ALERT DIGEST 9 of 1994

Part 1

The Committee has considered the following Bills
Fisheries (Amendment) Bill
Domestic (Feral and Nuisance) Animals Bill
Emerald Tourist Railway (Amendment) Bill
Financial Management (Amendment) Bill
Liquor Control (Amendment) Bill
Intellectually Disabled Persons' Services (Amendment) Bill
Agricultural and Veterinary Chemicals (Victoria) Bill
Australian Grand Prix Bill

The Committee reports on the following Bills
Fisheries (Amendment) Bill
Domestic (Feral and Nuisance) Animals Bill
Emerald Tourist Railway (Amendment) Bill
Financial Management (Amendment) Bill
Liquor Control (Amendment) Bill
Intellectually Disabled Persons' Services (Amendment) Bill
Agricultural and Veterinary Chemicals (Victoria) Bill
Australian Grand Prix Bill

FISHERIES (AMENDMENT) BILL

1.1

The Bill was introduced into the Legislative Assembly on 7 September 1994 by The Honourable Geoff Coleman with The Honourable Ian Smith.

1.2

This Act amends the Fisheries Act 1968. In particular, its purposes are:-

to create new abalone processors' and abalone storers' licences; and
to enable the better enforcement of the abalone fishing provisions of the Act;
to increase the seizure powers of authorised officers and to enable authorised officers to obtain a warrant to search dwellings; and
to change the way fish-culture permit fees are to be calculated; and
to amend the Conservation, Forests and Lands Act 1987 to extend the range of legal proceedings in which authorised officers can represent the Department.

1.3

Clause 2 is the commencement provision. The Committee commends the forced commencement procedure.

Clause 8 amends section 13 of the Act to create abalone processors' and abalone storers' licences and specifies the entitlements of those licences.

Clause 10 amends section 14 of the Act to modify trawl net licences and create purse seine net licences. Note the definition of "purse seine net licence" is set out in clause 3 and means a licence for taking fish for sale by the use of purse seine nets, lampara nets or ring nets under section 14. It also amends section 15 to prescribe the fee payable in respect of a purse seine net licence and provides for the fee to be increased by regulation.

1.4 _Ż Impost fee of $20,000

Clause 11 amends section 15 of the Act to specify the amounts payable in respect of an abalone processors' licence and the fee for an abalone storers' licence. The annual fee for an abalone processor's licence is $20,000. The annual fee for an abalone storer's licence is $500 or such other amount as prescribed from time to time. The Committee notes the comments in the Second Reading Speech: -

"An annual impost of $20,000 will be charged for the licence with provision being made in the Bill for the annual fee to rise and fall with the price of abalone.

The Government intends to use the revenue gained from the licence to offset the cost of employing additional fisheries officers to monitor the scheme and improve enforcement effort in the abalone industry."

1.5

Clause 12 amends section 15 which relates to licence fees. It removes the references to maximum fees and enables fees to be increased by regulation.

Clause 14 sets out the offences and penalties relating to the taking and processing of abalone.

Clause 16 changes the way in which fish-culture permit fees are set. The Secretary determines the fee by taking into account a number of factors which are specified. The Secretary may also determine the fees by accepting tenders or by accepting the amount determined by the Valuer-General. The Secretary must review the amount of the permit every three years and if the holder of the permit and the Secretary cannot agree, then the holder may seek the opinion of the Valuer-General. The Valuer-General's opinion then determines the amount of the fee.

Clause 18 amends section 29 of the Act to provide for the transfer of fish culture permits to be subject to a fee to be determined by the Secretary having regard to the commercial value of the permit. The opinion of the Valuer-General may be sought if the permit holder is of the view that the fee is too high. The Valuer-General's opinion is binding.

1.6 _Ż Powers of search and seizure
Trespasses unduly upon rights or freedoms - section 4D(a)(i)

Clause 21 provides that authorised officers may seize contaminated fish pursuant to section 48. Section 48 relates to authorised officers' powers of entry and inspection.

Clause 22 widens the powers of the authorised officers to inspect and seize documents for the purposes of section 48.

Clause 23 gives the authorised officers the power to search dwellings, seize any relevant evidence or destroy any noxious fish if authorised by a warrant issued by a magistrate. The warrant has effect for 72 hours after it is issued. If any goods or items are seized pursuant to the new section 48A, the procedures for identification of the goods are set out in the new section 48B.

