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Attention; Mr Rob Delane Director general of the Department of Agriculture and Food Western Australia 19/3/14
Copy Sent to; The hon Ken Baston MLC, Minister for Agriculture and Food
Regarding the administration of the Animal Welfare Act of 2002
In Australia we have animal welfare legislation to protect those without a voice.
The shocking fact is neither the legislation, the procedural guidelines nor the structural integrity of adequate prosecution policy is being upheld, by the department or those empowered by it.
Prosecutions under the Animal welfare Act 2002 must meet a certain criteria, they must be initiated by an appointed officer/inspector, not a private entity, they must meet the Department of Agriculture and Food’s procedural guidelines by way of meeting a number of assessment criteria’s, and then be signed off by the Director General and the government’s solicitors.
The pertinent question here is why have most recent prosecutions been able to continue when they have met none of these safeguards?
In the most recent case after over 16 months of supposed litigation, the courts themselves are still demanding information from the prosecution, which just happens to be the RSPCA who we all know have no legal right to even bring charges in the first place.
The very fact this case “RSPCA WA V’s May” has resulted in illegal seizure of animals, the unwarranted destruction of many of these innocent animals, and costs sought of near 1 million dollars from the innocent party, has indeed grabbed the attention of the authorities, yet to date they chosen to sit back and see what happens, ignoring their mandate to act in a timely manner and to protect innocent parties.
The Department of Agriculture and food in WA, who administer the Animal Welfare Act of 2002, are the very people that appoint inspectors, have allowed this issue to fester as if sitting on their buts is acceptable practice.
The ministers appoint inspectors under the legislation, awarding powers akin those of the police, yet appear to turn a blind eye to how those powers are used and abused.
The RSPCA pay these inspectors through direct funding from the government on behalf of the Taxpayer, but who do they work for, do they work for the minister to act in the best interests of the people in the protection of all animals under animal welfare law, or do they work for the RSPCA to protect the royal society’s financial and pecuniary interests?
The RSPCA have no powers under the animal welfare act, none what so ever, this has been proven time after time, and recently confirmed by the Honourable Ken Baston MLC in recent correspondence and by way of interpretation of most Animal welfare legislation across Australia.
Yet prosecutions all over Australia are brought by the RSPCA in their name, in every case these prosecutions are invalid at law, because the RSPCA do not have the right to use powers they do not have.
The only people empowered by animal welfare legislation to act on behalf of the government to administer the legislation are inspectors and authorised officers themselves, and there are procedural guidelines in place to ensure any powers used are in line with community expectations, to ensure they are just, transparent and accountable.
In WA the guidelines are found under a separate piece of legislation called the DAFWA Compliance, Enforcement and prosecution policy.
In fact any animals seized under animal welfare legislation, or indeed any animal forfeitured through the courts, become the property of the crown, they become under care of the state, not the RSPCA.
Therefore it is the minster that must answer for the actions of the inspectors, and is in control in relation to the destiny of seized and forfeiture animals in the RSPCA’s care. The minster and the director of the department have the ability to award such powers, to define them and even take them away, so this whole disgrace falls firmly in their laps.
In WA whether it is the police or the inspectors appointed by the minister to act on the peoples behalf, they must comply with Compliance, enforcement and prosecution policy, before they use their powers to bring prosecutions of any kind.
The concept here is to ensure they promote consistent enforcement actions across all sections of government policy; it is to guide and assist officers in the performance of their functions, encourage a pro-active compliance approach where staff are confident and supported in their roles.
It is here we find a total absence in relation to adherence to policy, with the RSPCA themselves deciding the rolls of the inspectors, and even bringing actions against members of the public in the name of the RSPCA itself, which is nothing more than a total abuse of power, in fact abuse of the court process, because the RSPCA are not empowered to do so.
In WA private prosecutions are not allowed at any level, so any document filed in the courts in the name of the RSPCA ought never to have been accepted, where that action involves charges of any kind.
Cost efficiency and public interest are currently not taken into account in direct conflict with DAFWA procedural guidelines; one has to ask, if the minister is turning a blind eye.
