Introduction
Australia needs a sustainable agriculture sector. To guarantee our food security and capitalise on export opportunities, Australia’s farming practices must make the best and most efficient use of our limited natural resources. Climate change, including prolonged droughts of increasing frequency, makes this issue vital.
Increasingly, investors and consumers alike are demanding environmentally sustainable farming practices and respect for animal welfare standards. Our export markets depend on high quality assurance, which can be damaged by the failure to ensure the strictest regulatory supervision. Issues of public health, preventing product substitution and other forms of criminality depend on other forms of law enforcement and intelligence.
The activities of journalists, whistleblowers, trade unionists and protesters, that have the effect of protecting our global reputation and highest standards, are critical to the maintenance of this reputation. We cannot rely on self-regulation or regulators alone.
It is deeply ironic that the Coalition government appears wedded to a philosophy of deregulation and privatisation, except on this occasion.
The matters addressed by this bill rose to prominence in January 2019 when an animal rights group called Aussie Farms published an interactive map with the locations of hundreds of rural properties across the country, including livestock farms, meatworks and dairies. A number of incidences of trespass onto farms and abattoirs followed the release of the map, and the government responded by listing Aussie Farms under the Privacy Act (opening it to significant fines), and pledging further new laws to protect farmers from vegan and other animal rights activists.
The claimed purpose of this legislation, which is to protect Australian farmers and primary production businesses from those who incite trespass or other property offences on agricultural land, is a worthy purpose, but may not be advanced by this bill.
Trespassing onto agricultural land can cause significant distress to farmers, farm and meat workers and farming families. Persons who trespass on farms, feedlots, abattoirs, or meat processing facilities also pose a potential threat to the biosecurity of those facilities. Labor takes these issues seriously.
Trespass, theft and destruction of property are all illegal under state and territory laws across Australia. Incitement to commit crimes is also illegal, and in most states and territories, punishable in a way proportionate to the substantive crime.
Supporters of the Criminal Code (Agricultural Protection) Amendment Bill claim that this legislation will criminalise, and deter, already illegal acts of farm invasions by animal welfare activists. But this bill does not address trespass.
The bill seeks to introduce two new offences to the Criminal Code, to criminalise those who use a carriage service, such as the internet, to incite another person to trespass, damage, destroy or steal property on agricultural land.
There is no place for actions, no matter the cause, that endanger or threaten workers, create biosecurity risks or intimidate farmers on their own property.
This bill was introduced by the Attorney-General on 4 July merely to fulfil an election pledge to take further action against animal rights campaigners who encourage trespass by activists onto farms.
There can be no doubt, given the evidence and the sparse submissions from the Attorney-General’s Department, the Department of Agriculture, and the lack of submissions from the Department of Home Affairs and the Australian Federal Police, that this bill has been drafted in haste.
Labor’s long term position has been to support moves to achieve better animal welfare and consistent application and enforcement of animal protection statutes by harmonising relevant federal, state and territory laws and codes. Labor has supported the establishment of an independent office of animal welfare; phasing out cosmetic testing on animals or on products used in the production of cosmetics; and; has opposed any ‘ag-gag’ legislation.
The Commonwealth parliament is no place for virtue signalling, especially when there are broader consequences. The lack of rigour applied to the drafting and evidence from the relevant departments on this bill has led to concerns that this is a problem looking for a solution.
The risk of unintended consequences
The reliance on creating new incitement facilities presents a threat beyond animal welfare activists. In our view there are concerns around how these provisions might impact:
legitimate rural protest movements involving farmers;
legitimate industrial activities by workers;
legitimate rights to protest and political communication;
public interest journalism;
Supporters of this bill argue that it:
fills gaps in state legislation or provides an additional tool for authorities to deal with trespass;
will deter illegal farm invasion; and
mitigates against biosecurity risks:
all the while protecting journalists and whistle-blowers.
As the committee report attests, evidence provided to the committee has raised doubts about the need for the bill, its efficacy, the protections for journalists and whistle-blowers, its drafting and its necessity in the face of the actions of state governments.