Clause 24 extends the powers of the authorised officers to seize anything that "is being used by, or that is in the possession of, a person who has just committed, is committing or appears to be just about to commit, an offence against this Act, the regulations or a fisheries notice." The previous powers related to "fishing equipment". The Committee notes that these powers are very wide and include boats, trailers, aircraft, motor vehicles, non-motor vehicles, communications equipment, scanning devices, diving equipment, processing equipment fish, tools and electronic equipment.

The Committee notes the comments in the Second Reading Speech:-

"The illegal harvesting of abalone continues to be a major problem. Poachers are able to gain access to the lucrative Asian markets via unscrupulous processors, operating in Victoria and elsewhere, who are laundering illegally taken product.

National annual estimates of illegally taken abalone are about 700 tonnes which is equivalent to half of the legal catch from Victoria. Enforcement at sea and on shore continues to receive high priority, making up about 60% of all fisheries enforcement effort and will complement existing controls.........

The Bill also proposes a series of amendments which will increase the ability of fisheries officers to detect and prosecute illegal operators. Included is an ability to obtain search warrants to inspect dwellings, where it is suspected illegal product is being stored and improved seizure provisions which are extended to cover all the equipment used by the poachers, including boats, trailers, motor vehicles and aircraft."

The Committee notes that the effect of the provision enables an authorised officer or a member of the police force to seize almost anything . However the Committee notes that the reasons for the increased powers are to protect our natural resources and prevent illegal fishing which is a major problem. In the circumstances the Committee is of the view that there is a reduction in rights but refers the question of whether the reduction is undue to the Parliament to debate.

Clause 25 inserts a new section 62A into the Act to prohibit the taking of fish from any waters contaminated by algal blooms or other contamination that could make those fish poisonous. It also prohibits the processing, sale or offering, consigning or exposure for sale of any fish.

1.7 _Ż Reversal of the onus of proof

Clause 26 inserts a new section 73A into the Act to provide that a person who is in a boat, aircraft, car or any other vehicle in or on which there is abalone is deemed to be in possession of the abalone until the contrary is proved.

The Committee notes that the clause reverses the onus of proof in relation to the possession of abalone but that this can be overcome by the presentation of relevant evidence. However the Committee also refers to the previous discussion in respect of clause 24 and notes that the reasons for the reversal of the onus of proof relate to an increased commitment to the prevention of laundering of illegal abalone. A person who legitimately possesses abalone is not affected. In the circumstances the Committee is of the view that there is a reduction in rights but refers the question of whether the reduction is undue to the Parliament for debate.

1.8

Clause 27 amends section 76B(1) of the Act to provide for the compulsory suspension or cancellation of an abalone licence where a person has been convicted of an offence.

Clause 31 amends section 81 of the Act to enable regulations made under the Act to provide for exemptions for specified persons, bodies or things from the provisions of those regulations.

The Committee makes no further comment.

DOMESTIC (FERAL AND NUISANCE) ANIMALS BILL

2.1

This Bill was introduced into the Legislative Assembly on 7 September 1994 by The Honourable Bill McGrath MP with The Honourable Pat McNamara MP.

2.2

The main purposes of this Bill are to promote animal welfare, the responsible ownership of dogs and cats and the protection of the environment. In particular it provides for:-

a scheme to protect the community and the environment from feral and nuisance dogs and cats;
a registration and identification scheme for dogs and cats which recognises and promotes responsible ownership;
the identification and control of dangerous dogs;
a registration scheme for domestic animal businesses which promotes the maintenance of standards of those businesses;
matters related to the boarding of dogs and cats;
payments to the Treasurer from fees received Councils under this Act; and
other related matters.

2.3

Clause 3 defines various terms used in the Bill.

Clause 6 gives the Minister the power to delegate in writing to any officer or employee specified powers listed under (a) and (b). The Committee notes that the powers delegated are limited.

Clause 7 sets out exemptions for guide dogs where they are performing functions as guide dogs. Visually impaired persons who use or own guide dogs are not required to pay a registration fee for the dog. Exemptions for dogs used by government authorities are set out in Clause 8.

2.4 _Ż Part 2 - Registration of dogs and cats

Part 2 sets out the requirements for the registration of cats and dogs. All dogs and cats over the age of six months must be registered with the Council. The registration must be renewed each year. Division 2 sets out the procedures for registration. The owners of animals are required to pay a fee to the Council. These provisions largely mirror those in Part 1 of the Dog Act 1970 except that cats are now covered in the new Act.

