24ZPower to destroy diseased or distressed animals

24Z Power to destroy diseased or distressed animals Despite anything to the contrary in this Part, an inspector may destroy an animal seized under this Part at any time after its seizure if— (a) a veterinary practitioner has certified that the animal should be immediately destroyed on humane grounds; or (b) an inspector under the **Livestock Disease Control Act 1994** knows or reasonably suspects that the animal is diseased or infected with disease. S. 24ZAA inserted by No. 60/2015 s. 23. 24ZAA Forfeiture and disposal of animals seized under section 24AA (1) Despite anything to the contrary in this Division, if a cock or dog is seized under section 24AA because of a suspected contravention of section 13(1A), the Department Head may, in accordance with this section, declare that the cock or dog— (a) is forfeited to the Crown; and (b) is to be disposed of— (i) in the manner determined by the Department Head; or (ii) in accordance with this Division. (2) Before making a declaration under subsection (1), the Department Head must have regard to a report prepared by a POCTA inspector. (3) A POCTA inspector who prepares a report for the purposes of subsection (2), must consider the following— (a) the nature of the cock or dog; (b) the condition of the cock or dog; (c) whether the cock or dog is of a breed or type usually bred or used for fighting; (d) whether the owner or person in charge of the cock or dog has been identified or is likely to be identified; (e) any other relevant factor. (4) If the owner or person in charge of a cock or dog seized under section 24AA has been identified and the cock or dog has been forfeited to the Crown under this section, the Department Head must, as soon as is reasonable, cause written notice of the forfeiture to be served on the owner or person in charge. (5) A notice under subsection (4) must be served either personally or by post. S. 24ZA inserted by No. 65/2007 s. 95. 24ZA Disposal of animal by sale (1) An animal that is to be disposed of by sale must be offered for sale by public auction or public tender. (2) The person who is selling the animal must give public notice that he or she intends to sell the animal by public auction or public tender, at least 14 days before the sale. (3) A notice under subsection (2) must include— (a) details of the location where the animal was seized; (b) the kind of animal; (c) if the animal is branded, where and how it is branded; (d) the sex and colour of the animal and any other descriptive marks; (e) the time and place of the auction, or date and time by which written tenders must be submitted. S. 24ZB inserted by No. 65/2007 s. 95. 24ZB Costs and proceeds of sold animals S. 24ZB(1), amended by No. 60/2015 s. 24(a). (1) The proceeds of sale of an animal that is sold under this Division— (a) must first be applied to the costs incurred in any maintenance, care, removal, transport and sale of the animal; and (b) if any balance is then remaining, it must be paid— S. 24ZB (1)(b)(i) amended by No. 60/2015 s. 24(b). (i) if the animal is not subject to forfeiture to the Crown, to the owner of the animal, if the owner is not a person who is in contravention of an order under section 12(1) or an interstate order within the meaning of section 12A in respect of that animal, that is registered under section 12A; or (ii) in any other case to the Consolidated Fund. S. 24ZB(2) amended by No. 35/2009 s. 108. (2) If the proceeds of the sale of an animal sold under this Division are not enough to satisfy the costs incurred in any maintenance, care, removal, transport and sale of the animal, the outstanding amount may be recovered from the owner of the animal in a court of competent jurisdiction as a civil debt recoverable summarily. S. 24ZC inserted by No. 65/2007 s. 95. 24ZC Costs and proceeds of destroyed animals (1) Subject to subsection (2), a person who destroys an animal under this Division may recover the costs of any maintenance, care, removal, transport and destruction of the animal from the owner of the animal in a court of competent jurisdiction as a civil debt recoverable summarily. (2) Any proceeds derived from the destruction of an animal seized under this Part, that is not subject to forfeiture to the Crown— (a) must first be applied to the costs incurred in any maintenance, care, removal, transport and destruction of the animal; and (b) if any balance is then remaining, it must be paid— (i) to the owner of the animal, if the owner is not a person who is in contravention of an order under section 12(1) or an interstate order within the meaning of section 12A in respect of that animal, that is registered under section 12A; or (ii) in any other case to the Consolidated Fund. S. 24ZD inserted by No. 65/2007 s. 95. 