This bill may not add anything to extensive existing protections for farmers under state and territory laws, and it may have a range of unintended consequences that include creating a confusing overlap of state and federal laws, and criminalising legitimate political communications, journalism, whistleblowing, protests and industrial action by people seeking to expose and prevent unlawful cruelty to animals or other unlawful activity.
No need for the legislation
Labor supports arguments made by the Law Council of Australia and others that the bill is unnecessary, because the substantive matters are covered by state and territory legislation.
Appendix 3 of the committee report provides a breakdown of relevant state and territory legislation currently in force, and demonstrates that:
all states and territories have trespass offences, with penalties ranging from fines only (NSW) to 2 years (WA);
the most common maximum sentences for trespass across the states and territories are six or 12 months imprisonment;
all states and territories have offences for wilful damage or destruction of private property, with maximum offences ranging from 12 months (TAS) to 14 years (WA, up to life imprisonment if fire is used);
all states and territories criminalise either incitement specifically (ACT, NT, TAS, VIC, WA) or aiding, abetting, recruiting, counselling or procuring others to commit a crime (SA, QLD, NSW);
maximum penalties for incitement, aiding, abetting, recruiting, counselling or procuring range from 12 months (NT) to 21 years (TAS); and
in most states and territories, the penalty for incitement is based on the penalty for the substantive offence and cannot be higher.
Labor Senators agree with the Law Council’s assessment that the penalties attached to proposed section 474.46 of the bill are higher than or equal to the maximum penalty for the substantive offence in most jurisdictions (NSW, ACT, NT, QLD, SA, TAS, and VIC).
This could lead to perverse outcomes. A likely example is where a person who puts a post on Facebook suggesting someone should break into a farm and record some footage goes to prison for 12 months, but the person who actually breaks in and records the footage only receives a fine or six months in prison.
While Labor does not intend to oppose the bill, Labor Senators agree that the bill is somewhat heavy-handed in relation to existing laws. Labor Senators also note that all states and territories have legislation in force that criminalises incitement to commit crimes, so this bill arguably adds an unnecessary level of complexity and duplication.
State governments and authorities already have adequate powers
Supporters of this bill argue that that legislative action by the Commonwealth Parliament is needed to fill gaps in State and Territory legislation, and perceived lack of action by state authorities.
The Attorney General’s Department has identified 31 laws that already deal with trespass, property damage and relevant incitement offences in state and territory laws. These are:
Australian Capital Territory:
Crimes Act 1900 s. 151 – Forcible entry on land
Crimes Act 1900 s. 116 – Destroying or damaging property
Criminal Code 2002 s 403 – Damaging property
Criminal Code 2002 s. 47 – Incitement
Inclosed Lands Protection Act 1901 s. 4 – Unlawful entry on inclosed lands
Crimes Act 1900 s. 195 – Destroying or damaging property
Crimes Act 1900 s. 351A – Recruiting persons to engage in criminal activity
Trespass Act 1987 s. 5 – Trespass on premises
Criminal Code Act 1983 s. 241 of Schedule 1 – Damage to property
Criminal Code Act 1983 s. 12 of Schedule 1 – Abettors and accessories
Summary Offences Act 1923 s. 69B – Inciting to the commission of offences
Summary Offences Act 2005 s. 11 – Trespass
Criminal Code 1899 s. 469 – Wilful damage
Criminal Code 1899 s. 7 – Principal offenders
Summary Offences Act 1953 s. 17 – Being on premises for an unlawful purpose
Criminal Law Consolidation Act 1935 s. 170A – Criminal trespass – places of residence
Criminal Law Consolidation Act 1935 s. 85 – Arson and other property damage
Criminal Law Consolidation Act 1935 s. 267 – Aiding and abetting
Police Offences Act 1935 s. 14B – Unlawful entry on land
Police Offences Act 1935 s. 37 – Injuries to property offences relating to property
Criminal Code Act 1924 s. 3 of Schedule 1 – Which parties to crime to be deemed principals in the first degree
Criminal Code Act 1924 s. 298 of Schedule 1 – Inciting to commit crimes
Summary Offences Act 1966 s. 9 – Wilful destruction, damage etc. of property
Crimes Act 1958 s. 197 – Destroying or damaging property
Crimes Act 1958 s. 321G – Incitement
Criminal Code Compilation 1913 s. 69 – Forcibly entering land
Criminal Code Compilation 1913 s. 70A – Trespass
Criminal Code Compilation 1913 s. 444 – Criminal damage
Criminal Code Compilation 1913 s. 445 – Damaging property
Criminal Code Compilation 1913 s. 7 – Principal offenders
Criminal Code Compilation 1913 s. 553 – Incitement to commit indictable offence
In a submission to the Victorian Legislative Council Economy and Infrastructure Committee, Agriculture Victoria identifies eleven possible Victorian laws that may be applicable to the activities of animal activists, including laws on animal welfare, biosecurity trespass, surveillance, privacy and civil liability. In addition general offences may be applicable for conspiring to create a crime and aiding, abetting, counselling of procuring the commission of an offence.
