Exhibited Animals Protection Act 1986

The Act directly affects several categories of persons and entities. Occupiers of premises used as animal display establishments of a prescribed class are the primary duty-holders under Division 1 of Part 3: they must hold a licence for each establishment, and using unlicensed premises is an offence (s 12(1)). Licensees are also responsible for ensuring the establishment conforms to prescribed standards and is conducted accordingly (s 15(1)). Persons in charge of animals who wish to exhibit those animals at circuses, fairs, amusement parks, or educational institutions must hold an approval unless supervised by a holder (s 22(2)). Any person who exhibits an animal of a prescribed species must hold a permit unless supervised (s 24). The definitions of “person in charge” (s 22(1)) and “occupier” (s 5(1)) are broad: an occupier includes a manager, lessee, or licensee; a person in charge includes the owner, anyone with possession, custody, care, control or supervision, and even a servant or agent bound to comply with directions.

The Crown is bound by the Act (s 3(1)), so government agencies that exhibit animals must comply. The Act also affects inspectors appointed under s 38 (Public Service employees or persons authorised by the Minister), who have extensive powers under s 40. Members of the advisory committee are affected by the disclosure obligations in Schedule 1 clause 7. Corporations are affected by the deeming provision in s 47: directors and persons concerned in management are deemed to have contravened a provision if they knowingly authorised or permitted the corporation’s contravention. Creditors and persons dealing with licensees may be indirectly affected by the bond requirements for cetacea display establishments (s 37). Applicants for authorities are affected by the Secretary’s consideration criteria under s 27(3A), including criminal history, prior compliance, capacity to care for animals, biosecurity risks, and whether the applicant is a fit and proper person. Persons who are disqualified from holding an authority under s 30A may not apply successfully (s 27(3B)). Persons convicted of specified animal-related offences are affected by s 31A, which prohibits authority holders from knowingly employing them to work with or care for exhibited animals.

The Act imposes several core duties. The most fundamental is the duty not to use premises as an animal display establishment of a prescribed class without a licence (s 12(1)), and not to erect or convert premises for that purpose without prior approval (s 18(1)). Licensees must not alter or extend a licensed establishment without the Secretary’s approval (s 19). Persons exhibiting animals at circuses or educational venues must hold or be supervised by a holder of an approval (s 22(2)). Persons exhibiting animals of a prescribed species must hold or be supervised by a holder of a permit (s 24). Holders of any authority must comply with its terms and conditions (s 31(1)(a)), and must surrender a suspended or cancelled authority upon request (s 31(1)(b)). Authority holders must not knowingly cause or permit a prescribed person (convicted of or charged with a relevant offence) to work with or care for exhibited animals (s 31A). A person must not make false or misleading statements in applications or in purported compliance with the Act (s 44), nor disclose information obtained in administering the Act except in permitted circumstances (s 45). Inspectors must produce identification when requested (s 39(3)) and, as far as practicable, avoid impeding lawful exhibition when exercising powers (s 40(3)).

Rights are also conferred. An applicant for an authority may apply to the Civil and Administrative Tribunal for administrative review of decisions to refuse, suspend, cancel, impose or vary terms and conditions, or disqualify (s 32(1)). The lodging of such an application stays the decision pending outcome, effectively preserving the status quo (s 32(2)). Persons served with a notice of refusal are entitled to reasons (s 27(6)). A person who receives a direction from an inspector may seek to challenge it, though the Act does not specify a direct review mechanism for directions. A person whose authority is suspended under s 30(1)(c)(i) is entitled to a notice specifying works required and a time to comply before suspension or cancellation takes effect (s 30(3)-(4)). A person may apply for a refund of the fee if the authority is cancelled at their request or because it was issued in error (s 52). An occupier of a dwelling may refuse entry to an inspector unless a search warrant is obtained (s 40(2)). A person from whom an animal is seized is entitled to its return if it is not sold, disposed of, destroyed, placed in care or returned to the wild within the prescribed period (s 41(2)), though no compensation is payable (s 41(3)).

