Thursday, 12 May 2022
Bills
Agriculture Legislation Amendment Bill 2022
Bills
Agriculture Legislation Amendment Bill 2022
Introduction and first reading
The PRESIDENT (18:01): I have a message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Agricultural and Veterinary Chemicals (Control of Use) Act 1992, the Catchment and Land Protection Act 1994, the Dairy Act 2000, the Drugs, Poisons and Controlled Substances Act 1981, the Farm Debt Mediation Act 2011, the Livestock Disease Control Act 1994, the Plant Biosecurity Act 2010, the Rural Assistance Schemes Act 2016, the Veterinary Practice Act 1997, the Wildlife Act 1975 and the Meat Industry Act 1993 and for other purposes’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Ms PULFORD: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Ms PULFORD (Western Victoria—Minister for Employment, Minister for Innovation, Medical Research and the Digital Economy, Minister for Small Business, Minister for Resources) (18:02): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
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 Agriculture Legislation Amendment Bill 2022 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
The Bill makes various amendments to the following Acts:
• Agricultural and Veterinary Chemicals (Control of Use) Act 1992;
• Catchment and Land Protection Act 1994;
• Dairy Act 2000;
• Drugs, Poisons and Controlled Substances Act 1981;
• Farm Debt Mediation Act 2011;
• the Livestock Disease Control Act 1994;
• Meat Industry Act 1993;
• Plant Biosecurity Act 2010;
• Rural Assistance Schemes Act 2016;
• Veterinary Practice Act 1997; and
• Wildlife Act 1975.
Part 1—Human rights issues
In light of the range of Acts amended by the Bill and issues that arise, this Statement of Compatibility commences with an outline of all rights engaged by the Bill. It then discusses the compatibility of relevant Parts of the Bill with those rights.
Equality
Section 8(3) of the Charter relevantly provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that all laws and policies are applied equally, and do not have a discriminatory effect.
‘Discrimination’ under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 on the basis of an attribute in section 6 of that Act (including, for example, age, sex and disability). Discrimination can either be ‘direct’ or ‘indirect’. Direct discrimination occurs where a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute. Indirect discrimination occurs where a person imposes a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with a protected attribute, but only where that requirement, condition or practice is not reasonable.
Right to freedom of movement
Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria, to enter and leave Victoria, and to choose where to live in Victoria. The right extends, generally, to movement without impediment throughout the State, and a right of access to places and services used by members of the public, subject to compliance with instructions legitimately made in the public interest. The right is directed at restrictions that fall short of physical detention (restrictions amounting to physical detention fall within the right to liberty, protected under section 21 of the Charter).
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.
Right to freedom of expression
Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. However, section 15(3) provides that special duties and responsibilities attach to this right, which may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of others, or for the protection of national security, public order, public health or public morality.
Right to take part in public life
Section 18(1) of the Charter provides that every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through freely chosen representatives.
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.
Right to a fair hearing
Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The concept of a ‘civil proceeding’ is not limited to judicial processes, but may encompass the decision-making procedures of many types of tribunals, boards and other administrative decision-makers with the power to determine private rights and interests. The right may be limited if a person faces a procedural barrier to bringing their case before a court, or where procedural fairness is not provided. However, the entire decision-making process, including reviews and appeals, must be examined in order to determine whether the right is limited.
Right to be presumed innocent
Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.
Right against self-incrimination
Section 25(2)(k) of the Charter provides that a person charged with a criminal offence is entitled not to be compelled to testify against themselves or to confess guilt. This right is at least as broad as the common law privilege against self-incrimination. It applies to protect a charged person against the admission in subsequent criminal proceedings of incriminatory material obtained under compulsion, regardless of whether the information was obtained prior to or subsequent to the charge being laid. At common law, the High Court has held that the protection accorded to pre-existing documents is considerably weaker than that accorded to oral testimony or to documents that are brought into existence to comply with a requirement to produce information. Accordingly, any protection afforded to pre-existing documents by the privilege is limited in scope and not as fundamental to the nature of the right as the protection given to the compulsion of oral testimony.
Right not to be tried or punished more than once
Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which they have already been finally convicted or acquitted in accordance with law. This right reflects the principle of double jeopardy. However the principle only applies in respect of criminal offences—it will not prevent civil proceedings being brought in respect of a person’s conduct which has previously been the subject of criminal proceedings, or vice versa.
Penalties and sanctions imposed by professional disciplinary bodies do not usually constitute a form of ‘punishment’ for the purposes of this right as they are not considered to be punitive.
Part 2—Amendment of Agricultural and Veterinary Chemicals (Control of Use) Act 1992
Part 2 of the Bill amends the Agricultural and Veterinary Chemicals (Control of Use)Act 1992 (AVCU Act) in relation to the inspection and enforcement powers of Authorised Officers (AOs). Relevantly, new s 53A provides that AOs may exercise powers for the purposes of determining whether the Act has been complied with, preventing the commission of an offence or determining the source of agricultural spraying or the cause of contamination.
Powers of entry, inspection and information-gathering
Clause 10 inserts new ss 54 to 54AJ into the AVCU Act. New s 54(1) empowers AOs to, at any reasonable time, enter any place, other than a place occupied as a residence, and inspect anything found at that place, if they reasonably suspect that certain things are or may take place relating to the manufacture, storage, use and or contamination of chemical products or equipment; or the place is occupied by a person who holds or is reasonably suspected to require a licence under the Act. AOs may also, at any reasonable time, enter any other place (other than a place occupied as a residence) if they reasonably believe that it is necessary to do so to access a place that may be entered under s 54(1). Amended s 54 provides that AOs must cause as little inconvenience as possible and must not remain at a place any longer than necessary.
Under new s 54AB AOs may, at any reasonable time, stop, enter and inspect any vehicle, vessel or aircraft the inspector reasonably believes or suspects is, has been or may be used to transport, keep or store certain chemical products or stock, or for agricultural spraying. AOs may also enter and inspect any other vehicle, vessel or aircraft the AO reasonable believes or suspects is, has been or may be used for such purposes. If the AO considers a stopped vehicle is not safe or practical to inspect, they may require the driver or person in charge to present it at some other reasonable time and place for inspection. AOs may also request or require assistance from certain persons (non-compliance with an AO requirement without reasonable excuse is an offence: s 54J). In exercising these powers, s 54AC requires AO to take all reasonable steps to notify occupants on entry and if such persons are not present, to leave a notice of their entry, unless doing so would unreasonably interfere with their exercise of powers or cause unreasonable delay.
Privacy
These powers may engage the right to privacy of persons present at a place or within a vehicle, vessel or aircraft the subject of an AO’s decision to stop, search and or inspect. New ss 54AH–54AJ permit AOs at any reasonable time to take photographs and recordings, and require persons to answer questions, give information and produce documents. To the extent that a person’s personal information is captured in the course of an inspection, their privacy may be interfered with. However, to the extent that the new provisions interfere with the right to privacy, I consider that the right will not be limited. Any interference is authorised by legislation that is appropriately circumscribed. AOs are precluded from inspecting residential premises and may exercise their inspection and information-gathering powers to ensure compliance with the regulatory scheme of the Act, per new s 53A. Relevant powers may only be exercised at reasonable times, and on a reasonable suspicion. As such, I am satisfied that interferences with individuals’ privacy that may occur under these provisions will be predictable and proportionate to the aims of the regulatory scheme under the AVCU Act, and will therefore not be arbitrary.
Property
Exercise of these powers may also interfere with a persons’ enjoyment of premises or vehicles, vessels or aircraft which are stopped, entered and or inspected, and or deprive owners of chemical or other products the subject of inspection from the right to deal with those products, thereby engaging the right to property. Relevantly, new ss 54AF–54AG also permit AOs to, at any reasonable time, open packages they reasonably suspect contain certain products, remove any label or advice note and take and remove for analysis or examination samples or equipment. A person may be deprived of property if packages are opened and or it is taken for examination. However, I am satisfied that no limitation of the right to property will occur. Any deprivation of property will be confined to that required by AOs to check compliance with the Act under 53A, and can only occur at a reasonable time and on the relevant reasonable suspicion of AOs. AOs must announce or give notice of their entering a place to relevant owners or occupants. As such, I consider that the right to property is not limited by these provisions.