New South Wales has recently announced amendments to the Biosecurity Act which will create a new offence that will see illegal trespassers on farms, creating biosecurity risks, handed an immediate on-the-spot fine of $1,000 and further fines of up to $220 000 per person and $440 000 for corporations.
The Western Australian Government is developing amendments to legislation by introducing circumstances of aggravation for the criminal offence of trespass, to apply where the offender interferes with agricultural production while trespassing. The maximum penalty for aggravated trespass will be a fine of $24 000 and imprisonment for two years, double the usual maximum penalty for trespass. In addition to any other penalty imposed, and subject to a limited judicial discretion, a person who commits aggravated trespass will be made subject to a community based order containing conditions aimed at preventing further offending.
Similarly, the Queensland government has announced that they will introduce on the spot fines as an alternative to pursuing trespass charges on animal rights activists invading farms in illegal protests. The Criminal Code (Trespass Offences) Amendment Bill 2019, was introduced into Parliament on 1 May 2019, and in addition the Queensland Government has established a joint taskforce with the Department of Agriculture and Fisheries and the Queensland Police Service intelligence unit to focus specifically on animal activism. More recently, Queensland has flagged more extensive anti-protest laws.
In South Australia, the existing offence of ‘serious criminal trespass—non-residential buildings’ contrary to Criminal Law Consolidation Act 1935 (SA), section 168 is punishable by imprisonment for 10 years for a basic offence and imprisonment for 20 years for an aggravated offence.
The Law Council has identified that in every state and territory there are pre-existing laws covering trespass offences, criminal damage and extensions of criminal responsibility (in other words, offences similar to incitement).
The offences created by this bill appear to overlap with existing state laws that already prohibit trespass, damage to property and theft, and that could already form the basis of criminal liability for those who incite those offences. To this extent, the bill might only complicate the law with additional offences that will not improve existing legal protections for farmers.
The committee’s report outlines legitimate fears of farmers in the face of increased animal activism. It is the view of Labor Senators that in the first instance responsibility for the prevention, and punishment, of crimes of trespass, damage to private property and incitement must be with the states.
The committee report concluded that the bill is needed in order to ‘send a strong message’ to activists and act as a deterrent. Labor is not convinced that the bill will achieve that aim. Certainly, activists have responded by saying they will not be deterred by it.
The bill may have a range of unforeseen consequences
While this bill seeks to deal with an issue of farm invasions by activists motivated by animal welfare concerns, as Senators we need to consider how this law could be used in the future. In short, what are the unforeseen consequences?
Supporters of this bill argue that it is specifically targeted at animal activists who seek to deliberately incite trespass onto farmers land. While this is the stated reason for the bill, Labor Senators are concerned that there are a range of unintended consequences.
Mr Mark Maley, Editorial Policies Manager for the Australian Broadcasting Corporation outlined the dilemma:
One of the things about the sort of work I’ve done for many decades is that you see political climates change. The intention of the bill and the honest intention of the framers of the bill at the moment—I am perfectly prepared to believe that the intention of the bill is exactly as you’ve described it. But that doesn’t necessarily control how it’s going to be interpreted or used in potentially a very different political environment—a very different environment of public opinion. These things do have an impact on how these sorts of pieces of legislation can be used….But whenever legislation is done we have to think, ‘How could this legislation potentially be misused?’ Our fear is that it could potentially be misused in a different environment of public opinion, politics, whatever. Even though it’s not the intention of the current framers of the bill—and we accept that it isn’t—we could become unintended victims of it.
