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2019

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

THE SENATE

inspector-general of Live animal exports bill 2019

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Agriculture,

Senator the Hon. Bridget McKenzie)

 



CONTENTS

GENERAL OUTLINE .. 2

FINANCIAL IMPACT STATEMENT .. 3

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS . 3

GLOSSARY .. 4

NOTES ON CLAUSES . 5

PART 1—PRELIMINARY .. 5

PART 2—ESTABLISHMENT AND FUNCTIONS AND POWERS OF THE INSPECTOR-GENERAL OF LIVE ANIMAL EXPORTS . 9

PART 3—ADMINISTRATIVE PROVISIONS . 11

PART 4—INFORMATION MANAGEMENT .. 15

PART 5—COMPLIANCE AND ENFORCEMENT .. 19

PART 6—MISCELLANEOUS . 22

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS . 25

 

 



 

INSPECTOR-GENERAL OF LIVE ANIMAL EXPORTS BILL 2019

GENERAL OUTLINE

The Inspector-General of Live Animal Exports Bill 2019 (the Bill) will establish the role of an independent Inspector-General of Live Animal Exports (Inspector-General) to oversee the regulator of live-stock exports: the Department of Agriculture (the Department). The purpose of the Bill is twofold. First, to promote continual improvements in the regulatory practice, performance and culture of the Department’s function as the authority responsible for the administration and operation of the export regulatory system as it applies to the export of live-stock from Australia. Second, to provide an additional layer of accountability and assurance over the regulation of Australia’s live-stock exports. The Inspector-General’s role will increase transparency and provide assurance to the community, trading partners and industry that the live-stock export regulatory system is functioning as intended by Government.

The need for increased assurance over the live-stock export regulatory system was highlighted in the months following the release of footage showing the conditions experienced by sheep and unacceptable mortality rates during a voyage of the Awassi Express to the Middle East in August 2017.

In response to Australian community concerns about animal welfare during live-stock export shipments, the then Minister for Agriculture and Water Resources commissioned Mr Philip Moss AM to conduct an independent Review of the Regulatory Capability and Culture of the Department of Agriculture and Water Resources in the Regulation of Live Animal Exports (the Moss Review) . The Moss Review recommended changes to improve the capability and performance of the regulator of live-stock exports as a means of providing assurance of the welfare of live-stock in the export supply chain. 

The Moss Review recommended, among other things, that an independent external entity, known as the Inspector-General, be established to introduce an additional layer of accountability for the regulator. The Inspector-General will be responsible for reviewing and making recommendations relating to the Department’s administration of provisions of both the Export Control Act 1982 (Export Control Act) and the Australian Meat and Live-stock Industry Act 1997 (AMLI Act). Those Acts provide for the functions and powers of officials in relation to live-stock exports. The provisions in the Bill will enable the Inspector-General to examine the effectiveness of the operation of the live-stock export regulatory systems and make recommendations for improvement. The Inspector-General role does not include reviewing only a single performance of a function, or a single exercise of a power, by a single live-stock export official. It also does not include the ability to review or assess Government export policies, international trade or market access opportunities.

Under the Bill, the Inspector-General can compel any person (excluding a foreign person or body) to provide information or documents relevant to a review. The ability to require information or documents is crucial to the Inspector-General’s ability to conduct effective reviews. The Bill also authorises a person to use or disclose protected information in reviewing the performance of functions or the exercise of powers under the Bill.

The Inspector-General must prepare reports on any review conducted as well as an annual report. All reports by the Inspector-General must be given to the Minister for Agriculture (Minister) and made public.

The appointment of an Inspector-General by the Minister will enable independence from the regulatory functions of the Department. The Inspector-General will hold office for the period specified in the instrument of appointment, and must not hold office for a total of more than 10 years.

FINANCIAL IMPACT STATEMENT

Funding of $0.45 million per year for four years ($1.8 million in total) has been allocated for the Inspector-General. Funding commenced in 2018-19.

The Inspector-General’s salary will be determined by the Remuneration Tribunal.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

The full statement of compatibility with human rights is attached to this Explanatory Memorandum.



GLOSSARY

AI Act

Acts Interpretation Act 1901

AMLI Act

Australian Meat and Live-stock Industry Act 1997

Privacy Principles

Australian Privacy Principles

the Bill

Inspector-General of Live Animal Exports Bill 2019

Biosecurity Act

Biosecurity Act 2015

Crimes Act

Crimes Act 1914

Criminal Code

Schedule 1 to the Criminal Code Act 1995

the Department

the Department administered by the Minister administering the Inspector-General of Live Animal Exports Bill 201 9

Export Control Act

Export Control Act 1982

Guide to Framing Commonwealth Offences

the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers published by the Attorney-General’s Department

Inspector-General

Inspector-General of Live Animal Exports

Legislation Act

Legislation Act 2003

the Minister

the Minister administering the Inspector-General of Live Animal Exports Bill 201 9

Privacy Act

Privacy Act 1988

PGPA Act

Public Governance, Performance and Accountability Act 2013

Remuneration Tribunal

the Remuneration Tribunal established by section 4 of the Remuneration Tribunal Act 1973

Regulatory Powers Act

Regulatory Powers (Standard Provisions) Act 2014

the Secretary

the Secretary of the Department administered by the Minister administering the Inspector-General of Live Animal Exports Bill 2019



 

NOTES ON CLAUSES

PART 1—PRELIMINARY

Clause 1              Short Title

Clause 1 provides that the Inspector-General of Live Animal Exports Bill 2019, once enacted, will be cited as the Inspector -General of Live Animal Exports Act 2019 .

Clause 2              Commencement

Subclause 2(1) will provide that each provision of the Bill specified in column 1 of the table that is set out in subclause 2(1), will commence, or will be taken to have commenced, in accordance with column 2 of that table. Any other statement in column 2 will have effect according to its terms.

Item 1 of the table in subclause 2(1) will provide that the Bill commences on the day after it receives Royal Assent.

Subclause 2(2) will provide that any information in column 3 of the table that is set out in subclause 2(1) will not be part of the Bill. Information will be able to be inserted in this column, or information in it will be able to be edited, in any published version of the Bill. 

Clause 3              Objects of this Act

Clause 3 will provide that the objects of the Bill are to:

(a)     promote continual improvements in the regulatory practice, performance and culture of the Department in its role as the regulator of Australia’s live-stock exports; and

(b)     provide an additional layer of accountability and assurance over the regulation of Australia’s live-stock exports.

Clause 4              Simplified outline of this Act

Clause 4 will create a simplified outline of the Bill. This includes the establishment of the office of the Inspector-General of Live Animal Exports and sets out the Inspector-General’s functions and powers and deals with other matters relating to the role of the Inspector-General.

The simplified outline is included to assist readers to understand the substantive provisions of the Bill, the outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions.