The Act creates numerous offences with escalating penalties. Using an unlicensed animal display establishment attracts a maximum penalty of 20 penalty units or imprisonment for 6 months, or both (s 12(1)). Erecting or converting premises without approval carries the same penalty (s 18(1)), as does altering or extending a licensed establishment without approval (s 19). Exhibiting animals without the required approval or permit also carries 20 penalty units or 6 months imprisonment (ss 22(2), 24). Contravening any term or condition of an authority is punishable by 10 penalty units (s 31(1)(a)). More serious are offences under s 31(2): falsely claiming to hold an authority, altering an authority, producing a false authority, or impersonating a holder - each attracts 20 penalty units. The most severe penalties are for employing a prescribed person to work with animals: up to 400 penalty units or 1 year imprisonment for an individual, and 2,000 penalty units for a corporation (s 31A(1)). Making false or misleading statements carries 20 penalty units (s 44), and unlawful disclosure of information also carries 20 penalty units (s 45). Offences against inspectors under s 43 (assault, obstruction, failure to comply, etc.) carry 20 penalty units.

Enforcement powers are extensive. Inspectors may enter licensed premises or any place where they reasonably believe a contravention is occurring (s 40(1)(a)), seize animals suspected of being involved in an offence (s 40(1)(g)), seize books and records (s 40(1)(i)), and direct persons to take corrective action (s 40(1)(m)). Seized animals may be sold, destroyed, placed in care, or returned to the wild with the Minister’s approval, and no compensation is payable (s 41). Search warrants from an authorised officer are required to enter a dwelling (s 42). The Secretary must cancel an authority if the holder is convicted of certain animal-related offences after the commencement of s 30(1A), and may suspend or cancel for other breaches, including failure to comply with conditions, non-conformity with standards, or if the holder is not a fit and proper person (s 30(1)). Cancellation triggers mandatory disqualification under s 30A(1) for the offences listed in s 30(1A), and discretionary disqualification for other grounds (s 30A(2)). Disqualification periods cannot exceed 5 years (s 30A(7)). Penalty notices may be issued for prescribed offences, with amounts set by regulation (s 46A). Proceedings are summary before the Local Court, and must be commenced within 2 years of the alleged offence (s 46).

Corporate liability is addressed by s 47: directors and managers who knowingly authorise or permit a corporate contravention are deemed to have contravened the same provision, and may be proceeded against even if the corporation is not.

Section 3(2) explicitly provides that nothing in the Act affects the operation of the Prevention of Cruelty to Animals Act 1979 (POCTA) or its regulations. This means that welfare obligations under POCTA continue to apply in addition to the Exhibition Act’s requirements. Schedule 4 elaborates on the relationship. Clause 1 provides that provisions relating to exhibition of animals in other Acts are to be observed in addition to this Act, but no person is to be punished twice for the same offence. Clause 2 provides a protection: the holder of a licence, approval or permit under this Act is not guilty of an offence under s 107 of the National Parks and Wildlife Act 1974 (which prohibits harming protected fauna) or any prescribed provision of another Act, when exhibiting an animal under the authority. This resolves potential conflicts between exhibition and wildlife protection laws. Clause 3 establishes a hierarchy: where another Act (other than POCTA or the Biosecurity Act 2015) contains an inconsistent provision relating to exhibition of animals, this Act or its regulations prevail. POCTA and the Biosecurity Act are expressly preserved from the inconsistency rule, meaning they can impose stricter requirements that override this Act if inconsistent.

Section 27(3A)(e1) requires the Secretary to consider any biosecurity risk under the Biosecurity Act 2015 when deciding whether to grant an authority, and the applicant’s capacity to prevent, eliminate or minimise that risk. The definition of “animal research” in the exhibition carve-out (s 5(1)(b)) refers to the Animal Research Act 1985. Offences under the Animal Research Act 1985 and the Crimes Act 1900 (ss 79, 79A, 79B, 80, 530, 531) are relevant for disqualification under s 30(1A) and for the employment prohibition under s 31A. The Biodiversity Conservation Act 2016 is also listed in s 30(1A)(a)(iii) as a trigger for mandatory cancellation. The Administrative Decisions Review Act 1997 applies to reviews under s 32, but the stay provision in s 32(2) overrides the default rules in that Act. The Fines Act 1996 applies to penalty notices (s 46A(3)). The Law Enforcement (Powers and Responsibilities) Act 2002 governs search warrants (s 42). The Government Sector Employment Act 2013 does not apply to members of the advisory committee (Sch 1 cl 8(1)). The Ombudsman Act 1974 is referenced as a lawful ground for disclosure of information (s 45(d)). The Biosecurity Act 2015 is excluded from the inconsistency override in Sch 4 cl 3.