A range of possible uses for the extension of incitement as an offence have been flagged in the inquiry. These include how it could be used against farmers engaged in activism, against workers and industrial organisations, journalists, whistle-blowers and legitimate activism.
Could this law be used against farmers?
Supporters of this bill argue that that legislative action by the Commonwealth Parliament is needed to fill gaps in state and territory legislation, and perceived lack of action by state authorities.
However activism on agricultural land comes in many shapes or sizes. In recent years there have been cases of protests and other activist activities, including trespass, on agricultural land by people involved in the Lock the Gate alliance, and involved in anti-water pipeline protests in Victoria’s Yarra Valley, to name a couple of instances.
While supporters of the Bill argue that the legislation would only ever be used against animal activists engaged in inciting illegal behaviour, no evidence was provided that it could not be used in other contexts and against activists for other causes.
There is a long and rich history of public protest by farmers protecting their interests, including on private agricultural land. Some more recent examples include:
In 2012 protesters against coal seam gas exploration engaged in a 10-day standoff in the Kerry Valley, Queensland, against Arrow Energy.
A Coonamble farmer locked himself to a gate in a bid to disrupt Santos’ coal seam gas operations in the Pilliga forest in 2014.
Plug the Pipeline protestors threatened to march on the farm of the then Premier of Victoria, John Brumby, near Bendigo in 2008.
Dairy farmers have in the past discussed blockades of supermarkets and in 2013 farmers in Warrnambool staged protest actions over low milk prices.
In 2011 Ballarat potato growers drove 50 tractors to the McCain factory in Wendouree to protest a reduction of almost 20 per cent in the price they would receive for their crop.
While not all of the above examples involve incitement to invade private agricultural land, they do demonstrate that protest is a rich rural tradition and the Senate should be wary about the unintended consequences of this legislation.
Could this law be used against workers?
The bill may impact on workers and their unions seeking to organise industrial action on agricultural land or at abattoirs, including on matters such as occupational health and safety (OH&S), wage theft or foreign worker exploitation.
There are legitimate fears that this legislation could be applied, no matter the stated intention of the framers of the bill, to crack down on industrial activity, notably by trade unions. According to the Law Council:
Senator KIM CARR: Your concern is, in relation to whistleblowing employees and various others engaged in this matter, they could be prosecuted. Does that include trade unionists?
Ms Bashir: It goes to any whistleblower who isn’t covered under the Public Interest Disclosure Act 2013 or the Corporations Act.
In recent times there have been a number of incidences of industrial action involving activities on or adjacent to private agricultural land, or abattoirs. Some examples include:
Australasian Meat Industry Employers Union (AMIEU) members employed at Aldi supplier Bindaree Beef in Inverell in northern NSW engaged in protected industrial action last year.
Members of the National Union of Workers conducted a 13-day picket line outside Baiada Poultry. Although this chicken abattoir is on urban land, it would be covered by the scope of the bill.
Lock out of 150 Wingham Beef Exports employees in 2018 (members of the AMIEU) over wage negotiations.
It is an offence at common law to incite or solicit another to commit a crime. Incitement, along with offences like sedition and conspiracy has a long and colourful history of being used by authorities to combat political and industrial activity. As long ago as 1925 a trade union official, Mr. Tom Walsh, who was General President of the Australian Seamen’s Union, was charged with incitement to strike.
Under current industrial law, coercing, or attempting to coerce, another person to take industrial action is an offence. ‘Coercing’ is not a defined term, and would thus take its normal dictionary definition. While ‘coercing’ would seem a somewhat stronger term than ‘inciting’, the line between the two is thin. This provision has been used against the Construction, Forestry, Mining and Energy Union (CFMEU) and officers of that union on a number of occasions. Some of the offences penalised in the linked case included attempting to organise a blockade, which could also be alternatively viewed as incitement.
Recently the Trade Union Royal Commission also recommended action against CFMEU officials John Lomax and Jason O’Mara under this provision. However, to date no action has ultimately occurred in relation to these two persons.
