Introductory Info

Date introduced: 4 July 2019
House: House of Representatives
Portfolio: Attorney-General
Commencement: The day after Royal Assent.

Purpose of the Bill

The purpose of the Criminal Code Amendment (Agricultural Protection) Bill 2019 (the Bill) is to amend the Criminal Code Act 1995 (Cth) (Criminal Code) to introduce two offences for using a carriage service to incite trespass or property offences on agricultural land which, if carried out by another, could cause detriment to a primary production business on that land.[1]

Background

Aussie Farms is an animal rights charity organisation with the objective of ending ‘commercialised animal abuse and exploitation in Australian animal agriculture facilities by increasing industry transparency and educating the public about modern farming and slaughtering practices’.[2]

In January 2019, Aussie Farms launched an online interactive map of ‘factory farms, slaughterhouses and other animal exploitation facilities across Australia’.[3] The interactive map drew on existing material collected in the Aussie Farms Repository but also allowed anyone to create an account ‘to submit information, photos, videos, documents and campaign materials’.[4] Details for locations featured on the map can include business names, addresses, and GPS coordinates and are linked through to Google Maps data, including aerial photography of properties.

The Aussie Farms interactive map has been associated by some persons with an increase in animal rights activism which has included trespass and property offences. For example, Jan Davis, a Tasmanian agribusiness consultant and a councillor on the Northern Midlands Council commented in the Hobart Mercury:

Since the map went live, there has been a dangerous rise in activist intrusions on agricultural properties, and farmers have had enough ... Recently, a Victorian judge imposed a $1 fine for activists who stole a goat in Gippsland. In Queensland, a second-time offender who broke into a piggery on the Sunshine Coast in Queensland was fined just $200. Earlier this month, a repeat trespasser received one-third of the maximum fine after a two-hour break-in to a West Australian piggery, which he live-streamed on Facebook. In the same week, a Queensland court fined an activist $150 and imposed no criminal record for her part in the 100-person raid on a piggery at Beerburrum. This protest forced the piggery to go into lockdown, with 30 activists inside the facility and another 70 gathered outside. The day after that verdict, up to 100 activists trespassed on a feedlot near Millmerran, claiming to have sourced the farm details from the Aussie Farms map. They were forced to leave after Queensland police were called, but none was charged.[5]

In February 2019, the then Minister for Agriculture and Water Resources, David Littleproud, called on Aussie Farms to ‘pull down’ its map of Australian farms:

A piggery on the map has now been broken into by animal activists who have broadcast their illegal activities on Facebook. The safety of farming families and their children is at risk here.[6]

Minister Littleproud also highlighted a recent Queensland case where an animal activist who was found to have trespassed received a $350 fine for her third offence. He called on the states to ‘beef up’ their trespass laws.[7]

Prior to the 2019 federal election, the Morrison Government promised:

We will legislate to make it an offence to use a carriage service, such as the internet, to disclose personal information to incite trespass on agricultural land where that could cause commercial detriment. We will pass new laws to ensure that what Aussie Farms is doing is illegal and punishable by up to 12 months jail. Exemptions will apply for bona-fide journalists and whistle-blowers, where the release of information shows a law being broken such as animal cruelty.[8]

State and territory responses

Several state and territory jurisdictions have announced (or are considering) legislative changes in relation to agricultural trespass. In particular, the communique of the June 2019 meeting of the Council of Attorneys-General noted:

Strengthening Criminal Trespass Laws to Protect Agricultural Premises

Participants agreed on the importance of addressing trespass on farms and agricultural premises and undertook to consider options to strengthen trespass and related laws, and several jurisdictions have noted they have already acted.[9]

In April 2019, the Queensland Government announced ‘police and Agriculture department officers will have the power to issue on the spot fines - a faster penalty than pursing trespass charges’. Further, the Queensland Department of Agriculture and Fisheries ‘will form a joint Taskforce with the Queensland Police Service intelligence unit to focus specifically on animal activism’.[10]

In May 2019, the Victorian Parliament established an inquiry into the impact of animal rights activism on Victorian agriculture. In particular, ‘[t]he civil or criminal liability of individuals and organisations who promote or organise participation in unauthorised animal rights activism activities will be looked at as part of the inquiry’.[11] The committee is due to report by 1 February 2020 on the effectiveness of legislation and other measures to prevent and deter activities by unauthorised persons on agricultural and associated industries.[12]

On 22 July 2019, the NSW Government announced that ‘[u]nder changes to the Biosecurity Regulation 2017, trespassers caught illegally on farms will receive an on-the-spot fine of $1000’. The announcement stated:

It will be mandatory for visitors to farms to comply with a Biosecurity Management Plan. Anyone who enters a designated biosecurity area illegally and without complying with the plan’s requirements may be found guilty of an offence and subject to the new penalties.[13]

In October 2018, the report of the NSW Legislative Council Select Committee into Landowner Protection from Unauthorised Filming and Surveillance made a number of recommendations including that the NSW Government should:

... review the laws and penalties of trespass and authorised surveillance to consider the responsibility of those planning illegal activities and whether the offences of trespass and unauthorised surveillance should be extended to office bearers of organisations planning and financing these illegal activities.[14]

The NSW Government’s response to the report supported this recommendation ‘in principle’ and committed to establishing a working group to consider the adequacy of offences and ‘the concept of accessorial liability in the context of offences relating to unauthorised entry onto inclosed lands and unauthorised filming’. It also noted:

[I]n June 2016 the NSW Government introduced a new offence of aggravated unlawful entry on inclosed land. The new offence increased the maximum penalty where the trespasser interferes with the conduct of a business or undertaking, or causes a serious risk to the safety of a person, from $550 to $5,500. In November 2017, the new aggravated offence was further expanded to circumstances including where a trespasser introduces or increases a risk of a biosecurity impact.[15]

Australian Charities and Not-for-profits Commission

On 24 January 2019, the Charities Commissioner Gary Johns commented on the Aussie Farms interactive map and the Australian Charities and Not-for-profits Commission’s (ACNC) compliance role:

Due to the secrecy provisions in the [Australian Charities and Not-for-profits Commission Act 2012 (Cth) (ACNC Act)], I am unable to comment on the specific issue. However, I would like to reassure the public that the ACNC takes all concerns seriously and where there is evidence of misconduct, we will investigate. In instances where the ACNC finds deliberate breaches of the ACNC Act or Governance Standards, we will take action.

The ACNC has a range of compliance powers at its disposal, ranging from a formal warning or issuing a direction to the revocation of charity status. Revocation of charity status is the ACNC’s most severe enforcement power and strips an organisation of its entitlement to access Commonwealth charity tax concessions.

