On 4 July 2019, contingent upon introduction in the House of Representatives, the Senate referred the provisions of the Criminal Code Amendment (Agricultural Protection) Bill 2019 (the bill) to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 6 September 2019.
This followed a recommendation from the Selection of Bills Committee responding to two proposals for the referral. The proposals state reasons for referral, including that:
the bill could make previously legal conduct into an offence;
the bill may raise concerns around human and digital rights; and
the adequacy of exemptions for whistleblowers and journalists should be subject to public scrutiny.
Conduct of the inquiry
The committee called for submissions, publishing details of the inquiry on its website and contacting a range of relevant organisations. Interested parties were invited to make a submission by 31 July 2019.
The 86 submissions received by the committee are listed at Appendix 1.
The committee held a public hearing at Parliament House in Canberra on 12 August 2019. The list of witnesses is at Appendix 2.
The committee acknowledges the efforts of the people and organisations that made a submission or gave evidence at the public hearing for this inquiry.
Structure of the report
The report has three chapters. This first chapter provides information about the inquiry, an introduction to the provisions of the bill, and reports on the findings of the Senate Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights in relation to the bill.
Chapter 2 outlines and addresses key legal issues raised in relation to the proposed legislation, including:
the constitutionality of the bill;
duplication of existing laws;
the proportionality of the bill and the penalties therein;
the scope of the bill and definition of key terms; and
whether the bill applies to agricultural research facilities.
Chapter 3 considers the possible effects of the proposed legislation. This includes evidence about the impact on farmers and their families; biosecurity implications; the adequacy of protections for journalists and whistleblowers; and transparency about animal welfare issues.
Notes on references
References to Committee Hansard in this report are to the proof transcript. Page numbers may vary between the proof transcript and the final.
In April 2019 a number of animal rights groups held protest actions across Australia, including in Victoria and Queensland. Some of the protests included trespassing on agricultural land by, for instance, conducting ‘sit ins’ or individuals chaining themselves to farm equipment.
One of the organisations involved in arranging the protest activity was Aussie Farms. Aussie Farms had published information about Australian farmers on its website, including their names and addresses, for the purposes of promoting protest activity.
In the wake of these events, the federal government made Aussie Farms a prescribed organisation under the Privacy Act 1988, exposing it to ‘potential penalties of up to $2.1 million if it is found to breach the Privacy Act’.
The Attorney-General, the Hon Christian Porter MP, described the current bill as the next step in ‘protecting farmers’ from groups and individuals who disseminate personal information to encourage others to trespass and/or damage property on agricultural land.
Provisions of the bill
The bill would amend the Criminal Code Act 1995 to create two new offences for using a carriage service to incite trespass or property offences on agricultural land.
The first offence relates to using a carriage service to transmit material with the intention of inciting another person to trespass on agricultural land. Agricultural land is defined in the bill as land which is used for a primary production business.
To constitute an offence, the person’s conduct must be ‘reckless’ as to whether the trespass activity ‘could cause detriment to a primary production business that is being carried on on the agricultural land’. Trespass activity does not have to have occurred. This offence would carry a prison sentence of up to 12 months.
The second offence relates to using a carriage service to transmit material which incites a person to damage, destroy or steal property on agricultural land. This offence would carry a penalty of imprisonment for up to five years.
The Attorney-General provided the following example:
…if an activist posts on social media intending that other people pull down fences on a farm, or steal livestock from a farm, that activist would be subject to the aggravated offence and its higher penalty.
The bill provides exemptions for journalists engaged in professional work and those who are making lawful disclosures of information, such as whistleblowers.
In his second reading speech, the Attorney-General provided an example of where this exemption would, and would not, apply, saying:
…the bill would provide an exemption for a journalist acting in their professional capacity who publishes a story that listed the locations of farms with ‘questionable’ farming practices…The exemption would not protect a journalist suggesting that activists should use the information to facilitate such a farm trespass.
The exemption for whistleblowers would apply where any Commonwealth or state or territory law currently exempts the conduct from being liable for civil or criminal prosecution.
Consideration by other parliamentary committees
Scrutiny of Bills Committee
In Scrutiny Digest 3 of 2019 the Scrutiny of Bills Committee raised concerns with the ‘offence-specific defences’ in the bill in relation to whistleblowers and journalists. The Scrutiny Committee is concerned that ‘the defendant will bear the evidential burden of proof’, and contends that no explanation has been provided to justify why the exemptions are categorised as offence-specific defences.
The digest concludes:
The committee requests the Attorney-General’s detailed justification as to the appropriateness of including the specified matters as offence-specific defences. The committee considers it may be appropriate if these clauses were amended to provide that these matters form elements of the relevant offences, and requests the minister’s advice in relation to this matter.
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights’ scrutiny report indicates concerns with a number of aspects of the bill, and seeks the minister’s advice in relation to:
whether it limits the right to freedom of assembly, and whether the limitations it imposes are proportionate;
‘whether the proposed offence and its potential application is sufficiently circumscribed’ by the legislation;
whether the whistleblower and journalists protections are sufficient under international human rights law; and
whether there are ‘other, less restrictive, measures available to achieve the stated objective’.
[T]he safeguards are framed as defences for which the alleged offender carries the evidential burden, rather than as an element of an offence to be proved by the prosecution (for example, by providing the offence would only be committed if the offender, in distributing the material, was not acting in the public interest). These matters collectively raise questions as to whether the bill, as currently drafted, may potentially act as a disincentive to persons or civil society organisations from acting in the public interest, resulting in a possible ‘chilling effect’ on freedom of expression and assembly.