Clause 5              Definitions

Clause 5 will provide for key terms that are used throughout the Bill. These definitions are set out below.

Australian law

This definition will provide that ‘Australian law’ means a law of the Commonwealth, or of a State or Territory. The definition will be relevant to the definition of ‘Australian national’ and clause 27 of the Bill (which will deal with authorisation to use or disclose protected information if required by another Australian law).

Australian national

This definition will provide that an ‘Australian national’ means an Australian citizen or a body corporate established under an Australian law. The definition will be relevant to the definition of ‘foreign person or body’, which will be a concept used in subclause 7(2) of the Bill.

Australian resident

This definition will provide that an ‘Australian resident’ means an individual who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law; or a body corporate that has its principal place of business in Australia. The definition will be relevant to the definition of ‘foreign person or body’, which will be a concept used in subclause 7(2) of the Bill.

civil penalty provision

This definition will provide that ‘civil penalty provision’ has the same meaning as in the Regulatory Powers Act.

Civil penalty provisions can be applied to a variety of contraventions of the Bill, and have been included in addition to criminal offences with the intention of providing flexibility to take action where non-compliance has been identified. The Secretary may apply to a relevant court for a civil penalty order where a person contravenes a civil penalty provision.

enforcement body

This definition will provide that ‘enforcement body’ has the same meaning as in the Privacy Act, which includes, for example, the Australian Federal Police and the police forces of a State or Territory.

The term will be relevant to clause 26 of the Bill, which will provide a specific ground for a person to use or disclose protected information to an enforcement body for the purposes of an enforcement related activity.

enforcement related activity

This definition will provide that ‘enforcement related activity’ has the same meaning as in the Privacy Act.

The term will be relevant to clause 26 of the Bill, which will provide a specific ground for a person to use or disclose protected information to an enforcement body for the purposes of an enforcement related activity.

foreign person or body

This definition will provide that a ‘foreign person or body’ means an individual who is not an Australian national or an Australian resident; a body corporate that is not an Australian national or an Australian resident; and a body politic of a foreign country. The definition will be relevant to subclause 7(2) of the Bill which will deal with the application of the Bill outside Australia.

Inspector-General

This definition will provide that the ‘Inspector-General’ means the Inspector-General of Live Animal Exports referred to in clause 9 of the Bill.

live-stock

This definition will provide that ‘live-stock’ has the same meaning as in the AMLI Act. Currently this includes cattle, calves, sheep, lambs, goats or other animals prescribed for the purposes of this definition.

live-stock export official

This definition will provide that a ‘live-stock export official’ is:

(a)     an authorised officer within the meaning of the AMLI Act;

(b)    an authorised officer within the meaning of the Export Control Act;

(c)     an accredited veterinarian within the meaning of the Export Control Act; or

(d)    the Secretary or a delegate of the Secretary.

This definition seeks to include all persons authorised or delegated to perform functions or exercise powers that relate to the export of live-stock under this legislation.  

The term will be relevant to clause 10 of the Bill. Clause 10 will be the principal clause of the Bill: it enables the Inspector-General to review the performance of functions, or exercise of powers, by live-stock export officials in relation to the export of live-stock under the following:

(a)     Part 2 of the AMLI Act or an instrument made for the purposes of that Part;

(b)    the Export Control Act or an instrument made under that Act.

paid work

This definition will provide that ‘paid work’ means work for financial gain or reward (whether as an employee, a self-employed person or otherwise).

The term will be relevant to clause 19 of the Bill, which will provide the circumstances in which the Inspector-General may engage in other paid work.

protected information

This definition will provide that ‘protected information’ means information obtained under, or in accordance with, the Bill. The term will be used in Part 4 of the Bill in relation to information management. Protected information may include personal or sensitive information within the meaning of the Privacy Act.

Regulatory Powers Act

This definition will provide that the ‘Regulatory Powers Act’ means the Regulatory Powers (Standard Provisions) Act 2014 . This term will be used in Part 5 of the Bill in relation to compliance and enforcement. The Bill will adopt the Regulatory Powers Act, with some modification, to avoid duplicating standard provisions enabling the imposition of a civil penalty.

rules

This definition will provide that ‘rules’ means rules made by the Minister under clause 41 of the Bill.

Clause 41 of the Bill will provide that the Minister may, by legislative instrument, make rules prescribing matters required or permitted by the Bill to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Bill. The rules will be a legislative instrument for the purposes of the Legislation Act.

Secretary

This definition will provide that ‘Secretary’ means the Secretary of the Department.

use

This definition will provide that ‘use’, in relation to information, includes making a record of something. This is intended to expand the ordinary meaning of use and is not an exhaustive definition.

Clause 6              Act binds the Crown

Clause 6 will provide that the Bill will bind the Crown in each of its capacities, but will not make the Crown liable to be prosecuted for an offence, or be subject to civil proceedings for a civil penalty order under Part 4 of the Regulatory Powers Act.

This will mean that the Commonwealth and State and Territory governments will be bound to comply with the provisions of the Bill, but they cannot be prosecuted for an offence or be subject to a civil penalty.

Clause 7              Application of this Act

Subclause 7(1) will provide that the Bill applies both within and outside Australia.

The geographical reach of the Bill will be very wide, reflecting the geographical application of live-stock export laws. This is to ensure that the Inspector-General can examine all relevant matters, whether or not they occurred in Australian territory.

However, subclause 7(2) will limit the application of the offence and civil penalty provision in the Bill such that the following clauses will not apply to a foreign person or body outside Australia:

·          clause 11, which will provide that the Inspector-General may require information etc. for review;

·          clause 31, which will create a fault-based offence for any unauthorised use or disclosure of protected information;

·          clause 34, which will create a civil penalty provision for providing false or misleading information;

·          clause 35 , which will create a civil penalty provision for providing false or misleading documents.

This will mean that those offence and civil penalty provisions will only apply to Australian nationals outside Australia.

PART 2—ESTABLISHMENT AND FUNCTIONS AND POWERS OF THE INSPECTOR-GENERAL OF LIVE ANIMAL EXPORTS

Clause 8              Simplified outline of this Part

Clause 8 will provide a simplified outline of this Part. Part 2 establishes the office of the Inspector-General of Live Animal Exports and sets out the Inspector-General’s functions and powers.

The simplified outline is included to assist readers to understand the substantive provisions of the Part, the outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions.

Clause 9              Inspector-General of Live Animal Exports

Clause 9 will provide that there is to be an Inspector-General of Live Animal Exports. The Inspector-General will be a statutory office holder independent from the Secretary and the Department.

For the purposes of the finance law (within the meaning of the PGPA Act), the Inspector-General is intended to be an official of the Department and is subject to the duties, functions and powers of an official under the PGPA Act.