More recently the common law of incitement has been used in jurisdictions like the territory of Hong Kong to restrict and discourage protest movements.
Labor Senators have not been assured that ultimately this bill, especially if expanded as some stakeholders have suggested including road transport, would not be used against workers expressing their legitimate industrial rights.
Protections for journalists and whistleblowers are inadequate
Supporters of the bill argue that it will protect journalists and whistle-blowers. The protection for journalists extends to material relating to a news or current affairs report that is made by a journalist in the public interest and in their professional capacity, but it takes the form of a defence with a reverse onus of proof, rather than a full exemption.
While this means that a journalist would not necessarily be liable for either of the new offences simply because activists committed trespass or damaged property in response to information about farm practices in a news report, concerns remain about this reverse onus of proof.
The protection for whistleblowers is extremely limited, offering a defence (with reverse onus) where statements by the alleged offender would otherwise be protected by state or Commonwealth law, such as public interest disclosures in accordance with the Public Interest Disclosure Act 2013. This would not appear to protect, for example, a farm worker who sought to expose unlawful cruelty to animals.
Appearing for the Rights to Know Coalition, Ms Georgia-Kate Schubert from News Corp Australia outlined a case to demonstrate the concern for journalists and media companies:
The Warwick Daily News last week ran a story about the Green Shirts Movement in Queensland, warning farmers to be on high alert as they had received information about a potential protest in Southern Downs…The Warwick Daily News had posted this story online and sent it for review to our internal legal team, who flagged it as a story that could potentially be caught under this legislation, and it is entirely in the public interest and an entirely balanced story. It talks about a statement posted on Facebook, where the group had said that individuals already known to police were planning action. It goes on to talk about the Warwick police officer in charge who had urged farmers to be vigilant, et cetera, and had given dot points as to what farmers should be doing in relation to these issues.
Further, Ms Gail Hambly elaborated on the concerns of media companies:
It is particularly highlighted by a recent judicial decision in relation to defamation, which is under appeal. Nonetheless, it found that several media companies were potentially liable for defamatory comments put up by members of the public on their Facebook page. I won't go into the details of why it is difficult to get material off Facebook, but that’s a fact. The outcome of that is that there is judicial precedent for the possibility of media companies being responsible.
Despite assurances provided by the Attorney-General’s Department that these cases would fail to reach the threshold of intention (to incite trespass), Labor is concerned that whistleblowers or journalists acting in the public interest could still potentially be charged and face court. This may act as a deterrent to public interest reporting and legitimate whistleblowing.
Witnesses proposed these concerns could be addressed by adding a provision to the bill explicitly stating that ‘a person who engages in public discussion or debate about agricultural practices, or promotes reform of the law relating to agricultural practices, is not guilty of an offence’.
While the majority view is to support the Department’s contention that the threshold for this legislation will not capture these concerns, in the view of Labor Senators some further clarification is warranted. This could be done by taking up the suggestions of the Law Council or the suggestions from Australian’s Right to Know referenced in the main committee report.
The Australian meat industry
The meat sector is a foundation stone of the Australian economy contributing over $18 billion to Gross Domestic Product and annually earning $15 billion in export income. Nearly 70 per cent of our production is exported. Australia is the world’s third largest beef and veal exporter, the world’s largest sheep meat exporter and the world’s largest goat meat exporter
Employment in the meat industry is difficult and workers are in high demand. Despite being located in areas of high unemployment, many meat processors can’t secure the workforce they need to meet their needs.
There is a long history of criminal conduct, meat substitution, and animal welfare violations involving players in the Australian meat industry. Over the past decades there have been numerous allegations, many of which have been substantiated, of issues and violations of standards in the live export supply chain. For example:
In 1981 the discovery of bogus Australian beef in San Diego prompted the establishment of the Woodward royal commission. Justice Woodward's report was published in September 1982 and uncovered widespread meat substitution and other malpractices like fraud, forgery of export documents, corruption of government officials and illegal slaughter in the Northern Territory.