24ZD Forfeiture of seized animal (1) If a person is found guilty by a court of an offence against this Act or regulations under this Act, the court may, in addition to imposing any other penalty, order that any animal seized under this Part in relation to the offence be forfeited to the Crown if the person who has been found guilty of the offence is the owner or person in charge of the animal. (2) If a forfeited animal is destroyed or sold, the costs associated with any maintenance, care, removal and transport of the animal and the sale or destruction of the animal must be deducted before any amount remaining is paid into the Consolidated Fund. Division 7—Duties and powers as to seized things (that are not animals) S. 24ZE inserted by No. 65/2007 s. 95. 24ZE Definition In this Division ***thing*** does not include animal. S. 24ZF inserted by No. 65/2007 s. 95. 24ZF Receipt must be given for any thing seized (1) An inspector may not seize a thing under this Part that is apparently in the possession or custody of a person, unless the inspector makes out and tenders to the person a receipt for the thing seized that— (a) identifies the thing; and (b) states the name of the inspector and the reason why the thing is being seized. (2) If an inspector is unable to discover the identity of the owner or custodian of any thing seized from premises, the inspector must leave the receipt with, or post it to, the owner of the premises from which the thing was seized. S. 24ZG inserted by No. 65/2007 s. 95. 24ZG Copies of certain seized things to be given (1) If an inspector seizes under this Part— (a) a document; or (b) a thing that can be readily copied; or (c) a storage device that contains information that can be readily copied— the inspector must, before finishing the search, give— (d) a copy of the information, thing or device; and (e) a receipt for the thing— to the owner or custodian of the document. (2) Subsection (1) does not apply if the inspector is unable to discover the identity of the owner or custodian of the document, thing or device. (3) If it is not practicable to comply with subsection (1)(d) or (1)(e) in respect of a thing before the inspector finishes the search, the inspector must do so as soon as practicable after finishing the search. (4) In the case of a paper document, the inspector must certify on any copy of the document given to a person under this section that the copy is an accurate copy of the document. (5) A copy of a document certified under subsection (4) is to be received in all courts and tribunals as evidence of equal validity to the original. S. 24ZH inserted by No. 65/2007 s. 95. 24ZH Access to seized things (1) If a thing is seized under this Part, the inspector who seized the thing must, if practicable, allow the person who would normally be entitled to possession of the thing reasonable access to it while it remains in the possession, or under the control, of the inspector. (2) This section does not apply— (a) if the inspector has given the person an accurate copy of the thing; or (b) if the possession, use or setting of the thing is an offence against this Act or regulations under this Act. S. 24ZI inserted by No. 65/2007 s. 95. 24ZI Return of seized thing before commencement of proceedings (1) If a thing has been seized by an inspector under this Part and proceedings have not been commenced against a person for the commission of an offence in relation to which the thing was seized, any person who claims to be entitled to possession of the thing may apply in writing to the Magistrates' Court for an order directing the inspector to return the thing to the person. (2) If an application is made to the Magistrates' Court the applicant must, as soon as possible after filing the application at the Court, give a copy of the application to the inspector. (3) After hearing an application, the Magistrates' Court may make an order directing the inspector to return the thing to the applicant— (a) if the Court is satisfied that the thing is reasonably required by the applicant to carry on the applicant's business or occupation; and (b) the Court has considered whether the thing is reasonably likely to be tendered as evidence in proceedings for an offence against this Act or regulations under this Act. (4) The Court may include any conditions in the order that it considers appropriate including that the thing be returned for the purposes of proceedings for an offence against this Act or regulations under this Act. (5) This section does not apply to a thing, the possession, use, setting or sale of which is an offence against this Act or regulations under this Act. S. 24ZJ inserted by No. 65/2007 s. 95. 24ZJ Return of seized things If an inspector seizes a thing under this Part that is not a thing— (a) the possession, use, setting or sale of which is an offence against this Act or regulations under this Act; or (b) that is forfeited to the Crown under section 24ZN— the inspector must take reasonable steps to return the thing to the person from whom it was seized— (c) within 60 days after the day on which it was seized; or (d) when the reason for its seizure no longer exists; or (e) if proceedings have commenced within 60 days after the day on which the thing was seized or any extended period under section 24ZK, the completion of those proceedings (including any appeal); or (f) on the expiry of any court order under section 24ZK that has extended the period during which the thing may be retained by the inspector— whichever is the later. S. 24ZK inserted by No. 65/2007 s. 95. 