Primary Industries Legislation
Amendment Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1—PRELIMINARY
Clause 1
provides that the purpose of the Bill is to amend the Prevention
of Cruelty to Animals Act 1986 ("the POCTA Act"), the
Domestic Animals Act 1994 ("the DA Act"), the Livestock
Disease Control Act 1994 ("the LDC Act"), the Veterinary
Practice Act 1997 ("the VP Act") and the Plant Biosecurity Act
2010 ("the PB Act").
Clause 2
provides for the Bill, except clause 38, to come into operation on
a day or days to be proclaimed with a forced commencement day
of 1 July 2015. Clause 38 is a transitional provision which will
remove the definition of Australian legal practitioner from
section 3 of the VP Act on the coming into operation of
section 158 of the Legal Profession Uniform Law Application
Act 2014. The definition of Australian legal practitioner
contained in section 158 of that Act will apply to all Victorian
Acts, thereby making a further definition in the VP Act
redundant.
PART 2—AMENDMENTS TO THE PREVENTION OF
CRUELTY TO ANIMALS ACT 1986
Clause 3
571510
makes statute law revision amendments to the definitions of farm
animal and scientific procedure in section 3(1) of the POCTA
Act to substitute "connection" for "connexion".
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BILL LA INTRODUCTION 19/8/2014
Clause 4
makes statute law revision amendments to sections 13(1)(d) and
(e) of the POCTA Act to substitute "connection" for "connexion".
Clause 5
makes a statute law revision amendment to section 25 of the
POCTA Act to substitute the definition of authorized officer
with a definition in which "authorised" replaces "authorized".
Clause 6
makes statute law revision amendments to section 35 of the
POCTA Act and the heading to that section to substitute
"authorised" for "authorized" wherever occurring.
Clause 7
makes statute law revision amendments to section 35A of the
POCTA Act and the heading to that section to substitute
"authorised" for "authorized" wherever occurring.
Clause 8
subclause (1) makes a statute law revision amendment to
section 37A(2)(a) of the POCTA Act to substitute "authorised"
for "authorized".
Subclause (2) substitutes section 37A(2)(b) of the POCTA Act to
enable a specialist inspector to issue an infringement notice.
Clause 9
paragraph (a) substitutes section 39(b)(i) of the POCTA Act to
provide that in any proceedings under the Act, in the absence of
evidence to the contrary, proof is not required of the approval of
a person as a specialist inspector.
Paragraph (b) makes a statute law revision amendment to
section 39(b)(iii) of the POCTA Act to substitute "authorised" for
"authorized".
Paragraph (c) makes statute law revision amendments to
section 39(b)(iv) of the POCTA Act to substitute "authorised" for
"authorized" and to substitute "section 24ZW" for "section 24".
Section 39(b)(iv) currently provides that in any proceedings
under the Act, in the absence of evidence to the contrary, proof is
not required of the authority of any person authorised under
section 24 to take proceedings. The amendment is required
because authorisation to take proceedings is now given under
section 24ZW, not section 24.
Clause 10 makes a statute law revision amendment to section 40 of the
POCTA Act to substitute "authorise" for "authorize".
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Clause 11 makes statute law revision amendments to section 42(1)(a) of the
POCTA Act to substitute "authorised" for "authorized", wherever
occurring.
PART 3—AMENDMENTS TO THE DOMESTIC ANIMALS
ACT 1994
Clause 12 subparagraph (a) amends the definition of domestic animal
business in section 3(1) of the DA Act to bring into the ambit of
what is a "domestic animal business" an enterprise that has
between 3 and 9 fertile female dogs or between 3 and 9 fertile
female cats where no more than 2 of those animals are not
registered with an applicable organisation. This is aimed at
improving the welfare of breeding dogs and cats by ensuring that
more of these animals are registered with an applicable
organisation or with councils via the registration of the business.
Subparagraph (b) amends the definition of restricted breed dog in
section 3(1) of the DA Act to correct the spelling of the restricted
breed dog known as the "Brasileiro".
Clause 13 amends section 19(1)(c) of the DA Act to enable Councils to
issue annual or life-long identification markers for registered
dogs or cats by removing the requirement for identification
markers to display the year of registration.
