Tuesday, 15 October 2019

 The PRESIDENT (13:14): I have received the following message from the Legislative Assembly:

The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Catchment and Land Protection Act 1994, the Dairy Act 2000, the Drugs, Poisons and Controlled Substances Act 1981, the Fisheries Act 1995, the Game Management Authority Act 2014, the Livestock Disease Control Act 1994, the Meat Industry Act 1993, the Melbourne Market Authority Act 1977, the Plant Biosecurity Act 2010, the Veterinary Practice Act 1997, the Wildlife Act 1975, and to make miscellaneous and consequential amendments to the Confiscation Act 1997, the Conservation, Forests and Lands Act 1987, the Crown Land (Reserves) Act 1978, the Environment Protection Act 1970, the Firearms Act 1996, the Land Act 1958 and to repeal the Livestock Disease Control Amendment Act 2007, the Broiler Chicken Industry Act 1978 and the Broiler Chicken Industry (Amendment) Act 1991 and for other purposes’.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (13:15): I move:

That the bill be now read a first time.

Motion agreed to.

Read first time.

Ms MIKAKOS: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (13:15): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

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 Primary Industries Legislation Amendment Bill 2019.

In my opinion, the Primary Industries Legislation Amendment Bill 2019, as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill is an omnibus Bill that makes minor amendments to a number of Acts relating to primary industries.

Human Rights Issues

Extension of coverage of the Dairy Act 2000

Clause 5 of the Bill substitutes a new definition of dairy farm and milk into the Dairy Act 2000. The effect of this amendment is to extend coverage of the Dairy Act, which currently only regulates the production for sale or profit of cow, goat, sheep or buffalo milk, to apply to the production for sale or profit of all animal milk including camel, horse and donkey milk. Currently, production of milk that does not come under these definitions is regulated under the Food Act 1984.

The main effect of this amendment is that certain milk processors who are not currently subject to the Dairy Act will now be subject to the responsibilities and obligations relating to the licensing regime for the dairy industry and the provisions for dairy food safety, including the compliance and enforcement powers of authorised officers under the Dairy Act. This includes being subject to the general powers of authorised officers under Part 5 of the Dairy Act, which are relevant to the following Charter rights:

• of freedom of movement (by way of powers of officers to stop and detain vehicles);

• of privacy (by way of powers of officers to enter dairy premises and conduct searches);

• of property (by way of powers of officers to seize certain items and destroy dairy food); and

• not to be compelled to testify against oneself or confess guilt (by way of the power of officers to require information from persons on dairy premises).

In terms of considering the practical effects on human rights of these amendments, it is important to note that milk processors who will be affected by this expanded coverage of the Dairy Act are already subject to similar compliance and enforcement powers under the Food Act 1984. This includes being subject to similar enforcement powers by authorised officers under Part IV of the Food Act, which include powers of entry and inspection, and powers to stop and detain vehicles, seize property, destroy seized food, and require provision of certain information. The purpose of the amendment is to better ensure dairy food safety by ensuring that the appropriate regulator with the necessary expertise is responsible for regulating all milk production and processing in the State and carrying out enforcement measures necessary to ensure public safety of milk products. The amendment will also facilitate camel milk producers to gain export certification as the Commonwealth Government already has an arrangement with Victoria to accept food safety audits undertaken under the Dairy Act for the purposes of export certification.

Accordingly, while this amendment will result in new persons being subject to various powers under the Dairy Act that affect human rights, in my view it will not result in the imposition of any new limitations on human rights due to such persons already being subject to similar regulatory powers under the Food Act.

However, should an alternative view be taken that the enforcement provisions in the Dairy Act are more onerous than the Food Act, it is my view that these existing enforcement powers in the Dairy Act are compatible with the Charter. I note that it is common for Parliament to provide regulatory authorities with broad powers to enter industry premises to monitor compliance with a regulatory scheme on the basis that such powers should not be broader than necessary to allow authorised officers to carry out their duties. The entry and search powers in the Dairy Act are limited to dairy premises or vehicles used to transport dairy food and are limited to being exercised at a reasonable time and for the purpose of the administration of the Dairy Act. The powers are exercisable in relation to persons on dairy premises or in charge of a dairy transportation vehicle, meaning they affect persons who have chosen to participate in a regulated industry and adopt roles to which certain obligations and responsibilities attach. Seizure and disposal of property provisions in the Act are limited to confined circumstances that are clearly set out in the Act, and subject to a number of procedural safeguards regarding dealing with, returning or destroying seized items. Finally, the requirement to answer questions put to a person by an authorised officer is subject to a right to refuse a question on the grounds of self-incrimination.