24ZK Magistrates' Court may extend retention period (1) Subject to subsection (2), an inspector may apply to the Magistrates' Court within 60 days after seizing a thing under this Part, or within any period extended by the Court under this section, for an extension of the period during which the inspector may retain the thing. (2) The Court may order an extension if it is satisfied that retention of the thing is necessary for the purposes of the investigation in relation to which the thing was seized. (3) The Court may adjourn an application to enable notice of the application to be given to any person. (4) In ordering an extension the Court must ensure that the period during which a thing may be retained by an inspector does not exceed 12 months after the day that it was seized. S. 24ZL inserted by No. 65/2007 s. 95. 24ZL Dispute as to person entitled to return of seized thing (1) If a dispute arises as to whom a thing seized by an inspector under this Part should be returned, any person seeking possession of the thing may apply to the Magistrates' Court for an order that the thing be given to that person. (2) The person making the application must give notice of the application to the inspector and to every other person that the person should reasonably be aware claims, or may have a claim to, possession or ownership of the thing. (3) On receiving notice of an application relating to a thing, the inspector who seized the thing must retain possession of the thing until the application is determined, abandoned or withdrawn. (4) After hearing an application, the Magistrates' Court may order the inspector to give the thing to a particular person if it is satisfied— (a) that at the time of making the order, the person has a better claim to the possession of the thing than any other person; and (b) that every other person whom the Court reasonably believes may have had a claim for possession or ownership of the thing was given notice of the application. (5) The inspector must comply with the order. (6) Subsection (4) applies regardless of whether or not the particular person was the applicant. S. 24ZM inserted by No. 65/2007 s. 95. 24ZM Unclaimed seized thing may be sold or destroyed (1) Any thing seized under this Part, that is not subject to forfeiture to the Crown, may be destroyed or sold under the following circumstances— (a) if the identity of the person from whom the thing was seized is known, that person— (i) has been notified in writing after the end of the period during which the thing may be retained under this Division that the thing may be claimed; and (ii) has not claimed the thing within 12 months after that notice is given; or (b) if the identity of the person from whom the thing was seized is not known, reasonable steps to identify that person have been taken and no person entitled to possession of the thing has been located within 12 months after the end of the period during which the thing may be retained under this Division. (2) The proceeds from any sale of a thing under subsection (1), less the costs associated with any maintenance, care, removal, transport and sale of the thing, are to be paid into the Consolidated Fund. S. 24ZN inserted by No. 65/2007 s. 95. 24ZN Forfeiture of seized things (1) If a person is found guilty by a court of an offence against this Act or regulations under this Act, the court may, in addition to imposing any other penalty, order that any thing seized under this Part that was used by the person in connection with the offence be forfeited to the Crown. (2) If a forfeited thing is sold, the costs associated with any maintenance, care, removal, transport and sale of the thing must be deducted before any amount remaining is paid into the Consolidated Fund. Division 8—Samples S. 24ZO inserted by No. 65/2007 s. 95. 24ZO Provisions relating to the taking and keeping of samples (1) If an inspector proposes to take a sample of or from an animal or a thing under this Part, the inspector must— (a) advise the owner or person in charge of the animal or thing, if possible before taking the sample— (i) that the sample is to be taken for the purpose of examination or analysis; and (ii) that the owner or person in charge of the animal or thing, subject to subsection (2), has a right to be given a part of the sample in accordance with paragraph (b) if the owner or person so requests; and (b) if the sample is taken for the purpose of analysis and the owner or person in charge of the animal or thing requests to be given a part of the sample, divide the sample into 3 parts and give one part to the owner or person in charge*,* one part to the analyst and keep one part untouched for future comparison. (2) Despite subsection (1)(b), a sample taken from an animal for analysis must not be divided up into parts if the inspector has been advised by a veterinary practitioner or a pathologist that division of the sample is not practicable or will adversely affect the analysis. Division 9—Further miscellaneous powers, duties and offences S. 24ZP inserted by No. 65/2007 s. 95. 