clarity and to strengthen the argument, although we note that this can be found in documents related to the listed inquiries so as to make this information available to Members.  It also could have provided some further detail in the analysis section on any costs of the chosen pathway, e.g. potential administrative burdens or other costs if they exist.  While SPIs should be succinct and not overly repetitive, some of the previously noted benefits of the policy could have been included in this section to better compare the options considered.

The purpose of the statement is to provide Members with information that will assist them to make an informed decision as to how to deal with the bill, and to demonstrate sound policy-making. In our opinion the Government SPI does this very well.

Assessment of the tabled Statement of Public Interest (SPI)

Exemplary

Good Practice

Adequate

Insufficient

[i] Prevention of Cruelty to Animals Act 1979 (NSW) s 31AB.

[ii] Ibid. s 34B; Department of Primary Industries (NSW) Animal Welfare Reform (Discussion Paper. July 2021) 26.

[iii] New South Wales, Parliamentary Debates, Legislative Council, 6 June 2024 (Tara Moriarty, Minister for Agriculture, Minister for Regional New South Wales, and Minister for Western New South Wales).

[iv] ‘Inquiries’, Parliament of New South Wales (Web Page).

[v] ‘Animal Welfare Reform’, Department of Primary Industries NSW (Web Page).

[vi] Prevention of Cruelty to Animals (Transparency and Fit and Proper Persons) Bill 2024 (NSW) sch 1[14]; sch 2[4]; sch 3.

[vii] Ibid. sch [4].

[viii] Ibid. sch 1[3;15].

[ix] Ibid. 1[3].

[x] Ibid. sch 1[9]

[xi] Prevention of Cruelty to Animals (Prohibitions for Convicted Persons) Bill 2022 (NSW) sch 1[8].

[xii] New South Wales, Parliamentary Debates, Legislative Council, 6 June 2024 (Tara Moriarty, Minister for Agriculture, Minister for Regional New South Wales, and Minister for Western New South Wales).

[xiii] Portfolio Committee No. 4 – Customer Service and Natural Resources, Parliament of New South Wales, 2021 Inquiry into the Approved Charitable Organisations under the Prevention of Cruelty to Animals Act 1979 (Report, June 2022) 26-31.

[xiv] Ibid. 27.

[xv] Portfolio Committee No. 4 – Regional NSW, Parliament of New South Wales, 2023 Inquiry into the Operation of Approved Charitable Organisations under the Prevention of Cruelty to Animals Act 1979 (Report on Proceedings, 26 April 2024) 9; 14.

[xvi] Adam Marshall, Parliament of New South Wales, NSW Government Response to the Select Committee on Animal Cruelty Laws in New South Wales (30 November 2020) 3-4.

[xvii] New South Wales, Parliamentary Debates, Legislative Council, 6 June 2024 (Tara Moriarty, Minister for Agriculture, Minister for Regional New South Wales, and Minister for Western New South Wales).

[xviii] Standing Committee on State Development, Parliament of New South Wales, Animal Welfare Policy in New South Wales (First report, June 2022) 23.

[i] ‘Inquiries’, Parliament of New South Wales (Web Page).

[ii] Select Committee on Animal Cruelty Laws in New South Wales, Parliament of New South Wales, Animal Cruelty Laws in New South Wales (Report, June 2020) 23.

[iii] Charlie Robinson and Victoria Clausen, ‘The Link Between Animal Cruelty and Human Violence’, Law Enforcement Bulletin (Web Article).

[i] Portfolio Committee No. 4 – Regional NSW, Parliament of New South Wales, 2023 Inquiry into the Operation of Approved Charitable Organisations under the Prevention of Cruelty to Animals Act 1979 (Report on Proceedings, 26 April 2024) 9.

[ii] New South Wales, Parliamentary Debates, Legislative Council, 6 June 2024 (Tara Moriarty, Minister for Agriculture, Minister for Regional New South Wales, and Minister for Western New South Wales).

[iv] Prevention of Cruelty to Animals (Transparency and Fit and Proper Persons) Bill 2024 (NSW) sch 1[14].

[v] Ibid.

[i] Prevention of Cruelty to Animals (Transparency and Fit and Proper Persons) Bill 2024 (NSW) sch 1[16].

[ii] Ombudsman Act 1974 (NSW) s 30; Prevention of Cruelty to Animals Act 1979 (NSW) s 34B(4).

[i] New South Wales, Parliamentary Debates, Legislative Council, 6 June 2024 (Tara Moriarty, Minister for Agriculture, Minister for Regional New South Wales, and Minister for Western New South Wales).