Clause 15 provides that the Councils must fix the registration fees. The Schedule sets out which dogs and cats are eligible for the reduced and maximum fees. The Committee notes that pensioners are entitled to have registration fees waived by 50% and that there are reduced fees for desexed animals, animals over 10 years old, animals registered by the Feline Control Council and the Victorian Canine Association, animals kept for breeding purposes on registered premises and animals permanently in the prescribed manner. The Committee also notes that these provisions mirror the old section 7 of the Dog Act 1970 in that the registration fees are fixed by the municipal council of a district.

Clause 17 gives the Council the discretion to impose conditions on the registration of a dangerous dog or to refuse to register dangerous dogs. The Council must give notice to the owner of its intentions and the opportunity to the owner to make oral and written submissions. If the Council decides not to register or renew the registration of a dangerous dog, it must give written reasons for its decision to the owner within seven days of making the decision. The Committee notes that pursuant to clause 98 a "decision" of the Council in relation to this provision may be the subject of an appeal to the Administrative Appeals Tribunal.

Clauses 21 and 22 set out the penalties in relation to unregistered dogs and cats.

2.5 _Ż Part 3 - Control of dogs and cats

Part 3 relates to the control of dogs and cats.

Clause 23 provides that the Council may serve a notice of objection on the owner of a dog or a cat objecting to the presence of the animal on a particular property after the owner has been warned. Sub-clause 23 sets out the penalties for an offence after the service of a notice of objection. Clauses 24 and 25 set out the penalties for dogs and cats found at large.

Clause 26 provides that the Council may prohibit the presence of dogs and cats in any public area or impose conditions on their presence. Notice of any order made must be published in the Government Gazette and in a newspaper circulating in the municipal district of the Council making the order.

Clause 27 relates to the restraint of greyhounds. Clause 29 sets out the penalties for which the owner of a dog is liable for any attack by his or her dog. Note subsection 5 which states that if the owner of a dog is convicted of an offence under the section, the court may order that the dog be destroyed by an authorised officer of the Council of the municipal district in which the offence occurred.

Clause 32 provides that the owner of any premises where a dog or a cat is kept must not allow that animal to be a nuisance. Nuisance is defined broadly in subsection 2. It extends to creating a "noise by barking which persistently occurs or continues to such a degree or extent that it unreasonably interferes with the peace, comfort or convenience of any person in any other premises." If a person is convicted of an offence under the section, then he or she must comply with any action specified in an order by the Court. The Court can specify any action from the debarking of dogs to the destroying of dogs.

Pursuant to clause 34, a Council may declare a dog to be dangerous. If the Council declares that a dog is dangerous, then it must notify the owner of its intentions and allow the owner the opportunity to make both oral and written submissions to it. Clause 38 provides for the restraint of dangerous dogs on the owner's premises. The owner of a dangerous dog must display warning signs.

Clause 42 gives the Council the power to make local laws with respect to the regulation of dogs.

2.6 _Ż Part 4 - Registration and conduct of domestic animal businesses

Part 4 deals with the registration and conduct of domestic animal businesses.

Pursuant to clause 53 persons conducting domestic animal businesses must register those businesses and pay the fees fixed by the Council. "Domestic animal business" is defined in clause 3. The Council may impose any terms, conditions, limitations or restrictions on the registration. Clause 54 provides that a council may refuse to register or renew the registration of a premises. The Council must give notice of its intention to do so and must give the proprietor the opportunity to make both oral and written submissions and must take the submissions into account. The Council must serve notice of its decision and give reasons for its decision in the notice.

Clause 59 gives the Minister the power to make Codes of Practice which specify standards for the conduct of domestic animal businesses. Notice of any proposal to make the Code must be published in the Government Gazette and in a newspaper circulating generally throughout the State. The Code of Practice must be made publicly available for a fee which is determined by the Minister.

The Committee recommends that the Subordinate Legislation Act 1962 be amended to include Codes of Practice.

2.7 _Ż Part 5 - Boarding of dogs and cats

Part 5 sets out the responsibilities of a proprietor in relation to the boarding of dogs and cats. Note subsection (4) which provides that if it is necessary to destroy an animal which is being boarded, the proprietor of the place where the animal is being boarding may authorise the destruction of that animal, unless, by agreement with the owner, the proprietor is not entitled to give that authorisation.

Clause 65 gives the proprietor of a place where a dog or cat is being boarded a lien over the animal if the owner of the animal owes the proprietor any money. Clause 66 provides that the person who holds a lien over a dog or a cat may destroy the animal provided that he or she has served the appropriate notice on the owner and the owner has not payed the amount owing in 14 days.

Clause 67 gives the holder of a lien over a dog or a cat the power to sell any unclaimed animals and use the proceeds of the sale to offset any amounts owing to him or her and any expenses associated with the sale. The notice requirements under clause 66 apply to this provision.

