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12 March 1991 - Current

 
SUSTAINABLE FORESTS (TIMBER) AND WILDLIFE AMENDMENT BILL 2013
Page 3794
31 October 2013
ASSEMBLY Statement of Compatibility WALSH
         SUSTAINABLE FORESTS (TIMBER) AND WILDLIFE AMENDMENT BILL 2013
                           Statement of compatibility
Mr WALSH (Minister for Agriculture and Food Security) tabled following statement
in accordance with 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 act'),  I  make  this statement  of
  compatibility with respect to the Sustainable  Forests  (Timber)  and Wildlife
  Amendment Bill 2013 (the 'bill').
  In  my  opinion,  the bill,  as  introduced to  the  Legislative  Assembly, is
  compatible with  the  human  rights  protected  by  the charter act. I base my
  opinion on the reasons outlined in this statement.

  Overview of bill
  The bill  amends the Sustainable Forests  (Timber) Act 2004  (the  'SFT act'),
  Wildlife Act 1975 (the 'Wildlife Act') and Safety on Public Land Act 2004.
  The  main  purposes of the  bill  are to amend the  SFT  act to establish  and
  provide  for the enforcement of timber harvesting  safety  zones,  enforceable
  undertakings and exclusion  orders, and to amend  the Wildlife Act to  provide
  for  banning notices and  exclusion  orders. The  primary  objective of  these
  amendments is to preserve public safety.
  Human rights issues
  Human rights protected by the charter act that are relevant to the bill

  Freedom of movement
  Section 12 of  the  charter act  provides  that every person  lawfully  within
  Victoria has  the right to move freely within Victoria. Several clauses of the
  bill enable an authorised officer, police member or court to restrict a person
  from an area they may ordinarily have access to.
  Clause 6 of the bill inserts a new part 7A into the SFT act which concerns the
  declaration  and regulation of coupes,  nearby roads and state forest areas as
  'timber harvesting  safety  zones'. New  section  77G provides that  a  person
  (other  than  an  authorised  person) must not enter, or remain in,  a  timber
  harvesting safety  zone if notice of the zone has been conspicuously displayed
  on or near the zone, and in  the case  of operations  conducted by VicForests,
  published on VicForests internet site.

  Notice  of a  zone  must  specify  the  precise  location  of  the  zone,  the
  commencement date  of  operations in the  zone,  and state  that  offences and
  penalties apply in relation to the zone. New  section  77D  provides  that  an
  authorised officer  may direct a person  to leave a  timber  harvesting safety
  zone  and  attaches  a  penalty  to  a  refusal or  failure to  follow such  a
  direction.
  Clause 14 of the  bill  inserts  a new part 9B into the  SFT  act empowering a
  court to make an order excluding a person from a timber harvesting safety zone
  or any state forest area.

  To  make such an  order  a  court must find  the  person guilty of  a  certain
  specified  offence  (for  example,  refusing  or  failing  to  comply with  an
  authorised officer's direction  to leave a  timber harvesting safety  zone, or
  hindering, obstructing or  interfering with timber  harvesting operations) and
  be satisfied that the  order  'may  be  an  effective  and reasonable means of
  preventing  the  offender from committing a further  specified  offence'.  New
  section 94G provides  that an authorised officer or member of the police force
  may  direct  a  person contravening  an  exclusion order to  leave  that area.
  Refusal or failure to comply with such a direction is subject to penalty. When
  issuing a direction, the  officer or  member of the police force must make all
  reasonable attempts to ensure that the person understands the direction.