In the absence of enforceable policy and procedural guidelines we see a tendency of taking all charges to court, where even little evidence exists, even where the offence is trivial or technical, or an alternate strategy could deliver a better overall outcome, and this is well known by the department to not be in the public interest, and is not effective use of public moneys, a question the minister in charge ought to answer.
The major issue that arises as a result of the minister and the departments turning a blind eye, is the ability of the RSPCA itself to bring charges and then use the court process for financial gain, in fact in most cases studies, abuse of process is the modes operandi, with cases dragged out until a respondent is out of money, then the RSPCA arranging one sided plea bargain tactics to illicit huge costs. The society’s books themselves in many states show these prosecution practices as a major money winner, something that doesn’t come close to fulfilling community expectations.
In the past 6 months a variety of RSPCA senior staff have quit or have been fired as a result of questioning these tactics, and are more than willing to front an enquiry, yet to blame the Society for all these issues, overlooks the fact that it is DAFWA and the minister who have allowed this to happen. Every animal seized is in their name, every animal euthanized is done so with their consent, and every animal forfeitured under the legislation is forfeitured to the minister, so many questions are now deserving of answers.
If the animals seized by the RSPCA and on sold, has that money been rightfully handed over to the minister/taxpayer?
If the RSPCA are allowed by the minister to bring charges, and they fail, it ought to be the minister that coughs up, on behalf of the public, but are the public being made aware of any of this?
In recent times DAFWA have coughed up, so one would think they would be placing more scrutiny on those bringing charges in on their behalf, even more so when the department are well aware that this is an ongoing problem.
In the case of the RSPCA V May, animals were seized from a woman who has invested hundreds of thousands of dollars in their rescue, in the most these were healthy animals, some were undergoing medical treatment, and others had just been rescued, raising the question of the minister, is it now illegal for individuals to rescue animals, or has the minister awarded that right solely to the RSPCA?
If not for the personal enquiries of Mrs may herself, the department responsible for administration of the law, would never have become involved, and now that they are aware, why have they not stepped in, is a question every Western Australian should be asking.
This seizure did not meet with the compliance and enforcement policy, the first charges were invalid and therefore dropped and new charges laid, it could be said even these new charged are invalid at law, and in neither case were the procedural guidelines met, in fact the RSPCA continue to totally ignore DAFWA policy, as if they are above the law.
The RSPCA refused to take the animals medication when they seized them or even converse with the animal’s veterinarian, why? Is the animal welfare act still about the best interests of the animals, because I am sure community expectations are that it ought to be.
After 4 months of having this woman’s animals, the legislation is clear that they should then be returned, and the State government Administrative tribunal all but ordered this to occur, but the RSPCA could not comply, as they had killed several of the animals.
The RSPCA then pressed criminal charges against Mrs May, not only did they have no right to start a private prosecution, but even in the event an inspector decided to press such charges, why were they able to do so, without the ministers permission?
I note the minster and the director general had their own staff in attendance, so I sincerely hope they are not going to pull the “We didn’t know this was happening” card.
All of these animals at law have been seized with the minsters consent, so it is up to the minster to explain why they have been seized, why they have been killed and why they have not been returned.
After 16 months the original prosecution was dropped against Mrs. May and all new charges were pressed, yet once again, DAFWA policy was again ignored, the costs being sort by the RSPCA against Mrs May are fast approaching 1 million dollars, begging the question how the minster believes these costs are in line with his department’s policy.
I shall take this opportunity to remind the minister of his departments Compliance, enforcement and prosecution policy.
The department’s policy starts off with the most basic guidelines, openness and transparency, consistency, and cost efficiency and public interest criteria.
2.2 enforcement criteria takes into account whether there has been a failure to comply with any formal requests, lawful direction or notice given by an inspector or authorised officer.
Starting here alone, Mrs May was never given and formal directions, after the seizure of one animal, a rabbit of all things, she phoned the RSPCA over and over asking what more she could do to comply, having already invested hundreds of thousands of dollars on vet bills alone, she was more than willing to do whatever was needed to comply with any directions the RSPCA may have made.
