The Aboriginal Tradition and Torres Strait Islander Custom Exemption in the Animal Care and Protection Act 2001 (Qld)

In the lead-up to the March 2012 Queensland state election, the LNP announced that, if elected to government, it would, amongst other things, remove the Aboriginal tradition and Torres Strait Islander custom exemption from the Animal Care and Protection Act 2001 (Qld), with the aim of protecting dugongs and turtles.  The exemption means that Aborigines and Torres Strait Islanders undertaking traditional hunting and fishing are not liable to a penalty if they are cruel to an animal.   The Bligh Labor Government, if it had been re-elected, had intended to address issues arising from the exemption through education rather than legislative change.    

The issue of the inhumane killing of turtles and dugongs by indigenous hunters was brought to the fore in March 2012 by a story on 7:30 on the ABC.  In the segment, covertly obtained footage of a turtle being butchered before it died and a dugong being towed to its death behind a boat was shown.  Following the airing of the report, the Bligh Government instigated an investigation “into claims … about cruelty to turtles and dugongs and illegal poaching in far north Queensland”.  The investigation was jointly conducted by the then Department of Environment and Resource Management (DERM) (looking into the allegations of poaching) and the then Department of Employment, Economic Development and Innovation (DEEDI) (looking at the cruelty aspect).    

The Animal Care and Protection Act 2001 (Qld) aims to promote the responsible care and use of animals and to protect animals from cruelty.  Amongst other matters, the Act prohibits a person from being cruel to an animal (s 18).  Section 18(2) provides a number of examples of situations in which a person is taken to be cruel to an animal.   These include unjustifiably, unnecessarily or unreasonably injuring or wounding an animal, and killing an animal in a way that is inhumane, or causes it not to die quickly, or causes it to die in unreasonable pain.  

The Act does not, however, apply to or affect an act done, or omission made, by an Aborigine under Aboriginal tradition or a Torres Strait Islander under Island custom (s 8(1)).  Thus, for example, an Aborigine or a Torres Strait Islander who is hunting or fishing as a traditional activity and is cruel to an animal is not liable to the maximum penalty of $100,000 (1,000 penalty units) or 2 years imprisonment to which another person would be liable (s 18).   

Section 8(2) of the Act provides that if a regulation prescribes conditions for the doing of the traditional act, or making the omission, the exemption for Aborigines and Torres Strait Islanders only applies if the conditions have been complied with.  The Animal Care and Protection Regulation 2002 (Qld) does not currently specify any conditions.

According to the Explanatory Notes to the Animal Care and Protection Bill 2001 (Qld) (p 20), the provision regarding Aboriginal tradition and Island custom was included in the bill to attempt to balance the interests of Aborigines and Torres Strait Islanders and the welfare of animals.

The Hon Tony Burke MP, the Federal Labor Environment Minister, has commented that policing traditional hunting is “diabolically difficult” given that much traditional hunting occurs in remote regions of Australia.  Accordingly, he considers that the LNP’s plan to amend the Animal Care and Protection Act 2001 is unlikely to mean a change in current practices unless considerably more money is spent on enforcement.  The LNP notes, however, that removing the exemption for traditional hunters and fishers from the animal welfare legislation would bring Queensland into line with the other Australian states and territories. 

Interstate Legislation

In the Northern Territory, it is an offence under the Animal Welfare Act to commit an act of cruelty on an animal (s 6).  The Act states (s 79(2)) that it is not a defence to a prosecution for an offence that the act or omission constituting the offence, or an element of the offence, was in accordance with cultural, religious or traditional practices.   

The Western Australian Animal Welfare Act 2002 provides that a person must not be cruel to an animal (s 19).  A number of defences to a charge under s 19 are provided (see ss 20 – 32) but customary and traditional practices are not among them. 

In New South Wales, s 5 of the Prevention of Cruelty to Animals Act 1979 makes it an offence to commit an act of cruelty upon an animal.  Similarly, in the Australian Capital Territory, s 7 of the Animal Welfare Act 1992 states that a person commits an offence if the person commits an act of cruelty on an animal.  Neither Act has an exemption for customary or traditional practices.

The Animal Welfare Act 1985 of South Australia provides that a person who ill treats an animal is guilty of an offence.  Amongst other things, a person ill treats an animal if the person kills the animal in a manner that causes the animal unnecessary pain or, unless the animal is unconscious, kills the animal by a method that does not cause death to occur as rapidly as possible (s 13).  There is no relevant exemption.

In Tasmania, a person must not do any act which causes or is likely to cause unreasonable and unjustifiable pain or suffering to an animal (Animal Welfare Act 1993, s 8).  There is no relevant exemption.

The Victorian Prevention of Cruelty to Animals Act 1986 provides, amongst other matters, that a person who wounds an animal or does an act, or omits to do an act, with the result that unreasonable pain or suffering is caused to an animal commits an act of cruelty and is guilty of an offence (s 9).  There is no relevant exemption.

Key Documents

Native Title Act 1993 (Cth)

Animal Care and Protection Act 2001 (Qld); Explanatory Notes

LNP, ‘Protecting Queensland’s Precious Wildlife: Dugong and Turtles’, Policy

Queensland Labor, ‘Immediate Investigation into Turtle Hunting: Environment Minister’, 9 March 2012

The Greens, ‘Qld Greens Call for End to Cruelty in Dugong and Turtle Hunting’, 17 March 2012

Sarah Dingle and Lesley Robinson, ‘Hunting Rights Hide Horror for Dugongs, Turtles’, 7:30, ABC, 8 March 2012

Sarah Elks, ‘Bligh Won’t Scrap Indigenous Animal Cruelty Exemption’, Australian, 10 February 2012

Sarah Elks, ‘Cruelty Law Change “Won’t Work”’, Australian, 13 March 2012

Mary Westcott

General Distribution Research Team, Research and Information Service