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Animal Care and Protection and Other Legislation Amendment Bill 2012
Animal Care and Protection and Other
Legislation Amendment Bill 2012
Explanatory Notes
Short title
The short title of the Bill is the Animal Care and Protection and Other
Legislation Amendment Bill 2012.
Policy objectives and the reasons for them
The policy objective of the Bill is to ensure animal welfare obligations
under the Animal Care and Protection Act 2001 apply to acts done under
Aboriginal tradition or Torres Strait Islander custom.
The Queensland Government made an express election commitment to
amend the Animal Care and Protection Act 2001 to bring Queensland in
line with other States, removing exemptions for traditional owners. The
election commitment followed community concern about alleged cruelty
by traditional and customary hunters towards sea turtles and dugongs, and
the immunity from prosecution for animal cruelty that Aboriginal and
Torres Strait Islander people exercising tradition and custom are afforded
by Queensland legislation.
The Bill is intended to strike a reasonable balance between the interests of
Aboriginal and Torres Strait Islander people in maintaining their traditional
and customary practices, and the animal welfare expectations of the
broader community. The Bill will regulate, not extinguish or prevent the
exercise of traditional and customary hunting rights.
Achievement of policy objectives
To achieve its objectives, the Bill will repeal section 8 of the Animal Care
and Protection Act 2001. Section 8 currently excludes acts done or
omissions made by Aboriginal and Torres Strait Islander people in
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Animal Care and Protection and Other Legislation Amendment Bill 2012
accordance with Aboriginal tradition or Islander custom from the
application of the Animal Care and Protection Act 2001.
The Bill will also amend the Animal Care and Protection Act 2001 to
ensure that a person who is authorised to deal with animals in accordance
with Aboriginal tradition or Islander custom under the Nature
Conservation Act 1992 is subject to the animal welfare obligations under
the Animal Care and Protection Act 2001.
To ensure that a balance is struck between traditional and customary
practices, and the animal welfare expectations of the broader community,
the Bill will amend the Animal Care and Protection Act 2001 to require
that animals that are hunted under Aboriginal tradition or Islander custom
are dealt with in a way that causes them as little pain as is reasonable.
The Bill will also amend the Aboriginal and Torres Strait Islander
Communities (Justice, Land and Other Matters) Act 1984 to ensure that a
person who is authorised to hunt marine fauna under section 61 of that Act
is subject to the animal welfare obligations under the Animal Care and
Protection Act 2001.
The Bill will also amend the Aurukun and Mornington Shire Leases Act
1978 to ensure that an Aboriginal person who is authorised to capture,
possess, kill and consume native fauna under section 26 of that Act is
subject to the animal welfare obligations under the Animal Care and
Protection Act 2001.
The Bill will also amend the Nature Conservation Act 1992 to ensure that
an Aboriginal or Torres Strait Islander person authorised to deal with
animals under section 93 of that Act, were that section to commence,
would be subject to the animal welfare obligations under the Animal Care
and Protection Act 2001.
Alternative ways of achieving policy objectives
There have been allegations over many years that some activities by some
Aboriginal and Torres Strait Islander people in accordance with Aboriginal
tradition or Islander custom may be discordant with the cruelty provisions
in the Animal Care and Protection Act 2001.
A legislative approach is necessary to give effect to the Government's
election commitment to "amend the Animal Care and Protection Act 2001
to bring Queensland into line with other states." A purely non-regulatory or
self-regulatory approach would not fulfil the election commitment because
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Animal Care and Protection and Other Legislation Amendment Bill 2012
dealings with animals in accordance with Aboriginal tradition or Islander
custom would still not be subject to the Animal Care and Protection Act
2001.
The main alternative to repealing section 8 of the Animal Care and
Protection Act 2001 would be to make a regulation under section 8 of the
Animal Care and Protection Act 2001. The regulation could prescribe
conditions for dealings with animals in accordance with Aboriginal
tradition and Islander custom. If such conditions were complied with, the
obligations under the Animal Care and Protection Act 2001 would not
apply. This approach would fall short of ensuring that the broader animal
welfare obligations under Animal Care and Protection Act 2001 generally
apply to Aboriginal and Torres Strait Islander persons exercising tradition
and custom.