Freedom of movement
The stopping, entry and inspection of vehicles may interfere with persons’ ability to move freely in Victoria. This is particularly so for persons who are required to bring a vehicle to a separate place for entry and inspection. However, any interference will be temporary–only for the duration of time required by an inspection, and will be for the important purpose of ensuring compliance with the controls on the use of certain products in the AVCU Act, regulation which is in the public interest. I am therefore satisfied that the provisions are compatible with the freedom.
New offence provisions
The Bill inserts new ss 54J–54L, which are offence provisions. Relevantly, s 54J renders it an offence to fail to comply with an AO requirement without reasonable excuse. Officers of a body corporate which breach these provisions may be also be liable for breach if they authorised or permitted or were otherwise knowingly concerned (by act or omission) in the commission of the offence.
Reverse onus
By creating a ‘reasonable excuse’ offence exception, s 54J may be viewed as placing an evidential burden on the accused, in that it requires the accused to raise evidence as to a reasonable excuse. (This provision may also apply personally to officers of bodies corporate which satisfy s 72A.) However, in doing so, this offence does not transfer the legal burden of proof. Once the accused has pointed to evidence of a reasonable excuse, which will ordinarily be peculiarly within their knowledge, the burden shifts back to the prosecution who must prove the essential elements of the offence. I do not consider that an evidential onus such as this limits the right to be presumed innocent, and courts in other jurisdictions have taken this approach.
Powers to require answers to questions and the production of documents
New ss 54AI–AJ empower AOs to, at any reasonable time, require a person to answer a question to the best of their knowledge and take reasonable steps to provide information, and to produce any document the AO reasonably requires. Existing s 54I provides that it is a reasonable excuse to refuse or fail to give information or do any other thing if required to do if doing so would tend to incriminate a person. However, it is not a reasonable excuse to refuse to fail to produce a document.
Right against self-incrimination
The amendments engage the right against self-incrimination. However, where an AO asks questions, the requirement is subject to a reasonable excuse, including the privilege against self-incrimination, so the right will not be interfered with. In the case of the production of documents, there is not a reasonable excuse for the production of documents and so the right may be interfered with. However, the right doesn’t attach as strongly to pre-existing documents. Therefore, I consider that the protection will not be limited by the amendment.
Provision for electronic service
Clause 24 of the Bill inserts new s 73A, which clarifies that AOs may give any notice under the Act orally or in writing, and that any written notice or other document may be given or served on a person under the Act in person, by post, by leaving it at an address with certain persons or by sending it by electronic communication to a person’s usual or last known electronic address.
Fair hearing
The fair hearing right may be relevant to the electronic issuing of infringement notices within the meaning of the Infringements Act 2006. The Infringements Act provides that an infringement penalty must be responded to within the period specified in the infringement notice, and that infringement notices may be referred to a court or be registered under the Fines Reform Act 2014. These steps may fall within the s 24(1) definition of ‘civil proceeding’ and engage an individual’s Charter right to a fair hearing. The Supreme Court has held that, in civil proceedings, the right in s 24 of the Charter applies to the initiation of a proceeding as well as to all the steps taken, orders made or directions given in the course of the proceeding.
There may appear to be a risk that persons will not be aware that they have been sent an infringement notice by electronic communication, and thereby affect the procedural fairness of enforcement processes that follow. If individuals do not know they have been issued with a notice, they will not be aware of when they have to pay a penalty, or the period within which they may seek review of the notice. However, the option for electronic issuing is supplementary to the other service options set out above and AOs can employ the mode of service appropriate in the circumstances. Individuals who have provided their electronic address to AOs will be on notice that they may receive correspondence or notices at that address. Further, procedures for the provision of penalty reminder notices and other correspondence under the Infringements Act and Fines Reform Act 2014, which provide for personal service, will remain unaltered, and must occur prior to any penalties in infringement notices being finally enforced.
Because of these factors, I consider that the amendments in the Bill relating to electronic service do not limit the right to a fair hearing and are compatible with the Charter.
Part 3—Amendment of Catchment and Land Protection Act 1994
Part 3 of the Bill relevantly amends the Catchment and Land Protection Act 1994 (CLP Act) to improve the controls for noxious weeds and pest animals; to strengthen AO inspection and enforcement powers; and to amend offence provisions relating to the spreading of noxious weeds.
Privacy
A person must notify the Secretary of a notifiable species on land
The Bill inserts new section 58C(8) into the CLP Act, which requires a person who suspects the presence of a notifiable species on land to notify the Secretary of that fact without delay. Insofar as these provisions may require disclosure of personal information, it will not be arbitrary as the information required must relate to noxious weeds and pest animals that pose a serious risk to the environment, community health and primary production.
Power to require a person to produce information or documents
The Bill inserts a number of new provisions which allow AOs to require a person to produce information or documents kept by that person as well as examine and make copies or notes of the documents.
The production of information or documents on entry
New section 79B allows an AO to require a person, on reasonable notice and for the purpose of ascertaining whether or not a person is complying with the Act or the regulations, to produce information or documents kept by that person as well as examine and make copies or notes of the documents. These documents may be any record or documents relating to the person (including financial, accounting to business records) that are kept by the person; or the production of such records or documents by any other person who is holding those records on behalf of the person.
The Bill also adds a new section 82(4)(bb) in the context of an emergency entry, requiring a person to produce any document if the AO reasonably believes it to be relevant for the purpose of ascertaining whether or not this Act and regulations have been complied with as well as examine and make copies of the document. While there is no safeguard of reasonable notice as provided under section 79B, the Act requires an AO, on leaving the land, to leave a notice which sets out details of the emergency entry (82(5)) which limits arbitrary interference, which is appropriate in the context of an emergency entry.
The requirement to produce any records relating to the person, including financial and business records, will necessarily interfere with the private spheres of persons. However, any such interference will not be arbitrary. The purpose of the power to compel production is strictly prescribed, for the purpose of monitoring compliance with the CLP Act. In my view, this power is necessary to properly enforce the CLP Act, as an AO may have difficulty determining compliance with the CLP in the absence of communication from an owner or occupier of land, such as if they fail to fulfil their notification requirements under the Act or choose not to attend any inspections. The power also enables noncompliance to detected more promptly and remedial actions undertaken in response, particularly where there may be serious and pressing risks to biosecurity with the potential to affect large areas. Accordingly, I am satisfied that any interference with privacy is proportionate to the important objectives of protecting primary production, the environment and community health.
Entry and land search powers where a prohibited weed ‘may’ be on the land
Previously, authorised officers have relied on emergency entry powers under section 82 and powers to undertake certain work under section 79 in order to enter and search neighbouring properties for the presence of State prohibited weeds and restricted pest animals and to undertake broader surveillance programs of areas to ascertain their presence.
Clause 41 of the Bill amends section 82 of the CLP Act to provide authorised officers with explicit powers to enter properties, without an authorised officer needing to hold a belief on reasonable grounds that prohibited weed ‘is’ on the land; rather, it will be sufficient that they have a reasonable belief that a prohibited weed ‘may’ be on the land.
While these powers engage privacy rights and expand the circumstances in which entry powers may be exercised, they are not arbitrary as they assist in achieving the objectives of monitoring land within a wider geographical area, following detection of a prohibited weed. This expansion will allow, for example, an authorised officer to check for the absence of a prohibited weed, or to re-check a property at which eradication works have been undertaken to see if that work is deemed effective to achieve its purpose and so serves an important land management purpose. There is also a seven day notice requirement as well as a provision stating that the power to enter does not apply to a dwelling, which protects the privacy of the home. In my view, the right to privacy is not therefore not limited because the interference with privacy is neither arbitrary nor unlawful.