Clause 10            Inspector-General may conduct reviews

Clause 10 is the principal provision of the Bill.

Subclause 10(1) enables the Inspector-General to review the performance of functions, or exercise of powers, by live-stock export officials in relation to the export of live-stock under:

(a)            Part 2 of the AMLI Act or an instrument made for the purposes of that Part (for example, the Australian Meat and Live-stock Industry (Export Licensing) Regulations 1998 ;

(b)           the Export Control Act or an instrument made under that Act (for example, the Export Control (Animal) Orders 2004 ).

The review powers will contribute to Australia's live-stock export regulatory systems by providing for an independent review of the performance of functions and exercise of powers by live-stock export officials. The scope of the role will enable the Inspector-General to examine the effectiveness of the operation of the live-stock export regulatory systems, identify shortcomings and make recommendations for improvement. It is intended that any issue or recommendation by the Inspector-General will be considered by the regulator and Government with a view to making necessary improvements to the live-stock export regulatory system as well as to provide an assurance framework for stakeholders of the system. This will ensure that Australia's live-stock export regulatory system maintains its integrity and continues to improve into the future.

Subclause 10(2) will provide that a review cannot be conducted into the single performance of a function, or a single exercise of a power by a single live-stock export official. This is to ensure that the scope of the review is focussed on the effectiveness of the regulation of the live-stock export regulatory system as a whole, not the performance of an individual.

It is intended that reviews will be high-level and may concern either the whole or specific parts of the live-stock export regulatory system. The limitation that a review cannot be conducted into the single performance of a function, or a single exercise of a power by a single live-stock official does not prevent the Inspector-General requiring a person to give information or documents under clause 11 of the Bill about a single performance of a function or single exercise of a power, as long as the review for which the information or document was sought relates to a broader review.

This approach is necessary as a person may have information relating to a particular performance of a function or a particular exercise of a power, and not performance of functions, or exercise of powers, more generally. Clause 37 of the Bill will authorise the Inspector-General to report evidence that is gleaned during the course of a review in relation to misconduct by a live-stock export official, if the Inspector-General forms an opinion that the official has engaged in misconduct.

Subclause 10(3) will provide that the Inspector-General must publish a report on each review he or she conducts under this clause. To ensure transparency, the Inspector-General is required to make reports on reviews publicly available.

Subclause 10(4) will provide that the rules may make provision for the conduct of reviews and the content of reports. A rule making power will be set out in clause 41 of the Bill. This enables the Minister to prescribe any additional requirements relating to the conduct of reviews and the content of reports.  

Clause 11                      Inspector-General may require information etc. for review

Clause 11 will provide the Inspector-General with the power to require a person to answer questions or provide documentation if the Inspector-General reasonably believes that the person has information or documents relevant to a review under clause 10 of the Bill.

The Inspector-General may, by written notice, require the person to:

·          answer questions, or give information in writing, about the relevant information or documents by the time specified in the notice; or

·          produce the documents to the Inspector-General by the time specified in the notice.

The time specified in the notice must be a minimum of 14 days after the notice is given, to allow the person adequate time to answer questions, give information or provide documents.

Subclause (3) will provide that a person who contravenes a requirement to answer questions, give information or produce documents under subclause (1) is liable to a civil penalty. The maximum penalty for contravention is 240 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 34 and 35 of this Bill contain offences and civil penalties for providing false or misleading information or documents.

The level of penalty will encourage persons to take care that the answer, information and documents they provide are accurate and are not misleading due to the omission of a material particular.

The penalties are designed to encourage persons to provide correct documents and not to provide documents in compliance or purported compliance with subclause 11(3) of the Bill when the person knows that the document is false or misleading. Providing false or misleading documents may result in the Inspector-General acting on the documents in a particular way in a situation where, had the document not been false or misleading, the Inspector-General would have acted differently. Conduct that contravenes this requirement may undermine the integrity of the review process provided for by the Bill.

Under subclause (4), the Inspector-General may make copies of, or take extracts from any document that has been produced, and may remove the document from the place where it was produced in order to make copies or take extracts.

These information gathering powers ensure that the Inspector-General has access to the necessary information to appropriately review processes within the live-stock export regulatory system (through the performance of functions or exercise of powers under this Bill) to allow for monitoring and reporting on the performance of the regulators role in the export of live-stock from Australia.  

PART 3—ADMINISTRATIVE PROVISIONS

Clause 12            Simplified outline of this Part

Clause 12 will provide a simplified outline of Part 3 of the Bill which deals with administrative matters relating to the office of the Inspector-General, including the appointment of the Inspector-General and the terms and conditions on which the Inspector-General holds office.

The simplified outline is included to assist readers to understand the substantive provisions of the Part, the outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions.

Clause 13            Appointment

Subclause 13(1) will provide that the Inspector-General is to be appointed by the Minister by written instrument. The note to this subclause will make it clear that the Inspector-General can be reappointed, subject to subclause 15(2) of this Bill and section 33AA of the AI Act.

Subclause 13(2) will provide that the Inspector-General may be appointed on a full-time or part-time basis.

The appointment of an independent person to the position of Inspector-General and the subsequent performance of functions and the exercise of powers in relation to live-stock export officials (such as the discretion to commence reviews, under clause 10 of the Bill) will ensure that reviews by the Inspector-General are conducted independently of the regulatory functions of the department.

Clause 14            Acting Appointments

Clause 14 will enable the Minister to appoint, by written instrument, a person to act as the Inspector-General during a vacancy in the office of the Inspector-General (whether or not an appointment has previously been made to the office).

Clause 14 will also enable a person to be appointed to act as the Inspector-General during any, or all periods when the Inspector-General is:

·          absent from duty;

·          absent from Australia; or

·          is unable, for any reason, to perform the duties of the office.

A note following clause 14 refers the reader to sections 33AB and 33A of the AI Act in relation to rules that apply to acting appointments.

Clause 15            Term of office

Clause 15 will provide that the Inspector-General holds office for the period specified in the instrument of appointment, up to a maximum of five years. The Inspector-General must not hold office for a total of more than ten years.

Limitations on appointments are common in similar legislation to ensure that there is appropriate retention of personnel and that the independence of the position is maintained.

Clause 16                      Application of finance law

Clause 16 will provide that for the purposes of the finance law (within the meaning of the PGPA Act), the Inspector-General is an official of the Department. This will mean that, as an official, the Inspector-General will be required to exercise due care and diligence; act honestly, in good faith and for a proper purpose; not improperly use his or her position or information; and to disclose any material personal interest that relates to the affairs of the Inspector-General. These duties are set out in subdivision A of Division 3 of Chapter 2 of the PGPA Act.