Amendment of section 7 of the Animal Care and Protection Act 2001,
section 61 of the Aboriginal and Torres Strait Islander Communities
(Justice, Land and Other Matters) Act 1984, section 26 of the Aurukun and
Mornington Shire Leases Act 1978 and section 93 of the Nature
Conservation Act 1992 would also still be required so that the Animal Care
and Protection Act 2001 would apply to dealings with animals by
Aboriginal and Torres Strait Islander persons in relevant circumstances.
Estimated cost for government implementation
The cost of implementation of the Bill will be minimised by both a
coordinated and phased approach to implementation.
A number of government agencies already engage with Aboriginal and
Torres Strait communities on issues including sustainability of turtles and
dugong populations and surveillance for pests. Education about the
changes will be delivered by officers from these agencies when they are in
each community. More targeted engagement and enforcement will be
limited to specific communities where there are ongoing or significant
issues.
Consistency with fundamental legislative principles
The Bill is generally consistent with fundamental legislative principles.
Fundamental legislative principles raised by the content of the Bill are
addressed below.
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Animal Care and Protection and Other Legislation Amendment Bill 2012
Legislative Standards Act 1992, section 4(3)(j) - Legislation should have
sufficient regard to Aboriginal tradition and Island custom
Legislative Standards Act 1992, section 4(2)(a) - Legislation should have
sufficient regard to the rights and liberties of individuals (native title
rights)
The Bill will impact on Aboriginal tradition and Islander custom by
requiring that dealings with animals in accordance with Aboriginal
tradition and Islander custom are undertaken in a way that complies with
the animal welfare obligations under the Animal Care and Protection Act
2001. The Bill will also impact on native title rights by requiring that native
title rights to deal with animals are exercised in a way that complies with
the animal welfare obligations under the Animal Care and Protection Act
2001. Similarly, the Bill may also impact on dealings with animals as
agreed to under Indigenous Land Use Agreements.
The Bill will not withdraw any authorisations to hunt (or conduct other
dealings with animals) in accordance with Aboriginal tradition and
Islander custom under Queensland or Commonwealth law; nor will the Bill
extinguish any native title rights to hunt or otherwise deal with animals.
Instead, the effect of the Bill will be to regulate the exercise of those
authorisations and rights. The general effect of the Bill will be that those
rights and authorisations must be exercised in a way that does not involve
killing an animal in a manner that causes pain that is unreasonable in the
circumstances.
It is intended that the regulation of traditional and customary hunting rights
under the amended Animal Care and Protection Act 2001 will not prevent
the exercise of those hunting rights. Clause 10 will give effect to this
intention by requiring that a person exercises their traditional or customary
right or authorisation to kill an animal in a way that causes the animal as
little pain as is reasonable. This strikes a reasonable balance between the
interests of Aboriginal and Torres Strait Islander people in maintaining
their traditional and customary practices, and the animal welfare
expectations of the broader community.
Legislative Standards Act 1992, section 4(2)(a) - legislation should have
sufficient regard to the rights and liberties of individuals (freedom from
racial discrimination)
The effect of the Bill will be that Aboriginal and Torres Strait Islander
people who exercise statutory rights to deal with animals in accordance
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Animal Care and Protection and Other Legislation Amendment Bill 2012
with Aboriginal tradition or Islander custom will be subject to the Animal
Care and Protection Act 2001.
Legislative provisions which confer such rights include (but are not limited
to) section 93 of the Nature Conservation Act 1992, sections 42, 43, 228
and 234 of the Nature Conservation (Wildlife Management) Regulation
2006, section 61 of the Aboriginal and Torres Strait Islander Communities
(Justice, Land and Other Matters) Act 1984 and section 26 of the Aurukun
and Mornington Shire Leases Act 1978.
These provisions would likely be special measures under the Racial
Discrimination Act 1975 (Cth) that permit dealings with animals in
accordance with Aboriginal tradition and Islander custom.
The Bill may lessen the benefits of these special measures by requiring that
they are exercised in compliance with animal welfare obligations under the
Animal Care and Protection Act 2001. This is necessary to strike a balance
between the welfare needs of animals and allowing Aboriginal and Torres
Strait Islander people to deal with animals in accordance with tradition and
custom.