Amending reverse onus defence in the Fisheries Act 1995

Clause 14 of the Bill amends the defence in section 53(3) of the Act for consistency with broader reforms to complicity provisions in other Victorian legislation that are designed to simplify a complex area of law and remove confusing distinctions and inconsistencies.

Section 53 of the Fisheries Act 1995 provides for an offence of failing to comply with licence or permit conditions and deems that a holder of a fisheries licence or permit commits the offence if another person fails to comply with a condition on the holder’s behalf.

Section 53(2) provides that this deeming provision does not apply if the holder of the licence or permit can prove the following matters:

• that, at the time the offence was committed, there was in force a written agreement in which the person who was acting on behalf of the holder agreed to comply with all relevant conditions and requirements of the Dairy Act and the regulations; and

• that the holder did everything reasonably practicable to ensure that the person would comply with the relevant condition; and

• that the holder did not in any way aid, abet, counsel or procure the person to fail to comply with the relevant condition.

Clause 14 of the Bill substitutes the final element of the defence (i.e. ‘the holder did not in any way aid, abet, counsel, or procure’) with the words ‘the holder did not in any way assist, encourage or direct the person to fail to comply with the condition’.

In my view, this amendment (which changes the terminology in relation to the law of complicity) does not materially alter the existing reverse on an accused to prove the available defence, however, I discuss this offence provision’s overall compatibility with the Charter given the Committee’s interest in such provisions and the fact that this provision has not previously been discussed in a Statement of Compatibility.

Section 53 of the Fisheries Act makes a licence holder liable for the actions of persons who act on the licence holder’s behalf. Section 53(2) provides the licence holder with a defence if he or she can establish certain matters. The section shifts the normal burden of proof on to an accused to prove certain matters in order to avoid liability for the actions of another person. This is relevant to section 25(1) of the Charter that provides that a person who is charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

While the imposition of a legal burden on an accused will limit an accused’s right to the presumption of innocence, I consider that the limit is reasonably justified under s 7(2) of the Charter.

The offence in question applies only to holders of a fishery licence or permit, persons who have voluntarily applied for permission to operate in a specified role within a regulated fisheries industry. The grant of a fishery licence or permit is subject to special responsibilities, obligations and conditions, which are stated clearly in the Fisheries Act, regulations and any specific licence conditions. This includes a holder assuming responsibility for the actions of persons who act on their behalf. This deeming provision is necessary to ensure accountability of holders to the duties and obligations imposed on them by the scheme, which are designed to protect and conserve fisheries resources for the greater public interest.

This responsibility is subject to the exception that a holder will not be held liable for the compliance failures of others if they can prove that they undertook the necessary due diligence (implementing a written agreement to, and doing everything reasonably practicable to, ensure the other person’s compliance with conditions) and were not complicit in the other person’s failure to comply with conditions. Accordingly, in undertaking a role as a licence or permit holder and engaging other persons to act on their behalf, a holder accepts that they will be subject to this responsibility under the scheme and be expected to demonstrate compliance with this responsibility. The matters required to be proven are within the knowledge of the holder, who is best placed to lead this evidence.

Conversely, it would be very difficult for the prosecution to prove these matters in the negative. Due diligence can be practically demonstrated by producing the required written agreement and detailing the reasonable steps taken to ensure compliance with conditions. The third element of the defence requires the accused to prove that they did not assist, encourage or direct the person to fail to comply with the condition. This can be established by reference to the individual circumstances of a case, which, on the balance of probabilities, prove that an accused was not involved in the commission of the offence.

In my view, a less restrictive measure (such as imposing only an evidential onus on an accused to establish the exception) would not be appropriate in light of the strong public interest in ensuring that holders comply with their responsibilities under the scheme, are accountable for the actions of persons acting on their behalf, and, in order to escape liability for any compliance failure of persons acting on their behalf, be expected to demonstrate to a legal standard that they have taken all measures required by the Act to discharge this responsibility.

Powers of entry and inspection and forfeiture or return of things seized or retained in the Fisheries Act 1995

Clause 23 of the Bill will require persons to produce on demand, any fish or fishing equipment in that person’s possession for inspection by an authorised officer. This is relevant to the right to privacy in s 13 of the Charter, which provides that a person has the right not to have his or her privacy unlawfully or arbitrarily interfered with. In my view, this amendment does not limit this right, as it does not increase the extent of the existing interference with privacy provided under the Fisheries Act.