She had complied with all local government inspections, inspections by officers of the local government empowered under the very same animal welfare legislation that seeks to empower the RSPCA officers.
Mrs May had no history of noncompliance, the public interest ideals were never applied, and at no time did the RSPCA or its officers provide support or indeed even guidelines to meet, they returned several days later with a warrant for the wrong address, Mrs May still allowed them access to the right address, where they seized every animal, even those in perfect health, why was this allowed, how did the minster believe this was in the public’s or the animals best interests?
The only precedent set by these actions is to deter the public from taking the rescue of injured or dumped animals into their own hands, in direct conflict with the animal welfare act and community expectations.
Where was the written warning, expected under the policy guidelines, there were no administrative sanctions, and at no stage were the principles of prosecution applied.
I will throw in here a vital word “Intent” how in hell can any person have their animals seized and criminal charges applied, when their only intent was to rescue and rehabilitate injured or abused animals, let alone by the very organisation the public help fund to do the very same task?
It is without doubt DAFWA’s job to ensure the inspectors they empower under their legislation are working in the best interests of the department and its own guidelines, and I can see nowhere in this particular case where that is indeed occurring, and therefore the minister must step in and stop this case in the best interests of equity and fair play.
If indeed the minister does not step in and the prosecution is lost, the costs involved will have to be met by the minister, and I am sure the taxpayer s will not be very happy at all.
3.5 Public interest
A; The seriousness or triviality of the offence, or that is of a technical nature only.
The RSPCA response month after they illegally started litigation in their corporate name, was that this was a serious offence, that Mrs may kept the animal in filthy conditions
Interestingly the animals were seized from temporary enclosures while the original areas were being renovated as a result of the RSPCA telling Mrs May days earlier they were not happy with the accommodation, and in respect video evidence clearly shows the RSPCA’s statement here to be incorrect and obviously out of time in respect to compliance procedures.
It would be worthy so say that in the May case, the woman was simply rescuing animals with the support of several local veterinarians and the local council, if the issue was the amount of animals, then advice could have been given, notices issued or support offered. The case is trifling in nature as a direct result of no malice or intent to cause harm.
B; Any Mitigating or aggravated circumstances
The RSPCA’s response when DAFWA noticed they had side stepped legislative protocol was that Mrs May doesn’t believe in routine vaccinations and flea treatments, a statement that disregards any facts.
Mrs May has extensive records that show clear intent to vaccinate and treat for fleas, with veterinarian receipts in the tens of thousands in the past few years alone, which were she offered to show the RSPCA inspectors
C; The age, mental ability, physical health, mental health or special infirmity of the alleged offenders or a witness.
DAFWA have already confirmed that Mrs May had the capabilities to look after the animals in her care, as this 72 year old has the support of leading veterinarians, an at call worker and the support of the Animal protection society president.
Never forgetting all of these animals would be dead if not for Marianna Mays actions.
D; The alleged offender’s previous history, in relation to the relevant compliance activity.
The RSPCA marked this section as N/A
Mrs May has been carrying our animal rescue for over a decade without any performance issues or complaints from any parties, if the RSPCA had issued orders of any kind, Mrs May would have complied, no orders had ever been sought, and no previous complaints of any kind exist.
E; The degree of culpability of the alleged offender in connection with the offence.
No offence under the act was sighted; the very fact animals with health concerns were on the property was the direct result of rescues, not the adverse actions of the animal rescuer.
F; The effect on public order
Mrs May by way of taking feral, sick and injured animals of the street and housing and treating them
G; whether the prosecution would be perceived as counterproductive, for example bringing the law into disrepute.
The RSPCA’s response after the fact, was that the public would be horrified if Mrs May was not prosecuted, given the number of animals and the level of neglect
Mrs May had every rescued animal vet checked and treated without regard to cost, the RSPCA refused to look at the records for these animals, refused to speak with her vets, and also refused to take the medication the sick animals were prescribed.
For a charity with no powers of prosecution, to prosecute at law a person preforming a community service could only be seen as counterproductive, and an abuse of process at law, which not only brings the law into disrepute, but undermines public confidence in the Department of Agriculture and Food, and its application of animal welfare legislation.
