Thursday, 2 November 2023
Bills
Biosecurity Legislation Amendment (Incident Response) Bill 2023
Bills
Biosecurity Legislation Amendment (Incident Response) Bill 2023
Statement of compatibility
Ros SPENCE (Kalkallo – Minister for Agriculture, Minister for Community Sport, Minister for Carers and Volunteers) (10:05): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Biosecurity Legislation Amendment (Incident Response) Bill 2023.
Opening paragraphs
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Biosecurity Legislation Amendment (Incident Response) Bill 2023.
In my opinion, the Biosecurity Legislation Amendment (Incident Response) Bill 2023, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview
The Biosecurity Legislation Amendment (Incident Response) Bill 2023 (the Bill) makes various amendments to the following Acts, collectively known as ‘the Acts’:
• Livestock Disease Control Act 1994;
• Livestock Management Act 2010; and
• Plant Biosecurity Act 2010.
The Bill will make amendments to enhance the Victorian Government’s capability to manage biosecurity incidents, including preparing for, responding to, and recovering from an exotic animal disease or plant pest or disease detection and outbreak. Other amendments include improving the administration, operation and enforcement of the Acts, making various miscellaneous and technical amendments, including Machinery of Government related amendments, to improve clarity and consistency.
The Bill supports a public commitment by the Victorian Government to improve exotic pest and disease preparedness and response capability. The Bill aims to do this through amendments to ensure a holistic and effective legislative framework that protects Victoria’s valuable agricultural and horticultural sectors and mitigates potential risks to market access and trade disruptions associated with an exotic animal disease or plant pest or disease detection or outbreak.
The Bill also seeks to incentivise compliance with biosecurity measures by increasing penalties for non-compliance as well as ensuring that the compensation regime for loss of livestock as a result of an outbreak of an exotic disease can be more equitably and fairly accessed by, and paid to, responsible livestock owners.
Human Rights Issues
The human rights protected by the Charter that are relevant to the Bill are:
• right to freedom of movement (section 12);
• right to privacy and reputation (section 13);
• right to property (section 20);
• right to be presumed innocent until proven guilty (section 25)
Right to freedom of movement
Under section 12 of the Charter, every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live. The right includes freedom from physical and procedural barriers, such as notification or authorisation requirements, or reporting obligations relating to movement. However, the right does not extend to a freedom of access to all places, such as another person’s private property.
Inspector powers to direct movement
The Bill amends section 116 of the Livestock Disease Control Act 1994 to give inspectors, for the purpose of exercising their powers under the Act relating to exotic diseases, with or without assistants, the power to direct a person in control of a vehicle to move the vehicle to another place including by a specified route or to take a specified action for the purposes of preventing, eradicating, controlling or monitoring an outbreak of exotic disease (clause 19). The amendments provide inspectors with the necessary powers to mitigate and contain the risk of disease spreading and has the effect of limiting a person’s movement. Clause 19 will give an inspector power to direct a person that may also result in person’s movement being limited.
The Bill will have the effect of limiting a person’s right of movement in certain circumstances. This limitation is justified because it will ensure that the risk of an outbreak of exotic disease is either prevented, controlled or adequately monitored. It is in the public interest for movement to be restricted by particular routes in order to minimise these risks related to property (including livestock, and structures), and such limitations will ensure that impacts to the broader economy, which could be affected by a livestock disease outbreak event, are minimised.
Right to privacy
Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.
The right to privacy is broad and extends beyond information privacy to include, for example, the right to personal autonomy, dignity and identity. It may also apply to protect a person against unlawful or arbitrary restrictions on employment, which may affect a person’s personal relationships and private life.
Collection and sharing of information
The collection of information related to the livestock movement is fundamental to prevent, prepare for, respond to and recover from a disease outbreak. The Livestock Disease Control Act 1994 and regulations provide for the collection of various information for that purpose, which also captures personal information, thereby engaging a person their right to privacy.
Current Section 107B of the Livestock Disease Control Act 1994 has two key purposes, namely, to require the Secretary to keep particular information and records and to also allow certain records to be shared for purposes linked to the objects of the Act. Clause 3 of the Bill separates the information record keeping requirements and sharing requirements under section 107B, by inserting a new section 107BA and 107BB. It also expands the scope of information sharing to provide clearer authorisation pathways for the Secretary to share information to relevant persons in an emergency and non-emergency context, and for permitted persons to request the disclosure of emergency-related records or information. In an emergency context, the records and information shared with relevant persons and permitted persons may include personal information, such as names, addresses, and contact details of person who have provided information related to livestock movement, or information related to the emergency.