Enabling an officer, without a warrant, to search a vehicle, trailer machinery or equipment
The Bill inserts new section 83EA, which allows an AO, at any time without a warrant, to search a vehicle, trailer machinery or equipment. The officer may search any parcel, basket, bag, box or receptacle for anything which the authorised officer reasonably believes has been or is being used in the importing, keeping or trading pest animals or noxious weeds. Again, while these powers engage privacy rights, these search powers are necessary as high-risk invasive species, such as prohibited weeds or pest animals, present a serious threat to the economy and environment. As the overall volume and movement of people and goods continues to grow, and becomes faster and easier as technology improves, enhanced enforcement powers are required to manage the increased potential for the entry of infested or noxious goods into the state. As well as serving an important regulatory purpose the most cost-effective management of these high risk species is to prevent their entry as quickly as possible, which is enabled by this provision. Accordingly, in my view, the privacy rights will not be limited.
Direct entry powers
Clause 40(4) of the Bill repeals a number of consent-based provisions in the CLP Act (81(4)), which has the effect of giving AOs powers of direct entry under section 81(1).
Entry, search and examination without occupier consent
Repealing the consent-based provisions under the CLP Act will allow an AO to enter, search and examine goods and vehicles on land, under section 81(1), without consent of the occupier of land. While this may engage privacy rights, any interference with privacy will not be unlawful provided it is permitted by law, is certain, and is appropriately circumscribed. In this case, to enable the Secretary to fulfil these duties and protect Victoria’s environment and agriculture from pests, it is both necessary and reasonable that an AO is allowed to access land to check for their presence and absence. In practice, the requirement for authorised officers to obtain consent of the occupier simply gives the occupier the opportunity to refuse consent and then remove and destroy evidence of contravention. In any event, if an authorised officer believes on reasonable grounds that there is on premises evidence that a person has contravened the act or the regulations, they will seek approval for the issue of a search warrant under the Act. However, in these circumstances a warrant is not appropriate as they take significant time and administrative effort, where quick detection of noxious weeds is required.
It may also be operationally impractical due to resourcing limitations, such as availability of authorised officers combined with remote locations, to arrange consent to enter all properties within an area so that they can be visited in a coordinated and short timeframe, particularly if there are absentee landowners. Thus, repealing these provisions serves an important land management purpose. There is a short window during which these weeds and pest animals, which cause or have potential to cause significant damage, can be eradicated. The legislation aims to support early detection and eradication before they become a significant problem for Victoria. Accordingly, in my view the repeal of the section does not give rise to any limit on the right to privacy.
Taking of photos and video recordings during a search on land without occupier consent
The repeal of the consent-based provisions will allow an AO to take of photographs (including video recordings) during a land search under section 81(1). The taking of photos and video during a land search will allow for further and better analysis of what is on the premises in order to accurately ascertain whether or not a person is complying with this Act or the regulations.
In addition, a number of factors safeguard against arbitrary interferences with the right, including: that the occupier must be given seven days written notice of entry, setting out the reasons for entry; the power to enter does not apply to a dwelling; and that the right to take photos and video recordings will be confined by the parameters of AOs functions and duties when entering relevant land. Accordingly, the power is appropriately confined such that there is no limit on the right to privacy.
Officers can take photos and videos during searches of vehicles for noxious weeds
Section 83E of the CLP Act allows an authorised officer to search vehicles for noxious weeds, at any time, without a warrant if the authorised officer believes it is necessary in order to comply with 70A(1) of the Act. The Bill amends s 83E to enable an authorised officer or police officer, when inspecting a vehicle for noxious weeds, to take photographs and videos of anything found during the search of a vehicle and to inspect and make copies of any document. As above, I consider no arbitrary or unlawful interference with the right to privacy as the power to take photos and videos or examine items is reasonable in the circumstances.
Owners of land who sell or transfer land are required to provide personal information to the Secretary
The Bill inserts section 85B which requires a person who is the owner of land that is the subject of a land management notice, a priority area notice or a directions notice, to give written notice to the Secretary if they decide to sell or transfer their land. The notice will include: the land owner’s name and contact details, the street address of the land and the volume and folio numbers of the certificate of title (or the Crown allotment details of the land). It also requires the name and contact details of the new owners of the land. The compulsion of information sharing will engage privacy rights. However, a landowner will only receive notice where they have failed to comply with their duties to take reasonable steps to eradicate or prevent the spread of noxious or prohibited weeks or otherwise needs to take these steps. Accordingly, providing the Secretary with their contact information will allow the Secretary to better monitor the potential growth and spread of noxious weeds or pest animals on at-risk land areas. That information will only be shared in limited circumstances, for the purpose of controlling the threat of weeds and pests on land identified that this is necessary to do so, will mean that there is no arbitrary or unlawful interference with the right.
Property
Under section 71, the CLP Act currently requires a person to obtain a permit from the Secretary to buy, sell, possess, display, plant, propagate, import into Victoria or transport noxious weeds in Victoria. It also requires the movement or sale of various materials and things such as soil, fodder, machinery or animals which are likely to do, or do, contain the seeds of noxious weeds.
Person must apply for a permit to sell or move animal bedding materials
The Bill inserts new s 71(15) which requires a permit for the removal or sale of bedding materials used by animals in primary production. It further creates an offence to move such materials and other goods that are likely to contain seeds or other parts of noxious weed that are capable of growing. This may engage the right to property, as requiring a person to apply for a permit may operate to restrict how a person may use their property or interfere with a person’s ability to derive a profit from their property. However, in my opinion there is no limitation on the right to property in section 20 of the Charter because there is no permanent deprivation of a person’s property. Also, the interference is in accordance with law as it is for an important public purpose and will occur pursuant to and circumscribed by legislation.
Powers of Secretary to refuse a permit to buy, sell, or otherwise possess noxious weed in Victoria
The Bill inserts new section 71A requiring a person to apply to the Secretary in writing for a permit or for the renewal of a permit to do any of the things referred to in 71(1) to (17). The section further provides the permit may be granted, refused by the Secretary 71A(4) made subject to any conditions 71A(6)(c) or revoked (71B). Insofar as existing permits could be characterised as ‘property’ under the Charter, the Secretary’s powers to refuse applications may be seen to constitute a deprivation of property, in that refusing permit would deprive a person of using or selling their property in a way that they choose. However, any deprivation will consequently be confined and not arbitrary but for the important purpose of limiting the transfer of plants affected by disease. I therefore consider that any interference will not be arbitrary and as such, compatible with the Charter right.
Taking of sample soil, stone or land during a search without occupier consent
Repealing the consent-based provisions under the CLP Act (section 81(4)) will allow an AO to take any sample soil, stone or land during a search under section 81(1), which may deprive a person of their property. However, I am satisfied that no limitation of the right to property will occur. As above, any deprivation will consequently be confined and not arbitrary but for the important purpose of limiting the transfer of plants affected by disease. AOs must also give notice of their entering a place to the relevant owner or occupants As such, I consider that the right to property is not limited, compatible with the Charter right.
Seizure of pest animal or thing during boat or vehicle search
Section 83D provides powers to authorised officers and police officers to enter and search any boat or vehicle suspected of being involved in the importing, keeping, trading and releasing of pest animals. The Bill amends section 83D(2) to include reference to the seizure of a pest animal or a thing to prevent its loss, concealment and destruction and its use in committing or continuing to commit an offence against the Act or regulations. Powers to seize pest animals or things may in certain circumstances amount to deprivation of property. However I consider the seizure of pest animals to be in accordance with the law; the circumstances in which the property can be seize is clearly specified and constrained, which is to prevent loss, concealment or destruction and to prevent the person from continuing to commit or repeating an offence against the CLP Act.
Take and keep samples of blood, bodily fluids or other matter from any pest animal, noxious weed or other thing or seize anything during search of personal property
Similarly, new Section 83EA in the context of a search of a personal property on the basis of a reasonably belief the property is used in the importing, keeping, trading or releasing of pest animals or noxious weeds in contravention of this Act, the AO may without warrant take and keep samples of blood, bodily fluids or other matter from any pest animal, noxious weed or other thing or seize anything found during the course of the search. Again, I consider this provision does not limit the right to property as it relates only to the taking of samples and is unlikely to lead to a material deprivation of property rights. In the event that it may, I consider any limit to justified in relation to preventing a serious threat to the economy and environment, as outlined above.