The ACNC supports charities carrying out their charitable purposes – however, charities must swim between the flags and ensure they are meeting their obligations under the ACNC Act, Charities Act and Governance Standards.[16]

Privacy Regulation amendment

On 5 April 2019, the Attorney-General, Christian Porter and Minister Littleproud jointly announced that Aussie Farms would be brought under the Privacy Act 1988 (Cth). Minister Littleproud stated:

The farming families who grow our food deserve to be able to do so without fear of invasion on their property and harm to their children ... The Aussie Farms website is intended to be an attack map for activists and it is already working as one. The fact Aussie Farms refused to take the website down when invasions began happening on farms displayed on their map shows they intend for it to be used as an attack map for activists. Aussie Farms will now be required to comply with the Privacy Act, which includes laws against the misuse of personal information. I note the maximum penalty for an offence under the Privacy Act is $420,000.[17]

The Privacy Amendment (Protection of Australian Farms) Regulations 2019 (Cth) was registered on 5 April 2019, and commenced on 6 April 2019. This legislative instrument inserts subsection 7(1A) into the Privacy Regulation 2013 (Cth) to prescribe Aussie Farms as an organisation for the purposes of subsection 6E(1) of the Privacy Act. This brings Aussie Farms within the scope of the Privacy Act, and subject to its requirements, including in relation to the use and disclosure of personal information. The amendment to the Regulations is a disallowable instrument.

Previously proposed legislation

Former Liberal Senator Chris Back introduced a private senators’ Bill, the Criminal Code Amendment (Animal Protection) Bill 2015 (Back Bill), which would have introduced new offences in relation to the failure to report a visual recording of malicious cruelty to animals and interference with the conduct of lawful animal enterprises. This Bill was referred to the Senate Rural, Regional Affairs and Transport Legislation Committee for inquiry. A large number of submissions were received including a number from organisations which raised concerns about the provisions of the Back Bill and measures to target animal rights activism more generally.[18]

The majority committee report recommended that the Back Bill be passed (with a minor amendment).[19] A dissenting report by Labor senators did not support the passage of the Back Bill and called on the ‘Government to facilitate a proper consultative process to address each concern expressed in the committee's report with the aim of providing a way forward for all stakeholders involved’.[20] A dissenting report made by the Australian Greens also recommended the Bill not proceed and made a number of recommendations. ^[21] The Back Bill lapsed at the end of 45th Parliament.[22]

United States ‘ag-gag’ laws

So-called ‘ag-gag’ (which is shorthand for ‘agricultural gag’) laws, intended to deter animal rights activists from entering agricultural production facilities or recording farming activities, have a controversial history in the United States (US).[23] A number of these laws have been legally challenged. For example, in Animal Legal Defense Fund v. Wasden No. 15-35960 (9th Cir. 2018), a US Court of Appeals found that Idaho's criminalisation of using misrepresentations to enter a production facility and ban on audio and video recordings of a production facility's operations covered protected speech under the First Amendment of the US Constitution and did not survive constitutional scrutiny. However, the judgment also upheld other parts of Idaho’s ‘ag-gag’ laws. These parts included criminalising obtaining records of an agricultural facility by misrepresentation and obtaining employment by misrepresentation with the intent to cause economic or other injury.

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee

The provisions of the Bill were referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 6 September 2019. While acknowledging the concerns of submitters to the inquiry (discussed below), the majority report concluded:

The Criminal Code Amendment (Agricultural Protection) Bill 2019 is a measured and proportionate response to the threats and harms caused by incitement of activist trespass on agricultural land; on that basis, the committee recommends that the bill be passed.[24]

Additional comments were made by Australian Labor Party (ALP) senators and the Australian Greens made a dissenting report (discussed below).

Details of the inquiry are available on the Committee’s inquiry webpage.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) considered the Bill in Scrutiny Digest 3 of 2019.[25] The Scrutiny Committee focused on the justification for the offence-specific defences to the two offences created by the Bill. These defences are intended to prevent the offences applying to public interest journalism and whistleblowers. The Scrutiny Committee noted:

While in these instances the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee nevertheless expects any such reversal of the evidential burden of proof to be justified.[26]

The Scrutiny Committee requested the Attorney-General’s detailed justification ‘as to the appropriateness of including the specified matters as offence-specific defences’. It considered ‘it may be appropriate if these clauses were amended to provide that these matters form elements of the relevant offences’.[27] At the time of writing, the Attorney-General’s response had been received by the Scrutiny Committee, but had not been made public.[28]

Policy position of non-government parties

Australian Labor Party

Despite serious concerns regarding possible unintended consequences and support for ‘substantial’ amendments, the ALP appears prepared to pass the Bill.

In the second reading debate, the Shadow Attorney-General, Mark Dreyfus stated that the ALP ‘strongly agrees that farmers and those in other agricultural businesses should not be subject to intimidating and unlawful actions by activists trespassing on their land’ but also outlined a number of concerns with the Bill. These concerns included that the proposed offences could complicate existing legal framework and impinge on lawful political activity and communications. He also questioned the adequacy of the protections for journalists and whistleblowers. Mr Dreyfus concluded:

Labor is concerned that the government is seeking to push criminal legislation through the parliament without time for proper consultation and review. And to again make Labor's position clear: our concerns are not with the stated purpose of the bill, but with the many potential unintended consequences that could flow should this bill become law. For these reasons, Labor will not oppose the bill's passage through the House and will announce our position when the bill comes before the other place, following consultation with farmers and legal experts, and following review of the recommendations of the report on the bill by the Senate Legal and Constitutional Affairs Legislation Committee.[29]

In their additional comments to the Senate inquiry report into the Bill, ALP senators acknowledged the Bill had ‘worthy aims’ to protect Australian farmers and primary production businesses. However, they considered this was ‘hindered by sloppy drafting, inconsistencies, and a risk of unintended consequences which pose dangers for Australians engaged in legitimate debate and activism around industrial, political and other forms of civic engagement’.[30] The ALP senators recommended:

... the bill be substantially amended to deal with the numerous significant unintended consequences that have been identified by submitters and outlined in this report, and that the amended bill be resubmitted to this committee for review.[31]

Despite this recommendation, the ALP senators did not dissent from the Committee’s majority report recommendation that the Senate should pass the Bill.

