Thursday, 31 October 2024

Agriculture and Food Safety Legislation Amendment Bill 2024

Introduction and first reading

The DEPUTY PRESIDENT (21:31): I have received the following message from the Legislative Assembly:

The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Dairy Act 2000, the Food Act 1984, the Meat Industry Act 1993 and the Seafood Safety Act 2003 and for other purposes.’

Harriet SHING (Eastern Victoria – Minister for Housing, Minister for Water, Minister for Equality) (21:32): I move:

That the bill be now read a first time.

Motion agreed to.

Read first time.

Harriet SHING: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

Statement of compatibility

Harriet SHING (Eastern Victoria – Minister for Housing, Minister for Water, Minister for Equality) (21:32): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Agriculture and Food Safety Legislation Amendment Bill 2024 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Council, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The Bill seeks to:

• Amend the Dairy Act 2000 (the Dairy Act) to create offences relating to the sale, delivery or provision of raw milk, and to enable the selection committee under that Act to make recommendations when there is a vacancy or absence in membership of the committee, and to remove the requirement for Dairy Food Safety Victoria to meet annually with representatives of the dairy industry;

• Amend the Food Act 1984 (the Food Act) in relation to compliance and enforcement powers and to confer power on the Secretary of the Department of Health to make requirements for the display of information;

• Amend the Meat Industry Act 1993 (the Meat Industry Act) to enable PrimeSafe, the Authority under that Act, to more efficiently share information and to enable the selection committee under that Act to make recommendations when there is a vacancy or absence in membership of the committee; and

• Amend the Seafood Safety Act 2003 (the Seafood Safety Act) to introduce a fit and proper person criteria for assessing licence applications under that Act.

Human rights issues

The following rights are relevant to the Bill:

• Right to privacy (section 13);

• Right to fair hearing (section 24); and

• Right to the presumption of innocence (section 25(1)).

Right to privacy

Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

Information sharing

Clause 26 of the Bill substitutes s 57 of the Meat Industry Act to amend the confidentiality requirements in the Act so that official persons, such as current or former members or employees of PrimeSafe, or current or former inspectors, may disclose information that they received about a person when exercising a power or performing a function under the Meat Industry Act or the Seafood Safety Act, in certain circumstances. Accordingly, by allowing for the disclosure of what may be personal information, clause 26 engages the right to privacy under s 13(a) of the Charter.

I am of the view, however, that clause 26 does not limit the privacy right, as any disclosure of a person’s information would be lawful, in that it would be pursuant to a properly circumscribed law, and is not arbitrary, as any disclosure may only occur in limited and clearly defined circumstances that enable official persons to carry out their duties in respect of the monitoring and enforcement of the food safety regimes in the meat and seafood industries and share information with other regulators where an information received by an official person is relevant for administration of other Acts. The exceptions that permit disclosure concern appropriately prescribed circumstances, including where it is in the exercise of an official person’s statutory powers or performance of their functions, to a public sector body in connection with the administration of any Act or law that applies to the person to whom the information relates, pursuant to a court order, with consent of the person to whom the information relates, to a person responsible for regulating food safety, or to prevent a serious threat or minimise a serious risk to public health. Clause 26 also includes an offence for unlawful disclosure of information about a person, to ensure confidentiality and privacy is protected.

I therefore consider that clause 26 of the Bill is compatible with the right to privacy under the Charter.

Right to a fair hearing

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The concept of a ‘civil proceeding’ is not limited to judicial decision makers, but may encompass the decision-making procedures of many types of tribunals, boards and other administrative decision-makers with the power to determine private rights and interests.

While recognising the broad scope of section 24(1), the term ‘proceeding’ and ‘party’ suggest that section ‍24(1) was intended to apply only to decision-makers who conduct proceedings with parties. As such, there is a question as to whether the right to a fair hearing is engaged by administrative decisions which do not involve the conduct of proceedings with parties.

In any event, I will adopt a broad reading of section 24(1) and assume that the fair hearing right is engaged by the administrative decisions to be amended by this Bill. The right may be limited if a person faces a procedural barrier to bringing their case before a court, or where procedural fairness is not provided. However, the entire decision-making process, including reviews and appeals, must be examined in order to determine whether the right is limited.

Fit and proper person criteria for seafood safety licences

Clause 30 of the Bill inserts new s 14(2)(ca) into the Seafood Safety Act which is a new ground upon which the Authority must exercise their mandatory powers to refuse to issue, refuse to renew, or to cancel or suspend a seafood safety licence. This new ground is that the Authority is no longer satisfied that the person is a fit and proper person to hold a seafood safety licence. Clause 30 also inserts new s 14(3) into the Seafood Safety Act which outlines various matters that the Authority must consider when having regard to whether a person is a fit and proper person to hold a seafood safety licence. These matters include whether the licensee or applicant, or their associate, is not of good repute having regard to their character, honesty and integrity. The effect of clause 30 is to enable the Authority to refuse to issue or renew a seafood safety licence, or to suspend or cancel a licence on character grounds, including the character of a licensee or applicant’s associate.