The right against self-incrimination
The Bill inserts new section 84AA(2)to provide that a natural person who received a request to produce a document or to answer a question under section 82 is not excluded from producing a document or answering a question on the grounds that the production of the record or the response to the question would tend to incriminate that person.
Section 25(2)(k) of the Charter provides minimum guarantees in criminal proceedings including the right to be free from self-incrimination. A compulsion to produce documents or answer questions may limit this right by abrogating the privilege against self-incrimination.
However, if a person, before producing a document or answering a question, claims that it may incriminate them, new provision 84AA(3) says that their refusal to produce documents or answer questions is not admissible as evidence in any criminal or civil proceedings. An exception is carved out for an offence under section 84(1)(e) (which relates to the provision of false information). Accordingly, I am satisfied that this immunity is sufficient protection to ensure the right is not limited in this context.
While I note this immunity does not extend to prevent derivative use of information obtained through this provision, to do so would unreasonably restrict the effective monitoring and investigation of compliance with the CP Act, by either making AOs reluctant to exercise essential investigative powers for risk of having evidence deemed inadmissible, or lead to an unacceptable risk of those responsible for wrongdoing escaping liability and continuing to pose threats to biosecurity, the environment and the economy. Further, to extend the immunity to proceedings in respect of the provision of false information in breach of the CPL Act would render such prosecutions unworkable, and undermine the essential duty that a person not knowingly provide false information where required under the Act.
Accordingly, to the extent that the provision may limit section 25(2)(k) of the Charter, I consider that it is reasonably justified.
Part 5—Amendment of Drugs, Poisons and Controlled Substances Act 1981
Part 5 of the Bill relevantly amends the Drugs, Poisons and Controlled Substances Act 1981 (DPCS Act) in relation to the regulation of applications for authorities for activities relating to low-THC cannabis, as well as the renewal, cancellation and suspension of such authorities. Consequential amendments are made to the existing poppy cultivation and processing licences, renewal, cancellation and suspension provisions to achieve consistency with the modified low-THC cannabis scheme.
Applications for authorities
Clause 56 amends s 62 to provide that a person may apply to the Secretary for an authority authorising that person to engage in certain activities relating to low-THC cannabis, for commercial or research purposes relating to non-therapeutic use. Clause 57 amends s 63 to require the Secretary to investigate such an application upon receipt, and require the applicant or any ‘associate’ (as relevantly defined in the Act) to submit a national criminal history check that was undertaken within 6 months of submission. The Chief Commissioner of Police (CCP) must inquire and report on matters they believe are appropriate or necessary or that the Secretary requests, and notify the Secretary of their decision to oppose or not oppose the issuing of an authority, and subject to s 69AC(1) (which provides that ‘protected information’ must not be disclosed), provide reasons. If the Secretary is notified the CCP opposes an application, they must not issue the authority. If an application is refused, the Secretary must give notice to the applicant, with reasons (excluding protected information) and information on their right to seek VCAT review. Similar notice requirements are introduced for decisions to refuse application renewals, as well as applications for poppy cultivation and processing licences or licence renewals (see cls 63, 72, 74, 76 and 78).
Other requirements for a national criminal history check
Clauses 71, 73, 75 and 77 amend the Act to require that on receipt of an application for a licence, the Secretary must require that an applicant or their associate submit a national criminal history check undertaken within 6 months of submission. A ‘national criminal history check’ is a check of the criminal history of the person in or outside of Australia with or through a police force or other authority of Victoria, another State, a Territory or the Commonwealth, as defined in amended ss 61(1) and 69N.
Privacy
The requirement that an application for an authority or licence be investigated by the Secretary, and or be inquired into by the CCP, may engage an applicant’s right to privacy, as any investigation or inquiry is likely to reveal personal information relating to them. These provisions may also engage a person’s right to privacy to the extent that they compel the provision of a national criminal history check (check) from applicants and their associates. Both the process of having a check conducted and the provision of a completed check may involve the collection and sharing of personal information, including sensitive information, which will engage the privacy right. However, any interference with a person’s privacy occasioned by either process will be for the important purpose of assessing whether a person is a fit and proper person who should be granted a licence or authority to deal with a drug of dependence. Persons apply for authorities or licences voluntarily and as such become aware that a check must be provided. Investigation of an application or renewal is necessary for the important purpose of ensuring that the Secretary is satisfied that a person is suitable to hold an authority or licence. I am satisfied that the amendments do not limit the Charter right to privacy.
Suspension or cancellation of authorities and licences
Clause 64 amends s 69A which provides for the suspension or cancellation of authorities. Under the amendments, the Secretary may suspend or cancel an authority if satisfied the authority holder or their associate is no longer a fit and proper person to hold or be associated with the authority, or if the CCP requests it on the basis of protected information, which may occur at any time. The CCP must provide reasons for doing so (excluding protected information). Clause 79 makes equivalent amendments to s 69QA, which provides for the suspension or cancellation of poppy cultivation and processing licences, to allow the Secretary to request a suspension or cancellation, giving reasons (excluding protected information). On receipt of either such request, the Secretary must suspend or cancel the licence or authority, and as soon as practicable, notify the relevant person, providing reasons, and inform them of their right to seek VCAT review.
Privacy
To the extent that an authority or licence is required for a person’s work, these amendments may interfere with a person’s ability to work and therefore their ability to maintain a private life. However, I consider that any interference that occurs will be authorised by law and not arbitrary. The drugs of dependence that authorities and licences authorise being dealt with are otherwise controlled and it is appropriate that there be strict safeguards around the provision and maintenance of such authorities and licences. The right to seek review of adverse decisions protects against any arbitrary outcomes. Any interference can therefore be seen to operate for a protective purpose and I consider that the provisions are compatible with the right.
Right not to be punished more than once for the same offence
The right to not be punished more than once may appear to be engaged by decisions to cancel or suspend licences on the basis of ‘fit and proper’ person decisions or protected information that each relate to a holder having received a criminal penalty. However, a cancellation or suspension is protective and not punitive in nature, and can only occur where the Secretary is satisfied of certain matters or on the CCP’s request. Therefore, the amendments do not constitute a ‘punishment’, and do not engage the right in s 26.
Decisions based on protected information and procedure for VCAT review
Clause 65 inserts new s 69AC to provide that if the CCP opposes the issuing or renewal of an authority or requests a suspension or cancellation wholly or partly based on protected information, the CCP may decide to include or not include specified protected information. If the Secretary’s decision is based on protected information, they must specify that their decision is based on CCP advice. Clause 80 makes equivalent amendments to s 69U, which relate to poppy cultivation or processing licences. Each section provides that s 8 of the Administrative Law Act 1978 does not apply to such decisions.
Clause 66 inserts new ss 69BA–BF, which relate to the procedure for VCAT review of a decision to refuse, suspend, cancel or amend an authority. Under the amendments, VCAT must enquire as to whether the decision was based on any protected information, and the Secretary must respond in writing. If the decision was based on protected information, VCAT must appoint a special counsel to represent the interests of the applicant, who may communicate with them to obtain information and seek instructions. However the special counsel must not do so once they have commenced attending hearings or have obtained any confidential affidavit.
In such matters, the CCP must be joined as a party and at the first hearing and VCAT must decide whether or not the information is protected. This and subsequent hearings involving protected information must be heard in private. The Secretary is only entitled to attend if protected information was given to the Secretary from the CCP, otherwise only the CCP and special counsel may attend. Parties may make submissions as to whether information was protected information, and if VCAT determines that it is, as to the weight that should be given the protected information. In making its review decision, VCAT must determine whether the applicant is a fit and proper person, and may only make orders answering this question and whether a decision has been upheld. If the special counsel wishes to seek instructions from an applicant in relation to protected information, they must submit written questions to VCAT for approval, which must hear from the CCP on the content of the questions. Under new s 69BD, VCAT may only publish reasons to the extent that they do not relate to protected information.
