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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
1
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.
2
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.
3
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 administered by the Minister administering the
the Department
Inspector-General of Live Animal Exports Bill 2019
Export Control Act Export Control Act 1982
the Guide to Framing Commonwealth Offences, Infringement Notices
Guide to Framing
and Enforcement Powers published by the
Commonwealth Offences
Attorney-General's Department
Inspector-General Inspector-General of Live Animal Exports
Legislation Act Legislation Act 2003
the Minister administering the Inspector-General of Live Animal
the Minister
Exports Bill 2019
Privacy Act Privacy Act 1988
PGPA Act Public Governance, Performance and Accountability Act 2013
the Remuneration Tribunal established by section 4 of the
Remuneration Tribunal
Remuneration Tribunal Act 1973
Regulatory Powers Act Regulatory Powers (Standard Provisions) Act 2014
the Secretary of the Department administered by the Minister
the Secretary
administering the Inspector-General of Live Animal Exports Bill 2019
4
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.
5
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.
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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.
7
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.
8
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;
9
(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.
10
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.
11
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.
12
Clause 17 Remuneration
Subclause 17(1) will provide that the 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.
13
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.
14
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.
15
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.
16
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).
17
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.
18
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.
19
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.
20
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.
21
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
22
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.
23
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.
24
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.
25
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.
26
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.
27
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).
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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)
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