The Act has been amended numerous times since its enactment in 1986. The amendments are noted in the source text at the end of each relevant section. Section 5 (definitions) was amended in 1988, 1991, 2004, 2010, 2015, and 2020. The 2020 amendment (No 30) updated the definition of “Department” to Regional NSW and amended s 24 and s 25 to replace “Director-General” with “Secretary” and update headings. Section 6 (advisory committee) was amended in 1994. Section 7 (staff) was amended in 2015 and 2024. Section 12 (licence required) was amended in 1992 and 1996. Section 18 (approval of erection) was amended in 1992. Section 27 (applications) received significant amendments in 1991, 2009, 2012, and 2015. The 2009 amendment (No 78) inserted subsections (3A)-(3B) and (7), adding the fit and proper person test and disqualification grounds. Section 30 (suspension and cancellation) was amended in 2017, 2022, and 2025. Section 30A (disqualification) was inserted in 2009 and amended in 2022. Section 31A (prohibition on employing prescribed persons) was inserted in 2022 and amended in 2025. Part 3 Division 5 (administrative reviews) was substituted in 2009 and amended in 2013 to replace references to the Administrative Decisions Tribunal with the Civil and Administrative Tribunal. Section 46 (proceedings) was amended in 2001, 2007, and 2008. Section 46A (penalty notices) was inserted in 2005 and substituted in 2017. Section 49A (delegation by Secretary) was inserted in 2004 and amended in 2015. Section 51 (service of notices) was substituted in 2017 and amended in 2022. Schedule 1 (members) was amended in 1990, 1996, 2009, 2015, and 2026. Schedule 4 (relationship to other Acts) was amended in 1987 and 2015. Schedule 5 (savings and transitional) was inserted in 1996 and substituted in 2009.

The text of the Act as provided does not reference any specific cases or litigation history. The Act itself contains no discussion of decided cases or judicial interpretation. The only review mechanism mentioned is the administrative review by the Civil and Administrative Tribunal under s 32, which suggests that disputes under the Act are primarily resolved through merits review rather than court litigation, at least in the first instance. The 2009 amendment substituted the previous court appeal provisions with the current NCAT review provisions, indicating a legislative shift toward tribunal-based review. The Act’s evidentiary certificate provision (s 49) facilitates proof of administrative facts in any proceedings. The 2-year limitation period for commencing proceedings (s 46(2)) may have been the subject of interpretation. However, without external sources, no further litigation history can be derived from the provided text.

Several less obvious provisions could trap unwary practitioners. First, the definition of “exhibit” excludes display solely in connection with sale or animal research (s 5(1)), but the exclusion is narrow: if display serves any other purpose (e.g., education or entertainment), it may still be caught. The regulations may also declare circumstances not to be exhibition, potentially creating further exceptions.

Second, the term “species” includes order, class and description (s 5(1)), so regulatory requirements can apply to broad groups like “all reptiles” rather than individual species. This affects permit requirements under s 24.

Third, the “fit and proper person” test in s 27(3A)(g) is not defined, giving the Secretary wide discretion. The Secretary may consider any relevant matter (s 27(3A)(h)), including matters not listed. Applicants should be prepared to disclose all relevant history.

Fourth, the mandatory cancellation provision in s 30(1A) applies to convictions for a broad range of offences under several Acts, including the Biodiversity Conservation Act 2016, which may catch conduct not obviously related to animal exhibition, such as harming threatened species. Disqualification under s 30A(1) is mandatory upon such cancellation, up to 5 years. Importantly, for corporations, officers are automatically disqualified unless the order provides otherwise (s 30A(4)). The order need not name individual officers (s 30A(6)).

Fifth, the employment prohibition in s 31A applies to persons “charged with” a relevant offence until the charge is resolved, not just those convicted. This means a person under a current charge cannot work with exhibited animals, even if ultimately acquitted. The penalty is severe.

Sixth, terms and conditions of an authority survive cancellation if they relate to animal care and are expressed to have that effect (s 28(3)). A surrendered or expired authority may still impose ongoing obligations.

Seventh, the stay under s 32(2) on applying for review of a decision applies only to the specific decisions listed; it does not stay inspector directions or other administrative actions.