Clause 17            Remuneration

Subclause 17(1) will provide that t he remuneration for the Inspector-General is determined by the Remuneration Tribunal. However, if no determination of remuneration by the Tribunal is in operation, the Inspector-General is to be paid the remuneration that is prescribed by a legislative instrument made by the Minister under subclause 17(5) of the Bill.

Subclause 17(2) will provide that the Inspector-General is to be paid the allowances that are prescribed by legislative instrument made by the Minister under subclause 17(5).

Subclause 17(3) will provide that subsections 7(9) and (13) of the Remuneration Tribunal Act 1973 do not apply in relation to the office of the Inspector-General.

Subclause 17(4) will provide that clause 17 will have effect subject to the Remuneration Tribunal Act 1973 , except as provided by subclause (3).

It is standard practice for remuneration of certain Commonwealth officers to be determined by the Remuneration Tribunal. It is the Tribunal’s role to determine, report on or provide advice about remuneration, including allowances and entitlements.

Subclause 17(5) will provide that the Minister may, by legislative instrument, prescribe:

          (a)     remuneration for the purposes of subclause 17(1); and

          (b)     allowances for the purposes of subclause 17(2).

Clause 18            Leave of absence for full-time Inspector-General

Subclause 18(1) will provide that the Inspector-General has the recreation leave entitlements that are determined by the Remuneration Tribunal where he or she has been appointed on a full-time basis.

Subclause 18(2) will also enable the Minister to grant the Inspector-General, who has been appointed on a full-time basis, leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

Clause 19            Engaging in other paid work

Full-time Inspector-General

Subclause 19(1) will provide that where the Inspector-General is appointed on a full-time basis, he or she must not engage in paid work outside the duties of his or her office without the Minister’s approval. This is to manage any conflicts of interest that may arise in relation to the outside interests and the Inspector-General’s functions.

Where the Inspector-General engages in paid employment without the approval of the Minister, the Minister may terminate the Inspector-General’s appointment pursuant to paragraph 22(2)(c) of the Bill.



 

Part-time Inspector-General

Subclause 19(2) will provide that where the Inspector-General is appointed on a part-time basis, the Inspector-General must not engage in paid employment that conflicts or may conflict with the proper performance of his or her duties. This clause recognises that the Inspector-General may engage in additional paid employment when appointed on a part-time basis, but that the additional paid employment must not compromise the role of the Inspector-General.

As with subclause 19(1), where the Inspector-General engages in paid employment that, in the Minister’s opinion, conflicts with the Inspector-General’s performance of his or her duties, the Minister may terminate the Inspector-General’s appointment pursuant to paragraph 22(2)(d) of the Bill.

Clause 20            Other terms and conditions

Clause 20 will provide that the Inspector-General holds office on terms and conditions (if any) in relation to matters not covered by this Bill that are determined by the Minister. These terms may, for example, specify the availability of secretariat and support staff.

Clause 21            Resignation

Subclause 21(1) will provide that the Inspector-General may resign by giving the Minister a written resignation.

Subclause 21(2) will provide that the resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

Clause 22            Termination of appointment

Clause 22 will provide the grounds on which the Minister may terminate the appointment of the Inspector-General. It is crucial that the Minister will be able to terminate the appointment of an Inspector-General who is not, or cannot, properly perform his or her duties, particularly given the importance of the Inspector-General’s role.

Subclause 22(1) will provide that the Minister may terminate the appointment of the Inspector-General for misbehaviour or if the Inspector-General is unable to perform his or her duties because of physical or mental incapacity.

Subclause 22(2) will provide other grounds on which the Minister may terminate the appointment of the Inspector-General. This will include if the Inspector-General fails, without reasonable excuse, to comply with section 29 of the PGPA Act (which deals with the duty to disclose interests) or rules made for the purposes of that section.

The grounds for the termination of the appointment of the Inspector-General are similar to terminating the appointment of other statutory office holders such as the Inspector-General of Biosecurity.

PART 4—INFORMATION MANAGEMENT

Clause 23            Simplified outline of this Part

Clause 23 will provide a simplified outline of Part 4 of the Bill. Part 4 will provide for matters in relation to the confidentiality of information (which will be referred to in the Bill as protected information). The Part will include matters such as when information obtained under or in accordance with the Bill may be used or disclosed; and will create offences for unauthorised use or disclosure.

The simplified outline is included to assist readers to understand the substantive provisions of the Part, the outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions.

Clause 24            Authorisation to use or disclose protected information in performing functions or exercising powers under this Act

Clause 24 will provide that a person who obtains protected information may use or disclose that information in performing functions or duties or exercising powers under the Bill.

For example, clause 24 will enable a person who receives protected information in response to a requirement under clause 11 of the Bill, to use that information for the purposes of conducting a review under clause 10 of the Bill.

Two notes will be included at the end of clause 24. Note 1 will provide that clause 24 will constitute an authorisation for the purposes of the Privacy Act and other laws (including the common law) and therefore will provide an exception to the Privacy Principles. It will also protect the person who uses or discloses the information from committing an offence under clause 31 of the Bill.

Note 2 to clause 24 will refer the reader to the definition of use in clause 5 of the Bill, which will provide that the term use, in relation to information, includes making a record of that information.

Clause 25            Authorisation to use or disclose protected information for purposes of proceedings

Clause 25 will provide that a person may disclose protected information to a court, tribunal or coronial inquiry, or when required to do so by an order of a court, tribunal or coroner, for the purposes of proceedings before that court, or tribunal or for the purposes of a coronial inquiry.

A note at the end of clause 25 advises the reader that clause 25 will constitute an authorisation for the purposes of the Privacy Act and other laws (including the common law) and therefore will provide an exception to the Privacy Principles. It will also protect the person who uses or discloses the information from committing an offence under clause 31 of the Bill.

Clause 26            Authorisation to use or disclose protected information for purposes of enforcement related activity

Clause 26 will provide a specific ground for a person to use or disclose protected information for the purposes of enforcement related activities. Subclause 26(1) will provide that if the person reasonably believes that the use or disclosure will be reasonably necessary for, or directly related to, one or more enforcement related activities being conducted by, or on behalf of, that enforcement body, then they will be authorised to use or disclose that information to that enforcement body.

For example, a person who receives protected information may disclose the information to the Australian Federal Police if the person reasonably believes that it is reasonably necessary to do so for an investigation. The requirement for the person to have “reasonable belief” that the use or disclosure is reasonably necessary for, or directly related to, one or more enforcement related activities, will be an appropriate threshold test to ensure that information is protected while at the same time accessible for enforcement related activities. A reasonable belief will require both a subjective and an objective element.

A note will be included at the end of subclause 26(1) that will advise the reader that subclause 26(1) will constitute an authorisation for the purposes of the Privacy Act and other laws (including the common law) and therefore will provide an exception to the Privacy Principles. It will also protect the person who uses or discloses the information from committing an offence under clause 31 of the Bill.

