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Students at the prestigious Kings School in Sydney are being investigated by police over allegations they tortured and killed a goanna during a school camp at the end of last term.
The school has admitted that students killed the native animal and police are now involved in the incident. It has issued a statement to the effect that it does not condone the actions of the student and the “actions of those involved do not reflect the values of the school,” although it has not confirmed whether the students have been disciplined by the school itself.
School staff reported the incident to police and the Defence force.
Goannas are reptiles – there are about 20 species of goanna, 15 of which are native to Australia. The Goanna features prominently in Aboriginal mythology and while goannas are not listed as endangered at a national level, there are several species of goanna that are currently under threat and they do need help from humans to survive – this means not disturbing their local habitats or harming them as a species.
The allegations levelled at the students are that they killed the reptile during a cadet camp at the Singleton Military Area in the Hunter Valley.
No one has yet been charged with a criminal offence.
The offence of harming an animal NSW
However, there are safeguards in the NSW Biodiversity Conservation Act 2016 (No 63) to protect animals and plants and the law takes these very seriously. Section 2.1 outlines the offence of harming animals, it states:
(1) A person who harms or attempts to harm—
(a) an animal that is of a threatened species, or
(b) an animal that is part of a threatened ecological community, or
(c) a protected animal,
Is guilty of an offence.
The maximum penalty are as follows: (there are additional penalties for each animal) —
(a) in the case of an animal that is (or is part of) a threatened species or threatened ecological community (other than a vulnerable species or community) —Tier 1 monetary penalty or imprisonment for 2 years, or both, or
(b) in the case of an animal that is (or is part of) a vulnerable species or vulnerable ecological community—Tier 3 monetary penalty, or
(c) in any other case—Tier 4 monetary penalty.
(2) If the act that harms an animal is the clearing of native vegetation by or on behalf of a landholder on category 1-exempt land under Part 5A of the Local Land Services Act 2013, the person does not commit an offence under this section unless it is established that the person knew that the act would be likely to harm the animal. Exempt land is determined by the NSW Government – on this category of land, native vegetation can be cleared without approval.
The financial penalties are severe:
Tier 1
The maximum monetary penalty for a Tier 1 offence in the case of a corporation is $1,650,000, and an additional daily penalty can apply to an offence which would mean an additional $165,000 for each day the offence continues.
Where there is more than one animal or plant involved in the offence, a further $165,000 for each animal or whole plant applies to each.
For an individual the maximum penalty for a Tier 1 offence is $330,000. A further $33,000 applies for each day the offence continues, and / or an additional $33,000 applies to each
each animal or whole plant to which the offence relates.
Tier 3
The maximum monetary penalty for a Tier 3 offence is, in the case of a corporation–
$440,000, and an additional $44,000 for each day the offence continues, or for each additional animal or whole plant.
(b) in the case of an individual the penalty is $88,000, and a further $8,800 for each day the offence continues, and / or for each animal or plant to which the offence relates.
Tier 4
The maximum monetary penalty for Tier 4 for a corporation is $110,000, and a further $11,000 for each day the offence continues and / or for each animal or plant.
In the case of an individual, the maximum penalty for a Tier 4 offence is $22,000, and a further $2,200 for each day the offence continues, and / or for each animal or plant.
Section 5 of the Prevention of Cruelty to Animals Act 1979 (NSW) (‘the Act’) makes it an offence to commit ‘an act of cruelty’ upon an animal.
Section 4 of the Act defines an ‘animal’ as:
(a) a member of a vertebrate species including any:
(i) amphibian, or
(ii) bird, or
(iii) fish, or
(iv) mammal (other than a human being), or
(v) reptile, or
(b) a crustacean but only when at a building or place (such as a restaurant) where food is prepared or offered for consumption by retail sale in the building or place.
The same section defines ‘cruelty’ as including any beating, kicking, wounding of an animal, exposure to excessive heat or cold or inflicting pain on an animal.
Cruelty also includes failing to take reasonable care of an animal, or to take reasonable steps to alleviate pain or suffering, or to provide necessary veterinary treatment.
It is also an offence to authorise another person to commit an act of cruelty on an animal that you own, or are in charge of.