Australian Greens

Australian Greens MP Adam Bandt voted against the Bill in the House of Representatives.[32] In the second reading debate, he said:

The government has not got the balance right with this. The government's concerned about trespass. Well, there are existing laws about that. You can deal with that under existing laws. Is this going to criminalise journalism? Is this going to criminalise someone sharing a Facebook post about a protest that they just happened to have seen without even knowing what land it's on—they just see it on Facebook and share it? Is this going to mean additional penalties for people who are doing nothing more than engaging in peaceful civil disobedience, not harming anyone and not getting in anyone's way? On the face of it, the answer to all three is yes. The government is trying to rush this bill through because it doesn't care about removing people's rights and liberties. All it wants is to deliver on the cheap headline that it tried to get during the election by kicking a group of people that is trying to draw attention to a very real and pressing social problem in this country.[33]

In her reasons for referral of the Bill to a Senate committee inquiry, Senator Rachel Siewert stated the Bill raised human and digital rights concerns and was ‘[e]ssentially anti-protest legislation, on top of the Privacy Amendment (Protection of Australian Farms) Regulations 2019’.[34] The Australian Greens spokesperson for animal welfare, Senator Mehreen Faruqi has also commented:

The Greens will not be party to the passing of laws that will silence protest and jail animal welfare investigators and activists. Trespass and incitement are already offences, it’s clear these new extreme laws are just about targeting those who expose animal cruelty ... This is a dressed up anti-protest and ag gag bill that takes us further down the road to a police state.[35]

The dissenting report made by the Australian Greens to the Senate Committee inquiry recommended that the Bill not be passed:

The Australian Greens agree with the committee view that farmers and others who grow and process food and fibre make a valuable contribution to the Australian economy and society at large. We also support the right to safety and security of farmers and their families as we do all people. But not once is the safety and security of farmers and their families mentioned in the explanatory memorandum for this bill. Again, we believe that, despite Government rhetoric, the motivation for this bill is not to strengthen the right to safety and security of farmers and their families, but to weaken the rights of individuals and NGOs engaging in political communication that draws attention to the rights, or lack thereof, of livestock animals.[36]

Other parties and independents

Centre Alliance Senator Rex Patrick has indicated that it is ‘likely’ his party will support the Bill.[37] It has also been reported that Pauline Hanson’s One Nation party will support the Bill.[38] Independent Tasmanian MP Andrew Wilkie voted against the Bill in the House of Representatives.[39]

Position of major interest groups

The reactions to the Bill (in particular the submissions to the Senate inquiry) have highlighted sharply divided views on its merits.

Agricultural sector

Agricultural industry organisations, farmers and others who raised concerns with the Aussie Farms interactive online map have largely welcomed the provisions of the Bill. For example, in a media release concerning the Bill, National Farmers' Federation (NFF) President Fiona Simson congratulated the Government ‘on taking such decisive action’:

It's fantastic to see that the Government – which has a significant legislative agenda – has made this a first order of business for the new Parliament. ... The NFF of course respects the right of an individual to engage in protest in a respectful and lawful way. What we don't support is hard-line groups like Aussie Farms promoting extreme views that misrepresent farmers and actions that amount to invasions of businesses and family homes. ... We fully acknowledge that this Bill is not a silver bullet. It is however an important measure that will deter criminal behaviour and give some comfort to primary producers.[40]

Australian Pork Limited’s (APL) submission to the Senate inquiry commented:

It is well established that unauthorised trespass has caused immense distress to the livestock production sector in recent years. Alongside farmers, the general public has been shocked at the audacity and recklessness of animal activists who have driven a relentless campaign to disrupt, threaten and destroy those who raise livestock for the purposes of food production. APL has been advocating for several years to alert state and federal governments of the damage this activity can do and strongly supports the regulatory reforms now underway to criminalise and apply stricter penalties and jail for trespass (and the theft of livestock) along with the use of carriage services to perpetrate those crimes.[41]

The Australian Meat Industry Council (AMIC) argued that the ‘impact of animal rights activism on Australian agribusiness is immense’:

The actions of animal rights activists which have intensified over the last 18 months are putting themselves, hundreds of workers and thousands of animals at risk by seeking to stop legal business operations from occurring. These actions include attempts to stop production by blocking entrances to facilities, harassing and intimidating business owners and employees, unlawfully entering premises and chaining themselves to equipment so production cannot commence. Activist activities have also extended to vandalising businesses including independent retail butchers and tampering with meat products on retail shelves. Some AMIC members have expressed hesitation in submitting individual submissions or attending public hearings on matters pertaining to animal activism for fear of their businesses being targeted by activists in the future. AMIC supports the introduction of stronger legislation to protect Australian agribusinesses from the unlawful and disruptive actions of animal activists.[42]

Animal rights groups and supporters

Animal rights groups and supporters criticised a number of aspects of the Bill. Many considered that concerns regarding safety, privacy and biosecurity were being used to justify laws which prohibited the exposure of inhumane farming practices and valid political activity. For example, Animal Protectors Alliance submitted to the inquiry that the government ‘has introduced this Bill for apparently no purpose other than to criminalise the compassionate rescue of suffering animals from acts of unconscionable cruelty, and the publication of evidence of such cruelty’.[43]

In its submission to the Senate inquiry, Aussie Farms questioned the true intentions of the Bill:

As there have been no instances of activists threatening biosecurity or the safety of farmers or their families, and as the act of trespassing and inciting others to commit crimes is already illegal, it can be surmised that the true intentions of this bill relate to the steady stream of footage and photographs which have been, for many years, a source of great embarrassment and reputation damage for industries that engage in commercialised animal cruelty, and the governments that support them.[44]

People for the Ethical Treatment of Animals (PETA) also questioned the stated objectives of the Bill. For example, it suggested that ‘privacy arguments are not a justification for introducing additional bulked-up offences aimed at quashing the flow of information to consumers simply because that information is gathered in animal factories located on private property’.[45]

The Royal Society for the Prevention of Cruelty to Animals (RSPCA) encouraged the Senate inquiry to look beyond the provisions of the Bill:

Activism does not occur in a vacuum. Increasing incidents of protests of various forms against the treatment of animals in farming is a growing trend witnessed throughout the developed world and it is showing no signs of slowing. There are broader social and cultural issues at play here that must be acknowledged if we are to develop a truly effective strategy for protecting the future of animal agriculture.

Recent research commissioned by the federal Department of Agriculture – Australia’s Shifting Mindset on Farm Animal Welfare – found that 95% of Australians are concerned about farm animal welfare and 91% want to see reform to address it. The report found that failing to respond to these concerns will accelerate eroding levels of community trust and confidence in animal agriculture and the Australian Government’s performance in regulating acceptable welfare standards. Low levels of trust also give rise to increasing levels of protest and activism....

Governments across Australia must look more broadly at initiatives designed to build community trust and confidence in animal agriculture. Evidence shows that investment in improving livestock welfare standards and transparency in production practices is an effective means of achieving this. ^[46]

Legal organisations

In its submission to the Senate inquiry, the Law Council of Australia stated that it did not support the Bill in its current form. The Law Council’s concerns included:

• the potentially broad scope of the proposed measures to capture behaviour other than incitement to trespass, that may inhibit legitimate public dialogue;
• the extent to which the proposed measures overlap with existing offences covering similar conduct;
• the adequacy of proposed defences for journalists and whistleblowers; and
• the severity of the penalties attached to the proposed offences.[47]

In particular, the Law Council was concerned the potential scope of the offences could ‘criminalise conduct that would be otherwise regarded as benign, and... has the potential to create a chilling effect on legitimate dialogue and debate around animal rights and food production’.[48] It made a number of proposals to address these concerns, including amending the Bill to include a clarification that an offence will not occur where a person merely ‘uses a carriage service to engage in public discussion or debate about agricultural practices, or advocate for reform of the law relating to agricultural practices, where the person does not intend to incite the commission of any offence’.[49]