Fair hearing
The amendments which provide for decisions made on the basis of protected information and for VCAT review engage the fair hearing right. Relevantly, a person the subject of protected information may be affected by it but unable to challenge its contents. The requirement that hearings be held in private interferes with the principle of open justice. That an applicant themselves cannot attend a hearing and is precluded from giving their counsel instructions once a hearing has commenced may interfere with the ability of an applicant to have a reasonable opportunity to put their case. That the CCP may make submissions to VCAT on the content of questions counsel proposes to ask an applicant in relation to protected information disadvantage applicants. As VCAT cannot refer in its reasons to protected information, the ability of applicants to mount an effective appeal to a decision based on protected information may be hampered. I therefore consider that the right may be limited by these amendments, and the question becomes whether the limitation is justifiable.
The limitation on the fair hearing right is for the protective purpose of ensuring protected information is not released. Protected information includes information that is ‘likely’ to reveal identities, methods or jeopardise safety, or put investigations at risk, or may prejudice investigations. The need to protect law enforcement investigative techniques and intelligence has been accepted by courts as a legitimate and necessary objective justifying limits on fair hearing, in order to maintain the confidentiality of information that is essential to the proper discharge of police functions. The amendments are for the important purpose of ensuring that the CCP can share protected information, or give notice of a decision being based on protected information, with, where relevant, the Secretary and or VCAT to facilitate proper and informed decision-making.
The High Court has permitted the judicial use of protected information not disclosed to an affected party, provided the court or Tribunal retain discretion to independently assess the confidential information and how much weight to afford it in terms of fairness to the parties. I note that under the amendments, VCAT will have an opportunity to assess whether information is, in fact, ‘protected’, and must permit the excluded party to attend the hearing if it determines that the evidence does not amount to protected information. Parties have the opportunity to make submissions as to what weight to accord the protected information in a proceeding, with the applicant being represented by a special counsel with appropriate skills and ability to represent their interests, who may obtain instructions from the applicant prior to attending the hearing or obtaining any confidential affidavit. While the special counsel is subject to limits regarding their ability to take instructions from the applicant during the hearing or after obtaining any confidential affidavit, the Bill provides for seeking additional instructions through written questions approved by VCAT.
I note that a number of schemes in Victoria provide similarly for a scheme of protected information and the appointment of special counsel to represent an applicant’s interests at a closed hearing, particular in relation to regulated industries where there is strong public interest that participants and authority holders be fit and proper persons. Additionally, any limits on fair hearing apply only to a person who has voluntarily sought to assume the special duties and responsibilities of an authority or licence holder in relation to activities relating to authorities for low-THC cannabis, poppy cultivation and processing licences, which include accepting limits on the procedural fairness afforded in relation to decisions under the scheme.
I am also satisfied that there is no less restrictive means available to achieve the objective. There can be a complexity to police intelligence which makes it difficult to release details or provide summaries to affected parties without comprising the information. Information can come from a variety of agencies (including federal or international sources) and have varying levels of classification and protection requirements regarding access and disclosure. Any inappropriate release of such information may place the community at imminent risk of danger or impair the ability of police to obtain similar intelligence in the future, which is of heightened concern in the context of organised crime and proliferation of controlled substances. I consider the special counsel model to be an appropriate balance that mitigates the extent of limits on rights to the greatest extent possible.
I therefore consider the limitation to be a lawful one to protect the important public interest in maintaining the confidentiality of protected information, and as such, consider that it is compatible with the Charter.
Freedom of expression
The fact that VCAT hearings are held in private will engage the right to freedom of expression, as it limits the ability of people to attend hearings to seek and receive information, and the ability of people to report on hearings. However, as VCAT hearings involving protected information will involve sensitive material relating to policing practices and other matters, I consider that the requirement that hearings be private is a lawful restriction. I also consider that it is reasonably necessary, for instance to protect the interests of persons whom protected information may relate to or the broader public interest in ongoing police operations or methods. Therefore, the amendments are compatible with the right to freedom of expression.
Part 6—Amendment of Farm Debt Mediation Act 2011
Part 6 of the Bill relevantly amends the Farm Debt Mediation Act 2011 (FDM Act) to streamline and harmonise the operation of that Act with other jurisdictions.
Property
The Act requires creditors to offer farmers farm debt mediation before taking enforcement action. Clause 91 of the Bill inserts new s 7A which requires a creditor to hold an exemption certificate prior to taking enforcement action under a farm mortgage. Cl 92 substitutes new ss 8 and 9 which require creditors to give notice of their intention to take enforcement action, and preserve the right of farmers who initiated farm debt mediation when not in default to be offered the procedure if or when a creditor intends to take enforcement action under a farm mortgage.
To the extent that a creditor is a natural person, the amendments introduced by the Bill may be seen to interfere with their right to ‘use and enjoy’ their beneficial interest in mortgaged property by enforcing their interests against a mortgagee farmer in default. Practically, the Bill introduces further limits on creditors being able to take enforcement action. However, the amendments made by the Bill are for the beneficial purpose of clarifying and preserving farmers’ ability to seek farm debt mediation. Any deprivation of the ability to enforce an interest will be temporary and confined to the limited circumstances set out in the Act as amended by the Bill. As such, I consider that the right will not be limited by the amendments in the Bill.
Part 7—Amendment of Livestock Disease Control Act 1994
Part 7 of the Bill amends the Livestock Disease Control Act 1994 (LDC Act).
Limits on dealing in certain livestock
Clause 109 of the Bill substitutes s 9 with new s 9 which prohibits the dispatch, transport, sale, slaughter, processing and moving of non-branded or unidentified cattle, livestock or carcase. Clause 115 inserts new s 44B which prohibits the sale of ‘exposed cattle or pigs’, being cattle or pigs that have been on, fed or been provided with access to pastures or crops grown on sewerage land.
Property
These amendments may interfere with livestock owners’ ability to sell their livestock and therefore to ‘enjoy’ their property interests in the livestock, engaging their property rights. However, owners will not necessarily be deprived of property. Owners will be precluded from dealing with certain livestock until they have complied with the requirements in the Bill, including requirements to brand and identify livestock, and obtain any relevant approval from the Secretary. The requirements are confined and structured and as such I am satisfied that the Bill will not limit persons’ property rights.
Amendment to composition of various committees
The Bill (clauses 120, 122, 125 and 127) amends the provision for the composition of the Apicultural Industry Advisory Committee, Cattle Compensation Advisory Committee, Sheep and Goat Compensation Advisory Committee and the Swine Industry Projects Advisory Committee. The Bill relevantly sets criteria for committee membership to allow the Minister to appoint members after considering the recommendation of the Secretary and having regard to each appointees’ experience in certain relevant industry areas.
Taking part in public life
Section 18(2) of the Charter provides that every eligible person has the right, and is to have the opportunity, without discrimination—to have access, on general terms of equality, to the Victorian public service and public office. There is a question about the meaning of ‘eligible person’ in this provision. It could mean eligible under the general law—so that a change to the eligibility criteria does not engage this right, or it could incorporate a fundamental standard of ‘eligibility’—such as citizenship. In any event, the criteria to which the Minister must have regard—experience in a particular industry—is not a protected attribute for the purposes of discrimination and is clearly related to the functions of the Committees. For these reasons, the amendments do not limit the right.
Information collection, storage and sharing provisions
The Bill contains various amendments which provide for information collection, storage and sharing. Clause 115 inserts new s 44A which requires the owners of exposed cattle or pigs to notify the Secretary in the prescribed manner. The Secretary may disclose any information contained in or accompanying that notice to the Environmental Protection Authority (EPA) and or the local water corporation. Clause 134 extends the functions of the Secretary under s 107A to relevantly keep records as required under regulations, and to analyse and or publish such information. Clause 135 amends the record-keeping obligations in s 107B to require the Secretary to keep certain records, and to make records available to all ‘relevant persons’. Relevant persons are defined to include, broadly, prescribed persons, contracting parties, and government workers, where the Secretary is satisfied that certain criteria or circumstances apply.