The sharing of records and information provisions is, however, limited by contextual considerations, and to identified persons. The Livestock Disease Control Act 1994 further contains a secrecy provision (section 107C). This is an offence provision that limits the sharing of records and information that the Secretary must keep unless the sharing is authorised by that section. This limitation ensures the collection, use and disclosure of information is limited to those circumstances that have a proper purpose in accordance with the Act. Accordingly, I am satisfied that the interference with the right to privacy is proportionate to the contextual risks, is for a legitimate purpose, and is not arbitrary.
Inspector search powers on entry
The Bill gives inspectors the power to apply to a magistrate for a warrant to search a specified dwelling, or any other specified land, place, premises or vehicle to which the inspector has been, or is likely to be, refused admission (clause 18). Previously, this power was an additional power of inspectors in respect of exotic diseases set out in section 121 of the Livestock Disease Control Act 1994. This Bill repeals section 121 in favour of a power that has a broader application, as opposed to limiting its application to exotic disease matters.
The power of entry may interfere with the right to privacy, however, there are safeguards in place to ensure this power is both reasonable and necessary. This includes that such warrants are issued by a magistrate. A magistrate must be satisfied by evidence that it is reasonably necessary for the inspector to have access to the dwelling, premises, place, land or vehicle concerned for the purpose of exercising the inspector’s functions under the Act.
Right to property
Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.
General Power of inspectors – removing things
The Bill clarifies an existing power set out in section 109(1)(e) the Livestock Disease Control Act 1994 that allows inspectors to take and remove ‘samples’, ‘specimens’ and ‘other thing’ in or at the land, vehicle, place or premise. The clarification provided in clause 17 is intended to allow inspectors to remove ‘things’ that identify livestock (such as ear tags, and other identification devices) which the inspector reasonably believes to be connected to a contravention of the Act or the regulations.
These ‘things’ have relatively low property value, but high evidential value for offences related to changing an animal’s identification contrary to the Act or regulations. Given that the kind of thing being removed has a relatively low property value, and its removal requires an inspector to form a reasonable belief that the thing is connected to the contravention of the Act or regulations, I am satisfied that this clause 17 will not limit persons’ property rights.
Right to be presumed innocent until proven guilty
Section 25(1) of the Charter provides that an accused has the right to be presumed innocent until proven guilty according to law. The right requires that the prosecution must prove that an accused committed the charged offence beyond reasonable doubt. This means that the prosecution must generally prove all elements of a criminal offence. However, the right may be subject to reasonable limitations. Two new proposed offences in the Bill are relevant to the right to be presumed innocent until proven guilty according to law.
New offences relating to possession of livestock
The proper identification of livestock, alongside their property location and movement, is necessary for livestock traceability. This is critical for disease control, biosecurity, food safety, market access and other industry-related purposes. The identification of livestock and the related tracing regime is an essential measure for Victoria’s readiness for exotic animal disease preparation and preparedness.
The Bill creates two new offences: (1) for a person to be in possession or control of cattle or livestock that has been tagged, marked, branded or identified in accordance with the Act, if that identification device has been removed; and (2) for a person to be in possession or control of cattle or livestock that has been tagged, marked, branded or identified in accordance with the Act if the identification device has been removed and replaced with an identification device other than in accordance with this Act or the regulations. These offences are set out in new section 9AB with a maximum penalty for each offence is 120 penalty units for a natural person and 360 penalty units for a body corporate. The offence does not apply if a person removed the identification marker in accordance with the Act or regulations or has a reasonable excuse.
This provision will require an accused who seeks to avoid liability on the basis of a reasonable excuse to point to or present evidence that raises the possibility of an excuse. Under section 72 of the Criminal Procedure Act 2009, where a defendant wishes to rely on an exception, they are required to point to some evidence which would establish facts suggesting a reasonable possibility that the exception applies. Once a defendant identifies that evidence, a prosecution authority would need to disprove those facts beyond reasonable doubt. By imposing an obligation on a defendant to point to relevant evidence in order to avoid conviction, exception provisions therefore impose what is referred to as an evidential onus of proof. However, it only imposes an evidential burden on the accused, and if the accused is in possession or control of livestock that is not identified in accordance with the Livestock Disease Control Act or associated regulations then the accused is given an opportunity to demonstrate a reasonable excuse. In my view, and consistent with case law, these provisions do not limit the right to be presumed innocent. The burden of proof remains with the prosecution to prove each element of the offence. Then, once the defendant has pointed to some evidence to suggest that a reasonable excuse exception applies, the burden shifts back to the prosecution to prove the absence of the exception raised. Imposing an evidential onus in this way is reasonable. In most cases, the reasonable excuse exceptions relate to matters of which the defendant is likely to have greater knowledge and be well placed to point to evidence. I consider that it is reasonable to require participants in a regulated industry, being the livestock industry, to be sufficiently apprised of the identification standards applicable that they are able to point to evidence that they may fall within an exception, breach of which would ordinarily constitute an offence.