An authorised officer or police officer, under s 102 of the Fisheries Act, has the power to enter upon any land, protected water or premises for the purpose of inspecting or searching for any fishing equipment or fish, in order to ascertain whether or not the provisions of the Fisheries Act, the regulations or a fisheries notice are being observed. I note my earlier observation that Parliament commonly provides regulatory authorities with broad powers to monitor compliance with a regulatory scheme on the basis that such powers should not be broader than necessary to allow authorised officers to carry out their duties. This power of search and inspection is considered necessary to enforce the scheme, as it is not possible to determine compliance with fish minimum or maximum size limits or bag limits without officers physically inspecting the fish. The power cannot be exercised to enter and search a dwelling house.

Clause 23 provides for a new tool to facilitate the conduct of these inspections by allowing officers to require a person to produce such items in their possession for inspection. There are occasions, for example, when exercising powers in relation to boats, when it is safer to ask someone to produce fish or equipment for inspection rather than to, for example, board a vessel and search for such items. As officers already have the power to search fishing equipment or fish in this scenario, the power to require persons to produce such items for inspection will not constitute any additional interference with privacy.

I also note for completeness that, by way of section 111(e) of the Fisheries Act, the requirement to produce fish and fishing equipment to an officer is subject to a right to refuse to comply on the grounds of self-incrimination. Accordingly, I am satisfied that clause 23 is compatible with the Charter.

Jaclyn Symes MP

Minister for Agriculture

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (13:16): I move:

That the second-reading speech be incorporated into Hansard.

Motion agreed to.

Ms MIKAKOS: I move:

That the bill be now read a second time.

Incorporated speech as follows:

The Bill will repeal the Broiler Chicken Industry Act 1978 and make amendments to a number of acts to improve efficiency workability, administration and enforcement.

Broiler Chicken Industry Act 1978 repeal

The Bill will repeal the Broiler Chicken Industry Act 1978. Victoria is the only state whose broiler industry collective bargaining legislation has not been repealed, and the Broiler Industry Negotiation Committee established under the Act has not been in place for over 15 years.

This Act was originally conceived to counter the imbalance in market power between individual broiler farmers and large vertically-integrated processing companies. However, over time, the industry has transitioned to collective bargaining arrangements under authorisation by the Australian Competition and Consumer Commission (ACCC).

The ACCC authorisations allow current and future broiler farmers to collectively bargain with a processor to which they provide services. Most recently, on 16 June 2016, the ACCC granted authorisation for Victorian broiler farmers to collectively bargain with processors for the next 10 years.

Amendments to the Catchment and Land Protection Act 1994

Under provisions of the Catchment and Land Protection Act 1994, the relevant Secretary exercises responsibility in relation to a number of the noxious weeds and pest animals. This includes serving land owners with a land management notice where the Secretary is satisfied there has been a failure to comply with relevant provisions of the Act or measures need to be taken by the land owner to meet their obligations. In practice, these powers are delegated to Agriculture Victoria within the Department of Jobs, Precincts and Regions (DJPR).

The Secretary may do anything necessary to carry out a land management notice if the Secretary believes on reasonable grounds that the notice has not been complied with and may then recover expenses necessarily incurred in carrying out this work.

Currently DJPR expends significant time and effort to recover outstanding debt through civil proceedings. These proposed changes will enable costs to be recovered during the sentencing phase of criminal proceedings for offences for non-compliance, resulting in more direct and efficient cost recovery.

Amendments to the Dairy Act 2000

The Dairy Act 2000 provides for Victoria’s specialist dairy regulator, Dairy Food Safety Victoria, to licence and have regulatory oversight for the production and processing of dairy products. Currently the Act only applies to the production and processing of dairy from cows, sheep, goats and buffalo. Regulation of the processing of milk from other animals is undertaken by local governments.

A number of businesses have shown interest in establishing a camel milk industry in Victoria. Camel milk businesses that are already operating are being regulated by local government but have expressed an interest in being regulated by Victoria’s specialist dairy regulator.

Amendments to the Dairy Act will bring the regulation of camel milk production under Dairy Food Safety Victoria. This will ensure a more fit-for-purpose regulatory model for these producers and facilitate future access to export markets.