Privacy
To the extent that a person’s personal information is captured in information collected, kept in records, or shared under these provisions, their right to privacy will be engaged. However, any interference will be authorised by law, and will not be arbitrary. In the case of s 44A, the Secretary can only disclose information to the EPA or a water corporation where satisfied that information is necessary to the body’s functions. In relation to amended s 107A, any regulations made which require the Secretary to keep records that include personal information will themselves be the subject of human rights scrutiny in the form of a Human Rights Certificate, and the provision only extends record-keeping obligations (as distinct from information collection). Amended s 107B may allow personal information to be made available to ‘relevant persons’, however this can only take place if the Secretary is satisfied that making a record available is in the public interest, or will assist with the control of disease or the relevant persons to protect markets for livestock products, or doing so is for certain purposes including emergency response planning, reuniting livestock with owners, the administration of Acts, legal proceedings, protecting safety or relevant research or analysis work. As such, I am satisfied that any interference will not be arbitrary, and the amendments will not limit the privacy right.
Clause 136 amends s 109 to provide that inspectors can require the production of documents by electronic means, extends their power to require the production of documents to also include ‘other thing[s]’ and allows inspectors to make sketch, still or recording of any land, vehicle, place or premises or any animal or other thing on or at the land, vehicle, place or premises. These amendments may engage the right to privacy of persons whose personal information is captured in the course of inspectors exercising their new information-gathering powers. However, inspectors can only do so for the purposes of exercising other powers or determining compliance with the Act, and as such any interference will not be arbitrary.
Enforcement powers
Amended s 109 also permits inspectors to take and remove for analysis or examination samples of or from, or specimens of, any land, vehicle, place or premise or any animal or thing on or at the land, vehicle, place or premise. The amended power to take samples may interfere the property rights of persons who own the property sampled, however any deprivation will be minor—only sample-sized quantities may be taken. Furthermore, this can only occur in the limited circumstances where an inspector’s powers are enlivened. For these reasons, I consider that the amendments will not limit the Charter rights to privacy and property, and are therefore compatible with the rights.
Clause 137 inserts new s 115AB which empowers inspectors to give notice to persons with directions to remove, destroy or dispose of contravening material in relation to the feeding of pigs, where they believe on reasonable grounds that a contravention of s 41(1) has occurred, is occurring or is about to occur (s 41(1) prohibits feeding pigs with material originating from other mammals). If the relevant person is not present, the inspector may leave the notice in a prominent place or give it by means of electronic communication.
Property
This provision may be seen to interfere with person’s property rights in the relevant material, however any deprivation will be confined to material that was already in breach of the Act. Inspectors can give a notice when they believe on reasonable grounds that a contravention has occurred. I am therefore satisfied that the provision will not limit the property right. I note that giving a notice by electronic communication may engage the fair hearing right in the same manner set out above in relation to the provision for electronic service under the AVCU Act. To the extent that any proceeding may flow from the issuing of a notice under s 115AB, for the same reasons as discussed above, I consider that this provision is also compatible with the right.
Part 8—Amendment of Plant Biosecurity Act 2010
Part 8 of the Bill relevantly amends the amend the Plant Biosecurity Act 2010 (PB Act) in relation to assurance certificates, plant health certificates, plant health declarations, the sale of diseased plants, the detention and seizure of plant and plant products, border security and fees and charges for beehives.
Property
Clause 153 amends s 18 of the PB Act to prohibit the sale of any plant or plant product, other than seeds, that is affected by any disease or pest. By limiting a person’s ability to deal in affected plants or plant products, the amendments may interfere with their use and enjoyment of the property, engaging their property rights. However, persons will not be deprived of the property, just the ability to sell it. Any deprivation will consequently be confined and not arbitrary but for the important purpose of limiting the transfer of plants affected by disease. I therefore consider that any interference will not be arbitrary and as such, compatible with the Charter right.
Part 10—Amendment of Veterinary Practice Act 1997
Part 10 of the Bill amends miscellaneous aspects of the Veterinary Practice Act 1997 (VP Act) relating to the registration of veterinary practitioners, the conduct of investigations and hearings relating to professional conduct and fitness to practice, and governance matters pertaining to the Veterinary Practitioners Registration Board of Victoria (the Board).
Powers of Board to suspend, or impose conditions upon registration pending investigation or hearing
Clauses 178–179 of the Bill amend sections 24 and 26A of the VP Act (respectively). The amendments relevantly empower the Board to suspend the registration of a veterinary practitioner, or to impose a condition, limitation, or restriction upon the registration, pending completion of: i) a professional misconduct preliminary investigation or hearing (clause 178); or ii) a preliminary investigation under section 25 of the VP Act into the fitness of a registered veterinary practitioner to practice veterinary medicine or surgery, and any hearing into the matter (clause 179).
The rights to equality, privacy, and fair hearing protected under sections 8(3), 13(a), and 24(1) of the Charter, respectively, are relevant to these amendments. For the reasons set out below, it is my opinion that any limit on the equality right is reasonable and justified, and that the rights to privacy and fair hearing are not limited.
Equality
Under section 25 of the VP Act, the Board may appoint a person to conduct a preliminary investigation where the ability of a registered veterinary practitioner to practise may be affected because of their physical or mental health, or because the person has an incapacity or severe substance dependence. Clause 179 of the Bill may therefore limit the right to equality as it could result in unfavourable treatment of persons with a disability (a protected attribute in section 6 of the Equal Opportunity Act 2010) who are subject to a preliminary investigation under section 25 of the VP Act. In particular, a practitioner with a disability may have their registration suspended, or a condition imposed upon their registration, as a result of their disability.
In my view, however, any limitation on the right to equality is reasonable and justified. The purpose of clause 179 of the Bill is to expand the range of responses available to the Board to protect the health and safety of the public, and the health and welfare of animals, pending completion of a fitness to practice investigation and (where applicable) hearing. Prior to the amendments, the Board could only suspend a registration (not impose conditions, restrictions, or limitations), or permit the practitioner to continue to practise with no controls. The power to temporarily suspend, or, with the agreement of the practitioner, to limit or impose conditions on a practitioner’s registration is necessary to achieve the important legislative objective of protecting the public. I note that discrimination on the basis of disability for the protection of health and safety is a permitted form of discrimination under the Equal Opportunity Act 2010.
The extent of the limitation is carefully tailored to the legislative objective. In particular, the Board has discretion whether to impose any limitation upon a person’s registration, and flexibility to impose conditions in lieu of complete suspension in circumstances where conditions can adequately protect the public and ensure animal welfare. As a ‘public authority’, the Board must give proper consideration to, and act compatibly with human rights, when exercising its discretion (section 38 of the Charter).
In addition, there are numerous opportunities to adjust, rescind, or review a registration suspension or conditions. For example, the Board is empowered under clause 179(4) of the Bill to vary or revoke any condition, limitation, or restriction before an investigation or any hearing is complete, and must revoke a suspension if it no longer believes that the ability of the practitioner to practise is likely to be affected to such an extent that allowing the person to continue practising would pose an unacceptable risk (section 26A(9) of the VP Act). A person may also apply to VCAT for review of a decision to suspend their registration if the Board has not instituted an investigation within a reasonable time of the suspension (section 55(1)(c) of the VP Act).
In my view, there are no less restrictive means available to achieve the legislative purpose. The discretionary nature of the power in clause 179 of the Bill permits the Board to choose the least rights-impairing response that will achieve the protective objectives in the circumstances of any given case. In some circumstances, the Board may decline to exercise its discretion at all.
Privacy
Clauses 178–179 of the Bill are relevant to the right to privacy in section 13(a) of the Charter, insofar as they empower the Board to temporarily suspend, or to limit, the ability of a registered veterinary practitioner to work in their chosen profession. Restrictions upon employment may engage the right to privacy in circumstances where they have a sufficient impact upon a person’s capacity to experience a private life, maintain social relations or pursue employment.