24ZP Notice to comply S. 24ZP(1) substituted by Nos 60/2015 s. 25(1), 48/2016 s. 8. (1) If a POCTA inspector reasonably believes that a person is committing or is likely to commit an offence under Part 2 or the regulations, the POCTA inspector may issue a notice to the person requiring that person not to commit the offence or to cease committing the offence. (2) A person to whom a notice has been issued under subsection (1) must comply with the notice. 1. 120 penalty units. (3) A notice issued under subsection (1) must— (b) state that it is an offence not to comply with the notice; and (c) set out the maximum penalty for the offence. S. 24ZP(4) inserted by No. 60/2015 s. 25(2). (4) In this section a reference to the regulations under this Act does not include any regulations made under Part 3. S. 24ZQ inserted by No. 65/2007 s. 95. 24ZQ Requirement to give information to inspector during entry (1) To the extent that is reasonably necessary to determine whether an offence against this Act or regulations under this Act has been or is about to be committed, a POCTA inspector exercising a power of entry under this Part who produces his or her identity card for inspection by the occupier of the premises or an agent or employee of the occupier— (a) may require that person to give information to the inspector, orally or in writing; (b) if the power is being exercised under a warrant, may require that person to produce anything named or referred to in the warrant; (c) if the power is being exercised under section 23(1), may, on production of his or her identity card for inspection to any person in or on the premises, require the person to give such information as the inspector requests in relation to the suspected baiting, trap-shooting or luring and to answer any questions put to that person by the inspector in relation to the suspected baiting, trap-shooting or luring. (2) A person must not, without reasonable excuse, refuse or fail to comply with a requirement of an inspector under subsection (1). (3) A person must not, when giving information to a inspector under subsection (1) give information that is false or misleading. S. 24ZQA inserted by No. 60/2015 s. 26. 24ZQA Requirement to muster, yard or secure animals A POCTA inspector may, for the purposes of exercising any power conferred on the inspector by this Part, require the owner or person in charge of an animal— (a) to muster, yard or secure that animal; or (b) to provide adequate facilities and assistance to allow the safe and efficient handling of the animal during seizure, examination or inspection of the animal or the taking of samples from the animal. S. 24ZR inserted by No. 65/2007 s. 95. 24ZR Offences as to inspectors (1) A person must not assault, obstruct, hinder, threaten, abuse, insult, intimidate or attempt to obstruct or intimidate a POCTA inspector in the discharge of the inspector's powers under this Part. (2) A person must not refuse admission to a POCTA inspector exercising a power of entry or a person assisting a POCTA inspector in exercising a power of entry under this Part. S. 24ZR(3) amended by No. 60/2015 s. 27. (3) A person must not, without reasonable excuse, contravene or fail to comply with any direction or requirement of a POCTA inspector who is acting in the discharge of the inspector's powers under this Part. S. 24ZS inserted by No. 65/2007 s. 95. 24ZS Offences as to veterinary practitioners etc. (1) A person must not assault, obstruct, hinder, threaten, abuse, insult, intimidate or attempt to obstruct or intimidate a veterinary practitioner or superintendent of a saleyard (within the meaning of section 24D) in the discharge of that practitioner's or superintendent's powers under this Part. (2) A person must not contravene or fail to comply with any direction or requirement of a veterinary practitioner or superintendent of a saleyard (within the meaning of section 24D) who is acting in the discharge of that practitioner's or superintendent's powers under this Part. S. 24ZT inserted by No. 65/2007 s. 95. 