Legislative Standards Act 1992, section 4(3)(k) - legislation should be
unambiguous and drafted in a sufficiently clear and precise way
To address any potential ambiguity about the effect of the Bill on native
title rights to deal with animals, clause 8 makes it clear that a person does
not avoid liability to be prosecuted for an offence under the Animal Care
and Protection Act 2001 because the act or omission that constitutes the
offence happens in the exercise or enjoyment of native title rights and
interests.
Consultation
The Government has an electoral mandate to implement its announced
policy commitments, including the specific commitment contained in
Protecting Queensland's precious wildlife: Dugong and Turtles:
"The LNP will remove the current exemption for traditional hunters
from the law that makes it illegal for anyone to wound, mutilate,
torture or unnecessarily prolong the death of an animal - enforceable
with penalties of up to two years in jail or a $100,000 fine."
Consultation on implementation of the Bill will occur once it has been
introduced into Parliament.
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Animal Care and Protection and Other Legislation Amendment Bill 2012
Consistency with legislation of other jurisdictions
Animal welfare legislation in other Australian jurisdictions does not
exempt acts or omissions done in accordance with Aboriginal tradition or
Islander custom from its operation. The Animal Care and Protection Act
2001 is currently the only piece of animal welfare legislation in Australia
that expressly exempts dealings with animals in accordance with
Aboriginal tradition and Islander custom from its operation. By removing
the exemption, the Bill will bring the Animal Care and Protection Act 2001
into line with animal welfare legislation in other Australian jurisdictions.
Animal welfare legislation in the Northern Territory provides that it applies
equally to cultural, religious and traditional practices by explicitly
excluding such practices as defences to a charge of cruelty.
Notes on provisions
Part 1 Preliminary
Clause 1 states that the short title of the Act is the Animal Care and
Protection and Other Legislation Amendment Act 2012.
Part 2 Amendment of Aboriginal and
Torres Strait Islander
Communities (Justice, Land and
Other Matters) Act 1984
Clause 2 states that this part amends the Aboriginal and Torres Strait
Islander Communities (Justice, Land and Other Matters) Act 1984.
Clause 3 amends section 61 (Right of Aborigines and Torres Strait
Islanders to particular natural resources) so that an authorisation to deal
with animals under section 61 is subject to the Animal Care and Protection
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Animal Care and Protection and Other Legislation Amendment Bill 2012
Act 2001 and sections 62 and 93 of the Nature Conservation Act 1992 but
is not subject to any other provisions of any Act. Previously an
authorisation under section 61 was not subject to the Animal Care and
Protection Act 2001.
Clause 3 also clarifies that the marine animals taken under section 61 of the
Aboriginal and Torres Strait Islander Communities (Justice, Land and
Other Matters) Act 1984 are to be consumed in the community government
or Indigenous Regional Council area by members of that community.
Part 3 Amendment of Animal Care and
Protection Act 2001
Clause 4 states that this part amends the Animal Care and Protection Act
2001.
Clause 5 amends section 5 (Act binds all persons) to remove references to
section 8 of the Animal Care and Protection Act 2001. This is necessary as
a consequence of the amendment of section 8 by clause 8 of the Bill.
The effect of the amended section 5 is that the Animal Care and Protection
Act 2001 binds all persons, except where sections 6, 6A or 7 apply.
Previously, section 8 was also included in section 5 as an exception to the
general application of the Act.
Clause 6 inserts new section 6A (Relationship with Nature Conservation
Act 1992) which concerns the relationship between the Animal Care and
Protection Act 2001 and the Nature Conservation Act 1992.
The effect of the new section 6A is that the Animal Care and Protection Act
2001 applies where a person acting under the Nature Conservation Act
1992 takes, keeps or uses an animal to exercise Aboriginal tradition or
Islander custom or uses an animal for scientific purposes. A person who
lawfully does any other act authorised under the Nature Conservation Act
1992 is taken not to commit an offence under the Animal Care and
Protection Act 2001 by reason only of doing that act.