In 1991 the Australian Quarantine and Inspection Service (AQIS) launched the Jodhpur probe into criminal activity in the meat industry. This investigation examined allegations into companies—some of which are still successfully trading—being used for money laundering, fraud, corruption, drug running, firearm running, meat substitution, fraudulent halal certification and links to organised crime, including Triad gangs.
More recently, in 2010 Primo was fined for false labelling of meat, misrepresenting bacon as a domestic product, when it was in fact imported
Tolsat Pty Ltd, trading as Eversons Food Processors, was convicted and fined $66 000 on December 19 2012 in the NSW Chief Industrial Magistrates Court on a total of 66 charges involving the substitution of lamb meat.
In August this year animal activists uncovered footage of the slaughter of animals in what they allege is an illegal abattoir at a Koo Wee Rup facility, south-east of Melbourne. The Victorian regulator, Primesafe, is investigating.
Many of these instances have been sparked by discoveries made by trade unionists or activists. Because of this, whistleblower protections are as important regarding abattoirs as protection for industrial action. However, as has been discussed the bill is not satisfactory in regards to whistleblower protections.
In the words of Dr Melanie Latter, Head of Policy and Advocacy at the Australian Veterinary Association:
In fact, as you know, most of our animal welfare legislation is state-based, and so is our regulation of it, through state departments of ag and RSPCA bodies in the states. Certainly most of their activity relies on complaints. It relies on people reporting concerns about cruelty or lack of duty of care—neglect. So you wouldn’t want to see a situation where people are unable to report.
Enforcement and prosecution
Among stakeholders there is a clear expectation that the passage of this law will be backed by additional Commonwealth resources to police, and the prosecution of offenders. Mr Craig Hough, of Australian Dairy Farmers, gave voice to this expectation:
Senator KIM CARR: So you’d expect more Commonwealth officers to be put on, would you?
Mr Hough: Of course.
Senator KIM CARR: You would?
Mr Hough: All breaches of laws should be prosecuted; otherwise there’s no point in having law.
Senator KIM CARR: So you’d want the Australian Federal Police to enforce these laws throughout Australia, would you?
Mr Hough: Yes. That is their role.
However, Ms Debbie Platz, Assistant Commissioner and National Manager Crime Operations, from the Australian Federal Police gave evidence that they would not anticipate requiring additional resources.
Labor agrees with the observation in the committee’s report that the scope of the bill is limited, but notes that it may be so limited as to make it unlikely that the bill will actually be used to prosecute offenders.
There are parallels to be drawn with the Criminal Code Amendment (Food Contamination) Bill 2018 (the ‘strawberry bill’), which was introduced by this government as urgent legislation in 2018, in response to a number of incidents where fruit was contaminated.
Labor did not oppose the strawberry bill, but did express concerns about the way in which the legislation was rushed, whether it was necessary and proportionate, and how the provisions would work in practice. The Shadow Attorney-General suggested the operation of the legislation be reviewed after 12 months.
Evidence suggests no one has yet been prosecuted under the new provisions introduced by the strawberry bill, though one case is currently before the courts. The National Farmers Federation reported that it did not know of any prosecutions.
Labor is concerned the government has not provided any evidence that new laws at the Commonwealth level would be enforced, or would provide an effective means of addressing farm trespass.
Will the bill deter offending?
Supporters of the bill argue that this legislation will act to deter offending by animal activists. Mr Tony Mahar, Chief Executive Officer of the National Farmer’s Federation, told the inquiry that:
…we believe these changes will help deter those individuals and organisations that are actively encouraging others to engage in illegal conduct that negatively impacts on farmers and their families. We believe the passage of this bill will send a strong message to farmers that the government understands how serious this issue is and is prepared to act.
However animal activists appearing before the committee disagreed. Mr Christopher Delforce of Aussie Farms told the inquiry:
I think it will be very likely that prosecutions will happen, but ultimately I don’t think it’s going to change what we do. It’s going to make it harder for us to show people what’s happening. It’s going to make it harder for us to work with journalists, to work with anyone, because no-one will want to touch any of this footage.
The committee report concluded that the bill is needed in order to ‘send a strong message’ to activists and act as a deterrent. Labor is not convinced that the bill will achieve that aim. Certainly, activists have responded by saying they will not be deterred by it.