The Legal Services Commission of South Australia also focused on the duplication of existing laws. It submitted:

The Commission believes that there are already significant and appropriate sanctions against this type of behaviour both at common law and under statute ... Existing State laws regulating trespass to property are a better way to address the activities identified by the amendment. Under the South Australian Criminal Law Consolidation Act 1935 serious criminal trespass to non-residential buildings carries a maximum penalty of 10 years imprisonment and aggravated serious criminal trespass carries a maximum penalty of 20 years imprisonment (s.169).[50]

Legal Aid NSW suggested that ‘a more positive response’ to community concern about animal welfare ‘could include measures to improve transparency in the agricultural sector, to ensure that the sector delivers on community expectations’.  Legal Aid NSW considered that such action ‘would reduce the perceived need for independent ‘policing’ by activist groups and individuals’.[51]  

News and media organisations

Australia’s Right to Know (ARTK) represents a group of major news and media organisations as well as the Media, Entertainment and Arts Alliance (a union which represents journalists). In its submission to the Senate inquiry, ARTK recommended changes to expand the exemptions for public interest journalism and whistleblowers (discussed below). It also noted:

It is extraordinary that an individual might face a criminal penalty, including imprisonment, where the farmer or primary production business has not in fact suffered any detriment. While we confine our comments to the news reporting aspects of the Bill, those comments are framed by our overarching concern that the provisions of the Bill unnecessarily duplicate existing laws and also reach further. The Bill, therefore, has broader ramifications including having a chilling effect on reporting and public debate, and discouraging whistle-blowers and sources of stories of this kind.[52]

Government departments

The Attorney-General’s Department outlined that the measures in the Bill ‘seek to safeguard Australian farmers and primary production businesses from persons who uses [sic] a carriage service, such as the internet, to incite trespass, property damage and theft on agricultural land’. It observed:

The incitement of trespass on agricultural land has the potential to cause food contamination, breach biosecurity protocols and make farmers, their families and their employees feel unsafe and intimidated, including in their own homes.[53]

The Attorney-General’s Department considered the Law Council’s proposal for a clarification was ‘unnecessary’:

The department does not consider that there are circumstances where legitimate engagement in public discussion or debate about agricultural practices, or advocacy for law reform would involve an actual intention that others unlawfully trespass, cause damage or steal on agricultural land. However, if a person were to engage in public discussion or debate about agricultural practices which includes an intention to incite trespass and other offences, it is appropriate that the offences in the Bill would apply to that individual.[54]

The Department of Agriculture focused on the threat posed to biosecurity by trespass onto farms:

Australian farmers and agricultural businesses rely on biosecurity measures to reduce the risk of introduction and spread of infectious diseases on their farms. Keeping infectious diseases out is important to farmers because diseases can compromise livestock productivity, farm incomes, animal welfare and international export markets, as well as posing a risk to human health. Entry of unauthorised people onto properties breaches on-farm biosecurity and increases the risk of animal-to-animal, animal-to-human and human-to-animal disease transmission.[55]

It also noted workplace health and safety risks for Department of Agriculture employees:

The department employs over 150 On-Plant Veterinarians and Food Safety Assessors who work in export abattoirs across the country. The department is concerned that trespass activity in export abattoirs could pose workplace health and safety risks for its staff if the trespassers interfere with plant or equipment or release livestock.[56]

Financial implications

The Explanatory Memorandum indicates that the Government considers that the Bill ‘is unlikely to have a significant impact on consolidated revenue’.[57]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[58]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights (PJCHR) considered the Bill in Report 3 of 2019.[59] The PJCHR has sought the Attorney-General’s advice as to the compatibility of the proposed offence of using a carriage service to incite trespass with the rights to freedom of expression and assembly, and in particular:

• the extent to which the right to freedom of assembly is engaged and limited by the measure and, if so, whether such limitations are permissible; and
• whether the limitations on these rights are proportionate to the objectives sought to be achieved, including:
  • whether the proposed offence and its potential application is sufficiently circumscribed;
  • whether the safeguards included in the bill are sufficient for the purposes of international human rights law (including whether the proposed defences for journalists and whistleblowers sufficiently protect the rights to freedom of expression and assembly, noting the concerns raised above); and
  • whether there are other, less rights restrictive, measures reasonably available to achieve the stated objectives.[60]

At the time of writing, the Attorney-General’s response had been received by the PJCHR, but had not been made public.^[61]

Key issues and provisions

The Bill will amend the Criminal Code to introduce two new offences relating to using a carriage service for the purpose of inciting trespass or property offences on ‘agricultural land’. The proposed offences do not directly criminalise the conduct which would give rise to a trespass or property offence, but the use of a carriage service in ways which may incite trespass or property offences by others. The proposed offences will be placed in Part 10.6 of the Criminal Code, which deals with offences relating to telecommunications. Both proposed offences have exceptions intended to apply to public interest journalism and whistleblowers.

Definitions

Item 1 of Schedule 1 will insert definitions relating to the two proposed offences into section 473.1 of the Criminal Code (which contains the definitions for Part 10.6).

In particular, the definition of agricultural land restricts the scope of the offences in the Bill:

agricultural land means land in Australia that is used for a primary production business. For the purposes of this definition, it is immaterial:

(a) whether a part of the land is used for residential purposes; or

(b) whether a part of the land is used for a business that is not a primary production business.

This definition reflects the concerns expressed by some farmers that trespasses or other property offences by animal activists on their property have an additional impact as these properties are often also where their homes are located. However, this justification has been questioned by those opposed to the Bill.[62]

The term primary production business is further defined. The definition lists a broad range of specific agricultural business activities:

• a business of grazing
• a business of operating animal feedlots
• a business of dairy farming
• a business of farming animals for the purpose of producing meat or meat by-products
• a business of poultry farming
• a business of aquaculture
• a business of bee-keeping
• a business of operating an abattoir
• a business of operating livestock sale yards
• a business of operating a registered establishment (within the meaning of the Export Control Act 1982)[63]
• a business of operating a fish processing facility
• a business of growing fruit
• a business of growing vegetables
• a business of growing nuts
• a business of growing crops
• a business of viticulture and
• a business of forestry that is carried on on private land.

Some additional definitions further clarify the meaning of these businesses. For example, the term abattoir is defined as ‘a place where animals are slaughtered (whether or not for human consumption), but does not include a restaurant’.