Subclause 26(2) will provide that an enforcement body that receives protected information under subclause 26(1) may use or disclose the protected information for the purposes of conducting one or more enforcement related activities. In the example above, the Australian Federal Police will be able to use the information received for the purposes of investigating the offence.

A note will be included at the end of subclause 26(2) that will advise the reader that subclause 26(2) will constitute an authorisation for the purposes of the Privacy Act and other laws (including the common law) and therefore will provide an exception to the Privacy Principles. It will also protect the person who uses or discloses the information from committing an offence under clause 31 of the Bill.

Clause 27            Authorisation to use or disclose protected information if required by another Australian law

Clause 27 will provide that a person who obtains protected information may use or disclose the protected information when required to do so under an Australian law other than the Bill. For example, a person who obtains protected information under the Bill may be required to disclose the information under the Biosecurity Act.

A note will be included at the end of clause 27 that will advise the reader that clause 27 will constitute an authorisation for the purposes of the Privacy Act and other laws (including the common law) and therefore will provide an exception to the Privacy Principles. It will also protect the person who uses or discloses the information from committing an offence under clause 31 of the Bill.

Clause 28            Authorisation to disclose protected information to person to whom information relates, or to use or disclose protected information with consent

Subclause 28(1) will enable a person who obtains protected information to disclose protected information to the person to whom the information relates. This provision will remove any doubt that such a disclosure is authorised and is not prevented by the disclosure regime that will be set out in the Bill.

A note will be included at the end of subclause 28(1) that will advise the reader that subclause 28(1) will constitute an authorisation for the purposes of the Privacy Act and other laws (including the common law) and therefore will provide an exception to the Privacy Principles. It will also protect the person who uses or discloses the information from committing an offence under clause 31 of the Bill.

Subclause 28(2) will enable a person (the first person) who obtained the protected information to use or disclose the information if the person to whom the information relates expressly consents to the first person using or disclosing the information. This provision will remove any doubt that such a disclosure is authorised and is not prevented by the disclosure regime that will be set out in the Bill.

A note will be included at the end of subclause 28(2) that will advise the reader that subclause 28(2) will constitute an authorisation for the purposes of the Privacy Act and other laws (including the common law) and therefore will provide an exception to the Privacy Principles. It will also protect the person who uses or discloses the information from committing an offence under clause 31 of the Bill.

Clause 29            Authorisation to disclose protected information to person who provided information

Clause 29 will enable a person to disclose protected information to the person who provided the information. This provision will remove any doubt that such a disclosure is authorised and is not prevented by the disclosure regime that will be set out in the Bill.

A note will be included at the end of clause 29 that will advise the reader that clause 29 will constitute an authorisation for the purposes of the Privacy Act and other laws (including the common law) and therefore will provide an exception to the Privacy Principles. It will also protect the person who uses or discloses the information from committing an offence under clause 31 of the Bill.

Clause 30            Rules may authorise use or disclosure of protected information for other purposes

Clause 30 will enable the Minister to make rules under clause 41 of the Bill to authorise a person who obtains protected information to use or disclose that information in situations and for purposes other than those referred to in Part 4 of the Bill.

A note will be included at the end of clause 30 to advise the reader that disclosure that is authorised by rules made for the purposes of clause 30 is an authorised disclosure for the purposes of the Privacy Act and other laws (including the common law).

Enabling the rules to specify when a person may be authorised to use or disclose protected information will enable the Minister to determine when it is appropriate to do so. This also reflects the likelihood that the situations and purposes for which it is appropriate for protected information to be disclosed will change from time to time and will need to commence at short notice.

Rules made under this provision will remove any doubt that a specified use or disclosure is authorised and is not prevented by the disclosure regime that will be set out in the Bill. It will also protect the person who uses the information or makes the disclosure from committing an offence under clause 31 of the Bill.

Clause 31            Unauthorised use or disclosure of protected information

Fault-based offence

Subclause 31 will provide that a penalty may be imposed in circumstances where a person obtains protected information in the course of, or for the purposes of, performing functions or duties or exercising powers under the Bill, the person uses or discloses the information, and the use is not authorised under the Bill.

Subclause 31(1) will provide that a person commits a fault-based offence if:

·          the person obtains protected information in the course of, or for the purposes of, performing functions or duties or exercising powers under the Bill; and

·          the person uses or discloses the information; and

·          the use or disclosure is not authorised by a provision in Part 4 of the Bill or rules made for the purposes of clause 30.

The penalty for contravening subclause 31(1) will be imprisonment for two years or a fine of 120 penalty units (or both). The corresponding fine for a body corporate for a contravention of subclause 31(1) will be 600 penalty units. The level of the penalty is consistent with other similar Commonwealth offences. The penalty is intended to provide an effective deterrent to conduct that may result in the disclosure of protected information in circumstances that are not reasonable, necessary or proportionate. The penalty reflects the serious consequences for unauthorised use or disclosure of protected information.

Clause 31 is intended to provide an effective deterrent to conduct that will be inconsistent with the requirements of not disclosing protected information except when authorised to do so. Conduct that contravenes this requirement may undermine the integrity of the review process provided for by the Bill.

Exception for use or disclosure in good faith

Subclause 31(2) creates a defence to the offence in subclause 31(1), if the use or disclosure of protected information was done in good faith and in purported compliance with Part 4 of the Bill or with rules made for the purposes of clause 30 of the Bill. A note included at the end of subclause 31(2) refers the reader to subsection 13.3(3) of the Criminal Code , and will provide that the defendant will bear the evidential burden in relation to this defence.

PART 5—COMPLIANCE AND ENFORCEMENT

Clause 32            Simplified outline of this Part

Clause 32 will provide a simplified outline of Part 5 of the Bill. Part 5 of the Bill will provide that civil penalty orders may be sought under Part 4 of the Regulatory Powers Act from a relevant court in relation to contraventions of civil penalty provisions of the Bill.

The simplified outline is included to assist readers to understand the substantive provisions of the Part, and is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions.

Clause 33            Civil penalties under Part 4 of the Regulatory Powers Act

Subclause 33(1) will provide that each civil penalty provision of the Bill will be enforceable under Part 4 of the Regulatory Powers Act. A note will be included at the end of subclause 33(1) to advise the reader that Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

This means that the standard provisions in Part 4 of the Regulatory Powers Act will apply in relation to the Bill. In particular, section 85 of the Regulatory Powers Act will apply to the proposed civil penalty provisions in the Bill. Section 85 of the Regulatory Powers Act will provide that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions; for example, they do not carry the possibility of imprisonment.

Authorised applicant

Subclause 33(2) will provide that, for the purposes of Part 4 of the Regulatory Powers Act, the Secretary will be an authorised applicant in relation to the civil penalty provisions of the Bill. For example, under section 82 of the Regulatory Powers Act, an authorised applicant may apply to a relevant court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.

