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12 March 1991 - Current

 
GAME MANAGEMENT AUTHORITY BILL 2013
Page 4669
12 December 2013
ASSEMBLY Statement of Compatibility WALSH
                      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