Inspector-General of Live Animal Exports Amendment (Animal Welfare) Bill 2023 [2023] AUSStaCSBSD 91 (14 June 2023)

• Inspector-General of Live Animal Exports Amendment (Animal Welfare) Bill 202367
• Broad discretionary powers Privacy68

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Inspector-General of Live Animal Exports Amendment (Animal Welfare) Bill 2023^[67]

Purpose	This bill seeks to amend the Inspector-General of Live Animal Exports Act 2019 by expanding the existing office of the Inspector-General of Live Animal Exports to provide an enhanced focus on animal welfare.
Portfolio	Agriculture, Fisheries and Forestry
Introduced	House of Representatives on 24 May 2023

Broad discretionary powers
Privacy^[68]

1.73 Proposed subsection 10(2A) provides that the Inspector-General of Animal Welfare and Live Animal Exports (Inspector-General) has the power to do all things necessary or convenient to be done for, or in connection with, the performance of the Inspector-General's functions. Under substituted subsection 10(1) one of the functions of the Inspector-General is to conduct reviews of the performance of functions, or exercise of powers, by livestock export officials under the animal welfare and live animal export legislation and standards in relation to the export of livestock.

1.74 Proposed subsection 10C(2) provides that the Inspector-General is not subject to direction in relation to: the conduct of a review including the terms of reference for a review; how a review is to be conducted; the timing of a review; the priority to be given to a review; or the content of a report.

1.75 Where a bill contains a discretionary power, the committee expects the explanatory memorandum to the bill to address the purpose and scope of the discretion, including why it is considered necessary, and whether there are appropriate criteria or considerations that limit or constrain the exercise of any power, including whether they are contained in law or policy.

1.76 The explanatory memorandum states that:

This would ensure that the Inspector-General is empowered to do all things necessary or convenient to be done for, or in connection with, the performance of the Inspector-General’s functions, without providing the Inspector-General with substantive powers outside of that scope.
...
In particular, proposed subsection 10C(2)...would clarify that the Inspector-General is not subject to direction in relation to (amongst other things) the conduct of a review (including its terms of reference, how it is to be conducted, its timing and priority) and the content of its report. In effect, this means that the Minister cannot direct the Inspector-General on how to conduct the review or to make a particular finding or include anything in a report of the review. The direction is limited only to requiring the Inspector-General to conduct a particular review.^[69]

1.77 While acknowledging the importance of maintaining the independence of the office of the Inspector-General, the committee's concerns about the breadth of the Inspector-General's power to conduct reviews is heightened as it appears to include the collection, use or disclosure of personal information of livestock export officials which may trespass on an individual's right to privacy.

1.78 The committee commented on similar issues in relation to the Inspector‑General of Live Animal Exports Bill 2019 in Scrutiny Digest 5 of 2019.^[70] In that instance, the committee was concerned about the minister's rule-making power to prescribe the process to be followed by the Inspector-General in conducting a review and the content of reports of reviews. For example, it was unclear to the committee: whether certain information could be redacted or omitted from the report; whether livestock export officials have a right of reply to any criticisms contained in the report; and whether livestock export officials have a right to be heard prior to the publication of any criticisms contained in a report. The committee reiterates these same scrutiny concerns, in relation to the Inspector-General's discretionary power in the bill currently before the committee.

1.79 In relation to privacy considerations, the statement of compatibility states that:

...the Inspector-General may require the provision of information or documents from various persons in undertaking any such review. As noted above, the Inspector-General must then publish a report for each review undertaken.
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Any information or documentation, required by the Inspector-General to be provided in order to conduct a review, will be managed in compliance with both the Act and the Privacy Act 1988. The Act contains an existing information management framework in sections 23 to 31 (inclusive) which would provide robust protection for information provided under or in accordance with the Act. In conducting any of the expanded reviews provided for in proposed new subsection 10(1) in the Bill, the collection of information that may be personal information is incidental to the Inspector-General’s primary function of carrying out its reviews in order to meet the objects of the Act.^[71]

1.80 While acknowledging that information or documentation required will be managed in compliance with the Act and the Privacy Act 1988, the committee remains concerned about the apparent lack of constraint in the bill on the Inspector-General's discretionary powers under subsections 10(2A) and 10C(2) and the implications this may have on a livestock official's privacy in reports published for each review.

1.81 In light of the above, the committee request's the minister's detailed advice as to:

• what criteria or considerations exist that limit or constrain the exercise of the Inspector-General's broad discretionary powers in proposed subsections 10(2A) and 10C(2), including whether these are contained in law or policy; and

• whether the bill can be amended to include safeguards to protect the disclosure of livestock export official's personal information.

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[67] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Inspector-General of Live Animal Exports Amendment (Animal Welfare) Bill 2023, Scrutiny Digest 6 of 2023; [2023] AUSStaCSBSD 91.

[68] Schedule 1, Part 1, proposed subsections 10(2A) and 10C(2). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i) and (ii).

[69] Explanatory memorandum, pp. 13 and 16.

[70] Senate Standing committee for the Scrutiny of Bills, Scrutiny Digest 5 of 2019 (11 September 2019) pp. 8–9.

[71] Statement of compatibility, pp. 27–28.