Scope of definitions

Some organisations raised concerns regarding the scope of the activities covered by the definitions. For example, the Commonwealth Scientific and Industrial Research Organisation’s (CSIRO) submission indicated that it had a number of holdings on which agricultural, livestock and aquaculture activities are undertaken. However, in order for land to be considered ‘agricultural land’ for the purposes of the Bill, the land needs to be used for ‘a primary production business’. It stated:

Business is not defined in the Bill, noting the ordinary meaning of 'business' has the flavour of 'commercial activity' or an activity engaged 'in trade or commerce'. Therefore, in CSIRO's view, whether or not the activities conducted on CSIRO's holdings fall within the definition of a 'primary production business' will depend on whether the activity conducted on the particular holding concurrently meets the definition of 'business', notwithstanding CSIRO's main purpose of engaging in that activity for the purposes of research and development.[64]

Similarly, the Australian Academy of Science noted that the Bill appears to give ‘partial coverage to land used for conducting agricultural and/or scientific research’. It suggested that ‘if the intention of the Parliament is for all land used for agricultural research purposes to be protected under the bill, the Academy recommends that this be made explicit in the legislation’.[65]

Only one of the agricultural activities, ‘a business of forestry’, is further qualified by the term ‘carried on on private land’. In the Bill, the term private land is defined as ‘land other than Crown land’.[66] The Australian Forest Products Association (AFPA) welcomed the Bill but recommended amendments to extend coverage for the forest, wood and paper products industry. It noted this definition ‘excludes timber harvesting on Crown land which is overwhelmingly the biggest target of environmental activists’. AFPA urged that the Bill be amended to ‘include forestry operations on Crown land’.[67]

Further, the term forestry is defined in the Bill as meaning ‘planting or tending trees in a plantation or forest that are intended to be felled’ or ‘felling trees in a plantation or forest’. The AFPA submission argued for ‘an amendment to this wording to reflect the more general definition used for other industries in the Bill’. It recommended ‘a business of operating a forest products processing facility’ be included.[68]

The Australian Livestock and Rural Transporter’s Association (ALRTA) also supported the Bill, but recommended a further extension of its coverage as the Bill ‘fails to afford a similar level of protection for trucking businesses that service agricultural land’:

ALRTA recommends that the Bill should include an additional offence that would apply where a person uses a carriage service to transmit, make available, publish or otherwise distribute material with the intent to incite another person to unlawfully impede, interfere, harass, damage, deface etc a heavy vehicle engaged in moving goods to or from agricultural land.[69]

Proposed offence – inciting trespass offence

Item 2 of Schedule 1 will add proposed Subdivision J into Division 474 of the Criminal Code, titled ‘Offences relating to use of carriage service for inciting trespass, property damage, or theft, on agricultural land’.

Proposed section 474.46 outlines the proposed offence of using a carriage service for inciting trespass on agricultural land. Proposed subsection 474.46(1) provides this offence will be committed if the person:

(a)   transmits, makes available, publishes or otherwise distributes material

(b)   using a carriage service

(c)    with the intention of inciting another person to trespass on agricultural land and

(d)   is reckless as to whether the trespass of the other person on the agricultural land or any conduct engaged in by the other person while trespassing on the agricultural land could cause detriment to a primary production business that is being carried on on the agricultural land.

Scope of conduct

The broad definitions of the terms used in the elements of the proposed offence (using a ‘carriage service’ to distribute ‘material’) are likely to capture a wide range of conduct. However, the final two elements which include the fault elements (requiring an intention to incite another person to trespass and to be reckless as to whether a detriment will be caused to the primary production business) narrow the range of conduct criminalised by the offence.

The term ‘material’ in Part 10.6 of the Criminal Code is defined broadly as including ‘material in any form, or combination of forms, capable of constituting a communication’.[70] Notably an analogous existing offence in section 474.29A of the Criminal Code for using a carriage service for suicide related material restricts the ‘material’ which will be covered by the offence. It requires that ‘the material directly or indirectly counsels or incites committing or attempting to commit suicide’.[71] The offence proposed by the Bill does not contain any comparable limitation.

The Explanatory Memorandum notes that the term ‘material’ could include addresses or information of a primary production business, a website link, a phone call, posts on a social media platform encouraging trespass on agricultural land and maps indicating the locations of primary production businesses. It states:

It is irrelevant to the offence whether the material is already publicly available, including from government websites, online maps or a news report. Any of these types of material could be relevant to the offence if used to incite trespass.[72]

The term ‘carriage service’ is defined in the Criminal Code as having the same meaning as in the Telecommunications Act 1997 (Cth). There that term is broadly defined as meaning ‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’.[73] This definition would cover telephone services or internet access services.

Item 4 of Schedule 1 (which is discussed in more detail below) will have two implications for this provision:

• if the prosecution proves beyond reasonable doubt that a person transmitted, made available, published or otherwise distributed material with the intention of inciting another person to trespass on agricultural land, reckless as to whether the trespass of the other person on the agricultural land or any conduct engaged in by the other person while trespassing on the agricultural land could cause detriment to a primary production business that is being carried on on the agricultural land, then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct and
• if the prosecution proves beyond reasonable doubt that the person engaged in the specified conduct as set out in the previous dot point, then absolute liability applies to the physical element of the offence that a carriage service was used to engage in that conduct.^[74]

The components of the offence which contain fault elements appear to narrow the scope of conduct under the proposed offence.[75] The offender must share the material ‘with the intention of inciting another person to trespass on agricultural land’.[76] The Explanatory Memorandum notes that the offence ‘requires the fault element of intent to avoid criminalising situations where a person transmits, makes available, publishes or otherwise distributes material and inadvertently encourages trespass’.[77] The fault element of intention is defined in section 5.2 of the Criminal Code:

(1)   A person has intention with respect to conduct if he or she means to engage in that conduct.

(2)   A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

(3)   A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

While the term ‘trespass’ is noted in the Explanatory Memorandum as being ‘taken to have its common law meaning’, the other key term ‘inciting’ is not defined in the proposed offence or the Criminal Code.[78] The Criminal Code includes a separate offence of incitement (section 11.4) under which ‘a person who urges the commission of an offence commits the offence of incitement’. There are also other offences in the Criminal Code which use the term ‘incite’ without defining it.

In his second reading speech, the Attorney-General referred to ‘reprehensible conduct’ which was ‘enabled and encouraged by the sharing of personal information online’. He stated:

The government is committed to protecting farmers from the actions of those who disseminate such information with the intention to encourage others to unlawfully trespass, or unlawfully damage property, on agricultural land.[79]

The Aussie Farms interactive map website includes a disclaimer which states ‘Aussie Farms does not condone or encourage the use of this resource for illegal purposes including trespass, or for any use contrary to our core values’.[80] However, in his second reading speech for the Bill the Attorney-General appears to address this situation:

The intention of a person to incite trespass will be based on all the circumstances of a relevant case. For instance, the inclusion of a disclaimer on a website would not of course of itself be conclusive to this point.[81]

The Aussie Farms submission to the Senate inquiry drew attention to the lack of clarity regarding the meaning of the term ‘incite’:

The bill focuses on the act of ‘inciting’ others to trespass on a farm by publishing materials such as footage, photographs, or maps, but it fails to provide any explanation of what would constitute ‘inciting’ or in what circumstances, or by whom, such a categorisation would be made ... The government has repeatedly referred to the map as an ‘attack map’ in a clear attempt to undermine its importance as a consumer resource and engender fear and hatred of the freedom of information. Essentially, it doesn’t matter what the actual purpose or intention of the map, or the publication of footage, might be; it only matters whether the government says it is being used to incite trespass.[82]