H; The ability and efficiency of any alternate to prosecution.
The RSPCA in their statement after the fact claimed “Civil application for the forfeiture of the animals was an option”
The RSPCA still to date have not applied for a forfeiture order, opting to keep the animals in inadequate enclosures that my their own admissions, causing over 20% to be killed by the society, all the while charging Mrs May between $40,000 and $50,000 per month for storage and veterinary costs.
Support, assistance, or even compliance orders all remain better alternatives, the RSPCA took no other steps other than seizure and heavy handed prosecution, no orders that only x amount of animals are to remain on the property, no orders that enclosures are modified, no orders that no more animals are rescued, no orders that all animals are rehomed above a certain number in an allotted time period. I assume there are many alternatives to seizure, destruction and criminal prosecution, yet none were entertained by the RSPCA or their inspectors.
The legislation itself at 40 (1), 47 (d) (j) can make a variety of orders to ensure compliance in any set time period, no such orders were made.
I; The prevalence of the alleged offence and the need for deterrence (including the likely deterrent value of the prosecution.
The RSPCA’s reply months after initiating an invalid and non-compliant prosecution, was that Mrs May was an animal hoarder, yet in the section asking about mental illness they replied N/A, They went on to say Mrs May did not have the means to care for large numbers of animals, even though proof to the contrary was offered at the first visit by the RSPCA officers.
Why would an animal welfare authority or purported rescue organisation wish to deter public support in the rescue and rehoming of animals?
J; whether the alleged offence is of considerable public/environmental concern.
The RSPCA’s attempt to cover their mistakes resulted in an answer here of “Considerable public concern given the number of animals involved.
Rescuing animals, keeping them in adequate enclosures and ensuring they have the best veterinarian services and top quality food and bedding, should be of no concern to the public, other than any actions to the contrary, which in itself brings the actions of the RSPCA into further disrepute.
K; Any entitlement of DAFWA or other person/body to compensation, reparation or forfeiture if a prosecution is secured.
The RSPCA wrote of this section after the fact once again, by saying “The RSPCA is only entitled to reimbursement of its expenditure”
Cost before the final prosecution notice was served, only weeks ago (16 months after seizure) have already exceeded $750,000 are indeed well beyond acceptable practice and equity. These cost raise at around $45,000 a month, while the RSPCA have not even applied to the courts for forfeiture, noting here the costs sought are well beyond the true costs to the society.
L: The likely length and expense of a trial (if disproportionate to the seriousness of the offence)
One would think the possibility a 2 year long process, an estimated 14 day trial and a 1 million dollars costs order, would well exceed justification of the supposed offence, of rescuing animals and ensuring their professional veterinarian support and housing costs.
In the case of the RSPCA V May, the initial issue of the warrant was not in line with standard procedures, the initial charges were in valid at law, and the subsequent charges laid over 14 months later are still yet to be supported by evidence, and in neither case did either charges attract the legislative scrutiny required under DAFWA’s policy and enforcement procedures.
M; whether the alleged offender is willing to co-operate in the investigation or prosecution of others, or to the extent to which the offender has done so.
The alleged offender Mrs May, at all times has offered to do whatever is needed to comply, the only stand she has taken is one of protection of the animals, which has not occurred, the only offence easily seen during the whole process is the destruction of once healthy animals by the RSPCA itself.
N; The likely outcome in the event of a finding of guilt having regard to the sentencing options available to the court.
The court under the Animal welfare legislation only has available in regards to sentencing the ability to restrict the alleged offender from owning animals, and the ability of the courts to an order of forfeiture of the remaining animals to the crown, which would result in increased costs for the RSPCA and in fact the minster, and the added costs of another entity to take over the rescue of the animals presently being handled my Mrs may.
O: The Necessity to maintain public confidence in DAFWA and the courts; and
P; The potential financial benefit the alleged offender stands to make from the illegal activity.
The case of May, undermines the public confidence to both DAFWA and the courts, the alleged offender has never profited from her actions, and has invested hundreds of thousands of dollars doing what can be considered work of DAFWA under the Animal welfare legislation, by way of the rescue of animals at her own expense.