Agricultural science facilities are not adequately covered
One of the clear gaps in the bill is the treatment of agricultural science facilities on private land, versus those on private land, and other science facilities in general. Agricultural science is a key national undertaking and a major employer of scientists–5,443 according to the 2016 Census. Of these approximately three quarters work in the private sector and the rest in the public sector.
The Commonwealth Scientific and Industrial Organisation (CSIRO) has advised the committee that there are a:
Number of holdings on which agricultural, livestock and aquaculture activities are undertaken, including e.g. Ginninderra, Boorowa and Armidale Chiswick. CSIRO also undertakes research and development activities in-situ on privately held lands where required.
According to the Australian Academy of Science, there were:
A number of incidents involving environmental groups coordinating attacks on GM crops in the US and Canada in the 1990s and 2000s. A 2003 article by Leader and Probst cites the Earth Liberation Front and the Animal Liberation Front is believed responsible for ‘some 600 criminal acts between 1996 and 2002 and some $43 million in damages.’ The bulk of these acts were arson, sabotage and vandalism, chiefly directed at commercial research facilities but also at developers and logging facilities. These organisations were listed as domestic terrorism organisations by the US Federal Bureau of Investigation.
Note that there are many other examples of examples of attacks in the US by such groups as Greenpeace, California Croppers and Reclaim the Seeds, as well as anonymous attacks.
In a 2012 article in GM Crops & Food, researcher Marcel Kurtz reports on the destruction of genetically modified crops in Europe:
“About 80 acts of vandalism against academic or governmental research on GMOs are identified, mainly in 4 countries; namely France, Germany, the United Kingdom and Switzerland. Examples are also provided for Italy and Belgium.”
The article describes attacks on a wide range of crops and facilities.
The Academy of Science also reported that:
…in areas of heated public rhetoric (which include topics such as genetically modified organisms, but also stem cell research and climate change) there are often reports of physical threats, including death threats.
There was also evidence from stakeholders that scientific research facilities on private land have come under threat from activists. According to Mr. Craig Hough for Australian Dairy Farmers:
We would say yes. Back in March 2016, our Rural Research and Development Corporation at Dairy Australia was invaded by 20-odd activists doing a sit-in. The workers there couldn’t come and go as they pleased, so the building was essentially locked down for a period of time.
The CSIRO has noted that simply because research is done on private land does not mean it will necessarily attract the protections offered by this legislation:
…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.
The Academy has recommended to the committee some amendments to clearly cover scientific facilities on private agricultural land, while also providing protections to scientists acting in their line of work:
…in Section 474.46 and 474.47:
Subsection (1) does not apply to material if the material relates to a scientific disclosure or report made by a person working in a professional capacity as a scientist or researcher.
The Academy also recommends including “agricultural research” in the definition of “agricultural land” in Schedule 1 of the Bill:
agricultural land means land in Australia that is used for a primary production business or for agricultural research. For the purposes of this definition, it is immaterial:
(a) whether a part of the land is used for residential purposes;
(b) whether a part of the land is used for a business that is not a primary production business.
Additionally, the Academy recommends ensuring the definition of “primary production business” in Schedule 1 of the Bill includes agricultural research:
primary production business means any of the following: […]
(r) a business where agricultural research is carried out.
However, even with these protections the bill would create a distinction between agricultural science on private land versus agricultural science on public land, and agricultural science versus other scientific disciplines. Australia could be left in a situation where a research facility on agricultural land would have greater protections against incitement to trespass than our other key scientific institutions like the ANSTO reactor at Lucas Heights in Sydney.
We would urge the government to closely consider the amendments proposed and the broader question of protections for scientific research in this country.
Inconsistencies in the drafting of the bill: public land, forestry and aquaculture
By seeking to restrict the scope of the bill to private agricultural land the government has, in effect, opened up a can of worms. Claims have been made in the inquiry for expanding the protection to the forestry industry (on both public and private land), the mining industry, road transport, aquaculture and all meat processing facilities, whether on public or private land, and whether for export or not.