24ZT Offence to fail to provide name and address (1) If a POCTA inspector believes, on reasonable grounds, that a person has committed an offence against this Part or Part 2, the inspector may ask the person to state his or her name and ordinary place of residence or business. (2) In making a request under subsection (1), the inspector must inform the person of the grounds for his or her belief that the person has not complied with the requirement. (3) A person must not— (a) refuse or fail to comply with a request under subsection (1) without a reasonable excuse for doing so; or (b) in response to a request under subsection (1)— (i) state a name that is false in a material particular; or (ii) state an address that is not the full and correct address of his or her ordinary place of residence or business. (4) If a person states a name and address in response to a request under subsection (1) and the inspector suspects, on reasonable grounds, that the stated name and address may be false, the inspector may request the person to produce evidence of the correctness of the name and address. (5) A person to whom a request under subsection (4) is made must comply with the request, unless he or she has a reasonable excuse for not doing so. (6) It is not an offence for a person to fail to comply with a request under subsection (1) or (4)— (a) if the inspector did not inform the person, at the time the request was made, that it is an offence to fail to comply with the request; or (b) if the inspector did not identify himself or herself in accordance with section 24ZU before making the request. S. 24ZTA inserted by No. 60/2012 s. 41. 24ZTA Requirement to make documents available for inspection (1) A POCTA inspector, with the written approval of the Department Head, may serve a notice on a person requiring the person to produce or make available for inspection a document in the custody or possession of the person which the inspector believes on reasonable grounds to be relevant to determining whether another person has committed an offence against this Act or the regulations. (a) specify a time within which the person must produce or make the document available for inspection that is not less than 14 days after service of the notice; and (b) inform the person that it is an offence to fail to comply with the notice unless subsection (4) applies; and (c) must be served on a person either personally or by registered post at the last known address of that person. (3) The inspector may inspect, take a copy of, or make an extract of, any document produced or made available under subsection (1). (4) A person served with a notice under subsection (1) must comply with the notice within the time for compliance specified in the notice unless, in the case of a natural person, compliance with the notice would tend to incriminate the person. Penalty: 20 penalty units. (5) Section 24ZV(2) does not apply to the requirement to comply with a notice under subsection (1). S. 24ZU inserted by No. 65/2007 s. 95. 24ZU POCTA inspectors must identify themselves A POCTA inspector must produce proof of his or her identity and official status— (a) before exercising a power under section 24ZT; and (b) at any time during the exercise of a power under section 24ZT, if asked to do so. S. 24ZV inserted by No. 65/2007 s. 95. 24ZV Protection against self-incrimination (1) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this Part, if the giving of the information or the doing of that other thing would tend to incriminate the person. (2) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Part, if the production of the document would tend to incriminate the person. S. 24ZW inserted by No. 65/2007 s. 95. 24ZW Power to file charges S. 24ZW(1) amended by No. 68/2009 s. 97(Sch. item 95.2). (1) A charge-sheet charging an offence under this Part or Part 2 or an offence under regulations under this Act relating to this Part or Part 2 may only be filed by— S. 24ZW(1)(a) amended by No. 37/2014 s. 10(Sch. item 129.2). (a) a police officer; or (b) a person who is authorised for that purpose by the Minister in writing and who is— (i) employed under Part 3 of the **Public Administration Act 2004**; or (ii) an officer of a council (but only in respect of an alleged offence committed in the municipal district of the council of which that person is an officer); or (iii) a full-time officer of the Royal Society for the Prevention of Cruelty to Animals. (2) An authorisation under subsection (1)(b)— (a) must not be for a period of more than 3 years; and (b) remains in force until 30 June in the year specified in the authorisation as the year in which it ceases to have effect. (3) The Minister may cancel an authorisation under subsection (1)(b). S. 24ZX inserted by No. 60/2012 s. 42. 24ZX Conduct of proceedings If a charge-sheet charging an offence is filed by a person authorised to do so under section 24ZW(1)(b), the proceedings for the offence may be conducted before a court by any other person authorised under that section to file a charge-sheet for such an offence. S. 24ZY inserted by No. 60/2012 s. 42. 24ZY Court to take judicial notice All courts must take judicial notice of the fact that a person has valid authority to file a charge-sheet charging an offence under section 24ZW(1) or to conduct proceedings for an offence under section 24ZX.