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GAME MANAGEMENT AUTHORITY BILL 2013
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12 December 2013
Statement of Compatibility
WALSH
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GAME MANAGEMENT AUTHORITY 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 Game Management Authority Bill 2013. In my opinion, the Game Management Authority Bill 2013 (the bill), as introduced to the Legislative Assembly, is compatible with human rights as set out in the charter act. I base my opinion on the reasons outlined in this statement. Overview The main purposes of the bill are to establish the Game Management Authority (the authority); amend the Wildlife Act 1975 to enable the authority to perform and exercise relevant functions and powers under that act; and to make consequential and miscellaneous amendments to that act, the Conservation, Forests and Lands Act 1987 and other acts. Human rights issues Right to privacy Section 13(a) of the charter act provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference with privacy will not be unlawful provided it is permitted by law, is certain and is appropriately circumscribed. Section 13(b) further provides that a person has the right not to have his or her reputation unlawfully attacked. The right to privacy is relevant to various provisions in the bill which either require or permit the disclosure of personal information which may otherwise be considered private. However, in my opinion none of these provisions limit the right to privacy, as they do not constitute interferences which are either unlawful or arbitrary. Clause 14 of the bill requires appointed members of the authority to declare any pecuniary interests in matters that are under consideration by the authority, except if the member is engaged in game hunting or game or wildlife management and the relevant pecuniary interest is no greater than that of any other person so engaged. Under clause 11 of the bill, the minister may remove a member from office if the member fails to comply with clause 14. Requiring appointed members to disclose details of relevant pecuniary interests is an important and appropriate means of avoiding potential conflicts of interest that could undermine the integrity of the authority and its operations. The obligation is clear and confined and serves a legitimate purpose; I therefore consider clause 14 to be compatible with the right to privacy. Clause 16 of the bill applies strict confidentiality requirements to members, officers, employees and authorised officers with respect to information about the affairs of others obtained in the exercise of their duties or powers. Clause 16(2) sets out some limited circumstances in which persons are permitted to divulge such information. These circumstances include disclosure that is: considered reasonably necessary for or in connection with the administration of the bill, or to assist in the exercise of a power or performance of a duty or function under the bill; for the purpose of legal proceedings; pursuant to an order of a court or tribunal; to the extent reasonably required for other law enforcement purposes; or with the written authority of the secretary. In my view, these categories of permitted disclosure are clear, appropriate and sufficiently circumscribed so as to be compatible with the right to privacy. Part IX of the Wildlife Act 1975 currently empowers the secretary to authorise 'controlled operations', being operations conducted by law enforcement officers for the purpose of obtaining evidence that may lead to the prosecution of persons for relevant offences. The bill amends various provisions of Part IX so that the authority may also authorise controlled operations. Clause 55 of the bill inserts a new subsection 74B(3) into the Wildlife Act 1975, which sets out the required form and content of an authority for a controlled operation granted by the authority. As well as including information such as the identity of the officers to be involved in the operation, the nature and details of conduct to be engaged in and so forth, an authority must identify (to the extent known) any suspect to be implicated by the operation. A 'suspect' is defined in section 71 of the Wildlife Act 1975 to include a person reasonably suspected of having committed
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or being likely to have committed (or committing or likely to be committing) a relevant offence. To the extent that the inclusion of information as to the identity of a suspect may interfere with the privacy or reputation of that person, I consider any such interference to be neither unlawful nor arbitrary. It is necessary to disclose details of suspects in order for controlled operations to be appropriately targeted. Strict confidential obligations apply to information obtained by individuals in the course of exercising functions and powers under the bill and other relevant acts. Further, clause 64 provides that annual reports detailing the operations of law enforcement officers, to be prepared by the Victorian Inspectorate (based on information provided to it by the authority as required by clause 63) must not disclose any information that may identify suspects. In my view, any interference with privacy or reputation is therefore lawful and not arbitrary. Clause 63 of the bill inserts a new section 74OA into the Wildlife Act 1975, requiring the authority to submit annual reports to the Victorian Inspectorate in relation to its authorised operations. To the extent that these reports may contain personal information, in my view any interference with privacy is lawful and not arbitrary. It is necessary that the Victorian Inspectorate, as the key oversight body in Victoria's integrity system, is provided with fulsome information about the operations of relevant statutory bodies. Appropriate confidentiality requirements apply to the Victorian Inspectorate with respect to personal information provided to it. 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. The right to property is relevant to, but not limited by, various clauses in the bill. Clauses 37 and 42 of the bill insert new sections 25BA and 28D(1A) into the Wildlife Act 1975, which provide that the authority may suspend a wildlife licence or authorisation it has given in relation to wildlife or game, in certain circumstances. New subsections 25BA(3) and 28D(4) then respectively provide that where a licence or authorisation is so suspended, the custody, care and management of any specified birds or game held under that licence or authorisation must be dealt with in accordance with the directions of the authority. Clauses 40 and 44 insert new sections 25DA and 28F(1A) into the Wildlife Act 1975, which provide that the authority may cancel a wildlife licence or authorisation, in certain circumstances. New subsections 25DA(6) and 25F(6) respectively provide that where a licence or authorisation is so cancelled, any specified birds or game held under that licence or authorisation must be disposed of in accordance with the directions of the authority. To the extent that these provisions may result in the disposal of or effective loss of control over property in accordance with the directions of the authority, any consequential deprivation of property is lawful and therefore compatible with section 20 of the charter act. The circumstances in which specified birds or game may be dealt with in this manner are clear and precise, with holders of relevant licences and authorisations to be given an opportunity to make submissions (to which the authority must have regard). In circumstances where suspension or cancellation has been considered appropriate, it is proper that persons be prevented from or at least confined with respect to the extent to which they may continue to own or deal with the birds or game acquired under the relevant licence or authorisation. Right to be presumed innocent Section 25(1) of the charter act provides that a person charged with a criminal offence has the right to be presumed innocent until proven guilty in accordance with the law. Generally, the burden is on the prosecution to prove all the elements of the offence. Various clauses in the bill provide that in proceedings under the bill or a relevant act, a certificate of the authority or other form of evidence asserting a certain fact is, in the absence of evidence to the contrary, proof of that fact. For example, clause 51 makes such provision in respect of evidence as to the holder of, the conditions attached to, and the premises that relate to a particular licence, authorisation or permit; and clause 71 makes such a provision in respect of evidence that the secretary or the authority was satisfied of the certain facts in order to grant an authority. Clause 25 of the bill applies various sections of the Conservation, Forests and Lands Act 1987, which contain similar such provisions. By requiring a person to provide evidence to the contrary of the asserted fact, these clauses impose an evidential onus on accused persons in relevant offence proceedings, thus displacing to some extent the onus on the prosecution. Courts in other jurisdictions have generally taken the approach that an evidential onus on an accused does not limit the presumption of innocence. Further, it is appropriate that a defendant point to evidence to suggest that evidence such as certificates and statements under the seal of the authority, and certified copies of instruments, are incorrect, and it is both reasonable and in the interests of efficiency to rely on such documents in the absence of evidence to suggest otherwise. Consequently, even if these clauses are considered to limit the right to be presumed innocent through imposing an evidential onus upon defendants, they would be reasonable and justified under s 7(2) of the charter act. The Hon. Peter Walsh, MLA Minister for Agriculture and Food Security