The Law Council also argued the offences created by the Bill had the capacity to capture benign conduct. It suggested an additional clarification similar to an existing provision which limits the scope of the offence of inciting suicide using a carriage service (section 474.29A of the Criminal Code).[83] This would:

...make it clear that it will not constitute an offence merely because the person uses a carriage service to engage in public discussion or debate about agricultural practices, or advocate for reform of the law relating to agricultural practices, where the person does not intend to incite the commission of any offence.[84]

At the Senate Committee public hearing, a representative from the Attorney-General’s Department stated:

Intentional incitement is a high threshold. It will not apply to accidental or inadvertent communications, as some have suggested. A person must mean for another to unlawfully enter agricultural land or engage in the other unlawful conduct.[85]

Notably, another person will not actually have to have acted on the incitement to trespass for the proposed offence to occur. Further, the Explanatory Memorandum observes that an attempt to commit the offence ‘would also be criminalised’.[86] This might capture, for example, where a person erroneously emailed the wrong person, but otherwise met the elements of the proposed offence.

Proposed paragraph 474.46(1)(d) provides that the offender must be reckless as to whether the other person’s trespass, or any conduct engaged in by the other person while trespassing on agricultural land, could cause detriment to a primary production business being carried on on the land. The fault element of recklessness is defined in section 5.4 of the Criminal Code:

(1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2) A person is reckless with respect to a result if:

(a) he or she is aware of a substantial risk that the result will occur; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk

(3) The question whether taking a risk is unjustifiable is one of fact.

The Explanatory Memorandum states:

For the purposes of this element, it is irrelevant if detriment to a primary production business actually occurs as a result of incited trespass. All that is needed to satisfy this element of the offence is that the offender was aware there was a substantial risk that trespass could cause detriment to a primary production business on the agricultural land and in having regard to the circumstances known to them, it was unjustifiable for them to incite trespass.[87]

The term ‘detriment’ is defined broadly in the Criminal Code as including ‘any disadvantage and is not limited to personal injury or to loss of or damage to property’.[88]

The Law Council considered this element ‘illustrates the breadth of the offence, and how potentially vague its limits are’. It stated:

It would seem to be reckless not to know what someone else might do with the information. However, it is not possible to know the potential uses to which people will put information accessed on the internet or via social media, suggesting it would be unjustifiable to take the risk. This is particularly so given the broad definition of ‘detriment’ in the Criminal Code to include any disadvantage and which is not limited to personal injury or to loss of or damage to property.[89]

Penalty

The maximum penalty for the proposed offence is 12 months imprisonment. However, where offences are punishable by imprisonment only, the Crimes Act 1914 (Cth) allows courts to impose pecuniary penalties instead of, or in addition to, imprisonment (where appropriate and if the contrary intention does not appear in the offence).[90] Individuals could face penalties of up to 60 penalty units ($12,600) and body corporates 300 penalty units ($63,000).[91] However, the Explanatory Memorandum states that ‘[g]iven the significant harm that can be caused by agricultural trespass ... it is appropriate that inciting individuals or groups to commit this crime attracts a period of imprisonment’. It also observes that the ‘majority of state and territory trespass offences are penalised by imprisonment of six to 12 months’.[92]

The Law Council argued that the penalty is not proportionate to the policy objectives of the Bill. It emphasised that the offence ‘does not require actual detriment to a primary production business, just that the offender was reckless as to whether that might happen’. It recommended that the maximum penalty for the proposed offences ‘should not exceed the maximum penalty of the substantive offences that are being incited to be committed’.[93]

Proposed offence – inciting property damage or theft

Proposed section 474.47 outlines the proposed offence of using a carriage service for inciting property damage, or theft, on agricultural land. Proposed subsection 474.47(1) provides this offence will be committed if the person:

(a) transmits, makes available, publishes or otherwise distributes material

(b)  using a carriage service

(c) with the intention of inciting another person to:

(i)   unlawfully damage property on agricultural land or

(ii) unlawfully destroy property on agricultural land or

(iii) commit theft of property on agricultural land.

Item 4 of Schedule 1 (which is discussed in more detail below) will have two implications for this offence:

• if the prosecution proves beyond reasonable doubt that a person transmitted, made available, published or otherwise distributed material with the intention of inciting another person to unlawfully damage property on agricultural land, unlawfully destroy property on agricultural land or commit theft of property on agricultural land, then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct and
• if the prosecution proves beyond reasonable doubt that the person engaged in the specified conduct as set out in the previous dot point, then absolute liability applies to the physical element of the offence that a carriage service was used to engage in that conduct.^[94]

Further clarification is provided for the theft component of the offence in proposed subsections 474.47(5)–(8). The Explanatory Memorandum states that this ‘definition is consistent with common law, and is consistent with the definition of theft in the Dictionary to the Criminal Code, except that theft for the purposes of section 474.47 need not (and probably does not) relate to Commonwealth property’.[95]

Proposed subsection 474.47(5) provides that for the purposes of the section, a person commits theft of property if the property belongs to another person and ‘the person dishonestly appropriates the property with the intention of permanently depriving the other person of the property’.[96]

Proposed subsection 474.47(7) provides that in a prosecution for an offence against proposed section 474.47 ‘the determination of dishonesty is a matter for the trier of fact’. In a jury trial, the trier of fact is the jury. This mirrors section 130.4 of the Criminal Code relating to offences in Chapter 7.

Proposed subsection 474.47(8) provides that sections 131.2 to 131.11 of the Criminal Code apply (with appropriate modifications) in determining whether a person commits theft of property (within the meaning of this section). These sections clarify the circumstances in which an action will constitute theft.

Penalty

The maximum penalty for the offence created by proposed subsection 474.47(1) is imprisonment for five years. However, as noted above, where offences are punishable by imprisonment only, the Crimes Act allows courts to impose pecuniary penalties instead of, or in addition to, imprisonment (where appropriate and if the contrary intention does not appear in the offence). Individuals could face penalties of 300 penalty units ($63,000) and body corporates 1,500 penalty units ($315,000).

The Explanatory Memorandum describes the penalty for the proposed offence as ‘consistent with the penalty for the incitement offence under section 11.4 of the Criminal Code’. It states:

The majority of state and territory property damage and theft offences are penalised by imprisonment of five to 10 years. Given the significant harm that can be caused by agricultural property damage and theft, including to public safety and food safety, it is appropriate that inciting people or groups to commit these crimes attracts a period of imprisonment.[97]

As noted above, Law Council expressed concerns regarding the proportionality of the penalties of the proposed offences. It recommended that the maximum penalties for the proposed offences should not exceed the maximum penalty of the substantive offences that are being incited to be committed.[98]

Exceptions

As noted above, both proposed offences contain exceptions intended to cover public interest journalism and whistleblowers.