The maximum penalty for animal cruelty is 6 months imprisonment and/or a fine of $5,500 for an individual, or a $27,500 fine for a corporation.
The offence of aggravated animal cruelty in NSW
Section 6 of the Act relates to ‘aggravated cruelty’, which is defined by section 4 as:
(a) causing the death, deformity or serious disablement of the animal, or
(b) where the animal is so severely injured, so diseased or in such a physical condition that it is cruel to keep it alive.
The offence is made out where such an act is deliberately or recklessly caused.
A person is ‘reckless’ if he or she foresaw the possibility of any of the above occurred, but went ahead with the actions regardless.
The maximum penalty for aggravated animal cruelty is 2 years imprisonment and/or a fine of up to $22,000 for individuals, or a fine of $110,000 for corporations.
Defences to animal cruelty charges
A whole range of defences to animal cruelty are contained in section 24 of the Act, including religious slaughter; see section 24(c)(i) below.
The section says that a person is not guilty of animal cruelty where the act was committed against:
(a) (i) a stock animal–in the course of, and for the purpose of, ear-marking or ear-tagging the animal or branding, other than firing or hot iron branding of the face of, the animal,
(ii) a pig of less than 2 months of age or a stock animal of less than 6 months of age which belongs to a class of animals comprising cattle, sheep or goats–in the course of, and for the purpose of, castrating the animal,
(iii) a goat of less than 1 month of age or a stock animal of less than 12 months of age which belongs to the class of animal comprising cattle–in the course of, and for the purpose of, dehorning the animal,
(iv) a sheep of less than 6 months of age–in the course of, and for the purpose of, tailing the animal, or
(v) a sheep of less than 12 months of age–in the course of, and for the purpose of, performing the Mules operation upon the animal, in a manner that inflicted no unnecessary pain upon the animal,
(b) where the act of cruelty is done in the course of, and for the purpose of:
(i) hunting, shooting, snaring, trapping, catching or capturing the animal, or
(ii) destroying the animal, or preparing the animal for destruction, for the purpose of producing food for human consumption, in a manner that inflicted no unnecessary pain upon the animal,
(c) in the course of, and for the purpose of, destroying the animal, or preparing the animal for destruction:
(i) in accordance with the precepts of the Jewish religion or of any other religion prescribed for the purposes of this subparagraph, or
(ii) in compliance with any duty imposed upon that person by or under this or any other Act,
(e) in the course of, and for the purpose of:
(i) carrying out animal research, or
(ii) supplying animals for use in connection with animal research,
in accordance with the provisions of the Animal Research Act 1985, or
(f) for the purpose of feeding a predatory animal lawfully kept by the person if:
(i) the act concerned was the release of live prey for the predatory animal, and
(ii) the diet of the predatory animal included animals of the kind released, and
(iii) the person believed on reasonable grounds that the feeding of live prey to the predatory animal was necessary for the predatory animal’s survival because the predatory animal would not eat a dead animal or meat from a dead animal.
Other defences to the criminal charge include duress and necessity.
The offence of serious animal cruelty in NSW
Section 530 of the Crimes Act 1900 (NSW) makes it an offence punishable by a maximum penalty of 5 years in prison to commit an act of ‘serious animal cruelty’, which is where a person, with the intention of inflicting severe pain:
(a) tortures, beats or commits any other serious act of cruelty on animal, and
(b) kills or seriously injures or causes prolonged suffering to the animal.
For the purposes of the offence,
- An “animal” is defined as a mammal (other than a human being), a bird or a reptile, and
- To “kill or seriously injure” an animal includes using the animal as a lure or kill, and
- A “serious act of cruelty” includes using the animal as a lure or kill.
The section imposes a 3 year maximum penalty where the act was committed recklessly rather than intentionally.
A person is not criminally responsible for the offence if the conduct occurred:
- In accordance with an authority conferred by or under the Animal Research Act 1985 or any other Act or law, or
In the course of or for the purposes of routine agricultural or animal husbandry activities, recognised religious practices, the extermination of pest animals or veterinary practice.
Again, duress and necessity are defences to this charge.
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