Clause 14 subclause (1) amends section 54(2) of the DA Act to provide that
the discretionary power to refuse to register or to suspend or
revoke registration of a domestic animal business is subject to the
new proposed section 54(3) that sets out circumstances when a
Council must refuse to register or revoke the registration.
Subclause (2) inserts new section 54(3) and (4) in the DA Act.
Proposed section 54(3) provides that a Council must refuse to
register or revoke the registration of a breeding domestic animal
business if the Council is satisfied that a 'relevant person' has in
the preceding 10 years been found guilty of specified offences
under the POCTA Act or has received an order under section 12
or 12A of that Act. The offences to which the provision applies
and the persons who are relevant persons for the purpose of the
provision are set out in proposed subsection 54(4) and are
explained below. An order under section 12 of POCTA is an
order of the Court that either disqualifies or places conditions
upon a person being in charge of an animal. An order under
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section 12A is an order made under corresponding legislation and
made enforceable by registration under section 12A.
Proposed section 54(4) defines a relevant person for the purposes
of proposed section 54(3) to be the proprietor of a breeding
domestic animal business, the person who conducts the breeding
domestic animal business or the person applying for registration
of the breeding domestic animal business.
Proposed section 54(3) defines a specified offence for the
purpose of the mandate on Councils in proposed section 54(3)
referred to above. The offences are the following offences in the
POCTA Act—

section 9(1): cruelty;

section 10: aggravated cruelty;

section 12(7): breaching a court order that disqualifies
or places conditions on being in charge of an animal;

section 12A(8): breaching a registered interstate order
made under corresponding law;

section 15C(1): breeding an animal with a heritable
disease;

section 15C(2): selling or disposing of an animal with
heritable disease without advising the person to whom
the animal was sold or disposed.
Clause 15 inserts a new Division 5 of Part 4 in the DA Act.
New section 63AB(1) requires a pet shop owner to make and
keep records in relation to every cat or dog sold, of the name and
address of the person from whom they obtained the animal and
any other prescribed information.
New subsection 63AA(1) requires that the records required to be
kept and maintained under new proposed section 63AA(1) be
kept and maintained in the prescribed manner.
Clause 16 Section 82A(2)(b) of the DA Act currently provides for seizure
of animals from a premises where a domestic animal business is
being conducted in the circumstances where the registration of
the domestic animal business has been revoked under section 54
or 57A of the DA Act.
Subclause (1) amends section 82A(2) to include as a basis for
seizing an animal under that section, the refusal to register
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premises under section 54, as provided for by proposed new
section 54(3) (being inserted by clause 14 of the Bill).
Subclause (2) includes as a basis for seizure of animals from a
premises where a domestic animal business is being conducted,
the circumstance of refusing to renew the registration of the
premises under new section 54(3) being inserted by clause 14 of
the Bill.
PART 4—AMENDMENTS TO THE LIVESTOCK DISEASE
CONTROL ACT 1994
Clause 17 amends the definition of cattle in section 3(1) of the LDC Act to
include "bison". An order under section 6(3A) of Act will ensure
that only appropriate provisions of the LDC Act for the
identification of cattle will apply to bison. This will facilitate
traceability in the event of a disease outbreak affecting bison.
Clause 18 amends section 41(1) of the LDC Act to include a separate
penalty of 360 penalty units for a corporation. Section 41(1)
provides offences in connection with the swill feeding of pigs
with mammalian material.
Clause 19 amends section 48(4A) of the LDC Act to increase from one year
to two years the registration period for beekeepers.
Clause 20 subclause (1) inserts a heading to section 49 of the LDC Act to
refer to biennial registration for registered beekeepers. This
amendment is consistent with the amendment made by clause 19.
Subclause (2) amends section 49 of the LDC Act to provide a
biennial fee instead of an annual fee for registered beekeepers.
This amendment is consistent with the amendment made by
clause 19.
Clause 21 amends section 70(3) of the LDC Act to increase membership of
the Apicultural Industry Advisory Committee from 5 to 6, to
require that at least one of the 3 persons nominated by the
Apiarists' Association Inc. possesses experience and knowledge
of honey bee crop pollination services and to require the
additional member of the Committee to be a person with general
knowledge of the beekeeping industry nominated by the
Victorian Farmers Federation. Members of the Committee are
appointed by the Minister.