Amendments to the Drugs, Poisons and Controlled Substances Act 1981

Part 4A of the Drugs, Poisons and Controlled Substances Act 1981 provides an authority scheme for the cultivation and processing of low-THC cannabis (industrial hemp) for non-therapeutic purposes. The authority scheme is administered by DJPR. Industrial hemp is grown in Victoria mainly for the production of fibre and hemp seed.

The Bill introduces a delegation power for the Secretary of the Department to delegate some or all of his or her powers under Part 4A to suitable departmental officials.

The Bill also expands the definition of a serious offence, to include indictable offences involving assault or a serious offence committed in another jurisdiction. This amendment would make persons who have committed such offences ineligible for an authority.

Amendments to the Fisheries Act 1995

Speaker, I now turn to the provisions of the Bill as they relate to Fisheries Act 1995.

The Andrews’ Government acknowledges the importance of fishing in Victoria and the significant contribution it makes to our economy and jobs. We are committed to careful management of this precious resource and are proud to note that we have invested over $46 million into fishing under the Government’s Target One Million initiative; the largest allocation of funds to fisheries in 30 years. We are committed to getting more people fishing more often by encouraging participation in what is a great pastime and outdoor activity.

This Bill provides an opportunity to amend the Fisheries Act to deal with a number of emerging fisheries issues that are hindering compliance efforts, to provide appropriate sanctions to deter illegal activity, and to make a number of technical amendments to remedy administrative inefficiencies and improve existing processes.

In total, 22 fisheries-related changes are proposed to ensure the Fisheries Act remains an effective and relevant management tool. Key changes I draw your attention to include:

• allowing early surrender of netting entitlements by eligible Port Phillip Bay commercial fishers, which will allow any of the eight commercial fishers who are legally entitled to continue using nets until 2022 to voluntarily cease netting prior to that date, in exchange for early payment of compensation. This will help fast track removal of netting from the bay, consistent with the Target One Million commitment.

• transferring the powers and functions of the fisheries Licensing Appeals Tribunal to VCAT, creating administrative efficiencies and ensuring commercial fishing licence appeals are consistent with other licensing processes throughout the State.

• amending the Conservation Forests and Lands Act 1987 to enable a tiered system of infringement penalties that better reflect the circumstances of particular offences relevant to undersized fish, breaches of bag limits and noxious aquatic species.

A large number of minor technical and administrative amendments to the Fisheries Act are also being made, including an option to include harvest strategies in fishery management plans. Harvest strategies can be used to set and adjust levels of harvest from a fishery. They help ensure our fisheries are sustainable. They also provide management certainty by defining what happens when a fish stock reaches pre-determined levels. However, this does not mean recreational fishing will be managed by quotas. Recreational fishing will continue to be managed by tools such as closed seasons, bag and size limits.

Amendments to the Game Management Authority Act 2014

The Bill updates the Act for consistency with recent changes to Public Administration Act 2004.

It also makes a number of amendments to clarify and streamline operation of the GMA Board. This includes: explicitly stating that the GMA Deputy Chair can fill the Chair position during a vacancy; clarifying that, following the resignation of a director from the GMA Board, the position may be filled for up to three years, regardless of the remaining term of the departing director’s position; and introducing a set of guiding principles to provide the GMA Board with a clear set of objectives and a framework within which decisions should be made that balance a range of competing interests.

The Bill will introduce changes requiring the GMA to act consistently with any agreed governance framework. This modern governance arrangement, that was also embedded into legislation for the new Victorian Fisheries Authority, clarifies accountabilities and reinforces a collaborative approach.

To resolve legal uncertainty as to what enforcement activities officers authorised under the Game Management Authority Act 2014 can undertake, the Bill amends the definition of ‘authorised officer’ in the Conservation, Forests and Lands Act 1987, Crown Land (Reserves) Act 1978, Land Act 1958 and Firearms Act 1996, and ‘litter enforcement officer’ in the Environment Protection Act 1970.

This clearly allows authorised officer to enforce associated offences with hunting when in the field.

Amendments to the Livestock Disease Control Act 1994

This Bill makes a number of amendments to the Livestock Disease Control Act 1994. The restriction on spending from the Cattle Compensation Fund and the Sheep and Goat Compensation Fund are being removed to enable the capital in these funds (rather than only the interest earned on capital) to be spent on projects and programmes benefiting the respective industries.