Public interest journalism

Proposed subsections 474.46(2) and 474.47(2) contain a public interest journalism exception to the proposed offences. These subsections provide that the proposed offences will not apply to material, if the material relates to a news report or current affairs report that is ‘in the public interest’ and was ‘made by a person working in a professional capacity as a journalist’.

The Explanatory Memorandum states:

This subsection is intended to exempt bona fide journalism from the offence. The public interest requirement and requirement that the journalist is working in a professional capacity are intended to operate to exclude material that has been published by organisations for the purpose of inciting trespass onto agricultural land, but which purports to be journalism.[99]

A number of issues were raised by interest groups regarding the framing of this exception. Firstly, it must be raised as an offence-specific defence to a prosecution—it is not a component of the elements of the offence. For example, Australia’s Right to Know (ARTK), a group representing news organisations, observed:

Recent AFP investigations demonstrate that an investigating authority does not take prospective defences or exemptions into account, meaning that a journalist can be subjected to a criminal investigation for a publication which was in the public interest.[100]

Secondly, the exception only applies where the material to which the news report or current affairs report relates ‘is in the public interest’. This creates a lack of clarity concerning the scope of the exception. ARTK noted that the absence of a definition of the term ‘public interest’ may mean that ‘views may differ about its meaning’. It recommended adopting the framework of the defence in section 122.5(6) of the Criminal Code, which provides a defence to secrecy offences for persons employed by media organisations who ‘reasonably believed that engaging in that conduct was in the public interest’. ARTK argued:

A reasonable belief of public interest by a person engaged in the business of reporting news or current affairs strikes the appropriate balance between protecting media freedom and the detriment which is allegedly caused by trespassers on agricultural land. It would also place a fairer burden on a media defendant.[101]

Thirdly, the defence applies to a news report or current affairs report made by ‘a person working in a professional capacity as a journalist’. Modern media organisations employ a large number of persons who deal with, publish and distribute material who are not ‘journalists’ per se. ARTK stated that a broader application of the defence to ‘members of administrative staff is also important for large media organisations where tasks are shared amongst a team’.[102]

The Law Council proposed that the term ‘journalist’ should be clarified and given a broader meaning. It gave the example of the definition used in section 126J of the Evidence Act 1995 (Cth).[103] This provides the term journalist means ‘a person who is engaged and active in the publication of news...’. However, this suggestion was opposed by the Attorney-General’s Department which argued this definition has been developed for a particular purpose (the application of journalist’s privilege) and would be ‘unnecessarily restrictive and could have the effect of narrowing the application of the exemption’.[104]

Finally, a defendant would bear an evidential burden in relation to raising this defence. As noted above, the Scrutiny Committee has requested information from the Attorney-General concerning this matter.

The Attorney-General’s Department stated the public interest journalism exceptions in the Bill are ‘intended to ensure that legitimate journalism is protected whilst ensuring those who make false claims of journalistic activities, to avoid liability, are not protected’.[105] It indicated that the exception had been modelled on the protection for journalists provisions in the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth).[106] It noted that in the Bill the term ‘journalist’ is ‘undefined and left to its ordinary meaning’ which means ‘it can be considered in the context of each case and avoiding the risk of a rigid statutory definition being outdated or inappropriately narrow in certain cases’.[107]

Whistleblowers

Proposed subsections 474.46(3) and 474.47(3) contain another limited exception intended to exempt whistleblowers. An exemption would apply in any circumstances where a law of the Commonwealth, or of a state or territory provides that the person would not be subject to any civil or criminal liability for the conduct. The defendant would bear an evidential burden in relation to this matter. Note 1 under the subsections clarifies that the Public Interest Disclosure Act 2013 (Cth) (PID Act) provides that an individual is not subject to any civil or criminal liability for making a public interest disclosure. Note 2 highlights the Corporations Act 2001 (Cth) also includes a legal framework for protected disclosures by company employees and officers. The Explanatory Memorandum states these notes are ‘intended to clarify that the offence does not apply to, for example, whistle blowers who make protected disclosures of information relating to instances of animal cruelty on agricultural land under whistleblowing laws’.[108]

Proposed subsections 474.46(4) and 474.47(4) clarify that this exemption does not limit section 10.5 of the Criminal Code which provides that ‘[a] person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law’.

The Law Council argued protections for whistleblowers under this exception were limited:

The PID Act applies only to disclosures by Commonwealth public officials, while the Corporations Act provisions apply only to public companies and large proprietary companies, and are limited to certain types of disclosure that are unlikely to extend to animal cruelty ...

[T]he scope of the operation of the exception for whistleblowers is unclear and this exception may well not extend to the people who are most likely to have information about animal cruelty – namely employees and contractors in the primary production industry. For example, employees of private companies who witness repeated incidents of animal cruelty on a particular property who are not protected by the state and territory or Commonwealth whistleblower regimes who resort to disclosing their concerns via a carriage service.[109]

Notably, the operation of the PID Act has been the subject of criticism. Recently, a federal judge characterised it as ‘technical, obtuse and intractable’, leading the Attorney-General to indicate he intends to ‘overhaul’ legislation.[110]

Duplication of state and territory offences

Several Senate inquiry submissions which opposed the Bill argued that the proposed offences effectively duplicate or overlap with existing state and territory offences for trespass, property offences and extended criminal responsibility (such as incitement). This meant the proposed offences were either unnecessary or could create enforcement issues. For example, the Law Council noted:

[G]reat complexity arises where Commonwealth and State laws cover substantially the same criminal offence but are different in terms of penalties, defences and the type of evidence necessary to satisfy the offence. Questions arise as to whether or not the Commonwealth has intended to ‘cover the field’ and whether the State law is invalid for inconsistency ... The complexity would be exacerbated where the Commonwealth has not legislated with respect to the primary offences (e.g., trespass, theft and property damage), but has with respect to incitement of those offences. There are good policy reasons for avoiding such complexity and the resulting uncertainty and litigation that would likely arise.[111]

The Attorney-General’s Department acknowledged that trespass and property offences already exist in state and territory criminal law and that there are also ‘incitement offences that can extend liability to those who incite others to commit these offences’:

However, there is considerable variation in approaches across the States and Territories. For example, at the time of introduction of the Bill, the penalty for trespass under the Inclosed Lands Protection Act 1901 (NSW) was as low as $1,100. The Government believes it is important to provide consistent and strong protection for Australian farmers. The purpose of the Bill is to ensure a consistent national approach, including appropriate penalties, for those that use a carriage service, such as the internet, to incite others to trespass, damage and steal property on agricultural land.[112]

It also pointed to the constitutional basis for the Commonwealth to legislate:

[T]he requirement that the person use a carriage service is a jurisdictional element of the offence consistent with the Commonwealth’s head of power under section 51(v) of the Constitution. This is consistent with other offences in Part 10.6 of the Criminal Code.[113]

Part 10.6 of the Criminal Code also includes section 475.1 which clarifies that the telecommunications offences are ‘not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory’.