Any such limit is therefore reasonably justified under section 7(2) of the Charter.
The Hon. Ros Spence MP
Minister for Agriculture
Second reading
That this bill be now read a second time.
I ask that my second-reading speech be incorporated into Hansard.
Incorporated speech as follows:
The Bill makes amendments to the Livestock Disease Control Act 1994 (Livestock Disease Control Act), Livestock Management Act 2010 (Livestock Management Act) and Plant Biosecurity Act 2010 (Plant Biosecurity Act) to strengthen emergency management, traceability and enforcement provisions.
The Bill strengthens Victoria’s capability to manage biosecurity risks, including preparing for, responding to, and recovering from the detection or outbreak of an exotic animal disease, plant disease or pest. The Bill also supports a public commitment made by the Victorian Government to improve exotic disease preparedness and response capability. The Bill ensures a holistic and effective legislative framework for exotic pests and diseases to protect Victoria’s valuable agricultural and horticultural sectors. This will mitigate the potential risk of market access and trade disruptions associated with a detection or outbreak.
Amendments to the Livestock Disease Control Act
The Bill strengthens the operation of the Livestock Disease Control Act to mitigate biosecurity risks by facilitating an efficient and effective response to an exotic animal disease incursion in Victoria, enhancing livestock traceability processes and strengthening compliance and enforcement mechanisms.
The Bill significantly increases penalties for offences for the contravention of provisions related to exotic animal diseases and livestock traceability requirements to underscore the seriousness of these offences and reflect the potential harm that such offending can inflict on the community, environment and the economy.
The Bill also improves and clarifies emergency management provisions to enhance the efficiency of preparedness and response activities by broadening the delegation powers of the Minister to declare Control Areas and Restricted Areas, and to allow the sharing of information related to exotic diseases with other government departments and agencies and other States and Territories.
The Bill refines the existing exotic disease compensation framework to ensure that compensation for exotic animal diseases can be more equitably and fairly paid to affected livestock producers who own affected livestock.
Under national arrangements, affected livestock industries often cost-share exotic disease response costs, including the costs of compensation payments to affected livestock producers. Where a person has intentionally or recklessly contributed to the spread of an exotic disease, consideration of their eligibility for compensation for losses they have incurred as a result should be able to be made. Presently though the circumstances in which compensation may be reduced or denied are limited to when a person has been convicted of such offending. A conviction however is a very high threshold.
The Bill enables the Minister to evaluate a broader range of situations when deciding to reduce or deny compensation, rather than solely basing the decision on a person’s conviction of an offence related to the outbreak. These factors include whether the person, or those acting on their behalf, have contravened restrictions related to the management of the exotic disease, such as breaching Control Area and Restricted Area Orders, whether the person has kept livestock, products and property at their premises in contravention of the Livestock Disease Control Act or its Orders, and whether the applicant has made a false or misleading claim. The Minister will be able to also consider other factors as prescribed in the regulations.
It is expected that the Minister deciding to reduce or deny compensation would be an rare occurrence as livestock producers have commendably followed requirements and assisted in successful exotic disease responses in the past. However, in the event that a person’s compensation payment is reduced or denied, the applicant will be notified of the decision and reasons and will be able to apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of that decision.
The Bill clarifies the process relating to the payment of further compensation to a livestock owner for replacement livestock for restocking. It improves flexibility by enabling the Secretary to determine when further compensation may be made during an exotic disease response. This, for example, would facilitate earlier restocking whilst movement restrictions are in place, such as for sentinel surveillance programs or where disease risks vary across different areas of the state.
The Bill also provides the Minister with powers to recoup compensation from a person who is subsequently found to be ineligible for compensation, specifically if the compensation was paid in error, the claim had false or misleading information or any other reason that the Minister determines. The power to recoup compensation will be subject to procedural fairness mechanisms, whereby applicants will be provided with written notice of a decision and have the opportunity to provide a response. The Minister must consider the response and may confirm the amount owing, reduce the amount or write off the amount. Applicants may then seek a review of the Minister’s decision by VCAT.
The Bill strengthens the existing enforcement and compliance framework by extending and clarifying the powers of inspectors and broadening the circumstances in which information may be requested from a Council. Also, rather than confining the power of inspectors to seek a warrant from a Magistrate to enter and search dwellings (places of residence) for exotic disease related matters only, the amendment provides that these powers are available for the purposes of enforcing the whole Act. Whilst very rarely used, there may be instances where entering a dwelling is necessary, particularly where records or other evidence have not been produced as required by an inspector, or where there is a risk that otherwise requesting things could result in their tampering or destruction. This amendment assists in protecting Victoria’s valuable agricultural sector by facilitating the collection of critical evidence, such as identification devices or records, to determine compliance with the Livestock Disease Control Act when other methods have been exhausted.