In relation to decisions to issue or renew a licence, unless a decision determines existing rights, it is understood the fair hearing right is unlikely to apply. Accordingly, in the context of this Bill, administrative decisions determining existing rights, and attracting application of the right to fair hearing, would be limited to the cancellation or suspension of an existing licence.

The exercise of these powers occurs without a hearing, and is therefore relevant to this right. I am satisfied, however, that the fair hearing right is not limited, because the existing provisions of the Seafood Safety Act (s 14(1)) include written notice requirements of the ground for the decision to exercise the Authority’s mandatory power. Further, section 18 of the Seafood Safety Act affords adequate procedural fairness before a licence may be suspended or cancelled, including notice requirements and an obligation to afford a reasonable opportunity to the licensee to make written submissions in the event their licence is to be cancelled or suspended. The licensee or applicant will also have a right of judicial review of the decision. Finally, a seafood safety licence is a privilege that is voluntarily applied for and attracts special responsibilities and duties. The ability to suspend or cancel a licence due to a failure to comply with its requirements and conditions is an important regulatory function that protects the integrity and safety of the seafood industry.

I am therefore of the view that clause 30 and the addition of a fit and proper person ground for the exercise of the Authority’s mandatory powers to cancel, suspend, refuse to issue or renew a seafood safety licence, is compatible with the right to a fair hearing under the Charter.

Right to be presumed innocent

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

Criminal liability of officers of bodies corporate

Clause 6 of the Bill inserts new s 36A into the Dairy Act which creates two offences relating to the sale and delivery of dairy food which has not been treated as required. The clause notes that s 55C of the Dairy Act applies to the offences, while clause 7 of the Bill inserts the new s 36A offences into s 55C of the Dairy Act, which deems officers of bodies corporate to be liable for offences committed by the body corporate. Subsection 55C(3) of the Dairy Act provides officers with a defence that they acted with due diligence to prevent the commission of the offence, and allows a court to consider the officer’s knowledge of the commission of the offence, whether they were in a position to influence the body corporate, and the steps they took or ought to have taken to prevent the commission of the offence. Subsection 55C(5) also provides that an officer may rely on a defence available to the body corporate, but bears the same onus of proof to establish the defence as the body corporate.

Clause 11 of the Bill inserts new s 43K into the Food Act, which creates an offence relating to the failure of a food business to display registration information in their premises in a particular manner. The provision notes that s 51A of the Food Act applies to the offence, and clause 12 of the Bill inserts the new s 43K offence into s 51A, which deems officers of a body corporate to be criminally liable for offences committed by the body corporate, but only if they authorised or permitted the offence by the body corporate, or were knowingly concerned in the commission of the offence by the body corporate. Subsection 51A(3) then provides that officers may rely on a defence available to the body corporate, and in this case the officer bears the same burden of proof that would be borne by the body corporate.

These provisions are relevant to the presumption of innocence as they may operate to deem as ‘fact’ that an individual has committed an offence based on the actions of the body corporate, and they require that, in proceedings under the Bill, a person bears an onus of proof to provide evidence in order to establish a relevant defence.

I consider that new s 36A of the Dairy Act and new s 43K of the Food Act do not limit the right to the presumption of innocence. Firstly, in relation to the Food Act amendment, s 51A(1) of the Food Act operates so that new s 43K requires the prosecution to prove the accessorial elements of the offence - that is that the officer authorised or permitted the offence or was knowingly concerned in the commission of the offence by the body corporate. Further, both provisions only place an evidential burden on an accused to establish a defence, and the prosecution is still required to prove the main elements of the offences. Finally, the evidence required to establish a relevant defence will likely be peculiarly within the personal knowledge of the officer, and would be difficult for the prosecution to establish.

In my view, it is appropriate to extend these food safety offences to officers of bodies corporate, and to make principals liable for the conduct of the body corporate and its employees and agents, in order to ensure proper compliance with the relevant food safety schemes and to protect public health and safety. A person who elects to undertake a position as an officer of a body corporate accepts that they will be subject to certain requirements and duties, including a duty to ensure that the body corporate complies with its legal obligations, and does not commit offences. Affected persons should be well aware of the regulatory requirements and, as such, should have the necessary processes and systems in place to effectively meet these requirements and not incur accessorial liability. Finally, the offences are not punishable by a term of imprisonment.

Should the right to the presumption of innocence in fact be limited by these provisions, I am of the view that any limitation is reasonable and demonstrably justified, in that it is a proportionate measure to the legitimate purpose of the offences, which is to ensure the compliance of bodies corporate with food safety standards and to protect public health and safety. Courts in other jurisdictions have held that the presumption of innocence may be subject to reasonable limits in the context of regulatory compliance, particularly where regulatory offences may cause harm to the public.

Hon Jaclyn Symes MP

Attorney-General

Minister for Emergency Services

Second reading

Harriet SHING (Eastern Victoria – Minister for Housing, Minister for Water, Minister for Equality) (21:32): I move:

That the bill be now read a second time.