Relevant court

Subclause 33(3) will provide that, for the purposes of Part 4 of the Regulatory Powers Act, each of the following will be a relevant court in relation to the civil penalty provisions referred to in subclause 33(1): the Federal Court, the Federal Circuit Court or a court of a State or Territory that has jurisdiction in relation to matters arising under the Bill.

Application

Subclause 33(4) will provide that Part 4 of the Regulatory Powers Act, as it applies in relation to the civil penalty provisions of the Bill, will apply both within and outside Australia.

Clause 34            Civil penalty provision for false or misleading information

Subclause 34(1) will provide that a person will be liable to a civil penalty if the person gives information (whether by giving an answer to a question or in writing) in compliance or purported compliance with subclause 11(3) of the Bill and the person does so knowing that the information:

·          is false or misleading; or

·          omits any matter or thing without which the answer or information is misleading.

A civil penalty of 240 penalty units will apply in such circumstances. The level of penalty will encourage persons to take care that the information or answer they provide is accurate and not misleading (for example, due to an omission). It also reflects the seriousness of the contravening conduct and the risk that the conduct may pose to the integrity of the export system, or animal life or health.

The penalties are designed to encourage persons to provide correct information and answers. It also seeks to ensure that a person does not include any information in compliance or purported compliance with subclause 11(3) of the Bill that is false or misleading when the person knows that the information or answer is false or misleading.

Providing false or misleading information or answers may result in the Inspector-General acting on the information in a particular way in a situation where, had the information not been false or misleading, the Inspector-General may have acted in a different way. Conduct that contravenes this requirement may undermine the integrity of the review process framework provided for by the Bill.

Subclause 34(2) will provide that subclause 34(1) will not apply as a result of subparagraph 34(1)(b)(i) if the information is not false or misleading in a material particular. A note will be included at the end of subclause 34(2) that will provide that a defendant bears an evidential burden in relation to the matter in this subclause and will refer the reader to section 96 of the Regulatory Powers Act. This will mean that minor errors will not be subject to civil penalty proceedings.

Subclause 34(3) will provide that subclause 34(1) will not apply as a result of subparagraph 34(1)(b)(ii) if the statement did not omit any matter or thing without which the information is misleading in a material particular. A note will be included at the end of subclause 34(2) that will provide that a defendant bears an evidential burden in relation to the matter in this subclause and will refer the reader to section 96 of the Regulatory Powers Act. This will mean that minor errors will not be subject to civil penalty proceedings.

Subclause 34(4) will provide that subclause 34(1) will not apply if, before the information was given by a person to another person (the official ) in compliance or purported compliance with subclause 34(3) of the Bill, the official did not take reasonable steps to inform the person that the person may be liable to a civil penalty for contravening subclause 34(1). A note will be included at the end of subclause 34(4) that will provide that a defendant bears an evidential burden in relation to the matter in this subclause and will refer the reader to section 96 of the Regulatory Powers Act. This will alert the person to the consequences of giving false or misleading information and will apply, for example, when a person is asked to provide information during the course of an audit or inspection.

Subclause 34(5) will provide that for the purposes of subclause 34(4), it will be sufficient if the following form of words is used: “You may be liable to a civil penalty for giving false or misleading information”.

Clause 35                      Civil penalty provision for false or misleading documents

Subclause 35(1) will provide that a person is liable to a civil penalty if the person produces a document to another person and the person does so knowing that the statement is false or misleading. The civil penalty provision will only apply if the document is produced in compliance or purported compliance with subclause 11(3) of the Bill.

A civil penalty of 240 penalty units will apply in such circumstances. The level of penalty will encourage persons to take care that the documents they provide are accurate and are not misleading due to the omission of a material particular.

The penalties are designed to encourage persons to provide correct documents and not to provide documents in compliance or purported compliance with subclause 11(3) of the Bill when the person knows that the document is false or misleading. Providing false or misleading documents may result in the Inspector-General acting on the documents in a particular way in a situation where, had the document not been false or misleading, the Inspector-General would have acted differently. Conduct that contravenes this requirement may undermine the integrity of the review process provided for by the Bill.

Subclause 35(2) will provide that subclause 35(1) will not apply if the document is not false or misleading in a material particular. A note will be included at the end of subclause 35(2) which will provide that a defendant bears an evidential burden in relation to the matter in this subclause and will refer the reader to section 96 of the Regulatory Powers Act. This will mean that minor errors will not be subject to civil penalty proceedings.

Subclause 35(3) will provide that subclause 35(1) will not apply to a person who produces a document if the document is accompanied by a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate:

·          stating that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular; and

·          setting out, or referring to, the material particular in which the document is, to the knowledge of the first-mentioned person, false or misleading.

This will enable a person to disclose that they have become aware of the false or misleading content of a document after the document was provided. This will enable the person to avoid civil penalty proceedings and will be an incentive to provide accurate information, even if that information corrects earlier false information. A note will be included at the end of subclause 35(3) that will provide that a defendant bears an evidential burden in relation to the matter in this subclause and will refer the reader to section 96 of the Regulatory Powers Act. This will mean that minor errors will not be subject to civil penalty proceedings.

PART 6—MISCELLANEOUS

Clause 36            Simplified outline of this Part

Clause 36 will provide a simplified outline of this Part. Part 6 contains miscellaneous provisions dealing with other matters, including additional duties of the Inspector-General, the privilege against self-incrimination, and protection for the Inspector-General and certain other people from civil proceedings.

The simplified outline is included to assist readers to understand the substantive provisions of the Part, the outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions.

Clause 37            Reporting misconduct by live-stock export officials

Clause 37 will provide that if the Inspector-General forms the opinion either before, during or after conducting a review:

·          that a live-stock export official has engaged in misconduct; and

·          that the evidence is of sufficient weight to justify the Inspector-General doing so;

the Inspector-General must report the evidence to:

·          if the live-stock export official is or was the Secretary—the Minister; or

·          otherwise—the Secretary.

Clause 38            Privilege against self-incrimination

Privilege does not apply in relation to clause 11

Subclause 38(1) will provide that a person is not excused from answering a question, providing information, or producing a document under clause 11 of the Bill, on the ground that the answer, the information or the production of the document might tend to incriminate the person or make the person liable to a penalty.

Use/derivative use indemnity applies

However, in such cases, subclause 38(2) will provide a use or derivative use immunity. This means that for an individual (that is, a natural person and not a body corporate):

·          the answer or information given or the document produced; and

·          answering the question, giving the information or producing the document; and

·          any information, document or thing obtained as a direct or indirect consequence of the answering of the question, giving the information or the producing the document;

will not be admissible in evidence against the individual in any criminal or civil proceedings, except proceedings under, or arising out of, section 137.1 or 137.2 of the Criminal Code or clauses 34 or 35 of the Bill (false or misleading information or documents). The exception for proceedings arising under or out of the specified sections of the Criminal Code and clauses of the Bill is intended to provide an effective deterrent to persons who may provide false or misleading information or documents in relation to clause 11 of the Bill.