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Clause 22 amends section 122(3) of the LDC Act to increase from $3000 to
$12 000 the value of hives, livestock products of bees or other
articles etc. which an inspector may direct a beekeeper to destroy
without first obtaining the written permission of the Secretary.
Section 122(2) of the LDC Act enables an inspector to direct a
beekeeper to destroy articles if the inspector has certified in
writing to the Secretary that he or she considers the articles are
liable to spread disease.
Clause 23 inserts a transitional provision into the LDC Act to provide that
the Apicultural Industry Advisory Committee is taken to be the
same body after the changes relating to its membership made by
clause 21.
PART 5—AMENDMENTS TO THE VETERINARY PRACTICE
ACT 1997
Clause 24 inserts into the VP Act definitions of Australian legal
practitioner and principal place of residence.
The definition of principal place of residence is inserted in order
to make it clear that a veterinary practitioner need not have more
than one place of residence in order to have a principal place of
residence. This expression is referred to in several provisions of
the VP Act dealing with the circumstances in which a veterinary
practitioner is required to register in Victoria.
A definition of Australian legal practitioner is inserted for the
purposes of the amendments made by clauses 31 to 33 of the Bill.
These amendments will provide that representation in certain
disciplinary hearings can only be by a lawyer who holds a current
practising certificate.
Clause 25 substitutes section 4(1) of the VP Act to enable the Veterinary
Practitioners Registration Board of Victoria ("the Board") to
grant "specific" and "non-practising" registration to a veterinary
practitioner whose principal place of residence is not in Victoria
and will not be in Victoria during the period of registration.
An applicant for "specific" registration may wish to undergo
study or training or to fill a teaching or research position or to
participate in a practitioner exchange permitted by the Board.
An applicant for "non-practising" registration may be a retired
practitioner who wishes to maintain their registration and
connection with the Board but whose principal place of residence
is interstate or overseas.
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Clause 26 amends section 8(6) of the VP Act to remove the requirement for
the Board to notify in the Government Gazette any branch of
veterinary medicine or surgery recognised by the Board for the
purposes of endorsement of registration as a specialist
practitioner. The amended provision will continue to require the
Board to give notification in a publication circulating among
veterinary practitioners generally.
Clause 27 subclause (1) amends 11(1) of the VP Act to change the
registration period from a calendar year to a financial year.
Subclause (2) inserts a note at the foot of section 11(1) of the VP
Act to explain that a financial year is the twelve months ending at
midnight on 30 June.
Clause 28 amends section 12 of the VP Act to provide that if a veterinary
practitioner does not apply for renewal of registration before the
end of the registration period, the Board may renew the person's
registration if application is made within 1 month after the end of
the registration period. The current provision enables the Board
to renew the person's registration if application is made within
3 months after the end of the registration period.
Clause 29 amends section 19 of the VP Act to clarify that a veterinary
practitioner must notify the Board of any change of address listed
on the register maintained by the Board. This means that a
practitioner must notify the Board of any change in the
practitioner's postal address or the address where the practitioner
carries on veterinary practice.
Clause 30 amends section 36(d) of the VP Act to provide that a notice of an
informal hearing must state that the person has no right to legal
representation.
Clause 31 amends section 43(c) of the VP Act to provide that a notice of a
formal hearing must state that there is a right to be represented,
but only by an Australian legal practitioner. This will require
that representation be by a lawyer who holds a current practising
certificate.
Clause 32 amends section 43B of the VP Act to provide that if a person the
subject of a formal hearing is required to attend a preliminary
conference, any representative of the person must be an
Australian legal practitioner. This will require that representation
be by a lawyer who holds a current practising certificate.
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Clause 33 amends section 44(b) of the VP Act to provide that at a formal
hearing a person has the right to be represented, but only by an
Australian legal practitioner. This will require that representation
be by a lawyer who holds a current practising certificate.
Clause 34 amends section 47(c) of the VP Act to provide for the avoidance
of doubt that at a formal or informal hearing, the hearing panel
may inform itself by reference to any guidelines issued by the
Board under section 62(1)(e) of the Act as to appropriate
standards of veterinary practice and veterinary facilities. This is
intended to illustrate the scope of the current provision, which
provides that a hearing panel is not bound by the rules of
evidence and may inform itself in any way it thinks fit.
