Hansard debates

                      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