If the RSPCA are trying to paint Mrs May as an animal hoarder, then they would have justified this fact when asked about her mental state. No options of support have been offered which would be necessary under a genuine application to precede with a prosecution under DAFWAS procedural guidelines.
Note; Animal hoarding is not covered by the animal welfare act, the act is written to deal with animal welfare related issues, not mental health concerns, the act also does not determine how many animals any one person can own. Issues relating to the number of animals a person my own or house is a local government issue, and Mrs May has passed recent inspections by the local government.
The RSPCA were asked by DAFWA to supply information to ensure they have complied with these guidelines after the fact, not before any prosecution took place, or animals were indeed seized.
This in itself is an abuse of process, the reply from the RSPCA already on DAFWA’s files clearly is misleading in its structure and wording, and I believe DAFWA already know this, and by their silence and the turning of a blind eye, resulting in breach of their mandate.
3.7 of the policy guidelines clearly states “After due consideration of all matters identified in these procedures, the investigating officer , will refer the brief of evidence and supporting reports, documentation and recommendations to the director with the responsibility for the administration of the relevant legislation. The director will forward endorse briefs and recommendations to their executive director for referral to the solicitor’s office.
The investigating officer , the relevant director, and the states solicitors office will discuss and agree upon the most appropriate charges to be laid.
None of the procedures at 3.7 were complied with, there for has been ignored in every essence of its purpose, the RSPCA who have no powers under the act, brought a prosecution against an alleged offender without the powers to do so, and the inspector who signed off on the prosecution notice has deliberately ignored policy and procedure guidelines. (The original chief inspector is available as a defence witness) For DAFWA not to act and stop this prosecution is in total disregard to written legislation and policy guidelines, actions that disregard public interest, undermining the departments and indeed the courts public perception.
3.9; Decision to withdraw matters already before the courts.
DAFWA indeed have the ability to withdraw this matter, and ought to do so, based solely on the non-compliance with the policy and enforcement guidelines, The director general is best placed to do this, in the best interests of natural justice. An innocent woman has had her health put at risk, and in fact everything she owns put at risk by a total failure of adherence to procedural guidelines.
I note here correspondence from the minister “the Honourable Ken Baston MLC” makes it clear the RSPCA are not a legal entity with the authority under the animal welfare legislation, in his words “I acknowledge that it is general inspectors employed by the RSPCA and NOT the RSPCA that is the legal entity with the authority under the Animal Welfare Act 2002”.
It would be pertinent to note that the prosecutions taking place both in WA and in other states of Australia are indeed in the name of the RSPCA, given WA’s present legislation that restricts private prosecutions, any actions brought in the name of the RSPCA are therefore invalid at law.
The very fact that in Mrs Mays case that the prosecution is in the RSPCA’s name, rendered the original 15 month prosecution invalid, a prosecution that had ignored DAFWA’s policy’s in the first place, furthermore the replacement prosecution has not only continued to disregarded current DAFWA policy and procedures guidelines, but has effectively more so continued to abuse court process, in what appears an action to use the court process as an avenue to extort moneys well in excess if what could be considered appropriate to fair use of the court system, and well in excess again of DAFWA’s Compliance, enforcement and prosecution policy guidelines.
In the best interests of the Animal Welfare legislation, DAFWA ought to take up the options available to it, and indeed the director and the proceeding minister under section 3.9 and withdraw the current matters before the courts.
I am more than willing to assist Mrs May to ensure any animals that have yet to be killed by the RSPCA can be returned and housed in a manner fitting of the legislation and ensure that all compliance issues are met in the future. At this stage costs and damages could be kept to a bare minimum and the public can then enjoy enduring trust in DAFWA and the courts, as protected by DAFWA;s own policy and procedure guidelines.
The only alternate action appears to be a class action against DAFWA for allowing the RSPCA and indeed the inspectors appointed by DAFWA, to continue to ignore legislative protocols, which could only undermine the department in the eyes of the community it seeks to represent and protect.