Clause 35 repeals section 59(1)(c) of the VP Act to remove the prohibition
on advertising a veterinary practice or veterinary services in a
manner which refers to or uses or quotes from testimonials.
Clause 36 amends section 86(1)(c) of the VP Act to remove the requirement
for the Board to publish in the Government Gazette any fee
which the Board is empowered to fix. The amended provision
will continue to require the Board to publish the fee in a
newspaper circulating generally throughout Victoria.
Clause 37 inserts new Part 11 into the VP Act. New Part 11 is a transitional
provision to enable the Board to renew the registration of a
veterinary practitioner and fix a fee for renewal of registration for
the 18 month period ending on 30 June 2017 because sections
11(1) and 86(1)(a) would otherwise restrict the Board to
renewing registration and fixing a fee for 12 months.
This amendment is consequential to the amendment made by
clause 27 to change the registration period from a calendar year
to a financial year.
Clause 38 repeals the definition of Australian legal practitioner in section 3
of the VP Act as the definition of that expression in section 158
of the Legal Profession Uniform Law Application Act 2014
will apply to all Victorian Acts.
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PART 6—AMENDMENTS TO THE PLANT BIOSECURITY
ACT 2010
Clause 39 Section 8 of the PB Act requires a person to send an assurance
certificate, a plant health certificate or a plant health declaration
to an inspector at the time produce is delivered to a person in
Victoria. Since the introduction of co-regulation arrangements in
1997, now less than 10 percent of certificates are sent to an
inspector.
The majority of produce regulated under the PB Act is treated
and is accompanied by assurance certificates which are issued by
accredited persons. The produce is sent directly to the receiver of
the produce (e.g. wholesaler) who is accredited under the Act to
inspect the produce and verify the assurance certificate.
Clause 39 substitutes a new section 8(1) of the PB Act to insert a
reference to a person authorised under a compliance agreement to
recognise that certificates and declarations referred to in that
section are more often sent to a person authorised in accordance
with a compliance agreement under Part 5 of the Act than to an
inspector.
Section 8(1) has also been redrafted in order that the offences
under that section are suitable to be prescribed as infringement
offences.
Clause 40 amends section 9 of the PB Act to make consequential
amendments that substitute references to the new relevant
provisions of section 8(1) substituted by clause 39 of the Bill.
Clause 41 amends section 11 of the PB Act to make consequential
amendments that substitute references to the new relevant
provisions of section 8(1) substituted by clause 39 of the Bill.
Clause 42 amends section 12 of the PB Act to make consequential
amendments that substitute references to the new relevant
provisions of section 8(1) substituted by clause 39 of the Bill.
Clause 43 amends section 13 of the PB Act to make consequential
amendments that substitute references to the new relevant
provisions of section 8(1) substituted by clause 39 of the Bill.
Clause 44 amends section 17(1) of the PB Act to require a person who
knows or has reason to believe that an exotic pest or disease or a
notifiable pest or disease is present in used packages, used
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equipment or earth material to notify an inspector. The current
provision only requires notification in relation to a plant or plant
product.
Clause 45 substitutes section 23(1) of the PB Act to enable an inspector to
direct the owner or person apparently in charge of any plant,
plant product, plant vector, used package, used equipment, earth
material or beehive sent from a control area, infected place or
restricted area into another part of Victoria contrary to the Act or
an order made under the Act to return, treat or dispose of the
plant etc. as appropriate. The current provision only applies
where a plant etc. is introduced into a control area, infected place
or restricted area.
Clause 46 substitutes section 38(2) of the PB Act to make the offence of
contravening an importation order suitable for enforcement by
infringement notice.
Clause 47 amends section 125 of the PB Act to make consequential
amendments that substitute references to the appropriate new
provisions of section 8 substituted by clause 39 of the Bill.
PART 7—REPEAL OF AMENDING ACT
Clause 48 provides for the repeal of the Act on 1 July 2016. The repeal of
the Act will not affect in any way the continuing operation of the
amendments made by the Act—see section 15(1) of the
Interpretation of Legislation Act 1984.
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