However, any interference authorised by clauses 178–179 of the Bill is lawful in the sense that it is prescribed by law. And, as discussed above, any restriction is not arbitrary because the Board must exercise its discretion to impose a suspension or condition in a manner that is proportionate to the risk posed to the health and safety of the public or of animals.
Fair hearing
Clauses 178–179 of the Bill are relevant to the right to a fair hearing in civil proceedings, protected under section 24(1) of the Charter, insofar as they empower the Board to temporarily suspend, or impose conditions upon, a practitioner’s registration prior to the completion of an investigation or hearing.
Any impact on the right to a fair hearing does not, in my view, constitute a limit upon the right. Part 3 of the VP Act provides numerous safeguards which ensure that a person whose registration may be suspended or subject to restrictions is accorded procedural fairness. The safeguards include written notice requirements in relation to a decision to commence a preliminary investigation or hearing, and in relation to a decision to suspend or place conditions upon a registration, as well as the opportunity to make submissions with respect to a decision to suspend or place limitations upon a registration.
Offence to disclose information identifying complainant or witness whose identity is protected
Clause 184 of the Bill substitutes a new provision for existing section 53 of the VP Act. The new provision makes it an offence to publish or broadcast a report of a formal hearing held under Part 3, where the report contains information which would enable the identification of the complainant, or of a witness whose identity is the subject of a non-publication determination made by the panel. The prohibition does not apply where the complainant or witness consents to the publication or broadcast.
A number of existing sections of the VP Act are relevant to the Charter analysis. Section 44(c) provides that, if a formal hearing arises out a complaint, the identity of the complainant is not to be published or broadcast. Moreover, pursuant to section 44(d) of the VP Act, the panel may only make a determination prohibiting the publication or broadcast of the identity of a witness to a formal hearing if it has first determined that the proceedings should be closed because the hearing is taking evidence of intimate, personal or financial matters.
In my opinion, clause 184 of the Bill engages, but does not limit, freedom of expression under section 15(2) of the Charter. Any restriction on freedom of expression is reasonably necessary to respect the rights of other persons, including the right to privacy, and is therefore permitted by section 15(3) of the Charter.
Offences relating to claims of registration
Clause 186 of the Bill substitutes new subsections for existing subsections 57(1)–(5) of the VP Act, and amends the penalty at the foot of existing subsection 57(6). New subsections (1)–(1C) prohibit a person who is not a registered veterinary practitioner from making representations that they are registered or qualified to practise as a veterinary practitioner (eg, by using the title of registered veterinary practitioner). New subsections (2)–(2A) and (3)–(3A) prohibit a registered veterinary practitioner from making false claims or representations about the nature of their registration (eg, that the registration is general when it is specific). Last, new subsections (4)–(4B) and (5)–(5B) prohibit persons from making false representations in relation to registration or qualification to practise as a veterinary specialist.
Clause 186 of the Bill limits freedom of expression under section 15(2) of the Charter, because it restricts the kinds of claims that a person may make in relation to registration under the VP Act. However, in my opinion, that limitation is reasonable and justified under section 7(2) of the Charter for the following reasons.
The purpose of the offences is to protect the integrity of the registration scheme established by the VP Act and, relatedly, to protect the public and animals from the risks associated with unauthorised veterinary practise.
The extent of the limitation is proportionately tailored to this important objective. In particular, the offences are concerned with representations or claims that are misleading in the specific context of the regulatory scheme established under the VP Act. For instance, the offence in subsection 57(1) prohibits the use of the title of registered veterinary practitioner in a way that suggests the person is registered under the VP Act (when they are not). It does not prohibit, generally, appropriate uses of the title. In addition, section 60 of the VP Act exempts certain persons undergoing approved veterinary training courses from the offences in section 57.
Furthermore, the type of expression that is restricted is likely to be commercial in nature (eg, a title may be used inappropriately to generate business for the unauthorised provision of veterinary services). It therefore falls outside the core of the interests protected by freedom of expression.
Last, there is no less restrictive means available to achieve this important legislative objective. Anything less than a full prohibition (subject to the exceptions in section 60) on persons misrepresenting their qualification to provide veterinary services will undermine public confidence in the registration scheme and the ability of the public to rely on the register of veterinary practitioners (established under section 16 of the VP Act) as evidence of a person’s qualification to practise.
Duty of confidentiality
Clause 191 of the Bill substitutes a new confidentiality provision for section 77 of the VP Act. It provides that a person who is or has been a member of the Board, or a member of the staff of the Board, must not make a record of, disclose, or communicate any information obtained in the course of the performance of their functions under the VP Act. The prohibition is subject to exceptions for the purposes or in the circumstances listed in subsection (2).
Two Charter rights are relevant to clause 191 of the Bill: privacy, protected under section 13(a), and freedom of expression, protected under section 15. For the reasons set out below, it is my opinion that neither right is limited.
Privacy
Clause 191 permits interferences with privacy by authorising certain disclosure of personal information pursuant to new subsection 77(2).
However, disclosure in these situations is for legitimate purposes, including to administer and enforce the provisions of the VP Act, or to reduce risks to health, safety and wellbeing of natural persons or animals. Additionally, in relation to a disclosure to a ‘relevant person’ (as defined), subsection (1)(b) provides that the person disclosing must first be satisfied that privacy protections exist and that disclosure is necessary to enable the relevant person to perform their functions. Thus, provided disclosure is made in accordance with the criteria in subsections (1) and (2), any interference with privacy will be lawful and not arbitrary, and therefore permitted under section 13(a) of the Charter.
Moreover, as ‘public authorities’ under the Charter, persons who are members of the Board, or members of the staff of the Board, must give proper consideration to, and act compatibly with, human rights in making decisions to disclose information (section 38(1) of the Charter). This will oblige those persons to ensure that the extent of disclosure is proportionate to the legitimate purpose for disclosure in any given case. The Board is also bound by the Privacy and Data Protection Act 2014 in respect of the use and disclosure of personal information, which provides further safeguards against unlawful or arbitrary interferences with privacy.
Freedom of expression
In my view, clause 191 of the Bill does not limit freedom of expression. Any restriction on freedom of expression is reasonably necessary to respect the rights of other persons, including the right to privacy, and is therefore permitted by section 15(3) of the Charter. Additionally, the persons to whom these restrictions will apply have voluntarily assumed the obligations and duties that attach to these roles.
Part 12—Amendment of Meat Industry Act 1993
Part 12 of the Bill relevantly amends the Meat Industry Act 1993 (MI Act) in relation to the sale and slaughter of meat for consumption.
Prohibitions on sale or disposal of certain meat products
Clause 199 substitutes s 34 to ban the sale or disposal of meat and poultry meat for human consumption, unless the meat is from a consumable animal slaughtered and processed at a licensed or authorised facility, and has been inspected and branded, or certified as fit for human consumption, as the case may be. The offence in relation to game meat is treated differently, where the processing and certification requirements are different for the sale of game meat for human consumption, and the disposal of game meat for human consumption. This is to reflect that game meat, in contrast to other meat from a consumable animal, may be disposed of for human consumption where it has been processed at a meat processing facility that solely processes game not intended for sale, and if so is not required to be branded or certified as fit for human consumption.. Clause 202 inserts new s 37B which bans the sale or disposal of certain meat for consumption as pet food unless it has been inspected in accordance with the Act and all applicable procedures under regulations have been complied with. Clause 204 amends s 39(1) to require that a person must not remove game meat from a game processing facility unless certain conditions are complied with.
Property
These provisions may engage the property rights of persons who purport to deal in meat products for human consumption, or consumption as pet food, that will be banned under the amendments. However, the amendments are for the purpose of clarifying the offences in relation to the disposal of game meat for human consumption, and meat for consumption as pet food, for clarifying when meat may be legally sold and disposed of for human consumption, and to remove inconsistencies between various offence provisions in the Act. Affected persons will be part of a regulated industry and aware of their obligations to process meat accordingly, and the broader scheme is for the important purpose of protecting the health of humans or animals which consume meat. I therefore consider that any interference will be confined and proportionate and will not limit the right.