The effect of subclauses 38(1) and 38(2) will be that an individual must provide the information, but the information cannot be used as evidence against the person nor can information that will be derived from the information be used as evidence against the person. Receiving the correct and complete information will be necessary and appropriate in order to ensure that the review process established by the Bill is not undermined.

The use or derivative use indemnity applies only to individuals, being natural persons, and not to corporations. The judicial reasons for denying privilege to corporations include that corporations are not as vulnerable to the coercive power of the state as individuals, and that the privilege is a human right protecting individual (not corporate) freedom, privacy and dignity. In addition, the complexity of modern corporations and the importance of documentary records to business would make effective regulation (particularly detection of unlawful behaviour) too difficult if corporations were protected by privilege.

Company directors may claim the privilege in their own right where the disclosure would incriminate the officer personally.

Privilege not otherwise affected

Subclause 38(3) will provide that, except as provided for in subclause 38(1), nothing in the Bill affects the right of an individual to refuse to answer a question, give information or produce a document on the ground that the answer, the information or the production of the document might tend to incriminate the individual or make the individual liable to a penalty. This will ensure that the privilege against self-incrimination will not be abrogated except where it will be necessary and appropriate to do so.

Clause 39            Protection from liability

Clause 39 will provide that the Inspector-General and a person acting under the Inspector-General’s authority ( protected persons ) will not be liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of the performance or exercise, in good faith, of the protected person’s functions, powers or duties under or in relation to the Bill.

The clause will enable the protected persons to continue to perform their functions and exercise their powers without being obstructed by challenges to the performance of those functions or the exercise of those powers through civil proceedings for loss, damage or injury. In addition, the provision will provide immunity from civil liability for conduct that may otherwise constitute a tort (for example, damage to property). Persons should be able to perform functions and exercise powers under the Bill without fear of being sued when they act in good faith.

The protection will only be available to a person who acts in good faith and will not be available to a person who acts in bad faith.

Clause 40            Annual report

Clause 40 will provide that the Inspector-General must, as soon as practicable after the end of each financial year, prepare and give to the Minister a report on the activities of the Inspector-General during the financial year.

Subclause (2) will require the Inspector-General to include in each annual report the number of reviews under clause 10 started during the year and the number of reviews under that section completed during the year and may include any other information relating to the Inspector-General’s functions or role that the Inspector-General considers appropriate.

Clause 41   Rules

Subclause 41(1) will provide that the Minister may, by legislative instrument, make rules prescribing matters required or permitted by the Bill to be prescribed by the rules, or necessary or convenient to be prescribed for carrying out or giving effect to the Bill.

This will provide the Minister with the flexibility and discretion to specify matters, processes and circumstances that are not provided for in the Bill. For example, subclause 10(4) of the Bill will enable rules to make provision for or in relation to the process to be followed in conducting a review under clause 10 and the content of reports of such reviews. These matters, processes and circumstances may arise for a range of technical and administrative reasons, and the flexibility allows for matters, processes and circumstances to be prescribed quickly if required.

As the rules are legislative instruments, the Legislation Act will apply to the rules and govern such matters as registration, Parliamentary oversight (disallowance) and sunsetting.

Subclause 41(2) is an avoidance of doubt provision that sets out the limitations on what the rules may deal with. This subclause will provide that the rules may not do the following:

·          create an offence or civil penalty;

·          provide powers of arrest or detention, or entry, search or seizure;

·          impose a tax;

·          set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in the Bill; or

·          directly amend the text of the Bill.

In accordance with Parliamentary oversight requirements, these matters must be either set out in Acts or be authorised by an Act to be in a regulation.



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Inspector-General of Live Animal Exports Bill 2019

The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The Inspector-General of Live Animal Exports Bill 2019 (the Bill) will establish the role of an independent Inspector-General of Live Animal Exports (Inspector-General) to oversee the regulator of live-stock exports: the Department of Agriculture (the Department). The purpose of the Bill is twofold. First, to promote continual improvements in the regulatory practice, performance and culture of the Department’s function as the authority responsible for the administration and operation of the export regulatory system as it applies to the export of live-stock from Australia. Second, to provide an additional layer of accountability and assurance over the regulation of Australia’s live-stock exports. The Inspector-General’s role will increase transparency and provide assurance to the community, trading partners and industry that the live-stock export regulatory system is functioning as intended by Government.

The need for increased assurance over the live-stock export regulatory system was highlighted in the months following the release of footage showing the conditions experienced by sheep and unacceptable mortality rates during a voyage of the Awassi Express to the Middle East in August 2017.

In response to Australian community concerns about animal welfare during live-stock export shipments, the then Minister for Agriculture and Water Resources commissioned Mr Philip Moss AM to conduct an independent Review of the Regulatory Capability and Culture of the Department of Agriculture and Water Resources in the Regulation of Live Animal Exports (the Moss Review). The Moss Review recommended changes to improve the capability and performance of the regulator of live-stock exports as a means of providing assurance of the welfare of live-stock in the export supply chain. 

The Moss Review recommended, among other things, that an independent external entity, known as the Inspector-General, be established to introduce an additional layer of accountability for the regulator. The Inspector-General will be responsible for reviewing and making recommendations relating to the Department’s administration of provisions of both the Export Control Act 1982 (Export Control Act) and the Australian Meat and Live-stock Industry Act 1997 (AMLI Act). Those Acts provide for the functions and powers of officials in relation to live-stock exports. The provisions in the Bill will enable the Inspector-General to examine the effectiveness of the operation of the live-stock export regulatory systems and make recommendations for improvement. The Inspector-General role does not include reviewing only a single performance of a function, or a single exercise of a power, by a single live-stock export official. It also does not include the ability to review or assess Government export policies, international trade or market access opportunities.

 

Under the Bill, the Inspector-General can compel any person to provide information or documents relevant to a review. However, subclause 7(2) will limit the application of the offence and civil penalty provisions in the Bill so that they will not apply to a foreign person or body outside Australia. The ability to require information or documents is crucial to the Inspector-General’s ability to conduct effective reviews. The Bill also authorises a person to use or disclose protected information in reviewing the performance of functions or the exercise of powers under the Bill.

The Inspector-General must prepare reports on any review conducted as well as an annual report. All reports by the Inspector-General must be given to the Minister for Agriculture (Minister) and made public.

The appointment of an Inspector-General by the Minister will enable independence from the regulatory functions of the Department. The Inspector-General will hold office for the period specified in the instrument of appointment, and must not hold office for a total of more than 10 years.