On the issue of whether the new laws overlap or duplicate existing offences, the Department of Agriculture submitted that these ‘new laws complement state and territory legislation, and do not duplicate current laws’. It stated it was ‘liaising with state and territory counterparts on actions and reviews being undertaken by the other jurisdictions to strengthen laws relating to farm trespass’.[114]

Implied freedom of political communication

A freedom of communication in relation to public and political discussion has been found by Australian courts to be implied in the system of representative and responsible government established by the Constitution. The implied freedom operates as a constraint to legislative and executive power, rather than as an individual right. Laws which burden this implied freedom of political communication may be invalid if they are found not to be compatible with the maintenance of the constitutionally prescribed system of government.[115]

In his judgment in ABC v Lenah Game Meats, which considered an application to restrain broadcasting of film taken at a possum abattoir, obtained through trespass at the facility, Justice Kirby stated that animal welfare is ‘a legitimate matter of governmental and political concern’.^[116] 

Proposed subsection 474.48(1) provides that proposed subdivision J ‘does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication’. Proposed subsection 474.48(2) clarifies that the above subsection ‘does not limit the application of section 15A of the Acts Interpretation Act 1901 to this Act’, which provides that legislation is to be ‘read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth...’.[117]

The High Court of Australia’s interpretation of the implied freedom of political communication has developed over time and there is a lack of clarity concerning how it may be applied to offences in the Criminal Code in the future.[118] Notably, this doctrine was the basis for the High Court’s decision in Brown v Tasmania which determined that provisions in the Workplaces (Protection from Protesters) Act 2014 (Tas) impermissibly burdened the implied freedom of political communication contrary to the Constitution.[119]

Several submissions to the Senate inquiry suggested that the proposed offences in the Bill would impinge on the implied freedom of political communication.[120] For example, the NSW Council of Civil Liberties considered the effect of the proposed offence was to stifle political protest and achieve ‘an objective that starkly contradicts the implied freedom of political communication’.[121]

The Law Council of Australia stated:

The issue is whether the Bill, as it is framed, is reasonably appropriate and adapted to advance [its] legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. The Law Council considers that to restrict peaceful protest would not be reasonably appropriate and adapted to advance the legitimate object of the Bill.[122]

While the Law Council acknowledged that unlawful communications are not protected by the implied right, it noted there was still a concern the proposed offences could result in persons being reluctant to make lawful communications ‘for fear that it could be regarded as inciting trespass or criminal damage, even though no such incitement is intended’. It argued:

In effect, the law may have a chilling effect on valid communications intended to alert the public to acts of animal cruelty or breaches of environmental laws or food safety laws by businesses engaged in the production of food.[123]

In response to these concerns, the Attorney-General’s Department’s submission stated:

Given the limited nature of the restriction on communication imposed by the Bill—limiting communications that are intended to incite criminal conduct—the department considers the Bill could not be reasonably described as an impermissible burden on political communication.[124]

Other provisions

Item 3 of Schedule 1 amends section 475.1A of the Criminal Code which provides a defence from telecommunications services offences in Division 474 for national relay service employees and emergency call persons who engage in conduct in good faith in the course of their duties. The amendment adds proposed subdivision J to the provisions to which this defence applies. The Explanatory Memorandum states:

These defences are appropriate as, for example, an emergency call person could direct firetrucks responding to a fire to use the shortest route to stop further damage being caused by the fire even though that route would cross another person’s agricultural land and is likely cause damage. It is appropriate that this kind of conduct is excused from these offences.[125]

Item 4 of Schedule 1 amends section 475.1B of the Criminal Code. That section applies to offences in Subdivision C, D, E or F of Division 474 that have a physical element that consists of a person using a carriage service to engage in specified conduct. Section 475.1B provides for two matters. Firstly, subsection 475.1B(1) provides that, in relation to such offences, if the prosecution proves beyond reasonable doubt that the person engaged in the specified conduct, then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct. A legal (rather than evidential) burden is imposed on a defendant in relation to this matter. Secondly, subsection 475.1B(2)provides that, in relation to the offences covered by the section, if the prosecution proves beyond reasonable doubt that the person engaged in the specified conduct, then absolute liability applies to the physical element of the offence that a carriage service was used to engage in that conduct.[126]

The amendment adds proposed subdivision J to the offences covered by this section.

The Explanatory Memorandum states:

The purpose of this presumption is to address problems encountered by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the relevant criminal conduct. This presumption provides that, in relation to the element of the offences that a carriage service was used, if the prosecution proves beyond reasonable doubt that the person engaged in the relevant criminal conduct, then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct.[127]

Concluding comments

The two offences created by the Bill appear to be targeted at deterring specific behaviour through a legislative avenue where the Commonwealth has a clear constitutional head of power (telecommunications).The Bill also reflects a trend towards increased federal regulation of online communications, including through the criminal law. For example, the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018 (Cth) and the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) have added offences to the telecommunication services offences contained in the Criminal Code.

The requirement that offenders must have the intention of inciting another person to trespass or commit a property offence on agricultural land may be a significant barrier to the prosecution of the proposed offences. During the Senate inquiry public hearing an officer from the Attorney-General’s Department observed that ‘[i]ntentional incitement is a high threshold’.[128] Nonetheless, even with this requirement, the proposed offences will raise civil liberties concerns.

Many persons who support animal rights, ethical food production or humane farming practices may consider that offences which criminalise the online communication of material relevant to these issues is a disproportionate response to the matters the Bill is intended to address. While there may appear to be a correlation between certain online material and an increase in farm trespass and property offences, this does not prove a causative relationship necessarily exists. Other factors, such as increasing community interest in animal welfare, may be responsible. The offences in the Bill may also be perceived as setting a precedent for further measures to deter other types of direct action political protests or civil disobedience.

Technological developments have facilitated the aggregation and sharing of information, including publicly available information, in new ways. A witness to the Senate inquiry outlined her concern that the ‘pace of expansion of technology has outpaced legal frameworks to protect the rights of individuals’:

[I]n this world of instant information, all activity is open to scrutiny, instant sharing and comment. Once data is electronically published it is difficult, if not impossible, to remove. The technology is available in anyone's hands to record, edit and report a perspective to a global audience. This perspective may be an accurate representation of fact or a snapshot that appears to support an individual viewpoint. Once it is published it becomes fact, and the opportunity for those who are misrepresented or incompletely represented—in this case, farmers—to remove or refute the so-called evidence is minimal.[129]

The Bill’s approach to online communications intersects with ongoing regulatory challenges in balancing privacy and reputational rights with other rights, such as freedom of expression. These challenges are reflected in the recent Australian Competition and Consumer Commission report into digital platforms. Recommendations from that report included strengthened protections in the Privacy Act and broader reform of privacy law, including a statutory cause of action for serious invasions of privacy.[130]