I would like to also remind both the minister and the director general Mr. Rob Delane of the very fact these issues are amplified by the actions of the RSPCA on both the lead up to and the performance of their duty’s.
In correspondence received under freedom of information, Mr. Delane makes it clear that the RSPCA have breached the conditions awarded to their inspectors in this case. Mr Delane states “Review of the material provided by the RSPCA to date indicates that their processes and/or understanding of the legislation were inadequate (insufficient grounds to seize some of the animals, failure to notify the owner of deaths or destructions ect) in dealing with this matter”
Further comments from Mr Delane in statements obtained include “Medical histories and behavioural assessments provided by the RSPCA do not appear to support the contention that all of the animals destroyed were suffering so severely that destroying them would be the humane thing to do” casting severe doubts on the actions of the RSPCA in this case.
The department has proven by its words and actions that it is well aware of this case, they are aware of the noncompliance by the inspectors awarded powers by them, the non-adherence to the department’s compliance, enforcement and procedural guidelines. I can prove beyond all reasonable doubt that the department is also aware of the effect all these mistakes are having on an innocent woman’s health and wellbeing and the resulting destruction of once healthy and happy animals, which is in direct conflict with the legislation it is empowered to administer.
The very fact that if and when Mrs May is found not guilty of charges laid by the society, that many of her animals have since been destroyed, making an equitable outcome impossible to ensure. This issue becomes worse when we consider that the RSPCA purport to have been unaware that a number of animals were under veterinary care at the time of their seizure, even though Mrs May’s own vet had contacted them immediately after their removal from the property.
It could be proven that it was the actions of the RSPCA themselves and their inspectors that have caused more cruelty to these animals, than any actions Mrs May took in relation to their rescue and rehabilitate in the first instance. Noting here once again, that no prosecution should have ever taken place without the approval of the Director General and the advice of the government’s own legal services.
I also concur with Mr. Delanes comment that the RSPCA took no steps before or even to date (17 months after seizure) to ask the courts for forfeiture, amounting to an abuse of the court process and indeed disregarding the animals best interests.
This fact appears to support the concept that the RSPCAS themselves are using the court process to improve their financial position rather than any attempt to protect the best interests of the animals or their rescuer. At this stage the RSPCA are demanding the huge sum of over $45,000 per month, plus veterinarian and legal costs.
There are several other practices that are uncovered when we take even a brief look at this case, in regard’s to the actions of the RSPCA, the one that sticks in my mind is the use of a warrant to break into Mrs Mays home, not only the fact it was incorrectly addressed in the first instance, but more so the use of forced entry when Mrs May was not home, which I find poor compliance practice.
The RSPCA were on Mrs Mays property around 4 or 5 days earlier, yet never chose the option to obtain an urgent warrant to enter her premises which is an available resource under the Act, and at all times since the initial visit, Mrs May had attempted to work with them, as did her veterinarians. If there was no urgency in the first place, waiting until Mrs May was absent from the property then using a general warrant to force entry is not in line with correct procedures under the Act.
Since I have taken an interest in this cases from the perspective of animal welfare reform, it has come to my attention that the RSPCA;s departure from its core directives, and in fact the Ministers lack of action in ensuring legislated guidelines are being met, are not restricted to the May case.
My advice for what it is worth would be for the Department of Agriculture and food, to consider a review of the RSPCA’s practices and indeed the powers awarded to its inspectors and their application thereof.
Having read this letter, one would hope that the minister would make proper use of his powers under 3.8 of the Compliance, enforcement and prosecution policy and withdraw the matters before the court in relation to Mrs May in the best interests of her general health and wellbeing, and use this case to ensure that the future directives of the department, the RSPCA and their inspectorate are brought into line with fair practice and community expectations.
Should the Department decide to do nothing, they are therefore giving the RSPCA a mandate to continue to ignore the law, abuse their awarded powers and bring prosecutions that do not comply with government standards.
National spokesperson for the Australian Alliance & companion animal co-ordinator.
Independent MLC candidate for South Australia
[email protected] 08 82847482 / 0403379500
P O Box 1073 Virginia SA 5120