The Bill engages the following human rights:

§   Article 19(2) of the International Covenant on Civil and Political Rights (1980) (ICCPR) - the right to freedom of expression

§   Article 17 of the ICCPR - the right to freedom from interference with privacy, and

§   Article 14(3) of the ICCPR - the right to be free from self-incrimination.

Human rights implications

The right to freedom of expression

Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression including the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his or her choice

Clause 31 (unauthorised use or disclosure of protected information) of the Bill provides that disclosure of protected information to the general public or a broad audience will not be permitted. In undertaking his or her functions, the Inspector-General may be privy to information that could prejudice individuals, companies and Australia’s trading reputation as a whole. On this basis, the offence for contravening clause 31 of the Bill is reasonable, necessary and proportionate, and provides a significant deterrent to misusing protected information by disclosing it to the general public or a broad audience.

The exception for a contravention of this provision is in circumstances where the person was acting in good faith and purported compliance with Part 4 of the Bill.

The right to freedom from interference with privacy

Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual’s privacy, family, home or correspondence, and protects a person’s honour and reputation from unlawful attacks. This right may be subject to permissible limitations where those limitations are provided by law and are non-arbitrary. In order for limitations not to be arbitrary, they must seek to achieve a legitimate objective and be reasonable, necessary and proportionate to this purpose.

Subclauses 10(1) and (3) are necessary to achieve the legitimate aim of conducting an external review to ensure the accountability of the Department, as the power to request information is crucial to the Inspector-General’s ability to review live-stock export regulatory systems. These clauses are reasonable and proportionate to this legitimate aim as they are required to be exercised in compliance with the Privacy Act 1988 , which means that there are additional protections on the use and storage of personal information collected under these clauses. Further, the civil penalty for non-compliance (set out in subclause 11(3) is 240 penalty units) and is in accordance with the Attorney-General’s Department Guide to Framing Commonwealth Offences .

Subclauses 11(1) (persons required to provide information) and 11(3) (civil penalty for failure to comply with requirements of subclause 11(1)) of the Bill provide for the Inspector-General to require persons to provide information relevant to a review and will provide for a civil penalty for persons not complying with the request. The purpose of these powers is to allow the Inspector-General to gain access to information that might be relevant to a review of live-stock export regulatory processes undertaken by the Department. Information relevant to a review under this clause may incidentally require the collection of personal information, engaging with Article 17 of the ICCPR.

The purpose of collecting information that may be personal information is incidental to the Inspector-General’s primary focus of reviewing live-stock export regulatory systems. This purpose, along with the safeguards listed above, ensures that clause 11 operates in a way that is reasonable, proportionate and necessary. This allows the Inspector-General access to all relevant information necessary to review live-stock export regulatory systems and ensure the accountability of the Department. 

Subclause 11(4) will provide for the Inspector-General to make copies of, or take extracts from, documents produced under subclause 11(1). Information relevant to a review may incidentally require the collection of personal information, engaging Article 17 of the ICCPR. The power is necessary to achieve the legitimate purpose of conducting an external review to ensure the accountability of the Department for the reasons outlined above in relation to subclause 11(1). The power is reasonable and proportionate to this purpose as subclause 11(4) is subject to the same protections as subclause 11(1), therefore restricting the release of information obtained.

The power under subclause 11(4) is limited by clause 24 for the purpose of using and disclosing protected information relevant to reviewing live-stock export regulatory systems. This poses a low potential for harm to the individual when balanced against the public interest.

Clause 26 engages with Article 17 of the ICCPR as it authorises the use or disclosure of protected information for the purposes of enforcement related activities. An enforcement body may use or disclose that information in the course of one or more enforcement related activities. Clause 26 of the Bill has been developed to be in accordance with Australian Privacy Principle 6 in the Privacy Act 1988 .

Disclosure to the general public or a broad audience will not be permitted, and may lead to prosecution through clause 31 of the Bill. The limited circumstances in which the protected information will be able to be used or disclosed reflects the sensitive nature of this information.

Also, protected information used or disclosed under clause 24 will be subject to immunity from prosecution under clause 38 (see below).

Accordingly, the powers contained within clauses 11 and 24 are reasonable, necessary, and proportionate to the legitimate purpose of allowing the Inspector-General to obtain all information relevant to the review of live-stock export regulatory systems managed by the Department.

The right to be free from self-incrimination

Article 14(3)(g) of the ICCPR protects the right to be free from self-incrimination in the determination of a criminal charge by providing that a person may not be compelled to testify against him or herself or confess guilt. The common law also recognises the privilege against self-incrimination which applies unless expressly or impliedly overridden by statute. The privilege against self-incrimination may be subject to permissible limits. Any limitations must be for a legitimate objective, and be reasonable, necessary and proportionate to that objective.

The Bill engages Article 14(3)(g) of the ICCPR by expressly removing the privilege against self-incrimination in relation to clause 11 which requires persons to provide information if the Inspector-General has reason to believe it is relevant to a review.

Maintaining the privilege against self-incrimination in relation to individuals who have information or documents that are relevant to the scope of a review, could have significant consequences. Gaining access to information or documents about Australia’s live-stock export system assists in protecting Australia’s strong regulatory framework and the reputation of Australia as a trading nation. Abrogating the privilege against self-incrimination will allow the Inspector-General to access information vital to exposing any potential concerns in the live-stock export system, helping to ensure the effective regulation of live-stock exports into the future.

Whilst in some cases it may be feasible to obtain information by other means (for example, warrants), the additional time taken to obtain such information may reduce the ability of the Inspector-General to make timely recommendations to the Minister. Without these limitations, the Inspector-General’s ability to advise on improvements to processes that regulate live-stock exports through a responsive, evidence-led approach will be significantly reduced. Removal of the privilege ensures that the Inspector-General will be able to gather information from persons with specific knowledge that would aid a review into live-stock export processes, which need to occur as urgently as possible. In some cases only one person may have specific knowledge relevant to a review—further justifying the importance of abrogating the privilege.

The abrogation of privilege against self-incrimination as contained within subclause 11(3) is both reasonable and proportionate due to the protection contained in clause 38. The Bill will provide the person with immunity such that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court (known as ‘use’ immunity) or indirectly to gather other evidence against the person (known as ‘derivative use’ immunity). An exception to this is in relation to proceedings under or arising out of sections 137.1 or 137.2 of the Criminal Code or clauses 34 or 35 of the Bill (false and misleading information and documents). 

Accordingly, the abrogation of the privilege against self-incrimination under proposed clause 38 is reasonable, necessary and proportionate to allow the Inspector-General to obtain all information relevant to the review of live-stock exports activities undertaken by the Department.

Conclusion

The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

(Circulated by authority of the Minister for Agriculture,

Senator the Hon. Bridget McKenzie)