The new section 6A generally preserves the substantive relationship
between the Animal Care and Protection Act 2001 and the Nature
Conservation Act 1992 that was previously provided under section 7 of the
Animal Care and Protection Act 2001 except to provide that a person
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Animal Care and Protection and Other Legislation Amendment Bill 2012
acting under the Nature Conservation Act 1992 who takes, keeps or uses an
animal to exercise Aboriginal tradition or Islander custom must comply
with the Animal Care and Protection Act 2001. There are several
provisions under the Nature Conservation Act 1992 which authorise (or
upon commencement would authorise) dealings with animals in
accordance with Aboriginal tradition and Torres Strait Islander custom.
Clause 7 amends section 7 (Relationship with certain other Acts) to remove
references to the Nature Conservation Act 1992 as a consequence of the
insertion by Clause 6 of new section 6A. As a result section 7 will only
apply to acts done under the Fisheries Act 1994 or the Racing Act 2002. In
effect, section 7 as amended will mean a person who lawfully deals with
animals under either of these Acts, unless they are used for a scientific
purpose, is taken not to commit an offence under the Animal Care and
Protection Act 2001 by reason only of doing that act.
Clause 8 replaces the provisions of section 8 (Aboriginal tradition and
Island custom) with a new provision.
Previously, section 8 excluded from the application of the Animal Care and
Protection Act 2001, acts done or omissions made by Aboriginal or Torres
Strait Islander people in accordance with Aboriginal tradition or Islander
custom.
The amended section 8 (Relationship with native title) makes it clear that a
person does not avoid liability for prosecution for an offence under the Act
only because the act or omission that constituted the offence happens in the
exercise or enjoyment of native title rights or interests.
Clause 9 amends section 38 (Operation of pt 6) to include the new section
41A as an offence exemption to the general animal offences set out in
Chapter 3 of the Act. Where an offence exemption applies to an act or
omission, it protects a person from committing the offence that would
otherwise be committed by the act or omission.
Clause 10 inserts new section 41A (Killing an animal under Aboriginal
tradition, Island custom or native title) to apply specific animal welfare
obligations to certain activities that involve the killing of an animal in order
to balance the interests and rights of Aboriginal and Torres Strait Islander
people in maintaining traditional and customary practices with the welfare
of animals.
The offence exemption applies to a person who kills an animal in the
exercise of native title rights or interests or under the authority of a
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Animal Care and Protection and Other Legislation Amendment Bill 2012
Queensland or Commonwealth law to take the animal under Aboriginal
tradition or Islander custom, under section 61 of the Aboriginal and Torres
Strait Islander Communities (Justice, Land and Other Matters) Act 1984 or
under section 26 of the Aurukun and Mornington Shire Council Leases Act
1978.
To ensure that "take" in the context of the new section 41A is construed
broadly, subsection (3) makes it clear that for the purposes of the new
section 41A, "take" includes "taking" "keeping" and "using" within the
meaning of the Nature Conservation Act 1992.
The effect of new section 41A is that a person who hunts an animal in such
circumstances does not commit an offence provided the act that would
otherwise constitute an offence is done in a way that causes the animal as
little pain as is reasonable.
Part 4 Amendment of Aurukun and
Mornington Shire Leases Act
1978
Clause 11 states that this part amends the Aurukun and Mornington Shire
Leases Act 1978.
Clause 12 amends section 26 (Preservation of Aborigines' hunting and
gathering rights) so that an authorisation to deal with native fauna under
section 26(1)(a) is subject to the Animal Care and Protection Act 2001 and
sections 62 and 93 of the Nature Conservation Act 1992 but is not subject
to any other provisions of any Act. Previously an authorisation under
section 26(1)(a) was not subject to the Animal Care and Protection Act
2001.
Part 5 Amendment of Nature
Conservation Act 1992
Clause 13 states that this part amends the Nature Conservation Act 1992.
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Animal Care and Protection and Other Legislation Amendment Bill 2012
Clause 14 amends section 93 (Aborigines' and Torres Strait Islanders'
rights to take etc. protected wildlife) so that any dealings with protected
wildlife under that section are subject to the Animal Care and Protection
Act 2001 but not any other Act. Section 93 previously applied despite any
other Act.
As yet, section 93 of the Nature Conservation Act 1992 has not
commenced. However, if it commenced in its previous form, it could
prevent the Animal Care and Protection Act 2001 from applying to
dealings with animals under Aboriginal tradition or Islander custom in
places other than protected areas (within the meaning of the Nature
Conservation Act 1992).
© State of Queensland 2012
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