Ordered that second-reading speech be incorporated into Hansard:

The Bill will amend the Food Act 1984 (Food Act), Meat Industry Act 1993 (Meat Industry Act), Seafood Safety Act 2003 (Seafood Safety Act) and Dairy Act 2000 (Dairy Act) to improve the operational functions of Victorian food safety regulators and provide for more effective and efficient delivery of food safety regulation in Victoria.

The Bill will support more effective implementation of food safety and public health policy and streamline the administrative functions of Victoria’s food safety regulators, including meat and seafood regulator PrimeSafe, and dairy regulator Dairy Food Safety Victoria (DFSV). It will improve overall consistency between the Acts that make up the food safety legislative framework and address several recommendations for Food Act reforms made by the Victorian Auditor General’s Office (VAGO). The Bill will also provide increased clarity on various regulatory requirements for Victorian food businesses.

Amendments to the Meat Industry Act

The Bill will replace the existing confidentiality requirements in the Meat Industry Act that were put in place over 30 years ago. These outdated provisions are more restrictive than comparable provisions found within other food safety legislation, or other modern regulatory and legislative frameworks. Because of these requirements, PrimeSafe is unable to easily share information with government departments or other regulators unless the Minister for Agriculture intervenes and certifies that it is in the public interest. This can create issues when PrimeSafe staff identify animal welfare or public health concerns during an audit or investigation, and seek to efficiently pass the information on to Agriculture Victoria or the Department of Health for further investigation.

This Bill will enable PrimeSafe to more easily disclose information they have legally gathered while still protecting the confidentiality of those they regulate. PrimeSafe will be able to disclose information in specified circumstances with specified groups, such as with other public sector bodies. It will allow for improved collaboration between government agencies, more open engagement on emerging issues between regulators and meat and seafood businesses, and improve PrimeSafe’s ability to manage public health risks.

The Bill will also improve the functioning of the PrimeSafe Selection Committee. It will enable the Committee to make recommendations on board appointments to the Minister for Agriculture when a quorum of 4 members is present. This will ensure that recommendations and subsequent board appointments are not delayed when there is an absence or vacancy of a Committee member.

Amendments to the Seafood Safety Act

The Bill will introduce a “fit and proper person” provision into the Seafood Safety Act. This will enable PrimeSafe to consider the character, honesty and integrity of a seafood licence applicant, nominated operator, or associate. Such a provision already exists under the Meat Industry Act for meat processing licensees, and exists in several other licensing frameworks in Victoria.

The Bill will equip PrimeSafe with the means to prevent non-compliant or unsuitable seafood licensees ‘phoenixing’ or transferring their licence to a business associate but functionally continuing to manage operations. This will ensure the suitability of those who hold seafood licenses and will help to protect public health, industry reputation, and the sustainability of Victoria’s seafood businesses.

Amendments to the Dairy Act

The Bill will strengthen and clarify requirements regarding raw milk, the consumption of which is prohibited in Australia due to the food safety risks it poses. Raw milk may contain bacteria that can cause severe illness and even death in vulnerable populations such as children and the elderly.

Requirements to pasteurise milk in line with the Australia New Zealand Food Standards Code, and to treat raw milk products (such as bath milk) in a manner that will deter human consumption, will be transferred from existing dairy licence conditions into the Dairy Act itself, which is administered by DFSV.

This will make it easier for those in the dairy industry, or those selling raw milk products, to understand their food safety obligations when it comes to raw milk. The changes will also ensure that the penalty for non-compliance with these requirements reflects the acute risk to public health that raw milk presents. Including these requirements in the Dairy Act will not change the existing scope of local government’s primary responsibilities relating to the sale of raw milk.

The Bill will also make several improvements to the administrative functions of DFSV. The Bill will enable the DFSV Selection Committee to make recommendations on board appointments to the Minister for Agriculture when a quorum is present. This will ensure that board appointments are not delayed when there is an absence or vacancy of a Selection Committee member. The Bill will also remove a requirement in the Act for DFSV to hold a meeting with senior representatives of select dairy industry organisations after submitting their annual report. This is recognised as a narrow and inefficient mechanism for industry engagement. Removing this requirement will enable DFSV to focus resources on other more effective and inclusive engagement with the dairy industry – such as through the Dairy Industry Consultative Forum and other digital communications.

Amendments to the Food Act

The Bill will address two recommendations in the June 2023 report of the Victorian Auditor General’s Office (VAGO) on Regulating Food Safety. The Bill will reduce unnecessary burden on local councils associated with inspections of registered food premises, and will establish a power for the Secretary to the Department of Health to declare requirements for food premises to display registration information.

The Bill will also remove the requirement that proceedings in respect of a food sample obtained for analysis must be instituted within 90 days. This will ensure that regulators are provided sufficient time to explore other compliance and enforcement options before a prosecution is sought.

I commend the Bill to the house.

Georgie CROZIER (Southern Metropolitan) (21:33): I move:

That debate be adjourned for one week.

Motion agreed to and debate adjourned for one week.