The power of inspectors to issue infringement notices is being extended to the offence of failing to provide specified information when sending samples to laboratories for disease testing and offences relating to vendor declarations. These additional enforcement options for inspectors will assist in earlier disease detection and improved livestock disease traceability.

Minor changes are also proposed to processes relating to the quarantine and treatment of livestock during disease outbreaks. Inspectors will have increased discretion as to the measures imposed on the owners of diseased livestock. This will increase response capability and boost the effectiveness of managing animal disease events.

Amendments to the Melbourne Market Authority Act 1977

Amendments to the Melbourne Market Authority Act 1977 are proposed to address governance limitations and administrative burdens for the Melbourne Market Authority and reflect the current operating environment.

The definition of ‘market land’ will be updated to reflect the relocation of the market from West Melbourne to Epping.

Currently the Act requires the Authority to meet on a monthly basis regardless of need and seek my approval for expenditure exceeding $250,000. These requirements create unnecessary burden on the Authority and DJPR staff and are inconsistent with best practice governance arrangements. Proposed amendments provide greater autonomy to the Melbourne Market Authority Board by allowing it to determine its own meeting frequency and raise the threshold for ministerial approval on expenditure to $750,000. This figure is consistent with the maximum amount prescribed for other DJPR executives. Various administrative updates are also proposed. These include inserting ‘flowers’ into the market’s title, applying gender-neutral language and removing references to repealed legislation.

Amendments to the Meat Industry Act 1993

The Meat Industry Act 1993 sets up a licensing system that enables the adoption of national food safety standards for the hygienic production and processing of meat for human consumption and for pet food. The Act does not currently provide for the slaughter and processing of meat to be undertaken in vehicles, even where these activities can be undertaken in compliance with national food safety standards.

Consolidation in the meat processing sector has led to a significant decrease in abattoir numbers across Victoria and has created barriers to small producers gaining access to abattoir services. Small producers are increasingly calling for a regulatory framework that supports the operation of micro or mobile abattoirs to facilitate small-scale processing in accessible locations.

More broadly, mobile businesses are a growing trend but are not supported by the existing legislative framework for the meat industry. Amendments to the Meat Industry Act 1993 have been made in recognition of the industry development opportunity that mobile operators provide for producers and butchers across Victoria.

Amendments to the Meat Industry Act 1993 are also being made to support the Government’s implementation of the Sustainable Action Hunting Plan. Hunters have been calling for the removal of barriers that prevent the use of game harvest, including the processing of meat for the hunter’s personal consumption. These amendments will ensure that the processing of wild deer that is not intended for sale is not captured by the licensing requirements of the Act.

Amendments to the Plant Biosecurity Act 2010

Amendments to the Plant Biosecurity Act 2010 will provide additional support for the potato and viticulture industries in controlling two insect pests known as grape phylloxera and potato cyst nematode.

The Bill provides for a definition to be revised to specify certain grape products to enable these products to be effectively regulated; a modified definition for an assurance certificate to align with certification offences; and a regulation making power to specify treatments or conditions for the entry of grape and potato host plant material into Victoria. It also provides an inspector to have the option to issue a written direction in a declared control area for pest or disease control and clarifies the general procedure for taking plant samples to reflect current inspection and survey procedures.

Amendments to the Veterinary Practice Act 1997

The Veterinary Practice Act 1997 is also being amended, improving the functionality of the Veterinary Practitioners’ Registration Board of Victoria to hear cases of unprofessional conduct. The amendments provide further discretion to the Board to appoint legal practitioners to sit on a hearing panel and make minor changes to the procedures of hearings conducted by the Board. The maximum penalty for serious professional misconduct is increased to bring it into line with other professional standards bodies and interstate veterinary registration boards, and a provision for the issuing of infringement notices for minor offences is inserted. The changes will result in more effective and efficient functioning of the Board and will support increased community awareness and expectations regarding animal welfare and the veterinary profession.

Amendments to the Wildlife Act 1975

The Bill amends the Wildlife Act 1975 to include the offence of hunting, taking or destroying game during an open season as a relevant offence in relation to which a controlled operation may be conducted. This will enable the GMA to undertake a key regulatory function.

I commend the Bill to the house.

 Mr RICH-PHILLIPS (South Eastern Metropolitan) (13:16): I move, on behalf of Mr O’Donohue:

That debate on this bill be adjourned until next day of meeting.

Motion agreed to and debate adjourned until next day of meeting.