The Committee recommends that a prescribed notice of the rights and responsibilities set out in clauses 65 and 67 be displayed at boarding places.

2.8 _Ż Part 6 - Financial Provisions

Part 6 provides for payment to the Treasurer by the Council of monies collected in respect of registration fees.

2.9 _Ż Part 7 - Enforcement and supplementary provisions
Division 1

Part 7 sets out the enforcement and supplementary provisions.

Clause 71 provides for the appointment of authorised officer and clause 74 sets out their powers. Authorised officers are given wide powers. An authorised officer may at a reasonable time and with reasonable means and assistance enter any land, vehicle or building for the purposes of enforcing the provisions of the Act. This includes shops, boarding places, kennels etc. Authorised officers are not entitled to enter a place of residence. The authorised officer must produce a certificate of appointment for inspection if requested.

Pursuant to clause 74(3) a person must give his or her name and place of residence if the authorised officer believes on reasonable grounds that an offence has been or is about to be committed. The Committee notes that pursuant to clause 76 it is an offence to refuse to give such information and there is a penalty of 10 units. Subclause (2) of 76 provides that it is a reasonable excuse for a person to refuse to answer such a question when the requirement is made by an authorised officer or any other person in authority for the purpose of determining whether the person who has refused or failed to answer has committed an offence.

The Committee notes that clause 76(2) appears to be directed toward maintaining the right against self-incrimination for an individual. The Committee has written to the Minister asking whether that is the purpose of the provision. If that is the purpose , the Committee is of the view that the provision should be redrafted to make it clearer.

Clause 75 gives authorised officers the power to seize or take copies or extracts of documents provided they give receipts. The documents must be returned in 60 days if proceedings in which the documents are used have not commenced. An authorised officer may apply to the Magistrates' Court for an extension of the period for which a seized document is kept.

2.10 _Ż Division 2 - Powers to seize and destroy dogs and cats

Clauses 77 and 80 give the Council the power to seize and destroy dogs and cats in certain circumstances, namely:-

if the owner has been found guilty of not registering a dog and has failed to do so within one month of that finding;
if a dog is dangerous and a review of the Council's decision to refuse to register the dog by the Administrative Appeals Tribunal has failed;
if the dog is dangerous and the owner has been found guilty of failing to restrain the dog in an enclosure, muzzle it or has failed to erect appropriate warning signs;
if the owner sets the dog to attack or if the dog attacks, bites, worries or chases any person or animal; The Committee notes that in this respect the provision mirrors the old sections 21 and 22 of the Dog Act 1970 which also provided that the Court may order the destruction of a dog in those circumstances.
if the owner of a cat has been found guilty of not registering the cat and has failed to so within one month of that finding;
if the owners of stray dogs or cats are found guilty of two or more offences of the animals wandering at large or are found guilty of subsequent offences after being served with a notice of objection; The Committee notes that in this respect the provision largely mirrors the old sections 15 and 17 of the Dog Act 1970 which also provided that the Court may order the destruction of a dog in those circumstances.

Pursuant to clause 77 the owner of any animal seized under these provisions must be notified in writing within 4 days after the animal is seized.

2.11 _Ż Division 3 - Infringement notices

Clauses 85-88 relate to the form and service of an infringement notice. Clauses 88 and 89 relate to the payment of a penalty.

2.12 _Ż Part 8 - Regulations

Clause 100 in Part 8 gives the Governor in Council the power to make regulations with respect to various matters including fees.

2.13 _Ż Supreme Court - Limitation of jurisdiction (Section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968)

Clause 99 declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from entertaining proceedings to the extent provided in sections 30(2) and 31(2).

Clause 30(2) provides that an authorised officer, an owner or a person authorised by the owner does not incur any liability for the destruction of any cat or dog found at large where in a place where animals or birds are confined or tethered. Similarly, clause 31(2) provides that an authorised officer does not incur any liability for the destruction of any cat or dog found at large in areas classified as control zone under a management plan or as a conservation zone under a planning scheme.

The Committee notes the comments in the Second Reading Speech:-

"The reason for preventing the entertaining of these proceedings is that without the protection provided in these clauses, authorised persons may be reluctant to destroy dogs or cats found at large in the vicinity of livestock or in a control zone or conservation zone. To fail to destroy and to leave dogs and cats at large in these areas presents an unacceptably high risk of death or injury to livestock, wildlife or the environment."

The Committee considers that the explanation is adequate and reports that the provision is appropriate and desirable in all the circumstances.

ALERT DIGEST 9