BATH (Eastern Victoria) (09:55): 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 (Charter), I make this Statement of Compatibility with respect to the Land Amendment (Accessing Licensed Water Frontages) Bill 2022.
In my opinion, the Land Amendment (Accessing Licensed Water Frontages) Bill 2022 (Bill), as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
The Bill amends the Land Act 1958 to control access to and camping on licensed water frontages to protect Victoria against threats to the state’s biosecurity, public safety and/or animal welfare, such as the current threat of foot-and-mouth disease (FMD), and the Bill amends the Livestock Management Act 2010 to provide for biosecurity management plans (BMPs) on licensed water frontage.
Human Rights Issues
The human rights under the Charter that are relevant to the Bill are the right to freedom of movement (section 12), and the right to privacy and reputation (section 13).
Controlling access to and camping on licensed water frontages
Clause 3 inserts provisions into the Land Act 1958 related to the requirement that a person receives permission to camp on licensed water frontages from the licensee and to provide the Minister with the power to restrict or prohibit public access to and camping on any licensed water frontage land if the Minister reasonably believes that it is necessary to do so in the interest of biosecurity, public safety, and/or animal welfare.
The prescribing of measures that prohibit or regulate entry, such as by requiring express permission to access land or having that access further restricted by Ministerial declaration, engages with the rights to freedom of movement and privacy in the Charter.
Biosecurity Management Plans and licensed water frontages
Clause 4 repeals a provision in the Livestock Management Act 2010 that currently restricts biosecurity management plans (BMPs) from operating on licensed water frontages. This will allow for BMPs to be created and operated on licensed water frontages, with the contents of these BMPs provided for in the existing Livestock Management Act 2010 and related regulations. Regulations may need to be reviewed and updated to ensure BMPs can apply to the specific circumstances that relate to licensed water frontages.
The expansion of measures (such as BMPs) that prohibit or regulate entry, such as by requiring a person to provide identification or record information relating to entering or remaining in a premises, engages the rights to freedom of movement and privacy in the Charter.
Right to freedom of movement (section 12)
Under section 12 of the Charter, every person lawfully within Victoria has the right to move freely within Victoria, and to enter and leave Victoria, and has the freedom to choose where to live. The right includes freedom from physical and procedural barriers, such as notification or authorisation requirements, or reporting obligations relating to movement. However, the right does not extend to a freedom of access to all places, such as another person’s private property.
This right may be engaged under the Bill with the expansion of prescribed biosecurity measures to licensed water frontages, the new requirement to receive the licensee’s permission to camp on that land, and the introduction of Ministerial discretion in relation to prohibiting or restricting access to that land in particular circumstances. However, in my view, that right is not limited under the Bill as any interference with this right would occur in circumstances where a person is entering a premises conducting a regulated activity, and thus voluntarily assumes the conditions and special duties that apply to entry to such a place, or would occur in extraordinary circumstances such that any engagement with this right is proportionate against considerations related to threats to Victoria’s biosecurity, public safety and/or animal welfare.
The purpose of BMPs is to manage biosecurity risks on agriculture premises, including those posed by persons entering the premises without consent. Such unauthorised access can lead to feed tampering, the release of animals and the compromising of animal security. This can increase the introduction and spread of disease, negatively impact on animal and human health, and compromise a livestock manager’s industry accreditation and market access. Extending the protection of BMPs to the context of water frontage land will ensure that this existing measure can be applied to a livestock manager’s entire property and in the context of their licensed water frontage land.
This Bill only prohibits or limits access to these lands in two limited and proportional ways that are an extension of existing legislative frameworks. Firstly, the requirement to receive permission from a licensee before camping on their licensed water frontages is a provision that will provide landholders with greater oversight of movement on their properties and around their livestock, providing greater access to information that relates to protecting their property’s biosecurity. Secondly, the Ministerial discretion to prohibit or limit access to or camping on that land will only occur when the Minister believes there is an exceptional reason to do so to protect biosecurity, public safety and/or animal welfare in Victoria.
With an incursion and outbreak of a disease like foot-and-mouth-disease (FMD) having the potential to immediately decimate our livestock industry for a prolonged period, and with FMD spreading across livestock in Indonesia for the first time since it was declared free of the disease in 1990, there are real and serious threats to our biosecurity that the Victorian Government should be empowered to take reasonable measures to mitigate against.
As such, I do not consider the right to freedom of movement to be limited in these contexts.
Right to privacy (section 13)
Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence 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.
The imposition of expanded prescribed biosecurity measures and the requirement to receive a licensee’s permission before camping on licensed water frontages engage with the right to privacy. They do so to the extent that these provisions may require visitors to provide identification or other information to access a licensed water frontage. However, the purpose of requiring that permission and BMPs is to manage biosecurity risks on agricultural premises, including those posed by persons entering the premises without consent. Any engagement with the right would occur in circumstances where a person is entering a premises conducting a regulated activity, and thus voluntarily assumes the conditions and special duties that apply to entry to such a place. This engagement with the right to privacy is neither unlawful nor arbitrary. It has a clear and reasonable purpose that is proportionate with the risks posed by diseases like FMD.
In light of the above, I consider that these amendments do not arbitrarily or unlawfully interfere with the right to privacy.
Overall, I consider that the amendments within the Land Amendment (Accessing Licensed Water Frontages) Bill 2022 are compatible with the Charter.
Ms Melina Bath MP
Member for Eastern Victoria