  Clause  20 of  the bill  inserts a new section 58C(1)  into the  Wildlife Act,
  which provides that a person must not, without licence or authorisation, enter
  on  or  remain  in  any  specified hunting area at certain times  during  duck
  season.  Clause 23  of the  bill inserts  a  new part  VIIA, within  which new
  section 58G permits an authorised officer or police member to 


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issue a notice banning a person from specified hunting areas if they believe on reasonable grounds that the person has committed or is committing a specified offence (for example, interfering with, harassing, hindering or obstructing a person who is engaged in hunting or taking game in a specified hunting area). The period specified in the banning notice must not exceed the remaining period of the open season in which it was issued and only applies to the times specified in the notice. New sections 58J, 58K and 58L make it an offence to contravene a banning notice, provided an authorised officer or member of the police force has directed the person in contravention of a banning notice to leave the specified hunting area (such direction to be reasonable in all the circumstances), and attach a penalty to a refusal or failure to comply with such a direction. Under section 58C(3) a banning notice must not be issued unless the authorised officer or police member believes on reasonable grounds that either the banning notice will be effective to prevent or deter the continuation of or commission of further specified offences or that the continuation of the offence will risk the safety of any person or will hinder or obstruct lawful hunting. New part VIIA also empowers a court to make an order excluding a person from a specified hunting area if the court finds the person guilty of a certain specified offence and is satisfied that the order 'may be an effective and reasonable means of preventing the offender from committing a further specified offence'. A penalty is attached to contravention of such an order. The exclusion period specified in the order must not exceed 12 months in length and may only apply to duck hunting seasons and the times specified in the order. New sections 58P and 58Q provide that an authorised officer or member of the police force may direct a person contravening an exclusion order to leave the specified hunting area (such direction must be reasonable in all the circumstances). Refusal or failure to comply with such a direction is subject to penalty. To the extent that the right to freedom of movement may be limited by these provisions, I consider any limitation is reasonable pursuant to s 7(2) of the charter. The purpose of these provisions is to allow authorised timber harvesting under the SFT act, and authorised duck hunting under the Wildlife Act, to occur without hindrance. The provisions also aim to reduce safety risks to persons engaging in timber harvesting and duck hunting, to protestors and authorised officers and police members, and any other persons who may be present. I am of the opinion that restricting access to these areas, providing the measures outlined constitute the most rational, and least restrictive, means of effectively achieving these purposes. Furthermore, I am of the opinion that the exclusion orders under the new part 9B of the SFT act and the new part VIIA of the Wildlife Act constitute the least restrictive measure available for achieving the abovementioned purposes. The scope of the exclusion orders are strictly limited in respect of the area to which they will apply and the maximum duration is 12 months. These orders may only be made by a court following a finding that the person has committed a specified offence and, additionally, where the court is satisfied that an order may be an effective and reasonable means of preventing the commission of a further specified offence. Additionally, in making an exclusion order under either act, a court must take into account the likely effect of the order on the person, which will include consideration of the extent to which the exclusion order infringes their human rights. Freedom of expression and assembly Section 15 of the charter act provides that every person has the right to freedom of expression. Section 15(3)(b) permits limitation of this right as reasonably necessary for the protection of public order and public health. In certain circumstances, the provisions of the bill which restrict access to certain areas may interfere with freedom of expression, in that persons may wish to access those areas for the purpose of protesting. However, these provisions are necessary to reduce significant health and safety risks, both to duck hunters and timber harvesting operators, persons who wish to protest against such activities and authorised officers and police members. Accordingly, I consider that the provisions of the bill constitute permissible limitations on the right to freedom of expression. For the same reasons, I consider that any interference with the right to freedom of assembly under section 16 of the charter act by these provisions of the bill are reasonable and demonstrably justified pursuant to section 7(2) of the charter act. Right to privacy and reputation Section 13 of the charter act provides that a person has the right not to have his or her privacy unlawfully or arbitrarily interfered with and not to have his or her reputation unlawfully attacked. Publication of failure to comply Clause 7 of the bill inserts several new provisions into the SFT act relating to the monitoring and enforcement of undertakings entered into by the secretary and a person who has carried out unauthorised timber operations. New section 83B permits the secretary to publicise the failure of a person to comply with the enforcement process for an undertaking. The secretary may only make such a publication where a person has failed to comply with an order of the Magistrates Court made for the purpose of ensuring compliance with an undertaking, and has subsequently failed