As noted in the main committee report, Seafood Industry Australia pointed to inconsistencies in the drafting of the bill, namely that wild-caught fishing, including in waters that are not privately-owned would not be covered. It argued for an extension of coverage, claiming that this would protect fish-processing facilities at sea, as well as fishing activities in the open marine environment.
Similarly, the Australian Forest Products Association has pointed to inconsistencies where the bill has drafted in a way that entirely excludes native forestry operations (by excluding forestry on public or Crown land), which is where the significant proportion of anti-forestry protests occur. The bill, as drafted, currently only covers forestry planting and harvesting on private land, which essentially means it only applies to forestry plantations.
The bill also excludes wood processing facilities such as timber sawmills, woodchip mills and pulp and paper manufacturing facilities. This is inconsistent with the bill’s treatment of other industries, as it does cover abattoirs and ‘fish processing facilities’. The Australian Forest Products Association is calling for minor amendments to the bill to include forestry operations on Crown land and to protect processing facilities.
The Attorney-General’s Department defends its approach by arguing that it is all too hard to go further, admitting that the government is not concerned with providing a holistic response to the issue, rather dealing with a specific case.
Yet this is not the experience in other jurisdictions. The United Kingdom introduced new legislation and changes to policing practices in response to escalating animal activist activities in the late-1990s and early-2000s, to manage activities characterised as ‘domestic extremism’ where research organisations, universities, farming, fur shops, establishments selling foie gras, hunting with dogs and live exports were targeted. The legislative reforms were made to existing legislation.
These inconsistencies merely heighten Labor Senators’ concerns regarding the sloppy drafting in this bill.
A lack of consultation
This bill is the product of a Coalition election commitment, appears to have been unjustifiably rushed, and was drafted with insufficient consultation with stakeholders.
Submitters from industries including aquaculture, forestry, and agricultural transport expressed confusion about definitions in the bill, and concerns that it would not adequately protect their businesses.
The Attorney-General’s Department admitted in response to questioning that there was no exposure draft of the legislation released for public consultation, and no formal stakeholder engagement with affected industries. The department’s representative said:
The government took the proposal to establish this legislation as an election commitment, and we acted on the instructions of the government to develop the legislation in response to that commitment that they took to the election.…Whether the government wishes to consult as part of its process is a matter for the government, and we acted upon the instructions of the government.
The Department of Agriculture said it had discussed the issue of farm trespass with ‘a range of stakeholders from the farming sector’ in the ‘normal course of business’, but had not facilitated a formal process of consultation on the bill.
The department also acknowledged it had not held any consultations with the seafood industry, which expressed concerns the bill only partially covers its operations.
Labor believes there is no need to rush this legislation. Consultation with industry stakeholders may have led to better legislation, or a choice to pursue legislative reform through the states and territories instead of this bill.
A proper consultation process would also have given the government an opportunity to hear and respond to industry concerns.
Conclusion
The bill has worthy aims—which are to protect Australian farmers and primary production businesses from those who incite trespass or other property offences on agricultural land. But this purpose is 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.
Labor strongly supports farmers and others who produce and process food and fibre. These industries add significant value to the economy and contribute to the health and well-being of Australians. Australians operating these businesses have a right to do so in peace, without the threat of activist trespass.
Labor also acknowledges the importance of rigorous biosecurity measures to reduce the chances of devastating contamination events and disease outbreaks.
Trespass is illegal, and that is appropriate. Also appropriate are laws against theft and destruction of property, which already apply to agricultural land. It is also illegal under existing state and territory, as well as Commonwealth statutes, to incite others to commit criminal acts.
There may well be a case for stronger laws or penalties in some states, and more rigorous enforcement of existing laws, in order to protect farmers, workers and their families from the harms and potential harms of activist trespass. Labor is not convinced, however, that this bill as currently drafted is the right vehicle to achieve those aims.
If this bill is to progress, Labor Senators suggest extensive amendments will be required to address concerns that the provisions may be used to stifle legitimate public debate or discourage whistle-blowers from exposing animal welfare abuses.
Recommendation
Labor Senators recommend 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.
Senator the Hon Kim Carr Senator Anthony Chisholm
Deputy ChairAustralian Labor Party