The Hon. Gayle Tierney
Minister for Training and Skills
Minister for Higher Education
Second reading
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Ms PULFORD: I move:
That the bill be now read a second time.
Incorporated speech as follows:
The Bill makes amendments to 11 Acts to improve efficiency, operation, administration and enforcement.
Amendments to the Agricultural and Veterinary Chemicals (Control of Use) Act 1992
The Bill modernises authorised officer powers, removes unnecessary barriers to sharing information with other regulators and clarifies requirements for giving notices, making requests and recovery of debts. This will resolve ambiguity, improve efficiency and the ability for authorised officers to protect public safety, animal health and welfare, the environment and trade.
The Bill expands the definition of a ‘label’ so that the Australian Pesticides and Veterinary Medicines Authority (APVMA) ‘approved label’ will be the applicable standard in most circumstances instead of the label affixed to the chemical product. This harmonises Victoria’s requirements with other jurisdictions and improves the ability to communicate and enforce the legal obligations of chemical users when label changes are made.
The Bill broadens the scope of a destruction notice that may be issued under the Act to allow discretion for alternatives such as recycling, in alignment with government policy for waste and resource recovery.
Amendments to the Catchment and Land Protection Act 1994
The Bill improves the controls for noxious weeds and pest animals and strengthens inspection and enforcement powers of authorised officers to better regulate the risk of introduction or spread of noxious weeds and pest animals in Victoria. Globalisation and the expansion of trade have increased Victoria’s exposure to biosecurity risks and increased the rate of new incursions into the State. The amendments create new offences and impose new requirements to address these risks. The Bill provides for graduated penalties for offences relating to the spreading of noxious weeds without a permit and improve consistency of penalties to similar offences relating to pest animals. These amendments will improve our ability to manage the risks associated with noxious weeds and pest animals.
Amendments to the Dairy Act 2000
The Bill removes ambiguity about the application of the Public Administration Act 2004 to Dairy Food Safety Victoria employees and clarifies that all public sector employees are subject to the values and principles set out in that Act.
Amendments to the Drugs, Poisons and Controlled Substances Act 1981
The Bill ensures that in the event of a large-scale natural disaster, such as the 2019–20 bushfires or biosecurity responses, the health and welfare outcomes for animals, both domestic and wild, are improved. By mirroring the existing human health emergency order to allow broader, controlled access to Schedule 4 and 8 medicines for animal treatment, the impacts of these events on animal health and welfare can be reduced such as by ensuring rapid provision of pain relief and anaesthetics for the surgical and medical treatment of wounds. The Australian Veterinary Association and Zoos Victoria are supportive of this important initiative. If it been in place for the 2019–20 bushfires it is likely to have had a significant impact on relief activities, including ministration of care to impacted wildlife, and allowing compassionate donation of medicines by veterinary practitioners to be quickly supplied to impacted areas.
The Bill removes potential impediments to interstate trade in the hemp industry through harmonising legislated thresholds for tetrahydrocannabinol (THC) in low-THC cannabis with other states and territories.
The Bill improves the efficiency and effectiveness of Part IVA of the DPCSA for authorities for low-THC cannabis by: introducing further regulation making powers; improving the fit and proper person assessments for applicants; introducing new provisions for the protection of sensitive information; and introducing the ability to issue infringement notices and establishing a new, lesser offence for non-compliance with minor conditions of an authority. The amendments also widen the eligibility criteria for an authority by narrowing the definitions of ‘serious offence’ and ‘relative’.
Amendments to the Farm Debt Mediation Act 2011
The Bill strengthens an already effective Act and harmonises some provisions with farm debt mediation legislation in other States.
The Bill will strengthen farmers’ rights to farm debt mediation by expanding the definition of ‘farming operation’ to include forestry and aquaculture; retaining a farmer’s right to be offered mediation by a creditor if the farmer has previously initiated mediation when not in default; and requiring a creditor to hold an exemption certificate in all instances prior to taking enforcement action under a farm mortgage.
The Bill will also streamline the administration of the farm debt mediation scheme by transferring all administrative responsibilities to the Victorian Small Business Commission.
Amendments to the Livestock Disease Control Act 1994
The Bill strengthens the existing legislative framework available for the prevention, monitoring and control of animal diseases in Victoria by improving compliance and enforcement tools, creating new offences to underpin livestock and bee traceability through the supply chain and extending and clarifying the powers of inspectors.
The Bill supports Victoria’s biosecurity system by extending beekeeper registration requirements, establishing better risk management of livestock exposed to sewage and pigs exposed to prohibited pig feed, and providing for the Exotic Diseases Fund to pay the costs of administering exotic disease response activities associated with protecting animal welfare.
The Bill also modernises the governance arrangements for the livestock compensation funds by revising the structure of the advisory committees to improve openness and transparency, consistent with the Premier’s Circular No. 2015/02 on Good Board Governance, which requires that selection processes be merit-based, fair, open and diverse. These amendments will facilitate a broader, more diverse range of candidates and will be complemented by advice from the compensation fund advisory committees on specific skills and experience necessary for each committee. The composition of the committees will continue to include strong producer and industry representation.
Amendments to the Meat Industry Act 1993
The Bill removes ambiguity about the application of the Public Administration Act 2004 to PrimeSafe employees and clarifies that all public sector employees are subject to the values and principles set out in that Act. Other minor amendments to the Meat Industry Act will improve its operation and provide greater clarity on the food safety regulatory framework for meat, including the regulatory arrangements that apply to packaged meat.
Amendments to the Plant Biosecurity Act 2010
The Bill provides additional support to inspectors when interpreting and applying the requirements of the Plant Biosecurity Act 2010 to prevent the entry and spread of plant pests and diseases in Victoria.
The Bill amends the definition of a plant health declaration to provide a clear power to authorise a person to issue a declaration. It clarifies circumstances in which an Importation Order can be made to prevent entry of pests and diseases into Victoria; and the notification of relevant persons, and taking of samples, when plants are seized or detained. It also provides new offences for inappropriate use of plant health documents, and the sale of diseased plants, both of which complement existing offence provisions, and will support the use of Infringement Notices for the offences.
Amendments to the Rural Assistance Schemes Act 2016
The Bill improves flexibility for an externally appointed Member of the Rural Assistance Commissioner to operate part time, rather than full time. Accountability and administrative efficiency are improved by requiring only the responsible minister of a rural assistance scheme to approve an instrument of delegation as it relates to their portfolio, rather than the lead minister of a department.
Amendments to the Veterinary Practice Act 1997
The Bill provides greater flexibility to the Veterinary Practitioners Registration Board of Victoria (the Board) to register veterinary practitioners, conduct hearings and investigations and modernises disclosure of information provisions. It also restructures several offences to ensure those that are suitable may be enforced by infringement notice.
The Bill improves the efficiency and flexibility of the Board to conduct professional misconduct preliminary investigations by providing it with an option to enter into an agreement with a veterinary practitioner to impose conditions or restrictions on their practising, as an alternative to continuing to allow the veterinary practitioner to continue practising unrestricted or suspending their registration, pending the outcome of an investigation.
The Bill improves governance of the Board by removing the requirement that the President and Deputy President roles be restricted to registered veterinarians, allowing for a broader range of skill sets to be considered. It also removes the requirement that one veterinary position be an employee of the University of Melbourne, instead requiring that position to be filled by a registered veterinarian with skills and experience in veterinary education thereby broadening the range of professionals available for Board appointment.
Amendments to the Wildlife Act 1975
The Bill corrects an administrative error, to clarify who can remain on specified hunting areas at certain times during the duck season. This will improve public safety on duck hunting wetlands by ensuring people in specified hunting areas during specified times during the duck hunting season hold the relevant game licence.
I commend the Bill to the house.
Mr ONDARCHIE (Northern Metropolitan) (18:02): I move, on behalf of my colleague Ms Bath:
That debate on this matter be adjourned for one week.
Motion agreed to and debate adjourned for one week.