to respond to a written notice. The secretary may also publicise a person's failure to comply with an undertaking where that person is found in contempt of court for failing to comply with an order of the Magistrates Court. The publication of a person's failure to comply with a notice following their contravention of an undertaking may negatively affect that person's reputation. However, I consider that any interference with the right to reputation by new section 83B is lawful. The bill sets out precise and reasonable circumstances in which publication of this information may occur. Publication of this information will only occur after a person has refused to comply with both the original undertaking and a subsequent order of the Magistrates Court. In this regard, the publication of a person's failure to comply with the enforcement process constitutes a measure of last resort to encourage compliance. Publication also promotes transparency and accountability in relation to undertakings more broadly. Register of undertakings Clause 7 inserts a new section 83C into the SFT act, which requires the secretary to maintain a register of undertakings entered into with persons who have carried out unauthorised timber operations. Any person may inspect the register of
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undertakings at any reasonable time without charge. In my view, this does not limit the right to privacy as it is neither unlawful nor arbitrary. A person who voluntarily enters into an undertaking with the secretary would do so on the basis that they are subject to the enforcement process in new section 83B and therefore would expect the details of such undertakings to be publicly available. Further, public availability promotes transparency and accountability in relation to undertakings more broadly. Information sharing Clause 23 of the bill inserts a new section 58R into the Wildlife Act, which provides that the secretary and members of the police force may share information concerning the issuing of a banning notice or an exclusion order under the Wildlife Act. The information which may be disclosed includes the fact of, and details of, a banning notice or exclusion order, and information which the secretary or police member thinks fit to share for the purposes of the effective and efficient enforcement of the notice or order. The information shared under this section is likely to include private information. I consider that new section 58R does not interfere with the right to privacy in a manner which is unlawful or arbitrary. The section strictly limits the permitted disclosure to information which is directly related to the effective monitoring of compliance and enforcement of the relevant banning notice or exclusion order. Further, any information disclosed under this provision is subject to the protections in the Information Privacy Act 2000. Requirement to provide name and address Clause 24 inserts a new subsection into section 61 of the Wildlife Act, which requires a person to provide their name and residential address to an authorised officer or police member who intends to issue a banning notice to that person. In my opinion, clause 24 does not limit the right to privacy because any interference is lawful and not arbitrary. The disclosure of any private information under clause 24 is specifically authorised as a necessary component to giving effect to banning notices, and such information can only be required of a person whom an authorised officer suspects on reasonable grounds has committed or is committing a specified offence. Right to property Section 20 of the charter act provides that a person must not be deprived of his or her property other than in accordance with law. A deprivation of property is in accordance with the law when the deprivation occurs under powers conferred by legislation which is formulated precisely and will not operate in an arbitrary manner. The bill contains several sections which may engage the right to property. Clause 8 of the bill amends section 88(1) of the SFT act, which concerns the power of authorised officers to seize items. The SFT act currently empowers authorised officers to seize items used in the commission of an offence. The effect of clause 8 is to extend this power to include the seizure of items in circumstances where a person 'is about to commit' an offence using that item. Clauses 9 and 10 of the bill set out the procedure for the return of certain items that fall into a defined category of 'prohibited things'. Except in certain specified circumstances in new section 89A(4) of the act, a prohibited thing must not be returned after it is seized, and is instead forfeited to the Crown under the provisions set out in clauses 11 and 12 of the bill. These provisions do not infringe the right to property because the deprivation of property, if any, is provided for by law of sufficient clarity and is not arbitrary. An item may only be seized in circumstances where the item is connected to the past, current or pending commission of an offence, and with the exception of prohibited things, a person who is subsequently not convicted of an offence relating to the seized item is entitled to have that item returned. The excluded category of 'prohibited things' only applies to a specified and strictly limited set of items that may readily be used in activities that have the potential to cause a significant safety, security or environmental risk (namely, boltcutters, cement or mortar mix, metal or timber frames, steel chains and shackles or joining clips). Moreover, the bill contains safeguards to ensure that any deprivation of property is not arbitrary, including the requirement that the person is provided with a written receipt for any item seized and is informed of their right (if any) to have the item returned. Conclusion For the reasons given in this statement, I consider the bill is compatible with the Charter of Human Rights and Responsibilities Act 2006. The Hon. Peter Walsh, MLA Minister for Agriculture and Food Security