Eighth, a person who fails to comply with an inspector’s direction may be guilty of an offence under s 43(1)(b), and the burden of proving a reasonable excuse lies on the person (s 43(1)(e) uses “proof of which shall lie upon the person”). The inspector must identify themselves and warn that the failure is an offence (s 43(2)).

Ninth, the Act does not provide a statutory defence of due diligence for corporations; the deeming provision in s 47 for directors and managers applies if they “knowingly authorised or permitted” the contravention. Ignorance may not be a defence.

Tenth, the relationship provisions in Schedule 4 clause 3 mean that if another Act (except POCTA or Biosecurity Act) conflicts with this Act, this Act prevails. But POCTA and the Biosecurity Act can override this Act, so compliance with this Act does not guarantee compliance with those Acts.

Eleventh, the refund provision (s 52) only applies to cancellations at the holder’s request or if issued in error. No refund is available if the authority is cancelled for cause.

Twelfth, animals seized may be sold, destroyed or returned to the wild without compensation (s 41(3)). The owner loses property rights in the seized animal once the Minister authorises disposal.

For an operator seeking to exhibit animals in New South Wales, compliance begins with identifying the correct authorisation. If the operator intends to use fixed premises (e.g., a zoo or wildlife park) of a class prescribed by regulations, the premises must be licensed under Part 3 Division 1. If the operation involves travelling exhibitions at circuses, fairs, amusement parks, or educational institutions, the person in charge of each animal species must hold an approval under Division 2. If the animal is of a species prescribed for the purposes of s 24, a permit under Division 3 is required even if the premises are already licensed. In some cases, a single premises may hold multiple licences for different classes (s 16(3)).

Before applying, the operator should ensure the premises (if applicable) conform to any prescribed standards under s 14 and Schedule 3. Standards may cover housing, fencing, caging, hygiene, nutrition, record-keeping, destruction procedures, educational requirements, and public safety. The application must be made to the Secretary in the prescribed manner with the prescribed fee (s 27(1)). The Secretary will consider matters including the applicant’s criminal history under various animal-related laws, previous compliance with authorities, capacity to comply with the Act and standards, capacity to care for animals, biosecurity risks, whether the applicant has made false statements, and whether the applicant is a fit and proper person (s 27(3A)). The Secretary must refuse if the applicant is disqualified (s 27(3B)).

Once an authority is issued, the holder must comply with all terms and conditions, which may include the number of animals that may be displayed (s 28(2)). The holder must not employ any person convicted of or charged with a relevant offence to work with or care for exhibited animals (s 31A). The holder must keep records as required by regulations and standards (Sch 3 item 4). If the premises are licensed, the licensee must not alter or extend the establishment without prior approval (s 19). If the authority is suspended or cancelled, the holder must surrender it upon request (s 31(1)(b)). The holder should note that conditions relating to animal care continue after cancellation if expressed to do so (s 28(3)).

Inspectors may attend at any time. The occupier or person in charge must cooperate, produce authorities and records, answer questions, and not obstruct (s 43). If an inspector issues a written direction to correct non-compliance, the recipient must comply within the stated time (s 40(1)(m)). Failure to comply with conditions is an offence (s 31(1)(a)). If the Secretary proposes to suspend or cancel a licence for non-conformity with standards, the licensee will receive a notice specifying required works and a time to comply (s 30(3)-(4)). The licensee should use that time to rectify the issues.

If the Secretary refuses or imposes adverse conditions, the holder or applicant may apply to the Civil and Administrative Tribunal for administrative review under s 32. Lodging the application stays the decision (s 32(2)), allowing the authority to continue in force pending review. The holder should seek legal advice promptly as the stay is automatic only on lodgment.

For cetacea display establishments (dolphins and whales), additional compliance is required: the Secretary cannot issue a licence or approval for erection without the Minister’s approval, and only one such licence may be in force at any time unless the establishment existed before the commencement of Part 4 (s 35). The Secretary may require a bond (s 37). The licence may limit exhibition to animals already in captivity at commencement and their captive-born progeny (s 36).

Regulations may create additional offences with penalties up to 10 penalty units or 3 months imprisonment (s 53(4)). Operators must monitor the regulations for new requirements, including prescribed classes of establishments, species requiring permits, and standards. The Act allows regulations to adopt published care guidelines by reference (s 53(3)).