The Bill also enhances the capability of police officers to effectively investigate farm-related crimes, including livestock theft and associated traceability offences, by recognising police officers as inspectors under the Livestock Disease Control Act. In situations where police come across biosecurity issues or associated concerns arise, Agriculture Victoria, as part of the Department of Energy, Environment and Climate Action, will provide Victoria Police with advice to manage those risks. Importantly, Agriculture Victoria will continue to lead enforcement of the Livestock Disease Control Act. The Bill requires non-uniformed police officers exercising functions and powers to produce identification if asked. Under the Victoria Police Act 2013 impersonation of a police officer is a serious offence.
The Bill strengthens livestock traceability requirements by introducing new offences for the possession or control of livestock that have had their permanent identification removed, or removed and replaced, not in accordance with the Livestock Disease Control Act or the Livestock Disease Control Regulations 2017. Currently there is inadequate deterrence to prevent the removal, or removal and replacement, of an animal’s permanent identification device (such as ear-tags), a practice often termed ‘re-birthing’. Re-birthing undermines Victoria’s biosecurity and product traceability systems. Exporting cattle based on fraudulent movement information, particularly when those animals do not comply with the receiving country’s health requirements, jeopardises the reputation of Victorian livestock producers and risks the potential closure of export markets if the fraud is detected. The new offences will better protect Victoria’s livestock industry.
The Bill also modernises public notification procedures by enabling the online publication of notices under the Act, such as Control Area and Restricted Area Orders and facilitating facilitates the electronic service of documents.
Amendments to the Livestock Management Act
The Bill strengthens the existing legislative framework available for the reduction of biosecurity risks caused by unlawful entry onto agricultural premises. Biosecurity breaches caused by individuals who trespass onto premises where livestock activities occur can affect human and animal health, and adversely impact market access.
The Bill doubles the penalties relating to offences for non-compliance with prescribed biosecurity measures, such as in cases of unlawful entry on to agricultural properties, to 120 penalty units for a natural person and 600 penalty units for a body corporate, and increases the corresponding infringement penalties to 12 penalty units for a natural person and 60 penalty units for a body corporate. The penalty for a person damaging, defacing or removing signage erected to notify persons of biosecurity measures that are required to be followed on a property is increased to 40 penalty units, with an infringement penalty increased to 6 penalty units.
The Bill seeks to recognise police officers as inspectors under the Livestock Management Act and the Livestock Disease Control Act. This change requires consequential amendments that remove other references to police officers.
Amendments to the Plant Biosecurity Act
The Bill improves the Victorian Government’s capacity to prepare for and respond to biosecurity threats such as exotic plant pest or disease detections and outbreaks.
The Bill improves the clarity and efficiency of emergency response and management provisions relating to plant pests and diseases.
The Bill significantly increases penalties for offences for contravention of provisions related to exotic plant pests and diseases to achieve greater deterrence for non-compliance and reflect the potential harm to industry, the economy and the wider community that breaches of these offences may cause. It also establishes a more consistent legislative framework for disease preparedness and response activities by aligning penalties with the Livestock Disease Control Act for offences that are similar in nature.
The Bill enhances flexibility by enabling the Minister to delegate the power to declare a plant pest or disease as an exotic pest or disease in Victoria, including to the Chief Plant Health Officer. This will facilitate faster responses to prevent the spread of the pest or disease. To support investigations of plant pest or disease detections, the Bill also extends the time period of the declaration from 28 days to 6 months.
In the event of a plant pest or disease outbreak, a timely response is required to mitigate the potential social, environmental and economic risks. The Bill confers the power to declare a Control Area to the Minister or their delegate, rather than the Governor in Council. This improves adaptability by minimising administrative delays and enabling improved regulatory action in response to detections of plant pests and diseases.
To facilitate rapid and effective responses to plant pest or disease outbreaks, the Bill also enables the power to declare a Restricted Area to be delegated, including to the Chief Plant Health Officer.
The Bill enhances enforcement and compliance options by providing the Secretary, and their delegates, with the power to issue a permit to a class of persons, which specifies exemptions to restrictions in relation to a Control Area or Restricted Area. This will improve the efficiency of issuing permits and reduce the associated administrative burden.
The Bill also modernises public notification procedures by allowing the online publication of notices declaring Infected Places and Restricted Area Orders and enables the electronic service of documents.
I commend the Bill to the house.
James NEWBURY (Brighton) (10:06): I move:
That the debate be adjourned.
Motion agreed to and debate adjourned.
Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday 16 November.