The Australian Greens would like to thank everyone who made a public submission and/or public representation to this inquiry.
Constitutionality
The Law Council of Australia has rightfully raised concerns regarding the constitutionality of the Criminal Code Amendment (Agricultural Protection) Bill 2019 (the Bill), noting the High Court of Australia has established an implied guarantee of freedom of political communication exists under the Constitution. In their submission to this inquiry, the Law Council warned:
…the new offences may impinge on the implied freedom of political communication in that that the breadth of conduct captured by proposed offences may overreach what is necessary for the effective operation of a system of representative and responsible government.
The Law Council and the NSW Council for Civil Liberties both used Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd as an example of a right to political communication where primary production intersects with animal welfare. As noted by Justice Kirby, as part of the majority judgment for the appellant (ABC) in that case:
The concerns of a government and political character must not be narrowly confined. To do so would be to restrict, or inhibit, the operation of the representative democracy that is envisaged by the Constitution. Within that democracy, concerns about animal welfare are clearly legitimate matters of public debate across the nation… Many advances in animal welfare have occurred only because of public debate and political pressure from special interest groups.
With precedents from this case, along with other relevant cases including Coleman v Power and Brown v Tasmania, the NSW Council for Civil Liberties concluded:
…it is likely that the High Court would find that the implied freedom invalidates most arrests and charges contemplated by this legislation, if not the entire Bill.
The Australian Greens share these concerns regarding the constitutionality of this Bill, and consider it yet another attack on the rights of Australian citizens to engage in political communication.
Duplication of existing laws
Many submitters to this argument have argued this bill duplicates existing territory, state and even commonwealth laws. These existing laws cover criminal acts, such as trespass and property damage, through to biosecurity. The duplicity of this bill was perhaps best surmised by the Law Council, which submitted:
…the case has yet to be made that these new offences are necessary and…further justification is required from the Australian Government… [and that] there is no evidence that the existing laws are incapable of addressing the concerns that motivate the passage of the Bill.
The Australian Greens argue in this dissenting report that perceived deficiencies in existing laws are not in fact the motivation for passage of this Bill.
Moreover, where industry submitters have argued existing laws don’t result in prosecutions, and therefore don’t work, the Australian Academy of Science when presenting evidence to the Committee in hearing that the Criminal Code Act has in fact resulted in charges being laid against perpetrators of “vandalism” against its property and facilities.
Proportionality
The NSW Council for Civil Liberties has argued the bill disproportionately criminalises offences regarded by the courts as minor. The Animal Protectors Alliance gave evidence to the Committee in hearing that:
the bill would treat offences against farmers more harshly than exactly the same offences committed against everybody else in the Australian community. … [and will] treat people who break laws in order to right terrible wrongs more harshly than people who commit the same offences for reasons of malice or personal gain.
With more than 1700 activists having been killed globally this century defending the environment, the Australian Greens support this argument, and question the lack of corresponding concern from the Government for the welfare and protection of animal rights activists like Cara Garrett and James Warden. In Tasmania, as with the rest of Australia and the world, there is a long history of environmental activists being threatened, having their property damaged, and being physically abused by opponents to their cause. But none of these events have resulted in legislation to specifically protect their rights and safety.
The Australian Greens also believe this bill is a misdirected Band-Aid for distrust in livestock industries. By shielding these industries from greater transparency and scrutiny, the Government will only create more distrust of these industries in our community.
Industry advocates supporting this bill, despite acknowledging there is no data to support its enactment, have argued the bill would act as a deterrent to animal welfare NGOs and activists. The proposed maximum penalties, which the Law Council has argued are not proportionate to the stated policy objectives of the bill, would arguably also act as a deterrent, as was the intention of similar legislation such as Tasmania’s Workplaces (Protection from Protesters) Act 2014. It is these observations from both sides of the debate that belie what the Australian Greens argue are the true policy intents of the bill, which is to silence public dissent and political communication. Furthermore, we argue the objects of this Bill are political, not legal.
Scope and definitional issues
As can be read in submissions to this inquiry, and in the Chair’s report, supporters of this bill are already calling for the scope of the bill to be expanded to cover other industries and activities. The Australian Greens believe that should this bill be enacted, it will present another thin edge of the wedge for stifling political activism and industry accountability.
This bill is yet another sorry example of Government legislation that seeks to further erode fundamental rights we once took for granted. It is also another demonstration of why we need an Australian Charter of Rights.
Conclusion
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.
Recommendation
The Australian Greens recommend that the bill not be passed.
Senator Nick McKim
Greens Senator for Tasmania